Judicial review

HCJ 1074/93

1.       Attorney-General

2.       Bezeq, the Israel Telecommunication Corporation Ltd

v.

1.       National Labour Court, Jerusalem

2.       General Federation of Labour in Israel

3.       Bezeq Employees’ Joint Representation

4.       All Bezeq Employees

 

The Supreme Court sitting as the High Court of Justice

[10 April 1995]

Before Justices D. Levin, M. Cheshin, Ts. E. Tal

 

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

 

Facts: The second petitioner, the Bezeq Corporation, had a monopoly in the field of providing telephone services in Israel. When the Government decided to allow competition in this field, the General Federation of Labour feared that the restriction of the monopoly would affect the jobs and rights of Bezeq’s employees, and it therefore gave notice of a strike. The petitioners applied to the Regional Labour Court for an injunction against the strike. The injunction was given, but the National Labour Court overturned it on appeal. The petitioners then petitioned the High Court of Justice to set aside the judgment of the National Labour Court.

 

Held: Strikes can be divided into three categories: (1) economic strikes, which oppose an action that clearly and immediately harms employees, and are considered legitimate; (2) political strikes, which oppose a general policy of the Government, and are not considered legitimate; (3) quasi-political strikes, which oppose an act that is not directly connected with terms of employment, but do affect them directly. Quasi-political strikes only justify a short protest.

In this case, it was not proved that the restriction of Bezeq’s monopoly would clearly and immediately harm Bezeq’s employees. Therefore at most it could be a quasi-political strike, which justifies a short protest strike. Therefore the Regional Labour Court had been correct in issuing an injunction against the extended strike.

 

Petition granted.

 

Basic Laws cited:

Basic Law: Human Dignity and Liberty, 5752-1992, ss. 1, 2, 4.

 

Statutes cited:

Collective Agreements Law, 5717-1957.

Contempt of Court Ordinance, 1937.

Labour Court Law, 5729-1969, s. 30(a).

Procedure (Attendance of Attorney-General) Ordinance [New Version], 5728-1968, s. 1.

Resolution of Labour Disputes Law, 5717-1917, ss. 2, 5A, 5B, 37A, chapter 4.

Telecommunications Law, 5742-1982, ss. 50, 51, 60.

 

Israeli Supreme Court cases cited:

[1]      HCJ 3679/94 National Association of Managers and Authorized Signatories of First International Bank of Israel Ltd v. Tel-Aviv Labour Court [1995] IsrSC 49(1) 573.

[2]      HCJ 51/69 Rudenitsky v. Great Rabbinical Court [1970] IsrSC 24(1) 704.

[3]      HCJ 550/89 Attorney-General v. Parole Board [1989] IsrSC 43(2) 739.

[4]      HCJ 910/86 Ressler v. Minister of Defence [1988] IsrSC 42(2) 441; IsrSJ 10 1.

[5]      HCJ 2148/94 Gilbert v. Chairman of Commission of Enquiry for examining the Massacre in Hebron [1994] IsrSC 48(3) 573.

[6]      CA 506/88 Shefer (a minor) v. State of Israel [1994] IsrSC 48(1) 87; [1992‑4] IsrLR 170.

[7]      HCJ 73/85 ‘Kach’ Party v. Knesset Speaker [1985] IsrSC 39(3) 141.

[8]      CA 593/81 Ashdod Automobile Enterprises Ltd v. Chizik (dec’d) [1987] IsrSC 41(3) 169.

[9]      CA 25/71 Feinstein v. High School Teachers’ Association [1971] IsrSC 25(1) 129.

[10]    HCJ 525/84 Hativ v. National Labour Court [1986] IsrSC 40(1) 673.

[11]    HCJ 1520/91 Wilensky v. National Labour Court [1992] IsrSC 46(5) 502.

[12]    HCJ 675/84 General Federation of Labour in Israel v. Tel-Aviv Labour Court [1985] IsrSC 39(3) 13.

[13]    HCJ 289/79 Israel Ports Authority v. National Labour Court [1980] IsrSC 34(2) 141.

[14]    ALCA 7112/93 Tzudler v. Yosef [1994] IsrSC 48(5) 550.

[15]    HCJ 262/62 Peretz v. Kfar Shmaryahu Local Council [1962] IsrSC 16 2101; IsrSJ 4 191.

[16]    HCJ 840/79 Israel Contractors and Builders Centre v. Government of Israel [1980] IsrSC 34(3) 729.

[17]    HCJ 453/94 Israel Women’s Network v. Government of Israel [1948] IsrSC 48(5) 501; [1992-4] IsrLR 425.

 

Labour Court cases cited:

[18]    NLC 37/4-3 Katza Workers’ Committee v. Katza Co. Ltd [1977] IsrLC 8 421.

[19]    NLC 52/4-3 (unreported).

[20]    NLC 36/4-5 Ginstler v. State of Israel [1976] IsrLC 8 3.

[21]    NLC 46/4-7 Tel-Aviv-Jaffa Municipality Lifeguard Committee v. Tel-Aviv-Jaffa Municipality [1986] IsrLC 17 264.

[22]    NLC 52/4-37 United Mizrahi Bank Ltd v. Bank Mizrahi Workers Union [1992] IsrLC 25 53.

 

English cases cited:

[23]    Mercury Communication v. Scott-Garner [1984] Ch. 37 (C.A.).

 

Dutch cases cited:

[24]    Re Keijzer v. Peters N.V. 3 I.L.L.R. 306 (1977).

[25]    N. V. Dutch Railways v. Transport Unions FNV, FSV and CNV 6 I.L.L.R. 3 (1986).

 

Finnish cases cited:

[26]    Metal Industry Employers’ Federation v. Metal Workers Union 9 I.L.L.R. 522 (1988).

 

For the first petitioner — M. Rubinstein, director of the Civil Department at the State Attorney’s Office.

For the second petitioner — S. Bechor.

For the second respondent — A. Mei-Tal, R. Kariv.

For respondents 3-4 — A. Feingold.

 

 

JUDGMENT

 

 

Justice D. Levin

1.    We have before us a petition of the first and second petitioners against the judgment of the National Labour Court in NLC 53/4-4,[*] in which the National Labour Court allowed the appeal of respondents 2-4 and held that an injunction should not be given against the respondents in a strike that they held, since according to its ruling, the strike was legitimate.

The facts relevant to the case

The main facts are not in dispute, but clear details of them, as set out by his honour the President of the National Labour Court in his judgment, are necessary in order to consider the dispute and its solution properly and precisely.

2.    The second petitioner (hereafter — Bezeq) operates under a licence granted to it under the Telecommunications Law, 5742-1982, and it is a ‘public service’ within the meaning thereof in chapter four of the Resolution of Labour Disputes Law, 5717-1957. Sections 50 and 51 of the Telecommunications Law granted Bezeq exclusivity in various fields of operation, and the following is the wording of those sections:

‘50. A general licence to carry out telecommunications operations or to provide national telecommunications services on a national telephone network or to provide international telecommunications services on an international telephone system shall only be given to one company; for this purpose, “national telephone network” — a national cable infrastructure, wireless installations and telecommunications installations by means of which telephone services and additional telecommunications services are provided to the public.

51. (a) A special licence shall not be given with regard to the equipment that the Ministry of Telecommunications dealt with before the passing of this law in the Knesset (hereinafter — the equipment of the Ministry) or with regard to identical equipment that may replace it.

(b) A special licence shall not be given with regard to equipment similar to the equipment of the Ministry that will replace it or that is designated to replaced it, until the Minister has consulted with the company and decided, after considering inter alia the interest of the company in carrying out the action or in providing the service to which the licence refers, that the public interest requires the licence to be given to whoever asked for it.’

3.    The Government decided to limit this exclusivity by opening up various sectors in the field of telecommunication services to competition. First this was done by a decision of the Minister of Telecommunications at that time, and shortly before the dispute before us this intention was expressed in the draft State Economy Arrangements (Legislations Changes for Achieving Budget Targets) Law, 5753-1992, which states in section 26:

‘In section 50 of the Telecommunication Law, 5742-1982, the words “or to provide international telecommunications services on an international telephone system” shall be deleted, and at the end shall be added “but a mobile radio-telephone network shall not be regarded as part of the national telephone network”.’

4.    Respondents 2-4, under the leadership of the second respondent (hereafter — the General Federation), opposed these changes on the grounds that revoking the exclusivity will affect the terms of employment of Bezeq employees and lead to the dismissal of many of them. Their request was to enshrine in an agreement, before revoking the exclusivity, the question of the rights of employees, both those who would continue to work for Bezeq and those who would be forced to leave it as a result of that change.

The General Federation based its main arguments on that fact that when the Telecommunications Law was passed, the commencement of the law was made conditional, inter alia, on the signing of a collective agreement with regard to the rights of Bezeq’s employees, and the transfer of employees from the civil service to the employment of Bezeq (s. 60 of the Telecommunications Law).

5.    On 14 May 1992, the Federation of Clerks delivered to the Chief Director of Labour Relations and to Bezeq a ‘Notice of a Strike’, stating that the notice was given under sections 5A and 5B of the Resolution of Labour Disputes Law.

6.    On 12 July 1992, Bezeq employees began sanctions in accordance with the decision of Bezeq’s Workers Council, and several days later, on 20 July 1992, the Central Committee of the General Federation approved, for the second time, ‘a labour dispute at the Bezeq Corporation, because of the granting of licences to private enterprises and the transfer of work to contractors, a reduction in the definition of the general licence and a privatization of the “Bezeq” corporation.’

7.    On 16 July 1992, Bezeq applied to the Tel-Aviv-Jaffa Regional Labour Court in an application for a temporary and permanent injunction to stop the sanctions. On 17 July 1992, an order was given as requested, and this was extended several times.

8.    It should be mentioned, just as the National Labour Court emphasized at the beginning of its judgment in a condemnation of their behaviour, that despite the temporary injunction given against them, Bezeq’s employees carried out sanctions that compelled Bezeq to ask the court twice for orders under the Contempt of Court Ordinance (LC 53/48-2; LC 53/48-3), and an order was even made in this respect. Again, after judgment was given in the main proceeding, which was the subject of the appeal to the National Labour Court, Bezeq was compelled to commence contempt of court proceedings.

This behaviour of Bezeq’s employees deserves strong condemnation, and we will refer to it and mention it below.

9.    A further fact that is relevant in this case is the determination that before the hearing of the appeal before the National Labour Court, the sanctions taken by the employees stopped.

10. As stated, the General Federation appealed the decision of the Tel-Aviv-Jaffa Regional Labour Court to the National Labour Court in Jerusalem, which allowed the appeal and set aside the judgment of the Regional Labour Court and the injunction given by it, in so far as it related to the General Federation being forbidden from declaring the strike.

The judgment of the Regional Labour Court

11. After it considered the matter on its merits and in depth, the Regional Labour Court found that the strike of the Bezeq employees was not legitimate, since the reason for it could not be the subject of a collective agreement. In addition, the Regional Labour Court held that the strike was ‘not protected’, with all that this implies, as set out in chapter four of the Resolution of Labour Disputes Law.

In its judgment, the Labour Court considered the ‘balance of convenience’, and on this basis it held that the general public, and also the Bezeq company itself, should be spared substantial harm. The Labour Court therefore ordered the Bezeq Employees’ Representation to maintain full industrial quiet and refrain from a strike or sanctions, and it also ordered the General Federation to order the Bezeq Employees’ Representation and its employees to work fully and without interruption.

The appeal to the National Labour Court

12. The General Federation appealed the judgment of the Regional Labour Court. In essence, the General Federation argued that the strike was declared lawfully and held lawfully, and that it should not be regarded as a  ‘political strike’ or an  ‘unprotected strike’. In its opinion, the strike does not contradict the ‘industrial quiet’ clauses in the binding agreements.

The National Labour Court considered in depth the many and complex questions that were raised before us, and held, unanimously, but for different reasons, that the appeal should be allowed, and that the judgment of the Regional Labour Court, including the injunction in it, in so far as it related to the prohibition against a strike being declared by the General Federation, should be overturned (paragraph 25 of the judgment of his Honour President M. Goldberg).

The judgment of the National Labour Court

13. The National Labour Court referred to the definition of strikes in case-law, and held that it ought to be changed, even if this involved a deviation of the National Labour Court from its own rulings. This is what was said:

‘In these days, when the legislator intervenes more than ever in employment terms that are determined or that may be determined in agreements or collective agreements… and has become an active partner in determining the terms of employment of all employees, particularly in the public sector… it is highly questionable whether the definition of the term “strike”, as reflected in case-law, can be allowed to stand as it is.’[†]

The court went on and held, for the purpose of the term  ‘unprotected strike or work stoppage’, as defined in section 37A of the Resolution of Labour Disputes Law, that:

‘… it is proper that a strike in the civil service directed against a change, that may significantly affect the terms of employment of the employees in a certain enterprise, and which is intended to ensure the rights of the employees as a result thereof, as long as it is not against the law, should not fall into the category of an “unprotected strike” in the civil service, even if it is not the employer who initiated the change.’[‡]

Therefore the National Labour Court reached the conclusion, in the majority opinion written by the learned President, that the question as to whether we are dealing with a  ‘political strike’ should be answered in the negative.

The National Labour Court held, at the end of the hearing, that not every strike that is not against the Government as sovereign, rather than as employer, is a  ‘political strike’, and in consequence thereof it decided that the strike carried out by the Bezeq employees was not an  ‘unprotected strike’ within the meaning thereof in the Resolution of Labour Disputes Law.

14. In order to complete the picture, alongside the reasoned judgment of the majority of the panel of the National Labour Court we should mention the minority judgment of the learned Vice-President, Justice S. Adler, who, although he agreed with the outcome, did so for reasons that are entirely different from those of the majority. The learned Vice-President was of the opinion that the strike in this case was a  ‘mixed strike’, partly political and partly economic, and it was mainly political in nature, since:

‘… its tangible and immediate purpose is to change the policy of the Government and the Knesset…’[§]

The agreement of the learned Vice-President to cancel the order made against the General Federation was based merely on the fact that the order had achieved its purpose, and the employees had returned to work. When the appeal of the General Federation was allowed in the National Court, the petitioners submitted this petition, which is now before us.

The main arguments of the petitioners

15. The petitioners recognize the fact that labour law is within the expertise and sole jurisdiction of the Labour Court. They are also aware of the ruling, which was made by this court and which had been upheld more than once, that the High Court of Justice does not sit as a court of appeals on the judgments of the National Labour Court, and it will intervene in the judgments of the National Labour Court only when it transpires that there is a substantial mistake of law, and justice requires us to intervene in order to correct it (HCJ 3679/94 National Association of Managers and Authorized Signatories of First International Bank of Israel Ltd v. Tel-Aviv Labour Court [1], at p. 584, and the many citations set out in the judgment).

Notwithstanding, they are of the opinion that the case before us does indeed fall into the category of rare and special cases where our intervention is justified.

16. According to the petitioners, in the ruling made by the National Labour Court in its judgment there is a fear that a mistake of law may become entrenched and undesirable norms may be adopted in a most important subject, which is one of the foundations of collective labour law and labour relations in the economy. The petitioners argue that a strike directed at the government to achieve political aims, when the employer is usually a third party who cannot agree to the demands, has been called a ‘political strike’ in Israeli case-law, and it is considered a forbidden strike. In the opinion of the petitioners, the strike which is the subject of the case before us is indeed of this kind, and it follows that it does not fall within the sphere of labour law, since its purpose is to achieve objectives that are not legitimate ones in the field of labour law. In addition, the petitioners argue that the provisions of section 37A of the Resolution of Labour Disputes Law distinguish between an unprotected strike relating to salary and social benefits, and a strike which is not of this kind, but this is only with regard to the formal terms stipulated in the law and not in order to expand the concept of the strike and to grant legitimacy to a ‘legal strike’. According to them, the strike still needs to be within the field of labour law and within the framework of a labour dispute, it must be directed against the employer and it must relate to terms of employment or labour relations which are not salary or social benefits — for these two subjects are only some of the matters that may be the basis for a labour dispute, as defined in section 2 of the Resolution of Labour Disputes Law. In this respect, the petitioners argue that a change of the general licence of the Bezeq Corporation and the legislation proceedings for amending the Telecommunications Law are not a part of ‘work conditions’ and they are not a part of ‘labour relations’, since they cannot be the subject of a collective agreement within the meaning of this term in the Collective Agreements Law, 5717-1957. Finally, the petitioners point out that the conclusion of the National Labour Court, in so far as it relates to the widening of the freedom to strike, has no parallel in foreign law.

The main arguments of the respondents

17. The respondents argue that the judgment of the National Labour Court, which is the subject of this petition, was made lawfully and it is right and just on the merits. Therefore, there is no reason for this court to set it aside.

18. The respondents argue before us that it should not be assumed that organized opposition of employees to a harmful action of the Government should not be regarded as a strike, but rather as a forbidden act, merely because the initiative for the harmful act does not proceed from the direct and formal employer. They argue that in the prevailing legal situation in public services, the formal employer has almost no power in matters relating to the determination of employment terms and employees’ salaries, and therefore the formal distinction with regard to the identity of the direct employer cannot be implemented in the present circumstances.

The respondents further argue that just as every citizen and every group of citizens may demonstrate against the implementation of any Government policy, as part of their basic rights in our democratic regime, so too employees have the freedom to associate in order to protect their place of work and their livelihood. They argue that the only practical expression of this freedom to associate is the freedom to strike, i.e., not to work.

Therefore, in view of the aforesaid, the respondents ask the court to cancel the show cause order, to dismiss the petition and not to intervene in the judgment of the National Labour Court.

Preliminary arguments

19. This is the factual and legal background to this petition, on the basis of which a show cause order was issued, and our deliberation will be based on this. But first I must remove from our path two preliminary arguments raised before us by counsel for the General Federation, according to which we are asked to dismiss this petition in limine.

20. First, the General Federation argues before us that section 30(a) of the Labour Court Law, 5729-1969, does not grant the first petitioner (hereafter — the Attorney-General) the authority to challenge the decision of the National Labour Court before this court. It further argues that the petition under discussion raises an academic question that is dead and buried, since the dispute that is the subject of the strike under consideration has already been resolved.

The two arguments should be rejected.

21. With regard to the argument of the General Federation that section 30(a) of the Labour Court Law does not give the Attorney-General the authority to challenge the decision of the National Labour Court before this court, the answer is as follows. Indeed the text of the aforesaid section 30(a) grants the authority to intervene in proceedings before the Labour Court, and it is with this that we are concerned, but what is stated does not imply what the Attorney-General does not have authority to apply to this court.

First, when the Attorney-General became a party in the National Labour Court, he acquired standing both before the court with procedural jurisdiction and also before the court with review jurisdiction. No impropriety should be attached to the fact that this standing should continue to exist also before us as the highest court of review, in order to examine the arguments of the Attorney-General that were rejected in a lower court, which in this case is the National Labour Court.

Second, it seems to me that it is fitting that the Attorney-General, as the person who represents the public interest, should petition the High Court of Justice in cases where he thinks that one of the branches of government has erred in a matter which he thinks is of supreme public importance. This approach is based on two lines of reasoning: first, the Attorney-General has the authority to become a party to a petition filed by someone else, by attending, as in the present case, in the High Court of Justice, by virtue of section 1 of the Procedure (Attendance of the Attorney-General) Ordinance [New Version] (for recognition by this court of a proceeding of attendance that was similar in its circumstances, see: HCJ 51/69 Rudenitsky v. Great Rabbinical Court [2], at p. 711; HCJ 550/89 Attorney-General v. Parole Board [3]).

Third, opening the doors of this court even to a ‘public petitioner’ who can show a general public interest that justifies proper consideration applies a priori to the Attorney-General within the framework of his authority (see Dr Z. Segal, The Right of Standing in the High Court of Justice, Papyrus, second edition, 1994, at pp. 71, 268-270; and also diverse case-law: HCJ 910/86 Ressler v. Minister of Defence [4]; HCJ 2148/94 Gilbert v. Chairman of the Commission of Enquiry for examining the Massacre in Hebron [5]).

22. With regard to the argument about the academic nature of the question under discussion, the remarks of the Vice-President of the Supreme Court, Justice Elon, in CA 506/88 Shefer (a minor) v. State of Israel [6], at p. 98 {179}, are apt:

‘Usually we do not become involved in deciding an issue that is purely academic. But there is no rule that does not have exceptions… This is because usually… the decision must be given without delay, as required by the nature of the case and the facts, and the reasons relate to the heart of the matter and the reasoning for it, so that we will know and have established the law on each of the issues before us when it arises and comes before us once more.’

Or, as Justice Barak chose to express it in HCJ 73/85 ‘Kach’ Party v. Knesset Speaker [7], at p. 146:

‘It is true that this court does not consider questions that are not practical, and it does not give an opinion that is merely academic on questions of theoretical application, but this rule does not apply when the nature of the event, to which the petition refers, is such that the judicial determination of it may come after the event has taken place, but there is a reasonable likelihood that similar events will happen in the future…’

So we see, and the experience of life teaches us, that legal issues of a special and flexible nature from the past that appeared academic at the time became important and urgent practical questions at a later date. For this reason, both because of the direct relevance of the questions that are at the heart of the structure of the constitution and labour law in Israel, and also because of the doubt as to whether this dispute and ones like are merely events of the past, I think it appropriate to consider in detail the question before us.

The freedom to strike

23. In order to decide whether the sanctions taken by the employees in this case should be considered a ‘strike’, within the definition of this term for the purposes of labour law, we must first consider the status of this ‘institution’.

24. It would appear that there is no longer any basis to question the lofty and protected status of the freedom to strike. More than once we has emphasized that:

‘… the “right” to strike has acquired for itself a firm foothold in Israeli legislation and case-law’ (CA 593/81 Ashdod Automobile Enterprises Ltd v. Chizik (dec’d) [8], at p. 190).

            In the eloquent language of Justice H. Cohn in CA 25/71 Feinstein v. High School Teachers’ Association [9], at p. 131:

‘It may be said that there is nothing further from the mind of the Israeli legislator than the desire to eliminate the institution of the strike: if an English judge, in a recent decision, described the strike as a ‘holy cow’, then here it should be regarded at least as a kind of revered tradition, such that it can no longer be questioned.’

Moreover, in an age where we are guided, both in legislation and in case-law, by the Basic Law: Human Dignity and Liberty — and its constitutional values — it would appear that the ‘strike’, which we have always considered to be included among the basic freedoms not written in the statute book and which was described as something that ‘in essence belongs not to the sphere of “rights” but to the sphere of  “freedoms” which are subject to binding restrictions...’ (See NLC 37/4-3 Katza Workers’ Committee v. Katza Co. Ltd [18]; NLC 52/4-17 (unreported) [19]; NLC 53/4-4[**]), will in the future find refuge in the value of ‘human dignity’ that is enshrined in this basic law (sections 1, 2 and 4 of the Basic Law: Human Dignity and Liberty, and for more detailed analysis, see the book of (Vice-President) Prof. A. Barak, Legal Interpretation, vol. 3, “Constitutional Interpretation”, Nevo, 1994), and also his article ‘Human Dignity as a Constitutional Right’, 41 Hapraklit, 1993-1994, 271, at p. 279).

It is clear, then, that the focus of our consideration is a freedom that has the status of a constitutional right and is well-established in the different branches of Israeli law — a status that grows stronger all the time. Nonetheless, and precisely for this reason, when we are required to determine which acts of protest adopted by workers in their struggle will find refuge under the protection of the ‘strike’, the courts and labour courts must look to the definition of ‘the strike’, with its changing facets and nuances.

Definition of the ‘strike’ — the status of a strike against the sovereign authority

25. In their petition, the representatives of Bezeq and the Attorney-General reiterated their initial and fundamental argument that they argued before the National Court, that an indispensable condition for a concerted action of employees to be recognized as a ‘strike’ for the purpose of labour law is that it is declared within the framework of a struggle to achieve employees’ demands from an employer — with regard to their terms of employment. Counsel for the petitioners argues that this condition is not fulfilled in our case, where the demands of the Bezeq employees are not directed at their employer — the Bezeq Corporation — at all, but at the Government. In their opinion, since this is the case, the actions taken do not fall within the definition of a ‘strike’, and certainly these actions should not be granted legitimacy.

Indeed, as his honour, the learned President of the National Labour Court, Justice Goldberg, pointed out in his judgment:

‘… not infrequently have the Labour Courts, and the civil courts, expressed themselves in such a way that it may be understood that only a strike against an employer, in matters that are a subject for collective bargaining and a collective agreement, is a “strike” within the meaning thereof in labour law.’[††]

See the development of this definition: NLC 36/4-5 Ginstler v. State of Israel [20], at p. 15; NLC 46/4-7 Tel-Aviv-Jaffa Municipality Lifeguard Committee v. Tel-Aviv-Jaffa Municipality [21], at p. 269; HCJ 525/84 Hativ v. National Labour Court [10], at p. 702; NLC 52/4-37 United Mizrahi Bank Ltd v. Mizrahi Bank Workers Union [22], at pp. 62-63.

26. One might ask why we need all this repeated study and examination of the nature of a ‘strike’, when we have established the traditional nature of the definition of the ‘strike’, which is directed against the employer only, whereas in the case before us it is directed against the sovereign authority? To this questioner we will reply that there are sound reasons for this investigation and examination, for we are not divorced from the people and we are charged with seeing the current reality of our times, which changes and varies continually, both in general and also in the field of labour relations. So it would appear that it was not an accident that the legislator chose not to define the term ‘strike’, except in chapter 4 of the Resolution of Labour Disputes Law. It is clear that by doing this the legislator expressed the opinion that:

‘… the concept strike is not one that has a single meaning, which applies at all times, for every purpose and in every situation of a development of labour relations and labour law’ (NLC 36/4-5 [20], at p. 27).

And in the words of Justice Goldberg (President of the National Labour Court) in one of his articles:

‘… it may be good that this matter has been left to the discretion of the courts, for the reason that the needs and situations in the area of labour relations and labour law are dynamic and changing, and a statutory definition, which by its very nature is inflexible, does not change with the passage of time, and may well become a burden when the courts are required to apply the law…’ (M. Goldberg, ‘The Strike in Statute, Collective Agreements and Case-law’, Hapraklit, Special edition celebrating 25 years of the Bar Association, 1987, at pp. 51-52, cited in NLC 53/4-4, 25, supra[‡‡]).

27. We cannot ignore the changes that have been taking place for some time in the field of labour relations in the Israeli economy. It is clear that the Government is both an active and influential factor in the field of labour relations and in the negotiations about labour agreements. This interventionism has many, different causes, and it will suffice if we mention that, in addition to being one of the largest employers in the economy, the State intervenes in the field of labour relations as an active and highly influential factor in ‘package deals’, in wages, taxes and pricing policy.

In this respect, the following remarks, which reflect a familiar reality, are correct:

‘… the fact that the Government has become an active partner in negotiations regarding work conditions, justifies the expansion of the employees’ protest base, so that it may extend also to attack the policy of the additional partner to the negotiations and not merely the employer, as was the case in the past, which reflected the reality that prevailed then’ (Prof. R. Ben-Israel, ‘The Political Strike’, Iyyunei Mishpat, 1986-1987, 609, at p. 624).

It is therefore proper to consider this development when we seek to formulate an up-to-date approach to the important issue in the case before us.

            The political strike — classification and status

28. At the heart of the petition before us lies the argument of the Attorney-General that the strike was directed against a specific provision in the Telecommunication Law, 5742-1982, which granted the Bezeq Corporation a monopoly in certain fields. The policy adopted by the State in putting forward the aforesaid draft law to correct the situation in a very limited manner was intended to bring about a measure of change in an undesirable monopolistic situation, and provide for the possibility of free competition in the field of international telephone services and mobile telephone services.

Opposition to this policy, when it is in the process of being legislated in the Knesset, is, in the State’s view, a manifestly political strike, which is regarded by Israeli case-law as a strike that undermines our democratic process, and as such should be regarded as a strike that is not legitimate. This approach, to the extent that it relies on a proper factual basis, finds support in our case-law, and I need only refer to the remarks of President Shamgar in Hativ v. National Labour Court [10] and his decisive approach:

‘The political strike — which attempts to force an act or an omission on government authorities that they would not have tolerated had it not been for the strike — raises many constitutional and social problems: in a democratic regime, this opens the gates for strikers to impose their will on democratically elected institutions, and to direct processes by means of the coercive power of organizations outside the government and even of minority groups who in practice have such coercive power. There may be countries where a national electric power cut, including for electricity being supplied to hospitals and nurseries, can compel the legislator to enact any legislation required of him. But there is no doubt that, together with the collapse of morality, this also harms most seriously the functioning of democracy as such’ (ibid., at pp. 703-704).

This approach of the President has won widespread approval, and it is supported by the opinions of scholars in Israel and abroad (see Professor F. Raday’s article: ‘Political Strikes and Fundamental Change in the Economic Structure of the Workplace’, 2 Hamishpat, 1995, at pp. 159-177).

29. This issue is a delicate one and a very significant one in labour relations and labour law, as they have developed and crystallized in democratic countries. The distinction between a purely political strike, which is considered not legitimate, and an economic strike, which is recognized as a proper strike, is recognized and accepted by the different legal systems, but over time the two extreme forms of strike have been joined by an additional method of protest directed mainly at the sovereign power, which is a quasi-political strike that relies on a factual basis that is made up of a mixture of facts and goals.

Comparative law — conceptual distinctions

30. The law of the international democratic community, which has a long tradition in the field of labour relations, tends to distinguish between the ‘economic strike’, directed at the sovereign to achieve objectives in collective bargaining relating to work conditions, and the ‘purely political strike’, directed against the sovereign for the purpose of achieving political goals. This conceptual distinction is vague and rudimentary, for when considering questions relating to ‘political strikes’, the law in the aforesaid countries has generally shown that it is prepared occasionally to recognize a strike against the sovereign as an ‘economic strike’. Therefore, where employees have started a strike against the sovereign — whether government or legislator — and their goals are directed against the direct intervention of the sovereign in their employment conditions and immediate rights, such as: freezing their wages (in Holland — Re Keijzer v. Peters (1977) [24]) or reducing their salary (in Holland — N.V. Dutch Railways v. Transport Unions FNV, FSV and CNV (1986) [25], at p. 8), their strike was recognized as an economic strike, even though, as stated, it was directed at the sovereign. On the other hand, where the strike was directed against the sovereign and targeted a policy that sought to make a fundamental economic, structural change, such as tax reforms (Finland — Metal Industry Employers’ Federation v. Metal Workers Union (1988) [26]) or privatization processes (in England — Mercury Communication v. Scott-Garner (1984) [23]), the claim that the strike was economic and not political was rejected.

31. The implied conclusion, by way of analogy but in the proper context, is that a dichotomous distinction between a ‘pure political strike’, on the one hand, and an ‘economic strike’, on the other, is no longer applied in the law of the international community mentioned above, and it certainly cannot provide fitting solutions to the diverse labour disputes in a developing economy like that of the State of Israel. We can see how important is the purpose of the strike and how important are the objectives that the strike attempts to achieve. Therefore the interpreter must ascertain the purpose and objectives of the strike, and after he establishes its purpose, he will decide his position with regard to the legitimacy of that strike, even if it is aimed directly at the sovereign.

In this respect, the remarks of Justice Adler in the minority opinion of the judgment which is the subject of this petition are important. Judge Adler accepted the ruling in Mercury Communication v. Scott-Garner [23], supra, holding that:

‘… an additional tool for defining the scope of the strike within the framework of labour law is “the predominant purpose of the dispute”.’[§§]

            A strike and a quasi-political strike

32. It follows that, in the reality prevailing in Israel as established above, there are grounds to distinguish between three types of strikes, which differ in their substance, their significance and the binding legal outcome in each of them. The first is the one defined as an economic strike, which involves a strike usually directed at the employer who wants to harm the rights of the employees, or who refuses to improve their terms of employment. This strike may be directed also at the government, when it acts in its capacity as employer, or when it wishes to intervene, by using its executive power, in order to change existing arrangements in labour relations between employees and employers or to prevent such arrangements. Such a strike is accepted as a legitimate strike.

The second is a purely political strike that is directed at the government, not in its capacity as employer, but as the body responsible for determining general economic policy that is not acceptable to employees who think that such a policy will limit them and harm their ability to struggle to achieve their rights as employees. This is a strike that is considered illegitimate, in that it attempts to undermine the authority of the government to determine economic policy with a wide perspective of the general public interest, and to force it to accept the employees’ demands; this is a strike that tries to intervene in legitimate legislation proceedings within the authority of the legislature, not by methods of persuasion acceptable in our democratic system, but by forceful intervention which tries to impose on the legislator what is unacceptable to it. This strike is not legitimate, and there is a justification for preventing it.

The third is a quasi-political strike, which falls between the two extremes that have been mentioned. It is about this that I would like to make some remarks. In these cases, which fall within the range that I have described, the test of  ‘the predominant purpose’ becomes doubly important, since we are dealing with those cases where the employees are striking over an issue that is not directly related to their terms of employment in the narrow sense, but it affects them directly. Thus, when the proposed test shows and attests that there is indeed a direct effect on employees’ rights, even if they striking against the government, labour law will arise and give their strike the title of a ‘quasi-political strike’, which shall entitle the employees to the right to hold a short protest strike only, without such a case being classified as one of the two ends of the spectrum, since it is in a class of its own.

In this respect, it is appropriate to adopt the remarks of Prof. F. Raday, in her article, supra, at p. 163, that:

‘The right to strike over matters unrelated to terms of employment in the narrow sense, is completely different from the right to hold an economic strike. It is not possible to regard this as an instrument of economic pressure in conducting collective bargaining, for this would confer legitimacy on strikes against the employer or the government with regard to matters that are not subjects for collective bargaining. It should be regarded as a right of the citizen to freedom of speech and protest. Therefore it is limited to a protest strike only —to a brief action, which is not designed to put economic pressure on the employer. This right of a protest strike on broad socio-economic matters that directly affect workers may be regarded as the creation of a concept of a right to a quasi-political strike, which allows a protest act only.’

The same idea is expressed by Prof. Ben-Israel, in her article, supra, at p. 621:

‘… The proposed standard is, in one respect, that we are dealing with government policy that has an effect on the working sector, but in this context the effect must be direct, whereas an indirect effect is insufficient. An additional restriction arises from the case-law of the Committee of the International Labour Organization (ILO), which is that we are dealing with a strike that is designed to express a protest only, and is not designed to breach the peace.’

From the general to the particular

33. Should the strike before us be classified as an economic strike, entitled to the protection of labour law, as the National Labour Court ruled? In my opinion, this is not the case, and I do not accept the conclusions of the National Labour Court. I will explain my position.

34. With respect to the classification of the strike — if the General Federation wishes to rely upon the economic strike and to argue that the present strike is such, and to rely upon the protections conferred on such a strike, then it has the task, as the representative of the striking workers, of persuading the court that the policy of opening different fields of telecommunications services up to competition, as this is expressed in the Government’s draft legislation, will directly harm employees and their terms of employment, in the narrow sense. In my opinion, convincing and well-founded evidence that restricting Bezeq’s monopoly may cause direct and immediate harm to Bezeq’s employees has not been presented at all, either before the National Labour Court or even before us. Therefore, I am prepared to rely on the determination of Vice-President Adler, when he indicated that:

‘The facts submitted… have not shown a clear, certain or immediate effect that the new law will have on the terms of employment, the wages or the continued employment of Bezeq’s employees. It is possible that they will suffer, but it is also possible that they will benefit from the competition, if Bezeq competes successfully… The effect of the draft law on Bezeq’s employees is neither certain nor tangible, since there is no direct threat to the places of work of Bezeq’s employees, there is no direct intention to change their terms of employment, and there is no threat to reduce the corporation’s manpower. The opposite is true — Bezeq’s employees enjoy job security by virtue of statute and by virtue of collective agreements that apply to them.’

Therefore the inescapable conclusion is that the correct classification of this strike, according to its objectives and background, is, at most, a ‘quasi-political’ strike, which only justifies a protest demonstration that can be expressed, as stated, in a protest strike of short duration.

I emphasize the words ‘at most’, because were it not for the expectation that Bezeq’s employees have of exclusivity and an everlasting and unchangeable monopoly — expectations deriving from the provisions of sections 50, 51 and 60 of the Telecommunications Law, it is in my opinion highly questionable whether a change in the law could be regarded in any way, even prima facie, as having a direct and material influence on the employees’ terms of employment. From a review of the facts of the case and the provisions of the said law, I can determine that these feelings and expectations of the employees are unfounded. But I can understand that when the employees’ hope — albeit a mistaken one — was disappointed, a genuine fear took root in their minds that a change in the law would harm their terms of employment in some way. For this reason, I would tend to place this strike in the category of the quasi-political strike, with the consequences elucidated above.

35. It seems to me that even section 37A of the Resolution of Labour Disputes Law will lead us to the same conclusion with regard to the nature of the strike before us, and its proper classification. The term ‘strike or unprotected strike’ is defined in section 37A of the Resolution of Labour Disputes Law, in the following terms:

‘A “strike or work stoppage” — any one of the following:

(1) A strike or work stoppage of employees in public service, at a time when they are subject to a collective agreement, except for a strike that is unrelated to wages or social benefits, and the national centre of the competent trade union has declared or authorized it;

(2) …

(3) …’

In our case, where Bezeq is a  ‘public service’ within the meaning of this term in the Resolution of Labour Disputes Law, we must consider the meaning of the words ‘except for a strike that is unrelated to wages or social benefits’. With regard to the interpretation of this phrase, Prof. Ben-Israel expressed her opinion as follows:

‘Two types of strike may be justified by the exception [‘that is unrelated to wages or social benefits’]:

(a) Sympathy strikes…

(b) Strikes of a certain political character…’ (see Prof. R. Ben-Israel, The Strike, Sadan, 1987, 194) (square parentheses added).

Even if we adopt this interpretation, which I do not reject, we would still find ourselves bound by the spirit of section 37A, which seeks to ensure the uninterrupted supply of essential public services. For this reason, I believe that in providing an exception for ‘the unprotected strike’, the legislator is only prepared to recognize the quasi-political protest strike, and to protect it within its narrow limits. When the protest of Bezeq’s employees took on the form of a general and prolonged strike, it significantly exceeded the quasi-political strike in its scope and objectives, and it became a political strike in the full sense of the term. For this reason, it is illegitimate and unprotected, contrary to the approach of the National Labour Court.

When will this court intervene in a judgment of the National Labour Court?

36. The respondents argued several times that we should not intervene in the ruling of the National Labour Court, for this is not an appropriate case for intervention. Only recently we reemphasized that:

‘We do not sit as a court of appeals on the judgments of the Labour Court, and therefore this court will not consider petitions that are manifestly of an appellate nature, and it will usually consider intervening in the rulings of the National Labour Court when two conditions are fulfilled… i.e., the existence of a significant mistake of law and the existence of considerations of justice that require our intervention…’ (see, for fuller treatment, HCJ 3679/94 [1], at p. 584, where the ruling in Hativ v. National Labour Court [10] was upheld).

Counsel for the petitioners is aware that labour law is the expertise of, and within the exclusive jurisdiction of, the Labour Court, and the intervention of this court in their decisions is limited, exceptional and requires cautious treatment. Nonetheless, their opinion is that in the present case, if the innovative ruling in the judgment of the National Labour Court continues to exist, a material mistake of law with regard to norms that should be applied to the issue of the ‘political strike’ will become entrenched, and this is a very important issue that reaches the foundations of collective labour law and collective labour relations.

This position has merit. The question of the ‘political strike’ raises, as stated, questions that reach the foundations of collective labour law, and yet many aspects of it are vague and unclear. The rulings on this subject, both those given by the Labour Courts and those found in judgments issued by this court, are few, and they relate to the special circumstances of one case or another. Therefore there were reasons for the National Labour Court, but also for this court, to consider this question in depth, with all its fundamental aspects.

When there exists a real, substantial difference of opinion on this issue, which is innovative, multi-faceted and of general application, the binding law ought to be determined by us:

‘For we should remember this: the ultimate responsibility for the development of case-law within the framework of the law is entrusted to the highest and final instance in the court system, namely the Supreme Court’ (A. Barak, ‘The High Court of Justice and the Labour Court — An explanation from the viewpoint of Jurisprudence’, The Bar-Niv Book — Selected Articles in Labour Law, Ramot, A. Barak eds., 5747, 103, 116).

In the words of Justice Cheshin in HCJ 1520/91 Wilensky v. National Labour Court [11], at p. 519:

‘This court, in which we sit, is the one that bears the burden and the responsibility, and if we do not speak succinctly and clearly, we will not be able to absolve ourselves by passing the responsibility onto others by relying on the intention of the legislator. We are the guarantors — and we are expected to determine the law.’

See, for fuller treatment and comparable cases: HCJ 3679/94 [1], supra; HCJ 675/84 General Federation of Labour in Israel v. Tel-Aviv-Jaffa Regional Labour Court [12], at p. 19; HCJ 289/79 Israel Ports Authority v. National Labour Court [13], at p. 159, etc..

Conclusion

As stated above, I have determined that the essence of the strike at issue is mainly a protest by Bezeq employees against a general, socio-economic policy, which is directed at on opening up the Israeli economy to competition and privatization. This policy is legitimate and even desirable. It does not constitute direct intervention in the freedom of negotiations or the employment conditions of the employees and it is truly concerned with the general public interest.

Where the sovereign decides that social and economic conditions justify changes in economic policy, whether by means of privatization of public services or by divesting certain bodies of their monopoly, we must recognize its right and authority to implement such a policy. The strike of the employees who dispute this policy because of an unfounded fear that their rights as employees will be affected may, at most, be classified as a short-term, quasi-political protest strike, but nothing more.

37. For these reasons, the petition has merit and we grant it. We are making the show cause order absolute, in the sense that we are reinstating the outcome which the Regional Labour Court reached in its judgment, but for the above reasons.

In the circumstances of the case, there will be no order for costs.

 

 

Justice M. Cheshin

1.    I agree, but I thought I should raise two points.

First point: classification

2.    The needs of society and the methods of governing the modern State — whether in relations between the State and the individual, or between individuals inter se — present us with social and economic conditions that refuse to fit into the legal models of the past. Models used in the past to decide legal disputes can no longer be applied in their old form, and legal classifications that were once all-embracing are collapsing and falling. This is not unprecedented. This phenomenon is encountered in every branch of law.

Only recently we were required to deal with the institution of the cooperative house, and we said that it was difficult to fit it into the traditional classifications of property law (see ALCA 7112/93 Tzudler v. Yosef [14], at p. 562):

‘The cooperative house (which is called “condominium” in some jurisdictions) is an invention of modern law, and it originates in the physical and social conditions of modern society. From the viewpoint of traditional property law, the cooperative house is a kind of hybrid: the “apartments” in the cooperative house are owned separately… and alongside these the “common property” is jointly owned by all the owners. The provisions of joint ownership of the general law do not apply to the common property in the cooperative house… and the provisions of the chapter in the law on cooperative houses are unique to cooperative houses. The arrangement provided by law for the cooperative house restricts the right of the apartment owners to act both with regard to the common property and with regard to the apartments that they own, and in this we can see the normative uniqueness of the cooperative house and the arrangements that apply to it… Indeed, the cooperative house is an institution that is sui generis, which is in some ways like one thing and in other ways like another, and it adamantly refuses to fit into any of the traditional models of property law. Moreover, the cooperative house refuses to be classified only in property law, and it has elements that go beyond property law. These creative elements in the cooperative house — elements that go beyond property law — include, inter alia…’

An example which is closer to the matter at hand may be found in the traditional distinction between private law and public law. This distinction has, to a large degree, been blurred recently. With respect to certain legal issues, its value has greatly diminished, and its strength has almost been depleted. In the words of Justice H. Cohn in HCJ 262/62 Peretz v. Kfar Shmaryahu Local Council [15], at p. 2109:

‘… in the national and public economy of today, there is no longer any practical benefit in the accepted distinction between the commercial or civilian acts of any authority of the State or a local authority, and their executive or public acts.’

See also HCJ 840/79 Israel Contractors and Builders Centre v. Government of Israel [16].

3.    This is also the case in the matter before us, namely, with regard to the traditional dichotomous classification of the strike as either an  ‘economic strike’, within the narrow field of employee-employer relations, or a  ‘political strike’ (if this is indeed a ‘strike’). For reasons that we shall not consider at length (which include the ever-increasing intervention of the State in the conditions of economic life, and the greater awareness of civil rights, and these are perhaps the main reasons), the courts, academics and practitioners in the field of social sciences have found that the traditional classification can no longer provide proper solutions for social and economic conditions, which life and the development of law in a modern State have shown us. This unsatisfactory nature of the traditional models naturally led to a need to try and find new models, whether by improving the existing models or by designing new models that fit the needs of our times. Apparently we are currently in a period of transition, from the model of the past to the model of the present. This leads to the various proposals for new (or reconstituted) models, and this leads to different opinions among academics and lawmakers. As long as we have the comforting protection of a universally accepted classification, the resolution of issues may appear simple and clear, and resolving disputes may appear to be routine (even if it is not so). But during a transition stage from one period to another, nerve-endings are exposed, the search for creative elements that transcend the law becomes urgent and vexing, and disagreements between opposing outlooks are revealed with increasing intensity.

4.    My colleague suggests that we adopt the remarks written by Professor Raday with regard to the issue of ‘quasi-political’ strikes, and he goes on to mention in the same context the remarks of Professor Ben-Israel. The comments of these two authorities — each in her own way — appear beneficial and useful as models for examination and determination, but I believe that we should take care not to adopt one model only, a model that may provide us with a fitting solution for one set of facts, but may be ineffective with respect to another set of facts (we note that a  ‘quasi-political’ strike is, by definition, supposed to give expression not (only) to the right to work and earn a livelihood, but (mainly) to civil rights). In our case, I have not the slightest doubt that the strike of the employees has gone beyond the framework of a strike that should be recognized as legitimate. A strike of the kind that we have seen in this case is capable of dealing a mortal blow to the infrastructure of a democratic society, obliterating fundamental values of social morality and destroying the norms of coexistence. We know where it begins, but who knows where it may end? In this respect, I can only refer to the remarks of President Shamgar in Hativ v. National Labour Court [10], at pp. 703-704, cited by my colleague in paragraph 28 of his judgment.

Second point: the right (or freedom) to strike and human dignity

5.    My colleague states (in paragraph 24 of his judgment) that since the advent of the Basic Law: Human Dignity and Liberty, the right (or freedom) to strike ‘will in the future find refuge in the value of “human dignity” that is enshrined in this Basic Law’. My colleague goes on to say that ‘the focus of our consideration is a liberty that has the status of a constitutional right and is well-established in the different branches of Israeli law — a status that grows stronger all the time’. No one would dispute that the freedom to strike is one of the inalienable assets of the Israeli legal system. I would also agree that the freedom to strike and its status are on an elevated level, equal to that of statute. Notwithstanding, since we do not need to decide this now, I would not say that it is self-evident that the freedom to strike springs naturally from ‘human dignity’ in the Basic Law: Human Dignity and Liberty, and that its status today is that of a constitutional right. In HCJ 453/94 Israel Women’s Network v. Government of Israel [17], our colleague, Justice Zamir, says the following at p. 536 {468}:

‘In case-law since the enactment of the Basic Law: Human Dignity and Liberty, various obiter dicta can be found that recognize many aspects of the Basic Law. This is particularly true with regard to the right to dignity. The same is true of law books. Some see in human dignity the principle of equality, some see in it the freedom of speech, and some see in it other basic rights that are not mentioned in the Basic Law. Someone compiling these statements could receive the impression that human dignity is, supposedly, the whole law in a nutshell, and that it is possible to apply to it the saying of the rabbis: “Study it from every aspect, for everything is in it”.

I would like to restrain myself, in this context, from obiter dicta that find their way between the lines of judgments, on such a fundamental and basic matter, without thorough discussion of the matter itself as a binding part of the judgment. I believe that if it is not necessary, it is better not to commit oneself until the need arises. Let us cross that bridge when we come to it, in the sense of “do not raise or disturb it until it is required”.’

In that case, the court considered the principle of equality, and Justice Zamir thought that it was possible to decide the dispute that arose between the litigants without also deciding that ‘the principle of equality is a basic right enshrined in the Basic Law: Human Dignity and Liberty as part of the value of human dignity, and it has, therefore, a super-legislative status’ (ibid.). This was true with respect to the principle of equality, and it is also true, in my opinion, with respect to the freedom to strike in our case. Let the remarks of Justice Zamir be heard as if they sprung forth from my lips.

 

 

Justice Ts. E. Tal:

I agree with the judgment of the honourable Justice D. Levin. Like my colleague, Justice Cheshin, I too wish to emphasize the harm to the foundations of democracy that results from a strike that is not an economic strike against an employer, whereby a group of workers tries to bring the legislature to its knees by force. I would leave undecided the question whether the right to strike is currently enshrined in a basic law.

 

 

Petition granted.

10 Nissan 5755.

10 April 1995.

 

 

[*]   General Federation v. Bezeq, the Israel Telecommuncation Corporation Ltd IsrLC 25 367.

[†]           Ibid., at p. 377.

[‡]           Ibid., at pp. 378-379.

[§]           Ibid., at p. 386.

[**]         IsrLC 25 367.

[††]         Ibid., at p. 376.

[‡‡]         IsrLC 25 367.

[§§]         Ibid., at p. 390.

 

 

 

 

 

"[n]o person can deny, first that we are talking about an orderly decision-making process and second, that prioritization is necessary in the circumstances of the health services basket."

HCJ 7721/96 Union of Insurance Assessors v. the Inspector of Insurance 55(3) PD 625, 650 (2001).

            H.C.J. 221/64

 

           

THE LOCAL COUNCIL OF PARDESS HANNA AND OTHERS

v.

THE MINISTER OF AGRICULTURE AND OTHERS

 

           

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

[December 8, 1964]

Before Agranat D.P., Silberg J., Berinson J., Witkon J. and Manny J.

 

 

           

Administrative law-Exercise of discretionary powers-Generality of subordinate legislation-Discriminatory use of powers.

 

 

                The petitioners (two of them suppliers of water and two consumers) complained that a scheme to mix the "sweet" water they were receiving at present with water from the National Water Carrier would increase the chlorine content, with deleterious effects on the plantations supplied with such water. More particularly they claimed inter alia that the demarcation by the Minister of water rationing areas was a distortion of his discretionary powers in that behalf, unnaturally combining regions wholly distinct hydrologically, and that the regulations made under the Law were too general and imprecise and left the final decision in important aspects to the arbitrary discretion of the Water Commissioner, an administrative official.

               

Held

1. The exercise of discretion within and for the overall purposes of a Law is valid even if individuals may suffer thereby;

 

2. A Minister charged with the implementation of a Law may, after laying down general policy with reasonable precision, leave the details of implementing that policy to the discretion of an administrative official. It is not to be assumed that the latter will proceed to act arbitrarily, and if he does so, the Minister can review and control his action.

 

3. Discrimination is not arbitrary when it is the inevitable consequence of natural differences or of justifiable and pertinent technical and budgetary factors.

 

Israel cases referred to:

(1)        Cr.A. 74/58 - Attorney-General v Naftali Horenstein (1960) 10 P. D. 365.

(2)        H.C. 69/62 - David Mazoz v Minister of Agriculture and others (1962) 16 P.D. 1408.

(3)        Cr.A. 40/49 - Shaul Nahmias v Attorney-General (1950) 3 P.D. 127.

 (4)  H.C. 176/58 - "Parcel II Block 6605" Co. Ltd. v Minister of Development and another (1959) 13 P.D. 1099.

(5)   F.H. 22/58 - Shalom Cohen v Local Council of Givat Shmuel and others (1959) 13 p.D. 244.

 

Y. Yechiel and Y. Harari for the petitioners

Z. Terlo, Deputy State Attorney, for the first and second respondents

S. Gir for the third respondent

 

BERINSON J. The petitioners, two of whom are suppliers of water and the other two consumers of water in the area of Pardess Hanna and Kfar Saba, complain of the plan for mixing the water resources from which they obtain water with the National Carrier of Water. "Their" water resources have a low chlorine content of 50-80mg a litre, but after mixing the chlorine content of the water they receive will go up to 170mg. a litre.

 

            Upon the publication of the Water (Use of Water in Rationed Areas) Regulations, 1957 (hereinafter referred to as "the Regulations") and the operation of the National Water Carrier, the first respondent instructed the Water Commissioner to connect the water supply systems of five areas - amongst them those of Pardess Hanna and Kfar Saba - to the National Carrier, operated by the third respondent (hereinafter referred to as "Mekorot"). By so doing, the water of these five areas will be diverted to assembly points for mixing with water brought by the National Carrier from the Kinneret which has a high chlorine content of 350mg. a litre. After mixing, the quantity of water required will be returned to the said areas (from which "sweet" water has been taken) but with a chlorine content of 170mg. a litre, whereas the mixed water will flow to the south and the Negev with a chlorine content of 250mg. a litre.

           

On behalf of the respondents it was declared that "the operation of mixing the water of the National undertaking is essential for exploitation of the water thereof, in the establishment of which (Stage 1) the State invested about 300 million lira. To stop the mixing operations as requested in this petition would prejudice the scheme for supplying water to the south of the country and prevent utilization of the water of the Kinneret by the National Carrier, the central and largest undertaking in the State for the development of settlements in the south and the Negev. To stop drawing upon the Kinneret would result in a loss of water most vital to the State since such water would flow unused into the Dead Sea."

 

As against this, the petitioners contend that the mixed water, which the respondents intend to supply to them and other orange groves in the Central Region, are not suitable for irrigating orange groves and avocado plantations and this great asset - worth some 300 million lira - would be seriously affected and cease to be profitable. Sufficient tests and experiments have not been made for ensuring against excess salination of the soil. The effect of water salination on growth and yield has not been investigated at all.

 

            Hence the petitioners complain of the respondents water scheme and raise a series of legal arguments against it and against regulations 6 & 7 of the Regulations on which it is based. They also plead that both according to sections 5 and 26 of the Water Law, 1959, and by virtue of the first petitioners commitment with Mekorot, the present supply of water is not to be adversely affected and that they are entitled to continue for the future to receive water from those resources from which they have received it up to the present. They are prepared to and do make available the surplus water from these resources to the respondents for mixing with the National Carrier water.

           

            I shall first consider seriatum the last two arguments and then turn to the others relating to the lawfulness of the respondents' activities, including the legality of regulations 6 & 7.

           

Sec. 5 of the Law provides as follows: "a person's right to receive water from a water resource is valid as long as the receipt of water from that water resource does not lead to the salination or depletion thereof."

 

I am afraid that as a source for the right the petitioners assert this section is disappointing. It does not create any right but only protects an existing right, and even then makes it conditional upon its continued exercise not resulting in the salination or depletion of the water resource. Where therefore does the petitioners' right arise to continue receiving water from the present water resources?

 

            In this regard secs. 1 and 3 are the principal sections. Sec. 1 states that

           

            "The water resources of the State are public property; they are subject to the control of the State and are destined for the requirements of its inhabitants and for the development of the country."

 

Nevertheless, sec. 3 declares that

 

"Every person is entitled to receive and use water, subject to the provisions of this Law."

 

Nothing is said about the quantity or source of the water and to remove all doubt in the matter sec. 4. immediately adds that sec. 3 is not to be understood as if a person's right in any land confers upon him a right in a water resource situated in or crossing or abutting on such land.

 

            The foundations of this arrangement were laid under the Mandate when article 16E was added to the Palestine Order in Council, 1922. This article vested in the High Commissioner the waters of all rivers, streams and springs and of all lakes and other natural collection of still water in the country. The scope was more limited than that in the Water Law but existing rights to use water were preserved, and these were not to be derogated from except by Ordinance enacted for the purpose. This provision, however, remained suspended in the air, it was not in practice implemented and no Ordinance was introduced regarding use of the natural waters of the country. The Law of 1959 gave body to the State's ownership of the chief water resources within its borders. First, it maintained and extended public ownership of the country's water resources - rising, flowing and standing, above ground or underground, whether natural, regulated or made, including drainage and sewage water. Secondly, it explicitely provided that all such water was subject to the full control of the State and destined for the requirements of the inhabitants of the country and its development. In brief, the Law nationalised water resources and made them State property, although it did not provide for payment of compensation to existing owners. There are no longer any private owners of the said water resources in the entire country.

           

            Although declaratory in form, sec. 1 of the Law is in fact constitutive in making all the country's water resources public property, by transferring privately owned water resources to public ownership. The Law did not expropriate the water supply systems themselves - the machinery installations, the conduits and all the other equipment involved in the extraction and supply of water. But with its enactment all extraction, supply, receipt and use of water - from private systems as well - became conditional on the existence of a right in that behalf derived from the Law. Hence, to be able to enjoy the right of receiving water from their systems the petitioners must found it on the Law.

 

            We have already seen that sec. 5 does not confer any rights nor, I think, does sec. 26(a) assist. That subsection requires the Water Commissioner to grant a production licence to any person who produced or supplied water at the date when the Law came into force, or within the previous year, for the same quantity of water he previously produced or supplied and for the same customers who received water from him. This section therefore deals with the quantity and not the quality of water, and in this respect the petitioners do not plead deprivation.

           

            With regard to a contractual right to receive water, the petitioners argue that, under its contract with the Pardess Hanna Water Association, Mekorot was obliged to supply Pardess Hanna water from the same resources as before. This argument must be examined in the light of the Law. Under sec. 3 every right to receive and use water - if and to the extent it exists - is subject to the provisions of the Law and the Law does not recognise a right to water from a particular resource or of a particular quality and certainly does not perpetuate such a right. As the respondents showed, no obligation on the part of Mekorot exists at all in this regard. The first agreement stipulated that the chlorine in water supplied by Mekorot to Pardess Hanna should not exceed 300mg. a litre - a concentration which is much higher than that of the mixed water supplied by the National Carrier. In the last agreement which revoked all previous agreements, there is no obligation to supply water from any particular resource or of any particular quality. This argument therefore falls away both in point of law and in point of fact.

 

We now come to the question of the Regulations and the directions given by the Water Commissioner. Regulations 6 and 7 against which the darts of the petitioners were aimed provide the following:

           

"6         (a) A supplier who has received a direction thereon from the Water Commissioner shall supply consumers with water of which the chlorine content shall, notwithstanding any agreement between them, be as follows:

(1)         in the centre of the country - up to 170mg. a litre of water:

(2)         in the south of the country - up to 250mg. a litre of water.

(b) Notwithstanding the provisions of sub-regulation (a), asupplier who immediately before the commencement of these Regulations supplied a consumer with water having a chlorine content higher than that provided in sub-regulation (a) shall continue to supply to such consumer water having a chlorine content similar to that of the water he supplied to the consumer in the past.

 

7. The Water Commissioner may direct a supplier to supply to avocado plantations water having a chlorine content lower than that ordered in regulation 6(a) at the times and upon the terms he may prescribe therefor, if satisfied that economically and technically such water can be supplied."

 

            The Regulations were made by the Minister of Agriculture under sec. 37 of the Law, which empowered him to regulate the use of water in a rationing area. The determination of rationing areas is also in the Minister's power under sec. 36, after consultation with the Water bodies mentioned therein. The Minister may declare an area to be a rationing area when satisfied that the area's water resources are insufficient for maintaining existing water requirements. Once having done so, he may under sec. 37(a), after consulation as aforesaid, regulate the supply and  consumption of water in the rationing area by regulations prescribing inter alia

           

"maximum consumption quantities, standards for the quality of the water and conditions for the supply thereof, and he may grade the allotted quantities, the standards of quality and the conditions of supply according to the use of the water within the scope of a particular water purpose, to the seasons of the year, to the hours of the day, to the quality and category of the land and to geographical, health or other data."

 

            The first contention of the petitioners was that regulations 6 and 7 are based on an illegal order which prescribed the boundaries of the rationing area with which we are concerned. Originally the Minister of Agriculture divided the largest part of the centre of the country and the south into seven rationing areas. Then he added a rationing area in the Negev, and finally made all these eight areas into one rationing area stretching over most of the country. Only certain areas on the Haifa region and in the north are excluded, embracing two other rationing areas and a further area free from rationing. The petitioners plead that by converting almost the whole country into a single rationing area the Minister distorted his powers in the matter. An artificial unit was created, unnaturally combining the areas of the centre of the country, abundant in choice water, with the hot arid expanses of the south and the Negev.

 

            This plea is unacceptable. The Minister of Agriculture may possibly have acted excessively in declaring most of the central areas a single rationing area but the determination of the boundaries of any rationing area lies within his unrestricted discretion after consulting with the Water Board and the supply committees, on the one condition only that he is satisfied that because of a lack of water in the area water consumption rationing should be introduced there. No rhyme or reason exists for distinguishing between areas with abundant water and areas with scarcity of water and for perpetuating the existing situation in these areas. The Water Law is aimed at putting an end as far as possible to the severity of the country's deficiency of water and arrive at a more even balance in the allocation of water among different areas, those that possess and those that do not possess water. It is natural therefore that the Minister should choose to combine different hydrological zones into one rationing area, for only in this way can the major purpose of the Water Law be achieved, that water resources serve the needs of the whole population and the development of the entire country.

           

            The next submission is that regulations 6 and 7 are too general, do not lay down clear standards as to the quality of the water to be supplied to different consumers and leaves the question of its acquisition to the whim and fancy of the Water Commissioner. The latter has been given an excessively arbitrary power to decide on who is to continue enjoying the water he previously obtained, who should receive good water and who poor water, which plantation is to flourish and thrive and which to decay and die off - a power even beyond that of the Minister of Agriculture himself, which should all the more so not be confided into the hands of an administrative official. In the petitioner's view, the Minister should have  prescribed in the body of the Regulations different standards for the quality of the water to be supplied to different consumers and not to empower the Water Commissioner to discriminate as he felt between the different suppliers and consumers. This submission is actually part of a much broader submission, that the Regulations create or facilitate a threefold discrimination: between suppliers and between consumers: between areas and between undertakings: between the centre of the country and the south. Let me deal with these submissions seriatim.

 

1. Mr. Terlo's reply to the first submission was twofold. First, he said, the Water Commissioner is not an ordinary administrative official having limited powers like other government officials and competent authorities. Under sec. 138 of the Law, he manages water affairs in the State. That is, he is a State agency. As Mr. Terlo put it, he is "an organ of the State" and as such not confined to the specific powers conferred on him by the Law itself but entitled to exercise any power he requires to carry out his function. The Water Commissioner may, in other words, do everything he is not prohibited from doing, and in the present matter he does not act as "an agent" under the Regulations but as an independent person. Secondly, Mr. Terlo says, if he acts as "an agent", his agency was imposed by the Law.

 

            I must confess that I have not quite understood what Mr. Terlo has in mind, and if I understand him correctly, I am not prepared to agree. In my judgment, the provision in sec. 138 that "the Government shall appoint a Water Commissioner to manage water affairs in the State" is not to be understood other than that he is to manage such affairs in accordance with the Law and within the bounds of the authority and powers given or to be given to him for this purpose by or in pursuance of the Law. Like every other authority in the State performing a function under law, he cannot assume additional authority beyond that which the law gives him, apart as provided in sec. 26 of the Interpretation Ordinance.

           

            At all events, it is clear that in the present matter the Water Commissioner did not purport at all to act other than in accordance with the Regulations. For the purpose of the latter he is "an agent" carrying out functions and performing tasks placed upon him by the Minister of Agriculture, the secondary legislator under sec. 37(a) of the Law.

           

            One of the tests which the Regulations must abide by is that "standards of the quality of the water and conditions for the supply thereof" are to be prescribed. The standards and conditions need not be uniform in all cases but may be graded according to different criteria, including geographical, health and other data.

 

            Regulation 6 undoubtedly meets this test. It prescribes different maximum standards of the chlorine content of water to be supplied to the centre of the country and the south, so that we have both water quality standards and grading according to geographical data. The further power given to the Minister to prescribe the conditions for supplying water is enough to enable him to appoint an administrative authority and put upon it the detailed work of implementation. The Minister does not have to go into the details. After having laid down policy, he may leave to an administrative official the elaboration of the details and the decision when and how to put it into operation: Attorney-General v Horenstein (1); Maoz v Minister of Agriculture (2). In the words of Agranat J. in the former case (at 384), "the committing to others of the task to decide the limited question when and how a regulation should come into operation is permitted."

           

            Were the secondary legislation required to prescribe with precision the provisions of every detail requiring regulation in a matter, it would in most cases be impossible for him to act effectively. The implementation of policy laid down by a secondary legislator must necessarily be left to the reasonable discretion of administrative officials or bodies. "It is not to be assumed that an official will act arbitrarily and gratuitously create difficulties. If he does so, his superiors can review and control his actions" (per Smoira P. in Nahmias v Attorney-General (3) at 139).

           

            Accordingly, in so far as the Water Commissioner has been delegated to determine how, when and in respect of whom the arrangements under regulation 6 should come into force, it is valid and no reason exists to set it aside.

           

            As against this, it seems to me that regulation 7 is too general and vague and may not pass the test of resonableness. Not only does it leave to the Water Commissioner to decide the times and the conditions at and under which water is to be supplied to avocado plantations but it also leaves to his unlimited discretion to determine the chlorine content of the water to be supplied (provided it is below 170mg. a litre) and that also only when satisfied that economically and technically it is possible to effectuate. The owners of avocado plantations are therefore entirely at the mercy of the Water Commissioner and dependent on the economic and technical conditions with which implementation is bound up. Although it is not to be assumed that the Water Commissioner will act arbitrarily in order to spite or injure them, I am doubtful whether the grant of such unlimited and far-reaching power can be justified, particularly if we have regard to the fact that there is no provision for payment of compensation for any loss that may be sustained as a result of its exercise or non-exercise. Nevertheless, I have no intention to express any final view on this question. In fact, the Water Commissioner directed that the owners of avocado plantations in the areas concerned be supplied with water in the quantities they require with a chlorine content of 120mg. a litre, which apparently is unlikely to cause injury to the plantations. In view of the conclusion to which we have finally arrived, that the question of the quality of the mixed water and its fitness for the intended use requires no be examined by the Tribunal for Water Affairs, there is no need for us to decide upon the reasonableness of regulation 7.

 

2. Regarding the discrimination among the different areas and supply systems, the petitioners complain that the Water Commissioner ordered the National Water Carrier to be connected to some only of the water supply systems in the centre of the country, including their own, and not to all in this region. This partial connection, so the petitioners argue, was made for extraneous reasons, that is, in order to save the high cost involved in connecting the other systems, relatively to the cost of connecting to their own. Thus, they contend, they have been discriminated against.

 

            Discrimination has indeed occurred here, at least temporarily until the means are acquired to connect the other water supply systems as well to the Nation Water System. But the discrimination is the inevitable consequence of objective technical and budgetary factors that justify it. As explained in the affidavit in reply by Mekorot, the Knesset has not allocated sufficient funds for connecting the whole of the central region to the National Water Carrier in the current financial year. For this reason, and for technical reasons which cannot be overcome in one move, it was necessary to carry out the connecting work by stages. The respondents, faced with the problem of choosing between the water systems to be connected with limited means at their disposal, picked upon those systems yielding much water of high quality and nearest to the National Carrier so as to derive the greatest benefit from the smallest means. These considerations, it seems to me, no one can deny are reasonably pertinent and justify what the respondents did: "Parcel II Block 6605 Co. Ltd. v Minister of Development (4). Furthermore, the allocation of limited funds and their use for a preferred purpose are not matters in which this Court can intervene effectively and are matters more for public opinion and the Knesset: Cohen v Gvat Shaul (5).

 

3. The relative discrimination as between the centre of the country and the south allegedly arises from the fact that whilst the former is to be supplied with much poorer water than it enjoys today, the situation in the south will not grow worse but rather improve because it will obtain from the Carrier water with a chlorine content after mixture not exceeding 250mc. a litre. The respondents deny that and urge that as for water quality, the mixing scheme will at the first stage not only not improve the situation in the south and the Negev vis-a-vis the centre of the country but worsen it. These areas will obtain water of a chlorine content of 250mg. a litre as against the present 200-230mg. The water resources from which water is supplied to the south and the Negev are increasingly being depleted and existing demand can no longer be met without exhausting them. The central area, rich in water resources of low chlorine content, is today the only area from which it is possible technically and economically to take water for mixing with National Carrier water, and all the first stage of the mixing plan will make possible is to maintain the supply of water to the south and the Negev in present quantities. That concerns the factual aspect. From the legal aspect, I think that the discrimination which the petitioners plead is not of the kind which the law recognises as unjustified. It is nature that has discriminated between the centre and the south, that has blessed the central area with a lot of good water and has left the south and the Negev with relatively small and bad water resources. Even after the mixing scheme is carried out, the centre will in all respects be in a much better position than the south. Because of the difference between the two regions, the advantage will remain with the centre of the country. That is not discrimination of which people in the centre can complain.

 

            There remains the main submission of the petitioners, that the mixed water to be supplied to them from the Carrier in place of what they now receive will not further the purposes for which it is intended but will cause inestimable damage to the citrus and avocado plantations. In as far as this submission relates to the Regulations such as they are, it has already been dealt with and there is nothing further to add. But the rule is that regulations may not be inconsistent with the Law from which they derive force and that to the extent that they are inconsistent and irreconcilable they must yield.

 

            Sec. 42 (2) of the Law empowers the Water Commissioner, if he deems it necessary so to do for the purpose of implementing directions under Article Four dealing with rationing areas, to

           

"direct that a particular consumer shall not receive water from the resource from which he was accustomed to receive it, but from another water resource; provided that the quality of the water shall be adequate to the purpose for which the water is intended."

 

            Directions under Article Four obviously include those in the Regulations made under sec. 37. That means that if the Water Commissioner finds it proper to change the water resource from which a consumer is to receive water, he must ensure that the new water is of a quality adequate to the purpose for which it is intended. This is a condition which the Law itself found fit to impose when water is changed and so the provisions of the Regulations in the same matter are subject thereto.

           

            Whether the mixed water is suitable for its purpose or is likely to cause damage to the plantations is in sharp dispute by the parties.

           

            The petitioners contend, on the basis of the opinion of their expert, that the water is unsuitable, that the yield from the plantations will fall and the quality of the fruit be lowered; the plantations will also suffer unforseeable damage, the extent of which only the future will reveal; in particular their soil will become non-porous, or acquire a non-porous substratum, which will prevent water from percolating and lead to accumulation of salts in the soil surrounding the roots of the trees.

           

            On the other hand, the respondents argue that the mixing scheme, that finds expression in regulations 6 and 7 and the directions of the Water Commissioner is the outcome of prolonged discussion and basic clarification with interested parties in the light of the material on the subject, collected by experts in this country and abroad. The scheme was considered by the Water Council, the majority of whose members represent the public, and by the Agriculture Water Supply Committee, a subcommittee of the Water Council which is composed of agriculturalists and professionals in agriculture and also has a majority of public representatives. These bodies heard the arguments for and against the scheme and finally found it right to approve it. The respondents also submitted the opinion of an expert in problems of irrigation and salination, who leads the team of experts who were given the task of preparing a national salination survey, the purpose of which was to determine the effect of irrigation with water containing different salt concentrations upon agricultural soil and plantation in different areas of this country. This expert attached to his opinion the team's first salination survey of 1963, a report which is very cautious and restrained. The respondents urge on the basis of this material that everything will be done with excessive care not to injure plantations; in fact no such danger is contemplated by them. The Regulations as well provide for the daily inspection of the chlorine content of the water to be supplied under regulation 6, for the degree of accumulation of salts in the soil at root depth and in the growth tissues in plantations which receive such water, and they require the Water Commissioner to order a reduction in chlorine content, a change in the water supply system and the provision of additional water for washing out salts in plantations, if that is found necessary in opinion of the committee of experts and the Agricultural Water Supply Committee (regulations 8 to 12). The scheme is intended for an experimental period of one year ending 31 March 1965.

 

            The respondents are therefore satisfied that there is no danger of affecting the plantations. If such danger presents itself, they can contain it in good time. Yet, because of the great importance which the Government attaches to the ordered and speedy operation of the National Water Carrier, and in order to dispel the fears of the petitioners and others like them, Mr. Terlo announced in court on behalf of the Minister of Agriculture that whatever the position under the Law regarding payment of compensation the Government will bear the burden of any damage caused to plantations in the centre of the country as a result of the salination and chlorine content of water supplied from the mixed Water Carrier.

 

            We have noted this announcement in favour of the petitioners, but in our opinion it is not enough. The petitioners' legal right under sec. 42 (2) when a change of water resource occurs is that the quality of the new water should be adequate for the purpose for which it is intended and in the event of differences of opinion the question should be gone into on its merits before any feared damage is sustained.

 

            It is surprising that the Law does not regulate or in fact give expression to so basically important a matter affecting the success of the State's water scheme as the mixing of Carrier water. It is also not easy to reconcile logically the broad power given to the Minister of Agriculture by sec. 37 (a) with the proviso as to the exercise of the Water Commissioner's powers in sec. 42 (2). That proviso exists and the question remains whether the right assured to the owner of the changed water may be derogated from by the respondents' activities.

           

            Under sec. 35 of the Courts Law, 1957, we may decide this question incidentally to hearing the petition, even if it lies within the exclusive jurisdiction of another tribunal. But the question is of a highly technical and professional nature and it would be very difficult for this Court to go into it exhaustively and arrive at a decision. Questions of this kind are better dealt with, clarified and adjudged by a tribunal expert in the matter, if such there is. There is indeed such a tribunal in the Water Affairs Tribunal, composed of a judge and two representatives of the public competent in these matters (secs. 140 & 141 of the Law). According to sec. 43, "a person who considers himself aggrieved by an act of the Water Commissioner or by his directions under section 42 may lodge objection before the Tribunal." There being another competent tribunal which by its composition and procedure is more appropriate to hear the matter, there it no reason for us to take upon ourselves the task of decision in its place and that incidentally.

           

            The petitioners indeed in anticipation addressed themselves to the Water Affairs Tribunal before coming here but because of the opposition of the respondents to its jurisdiction, the Tribunal did not answer the petitioner and decided by a majority that the matter was not within its jurisdiction. Since we think otherwise, we may under sec. 37 (a) of the Courts Law transfer the matter to a competent tribunal, the Water Affairs Tribunal, which by virtue of subsec. (b) can no longer not deal with it. That is in our judgment to be decided.

           

            The petition is dismissed and the order nisi set outside. But we decide to transfer the matter to the Water Affairs Tribunal for it to hear and decide the question of the mixed water to be supplied to the petitioners in accordance with the Regulations in place of the water they receive at present of a quality adequate for the use for which it is intended, the irrigation of citrus and avocado plantations.

           

            No order shall issue.

           

            Petition dismissed and matter transferred to the Water Affairs Tribunal.

            Judgment given on December 8, 1964.

 

 

 

 

 

 

 

Vice President S. Levin

I agree with the decision of my colleague Justice Dorner and wish to join with the reasoning of my colleague the President and in particular the reasoning that relates to the legislation of section 3 of the Basic Law: Human Dignity and Liberty.  However, I wish to add the following:

The application of the consideration of appreciation in the totality of considerations which justify reduction of the compensation due to expropriation of land raises the question of the compatibility between the obligation imposed on owners of land assets to pay an appreciation duty for the increase in value of the assets and the right of asset owners to compensation for expropriation of their lands.  This matter has been discussed in this Court from the point of view of the arrangements which apply in relation to an appreciation duty against the background of the question of the appropriate construction of the provision of section 4(5) of the third supplement in the Planning and Construction Law in LCA 7172/96 Kiryat Beit Hakerem Ltd. v. Local Construction and Planning Committee [19].  This matter is pending in further hearing in this Court, and the parties have not related to it.  Therefore, there is no place to discuss it in the framework of the appeals before us.

 

Justice I. Englard

I agree with the opinion of my colleague Justice Dorner and the comments of my colleague President Barak.

 

It was decided as per the decision of Justice Dorner.

   

21 Sivan 5761

12 June 2001

 

 

 

 

 

Petition denied.

30 Av 5764.

17 August 2004.

H.C.J  153/83

 

 

ALAN LEVI AND YAHELI AMIT

v.

SOUTHERN DISTRICT POLICE COMMANDER

 

 

In the Supreme Court sitting as the High Court of Justice

[May 13, 1984]

Before: Barak J., D. Levin J. and Netanyahu J.

 

 

Police Ordinance (New Version), 1971, sections 83, 84

Press Ordinance, Laws of Palestine (Drayton), vol. II, p. 1214

 

 

            The Petition centred on the Respondent's refusal to permit the Petitioners - who petitioned the Court on behalf of the "Committee Against the War in Lebanon" - to hold a demonstration and procession to mark the thirtieth day of the death of the late Emil Greenzweig, who had been killed in the course of a demonstration held by the "Peace Now" movement. The Police Commissioner's reasons for his refusal were his apprehension, that what had happened before in the demonstration held by "Peace Now" was likely to happen again, and that if it did, the police would be unable to provide the demonstrators with absolute protection against a hostile crowd.

           

Held by the court:

A (1) The right of demonstration and procession is a fundamental human right in Israel. It is recognized along with free speech, or emanating therefrom - as belonging to the freedoms that characterize Israel as a democratic state.

(2) The basic freedoms - among them assembly and procession - constitute rules of law which, on the one hand, serve to guide us in the absence of statutory law, and, on the other hand, rules of interpretation according to which every statutory provision is to be construed. The court acts on the premise that the legislator desired neither to abrogate nor to restrict these basic freedoms.

 

B (1) The right of demonstration and procession, although a basic right, is not an absolute one. It is relative, being limited by other basic human rights, such as the right of private ownership of property and freedom of movement. It is also limited by the need to preserve public order and security, as well as to protect the fabric of democratic life. The relative nature of this right obligates us to strike a balance between it and the other rights.

(2) The balancing process must find expression on two levels: One is the concrete level, where the actual circumstances of the controversial event are taken into account; the other is the level of principle, where the typical interests are taken into account and general criteria are determined for balancing conflicting interests and rights.

(3) The need for a principled balancing calls for a judicial determination which in the absence of statutory guidance as to the relative grading of the different interests, will ensure resolution of the question whether these interests rank equally in importance or whether one takes preference over the other. Likewise, in the case of interests of equal standing, this balancing process calls for a judicial determination as to the measure of deference to be shown to one interest at the expense of the other. Thus a judicial pronouncement is required as to "the limits of sufferance" of the various rights.

(4) In seeking the point of equilibrium, there is, on the one hand, the consideration that a situation should not be allowed to arise in which hostile bystanders would be able to prevent people from demonstrating, and it is the task of the police, in this situation, to keep the crowd from disturbing the demonstrators rather than prevent the demonstrators from exercising their right. At the other hand of the scale is the consideration that a hostile crowd may be dangerous, and that rioting may cause bodily injury and loss of life.

(5) Both considerations are worthy of protection, but they cannot both be upheld at one and the same time. The required balancing is to be done in the framework of the authority conferred on the District Police Commander, under the Police Ordinance (New Version), 1971, to safeguard the public security or the public order. The balancing is to be effected at two levels, both of which are tied to the District Commander's authority. The first level relates to the physical steps to be taken by the police in order to prevent a hostile crowd from harming participants in the demonstration and procession. At the second level the concern is with the normative measures to be adopted by the police with respect to the grant or denial of a permit for holding the demonstration and procession, having regard to the anticipated consequences of the physical measures the police will adopt.

 

C (1) At the first level of balancing it will be the duty of the police to take all reasonable steps towards preventing any threats to or disturbance of the procession or demonstration. Enjoinder of the demonstration or procession is to be imposed as the last, not the first step. Only after the police have exhausted all the physical means at their disposal, consonantly with the anticipated situation, does the normative question of granting or withholding the licence have to be dealt with.

(2) The reasonableness of the police measures will depend on the available forces, their skill and equipment, the size of the demonstrating as well as the bystanding public, and similar considerations. Also to be taken into account are all the other duties of the police. Although extending proper protection to the demonstrators is a duty of the police, it is not their only duty, and their forces have to be allocated in a manner that will ensure reasonable discharge of all police duties.

 

D (1) At the second level of balancing the "rational principle" by which to balance between free speech and the public security, is the "probability" test. This test or formula is applicable also in construing the District Commander's authority under sections 83 and 84 of the police Ordinance (New Version).

(2) The "probability" test does not necessitate a clear or immediate certainty, but neither will a theoretical possibility suffice. Substantial evidence is required. Conjectures, speculations and apprehensions are not enough.

(3) The ideology which the demonstration or procession seeks to express, is not per se of concern to the authorities, but how the message is conveyed, the possibilities of it influencing the spectators, and the measure of hostility it is calculated to arouse in the crowd, are all considerations to be duly weighed, for they have a direct bearing on the probability that public security will be breached.

 

E (1) If, after the adoption of all reasonable police measures, there is still a substantial probability of harm to public security, the District Commander has the power to forbid the demonstration or procession. Before this power is exercised, the use of less drastic measures must be considered. These may enable the procession or demonstration to be held, even if not as originally planned, but with changes as regards its place, time and scope.

 

F (1) When exercising judicial review the court will not assume the role of a super police commander, but neither will it put the discretion of the police above all else. The court scrutinizes administrative discretion according to criteria of fairness, reasonableness, bias, discrimination, relevance of considerations and the like factors.

(2) The court will ask itself whether the facts as known to the District police Commander, would entitle a reasonable police commander to infer the existence of a probable danger to public security. This examination is no different from any other made by the court using the test of reasonableness.

(3) In the present case the only facts advanced by the respondent as a reason for not permitting the demonstration, were the events of the past. These create an apprehension, but no more; they do not establish any probability. Upon a reasonable evaluation made with prudent foresight those facts cannot be said to establish any substantial likelihood of danger, and they do not go beyond mere conjecture and speculation. These do not suffice. A reasonable police commander could not have inferred on the facts as they were known to him, that there existed any substantial possibility or probability of harm to public security.

 

            Petition for an order nisi. The petition, which was heard as if the order had already been given, was granted and the order made absolute.

 

 

Israel cases referred to:

                           

[1]   H. C. 148/79, Sa'ar et al. v. Minister of interior and police, 34(2) P.D. 169.

[2]   H. C. 243/62, Israel Film Studios Ltd. v. Levi Geri et al., 16(4) P.D. 2407; S.J. vol. IV, 208.

[3]   H. C. - 73,87/53, "Kol Ha'am" Co. Ltd. v. Minister of Interior, 7 P.D. 871; 13 P.E. 422; S.J. vol. I, 90.

[4]   F.H. 9/77, Israel Electric Corporation Ltd. et al. v. Ha'aretz Newspaper Ltd., 32(3) P.D. 337.

[5]   Cr.A. 126/62, Dissenchick et al. v. Attorney-General, 17 P.D. 169; S.J. vol. V, 152.

[6]   Cr.A. 696/81, Azulai v. State of Israel, 37(2) P.D. 565.

[7]   Cr.A. 100/51, Dershovitz v. Attorney-General, 6 P.D. 278.

[8]   Cr.A. 255/68, State of Israel v. Ben-Moshe, 22(2) P.D. 427.

[9]   H. C. 253/64, Jeris v. Haifa District Officer, 18(4) P. D. 673.

[10] Election Appeal 1/65, Yeridor v. Chairman of Central Committee for Elections to the Sixth Knesset, 19(3) P.D. 365.

[11] H. C. 243/82, Zichroni v. Broadcast Authority Managing Committee, 37(1) P.D. 757.

[12] H. C. 166/71, Helon v. Usefiah Local Council, 25(2) P. D. 591.

[13] H. C. 230/73, S.Z.M. Ltd. v. Mayor of Jerusalem, 28(2) P. D. 113.

[14] H.C. 155/60, Elazar v. Mayor of Bat Yam, 14 P.D. 1511.

[15] H. C. 531/77, Baruch et al. v. Tel Aviv Traffic Superintendent, 32(2) P.D. 160.

[16] H. C. 222/68, Hugim Leumiyim et al. v. Minister of Police, 24(2) P.D. 141.

[17] H. C. 807/78, Ein Gal v. Film and Theatre Censorship Board, 33(1) P.D. 274.

[18] H.C. 644/81, Omar International Inc. New York v. Minister of Interior et al., 36(1) P.D. 227.

[19] H.C. 329/81, (S.P. 217/82; 376,670/83) Nof v. Attorney-General et al., 37(4) P.D. 326.

[20] H. C. 389/80, Golden Pages Ltd. v. Broadcast Authority, 35(1) P.D. 421.

[21] H. C. 1/81, Shiran v. Broadcast Authority, 35(3) P.D. 365.

 

English cases referred to:

 

[22] Harrison v. Duke of Ruthland (1893) 1 Q.B. 142; 68 L.T. 35.

[23] Hubbard v. Pitt (1975) 3 W.L.R. 201 (C.A.).

[24] Beatty v. Gillbanks (1882) 9 Q.B. 308.

 

Irish case referred to:

 

[25]      R. v. Londonderry (1891) 28 L.R. Ir. 440.

 

American cases referred to:

 

[26]      De Jonge v. State of Oregon 299 U.S. 353; 57 S.Ct. 255 (1937).

[27]      Bachellar v. Maryland 397 U.S. 564; 90 S.Ct. 1312 (1970).

[28]      Watson v. City of Memphis, Tenn. 373 U.S. 526; 83 S.Ct. 1314 (1963).

[29]      Hague v. Committee for Industrial Organization 307 U. S. 496; 59 S.Ct. 954 (1939).

[30]      Feiner v. People of the State of New York 340 U.S. 315; 71 S.Ct. 303 (1950).

[31]      Schenck v. United States 249 U.S. 47; 39 S.Ct. 247 (1919).

[32]      Whitney v. People of the State of California 274 U.S. 357; 47 S.Ct. 641 (1927).

[33]      Dennis v. United States 341 U. S. 494; 71 S.Ct. 857 (1951).

[34]      Terminiello v. City of Chicago 337 U.S. 1; 69 S.Ct. 894 (1949).

 

D. Cheshin for the Petitioners.

R. Jarach, Director of High Court Matters, State Attorney's Office, for the Respondent.

 

Barak J., giving the judgment of the Court.

 

The Facts:

1. On 10.2.83, in the afternoon, the "Peace Now" movement held a demonstration and procession in Jerusalem. Starting at Zion Square, the procession passed along the Ben Yehuda Mall, Bezalel Street, Ben Zvi Boulevard and Ruppin Street to Kiryat Ben Gurion. In the course of the procession the demonstrators encountered hostility. The procession ended with a demonstration at the square facing the Prime Minister's office. The end was a bitter one, since a hand-grenade was thrown which led to the injury and subsequent death of a demonstrator, Emil Greenzweig.

 

To mark the thirtieth day of the death of the late Emil Greenzweig, the "Committee Against the War in Lebanon" sought to hold a procession on 10.3.83. This procession was scheduled to follow the very same route taken on the previous occasion, at the end of which Emil Greenzweig met his death. The purpose of the procession was to protest against "the violence and the lack of freedom of expression." On 2.3.83, the petitioners applied on behalf of the "Committee Against the War in Lebanon" for a licence to hold the procession and demonstration, but the application was refused by the respondent on 6.3.83. Giving reasons for his refusal, the respondent wrote: "The proximity of the events to each other and the atmosphere created after the holding of Peace Now's demonstration, give rise to serious apprehension that the holding of the demonstration which forms the subject of this application, its projected timing, routing and size will create a grave threat to the public order and security." The respondent noted that he was prepared to approve a meeting at the Rose Garden opposite the Prime Minister's office. On 7.3.83 the petition was lodged against the respondent, calling upon the latter to show cause why he should not accede to the application. On 9.3.83 we convened to hear arguments, Mr. Jarach having been invited to appear as a representative of the Attorney-General. Due to the urgency of the matter, Mr. Jarach had insufficient time to prepare a written reply, but it was agreed that he should put forward verbally representations of the respondent as to the facts, and that we would treat the petition as if an order nisi had already been issued in the matter. It was further agreed that we should accept Mr. Jarach's representations as a substitute for a replying affidavit. In his reply Mr. Jarach noted the respondent's awareness of the symbolism attaching to the date of the proposed procession and its route. Nevertheless, the respondent also had to reckon with the public safety; and while he agreed that the demonstrators themselves would not jeopardize the public safety, it was to be feared that members of the crowd might do the demonstrators violent injury. The respondent hardly advocated a reward for hooliganism, but feared the recurrence, in the course of the procession and demonstration, of incidents of violence similar to or even graver than those that had taken place thirty days earlier. We inquired of Mr. Jarach as to the grounds for the fear, and whether it was founded on any specific information about what was likely to transpire. He replied that the respondent had no special information and that his apprehension was founded on the belief that the events of the past were likely to repeat themselves at this time as well. We went on to inquire whether, having regard to the general duties of the police, they had at their disposal sufficient manpower to safeguard the demonstration and procession. Mr. Jarach's reply was that, despite the difficulties involved, the police would be able to muster the required forces, that the respondent was motivated not by the lack of man-power but by his inability to afford the demonstrators "hermetical protection" - hence his apprehension. Much of our time was devoted to seeking a compromise acceptable to the parties, but to no avail. At the conclusion of the hearing we decided to make the order nisi absolute. Our reasons for so doing are given below.

 

The Right of Assembly and Demonstration

 

2. The right of assembly and demonstration is a fundamental human right in Israel (H.C. 148/77[1]). It is recognized - along with free speech, or emanating therefrom - as belonging to the freedoms that shape the democratic character of Israel. Some hold the ideological basis for this freedom to be the wish to ensure freedom of expression, which for its part contributes to the discovery of truth. Others believe that underlying the stated right is the maintenance and proper functioning of democratic government, which for its part is founded on freedom of information and freedom of protest. A further opinion is that the freedom to demonstrate and form a procession is a vital component in man's general right of self-expression and autonomous thought (See F. Schauer, Free Speech: A Philosophical Enquiry (Cambridge, 1982) 3). It seems that the right of demonstration and assembly has a broad ideological foundation, at the centre of which is a recognition of the value and dignity of man, of the freedom granted him to develop his personality, and of the wish to maintain a democratic form of government. By virtue of this freedom, means of expression are afforded to those to whom the national and commercial media of expression are not available. Hence it is accepted in our law, as in the law of other enlightened democratic countries, that the right of demonstration and assembly be ensured a place of honour in the citadel of fundamental human rights. In the words of Hughes J. in De Jonge v. State of Oregon (1937) [26], at 364:

 

"The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental."

 

            (See also: V. Blasi, "Prior Restraints on Demonstrations,"68 Mich. L. Rev. 1969-70 (1481) 1483; D.G. Barnum, "Freedom of Assembly and Hostile Audience in Anglo-American Law,"29 Am. J. Comp. L. (1981) 59).

           

3. In Israel this right has yet to find formal expression in a Basic Law. Yet the decisions of this court have effectively transformed it into one of those fundamental but unwritten rights which derive directly from the democratic, freedom-loving character of our State (per Landau J. in H.C. 243/62 [2], at 2415). The result is that "in its decisions these fundamental rights serve this court as a guiding light in construing the law and reviewing the acts of the state authorities. Clearly the Executive too must conduct itself with a proper concern for these rights" (ibid., based on H.C. 73,87/53, [3], at p. 884). "The recognition of the fundamental freedoms as a substantive part of the law in Israel also entails the conclusion that these freedoms form a part of the law, in word and in deed, i.e., as basic rules serving to guide and fashion patterns of legal thinking and interpretation, which these freedoms influence by their spirit and their goal" (per Shamgar J. in F.H. 9/77 [4], at 359). We find that the basic freedoms - among them assembly and procession - constitute on the one hand rules of law which serve as guidelines in the absence of statutory law, and on the other hand, rules of interpretation according to which every statutory provision is to be construed.

The court acts on the premise that the legislator desired neither to abrogate nor to restrict these basic freedoms.

 

The Balance between the Right to Demonstrate and Conflicting Rights and Interests.

4. The right of demonstration and procession, although a basic right, is not an absolute one. It is relative, being limited by other basic human rights, such as the right of private property and freedom of movement or passage. It is also limited by the need to preserve public order and security, as well as to protect the fabric of democratic life. The relative nature of this right obligates us to strike a balance between it and the other rights. Thus Lord Scarman remarked in his Report on the Red Lion Square Disorders (Cmnd. 5919), 1-2:

 

"Amongst our fundamental human rights there are, without doubt, the rights of peaceful assembly and public protest, and the right to public order and tranquillity... but the problem is more complex than a choice between the two extremes - one, a right to protest whenever and wherever you will and the other, a right to continuous calm upon our streets unruffled by the noise and obstructive pressure of protesting procession. A balance has to be struck, a compromise to be found that will accommodate the exercise of the right to protest within a framework of public order which enables ordinary citizens who are not protesting, to go about their business and pleasure without obstruction or inconvenience."

 

            In discussing the need to create a balance between the various rights, we stated as follows in H.C. 148/79 [1] at 172, 178:

           

"The freedoms of assembly and procession are not unlimited. They are relative and not absolute freedoms. My right to hold an assembly and procession does not mean that I have the right to enter my neighbor's property without his consent, or that I may cause violence and a disturbance of the public peace. As with other freedoms, here too it is necessary to balance the desire of the individual - and the desires of individuals - to express their views by way of an assembly and procession, against the desire of the individual to protect his welfare and property and the desire of the public to preserve public order and security. Without order, there is no liberty. The freedom of assembly does not mean a throwing-off of all public order, nor does the freedom of procession mean freedom to riot... In organized social life, there is no 'all or nothing,' but there is 'give and take,' and a balancing of the different interests."

 

            It is necessary that this balancing process find expression on two levels: one is the concrete level, where the actual circumstances of the controversial event are taken into account, the other is the level of principle, where the typical interests are taken into account, and general criteria are determined for balancing conflicting interests and rights. The concrete examination is essential, but is not sufficient in itself. It is not enough for the courts to state that the various interests must be balanced against each other. But the court - in the absence of statutory guidance - has to determine the balancing formula, the relative weight to be attached to the conflicting interests, and the criteria for ascertaining the point of equilibrium. This aspect was touched upon by Agranat J. in the Kol Ha'am case [3], in the following terms (at p. 881):

 

"... The question must necessarily arise - particularly because that approach does not embody any precise and narrow formula - as to what is the rational principle that must serve the executive authority when it is engaged in the stated process, in order to determine the issue in favor of one or the other of the two stated interests."

 

            This "rational principle" is needed in order to guide the public as to what is permitted and what is forbidden. Its existence is vital in order that the governmental authority be armed with the criteria and yardsticks necessary for its decision-making. This "rational principle" serves as an important guide for the judiciary, which ought not to give expression to its subjective perception but should fashion its interpretation according to objective criteria. The significance of this "rational principle" was elucidated by Shamgar J. in A.H. 9/77 [4], (at 361):

           

"The process of weighing competing values denotes the interpretative starting point, but it cannot act to establish standards or a graded value scale according to which the interpretative function is to be discharged. I suspect, moreover, that the result of setting up values one alongside the other, without at the same time formulating also guidelines for assessment of their relative weight, can only be that for lack of legal criteria the court will in each case employ according to its best understanding of what is most expedient - whatever criterion seems proper to it in the circumstances. In other words a criterion embodying a guiding value standard, and tending towards the upholding of a fundamental freedom, is converted into and exchanged for a casual paternalistic criterion, the direction and nature of which will be incapable of advance assessment. With all due respect, this is quite unsatisfactory and it will not, I am sure, contribute to the clarity of the law or to its uniformity."

 

            This need for a principled balancing calls for a judicial determination which, in the absence of statutory guidance as to the relative grading of the different interests, will ensure resolution of the question whether these interests rank equally in importance or whether one takes preference over the other. Likewise, in the case of interests of equal standing, this balancing process calls for a judicial determination as to the measure of deference to be shown to one interest at the expense of the other. Thus a judicial pronouncement has to be made with respect to the "limits of sufferance" of the various rights - if I may borrow a term employed by Mr. Justice Witkon [see A. Witkon, "Reflection and some Youthful Memories of Freedom of the Press," Human Rights in Israel (Human Rights Association in Israel, ed. R. Gabison, 1942, in Hebrew), 153, 160].

 

5. The right of demonstration and procession may clash with other rights and interests of various kinds. It may clash, for instance, with an individual's proprietary right, as may happen when it is sought to hold a demonstration and procession on his property. Exercise of the right of demonstration and procession may likewise conflict with a public property right, as when the procession is sought to be held in a city street. Public and private property alike have a vested ownership, yet a desirable balance between the right of demonstration and procession and a private proprietary right is by no means the same as the desirable balance when a "public" ownership right is at stake. The right of demonstration and procession may clash with the freedom of movement, since my neighbour's right to demonstrate in a city main street inhibits my right to use this street for my own purposes. These two interests have to be balanced against each other in a manner giving recognition to one without negating the other. The right of demonstration may clash with a person's right to personal security and bodily integrity, and also with the public interest in maintaining security and democratic administrative procedures. This clash may well occur since demonstration may bring with it violence, whether on the part of the demonstrators or on the part of a hostile crowd, and a balance must be struck between the right to demonstrate and the public security. The right of demonstration and procession may conflict with the public interest in the integrity of the judicial process, as may happen when a demonstration or procession is likely to influence the outcome of a judicial matter which is pending - and a balance has to be found between these two conflicting interests.

 

The Need for Diverse Criteria

6. The centrality of the right of demonstration and procession inevitably brings it into conflict with various other rights and interests, and this renders imperative a determination of standards wherewith to gauge the desirable point of balance in each case. The diversity of the different possible situations requires a matching diversity of points of balance. No single criterion will avail to solve all the problems, since the conflicting interests are not always on the same normative level, while the problematics of the conflict may be of different kinds. For instance, in case of conflict between the right of demonstration and a property right, the conflict when the latter is that of an individual is not the same as when it vests in the public. When vested in an individual the property right takes precedence, and an act of trespass cannot be justified by the right of demonstration (see Harrison v. Duke of Ruthland (1893) [22]). In the second case the property right takes no precedence, since public property - and I refer here to highways, squares and streets (and not, for example, to government offices) - is meant also for processions, parades and funerals (H. C. 148/79 [1], at 178; Lord Denning, in Hubbard v. Pitt [23]; see also S.A. de Smith, Constitutional and Administrative Law, (London, 4th ed. by Street and R. Brazaier, 1981) 497). Here, unlike the private property situation, the right has to be balanced against other interests, in a process of reciprocal waiver and tolerance. As we have seen, the possibility of conflict may arise also between the right of demonstration and procession and the freedom of movement or, between the former and maintaining the integrity of the judicial process. These conflicts may raise problems of a varying character. The conflict between the freedom of demonstration and procession and the freedom of movement is between two rights of equal normative value, and what is needed, therefore, is to balance them in a manner enabling substantial realization of the one without substantial infringement of the other: "The inhabitants of a city ... have to take upon themselves the inconvenience resulting from national and public events, and these cannot serve to restrict the citizen's right to demonstrate. In organized social life there is no 'all or nothing' " (H.C. 148/79 [1], 178), and once the desirable point of equilibrium has been established, it will regulate the conduct of the public and of the authorities. The apprehension, or possibility or even certainty of impairment of one interest or another may not be relevant at all. On the contrary: the envisaged equilibrium entails the certainty of an impairment of some kind, yet the entailed risk has to be undertaken for the sake of maintaining a desirable balance between the competing interests. The second conflict, between the freedom of demonstration and procession and the integrity of the judicial process, raises a different problem. Here the question generally is the degree of likelihood that the exercise of the one right (demonstration and procession) will prejudice the other interest (integrity of the judicial process). If this likelihood is high, the interest of the integrity of the judicial process will have the upper hand, whereas the freedom of demonstration and procession will prevail when there is little such likelihood. The purpose of a principled balance in this type of situation is to establish guidelines for evaluating the prejudicial likelihood. Thus, for instance, it has been laid down in our case law that the desirable guideline is neither a "probable" nor a "remote" danger, but one of "a reasonable possibility." "The risk of a remote effect on the judicial process will not suffice, but a possible effect will, since it is much the same whether the publication did in fact operate to influence the trial, or it merely was capable of so doing. This possibility of influencing the outcome of the trial suffices if it be a reasonable possibility, and there is no need that it be probable or imminent" (per Sussman J. in Cr.A. 126/62 [5] at 181).

 

7. As we have seen, the desirable point of equilibrium is sometimes found in a determination of the demarcation line between two rights pressing for recognition on the same normative level (the right of demonstration and procession as opposed to the right of passage). At other times, finding the point of equilibrium entails the establishment of a criterion for evaluating the likelihood of a breach of right. Just as the point of balance in the first case varies according to the substance of the rights concerned, so by the same token will it vary in the latter case. In neither case is a general and universal standard to be established. This question arose in connection with the relationship between the freedom of expression and the integrity of the judicial process. The argument that the proper point of balance between the two interests coincided with the point where the interests of free expression and public security were properly balanced against each other (i. e., a situation of "clear and present danger"), was rejected by the Supreme Court, Sussman J. holding as follows:

 

"I am of the opinion that this test is inappropriate in the instant case. There the question was the restriction of a right in deference to the public need, here the issue is the reconciliation with each other of two worthy but conflicting public interests. An encroachment upon the freedom of speech because of the danger of a breach of the public peace - a sore evil, for the prevention of which the freedom of speech should be curtailed only as far as essential - is not the same as delimiting that freedom for the sake of doing justice. For the public interest in the doing of justice is no less a value than the public interest in the maintenance of free speech, and in balancing the two against each other it would be as wrong to neglect the one as it would the other." (Cr.A. 126/62 [5], at 177).

 

Accordingly, we held that

 

"The Supreme Court was not prepared to follow the American case law, nor to adopt the test of a clear and imminent danger. It was also not ready to adhere to the 'probability' test laid down by the Supreme Court in the Kol Haam case (H.C. 73/53 [3], 87). In rejecting these tests Sussman J. noted that 'the doing of justice is of no less importance than the freedom of expression...' In place of these tests the Supreme Court established another, putting the point of balance elsewhere on the spectrum of possibilities, namely, the test of a 'reasonable possibility' of a forbidden influence." (Cr.A. 696/81 [6], at 575).

 

8. In the petition before us no question of the freedom of movement or of the integrity of the judicial process was at stake. The consideration by which the District Commander was guided was "a serious apprehension of a grave threat to the public order and safety." The issue was deliberated by this Court in H. C. 148/ 79 [1], where it was held that the right of assembly, procession and demonstration was not an absolute but a relative one, which could be restricted because of considerations of public safety. In the above case danger to the public safety was feared because of violent behaviour on the part of the demonstrators themselves, whereas in the case before us the apprehension was linked to possible violence coming from a hostile crowd. The Police Ordinance (New Version), 1971, provides for denial or restriction of the right of demonstration and procession on grounds of public security (sec. 84). Hence, if the risk of harm to life or body threatened by a hostile crowd is a matter of certainty, there is no doubt that the right of demonstration and procession must bow to these individual and public interests. However, does the occurrence of the harm have to be an absolute certainty for the instant purpose? To answer, it is necessary to establish a standard for gauging the likelihood that a disturbance of the public security as a result of the reaction of a hostile crowd to the demonstrators will erupt. What is the appropriate point of balance?

 

The Freedom of Demonstration and Procession and the need for Public Security in the Face of a Hostile Crowd.

9. This question requires us to analyze the different considerations that have to be taken into account. One is that a situation should not be allowed to arise in which hostile bystanders will be able to prevent people from demonstrating. It was so held by the U.S. Supreme Court in Bachellar v. Maryland (1970) [27], at 567:

 

" 'The public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers'... or simply because bystanders object to peaceful and orderly demonstrations."

 

            A person's freedom is not to be infringed merely because of violent objection to its exercise (see Watson v. City of Memphis, Tenn. (1963) [28]). It is the task of the police, in this situation, to keep the crowd from disturbing demonstrators, and not to prevent the demonstrators from exercising their right (Cr.A. 100/51 [7], at 280; see also E. C. S. Wade, "The Law of Public Meeting," 2 Modern L. Rev. (1938), 177). This was clearly stated by the court in R. v. Londonderry (1891) [25] as follows (at 449):

           

"If danger arises from the exercise of lawful rights resulting in the breach of the peace, the remedy is the presence of sufficient force to prevent the result, not the legal condemnation of those who exercise those rights."

 

            Showing deference to crowd hostility is like entrusting the key to exercise of the right of demonstration and procession to those who oppose it. This has to be avoided and the mob is not to be given a power of veto, nor violence a reward. The danger of such deference is noted by Kalvin:

           

"If the police can silence the speaker, the law in effect acknowledges a veto power in hecklers who can, by being hostile enough, get the law to silence any speaker of whom they do not approve" (Kalvin, The Negro and the First Amendment (1965) 140).

 

            Indeed, we should be careful not to convert the mob's power of veto into a constitutional principle that would permit denial of the right of demonstration and procession. "Every act done outside the framework of law and calculated to prejudice another's freedom of expression - an act of violence all the more so - strikes at the very heart of democracy" (Agranat J., in Cr.A. 255/68 [8], at 435). The heart of democracy has to be protected by all the means at democracy's disposal.

 

10. At the other end of the scale is the consideration that a hostile crowd may be dangerous, and that rioting may cause bodily injury and loss of life. The supreme value we attach to human life compels us to reckon with its endangerment, from whatever quarter the threat may come. The freedom of demonstration must not be permitted to degenerate into a blood-bath. Moreover, a violent disruption of the public order may unravel the social fabric and the very institutions of democratic government. It is not unknown for the enemies of democracy to have availed themselves of its legal processes in order to bring about its downfall. "More than once in the history of democratic countries has it happened that an orderly democratic administration was overcome by fascist and totalitarian movements of one kind or another, these making use of all the rights of free speech, freedom of association and of a free press, accorded them by the state, in order to conduct their destructive activities. Those who saw this happen at the time of the Weimar Republic will not forget the lesson" (Witkon J. , in H.C. 253/ 64 [9], at 679; see also E.A. 1/65 [10]), nor, indeed, will those who lived through the events of the Third Reich (see Witkon's above-mentioned article, at p. 161). The freedom of procession must not be allowed to escort the state to the "abyss" (a phrase used by my learned brother, Levin J., in H.C. 243/82 [11], at 770).

 

 

11. These, then, are the two considerations to be taken into account and to be balanced against each other. Both are worthy of protection, but they cannot both be upheld at one and the same time. Mr. Justice Fortas depicted the situation thus:

 

"The Constitution seems to accommodate two conflicting values, each of which is fundamental; the need for freedom to speak freely, to protest effectively, to organize, and to demonstrate, and the necessity of maintaining order so that other people's rights and the peace and security of the State, will not be impaired" (A. Fortas, Concerning Dissent and Civil Disobedience (New York, 1968) 30).

 

            The required balancing is to be done in the framework of the authority conferred on the District Police Commander, under the Police Ordinance (New Version), to safeguard the public security or the public order. It seems to me that the balancing is to be effected at two levels, both of which are tied to the District Commander's authority. The first level relates to the physical steps to be taken by the police in order to prevent a hostile crowd from harming participants in demonstrations and processions. At the second level, the concern is with the normative measures to be adopted by the police with respect to the grant or denial of permission for the holding of a demonstration and procession, having regard to the anticipated consequences of the physical measures the police will adopt. I shall deal with each of these levels in turn.

 

 

Balance Level One: Police Action to Prevent a Disturbance.

12. We have seen that our point of departure is the principle that an individual has a recognized right to take part in a demonstration or procession. Anyone threatening the exercise of this right and forcefully interfering with its enjoyment is acting unlawfully. There is a constitutional right to demonstrate and a constitutional duty to refrain from disturbing the demonstration by the use of threats and violence (see "Protecting Demonstrators from Hostile Audiences," 19 Kan. L. Rev. 524). Hence, the police must use all reasonable means at their disposal in order to prevent these threats and to protect the demonstrators from harm. This duty of protection is stated by Professor Chafee thus:

 

"The sound constitutional doctrine is that the public authorities have the obligation to provide police protection against threatened disorder at lawful public meetings in all reasonable circumstances" (Z. Chafee, Free Speech in the United States (New York, 1969) 245).

 

            The initial police action should be directed not against the demonstrators , but those threatening them with acts of violence. In the words of U.S. Supreme Court Justice Roberts:

           

"Uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right" (Hague v. Committee for Industrial Organization (1939) [29], at 516).

 

            This principle has been adopted in our law too. For instance, the Supreme Court has held as follows:

           

"The maintenance of order does not mean surrendering to those who threaten its disturbance, but the contrary: giving shelter and protection to the victims of such" (per Berinson J. in H.C. 166/71 [12], at 594; see also H.C. 230/73 [13]; H.C. 155/60 [14], at 1512).

 

            In the same spirit it was held that "the response to the unlawful resort to violence must be firm initial police action and subsequent enforcement of the criminal law" (Landau J. in H.C. 531/77 [15], at 165). It is therefore the duty of the police to take all reasonable steps towards preventing any threats to, or disturbance of, the procession or demonstration (Cf. H.C. 222/68 [16], at 166). The enjoinder of the demonstration or the procession is to be imposed as the last, not the first step. Only after exhausting all the physical means at the disposal of the police, in whatever manner required to meet the anticipated situation, does the normative question of granting or withholding the licence have to be dealt with. If, in the name of preserving order, the police "ever can interfere with a lawful public speaker, they first must make all reasonable efforts to protect him" (Black J., in Feiner v. People of the State of New York, (1950) [30], at 326).

            The reasonableness of the police measures will depend on the available forces, their skill and equipment, the size of the demonstrating as well as the bystanding public, and similar considerations. Also to be taken into account are all the other duties of the police (see H.C. 222/68, [15], at 167). Although extending proper protection to the demonstrators is a duty of the police, it is not their only duty, and they have to allocate their forces in a manner that will ensure reasonable discharge of all their duties (see Note, "Hostile Audience Confrontations: Police Conduct and First Amendment Rights," 5 Mich. L. Rev. (1976-77), 180)

           

Balance Level Two: Police Action to Prevent a Demonstration.

13. It is possible that the reasonable efforts made by the police to prevent interference with a demonstration will succeed in eliminating the danger threatened by a hostile crowd, but it may also happen that the danger remains. The police may not have sufficient forces available, or those available may not be adequately trained or equipped, or the surrounding physical circumstances may perhaps preclude effective control of the situation. For these and other reasons, a threat to public safety may persist even after the envisaged police action. In this predicament the second question poses itself, namely: does the risk of harm to body and life justify repression of the right of demonstration and procession? Should the police efforts be directed solely against the hostile crowd, or are there also circumstances which justify police action against the demonstrators themselves? Shall the procession march at any price? We have already discussed the relevant considerations at this level of inquiry, noting that here too a balance must be struck. An infringement of the right of demonstration and procession has to be justified when its exercise entails a risk of bodily injury and loss of life. A democratic society which is anxious to preserve human dignity, life and bodily integrity, which is concerned with maintaining democratic government procedures, must sometimes deny or curtail the freedom of expression and the freedom of demonstration and procession, even if the practical implication of so doing is to grant a hostile audience de facto veto power. In this connection Professor Barnum writes as follows:

 

"It is doubtful that constitutional policy can prevent a hostile audience from abridging the freedom of speech when public disorder is either so unexpected or so persistent that it threatens to overwhelm the law enforcement resources of the society... when violent clashes between opposing groups become a regular occurrence, the law enforcement capacity of the society may be worn so thin that general restrictions on the right to demonstrate will have to be imposed. Under these circumstances, the constitutional right of freedom of speech may have to be subordinated, at least temporarily, to the imperatives of law enforcement and the need to restore public order" (Barnum, supra, at 94).

 

            But the real question that underlies this petition is this: what is the measure of likelihood of loss of life or bodily harm resulting from the holding of a demonstration that would justify the ultimate step of enjoining exercise of the stated right. This is a matter for prior and not retrospective assessment. The procession has yet to march, the demonstration yet to be held and the events yet to unfold. But the danger exists, the threat is there. By what standard shall the situation be gauged? As we have seen, certainty is by no means to be required. One does not await the patient's death before calling the doctor. What then is the requisite degree of likelihood - short of certainty - in this context? Does apprehension suffice? Is reasonable apprehension required, or perhaps a possibility, proximate or remote, suffices? Perhaps a substantial danger has to be shown, or shall the test be one of probability or of a clear and present danger? These and other tests we shall now examine in seeking the proper criterion to be applied when balancing the right of procession and demonstration against individual and public safety.

 

The Proper Standard: The "Probability" Test.

14. Determination of the proper standard was the central issue in the Kol Ha'am case ([3] 87). Charged with determining the "rational principle" by which to find the balance between free speech and the public security, the Court decided on "probability" of danger as the balancing formula or "test." This test will ensure that:

 

"On the one hand the viewpoints of others are not suppressed merely because they are opposed to those held by the people in authority and, on the other hand, that there is also attained the legislator's objective of preventing danger to the public peace" (ibid. at 888).

 

            Justice Agranat arrived at this test on the basis of the fundamental perception of the State of Israel as a country built on democratic foundations, within which prior restraints on the freedom of expression ought not to be imposed save in situations where the occurrence of a harmful result is a "substantial probability." It seems to me that the stated test is appropriate also in the matter now before us. We might also therefore properly apply the "probability" test in construing the District Commander's authority under sections 83 and 84 of the Police Ordinance (New Version). This can be justified on four grounds: First, the issues in this case and in Kol Ha'am [3] are very closely related. In both cases the principle of free speech (in its wide sense) clashes with the public security interest, and the need arises for a standard by which to gauge the likelihood of harm occurring. The general considerations pertaining to the democratic nature of the state and the need to confine "preventive measures" to situations in which there is a substantial probability that danger will erupt, apply in both cases. Second, the decision in Kol Ha'am has come to be accepted by the courts as establishing a general guideline for the balancing of freedom of speech with public safety. The ruling in Kol Ha'am is not limited in application to the specific provision of the Press Ordinance in issue there, but "was formulated on a broad theoretical basis" (per Landau J. in H.C. 243/62 [2] at 2411).

            The ruling in Kol Ha'am "has become a cornerstone in our legal edifice, and the principles embodied in it have been accepted by all and are beyond challenge today" (Levin J., in H.C. 243/82 [11], at 765). Our courts have in the past applied the stated test in all situations requiring a balance of freedom of speech with public safety (see e.g. H.C. 243/63 [2]; H.C. 807/78 [17] at 278; H.C. 148/79 [1]; H.C. 644/81 [18]; H.C. 243/82 [11]; see also P. Lahav, "Freedom of Expression in the Decisions of the Supreme Court, " 7 Mishpatim (1977) p. 375). It is fitting that we continue following this route, along which processions and demonstrations shall be free to march as long as there is no probability of prejudice to public security.

            A third reason for following the Kol Ha'am guideline is that it puts us in the company of modern democratic states which also face similar predicaments and, despite differences in constitutional structure, arrive at solutions similar to our own (see D. G. Barnum, The Constitutional Status of Public Protest Activity in Britain and the United States (1977) Pub. L. 310). Thus, a similar approach is taken in the United States (see L. H. Tribe, American Constitutional Law (Mineola, New York)), and likewise in West Germany. The latter country's constitution ensures freedom of assembly, with provision made for lawful restriction of the same. A special law empowers the police to prohibit demonstrations, provided that the circumstances known at the time of the decision constitute "an immediate danger to public order or public security" (see Gesetz uber Versammlungen und Aufzuge (Versammlungsgesetz) of 24 July, [Dietel and Kintzel, Demonstrations und Versammlungsfreiheit (1935), 120]).

            Fourth, the stated test strikes a proper balance among the various considerations which are competing for primacy. The test, on the one side, pays full regard to the need to ensure freedom of demonstration and procession, and also fully recognizes that only exceptional circumstances indicating a causal connection which is clear and manifest, justifies the infringement of this freedom. On the other side, the test pays full regard to the need for protecting life and limb, acknowledging that the maintenance of democratic administrative procedures and the public safety justify infringement of the freedom of demonstration and procession. It is accordingly a rational and principled test, and provides a proper and flexible guideline for the resolution of difficult and exceptional situations.

           

15. Already in Kol Ha'am Agranat J. pointed out ([3] at p. 888) that the "probability" test was "not a precise formula that could be adapted easily or certainly to every single case." The use of kindred expressions, such as "a proximate possibility" (Agranat J., ibid.), "a tangible danger" (Sa'ar decision [1]), "a natural consequence" (see Beatty v. Gillibanks [24]), throw little additional light on the content of this elusive test. It may be noted that in the United States the standard of a "clear and a present danger" is sometimes applied in the present context. This test was enunciated by Justice Holmes in Schenck v. United States [31]:

 

"The question in every case is whether the words used are used in circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent" (at p. 52).

 

            It was further shaped by Justice Brandeis, with the concurrence of Justice Holmes, in Whitney v. People of the State of California [32]:

           

"... no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose the evil by the process of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression" (at p. 377).

 

            Some reservations about the test were expressed in later decisions (see Strong, "Fifty Years of 'CIear and Present Danger': From Schenck to Brandenbrug and Beyond," Free Speech and Association (ed. Kurland, 1975) 302; Dennis v. United States [33]).

            Justice Agranat himself rejected this test in Kol Ha'am ([3] at 891), mainly because the element of immediacy demands proximity in time. In later Supreme Court decisions no clear distinction was maintained between the "probability" test enunciated by Justice Agranat and the "clear and present danger" test rejected by him, the two being treated as identical (see e.g. Sussman J. in Cr.A. 126/62 [5] at 171; Cohn J. in E.A. 1/61 [10] and Bach J. in H.C. 243/82 [11], at 779). Indeed, there appears to be no great difference between these two tests (see Lahav's above-mentioned article at 420), and some regard them as being but different versions of one and the same test (see T. L. Emerson, The System of Freedom of Expression (N.Y.. 1970) 113). In the Dennis case [33], in which the American Supreme Court expressed reservations concerning the "clear and present danger" test, Jackson J. nevertheless felt that there was room for its continued use in procession and demonstration cases (ibid. at 568).

           

16. The test of "probability" does not necessitate a clear or immediate certainty, but neither will a theoretical possibility suffice. What is required is "substantial" evidence (D. Libai, "The Right to Assemble and Demonstrate in Israel, "Iyunei Mishpat. Vol. B (1972/73) 54, 65). The estimation must be based on known facts, including past experience. Conjectures, speculations and apprehensions are not enough, nor is a plea of a substantial possibility of harm to public security. The actual circumstances must point to a substantial likelihood of danger, leaving a possibility of "setting off" the degree of likelihood against the measure of gravity of the apprehended harm. In this respect one should not seek to be wise after the event and judge according to ex post facto knowledge of the facts and events, but rather according to the reality confronting the authority at the time of making its decision. Nevertheless, not to be wise after the event is no justification for folly before the event. Since we are concerned here with the evaluation of a future happening, relevance attaches to the circumstances surrounding the holding of the demonstration and procession, to the message it is intended to convey, the manner of its conveyance, and to the possible reaction of the crowd. A demonstration is not something detached from reality, it is rather a phenomenon of life taking place at a particular place and time. It is true that the ideology which the demonstration or procession seeks to express is not per se of concern to the authorities "the police are not in charge of ideology" (H.C. 148/79 (1) at 179). But how the message is conveyed, the possibilities of its influencing the spectators and the measure of hostility it is calculated to arouse in the crowd are all considerations to be duly weighed, for they have a direct bearing on the threat to public-security. Accordingly, the views of the demonstrators are not in themselves of interest to the authorities, but are important only for estimating the probability of the danger erupting.

            Freedom of expression or demonstration does not mean freedom merely to say only what others want to hear. Freedom of procession is not the preserve of flower-garlanded children marching along a city street, but it also confers the right on people who do not hold the accepted views to march, and whose very marching arouses irritation and anger (see Terminiello v. City of Chicago (1949) [34], at 4). The right is available to marchers in both categories, and is not tied to the measure of approval or anger aroused. Yet importance does attach to such responses when one is evaluating the likelihood that the procession and demonstration will result in a breach of the public security.

           

17. If, despite the adoption of all reasonable police measures, there is still a "probability" of harm to public security, the District Commander has the authority to forbid the demonstration or procession. It is to be noted, however, that the enjoinder of a demonstration or procession is a measure of last resort, to be adopted in the face of anticipated danger. Before its adoption, the use of less drastic measures has to be considered. These may enable the demonstration or procession to be held, even if not as originally planned but with changes as regards its place, time and scope. In this manner it will be possible to maintain, if only in limited measure, the freedom of demonstration and procession, while at the same time protecting the public security interest. Indeed, when the lawful denial or curtailment of a basic human right is at stake, it is incumbent on the Executive to choose - from the range of means available for the protection of public security - such restrictive measures that least impair the basic right. Among the drastic measures, that which is the least drastic should be chosen. (See note: "Less Drastic Means and the First Amendment, "78 Yale L.J. (1969) 464). It is possible, of course, that any measure less than a total enjoinder may be ineffective in the face of a probable threat to public security. In such event there is no alternative but to adopt this stringent measure. But where other means may prove effective, they must be employed.

 

Judicial Review

18. I have so far confined myself to the normative framework within which the District Commander's discretion may be exercised. It is now necessary to examine the normative discretionary framework for the exercise of judicial review. This framework is not peculiar to the law of demonstration and procession, but is rather the regular framework set by the doctrine of judicial review. This doctrine holds that "the court, when exercising judicial review, does not assume the identity of the functionary the lawfulness of whose conduct is being challenged, but each retains its own identity, and the court examines whether the functionary acted as one in his position should properly have done." (H.C. 329/81 [19], at 334). Accordingly, the court will not assume the role of a super-police commander, but neither will it put the discretion of the police above all else. The court scrutinizes administrative discretion according to criteria of fairness, reasonableness, bias, discrimination, relevancy of considerations and the like. Thus we have ruled as follows in the context of the Police Commander's discretion under sections 83 and 84 of the Police Ordinance (New Version): "If the second respondent's considerations are affected by lack of good faith, by arbitrariness, discrimination or unreasonableness - we shall not hesitate to intervene" (H.C. 148/79 [1], at 178).

 

19. In exercising judicial review, the court will examine the lawfulness of the police commander's decision in relation to the existence of a "probable" danger to the public security (see Kol Ha'am [3] at 823). The court will ask itself - as it has in other similar cases (cf. H.C. 389/80 [20]; H.C. 1/81 [21]; H.C. 243/82 [11] - whether the facts as known to the District Police Commander, would entitle a reasonable police commander to infer the existence of a "probable danger" to public security. This examination is no different from any other made by the court using the test of reasonableness. In this way, for instance in H.C. 644/81 [18], this court examined whether various articles published in a daily newspaper posed a probable danger to public security. A similar examination was made by this court in H.C. 243/82 [11], in the context of prohibiting the telecasting of certain material. The same test has to be used when ascertaining the "probability" of harm to public security in the context of the police commander's exercise of his discretion.

 

From the General to the Specific

20. The District Police Commander concluded, in the matter before us, that there was "serious apprehension over a grave threat to public order and security." This threat, in his opinion, would continue to exist even after allocation of the forces necessary for safeguarding the demonstration and procession.

            We enquired as to the grounds for such concern, and were informed that it resulted from an evaluation of the events that had transpired on the occasion of the first demonstration and procession, held a month earlier. Here the District Commander erred, in our opinion. Apprehension and estimations are not enough - unless they are founded on facts and point to a "probability." In the matter before us the only facts adduced were the events of the past. These create an apprehension, but no more, and do not establish any probability. Upon a reasonable evaluation made with prudent foresight, the above facts cannot be said to establish any substantial likelihood of danger, and do not go beyond mere conjecture and speculation. These do not suffice. A reasonable police commander could not have inferred, on the factual constellation known to him, that there existed any probability or substantial likelihood of harm to public security. Once we have reached this conclusion there is no longer need for us to consider whether the police commander had properly discharged his duty when he offered to licence a meeting at the Rose Garden, opposite the Prime Minister's office. That inquiry would only have been necessary had we thought that holding the procession along the original route entailed a probability of harm to public security. In any event, the need to consider alternative routes of procession falls away, once we have concluded that the planned procession poses no danger warranting its enjoinder. Yet I must add with regret that a number of suggestions which we made in the course of the hearing - relating to alternative routes promising a more effective deployment of the public forces and thus reducing the fear of possible violence on the part of the crowd - were not acceptable to the Respondent, despite the willingness of the Petitioners to accept them. It is difficult to fathom the Respondent's rejection of these alternative proposals, which could have reduced the risk of possible danger significantly, even on the premises and assumptions of the police themselves.

            For the above reasons we have decided to make the order absolute in the sense that the Respondent is to give the Petitioners a licence to hold a demonstration as requested by them.

           

Judgment given on May 13, 1984.

H.C.J  5/48

           

LEON & OTHERS

v.

ACTING DISTRICT COMMISSIONER OF TEL AVIV (YEHOSHUA GUBERNIK)

 

 

 

In the Supreme Court sitting as the High Court of Justice

[October 19, 1948]

Before: Smoira P., Olshan. J., and Assaf J.

 

 

 

Mandatory legislation - Enforceability in Israel - Validity of Mandatory Emergency and Defence Regulations - Requisition of flat - Interference by High Court in exercise of discretion by Competent Authority.

 

                The Law and Administration Ordinance 1948, provides that the law which existed in Palestine on May 14, 1948, "shall remain in force... subject to such modifications as may result from the establishment of the State and its authorities".

               

                The Acting District Commissioner of Tel Aviv, as the competent authority under the Defence Regulations of 1939, made pursuant to the (English) Emergency Powers (Defence) Act 1939, requisitioned a flat situated at no. 3, Chen Boulevard, Tel Aviv, by order dated 6 September 1948. The requisition was for the benefit of the Attorney-General who, previously to his then recent appointment to that office, had resided in Haifa, but who upon such appointment found it necessary to reside in Tel Aviv, where he had been unable to find a suitable flat.

 

                Objections to the order were made by the landlord of the flat and an incoming tenant, and were based mainly on the grounds that (a) the Regulations under which the order was made had never been in force in Palestine, or if ever in force, that their validity had expired upon the establishment of the State of Israel, (b) the competent authority was never legally appointed as such; and that in any event he had exceeded his authority and had acted capriciously, in bad faith and without due regard to the principles of reason and justice.

               

                Held, discharging an order nisi previously granted by the court calling upon the competent authority to show cause why the order of requisition should not be set aside,

 

(l)            The Mandatory powers of legislation for Palestine were unrestricted, and unless contrary to the terms of the Mandate such legislation is enforceable in Israel, the "modifications" referred to in the Law and Administration Ordinance 1948 being confined to technical and not to basic modifications.

 

(2)           The regulations were valid, the competent authority had been validly appointed as such, and had acted fairly and reasonably in the circumstances.

 

                General observations on when the High Court will interfere with the exercise of a discretion vested in a Government official.

           

Palestine cases referred to :

(1)   H.C. 18/47 Dinah Kazak v. The District Commissioner, Haifa District: (1947), 14 P.L.R. 87.

(2)   H.C. 118/44 Zeev Poms & others v. The District Commissioner, Lydda District, & Mordechai Gileady: (1944). 11 P.L.R. 574.

 

English case referred to:

(3)        Carltona Ltd. v. Commissioners of Works & others (1943) 2 All E.R. 560.

 

R. Nohimovsky for the Petitioners.

 

H. H. Cohn, State Attorney, and J. Kokia, Deputy State Attorney, for the Respondent.

 

            SMOIRA P. giving the judgment of the court. On September 23, 1948, after Mr. Nohimovsky had submitted his arguments on behalf of Mr. Leon and Mr. Kleiman, an order nisi was issued by this court against the respondent, Mr. Yehoshua Gubernik, the Acting District Commissioner of Tel Aviv (Urban Area), calling upon him to show cause why an Order of Requisition issued by him on September 6, 1948, should not be set aside. In terms of that order, the respondent acquired possession of the flat of Mr. Leon on the second storey of the building situated at No. 2, Chen Boulevard, Tel Aviv, as from the date of its vacation. The flat in question was requisitioned for the benefit of Mr. Ya'acov Shapira, the Attorney General of Israel.

           

            When the parties appeared before us on the return to the order nisi, Mr. Nohimovsky gave notice of an amendment of the Petition since it appeared that his Power of Attorney had been signed by Mr. Kleiman, the owner of the building, alone. He accordingly requested us to delete the name of the first petitioner, Mr. Leon, the tenant of the flat. On the other hand Mr. Nohimovsky asked us to join as a petitioner Dr. Boris Tamshas who, in terms of an agreement of September 8, 1948 with the second petitioner, the owner of the building, had acquired the right to enter the flat after it had been vacated by Mr. Leon.

           

            The State Attorney, Mr. Haim Cohn, who appeared on behalf of the respondent, did not oppose the amendment sought, and it was accordingly decided by the court to delete the name of Mr. Leon as a petitioner, and to join Dr. Tamshas in that capacity.

           

            The result is that on the return there appeared before the court Mr. Kleiman, the owner of the building, and Dr. Tamshas, who wishes to enter the flat in question as a tenant, both represented by Mr. Nohimovsky.

           

            Before entering upon the merits of the case we must deal with the first submission of counsel for the respondent who argued that the court should dismiss the petition in limine. His contention is that the petitioners have not come into court with clean hands in that Mr. Nohimovsky lodged a Power of Attorney purporting to be signed by Mr. Leon and Mr. Kleiman while in fact it was signed by Mr. Kleiman alone. It follows that the petition contains declarations in the name of Mr. Leon which he never made; and since Mr. Kleiman speaks in his affidavit of the "contentions of the petitioners" this declaration is incorrect, since Mr. Leon does not appear as a petitioner nor does he submit any contentions. According to the Advocates Ordinance, the argument proceeds, an advocate is responsible for the signature of his client. He who comes to this court with unclean hands, Counsel submits, cannot receive any relief whatsoever.

 

            It is indeed an important rule that this court will not grant relief to a petitioner who does not approach it with clean hands but we do not think that the rule applies to the present case. True, it is the duty of an advocate to ensure that a Power of Attorney is signed by all those in whose name it purports to be given and for whom he acts. In the present case, however, we assume that the omission was due rather to carelessness and haste than to an intention to mislead, and we have decided therefore to deal with the application on its merits.

           

            While mentioning the duties of advocates we also wish to add that it is the duty of an advocate to set out in his petition the main points of his -argument. An advocate, therefore, who wishes to submit in a petition of this kind that the Order of Requisition has no legal foundation, since the law upon which it purports to be based has been repealed, does not discharge this duty simply by alleging that "the Order of Requisition is illegal, has no force and is of no effect whatsoever". The petition must be framed in such a way as to inform the respondent of the case he has to meet.

           

            The law which requires a reply to an order nisi demands that the Petition be so clear as to leave no room for speculation. The law is directed to every citizen whether he represented by counsel - who may have a genius for guessing - or whether he appears without counsel. The submissions as framed in the petition in this case do not disclose the ground upon which it is said that the Order of Requisition is illegal. The opinion of the petitioner that the requisition is illegal may be inferred by the respondent from the very fact that an application has been brought to this court. The ground for that opinion, however, which was stressed in the petitioner's argument after the respondent had replied, could not have been discovered by the respondent in the petition. This court is not an arena for a duel of surprises between litigants but a forum for the basic clarification of disputes between parties. Such clarification after proper preparation by the parties is only possible if the submissions are properly defined and do not hide more than they disclose.

           

            I pass now to the merits of the case. The full text of the Order of Requisition of September 6, 1948, with which we are concerned, is as follows: -

           

                                                                     "State of Israel

                                                                     Provisional Government.

                                                                     Offices of the Commissioner

                                                                     (Urban Area)

                                                                     Tel Aviv.

           

File No. 1/7/SK.

Mr. Yuval Leon,

2, Chen Boulevard,

Tel-Aviv.                                 (The tenant)

 

Mr. Kleiman,

2, Chen Boulevard,

Tel-Aviv.

 

ORDER OF REQUISITION

 

            Whereas it appears to me, Yehoshua Gubernik, Competent Authority, to be necessary and expedient so to do in the interests of the public safety, the defence of the State, the maintenance of public order and the maintenance of supplies and services essential to the life of the community:

 

2.         I therefore inform you herewith that pursuant to Regulation No. 48 (I) of the Defence Regulations, 1939, (Amendrment No. 2 of 1945),1) I hereby take possession as from the date upon which it will be vacated of the property described below:

 

Description of Property

Flat occupied by Mr. Yuval Leon on the second storey of the building situate at No. 2 Chen Boulevard, Tel Aviv.

September 6, 1948

                                                                                            Y. Gubernik

                                                                                   Competent Authority."

Copy to Chairman

Central Housing Board,

District Engineer's Department,

Tel Aviv,

Mr. Ya'acov Schapira.

 

And these are the main submissions of counsel for the petitioners:

 

            (a) The Defence Regulations of 1939 have never been in force in Palestine and, in any event, have not been in force in Israel since the establishment of the State. These regulations derive their validity from an English statute, namely, The Emergency Powers (Defence) Act, 1939, and it was never legally possible to apply this statute to Palestine. If it has ever been valid, its validity expired with the establishment of the State of Israel.

           

            (b) Even if we assume that the Defence Regulations of 1939 are still in force, regulation 481) - upon which the Order of Requisition is based -has in any case been repealed by regulation 114 of the Defence (Emergency) Regulations, 19451, and for this reason too the Order of Requisition has no legal foundation.

           

            (c) Even if we assume that regulation 48 is still in force, the respondent was never legally appointed as a Competent Authority for the purposes of that regulation.

           

            (d) The respondent abused his office in that he exceeded his authority, infringed the rights of the petitioners, and issued the Requisition Order, not in good faith but capriciously and without paying due regard to the principles of reason and justice.

           

            It should be pointed out that counsel for the petitioners did not raise the first two submissions set out above in his argument before us on the date of the issue of the order nisi, but then confined himself to the third and fourth submissions alone. It is no wonder, therefore, that counsel for the respondent dealt in his reply with the two last-mentioned points only. He contended that Mr. Gubernik had been lawfully appointed as a Competent Authority for the purposes of regulation 48, which is still in force, and had issued the Order of Requisition in good faith and in the reasonable exercise of his discretion. He further submitted that the question whether the requisition was necessary for the maintenance of services essential to the community was one for the discretion of the Competent Authority with which this court would not interfere.

           

            In his detailed argument in support of his first submission. counsel for the petitioners contended that the Defence Regulations of 1939 have been of no effect since May 14, 1948, the date of the establishment of the State of Israel. He contends further that these Regulations were made by the High Commissioner for Palestine on the basis of the Emergency Powers (Defence) Act, 1939, and if there is no longer any legal basis for this English statute in Israel then the foundation of the Defence Regulations of 1939 also falls away.

           

            Counsel for the petitioners bases this argument upon section 11 of the Israel Law and Administration Ordinance, 1948, which provides: -

           

"The law which existed in Palestine on May 14th,1948, shall remain in force, insofar as there is nothing therein repugnant to this Ordinance or to the other laws which may be enacted by or on behalf of the Provisional Council of State, and subject to such modifications as may result from the establishment of the State and its authorities."

           

            His argument is twofold. Firstly, he contends that the words "The law" at the beginning of section 11 do not include a well-known series of statutes which the King of England - and through him the High Commissioner for Palestine - legislated for Palestine, purporting to exercise powers which were at no time his. Secondly, he submits that such statutes have in any case been repealed by the concluding words of the section, namely, "and subject to such modifications as may result from the establishment of the State and its authorities". Counsel wishes us to distinguish between two classes of Statutes and Orders in Council: those which were enacted specifically on the basis of the Mandate or with special reference to Palestine, and those which were enacted by the English legislature (as distinct from the Palestine legislature) or by the King and which have no connection with the Mandate or special reference to Palestine but which were enacted solely under the powers conferred by the Foreign Jurisdiction Act, 18901). The first class mentioned, the argument proceeds, includes The Palestine Order in Council, 1922 (Drayton, Laws of Palestine, Vol. III, p. 2569), The Palestinian Citizenship Order, 1925 (ibid. p. 2640), The Palestine Currency Order, 1927 (ibid. p. 2615) and The Palestine (Western or Wailing Wall) Order in Council, 1931 (ibid. p. 2635). To the second class, counsel contends, belongs the Order in Council of 1939 which applied the Emergency Powers (Defence) Act, 1939, to various parts of the British Empire, including Palestine. This statute, which was passed by the British Parliament, has no connection with the Mandate and no special reference to Palestine, and the relevant Order in Council was made under section 4 of the Statute and under the powers conferred by the Foreign Jurisdiction Act. Since, in any event, this Statute ceased to be in force in Israel after the establishment of the State, the Defence Regulations of 1939 also ceased to be valid. The same applies to the Supplies and Services (Transitional Powers) Act, 1945 (Palestine Gazette, 1946, Supp. 2, p. 229), and the Order in Council of January 10, 1946, which followed in its wake (ibid. p. 234), and to the Emergency Laws (Transitional Provisions) Act, 1946 (ibid. p. 573), and the relevant Order in Council of February 19, 1946 (ibid. p. 591). Counsel for the petitioners submitted that while English statutes which were applied to this country by Orders in Council and which belong to the first class mentioned are still in force, statutes which belong to the second class have ceased to be valid because of the modifications which, as he argues, have resulted from the "establishment of the State and its authorities". When asked to express his opinion on the validity, for example, of the English Copyright Act of 1911 (Drayton, ibid. p. 2475), which was introduced into Palestine by the Order in Council of 1924 (ibid. p. 2499), Counsel at first replied that that Statute was still in force. Later, however, he retracted this opinion and submitted that the Act no longer applied since it is not mentioned in the Palestine Order in Council of 1922. and the Order relating to the Copyright Act does not refer to the Mandate but speaks only of those countries which are under the King's protection. Palestine, he argues, was never under the King's protection and the Order relating to Copyright flows in fact from the powers conferred by the Foreign Jurisdiction Act, 1890.

 

            Counsel for the petitioners further submits that the English statutes referred to which empowered the thigh Commissioner (by Orders in Council) to make Defence and Emergency Regulations possess a dictatorial character - even an anti-Jewish character - to the extent that they were directed towards destroying the National Home and the development of the country by the Jews2), and towards stemming the flow of Jewish immigration into the country. Since the State of Israel is a democratic state and a Jewish state there have come about modifications within the meaning of the words "and subject to such modifications as may result from the establishment of the State and its authorities" - modifications, he submits, which make it impossible for these Statutes to be given validity in Israel.

           

            In summing up his first submission Mr. Nohimovsky asked the court to decide whether the Defence Regulations of 1939 are still in force seeing that their very foundation, namely, the validity in Israel of the English Statutes upon which they are based, has ceased to exist. These are revolutionary times and in the Opinion of counsel it is for the court to accelerate the process of releasing the State of Israel from the binding force of that class of English Statutes to which he referred.

           

            Mr. Nohimovsky asked us not to leave this fundamental question open and decide the case on some other point. We are also of opinion that it is desirable for us to deal with this question, since it is indeed the duty of this court to give its reply to the view - which appears to be widespread - that the Supreme Court is competent to decide upon the validity of certain well known Statutes because they are not in accord with the spirit of the times. There are undoubtedly certain laws objectionable to the Jewish community because of the way in which they were employed in the time of the Mandate. It is true, moreover, that the abuse of these laws was fought both inside and outside the courts, and it was even argued that these laws were invalid because they were inconsistent with both the language and the spirit of the Mandate. It would be wise, therefore, to deal at some length with this problem which has already been raised a number of times since the establishment of the State and will undoubtedly come before us again.

           

            The basis of the reply to this question is in our opinion section 11 of the Law and Administration Ordinance, 1948, the full text of which has already been cited. That section lays down a clear and important rule, namely, that the law which existed in Palestine on May 14, 1948, shall remain in force. The exceptions laid down in section 11 are as follows:

           

        (1)   Laws which are repugnant to the Law and Administration Ordinance itself shall not remain in force.

 

        (2)   Laws which are repugnant to those which may be enacted by or on behalf of the Provisional Council of State shall not remain in force.

 

        (3)   Previously existing laws shall remain in force subject to such modifications us may result from the establishment of the State and its authorities.

 

            This analysis of section 11 requires that we first interpret the rule before we deal with the exceptions, and the question that arises in the present case is whether the Defence Regulations of 1939 were a part of "the law which existed in Palestine on May 14th 1948". If the reply to this question is in the negative there will be no necessity to consider the exceptions laid down in section 11. If, however, the reply is in the affirmative it will be necessary to determine whether the validity of the regulations has ceased in accordance with one of the exceptions referred to.

           

            One of the Ordinances which is undoubtedly still in force is the Interpretation Ordinance of 1945, and the words "The law which existed" in section 11 of the Law and Administration Ordinance must therefore be interpreted in accordance therewith. The Interpretation Ordinance contains a definition of the word "Law" which includes, inter alia, "such Acts or parts of Acts. and such Orders) by His Majesty in Council or parts of such Orders, whether passed or made before or after the commencement of this Ordinance, as are now, or have heretofore been, or may hereafter be, in force in Palestine".

 

            We are to assume, therefore, that the words "The law" in section 11 include Statutes of the Parliament of England which were applied to Palestine by the Order in Council no less than Ordinances made by the High Commissioner for Palestine. Nevertheless, we are not unmindful of the submission of Mr. Nahimovsky that such Statutes include some which were inconsistent with the Mandate and which were therefore invalid. The courts of Palestine during the Mandate were not prepared to accept this submission on the ground that the Mandate was not part of the law of the land, save in so far as it had been introduced by an Order in Council. This court inclines to a different opinion and is prepared to consider whether a law passed in Palestine during the Mandate contradicts the terms of the Mandate. We are unable, however, to accept the contention of counsel for the petitioners that every Imperial Statute which has no direct connection with the Mandate or no special reference to Palestine and which was applied to Palestine by Order in Council is wholly invalid. We find no such limitation in any provision of the Mandate. On the contrary, the first provision of the Mandate lays down that "The Mandatory shall have full powers of legislation and of administration, save as they may be limited by the terms of this mandate". The distinction drawn by counsel for the petitioners between Imperial Statutes based upon the Mandate or having special reference to Palestine and other Statutes applied to Palestine finds no support in the text of the Mandate or in the basic Constitution of Palestine, namely, the Palestine Order in Council, 1922, or in section 11 of the Law and Administration Ordinance of 1948. Such a distinction, moreover, would lead to absurd results as, for example, the invalidity in Israel of the Copyright Act since the Order in Council which applied that Act to Palestine is not expressly based upon the Mandate nor does the Statute contain matters applying specifically to Palestine. The simple answer to counsel's argument is that article I of the Mandate, as I have mentioned, confers full legislative powers and there was no need to make special reference to the Mandate in applying a particular Statute. By virtue of article I of the Mandate laws were made for Palestine in two ways. The usual method was by Ordinances issued by the High Commissioner in Council, and the second method was by the application of an English Statute to Palestine by Order in Council. There is no basis in constitutional law for the argument that the latter method - which we shall call the Imperial method - was any less effective than the former. It follows, therefore, that even without relying upon the Interpretation Ordinance of 1945 we must include Statutes within the expression "The law" in the first part of section 11 of the Law and Administration Ordinance, 1948.

 

            It would appear that all these rationalistic arguments directed towards distinguishing between different classes of legislation are in fact based more upon emotion than upon reason - indeed, counsel was even prepared to sacrifice so innocent a statute as the Copyright Act for the sake of consistency. The real attack, however, is directed against the Defence Regulations and the English Statute from which they derive.

           

            We do not think that the legislature of a democratic state is precluded from passing a law which enables the making of Emergency Regulations. Laws such as these are to be found in the most democratic of Constitutions as, for example, the Constitution of the Weimar Republic of Germany. The example closest to as, however, is to be found in our own Ordinance, the Law and Administration Ordinance, 1948, which includes in section 9 a specific provision relating to Emergency Regulations1). The governing consideration here is not the existence of Emergency Regulations but the manner in which they are employed. There is no room today for the submission that Emergency Regulations made in the time of the Mandate are no longer in force because they were then used for anti-Jewish purposes.

           

            Let us take, for example, from the period of the Mandate, the Lands (Acquisition for Public Purposes) Ordinance, 1943. There is no doubt that according to the test of counsel for the petitioners that Ordinance is still in force. let us assume - purely for the sake of clarifying the matter - that the mandatory authorities used this Ordinance capriciously for the expropriation of the property of Jews alone. The argument is inconceivable that this Ordinance - which, in its terms, contains no discrimination whatsoever - is invalid because it was employed capriciously.

           

            This argument is untenable for yet another reason. It cannot be said - as is often suggested - that the purpose of all these Defence Regulations was dictatorial repression and so forth. The English who, within their own land, are certainly lovers of freedom and jealously guard the rights of the citizen - found it proper to make Emergency Regulations similar to those which exist here and which include, inter alia, provisions for the expropriation of the property of the individual in the interests of the public.

           

 

            Having reached the conclusion that the Defence Regulations of 1939 made under the Emergency Powers (Defence) Act, 1939 are included within the expression "The law" at the beginning of section 11, we must examine whether they fall within one of the three exceptions set forth above in our analysis of that section. Counsel for the petitioners did not argue that these Regulations are repugnant to the Law and Administration Ordinance or to any Law enacted by the Provisional Council of State. He did contend, however, with great emphasis, that we should declare the Regulations invalid by virtue of the words "subject to such modifications as may result from the establishment of the State and its authorities". He submitted that these words empower the court to declare a particular law invalid provided only that this course can be justified by some change brought about by the establishment of the State.

           

            This argument is quite unreasonable. It would require that this court first determine that the establishment of the State has brought about some change and the nature of the change; and then consider whether this change requires that a particular law be invalidated. All this would then have to be embodied in a judgment, declaring that the law in question is no longer in force. It is precisely this, however, which is the duty of the legislature; and it is not to be assumed for a moment that the legislature of Israel, in using the words quoted, intended to delegate part of its duties to the courts.

           

            The legislature would not have concealed within the words "subject to such modifications as may result from the establishment of the State and its authorities" a matter of such importance as the invalidation of a whole series of Defence and Emergency Regulations. In section 13 of the Ordinance the legislature expressly repealed the provisions of the White Paper of 1939, namely, sections 13 to 15 of the Immigration Ordinance, 1941, and Regulations 102 to 107 of the Defence (Emergency) Regulations, 1945, and also the Land Transfer Regulations, 1940. Had it been of opinion that it was also necessary to repeal the Defence Regulations of 1939 or the Defence (Emergency) Regulations of 1945, either wholly or in part, it could have followed the simple course of repealing them expressly as it did in section 13 of the Ordinance in the case of the Regulations there mentioned. But it did not do this. If we read Chapter Four of the Law and Administration Ordinance in its entirety we shall see that the words "subject to such modifications as may result from the establishment of the State and its authorities" were intended to refer to technical modifications without which the law in question could not be applied after the establishment of the State and its new authorities. The word "modifications" was intended by the legislature to refer to such modifications as would necessarily flow from the very fact of the establishment of the State and its authorities. It was not intended to refer to modifications which demand special consideration such as the repeal of one of a series of existing laws. For example, according to an Order by the Director of the Department of Immigration in regard to Places of Entry to Palestine, 1943 (Palestine Gazette, Supplement 2, No. 1249, p. 125), as amended, Allenby Bridge is one of the lawful places of entry into Palestine. Although in terms of section 15(a) of the Law and Administration Ordinance, 1948, the word "Israel" is to be substituted for the word "Palestine" wherever it appears in any law, it is clear without any necessity for special consideration that the establishment of the State and its authorities necessitates the deletion of Allenby Bridge3) from the Order referred to.

 

            This restrictive interpretation of the words referred to may also be derived from section 16 of the Ordinance which empowers the Minister of Justice to issue a new text of any law which existed in Palestine on May 14, 1948, and which is still in force in the State, such text to contain "all the modifications resulting from the establishment of the State and its authorities". It is clear that section 16 was never intended to vest in the Minister of Justice the powers of the legislature to repeal existing laws on the basis of "modifications which may result from the establishment of the State and its authorities". Section 16 can only have been intended to refer to technical modifications. On the general principles of interpretation it cannot be assumed that the same words used in the same chapter of an Ordinance are to be read in different ways and it necessarily follows, therefore, that the words relating to "modifications" mean technical modifications in section 11 as well.

           

            As we are indeed living in a period of change and as we stand upon the threshold of the new State - we desire, in concluding this part of our judgment, to add a few general comments on the duty of a judge when he comes to interpret the law. The doctrine of the division of powers within the State is no longer as rigid and immutable as it was when once formulated by Montesquieu. In the field of jurisprudence the opinion has prevailed that in cases to which neither law nor custom applies it is for the judge to fulfil the function of the legislature rather than to force the facts before him into the narrow confines of the existing law, which in truth contains no provision applicable to them. This conception has found its classic expression in the first section of the Swiss Code which provides expressly that if the judge can find neither law nor custom which applies to the case before him, he is to lay down the law as if he himself were the legislature. But this principle only applies where in fact no law exists. It is a far cry from this to require that judges, in the exercise of their judicial powers, should repeal laws which undoubtedly do exist but which are unacceptable to the public. We are not prepared to follow this course, for in so doing we would infringe upon the rights of the existing legislative authority in the country, the Provisional Council of State. The courts are entitled to decide that a particular law is invalid as exceeding the powers of an inferior legislative body which enacted it. So, for example, if the Council of State were to delegate to a Minister the power of making regulations within certain limits, it would be for the court to examine in a particular case whether a regulation so made exceeded the limits laid down.

 

            This is the well-known doctrine of ultra vires. It is often suggested these days - as has been argued before us by counsel for the petitioners - that the Defence Regulations in general, and those Regulations relating to the requisition of property in particular, were put to improper use during the Mandate against the Jewish community. In addition to what we have already said on this point, it is our opinion that there is no room for this contention when considering the validity of these Regulations in the State of Israel. It cannot be disputed that despite the harshness which the use of these Regulations sometimes involves, an orderly community in a state of emergency cannot exist without emergency regulations which, in their very nature, place the interests of the public above the freedoms of the individual. The question of the extent to which the court may interfere in the discretion of the Competent Authority which applies these regulations will be considered when we deal with the fourth submission of counsel for the petitioners.

           

            Our conclusion on the first point is that the Defence Regulations of 1939 were valid in the time of the Mandate and that they are still in force by virtue of section 11 of the Law and Administration Ordinance, 1948.

           

            The second submission of counsel for the petitioners is that even if we assume that these Regulations are generally still in force, the validity of regulation 48 expired in September, 1945. with the making of the Defence (Emergency) Regulations, 1945. Counsel contends that regulation 48 of the Regulations of 1939 (which was amended on February 23, 1945, Palestine Gazette Supplement 2, No. 1394, page 161 of March 1, 1945) was impliedly repealed by regulation 114 of the Regulations of 1945. We shall quote the text of the two regulations.

           

            Regulation 48, sub-section 1, of the Defence Regulations 1939, as ascended on February 23, 1945, provides: -

           

"A competent authority may, if it appears to that authority to be necessary or expedient so to do in the interests of the public safety, defence, or the efficient prosecution of the war, or of maintaining supplies and services essential to the life of the community, take possession of any land, and may at the same time, or thereafter, give such directions as appear to the competent authority to be necessary or expedient in connection with, or for the purposes of, the taking, retention or recovery of possession of that land".

 

            Regulation 114(1) of the Emergency Regulations of September 22, 1945, provides: -

           

"A District Commissioner may, if it appears to him to be necessary or expedient so to do in the interests of the public safety, the defence of Palestine, the maintenance of public order or the maintenance of supplies and services essential to the life of the community, take possession of any land, or retain possession of any land of which possession was previously taken under regulation 48 of the Defence Regulations, 1939, and may, at the same time or from time to time thereafter, give such directions as appear to him to be necessary or expedient in connection with, or for the purposes of, the taking, retention or recovery of possession of the land."

 

            Counsel for the petitioners contends that these two Regulations deal with the same matter, that is to say, the requisitioning of land for the benefit of the community, and that the earlier regulation, therefore, has been impliedly repealed by the latter. It follows, he submits, that an order of requisition may today only be issued by the District Commissioner under regulation 114 and not by the Competent Authority under regulation 48. He submits further that the High Commissioner could not revive regulation 48 by the Supplies and Services (Transitional Powers) Order, 1946 of February 22, 1946 (Palestine Gazette, Supplement 2, No. 1477, p. 348) since the Order in Council in regard to Supplies and Services (Transitional Powers) (Colonies etc.), 1946, of January 10, 1946, empowers the High Commissioner to extend and give effect only to those regulations which were still in force at the date of the Order (see paragraph (c) of the First Schedule of the Order) (Palestine Gazette, Supplement  2, No. 1473, p. 236). It follows, says counsel, that the High Commissioner could not revive a regulation on February 22, 1946, the validity of which had already expired on September 22, 1945. We shall first examine the question raised by counsel as to the validity of regulation 48 without considering the argument that it has been impliedly repealed.

           

            (1) As we have already mentioned in dealing with the first submission of counsel for the petitioners, the constitutional basis of the Defence Regulations of 1939 is the English Statute (of August 24, 1939) known as the Emergency Powers (Defence) Act.1939. That Act empowers the King of England to make by Order in Council such "Defence Regulations" as appear to him to be necessary or expedient for securing the public safety, the defence of the realm, the maintenance of public order and the efficient prosecution of the war, and for maintaining supplies and services essential to the life of the community. The power of the King to take possession of any property is mentioned expressly in section I(2) of the Act. In terms of section 4(I) (d) of the Act the King is empowered to direct by Order in Council that the provisions of the Act shall extend to any territory in respect of which a mandate on behalf of the League of Nations has been accepted by him and is being exercised by his Government. Section 11 of the Act provides that it shall continue in force for a period of one year from the date upon which it was passed (August 24, 1939), and that it shall then expire, provided that upon the request of Parliament the King may, by Order in Council, extend its validity from time to time for additional periods of one year.

           

            (2) By an Act of May 22, 1940, section 11 of the original Act of 1939 was amended so as to introduce a period of two years instead of one year as the initial period of validity of the statute. The Act was to remain in force, therefore, until August 24, 1941.

           

            (3) In 1939 the King, acting under the powers conferred upon him by section 4(1) of the Act of 1939, directed by Order in Council that the Act apply to Palestine and that the power of making regulations conferred by the original Act upon the King in Council be exercised in colonies and mandated territories by the Governors of such colonies or territories (article 3 of the Order). This constitutes the basis of the power of the High Commissioner to make the regulations which he issued on August 26, 1939, and which are called the Defence Regulations, 1939.

           

            (4) By an Order in Council of June 7, 1940, the King extended the validity of the Act of 1940 to colonies and mandated territories.

           

            The original Act thus acquired validity until August 24, 1941, in Palestine as well.

           

            (5) Thereafter the validity of the original Act, which had also been applied to Palestine, was extended by Orders in Council from year to year for additional periods of one year until August 24, 1945.

           

            (6) On June 15, 1945, a special Act called the Emergency Powers (Defence) Act, 1945, was passed in England to extend the validity of the original Act of 1939 "for periods of less than one year". This Act provided that for section 11(I) of the original Act there shall be substituted a provision which lays down that the original Act shall continue in force until the expiration of the period of six months beginning with August 24, 1945 - that is to say, until February 24, 1946 - and shall then expire. The Act also provided that it could be cited together with the original Act and the Act of 1940 as the Emergency Powers (Defence) Acts, 1939-1945.

           

            (7) On December 10, 1945, an Act was passed in England called the Supplies and Services (Transitional Powers) Act, 1945. This Act was published in Palestine in the Palestine Gazette 1946, Supplement 2, No. 1473, p. 229. In the Long Title of the Act its objects are defined, inter alia, as follows: An Act to provide for the application of certain Defence Regulations for purposes connected with the maintenance, control and regulation of supplies and services, for enabling Defence Regulations to be made for the control of prices and charges, for the continuation of Defence Regulations so applied or made during a limited period notwithstanding the expiry of the Emergency Powers (Defence) Acts, 1939 to 1945. Section 1 of this Act provides that the King in Council way direct that certain Defence Regulations shall continue to have effect whether or not they are for the time being necessary or expedient for the purposes specified in sub-section (1) of section one of the original Act of 1939. Section 5(4) empowers the King to apply the Act to colonies and mandated territories in the same way as the original Act.

           

            (8) In pursuance of the last mentioned provision the King in Council made an Order on January 10, 1946, in which he applied the Act of 1945 to Palestine (Palestine Gazette Supplement 2, No. 1473, p. 234), and conferred the power of making regulations upon the High Commissioner.

           

            (9) Pursuant to the powers conferred upon him as described in the preceding paragraph, the High Commissioner issued an Order on February 22, 1946, called the Supplies and Services (Transitional Powers) Order, 1946, in which he set forth a series of regulations which were to remain in force as above stated, including regulation 48 of the Defence Regulations, 1939.

           

            It follows, therefore, that the High Commissioner issued this Order two days before the original Statute and the Defence Regulations issued thereunder ceased to be valid. He acted, therefore, in accordance with Section C in the First Schedule to the Order in Council of January 19, 1946, which provides that the power to extend the validity of Defence Regulations applies only to such Regulations as are still in force on the date of the issue of the Order, that is to say, January 10, 1946. This then was the position in law.

 

            But we must still deal with the argument of counsel for the petitioners that regulation 48 was impliedly repealed by regulation 114 of the Emergency Regulations of 1945.

           

            Counsel relies upon the well-known principle that Lex posterior derogat legi priori and upon Maxwell, Interpretation of Statutes, 9th Edition, p. 171. The general answer is that there can only be an implied repeal where there exists a logical inconsistency between the first and the second legislative provisions - in which case the first is impliedly repealed by the second - or, if there is no inconsistency between the two provisions, where there is no justification for the continuance of the two.

           

            It cannot be said in the present case that such a logical inconsistency exists. It must be assumed that it was the desire of the legislature to confer the powers in question upon the Competent Authority under the Defence Regulations of 1939, and upon the District Commissioner under regulation 114. It cannot be said, moreover, that these two sets of provisions cannot stand together. There is a reason which explains the existence of two sets of regulations, namely, that the Defence Regulations of 1939, were designed to deal with a situation created by external factors, such as war, while the regulations of 1945 were made to deal with a situation created by internal factors. That this is so is apparent from the position that had existed previously. Before the Emergency Regulations of 1945 there existed the Emergency Regulations of 1936 which were not repealed by the Defence Regulations of 1939. That is to say that even before 1939 there existed two sets of Regulations although up to 1945, during the period of the war, the authorities employed the Defence Regulations of 1939. And as far as the authority of Maxwell is concerned, that writer, under the heading "Consistent Affirmative Acts" seems rather to support the opposite opinion. He says, at page 173: -

           

"But repeal by implication is not favoured. A sufficient Act ought not to be held to be repealed by implication without some strong reason. It is a reasonable presumption that the legislature did not intend to keep really contradictory enactments on the Statute book, or, on the other hand, to effect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted, unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention” .

 

            Counsel for the petitioners also pointed to a line of cases which indicate that from the date of the publication of the Emergency Regulations of 1945 the authorities used regulation 114 of those Regulations and not regulation 48 of the Regulations of 1939, since all those cases deal with regulation 114. There is no need to deal at length with the point that this fact cannot constitute the repeal of regulation 48.

           

            The conclusive answer to the contention of Counsel for the petitioners is provided by the Defence (Emergency) Regulations of 1945 themselves. Regulation 5 provides that, subject to the provisions of the Regulations, their provisions, and the powers conferred by them, shall be in addition to and not in derogation of the provisions of, or the powers conferred by, any other law. Moreover, regulation 7 sets forth in detail those regulations which shall be revoked upon the coming into force of the Regulations of 1945, and neither the Defence Regulations of 1939, nor any part of them, are mentioned in regulation 7. We therefore reject the submission of counsel for the petitioners that regulation 48 of the Defence Regulations, 1939, cannot constitute the basis of the Order of Requisition issued by the respondent.

           

            We are also of opinion that Counsel's third submission, namely, that the respondent was not lawfully appointed as a Competent Authority, is without foundation. Regulation 3 of the Defence Regulations, 1939, provides that the Competent Authority shall be the person appointed by the High Commissioner in writing. In a Notice concerning the powers of Ministers pursuant to the Law and Administration Ordinance, 1948, published in Official Gazette, No. 5, page 24, it is notified for public information that the Provisional Government has decided to confer the powers formerly exercised by the High Commissioner as follows: under the Defence Regulations, 1939 - upon the Minister of Defence: under regulation 3 of the Defence Regulations, 1939-upon the Ministers of Finance, Agriculture, Trade and Industry, Labour and Building, and Communications.

           

            Counsel for the petitioners wishes to deduce from the terms of this notice that in the case of the appointment of a Competent Authority under regulation 3 the Minister of Defence must also act together with one of the other Ministers mentioned. In our view this contention is without substance. The true intention is clear. In general the Minister of Defence must be substituted for the High Commissioner throughout the Defence Regulations, but in the case of regulation 3 the other Ministers mentioned must also be added.

           

            The appointment in the present case, a copy of which is annexed to the affidavit of the Respondent, was made in writing by the Minister of Labour and Building on September 3, 1948.

           

            Counsel for the petitioners also argued that the appointment was invalid as it was not published in the Official Gazette. Such publication, so he contended, is rendered necessary by section 20 of the Interpretation Ordinance which provides:

           

"All regulations having legislative effect shall be published in the Gazette and, unless it be otherwise provided, shall take effect and come into operation as law on the date of such publication".

 

            Counsel also drew our attention to the definition of ''regulations" in section 2 of the Ordinance1) and argued that the appointment of a Competent Authority for the requisition of land has legislative effect.

            The reply to this submission is twofold.

           

            (a) The Defence Regulations (Amendment No. 4) of 1945 provide expressly that section 20 of the Interpretation Ordinance shall not apply to the Defence Regulations.

           

            (b) Regulation 3 of the Defence Regulations contains a special provision in regard to the form of the appointment of a Competent Authority, namely, an appointment by the High Commissioner in writing, and there is no mention of the necessity for publication. The fact mentioned by counsel for the petitioners that in recent times such appointments have sometimes been published in the Official Gazette does not alter the legal position. We have no doubt, therefore, that the appointment of Mr. Yehoshua Gubernik as a Competent Authority for the purposes of regulation 48 was valid.

           

            In the result, therefore, we are of opinion that the Defence Regulations of 1939 in general and regulation 48 in particular were constitutionally valid in Palestine and are still so valid in the State of Israel and that the respondent, who exercised the powers conferred by regulation 48, was a Competent Authority. It remains for us, therefore, to give our decision on the fourth submission of counsel for the petitioners, namely, that the respondent exercised his powers not in good faith but capriciously and vexatiously, and without having regard to the principles of reason and justice.

           

            Before considering this argument we must call attention to certain facts in greater detail.

           

            The flat in question was requisitioned for the benefit of the Attorney-General of Israel, who is a married man with three children. It consists of four rooms, an entrance hall, and the usual conveniences, and is not far from the offices of the Government. Mr. Leon, who is referred to in the original petition as the First Petitioner and who lives in the flat at present, leased it from the owner of the building in 1947 and moved into it with his family. According to the statement before us of Mr. Kleiman, the owner of the building, Mr. Leon informed him in July, 1948, that he was about to leave the flat and that Mr. Kleiman was at liberty to let it to whom he wished. In fact, as we mentioned at the beginning of our judgment, Mr. Leon does not appear at all as a petitioner in this case. Dr. Boris Tamshas, who was joined in the proceedings after the issue of the order nisi, entered into contract of lease - through his agent - with Mr. Kleiman on September 3, 1948. Dr. Tamshas is a doctor from Cairo who fled to France following the latest political disturbances in Egypt. When the petition was filed Dr. Tamshas was in Paris and was already about to leave for Israel with his family. In terms of the agreement mentioned, the owner of the building was to hand over the flat to Dr. Tamshas not later than September 25, 1948.

            Dr. Tamshas, his wife and three children, reached Israel on September 23, 1948. He was born in this country and studied medicine overseas. He practiced as a physician in Cairo, but was in Palestine from 1936 to 1940. He then returned to Egypt and resumed his profession. He now wishes to settle in Israel and continue in medical practice.

            The case before us, therefore, is not one in which the Competent Authority Is about to eject a tenant in order to introduce another tenant into the flat, for the present tenant is about to move to Haifa where the flat of Mr. Ya'acov Shapira has been offered to him. The petitioners before us, therefore, who complain that the competent Authority has requisitioned the flat for the Attorney-General, are the owner of the building and a proposed new tenant.

 

            Many arguments were addressed to us in support of this fourth submission of the petitioners, and counsel himself, in the course of his argument, counted twelve points that he had raised. We shall not deal, however, with each point raised, but will consider the matter generally on its merits.

           

            Counsel for the petitioners well appreciates that according to the law as laid down during the Mandate this court will not interfere with the discretion of the Competent Authority if, in effecting the requisition, that Authority has acted within the limits of its powers. The court for its part will not consider whether the making of the requisition was proper or otherwise. The opinion has been expressed that the court will interfere only where it has been shown that the requisition has been effected maliciously or against the principles of reason and justice. Counsel for the petitioners submitted that we are not bound by the tradition established by decisions from the time of the Mandate but that, on the contrary, it is our duty to depart from that tradition.

           

            Counsel for the petitioners contends that the respondent did not exercise his discretion in good faith, but that he acted capriciously and against the principles of reason and justice. He spoke of a conspiracy between the respondent and Mr. Shapira. He relied upon the facts that Mr. Shapira approached Mr. Gubernik at the end of August in connection with the requisitioning of a flat for his use, and that Mr. Gubernik approached - not the Ministry of the Interior of which he is an official - but the Ministry of Justice; and that after a few days, on September 3, he received his appointment as a Competent Authority from the Minister of Labour and Building.

           

            We fail to see in this any suggestion of a conspiracy. It is only natural that an official who is in need of a flat and who, despite persistent efforts on his part (and we have heard that Mr. Shapira has been living since the beginning of July in one room in the Hotel Gat-Rimmon and has been unable to bring his wife and three children from Haifa to Tel Aviv) has been unable to find one, should take legal steps and approach his Government in order to. secure accommodation.

 

            Counsel also leveled strong criticism against Mr. Gubernik for informing Mr. Leon by letter on September 5th, the day before the issue of the Order of Requisition, that his flat was about to be requisitioned for the purposes of the Government and requesting him not to let the flat or transfer it to another authority without his confirmation. This letter, however, has no effect upon the issue and need not detain us now.

           

            When examined on his affidavit by Counsel for the petitioners, Mr. Gubernik stated that he offered a specific sum of money to Mr. Leon in order to facilitate the transfer of his home from Tel Aviv to Haifa, his intention being to recover a similar sum from Mr. Shapira. Counsel attempted to argue before us that in so doing Mr. Gubernik committed a criminal act in contravention of section 109A of the Criminal Code.1) We can only say that this submission has no substance at all.

           

            Counsel for the petitioners also argued that Mr. Gubernik had used an old English form drafted in accordance with regulation 114 of the Regulations of 1945, and that he had simply copied the language of the form out of habit and without consideration.

           

            If we are to understand counsel's argument to mean that the manner in which the Order of Requisition is drafted shows that the respondent did not consider the merits of the matter and therefore did not exercise his discretion in accordance with the rules of Justice and reason, then it cannot be accepted. It has already been decided in England, in the case of Carrtona Ltd. v. Commisioners of Works and Others, (3), that a Notice of Requisition has no constitutional effect. In that case - which was also a case of requisition under regulation 51(1) of the Defence (General) Regulations in England which correspond to our regulation 48 - the Competent Authority did not emplay in the Notice of Requisition the language of the regulation, but said that it was essential to take possession of certain buildings "in the national interest". It was argued that the notice was invalid since it gave a reason for the requisition which did not appear in the regulation. The regulation speaks of the public safety, the defence of the realm or the efficient prosecution of the war or the maintaining of supplies and services essential to the life of the community, while the notice speaks of a requisition effected because it is essential in the national interest. In commenting upon this aspect of the case Lord Greene M.R. said, at page 562:

 

"...in order to exercise the requisitioning powers conferred by the regulation no notice is necessary at all and, therefore, the question of the goodness or badness of a notice does not in truth arise. The giving of notice is not a pre-requisite to the exercise of the powers and, accordingly, the notice must be regarded as nothing more than a notification, which the Commissioners were not bound to give, that they are exercising those powers. The notice is no doubt for what it is worth, evidence of the state of mind of the writer and those by whose authority be wrote, and it is perfectly legitimate to argue that this notice suggests, on the face of it, that those who were directing their minds to this question were directing them to the question whether the action proposed was in the national interest and not to the specified matters mentioned in reg. 51. But the notice is no more than evidence of that, and when an assistant secretary in the Ministry of Works gave evidence it was perfectly clear that he was using that phrase - and this letter was written on his instructions - as a sort of shorthand comprising the various matters in reg. 51 upon which the requisition would have been justified . . . That point appears to me to have no substance at all".

 

            These remarks of Lord Greene contain the answer to the argument of counsel for the petitioners in this case. Mr. Gubernik stated candidly in his evidence that he could have omitted the words "in the interests of the public safety, the defence of the State" in the Order of Requisition and been satisfied with the words "in the interests of the maintenance of services essential to the life of the community" and perhaps also "the maintenance of public order". We therefore reject all the submissions of counsel based upon the manner in which the notice called an "Order of Requisition" was framed.

           

            Counsel for the petitioners also argued that although he greatly values the work of Mr. Ya'acov Shapira, the Attorney-General of Israel, such work is not covered by regulation 48. His contention before us was that the words "maintaining supplies and services essential to the life of the community" must be read in close association with the words "the public safety, defence, or the efficient prosecution of the war" which precede them, and he asked us to interpret the regulation in accordance with the rule of ejusdem generis.

 

            The simple answer is that section 4 of the Interpretation Ordinance lays down the very opposite, namely, that us a general rule the word "or" is not to be interpreted ejusdem generis. We accordingly have no doubt that the work of the Attorney-General may be included within the expression "services essential to the life of the community" within the meaning of regulation 48.

           

            We cannot agree with counsel for the petitioners that the regulation enables the requisitioning of a flat for the purposes of a government department alone - in this case the Ministry of Justice - and not for the purposes of a flat for the private use of the Attorney-General. We are not unmindful of the fact that the requisitioning of a flat by the ejectment of a tenant who is in occupation (which is not the case here) is a cruel and very serious matter which must be weighed thoroughly by the Competent Authority before it exercises its powers. Counsel for the petitioners, however, has overlooked the fact that in terms of regulation 48 the discretion in regard to the requisition of a flat resides in the Competent Authority and in no other person. The condition mentioned in regulation 48 is "if it appears to the Competent Authority" and not simply "if it appears". Were we to accept the submission of counsel for the petitioners we should have to decide that it appears to us that the requisitioning of this flat is not necessary for the maintaining of services essential to the life of the community. In so doing, however, we should be acting contrary to the law which binds us and whose amendment, if desirable at all, is a matter for the legislature.

           

            It would seem that this submission was advanced by counsel only to show that the decision of the Competent Authority in this case had no reasonable basis whatsoever. He did not weigh the matter at all. This court would then be entitled to interfere. Now in the opinion of the Competent Authority an official, in order adequately to discharge his duties to the State, must have a flat of his own and not be separated from his family for a protracted period. The securing for him of a flat, therefore, without which his services to the State are liable to be adversely affected, is a matter which is necessary for the maintaining of services vital to the life of the community. It cannot be said that this opinion is quite unreasonable, even if there may be some people who disagree with it.

           

            Counsel for the petitioners has also complained of the fact that the respondent requisitioned the flat although he knew that it had already been let to Dr. Tamshas. This argument too is unsound. If the Competent Authority is empowered to requisition a flat which is actually occupied by a tenant he must be empowered a fortiori to requisition a flat where he does not thereby affect the rights of a tenant who was in occupation up to that stage. In the present case, the tenant is about to move to another flat, and he will not suffer as a result of the requisitioning. The only person who will suffer is the new tenant who wishes to enter the flat. Here lies the striking difference between this case and the majority of cases of requisitioning, in which the Competent Authority is compelled to harm the tenant who is actually occupying the flat. This is hardly the case, therefore, in which the law. which has previously been laid down in such matters should be completely reversed.

 

                        Counsel for the petitioners urged repeatedly that regulation 48 was employed in the time of the Mandate when the rights of the individual took second place. He cited, in particular, some judgments relating to requisition in which there existed some political element. We agree that in some judgments delivered during that period in connection with requisition the political element undoubtedly prevailed over sound reason and judicial sense. It is sufficient to mention the judgment of the High Court of Justice in Dinah Kazak v. The District Commissioner, Haifa District, (1). There were also judgments, however, given against the individual in favor of the Competent Authority where there was no hint of a political element. It is sufficient to mention here Zeev Poms and others v. District Commissioner, Lydda District. and Mordechai Gileady, (2), in which the facts were very similar to those in the present case. In such matters the Courts of Palestine followed the decisions of the English Courts relating to the same type of requisitioning under the Defence Regulations. These English judgments, in any event, are completely free of any suspicion of political influence. Instead of citing a number of judgments delivered in Palestine we wish to quote here some remarks of Lord Greene from his judgment in the Carltona Case (3) to which we have already referred. Lord Greene said, at page 563:

           

"The last point that was taken was to this effect, that the circumstances were such that, if the requisitioning authorities had brought their minds to bear on the matter, they could not possibly have come to the conclusion to which they did come. That argument is one which, in the absence of an allegation of bad faith - and I may say that there is no such allegation here - is not open in this court. It has been decided as clearly as anything can be decided that, where a regulation of this kind commits to an executive authority the decision of what is necessary or expedient and that authority makes the decision, it is not competent to the courts to investigate the grounds or the reasonableness of the decision in the absence of an allegation of bad faith. If it were not so it would mean that the courts would be made responsible for carrying on the executive government of this country on these important matters. Parliament, which authorises this regulation, commits to the executive the discretion to decide and with that discretion if bona fide exercised no court can interfere. All that the court can do is to see that the power which it is claimed to exercise is one which falls within the four corners of the powers given by the legislature and to see that those powers are exercised in good faith. Apart from that, the courts have no power at all to inquire into the reasonableness, the policy, the sense, or any other aspect of the transaction."

 

            These remarks of Lord Greene also furnish the answer to the argument of Counsel for the petitioners that the housing situation in Tel Aviv and Jaffa did not make it necessary for this requisition to be effected. If there was to be a requisition, it was possible to requisition a flat in a building which had not yet been completed. This is undoubtedly a matter of housing policy in which this court cannot interfere. It is not the function of this court, moreover, to investigate whether the Competent Authority could not have employed the method of billeting in accordance with regulation 72 of the Regulations of 1939. In the result there has not been the slightest proof before us of mala fides or capriciousness on the part of the Competent Authority, so the fourth submission of counsel for the petitioners must also be dismissed.

           

            We desire to point out in conclusion that in spite of the decision which we have reached in regard to the fourth submission of counsel for the petitioners it was essential for us to deal in detail with his first three arguments which could be determined on points of law alone. Had the petitioners been correct on any one of their first three points they would have succeeded in the case for, in such event, the owner of the building could have protested against any interference with his property and demanded that the order nisi be made absolute without any regard to the particular facts of this matter.

           

            As we have dismissed the three legal submissions of the petitioners and, after consideration of the facts, have also rejected their fourth submission, the order nisi will be discharged.

           

            As in this case, for the first time since the establishment of the State of Israel, legal points of general importance to the community have been raised, no order as to costs will be made against the petitioners.

Order Nisi Discharged.

Judgment given on October 19, 1948.

 

 

 

 

HCJ 9441/07

Mahmad Mesbah Taa Agbar

v.

1.         IDF Commander in Judaea and Samaria

2.         Military Appeals Court

3.         General Security Service

4.         Military Prosecutor

HCJ 9454/07

Tariq Yusuf Nasser Abu Matar

v.

1.         IDF Commander in Judaea and Samaria

2.         Military Appeals Court

3.         General Security Service

4.         Military Prosecutor

 

 

The Supreme Court sitting as the High Court of Justice

[20 December 2007]

Before Justices E.E. Levy, E. Rubinstein, Y. Danziger

 

 

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

 

Facts: In 2007, an administrative detention order was made against the petitioner in HCJ 9441/07 on the ground that he was active in the Hamas organization and presented a threat to security in the territories. The order was made for six months and was subsequently renewed for an additional period of  six months.

In 2006, an administrative detention order was made against the petitioner in HCJ 9454/07 on the ground that he was active in the Popular Front terrorist organization and presented a threat to security in the territories. The order was made for six months and was subsequently renewed for two further periods of six months.

The petitioners claimed that there was no evidence to show they presented a threat to security. The respondents argued, on the basis of privileged evidence, that the two petitioners did indeed present a threat to security.

 

Held: The main difficulty in administrative detention cases is that much of the evidence is privileged, because of the concern of revealing sources and intelligence methods and witnesses’ fears with regard to appearing in court. The risks in these contexts are real. A detainee does not have a proper and complete opportunity of defending himself against what is alleged against him; he is not shown most of the evidence, he cannot examine it and he is unable to conduct a cross-examination. This requires the court to be especially careful and to examine the evidence brought before it very carefully. When doing so, the court should regard itself as being a  ‘temporary defence counsel.’

Administrative detention is the last resort. Because of the manifestly problematic nature of administrative detention, every effort should be made to bring the detainee to a criminal trial.

In the specific cases, the evidence against the petitioners was sufficiently serious to justify their continued detention.

 

Petition denied.

 

Legislation cited:

Administrative Detentions (Temporary Provision) (Judaea and Samaria) Order (no. 1226), 5748-1988.

Administrative Detentions (Temporary Provision) (Judaea and Samaria) Order (Amendment no. 30) (no. 1555), 5765-2005, ss. 4(b), 6(a).

Defence (Emergency) Regulations, 1945.

Emergency Powers (Detentions) Law, 5739-1979, ss. 2, 2(a), 2(b), 4, 4(c) 5, 6, 7.

Law and Admininstration Ordinance, 5708-1948, s. 9.

 

Israeli Supreme Court cases cited:

[1]      ADA 8607/04 Fahima v. State of Israel [2005] IsrSC 59(3) 258.

[2]      ADA 2/82 Lerner v. Minister of Defence [1988] IsrSC 42(3) 529.

[3]      ADA 1/88 Agbariyeh v. State of Israel [1988] IsrSC 42(1) 840.

[4]      HCJ 5784/03 Salama v. IDF Commander in Judaea and Samaria [2003] IsrSC 57(6) 721; [2002-3] IsrSC 289.

[5]      ADA 8788/03 Federman v. Minister of Defence [2004] IsrSC 58(1) 176.

[6]      ADA 1/82 Kawasmah  v. Minister of Defence [1982] IsrSC 36(1) 666.

[7]      ADA 2/86 A v. Minister of Defence [1987] IsrSC 41(2) 508.

[8]      HCJ 4400/98 Braham v. Judge Colonel Shefi [1998] IsrSC 52(5) 337.

[9]      ADA 4794/05 Ofan v. Minister of Defence (unreported).

[10]    HCJ 2320/98 El-Amla v. IDF Commander in Judaea and Samaria [1992] IsrSC 52(3) 346.

[11]    CrimA 889/96 Mazrib v. State of Israel [1997] IsrSC 51(1) 433.

[12]    ADA 6183/06 Gruner v. Minister of Defence (unreported).

[13]    HCJ 5100/94 Public Committee against Torture v. Government of Israel [1999] IsrSC 53(4) 817; [1998-9] IsrLR 567.

[14]    HCJ 5555/05 Federman v. Central Commander [2005] IsrSC 59(2) 865.

[15]    HCJ 5994/03 Sadar v. IDF Commander in West Bank (unreported).

[16]    HCJ 297/82 Berger v. Minister of Interior [1983] IsrSC 37(3) 29.

[17]    CrimFH 2316/95 Ganimat v. State of Israel [1995] IsrSC 49(4) 589.

[18]    HCJ 1546/06 Gezawi v. IDF Commander in West Bank (unreported).

[19]    HCJ 3722/06 Gitt v. IDF Commander in West Bank (unreported).

[20]    HCJ 5287/06 Zatri v. Military Prosecutor (unreported).

[21]    HCJ 2233/07 A v. IDF Commander in Judaea and Samaria (unreported).

 

American cases cited:

[22]    Rasul v. Bush, 542 U.S. 466 (2004).

[23]    Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

 

English case cited:

[24]    R (Al-Jedda) v. Secretary of State for Defence [2007] UKHL 58 (decision of 13 December 2007).

 

Jewish law sources cited:

[25]    Babylonian Talmud, Sanhedrin 6b.

 

For the petitioner in HCJ 9441/07 — J. Boulus.

For the petitioner in HCJ 9454/07 — R. Mahagna.

For the first respondent — I. Amir.

 

 

JUDGMENT

 

 

Justice E. Rubinstein

Background and proceedings

1.    These are two petitions in which the petitioners are petitioning the court to order that the administrative detention orders made against them be set aside. The petitions were heard on the same day and give rise to similar questions, so this judgment is being given in respect of both petitions.

(a) The petitioner in HCJ 9441/07 (hereafter: the first petitioner), who was born in 1973, was detained on 29 March 2007, for six months, on the ground that he is active in the Hamas organization and is involved in activity that supports terrorism. On 5 April 2007 the order and the term stipulated therein  were approved by a Military Court judge (ADC (JS) 1729/07). The decision states:

‘I have been shown reliable,  quality, and updated intelligence information that indicates a definite risk to the security of the territory should the detainee be released, and the involvement of the detainee in current activity that endangers the security of the territory and the security of the public.’

The first petitioner’s appeal against this decision was denied by the Military Appeals Court in the territory of Judaea and Samaria on 9 May 2007 (ADA 2252/07). On 7 September the administrative detention was extended until 6 March 2008. On 9 September 2007 the detention order was approved (ADC (JS) 3077/07) and on 29 October 2007 the petitioner’s appeal against that decision was denied (ADA 3733/07).

(b) The petitioner in HCJ 9454/07 (hereafter: the second petitioner), who was born in 1989, was arrested on 15 September 2006 on the grounds of being active in the Popular Front terrorist organization. On 20 September 2006 an administrative detention order was issued against him for six months, and this was extended from time to time. On 10 September 2007 the military commander in the territory extended the administrative detention order until 13 March 2008. On 18 September 2007 the order and the term stipulated therein were approved (ADC (JS) 3138/07). In the decision the judge said that —

‘I have been shown quality, updated intelligence information that indicates a definite risk to the security of the territory should the detainee be released, and the involvement of the detainee in grave activities in support of terrorism in the Popular Front prior to his detention.’

The second petitioner’s appeal against this decision was denied by the Military Appeals Court on 17 October 2007 (ADA 3780/07).

The arguments in the petitions

2.    According to the first petitioner, the decision of the military commander is unreasonable in the extreme. He claims that the detention was based on old and unreliable intelligence information, and it amounts to a punitive act because the petitioner is a Hamas activist. He also argues that since the order was made in his case, he has not been interrogated and his rights have been seriously violated, because the information on which the order was based is privileged and he is not allowed to examine it. Finally he argued that a more proportionate alternative was not considered in his case.

The second petitioner claims that he has no criminal or security record, that no additional intelligence material was collected in his case after his detention, that the possibility of indicting him in a criminal trial rather than administrative detention was not considered, and that  no investigation effort was made to obtain evidence that would allow this. He argued that the longer his detention lasts, the greater the amount of evidence that is needed to justify the continuation of the detention. The second petitioner denies any activity in the Popular Front organization or that he planned to carry out a revenge attack for the death of ‘martyrs,’ as alleged against him. He claims that the activity under discussion was the desire of a group of students to honour the memory of one of the ‘martyrs’ in the school where he studied.

He argued that weight should attach to the passage of time since he was detained, his youth (he was detained before he turned seventeen), the fact that no security incidents were reported in the past in the area where he lives, and the calm that he claims currently prevails given the commencement of  political negotiations.His family also expressed a concern that in prison the second petitioner will associate with undesirable elements, go astray and not continue his studies.

3.    The respondents argue that the petitions should be denied. With regard to the first petitioner, they claim that ‘This is a petitioner who is a Hamas activist and endangers the security of the territory. These reasons necessitate the administrative detention of the petitioner, and there is no other measure that can neutralize the risk that he presents.’ With regard to the second petitioner, they claim that this is ‘a petitioner who is involved in serious terrorism-supporting activity in the Popular Front, and therefore he endangers the security of the territory. These reasons necessitate the administrative detention of the petition, and there is no other measure that can neutralize the risk that he presents.’ Therefore the respondents argue that there was no flaw in the decisions of the authorities that approved the detention orders with respect to the petitioners.

4.    (a) At the hearing before us, counsel for the first petitioner argued at length that the state’s reply is a standard reply that disguises an excessive use of the measure of administrative detention by means of expressions such as ‘terrorism-supporting activity.’ The interrogations that are carried out as a result of the courts’ decisions were not real interrogations but merely sham interrogations, even though the GSS knows very well how to conduct an interrogation. Questions were also raised with regard to the evidence, i.e., whether the information on which the state relied was accurate or not.

(b) Counsel for the second petitioner claimed that his client’s interrogation amounted to only three or four questions. The fact is that  the second petitioner is an inexperienced twelfth-grade high-school student. Older and more important persons than he were not detained. Not enough was done to indict him in a criminal trial. It was argued that the background to the arrest of the second petitioner, who comes from an ordinary family, was the fact that, together with friends at school, where social and political activity takes place, he sought  to conduct a students’ assembly in memory of someone who was killed by the IDF.

(c) Following the oral pleadings of counsel for the state, which reiterated its written pleadings, at the request of counsel for the petitioners we reviewed the privileged material ex parte and conducted a dialogue with representatives of the State Attorney’s office and the defence establishment.

(d) To complete the picture we should point out that the first petitioner was interrogated by the police on 26 March 2007. He was suspected of belonging to and being active in the Hamas organization. The first petitioner, who refused to sign, denied any connection to the organization and described himself as a taxi driver who was a graduate of the An-Najah University in the field of Islamic law. He was asked, inter alia, whether he recruited a certain person (whose name was mentioned) to Hamas, and he answered no. He also denied that he introduced that person to a military activist, he denied that he was a teacher of religious studies, except for classes at the mosque, and he confirmed that he took part in religious studies. He was asked specifically about certain persons.

(e) In his interrogation on 12 June 2007, the second petitioner was suspected of activity against the security of the territory and of  military activity in the Popular Front. He also refused to sign the statement since it was written in Hebrew. He denied the suspicions (incidentally, in his interrogation he said that he had also been interrogated previously), and he claimed that collaborators lied about him for payment. He denied that he intended to carry out military activity as revenge for the death of a ‘martyr’; he also said ‘that if there is anything against me, take me to the Russian Compound [Police Station] for interrogation, and I will prove to you that I am innocent.’

 

Deliberations

5.    This Court has said:

‘An administrative detention order that is made against someone is an exceptional measure that is taken by the competent authority, and it lies outside the ordinary set of laws that lay down the prior conditions for detaining a person. Administrative detention violates personal liberty. This violation is justified under the law only when special and exceptional conditions that require the use of this extreme and unusual measure are satisfied… For the purpose of administrative detention, a balance should be struck between the values of safeguarding the liberty and dignity of the individual and the need to protect the security of the state and the public. This balance is naturally a difficult one, but sometimes it is unavoidable because of the security realities of the state and society. When striking this balance, care should always be taken to ensure that the administrative detention order is used proportionately’ (ADA 8607/04 Fahima v. State of Israel [1], at p. 262, per Justice Procaccia).

This Court regards itself as duty-bound to remind itself of the foregoing from time to time. Administrative detention is the last resort, and it should remain so. The authorities therefore have a duty, notwithstanding the considerable burden that it imposes on them, to try to prosecute detainees in a criminal trial. This is also the reason that we patiently deal with such petitions which constantly come before us, even though in reality they are applications for leave to appeal to a third instance, and some of these petitions have no merit. Counsel for the petitioner does not always know the real facts, and they are disclosed in the privileged evidence. Indeed, our experience in very many administrative detention cases, if truth be told, is that the privileged material that we are authorized to see under the law at the request of the petitioners is usually serious and prima facie justifies detention, but it is based on methods of collecting information that cannot be disclosed because it may strongly harm the security interest in general or specific persons. There are of course exceptions to this, and in these cases  a the  dialogue in the courtroom occasionally persuades the state representatives to change their position. But it is quite likely  that in certain cases additional efforts to interrogate suspects would produce evidence that would allow a prosecution, without revealing what cannot be revealed.

 

Administrative detention and a criminal trial

6.    Hear it bears mention  that in a series of judgments this Court has called for the use of criminal trials to be preferred to the use of administrative detention. The ordinary criminal trial should certainly be preferred to the use of a power given to the Minister of Defence or the military commander in the territories to issue an administrative detention order (ADA 2/82 Lerner v. Minister of Defence [2] (per President Shamgar); ADA 1/88 Agbariyeh v. State of Israel [3] (per Justice Shlomo Levin); see also HCJ 5784/03 Salama v. IDF Commander in Judaea and Samaria [4], at p. 727 {296-297 (per President Barak); ADA 8788/03 Federman v. Minister of Defence [5] (per Justice Grunis). This position is obviously based on the fact that a criminal trial allows greater protection of the defendant’s rights. For this reason, this Court has issued a call — which, as will be explained below, has been heard — to interrogate all administrative detainees, inter alia in order to examine the possibility of bringing them to trial. Indeed, from a theoretical viewpoint, the criminal trial and the administrative proceeding are intended to serve different purposes. Whereas the criminal trial is retrospective and seeks to call a person to account for offences that have already been committed, the administrative proceeding is prospective and seeks to prevent the commission  of offences. The preference for criminal trials should be understood in three different contexts. First, in a criminal trial evidence is presented to the defendant and he has the opportunity of responding to it. Second, it sometimes happens that prospective plans in themselves constitute a criminal offence, such as forming an unlawful organization, offences of conspiracy and attempt. Third, in many cases criminal activity in similar contexts in the past testifies to a future threat. This was mentioned by the president of the Jerusalem District Court, Judge Yehuda Cohen, who said: ‘I am of the opinion that the detainee’s past, namely the offences that are attributed to him, is a warning light for the future’ (cited by President Yitzhak Kahn in ADA 1/82 Kawasmah  v. Minister of Defence [6]). For this reason, the criminal trial is preferable to the administrative proceeding, and that is why a proper interrogation is needed. For the reasons that will be explained below (see paragraph 9), the court that scrutinizes the administrative detention is shown intelligence evidence that testifies to past activity, but since its disclosure will almost certainly undermine security in the territory, there is no alternative but to rely on it as a basis for preventative detention that is prospective.

On administrative detention in Israel and the territories

7.    (1) Administrative detention in Israel proper is governed by the Emergency Powers (Detentions) Law, 5739-1979 (hereafter — the Emergency Powers (Detentions) Law or the law). The explanatory notes to the draft law (the draft Emergency Powers (Detentions and Miscellaneous Provisions) Law, 5738-1978, Draft Laws, 5738, 294) described the draft law as a solution to the criticism that had been levelled against the Defence (Emergency) Regulations, 1945, which were introduced in an attempt to subdue the Jewish underground organizations during the British Mandate. It was said that although —

‘… in the state of siege in which the state has found itself since its establishment, special measures are necessary to ensure the proper defence of the state against persons who plan to destroy it, nonetheless the existence of the extreme regulations that are still in force should not be acceptable, even though democratic countries employ similar regulations in less difficult circumstances.’

It was therefore proposed to that an Israeli law should be enacted to ‘satisfy security needs while safeguarding important principles of the rule of law.’ The use of the Emergency Powers (Detentions) Law is contingent upon the existence of a state of emergency under s. 9 of the Law and Administration Ordinance, 5708-1948, which, as is well known, has never been cancelled, because of the position in which Israel has been placed since it was declared when the state was founded. Section 2 of the law provides that the Minister of Defence may order administrative detention for a period that does not exceed six months if he has ‘a reasonable basis for assuming that reasons of state security or public security require a certain person to be held in detention’ (s. 2(a) of the law). The Minister of Defence may extend the period of detention from time to time by an additional six months (s. 2(b) of the law). Admittedly, on each occasion it is only possible to extend the order by six months, but there is no limit upon the number of extensions. If a person is arrested, he should be brought within 48 hours before the president of the District Court, who may approve the order, set it aside or shorten it. If he does none of the aforesaid, the detainee shall be released (s. 4 of the law). If the order is approved, the detainee should be brought within three months before the District Court for a de novo hearing (s. 5 of the law). An appeal of the decision shall be heard before the Supreme Court by one justice (s. 7 of the law).

(b) Administrative detentions in the territories are governed by the Administrative Detentions (Temporary Provision) (Judaea and Samaria) Order (Amendment no. 30) (no. 1555), 5765-2005 (hereafter — the Administrative Detentions Order), which was originally the Administrative Detentions (Temporary Provision) (Judaea and Samaria) Order (no. 1226), 5748-1988, that underwent many changes over the years, especially with regard to the periods of time stated therein. The detention order is issued by the military commander in the territory or someone who has been authorized by him. In this arrangement also the initial period of detention may not exceed six months, but the military commander is entitled to extend it from time to time.

(c) One of the differences between administrative detention in Israel and administrative detention in the territories lies in the timing of the judicial review. According to the provisions of the Administrative Detentions Order, the detainee should be brought before a military judge within eight days of the time of his arrest. In one case  this period was extended to 18 days, such as during the ‘Protective Shield ’ operation and the difficult struggle against suicide bombers in 2002. This is different from the law applicable in Israel, which, as stated above, requires the order to be subjected to judicial review within 48 hours. The grounds for setting aside a detention order are set out in s. 4(c) of the Emergency Powers (Detentions) Law and in s. 4(b) of the Administrative Detentions Order, and they are both worded in the same way, namely that it has been proved that ‘the reasons for which it was made were not objective reasons concerning the security of the territory or the security of the public, or that it was made in bad faith or as a result of irrelevant considerations.’ There are also provisions with regard to periodic judicial review. Both under the law that applies in Israel and under the law that applies in the territories, the judge may depart from the rules of evidence if he thinks that it is necessary to do so in order to discover the truth and to dispense justice (s. 6 of the law, s. 6(a) of the Administrative Detentions Order). These provisions naturally relate to the type of evidence that is used in such cases; the court inspects privileged material ex parte. Judicial review in the territories is exercised by a Military Court judge and his decision may be appealed before a judge in the Military Appeals Court; finally, petitions are frequently filed in this Court. The detainees are entitled to representation by lawyers, which they actually receive.

 

The nature of judicial review

8.    (a) To complete the picture we should mention that the Emergency Powers (Detentions) Law was preceded by Regulation 111 of the Defence (Emergency) Regulations, according to which the military commander was entitled to issue an order that a person should be placed in detention, without any trial, if he thought ‘that it was necessary or beneficial to make the order in order to safeguard the welfare of the public, to protect the State of Israel, to maintain public order or to subdue an uprising, rebellion or riot.’ The same applied to detention in the territories before the Administrative Detentions Order was enacted. In ADA 2/86 A v. Minister of Defence [7] Justice Bejski accepted the approach of Prof. Y.H. Klinghoffer (in his article, ‘Preventative Detention for Security Reasons,’ 11 Hebrew Univ. L. Rev. (Mishpatim) 286 (1981)), that since the law was enacted with its requirement of judicial review, we are no longer dealing with an administrative act; the court said (ibid. [7], at p. 513) ‘that the judicial review that is required by the provisions of the law is a safeguard against the arbitrariness of the administrative authority.’ I should mention the remarks of Prof. Klinghoffer in that article: ‘… the great principle of the rule of law, which provides that a person should not be deprived of his personal liberty unless a judge has so decided, is to some extent satisfied.’ In view of the aforesaid, the court does not merely examine, as it used to do, the legality of the administrative order, while refraining from replacing the discretion of the administrative authority with its own discretion, but it exercises independent discretion (per Justice Bejski, in A v. Minister of Defence [7], at p. 515; Klinghoffer, ibid., at p. 287). The scope of the review carried out by the president of the District Court when he considers an administrative detention is greater than the discretion given to the court in other contexts, when it examines the decisions of an administrative authority (HCJ 4400/98 Braham v. Judge Colonel Shefi [8], per Justice Or), and the same is true of the jurisdiction of the Supreme Court when it hears an appeal against a decision of the president of the District Court (for a comprehensive analysis of the Emergency Powers (Detentions) Law and the judicial discretion thereunder, see Federman v. Minister of Defence [5]; ADA 4794/05 Ofan v. Minister of Defence [9], per Justice Adiel). The authority of the military courts in the territories should be regarded in the same way (see para. (c) below).

(b) We should add that the Minister of Defence also does not have the authority to extend an administrative detention after the court decides that it should be shortened, subject to certain exceptions (HCJ 2320/98 El-Amla v. IDF Commander in Judaea and Samaria [10], at p. 362, per Justice Zamir). In that case, emphasis was placed on the importance of thorough and effective judicial review: ‘Judicial review is the guardian of liberty, and it should be carefully protected’ (ibid. [10], at p. 350, see also at p. 360); for a criticism of this approach, see A. Sharon, ‘Administrative Detention: Limits of Authority and Scope of Review,’ 13 Mishpat veTzava (Law and the Army: IDF Law Review) 205 (1999). See also my article, ‘Security and Law: Trends,’ 44 HaPraklit (Israel Bar L. Rev.) 409 (2000), which is also included in my book, Paths of Government and Law — Public Law Issues in Israel (Hebrew) (2003), at pp. 263, 270. For a discussion of the subject of administrative detentions and a critique of Prof. Klinghoffer’s approach regarding the status of the court, see E. Gross, The Struggle of Democracy against Terrorism: Legal and Moral Aspects (2004), at p. 289. I should add that, ultimately, even if the theoretical basis for the powers may be disputed, it is clear that the court, whether civil or military, is limited to the evidence brought before it, and ‘a judge only has what his eyes see’ (Babylonian Talmud, Sanhedrin 6b [25]). It may also be said that the power is regarded as ‘jointly’ exercised by the minister and the president of the court.

(c) As stated, the court has also applied the criteria practised in Israel to administrative detentions in the territories (El-Amla v. IDF Commander in Judaea and Samaria [10], at p. 361:

‘It would appear that despite the differences between the Emergency Powers (Detentions) Law that applies in Israel and the Administrative Detentions Order that applies in Judaea and Samaria, there is no basis for distinguishing in this respect between judicial review of a detention order under the Emergency Powers (Detention) Law and judicial review of a detention order under the Administrative Detentions Order.’

There is much logic in this, since, from a substantive viewpoint, what difference is there between a loss of liberty in Israel and a loss of liberty in the territories (in this regard, see also the article of N. Benisho, ‘Criminal Law in Judaea, Samaria and the Gaza Strip: A Brief Description and Trends,’ 18 Mishpat veTzava (Law and the Army: IDF Law Review) 293 (2005), on the subject of the general trend of equating the law in Israel and that of the territories.

Administrative detention: evidentiary  issues and privileged information

9.    (a) The main difficulty that gave rise to administrative detentions lies first and foremost in the evidentiary sphere. In practice, much of the evidence in these cases is privileged, usually because of the concern of revealing sources and intelligence methods and witnesses’ fears with regard to appearing in court (E. Nun, ‘Administrative Detention in Israel,’ 3 Plilim (Israel J. of Crim. Justice) 168 (1993), at p. 170). The risks in these contexts are real (see also Gross, The Struggle of Democracy against Terrorism: Legal and Moral Aspects, at pp. 298-299). Notwithstanding, it should be remembered that in this situation a detainee does not have a proper and complete opportunity of defending himself against the allegations against him he is not shown most of the evidence, he cannot examine it and is unable to conduct a cross-examination. This requires the court to be especially careful and to examine the evidence brought before it very carefully; the court should appoint itself ‘temporary defence counsel’ (CrimA 889/96 Mazrib v. State of Israel [11], at p. 463 (per Justice M. Cheshin) and act as ‘an advocate for the detainee, and examine the material brought before it scrupulously and thoroughly’ (Federman v. Minister of Defence [5], at p. 187; ADA 6183/06 Gruner v. Minister of Defence [12], per Justice D. Cheshin). The court has also said:

‘… and when the defence establishment operates within the limits of the law, with its hands tied in various contexts for good and proper reasons of human rights (see the remarks of President Barak in HCJ 5100/94 Public Committee Against Torture v. Government of Israel [13], at p. 845 {605}, on democracy and security), privileged material that is not shown to the person involved is a tool that cannot be avoided… Obviously, this  imposes a special and enhanced duty on judicial authorities in the military courts and this Court, when these matters come before it (and they do so almost on a daily basis), to examine the material  brought before them with care, as they act as a kind of advocate on behalf of the person for whom the material is privileged’ (HCJ 5555/05 Federman v. Central Commander [14], at p. 869).

(b) With regard to the evidence, the court should direct itself in accordance with the following:

‘Information relating to several incidents cannot be compared to information relating to a single incident; information from one source cannot be compared to information from various sources; and information that is entirely based on the statements of agents and informers only cannot be compared to information that is also corroborated or supported by documents filed by the security services or by intelligence obtained from carrying out special operations’ (HCJ 5994/03 Sadar v. IDF Commander in West Bank [15], per Justice Mazza).

Therefore the court not only hears counsel pleading for the Minister of Defence, but also explanations from members of the General Security Service (Federman v. Minister of Defence [5], at p. 189). The quantity and quality of evidence that is required in order to justify the administrative detention can and should change with the passage of time; evidence that was sufficient to justify the making of the administrative detention order may not be sufficient to justify an extension of that detention, and evidence that will justify an extension of an administrative detention order may not be sufficient to justify a further extension thereof (see Salama v. IDF Commander in Judaea and Samaria [4]). The security establishment should therefore take into account new relevant material (HCJ 297/82 Berger v. Minister of Interior [16], at p. 44, per Justice Barak), and it should continually act in order to obtain evidence, so that it may discover the truth in so far as that is possible.

The war against terrorism — the United States

10. (a) Other countries too have  contended with the problem of the war against terrorism, especially in recent years. The United States, for example,underwent  a difficult legal odyssey  since the terrorist attacks on 11 September 2001, and initially whoever was captured in Afghanistan or other places in the pursuit of Al-Qaida personnel who were behind the 11 September attacks was held at the Guantanamo Bay base outside the United States with a minimum of rights, according to the approach that these detainees were not subject to judicial review in the United States. For a brief description of the historical perspective of aspects of administrative detention at a time of crisis in the United States itself, see my article, ‘Public Law in Times of Crisis and Times of War,’ in my book, Paths of Government and Law — Public Law Issues in Israel, supra, at pp. 18, 20 (Hebrew). But in 2004 the United States Supreme Court decided in Rasul v. Bush [22], contrary to the administration’s position, that the Federal courts had jurisdiction to consider the detentions of alien nationals at Guantanamo Bay within the scope of habeas corpus, and the administration did not have the power to deny them access to the court. In terms of the Israeli experience — and unfortunately we have been compelled to acquire such experience over decades — granting a right of standing in the High Court of Justice to detainees who are situated in the occupied territories has been recognized for a very long time, since the decision of Attorney-General Meir Shamgar (later  president of the Supreme Court) after the Six Day War not to argue the lack of a right of standing. Since then, the cases of detainees in the territories have been heard by this Court. See M. Shamgar, ‘Legal Concepts and Problems in Military Government in the Territories Administered By Israel 1967-1980,’ The Israeli Military Government –The Initial stage, vol. l (M. Shamgar, ed.) at pp. 13, 56; E. Nathan, ‘The Power of Supervision of the High Court of Justice over Military Government,’ ibid, at p. 109; D. Shefi; ‘The Reports of the U.N. Special Committee on Israeli Practice in the Territories,’ ibid, at pp. 285, 306-308. See also J.M. Seltzer, ‘From a Chessboard to the Matrix: the Challenge of Applying the Laws of Armed Conflict in the Asymmetric Warfare Era,’ in War and Peace in the Jewish Tradition (L. Schiffman, J.B. Wolowelsky (eds.), R.S. Hirt (series editor), 2007). But the pendulum between personal rights and national security in the United States did not reach equilibrium after Rasul v. Bush [22], as we shall briefly explain (incidentally, I should point out that the expression of ‘rights vs. security’ that is commonly used in legal discussions is problematic, since the rights of victims and the public as a whole to security and life are also rights, but they are located on the ‘security’ side of the equation, and therefore perhaps the correct expression is ‘rights vs. rights,’ or the balancing of individual rights against the rights of the public in the war against terrorism; see by analogy the remarks of President Shamgar in CrimFH 2316/95 Ganimat v. State of Israel [17], at pp. 620-621).

(b) Following Rasul v. Bush [22], the United States administration decided to establish a network of military commissions for judicial proceedings relating to the detention of alien combatants. The United States Supreme Court considered this in Hamdan v. Rumsfeld [23]. It held in 2006 that the commissions had not been established with the necessary congressional authorization, and they therefore were not valid. It also held that the commissions did not provide the necessary procedural safeguards. Following this decision, the Military Commissions Act was enacted the same year. This law approved the commissions, and it also deprived the courts of power to hear habeas corpus petitions of detainees from Guantanamo Bay and persons in similar positions. Admittedly an appeal was permitted to the Court of Appeals in the District of Columbia (Washington D.C.), but under very limited conditions, including a presumption that the evidence before the commissions is accurate and complete. Currently, a third case is being heard (Boumediene v. Bush (D.C. Cir., 2006)), in which it is claimed by detainees at Guantanamo Bay that the procedure laid down in the Military Commissions Act that was passed after Hamdan v. Rumsfeld [23] does not sufficiently protect the rights of detainees with regard to evidence (hearsay testimony), representation by defence counsel and interrogation techniques. The administration argued in reply that the rights given to detainees under the Military Commissions Act were extensive. The Federal Court of Appeals accepted the administration’s position that in the absence of constitutional rights there was nothing improper in the fact that the Military Commissions Act of 2006 denied the Federal courts habeas corpus jurisdiction; therefore the detainees’ claims were not heard on their merits. The United States Supreme Court did not agree initially to hear the case, but it changed its mind and the matter is currently under consideration. The key question is whether the detainees are entitled under the United States Constitution to the right of habeas corpus and the right to a fair trial, since jurisprudential history in the United States allows an ‘adequate substitute’ to ‘formal’ habeas corpus by means of a ‘suspension clause,’ when that substitute is ‘adequate and effective.’

English case law — effective control and imperative reasons of security

11. Recently the House of Lords gave judgment in R (Al-Jedda) v. Secretary of State for Defence [24]. It was held in the judgment, which concerned detainees in Iraq who were being held by British forces, that they were being held under the effective command and control of the United Kingdom rather than the United Nations, as the Secretary of State argued. Notwithstanding, it was held that the UK was entitled to detain persons for ‘imperative reasons of security,’ while ensuring that the detainees’ rights under article 5(1) of the European Convention on Human Rights (which concerns detention) were not infringed to any greater extent than was inherent in such detention.

The criminal investigation

12. (a) This Court has on several occasions addressed the necessity of conducting a proper interrogation of someone held in administrative detention soon after being detained, in which the information that can be disclosed is shown to him. This should be regarded as a basic right:

‘Our approach… is based on the fundamental outlook regarding the rights of a person held in administrative detention, no matter how serious his actions are believed to be…

Within the basic scope of human dignity — and the rules concerning this apply to everyone, even to persons suspected of the most serious, despicable and depraved offences, whose perpetrators are as far removed from respecting human beings as the east is distant from the west — there is a duty to interrogate a person soon after his detention, and to disclose to him whatever information can be shown to him and is not privileged material that cannot be disclosed. The purpose, beyond allowing him to claim that he is a victim of mistaken identity and other similar claims, is that a person should not be detained without being given an opportunity, even if he makes no use of it, to present his side of the case in order to show, and to try and persuade the authorities, that there is no justification for his detention. As stated, what is shown to him should reflect the most that the unprivileged material allows to be disclosed. There is no need to speak at length about the fact that administrative detention is a serious sanction, because in view of the privileged nature of the evidence the detainee cannot contend with all of the accusations against him, and the court should act as his advocate (see Federman v. Central Commander [14], at p. 869)… Procedural rights are not luxuries; they also do not impose any real burden on the system (to remove doubt, they should exist even if they did impose a real burden)’ (HCJ 1546/06 Gezawi v. IDF Commander in West Bank [18], at para. 6 of my opinion).

See also HCJ 3722/06 Gitt v. IDF Commander in West Bank [19] and HCJ 5287/06 Zatri v. Military Prosecutor [20], where Justice D. Cheshin, after considering the reported or planned establishment of permanent arrangements for conducting interrogations at places of detention, said the following:

‘We would like to point out that the interrogation of the administrative detainee should admittedly be done on the basis of the unprivileged material, but it should be done by someone who is familiar with the details of the privileged material. There is no real purpose or significance to a meaningless interrogation. A proper interrogation should be practical, credible and effective, in a sincere attempt to obtain evidence to bring the administrative detainee to a criminal trial. To this end, the interrogator should have in his possession the privileged material relevant to the case.’

We should add that a proper interrogation should obviously not be conducted merely for the sake of appearances; it is precisely because of the manifestly problematic nature of administrative detention that, as aforesaid, every effort should be made to bring the detainee to a criminal trial.

(b) There are some interrogations where we see that the documentation is not satisfactory from the viewpoint of the effort made to obtain evidence that may be used for a criminal prosecution. Indeed, today — following the rulings of this Court — there is greater awareness of the need to carry out interrogations, and we have been informed of concerted efforts to do this. We are still of the opinion that there is room for improvement in this regard, to make the interrogations sufficiently meaningful. Although the evidence is mainly privileged for the reasons mentioned, in some cases there is a clue or room to manoeuvre that enables the conduct of a more through interrogation even though we are constantly being told of priorities and budgetary problems. Sometimes we even wonder why someone who is presented to us in privileged evidence as a person of considerable importance, or even a leading figure, is not interrogated in the framework of a comprehensive intelligence interrogation rather than a brief police one. For example, we should point out that in the present case, as far as the first petitioner is concerned, he was asked in the police interrogation of 26 March 2007 about the fact that someone, whose name is mentioned, said (admittedly in the year 2000) ‘that you recruited him to the Hamas organization.’ The first petitioner denied this. We do not know the significance of the passage of time in this context, but in such a case the current ‘criminal’ implications of this matter should be examined more thoroughly. Returning to the general principle, there is in our opinion room for more extensive and more thorough interrogations in order to reduce the number of administrative detainees.

On the art of striking a balance

13. Ultimately, in conditions of an unceasing war against ongoing terrorism, in which, day by day and hour by hour, both the security establishment and the court are called upon to strike a balance between security needs and human rights, it would appear that the use of the measure of administrative detentions is still an unavoidable necessity, but we should ensure, in so far as possible, that the use made of it is proper and proportionate. The art of striking a balance between the serious violation of individual liberties and the security of the public is complex:

‘The longer the period of administrative detention, the greater the weight of the detainee’s right to his personal liberty in the balance against public interest considerations, and the greater the burden on the competent authority to prove the necessity of continuing to hold the person in detention’ (HCJ 2233/07 A v. IDF Commander in Judaea and Samaria [21], per Justice Procaccia).

It is not superfluous to mention that administrative detention anticipates a future danger; it is not essentially a punitive measure, but a preventative one (Gruner v. Minister of Defence [12]; Fahima v. State of Israel [1]). Given this purpose of administrative detention, it is self-evident, as we have said, that orders that extend the period of administrative detention should be examined in accordance with the length of the detention and the extent of the threat that the detainee presents, or. as Justice Grunis said, a probability test should be conducted to examine whether harm to security is almost certain (Federman v. Minister of Defence [5], at p. 188). Ultimately —

‘Everything depends on the circumstances of the case. In each case the evidence before the security authorities should be examined in order to ascertain the extent of the threat presented by the detainee to see whether it justifies his continued detention. For example, the nature of the suspicions against the detainee, the strength of the existing evidence against him and similar considerations should be taken into account (Salama v. IDF Commander in Judaea and Samaria [4], at p. 728{297}) , per President Barak).

Morality and combat in a Jewish and democratic state

14. Israel, which is both a Jewish and a democratic state, has outlooks on combat morality that are based on Jewish law. As Rabbi Aharon Lichtenstein said (‘The Combat Morality of our Ancestor Abraham,’ 2006, Yeshivat Har Etzion web site): ‘We should continue to follow the path outlined by our ancestor Abraham [i.e., the manner in which he conducted his war] — to be sensitive to morality and justice even during war and combat that are just and right in themselves; see also Yaron Unger, ‘Do not Fear, Abraham — On Combat Morality in Israel,’ Portion of the Week (A. HaCohen, M. Vigoda, eds.), at p. 230; A. HaCohen, ‘I Am for Peace, But When I Speak, They Are for War — Law and Morality in Times of War,’ ibid., at p. 260.

Conclusion

15. Our intention in this judgment was merely to outline once again the judicial policy with regard to administrative detentions, and to mention once again, in addition to the fact that administrative detention is an unavoidable necessity, the duties of conducting a real interrogation, the need for great care in judicial scrutiny of privileged material, and the issue of proportionality. It would not be superfluous to also reiterate that bringing someone to a criminal trial, where it is possible, is far preferable to administrative detention.

From the general rule to the specific case

16. As we have said, with the consent of counsel for the petitioners, we examined the privileged evidence in their cases ex parte, and we conducted a dialogue with the representatives of the State Attorney’s office and the security establishment. We have been persuaded that there is a real basis to the respondents’ claim regarding the petitioners’ activity, according to updated information. We also considered the young age of the second petitioner, but the seriousness of the position could be seen from the material that we have seen, and the position is not as his counsel claimed. At the end of the day, we see no grounds for intervention in the decisions of the military courts, and we are unable to grant the petitions, subject to what was stated above. There is no order for costs.

 

 

Justice E.E. Levy

I agree.

 

 

Justice Y. Danziger

I agree.

 

 

Petition denied.

11 Tevet 5768.

20 December 2007.

 

HCJ 2605/05

1.  Academic Center of Law and Business, Human Rights Division

2.  Major-General (ret.) Shlomo Twizer

3.  Yadin Machness

v.

1. Minister of Finance

2. Minister of Public Security

3. A.L.A. Management and Operation (2005) Ltd

4. Knesset

 

 

The Supreme Court sitting as the High Court of Justice

[19 November 2009]

Before President D. Beinisch, Vice-President E. Rivlin
and Justices A. Procaccia, E.E. Levy, A. Grunis,
M. Naor, E. Arbel, S. Joubran, E. Hayut

 

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

 

Facts: The Knesset enacted the Prisons Ordinance Amendment Law (no. 28), 5764-2004 (‘amendment 28’), which provides that the State of Israel will establish, for the first time, a (single) prison that will be operated and managed by a private corporation rather than by the state. The constitutionality of this law was challenged by the petitioners, who argued that amendment 28 disproportionately violated the rights of prison inmates as a result of the actual transfer of imprisonment powers to a private enterprise, and as a result of the concern that human rights in a private prison would be violated to a greater extent than in a state-run prison.

 

Held: (Majority opinion — President Beinisch, Vice-President Rivlin, Justices Procaccia, Grunis, Naor, Arbel, Joubran, Hayut) Amendment 28 violates human rights disproportionately and is therefore unconstitutional.

(President Beinisch, Vice-President Rivlin, Justices Grunis, Naor, Arbel, Joubran, Hayut) The concern that human rights in a private prison will be violated more than in state managed prisons addresses a future violation of human rights, and there is no certainty that this will occur; therefore, it is questionable whether it constitutes a sufficient basis for setting aside primary legislation of the Knesset. However, the human rights of prison inmates are violated ipso facto by the transfer of powers to manage and operate a prison from the state to a private concessionaire that is a profit-making enterprise. The denial of personal liberty is justified only if it is done in order to further or protect an essential public interest, and therefore the question whether the party denying the liberty is acting in order to further the public interest (whatever it may be) or is mainly motivated by a private interest is a critical question that lies at the very heart of the right to personal liberty. Therefore, amendment 28 causes an additional independent violation of the constitutional right to personal liberty beyond the violation that arises from the imprisonment itself.

When the state transfers power to manage a prison, with the invasive powers that go with it, to a private profit-making corporation, it violates the human dignity of the inmates of that prison, since the public purposes that give imprisonment legitimacy are undermined and the inmates becomes a means for the private corporation to make profits (Justice Grunis reserved judgment on this issue).

The main public purpose underlying amendment 28 is the economic purpose of saving the state money.

The ‘additional’ violation of constitutional rights deriving from giving imprisonment powers to a private profit-making corporation is disproportionately greater than the ‘additional’ public benefit that will allegedly be achieved by amendment 28.

The unconstitutionality of amendment 28 requires it to be set aside in its entirety, because it is a comprehensive arrangement in its structure and content, in which the granting of the powers relating to using force against the inmates is an integral part. Were only the provisions concerning the granting of the invasive powers set aside, the remaining provisions would be unable to stand independently.

(Justice Procaccia) The legal justification and moral authority for violating the basic liberty of a person by means of imprisonment depend upon the exercise of authority being entrusted to organs of the state, which are the people’s representative in protecting the values of social order, on the one hand, and the basic rights of the individual, on the other. Transferring this power to a private enterprise undermines the legitimacy of law enforcement and sentencing, and the moral basis for exercising institutional authority over the individual offender.

The main purpose of amendment 28, as can be seen from its legislative background and context, is to promote the welfare of prison inmates by reducing overcrowding in the prisons, improving services provided in them and expanding the treatment and rehabilitation programmes available to the inmate. However, this benefit to the prison inmate and the economic benefit to the state are not commensurate with, and are even dwarfed by, the violation of the prison inmate’s core human rights that can be expected to result from entrusting sovereign authority to a private concessionaire. In the ethical sphere, the duty of protecting the core human rights of the prison inmate against a serious potential violation overrides the positive purpose of improving the living conditions of prison inmates and increased economic efficiency for the state.

(Minority opinion — Justice Levy) The state has not divested itself of its powers but merely exchanged them for supervisory powers. It is hard to see how this conflicts with the constitutional role of the government, and the mechanisms of indirect government should be examined on their merits.

It is premature to determine whether a private prison will violate human rights disproportionately. Time will tell. The law should be put to the test before the court reaches any conclusions on this matter.

 

Petition granted by majority opinion (President Beinisch, Vice-President Rivlin, and Justices Procaccia, Grunis, Naor, Arbel, Joubran and Hayut), Justice Levy dissenting.

 

Legislation cited:

Basic Law: The Judiciary, s. 15(d)(2).

Basic Law: Freedom of Occupation, s. 4.

Basic Law: Human Dignity and Liberty, ss. 1A, 2, 5, 8, 9.

Basic Law: the Army, ss. 2, 3.

Basic Law: the Government, ss. 1, 44(a).

Basic Law: the Knesset, ss. 7(8), 7(9), 7A.

Criminal Procedure Law [Consolidated Version], 5742-1982, s. 12(a)(1)(b).

Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996, ss. 23, 67.

Deferral of Service of Full-Time Yeshivah Students, 5762-2002.

Emergency Powers (Arrests) Law, 5739-1979.

Execution Law, 5727-1967, s. 5.

General Security Service Law, 5762-2002, ss. 3, 4.

Internment of Unlawful Combatants Law, 5762-2002.

Knesset and Local Authorities 5730 Elections (Funding, Limits on Spending and Scrutiny) Law, 5729-1969.

Parole Law, 5761-2001.

Penal Law, 5737-1977, art. B1.

Police Ordinance [New Version], 5731-1971, s. 8.

Prisons Ordinance [New Version], 5732-1971, ss. 45A, 76(a), 78, 95B, 95D, 95E, 128F, 128G(a), 128G(b), 128I, 128K, 128K(c)(1), 128L, 128L(a)(1), 128L(a)(2), 128L(a)(3), 128M, 128O, 128R, 128R(c)(1), 128R(c)(4), 128R(c)(5), 128S, 128U-128X, 128V-128X, 128Y, 128Z, 128AA, 128AB, 128AE, 128AF-128AG, 128AF-128AL, 128AJ, 128AO, 128AS-128BA, 128AW.

Prisons Ordinance Amendment Law (no. 28), 5764-2004.

Release from Imprisonment on Parole Law, 5761-2001, s. 9(7).

State Comptroller Law [Consolidated Version], 5718-1958, s. 9(6).

Taxes (Collection) Ordinance.

Torts (State Liability) Law, 5712-1952

o t applies the provs  provision e same way as civil servants. toerein or an inmate held in custody therein'wever, for decidingTreatment of Mentally Ill Patients Law, 5751-1991, s. 9.

 

Israeli Supreme Court cases cited:

[1]      AAA 7142/01 Haifa Local Planning and Building Committee v. Society for the Protection of Nature in Israel [2002] IsrSC 56(3) 673.

[2]      AAA 2273/03 Blue Island General Partnership v. Society for the Protection of Nature in Israel (unreported decision of 7 December 2006).

[3]      HCJ 3434/96 Hoffnung v. Knesset Speaker [1996] IsrSC 50(3) 57.

[4]      HCJ 4769/95 Menahem v. Minister of Transport [2003] IsrSC 57(1) 235.

[5]      HCJ 6055/95 Tzemah v. Minister of Defence [1999] IsrSC 53(5) 241; [1998-9] IsrLR 635.

[6]      CrimA 6659/06 Iyyad v. State of Israel (unreported decision of 11 June 2008).

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

[8]      CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [1995] IsrSC 49(4) 221; [1995] IsrLR 1.

[9]      HCJ 4128/02 Man, Nature and Law — Israel Environmental Protection Society v. Prime Minister of Israel [2004] IsrSC 58(3) 503.

[10]    HCJ 4634/04 Physicians for Human Rights v. Minister of Public Security (unreported decision of 12 February 2007).

[11]    PPA 4463/94 Golan v. Prisons Service [1996] IsrSC 50(4) 136; [1995-6] IsrLR 489.

[12]    CrimA 4424/98 Silgado v. State of Israel [2002] IsrSC 56(5) 529.

[13]    HCJ 164/97 Conterm Ltd v. Minister of Finance [1998] IsrSC 52(1) 289; [1998-9] IsrLR 1.

[14]    HCJ 5936/97 Lam v. Director-General of Ministry of Education, Culture and Sport [1999] IsrSC 53(4) 673; [1998-9] IsrLR 537.

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

[16]    HCJ 4884/00 Let the Animals Live Association v. Director of Field Veterinary Services at the Ministry of Agriculture [2004] IsrSC 58(5) 202.

[17]    HCJ 8340/99 Gorali Kochan & Co. Law Offices v. Attorney-General [2001] IsrSC 55(3) 79.

[18]    HCJ 1783/00 Haifa Chemicals Ltd v. Attorney-General [2003] IsrSC 57(3) 652.

[19]    HCJ 6427/02 Movement for Quality Government in Israel v. Knesset (unreported decision of 11 May 2006).

[20]    HCJ 355/79 Katlan v. Israel Prison Service [1980] IsrSC 34(3) 294.

[21]    HCJ 1163/98 Sadot v. Israel Prison Service [2001] IsrSC 55(4) 817.

[22]    CrimFH 10987/07 State of Israel v. Cohen (unreported decision of 2 March 2009).

[23]    HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [2006] IsrSC 60(1) 38; [2005] (1) IsrLR 340.

[24]    HCJ 1661/05 Gaza Coast Local Council v. Knesset [2005] IsrSC 59(2) 481.

[25]    HCJ 5578/02 Manor v. Minister of Finance [2005] IsrSC 59(1) 729.

[26]    HCJ 4947/03 Beer Sheba Municipality v. Government of Israel (unreported decision of 10 May 2006).

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

[28]    HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [2006] (1) IsrLR 443.

[29]    HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defence [2006] (2) IsrLR 352.

[30]    HCJ 693/91 Efrat v. Director of Population Registry, Ministry of Interior [1993] IsrSC 47(1) 749.

[31]    HCJ 1384/98 Avni v. Prime Minister [1998] IsrSC 52(5) 206.

[32]    HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [2006] (3) 464; [2005] (2) IsrLR 335.

[33]    CrimApp 3734/92 State of Israel v. Azazmi [1992] IsrSC 46(5) 72.

[34]    CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [1992] IsrSC 46(2) 464.

[35]    HCJ 337/84 Hukma v. Minister of Interior [1984] IsrSC 38(2) 826.

[36]    HCJ 5100/94 Public Committee Against Torture v. Government of Israel [1999] IsrSC 53(4) 817; [1998 9] IsrLR 567.

[37]    CrimA 4855/02 State of Israel v. Borovitz [2005] IsrSC 59(6) 776.

[38]    HCJ 39/82 Hanfling v. Mayor of Ashdod [1982] IsrSC 36(2) 537.

[39]    HCJ 2245/06 Dobrin v. Israel Prison Service [2006] (2) IsrLR 1.

[40]    LCA 4905/98 Gamzu v. Yeshayahu [2001] IsrSC 55(3) 360.

[41]    HCJ 7837/04 Borgal v. Israel Prison Service [2005] IsrSC 59(3) 97.

[42]    HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [1953] IsrSC 7 871; IsrSJ 1 90.

[43]    HCJ 153/83 Levy v. Southern District Commissioner of Police [1984] IsrSC 38(2) 393; IsrSJ 7 109.

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

[45]    HCJ 410/90 Bloom v. Knesset Speaker [1992] IsrSC 46(2) 201.

[46]    HCJ 5364/94 Welner v. Chairman of Israeli Labour Party [1995] IsrSC 49(1) 758.

[47]    HCJ 4676/94 Meatreal Ltd v. Knesset [1996] IsrSC 50(5) 15.

[48]    HCJ 10203/03 National Census Ltd v. Attorney-General (unreported decision of 20 August 2008).

[49]    HCJ 5009/97 Multimedia Co. Ltd v. Israel Police [1998] IsrSC 52(3) 679.

[50]    HCJ 5167/00 Weiss v. Prime Minister [2001] IsrSC 55(2) 455.

[51]    CrimFH 2316/95 Ganimat v. State of Israel [1995] IsrSC 49(4) 589.

[52]    HCJ 5319/97 Kogen v. Chief Military Prosecutor [1997] IsrSC 51(5) 67; [1997] IsrLR 499.

[53]    CrimA 40/58 Attorney-General v. Ziad [1958] IsrSC 12 1358.

[54]    PPA 7440/97 State of Israel v. Golan [1998] IsrSC 52(1) 1.

[55]    HCJ 4253/02 Kariti v. Attorney-General (unreported decision of 17 March 2009).

[56]    CA 975/97 Eilabun Local Authority v. Mekorot Water Company Ltd [2000] IsrSC 54(2) 433.

[57]    CA 8558/01 Eilabun Local Authority v. Mekorot Water Company Ltd [2003] IsrSC 57(4) 769.

[58]    HCJ 7721/96 Israel Loss Adjusters Association v. Commissioner of Insurance [2001] IsrSC 55(3) 625.

[59]    HCJFH 5361/00 Falk v. Attorney-General [2005] IsrSC 59(5) 145.

[60]    HCJ 2334/02 Stanger v. Knesset Speaker [2004] IsrSC 58(1) 786.

[61]    HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [2004] IsrSC 58(5) 807; [2004] IsrLR 264.

[62]    CrimA 7053/01 A v. State of Israel [2002] IsrSC 52(1) 504.

[63]    LHCJA 818/03 Zarka v. Israel Prison Service (unreported decision of 11 March 2003).

[64]    HCJ 5678/02 Physicians for Human Rights v. Minister of Public Security (unreported decision of 9 March 2003).

[65]    HCJ 1319/03 Israel Bar Association v. Minister of Public Security (unreported decision of 1 March 2004).

[66]    HCJ 572/04 Berry v. Minister of Justice (unreported decision of 6 April 2005).

[67]    HCJ 531/79 Petah Tikva Municipality Likud Faction v. Petah Tikva Municipal Council [1980] IsrSC 34(2) 566.

[68]    CA 404/61 Skivinskaya v. Uroshitz [1962] IsrSC 16(1) 347.

[69]    HCJ 731/86 Micro Daf v. Israel Electric Corp. Ltd [1987] IsrSC 41(2) 449.

[70]    HCJ 98/69 Bergman v. Minister of Finance [1969] IsrSC 23(1) 693; IsrSJ 8 13.

[71]    EA 1/88 Neiman v. Chairman of the Elections Committee for the Twelfth Knesset [1988] IsrSC 42(4) 177.

[72]    HCJ 410/91 Bloom v. Knesset Speaker [1992] IsrSC 46(2) 201.

[73]    EA 92/03 Mofaz v. Chairman of the Central Elections Committee for the Sixteenth Knesset [2003] IsrSC 57(3) 793.

[74]    HCJ 3511/02 Negev Coexistence Forum v. Ministry of Infrastructure [2003] IsrSC 57(2) 102; [2002-3] IsrLR 165.

[75]    HCJ 212/03 Herut National Movement v. Chairman of Central Elections Committee [2003] IsrSC 57(1) 750.

[76]    HCJ 1435/03 A v. Haifa Civil Servants Disciplinary Tribunal [2004] IsrSC 58(1) 529.

[77]    HCJ 4593/05 United Mizrahi Bank Ltd v. Prime Minister (not yet reported).

[78]    EA 1/65 Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [1965] IsrSC 19(3) 365.

[79]    HCJ 1074/93 Attorney-General v. National Labour Court [1995] IsrSC 49(2) 485.

[80]    HCJ 761/86 Miari v. Knesset Speaker [1988] IsrSC 42(4) 868.

[81]    HCJ 975/89 Nimrodi Land Development Ltd v. Knesset Speaker [1991] IsrSC 45(3) 154.

[82]    HCJ 4885/03 Israel Poultry Farmers Association v. Government of Israel [2005] IsrSC 59(2) 14; [2004] IsrLR 383.

 

American cases cited:

[83]    Pischke v. Litscher, 178 F. 3d 497 (7th Cir. 1999).

[84]    Montez v. McKinna, 208 F. 3d 862 (10th cir. 2000).

[85]    White v. Lambert, 370 F. 3d 1002 (9th cir. 2004).

[86]    Tulsa County Deputy Sheriff's Fraternal Order of Police v. Board of County Commissioners of Tulsa County, 2000 OK 2 (2000).

[87]    Richardson v. McKnight, 521 U.S. 399 (1997).

[88]    Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001).

[89]    Skelton v. Pri-Cor, Inc., 963 F. 2d 100 (6th Cir. 1991).

[90]    Rosborough v. Management and Training Corporation, 350 F. 3d 459 (5th Cir. 2003).

 

For petitioners 1-2 — G. Barnea, A. Wasserman, E. Michaely, Y. Berda.

The third petitioner represented himself.

For respondents 1-2 — Y. Genessin, R. Giladi, R. Keidar.

For the third respondent — Y. Shalheveth, B. Fiel, R. Kook, O. Roth.

For the fourth respondent — N. Elstein, R. Scherman-Lamdan, I. Eshet.

 

 

JUDGMENT

 

 

President D. Beinisch

The Prisons Ordinance Amendment Law (no. 28), 5764-2004 (hereafter: ‘amendment 28’), provides that the State of Israel will establish for the first time a (single) prison that will be operated and managed by a private corporation rather than by the state. The arrangement provided in amendment 28 leads to a transfer of basic powers of the state in the field of law enforcement — imprisonment powers — the exercise of which involves a continuous violation of human rights, to a private profit-making corporation. As we shall explain below, this transfer of powers violates the constitutional rights to personal liberty and human dignity, which are enshrined in the Basic Law: Human Dignity and Liberty. The question of the constitutionality of this violation lies at the heart of the petition before us. It should already be said at the outset that, for the reasons that will be set out below, we have arrived at the conclusion that the aforesaid amendment does not satisfy the test of constitutionality.

The main facts and the arguments of the parties

1.    On 31 March 2004, amendment 28 of the Prisons Ordinance [New Version], 5732-1971 (hereafter: ‘the Prisons Ordinance’) was published. According to the amendment, chapter C2 was added to the Ordinance. This chapter is entitled ‘Privately managed prison.’ The amendment, which resulted in the addition of sections 128F-128BB, regulates the establishment of one prison that will be built, managed and operated by a private corporation, which will enter into an agreement for this purpose with the Israel Prison Service and act as a concessionaire in accordance with a special permit that it will receive. The amendment provides, inter alia, the procedure for granting and cancelling the permit, the qualifications that should be satisfied by the corporation and its employees, the scope of the powers of the corporation’s employees and the supervisory measures that the state is required to undertake with regard to the activity of the corporation and its employees. In the Third Schedule to the Prisons Ordinance, it is provided that the privately managed prison will be constructed in the prison compound south of the city of Beer-Sheba, and its maximum capacity will be eight hundred inmates. The Schedule also lays down the conditions that should be satisfied with regard to inmates that will be imprisoned in the privately managed prison.

The petition before us was filed on 16 March 2005. The first petitioner is an academic institution, which is acting as a public petitioner in the petition before us. The second petitioner is a retired senior officer in the Israel Prison Service. The third petitioner, who was subsequently joined as a party to the petition at his request, was, on the date that he was joined as a petitioner, an inmate of a prison managed by the Israel Prison Service. On 27 October 2005 an initial hearing of the petition took place before a bench of three justices. On 15 November 2005, the third respondent (hereafter: ‘the concessionaire’) was chosen as the winning group in the tender for the construction and operation of the private prison, and the concession agreement was signed with it on 2 January 2006. On 18 June 2006 a further hearing of the petition was held before a bench of seven justices, which was presided over by President A. Barak. Following this, an order nisi was made. On 31 August 2006, following a further hearing that took place before a bench of nine justices, and after the court was notified by the Knesset’s legal adviser that draft laws had been tabled to repeal amendment 28, it was decided to postpone the hearing of the petition in order to allow the legislative proceedings that had apparently been restarted in the Knesset to be exhausted. Since these proceedings did not progress and the legal position set out in the statute under discussion was not changed, on 8 July 2007 we heard the actual petition. While the hearing of the petition was taking place, the proceedings for setting up the privately managed prison also progressed, and the third respondent was given the permit required under the law. The construction of the prison and its preparation for the initial partial admission stage were supposed to be completed by June 2009, but on 18 March 2009 we made an interim order that prevented the prison being put into operation. It should be noted that the delay that has occurred in giving this judgment derived from the complexity of the issues under consideration, which raised constitutional questions of significant importance that have not yet been decided in our case law, but mainly from the court’s desire to allow the Knesset to exhaust the legislative proceedings mentioned above and the public debate that the Knesset wished to hold on the privatization phenomenon during the 2007-2008 winter session, as stated in the Knesset legal adviser’s notice of 28 June 2007, before we considered the complex question concerning the setting aside of primary legislation of the Knesset.

2.    The petition is directed at the constitutionality of amendment 28 of the Prisons Ordinance, and the petitioners’ argument is that this amendment should be regarded as a choice by the state ‘to carry out a complete privatization of prisons in Israel.’ As will be explained below, the petition has two main arguments.

In the first argument the petitioners claim that a complete privatization of the prisons constitutes an unconstitutional violation of the constitutional rights to personal liberty and human dignity. In this context, the petitioners claim that several factors combine in this respect to cause an unconstitutional violation of constitutional basic rights. The main cause of this lies in the combination of the following: the nature of the powers that are being privatized, which include the actual power of imprisonment and the powers relating to the human dignity of the inmate and his personal liberty (such as holding a prisoner in administrative isolation, carrying out an external examination of a inmate’s naked body and using reasonable force to carry out a search on an inmate); the low standards that have been set, according to the petitioners, for staffing the positions in the privatized prison in comparison to the standards in the Israel Prison Service; and the inadequate supervision, according to the petitioners, of the actions of the private enterprise that will operate the prison. The petitioners claim that this combination is likely to lead to a violation of the inmates’ rights to liberty and human dignity in the privatized prison. According to the petitioners, this expected violation of constitutional basic rights does not satisfy the limitations clause tests laid down in s. 8 of the Basic Law: Human Dignity and Liberty.

It is argued that a violation of the basic principle that the power to enforce criminal judgments is exercised exclusively by the state, in order to achieve an economic purpose, is not a violation that is made for a proper purpose. The petitioners argue that it is also not a proportionate violation. In this respect, the petitioners claim that from the viewpoint of whether the chosen means will lead to the desired purpose, they have expert opinions that indicate that experience around the world does not show a clear connection between the privatization of prisons and an economic saving; that there are other less harmful measures that are capable of realizing the economic purpose underlying amendment 28, including the building of additional public prisons or a partial privatization that only involves powers that do not contain a predominant element of the exercise of sovereign power; and that the damage that will result from a complete privatization of prisons is disproportionate to the benefit that will arise from such a privatization (especially, according to the petitioners, in comparison to the possibility of a partial privatization of prisons).

3.    In the other argument, the petitioners claim that amendment 28 constitutes a violation of the constitutional rule laid down in s. 1 of the Basic Law: the Government, according to which ‘The government is the executive branch of the state.’ The reason for this is that the power of the state to operate prisons constitutes, according to the petitioners, a part of its authority to exercise executive power in order to enforce the law and maintain the peace; and as such the power lies at the heart of the basic principle that ‘The government is the executive branch of the state.’ According to the petitioners, since the Basic Law: the Government is a Basic Law, its normative status is a super-legislative one, and therefore any ordinary law that violates it should satisfy two requirements, one formal and the other substantive.

First, in the formal sphere, the petitioners argue that the violating law should be passed by a majority of at least 61 members of the Knesset in each of the three readings, according to the entrenchment provision set out in s. 44(a) of the Basic Law: the Government. Since amendment 28 was not passed with this majority, the petitioners claim that this alone should lead to its being set aside. Second, in the substantive sphere, the petitioners claim that the violating law should satisfy the tests of the limitations clause. The petitioners argue that these tests should also be applied, by way of judicial interpretation, to laws that violate the Basic Laws that concern the organs of the state, such as the Basic Law: the Government, even though these Basic Laws do not contain an express limitations clause like the ones provided in the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation.

4.    It should also be mentioned that we also heard the arguments of the third petitioner, Mr Yadin Machness, who at that time was serving a custodial sentence at Maasiyahu Prison. The third petitioner’s arguments focused on the practical aspects relating to the services provided to inmates in the prisons of the Israel Prison Service, in fields such as health, food and education. According to him, there is a concern that the standard of these services will decrease in the privately managed prison as a result of the economic considerations that will motivate the concessionaire operating the prison. The third petitioner also raised in his arguments a concern that use will be made of the various powers given to the private concessionaire in such a way that will allow the concessionaire to worsen the conditions of the inmates in the privately managed prison and punish them, without it first being necessary to charge the inmates in disciplinary proceedings, for which the Israel Prison Service remains responsible, even under amendment 28.

5.    All of the respondents oppose the granting of the petition. Replies to the petition were filed by respondents 1-2 (hereafter: ‘the state’), the concessionaire and the Knesset. In its reply to the petition, the state says that the construction of a privately managed prison is one of the solutions planned by it for contending with the serious shortage of prisons in Israel, and this is the main purpose underlying the enactment of amendment 28. The state also claims in the affidavit in reply that in addition to an improvement of the inmates’ prison conditions, the construction of the prison that is the subject of the petition is very much in the public interest, since it will lead to an economic saving of an estimated amount of approximately 20-25 per cent in comparison to a prison of similar standards operated by the Israel Prison Service, and on the basis of experience around the world it can be estimated that the construction of a private prison may also lead to greater efficiency in state-run prisons.

According to the state, the privatization model adopted in amendment 28 of the Prisons Ordinance is a unique and experimental model, which constitutes a ‘pilot’ test that is expressly limited to one prison and includes mechanisms to protect the rights of the inmates and effective supervision and intervention mechanisms that are available to the state and will allow it, inter alia, to reverse the process at any stage and take back control of the prison because of a breach of the terms of the permit given to the concessionaire. The state emphasizes in its pleadings that the existence of a real concern of a serious violation of inmates’ rights is one of the grounds provided in amendment 28 for the state to take away the power to manage the prison from the concessionaire. In this regard, the state further argues that amendment 28 provides measures for supervising the manner in which the concessionaire exercises the powers granted to it: these include the activity of the designated supervision unit of the Israel Prison Service inside the prison (even though the location of the supervision unit was not stipulated in amendment 28 itself, but only in the concession agreement and the permit); the supervisory powers given to the state with regard to the appointment of officers in the privately managed prison; and the extensive reporting duties imposed on the concessionaire with regard to various incidents, both under amendment 28 and under the concession agreement. According to this argument, the supervisory measures will guarantee the prison inmates’ rights. The state also points out that amendment 28 also provides that the permit for operating the prison and the concession agreement may be revoked by the state, if the permit’s conditions are breached.

The state also goes on to say that, under s. 15(d)(2) of the Basic Law:  The Judiciary and according to the case law of this court, from the moment that the concessionaire receives sovereign powers, it becomes directly subject to both administrative law and the jurisdiction of the High Court of Justice, without even resorting to the doctrine of the dual-nature corporation. In addition to the judicial scrutiny of the High Court of Justice to which the concessionaire is subject, the state says that an inmate in the privately managed prison, like every inmate in the Israel Prison Service, has the right to file a prisoner’s petition to the District Court under the provisions of the Prisons Ordinance. This possibility of judicial scrutiny of the prison conditions constitutes, according to the state, an independent and very powerful means of supervision and control that is available to every inmate at all times. Additional control mechanisms with regard to the activity of a privately managed prison to which the state refers are the scrutiny of the State Comptroller, since the concessionaire is an audited body within the meaning of this term in s. 9(6) of the State Comptroller Law [Consolidated Version], 5718-1958, and the scrutiny of an advisory committee chaired by a retired District Court justice. According to amendment 28, this committee will advise the Commissioner of Prisons on the subject of upholding the rights of inmates in the privately managed prison, and also on the subject of their rehabilitation, welfare and health, and it shall submit its recommendations to the Minister of Public Security, the Commissioner of Prisons and the Internal Affairs and Environment Committee of the Knesset once a year. In view of the aforesaid, the state argues that there is no basis for the claim that it has divested itself of its powers, and it adds that in the Israeli model chosen for the privatization of the prison, a significant part of the sovereign powers is retained by the state.

The state goes on to argue that the rights of the inmates will be guaranteed not merely by the mechanisms provided in the law itself but also in the administrative sphere, by the permit for constructing and operating the prison, as well as in the contractual sphere, by the concession agreement with the concessionaire. In this regard, the state says that various powers that are potentially particularly harmful and are not essential for the ongoing management of the prison (which are given to governors of prisons managed by the state) were not given by amendment 28 to the governor acting on behalf of the concessionaire. The state also says that, even if this court holds, contrary to its position, that amendment 28 violates constitutional human rights to a greater extent than the violation of prison inmates’ rights under the general law, this violation satisfies the tests of the limitations clause.

6.    Regarding the provisions of s. 1 of the Basic Law: the Government, which provides that ‘the Government is the executive branch of the state,’ the state claims that this provision is intended to define in a ‘ceremonial’ manner the nature and character of the government in relation to the other organs of state. According to the state, the purpose of this provision does not concern any specific executive power at all, merely the general position of the government within the democratic system. The state goes on to argue that in any case the government carries out its functions as the executive branch in a variety of ways, including by relying on private entities. Therefore the government does not stop acting as ‘the executive branch of the state’ when it carries out its functions through private entities or delegates certain powers to them. The state goes on to argue that even if s. 1 of the Basic Law: the Government can be used to set aside the delegation of powers made pursuant to a statute, there is no basis for using it to disqualifying amendment 28, since the privately managed prison will be run with the full involvement of the state, and therefore the amendment will not undermine the principle that the government is the executive branch of the state. The state further argues that even if amendment 28 can be regarded as a violation of the principle provided in the Basic Law: the Government, it is a negligible and very remote violation that lies at the margin of the principle and not at its centre.

The state also says that the Israeli model chosen for entrusting a prison to private management is based on the English model that is characterized by a regulatory approach, according to which the supervision of the activity of the private concessionaire is carried out by state inspectors who are stationed inside the supervised prison. Notwithstanding, according to the state, the Israeli model of delegating powers to manage one prison to a private concessionaire is more moderate with regard to the powers given to the concessionaire and more comprehensive, compared to similar legislative models in other countries, with regard to the powers to supervise the concessionaire, and it should therefore be regarded as an ‘improved English model.’

In view of the aforesaid, the state claims that since the petition challenges a privatization determined by law, which does not violate constitutional rights, the intervention of the court should be limited to rare and extreme cases, in which the privatization shakes the foundations of democracy and the fundamental principles of the system of government; according to the state, circumstances of this kind do not exist in the case before us.

7.    The concessionaire that was chosen in the tender to build and operate the privately managed prison also argues that the petition should be denied. It argues that not only will the operation of a privately managed prison not harm the liberty, dignity and rights of the inmates, but it will result in an improvement of their conditions, because of the high standards laid down by the state in the minimum requirements of the tender for the construction and operation of the prison (standards that the concessionaire claims it undertook to improve upon) and because of the extensive supervisory powers retained by the state. The concessionaire emphasizes in its reply to the petition the importance that it attaches to the social goals that the prison is intended to realize, including the rehabilitation and education of the inmates. The concessionaire further argues that there is no basis to the petitioners’ claims regarding the concern of a violation of inmates’ rights as a result of the legislation of amendment 28. In this context, the concessionaire argues that the petitioners’ claim that the running of a prison with the assistance of a private enterprise necessarily leads to a greater danger of a violation of inmates’ basic rights than a prison entirely managed by the state needs to be proved factually on the basis of research and empirical evidence; according to the concessionaire, however, the petitioners did not even attempt to discharge this heavy burden. The concessionaire goes on to argue that even if amendment 28 violates a constitutional right protected in the Basic Law: Human Dignity and Liberty, that violation satisfies the conditions of the limitations clause. With regard to the third petitioner’s arguments regarding the concern that the concessionaire’s economic motives will result in a deterioration in the inmates’ prison conditions at the privately managed prison, the concessionaire argues that these claims do not address the constitutionality of amendment 28, merely the manner in which it is implemented, and in any case they are without merit, in view of the high standard for operating the prison set out in the conditions of the tender, the concession agreement and the concessionaire’s bid.

With regard to the petitioners’ claims that are founded on the provisions of s. 1 of the Basic Law: the Government, the concessionaire argues that this provision is a declarative constitutional provision that does not prevent a delegation of powers by the government, or the state availing itself of the assistance of private enterprises to carry out its duties.

8.    An additional argument that is raised both by the state and by the concessionaire is the claim of laches. The state and the concessionaire say that the petition before us was filed approximately a year after the Knesset enacted amendment 28, without any justification for the delay in filing the petition. In this respect, it was argued by the state and the concessionaire that the delay in filing the petition adversely changed their position, since by the date of filing the petition they had already gone to considerable expense and invested significant work and time in the project — the state in preparing the tender and the documents of the tender, and the concessionaire in studying the documents of the tender and preparing a detailed bid for the tender. It was also argued that the cancellation of the project at a late stage would harm the foreign parties who had entered into contracts with the concessionaire and relied on the legislation of the Knesset, and it might even prejudice the attractiveness of the State of Israel to foreign investors and experts, as well as other national projects requiring large investments. We should already point out at this stage that we see no reason to dismiss the petition on the ground of laches. Even if we assume in favour of the state and the concessionaire that the rules of laches also apply to constitutional petitions, and that in the present case there were both an objective delay and a subjective delay on the part of the petitioners, in view of the constitutional importance of the issues raised in the petition — both from the viewpoint of the principles of the system of government in Israel and from the viewpoint of the effect on the human rights of prison inmates — there is no basis for dismissing this petition because of the delay in filing it (with regard to the tests for examining a claim of laches, see, for example: AAA 7142/01 Haifa Local Planning and Building Committee v. Society for the Protection of Nature in Israel [1], at pp. 678-679; AAA 2273/03 Blue Island General Partnership v. Society for the Protection of Nature in Israel [2], at paras. 86-101 of the judgment).

9.    In addition to the replies of the state and the concessionaire, we also heard the position of the Knesset with regard to the petition. According to the Knesset, s. 1 of the Basic Law: the Government, which it will be recalled is the basis for the petitioners’ constitutional argument concerning the state divesting itself of its powers, does not contain any provision with regard to the manner of carrying out the government’s powers; it does not contain any provision that restricts the Knesset’s power to permit the government to act in various ways to discharge its executive function; nor does the section provide criteria for examining the constitutionality of laws. Therefore, the Knesset claims that s. 1 of the Basic Law: the Government is not relevant at all when considering the constitutionality of amendment 28. The Knesset goes on to argue that there is no basis for examining the constitutionality of the amendment in accordance with the provisions of a ‘judicial limitations clause’ that is based on the limitations clauses provided in the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation. In this respect the Knesset argues that no clear case law ruling has yet been made that the Knesset’s legislative power is limited by the tests in the limitations clause even when the relevant Basic Law does not have an express limitations clause, and it adds that a substantive restriction of the kind that is found in the limitations clause in the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation is unsuited to the examination of legislation that prima facie conflicts with a provision in a Basic Law that concerns the organs of the state. It should be noted that in so far as the concrete question of the privatization of prisons is concerned, the Knesset included in its arguments a comprehensive description of the phenomenon of prison privatization around the world. The Knesset emphasized that this is a ‘hard case’ of privatization and it argued that the state needs to carry out close supervision of the private entity, and that the concessionaire should be made subject to the rules of public law.

Deliberations

10. Amendment 28 of the Prisons Ordinance, whose constitutionality is being challenged by the petitioners in this case, introduced a material change in the sovereign outlook of our system of government; it departs from the ordinary and accepted outlook of privatizing government activities in that it gives a private concessionaire various powers that, when exercised, necessarily involve a serious violation of human rights. In this petition we are required to decide whether granting these powers to a private concessionaire, i.e., privatizing these powers, is constitutional (with regard to the various definitions of the concept of privatization, see Y. Katz, Privatization in Israel and Abroad (1997), at pp. 23-30). On this question, our approach will be as follows: first, we shall address the nature of the arrangement provided in amendment 28. Thereafter, we shall consider in brief the scope of judicial review of Knesset legislation. Our main deliberations on the question of the constitutionality of amendment 28 will focus on the Basic Law: Human Dignity and Liberty. At the end of our deliberations we shall address the arguments of the parties regarding the constitutional scrutiny of the amendment from the viewpoint of the Basic Law: the Government. It should immediately be pointed out that in view of the conclusion we have reached, that the amendment under discussion does not satisfy the constitutionality tests in the Basic Law: Human Dignity and Liberty, various questions that arise with regard to the constitutionality of the amendment from the viewpoint of the Basic Law: the Government do not require a decision.

The nature of the arrangement provided in amendment 28

11. The following are the main relevant provisions that were introduced by the aforesaid amendment 28.

Section 128G(a) of the Prisons Ordinance provides that ‘The service [i.e., the Israel Prison Service] may, for the purpose of carrying out its functions as stated in section 76, rely on a corporation’ that satisfies certain minimum requirements stipulated in the section, ‘and to this end it may enter into an agreement with it to construct, manage and operate one prison’ (it should be noted that the functions of the Israel Prison Service are defined in general terms in s. 76(a) of the Prisons Ordinance, which provides that the Israel Prison Service ‘shall engage in the management of the prisons, the security of inmates and everything entailed therein’). The corporation to which s. 128G(a) of the Prisons Ordinance refers is therefore the concessionaire, which is supposed, according to the provisions of amendment 28, to construct, manage and operate the ‘privately managed prison.’ The various powers given to the concessionaire under amendment 28 are naturally derived from the scope of the responsibility imposed on it. Section 128L of the Prisons Ordinance defines the spheres of responsibility imposed on the private concessionaire in the following terms:

‘Responsi­bility of the concession­aire

128L. (a) The concessionaire is responsible for the proper construction, management and operation of the privately managed prison, including:

 

(1) maintaining order, discipline and public security in the privately managed prison;

 

(2) preventing the escape of inmates that are held in custody in the privately managed prison;

 

(3) ensuring the welfare and health of the inmates and taking steps during the imprisonment that will aid their rehabilitation after the release from imprisonment, including training for employment and providing education;

 

all of which in accordance with the provisions of every law and the provisions of the agreement and while upholding inmates’ rights.

 

(b) The concessionaire shall adopt all the measures required in order to discharge his responsibility as stated in subsection (a), including measures as aforesaid that are stipulated in the agreement, and inter alia he shall appoint for this purpose the concessionaire’s governor and employees in accordance with the provisions of this chapter.’

The powers of the concessionaire and its employees, whose privatization within the framework of amendment 28 lies at the heart of the petition before us, are those powers that are derived from the spheres of responsibility provided in ss. 128L(a)(1) and 128L(a)(2) of the Prisons Ordinance, namely the responsibility of maintaining order, discipline and public security in the prison and the responsibility of preventing the escape of inmates that are held in custody in the prison. In order that the private concessionaire that manages and operates the prison can discharge its responsibility in these fields, the governor of the private prison on behalf of the concessionaire and the concessionaire’s employees (subject to several important exceptions) were given various powers, which are parallel to the powers given to the governor of an Israel Prison Service prison and the prison employees that are subordinate to him. Exercising these powers — and this petition is directed against granting them to a private concessionaire rather than against their actual existence — naturally entails a serious violation of various human rights, including the right to life, the right to personal liberty and the right to human dignity. Below we shall discuss several of the powers given to the private concessionaire’s employees at their various levels.

12. The powers of the governor of the privately managed prison are defined in s. 128R of the Prisons Ordinance, which states the following:

‘Functions and powers of the governor of a privately managed prison

128R. (a) The governor is responsible for the proper management and operation of a privately managed prison, as stated in section 128L(a), and in this respect all of the provisions under this Ordinance that apply to a prison governor shall apply to him, subject to the provisions of this section.

 

(b) In order to carry out his functions as stated in subsection (a), the governor shall be given the powers given to a governor of a prison under this Ordinance and under every other law, except for the powers according to service orders and the following powers:

 

(1) Making an order to transfer an inmate because of a contagious disease, under the provisions of section 13(b);

 

(2) Extending a period during which an inmate is held in isolation under the provisions of section 19C(a);

 

(3) Confiscating a possession under the provisions of section 44;

 

(4) Jurisdiction regarding prison offences under the provisions of article 8 of chapter 2;

 

(5) The power of an examiner with regard to a letter to a member of Knesset under the provisions of section 47D;

 

(c) In addition to the powers given to the governor under the provisions of subsection (b), he shall also be given the following powers:

 

(1) The power given to a senior prison officer to order the holding of a prisoner in isolation, under the provisions of section 19C(a);

 

(2) The power to order the conducting of an external examination of the naked body of a prison inmate, when he is admitted into custody, as stated in section 95D;

 

(3) The power given to an Israel Prison Service officer to order the conducting of an external examination of the naked body of a prison inmate, under the provisions of section 95E(b);

 

(4) The power given to an Israel Prison Service officer to approve the use of reasonable force in order to conduct a search on a prison inmate, under the provisions of section 95F(b);

 

(5) The power given to an Israel Prison Service officer to order the taking of a urine sample from a prison inmate, an external examination of his naked body or the making of an external search, under the provisions of sections 95H(a) and 95I(c);

 

(6) The power given to an Israel Prison Service officer to order the conducting of an external examination of the naked body of a visitor under the provisions of section 95J(b);

 

(7) The powers given to a prison security guard under the provisions of section 128AA.’

A study of the provisions of the aforementioned s. 128R shows that although the governor of the privately managed prison was not given important powers that are given to the governor of an Israel Prison Service prison (including the power to extend the period for holding an inmate in administrative isolation for more than 48 hours and jurisdiction regarding prison offences), the law still gives him powers that, when exercised, involve a serious violation of the rights to personal liberty and human dignity. These powers include, inter alia, the power to order an inmate to be held in administrative isolation for a maximum period of 48 hours; the power to order the conducting of an external examination of the naked body of an inmate; the power to order the taking of a urine sample from an inmate; the power to approve the use of reasonable force in order to carry out a search on the body of an inmate; and the power to order an inmate not to be allowed to meet with a particular lawyer in accordance with the restrictions provided in s. 45A of the Prisons Ordinance.

It should be further pointed out that in addition to all these there is a series of invasive powers that are given to the governor of the prison on behalf of the private concessionaire, which are embodied in the concession agreement rather than in amendment 28 itself.

13. Additional invasive powers are also given to the concessionaire’s employees that are subordinate to the governor of the privately managed prison. Thus, for example, s. 128Y provides which powers are given to a ‘senior employee of the concessionaire,’ which is defined in s. 128F of the Prisons Ordinance as a ‘employee of the concessionaire who carried out command and management functions’:

‘Powers of a senior employee of the concession­aire

128Y. In order to carry out his functions, a senior employee of the concessionaire shall have the following powers:

(1) The powers given to a prison security guard under the provisions of section 128AA;

 

(2) The powers set out in section 128R(c)(1) to (6), in whole or in part, if the governor authorized him for this purpose, with the approval of the commissioner, and in accordance with the authorization;

 

(3) The powers that are given to an examiner under the provisions of sections 47A to 47C, if the governor authorized him for this purpose, with the approval of the commissioner, and in accordance with the authorization;

 

(4) The power given to the governor to deny privileges, if the governor authorized him for this purpose, with the approval of the commissioner, and in accordance with the authorization.’

An additional position that was created within the framework of amendment 28 is the position of ‘prison security guard.’ This position in the privately managed prison is de facto equivalent to the position of a prison officer in the Israel Prison Service. The functions of a ‘prison security guard’ are set out in s. 128Z of the Prisons Ordinance as follows:

‘Functions of a prison security guard

128Z. The functions of a prison security guard are:

(1) To maintain public safety and security in the privately managed prison;

 

(2) To prevent the escape of the inmates who are held in custody in the privately managed prison;

 

(3) To maintain order, discipline and routine in the privately managed prison;

 

(4) To discover or prevent offences that are committed within the compound of the privately managed prison or the surrounding area, when accompanying an inmate out of the privately managed prison or when chasing an escaped inmate, all of which with regard to a privately managed prison or inmate;

 

(5) To carry out any additional function that the agreement provides shall be carried out by a prison security guard.’

The powers given to a ‘prison security guard’ in order to discharge his aforesaid functions (powers that are all also given to the governor of the privately managed prison and to a ‘senior employee of the concessionaire’) are set out in s. 128AA of the Prisons Ordinance as follows:

‘Powers of a prison security guard

128AA. (a) (1) When carrying out his job and for that purpose only, a prison security guard has the powers given to a prison officer under the provisions of this Ordinance, including powers to carry out the instructions of the governor or of a senior employee of the concessionaire, as stated in section 125R(c)(1), (3), (5) and (6), subject to the following changes:

 

(a) The power under the provisions of section 95 with regard to a weapon that is a firearm, according to the meaning thereof in the Firearms Law, 5709-1949, is given to a prison security guard in the following circumstances only:

 

(1) When he is carrying out perimeter security functions on the walls of the privately managed prison or in the area surrounding the prison;

 

(2) When he is accompanying an inmate outside the privately managed prison;

 

(3) In circumstances where there has been a serious violation of order and discipline in the privately managed prison, as stated in section 128AJ(a)(1), in accordance with a permit from the commissioner and according to the conditions set out in the permit;

 

(b) He shall have the power to make an external examination of the naked body of an inmate when he is admitted into custody, under the provisions of section 95D, only in accordance with an order from the governor or from a senior employee of the concessionaire under the provisions of section 128R(c)(2);

 

(2) In this subsection, ‘senior employee of the concessionaire’ — a senior employee of the concessionaire who has been authorized for this purpose under the provisions of section 128Y(2).

 

(b) Notwithstanding the provisions of subsection (a)(1), a prison security guard shall not have the following powers:

 

(1) The powers given under the provisions of this Ordinance to a prison officer who belongs to the Anti-Drugs Unit, as defined in section 95A;

 

(2) The power to order an inmate to be held in isolation under the provisions of section 19C;

 

(3) Jurisdiction regarding prison offences, under article 5 of chapter 2, and any other power that is given to a prison officer under the aforesaid chapter.

 

(c) A prison security guard shall have the powers as stated in this section within the compound of the privately managed prison, or in the surrounding area, and when accompanying an inmate outside the prison or when chasing an escaped inmate; nothing in the provisions of this subsection shall derogate from the provisions of subsection (a)(1)(a).’

The aforesaid s. 128AA therefore gives a prison security guard, who it will be remembered is a employee of the concessionaire who operates the privately managed prison, powers that are given to a prison officer of the Israel Prison Service, subject to certain restrictions. These powers include, inter alia, the power to use a weapon in order to prevent the escape of an inmate from the prison, the power given to a policeman to arrest and detain a person without a warrant under ss. 23 and 67 of the Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996 (a power that is given to a prison employee under s. 95B of the Prisons Ordinance), and the powers provided in ss. 95D and 95E of the Prisons Ordinance to carry out a search on the person of an inmate when he is admitted into custody and during his stay in the prison. Exercising these powers also leads, of course, to a serious violation of the inmates’ human rights. It should also be noted that a employee of the concessionaire who is not a prison security guard is also entitled in certain circumstances to use reasonable force and to take steps to restrain an inmate, in accordance with s. 128AB of the Prisons Ordinance, which provides the following:

‘Powers of a employee of the concessionaire to use force

128AB. A employee of the concessionaire that is not a prison security guard, who has undergone training as provided in the agreement, may use reasonable force and take measures to restrain an inmate, until a prison security guard or a prison officer comes, if one of the following is satisfied:

 

(1) The inmate commits in his presence a violent offence or causes real damage in his presence to a person or property;

 

(2) There is a real concern of harm to the health or physical integrity of a person;

 

(3) There is a reasonable concern that the inmate is escaping or is trying to escape from the privately managed prison.’

The petition before us does not address the actual existence of the aforesaid harmful powers, nor does it deny the need for them in order to operate and manage a prison properly. As stated above, the petitioners’ claims address the constitutionality of giving the aforesaid functions and powers to a private concessionaire and its employees.

The scope of judicial scrutiny of Knesset legislation

14. The premise for examining the constitutionality of amendment 28 is that it is a law passed by the Knesset that reflects the will of the representatives of the people, and as such the court is required to respect it; the court will therefore not determine lightly that a certain statute is unconstitutional (see HCJ 3434/96 Hoffnung v. Knesset Speaker [3], at p. 67; HCJ 4769/95 Menahem v. Minister of Transport [4], at pp. 263-264). Moreover, it should be recalled that a law that is enacted by the Knesset enjoys the presumption of constitutionality that imposes on someone claiming unconstitutionality the burden of showing, at least prima facie, that the statute is unconstitutional, before the burden passes to the state and the Knesset to justify its constitutionality. The presumption of constitutionality also requires the court to adopt the assumption that the statute was not intended to undermine constitutional principles (see Hoffnung v. Knesset Speaker [3], at p. 68; HCJ 6055/95 Tzemah v. Minister of Defence [5], at pp. 267-269 {663-667}). At the same time, the court should carry out the role given to it in our constitutional system and examine the constitutionality of the legislation enacted by the legislative branch. This examination should be made by striking a delicate balance between the principles of majority rule and the separation of powers, on the one hand, and the protection of human rights and the basic values underlying the system of government in Israel, on the other. This also means that the constitutional scrutiny should be carried out with caution and restraint, without reformulating the policy chosen by the legislature (see CrimA 6659/06 Iyyad v. State of Israel [6], at para. 29 of the judgment). This rule of caution and restraint when intervening in the policy chosen by the legislature is particularly applicable with regard to court intervention in matters reflecting economic policy. President A. Barak said in this respect:

‘The court does not seek to replace the thinking of the legislature with its own thinking. The court does not put itself in the legislature’s place. It does not ask itself what measures it would choose, were it a member of the legislature. The court exercises judicial scrutiny. It examines the constitutionality of the law, not its wisdom. The question is not whether the law is good, effective or justified. The question is whether it is constitutional. A “socialist” legislature and a “capitalist” legislature may enact different and conflicting laws, which will all satisfy the requirements of the limitations clause. Indeed, the Basic Laws are not a plan for a specific political course of action. Nationalization and privatization can both exist within their framework. A market economy or a centrally planned economy can both satisfy judicial scrutiny, provided that the economic activity that violates human rights satisfies the requirements of the limitations clause. Therefore, where there is a range of measures, the court should recognize a margin of appreciation and discretion that is given to the legislature… Determining social policy is the province of the legislature, and its realization is the province of the government, which both have a margin of legislative appreciation’ (see HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [7], at p. 386; see also Menahem v. Minister of Transport [4], at pp. 263-264. For criticism regarding the limited scope of judicial intervention in economic policy, see B. Medina, ‘“Economic Constitution,” Privatization and Public Funding: A Framework of Judicial Review of Economic Policy,’ Itzchak Zamir Book on Law, Government and Society (2005) 583, at pp. 648-652).

Moreover, it is important to clarify that when speaking of legislation that results in a serious violation of protected human rights, the fact that the motive underlying the legislation is an economic one does not decide the question of the scope of constitutional scrutiny of that legislation. In such circumstances, the predominant element in the constitutional scrutiny will be the nature and degree of the violation of human rights, as well as the existence of possible justifications for that violation. The deciding factor will therefore not be the economic aspect of the legislation causing the violation, but the question whether the legislation leads to a serious and grave violation of constitutional human rights and does not satisfy the tests of the limitations clause.

15. The constitutional issue lying at the heart of the petition before us is whether and to what extent the state — and especially the government, which is the executive branch of the state — may transfer to private enterprises the responsibility for carrying out certain tasks that for years have been its exclusive concern, according to the basic constitutional principles of the democratic system in Israel, when those tasks involve a significant and fundamental violation of human rights. The question that we are called upon to decide is, therefore, whether it is possible to determine that the privatization of sovereign powers in this case is unconstitutional, even though it is done pursuant to primary legislation of the Knesset.

An examination of the constitutionality of amendment 28 in accordance with the Basic Law: Human Dignity and Liberty

16. When we examine the petitioners’ arguments that are founded on the provisions of the Basic Law: Human Dignity and Liberty, we should first decide the question whether granting the various powers involved in the management and operation of a prison to a private concessionaire, as was done in amendment 28, violates a constitutional right that is protected in the Basic Law: Human Dignity and Liberty. If we find that such a right has been violated, we should examine whether the violation is lawful, i.e., whether the violation satisfies the tests of the limitations clause in s. 8 of the Basic Law: Human Dignity and Liberty. If we ultimately arrive at the conclusion that amendment 28 violates a constitutional right that is protected by the Basic Law: Human Dignity and Liberty, and that this violation does not satisfy the tests of the limitations clause, we shall need to determine what is the appropriate constitutional remedy for the unlawful violation (regarding the three stages of constitutional scrutiny, see CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [8], at p. 428; HCJ 4128/02 Israel Union for Environmental Defense v. Prime Minister of Israel [9], at p. 517).

17. The first question that we need to decide, therefore, is whether the provisions of amendment 28 involve a significant violation of a constitutional right that is protected by the Basic Law: Human Dignity and Liberty. Our deliberations as to whether amendment 28 violates the human rights of the inmates of the privately managed prison are based on the premise that imprisoning a person and holding him in custody in itself violates his right to liberty and freedom of movement. This is the case even when the imprisonment is lawful. In addition to this premise, there is another premise that has become a rule in our legal system, that the loss of personal liberty and freedom of movement of an inmate, which is inherent in the actual imprisonment, does not justify an additional violation of the other human rights of the inmate to an extent that is not required by the imprisonment itself or in order to realize an essential public interest recognized by law (see HCJ 4634/04 Physicians for Human Rights v. Minister of Public Security [10], at para. 11 of the judgment; PPA 4463/94 Golan v. Prisons Service [11], at pp. 152-156 {501-504}). In this respect, the remarks of Justice E. Mazza are apt:

‘It is established case law in Israel that basic human rights “survive” even inside the prison and are conferred on a prisoner (as well as a person under arrest) even inside his prison cell. The exceptions to this rule are only the right of the prisoner to freedom of movement, which the prisoner is denied by virtue of his imprisonment, and also restrictions imposed on his ability to realize a part of his other rights — some restrictions necessitated by the loss of his personal freedom and other restrictions based on an express provision of law’ (Golan v. Prisons Service [11], at pp. 152-153 {501}).

18. On the basis of these premises, we should examine the petitioners’ arguments with regard to the violation of basic constitutional rights that arises from the provisions of amendment 28, which focus de facto on two issues. First, the petitioners argue that there is a real concern that the powers that were provided in amendment 28 will be exercised by the private concessionaire in a manner that violates the human rights of the inmates to a greater degree than the manner in which the corresponding powers are exercised in the prisons managed by the Israel Prison Service. Second, the petitioners argue that the transfer of powers to manage and operate the prison to a private concessionaire ipso facto violates the constitutional rights of the inmates in the privately managed prison to their personal liberty and human dignity.

As we shall clarify below, amendment 28, which allows the construction of a prison that will be managed and operated by a private corporation, leads to a violation of the constitutional rights to personal liberty and human dignity of inmates who are supposed to serve their sentence in that prison. This is because of the actual transfer of powers of management and operation of the prison from the state to a private concessionaire that is a profit-making enterprise. We therefore do not need to decide the arguments of great weight raised by the petitioners regarding the potential for violating the inmates’ human rights in the privately managed prison to a greater degree than the violation of the inmates’ human rights in the prisons managed by the state. It should be noted that the petitioners’ claims in this regard were mainly based on the provisions set out in amendment 28 with regard to the nature of the powers granted to the concessionaire’s employees, the state’s supervision of the private concessionaire’s actions, the economic inducements that will present themselves to the concessionaire and the state with regard to the manner in which the prison is managed and the minimum conditions determined for the professional qualifications of the concessionaire’s employees. In this context, the petitioners also raised arguments concerning the violation of human rights that has been caused by the operation of privately managed prisons in other countries, and especially in the United States.

19. We have examined the petitioners’ claims that are based on the concern that the human rights of inmates will be violated in the privately managed prison to a greater extent than in state managed prisons. In this respect, we are of the opinion that the concerns raised by the petitioners are not unfounded and that there is indeed a concern that the manner of operating the privately managed prison will lead to a greater violation of inmates’ human rights than in state managed prisons, because of the fact that the private prison is managed by a corporation that is a profit-making enterprise. It would appear that the aforesaid concern troubled both the primary legislature and the granter of the concession, and for this reason broad supervision and inspection powers were provided in amendment 28 to allay this concern. Notwithstanding, we have reached the conclusion that although the concerns raised by the petitioners are not unfounded, they address a future violation of human rights and there is no certainty that this will occur; therefore, it is questionable whether it constitutes a sufficient basis for setting aside primary legislation of the Knesset. In this regard it should be noted that the petitioners’ claims regarding the ramifications of the privatization of prisons in other countries (and especially the United States) are an insufficient basis for this court to reach an unequivocal and a priori determination that the method of operating a prison by means of private management will necessarily result in a violation of human rights that is significantly greater than the violation of human rights in state managed prisons. The reasons for this are, first, that the legislative arrangements in other countries are different from the legislative arrangement in Israel (especially with regard to the degree of state supervision of the concessionaire and the scope of the concessionaire’s powers), and, second, that the comparative figures are not unambiguous (see: A. Volokh, ‘Developments in the Law — The Law of Prisons: III. A Tale of Two Systems: Cost, Quality and Accountability in Private Prisons,’ 115 Harv. L. Rev. 1838, 1868 (2002); U. Timor, ‘Privatization of Prisons in Israel: Gains and Risks,’ 39 Isr. L. Rev. 81 (2006), at pp. 85-88; D.E. Pozen, ‘Managing a Correctional Marketplace: Prison Privatization in the United States and the United Kingdom,’ 19 Journal of Law & Politics 253 (2003), at pp. 271-276). Our decision will therefore be based on the assumption that, despite the potential violations indicated by the petitioners, there is no empirical proof that the manner of operating private prisons necessarily leads to a greater violation of the inmates’ human rights than that in the state managed prisons. Notwithstanding, we have reached the conclusion that the actual transfer of powers to manage a prison from the state, which acts on behalf of the public, to a private concessionaire that is a profit-making enterprise, causes a serious and grave violation of the inmates’ basic human rights to personal liberty and human dignity — a violation that should, of course, be examined from the viewpoint of the limitations clause. Let us now turn to clarify our reasons for this conclusion.

The violation caused by amendment 28 to the constitutional right to personal liberty

20. Sending someone to prison — whether it is managed privately or by the state — first and foremost violates the constitutional right to personal liberty. This right is set out in s. 5 of the Basic Law: Human Dignity and Liberty, which states the following:

‘Personal liberty

5.  A person’s liberty shall not be denied or restricted by imprisonment, arrest, extradition, or in any other way.’

The right to personal liberty is without doubt one of the most central and important basic rights in any democracy, and it was recognized in our legal system before it was enshrined in the Basic Law. Denying this right is one of the most severe violations possible in a democratic state that upholds the rule of law and protects human rights. A violation of the right to personal liberty is especially serious because it inherently involves a violation of a series of other human rights, whose potential realization is restricted physically, mentally and ethically. The special status of the right to personal liberty and the serious ramifications arising from a violation thereof were discussed by Justice Zamir in Tzemah v. Minister of Defence [5]:

‘By virtue of s. 5 of the Basic Law: Human Dignity and Liberty, personal liberty is a constitutional right. Moreover, personal liberty is a constitutional right of the first order, and from a practical viewpoint it is also a prerequisite for realizing other basic rights. A violation of personal liberty, like a stone hitting water, creates a ripple effect of violations of additional basic rights: not only the freedom of movement, but also the freedom of speech, privacy, property rights and other rights… As stated in s. 1 of the Basic Law: Human Dignity and Liberty, “Basic human rights in Israel are founded on the recognition of the worth of man, the sanctity of his life and his being free….”. Only someone who is free can realize his basic rights fully and properly. It is personal liberty, more than any other right, that makes man free. For this reason, denying personal liberty is a particularly serious violation. Indeed, a denial of personal liberty by means of imprisonment is the most serious sanction that a civilized state imposes on offenders’ (see Tzemah v. Minister of Defence [5], at pp. 261-262 {656}; see also Iyyad v. State of Israel [6], at para. 28).

But like all human rights, the right to personal liberty, despite its exalted constitutional status, is not an absolute right.

From the provisions of s. 5 of the Basic Law: Human Dignity and Liberty, it can be seen that imprisoning a person — whether in a state managed prison or in a privately managed prison — violates his constitutional right to personal liberty. In this respect it is important to emphasize that even when a person is convicted of an offence and sentenced to imprisonment, this does not mean that he no longer has the basic constitutional right to personal liberty; however, in consequence of the conviction and the sentence that follows it, the scope of the protection afforded to this right is reduced and it is denied for the period stipulated in the sentence. This denial is justified under the provisions of the limitations clause (see CrimA 4424/98 Silgado v. State of Israel [12], at p. 550).

21. The special constitutional status of the right to personal liberty and the fact that it constitutes a condition for exercising many other human rights mean that the legitimacy of denying that liberty depends to a large extent on the identity of the party that is competent to deny that liberty and on the manner in which that liberty is denied. The basic constitutional principle underlying this approach is that in a democracy that respects human rights, the basic justification for denying the personal liberty of the individual lies in the fact that denying his liberty results in the realization of some essential public interest. Of course, this condition is insufficient in itself for denying the personal liberty of the individual, but it is an essential condition. This essential public interest that may justify, and sometimes even necessitate, the denial of the personal liberty of a particular individual, can be of various kinds. Thus, for example, usually when we are dealing with the denial of personal liberty in criminal proceedings, the public interest is expressed in the various goals of criminal punishment, such as deterrence, retribution or rehabilitation. In addition to considerations of criminal punishment, the public interest in denying the personal liberty of a particular individual may also be based on the danger that he presents to state security (see, for example, the Emergency Powers (Arrests) Law, 5739-1979, and the Internment of Unlawful Combatants Law, 5762-2002).

22. According to our approach, which will be explained below, since the denial of the right to personal liberty is justified only if it is done in order to further or protect an essential public interest, the question whether the party denying the liberty is acting first and foremost in order to further the public interest (whatever it may be) or whether that party is mainly motivated by a private interest is a critical question that lies at the very heart of the right to personal liberty. The answer to the aforesaid question is of importance to the very legitimacy of the denial of liberty. According to the basic principles of modern political philosophy, the violation of the right to personal liberty resulting from giving a private enterprise the power to deny liberty within the context of the enforcement of criminal law derives ipso facto from the fact that the state is giving that party one of its most basic and invasive powers, and by doing so the exercise of that power loses a significant part of its legitimacy. In order to clarify the nature of the violation of the right to personal liberty that is caused by amendment 28, let us now examine the principles underlying our aforementioned approach and the manner in which these principles apply to amendment 28.

23. According to modern political philosophy, one of the main factors that led to the organization of human beings in society, whereby invasive powers — including the power to send convicted offenders to prison — were given to the authorities of that society and especially the law enforcement authorities, is the aspiration to promote the protection of personal security and public order. This approach lies at the heart of the approach of the founders of modern political philosophy. In his classic work Leviathan, which was published in 1651, Thomas Hobbes discussed the nature of the roles of ‘publique ministers’ that are employed by the ‘Soveraign’:

‘For Execution

Publique Ministers are also all those, that have Authority from the Soveraign, to procure the Execution of Judgements given; to publish the Soveraigns Commands; to suppresse Tumults; to apprehend, and imprison Malefactors; and other acts tending to the conservation of the Peace. For every act they doe by such Authority, is the act of the Common-wealth; and their service, answerable to that of the Hands, in a Bodie naturall’ (Thomas Hobbes, Leviathan or The Matter, Forme and Power of a Common Wealth Ecclesiasticall and Civil (1651), at chap. XXIII).

An additional expression of the manner in which modern political philosophy regards the role of the ‘political society’ in enforcing the law and punishing offenders can be found in the work of the English philosopher John Locke, Two Treatises of Government, which was published in 1690. In the Second Treatise, Locke presents his position that society rather than each of the individuals within it has jurisdiction regarding offences and the punishment for them:

‘But because no political society can be, nor subsist, without having in itself the power to preserve the property, and in order thereunto, punish the offences of all those of that society; there and there only is political society, where every one of the members hath quitted this natural power, resigned it up into the hands of the community in all cases that exclude him not from appealing for protection to the law established by it. And thus all private judgment of every particular member being excluded, the community comes to be umpire, by settled standing rules, indifferent, and the same to all parties; and by men having authority from the community, for the execution of those rules, decides all the differences that may happen between any members of that society concerning any matter of right; and punishes those offences which any member hath committed against the society, with such penalties as the law has established: whereby it is easy to discern, who are, and who are not, in political society together (John Locke, Second Treatise of Government (1690), at para. 87).

This outlook concerning the responsibility of society or the sovereign (and those acting on their behalf) to enforce the criminal law and preserve public order became over the years a cornerstone in the modern political philosophy of democratic states. Although, naturally, many changes and developments have occurred since the seventeenth century in the way in which the nature and functions of the state are regarded, it would appear that the basic political principle that the state, through the various bodies acting in it, is responsible for public security and the enforcement of the criminal law has remained unchanged throughout all those years, and it is a part of the social contract on which the modern democratic state is also based. An expression of the fundamental outlook concerning the nature of the basic functions of the state and the relationship between it and the citizen can be found in the remarks of Justice I. Zamir in HCJ 164/97 Conterm Ltd v. Minister of Finance [13], at p. 320 {34}:

‘... the relationship between the authority and the citizen is, in practice, a two-way relationship. Therefore, in my opinion, the authority’s duty to act fairly necessitates a corresponding duty to act fairly on the part of the citizen. This requirement is deeply rooted: it springs from the social contract on which the state is based. Under this contract, as it is understood in a democratic state, the authority and the citizen are not opposing forces on different sides of a barricade but stand side by side as partners in the state. In a democracy, as Justice Silberg said, “... the government and the citizen are one and the same” ... The government (in my opinion we should say: the public administration) has a duty to serve the public – to keep peace and order; to provide essential services; to protect the dignity and liberty of every citizen; to do social justice. But the public administration, which has nothing of its own, can only give to the public if it receives from the public. The proper relationship between the administration and the public, which is in fact the essential relationship, is a reciprocal relationship of give and take.’

In principle, the dispute between supporters and opponents of the privatization of the prisons depends largely on the question of who is the authority that is competent to deprive a person of his liberty in order to enforce the criminal law, and whether it is permitted and desirable to depart from the rule that the exercise of power in this regard lies with the state in its capacity as the representative of the public, and entrust this power to a private enterprise, such as an interested capitalist. This debate has been conducted in academic and public circles, but it has not yet been decided in the courts (see: I.P. Robbins, ‘The Impact of the Delegation Doctrine on Prison Privatization,’ 35 UCLA L. Rev. 911 (1988); J.E. Field, ‘Making Prisons Private: An Improper Delegation of a Governmental Power,’ 15 Hofstra L. Rev. 649 (1987); A.A. White, ‘Rule of Law and Limits of Sovereignty: The Private Prison in Jurisprudential Perspective,’ 38 Am. Crim. L. Rev. 111 (2001), at pp. 134-145). This highlights the special role of the state in enforcing the criminal law and in managing public prisons for the aforesaid purpose. The remarks of the American scholar, Prof. J.J. Dilulio, Jr., are pertinent in this regard:

‘At a minimum, it can be said that, both in theory and in practice, the formulation and administration of criminal laws by recognized public authorities is one of the liberal state’s most central and historic functions; indeed, in some formulations it is the liberal state’s reason for being… It is not unreasonable to suggest that “employing the force of the Community” via private penal management undermines the moral writ of the community itself’ (J.J. Dilulio, Jr., ‘The Duty to Govern: A Critical Perspective on the Private Management of Prisons and Jails,’ Private Prisons and the Public Interest (D.C. McDonald ed., 1990), 155, at pp. 175-176).

24. According to the aforesaid constitutional principles and the basic social and political tenets of the system of government in Israel, the state — through the government and the bodies that answer to it — is regarded as the party that has the responsibility for ensuring security, public order and the enforcement of the criminal law. The various security services in Israel — including the Israel Defence Forces, the Israel Police, the Israel Prison Service and the General Security Service — take their orders from the government, and as a rule their heads are appointed by it (see ss. 2 and 3 of the Basic Law: the Army, s. 8 of the Police Ordinance [New Version], 5731-1971, s. 78 of the Prisons Ordinance and ss. 3 and 4 of the General Security Service Law, 5762-2002). When these agencies, which all constitute a part of the executive branch of the state, exercise their powers, they are acting on behalf of the state as an organized force that receives its orders from the government. Indeed, the subordination of the various security services to the elected government has always been one of the hallmarks of the State of Israel as a modern democratic state, and it is one of the basic constitutional principles underlying the system of government in Israel (for the constitutional basis for the special status of persons serving in the various security services (including the Israel Prison Service), see ss. 7(8) and 7(9) of the Basic Law: the Knesset, and the special limitations clause provided in s. 9 of the Basic Law: Human Dignity and Liberty).

25. In addition to the subordination of the security forces in the state to the government, one of the hallmarks of the great power that has always been held by the executive branch in Israel is the power given to it, through the police, the state attorney’s office and the prison service, to enforce the provisions of the criminal law in Israel. The issue before us concerns the manner of implementing one of the main elements of the criminal law enforcement mechanisms in Israel — the power to deprive of their liberty those persons who have been convicted under the law and sentenced to imprisonment. This power is one of the most invasive powers that a modern democratic state has over its subjects.

It should be noted that prima facie, in so far as imprisonment as a sentence in a criminal trial is concerned, it might be argued that the violation of the right to personal liberty caused by the imprisonment derives in its entirety from the custodial sentence imposed by the court. Indeed, from a normative viewpoint, the decision of the competent courts of the state to sentence a particular person to imprisonment is the source of the power to violate the constitutional right of that individual to personal liberty. But the actual violation of the right to personal liberty takes place on a daily basis as long as he remains an inmate of the prison. This violation of the right to personal liberty is inflicted by the party that manages and operates the prison where the inmate is held in custody, and by the employees of that party, whose main purpose is to ensure that the inmate duly serves the term of imprisonment to which he has been sentenced (subject, of course, to the provisions of the law) and complies with the rules of conduct in the prison, which also restrict his personal liberty.

In Israel the power to punish someone who has been convicted under the law and to imprison him in order that he may serve his sentence is, therefore, one of the most significant powers of the state, and under the law the body that is responsible for carrying out this function of the state is the Israel Prison Service. This power, as well as the powers of the other security services, is an expression of a broader principle of the system of government in Israel, according to which the state — through the government and the various security services that are subordinate to it — has exclusive authority to resort to the use of organized force in general, and to enforce the criminal law in particular (for a critical discussion of the question of the monopoly given to the state to use force, see C.J. Rosky, ‘Force, Inc.: The Privatization of Punishment, Policing and Military Force in Liberal States,’ 36 Conn. L. Rev. 879 (2004).

26. The monopoly given to the state — through the executive branch and the bodies acting through it — with respect to the use of organized force is of importance in two spheres. In one sphere, we need to take into account that the democratic legitimacy for the use of force in order to restrict the liberty of individuals and to deny various human rights relies on the fact that organized force exercised by and on behalf of the state is what causes the violation of those rights. Were this force not exercised by the competent organs of the state, in accordance with the powers given to them and in order to further the general public interest rather than a private interest, this use of force would not have democratic legitimacy, and it would constitute de facto an improper and arbitrary use of violence. In the other sphere, the fact that the organized force is exercised by a body that acts through the state and is subject to the laws and norms that apply to anyone who acts through the organs of the state and also to the civil service ethos in the broad sense of this term is capable of significantly reducing the danger that the considerable power given to those bodies will be abused, and that the invasive powers given to them will be exercised arbitrarily or in furtherance of improper purposes. Naturally, both of these spheres are interrelated and affect one another, since the democratic legitimacy given to the bodies that exercise organized force on behalf of the state is what allows them in a substantive sense to exercise the powers given to them vis-à-vis any individual. At the same time, since those bodies act within the framework of the democratic political mechanism and are subject to its rules, their legitimacy is enhanced. Prof. Dilulio discussed the close connection between the identity of the party that uses force against prisoners and the legitimacy of the actual use of force in the following terms:

‘In my judgment, to continue to be legitimate and morally significant, the authority to govern those behind bars, to deprive citizens of their liberty, to coerce (and even kill) them, must remain in the hands of government authorities. Regardless of which penological theory is in vogue, the message “Those who abuse liberty shall live without it” is the philosophical brick and mortar of every correctional facility. That message ought to be conveyed by the offended community of law-abiding citizens, through its public agents, to the incarcerated individual. The administration of prisons and jails involves the legally sanctioned coercion of some citizens by others. This coercion is exercised in the name of the offended public. The badge of the arresting police officer, the robes of the judge, and the state patch of the corrections officer are symbols of the inherently public nature of crime and punishment’ (Dilulio, ‘The Duty to Govern: A Critical Perspective on the Private Management of Prisons and Jails,’ supra, at p. 173).

27. Now that we have discussed the constitutional principle regarding the monopoly given to the state to use force in general, and to deny the personal liberty of individuals in order to enforce the criminal law in particular, let us now examine the relationship between this general principle and the arrangement provided in amendment 28. The main provision of amendment 28, which will form the focus of the constitutional scrutiny and from which all of the other provisions of the amendment whose constitutionality is under consideration are derived, is s. 128L of the Prisons Ordinance. This provision defines the spheres of responsibility of the private concessionaire, who is supposed to construct, manage and operate the privately managed prison. The wording of s. 128L appears in para. 11 above, but because of its importance in this case we shall cite the wording of the section once again:

‘Responsi­bility of the concession­aire

128L. (a) The concessionaire is responsible for the proper construction, management and operation of the privately managed prison, including:

 

(1) maintaining order, discipline and public security in the privately managed prison;

 

(2) preventing the escape of inmates that are held in custody in the privately managed prison;

 

(3) ensuring the welfare and health of the inmates and taking steps during the imprisonment that will aid their rehabilitation after the release from imprisonment, including training for employment and providing education;

 

all of which in accordance with the provisions of every law and the provisions of the agreement and while upholding inmates’ rights.

 

(b) The concessionaire shall adopt all the measures required in order to discharge his responsibility as stated in subsection (a), including measures as aforesaid that are stipulated in the agreement, and inter alia he shall appoint for this purpose the concessionaire’s governor and employees in accordance with the provisions of this chapter.’

The constitutional difficulty presented by amendment 28 concerns the management and operation of the prison by a private concessionaire, and in particular the responsibility imposed on it for the matters set out in the aforesaid ss. 128L(a)(1) and 128L(a)(2), namely the responsibility for ‘maintaining order, discipline and public security’ and the responsibility for ‘preventing the escape of inmates that are held in custody.’ These spheres of responsibility, from which all the other invasive powers given to the governor of the prison on behalf of the concessionaire and the concessionaire’s employees are de facto derived, are the spheres in which, according to the petitioners, the state may not delegate or transfer its responsibility to a private enterprise. Moreover, it is important to point out that the provisions of amendment 28 may also to some degree affect the length of the term of imprisonment, since the conduct of the prison inmate has a not inconsiderable effect on the possibility of his early release from prison under the Parole Law, 5761-2001. In this respect it should be pointed out that under s. 9(7) of the Parole Law, the parole board acting under the law is required to consider, inter alia, the recommendation concerning the prisoner that was given by the governor of the privately managed prison, who, it will be recalled, is appointed by the concessionaire (it should be noted that the aforesaid s. 9(7) also relates to the possibility that one of the supervisors acting in the prison on behalf of the Israel Prison Service will submit a recommendation regarding the prisoner in the privately managed prison).

28. The powers involved in maintaining order, discipline and public security in the prisons and the powers involved in preventing the escape of prisoners from custody are traditionally powers that manifestly belong to the state. The sovereignty of the state and its power to use coercive force against its subjects are typified by the power given to it to imprison persons who have been convicted by the court, to supervise those prisoners strictly, continuously and closely, in a manner that seriously (but justifiably) violates their personal liberty, human dignity and privacy, and to take various steps — including the use of deadly force in a manner that endangers the right to life and physical integrity — in order to prevent the escape of the inmates from the prison. Therefore, a prison, even when it operates within the law, is the institution in which the most serious violations of human rights that a modern democratic state may impose on its subjects may and do occur.

We have already discussed the fact that according to the basic values of society and the system of government in Israel, the legitimacy for exercising powers that involve a serious violation of the constitutional right to personal liberty derives from the fact that these powers are exercised by and on behalf of the state, after the person with regard to whom they are exercised has been tried and convicted by the legal system of the state. Imprisoning a person is the culmination of the criminal proceeding initiated against that person by the state on behalf of the entire public. The power of imprisonment and the other invasive powers that derive from it are therefore some of the state’s most distinctive powers as the embodiment of government, and they reflect the constitutional principle that the state has a monopoly upon exercising organized force in order to advance the general public interest. In this context it should be remembered that when an offender who has been convicted by a competent court and sentenced to imprisonment serves his sentence, this is not merely a technical stage of implementing the criminal law; it is a significant and integral part of the criminal proceeding that the state initiates against the individual, without which the earlier parts of the proceeding lose a significant part of their significance. Indeed, just as the state through the legislature is responsible for regulating criminal legislation, so too it is responsible for enforcing the criminal law and punishing offenders according to the law through the executive branch — a responsibility that is realized, inter alia, by imposing the role of managing and operating prisons on the state (see Field, ‘Making Prisons Private: An Improper Delegation of a Governmental Power,’ supra, at p. 669).

29. The scope of the right to personal liberty and the power to violate this right lawfully are derived from the basic principles of the constitutional system in Israel that we discussed with regard to the responsibility of the state and those acting on its behalf to maintain public order and enforce the criminal law — a responsibility that justifies giving them extensive powers to violate human rights. Therefore, it is possible to say that when it is the state through its competent organs that exercises the coercive power inherent in denying prison inmates their liberty and when the state is de facto responsible for denying the liberty, the violation of the constitutional right to liberty of those inmates has greater legitimacy. Indeed, when the state, through the Israel Prison Service, denies the personal liberty of an individual – in accordance with the sentence that is imposed on him by a competent court — it thereby discharges its basic responsibility as sovereign for enforcing the criminal law and furthering the general public interest. By contrast, when the power to deny the liberty of the individual is given to a private corporation, the legitimacy of the sanction of imprisonment is undermined, since the sanction is enforced by a party that is motivated first and foremost by economic considerations — considerations that are irrelevant to the realization of the purposes of the sentence, which are public purposes.

30. It would therefore appear that amendment 28 gives rise to a question of paramount constitutional important that lies, as we explained in paragraph 22 above, at the very heart of the right to personal liberty, namely whether it is possible to entrust the power to deny liberty to a party that operates in order to further an interest that is essentially a private one.

 Amendment 28 provides an arrangement that authorizes a private profit-making corporation to violate the constitutional right to personal liberty; by making the prison inmates subservient to a private enterprise that is motivated by economic considerations, amendment 28 creates a violation of the constitutional right to personal liberty, which is an independent violation that is additional to the violation caused by the actual imprisonment under lock and key. This violation goes to the heart of the right to personal liberty, since it involves the actual power to hold a person in prison and the conditions of his imprisonment (including the possibility of denying various benefits inside the prison). The source of the violation of the constitutional right to personal liberty that is caused by amendment 28 is therefore inherent to the identity and nature of the body that has been given the powers to violate liberties that are involved in the management and operation of a prison, in two respects. First, the state, after it has determined through its courts that a custodial sentence should be imposed on a certain person, does not bear complete responsibility for the implementation of this decision, with the violation of human rights that arises from it. This situation undermines the legitimacy of the actual sanction of imprisonment and of the violations of various human rights that derive from it (and especially the constitutional right to personal liberty). Second, in addition to the aforesaid, the inmate of a privately managed prison is exposed to a violation of his rights by a body that is motivated by a set of considerations and interests that is different from the one that motivates the state when it manages and operates the public prisons through the Israel Prison Service. The independent violation of the constitutional right to personal liberty of inmates in a privately managed prison exists even if we assume that from a factual-empirical viewpoint it has not been proved that inmates in that prison will suffer worse physical conditions and invasive measures than those in the public prisons.

Indeed, when we examine the extent of the violation of the right to personal liberty inherent in placing a person under lock and key we should take into account not merely that person’s actual loss of personal liberty for a certain period but also the manner in which he is deprived of liberty. The broad scope of the protected right finds expression in various ways, and this too justifies affording it broad protection. The right to liberty is not violated only by denying it in its entirety. The right can be violated on various levels. The manner in which the constitutional right is violated and the nature and extent of the violation naturally affect the constitutional scrutiny of the violation from the perspective of the limitations clause (see and cf. HCJ 5936/97 Lam v. Director-General of Ministry of Education, Culture and Sport [14], at pp. 681-683, 692-693, 693-694 {545-549, 562-563, 564-565}; Menahem v. Minister of Transport [4], at pp. 260-261).

31. In this respect it should be stated that we see no reason to accept the concessionaire’s argument that all that amendment 28 provides is tantamount to the state availing itself of the assistance of a private enterprise rather than delegating or transferring powers to it. It is well known that a distinction between an authority availing itself of the assistance of a private enterprise in order to carry out its duties and a delegation of powers to a private enterprise has been made in our administrative law, and the main distinction between the two situations concerns the scope of the powers and the discretion given to the party to whom the competent authority delegates its powers (see HCJ 2303/90 Philipovitz v. Registrar of Companies [15], at pp. 422-424; HCJ 4884/00 Let the Animals Live Association v. Director of Field Veterinary Services at the Ministry of Agriculture [16]; I. Zamir, Administrative Authority (vol. 2, 1996), at pp. 541-550, 561-562). In the circumstances of the case before us, even if there are certain differences between the scope of the powers given to the employees of the private concessionaire that operates the prison and the scope of powers given to prison officers of the Israel Prison Service, an examination of the provisions of amendment 28 shows that the private concessionaire was given wide-ranging powers with regard to the day-to-day management of the prison, including the enforcement of order and discipline therein.

The powers given to the private concessionaire are not merely technical powers. They are invasive powers that are involved on a regular basis when discretion is exercised by the prison governor acting on behalf of the concessionaire and the employees subordinate to him, who are in control of the managing the lives of the inmates in the prison on a daily basis. Moreover, the management and operation of a prison naturally require dealing with unexpected situations in the course of direct contact with the inmates and making quick decisions on an immediate basis, where the supervision and scrutiny of the making of the decisions and the manner of exercising the discretion can only be carried out retrospectively. Indeed, it would seem that in so far as the management of private prisons is concerned, there is a very significant difficulty in making a clear distinction between the policy decision of the state and the actual manner in which it is implemented by the private concessionaire (see J. Freeman, ‘The Private Role in Public Governance,’ 75 N. Y. U. L. Rev. 543 (2000), at pp. 632-633; Dilulio, ‘The Duty to Govern: A Critical Perspective on the Private Management of Prisons and Jails,’ supra, at p. 176). In these circumstances, it is clear that the arrangements provided in amendment 28 constitute a transfer (or at least a delegation) of powers from the Israel Prison Service to the private concessionaire, which is responsible for the management and operation of the prison, rather than a government authority merely availing itself of the assistance of a private enterprise, as the concessionaire claims.

32. We should further mention that, in their pleadings in reply to the petition, the respondents (the state and the concessionaire) argued that there are various other arrangements that allow private enterprises to exercise different sovereign powers. Examples of such arrangements are the possibility of appointing a private lawyer as a prosecutor in a criminal trial by virtue of an authorization from the attorney-general under s. 12(a)(1)(b) of the Criminal Procedure Law [Consolidated Version], 5742-1982 (see HCJ 8340/99 Gorali Kochan & Co. Law Offices v. Attorney-General [17]; HCJ 1783/00 Haifa Chemicals Ltd v. Attorney-General [18]); the possibility provided in s. 5 of the Execution Law, 5727-1967, of appointing a private individual, who has been authorized for this purpose, as an ‘officer’ for the enforcement of civil judgments; and the existence of nursing and psychiatric institutions, which operate for profit, where the members of staff have full control of the various aspects of the lives of the inmates of those institutions. The question of the constitutionality and legality of these arrangements does not arise in the petitions before us, and therefore we are not required to adopt any position with regard to it. But it is hard to deny that these are functions that are not so closely related to the manifestly sovereign functions of the state and that the violation of human rights that results from exercising them is less than that involved in the management and operation of a prison, which is the subject of the petition before us (for a discussion of the question of the constitutional and legal restrictions imposed on the privatization process, see D. Barak-Erez, ‘Human Rights in an Age of Privatization,’ 8 Labour, Society and Law (Israeli Society for Labour Law and Social Security Yearbook) 209 (2001); D. Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ 30 Tel-Aviv University Law Review (Iyunei Mishpat) 461 (2008); Y. Dotan and B. Medina, ‘The Legality of Privatization of the Provision of Public Services,’ 37 Hebrew Univ. L. Rev. (Mishpatim) 287 (2007); cf. also C.P. Gillette & P.B. Stephan III, ‘Constitutional Limitations on Privatization,’ 46 Am. J. Company. L. 481 (1998)).

33. In summary, the conclusion that we have reached is that amendment 28 causes an additional independent violation of the constitutional right to personal liberty beyond the violation that arises from the imprisonment itself. It can therefore be said that our position is that the scope of the violation of a prison inmate’s constitutional right to personal liberty, when the entity responsible for his imprisonment is a private corporation motivated by economic considerations of profit and loss, is inherently greater than the violation of the same right of an inmate when the entity responsible for his imprisonment is a government authority that is not motivated by those considerations, even if the term of imprisonment that these two inmates serve is identical and even if the violation of the human rights that actually takes place behind the walls of each of the two prisons where they serve their sentences is identical. This conclusion gives rise to a question, which we shall consider below, as to whether it is possible to determine that this independent violation was made lawfully in accordance with the limitations clause.

Amendment 28 violates the constitutional right to human dignity

34. In addition to the violation of the right to personal liberty, amendment 28 also violates the constitutional right to human dignity that is enshrined in section 2 of the Basic Law: Human dignity and Liberty as follows:

‘Preservation of life, body and dignity

2.  One may not harm the life, body or dignity of a person.’

In order to examine the claim that the provisions of amendment 28 cause a violation of human dignity, we first need to discuss the content of the constitutional right to human dignity and the extent to which it applies in the circumstances of the case before us. In the judgment in HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [19] it was held that the model adopted by the Supreme Court with regard to the scope of application of the constitutional right to human dignity is an ‘intermediate model’; in other words, the right to human dignity does not only include those clear violations that relate to a person’s humanity, such as physical and emotional injuries, humiliation and defamation, but it does not encompass all human rights. In that case President Barak addressed the content of the constitutional right to human dignity in the following terms:

‘What is human dignity according to the approach of the Supreme Court? This question should be answered by means of constitutional interpretation of the language of the statute against the background of its purpose. This interpretive approach is based on the history of the provision in the Basic Law, its relationship to other provisions in the Basic Laws, the basic values of the legal system and comparative law. It gives central weight to the case law of this court regarding the scope of human dignity. On the basis of all of these, our conclusion is that the right to human dignity constitutes a set of rights that needs to be upheld in order for dignity to exist. The right to human dignity is based on the recognition that man is a free creature, who develops his body and mind as he wishes in the society in which he lives; the essence of human dignity lies in the sanctity of his life and his liberty. Human dignity is based on the autonomy of the individual will, the freedom of choice and the freedom of action of a human being as a free agent. Human dignity relies on the recognition of the physical and spiritual integrity of a human being, his humanity, his worth as a human being, all of which irrespective of the degree of benefit that others derive from him’ (see Movement for Quality Government in Israel v. Knesset [19], at para. 35 of the judgment).

35. Whatever the content of the constitutional right to human dignity may be, no one denies that the right to dignity applies with regard to preventing the denigration of a person and preventing any violation of his human image and his worth as a human being. The right to dignity is a right that every human being is entitled to enjoy as a human being. Admittedly, when a person enters a prison he loses his liberty and freedom of movement, as well as additional rights that are violated as a result of the imprisonment; but an inmate of a prison does not lose his constitutional right to human dignity. A long time before the Basic Law: Human Dignity and Liberty was enacted, Justice Barak discussed how prison inmates and persons under arrest also enjoy the right to human dignity. Justice Barak held in this regard in HCJ 355/79 Katlan v. Israel Prison Service [20], at p. 298:

‘Every person in Israel enjoys a basic right to physical integrity and to the protection of his human dignity. These rights are included in the “charter of judicial rights”… that has been recognized by this court. The right to physical integrity and human dignity is also a right of persons under arrest and prison inmates. The walls of the prison are not a barrier between the inmate and human dignity. The regime in the prison naturally requires a violation of many liberties that free people enjoy… but the regime in the prison does not demand that the inmate is denied his right to physical integrity and to protection against a violation of his dignity as a human being. The inmate loses his freedom, but he is not deprived of his human image.’

This finding regarding the right of prison inmates and persons under arrest to human dignity was, of course, given extra force when the Basic Law: Human Dignity and Liberty was enacted and the right to human dignity became a super-legislative constitutional right that every government authority is liable to respect. The social importance that should be attributed to the protection of the human dignity of prison inmates was discussed by Justice E. Mazza in the following terms:

‘We should remember and recall that the human dignity of the prison inmate is the same as the dignity of every human being. Imprisonment violates the prison inmate’s liberty, but it should not violate his human dignity. A prison inmate has a basic right not to have his dignity violated, and every government authority has a duty to respect this right and to prevent it from being violated… Moreover, a violation of the human dignity of a prison inmate does not merely affect the inmate, but also the image of society. Humane treatment of prison inmates is a part of a humane-moral norm that a democratic society is required to uphold. A state that violates the dignity of its prison inmates breaches the obligation that it has to all of its citizens and residents to respect basic human rights’ (Golan v. Prisons Service [11], at p. 256).

36. Indeed, it is hard to deny that imprisoning someone under lock and key and imposing upon him the rules of conduct in the prison violates his human dignity. This violation is caused whether that person is imprisoned in a public prison or in a privately managed prison. Therefore, the question that we need to decide in this case is whether imprisoning a person in a privately managed prison causes a greater violation of his human dignity than imprisoning him in a public prison.

Imprisoning persons in a privately managed prison leads to a situation in which the clearly public purposes of the imprisonment are blurred and diluted by irrelevant considerations that arise from a private economic purpose, namely the desire of the private corporation operating the prison to make a financial profit. There is therefore an inherent and natural concern that imprisoning inmates in a privately managed prison that is run with a private economic purpose de facto turns the prisoners into a means whereby the corporation that manages and operates the prison makes a financial profit. It should be noted that the very existence of a prison that operates on a profit-making basis reflects a lack of respect for the status of the inmates as human beings, and this violation of the human dignity of the inmates does not depend on the extent of the violation of human rights that actually occurs behind the prison walls (cf. in this respect the question of employing employees in a prison (HCJ 1163/98 Sadot v. Israel Prison Service [21])).

37. The violation of the human dignity of prison inmates described above, which inherently derives from the existence of a privately managed prison, is naturally exacerbated by the invasive character of the powers that amendment 28 allows the private concessionaire and its employees to exercise vis-à-vis the inmates in addition to the violation inherent in the actual imprisonment. These include, as aforesaid, placing an inmate in administrative isolation for a period of up to 48 hours, the use of firearms in order to prevent inmates escaping from the prison, the use of reasonable force in order to conduct a body search on the inmates, a visual examination of the naked bodies of inmates and taking urine samples from inmates. It should also be noted that we do not accept the state’s claim that the injury caused by the exercise of authority over an inmate by a employee of a private company lies in the subjective feelings of the person making the claim and  that this is not essentially a legal argument. The violation of the human dignity of inmates in a privately managed prison is not an injury that derives from the subjective feelings of those inmates, but an objective violation of their constitutional right to human dignity.

38. An additional aspect of the violation of the constitutional right to human dignity that is caused by amendment 28 lies in the social and symbolic significance of imprisonment in a privately managed prison. This aspect of the right to human dignity, which distinguishes it from other human rights, is discussed by the learned Prof. Meir Dan-Cohen, who expresses a view that the existence of a violation of human rights that derives from a certain act or institution depends on the symbolic significance that society attributes to that act or institution, whether the source of that symbolic significance lies in its clear and express content or in some form of social consensus with regard to the aforesaid act or institution, irrespective of the empirical data regarding that act or institution (which may be the source of that symbolic significance), and irrespective of the specific intention of the party carrying out an act of that type in specific circumstances. Prof. Dan-Cohen writes in this respect:

‘Once an action-type has acquired a symbolic significance by virtue of the disrespect it typically displays, its tokens will possess that significance and communicate the same content even if the reason does not apply to them… As long as certain actions are generally considered to express disrespect, one cannot knowingly engage in them without offending against the target’s dignity, no matter what one’s motivations and intentions are’ (see M. Dan-Cohen, Harmful Thoughts: Essays on Law, Self, and Morality (2002), at p. 162).

This fundamental approach to the special nature of the right to human dignity expresses an approach that befits the matter before us, when we consider the narrow and essential meaning of the right. Indeed, in many cases a violation of human dignity is accompanied by a violation of additional human rights such as a violation of the right to life and physical integrity and a violation of the right to privacy. Notwithstanding, a violation of human dignity may also be an ‘independent’ violation, when a certain act that is done or a certain institution that is created do not inherently violate other human rights, but they reflect an attitude of disrespect from a social viewpoint towards the individual and his worth as a human being. In so far as amendment 28 is concerned, this approach requires us to examine the significance that Israeli society attached to the imprisonment of a person in a prison that is managed and operated by a private corporation, whose employees are given various invasive powers over the inmates in that prison.

39. As we explained above, amendment 28 admittedly violates the constitutional right to personal liberty, but in addition it independently violates, as described above, the human dignity of the inmates in a privately managed prison. This is because the imprisonment of a person in a privately managed prison is contrary to the basic outlook of Israeli society (an outlook that we discussed in paragraphs 24-25 above) with regard to the responsibility of the state, which operates through the government, for using organized force against persons subject to its authority and with regard to the power of imprisonment being one of the clear sovereign powers that are unique to the state. When the state transfers the power to imprison someone, with the invasive powers that go with it, to a private corporation that operates on a profit-making basis, this action — both in practice and on an ethical and symbolic level — expresses a divestment of a significant part of the state’s responsibility for the fate of the inmates, by exposing them to a violation of their rights by a private profit-making enterprise. This conduct of the state violates the human dignity of the inmates of a privately managed prison, since the public purposes that underlie their imprisonment and give it legitimacy are undermined, and, as described above, their imprisonment becomes a means for a private corporation to make a profit. This symbolic significance derives, therefore, from the very existence of a private corporation that has been given powers to keep human beings behind bars while making a financial profit from their imprisonment (see, in this regard, I.P. Robbins, ‘Privatization of Corrections: Defining the Issues,’ 40 Vand. L. Rev. 813, at pp. 826-827 (1987)).

The relationship between the restrictions on the concessionaire’s powers and the supervisory mechanisms provided in amendment 28, on the one hand, and the violation of the right to personal liberty and human dignity, on the other

40. When we seek to assess the nature and the intensity of the violation of the constitutional rights to personal liberty and human dignity that is caused by amendment 28, we are required to take into account the various restrictions on the private concessionaire’s activity provided in amendment 28 and the various supervisory measures for the concessionaire’s activity that were provided within the framework of the amendment. According to the state and the concessionaire, in view of the aforesaid restrictions and supervisory arrangements, it should not be said that the amendment reflects a shirking by the state of its basic responsibility for enforcing the criminal law.

41. Indeed, the respondents correctly argue that a significant attempt was made by the legislature to limit the violation of human rights caused by amendment 28; it is important to point out that no provisions were included in the amendment that allow a more serious violation of the human rights of the inmates of a privately managed prison than the violation of human rights of the inmates in state managed prisons. Moreover, it should be noted that certain invasive powers that are given to the officers of the Israel Prison Service — including the power to disciplinary adjudicate inmates and the power to order an extension of the period during which an inmate is held in administrative isolation beyond 48 hours — are not given to the employees of the private concessionaire. Moreover, section 128K of the Prisons Ordinance, which was enacted within the framework of amendment 28, regulates the manner in which the provisions of the law regarding a state managed prison will apply to a privately managed prison, and in this regard s. 128K(c)(1) of the Ordinance provides that an inmate held in a privately managed prison shall have all the rights, benefits and services that are given to an inmate in a prison that is not privately managed. Moreover, s. 128I of the Prisons Ordinance imposes on ‘the concessionaire, individuals with significant influence therein, the governor and the concessionaire’s employees’ the provisions of the Penal Law, 5737-1977, that apply to civil servants (cf. CrimFH 10987/07 State of Israel v. Cohen [22]). This provision was also intended to result in making the legal norms that apply to the employees of the private concessionaire the same as those that apply to the officers of the Israel Prison Service. In this respect it is not superfluous to point out that it would appear that the concessionaire operating the privately managed prison is subject to the judicial scrutiny of the High Court of Justice and the rules of administrative law, as it is a body that fulfils a public function under s. 15(d)(2) of the Basic Law: The Judiciary. In view of this, and since the powers of the employees of the private concessionaire are subject to restrictions parallel to those imposed on the powers of the officers of the Israel Prison Service, we cannot determine that the provisions of amendment 28, in themselves, allow the private concessionaire and its employees to violate the human rights of inmates in the privately managed prison to a greater degree than the violation of the human rights of inmates in a state managed prison.

42. In addition to the provisions described above, which were intended to make the normative position of the inmates in the privately managed prison equal to those of the inmates in the state managed prisons, amendment 28 provides various mechanisms for the state to supervise the activity of the private concessionaire (see sections 128S, 128U-128X, 128AF-128AL, 128AO and 128AW of the Prisons Ordinance). These supervisory mechanisms, which are apparently more comprehensive than the supervisory mechanisms that exist in other countries where private prisons operate in a similar format, are prima facie capable of reducing the concern that the violation of human rights in the privately managed prison will be greater than that in the prisons of the Israel Prison Service (regarding the supervisory mechanisms for private prisons that exist in the United States, Britain and other countries, see Pozen, ‘Managing a Correctional Marketplace: Prison Privatization in the United States and the United Kingdom,’ supra, at pp. 276-281; C.M. Donnelly, Delegation of Governmental Power to Private Parties – A Comparative Perspective (2007), at pp. 105-108; R.W. Harding, Private Prisons and Public Accountability (1997), at pp. 51-55). In this context it should also be pointed out that according to the presumption of constitutionality that amendment 28 enjoys, we should assume that the supervisory mechanisms provided in the amendment will operate properly; in any case, the arguments with regard to the manner of exercising them are the kind of arguments that are more suited to being examined in an administrative petition than in a constitutional one.

We have not overlooked the fact that amendment 28 contains a provision that is intended to contend with the concern that the violation of the human rights of inmates in the privately managed prison will be greater because of improper economic considerations. This provision appears in s. 128G(b) of the Prisons Ordinance, which provides the following:

‘Agreement between the Israel Prison Service and the corporation regarding the construction, management and operation of a privately managed prison

128G. ...

(b) The amount of the consideration for the concessionaire that will be determined in the agreement shall not be made conditional upon the number of inmates that will actually be held in a privately managed prison, but it may be determined in accordance with the availability of prison places in the number provided in the schedule or on a smaller scale as the commissioner shall determine with the approval of the comptroller-general at the Ministry of Finance.’

This provision is indeed intended to limit the concern that economic inducements will motivate the concessionaire operating the privately managed prison to act in improper ways to increase the number of inmates in the prison or to extend their terms of imprisonment.

43. The creation of the aforementioned supervisory mechanisms for the activity of the private concessionaire, as well as the various restrictions on the scope of its powers as provided in amendment 28, show that the legislature was also aware of the constitutional difficulty inherent in transferring powers to manage and operate a prison to a private corporation that is a profit-making enterprise. But the supervisory measures described above cannot provide an answer to the difficulty inherent in the very management and operation of a prison by a private concessionaire. As we clarified at length in paragraphs 29-30 and 36-39 above, and for the reasons set out there, in view of the degree of the violation of the constitutional rights caused as a result of the actual transfer of the powers of imprisonment and the invasive powers included therein to a private corporation, public supervision is insufficient to eliminate the violation and the damage that it involves. We shall discuss the relationship between the violation and the possibilities of supervision in greater detail in paragraphs 52-54 below.

Does amendment 28 satisfy the limitation clause tests?

44. Since we have found that granting powers to manage and operate a prison — together with the invasive powers involved therein — to a private corporation and its employees, as was done in amendment 28, violates the constitutional rights to personal liberty and human dignity of the inmates in the privately managed prison, we are called upon to examine whether this is a permitted violation. Indeed, the rights to personal dignity and human dignity, like the other human rights recognized in our constitutional law, are not absolute, and a certain act of legislation will not be unconstitutional solely because it violates a constitutional right. The violation of the constitutional rights to liberty and human dignity in amendment 28 will be lawful it is satisfies the conditions of the limitations clause in s. 8 of the Basic Law: Human Dignity and Liberty, which provides the following:

‘Violation of rights

8.  The rights under this Basic Law may only be violated by a law that befits the values of the State of Israel, is intended for a proper purpose, and to an extent that is not excessive, or under a law as stated by virtue of an express authorization therein.’

The limitations clause expresses the balance provided in Israeli constitutional law between the rights of the individual and the needs of society as a whole and the rights of other individuals. It reflects our constitutional outlook that human rights are relative and may be restricted. The limitations clause therefore fulfils a dual role — it stipulates that the human rights provided in the Basic Laws shall not be violated unless certain conditions are satisfied, but at the same time it defines the conditions in which the violation of the human rights will be permitted (see HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [23], at p. 52 {355}; HCJ 1661/05 Gaza Coast Local Council v. Knesset [24], at p. 546). The limitations clause provides that four cumulative conditions need to be satisfied in order that a violation of a constitutional right that is protected in the Basic Law: Human Dignity and Liberty, will be lawful: the violation of the right should be made in a law (or by virtue of an express authorization in a law); the law should befit the values of the State of Israel; the purpose of the law should be a proper one; and the violation of the constitutional right should not be excessive. If one of these four conditions is not satisfied, this means that the violation of the constitutional right is not lawful, and the provision of the law that violates the constitutional right is unconstitutional. Since we have found that amendment 28 violates the constitutional rights to personal liberty and human dignity, we should examine whether the conditions of the limitations clause are satisfied by it.

45. Regarding the first condition provided in the limitations clause — the demand that the violation of the protected constitutional right should be made by a law — no one disputes that amendment 28 satisfies this condition.

The second condition provided in the limitations clause, according to which the law that violates the constitutional right should befit the values of the State of Israel does not give rise to any real difficulty in our case. This condition refers, according to the purpose clause provided in s. 1A of the Basic Law: Human Dignity and Liberty, to ‘the values of the State of Israel as a Jewish and democratic state’ (see Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [23], at p. 53 {356}). In their petition, the petitioners raised a claim that amendment 28 is inconsistent with the values of the State of Israel as a democratic state because it violates the principle of the separation of powers. We see no reason to accept this claim in the case before us. Indeed, the values of the State of Israel as a democratic state also include the principle of the separation of powers and it is possible that a particularly serious violation of this principle in a certain law will justify a determination that the law is unconstitutional, since it is inconsistent with the values of the State of Israel as a democratic state. Notwithstanding, the petitioners’ claims in the petition before us did not focus on the question of whether this condition is satisfied, and it is indeed hard to see how this condition may be violated by anything other than unusual and exceptional circumstances; it is therefore possible to assume that amendment 28 satisfies the condition of befitting the values of the State of Israel.

The third condition provided in the limitations clause is that the violation of the constitutional right should be done for a proper purpose. The purpose of the law should be regarded as a proper purpose when it is intended to protect human rights or to realize an important public or social purpose, in order to maintain a basis for coexistence within a social framework that seeks to protect and advance human rights (see Menahem v. Minister of Transport [4], at p. 264). The nature of the violated right and the extent of the violation may also shed light on whether the purpose of the violating law is a ‘proper purpose’ (see Iyyad v. State of Israel [6],at para. 30 of the judgment). According to the state, the purpose of amendment 28 is to bring about a direct and indirect improvement of inmates’ prison conditions at a reduced budgetary cost. This purpose of improving the prison conditions of inmates in Israel — even if it is combined with an economic purpose — is a proper purpose. It should be noted that the petitioners’ claim with regard to the requirement of the proper purpose is that the purpose of economic efficiency does not in itself constitute a proper purpose that justifies a violation of constitutional rights. This claim of the petitioners is too sweeping, since there are situations in which an economic purpose will be considered a proper purpose that justifies a violation of human rights, depending on the type of purpose, its importance to the public interest and the extent of the violation of the constitutional right (see, for example, HCJ 5578/02 Manor v. Minister of Finance [25], at pp. 739-740; HCJ 4947/03 Beer Sheba Municipality v. Government of Israel [26], at para. 11 of the judgment). As we shall clarify below, the weight of the economic purpose in amendment 28 is very significant, and this aspect is capable of affecting the manner in which we consider whether amendment 28 satisfies the requirement of proportionality and the constitutional balance that it requires between various principles and values. But in the circumstances of the case before us, the mere existence of an economic purpose that is combined with an attempt to realize the purpose of improving prison conditions, as expressed in amendment 28, cannot prevent the amendment from satisfying the requirement of a proper purpose. It follows that we need to examine whether the means chosen by the legislature to realize the proper purpose of amendment 28 satisfy the requirement of proportionality.

46. The fourth condition provided in the limitations clause, on which we shall focus our main deliberations, demands that the violation caused by the law under discussion to the protected constitutional right shall be ‘to an extent that is not excessive.’ This condition concerns the proportionality of the violation of the constitutional right; in other words, even if the violation of the constitutional right is effected by a law that befits the values of the State of Israel and that is intended for a proper purpose, the law may still be found to be unconstitutional if its violation of the constitutional right is disproportionate. The requirement of proportionality therefore examines the means chosen by the legislature to realize the (proper) purpose of the legislation.

The case law of this court has recognized three subtests that are used to examine the proportionality of the violation of a protected constitutional right by an act of legislation. The first subtest is the rational connection test, which examines whether the legislation that violates the constitutional right is consistent with the purpose that it is intended to realize. The second subtest is the least harmful measure test. This test requires us to examine whether, of all the possible measures for realizing the purpose of the violating law, the measure that harms the protected constitutional right to the smallest possible degree was chosen. The third subtest is the test of proportionality in the narrow sense. This test requires the violation of the protected constitutional right to be reasonably commensurate with the social advantage that arises from the violation (see Menahem v. Minister of Transport [4], at pp. 279-280; Movement for Quality Government in Israel v. Knesset [19], at paras. 57-61 of the opinion of President Barak).

The three aforementioned subtests do not always require one option to be chosen in order to realize the purpose of the legislation. In many cases the legislature may be confronted by several options that differ in the degree to which they violate the constitutional right under discussion and the extent to which they realize the relevant legislative purposes. When there are various possibilities that may satisfy the requirement of proportionality, the legislature has a margin of legislative appreciation that we call the ‘margin of proportionality,’ within which the legislature may choose the possibility that it thinks fit. The limits of the margin of appreciation given to the legislature in a concrete case are determined by the court in accordance with the nature of the interests and the rights that are at issue. The court will intervene in the legislature’s decision only when the measure that was chosen by it departs considerably from the scope of the margin of legislative appreciation given to it and is clearly disproportionate (see Menahem v. Minister of Transport [4], at p. 280; AAA 4436/02 Tishim Kadurim Restaurant, Members’ Club v. Haifa Municipality [27], at pp. 812-813; Gaza Coast Local Council v. Knesset [24], at pp. 550-552).

47. With regard to the first subtest of proportionality — whether the legislative measure chosen is consistent with the legislative purpose — the dispute between the parties focuses on the question whether amendment 28 is expected to realize the economic aspect of its purpose. The petitioners claim in this respect that they have in their possession opinions that indicate that global experience does not show a clear connection between the privatization of prisons and an economic saving, and they argue that this conclusion can also be seen in various works of academic research. The state, on the other hand, relies on an opinion that was submitted to the tenders committee for the privately managed prison project, which argues that the bid of the concessionaire that won the tender is expected to bring about a saving for the state, which is estimated at approximately 20%-25% of the cost of operating a prison, with similar standards, that is built and operated by the Israel Prison Service. According to this opinion, the saving over the whole period of the concession is estimated at approximately NIS 290-350 million. This question of achieving the budgetary savings goal, as well as the goal of improving the prison conditions of the inmates, is a question that naturally depends on the manner in which the provisions of amendment 28 will actually be implemented. In the case before us, we are not speaking of a situation in which prima facie there is no rational connection between the provisions of the legislation that violates the protected constitutional right and the purposes that the act of legislation is supposed to realize. In any case, at this stage of the ‘privatization’ planning process, the state cannot prove that better conditions for the inmates will indeed be achieved with the expected budgetary savings, nor are we able to determine that amendment 28 is not prima facie capable of realizing the purposes of an economic saving and improving the prisons conditions of inmates that it was designed to achieve. Therefore, we are prepared to assume for the sake of argument that the rational connection regarding the purpose of amendment 28 does exist.

48. The second test of proportionality is, as we have said, the least harmful measure test, which requires that of all the possible measures for realizing the purpose of the legislation, the measure that violates the protected constitutional right to the smallest extent should be chosen. With regard to this subtest, the petitioners argued that it is possible to achieve the economic purpose underlying amendment 28 with measures that violate human rights to a lesser degree. This can be done, according to the petitioners, by building additional state managed prisons or by means of only a partial privatization of powers that do not contain a predominant element requiring the exercise of sovereign power. The state claims in reply that it has not yet found a sufficiently effective means of furthering the purpose of improving the prison conditions of inmates in Israel at a reduced budgetary cost that involves a lesser violation of human rights (in so far as such a violation actually exists). In this regard the state emphasizes that the arrangement provided in amendment 28 includes many significant safeguards. The state further argues that when the policy concerning the privatization of the prisons was formulated, the ‘French model’ in this field was also examined. According to the ‘French model’ for privatizing prisons (which is also used in a similar form in Germany), there is cooperation between the state and the private enterprise in managing the prison, which is reflected in the fact that various logistical services provided in the prison are outsourced, but the issues of security and enforcement are not entrusted to the private enterprise.

As can be seen from the state’s affidavit in reply, in June 2002 the Minister for Public Security approved the privatization of prisons on an ‘expanded French model,’ which also included the transfer to the private enterprise of certain powers in the fields of security and guarding. However, the state claims that ultimately, after examining the experience that has been obtained around the world in operating prisons, it was decided that the privatization would be done in accordance with the ‘English model’ (according to the state, in accordance with an ‘improved English model’), in which the management of the prison is entrusted to a private enterprise operating under the supervision of the state, which retains for itself a limited number of powers (especially powers to try and sentence inmates). The main reason given in the state’s pleadings for rejecting the ‘French model’ for privatizing prisons is that the division of responsibility and powers between the Israel Prison Service and the private enterprise that operates the prison is expected, on the basis of experience around the world, to cause many problems in the proper management of the prison. The concessionaire states in this regard that there is serious criticism of the ‘French model,’ which in the opinion of many does not give expression to the advantages of privatization and the involvement of the private sector, and that the separation of the security functions from the administrative functions makes it difficult to create a uniform policy and to define goals. The concessionaire further argues that, to the best of its knowledge, at the stage when the state considered implementing the ‘French model,’ a considerable difficulty was discovered in finding international enterprises that would be prepared to enter into an investment and partnership in Israel on the basis of this model. From these arguments it therefore follows that, according to the state and the concessionaire, the model that was ultimately adopted in amendment 28 is the one that best realizes the purposes that giving the powers to manage and operate a prison to a private concessionaire was intended to realize.

49. From the state’s affidavit-in-reply it can therefore be seen that after various options were examined with regard to the manner of implementing the privatization, each with its various administrative and economic significances, the option called by the state ‘the improved English model’ was chosen. This option is the one embodied in amendment 28. Since this option provides that powers to exercise force, which is essentially a sovereign function, will be transferred to the private enterprise’s employees, it results in a more serious violation of the personal liberty and human dignity of the inmates than the ‘French model’ for prison privatization (a model which, as aforesaid, only includes outsourcing of the logistic powers in the prison, rather than the powers relating to security and enforcement). In the circumstances of the case, we have arrived at the conclusion that the data presented to us is insufficient for determining that the option that was chosen does not satisfy the second subtest of proportionality. It is well known that the second subtest of proportionality does not merely examine whether there is a measure that violates the protected constitutional right to a lesser degree, but it requires us to examine whether that less harmful measure realizes the legislative purpose to the same degree or to a similar degree as the measure chosen by the legislature (see HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28], at paras. 88-89 of the opinion of President Barak). The state claims, with regard to the difficulty in implementing the French model, that this model does not realize the purpose of improving prison conditions with a budgetary saving to the same extent as this purpose may be realized by amendment 28. Since we are unable to determine in what less harmful way it is possible to achieve the combined purpose of improving prison conditions while making a budgetary saving, which according to the state underlies the purpose of amendment 28, and since this issue naturally requires proof that we do not have before us, the conclusion that follows is that amendment 28 also satisfies the second subtest of proportionality.

50. The third subtest of proportionality is the test of proportionality in the narrow sense. This test is essentially an ethical test in which we are required to examine whether the public benefit that arises from the legislation whose constitutionality is under discussion is commensurate with the damage to the constitutional right caused by that act of legislation (see Gaza Coast Local Council v. Knesset [24], at p. 550; Movement for Quality Government in Israel v. Knesset [19], at para. 60 of the opinion of President Barak). The existence of this proper proportion is examined by striking a balance between the relative social importance of the various principles underlying the expected public benefit from the act of legislation against the degree of harm to the violated human right. Within the framework of this subtest, we should examine the additional social benefit that arises from the legislation relative to the position before the law was enacted, and the additional damage to the constitutional right that is caused by enacting the law (see Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28], at paras. 91-92 of the opinion of President Barak). The third subtest of proportionality assumes that the constitutional violation satisfies the first two subtests of proportionality. It assumes that there is a rational connection between the act of legislation that violates the constitutional right and the purpose that the act of legislation is intended to achieve, and that the measure chosen by the legislature inflicts upon the constitutional right the least possible harm that is required in order to realize the legislative purpose. Subject to the existence of these requirements, the third subtest examines whether the purpose of the legislation justifies the measures chosen to realize it. The special function of the third subtest of proportionality was discussed by President Emeritus Barak in HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defence [29] in the following terms:

‘... there is a major difference between the first and second subtests and the third subtest. The first two subtests — the rational connection and the least harmful measure — focus on the means of realizing the purpose. If it transpires, according to these, that there is a rational connection between realizing the purpose and the legislative measure that was chosen, and that there is no legislative measure that is less harmful, the violation of the human right — no matter how great — satisfies the subtests. The third subtest is of a different kind. It does not focus merely on the means used to achieve the purpose. It focuses on the violation of the human right that is caused as a result of realizing the proper purpose. It recognizes that not all means that have a rational connection and are the least harmful justify the realization of the purpose. This subtest seeks in essence to realize the constitutional outlook that the end does not justify the means. It is an expression of the concept that there is an ethical barrier that democracy cannot pass, even if the purpose that is being sought is a proper one’ (see Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defence [29], at para. 30 of the judgment).

In the case before us we are required, within the context of the test of proportionality in the narrow sense, to examine the relationship between the public benefit that arises from amendment 28 and the damage caused by amendment 28 to the constitutional rights to personal liberty and human dignity of inmates in the privately managed prison. When implementing this subtest of the requirement of proportionality, we are also obliged to take into account the provisions provided in amendment 28, which we discussed in paragraphs 41-42 above, that were intended to address the concerns of a violation of the human rights of the inmates as a result of transferring imprisonment powers to a private corporation motivated by a desire to maximize its financial profits.

51. In our deliberations above, we discussed at length the type of violation of human rights created by amendment 28. In paragraphs 22-30 above, we set out in detail the special significances of the violation of liberty as a result of privatization of the prison. Inter alia, we clarified that the violation of the rights to liberty and dignity deriving from introducing a private prison system is not reflected in the actual power of imprisonment, which is invasive in itself, since the actual violation of the personal liberty also occurs when the imprisonment takes place in a state managed prison. In the case of a privately managed prison, the violation lies in the identity and character of the body to which powers are given to violate liberties in the format provided in amendment 28 of the Prisons Ordinance.

We mentioned the democratic legitimacy of the use of force by the state in order to restrict the liberty of individuals and to deny various rights that they have, when this violation is carried out by the organs of the state and for the purposes of protecting the public interest. By contrast, as we clarified above, when the power to deny the liberty of the individual is given to a private corporation, the legitimacy of the sanction of imprisonment is undermined and the extent of the violation of liberty is magnified. As graphically described by one of the scholars that criticize the privatization of prisons, there is a significant difference between a situation in which the party holding the keys to the prison is the state acting for and on behalf of the public, where the inmate is one of the members of that public, and a situation in which the key is entrusted to a commercial enterprise, which represents its own personal economic interest (N. Christie, Crime Control as Industry (second edition, 1994), at p. 104). This difference has implications for the type and extent of the violation. Imprisonment that is based on a private economic purpose turns the inmates, simply by imprisoning them in a private prison, into a means whereby the concessionaire or the operator of the prison can make a profit; thereby, not only is the liberty of the inmate violated, but also his human dignity.

52. Now that we have addressed the violation of human rights that will be caused by amendment 28, we need to examine, within the framework of the third subtest of proportionality, what lies on the other pan of the scales, namely the public benefit that amendment 28 is intended to advance. In its affidavit-in-reply, the state argued that this benefit is a twofold benefit — achieving a significant financial saving, which according to the state is expected throughout the whole period of the concession (which according to the wording of the permit that was attached to the state’s affidavit-in-reply is twenty-four years and eleven months) to reach the amount of NIS 290-350 million, while improving prison conditions for the inmates. In other words, it can be said that the state, in enacting amendment 28, was aware of the need to contend with the serious overcrowding that exists in Israeli prisons, which has also been addressed by this court (see Physicians for Human Rights v. Minister of Public Security [10]). The question before it concerned the means it should adopt in order to contend with this crisis, and in these circumstances the state chose a measure of dealing with the aforesaid crisis that in its opinion is the most economically viable. The purpose underlying the enactment of amendment 28 and the special arrangements provided in it was, therefore, an economic purpose. In our opinion this is the main public purpose that amendment 28 sought to achieve and it is the raison d’être that underlies it; had the economic savings not been the main consideration taken into account by the legislature, there would have been no need to enact amendment 28, and it would have been possible to contend with the problem of overcrowding in the prisons by building additional state managed prisons or by improving the existing prisons, in accordance with the normative framework that existed prior to the enactment of amendment 28. It can therefore be said that although amendment 28 was enacted with the aspiration of improving the prison conditions of the inmates, the purpose of the concrete legislative arrangement chosen as a means of achieving this worthy aspiration is to achieve as great an economic saving as possible for the state.

It is important to mention in this context that the special defence mechanisms for prison inmates’ rights that were provided in amendment 28, on which the state and the concessionaire base their replies to the petition, do not constitute a part of the public benefit that amendment 28 is intended to achieve. An examination of these mechanisms as a whole — starting with the various restrictions that were imposed on the powers of the concessionaire’s employees that operate the prison, continuing with the state’s ongoing means of supervising the concessionaire’s activity and ending with the possibility that the state will intervene in what is happening if the private concessionaire does not carry out its undertakings — show that these mechanisms were intended to prevent the private concessionaire abusing the invasive powers given to it within the framework of amendment 28. The introduction of these mechanisms, as we said in paragraph 43 above, is an expression of the fact that the legislature was also aware of the difficulties that amendment 28 raises and the concerns inherent in giving imprisonment powers and the invasive powers deriving therefrom to a private concessionaire. We are therefore not dealing with legislative measures that were enacted merely because the legislature recognized a need to improve the protection of the human rights of inmates in Israeli prisons, but with preventative measures that were intended to neutralize, in so far as possible, the concerns that arise from a transfer of imprisonment powers to a private concessionaire, which was designed to achieve as large an economic saving as possible for the state. In this context we should further add that we are of the opinion that there is an inherent difficulty in estimating the economic benefit that is expected to accrue to the state from the operation of the privately managed prison, certainly when we are speaking of a concession period of almost twenty-five years. Prima facie, in view of the supervisory mechanisms that the state is required to operate by amendment 28, it would appear that the actual economic benefit of amendment 28 can be questioned. Notwithstanding, since it is impossible to determine categorically that amendment 28 is not expected to give rise to an economic benefit to the state, we are prepared for the purposes of our deliberations to assume, as we said in paragraph 47 above, that the economic benefit underlying amendment 28 will indeed be realized.

53. When we examine the question whether the expected benefit that will arise from realizing the purpose of amendment 28 — improving prison conditions while maximizing economic savings — is commensurate with the damage inherent in giving a private concessionaire power to harm inmates, we should remember that since the third subtest of proportionality is essentially an ethical test, it depends to a considerable extent on the values and norms that are accepted in the society under discussion. Naturally, in different countries there may be different outlooks with regard to the question of the scope of state responsibility in various fields and the relationship that should exist between the fields of activity that should be managed by the public sector and the fields in which most activity will be carried out by the private sector. These outlooks are determined, inter alia, by political and economic ideologies, the special history of each country, the structure of the political system and the government, and various social arrangements. These differences between the various countries are expressed in the content of the constitutional arrangements laid down in each country. The role of the court, which is required to interpret and give content to the various constitutional arrangements is not, of course, to decide between various economic and political ideologies; notwithstanding, the court is required to reflect the values enshrined in the social consensus and in the ethical principles that are common to the members of society, to identify the basic principles that make society a democratic society and identify what is fundamental and ethical, while rejecting what is transient and fleeting (see HCJ 693/91 Efrat v. Director of Population Registry, Ministry of Interior [30], at p. 780).

54. As to whether amendment 28 satisfies the test of proportionality in the narrow sense, we have reached the conclusion that the relationship between the intended social benefit of achieving an improvement in prison conditions while making a maximum financial saving by using a private concessionaire, as described in the state’s affidavit-in-reply, and the degree of the violation of human rights caused by the provisions of amendment 28 is a disproportionate one. The violation of the inmates’ human rights that is caused by establishing a privately managed prison in which the private concessionaire’s employees are given extensive powers to use force, which is in essence a sovereign power, is not a violation that is limited to a single issue or an isolated incident. Amendment 28 results in the establishment of an organizational structure whose very existence seriously violates the personal liberty of the inmates of the privately managed prison, to an extent that exceeds what is required by imprisonment itself, and the human dignity of those inmates in the basic and fundamental sense of this concept. This violation is an ongoing violation that occurs continuously for as long as an inmate is confined within a prison where he is subject to the authority of the employees of a private concessionaire. As we have said, this violation is exacerbated by the invasive character of the powers given to the private concessionaire. Indeed, the various supervision and control measures may reduce, and maybe even prevent, the concrete violation of the inmates’ human rights in the privately managed prison as compared with the violation of the human rights of inmates in state managed prisons from the viewpoint of prison conditions and routine; but as we said in paragraph 43 above, these mechanisms do not eliminate the violation of human rights involved in the actual transfer of imprisonment powers over inmates to a private profit-making corporation. In other words, in view of the great social importance of the principles underlying the granting of power to imprison offenders and the invasive powers that derive from it solely to the state, in comparison to the result achieved by realizing the goal of improving prison conditions while making as large a financial saving as possible for the state, the ‘additional’ violation of the constitutional rights to personal liberty and human dignity deriving from granting the aforesaid powers to a private profit-making corporation is disproportionate to the ‘additional’ public benefit that will allegedly be achieved by amendment 28.

It should further be noted that the fact that amendment 28 allows the establishment of only one prison as a ‘pilot’ cannot affect the constitutional analysis that we have made. The reason for this is that, from the viewpoint of the inmates who are supposed to be housed in that prison, the violation of their human rights that derives from their imprisonment in the privately managed prison is caused irrespective of the question whether there are additional inmates imprisoned in other privately managed prisons (in this respect it should be noted that no argument was raised before us with regard to discrimination against inmates in the privately managed prison relative to the inmates in the prisons of the Israel Prison Service, and therefore we see no reason to address this issue).

Therefore, our conclusion is that the damage described above — the greater violation of rights that are in the ‘hard core’ of human rights — is not commensurate with the benefit, in so far as there is any, in the economic saving expected from the construction, management and operation of a prison by a private concessionaire. The purpose of having state managed prison authorities is to realize the law enforcement process by imprisoning persons who have been lawfully sentenced to imprisonment, and to realize sentencing goals with tools and means that the system of democratic government provides for this purpose. No one denies the need to take action to improve the welfare and living conditions of prison inmates in Israel; but blurring the boundaries between this proper purpose and the goal of financial saving, by allowing a private concessionaire of a prison to make financial profits, disproportionately violates human rights and the principles required by the democratic nature of the regime.

55. It should be noted that the petitioners claim that the important purpose of improving the prisons conditions of inmates in Israel can also be achieved in other ways that they indicated, such as building additional state managed prisons or building a prison in which the powers that will be privatized do not include giving the private concessionaire’s employees sovereign power over the inmates. Prima facie, it would appear that the main disadvantage inherent in these methods lies in the economic-administrative sphere, and we are prepared to assume in favour of the state and the concessionaire that the method of operating prisons adopted in amendment 28 will lead to greater economic and administrative efficiency than the methods indicated by the petitioners. But when we balance the violation of the human rights of prison inmates as a result of their being imprisoned in a privately managed prison that operates in the format set out in amendment 28 against the realization of the purpose of improving prison conditions while achieving greater economic and administrative efficiency, the constitutional rights to personal liberty and human dignity are of greater weight. In other words, for the reasons that we have explained above, the benefit to the public interest arising from a realization of the purpose of amendment 28 — improving the prison conditions of inmates while achieving a maximum saving by employing a private concessionaire — is disproportionate to the damage caused as a result of the violation of the human rights of inmates in the privately managed prison. Indeed, in so far as the state is required to improve the prison conditions of inmates — a proper and important purpose — it should be prepared to pay the economic price that this involves, and it should accept that ‘efficiency’ (whatever the meaning of this concept is) is not a supreme value, when we are dealing with a violation of the most basic and important human rights that the state is obliged to uphold.

Therefore, our decision in the case before us is that the social benefit arising from amendment 28 is not commensurate with the violation of protected human rights caused by the provisions of the amendment.

56. Since we have found that amendment 28 does not satisfy the third subtest of proportionality, we are led to the conclusion that the violation of the constitutional rights to personal liberty and human dignity caused by amendment 28 is a disproportionate one that does not satisfy the conditions of the limitations clause. Amendment 28 is therefore unconstitutional.

A comparative analysis of the question of prison privatization

57. Before we conclude our deliberations and examine the consequences of the unconstitutionality of amendment 28, we think it right to address in brief the parties’ arguments regarding the phenomenon of prison privatization around the world. The petitioners argued that experience in other countries shows that the violation of the human rights of inmates of private prisons is greater than the violation of the human rights of their counterparts in state prisons. The respondents for their part argued that the phenomenon of privatizing prisons is not unique to Israel, and various democratic countries, including the United States and Britain, have adopted this method of dealing with the problem of overcrowding in prisons and in order to save on the cost of imprisoning offenders. In none of these countries, it is claimed, has it been held that the privatization of prisons is unconstitutional, or that the state has a constitutional obligation to manage the prisons itself.

58. ‘Privatized’ prisons operate today in various countries around the world, but the manner in which the privatization is implemented and regulated differs from one country to another. This difference is reflected both in the spheres of activity within the prison that can be privatized and in the degree of the state’s supervision of the activity of the party operating the private prison. Thus, for example, the possibility of entering into a contract with private enterprises in order to manage and operate prisons is regulated in legislation, inter alia, in the United States (both on the Federal level and at state level) and Britain. The various acts of legislation that regulate the privatization of prisons differ from one another, inter alia, in the scope of the powers given to the concessionaire in fields that have a potentially significant effect on the human rights of the inmates. In this respect it should be noted that the approach adopted in the United States is that it is possible to give the private concessionaire the responsibility for all of the aspects involved in managing and operating the prison, including the enforcement of discipline in the prison and the use of force against inmates; however, various individual states have determined in their legislation various arrangements regarding the degree of influence given to private enterprises that operate prisons on the dates of the inmates’ release, determining disciplinary rules in the prison and determining disciplinary offences, classifying the inmates from the viewpoint of the benefits to which they are entitled and the degree of state supervision over the activity of the private enterprise (see W.L. Ratliff, ‘The Due Process Failure of America’s Prison Privatization Statutes,’ 21 Seton Hall Legis. J. 371 (1997)). In Britain too, like in the United States, the private concessionaire and its employees have been given powers that include maintaining security and discipline in the prison and using force against the inmates; but, as a rule, the scope of the powers given to private enterprises that operate prisons is more limited in the British model than in the American model. It would also appear that the state’s supervision over the activity of the private prisons in Britain is more significant than the accepted level of supervision in the United States (see Pozen, ‘Managing a Correctional Marketplace: Prison Privatization in the United States and the United Kingdom,’ supra, at pp. 277-278). As we said in paragraph 48 above, a different model of prison privatization has been adopted in France (and in Germany). According to the French model, private concessionaires were not given all of the duties and powers involved in managing and operating a prison, but, as can be seen from the Knesset’s reply to the petition, only those relating to logistic services. The aforementioned differences in the characteristics of the privatization of prisons in various counties may naturally have considerable significance with regard to the question of the constitutionality of the privatization.

59. From the expert opinions that were filed in this petition — the opinion of Prof. I.P. Robbins for the petitioners and the opinion of Prof. J.F. Blumstein for the concessionaire — it would appear that the courts in the United States have not hitherto held that any of the various legislative arrangements in force in the United States regarding the privatization of prisons are unconstitutional. Indeed, it would appear that the premise of the courts in the United States when considering matters concerning the privatized prisons is that the privatization of the prisons does not in itself give rise to any constitutional difficultly (a good example of this is the judgment of the Federal Court of Appeals for the seventh circuit, in which Judge Posner explained that inmates who raised a constitutional argument against their transfer from a state prison to a private prison ‘would be foolish to do so’; see Pischke v. Litscher [83], at p. 500; for a similar approach of the Federal Courts of Appeal in the United States, see: Montez v. McKinna [84], at p. 866; White v. Lambert [85], at p. 1013. See also the judgment of the Supreme Court of the State of Oklahoma, in which it rejected a claim that giving a permit to counties in the state to enter into contracts with private enterprises in order to manage and operate prisons was an unconstitutional delegation of powers by the legislature: Tulsa County Deputy Sheriff's Fraternal Order of Police v. Board of County Commissioners of Tulsa County [86]). It would therefore seem that the main questions that have been considered by the courts in the United States regarding the privatization of prisons concerned the scope of the tortious liability of the private prisons and their employees in relation to that of the state prisons and their employees (see Richardson v. McKnight [87]; Correctional Services Corporation v. Malesko [88]). It should be noted, however, that several judgments in the United States have held that the public nature of the role fulfilled by the corporations that operate private prisons makes them subject to the provisions of the Constitution (see Skelton v. Pri-Cor, Inc. [89], at pp. 101-102; Rosborough v. Management and Training Corporation [90]).

60. It should also be noted that we have not found any consideration by the courts in Britain, South Africa and the European Union, as well as by the European Court of Human Rights, of the question of the constitutionality of the privatization of prisons. From the opinion of Prof. J. Jowell that was filed by the state, it would appear that hitherto no claims have been raised before the aforesaid courts with regard to the constitutionality of the privatization of prisons. Prof. Jowell’s opinion is that were arguments of this kind to be raised before those courts, they would not be expected to be successful, inter alia because of the economic character of the issue and the lack of a ground of incompatibility with the provisions of the European Convention on Human Rights.

61. It is therefore possible to summarize by saying that a comparative analysis of the case law on the question of the privatization of prisons shows that no court has yet held that the privatization of prisons is unconstitutional. On the other hand, we have also not found any significant consideration of the questions of constitutionality that the matter raises. This situation is not insignificant and it is capable of justifying great care on our part when we consider the constitutionality of amendment 28, since a comparative examination of the law applying to the privatization of prisons in other countries around the world and of the constitutional questions that this phenomenon raises may help us decide some of the questions that arise in our case and show us additional aspects of these issues. But ultimately the manner in which we interpret the Basic Laws in general and the Basic Law: Human Dignity and Liberty in particular is determined in accordance with the fundamental principles of the system of government and the legal system in Israel.

62. As we said in paragraph 53 above, different countries are likely to have different outlooks on the subject of the duties and obligations of the state in general and of the government in particular. These outlooks are capable of influencing the manner in which the specific issue of the constitutionality of the privatization of prisons is examined. In this context it should be noted that both in the United States and in Britain — unlike in Israel — there is a historical tradition of operating private prisons, which naturally is capable of influencing the manner in which the constitutionality of the privatization of prisons is regarded (see Pozen, ‘Managing a Correctional Marketplace: Prison Privatization in the United States and the United Kingdom,’ supra, at pp. 257-258); White, ‘Rule of Law and Limits of Sovereignty: The Private Prison in Jurisprudential Perspective,’ supra, at pp. 122-126). Notwithstanding, it should be emphasized that even in countries where prisons have been privatized the matter is subject to serious public debate, and there is also very critical literature regarding the experience that has been accumulated with respect to the operation of private prisons. The main concern raised in this critical literature is that economic considerations will give the private enterprise operating the prison an incentive to increase the number of inmates in the prison, extend their terms of imprisonment or reduce prison conditions and the services provided to inmates in such a way that ultimately this will lead to a greater violation of the inmates’ human rights that what is necessitated by the actual imprisonment. Moreover, the literature raises a concern that parties with economic interests will have an influence on the length of the terms of imprisonment and the types and levels of sanctions. We should point out that this criticism should not be regarded as separable from the arrangements that exist in those systems (see, for example, S. Dolovich, ‘State Punishment and Private Prisons,’ 55 Duke L.J. 437 (2005), at pp. 518-523; D.N. Wecht, ‘Breaking the Code of Deference: Judicial Review of Private Prisons,’ 96 Yale L.J. 815 (1987), at pp. 829-830; J. Greene, ‘Lack of Correctional Services’ in Capitalist Punishment – Prison Privatization & Human Rights (edited by A. Coyle, A. Campbell and R. Neufeld, 2003), 56-66; M.J. Gilbert, ‘How Much is Too Much Privatization in Criminal Justice,’ in Privatization in Criminal Justice – Past, Present and Future (edited by D. Shichor & M.J. Gilbert, 2001), 41, at pp. 58-65 ; Donnelly, Delegation of Governmental Power to Private Parties – A Comparative Perspective, supra, at pp. 110-111; White, op. cit., at pp. 138-139).

In any case, we have not found anything in the pleadings on the subject of comparative law raised by the respondents that is capable of changing our position with regard to the unconstitutionality of amendment 28.

The petitioners’ claims that are based on s. 1 of the Basic Law: the Government

63. Since we have found that amendment 28 is unconstitutional because it disproportionately violates human rights that are protected under the Basic Law: Human Dignity and Liberty, we do not need to consider the petitioners’ claims that are based on s. 1 of the Basic Law: the Government. Indeed, we accept that the Basic Law: the Government, as a Basic Law, enjoys a super-legislative constitutional status, and therefore it is possible to engage in judicial scrutiny of provisions of ‘ordinary’ legislation that are alleged to conflict with the provisions of the Basic Law: the Government (see HCJ 1384/98 Avni v. Prime Minister [31], at p. 209); but in the case before us it would indeed appear, as the respondents argue, that s. 1 of the Basic Law: the Government, which provides that ‘The government is the executive branch of the state,’ is essentially a declarative section that is intended to establish in principle the role of the government in the Israeli constitutional system. There is therefore a difficulty in using it as a basis for arguments against the constitutionality of the privatization of various government services. The source of the aforesaid difficulty is that s. 1 of the Basic Law: the Government does not expressly determine specific duties or spheres of activity where the government has an exclusive responsibility to act. Notwithstanding, despite the aforesaid difficulty and especially in view of our outlook concerning the broad interpretation that should be given to provisions that have a constitutional status, we are inclined to interpret the provision of s. 1 of the Basic Law: the Government in a manner that enshrines on a constitutional level the existence of a ‘hard core’ of sovereign powers that the government as the executive branch is liable to exercise itself and that it may not transfer or delegate to private enterprises. As can be seen from the aforesaid, the powers involved in the imprisonment of offenders and in the use of organized force on behalf of the state are indeed included within this ‘hard core.’ Naturally, adopting an interpretation of this kind will require us to define clearly the limits of that ‘hard core,’ since it may be assumed that there is no constitutional impediment to privatization of the vast majority of services provided by the state, and this matter lies mainly within the scope of the discretion of the legislative and executive branches. Nonetheless, in view of the result that we have reached, we are not required to make any firm determination with regard to the interpretation of s. 1 of the Basic Law: the Government, and this issue can be left for consideration at a later date. Moreover, the absence of an express limitations clause in the Basic Law: the Government gives rise to the question of how the constitutionality of a provision of ‘ordinary’ legislation can be examined when it is alleged that it conflicts with a provision of the Basic Law: the Government. In any case, in the matter before us no decision is required on the question of the manner of exercising judicial scrutiny with regard to ordinary legislation that conflicts with one of the Basic Laws that relate to the system of government, such as the Basic Law: the Government. In these circumstances, we are naturally also not called upon to decide the petitioners’ claims regarding the majority with which amendment 28 was passed in the Knesset, since these claims are based on the assumption that amendment 28 conflicts with s. 1 of the Basic Law: the Government.

The constitutional relief

64. Amendment 28 is contrary to the basic principles of the system of government in Israel, since it gives the invasive powers involved in the management and operation of a prison, which until now have belonged exclusively to the state, to a private corporation that operates on a profit-making basis. We have therefore reached the conclusion that amendment 28 violates the constitutional rights to personal liberty and human dignity of the prison inmates that are supposed to serve their sentences in the privately managed prison. This violation does not satisfy the conditions of the limitations clause in the Basic Law: Human Dignity and Liberty, since it is disproportionate. Therefore we have reached the conclusion that amendment 28 is unconstitutional. This, then, gives rise to the question of the relief for the unconstitutionality.

65. Amendment 28 creates a complete arrangement regarding the privatization of one prison that will be managed and operated by a private corporation. From our judgment it can be seen that the unconstitutionality inherent in amendment 28 derives from the transfer of powers to imprison inmates and the invasive powers incorporated therein to a private corporation. Indeed, not all the provisions of amendment 28 directly concern the exercise of invasive powers against the inmates in the privately managed prison, and therefore prima facie we need to ask whether there is a basis for declaring amendment 28 void in its entirety. We see no alternative to this outcome, because the arrangement in amendment 28 is a comprehensive arrangement in its structure and content, in which the granting of the powers relating to using force against the inmates is an integral part, and therefore were we to set aside only the provisions concerning the granting of the invasive powers, the remaining provisions would be unable to stand independently and the purpose of amendment 28 would not be realized (see Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28], at paras. 97-98 of the opinion of President Barak; A. Barak, Legal Interpretation — Constitutional Interpretation (1994), at pp. 736-737). In this context it should be noted that we have not heard any claim that it is possible to separate the various provisions of amendment 28, and during the hearing of the petition the constitutional deliberations concerned the provisions of amendment 28 as a whole. It should be made clear that we are not adopting any position with regard to the ideal arrangement that should replace amendment 28, but we think it right to point out that the petitioners did not dispute the constitutional propriety of transferring logistical powers in the prison, such as those relating to food services, construction work and laundry, to private corporations, and our rulings in this judgment do not exclude this possibility. In any case, when this court has reached the conclusion that a certain act of legislation is unconstitutional, it is not our role to determine the details of the legislative arrangement that will replace the unconstitutional act of legislation. This is the responsibility of the Knesset (see and cf.: Israel Investment Managers Association v. Minister of Finance [7], at pp. 415-416; Tzemah v. Minister of Defence [5], at p. 284 {687}).

It is also important to point out that our decision in this case is based on the violation of human rights that derives from the transfer of the actual powers to imprison offenders, which involve a violation of their human rights, to a private corporation that operates on a profit-making basis. We are not adopting any position on the legality of the transfer of other functions within the law enforcement system to private enterprises or to any other public authority. Similarly, our conclusions in this judgment do not express any opinion on the legality of the privatization of government services in other fields (such as health, education and various social services), which both in the extent to which they relate to the basic powers of the state and in the extent to which they violate human rights are different from the powers involved in holding prison inmates under lock and key.

66. After writing the aforesaid, I saw the opinion of my colleague Justice Procaccia. Obviously I am in agreement with her opinion, in so far as it relates to the state’s liability to enforce the criminal law and the protection of public order and the importance of executive power being exercised by the state in order to protect the individuals under its authority. Our paths diverge with regard to the analysis of the nature and character of the violation of constitutional human rights caused by amendment 28.

67. According to my colleague Justice Procaccia, the constitutional violation caused by amendment 28 is not a concrete violation of human rights but a risk that arises from the potential disproportionate violation of human rights of the inmate of the privately managed prison, beyond the violation caused to each inmate by his actual imprisonment. In her opinion, my colleague Justice Procaccia points to the concern that economic considerations that motivate the private concessionaire, which has been entrusted with sovereign authority, and the lack of control and deterrent measures such as those that restrict the exercise of authority by the civil service, will result in a potentially ‘major, profound and ongoing’ violation of the most fundamental basic rights of the inmates of the privately managed prison. These concerns are not unfounded, and as I said in paragraph 19 above, I too share them. Notwithstanding, in my opinion, were we only speaking of a potential violation of human rights, it is questionable whether this would justify a judicial determination regarding the unconstitutionality of primary legislation of the Knesset. As a rule, we exercise caution and restraint when exercising judicial review of Knesset legislation. Sometimes there is no alternative to exercising judicial review of legislation enacted by the Knesset, and the case before us is such a case; but I am of the opinion that the premise in constitutional scrutiny is that a mere potential violation of human rights is an insufficient basis for setting aside primary legislation of the Knesset.

Indeed, in so far as a certain provision of a Knesset law violates constitutional human rights in a manner that is inconsistent with the Basic Laws, its constitutionality should be examined in accordance with the accepted tests that our case law provides for this purpose. But in so far as we are dealing with a potential violation of human rights, as opposed to an actual violation, then as a rule such a violation will not justify judicial intervention to set aside legislation. The constitutional scrutiny of an act of legislation will take place at the stage of examining the results, after the manner in which it is implemented de facto has become clear (see and cf. HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [32], at pp. 483-484 {354}). Therefore, my position regarding the unconstitutionality of amendment 28 is not based on a potential violation of human rights caused by the provisions of the amendment, but on the actual violation of the constitutional rights to personal liberty and human dignity caused by the provisions of the amendment themselves, irrespective of the manner in which they will actually be implemented. Moreover, apart from the fundamental difficulty inherent in exercising judicial review of Knesset legislation that is entirely based on a potential violation of human rights, I do not think that it is possible to do this in the circumstances of the case before us. The reason for this is that no adequate probative basis has been brought before us for a judicial decision regarding the potential violation that amendment 28 may cause to the human rights of inmates in the privately managed prison in comparison to the state prisons; certainly no sufficient basis was established in order for us to determine that there exists the degree of likelihood proposed by my colleague Justice Procaccia, namely ‘a near certainty that when realized will materially and seriously violate a constitutional basic right’ (see the end of para. 26 of her opinion). It should be remembered that the supervisory mechanisms provided in amendment 28 are capable, prima facie, of reducing the extent of the potential violation of the human rights of inmates discussed by my colleague Justice Procaccia. For this reason also it is hard to determine that the aforesaid probability test is satisfied in the circumstances of the case before us.

68. I should also point out that the approach of my colleague Justice Procaccia regarding the legislative purpose of amendment 28 is also, in my opinion, problematic. Indeed, I agree with the position of my colleague Justice Procaccia that the enactment of amendment 28 was based on a desire to improve prison conditions of inmates in Israeli prisons. Notwithstanding, I do not think that in the circumstances of the case and as can be seen from the state’s reply it is possible to hold that improving the welfare of the prison inmates is the main purpose of amendment 28. As I said in paragraph 52 of my opinion, if it were not for the fact that amendment 28 is based on an economic purpose, there would have been no need to enact it. The purpose of improving the welfare of prison inmates is desirable and praiseworthy, and prima facie it could have been achieved without any need for any normative change. In the circumstances of the case, the purpose of improving the welfare of the inmates cannot be separated from the economic purpose underlying the privatization, which is the main purpose of amendment 28. For this reason, I also have difficulty in examining the constitutionality of the violation of inmates’ rights caused by amendment 28 in relation to the proper purpose of improving the welfare of the inmates as proposed by my colleague. Moreover, in my opinion there is a concern that if we accept the balancing formula proposed by my colleague Justice Procaccia, this will undermine to a large degree the manner in which the limits of permitted violations of human rights are defined within the context of the limitations clause, because it may be assumed that in a considerable number of cases (and especially when we are speaking of an act of legislation that satisfies the requirement of the proper purpose), it will also be possible to ‘translate’ the value of public interest that is weighed on the scales against the violated human right into another human right (and in this regard I attach no special importance to whether we are supposedly speaking of the rights of the same individual). An analysis of this kind is likely to obscure the distinction between the human rights that are protected in our constitutional system and the values and interests that may justify a violation of those rights. My concern is that this conceptual obfuscation contains a potential for weakening the extent of the constitutional protection of human rights in our legal system.

Conclusion

69. Amendment 28 of the Prisons Ordinance causes an unconstitutional violation of the human rights to personal liberty and human dignity that are protected in the Basic Law: Human Dignity and Liberty, and therefore amendment 28 should be set aside. Since the privately managed prison whose establishment is regulated by amendment 28 has not yet begun to operate, we see no reason to suspend the declaration that amendment 28 is void for the purpose of the prison being operated and managed by a private concessionaire. Therefore, if my opinion is heard, we shall determine that amendment 28 of the Prisons Ordinance is set aside with immediate effect because of its unconstitutionality. In order to remove doubt, it should be clarified that we are not adopting any position with regard to the ramifications of the finding that amendment 28 is unconstitutional on the relationship between the state and the concessionaire in the field of private law.

 

 

 

 

Justice E. Arbel

I agree with the opinion of my colleague the president and with her reasoning.

1.    In the president’s comprehensive opinion, she set out at length the functions and powers imposed on the private concessionaire within the framework of the Prisons Ordinance Amendment Law (no. 28), 5764-2004 (hereafter: ‘amendment 28’), by virtue of which a privately managed prison is being built in Israel. All of the aforesaid functions and powers have been entrusted to the state since its establishment and throughout its history and have served as a fundamental element of its sovereignty. The question that lies at the heart of the petition is whether the state can unburden itself of these functions and powers and entrust sovereign functions and powers to private enterprises. Like the president, I too am of the opinion that the answer to this question is no. I would like to add three emphases of my own to her opinion: these relate to the exclusive role of the state in employing coercive force, the violation of the human right to dignity as a result of establishing the privately managed prison and the concern inherent in the privatization of prisons of a conflict of interests in certain matters.

2.    Following the classical philosophers in the field of political science, which my colleague reviewed in her opinion, the power to exercise coercive force to deny or restrict liberty is given to the state by virtue of a metaphorical ‘social contract’ that is made between it and the citizens living in it, in which the citizens voluntarily given the state the power to deny liberties and to make use of coercive force, inter alia in order to guarantee their protection and security and to protect their property (see also Élie Barnavi’s survey in his book The Rise of the Modern State (1995) (Hebrew), at pp. 68-76, 82-89, 97-108). This power that was entrusted to the state as the agent of the political community lies at the very heart of the government’s sovereign functions, alongside the power to maintain an army, a police force and courts. The transfer of these functions from the state to a private enterprise undermines the justification that underlies the exercising of the power and amounts to a refusal by the state, albeit only a partial one, to play ‘its part’ in the social contract. It makes the state a bystander that does not seek to realize independent goals of its own.

Indeed, it is the state that, by virtue of the social contract, realizes the wishes of the community. It is the state that, under that same contract, is given the powers to implement these wishes. And it is the state only that is entitled to exercise coercive measures and employ force in order to realize this purpose, while taking into account public considerations and no others. Only the state has the power to distil the collective aspiration of the community and to reflect the ‘general wishes’ inherent therein of upholding the human rights of each of its individuals (see E. Peleg, Privatization as Publicization — Privatized Bodies in Public Law (2005), at p. 92), including those whose voices are not heard, since it alone is motivated by the interests of the general public. Only when the state wields this power does it have democratic legitimacy because of the consensual aspect and the nature of its purposes. The agreement between the citizens and the government is not fully realized by transferring the power to employ coercive force, including by means of holding someone in prison, but also by the state being the one that exercises the power as the agent of the political community, since otherwise the justification for its existence will be undermined (see P. Moyle, ‘Separating the Allocation of Punishment from its Administration: Theoretical and Empirical Observations,’ 41 British Journal of Criminology 83 (2001)).

By transferring these powers to a private enterprise, we are no longer dealing with the realization of the wishes of the individuals members of society on the basis of their consent to transfer natural rights to the community in order to promote order and security, but with the transfer of powers to an outsider that is not a party to the social contract, is not bound by the norms inherent therein and does not necessarily seek to realize its goals. This weakens the moral standing of the state vis-à-vis the public in general, and vis-à-vis prison inmates in particular, and it de facto weakens the responsibility and commitment that it owes to the prison inmates, which are now based only on indirect supervision while the role of formulating criteria for exercising the power is left in the hands of the private enterprise. This also erodes to some extent the concept of justice, which no longer stands on its own as a goal in itself, and it may weaken the authority of the organs of state, the integrity with which they are regarded, public confidence in government and the nature of democratic government in its widest sense. In such circumstances, depriving the prison inmates of their liberty loses a significant element of the justification for it.

3.    Transferring the relevant type of powers, which includes significant and persistent aspects of the use of coercive force that are given to the state as sovereign, to a private enterprise inherently violates human rights, including the human right to dignity and the human right to liberty.

The value of human dignity on which I will focus, which for a decade and a half has enjoyed a special status of a super-legislative constitutional right in our legal system, recognizes the worth of human beings and regards them as an end in themselves (see A. Barak, Legal Interpretation — Constitutional Interpretation (1994), at p. 421; A. Barak, ‘Human Dignity as a Constitutional Right,’ 41 HaPraklit 271 (1994), at pp. 277, 280). As the philosopher Immanuel Kant said, a person should not be treated solely as a means of achieving external goals, since this involves a violation of his dignity, or in his words: ‘Accordingly, the practical imperative should be as follows: act in such a way that you treat humanity, whether in yourself or in any other person, always also as an end, and never merely as a means’ (Immanuel Kant, Fundamental Principles of the Metaphysics of Morals). In particular, the value of human dignity contains a set of rights without which man’s being a free creature has no meaning (see HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [32]). In the context before us, this right includes, inter alia, ‘minimal civilized humane arrangements for the manner of satisfying these needs in order to uphold his dignity as a human being from a psychological viewpoint’ (see CrimApp 3734/92 State of Israel v. Azazmi [33]). Indeed, when he enters the prison, the inmate takes with him all his human rights, except for those that he is necessarily deprived of by the imprisonment, and especially the right to freedom of movement. Therefore, the state and the organs of government have the duty not to violate the inmate’s right to human dignity to a greater extent than required for achieving the purposes of the imprisonment. These are not mere words but a determination that has operative significance (see CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [34], at p. 526). The question of what will be regarded as a violation of human dignity requires us to take into account, inter alia, ‘the circumstances of time and place, the basic values of society and its lifestyle, the social and political consensus and normative reality’ (Commitment to Peace and Social Justice Society v. Minister of Finance [32], at para. 13). Within this framework, care should be taken, on the one hand, not to interpret ‘human dignity’ so broadly that every human right is included in it, and on the other hand not to limit its scope merely to extreme cases of torture and degradation, since this will frustrate the purpose underlying the right (see HCJ 4128/02 Man, Nature and Law — Israel Environmental Protection Society v. Prime Minister of Israel [9], at p. 518; Barak, ‘Human Dignity as a Constitutional Right,’ supra, at p. 285).

4.    Imprisoning someone in a privately managed prison involves a violation of the right to dignity that is not merely a potential violation that depends upon the realization of concerns regarding the nature, standard and quality of the service that will be provided by the private operator, but a violation that is realized and comes into existence when the imprisonment powers and the powers ancillary thereto are exercised by a private concessionaire.

Indeed, in addition to the inmate being placed under lock and key, for the whole period of his sentence he is subject to a regime that is marked by the use of force against him in respect of each facet of his life. During his term of imprisonment, the inmate loses his independence, the strict daily schedule is dictated by the prison authorities, and his access to the protections that the law affords him against a violation of his rights is indirect and restricted. Alongside this, in prison an inmate is likely to encounter, often in an unexpected manner, concrete situations of an increased violation of his rights in certain circumstances and conditions, including the possibility of being held in administrative isolation, undergoing a body search that is carried out forcibly, being prevented from meeting a lawyer subject to various restrictions, being subjected to a visual inspection of his naked body, etc.. The power to carry out these actions, which include direct and potential aspects of a violation of the right to privacy, the right to liberty, the freedom of movement, the right to dignity and additional rights, is also granted under section 128R of the Prisons Ordinance, albeit subject to various conditions, to the governor of the privately managed prison.

Granting a power to employ invasive powers of these kinds to someone that is chosen by a private concessionaire, who is motivated by business concerns and is not subject to the authority and direct supervision of the government authority, its public traditions, its written and unwritten rules, the interest of the general public or the considerations that underlie the imposition of the sentence, undermines the rationale justifying the use of force as a proportionate measure for realizing public purposes. It implies arbitrariness, lessens the worth of human beings and violates their dignity. Employing coercive force in such a situation no longer relies on the broad consensus that is intended to allow a safe society, but on a shirking of a significant part of the direct responsibility and the need for accountability. It abandons the prison inmate, who is already at the bottom of the social ladder and in a sensitive and vulnerable situation, to his fate.

5.    Moreover, transferring imprisonment powers from the state to a party whose main purpose is by definition the pursuit of profit invites the inclusion of foreign and irrelevant considerations among those weighed by that party. These are inconsistent with the need to guarantee the rights and welfare of the inmates. This conflict of interests does not need to be realized de facto or to find any practical expression, but it is not eliminated even if, as the respondents claim, the privatization may achieve its stated goal of benefiting the inmates and improving their conditions in certain respects. The fact that a private enterprise, which is chosen and operates on the basis of its ability to maximize income and minimize expenditure, is given the powers under discussion, with their invasive elements, is sufficient reason to regard actions that are usually permitted as forbidden; it violates the human dignity of the prison inmates and exacerbates the violation of their liberty that is caused by the actual imprisonment.

Indeed, imprisonment powers are not limited merely to ‘technical’ administrative matters that do not involve any exercise of discretion by the responsible party in questions concerning a violation of human rights. Examples of this can be found in amendment 28, inter alia, in the power given to the governor of the prison to order an inmate to be held in isolation for a period of up to 48 hours in certain circumstances and under certain conditions (s. 128R(c)(1) of the Prisons Ordinance); the power of the governor of the prison to order an inmate to provide a urine sample, to conduct an external examination of his naked body and to search his body while using reasonable force in certain circumstances and under certain conditions (s. 128R(c)(4)-(5) of the Prisons Ordinance); the duty of the parole board, when it considers the possibility of commuting the term of an inmate’s imprisonment, also to take into account, among its other considerations, the recommendation regarding the inmate given by the governor of the privately managed prison (s. 9(7) of the Release from Imprisonment on Parole Law, 5761-2001), etc.. These powers involve a large element of discretion regarding parameters and criteria for exercising the power. Introducing economic considerations as independent considerations and even paramount ones, without it being necessary to reconcile the profit considerations with those underlying the imprisonment and the manner of implementing it, subordinates those considerations that are normally of the greatest importance to business considerations and allows them to be realized only in so far as they are consistent with the economic purpose, which constitutes the premise. Thus the main goal of exercising the power of imprisonment openly and unashamedly becomes a business goal; the inmates become de facto a means of realizing this goal; the ‘customers’ to whom the corporation is accountable are its shareholders; the scope of considerations is restricted and may become distorted; and the public purposes underlying imprisonment unintentionally become a secondary goal. The aspiration to reduce costs, which according to the supporters of the market economy approach is restrained in ordinary business activity by the ‘concealed hand’ in the free market mechanism and competition, has no restraint in the present case where there is no competition (which is certainly as it should be). In such circumstances, this aspiration is likely to conflict with the need to protect inmates’ rights, which costs money. Peleg, who considered the problem in a broader context, aptly said that —

‘The altruistic trust approach, which prevails today in public law, will not be voluntarily upheld by the privatized body. Between the interests of the individual and the privatized enterprise there is a huge conflict of interests (emphasis in the original). Respecting the constitutional rights of the individual costs a considerable amount of money. The privatized enterprise seeks to make a profit… Minimizing expenditure also implies a reduction in the welfare and even the health of the patient. The corporation seeks to provide a service, but mainly to make as large a profit as possible as quickly as possible. It regards itself as loyal to itself only… The worker in the privatized corporation regards the owner as his “boss,” as a kind of sovereign, who influences his welfare. Naturally he will do whatever serves his employer’s interest, thereby serving his own interest. In a choice between the employer’s interest and the patient’s interest, his choice will be clear…

The inherent conflict of interests is between the aspiration of the privatized enterprise to make as much profit as possible and the interest to improve the quality of the privatized service. The concern is strengthened when the customers are needy and weak. Privatization in the public interest is a privatization that ultimately improves the quality of the service; otherwise, one may well ask whether the privatization is really in the public interest’ (Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra, at p. 63).

As we have said, the violation of the rights of prison inmates, and especially the right to dignity, is not necessarily a concrete or a direct one. Admittedly, it is not possible, for example, to allay utterly the concern that in so far as the directors of the privately managed prison choose to reduce their costs for the salaries of prison employees whom they employ, this will lead, inter alia, to the employment of less experienced and qualified staff, who will change frequently and find it increasingly difficult to contend with the sensitive situations that arise from time to time in the prison. It is also not possible to rule out for certain the fear the hidden interests will be taken into account and that there is an increased risk of corruption when the party operating the prison is a private enterprise. But it is difficult to draw unequivocal operative conclusions from this potential that there is a greater probability of a worse violation of inmates’ human rights in a privately managed prison. The same is true with regard to concerns that the quality of services that will be provided by a privately managed prison in fields such as health care, drug addiction rehabilitation, professional training and general rehabilitation, which prima facie are addressed in the contract between the state and the operator of the prison (see Y. Feld, Crime Pays: What can be Learned from the American Experience in Privatizing Prisons (Adva Centre, 2002)). But even if it is not possible to point to a specific violation, the transfer of the power to operate a prison to a private enterprise creates the impression that irrelevant considerations are involved when the invasive powers are exercised, something that undermines the moral authority underlying the activity of that enterprise and public confidence in it (Feld), since even if justice is done, it is not seen to be done. This is not a mere matter of aesthetics; the harm is real, since it upsets the delicate balance between the need to deny the liberty of the inmates in order to realize the social purposes at the heart of the criminal law and sentencing policy, and the desire to protect the basic rights of the inmates even while they are paying their debt to society. This results in an independent violation of the right of prison inmates to dignity.

6.    It is true that the supervision for which the state is responsible and the standards which the private concessionaire is required to meet seriously curtail the concessionaire’s ability to sacrifice the rights and welfare of the inmates in the privately managed prison to its profits. Indeed, as the president said, amendment 28 includes several mechanisms that reduce the concern of a violation of the basic rights of the inmates and provide an effective ‘address’ to which complaints and grievances about what happens in the prison may be sent.

However, not only is it questionable whether these supervisory mechanisms are capable of ‘covering’ all the situations in which there is a concern that the human rights of the inmates will be violated, since it is sometimes hard to predict how these will occur, but it is also doubtful whether they can truly locate and identify the nature of the considerations underlying the employment of an invasive measure that is formally permitted by the law, and prevent the preference of economic considerations when these involve a violation of the inmates’ rights. At the same time, it should be remembered that prison inmates are often a particularly weak sector of the population, and while in the prison they are in a susceptible and vulnerable position where they have been deprived of a significant number of their rights. In these circumstances, since the activity that takes place in the prison is hidden from the light of day, it is questionable whether some of the components of the supervision mechanism, which depends upon a direct flow of information from the victim to the supervisory body so that the latter can exercise its authority, will be effective. Therefore, the supervisory mechanism may become of limited value in ensuring that the privately managed prison discharges its duties, with the result that the concerns are not addressed. Moreover, the supervisory mechanism naturally provides relief in certain situations only after the event, and sometimes a period of time may pass before it is possible to prevent the continuation of an invasive practice. When we are dealing with the most basic of human rights like those that concern prison inmates that are serving their sentences, this fact may have serious repercussions. Even in places where the private concessionaire has incentives that are designed to induce him to improve from the outset the services that he provides, there is a difficulty in the fact that his decision as to whether to succumb to these incentives depends upon the degree of benefit that they afford him relative to the cost of improving the service he provides. Finally, as the president said, the aforesaid supervisory mechanism, which seeks to contend with every problem on an individual basis, cannot contend with the fundamental difficulty inherent in the transfer of imprisonment powers and the accompanying powers to a private enterprise. To a large extent, the detailed provisions regarding the mechanism highlight this difficulty.

7.    This court has said many times that —

‘Any human right that a human being has is retained even when he is held under arrest or in prison, and the mere fact of the imprisonment does not deny him any right unless it is required and implied by the actual loss of his freedom of movement, or when there is an express provision of law to this effect’ (HCJ 337/84 Hukma v. Minister of Interior [35], at p. 832; PPA 4463/94 Golan v. Prisons Service [11]; HCJ 355/79 Katlan v. Israel Prison Service [20], at p. 298).

The harm to a prison inmate held in a privately managed prison includes an independent element of a violation of his dignity that goes beyond the violation that derives from the imprisonment itself. Indeed, if the state chooses to discharge its responsibility for a prison inmate by means of indirect supervision of the prison in which he is held, the dignity of that inmate is violated. If an inmate is held in a prison where the prison employees are chosen by a private profit-making enterprise on the basis of unclear criteria, the dignity of that inmate is violated. If the liberty of an inmate is denied on an ongoing basis by a private concessionaire that has discretion to employ again him far-reaching powers that violate his basic rights, the dignity of that inmate is violated. The value of human dignity deserves broad protection, even if it is not absolute, and in the struggle against conflicting interests it should be given great weight and protected against any violation that is unnecessary or excessive. Since in my opinion the aforesaid violations of the inmates’ rights that result from the creation of the privately managed prison exceed their economic benefit, which itself is not free from doubt, and since the mechanisms provided by amendment 28 are incapable of preventing the aforesaid violations, which are of greater scope than any solution that may be given to a specific violation, I have decided to join my opinion to that of my colleague the president and order amendment 28 to be set aside.

 

 

Justice A. Grunis

I agree with the opinion of my colleague the president, subject to the reservation that I see no need to address the issue of human dignity in the context under discussion. It is sufficient merely to hold that there is a violation of personal liberty.

 

 

Vice-President E. Rivlin

I concur with the opinion of my colleague, the president. My colleague holds that transferring powers of imprisonment entrusted to the state over to a private enterprise violates the constitutional human rights protected under the Basic Law: Human Dignity and Liberty. My colleague also finds that this violation does not satisfy the provisions of the limitations clause, and as such, the Prisons Ordinance Amendment Law (no. 28), 5764-2004, should be set aside. I agree with my colleague’s reasoning and her conclusions. There is no doubt that setting aside Knesset legislation is reserved for cases in which there is a fundamental violation of protected constitutional principles that fails to satisfy the limitations clause provisions. In this case, the arrangement provided for in the law does not merely allow the state to seek assistance of private enterprise in carrying out its sovereign obligations, but rather constitutes a real privatization of imprisonment and transferral of a significant part of its powers. The violation involved in the arrangement undermines the very structure of the democratic constitution. It is also possible to hold that we are dealing with a violation that exceeds the scope of the Basic Laws, and lies in the field of the social contract upon which the existence of the state is founded. Releasing the state from the monopoly granted to it with regard to the use of force in order to protect the public interest undermines the principles upon which the entire social and constitutional foundations of the state rest.

For this reason, as well as for those set out by my colleague the president in her comprehensive opinion, I concur with the conclusion that amendment 28 of the Prisons Ordinance is void.

 

 

Justice A. Procaccia

1.    This proceeding concerns a constitutional question of great importance that touches on the limits of what the state may and may not do when exercising the coercive authority given to it in order to maintain public order and security, and regarding the transfer thereof to private hands. By the expression ‘coercive authority’ in this context I mean the powers that the state is given under the law to prosecute criminal proceedings at all of its stages — investigation, arrest, trial and imprisonment — while exercising the institutional power that allows it to restrict a person’s liberty and violate additional human rights that he has, including the rights to privacy, freedom of occupation, property and sometimes even his dignity as a human being.

2.    My colleague, President Beinisch, devoted extensive legal research and analysis to the complex subject of the relationship between the duty of the state to maintain public order and security in its broadest sense and to afford a basic protection of human rights — in this case, the rights of prison inmates — in the context of the question whether the state may unburden itself of its direct sovereign duty to manage prisons and transfer it to private hands. I agree with the conclusion that in the complex balance between these values, the necessary outcome is that the sovereign responsibility of the state to manage a prison and its duty within that framework to exercise coercive authority over the individual as a part of the process of enforcing the criminal law and implementing sentences, cannot be transferred to private hands. This is because of the potential that the core human rights given to a prison inmate may be violated to a greater extent than is permitted under the limitations clause in the Basic Law: Human Dignity and Liberty (hereafter: ‘the Basic Law’). Therefore, amendment 28 of the Prisons Ordinance [New Version], 5732-1971 (hereafter: ‘the Prisons Ordinance’ or ‘the Ordinance’) should be set aside.

3.    I would like to make several comments regarding the analysis of the constitutional violation inherent in amendment 28 of the Ordinance, and especially with regard to the manner of striking the constitutional balance between it and conflicting interests and rights for the purpose of examining whether it satisfies the conditions of the limitations clause in the Basic Law.

The limits and restraint of sovereign power — the doctrine of balances in the exercise of sovereign power

4.    The state has authority over and responsibility for all stages of criminal proceedings. The social contract on which the democratic political system is predicated assumes that for the purpose of ensuring the existence of human society, public order is essential, as well as a sovereign body that will be responsible for maintaining it. The state is responsible for preserving a normative system that will define the rules of what human beings may and may not do, and it will enforce compliance with these as an essential part of the protection of public order (H.L.A. Hart, Punishment and Responsibility (second edition, 2008), at pp. 4-5).

5.    The enforcement of norms of conduct, for which the state is responsible, incorporates a power to exercise authority over individuals who breach the rules of conduct and thereby undermine the social order. For this purpose, the executive branch is given powers to investigate, arrest, try, sentence and imprison. Exercising these powers naturally involves a potential violation of the basic rights of the individual — his liberty, occupation, property, privacy and sometimes even his dignity.

6.    The potential violation of human rights that is inherent in the exercise of sovereign coercive authority within the context of criminal proceedings requires a strict definition of the limits of sovereign power. Indeed, the rules concerning the exercise of sovereign power have an inbuilt system of checks that defines its limits. The existence of sovereign power and the restrictions inherent in the exercise thereof are inseparable. The legitimacy of the exercise of sovereign coercive authority over the individual is derived from the restrictions on this power. It originates in the outlook that it may be exercised only to the limited degree necessary for maintaining public order, while violating the basic rights of the individual to the smallest degree possible. The restraint of sovereign power that is exercised over the individual lies at the heart of the democratic system of government, and is of its very essence (CrimFH 10987/07 State of Israel v. Cohen [22], at paras. 4-6 of my opinion).

7.    Alongside the substantive criminal norms determined by the state for the purpose of ensuring public order, it is given powers to enforce these norms in a criminal proceeding. Within the scope of these powers, it is authorized to conduct interrogations and searches, seize property, carry out arrests, hold trials, impose sentences and imprison convicts. In the course of enforcing the norms in the criminal trial, human rights are violated, sometimes seriously. The rights to liberty and dignity, freedom of movement, freedom of occupation, property and privacy may be violated. The criminal proceeding and the basic rationale underlying it are based on an essential balance between the enforcement power given to the sovereign authority and the protection of the basic rights of the individual involved in that proceeding. The basic rules of the criminal proceeding are intended, inter alia, to restrain the sovereign power that is exercised over the individual involved in it and restrict it to the minimum necessary for achieving its proper purpose.

8.    Therefore, at every stage of the criminal proceeding, whether it is the criminal investigation, the trial, the sentence or the imprisonment, a balance is continually required between the exercise of sovereign force that is required to enforce the law and the protection of the human rights of the suspect, accused, convict and prison inmate. The organs of the state, which are each responsible for a different stage of the criminal proceeding, are constantly required to strike a balance between the essential degree to which executive coercive authority is exercised over the individual and the maximum possible protection of his basic rights as a human being, on as wide a scale as possible, subject only to realization of the proper purpose of the criminal proceeding. This applies to police officers at the investigation stage and when arresting a suspect; it applies to the court during the trial and when passing judgment; and it applies to the Israel Prison Service authorities when an inmate is serving a custodial sentence, which is also a part of the criminal proceeding (A. Harel, ‘Why Only the State may Inflict Criminal Sanctions: The Case Against Privately Inflicted Sanctions,’ 14(2) Legal Theory 113 (2008) (according to the version in the appendix attached to the petitioners’ notice)).

9.    The enforcement power that is given to the state in the criminal proceeding is a power that is limited to the achievement of the enforcement purpose and no more, and it is based on a concept of proportionality: human rights should not be violated in the criminal proceeding unless it is to uphold an essential public interest, and to an extent that is not excessive in the constitutional sense of this term. The police investigators, who are responsible for exercising the authority of conducting a criminal investigation and who have the powers to carry out interrogations, make arrests and conduct searches, are subject to restrictions on the exercise of the powers given to them in order to protect the rights of the person under investigation, including his liberty, dignity and privacy. These limits on their power are dictated solely by the essential needs of the investigation, and exceeding these limits is not permissible (cf. HCJ 5100/94 Public Committee Against Torture v. Government of Israel [36]). In conducting the trial and passing sentence, the court is responsible for striking a balance between the sentencing power that it exercises over the offender and the concern for his rights as a human being and his rehabilitation. In the last stage of the criminal proceeding — the offender’s imprisonment — the prison authorities, as organs of the state, have sovereign coercive authority to take steps against inmates in order to maintain order and security inside and outside the prison. This power is also limited in n