Justiciability

Meshulami v. Chief Rabbinate of Israel

Case/docket number: 
HCJ 2152/20
Date Decided: 
Sunday, March 22, 2020
Decision Type: 
Original
Abstract: 

The Supreme Court addressed a petition to order the Chief Rabbinate to intercalate the Hebrew calendar. The Petitioner sought to delay Passover by thirty days due to the coronavirus pandemic.

 

The Court (per Justice N. Sohlberg, Justices U. Vogelman and Y. Elron concurring) dismissed the petition in limine, expressing doubt as to the justiciability of the issue – a doctrine rarely invoked by the Court – and for lack of cause. 

Voting Justices: 
Primary Author
majority opinion
Non-writer
majority opinion
Non-writer
majority opinion
Full text of the opinion: 

HCJ 2152/20

 

Petitioner:                                Yedidya Ephraim Meshulami

 

                                                v.

 

Respondents:              1.         Chief Rabbinate of Israel

                                    2.         Government of Israel

                                    3.         The Knesset

 

 

The Supreme Court sitting as High Court of Justice

Before: Justice U. Vogelman, Justice N. Sohlberg, Justice Y. Elron

 

Petition for an order nisi

 

Judgment

 

Justice N. Sohlberg:

1.         This is a petition for the granting of an order nisi from the “side effects” of the corona virus: Why should the Respondents – the Knesset, the Government and the Chief Rabbinate – not immediately and urgently declare a leap year, such that a second Hebrew month of Adar be established, so that the month of Nissan will be postponed for thirty days, with all the attendant implications? The Petitioner is of the view that the current state of emergency requires this, as a sort of “first aid”, in view of the fact that our brethren are in isolation and quarantine, and will not have sufficient time to prepare for celebrating Passover as required, in accordance with all its rules and laws.

2.         This petition should be dismissed in limine. I doubt that the subject is justiciable (I addressed the issue of justiciability elsewhere: OM 6092/07 Ornan v. Ministry of the Interior,[1] paras. 17-18). In any case, the Petitioner recognizes that the law provides no express authority for declaring a leap year in a state of emergency. According to him, such a declaration can “lawfully and quickly be given, at least as a ‘temporary provision’, with the consent of all the Respondents”. I do not know what legal mechanism the Petitioner is referring to in speaking of a “temporary provision”[2] given “with the consent of all the Respondents”. In any case, in the absence of any legal basis for the petition, there is no cause to address.

3.         Inasmuch as we are already addressing the issue of declaring a leap year when it is not its designated time, I will add some comments beyond what its necessary. The Petitioner claims that there is halakhic authority to order a leap year when there is a public need, and refers us to the Maimonides’ Mishneh Torah (Sanctification of the New Month, chaps. 4-5). However, it would seem that the Petitioner did not pay proper attention to what Maimonides stated there, in chap. 5:1, writing: “All that we have said concerning the fixing of the beginning of the month on the basis of observing the new moon, and concerning intercalation of the year because of the season or because of some other necessity, is applicable only to the Sanhedrin in the Land of Israel, or to the members of the court who were ordained in the Land of Israel to whom the Sanhedrin gave permission to act ... However, when there is no Sanhedrin in the Land of Israel, the months are established and the leap years are determined only by such methods of calculation as we employ today.” In addition to the lack of authority, it is also worth noting in this regard the words of the author of the Lekakh Tov midrash (Tuvia ben Eliezer, 11th cent.) on Parashat Hohodesh [the additional Scriptural reading for the Sabbath before the beginning of the month of Nissan – ed.], according to which “it is proper to rely upon the rules for intercalating the year, so as not to divide Israel into sects such that one violates the holy day of the other”. Indeed, intercalating the year is no small matter. There was good reason for entrusting the halakhic authority in such a matter to the Sanhedrin or a court whose members were ordained in the Land of Israel. This Court will not trespass upon the boundaries of the Sanhedrin, but with all due caution, it would seem that even from a religious/halakhic perspective, the Petitioner’s arguments lack merit.

4.         The petition is therefore dismissed.

Given this 26th day of Adar 5790 (March 22, 2020).

 

 

[1]              Editor’s note: See the English translation of the appeal: CA 8573/08 Ornan v. Ministry of the Interior (https://versa.cardozo.yu.edu/opinions/ornan-v-ministry-interior).

 

[2]              Editor’s note: The term “temporary provision” (Hebrew: hora’at sha’a) is employed both in Jewish law and in Israeli law.

In Israeli law, temporary provisions may be employed for a number of reasons, e.g., the need for an immediate response to a matter for which there is no legal arrangement, or in order to permit a temporary or one-time deviation from an existing statutory arrangement. The first instance of a temporary provision was in the Transition (Temporary Provision) Law, 5709-1949, enacted on April 6, 1949 to address the immediate problem of who would fulfil the duties of the President when he went abroad on April 8, 1949. The matter of the President’s absence had not been addressed in the original Transition Law. For an example of judicial review of a temporary provision, see, e.g.: HCJ 7052/03 Adalah Legal Center v. Minister of Interior [https://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-rights-israel-v-minister-interior].

In Jewish law, the term refers to an ad hoc deviation from halakha to address an immediate concern (see, e.g., TB Sanhedrin 80b, and TJ Hagigah 11:2). Maimonides (Mishneh Torah (Rebels) 2:4) explains: “A court may, however, temporarily suspend the application of even such matters, even if it is of lesser stature than the original court … and any court has the authority to abrogate the words of the Torah as a temporary measure. In what manner? If a court sees that it is necessary to strengthen the faith and create a safeguard so that the people will not violate Torah law, they may apply flogging and punishments that are not in accordance with the law. They may not, however, establish the matter for posterity and say that this is the halakha. Similarly, if they saw that it was temporarily necessary to nullify a positive commandment or violate a negative commandment in order to bring people at large back to the Jewish faith or to prevent many Jews from transgressing in other matters, they may do what is necessary at that time. … Just like a doctor may amputate a person's hand or foot so that the person as a whole will live, so, at times, the court may instruct to violate some of the commandments temporarily so that they will later keep all of them” (and see: Mishneh Torah (Foundations of the Torah) 9(3).  For a discussion of ad hoc intercalating of the year in order to delay Passover, see: TB Sanhedrin 12b).

Jabotinsky v. Weizmann

Case/docket number: 
HCJ 65/51
Date Decided: 
Saturday, July 21, 1951
Decision Type: 
Original
Abstract: 

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

               

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

 

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

               

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

 

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

               

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

               

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

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

H.C.J  65/51

 

 

JABOTINSKY AND KOOK

v.

WEIZMANN

 

 

 

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

[July 20, 1951]

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

 

 

 

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

           

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

               

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

 

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

               

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

 

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

               

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

               

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

 

English case referred to:

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

 

American cases referred to:

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

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

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

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

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

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

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

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

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

 

S. Fishelev for the first petitioner.

R. Nohimovsky for the second petitioner.

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

 

SMOIRA P., giving the judgment of the court.

 

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

            The following facts are set out in the petition.

           

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

           

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

           

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

           

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

 

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

           

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

           

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

 

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

           

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

 

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

           

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

 

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

 

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

 

            The petition also contains the following submissions:

           

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

           

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

           

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

           

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

           

            This is a summary of the petition.

           

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

           

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

           

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

           

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

           

            (b) It is true that the Rules of 1937 provide that an application for an order nisi should, as a general rule, be made ex parte. They do not, however, bind the court to hear such au application in the presence of the petitioner alone.

           

            The Attorney-General submitted two arguments: -

           

            (1) That this court will not entertain an application against the President of the State;

           

            (2) That this court has no jurisdiction to hear the petition.

           

            The first argument is that the President of the State enjoys general immunity and cannot be brought before the courts. The second argument is that in accordance with the existing law, this court has no jurisdiction to deal with the present petition.

 

(In the course of his argument counsel here referred to the Bible, the Talmud, and the works of Maimonides, but the court, holding that these sources were not relevant in the case, continued:)

 

            In passing to more mundane sources, the Attorney-General compared the position of the King of England and his immunity from all claims before the courts with that of our President. As authority for this proposition he relied upon Blackstone, as quoted in the case of the Parletment Belge (1). We there find statements such as these: "Our king", says Blackstone, "owes no kind of subjection to any other potentate on earth. Hence it is that no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him ...authority to try would be vain and idle without an authority to redress, and the sentence of a court would be contemptible unless the court had power to command the execution of it, but who shall command the king?" And in the same judgment Brett L.J., relying upon Blackstone, states that the real principle upon which the immunity is based is that the exercise of such jurisdiction would be incompatible with the king's regal dignity. The Attorney-General also wished to deduce from Article 46 of the Palestine Order in Council that the principle, precluding the bringing of the king before the courts as incompatible with his dignity, also applies to the President of the State of Israel and that this court may not therefore enquire into the actions of the President.

           

            These arguments moved Mr. Fishelev, counsel for the petitioners, to contend that these principles apply to an absolute monarchy and have no place in the democratic regime of the State of Israel.

           

            We too are of the opinion that the writings of Blackstone on the position of the King of England have no relevance here. An apt answer to this approach was given in the year 1807 by Chief Justice Marshall of the United States in his judgment in the case of United States v. Aaron Burr (2). The question that arose in that case was whether it was possible to summon the President of the United States as a witness for the defence and to order that he appear. Marshall C.J. said, inter alia: -

           

            "Although he (the King) may, perhaps, give testimony, it is said to be incompatible with his dignity to appear under the process of the court. Of the many points of difference which exist between the First Magistrate in England and the First Magistrate in the United States, in respect to the personal dignity conferred upon them by the constitutions of their respective nations, the court will only mention two. (1) It is a principle of the English Constitution that the King can do no wrong, that no blame can be imputed to him, that he cannot be named in debate. By the Constitution of the United States the President, as well as every other officer of the government, may be impeached and may be removed from office on high crimes and misdemeanors. (2) By the Constitution of Great Britain the Crown is hereditary and the monarch can never be a subject. By that of the United States, the President is elected from the mass of the people, and, on the expiration of the time for which he is elected, returns to the mass of the people again. How essentially this difference of circumstances must vary the policy of the laws of the two countries in reference to the personal dignity of the executive chief, will be perceived by every one."

 

            I shall not add any comments of my own to these dicta of the distinguished Chief Justice of the United States. Every one will appreciate that in regard to the question of immunity before the courts, the position in this country is analogous to that in the United States and not to that in England.

           

            Whether the President is to enjoy immunity is not to be gathered by reference to the immunity of a monarch. In view, however, of the decision which we have reached on the question of jurisdiction, we need not decide in this case whether the President enjoys immunity or not.

           

            As I have said, the Attorney-General, in the course of his argument, placed the emphasis upon this court's lack of jurisdiction to deal with the petition and grant a mandamus against the President and it is, in our opinion, the answer to the question whether this court has jurisdiction which determines the fate of this petition.

           

            On this question too, lengthy arguments were addressed to us, and points raised which are irrelevant. It is our first task, therefore, to limit the scope of our consideration. The matter before us is a constitutional one. It is an accepted rule, as laid down also in the United States, that "Constitutional questions are not to be dealt with abstractly", Bandini Petroleum Co. v. Superior Court; (3), at p. 108. "It is a familiar rule that the court will not anticipate the decision of a constitutional question upon a record which does not appropriately present it", Tennessee Pub. Co. v. American National Bank; (5), at p. 87.

           

            In the light of this principle we shall confine our discussion:

           

            (a) to the subject-matter of the case, namely, the alleged contravention of section 9 of the Law of Transition, as argued by the petitioners;

           

            (b) to the prayer, namely, the granting of a writ of mandamus against the President.

           

            The basic provision defining the jurisdiction of this court in the matter before us is section 17 of the Law and Administration Ordinance, 1948, which lays down that: -

           

            "So long as no new law concerning law courts has been enacted, the law courts existing in the territory of the State shall continue to function within the scope of the powers conferred upon them by law."

           

            It follows that, in the absence of a law extending its jurisdiction, the High Court of Justice in the State of Israel has no wider powers than those which were enjoyed by it in the time of the Mandate. Counsel for the petitioners emphasised, in fact, that they do not ask us to assume powers wider than these, but they request that we exercise the jurisdiction conferred upon us by law. Their submission, so they say, is de lege lata.

           

            The law relating to the jurisdiction of this court is to be found in Articles 38 and 43 of the Order in Council of 1922 and section 7 of the Courts Ordinance of 1940. Nothing relevant to the present case can be learned regarding jurisdiction from Article 38, which merely provides that the courts "hereinafter described shall exercise jurisdiction in all matters and over all persons" in the country. This jurisdiction is defined, however, in Article 43 of the Order in Council and in section 7 of the Ordinance.

           

            As I shall explain later there is no necessity for us to determine the extent of our jurisdiction under section 7(b) of the Courts Ordinance. 1940, which confers jurisdiction upon this court to issue orders of mandamus and injunctions against public officers and public bodies. We are in fact of the opinion that the President of the State is not a "public officer" within the meaning of the definition in the Interpretation Ordinance of 1945, though he is, in a wider sense, the highest public officer in the State.

           

            As I have said, however, there is no need for us to determine our jurisdiction under section 7(b) of the Courts Ordinance since this court has decided on numerous occasions that the limits of its jurisdiction under Article 43 of the Order in Council are wider than the limits laid down in section 7 of the Ordinance.

 

            I agree with the submission of counsel for the petitioners that we must decide the question of our jurisdiction de lege lata. With this, however, we put an end to all their submissions based upon the constitutions of other countries. The doctrine of impeachment, in the various forms which it assumes in different countries, has no relevance for us in this case. It is inconceivable that this court would assume to itself a power such as that of impeachment without a specific provision in the law to that effect. Counsel for the petitioners conceded, moreover, that the purpose of impeachment is to remove the head of the State from his office by reason of the commission of an offence such us treason or some other serious offence. This is stated expressly in the constitution of the United States, and this is the interpretation given to the expression "haute trahison" in the French constitution. And the petitioners have stated repeatedly that they do not seek the removal of the President but an order of mandamus.

           

            We return to the only question before us, namely, whether this court has jurisdiction to issue a mandamus against the President of the State in respect of his alleged failure to act in accordance with section 9 of the Law of Transition, 1949. We can decide this question de lege lata only on the basis of Article 43 of the Order in Council. We do not accept the contention that us the President is not mentioned in the Law and Administration Ordinance of 1948, for that reason alone we have no jurisdiction to deal with the petition. The whole force of statute law - which provides for the norm and not for exceptions - lies in its power to create machinery for dealing with situations which do not yet exist when the law is promulgated. Section 11 of the Law and Administration Ordinance, 1948, provides expressly, moreover, that the existing law shall remain in force subject to such modifications as may result from the establishment of the State and its authorities. The fact, therefore, that the high office of President of the State did not actually exist when the Law and Administration Ordinance was enacted does not stand in the way of our applying the law today to the President. Had the petition on its merits fallen within the provisions of Article 43 of the Order in Council of 1922 it would have been possible and necessary to entertain it.

           

            The field of enquiry is narrowed down to this: is the subject-matter of the petition and the prayer among the "matters necessary to be decided for the administration of justice?" Is the present petition a matter which calls for judicial decision? Some assistance in clarifying this problem may be derived from an examination of authorities in the Supreme Court of the United States .

 

            In terms of Title 3 Section 2 of the American Constitution, "cases and controversies" are made amenable to judicial decision, and these expressions - and the limits of judicial power in general - have been defined in a long list of cases. The most recent judgment is that of Justice Frankfurter of April 30, 1951, in the case of Joint Anti-Fascist Refugee Committee v. Attorney-General of the United States (6). Let me cite some extracts from this judgment: -

           

            "...in a case raising delicate constitutional questions it is particularly incumbent first, to satisfy the threshold enquiry whether we have any business to decide the case at all. Is there, in short, a litigant before us who has a claim presented in a form and under conditions 'appropriate for judicial determination’?” Aetna Life Ins. Co. of Hartford , Conn. v. Haworth, (7).

 

            At first sight there is a distinction between the language of the American Constitution which makes "cases and controversies" amenable to judicial determination, and the language of Article 43 which employs the expression "matters." But it has been held in the United States that the expression "cases" is wider than the expression "controversies". See David Muskrat v. United States (8) at p. 954.

           

            "The judicial article of the Constitution mentions cases and controversies. The term "controversies", if distinguishable from "cases", is so in that it is less comprehensive than the latter, and includes only suits of a civil nature."

 

            Mr. Nohimovsky, counsel for the petitioner, emphasised the wide term "matters", from which he sought to derive our jurisdiction. Even if we assume that the term "matters" is wider than "cases and controversies" we have still to enquire what are the matters which are submitted to our jurisdiction. They are only those "matters... necessary to be decided for the administration of justice." By the addition of these words the legislature has set limits to the area of "matters" in the ordinary meaning of that expression. In regard to this it was submitted by counsel for the petitioners that we must interpret the expression "justice" by reference to philosophical, religious and moral sources. We are not prepared to adopt this system of interpretation which is completely unlimited in scope and obscures the limits of judicial power.

           

            Justice Frankfurter said the following in connection with this problem in his judgment referred to above: -

           

            "Limitation on 'the Judicial Power of the United States' is expressed by the requirement that a litigant roust have 'standing to sue', or more comprehensively, that a Federal Court may entertain a controversy only if it is 'justiciable'. Both characterizations mean that a court Grill not decide a question unless the nature of the action challenged, the kind of injury inflicted, and the relationship between the parties are such that judicial determination is consonant with what was generally speaking the business of the Colonial Courts and the Courts of Westminster when the Constitution was framed. The jurisdiction of the Federal Courts can be invoked only under circumstances which to the expert feel of lawyers constitute 'a case or controversy'. The scope and consequences of the review with which the judiciary is entrusted over executive and legislative action require us to observe these bounds fastidiously.''

 

            With all respect to the learned judge, I find in these remarks an excellent definition of the limits of judicial power. The reply to the question what are the matters which are necessary to be decided for the administration of justice cannot be drawn from the wide sea of philosophical, religious and moral relationships. To do w would be to widen those limits so as to include every matter necessary for human progress. On the other hand such limits cannot be defined by a purely geometrical formula. In leaving the matter to be decided by "the expert feel of lawyers" the learned judge readily concedes the intellectual impossibility of an accurate and absolute definition. We, as judges, must find the answer to the question whether the matter, in the language of the United States judgment, is "appropriate for judicial determination" or, in the language of our Article 43, is "necessary to be decided for the administration of justice", by bringing to bear our legal and judicial understanding.

           

            We also attach importance to the words of Justice Frankfurter relating to the "business of the Colonial Courts and the Courts of Westminster". We find in this remark the connecting link between the language of the American Constitution and that of Article 43 of the Order in Council.

           

            The question before us, therefore, is whether the petitioners have placed before the court a matter which is justiciable, a matter which is proper for judicial determination.

           

            The complaint of the petitioners is that the President of the State has failed to comply with section 9 of the Law of Transition or, at the least, that he has not exhausted the possibilities envisaged in that section by making repeated attempts to impose the task of forming a new government upon one of the remaining 119 members of the Knesset after the first member upon whom that task was imposed failed in his attempt. The petitioners ask us to order the President to continue imposing the task of forming a government upon members of the Knesset until one of them who undertakes this mission succeeds in forming a new government which enjoys the confidence of the Knesset.

 

            According to the reasoning which underlies the petition it will be the duty of this court to examine and determine whether, in his first or second or third attempt to do what is requested of him, the President of the State has discharged the duty imposed upon him by section 9 of the Law of Transition, or whether he must continue in his attempts. In order to decide the matter this court will have to consider the effectiveness of the imposition of the task in question upon one or other of the members of the Knesset. It is sufficient to point out the consequences of such a process in order to show that the present petition falls completely outside the limits of judicial determination.

           

            If the "expert feel of lawyers" is to be invoked, it may be said generally that the whole subject of the duty of forming a government in accordance with section 9 of the Law of Transition is non-justiciable and beyond the scope of judicial determination. The relationships involved are in their very nature outside the field of judicial enquiry; they are relationships between the President of the State, the government and the Knesset, that is to say, the executive and parliamentary authorities. If the question of a failure to comply with section 9 should arise, the remedy must be found through parliamentary means, that is to say, in the reaction of the Knesset to a government which, in its opinion, does not even possess the right to exist in transition in accordance with section 11(d) of the Law of Transition. That section provides that the government, after its resignation, shall continue in office until the formation of a new government in accordance with the provisions of that Law.

           

            It is highly significant that counsel for the petitioners did not cite a single authority from other countries in which a court directed the President of the State, in any form whatsoever, to follow a particular course in the discharge of his executive functions.

           

            We have reached the conclusion that the matter before us is not one which is amenable to judicial determination and decision. We point with satisfaction to the accord between our decision and those of the Supreme Court of the United States which, as is well known, has considerable experience in examining the boundaries between the respective functions of the three authorities of the State. Counsel for the petitioners invited us to follow in the footsteps of the Supreme Court of the United States, and strongly relied upon a saying that that court is in fact the Constitution. Just because of that, however, it is desirable to point to the care taken by the American Supreme Court not to overstep the boundary. Here are some examples.

 

            In the case of Mississippi v. Johnson (9), the court was asked to issue an injunction against the President of the United States restraining him from enforcing a law passed by Congress relating to the administration of the State of Mississippi. It was argued by the petitioners that the law in question was ultra vires the Constitution of the United States.

           

            Chief Justice Chase drew a distinction in his judgment between the ministerial and the executive and political duties of the President of the United States, and said:-

           

            "An attempt on the part of the judicial department of the Government to enforce the performance of such (executive and political) duties by the President might be justly characterized, in the language of Chief Justice Marshall, as 'an absurd and excessive extravagance' . . . It was admitted in the argument that the application now made to us is without a precedent and this is of much weight against it . . . The fact that no such application was ever before made in any case indicates the general judgment of the profession that no such application should be entertained."

 

            I may mention incidentally that there is in the last sentence quoted a hint of the conception mentioned by Justice Frankfurter in his recent judgment in which he speaks of the "expert feel of lawyers". In his judgment in the case of M'Culloch v. Maryland (10), Chief Justice Marshall deals with the boundaries between the functions of the legislative authority and the judicial authority, and we may say, following him, that were we to accede to the request of the petitioners in this case, we would exceed the limits of judicial authority and trespass upon the preserves of the political and executive authorities. In the language of Chief Justice Marshall, "this court disclaims all pretensions to such a power. ' '

           

            The question brought before us is one affecting the executive and political powers of the President, and is beyond the scope of judicial authority.

           

            We accordingly dismiss the petition for want of jurisdiction.

           

                                                                                            Petition for order nisi refused.

                                                                                            Judgment given on July 20, 1951.

 

1)              Courts Ordinance, 1940, s. 7:

The High Court of Justice shall have exclusive jurisdiction in the following matters:

                (a)           .......………

          (b)     Orders directed to public officers or public bodies in regard to the performance of their public duties and requiring them to do or refrain from doing certain acts;

2)              Palestine Order in Council, 1922, art. 43:

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

1) parliament or Congress.

1) Mapam and the Communists are left-Wing parties and the others Right-Wing parties.

1)       Palestine Order in Council, 1922 (as amended 1935), Article 38:

          Subject to the provisions of this part of this order or any Ordinance or rules, the civil courts hereinafter described, and any other courts or tribunals constituted by or under any of the provisions of any ordinance, shall exercise jurisdiction in all matters and over all persons in Palestine.

Gil v. Minister of Education

Case/docket number: 
HCJ 2324/11
Date Decided: 
Tuesday, April 26, 2011
Decision Type: 
Original
Abstract: 

Facts: On 9 March 2011, the Minister of Education announced that Advocate Shimon Mizrahi would be awarded the 2011 Israel Prize in the field of sports, upon the recommendation of the Israel Prize Judging Committee. The members of the Judging Committee were Tal Brody, an renowned basketball player who had played for the Maccabee Tel-Aviv basketball team, and who was awarded the Israel Prize in 1979, Gili Lustig, the head of the competitive sports section of the Israel Olympic Committee and a coach of the Israel All-Star volleyball team, and Esther Roth-Shachamorov, a celebrated athlete who had represented Israel at the 1976 Olympic Games, and who was awarded the Israel Prize in 1999. The Petitioners asked that the Court annul the decision, arguing that Brody had acted under a conflict of interests because Advocate Mizrahi had served for many years as the chairman of the Maccabee Tel Aviv basketball team, and he and Brody were professionally and socially acquainted.

 

Held: In rejecting the petition, the Court held that the scope of Court’s intervention in decisions concerning the granting of the Israel Prize should be significantly limited, particularly in regard to claims regarding the worthiness of the recipients. Restraint should also be exercised in regard to claims addressing the award procedures. 

 

The choice of recipients of the Israel Prize is almost entirely non-justiciable, and should be treated, mutatis mutandis, in accordance with the provisions of section 33 of the Contracts (General Part) Law, 5733-1973. The choice of recipients of the Israel Prize involves a significant subjective element. The greater the subjective component of the decision, the narrower the scope of judicial review.

 

As for conflicts of interest, the members of each judging committee must be people who are well acquainted with the particular field. It is but natural that the members of the committee will be people from that field or related fields. It is hard to imagine that those qualified to serve on the judging committee would not be acquainted with the candidates. If the Court were to adopt a broad approach to conflicts of interest in this regard, it might not be possible to find any person in Israel qualified to serve on an Israel Prize committee. A broad approach in regard to conflicts of interest might also limit the pool of appropriate candidates for the prize, inasmuch as an acquaintance between a member of the committee and a potential candidate would result in the disqualification of the candidate, regardless of his achievements.

 

Although, the Court should adopt a restricted approach to judicial review of decisions in regard to the Israel Prize, not all such decisions are immune to review. The Court would certainly address issues of corruption or serious flaws in the conduct of the judging committee or the Minister of Education, even if the petitioner had no direct interest in the petition.

The Court was divided on the question of whether petitions such as this justified revisiting the issue of the standing of petitioners who lack a direct interest.

 

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Full text of the opinion: 

 

HCJ 2324/11

  1. Shai Gil
  2. Nahum Abir
  3. Avichai Ratzani (withdrawn)

 

v.

 

  1. Minister of Education
  2. Judging Committee under the Israel Prize Rules
  3. Shimon Mizrahi, Adv.

Requesting to join:  The Yamit Association for Good Governance

 

 

The Supreme Court sitting as High Court of Justice

[11 April 2011]

Before Justices A. Grunis, E. Arbel, and H. Melcer

 

Petition for an order nisi

 

 

 

 

Israeli legislation cited:

Contracts (General Part) Law, 5733 – 1973 s. 33, s. 61.

 

Israeli Supreme Court cases sited:

[1] HCJ 2454/08 Legal Forum for the Land of Israel v. Minister of Education, (not yet unpublished, 17 April 2008)

[2] HCJ 10455/02 Amir v. Israel Bar Association, IsrSC 57(2) 729 (2003)

[3] HCJ 167/06 Weinrauch v. Minister of Education, (unpublished, 23 March 2006))

[4] HCJ 100/64 Mata’ei Emek Ha’arazim v. Jerusalem District Commissioner, IsrSC 18(2) 278 (1964)

[5] HCJ 19/64 Israel Insurance Agents Association v. Insurance Supervisor, IsrSC 18(3) 506 (1964)

[6] HCJ 2205/97 Massala v. Minister of Education and Culture, IsrSC 51(1) 233 (1997)

[7] HCJ 1933/98 Hendel v. Minister of Education and Sport, (unpublished, 25 March 1998)

[8] HCJ 2348/00 National Religious Party Faction v. Minister of Education, (unpublished, 23 April 2000)

[9] HCJ 2769/04 Yahalom v. Minister of Education and Sport, (unpublished, 19 April 2004)

[10] HCJ 3346/09 Legal Forum for the Land of Israel v. Minister of Education, (not yet published, 26 April 2009)

[11] HCJ 3750/03 Gershuni v. Minister of Education, (unpublished, 5 May 2003)

[12] HCJ 2285/93 Nahum v. Mayor of Petach Tikvah, IsrSC 48(5) 630, 642-643 (1994)

[13] HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Elections Committee for the 16th Knesset, IsrSC 57(2) 62, 69 (2003)

[14] HCJ 287/91 Kargal v. Investments Center Administration, IsrSC 46(2) 852 (1992)

[15] HCJ 849/92 Shemen Industries Ltd. v.  Investments Center Administration, IsrSC 47(2) 702 (1993)

[16] AAA 8193/02 Reuven v. Paz Oil Company Ltd., IsrSC 58(2) 153 (2003)

[17] HCJ 4736/03 Alon Oil Company of Israel Ltd. v. Minister of Industry and Trade (unpublished, 15 June 2008)

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

[19] HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Elections Committee, IsrSC 57(2) 62 (2003)

[20] HCJ 962/07 Liran v. Attorney General, (unpublished, 1 April 2007)

 

 

Articles cited:

Daniel Friedman, “Justiciability of Decisions in regard to the Israel Prize,” 5 Hamishpat 181 (2001)

Amnon Rubinstein, “The Standing of a Petitioner before the High Court of Justice seeking to Deny a Third Party’s Right,” 27 HaPraklit 499 (1971)

Dr. Shlomo Levin, “Is there Standing for Standing?” 39 Hapraklit 453 (1990-1991)

 

Facts:

On 9 March 2011, the Minister of Education announced that Advocate Shimon Mizrahi would be awarded the 2011 Israel Prize in the field of sports, upon the recommendation of the Israel Prize Judging Committee. The members of the Judging Committee were Tal Brody, an renowned basketball player who had played for the Maccabee Tel-Aviv basketball team, and who was awarded the Israel Prize in 1979, Gili Lustig, the head of the competitive sports section of the Israel Olympic Committee and a coach of the Israel All-Star volleyball team, and Esther Roth-Shachamorov, a celebrated athlete who had represented Israel at the 1976 Olympic Games, and who was awarded the Israel Prize in 1999. The Petitioners asked that the Court annul the decision, arguing that Brody had acted under a conflict of interests because Advocate Mizrahi had served for many years as the chairman of the Maccabee Tel Aviv basketball team, and he and Brody were professionally and socially acquainted.

Held:

In rejecting the petition, the Court held that the scope of Court’s intervention in decisions concerning the granting of the Israel Prize should be significantly limited, particularly in regard to claims regarding the worthiness of the recipients. Restraint should also be exercised in regard to claims addressing the award procedures. 

The choice of recipients of the Israel Prize is almost entirely non-justiciable, and should be treated, mutatis mutandis, in accordance with the provisions of section 33 of the Contracts (General Part) Law, 5733-1973. The choice of recipients of the Israel Prize involves a significant subjective element. The greater the subjective component of the decision, the narrower the scope of judicial review.

As for conflicts of interest, the members of each judging committee must be people who are well acquainted with the particular field. It is but natural that the members of the committee will be people from that field or related fields. It is hard to imagine that those qualified to serve on the judging committee would not be acquainted with the candidates. If the Court were to adopt a broad approach to conflicts of interest in this regard, it might not be possible to find any person in Israel qualified to serve on an Israel Prize committee. A broad approach in regard to conflicts of interest might also limit the pool of appropriate candidates for the prize, inasmuch as an acquaintance between a member of the committee and a potential candidate would result in the disqualification of the candidate, regardless of his achievements.

Although, the Court should adopt a restricted approach to judicial review of decisions in regard to the Israel Prize, not all such decisions are immune to review. The Court would certainly address issues of corruption or serious flaws in the conduct of the judging committee or the Minister of Education, even if the petitioner had no direct interest in the petition.

The Court was divided on the question of whether petitions such as this justified revisiting the issue of the standing of petitioners who lack a direct interest.

 

 

JUDGMENT

 

Justice A. Grunis:

  1. On 9 March 2011, the Minister of Education announced that Advocate Shimon Mizrahi (Respondent 3) would be awarded the 2011 Israel Prize in the field of sports. The Minister announced the award following a decision of the Israel Prize Committee in the Field of Sports which stated as follows:

Advocate Shimon Mizrahi created new management norms in the field of sports. His many years of continuing, voluntary activity led to heightened public awareness of basketball, while ensuring high level, quality management in Israeli sports that resulted in prestigious national and international achievements.

Advocate Mizrahi’s public activity in national and international forums has enhanced the image of Israeli sport in general, and the field of basketball in particular.

 

The petition before the Court, submitted on 23 March 2011, argues that Advocate Mizrahi’s award should be revoked.

 

The Background and Facts

  1. The decision to award the prize to Advocate Mizrahi was adopted unanimously by the committee appointed in accordance with the Rules of the Israel Prize. The committee comprised three members: Tal Brody (hereinafter – Brody), who served as chairman of the committee, Gili Lustig and Esther Roth-Shachamorov. Brody was an outstanding basketball player for many years, and played for the Maccabee Tel Aviv team. He was awarded the 1979 Israel Prize for his special contribution to the state and to physical culture. Lustig is the head of the competitive sport section of the Israel Olympic Committee, and a volleyball coach who coached the Israel All-Star team. Roth-Shachamorov was an outstanding athlete who represented Israel at the Olympic Games in 1976. She was the winner of the 1999 Israel Prize in sport and physical culture. Advocate Mizrahi serves as the chairman of the Maccabee Tel Aviv basketball team.

 

  1. On 10 March 2011, the day following the announcement that the prize would be awarded to Advocate Mizrahi, the representatives of the Petitioners requested that the Minister of Education rescind the decision to award the prize to Advocate Mizrahi. The request was denied. Therefore, as is has become the accepted practice over the past years, the Petitioners submitted the petition that is before the Court. The Petitioners’ main argument is that the decision is tainted by a conflict of interests and must be revoked in light of the alleged professional and social ties between Brody and Advocate Mizrahi arising from their joint activities in the Maccabee Tel Aviv basketball team. It should be noted that the petition does not question whether “Mr. Mizrahi is actually worthy or unworthy of the Israel Prize”. In their petition, the Petitioners note that they do not cast any personal aspersions upon Brody, and they have no doubt that he acted in good faith. On 6 April 2011, the Petitioners submitted a request to amend the petition (hereinafter – the amendment request). In the amendment request, the Petitioners seek to make a significant change in the petition, and to argue that the decision to grant the prize to Advocate Mizrahi is flawed on the merits, and not just due to a conflict of interests. This claim relies upon a number of past events that, according to the Petitioners, are related to Advocate Mizrahi. Thus they raise a matter from 1988 in regard to the issuing of free Maccabee Tel Aviv game tickets by Advocate Mizrahi. In the amendment request, they also raise new claims in regard to the Israel Prize Rules. Thus, they argue that the procedure for selecting the recipient of the Israel Prize is not properly transparent, and that no minutes of the meeting are recorded. On the day the amendment request was submitted, two additional requests were also submitted: One was a request to remove Petitioner 3, and the other was a request for the Yamit Association for Good Governance to join the petition. In a decision given that day, Justice A. Hayut ordered the removal of Petitioner 3, and that the amendment request and the request to cojoin a petitioner be decided by the panel that would hear the petition.

 

  1. Under the circumstances, and in light of the intense interest of the petition and the responses in Advocate Mizrahi and Brody and their relationship, it would be appropriate that we say a few words about the Petitioners and the association that asked to conjoin. The three original Petitioners describe themselves in the petition as “fans of sport in general, and of basketball in particular”. The request to add an additional petitioner was supported by the affidavit of the chairman of the association, Nati Granai. In his response to the petition, Advocate Mizrahi claims that one of the two remaining, original petitioners is a fan of the Hapoel Jerusalem basketball team, and that the second is a business partner of one of the lawyers who signed the petition. As for Nati Granai, the response claims that he is a fan of the Hapoel Tel Aviv basketball team. We do not see any need to address the question of the team preferences of the Petitioners or the association requesting to cojoin. We would further note that we did not see fit to permit the amendment of the petition. The request does not show adequate reason why the new claims were not raised in the original petition. Moreover, the factual claims in the amendment request refer primarily to matters from the distant past. The request to cojoin adds nothing.

 

 

  1. As noted, the primary claim raised in the petition is that Brody has a conflict of interest in regard to Advocate Mizrahi, and therefore it was improper that a committee that he chaired awarded the prize to Advocate Mizrahi, especially as it was Brody who suggested that the prize be awarded to Advocate Mizrahi. As noted, Brody played for Maccabee Tel Aviv for several years. Advocate Mizrahi has served as chairman of the team for decades, including during the years in which Brody played for the team. The Petitioners argue that the two enjoyed not only a professional relationship but also a social relationship that continues to this day. The petition further argues, inter alia, that Brody’s name appeared on the list of directors on the Maccabee Tel Aviv Internet site. The petition also relies upon various well-known media publications in regard to Brody’s and Advocate Mizrahi’s relationship. Advocate Mizrahi’s response states that Brody ceased to serve as a director of Maccabee Tel Aviv in 2007. However, according to the response, Brody is invited to board meetings. Advocate Mizrahi’s verified response also states that Brody is not “a personal friend” of Advocate Mizrahi, and that “there is no personal relationship between them beyond professional acquaintance and cooperation”. The response emphasizes that the two are not “close friends”.

 

  1. The response of Respondents 1-2, which was very ably drafted by Advocate Dina Zilber of the State Attorney’s Office, argues that the Court’s involvement in decisions to grant prizes, including the Israel Prize, should be as limited as possible. It argues that decisions to award prizes concern matters of respect and prestige and therefore differs from other administrative decisions. Decisions to grant prizes enjoy very wide discretion that, by their nature, involve a subjective element. The Respondents therefore believe that the Court must exercise great restraint in this area. As for conflicts of interest, it is argued that if the Petitioners’ position is accepted, it will be extremely difficult to find judges to serve on the Israel Prize committees, inasmuch as it is but natural that the candidates for the prize will be well-known personalities with whom the judges are professionally acquainted. The Respondents therefore ask that the petition be denied, and of course, that was also Advocate Mizrahi’s request in his response.

 

 

The Israel Prize

  1. The Israel Prize has been awarded annually by the state since 1953. The prize is awarded in the fields of Jewish studies, social sciences, humanities, exact sciences, culture, art, communications and sports. In addition to the prizes awarded to outstanding representatives of the above categories, a prize is also awarded for “lifetime achievement – special contribution to society and the state”. The prize is very prestigious, and the winner is also granted a sum of money by the state. The prize is awarded in a special ceremony on Independence Day, in the presence of the President, the Prime Minister, the Chief Justice and the Minister of Education. The legal basis for the prize is cited in the Israel Prize Rules. As of this year, a process has begun for the granting of the prize on the basis of new rules (upon the recommendation of a public committee). The prize is not awarded in all of the categories every year but in accordance with a certain cycle. The candidates for the prize must be Israeli citizens who resided in Israel during the three years prior to their candidacy (except in special cases). The prize is awarded to individuals and not to corporations. A person can receive the prize only once. According to the new rules, each member of a committee may nominate a candidate after receiving the list of candidates. The other judges on the committee do not know the identity of the nominating party, even when that person is a member of the committee.

 

  1. The Israel Prize is a state prize intended to recognize people who have excelled in various fields and who have significantly contributed to human knowledge and to Israeli society. In addition to the recognition and honor of those members of society for their important achievements, it is hoped that honoring them will encourage others to excel in the various fields and contribute to society. The prize serves a uniting role on our special holiday. The unique character of the prize can be seen, inter alia, from the fact that is awarded on Independence Day. The prize ceremony has become an ongoing tradition over the decades. Therefore, its uniqueness and status should be assiduously protected. All members of society and, of course, the Court, must take care to avoid taking any action that might detract from its prestige.

 

The Scope of Review of Decisions concerning the Israel Prize

  1. In my opinion, the petition should be denied. According to my view, as shall be set forth below, the scope of Court’s intervention in decisions concerning the granting of the prize should be significantly limited. This is particularly so in regard to claims regarding the worthiness of the recipients, that is, in regard to the substantive aspect of the award. But significant restraint should also be exercised in regard to claims addressing the award procedures, i.e., the procedural aspect, especially in regard to claims of conflict of interest.  This narrow approach is grounded on two considerations: First, we are concerned with a subject that is almost entirely non-justiciable. Second, the issue of standing should be reinstituted, if only partially, where the Israel Prize is concerned.

 

  1.  As noted, the Israel Prize is awarded in the fields of Jewish studies, social sciences, humanities, exact sciences, culture, art, communications and sports, as well as for “lifetime achievement”. Awarding the prize in each of these fields involves a significant subjective element. Awarding the prize is materially different than winning a sports competition like basketball of athletics. In sports, winning is decided by the result. Once the result is known, the winner is decided as a matter of course. That, of course, is not the case in awarding a prize in a fields like Jewish studies, social sciences or the humanities, as well as for “lifetime achievement”. The greater the subjective component of the decision, the narrower the scope of judicial review. In this regard, we might mention section 33 of the Contracts Law (General Part), 5733 – 1973.

When, under any contract, a mark, a grade, title, prize or the like is to be given according to a decision or evaluation by one of the parties or by a third party, that decision or evaluation will not be the subject of court proceedings.

 

Of course, in this matter we are not concerned with a contract but with unilateral rules adopted by the state. However, the rationale of the section is clear, and applicable even to prizes like the Israel Prize. The decision to award the Israel Prize is an administrative decision, in that it is made by the Minister of Education on the basis of a recommendation of the prize committee. Some might argue that as an administrative decision, it is subject to judicial review like every other administrative decision. I disagree. Due to the special nature of the prize, its subjective component, and the social and ceremonial aspects, the Court should exercise maximal restraint when faced with a petition intended to attack a decision by the prize committee and the Minister of Education (see the opinion of my colleague Justice H. Melcer in HCJ 2454/08 Legal Forum for the Land of Israel v. Minister of Education [1] (hereinafter – the Sternhell case)). It is but natural that in various areas of human endeavor there are different schools of thought or opposing scientific approaches. At times, large ideological gaps arise in the social sciences and the humanities. Similar phenomena are found in various fields of the arts. The Court must not intervene in such debates. Therefore an expansion of judicial review in the area of the Israel Prize must be prevented (see Daniel Friedman, “Justiciability of Decisions in regard to the Israel Prize,” 5 Hamishpat 181 (2001)). Moreover, and perhaps needless to say, the Court lacks the institutional skills to decide disputes in regard to the question of whether a candidate is indeed worthy of the prize that the committee has decided to grant. Indeed, judges lack even the personal skills for deciding whether a candidate is worthy of receiving the prize (except, perhaps, in the case of a prize in the field of law; and cf. HCJ 10455 Amir v. Israel Bar Association [2]).

  1.  This petition, and similar petitions submitted in the past in regard to the awarding of the Israel Prize, are characterized by a petitioner or petitioners who do not claim to be worthy of the prize, but rather seek to deny the prize to the person chosen by the judging committee and the Minister of Education. Some might say that it is simply an absence of firgun,[1] while others may go so far as to say that petitioners who seek to strip others of the prize are driven by envy (for an exceptional case in which the petitioner complained that he was not awarded the Israel Prize, see HCJ 167/06 Weinrauch v. Minister of Education [3]). If the Petitioners are, indeed, rivals of Advocate Mizrahi in the field of sports, it would seem that they see his award as a red – or more precisely, a yellow[2] – flag. In the distant past, this Court held that it would not recognize the standing of a person petitioning to deprive another of a benefit (see, HCJ 100/64 Mata’ei Emek Ha’arazim v. Jerusalem District Commissioner [4]; HCJ 19/64 Israel Insurance Agents Association v. Insurance Supervisor [5]). Indeed, since that holding, there has been a dramatic change in regard to standing, and the Court has effectively removed that requirement as a threshold for relief in a petition against an administrative decision. In my opinion, the present case demonstrates the need for reconsidering the matter in view of the socio-cultural price that society may pay for recurring petitions against Israel Prize recipients. The Court must refrain from unintentionally assisting legal proceedings that encourage a lack of firgun and schadenfreude. In my opinion, the Court would do well to adopt rules that would reduce the number of petitions intended to strip a person of a prize, and the Israel Prize in particular.

 

  1.  If one were to examine the development of justiciability and standing over the last decades, I believe that one would find a clear correlation between that development and the increase in the number of petitions challenging decisions to award the Israel Prize. Indeed, one might say that just as Independence Day arrives every year on 5 Iyyar, so a petition will be submitted to this Court every year after the Ministry of Education announces the awarding of the prize. It is in interesting to note that this “tradition” of petitions concerning the prize began in 1997, following this Court’s only intervention in a decision to award the prize (in HCJ 2205/97 Massala v. Minister of Education and Culture [6]). Since then, the following petitions have challenged the awarding of the prize to someone: HCJ 1933/98 Hendel v. Minister of Education and Sport [7]; HCJ 2348/00 National Religious Party Faction v. Minister of Education [8]; HCJ 2769/04 Yahalom v. Minister of Education and Sport [9]; the Sternhell case [1]; HCJ 3346/09 Legal Forum for the Land of Israel v. Minister of Education [10]. In a petition of a different nature, the petitioner, who had been chosen to receive the prize for painting, challenged the rule requiring that he personally attend the ceremony in order to receive the prize (HCJ 3750/03 Gershuni v. Minister of Education [11]. It would appear that what we are now witnessing was unforeseeable when the more flexible tests for non-justiciability and standing were instituted. One can also not ignore the additional costs of petitions such as these, even though they are denied. The person chosen to receive the prize by the prize committee finds himself having to defend himself as if he were a criminal defendant. He must, of course, be included as a respondent to the petition, and he must respond to the various allegations often made against him. The respondent may hire a lawyer to represent him in the proceedings. If he is required to pay legal fees, it is unlikely that he will be compensated for his expenses even if the petition is denied.

Those considerations are the basis for my position in regard to the need to significantly limit judicial review of decisions to award the Israel Prize.

  1.  We shall now address the traditional justification for rescinding the requirement of standing, according to which, even when a petitioner has no personal interest in the subject of the petition, the Court must intervene in flawed administrative decisions because of its duty to contribute to the rule of law and to ensuring that government agencies act lawfully. Therefore, it is argued, we must ignore the possible motives of the Petitioners in this case, and their lack of personal interest, and focus upon the alleged conflict of interest. As we may recall, this allegation concerns the claimed professional and social relationship between Brody and Advocate Mizrahi. There is no dispute as to the professional relationship. That relationship spanned many years, inasmuch as the former played for Maccabee Tel Aviv while the latter served as chairman of the team. It is also undisputed that the relationship continued after the conclusion of Brody’s career as a player. As for the social relationship, it would appear that the parties disagree. In any case, under the circumstances, and as I shall explain below, there was no flaw that would justify this Court’s intervention, and there is certainly no flaw sufficiently serious as to warrant rescinding the decision. It may have been preferable for Brody to refrain from nominating Advocate Mizrahi. Nevertheless, we should bear in mind that, at the end of the day, the committee’s vote was unanimous – including the two judges against whom no allegations are made – that the prize be awarded to Advocate Mizrahi.

 

  1.  The members of each judging committee must be people who are well acquainted with the particular field. If, for example, we are concerned with a prize in the field of Jewish studies, it is but natural that the members of the committee will be people from that field or related fields. In our small country, and not only in it, it is hard to imagine that those qualified to serve on the judging committee would not be acquainted with the candidates. If a member or members of the judging committee are not acquainted with the work of the candidate, one might argue that such a member is not qualified to serve on the committee. A similar issue arose before this Court in regard to the awarding of the 2009 Israel Prize for “Lifetime Achievement – Special Contribution to Society and the State” to the Israel Democracy Institute (HCJ 3346/09 [10]). The Court denied the petition even though there were some relationships among all of the members of the judging committee, as well as between the Minister of Education’s advisor on the Israel Prize and the Democracy Institute. Another case adjudicated before this Court concerned the awarding of the Israel Prize for Political Science to Professor Zeev Sternhell of the Hebrew University of Jerusalem. The chairman of the judging committee was Professor Shlomo Avineri of the Political Science Department of the Hebrew University. Conflict of interest was not argued in that case. Perhaps if we were we to accept the argument of the Petitioners in the instant case, we should also retroactively rescind that award (see the Sternhell case).  If the Court were to adopt a broad approach to conflicts of interest, it might not be possible to find any person in Israel qualified to serve on an Israel Prize committee. Will we have to import judges from abroad for that purpose, as is occasionally done in regard to judges of sports matches?!

 

  1. A broad approach in regard to conflicts of interest has an additional, clear disadvantage in that it might necessarily limit the pool of appropriate candidates for consideration by the judging committee. This would be the case as an acquaintance between a member of the committee and a potential candidate would result in the disqualification of the candidate, regardless of his achievements. Let us examine this in regard to the concrete case before us: If Brody is indeed disqualified from serving on a committee examining the candidacy of Advocate Mizrahi, the significance is that Advocate Mizrahi is disqualified as a candidate. The matter can be examined from another angle:  Is it imaginable that this Court would entertain a petition by Advocate Mizrahi against the constitution of the committee because Brody is one of its members? Advocate Mizrahi could raise such a claim as a petitioner, saying that Brody’s appointment to the committee would bar his candidacy from consideration by the committee. It would see that it was the good fortune of several Nobel Prize winners that their awards did not have to pass the tests advanced by the Petitioners in this case and others dealing with the Israel Prize.

 

  1.  Although, in my view, the Court should adopt a restricted approach to judicial review of decisions in regard to the Israel Prize, clearly not all decisions in that regard can be said to be completely immune. For example – and hopefully one that  will remain hypothetical – if financial corruption, such as bribery, were discovered in regard to the prize, the Court would certainly intervene even if the petitioner had no direct interest in the petition. We can also say that if a very serious flaw were found in the conduct of the judging committee or the Minister of Education, the Court would certainly address the petition. This approach is comparable to this Court’s approach in regard to ignoring a claim of laches raised by a respondent. As is well known, if a petitioner delays in submitting a petition to the High Court of Justice, the petition may be dismissed for that reason alone (in regard to Administrative Courts, see Regulation 33 of the Administrative Courts Regulations (Procedures), 5761 – 2000). Only a serious flaw in a decision or administrative proceeding will lead to a rejection of a claim of laches, particularly when the petitioner has no personal interest (see, HCJ 2285/93 Nahum v. Mayor of Petach Tikvah [12], at 642-643, per Y. Zamir, J.).

 

  1.  Another matter, though marginal, should nevertheless be mentioned. I am referring to the influence of petitions like the one before the Court upon other litigants who turn to the Court, but who must, at times, wait long periods for a hearing. The decision to award the Israel Prize to Advocate Mizrahi was published on 9 March 2011. The petition was submitted on 23 March 2011. The Israel Prizes will, by tradition, be awarded on Independence Day, which this year will be celebrated on 10 May 2011 (6 Iyyar). Of course, this petition must be decided before the date of the award. On 6 April 2011, the duty judge (my colleague Justice E. Hayut) decided that the petition would be heard by the Court no later than 27 April 201. The hearing was held on 11 April 2011. Petitions in regard to the Israel Prize in the past have also been heard shortly after their submission. As a result of the fact that petitions in regard to the prize, and petitions of similar character and urgency are meant to be heard soon after their submission, cases that have already been set for hearing must be delayed or the Court must set aside space in its calendar for urgent petitions. The clear result is that other litigants suffer, although their already pending cases may be more worthy of precedence on the merits.

 

Conclusion

  1. We are concerned with a petition to rescind the decision to award the 2011 Israel Prize for sports to Advocate Mizrahi. As I have explained, in my view the Court should adopt a narrow approach in regard to prize decisions. A decision concerning who is to receive the prize need not be addressed by the Court on the merits, except in exceptional cases, such as corruption. A similar, though less strict approach should be adopted in regard to the election process and the decision procedure. We should bear on mind that even petitions that are ultimately denied may, by their sheer number, harm the prize and detract from its prestige. The Court should take care that it not unintentionally encourage a lack of firgun, or envy and schadenfreude. Independence Day is a holiday that unifies the nation, despite the differences and divisions of the rest of the year. The Israel Prize has become an important, traditional feature of the national holiday. It is to be hoped that awarding the prize will cease to be a focus of discord. In the field of sports, the contests should remain sporting, and the appropriate forum should be on the boards or the grass and not the Court.

 

  1. The petition is denied. Petitioners 1-2 will pay the legal fees of Respondents 1-2 in the amount NIS 20,000, and the same amount to Advocate Mizrahi.

 

 

 

Justice E. Arbel:

I concur with the judgment of my colleague, Justice A. Grunis, in denying the petition.

In his judgment, my colleague addressed the question of the scope of judicial review of decisions related to the Israel Prize. I agree that, as a rule, the Court should refrain from intervening in the decisions of the committee that decides upon awarding the prize, and that the committee enjoys broad discretion in this regard. In any case, these are not decisions that are meant to be the subject of legal proceedings (sec. 33 of the Contracts (General Part) Law, 5773 – 1973). I also agree that the Court should exercise great restraint in regard to intervening on the basis of claims against the selection process. However, as I have noted in the past, “…that is not to say that the decisions of the prize committee are immune to judicial review. The prize committee, like any administrative body, is subject to judicial review, but where the decision of the prize committee to award the Israel Prize to a certain person has been arrived at in good faith and on the basis of relevant professional considerations, there is no cause for the intervention of this Court in the decision (HCJ 2454/08 Legal Forum for the Land of Israel v. Minister of Education [1]).

However, and although I entirely agree with my colleague on the importance of preserving the Israel Prize as a uniting element on the State of Israel’s national holiday, as an expression of appreciation of a person’s contributions to the state and society, and as reinforcing the appreciation of excellence in Israeli society, I believe that we should show great restraint in limiting standing. Indeed, there are petitions against decisions to grant the prize to someone that are vexatious and seem to be brought out of envy rather than true desire that the prize be awarded only to those deserving it. Indeed, there are petitions in this regard that express a certain lack of understanding of the public nature of the prize, as it is not required that a prizewinner, his opinions and views necessarily represent the public consensus, as if anyone knows what that consensus might be and whether it is good and proper. But the Court’s open gates can also ensure that certain decisions that are appropriate for judicial review due to material flaws will be brought before the Court. My colleague indeed notes that there may be cases – and let us hope that we not witness such occurrences as financial corruption in regard to the prize – in which the Court will open its gates before a petitioner who has no direct interest in the petition. I believe that should surely be the case where there is no potential petitioner with a direct interest in the petition, and that even where there is a specific victim who did not petition the Court, there should remain an exception – not overly restricted – to the approach limiting access to public petitioners that would apply to matters of importance or significance that goes beyond the individual case (see, in this regard, the decision of Justice A. Procaccia in HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Elections Committee for the 16th Knesset [13]. For these reasons, I would not set rules in stone in regard to the standing issue in the context under discussion. My assumption is that the Court will know how to identify – as it has until now – the exceptional cases that justify extending relief to a petitioner whose standing is unclear, which cases should be addressed even if it would appear that the petitioner lacks any direct interest, and which cases should be dismissed in limine for that reason.

 

                                                                                                                       

Justice H. Melcer:

  1. At the end of my opinion in HCJ 2454/08 Legal Forum for the Land of Israel v. Minister of Education Yuli Tamir [1] I wrote:

In conclusion, we can only hope that, in the future, legal proceedings in these matters will become unnecessary, and that the Israel Prize will continue to be what it always has been – the highest accolade of the State of Israel for its finest researchers, scientists and contributors to our society.

 

It would seem that the hint was not taken, as the petition before the Court proves. I therefore agree with the forthright judgment of my colleague, Justice A. Grunis. Nevertheless, I will permit myself two comments:

 

  1. In my opinion – as far as recommendations of the judging committee acting in accordance with the Israel Prize Rules are concerned, or the decisions of the Minister of Education to accept or reject those recommendations (to award or not award the prize) – the substantive decision in these matters should not be a subject for legal proceedings. This is what is required by the provisions of section 33 of the Contracts (General Part) Law, 5737 – 1973, which should, in my opinion, be applied to the matter in accordance with section 61 of that law.

 

  1.             Like my colleague Justice E. Arbel, I do not think that this case justifies setting rules in stone (once again) in regard to the issue of standing. Moreover, in related situations in the past, two separate areas were distinguished (in regard to which various justifications were given for expanding standing):

 

 

  1.       The area concerning the status of a petitioner before the High Court of Justice who petitions to deny the right of another by reason of infringement of freedom of occupation, promoting competition, or preventing discrimination. This status was recognized in overruling the rule in HCJ 100/64 Mata’ei Emek Ha’arazim Ltd. v. Jerusalem District Commissioner [4]. For a critical examination of the issue, see Amnon Rubinstein, “The Standing of a Petitioner before the High Court of Justice seeking to Deny a Third Party’s Right,” 27 HaPraklit 499 (1971). On the change in the rule, see: HCJ 287/91 Kargal v. Investments Center Administration [14] at 856-862; HCJ 849/92 Shemen Industries Ltd. v.  Investments Center Administration [15] at 706-709; AAA 8193/02 Reuven v. Paz Oil Company Ltd. [16]; HCJ 4736/03 Alon Oil Company of Israel Ltd. v. Minister of Industry and Trade [17].

 

  1.       The area concerning the status of a public petitioner in constitutional petitions or petitions concerning infringement of the rule of law See: HCJ 910/86 Ressler v. Minister of Defense [18]; HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Elections Committee [19]; HCJ 962/07 Liran v. Attorney General [20]. For criticism of the rule, see Dr. Shlomo Levin, “Is there Standing for Standing?” 39 Hapraklit 453 (1990-1991).

 

  1. In my view, the fact that the Petitioners before us sought to deny the Israel Prize to Respondent 3 on the basis of arguments that they believed had some basis in public law does not justify limiting standing in the above two categories, or confusing them. In my opinion, assessing costs in this area of frivolous petitions should be sufficient for the time being to achieve the necessary balance among the relevant competing interests.

 

  1. In conclusion I would emphasize that the message should be clear and potential petitioners should be aware of two principles:
  1. Sometimes it is appropriate “lefargen[3] (an expression borrowed from Yiddish, but that has no Hebrew equivalent, and perhaps for a reason).
  2. It is about time that we leave the Israel Prize and its recipients alone.

 

Held as per the opinion of Justice A. Grunis.

22 Nissan 5771

26 April 2011

 

 

 

 

 

 

[1] Translator’s note: The term firgun, used here and elsewhere in the decision, derives from the Yiddish farginen and is related to the German vergönnen. The term lacks a precise Hebrew or English equivalent. It expresses a sense or acknowledgement of joy or satisfaction at the success of another, and is thus the opposite of schadenfreude.

 

[2] Translator’s note: Yellow is Maccabee Tel Aviv’s team color.

[3] Translator’s note: Infinitive of “firgun”.

Director General of the Prime Minister’s Office v. Hoffman

Case/docket number: 
HCJFH 4128/00
Date Decided: 
Sunday, April 6, 2003
Decision Type: 
Original
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.] 

 

A group of Jewish women (hereinafter: the Women of the Wall) sought to pray together in the Western Wall Plaza while wrapped in tallitot [prayer shawls] and reading the Torah. The possibility of praying at the Wall in accordance with their practice was prevented due to the violent objection of other worshippers at the site. The Women of the Wall petitioned the High Court of Justice, which ruled that the Government must establish appropriate arrangements and conditions to permit the petitioners to realize their right to worship in accordance with their custom in the Western Wall Plaza. In its petition for a Further hearing, the Government reiterated its argument – that was rejected in the judgment – according to which the Government fulfilled its obligation toward the Women of the Wall by adopting the recommendation that they be permitted to pray in the area of “Robinson’s Arch”.

 

The Supreme Court held:

 

A.   (1)        The Women of the Wall have a right to pray at the Wall in their manner. However, like every right, that right is not unlimited. It must be evaluated and weighed against other rights that are also worthy of protection.

      (2)        Accordingly, all steps must be taken to minimize the affront that other religiously observant people sense due to the manner of prayer of the Women of the Wall, and by doing so, also prevent serious events arising from the confrontation of the  opposing parties.

      (3)        In order to try to strike a balance between the opposing demands in this matter, the Government must prepare the adjacent “Robinson’s Arch” site and make it into a proper prayer space so that the Women of the Wall will be able to pray at the site in their manner, inasmuch as the site, in its current physical state, cannot serve as an appropriate place for prayer.

      (4)        If the “Robinson’s Arch” site is not made suitable within twelve months, and having found no arrangement acceptable to both parties, it is the duty of the Government to make appropriate arrangements and conditions within which the Women of the Wall will be able to realize their right to pray in their manner in the Western Wall Plaza.

 

B. (per J. Turkel J.):

      (1)        In deciding to designate the “Robinson’s Arch” site for the prayer of the Women of the Wall, the Government acted within the framework of its discretion, and the Court should not intervene in that discretion. This solution should not be adopted “conditionally”, but rather as a permanent solution.

      (2)        Adopting the said solution preserves the right of the Women of the Wall to access to the Western Wall Plaza itself, as long as they pray in accordance with the local custom while in the Western Wall Plaza. Thus, both their freedom of access to the Western Wall Plaza and their right to worship in their own manner is preserved.

 

C. (per E. Mazza, T. Strasberg-Cohen, D. Beinisch JJ., dissenting):

     (1)        The right of the Women of the Wall to pray according to their custom in the Western Wall Plaza was recognized without reservation in the prior judgments of the High Court of Justice in this matter, and there is no justification for restricting that right at present.

     (2)        The position adopted by the Court in the proceedings at bar in regard to the need to prepare the “Robinson’s Arch” site as a prayer space that will serve the Women of the Wall essentially eviscerates their said right, and also upsets the appropriate balance between their right to worship in the Western Wall Plaza and the need to consider the feelings of other worshippers.

 

D. (per I. Englard J., dissenting):

     (1)        The Palestine Order-in-Council (Holy Places), 1924, deprives the High Court of Justice of jurisdiction to consider matters concerning freedom of worship in the Holy Places.

     (2)        The dispute between the petitioners and the Government in the case at bar concerns freedom of worship at the Holy Places and not freedom of access to them, inasmuch as no one is preventing the Women of the Wall from entering the Western Wall Plaza. Rather, the dispute is in regard to the possibility that they pray in their manner at that place. Therefore, the High Court of Justice does not have subject-matter jurisdiction over the dispute at bar.

     (3)        All the laws of the Knesset are, by their very nature, secular norms, but there is no principled reason that a secular law not refer to a religious system.

     (4)        The secular character of the Protection of the Holy Places Law says nothing in regard to the interpretation of the terms therein or in the regulations thereunder. Everything rests upon the legislative intent in using those terms. The presumption is that terms borrowed from a religious system should be interpreted in accordance with that system.

     (5)        The result is that terms employed in the Protection of the Holy Places Law that are borrowed from the religious world should first and foremost be interpreted in accordance with their religious significance.

     (6)        Accordingly, the expression “conducting a religious ceremony that is not in accordance with the local custom” in reg. 2(a) (1a) of the Regulations for the Protection of Holy Places to the Jews, 5741-1981, should be interpreted in accordance with its halakhic meaning, such that prayer in the Western Wall Plaza in the manner of the Women of the Wall falls within the scope of the prohibition established under the regulation.

     (7)        Additionally, there is support for the opinion that, in view of the halakhic situation, the judgment under review in this Further Hearing that would allow the petitioners to act in their style and manner would constitute a substantial intrusion upon the prayers of others or an excessive violation of the feelings of others.

 

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
Author
concurrence
Author
concurrence
Author
dissent
Author
dissent
Author
dissent
Author
dissent
Full text of the opinion: 

 

HCJFH 4128/00

 

 

Petitioners:                  1.         Director General of the Prime Minister’s Office

                                    2.         Director General of the Ministry of Religion

                                    3.         Director General of the Ministry of the Interior

                                    4.         Director General of the Ministry of Police

                                    5.         Legal Advisor to the Prime Minister’s Office

                                    6.         Prime Minister’s Advisor on the Status of Women

                                    7.         Government of Israel

                                   

                                                                        v.

 

Respondents:              1.         Anat Hoffman

                                    2.         Chaya Beckerman

3.         International Committee for Women of the Wall, Inc. by Miriam Benson

 

           

Attorney for the Petitioners:               Osnat Mendel, Adv.

Attorney for the Respondents:           Francis Raday, Adv.

 

The Supreme Court

[April 6, 2003]

 

Before President A. Barak,  Deputy President S. Levin, Justice T. Orr, Justice E. Mazza, Justice M. Cheshin, Justice T. Strasberg-Cohen, Justice J. Turkel, Justice D. Beinisch, Justice I. Englard

Further Hearing on the judgment of the Supreme Court in HCJ 3358/95 of May 22, 2000 by E. Mazza, T. Strasberg-Cohen and D. Beinisch JJ.

 

A group of Jewish women (hereinafter: the Women of the Wall) sought to pray together in the Western Wall Plaza while wrapped in tallitot [prayer shawls] and reading the Torah. The possibility of praying at the Wall in accordance with their practice was prevented due to the violent objection of other worshippers at the site. The Women of the Wall petitioned the High Court of Justice, which ruled that the Government must establish appropriate arrangements and conditions to permit the petitioners to realize their right to worship in accordance with their custom in the Western Wall Plaza. In its petition for a Further hearing, the Government reiterated its argument – that was rejected in the judgment – according to which the Government fulfilled its obligation toward the Women of the Wall by adopting the recommendation that they be permitted to pray in the area of “Robinson’s Arch”.

The Supreme Court held:

  1. (1)        The Women of the Wall have a right to pray at the Wall in their manner. However, like every right, that right is not unlimited. It must be evaluated and weighed against other rights that are also worthy of protection.

(2)        Accordingly, all steps must be taken to minimize the affront that other religiously observant people sense due to the manner of prayer of the Women of the Wall, and by doing so, also prevent serious events arising from the confrontation of the opposing parties.

(3)        In order to try to strike a balance between the opposing demands in this matter, the Government must prepare the adjacent “Robinson’s Arch” site and make it into a proper prayer space so that the Women of the Wall will be able to pray at the site in their manner, inasmuch as the site, in its current physical state, cannot serve as an appropriate place for prayer.

(4)        If the “Robinson’s Arch” site is not made suitable within twelve months, and having found no arrangement acceptable to both parties, it is the duty of the Government to make appropriate arrangements and conditions within which the Women of the Wall will be able to realize their right to pray in their manner in the Western Wall Plaza.

B. (per J. Turkel J.):

(1)        In deciding to designate the “Robinson’s Arch” site for the prayer of the Women of the Wall, the Government acted within the framework of its discretion, and the Court should not intervene in that discretion. This solution should not be adopted “conditionally”, but rather as a permanent solution.

(2)        Adopting the said solution preserves the right of the Women of the Wall to access to the Western Wall Plaza itself, as long as they pray in accordance with the local custom while in the Western Wall Plaza. Thus, both their freedom of access to the Western Wall Plaza and their right to worship in their own manner is preserved.

C. (per E. Mazza, T. Strasberg-Cohen, D. Beinisch JJ., dissenting):

(1)        The right of the Women of the Wall to pray according to their custom in the Western Wall Plaza was recognized without reservation in the prior judgments of the High Court of Justice in this matter, and there is no justification for restricting that right at present.

(2)        The position adopted by the Court in the proceedings at bar in regard to the need to prepare the “Robinson’s Arch” site as a prayer space that will serve the Women of the Wall essentially eviscerates their said right, and also upsets the appropriate balance between their right to worship in the Western Wall Plaza and the need to consider the feelings of other worshippers.

D. (per I. Englard J., dissenting):

(1)        The Palestine Order-in-Council (Holy Places), 1924, deprives the High Court of Justice of jurisdiction to consider matters concerning freedom of worship in the Holy Places.

(2)        The dispute between the petitioners and the Government in the case at bar concerns freedom of worship at the Holy Places and not freedom of access to them, inasmuch as no one is preventing the Women of the Wall from entering the Western Wall Plaza. Rather, the dispute is in regard to the possibility that they pray in their manner at that place. Therefore, the High Court of Justice does not have subject-matter jurisdiction over the dispute at bar.

(3)        All the laws of the Knesset are, by their very nature, secular norms, but there is no principled reason that a secular law not refer to a religious system.

(4)        The secular character of the Protection of the Holy Places Law says nothing in regard to the interpretation of the terms therein or in the regulations thereunder. Everything rests upon the legislative intent in using those terms. The presumption is that terms borrowed from a religious system should be interpreted in accordance with that system.

(5)        The result is that terms employed in the Protection of the Holy Places Law that are borrowed from the religious world should first and foremost be interpreted in accordance with their religious significance.

(6)        Accordingly, the expression “conducting a religious ceremony that is not in accordance with the local custom” in reg. 2(a) (1a) of the Regulations for the Protection of Holy Places to the Jews, 5741-1981, should be interpreted in accordance with its halakhic meaning, such that prayer in the Western Wall Plaza in the manner of the Women of the Wall falls within the scope of the prohibition established under the regulation.

(7)        Additionally, there is support for the opinion that, in view of the halakhic situation, the judgment under review in this Further Hearing that would allow the petitioners to act in their style and manner would constitute a substantial intrusion upon the prayers of others or an excessive violation of the feelings of others.

 

Judgment

 

Justice M. Cheshin:

  1. Why was the First Temple destroyed? Because of three things that prevailed there: idolatry, immorality and bloodshed.

But why was the Second Temple destroyed, when they were occupied with Torah, mitzvoth and charity? Because baseless hatred prevailed. This teaches us that baseless hatred is of equal gravity with three sins: idolatry, immorality and bloodshed (TB Yoma 9b).

 

            So it was in besieged Jerusalem when Titus, the representative of distant Rome, battered its walls. The enemy beset from without, seeking to destroy and extinguish a nation and a kingdom, and the People of Israel within Jerusalem – the residents of Jerusalem and those who gathered in Jerusalem from all the corners of the land of Israel – raised their hands at one another. Beset from without and beset from within. That is the nature of strife. That is the nature of hatred. For strife and hatred destroy all that is good, they completely undermine human relations, they destroy man and beast, tree and field. Such is hatred, such is jealousy, such is zealotry, and zealotry stands above them all.

            The Western Wall is a remnant of our Second Temple, and now those who fight amongst themselves fight over it. Can we not learn from the history of our tortured nation?

Background

2.         Our concern this time is a Further Hearing on the judgment of the Supreme Court in HCJ 3358/95 Anat Hoffman et al. v. Director General of the Prime Minister’s Office et al., IsrSC 54 (2) 245. In that judgment, the High Court of Justice decided – per Justice Eliahu Mazza, Justices Tova Strasberg-Cohen and Dorit Beinisch concurring – to order the Government “to establish the appropriate arrangements and conditions under which the Petitioners will be able to realize their right to pray in accordance with their custom in the Western Wall Plaza.” The Petitioners before the Court – the Government of the State of Israel and those acting on its behalf (hereinafter: the Government of Israel or the Government) – are of the opinion that they should not be ordered to act as ordered by the Court, inasmuch as immediately prior to the rendering of the said judgment the required arrangements and conditions had been established as required by the Court’s decision. In its judgment, the Court rejected this argument, and the Government now asks that we find – in a Further Hearing – that it indeed fulfilled what it was required to do.

3.         The Protection of the Holy Places Law, 5727-1967 (the Protection Law) – a law enacted some two weeks after the end of the Six Day War – instructs us in decisive, unambiguous language to protect the Holy Places against any desecration or violation, to protect the freedom of access of the various religious communities to the places they hold sacred, and prohibits the affront of feelings towards those places:

Protection of Holy Places

1.The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places.

The very same language, word for word, is conveyed to us in Basic Law: Jerusalem, Capital of Israel (the Jerusalem Law). The Protection Law – and later, the Jerusalem Law as well – was intended to change the status quo ante from stem to stern. For until the enactment of the Protection Law – thus during the Mandate period and thus after the establishment of the State, when the Western Wall and other places holy to the Jews were under the rule of the Hashemite Kingdom of Jordan – there were limitations, often severe and disgraceful limitations, upon the rights of Jews to their holy places. But from that point, the limitations were removed and the barriers were lifted.

            The Protection Law was not created for the Jews alone, or perhaps we should say that it was created primarily not for the Jews. It was created for the Moslems, it was created for the Christians, it was created for the members of every other faith that have places that are sacred for them in Israel. The rights of all of these were established in the law, and not just any law, but a Basic Law. The status of the Jews in regard to the places they hold sacred was established like the status of all members of other faiths for the places sacred to them, with complete equality and without discrimination – each believer and the places he holds sacred.

            We live among our people, and to date we have not heard a serious complaint of any violation incurred by the members of any other faith in regard to the places they hold sacred. The State protects their rights with utmost care, and there is no breaching and no wailing [Psalms 144:14]. Yet see how wondrous, or perhaps not so wondrous: we Jews are the ones dissatisfied by what has been done and by what has not been done in the places sacred to us – at times from here and at times from there. The matter before us in this Further Hearing is one of those disputes that have arisen among the Jews themselves.

4.         This is the fourth time that we are addressing the subject before us, and we would express the hope that it will be the last. The first time was in HCJ 257/89, 2410/90 Anat Hoffman et al. v. Director of the Western Wall; Susan Alter et al. v. Minister of Religious Affairs et al., IsrSC 48 (2) 265 (the First Judgment or the First Petition). The second time was in HCJ FH 882/94 Susan Alter et al. v. Minister of Religious Affairs et al. (unpublished), in which the petitioners in the First Petition requested a Further Hearing on the First Judgment (the Further Hearing). The third time was the judgment that we are now addressing in this Further Hearing, that is, HCJ 3385/95 Anat Hoffman et al. v. Director General of the Prime Minister’s Office et al., IsrSC 54 (2) 345 (the Second Judgment or the Second Petition). And now we meet for the fourth time.

            In order to understand the disagreements and the arguments of the parties, we have no alternative but to review – if only in brief – the proceedings to date. Indeed, the aforementioned proceedings were like necklace beads strung one beside another to form a single strand, and before we string another bead, we should study and understand the nature of that strand.

 

The Original Events and the First Petition

5.         The matter began on the Rosh Hodesh [beginning of the new month of the Jewish calendar] of the month of Tevet 5749 (Dec. 9, 1988), when a group of Jewish women, residents of Jerusalem, tried to pray together in the Western Wall Plaza. It is the custom of those women to wrap themselves in tallitot [prayer shawls] in prayer, and to read aloud from a Torah scroll, as is customary for the reading of the Torah. Thus the women sought to do facing the Western Wall every month and on special occasions. That Rosh Hodesh Tevet, the other male and female worshippers at the Wall were unwilling to permit the women to pray as they desired, and from the moment they began to pray, those other worshippers met them with violence. Prior to Rosh Hodesh Adar I, having learned from their experience, the women informed the police in advance of their intention to pray at the Wall in accordance with their custom, but to no avail. In the course of prayer, other women worshippers – soon joined by male worshipers – began to interrupt the group of women, to curse tem, shower them with insults, and even to grab the prayer books from their hands, throw objects at them and beat them.

6.         Following that event, the women met with the late Rabbi Getz, who was the rabbi in charge of the Western Wall, and prior to the Fast of Esther of that year an arrangement was concluded and the women agreed to pray at the Wall without tallitot and without Torah scrolls. For his part, Rabbi Getz assumed the responsibility of seeing to the safety of those women and to ensure their right to pray. The arrangement did not succeed, as Rabbi Getz was unable to keep his promise. The prayer on the Fast of Esther became particularly stormy, and ultimately the police had to break up a violent, rioting crowd by means of tear-gas canisters.

7.         On the day following the grim events of the Fast of Esther, on 14 Adar II 5749, March 21, 1989, those women submitted their first petition (HCJ 257/89). Thus began the first affair.

8.         The opponents of the prayer of those women continued to act aggressively, but the women did not relent. They continued to arrive at the Wall on Rosh Hodesh and pray there, but the absolute opposition displayed by the other worshippers at the site – and the rabbi in charge of the Western Wall Plaza among them  -- did not dissipate. The exchanges between the warring camps did not mince words – orally and in writing – and even violence showed its ugly face. The history of the struggle leading up to the judgment on the First Petition is described in detail by Deputy President Elon in the First Judgment, at pp. 277 – 292.

9.         Towards the end of 1989, the group of women gained encouragement and support from another group of Jewish women, residents of the United States (the Second Group). These women established the “International Committee for Women of the Wall” – from that point on, the First Group and the Second Group have been referred to as the Women of the Wall – and also tried to pray at the Wall from time to time. The worship services of the Second Group was – and is – conducted in accordance with Orthodox halakha. Inasmuch as that group comprises women from various streams of Judaism, and in order for them to unite as a single group, the group chose to follow the strictest approach to prayer from among the various schools. These women pray together as individuals, that is, they do not view themselves as constituting a “minyan” [prayer quorum], and therefore refrain from reciting those prayers that are permitted only in a minyan, such as the kaddish prayer. They wrap themselves in tallitot and read from a Torah scroll – as is the practice of the women of the First Group – but at the same time, they take care not to follow the Torah reading practices that are permitted only in a minyan, such as reciting the blessings and being called to the Torah.

10.       The women of the Second Group wished to pray at the Wall – together, as is their custom – on Rosh Hodesh Kislev 5750, but when they arrived at the Western Wall Plaza, wrapped in tallitot and carrying a Torah, they were prevented from entering the women’s prayer section. This incident led to an exchange of letters with the representatives of the Ministry of Religious Affairs, and when it became clear that this correspondence would not bear fruit, this Second Group also petitioned the High Court of Justice. This petition – submitted to the Court on June 3, 1990 – was the petition in 2410/90 Susan Alter et al. v. Minister of Religious Affairs et al. The proceedings in that petition were joined with the proceedings in the First Petition, and the two petitions together composed the first affair. For the sake of completeness we would also add that the groups composing the Women of the Wall are of various hues – like the other groups we have become accustomed to seeing in Judaism – but for our purposes they are all united in the demand that they be permitted to pray together at the Wall, wrapped in tallitot and reading the Torah aloud, just as men wrap themselves in tallitot and read the Torah aloud without fear.

11.       To complete the picture, we would also add the following. Under the provisions of sec. 4 of the Protection Law, the Minister of Religious Affairs may, after consulting with, or upon the proposal of, representatives of the religious communities concerned, and with the consent of the Minister of Justice, make regulations as to any matter relating to the implementation of that law. The Minister of Religious Affairs has exercised that authority on several occasions. In regard to the Western Wall (and other Jewish Holy Places), he promulgated regulations called the Regulations for the Protection of Holy Places to the Jews, 5741-1981 (the Protection Regulations). On Dec. 31, 1989, after the First Petition was submitted to the Court – that is the first petition of the Women of the Wall – and before the Second Petition was submitted, the Minister published an amendment to those regulations – after consulting with the Chief Rabbis of Israel – adding subsection (1a) to regulation 2, as follows:

                        Prohibited Conduct

                        2.         (a)        In the area of the Holy Places, … the following is prohibited:

                                    (1) …

(1a) Conducting a religious ceremony that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place;

            We will return to examine this subsection further on, but for the meantime we would only add that it would appear that is was on the basis of this subsection (and reg. 4 of the Regulations) that the rabbi in charge of the Western Wall Plaza sought to prohibit the entrance of the Women of the Wall to the women’s prayer section of the Plaza.

 

The Judgment on the First Petition

12.       The petitions of the Women of the Wall – that in HCJ 257/89 and that in HCJ 2410/90 – came before a panel of the High Court of Justice composed of President Meir Shamgar, Deputy President Menachem Elon, and Justice Shlomo Levin. After the passage of no small amount of time during which the parties were unable to come to terms, the Court issued its decision. The judgment was delivered on Jan. 26, 1994, and the three justices wrote three separate opinions. All three agreed “that the Petitioners are entitled to pray in accordance with their custom in their communities and synagogues, and no one will stand in their way”, that “the freedom of worship of the Petitioners stands” (per Elon D.P., ibid., at p. 350), and that the prayers of the Women of the Wall “are not halakhically flawed from a formal perspective” (per Elon D.P., ibid., at p. 321). However, differences of opinion arose among the justices on the question of whether the Women of the Wall could, in practice, pray in accordance with their custom in the Western Wall Plaza, and thereby realize their fundamental right to freedom of worship.

13.       Justice Elon was of the opinion – in a decision that is worthy of being called monumental and encyclopedic – that the Women of the Wall do not have the right to pray in the Western Wall Plaza in accordance with their custom, and he constructs his decision as follows.  First, the Deputy President holds that the prayer area beside the Western Wall is a synagogue, and not merely a synagogue, but “the holiest synagogue in the halakhic and Jewish world” (ibid., p. 318). Elsewhere, the Deputy President holds that the prayer area beside the Western Wall “must be treated like a synagogue and even more so” (ibid., p. 319). Second, the manner of prayer of the Women of the Wall, although not contrary to halakha, is a manner of prayer that is “unacceptable”, that is to say, unacceptable in an Orthodox synagogue, in that it is contrary to the manner of prayer in an Orthodox synagogue. In conclusion: the manner of prayer of the Women of the Wall is, in the opinion of the Deputy President, a manner of prayer that stands in contradiction of the “local custom”.

            In this regard, the Deputy President reminds us of the provision of reg. 2(a) (1a) of the Protection Regulations – a provision that prohibits conducting a religious ceremony “that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place” – and he further holds that this provision “expresses the principle of maintaining the status quo – ‘local custom’ and the status quo are one and the same” (ibid., p. 344). The Deputy President further states “that prayer conducted in the manner of the Petitioners – prayer that … violates ‘local custom’ – leads to severe, tangible harm to public order, and thereby leads to desecration of the Western Wall” (ibid., p. 345). Indeed (ibid., p. 329):

The present reality is that the overwhelming majority of halakhic decisors, including the Chief Rabbis of Israel, see the granting of the Petitioners’ petitions – even that in HCJ 2410/90 – as constituting a desecration of the customs and sanctity of the synagogue. Such is the case in regard to the prayer customs of the synagogue, and all the more so in regard to the prayer space at the Western Wall, which is the holiest synagogue in the halakhic and Jewish world.

            (And further see p. 350). The necessary conclusion is that:

… Granting the petitions before the Court would constitute a substantive change in the local custom, and the conducting of prayer services in the manner requested in the petitions would constitute a grave offense to the feelings of the overwhelming majority of worshippers in regard to the place …

Clearly, it goes without saying that the Petitioners are entitled to pray in accordance with their custom in their communities and synagogues, and no one will stand in their way. The freedom of worship of the Petitioners stands. But due to the uniqueness of the Western Wall, and the great sensitivity of Judaism’s holiest site, prayer at that one unique place must be conducted in accordance with the common denominator that makes it possible for every Jew to pray there – the local custom that has been observed there for generations, and that should be strictly adhered to (ibid., p. 350, emphasis original – M.C.).

            This is even the case in regard to the serious fear of a possible breach of public order. The freedom of worship acquired by the Women of the Wall must retreat before the fierce opposition of the majority of worshippers at the site – opposition deriving from the severe affront that will be felt by those worshippers if the Women of the Wall are granted their request and permitted to pray in accordance with their custom in the Western Wall Plaza. In the words of Justice Elon (ibid., pp. 349-350):

It is clear beyond all doubt that granting the petitions before us would lead to particularly harsh, bitter and sharp dispute, as well as to violence that would end in bloodshed. It is an uncontested fact that the overwhelming majority of worshippers who visit the prayer area at the Western Wall every day and every night are of the honest, good-faith opinion and belief that the changes requested in the two petitions before the Court amount to desecration of the prayer area at the Western Wall. Not only will it result in extremely violent and severe dispute, but in terms of halakha, both men and women will be prevented from praying at the Wall. At present, access to the Wall and prayer at the Wall are open and permitted to every Jewish man and women, who pour out their hearts before God as each women and man desires, and as each wishes to speak with his Maker, whether by heart or from a book. It would be unthinkable that different dates and times for prayer would be instituted at the prayer area at the Western Wall for the prayer services of different groups, and that the fate of this holy site would be its division into times and periods among the members of the Jewish People, their holidays and different movements, as has been the fate of the Holy Places of other religious communities … (emphasis original – M.C.).

            Deputy President Elon was thus of the opinion that the petition of the Women of the Wall should be denied in its entirety, and that they should not be permitted to pray according to their custom in the Western Wall Plaza.

14.       On the other side – diametrically opposed to the Deputy President – stood Justice Levin. As opposed to Deputy President Elon, Justice Levin was of the opinion that the Women of the Wall had a right to pray in the Western Wall Plaza in accordance with their custom. Moreover, after four years had passed since the events that gave rise to the petitions, it was time, in his opinion, to decide the matter and grant the petitioners’ request.

15.       First of all, Justice Levin held that the Protection Law is a secular law, and therefore the petition should not be decided solely on the basis of halakhic considerations. This statement by Justice Levin conspicuously contradicts the opinion of Deputy President Elon, who interpreted and effected the Protection Law in accordance with Jewish halakha, and in reliance upon numerous Jewish-law sources. In the opinion of Justice Levin, the Western Wall site is sacred to the Jewish People both as a religious site and place of prayer, and as a place bearing national significance, a symbol of the Jewish kingdom, and he was of the opinion that it was in accordance with that approach that the manner of conduct in its vicinity and the rights of Jews to act there must be interpreted. Moreover, the Western Wall is not a synagogue, and therefore it is not subject to the halakhic rules that apply to a synagogue. The test that should be applied in regard to permissible activity in the Western Wall Plaza should be based upon “the common denominator of all the groups and people who visit the Western Wall site and the Plaza in good faith, whether for prayer or for other legitimate purposes” (p. 357).

            As for the concept of “local custom” in accordance with reg. 2(a) (1a) of the Protection Regulations, Justice Levin expressed his opinion that:

… in my opinion, the term “local custom” need not be interpreted specifically in accordance with the halakha or the existing situation. It is the nature of custom to change over time, and in its framework expression should be given to a pluralistic, tolerant approach to the views and customs of others, subject to the limitations that I have noted above.

            However, Justice Levin was also of the opinion that restrictions may be imposed upon certain activities at the Western Wall site (ibid., p. 357):

Without exhausting the subject, it may be justifiable to restrict religious ritual or other conduct at the site when the common denominator of the public that legitimately cares about the Wall, and not merely one sector, sees the conduct as an “intolerable” violation that “desecrates” the site, or where the conduct is not carried out in good faith but simply to anger and provoke, or where circumstances justify establishing that certain concrete conduct will, by reason of its extent or timing, lead to a breach of public order in circumstances in which preventing the conduct (in those concrete circumstances) overrides the right to worship or the conduct of the relevant party, while ensuring appropriate alternatives for the conduct in order to limit the danger to public order that would result from it.

            The practical result of this is (loc. cit.):

… that no absolute prohibition should be placed upon conducting prayer services at the Western Wall site simply because there are groups that oppose them, and considerations of certain and proximate danger of a breach of the peace need not necessarily justify imposing such a prohibition. Rather, it is the duty of the relevant authority to ensure the appropriate conditions in order to balance all the relevant interests so that all those who seek to assemble at the Wall and its Plaza may fully realize their rights without unnecessarily violating the feelings of others.

            Inasmuch as four years had passed since the events that gave rise to the petitions, it no longer seemed appropriate to decide – after such a long period – “whether or not the conduct of any of the Petitioners was in good faith at the time” (loc. cit.), and therefore Justice Levin decided “under these circumstances” that:

I am satisfied that, at this point, it is sufficient to issue a decision that recognizes in principle the good-faith right of the Petitioners to pray at the Western Wall Plaza while wearing tallitot and while carrying Torah scrolls, subject to the provisos that I have already noted above. That is what I would decide.

            Nonetheless, being aware of the difficulties that might confront the Government in putting the decision into practice, Justice Levin further decided that the execution of the decision should be postponed. In his words (p. 358):

In light of the sensitivity of the subject, and the need to prepare for the execution of this decision, and perhaps also to enact legislation to arrange the matter, I would recommend to my colleagues that this judgment be issued subject to the interim order remaining in force for one year from today.

16.       The third opinion – the second in the order published in IsrSC – was given by President Shamgar. At the outset, President Shamgar addresses the exalted status of the Western Wall – both in the religious tradition and in the national tradition of the Jewish People – stating (ibid., p. 353):

The Wall – which bounds the Temple Mount on its western side – was sanctified in the religious tradition of the Jewish People as the remnant of our Temple. For thousands of years, it has represented in our national tradition what we lost with the destruction of the Temple, as well as the continuity of our national existence. In the eyes of the religious halakha, it is a mikdash m’at; from a nationalist perspective, it symbolizes generations of suffering           and the aspiration for a return to Zion and the return of our diaspora, and therefore, it expresses the strength and vitality of the nation, its ancient roots and its eternality. Therefore, inter alia, the opening ceremony of Remembrance Day for the Fallen Soldiers of Israel is held there, and soldiers are sworn in while facing it (emphasis original – M.C.).

Further on, President Shamgar goes on to speak of tolerance and patience (ibid., p. 354):

… we have emphasized on various occasions that the sons and daughters of a free society in which human dignity is a fundamental value, are asked to respect the personal-emotional feelings of the individual and his dignity as a person, while understanding that the personal-emotional priorities and the manner of expressing them differs from person to person. Thus we were of the opinion … that a free society is sparing in imposing limits upon the choices of the individual and acts with patience and tolerance, and even tries to understand the other, even when he chooses paths that the majority does not deem acceptable or desirable.

Tolerance and patience “are not unidirectional norms, but rather they are encompassing and multidirectional” (ibid., p. 354), and therefore:

… tolerance must be mutual. Belligerent demonstrations that sometimes draw upon the practices of violent societies from the east and west are not appropriate to it.

            Following this preface, President Shamgar informs us: “All of this leads us to the bumpy road of trying to balance between approaches and beliefs that are incompatible” (ibid., p. 354), and in this context he adds that it would be preferable if the resolution of disputes be reached through dialogue. In his words (ibid., pp. 354-355):

… it is worth remembering that exclusive focus upon presenting questions and problems before the Court – the “wonder drug” of our generation – is not necessarily the appropriate solution or the desirable remedy for all that ails us. At times it comprises the desire for an imposed solution, grounded in a judicial order, when an attempt at reaching agreement and discussion between the various approaches seems more difficult. However, a solution achieved through agreement and understanding has the advantage of deriving from the parties, and the spirit that led to the agreement will imbue its results.

17.       On the merits, one needn’t dig too deeply to discover that President Shamgar was of the opinion that the petitioners had a right to pray according to their custom in the Western Wall Plaza. Like Deputy President Elon, President Shamgar was also of the opinion that we must seek and find “a common denominator for all Jews, whomever they may be” (ibid., p. 355). However, unlike Deputy President Elon, in the opinion of President Shamgar (ibid., p. 355):

… the common denominator means sufficing with the basic arrangements that would ensure freedom of access and freedom of worship to everyone, without imposing special conduct upon those who do not want it, and without violating the sensitivities of the believers. It does not mean imposing the strictest approach. Incidentally, if we were to adopt the strictest approach, then no Jew would be permitted to visit the Temple Mount (emphasis original – M.C.).

            President Shamgar agrees that “in light of the unusual sensitivity of the issue at bar, it cannot be resolved at a stroke, while ignoring its deep roots”, but he adds, “I am not convinced that the Respondents are not exaggerating the conflicts and differences.” He then continues to express his opinion in no uncertain terms in regard to the right of the Women of the Wall. In his words (ibid., p. 355):

In my opinion, practical solutions should continue to be sought, according to which anyone who wishes to approach his Creator in prayer will be able to do so in his own style and manner, as long as it will not constitute a substantial interference with the prayers of others. The legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner, as is clear from the provisions of the said laws.

18.       President Shamgar is of the opinion that it would be appropriate to attempt to continue to employ means that might lead to an arrangement acceptable to all:

I have already noted that this Court may not be the most effective medium – and certainly not the only one – that, through meeting with the various parties, can try to find practical ways for realizing the legislative purpose of the two aforementioned laws, which continues and realizes the principle declared in the Declaration of Independence.

If the relevant parties are willing, it would be appropriate to make at least an attempt to reach a solution that would be suitable to all those who wish to visit the Western Wall.

            And for this reason, he is of the opinion that a decision should not be rendered immediately (ibid., pp. 355-356):

It is, therefore, my opinion that, at this stage, we should not decide the matter before us in the manner that a normal legal dispute is decided. I would recommend to the Government that it consider the appointing of a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit the harm to the feelings of the worshippers.

Therefore, I would, at present, dismiss the petitions, subject to my above recommendation. The gates of this Court are always open, but as stated, the other available options should first be exhausted.

19.       If we closely examine the opinions of the three justices, we discover that they are divided into a majority and a minority for various reasons. In order to understand this correctly, we will now take a small step backwards. We will examine the petitions of the Women of the Wall and then return to the opinions of the justices.

            The primary prayer of the petitioners in HCJ 257/89 (the First Group) was directed against the Director of the Western Wall, the Ministry of Religious Affairs, and the Chief Rabbis, demanding that they show cause:

Why do they forbid and/or prevent the Petitioners in particular, and Jewish women in general from carrying Torah scrolls and reading from them, and/or wearing tallitot during their prayers.

            As for the Second Group – the Women of the Wall who petitioned in HCJ 2410/90 – their primary prayer was this:

A petition for an order against the Respondents … forbidding them to prevent Petitioners nos. 1-6 from praying at the Western Wall and in the Western Wall Plaza while wearing tallitot and reading the Torah, and requiring them to permit the Petitioners to bring a Torah scroll into the Western Wall Plaza, and ensure such prayer by the Petitioners without interference or harm.

            These petitions were denied by a majority composed of President Shamgar and Deputy President Elon, but while the Deputy President’s reasons came from the east, the President brought his reasons from the west.

20.       On the merits, as noted, Deputy President Elon was of the opinion that the Women of the Wall did not have a right to pray according to their custom at the Western Wall, and he therefore decided that the petitions should be denied. President Shamgar was also of the opinion that the petitions should be denied, but unlike the Deputy President, it was his opinion that the time was not yet ripe for a judicial decision, and he therefore decided to deny them. In the opinion of President Shamgar, the Petitioners’ petitions were premature, as the parties had not exhausted all of the avenues for resolving the disputes amicably – rather than by a decision of the Court – and it would not, therefore, be appropriate to decide the matter and rule upon the rights of the parties at law. The Deputy President from here and the President from there – each for his own reasons – arrived at a joint operative conclusion that the petitions should be denied and the orders nisi quashed. But the reasons for their decisions were diametrically opposed. In this regard, Justice Levin was in the minority, as his opinion was that an order absolute should be granted in a particular form.

            Thus far in the matter of the operative relief.

21.       The disagreements on the operative decision were unlike the disagreements on the merits in regard to the right of the Women of the Wall to pray at the Western Wall in accordance with their custom. In this regard, the division among the opinions of the justices was different than in regard to the operative decision.

            The opinion of the Deputy President, Justice Elon, was, as stated, that the Women of the Wall did not have a right to pray at the Western Wall in accordance with their custom. As opposed to this, Justice Levin was of the opinion that, subject to certain provisos, the Women of the Wall had a right to pray in good faith at the Western Wall in accordance with their custom, while wearing tallitot and carrying a Torah scroll. In this regard, President Shamgar concurred with Justice Levin that the Women of the Wall had a right to pray at the Western Wall in good faith and in accordance with their custom. Indeed, as we saw, President Shamgar was of the opinion that “[T]he legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner, as is clear from the provisions of the said laws” (at p. 355).  At the same time, while President Shamgar and Justice Levin agreed on the merits, they disagreed as to the operative relief, and for reasons that we explained above, President Shamgar was of the opinion that the order nisi should be quashed and the petitions denied.

22.       The result of the First Petition was thus that according to the majority, the Women of the Wall had a right to pray in accordance with their custom at the Western Wall, while by a different majority, their petition was denied.

 

The Proceedings after the Judgment in the First Petition and the submission of the Second Petition

23.       President Shamgar was of the opinion that the possibilities for reaching an agreed solution had not been exhausted, and in this regard he accompanied Justice Levin part of the way (see para. 15, above, in regard to the operative relief that Justice Levin thought should be granted to the petitioners). President Shamgar did not set a time for examining the possibilities for reaching an agreed solution, but he expressly stated the parameters for striking a balance. We quoted his opinion above (para. 17), and we will reiterate it here:

In my opinion, practical solutions should continue to be sought, according to which anyone who wishes to approach his Creator in prayer will be able to do so in his own style and manner, as long as it will not constitute a substantial interference with the prayers of others. The legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner, as is clear from the provisions of the said laws.

            In other words, the Women of the Wall have the fundamental right to pray to God in accordance with their custom – whether in their own place or before the Western Wall – “as long as it will not constitute a substantial interference with the prayers of others.”

24.       In the judgment that is the subject of the Further Hearing – the judgment in the Second Petition – the Court surveyed the events following the judgment on the First Petition at length (see pp. 352 – 361 of the judgment in the Second Petition), and we will therefore be brief.

25.       Two months passed after the rendering of the First Judgment, and on May 17, 1994, pursuant to the recommendation of President Shamgar, the Government of Israel decided to appoint a committee that was instructed as follows:

… to propose a possible solution that will ensure freedom of access to the Western Wall and freedom of worship in its Plaza, while minimizing the violation of the feelings of the worshippers at the site.

            The members of the Committee were the Director General of the Prime Minister’s Office (Chair), and the Directors General of the Ministry of Religious Affairs, the Ministry of the Interior, and the Ministry of Police, and the Legal Advisor of the Prime Minister’s Office. The Prime Minister’s Advisor on the Status of Women was appointed to the committee as an observer (the Directors General Committee). The Government allotted six months for the Committee to present its recommendations.

 26.      When they saw that the First Judgment did not grant them the relief they had hoped for, the Women of the Wall petitioned the Supreme Court to grant a Further Hearing on the First Judgment (HCJFH 882/94 Susan Alter et al. v. Minister of Religious Affairs et al., unpublished). The Deputy President, Justice Aharon Barak, decided to deny the request, grounding his decision upon the Government’s decision. In his decision, the Deputy President wrote:

This petition must be denied. My opinion is grounded upon the view expressed by President Shamgar in his opinion in the judgement that is the subject of this request. In his opinion, the President noted that, at this time, he would not decide upon the petition. Instead, he recommended that the Government consider the appointment of a committee that would examine the matter in depth in order to arrive at a solution that would ensure freedom of access to the Wall and minimize the violation of the feelings of the worshippers.

            The Deputy President quotes the Government’s decision, and goes on to say:

On the basis of this sequence of events, it would appear to me that we should wait for the Committee’s recommendation (which is supposed to be given within six months of the establishing of the Committee). If those recommendations are unacceptable to the Petitioners, they may reapply to the Court (sitting as High Court of Justice). In his opinion, the President noted in this regard that “[T]he gates of this Court are always open, but as stated, the other available options should first be exhausted”.

27.       Let us return to the Committee. The six months allocated to the Committee by the Government passed. Then a further six months passed (pursuant to an extension decided upon by the Government, and the Committee’s recommendations were still delayed in coming. Seeing this, the Women of the Wall petitioned the High Court of Justice, this time presenting a united front (HCJ 3358/95 Anat Hoffman et al. v. Director General of the Prime Minister’s Office et. al.).

            This Second Petition added nothing new to the First Petition. The request of the Women of the Wall was merely that the Government establish arrangements that would permit them to pray in the prayer area at the Western Wall “in women’s prayer groups, together with other Jewish women, while they are wearing tallitot and reading aloud from the Torah”, in accordance with the First Judgment (see the Second Judgment, IsrSC 54 (2) 345, 347). In other words, the Second Petition was, in essence, a petition to force the Government to do what the Court had ordered that it do in the First Petition.

28.       Not long after the submission of the Second Petition, on July 2, 1995, the Government decided to extend the time allocated to the Committee for presenting its recommendations by an additional six months.

            Ultimately, on April 2, 1996, the Committee presented its recommendations to the Government. And this is the core of the Committee’s recommendation:

In order to achieve the balance demanded of the Committee in the Government’s decision between freedom of access to the Wall and limiting the violation of the feelings of the worshippers, the Committee has not found the time to be ripe for permitting prayer in the Western Wall Plaza itself that differs from the traditional prayer accepted there.

            In arriving at its decision, the Committee gave significant weight to the views of the Commissioner of Police and the Police Commander of the Jerusalem District who expressed their opinion in regard to the consequences of the prayer of the Women of the Wall for public order. They were of the opinion that an arrangement for the allocation of prayer times would not prevent harm to public order. The Committee further examined four alternative prayer sites in the vicinity of the Wall: the site beneath “Robinson’s Arch”, the area in front of the Hulda Gates, the southeastern corner of the Temple Mount wall, and the “Little Western Wall”. Of the four alternatives, the Committee was of the opinion that the southeastern corner was the most appropriate.

29.       When the recommendations of the Directors General Committee were presented before it, the Government decided to appoint a ministerial committee to “examine the recommendations of the Directors General Committee and the means for effecting them, and decide the matter on behalf of the Government.” That decision was made on April 21, 1996, but because elections for the fourteenth Knesset were held shortly thereafter, the ministerial committee was automatically dispersed.

30.       Another year passed until, on June 2, 1997, and after being presented with the recommendations of the Governors General Committee, the Ministerial Committee for Jerusalem decided to adopt the recommendations. This was the decision of the Ministerial Committee:

A.To record the notice of the Prime Minister according to which the Government of Israel recognizes the right to freedom of worship and religion of every person, including the Petitioners.

B.To find that in reliance upon the evaluation of the Israel Police, the prayers of the Petitioners, in accordance with their custom, cannot be permitted in the Western Wall Plaza, and that in accordance with the evaluation of the other security services that was recently presented, a change of the status quo in regard to prayer arrangements in the alternative suggested sites may lead to a danger to public safety.

C.In accordance with the aforesaid, to maintain the existing situation unchanged for the present. To act to examine the possibility of arranging an appropriate alternative prayer site, and to request a postponement of the Court proceedings for an additional three months for the purpose of examining the situation of the proposed sites from the security standpoint.

D.The evaluation of the security agencies will be brought for further discussion by the Ministerial Committee for Jerusalem, and for a decision on the matter.

31.       The Government did not relent in its attempts to find an agreed solution for the prayers of the Women of the Wall. A committee was established at that time whose assignment was to develop recommendations in regard to the matter of conversion to Judaism (the Neeman Committee), and the Government proposed that that committee address the issue of the Women of the Wall. The Women of the Wall initially rejected this proposal, but after discussion in the Court – in the course of the proceedings in the Second Petition – the matter was transferred to the examination of the Neeman Committee.

32.       The members of the Neeman Committee were – in addition to the Chair, the then Minister of Finance Yaakov Neeman – Prof. Dov Frimer, Adv.; Rabbi Nahum Rabinowitz; the Head of the Ma’aleh Adumim Yeshiva; Rabbi Uri Regev,  representing the Reform Movement; and Rabbi Ehud Bandel (replacing Rabbi Reuven Hammer), representing the Conservative Movement. The representatives of the parties were invited to the Committee’s meetings, and the representatives of other relevant bodies also participated, among them: the Antiquities Authority, the Ministry of Religious Affairs, the Ministries of Justice and Internal Security, the Office of the Minister for Diaspora Affairs, the Israel Police, and others. The Committee held a number of meetings, and in the course of its deliberations it also visited five possible prayer sites: the area of the parking lot adjacent to the entrance to the Western Wall Plaza, beside the staircase; the “Southern Wall” area; the women’s prayer section in the Western Wall Plaza; an area at the back of the Western Wall Plaza known as the “Flag Plaza”; and the “Robinson’s Arch” area.

            On Sept. 23, 1998, the Committee presented the report that it had prepared, examining the advantages and disadvantages of each of the proposed alternatives. At the end of its report, the Committee reached the conclusion that conducting prayer at the “Robinson’s Arch” site is “the most practical solution for the needs and demands of the Women of the Wall. That is the case after weighing the advantages and disadvantages of each of the above alternatives. … [and] weighing and balancing the need to find an appropriate prayer site that would meet the needs and demands of the Women of the Wall, and the important principle requiring the avoiding of violation of the feelings of the worshippers at the Western Wall Plaza and not violating the local custom”. These conclusions were adopted over the opposition of Rabbi Uri Regev.

 

The Second Judgment

33.       The recommendation of the Neeman Committee was not acceptable to the Women of the Wall. They were of the opinion that the recommendation did not fall within President Shamgar’s balance parameters, and they therefore maintained their position, demanding their right to pray in accordance with their custom in the Western Wall Plaza. That is also what they argued before the Court in the Second Petition. The Government’s position was, needless to say, different and opposed. In the Government’s opinion, President Shamgar had said nothing more than that a balance must be struck between the right of access to the Wall, and harm to the feelings and well-being of the public. The Government further argued that that balance had been appropriately preserved by the Neeman Committee, and that the Committee’s recommendation reasonably balanced the interests pulling to either side. The Court was therefore required to decide the issue of whether the decisions of the Government and the committees that had acted on its behalf were consistent with the decision rendered in the First Judgment.

34.       The judgment in the Second Petition was drafted by Justice Mazza, with the concurrence of Justices Strasberg-Cohen and Beinisch. The judgment reviewed the chain of events leading up to it, and in examining the activity of the committees in relation to the balancing parameters set down by President Shamgar, instructed us as follows (ibid., 364-365):

… the recommendation of the Directors General Committee was not only contrary to the express instructions of the First Judgment, it also deviated from the purpose for which the Committee was appointed, as defined in the Government’s decision.

The committees that followed the Directors General Committee – the Ministerial Committee for Jerusalem, as well as the Neeman Committee – pursued the same path. The common denominator of the recommendations that were presented by all of the committees that addressed the matter was expressed by the conclusion that the balance between the Petitioners’ right to pray in the Western Wall Plaza, and the harm that the Petitioners’ prayer will cause to others and the opposition that will be aroused can only be found in removing the Petitioners from the Western Wall Plaza and forcing them to suffice with this or that alternative prayer venue. Needless to say that these recommendations too – like the recommendation of the Directors General Committee – deviated from the balancing formula in the First Judgment.

It would not be superfluous to note that even in explaining the reasons for their conclusions, the honorable committees drifted to views that were rejected by the majority of the justices in the First Judgment. Thus, for example, in arriving at its positon, the Directors General Committee ascribed weight to the verdict of the Chief Rabbis that “there should be no change in the existing status quo, and that prayer at the Western Wall should continue to be conducted as was customary and accepted to this day”. That position, sanctifying the “status quo”, was supported in the First Judgment only by the Deputy President, Justice Elon, but was entirely rejected by Shamgar P. and Levin J. This comment is equally applicable to the balancing formula followed by the Neeman Committee, which also granted weight to the consideration of “not violating the local custom”. Particularly perplexing was the comment of the Directors General Committee that “the paths of peace require mutual sacrifices of both sides”, inasmuch as by its recommendation that the Petitioners be removed entirely from the Western Wall Plaza, the Committee expressed the opinion that only the Petitioners are required – for the sake of peace – to sacrifice everything, whereas the groups opposing the presence of the Petitioners – the fear of whose violent reaction led the Committee to seek a different solution from that it was asked to recommend – are neither asked nor expected to make any sacrifice.

            As for the parameters of the balance decided upon (by majority) in the First Judgment, Justice Mazza adds as follows (ibid., 366):

… the First Judgment recognized the right in principle of the Petitioners to conduct prayers in accordance with their custom in the prayer plaza beside the Western Wall, and [] the committees that addressed the subject of the petition following the First Judgment did not do what they were intended to do in accordance with the instructions of that judgment …

            As for the fear of the violent reactions of the opponents of the prayer of the Women of the Wall, the Court further held that a balance that abolishes the right of the Women of the Wall by reason of public safety deviates from the balance parameters established in President Shamgar’s opinion (ibid., 365):

We are of the opinion that in arriving at its decision in the First Judgment, the Court already took into account the possibility that recognition of the Petitioners’ right to pray in accordance with their custom in the Western Wall Plaza might lead to violent reactions by groups for whom tolerance of others is foreign.

35.       This, therefore, was the decision in the Second Judgment now before us in a Further Hearing: Having found that the “balances” effected by the various committees are incompatible with the instructions of the First Judgment, the Court ruled (ibid., 367) to issue an order absolute:

[I]nstructing the Government to establish the appropriate arrangements and conditions under which the Petitioners will be able to realize their right to pray in accordance with their custom in the Western Wall Plaza.

            This time as well, as in the first case, the Court refrained from deciding upon the details of the appropriate arrangement, but Justice Mazza found it appropriate to emphasize that “the required decision [in the matter of the arrangement] is only in regard to the concrete conditions in order to enable the Petitioners to pray in accordance with their custom in the Western Wall Plaza, such as the place and times in which they may do that, while mitigating the affront to the feelings of other worshippers and while maintaining the necessary security arrangements” (ibid., at 367).

            The Court further decided to delay the execution of the judgment, setting a period of six months – i.e., until the end of November 2000 – for the establishing of the necessary arrangements.

 

The Petition for a Further Hearing

36.       The Second Judgment was issued on May 22, 2000, and two-weeks later – on June 6, 2000 – the Government and those acting on its behalf (the Director General of the Prime Minister’s Office, and the Directors General of the Ministry of Religious Affairs, the Ministry of the Interior and the Ministry of Police, the Legal Advisor of the Prime Minister’s Office, and the Prime Minister’s Advisor on the Status of Women) petitioned for a Further Hearing in the matter of the judgment. President Barak granted the request on July 13, and thereafter, the panel appointed for the Further Hearing decided to further delay the execution of the order issued by the Court in the Second Judgment until the rendering of judgment in the Further Hearing.

37.       We will now take a brief recess in order to complete the picture. While the proceedings in the Further Hearing were pending, two organizations – the “Kolot Hakotel” Association and the “Am Echad” Association – requested to join the petition as additional petitioners – public petitioners – together with the Government. These organizations were not party to the High Court proceedings up to this point, but now requested to join the proceedings in the Further Hearing after they had begun. The “Kolot Hakotel” Association presented itself as an association whose members are “religious and traditional women who see preserving and employing traditional prayer at the Western Wall, as the last remnant of the place of the Temple, to be a supreme value in the continuity of Jewish life and Jewish tradition”. As for the “Am Echad” Association, it presented itself as a religious movement whose members are drawn from “a broad spectrum of ‘streams’ within Orthodox Judaism in Israel and the Diaspora.” This organization expressed “great concern in regard to change or deviation from the accepted prayer of generation upon generation at the Western Wall, in which all of world Jewry is a partner”, and therefore, it explained, it requests to further argue before the Court alongside the Government.

38.       After examining the requests of the two organizations and their written summary pleadings – which were submitted after the submission of extensive summary pleadings by the State Attorney’s Office – we reached the conclusion that those requests added nothing to the detailed, broad scope of the arguments presented by the State Attorney’s Office. For that reason, we decided, on Nov. 19, 2000, to deny the requests of the organizations to join the proceedings as additional petitioners in the Further Hearing.

            Indeed, it is decided law that when an entity with a general public interest requests to join as a party to proceedings before the High Court of Justice, we carefully consider “if that joinder would contribute to the proper, full examination of the dispute” (HCJ 852/86 Aloni v. Minister of Justice, IsrSC 41 (2) 1, 32, and also see p. 31). If such is the case in regard to proceedings before the High Court of Justice, then it applies all the more so in regard proceedings in a Further Hearing. Thus, having found that the organizations did not present arguments that are not argued by the Government, we decided to deny the requests.

            Following this brief recess, let us now return to the matter of the Further Hearing.

39.       The State Attorney’s Office, on behalf of the Government and its subsidiaries, reiterated the argument that it has presented since the outset of the proceedings in the matter of the Women of the Wall, that the Women of the Wall did not acquire a right to pray in accordance with their custom before the Wall and in the Wall Plaza, adding that it disagrees with the Court’s finding in the Second Judgment that the First Judgment established the law. The State Attorney’s Office finds support for this view in the statement of President Shamgar – in the First Judgment, ibid., 355-356 – that “at this stage, we should not decide the matter before us”, and in the statement of the Deputy President, Justice Barak, who, in denying the request of the Women of the Wall for a Further Hearing on the First Judgment, held that “[i]n his opinion [in the First Judgment], the President [Shamgar] noted that, at his time, he would not decide upon the petition” (para. 26, above).

40.       I find it hard to accept the argument of the State Attorney’s Office that the matter of the right of the Women of the Wall was not decided in the First Petition. We quoted the statements of the justices in the First Judgment at length, and in our opinion, the Court decided upon the right of the Women of the Wall to pray in accordance with their custom at the Western Wall (see the statements that we quoted above in paras. 15-18 and para 21). We would further recall that among his other statements in the First Judgment, the President explicitly held that “we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner, as is clear from the provisions of the said laws” (ibid., 355). In speaking of “the said laws”, the President was referring to the provisions of sec. 1 of the Protection Law and its identical parallel in sec. 3 of Basic Law: Jerusalem, Capital of Israel, according to which: “The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places”.

            President Shamgar went on to speak of these two laws further on in his opinion, in stating that the parties should “try to find practical ways for realizing the legislative purpose of the two aforementioned laws, which continues and realizes the principle declared in the Declaration of Independence” (ibid., 355). President Shamgar addressed that “declaratory principle” at the beginning of his opinion (ibid., 353), holding that the fundamental provision that we addressed in the two relevant laws give “statutory expression to the statements of the Declaration of Independence, which declares that the State of Israel will ensure freedom of religion and conscience, and will protect the Holy Places of all religions” (ibid., 353). Can there be any doubt that President Shamgar recognized the right of the Women of the Wall to pray in accordance with their custom in the Western Wall Plaza? The question begs the answer.

            President Shamgar’s holding in regard to the right of the Women of the Wall to pray according to their custom at the Western Wall is clarified and explained further on, against the background of his recommendation that the Government “consider the appointing of a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit the harm to the feelings of the worshippers” (ibid., 356). A person naively reading this statement would learn that the Women of the Wall held a right to pray in their manner at the Western Wall, and that the committee that President recommended appointing was intended only to find a solution that would “ensure”[1] freedom of access – in his words – while limiting the affront to the feelings of the worshippers. The term “ensure” freedom of access is not ambiguous. It has but one meaning, which is that the Women of the Wall have a right to pray at the Wall in accordance with their custom. That right, together with the need to limit affront to the feelings of the worshippers – both the right and the need – must coexist.

41.       When the Court examined the actions of the Government and its committees against the balance parameters that the Court had established in the First Judgment, it found that the actions were one thing and the balance parameters were another, that is, the actions did not fall within the parameters. The Government’s prayer, therefore, is that we turn back the clock and reverse not only the Second Judgment but the First Judgment as well. In any case, the opinion of the majority in the First Judgment is clear and requires no interpretation.

42.       In the course of the proceedings before us, we tried to bring the sides closer; we tried but did not succeed. The Government reiterated the proposal of the Neeman Committee that the Women of the Wall pray in accordance with their custom at the “Robinson’s Arch” site. In the words of the Government in its pleadings:

The Respondents will argue that prayer at “Robinson’s Arch” realizes both conditions established by President Shamgar, viz., the ensuring of the right of access to the Wall and limiting the affront to the feelings of the worshippers. The right of access to the Wall will be preserved (as will freedom of worship), inasmuch as Robinson’s Arch is, as stated, a part of the Wall, and prayer there will avoid friction and prevent affront to those who pray at the Wall in the long-customary manner.

The solution is respectable, fair and immediately executable. It would be proper for the honorable Court to issue a ruling in the matter of the prayer arrangements at the Holy Places that will allow the necessary flexibility in order to ensure freedom of access and worship, on the one hand, and the prevention of friction and violence, on the other.

            As we are all aware, “Robinson’s Arch” is a remnant of the western wall of the Temple Mount, just like the Western Wall. However, no one would deny that in the collective and individual consciousness of Jews, this part of the western wall is not perceived to be of a level of sanctity and uniqueness equal to that part of the western wall referred to as The Western Wall: with a capital “T”. We would further add that, over the last few years, the site adjacent to “Robinson’s Arch” – a site under the auspices of the Antiquities Authority – has occasionally served as a prayer space for the Conservative Movement. The question before us was, therefore, whether the “Robinson’s Arch” site would be suitable for the prayer of the Women of the Wall.

43.       The justices of the First Judgment examined the Neeman Committee’s proposal in regard to “Robinson’s Arch”, and their opinion was that the site was not suitable to serve as an appropriate alternative prayer space to the Western Wall in that it could not realize the balance parameters enunciated in the First Judgment. The Court also visited the other alternative prayer sites proposed to the Women of the Wall – among them “Robinson’s Arch” – but further held in the Judgment (at p. 366) that “making such a visit was unnecessary for the purpose of rendering a decision, inasmuch as the Petitioners’ right to pray in accordance with their custom at the Wall was already recognized, in practice, in the First Judgment”. As for us, we should remember that we are sitting in judgment in a Further Hearing.

44.       In our deep desire to try to find an appropriate, amicable solution to this prolonged dispute between the parties, we, too, decided to visit the “Robinson’s Arch” site. We indeed visited the site, and received explanations from the representatives of the Antiquities Authority and other relevant bodies. After seeing the site with our own eyes and examining what needed to be examined, we arrived at the conclusion – like the justices of the Second Judgment – that prayer at the “Robinson’s Arch”, site in its current state, would not properly realize the right of the Women of the Wall to pray opposite the Wall. Indeed, had the Government acted to adapt the site to a regular prayer space, it might have been perceived – although not easily – as a sort of continuation of the Western Wall Plaza. However, in its present physical state, “Robinson’s Arch” cannot serve as an appropriate prayer space. We are satisfied that this alternative cannot succeed, and we cannot blame the Women of the Wall for not agreeing to the proposal. We would further note that the “Robinson’s Arch” site currently serves as a unique archaeological park that is under the auspices of the Antiquities Authority, and the Antiquities Authority does not agree to introduce any changes that would make the place suitable to serving as a prayer site.

45.       We regret that the parties could not find a way to bridge the gap between them, even if it meant walking a narrow bridge. It was possible, and would have been proper, to find an appropriate arrangement, but we now find ourselves before a rift. It is best that prayer arrangements not be decided by the courts – neither the High Court of Justice nor any other court. However, now that the matter is brought before us, it is our right – nay, our duty – to decide in accordance with the law.

46.       The Western Wall is a place that is sacred to the Jews. The Wall is also sacred to the Women of the Wall, and to those who firmly oppose the manner of prayer of the Women of the Wall. And so, on one side we have the right of the Women of the Wall to pray in their manner at the Wall, and on the other side stands the firm opposition of other religiously observant people who see the prayer of the Women of the Wall as an affront to their feelings toward a place they hold as holy. And as is well known, holiness is indivisible. This is the main problem standing in the way of finding an appropriate legal solution to the differences of opinion that have arisen between the parties.

47.       I have considered and reconsidered the matter, and in the end I have reached this conclusion: the right of the Women of the Wall is a right that entitles them to pray at the Wall in their manner. That is what was held in the First Judgment. That is what was reiterated in the Second Judgment, and I can find no justification to uproot that decision. However, like every right, the right of the Women of the Wall to pray beside the Wall in their manner is not unlimited. It is a right that – like every other legal right – requires that we evaluate it and weigh it against other rights that are also worthy of protection. Indeed, we must do what we can to minimize the affront that other religiously observant people sense due to the manner of prayer of the Women of the Wall, and by doing so, also prevent serious events arising from the confrontation of the opposing parties. As President Shamgar stated in the Second [sic] Judgment (ibid., 355):

In my opinion, practical solutions should continue to be sought, according to which anyone who wishes to approach his Creator in prayer will be able to do so in his own style and manner, as long as it will not constitute a substantial interference with the prayers of others. The legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner …

            In order to try to comprise both these and those, I believe that, for the time being, it would be appropriate that the Women of the Wall pray in their manner at the Western Wall in the “Robinson’s Arch” site, with the proviso that the site be properly prepared in a manner appropriate for people to enter and spend time there. As we said – and saw with our own eyes – the present physical state of the site does not make it possible to conduct prayer there in an appropriate manner, and the worshipper can also not touch the Wall as do worshippers at the Western Wall. The required conclusion is that the “Robinson’s Arch” site cannot be deemed an appropriate alternative site for prayer in its present state. But if the site will be properly and appropriately adapted, it will be possible to view it as an alternative to the Western Wall for prayer. And so, if the Government will prepared the “Robinson’s Arch” site – appropriately and as required – within twelve months from today, then the Women of the Wall will be able to pray in their manner at that site. In saying that the Government must prepare the site “appropriately and as required”, I mean, inter alia, the making of appropriate safety arrangements and easy, secure access to the prayer site and the Wall itself.

48.       But if the place is not made suitable – within twelve months – as appropriate and required, and having found no arrangement acceptable to both parties, it is the duty of the Government to make arrangements in accordance with the instructions set out by President Shamgar in the First Judgment and the instructions of the Court in the Second Judgment. In other words: the Government will be required to make appropriate arrangements and provide appropriate conditions within which the Women of the Wall will be able to realize their right to pray in their manner in the Western Wall Plaza. The Western Wall Plaza is a large space, and with a little good will, the Government will be able to allocate “four cubits” for them to pray in their manner. The Women of the Wall do not ask for much. They are willing to make do with little: for example, prayer for one hour, once a month on Rosh Hodesh (except for Rosh Hodesh of the month of Tishrei), and altogether eleven hours a year (see: the First Judgment, p. 355 at letter C). The Government can arrange this small thing. I would further recall what the Court wrote in the Second Judgment – and recommend that we adopt this statement – that what the Government is asked to decide in regard to appropriate arrangements and conditions is exclusively in regard to the concrete conditions in which the Respondents will be able to pray according to their custom in the Western Wall Plaza – such as the place and times in which they can pray in their manner – while mitigating the affront, as far as possible, to the feelings of other worshippers, and while providing the necessary security arrangements.

            A government is created to govern, which is why it is called a government. And it is the legal duty of the Government to find an appropriate way to enable the Women of the Wall to conduct their prayer in good faith and in their manner in the Western Wall Plaza.

 

Epilogue

49.       The Second Temple was destroyed and went up in flames in the year 70 CE. Little remains but broken fragments. From that time, and for one-thousand-nine-hundred years, those fragments were the captives of foreigners. Jews were callers, permitted to visit their own holy places. On the 28th of Iyar 5727, June 7, 1967, the Western Wall – a remnant of the outer wall if the Temple – was liberated from the foreign hands that held it. The Wall did not free itself from its captivity. It was the paratroops, paratroopers of the Israel Defense Forces, who freed it from its foreign yoke. Since that liberation, we are at home in this remnant of the Temple. Some of those paratroopers who freed the Wall were religiously observant and some were not. And even the observant ones among them were not all of one stripe. But all of them were agents of the Jewish People – all of the Jewish People. When that war was over – actually, immediately following the liberation of the Wall – the paratroopers fulfilled their duty, and gave the People of Israel that precious trust that they held and that they had redeemed in blood. The Wall was handed over to the Jewish People in its entirety, and not just to a part of it. And all of the Jewish People – and not just part of it – acquired rights in the Wall. “And just as the Temple Mount, and the Temple that stood upon it, was a symbol of the Jewish religious world and of the Jewish nation’s political sovereignty over Israel, so the Western Wall, the remnant of our destroyed temple, was the holiest place for the Jewish People, and symbolized its desire and aspiration for the return of national sovereignty.” Thus wrote Deputy President Elon in the First Judgment (ibid., 333). Indeed, so it is. The Western Wall is for all the Jewish People, and not just for a part of it.

 

Conclusion

50.       In conclusion, I recommend to my colleagues that we decide as stated in paragraphs 47-48 above.

            I will conclude with the prayerful wishes of the psalmist (Psalms 122:6-7):

Pray for the peace of Jerusalem, may they prosper who love you.

Peace be within your walls, and security within your towers.

 

 

President A. Barak:

            I concur in the opinion of my colleague Justice M. Cheshin.

 

Deputy President (Emeritus) S. Levin:

            I would deny the petition without reservation, as the time has come to render a final judgment in accordance with the law. I see no reason to order, except in the framework of a compromise, that the Robinson’s Arch site, currently a special and unique archaeological park, be converted into a prayer site over the objections of the Antiquities Authority.

 

Justice T. Orr:

            I concur in the opinion of my colleague Justice M. Cheshin.

 

Justice E. Mazza:

            Like my colleague the Deputy President, I too am of the opinion that the petition should be denied without any reservations. The right of the Women of the Wall to pray in accordance with their custom in the Western Wall Plaza was decided by a majority in the judgment on the First Petition (HCJ 257/89 Hoffman v. Director of the Western Wall, IsrSC 48 (1) 265), and unanimously affirmed in the judgment that is the subject of this Further Hearing (HCJ 3358/95 Hoffman v. Director General of the Prime Minister’s Office, IsrSC 54 (2) 345). Even my colleague Justice Cheshin, with whose opinion in regard to the right of the Women of the Wall, the majority of justices in this Further Hearing concur, does not doubt the justice of the said judgment. Nevertheless, he recommends that we intervene in the relief that was granted to the Women of the Wall in the judgment that is the subject of this Further Hearing, such that they will be able to realize their right to pray in accordance with their custom in the Western Wall Plaza only if the Petitioners fail to prepare – and as long as they do not prepare – the “Robinson’s Arch” site for them as an alternative prayer site. In referring to that site, which currently serves as an archaeological park worthy of the name, my colleague indeed admits that “in the collective and individual consciousness of Jews, this part of the western wall is not perceived to be of a level of sanctity and uniqueness equal to that part of the western wall referred to as The Western Wall”. Nevertheless, my colleague recommends seeing this site (as long as it is prepared to serve as a prayer site) as an alternative with which the Women of the Wall must make do, and at least for the present, relinquish the realization of their recognized right to pray in accordance with their custom in the Western Wall Plaza. My colleague Justice Cheshin proposes adding this proviso to the judgment, in order, in his words, to “do what we can to minimize the affront that other religiously observant people sense due to the manner of prayer of the Women of the Wall, and by doing so, also prevent serious events arising from the confrontation of the opposing parties”.

            I cannot agree with this proposal that, with all due respect, essentially eviscerates the recognized right of the Women of the Wall. As we already noted in the judgment that is the subject of this Further Hearing, “the Court already took into account the possibility that recognition of the Petitioners’ right to pray in accordance with their custom in the Western Wall Plaza might lead to violent reactions by groups for whom tolerance of others is foreign”. Moreover, in arriving at our decision in the judgment that is the subject of the Further Hearing, we were careful to point out that the Government must establish the arrangements and conditions, such as the place and times in which the Women of the Wall can conduct their prayer in the Western Wall Plaza, “while mitigating the affront to the feelings of other worshippers and while maintaining the necessary security arrangements”. It is important to explain that the arrangements that the Government was obliged to establish were intended to allow the Women of the Wall to realize their right to pray in the Western Wall Plaza, as opposed to beside the Wall. As is generally known, the Western Wall Plaza covers a large area. Most of the worshippers are concentrated in the part of the area that is adjacent to the Wall and clearly separated from the more remote parts of the Plaza. In requiring that the Government establish arrangements that would allow the Women of the Wall to realize their right to pray – some eleven hours a year, in all – in a suitable place in the Western Wall Plaza, we gave appropriate expression to consideration of the feelings of the other worshippers. This equation reflects a proper balance between the need to allow the Women of the Wall to pray in accordance with their custom and the need to mitigate, as far as possible, the resulting affront that may be caused to the feelings of other religiously observant people. Intervening in the substance of the relief granted to the Women of the Wall in the judgment that is the subject of the Further Hearing would upset that balance.

            It is, therefore, my opinion that the petition should be denied, and that a timeframe should be set for the Government to make the necessary arrangements as ordered in the judgment that is the subject of the Further Hearing.

 

Justice T. Strasberg-Cohen:

            My opinion was and remains that the Women of the Wall should be permitted to realize their right to pray in accordance with their custom in the Western Wall Plaza, and that the Government must make that possible by establishing appropriate arrangements, as decided in our judgment in HCJ 3358/95.

            Therefore, I concur with the position of my colleagues Deputy President S. Levin and Justice E. Mazza, according to which the petition should be denied. Nevertheless, I would welcome any compromise that might be achieved by the parties concerned that would be acceptable to all.

 

Justice J. Turkel:

1.         Like my colleague Justice M. Cheshin, I too am of the opinion that the choice of the “Robinson’s Arch” site as a prayer space for the Respondents (who have come to be known as “The Women of the Wall” – J.T.) is the fitting, appropriate and balanced solution to the dispute that was brought before us. However, this solution should not be adopted “conditionally”, as recommended by my colleague, but rather as a permanent solution. My approach also differs from his. If it were up to me, I would quash the order issued by this Court (E. Mazza, T. Strasberg-Cohen, D. Beinisch JJ.) in HCJ 3358/95 Anat Hoffman et al. v. Director General of the Prime Minister’s Office et al., IsrSC 54 (2) 345 (hereinafter: the Second Judgment) ordering the Government “to establish the appropriate arrangements and conditions under which the Petitioners [the Respondents in the petition before the Court – J.T.] will be able to realize their right to pray in accordance with their custom in the Western Wall Plaza”. One way or another, the “Robinson’s Arch” solution, recommended by the Neeman Committee, has been adopted. And it would appear that the petition before us is grounded in law – “in law” in its plain meaning – for reasons of law and not principally for reasons of the law of prayer.

 

Non-intervention in Administrative Discretion

2.         I will begin with first principles. The discretion granted to an administrative authority is the power to choose among possible solutions. The rule is that the Court will not substitute its discretion for the discretion of the administrative authority required to decide a matter. Thus it has been held:

One thing is beyond all doubt, and it is that the Court will not attempt to substitute its discretion for the discretion of the competent authority, and will not impose its opinion on those upon whose wisdom, reasoning, knowledge and practical experience the legislature intended to rely; in short – on their discretion that is based upon knowing the true situation in all its aspects and conditions …. (CA 311/57 A.G. v. M. Dizengoff and Co. Ltd., IsrSC 13 (2) 1026, 1039, per Z. Berenson J.).

            It was further stated in this regard, inter alia:

A discretion is given to an administrative organ …in order that, in fulfilling its many-sided functions which circumstances may vary and change periodically and which cannot be precisely determined in advance, it may have freedom of action. In other words, discretion means freedom of choice from among different possible solutions, or an option granted to the administrative authority, and because that authority is empowered to choose and select the solution appropriate to its mind, the court will not interfere for the reason alone that it would itself have picked upon a different solution. Such interference is tantamount to a negation of the discretion of the administrative organ and its transfer to the court (FH 16/61 Registrar of Companies v. Kardosh, IsrSC 16 1209, 1215, [English translation: IsrSJ 4 33, 35]; HCJ 92/56— Richard Weiss v. Chairman and Members of the Law Council (1956) IsrSC 10 1592; HCJ 636/86 Nahalat Jabotinsky Workers’ Moshav v. Minister of Agriculture [1987] IsrSC 41(2) 701, 708 per E. Winograd J.).

 

            This rule is based upon the separation of powers, “in accordance with which the authority to decide in matters of execution and administration remains – except in exceptional cases – in the hands of the Executive, whereas the Judiciary restricts itself to judicial review of the constitutionality of the authority’s decision” (R. Har-Zahav, Israeli Administrative Law (1966) p. 436 (Hebrew). However, a number of causes for intervention in administrative discretion have been developed in the case law, inter alia, the duty to act within the law, the duty to refrain from discrimination and act equally, the duty to exercise discretion reasonably, the duty to act fairly and not arbitrarily, the duty not to act on the basis of extraneous considerations or for extraneous purposes. Thus, it has been stated:

It appears to me that in this regard, the normative framework that applies to the exercise of administrative discretion applies to this matter as well. The accepted rules in regard to reasonableness, fairness, good faith, an absence of arbitrariness, discrimination and other such criteria that apply to administrative discretion apply to this matter as well (HCJ 297//82 Berger et al. v. Minister of the Interior, IsrSC 37 (3) 29, 34, per Barak J.).

            Did the Government act within the framework of its discretion in deciding to designate the “Robinson’s Arch” for the prayer of the Respondents? Do any of the causes that justify intervention in administrative discretion apply here? And therefore, should we order the Government to establish arrangements and conditions as stated in the order in the Second Judgment?

 

The Exercise of Discretion

3.         Before attempting to answer these questions, we will first consider some of the history of the affair. In HCJ 257/89, 2410/90 Anat Hoffman et al. v. Director of the Western Wall et al.; Susan Alter et al. v. Minister of Religious Affairs et al., IsrSC 48 (2) 265 (hereinafter: the First Judgment) – in which this Court (M. Shamgar P., M. Elon D.P. and S. Levin J.) first addressed the subject at bar – the Court “decided by majority to dismiss the petitions, subject to the recommendation in the opinion of presiding judge” to “consider the appointing of a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit the harm to the feelings of the worshippers”.

            Pursuant to the First Judgment, and in accordance with the recommendation of President Shamgar, the Government decided, on May 17, 1994, to appoint a Directors General Committee that was requested “to propose a possible solution that will ensure freedom of access to the Western Wall and freedom of worship in its Plaza, while minimizing the violation of the feelings of the worshippers at the site” (hereinafter: the Directors General Committee). The Directors General Committee recommended that the petitioners be offered an appropriate alternative site in which they might realize their desire to pray in accordance with their custom, in two sites in the boundaries of the archaeological park – the “Hulda Steps”, and the southwestern corner of the Western Wall that is referred to as “Robinson’s Arch”. The recommendations of the Directors General Committee were presented to the Government on April 2, 1996. On April 21, 1996, the Government appointed a ministerial committee to “examine the recommendations of the Directors General Committee and the means for effecting them, and decide the matter on behalf of the Government” (hereinafter: the Ministerial Committee). On June 2, 1997, the Ministerial Committee decided to adopt the recommendations of the Directors General Committee. At that time, a committee was established to make recommendations in the matter of religious conversion. The Government asked the committee to make recommendations in regard to the prayer of the Women of the Wall, who are the Respondents in the petition at bar. On Sept. 23, 1998, the Neeman Committee presented a report in which it reached the conclusion that prayer at the “Robinson’s Arch” site, which “meets the Wall and is adjacent to it …” is “the most practical alternative for the needs and demands of the Women of the Wall”. The committee emphasized that it reached this conclusion after “weighing and balancing the need to find a suitable prayer space that will answer the needs and demands of the Women of the Wall and the important principle of refraining from causing affront to the worshipping public in the Western Wall Plaza and not violating local custom”. The conclusion was adopted by the Government, as we learn from the Petitioners’ notice which states that “the recommendations of the Neeman Committee represent a reasonable balance between the petitioners’ wish to pray according to their custom at the Western Wall and the other relevant considerations” (para. 13 of the respondents’ supplemental pleading in that case, who are the Petitioners at bar, for the hearing in which the Second Judgment was given).

            The Neeman Committee’s conclusion was examined in the Second Judgment, and it is also at the heart of these proceedings. As stated, the Neeman Committee reached its conclusion after it examined and considered other possible prayer sites, after “weighing and balancing” the various considerations, and after finding that “the most practical alternative” was at the “Robinson’s Arch” site. Thus, the committee chose one solution from among the possible solutions presented to it, which included the women’s prayer section in the Western Wall Plaza. Even if I were of the opinion that a different solution could have been chosen, there are no grounds for saying that the Neeman Committee – and then the Government – could not make the choice that it made, or that any of the causes that would justify intervention in that conclusion were present. Therefore, inasmuch as the Government concluded that it would be appropriate to choose the alternative recommended by the Neeman Committee, this Court must not substitute its discretion for that of the Government, whether by rejecting its decision or by revisiting the matter in a Further Hearing, as was done in regard to the Second Judgment.

 

The Conclusion of the Neeman Committee –Additional Reasons for Adoption

4.         According to my colleague Justice M. Cheshin: “As we are all aware, ‘Robinson’s Arch’ is a remnant of the western wall of the Temple Mount, just like the Western Wall. However, no one would deny that in the collective and individual consciousness of Jews, this part of the western wall is not perceived to be of a level of sanctity and uniqueness equal to that part of the western wall referred to as The Western Wall with a capital ‘T’.” I cannot agree with that statement, and not merely because my impression is different, but primarily because no halakhic or historic sources were presented from which one might conclude that the holiness of any particular part of the Western Wall – the wall that, in my view, is the entire western wall of the Temple Mount – is more holy than any other part.

            I also find it hard to agree with his conclusion that: “had the Government acted to adapt the site to a regular prayer space, it might have been perceived – although not easily – as a sort of continuation of the Western Wall Plaza”. I am of the opinion that the sanctity of a place does not derive from constructing and adapting it, but rather it is inherent to its very nature. I would note in this regard that the Masorti [Conservative] Movement uses the “Robinson’s Arch” site as a prayer venue, and regards it as the “Masorti Wall” (see the Masorti Movement’s advertisement in the Kol Ha’ir newspaper of June 16, 2000, submitted as Appendix B of the Petitioners’ written summation).

5.         It is worth noting that under the Neeman Committee’s recommendation, the Respondents – who claim to follow “Orthodox custom” – retain the right of access to the women’s prayer section of the Western Wall Plaza, including the right to pray there in accordance with the local custom. The only restriction upon the Respondents’ worship there would be in regard to their practice of praying “in a group, wrapped in tallitot, carrying a Torah scroll and reading from it”. However, they would be able to follow that practice in the “Robinson’s Arch” site, which is the continuation of the Western Wall.  The respondents would, therefore, be permitted to carry out all of their prayer customs – some in the Western Wall Plaza before the Western Wall, and some at the “Robinson’s Arch” site. For this reason as well, the solution chosen by the Neeman Committee and adopted by the Government was appropriate, proper and balanced.

This conclusion does not contradict the view expressed by President Shamgar in the First Judgment, in which he stated: “I would recommend to the Government that it consider the appointing of a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit the harm to the feelings of the worshippers” (ibid., at p. 3556). I doubt that President Shamgar’s intention in that statement was to hold that the Respondents, the Women of the Wall, have the right to pray at the Western Wall – in its specifically limited sense that does not include the “Robinson’s Arch” site – and specifically according to their custom. It would seem to me that the intention can be inferred from the fact that, contrary to the position of Justice S. Levin in the First Judgment – who wished to issue a judgment that recognized the right of the Women of the Wall “to pray at the Western Wall Plaza while wearing tallitot and while carrying Torah scrolls” – President Shamgar adopted the language “freedom of access to the Wall” and no more. The Neeman Committee’s conclusion thus ensures both the freedom of access and the freedom of worship of the Respondents, as recommended by President Shamgar, but limits part of their prayer practices to “part” of the Western Wall, which is the “Robinson’s Arch” site. There is no reason to intervene in that.

 

Judgment of Peace

6.         In concluding, I would say a few words about the paths of peace. In tractate Derekh Eretz Zuta, Perek HaShalom we read: “As we learned there, Rabbi Shimon ben Gamliel says: The world exists on three things – on justice, on truth and on peace. Rabbi Mina says: And these three are one. Where justice is done, truth is done and peace is made. And these three were stated in one verse, as it says (Zachariah 8:16) ‘Give judgment in your gates for truth, justice, and peace’. Wherever there is justice, there is peace…”. The judgment rendered by the Government in adopting the alternative that it chose is judgment and is peace.

 

Conclusion

7.         If my opinion were adopted, we would grant the petition, quash the order issued by the Court in the Second Judgment, and declare that in adopting the conclusion of the Neeman Committee in regard to choosing the “Robinson’s Arch” site as a prayer venue for the Respondents, the Government fulfilled its obligation. However, since my colleague Justice Cheshin – in his own way, which is the way of compromise – reached the conclusion that “it would be appropriate that the Women of the Wall pray in their manner at the Western Wall in the “Robinson’s Arch” site”, I concur with what is stated in the concluding part of para. 47 of his opinion.

 

 

Justice D. Beinisch:

            I concur in the opinion of my colleagues Deputy President S. Levin, Justice E. Mazza and Justice T. Strasberg-Cohen, who are of the opinion that the petition should be denied. I have not changed my opinion that it is the right of the Women of the Wall to pray in accordance with their custom at the Western Wall, and that the Government must establish the arrangements and conditions that would limit, as far as possible, the affront to the feelings of the other worshippers, in terms of a suitable place, times, and security arrangements.

 

Justice I. Englard:

            I utterly disagree with my colleagues in the majority. My disagreement is not focused upon individual points, but is rather a disagreement with their entire approach, beginning with the alleged holding in the judgment in the first proceeding, HCJ 257/89, 2410/90 Hoffman et al. v. Director of the Western Wall et al., IsrSC 48 (2) 265 (hereinafter: the First Case), and ending with the merits of the approach adopted by this Court in the second proceeding, HCJ 3358/95 Hoffman v. Director General of the Prime Minister’s Office, IsrSC 54 (2) 245 (hereinafter: the Second Case).

            I will begin with my different understanding of the holding in the First Case. My colleague Justice E. Mazza tried to infer a majority holding – which would constitute a binding instruction – from the three different opinions given in the First Case, recognizing the fundamental right of the petitioners to pray in their manner in the Western Wall Plaza. The trouble is that such an attempt, focused upon the opinion of President Shamgar, is highly problematic in that, from a legal standpoint, the only result of the judgment was the denial of the petitioners’ petition, subject to a recommendation that the Government consider the appointment of a committee. Thus, all the rest of President Shamgar’s opinion, whatever it may mean, was nothing but obiter dicta that have no obligatory legal force whatsoever.  Indeed, at the end of his opinion, President Shamgar expressly holds that “at this stage, we should not decide the matter before us in the manner that a normal legal dispute is decided”, and he adds that “[t]he gates of this Court are always open, but as stated, the other available options should first be exhausted”. Against the background of these statements, I cannot agree with this Court’s assumption in the Second Case that the committees that addressed the issue “drifted to views that were rejected by the majority of the justices in the First Judgment”. Moreover, President Shamgar held that practical solutions should be sought “according to which anyone who wishes to approach his Creator in prayer will be able to do so in his own style and manner, as long as it will not constitute a substantial interference with the prayers of others” (ibid., at p. 335 between marginal letters e-f; emphasis added – I.E.). Therefore, even according to the “majority”, no fault can be found with the committees that examined and found that prayer in the manner and style of the petitioners significantly violates the prayers of others, and therefore proposed what they proposed. It should be noted that preserving the local custom does not constitute a fundamental impediment barring the petitioners from approaching and praying beside the Wall. The prohibition concerns only the outward manner of worship, to which I will return in the course of this opinion. For the moment, I will suffice with the comment that there is unanimous agreement on the condition that the realization of the right to worship must be made in good faith (per Shamgar in the First Case, at p. 355 [marginal letters e-f]; per Levin, ibid., at p. 357 [c]; per Mazza in the Second case, at p. 363 [d]). Yet, there are those who see the petitioners’ manner of prayer as constituting a “provocation” or a “war” to achieve ideological goals, and the Western Wall is not the appropriate place to wage it [Elon, pp. 329 & 350].  This question, too, was examined by the Court in the First Case. From all the above we can, in my opinion, conclude that there is no legal basis for this Court’s assumption that the committees that addressed the matter of the petition, following the First Case, did not do what they were asked to do in accordance with the instructions in that judgment. There was no such instruction, and therefore, for this reason alone, the petition in the Further Hearing should be granted.

2.         It is, however, clear that the said formal reason is not sufficient to conclude the debate surrounding this petition. In the final analysis, what stands behind the formal reliance upon the judgment in the First Case is a substantive perspective that guided my colleagues in the Second Case – a point of view that, in principle, adopted the opinion of my colleague Justice S. Levin in the First Case, while utterly rejecting the point of view of Deputy President M. Elon. It would, therefore, be appropriate to address that substantive perspective as expressed in the Second Case. I will state at the outset that this approach is very problematic in my view due to its shaky legal grounds. There are many questions for which I did not find adequate answers in the opinions of my colleagues Justices S. Levin in the First Case, E. Mazza in the Second Case, and M. Cheshin in this petition. I will briefly touch upon the main issues among them.

3.         The first fundamental issue concerns the general jurisdiction of this Court to consider the issue of freedom of worship in the Holy Places. This issue was mentioned and quickly decided in the First Case by Deputy President Elon (ibid., at pp. 297-298). It should be noted that the claim of lack of jurisdiction was raised not by the State but rather by one of the other Respondents. This is what the Court states there, per Deputy President Elon:

The Palestine Order in Council (Holy Places), 1924, does not deprive the Court of jurisdiction to adjudicate in regard to the preservation of public order and the prevention of criminal offences, as established in the Law and the Regulations for Protection of Holy Places to the Jews. In HCJ 222/68 National Circles Association v. Minister of Police (IsrSC 24(2) 141), the majority held that while the Order-in-Council does deprive the Court of jurisdiction in matters of freedom of worship in the Holy Places, it does not deprive it of jurisdiction    in regard to freedom of access to the Holy Places, the duty to ensure the prevention of desecration of the Holy Places, or the duty to protect the sensitivities of the members of the various religions towards their Holy Places, which are the matters addressed by the Regulations in the matter at bar. This petition treats of the freedom of access of the Petitioners to the Western Wall, the danger of desecration of the site, and a possible affront to the sensitivities of the worshippers, and this Court holds jurisdiction over the matter of the petition.

            It should be noted that Justice S. Levin expressed his agreement with this opinion in regard to the Court’s jurisdiction to address the matter of the petition (ibid., at p. 356 [b]).

4.         However, that conclusion as to the jurisdiction of the Court, taken against the background of the provisions of the Order-in-Council and the majority opinion in HCJ 222/68, Mot 15/69 National Circles Association v. Minister of Police, IsrSC 24(2) 141 (hereinafter: the National Circles case), does not stand up under examination. The matter before us directly concerns freedom of worship and not freedom of access or criminal offenses in regard to the Holy Places. As noted, the petitioners are not being prevented from approaching and praying beside the Wall. The sole restriction is upon the outward manner of their worship. In my opinion, such a dispute falls within the scope of the provisions of the Order-in-Council, even under the provisos set out by President Agranat in the National Circles case. It should be noted that the majority opinion in the National Circles case is viewed with approval by this Court, as can be seen even in HCJ 4185/90 Temple Mount Faithful v. Attorney General et al., IsrSC 47 (5) 221, 282:

Indeed, it has also been held by this Court that the authority to address the realization of the right to worship is granted to the Executive and not the Judiciary, as that is what is established by art. 2 of the Palestine Order-in-Council (Holy Places), 1924, as construed in the National Circles case, above.

            While it is true that the parties to the said proceeding did not raise this claim, nevertheless, since we are concerned with subject-matter jurisdiction, the Court does not derive its authority from them, but must raise the issue of an absence of subject-matter jurisdiction nostra sponte, inasmuch as it relates to the very source of its judicial standing and thus to the validity of its judgment. As is well known, the consent of the parties cannot remedy a lack of subject-matter jurisdiction. Perhaps we should revisit the majority opinion in the National Circles case, but as long as that holding has not been reversed, the authority to address matters of worship in the Holy Places, including the Western Wall Plaza, is granted exclusively to the Executive. By way of demonstration, would anyone imagine that this Court might intervene in the arrangements for worship of the various Christian communities in the Holy Sepulchre in Jerusalem, while changing the existing status quo?! Would it not be self-evident that such an inter-community dispute would be non-justiciable under the Order-in-Council?!

5.         For the sake of continuing the examination, I will assume that it is possible to overcome the problem of lack of jurisdiction, as this Court believed in the two cases mentioned. In other words, I will proceed upon the assumption that the case before us can be situated in the provisions of the Protection of the Holy Places Law and Basic Law: Jerusalem, Capital of Israel. In the First Case, my colleague Justice S. Levin expressed his view in regard to the significance of the Protection of the Holy Places Law and the regulations thereunder. It would appear that that view was adopted in its entirety in the Second Case. I will first quote the statement of my colleague Justice S. Levin in regard to the Protection of the Holy Places Law (ibid., at pp. 356-357):

                        A.          In my opinion, the subject of the petition should not be decided on the basis of halakhic considerations. After all, it is clear that the Protection of the Holy Places Law (hereinafter: the Law) is a secular law. It takes account of considerations of the relevant religious communities, including the considerations of the Chief Rabbis (see sec. 4), but not only those considerations, and the terms it employs should be interpreted in accordance with the common denominator acceptable to the Israeli population in its entirety. Therefore, the terms “desecrate”, “other violation”, and “anything likely to violate … their feelings (of the members of the religious communities – S.L.) towards those places” in sec. 1 of the Law should be given an interpretation that, on the one hand, expresses the right to freedom of worship and religion, as accepted in a democratic society and as “tolerated in it”, and on the other hand, the protection of the interests of public safety and “intolerable” violation of the feelings of others as acceptable in that society.

                        B.          Unquestionably, the Western Wall (and its Plaza) has been a holy site for the Jewish People for generations, as a religious site and a prayer site, but at the same time, it also bears national symbolic significance as a unique historical remnant of the walls of the Temple, a symbol of the Jewish kingdom that the masses of Israel yearned for throughout the generations. In these circumstances, the fact that the Wall serves as a site for prayer is not necessarily decisive in establishing the scope of activity permitted at the site. In this sense, I am unwilling to accept a priori and as a foregone conclusion that for the purposes of the Law, the Western Wall should be viewed as a “synagogue” in every way, and that the activity conducted there is subject to the rules of halakha that apply to a synagogue and none other.

                        C.          The above leads to two primary results. One in regard to the right to freedom of worship at the Western Wall site, and the other in regard to the right to conduct other activities of an appropriate nature at the site. As for these two types of matters, we should establish permission in principle for conduct, as long as that conduct does not constitute “desecration”, an “other violation”, or a “violation of feelings” of the nature that I have already mentioned above. In this regard, in my opinion, the adoption of the broadest common denominator as a standard – in the manner presented by my honorable colleague -- is of no help. Consider, for example, even if there are those who believe that a particular manner of prayer is absolutely forbidden by a severe halakhic prohibition, or that activities of a national character at the Wall are objectionable in their eyes, that alone should not justify prohibiting such activity. In my view, the common denominator that must be taken into account in the matter before us – and I agree that it is possible to employ this test – is the common denominator of all the groups and people who visit the Western Wall site and the plaza in good faith, whether for prayer or for other legitimate purposes. If we do not say this, then we hand an exclusive monopoly to a particular point of view, in preference to any other, in regard to freedom of expression, and as a result, the right to freedom of worship and freedom of expression will be found lacking.

            As noted, this view was adopted by the Court in the Second Case. See and note well, ibid., at p. 352 [e].

6.         Before addressing the said basic point of view of this Court in the matter of the meaning and construction of the Protection of the Holy Places Law in regard to the Holy Places, it would be proper to note, as well, reg. 2(a) (1a) of the Regulations for the Protection of Holy Places to the Jews, 5741-1981, that was added as a result of the dispute that is the subject of this petition. It states as follows:

                        Prohibited Conduct

In the area of the Holy Places … the following is prohibited: Conducting a religious ceremony that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place.

            In the First Case, this Court agreed that this regulation does not deviate from the scope of the law (see ibid., at p. 357 [e], per S. Levin J.). However, in regard to the interpretation of this regulation, Justice Levin was of the opinion that:

[B]ut in my opinion, the term “local custom” need not be interpreted specifically in accordance with the halakha or the existing situation. It is the nature of custom to change over time, and in its framework expression should be given to a pluralistic, tolerant approach to the views and customs of others, subject to the limitations that I have noted above.

7.         In my opinion, the interpretive approach adopted by this Court is incorrect. The idea that due to the secular character of the Protection of the Holy Places Law and the regulations thereunder, the terms appearing therein must also be interpreted in accordance with secular standards does not stand up under examination. This we must admit: all the laws of the Knesset are, by their very nature, secular norms, inasmuch as the Knesset is not a religious institution. Therefore, nothing can be learned from the nature of the Knesset’s laws in regard to the manner for interpreting terms that appear therein. There is no principled reason that a secular law not refer to a religious system. And this, in fact, is actually done, for one example among many, in the framework of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953. No one would dispute that the term “Jewish religious law” in sec. 2 refers to the Jewish halakhic system. The fact that the Rabbinical Courts Jurisdiction Law is a secular law says nothing about the legislative intent to refer to the religious legal system.

8.         From the above it would appear that the secular character of the Protection of the Holy Places Law says nothing in regard to the interpretation of the terms therein or in the regulations thereunder. Everything rests upon the legislative intent in using those terms. On the contrary, the presumption is that terms borrowed from a religious system should be interpreted in accordance with that system. Moreover, the idea of holiness – in the present context in regard to particular places – is a categorically religious term that has no material meaning in the secular world, and see the classical text R. Otto, Das Heilige (Breslau, 1917); id., The Idea of the Holy, trans. J.W. Harvey (Oxford, 1923, 2nd ed. 1950). Thus, I cannot accept the general approach of this Court, which, in the context of the Protection of the Holy Places Law, attributed secular significance to the Western Wall. Of course, I do not dispute the national significance that holy places may have, but that was not the intention of the law, which expressly addressed the holy dimension of those places.

9.         The result is that terms borrowed from the religious world, such as “desecrate”, should first and foremost be interpreted in accordance with their religious significance. This is conspicuous in reg. 2 (a) (1) of the Protection Regulations that prohibits “Desecration of the Sabbath and Jewish holidays”. Is there any doubt that the intention is to refer to the Jewish halakha that defines what constitutes “desecration of the Sabbath and Jewish holidays”?!

10.       I utterly disagree with the idea expressed by my colleague Justice S. Levin in the First Case that he is “unwilling to accept a priori and as a foregone conclusion that for the purposes of the Law, the Western Wall should be viewed as a “synagogue” in every way, and that the activity conducted there is subject to the rules of halakha that apply to a synagogue and none other” (ibid., at p. 356 [e]). In speaking of the Western Wall and its Plaza as a holy place, the Protection of the Holy Places Law and the regulations thereunder must have intended the Western Wall as a synagogue, for that is the status that – in accordance with the halakhic conception – imbues that place with its holiness. This is made clear in the opinion of Deputy President M. Elon, who addressed this matter at length in the First Case, and arrived at the conclusion that the law applicable to the Western Wall Plaza is the law of the synagogue. See ibid., at pp. 318-319, where, inter alia, Sephardic Chief Rabbi Ovadia Yosef is cited:

This place must certainly be no less than a synagogue, which is a beit mikdash m’at [a little Temple]. So it is in regard to the laws of a synagogue … certainly all that is true there, is true for the Western Wall … it should be treated with no less strictness than a synagogue and a mikdash m’at (“The Western Wall and its Surroundings in Halakha,” in The Western Wall (Jerusalem, 1976) p. 139 (Hebrew)).

11.       Against this background, we may conclude that the Court’s understanding of the expression “conducting a religious ceremony that is not in accordance with the local custom” is also mistaken. “Local custom” is patently halakhic term, as is clear from the opinion of Deputy President M. Elon in the First Case. The purpose of “local custom” is to express the existence of the distinctive, traditional manners of prayer of a given place of worship. Therefore, there is no basis for the view of this Court that “in its framework expression should be given to a pluralistic, tolerant approach to the views and customs of others”. In my opinion, this construction is absolutely contrary to the intention of the author of the regulations and to the language of the regulation, and no legal basis can therefore be found for it.

12.       The result is that, assuming the said regulation was issued in accordance with the law – an assumption on which both I and this Court agree – then the decision to grant an order absolute in the petition at bar cannot stand. But that is not all. In accordance with the halakhic decisions cited in the opinion of Deputy President Elon, which were issued by Chief Rabbis Rabbi Avraham Shapira and Rabbi Mordechai Eliyahu, granting the petition would constitute a desecration of the customs and sanctity of a synagogue (First Case, at pp 328-329, and pp. 319-320). In this regard, Deputy President Elon wrote (ibid., at p. 350):

The present reality is that the overwhelming majority of halakhic decisors, including the Chief Rabbis of Israel, see the granting of the Petitioners’ petitions as constituting a desecration of the customs and sanctity of the synagogue. Such is the case in regard to the prayer customs of the synagogue, and all the more so in regard to the prayer space at the Western Wall, which is the holiest synagogue in the halakhic and Jewish world.

            I cannot but wonder where this Court finds the authority to disagree with those halakhic decisions, according to which granting the petition would constitute a violation of the provisions of sec. 1 of the Protection of the Holy Places Law, which protects the Western Wall from desecration.

13.       Lastly, even if I were to ignore all of the legal problems that I have enumerated in my opinion, there would still be support for the opinion that, in view of the halakhic situation, granting the petition allowing the petitioners to act in their style and manner would constitute a substantial intrusion upon the prayers of others (Shamgar P., the First Case, at p. 355 [e]), or an excessive violation of the feelings of others (Levin J., ibid., at p. 357 [e]), and thus a violation even under the accepted tests of this Court.

14.       Parenthetically, I would make an observation in regard to the alternative site proposed to the petitioners at “Robinson’s Arch”. The Court’s visit to the site showed that, in principle, the site is appropriate for prayer beside the Wall. However, the representatives of the Antiquities Authority opposed making any change to the site, no matter how small. Their opposition was in regard to a stone that had fallen from the ancient wall and that, in the opinion of the representatives of the Antiquities Authority, must not be moved or hidden. I was not convinced that there is any real reason not to adapt the site such that access to the wall itself would be possible, with minimal injury to the fallen stone. I regret that my impression was that for some, the “sanctity” of archaeology exceeds the sanctity of the synagogue.

            In light of the above, if my opinion were accepted, the petition for a Further Hearing would be granted and this Court’s judgment in HCJ 3358/95 would be reversed.

            However, inasmuch as my opinion remains a minority view, I concur, at least, with the first part of the opinion of my colleague Justice M. Cheshin, by which, if the Government will prepare the “Robinson’s Arch” site – as appropriate and necessary – within twelve months from today, then the Women of the Wall will be permitted to pray there in their manner.

 

 

            Decided in accordance with the majority of Barak P. and Orr, Cheshin, Turkel and Englard JJ., and against the dissenting opinions of Levin D.P. and Mazza, Strasberg-Cohen, and Beinisch JJ., as stated at the conclusion of paragraph 47 of the opinion of Cheshin J. in regard to the preparing of the “Robinson’s Arch” site as a prayer space for the Women of the Wall. However, if the “Robinson’s Arch” site is not prepared to serve as a prayer space for the Women of the Wall within twelve months of the day of the rendering of this judgment, then we decide by a majority of Barak P., Levin D.P., and Orr, Mazza, Cheshin, Strasberg-Cohen and Beinisch JJ., and against the dissent of Turkel and Englard JJ., as stated in paragraph 48 of the opinion of Cheshin J., that is, that the Government is obliged to make appropriate arrangements and conditions within which the Women of the Wall will be able to realize their right to pray in accordance with their custom at the Western Wall.

            Under the circumstances, we make no order for costs.

 

            This 4th day of Nissan 5763 (April 6, 2003).

 

 

[1] Translator’s note: The Hebrew term is “lekayem”, which may variously be translated as to ensure, realize, maintain, affirm, implement, confirm, etc.

 

Hoffman v. Director of the Western Wall

Case/docket number: 
HCJ 257/89
Date Decided: 
Wednesday, January 26, 1994
Decision Type: 
Original
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.] 

 

Facts:

 

The two petitions concern the arrangements for prayer in the Western Wall Plaza in Jerusalem.

 

The Petitioners request to conduct prayer services in the Western Wall Plaza, while carrying Torah scrolls and wearing tallitot [prayer shawls]. The Petitioners in HCJ 257/89 seek to conduct “prayer groups” that read from the Torah. The Petitioners in HCJ 2410/90 represent some one-thousand women who are members of various streams of Judaism, Orthodox, Conservative, Reform and Reconstructionist. They do not ask to conduct their prayers in a “minyan” [prayer quorum], but they do wear talittot and read from a Torah scroll that they bring with them.

 

The arrival of the Petitioners at the Western Wall Plaza to conduct their prayer services, as stated, met with the fierce opposition of worshippers at the site. The dispute between the worshippers and the Petitioners was accompanied by rioting, the throwing of gravel and dirt at the praying Petitioners, and the use of force and verbal violence.

 

In the course of hearing the petition in HCJ 257/89, regulation 2 (a) of the Regulations for the Protection of Holy Places to the Jews, 5741-1981, was amended by the addition of regulation (1a), which prohibits the conducting of any religious service at the Western Wall that is not in conformance with the local custom or that violates the feelings of the worshippers in regard to the place.

 

The Petitioners argue that the new regulation is void ab initio, or in the alternative, that it should be voided by reason of extraneous considerations or as ultra vires the Minister’s authority. They further argue that their prayer services are not contrary to the “local custom”, and that they strictly observe the rules of halakha [Jewish religious law].

 

According to the Respondents, the Petitioners’ right of access to the Western Wall is not in dispute. What is refused to them is prayer in their own manner, that is, while arriving as a group, wearing tallitot, carrying Torah scrolls and reading from them. Such prayer has led to severe disturbances in the Western Wall Plaza, breach of public order, and the violation of proper decorum.

 

For those reasons, the regulation that is the subject of the petitions is valid, and the manner in which the Petitioners conduct their prayers at the Western Wall should be evaluated in accordance with it.

 

Held:

 

The High Court of Justice ruled as follows:

 

A.        (1) The Palestine Order-in-Council (Holy Places), 1924, does not deprive the Court of jurisdiction to adjudicate in regard to the preservation of public order and the prevention of criminal offences. The Order-in-Council only deprives the Court of jurisdiction in matters of freedom of worship in the holy places

 

(2) The petitions treat of freedom of access to the Western Wall, the danger of desecration of the site, and a possible affront to the sensitivities of the worshippers. The Court holds jurisdiction over these matters.

 

B. (per M. Elon D.P.): In terms of halakha, the questions raised by the petitions concern the rules of prayer: one – is a woman permitted to wear a tallit and tziztit; two – are women permitted to carry a Torah scroll and read from it. These two subjects must be preceded by the examination of an additional question, that of the manner of conducting public prayer by women.

 

C. (per M. Elon D.P.):

 

(1) According to halakha, fulfillment of the obligation of public prayer requires a “minyan”, i.e., ten men, and “acts of sanctification” – i.e., prayers in which God is sanctified.

 

(2) Women are required to pray, but they are not obligated to public prayer. Women are exempt from the performance of time-bound positive commandments, that is, commandments that must be performed at specified times. A person who is exempt from the performance of a time-bound positive commandment cannot be counted for the required, obligatory quorum for constituting a minyan of ten.

 

(3) Conducting prayers that are entirely constituted and led by women, in the manner customary in a minyan of men, is contrary to halakha.

 

(4) Women are exempt from wearing tzitzit or a tallit, as these are time-bound positive commandments inasmuch as the obligation is limited to a defined time period.  However, women are permitted to perform these mitzvoth.

 

(5) The requirement that a commandment be performed for the purpose of observing it, and not motivated by a lack of consideration for the halakhic rule due to “extraneous considerations” of principled objection to the exemption because it insults women, is a fundamental principle of the halakhic world with regard to the introduction of legislative enactments, establishing customs, and introducing changes thereto.

 

D. (per M. Elon D.P.):

 

(1) Custom is one of the established, creative sources of Jewish law.

 

(2) Custom can be general, and it can also be local, that is, restricted to a place or to specific places, where various internal factors influence its generality or restriction. It may also be subject to change by its nature, the place and the time, and in accordance with the existence of legitimate factors of the place and the time that justify such change.

 

(3) Not every absence of a custom grounds an “argument from silence”. In certain circumstances, it is evidence of a lacuna that must be remedied when the time and need arise, assuming that there is no halakhic prohibition that prevents it.

 

(4) A custom that deviates from a prior custom that forbids the introduction of a new custom that is not justified by legitimate social and ideological changes in the halakhic world, may not be followed.

 

(5) The halakhic world is especially careful in regard to introducing new customs in the synagogue. This fact finds expression in regard to the custom of “prayer groups”, which is a central issue in these petitions.

 

E. (per M. Elon D.P.):

 

(1) At the prayer area beside the Western Wall, which must be treated like a synagogue and even more, there was never any custom of women’s prayer.

 

(2) Granting the Petitioners’ petition would involve a clear change in the local custom of the synagogue as observed for generations upon generations.

 

(3) An important principle of halakha is that custom should not be changed “due to the quarrels” [that would ensue]. This principle was enunciated in regard to every custom in halakha, and it applies a fortiori to synagogue customs, and all the more so in regard to the synagogue in the Western Wall Plaza.

 

(4) The subject of these petitions – concerning the laws and customs of prayer – is particularly sensitive in the halakhic world. The halakhic world is defined by its laws and values, and just as halakhic scholars and decisors disagree in regard to its rules, so they may disagree as to its values or in regard to the implementation of its values.

 

(5) It is conceivable that the substantial change in the status and role of women in this century will have an effect over time, and will lead to an appropriate resolution even of this complex, sensitive subject of prayer groups. But the prayer space beside the Western Wall is not the place for a “war” of acts and opinions over this issue.

 

E. (per M. Elon D.P.):

 

(1) Just as the Temple Mount and the Temple that stood upon it were symbols of the Jewish religious world and of the Jewish nation’s political sovereignty, so the Western Wall, the remnant of our destroyed temple, was the holiest place for the Jewish People, and symbolized its desire and aspiration for the return of national sovereignty.

 

(2) (per M. Shamgar P.): In the eyes of the religious halakha, the Western Wall is a mikdash m’at [a little sanctuary]. From a nationalist perspective, it symbolizes generations of suffering and the aspiration for a return to Zion and the return of our diaspora, and therefore, it expresses the strength and vitality of the nation, its ancient roots and its eternality.

 

(3) (per S. Levin J.): The Western Wall and its plaza have been a holy site for the Jewish People for generations, as a religious site and a site of prayer, but at the same time, it also bears national symbolic significance as a unique historical remnant of the walls of the Temple. In these circumstances, the fact that the Wall serves as a site for prayer is not necessarily decisive in establishing the scope of activity permitted there. That the Western Wall should be viewed as a “synagogue” in every way, and that the activity conducted there is subject to the rules of halakha that apply to a synagogue and none other cannot be accepted a priori and as a foregone conclusion.

 

G. (per M. Elon D.P.):

 

(1) An examination of the history of the Holy Places shows the very sensitive nature of these places to which disputes, disagreements and strong emotions are inherent. The treatment of the Holy Places is characterized by extreme care and moderation, attempts to achieve compromise and mediation between the parties, and by refraining from unequivocal rules and definitive solutions.

 

(2) Such an approach is inappropriate to the nature of the Judiciary, which is used to definitively deciding disputes on the basis of clear legal rules. Therefore, in practice, the treatment of the Holy Places was entrusted to the Executive branch.

 

(3) The Executive branch relied upon the long established principle of maintaining the status quo. Preserving the existing situation is the only means for ensuring that peace and quiet, and public decorum -- so necessary for places imbued with holiness – be maintained.

 

F. (per M. Elon D.P.):

 

(1) The principle that a person’s freedom of worship is not absolute but must retreat where there is a probable threat of harm to public order, is merely a different expression – one more appropriate to the Holy Places – of the principle of maintaining the status quo.

 

(2) In the Holy Places there is – in light of past experience – an evidentiary presumption that a deviation from the status quo may lead to a disturbance of public order. This evidentiary presumption, together with additional evidence – and perhaps even on its own – may, in appropriate cases, provide the necessary evidentiary grounds required under the near-certainty test to limit freedom of worship in the Holy Places, and to restrict it due to the need to preserve public order.

 

(3) In the circumstances of this case, the possible clash is not only between the freedom of worship of the Petitioners and the interest in maintaining public order. There is an additional possible clash between the freedom of worship of the Petitioners and the freedom of worship of other worshippers.

 

(4) In the Holy Places, there is no choice – in a case of a clash between the freedom of worship of different worshippers themselves – but to try to find the common denominator of all the worshippers, even if, as a result, the freedom of worship of one may come somewhat at the expense of the freedom of worship of another.

 

I. (per M. Shamgar P.):

 

(1) The petitions before the Court lead us to the bumpy road of trying to balance between approaches and beliefs that are incompatible. In this regard, it is worth remembering that exclusive focus upon presenting questions and problems before the Court is not necessarily the appropriate solution or the desirable remedy for all illnesses.

 

(2) The search for a common denominator for all Jews, whomever they may be, is worthy of respect. The common denominator means sufficing with the basic arrangements that would ensure freedom of access and freedom of worship to everyone, without imposing special conduct upon those who do not want it, and without violating the sensitivities of the believers.

 

(3) The legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner.

 

J. (per Elon D.P.):

 

(1) Subsection (1a) of regulation 2(a) of the Regulations for the Protection of Holy Places to the Jews, promulgated by virtue of the Protection of the Holy Places Law, 5727-1967, expresses the principle of maintaining the status quo. The “local custom” and the status quo are one and the same.

 

(2) The Minister of Religion did not exceed the authority granted to him by the legislature under the Protection of the Holy Places Law. He acted within the operating framework delineated by the primary legislator in sec. 1 of the Law to protect the Holy Places – including, of course, the Western Wall – from desecration and anything likely to violate the feelings of the members of the different religions with regard to the places holy to them.

 

(3) There was more than enough evidence before the Minister of Religion that prayer conducted in the manner practiced by the Petitioners leads to severe, tangible harm to public order, and thereby leads to desecration of the Western Wall.

 

(4) The regulation is a reasonable expression of the principle of preserving the status quo, the principle of preserving public order in a Holy Place, and primarily – in expressing the broadest common denominator of all the worshippers at the site. The reasonableness of the subsection of the regulation derives from the policy grounding the regulation, and from the purpose that it seeks to realize.

 

K. (per S. Levin J. (dissenting)):

 

(1) In regard to the activity in the Western Wall Plaza, the adoption of the broadest common denominator as a standard is not helpful. The common denominator that must be taken into account is the common denominator of all the groups and people who visit the Western Wall and the plaza in good faith, whether for prayer or for other legitimate purposes.

 

(2) No absolute prohibition should be placed upon conducting prayer services at the Western Wall simply because there are groups that oppose them, and considerations of certain and proximate danger of a breach of the peace do not necessarily justify imposing such a prohibition.

 

(3) It is the duty of the relevant authorities to ensure the appropriate conditions for balancing all the relevant interests, in order that all those who seek to assemble at the Wall and its plaza may fully realize their rights without excessively violating the feelings of others.

 

(4) Regulation 2 (a) (1a) of the Regulations for the Protection of Holy Places to the Jews is not repugnant to the Protection of the Holy Places Law, but the term “local custom” need not be interpreted specifically in accordance with the halakha or the existing situation. It is the nature of custom to change over time, and in its framework expression should be given to a pluralistic, tolerant approach to the views and customs of others.

 

(5) Under these circumstances, it is possible to issue a decision that recognizes in principle the good-faith right of the Petitioners to pray at the Western Wall Plaza while wearing tallitot and while carrying Torah scrolls, with the proviso that there conduct does not constitute an intolerable “desecration”, “other violation”, or a “violation of feelings” as appropriate in a democratic society.

 

L. (per M. Elon D.P.):

 

(1) The approach according to which conducting worship services at the Western Wall that are opposed by other groups should not be subject to a total ban is an absolutely new approach in the case law of the Supreme Court, and it stands in utter contradiction to a long line of decisions issued by the Court.

 

(2)  The case law has upheld a prohibition upon Jews praying on the Tempe Mount in order to preserve public order and prevent a proximate threat of disturbances and rioting, Freedom of worship thus retreated before the need to preserve public order to the point of denying any Jewish religious worship on the Temple Mount.

 

(3) The Temple Mount on the east of the Wall is no different from the prayer plaza on the west of the Wall, both of which are Holy Places. In view of the fact that according to the decisions of this Court, prohibiting every Jew from praying on the Temple Mount is consistent with the principle of freedom of religion, prohibiting the inclusion of a single element in the prayer service, to which the overwhelming majority of worshippers are vehemently opposed, also does not constitute an infringement of freedom of worship.

 

M. (per M. Shamgar P.): The issues raised by the petitions should not be decided in the manner that legal disputes are normally decided. We should recommend that the Government consider appointing a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit harm to the feelings of the worshippers. The petitions should be dismissed, subject to that recommendation.

Voting Justices: 
Primary Author
majority opinion
concurrence
dissent
Full text of the opinion: 

                                                                                                                                    HCJ 257/89

                                                                                                                                    HCJ 2410/90

 

 

1.   Anat Hoffman

2.   Dr. Bonna Haberman

3.   Dr. Judith Green

4.   Rendel Fine Robinson

 

                v.

 

1.   Director of the Western Wall

2.   Ministry of Religious Affairs

3.   Chief Rabbinate of Israel

4.   Minister of Religious Affairs

5.   Minister of Justice

6.   Commander of the Old City Police Precinct, Israel Police, Jerusalem

7.   Commander of the Jerusalem District, Israel Police

8.   Israel Police

9.   Sephardic Association of Torah Guardians – Shas Movement

10. Rabbi Simcha Miron

11. Agudat HaChareidim – Degel HaTorah

12. Rabbi Avraham Ravitz   HCJ 257/89

 

 

1.   Susan Alter

2.   Professor Susan Aranoff

3.   Professor Phyllis Chesler

4.   Rivka Haut

5.   Professor Norma Baumel Joseph

6.   Professor Shulamit Magnus

7.   International Committee for Women of the Wall, Inc.

 

                v.

 

1.   Minister for Religious Affairs

2.   Director of the Western Wall

3.   Commissioner of the Israel Police

5.   Attorney General   HCJ 2410/90

 

H. Kadesh, U. Ganor for the Plaintiffs in HCJ 257/89; N. Arad, Director of the High Court of Justice Department of the State Attorney’s Office for Respondents 1-8 in HCJ 257/89 and the Respondents in HCJ 2410/90; Z. Terlo for Respondents 9-12 in HCJ 257/89; A. Spaer for the Petitioners in HCJ 2410/90.

 

The Supreme Court sitting as High Court of Justice

[January 26, 1994]

Before President M. Shamgar, Deputy President M. Elon, Justice S. Levin

 

Facts:

The two petitions concern the arrangements for prayer in the Western Wall Plaza in Jerusalem.

The Petitioners request to conduct prayer services in the Western Wall Plaza, while carrying Torah scrolls and wearing tallitot [prayer shawls]. The Petitioners in HCJ 257/89 seek to conduct “prayer groups” that read from the Torah. The Petitioners in HCJ 2410/90 represent some one-thousand women who are members of various streams of Judaism, Orthodox, Conservative, Reform and Reconstructionist. They do not ask to conduct their prayers in a “minyan” [prayer quorum], but they do wear talittot and read from a Torah scroll that they bring with them.

The arrival of the Petitioners at the Western Wall Plaza to conduct their prayer services, as stated, met with the fierce opposition of worshippers at the site. The dispute between the worshippers and the Petitioners was accompanied by rioting, the throwing of gravel and dirt at the praying Petitioners, and the use of force and verbal violence.

In the course of hearing the petition in HCJ 257/89, regulation 2 (a) of the Regulations for the Protection of Holy Places to the Jews, 5741-1981, was amended by the addition of regulation (1a), which prohibits the conducting of any religious service at the Western Wall that is not in conformance with the local custom or that violates the feelings of the worshippers in regard to the place.

The Petitioners argue that the new regulation is void ab initio, or in the alternative, that it should be voided by reason of extraneous considerations or as ultra vires the Minister’s authority. They further argue that their prayer services are not contrary to the “local custom”, and that they strictly observe the rules of halakha [Jewish religious law].

According to the Respondents, the Petitioners’ right of access to the Western Wall is not in dispute. What is refused to them is prayer in their own manner, that is, while arriving as a group, wearing tallitot, carrying Torah scrolls and reading from them. Such prayer has led to severe disturbances in the Western Wall Plaza, breach of public order, and the violation of proper decorum.

For those reasons, the regulation that is the subject of the petitions is valid, and the manner in which the Petitioners conduct their prayers at the Western Wall should be evaluated in accordance with it.

Held:

The High Court of Justice ruled as follows:

A.        (1) The Palestine Order-in-Council (Holy Places), 1924, does not deprive the Court of jurisdiction to adjudicate in regard to the preservation of public order and the prevention of criminal offences. The Order-in-Council only deprives the Court of jurisdiction in matters of freedom of worship in the holy places

(2) The petitions treat of freedom of access to the Western Wall, the danger of desecration of the site, and a possible affront to the sensitivities of the worshippers. The Court holds jurisdiction over these matters.

B. (per M. Elon D.P.): In terms of halakha, the questions raised by the petitions concern the rules of prayer: one – is a woman permitted to wear a tallit and tziztit; two – are women permitted to carry a Torah scroll and read from it. These two subjects must be preceded by the examination of an additional question, that of the manner of conducting public prayer by women.

C. (per M. Elon D.P.):

(1) According to halakha, fulfillment of the obligation of public prayer requires a “minyan”, i.e., ten men, and “acts of sanctification” – i.e., prayers in which God is sanctified.

            (2) Women are required to pray, but they are not obligated to public prayer. Women are exempt from the performance of time-bound positive commandments, that is, commandments that must be performed at specified times. A person who is exempt from the performance of a time-bound positive commandment cannot be counted for the required, obligatory quorum for constituting a minyan of ten.

            (3) Conducting prayers that are entirely constituted and led by women, in the manner customary in a minyan of men, is contrary to halakha.

            (4) Women are exempt from wearing tzitzit or a tallit, as these are time-bound positive commandments inasmuch as the obligation is limited to a defined time period.  However, women are permitted to perform these mitzvoth.

            (5) The requirement that a commandment be performed for the purpose of observing it, and not motivated by a lack of consideration for the halakhic rule due to “extraneous considerations” of principled objection to the exemption because it insults women, is a fundamental principle of the halakhic world with regard to the introduction of legislative enactments, establishing customs, and introducing changes thereto.

D. (per M. Elon D.P.):

(1) Custom is one of the established, creative sources of Jewish law.

            (2) Custom can be general, and it can also be local, that is, restricted to a place or to specific places, where various internal factors influence its generality or restriction. It may also be subject to change by its nature, the place and the time, and in accordance with the existence of legitimate factors of the place and the time that justify such change.

            (3) Not every absence of a custom grounds an “argument from silence”. In certain circumstances, it is evidence of a lacuna that must be remedied when the time and need arise, assuming that there is no halakhic prohibition that prevents it.

            (4) A custom that deviates from a prior custom that forbids the introduction of a new custom that is not justified by legitimate social and ideological changes in the halakhic world, may not be followed.

            (5) The halakhic world is especially careful in regard to introducing new customs in the synagogue. This fact finds expression in regard to the custom of “prayer groups”, which is a central issue in these petitions.

E. (per M. Elon D.P.):

(1) At the prayer area beside the Western Wall, which must be treated like a synagogue and even more, there was never any custom of women’s prayer.

            (2) Granting the Petitioners’ petition would involve a clear change in the local custom of the synagogue as observed for generations upon generations.

            (3) An important principle of halakha is that custom should not be changed “due to the quarrels” [that would ensue]. This principle was enunciated in regard to every custom in halakha, and it applies a fortiori to synagogue customs, and all the more so in regard to the synagogue in the Western Wall Plaza.

            (4) The subject of these petitions – concerning the laws and customs of prayer – is particularly sensitive in the halakhic world. The halakhic world is defined by its laws and values, and just as halakhic scholars and decisors disagree in regard to its rules, so they may disagree as to its values or in regard to the implementation of its values.

            (5) It is conceivable that the substantial change in the status and role of women in this century will have an effect over time, and will lead to an appropriate resolution even of this complex, sensitive subject of prayer groups. But the prayer space beside the Western Wall is not the place for a “war” of acts and opinions over this issue.

E. (per M. Elon D.P.):

(1) Just as the Temple Mount and the Temple that stood upon it were symbols of the Jewish religious world and of the Jewish nation’s political sovereignty, so the Western Wall, the remnant of our destroyed temple, was the holiest place for the Jewish People, and symbolized its desire and aspiration for the return of national sovereignty.

            (2) (per M. Shamgar P.): In the eyes of the religious halakha, the Western Wall is a mikdash m’at [a little sanctuary]. From a nationalist perspective, it symbolizes generations of suffering and the aspiration for a return to Zion and the return of our diaspora, and therefore, it expresses the strength and vitality of the nation, its ancient roots and its eternality.

            (3) (per S. Levin J.): The Western Wall and its plaza have been a holy site for the Jewish People for generations, as a religious site and a site of prayer, but at the same time, it also bears national symbolic significance as a unique historical remnant of the walls of the Temple. In these circumstances, the fact that the Wall serves as a site for prayer is not necessarily decisive in establishing the scope of activity permitted there. That the Western Wall should be viewed as a “synagogue” in every way, and that the activity conducted there is subject to the rules of halakha that apply to a synagogue and none other cannot be accepted a priori and as a foregone conclusion.

G. (per M. Elon D.P.):

(1) An examination of the history of the Holy Places shows the very sensitive nature of these places to which disputes, disagreements and strong emotions are inherent. The treatment of the Holy Places is characterized by extreme care and moderation, attempts to achieve compromise and mediation between the parties, and by refraining from unequivocal rules and definitive solutions.

            (2) Such an approach is inappropriate to the nature of the Judiciary, which is used to definitively deciding disputes on the basis of clear legal rules. Therefore, in practice, the treatment of the Holy Places was entrusted to the Executive branch.

            (3) The Executive branch relied upon the long established principle of maintaining the status quo. Preserving the existing situation is the only means for ensuring that peace and quiet, and public decorum -- so necessary for places imbued with holiness – be maintained.

F. (per M. Elon D.P.):

(1) The principle that a person’s freedom of worship is not absolute but must retreat where there is a probable threat of harm to public order, is merely a different expression – one more appropriate to the Holy Places – of the principle of maintaining the status quo.

            (2) In the Holy Places there is – in light of past experience – an evidentiary presumption that a deviation from the status quo may lead to a disturbance of public order. This evidentiary presumption, together with additional evidence – and perhaps even on its own – may, in appropriate cases, provide the necessary evidentiary grounds required under the near-certainty test to limit freedom of worship in the Holy Places, and to restrict it due to the need to preserve public order.

            (3) In the circumstances of this case, the possible clash is not only between the freedom of worship of the Petitioners and the interest in maintaining public order. There is an additional possible clash between the freedom of worship of the Petitioners and the freedom of worship of other worshippers.

            (4) In the Holy Places, there is no choice – in a case of a clash between the freedom of worship of different worshippers themselves – but to try to find the common denominator of all the worshippers, even if, as a result, the freedom of worship of one may come somewhat at the expense of the freedom of worship of another.

I. (per M. Shamgar P.):

(1) The petitions before the Court lead us to the bumpy road of trying to balance between approaches and beliefs that are incompatible. In this regard, it is worth remembering that exclusive focus upon presenting questions and problems before the Court is not necessarily the appropriate solution or the desirable remedy for all illnesses.

            (2) The search for a common denominator for all Jews, whomever they may be, is worthy of respect. The common denominator means sufficing with the basic arrangements that would ensure freedom of access and freedom of worship to everyone, without imposing special conduct upon those who do not want it, and without violating the sensitivities of the believers.

            (3) The legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner.

J. (per Elon D.P.):

(1) Subsection (1a) of regulation 2(a) of the Regulations for the Protection of Holy Places to the Jews, promulgated by virtue of the Protection of the Holy Places Law, 5727-1967, expresses the principle of maintaining the status quo. The “local custom” and the status quo are one and the same.

(2) The Minister of Religion did not exceed the authority granted to him by the legislature under the Protection of the Holy Places Law. He acted within the operating framework delineated by the primary legislator in sec. 1 of the Law to protect the Holy Places – including, of course, the Western Wall – from desecration and anything likely to violate the feelings of the members of the different religions with regard to the places holy to them.

            (3) There was more than enough evidence before the Minister of Religion that prayer conducted in the manner practiced by the Petitioners leads to severe, tangible harm to public order, and thereby leads to desecration of the Western Wall.

            (4) The regulation is a reasonable expression of the principle of preserving the status quo, the principle of preserving public order in a Holy Place, and primarily – in expressing the broadest common denominator of all the worshippers at the site. The reasonableness of the subsection of the regulation derives from the policy grounding the regulation, and from the purpose that it seeks to realize.

K. (per S. Levin J. (dissenting)):

(1) In regard to the activity in the Western Wall Plaza, the adoption of the broadest common denominator as a standard is not helpful. The common denominator that must be taken into account is the common denominator of all the groups and people who visit the Western Wall and the plaza in good faith, whether for prayer or for other legitimate purposes.

            (2) No absolute prohibition should be placed upon conducting prayer services at the Western Wall simply because there are groups that oppose them, and considerations of certain and proximate danger of a breach of the peace do not necessarily justify imposing such a prohibition.

            (3) It is the duty of the relevant authorities to ensure the appropriate conditions for balancing all the relevant interests, in order that all those who seek to assemble at the Wall and its plaza may fully realize their rights without excessively violating the feelings of others.

            (4) Regulation 2 (a) (1a) of the Regulations for the Protection of Holy Places to the Jews is not repugnant to the Protection of the Holy Places Law, but the term “local custom” need not be interpreted specifically in accordance with the halakha or the existing situation. It is the nature of custom to change over time, and in its framework expression should be given to a pluralistic, tolerant approach to the views and customs of others.

            (5) Under these circumstances, it is possible to issue a decision that recognizes in principle the good-faith right of the Petitioners to pray at the Western Wall Plaza while wearing tallitot and while carrying Torah scrolls, with the proviso that there conduct does not constitute an intolerable “desecration”, “other violation”, or a “violation of feelings” as appropriate in a democratic society.

L. (per M. Elon D.P.):

(1) The approach according to which conducting worship services at the Western Wall that are opposed by other groups should not be subject to a total ban is an absolutely new approach in the case law of the Supreme Court, and it stands in utter contradiction to a long line of decisions issued by the Court.

(2)  The case law has upheld a prohibition upon Jews praying on the Tempe Mount in order to preserve public order and prevent a proximate threat of disturbances and rioting, Freedom of worship thus retreated before the need to preserve public order to the point of denying any Jewish religious worship on the Temple Mount.

(3) The Temple Mount on the east of the Wall is no different from the prayer plaza on the west of the Wall, both of which are Holy Places. In view of the fact that according to the decisions of this Court, prohibiting every Jew from praying on the Temple Mount is consistent with the principle of freedom of religion, prohibiting the inclusion of a single element in the prayer service, to which the overwhelming majority of worshippers are vehemently opposed, also does not constitute an infringement of freedom of worship.

M. (per M. Shamgar P.): The issues raised by the petitions should not be decided in the manner that legal disputes are normally decided. We should recommend that the Government consider appointing a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit harm to the feelings of the worshippers. The petitions should be dismissed, subject to that recommendation.

 

 

 

 

 

 

 

 

 

Judgment

 

 

Deputy President M. Elon:

Preface

We have been called upon to address two petitions concerning the arrangements for prayer in the Western Wall Plaza in Jerusalem, Israel’s capital. The facts and content of each of these petitions are substantively different, but in view of their common subject, we have decided to address them jointly.

The petitions are extremely sensitive by their very nature and substance. In terms of their substance, we are concerned with the laws and customs of prayer – subjects that are central to Jewish law and Judaism. As for the location, we are concerned with what has been Judaism’s holiest site since the destruction of the Temple. The special legislation and the rich case law of this Court also inform us of the sensitivity and of the tension attendant to the issue of the Holy Places in this country. This is also evident from the facts set forth in the two petitions before us, and the arguments presented by the Petitioners’ learned counsels.

            We shall, therefore, address each matter in turn, in an orderly fashion.

            We shall proceed as follows: After examining the issue presented by the petitions (paras. 1-3), we will specifically address the facts of each of the petitions that are of importance for our consideration and decision (paras. 4-11), as well as the arguments of the Petitioners and of the Respondents (paras. 12-17). As noted, the questions that we must decide are intertwined with matters of prayer and its rules, which derive from the world of halakha [Jewish religious law], and with which we will begin our examination (para. 18). We will then address contemporary social changes in the status and roles of women (paras. 19-20). We will enquire into the laws of prayer in a minyan [prayer quorum], time-bound commandments, women’s “prayer groups”, the wearing of a tallit [prayer shawl] by a woman, and the reading of the Torah by women (paras. 21-17). We will then proceed to examine the subject of custom in halakha, which is of particular importance for the subject before us – custom in general, in the synagogue in particular, and especially at the Western Wall – change of custom, the avoiding of dispute, and sectarianism (paras. 28-32). In doing so, we will address the extreme nature of the disagreements in regard to the subject before us, the law and values of the halakhic system (paras. 33-36), the rendering of true judgment (para. 37-38), and a summary of the halakhic position in regard to our subject (para. 39). From the world of halakha, we shall proceed to the arena of the Israeli legal system: the Holy places, the Status Quo (paras. 40-43), and the disputes surrounding them (paras. 44, 48-49); the Western Wall during the Mandate period and after its liberation in the Six Day War (paras. 45-46), the prevention of Jewish prayer on the Temple Mount (para. 47), and a summary of the history of the Holy Places (para. 50). From that point, we shall address the principle of freedom of worship, and balancing and restricting it (paras. 51-53), the regulation regarding preserving “local custom” and not offending the sensitivities of the praying public in regard to the Western Wall (para. 54), and the reasonableness, appropriateness and necessity of the regulation (paras. 55-60). We will conclude with a summary (para. 61) and by rendering true judgment in the matter before us (para. 62), and a response to the comments of my learned colleagues (para. 63).

            In HCJ 4185/90 Temple Mount Faithful v. Attorney General, IsrSC 47 (5) 221, the Court considered a petition concerning work being carried out on the Temple Mount, on the eastern side of the Western Wall. In the petitions at bar, we address events on the western side of the Wall. Both cases thus concern events on either side of the Wall. Inasmuch as we addressed the history of the Temple Mount and the Western Wall in detail in HCJ 4185/90, we see no need to repeat what has already been stated there. At times, this judgment refers to that judgment, and at times it does not. The reader can read both to obtain a complete picture.

 

HCJ 257/89

1.         On 14 Adar II 5749 (March 21, 1989), the Petitioners in HCJ 257/89 submitted a petition for an order nisi, stating:

A. Against Respondents 1-3, i.e., the Director of the Western Wall, the Minister of Religious Affairs and the Chief Rabbis of Israel: “Why do they forbid and/or prevent the Petitioners in particular, and Jewish women in general from carrying Torah scrolls and reading from them, and/or wearing prayer shawls during their prayers” [sec. 2.a of the heading of the petition].

B. Against Respondents 6-8, i.e., the Commander of the Old City Police Precinct, the Commander of the Jerusalem District of the Israel Police, and the Israel Police: “Why will they not protect the Petitioners in particular, and women in general in their exercise of the right to freedom of belief, religion, worship and conscience at the Wall” [sec. 2.b of the heading of the petition].

            On 20 Iyar 5749 (May 25, 1989), the requested order nisi was granted with the consent of the State’s representative of the said Respondents.

            In the hearing held on 20 Av 5749 (August 21, 1989), we ordered that the Shas Movement, Rabbi Simcha Miron, the Degel Hatorah Association, and Rabbi Avraham Ravitz be joined to the petition as Respondents 9-12, at their request (MHCJApp 318/89, MHCJApp 319/89).

2.         On 3 Adar 5750 (Feb. 28, 1990) – following the promulgation of the Regulations for the Protection of Holy Places to the Jews (Amendment), 1989, which we shall address further on – the Petitioners submitted an amended petition comprising an additional request for an order nisi against the Minister of Religious Affairs and the Minister of Justice (Respondents 3-4):

Why should the Court not declare the Regulations for the Protection of Holy Places to the Jews (Amendment), 1989, to be void … or in the alternative, why should it not void them [para. b. of the heading of the amended petition].

            With the consent of the Respondents, an amended order nisi was issued on the basis of the amended petition.

 

HCJ 2410/90

3.         On 10 Sivan 5750 (June 3, 1990), the Petitioners in HCJ 2410/90 submitted:

A petition for the granting of a decree against the Respondents (the Minister of Religious Affairs, the Director of the Western Wall, the Commissioner of the Israel Police, and the Attorney General – M.E.) forbidding them from preventing Petitioners 1-6 from praying at the Western Wall and in the Western Wall Plaza while wearing tallitot and reading from the Torah, and requiring them to permit the Petitioners to bring a Torah scroll to the Western Wall Plaza, and to ensure that such prayer by the Petitioners be conducted without disturbance or harm [heading of the petition].

            An order nisi was granted on the day that the petition was submitted.

            A joint hearing of the objections to the orders nisi in both petitions – HCJ 257/89 and HCJ 2410/90 – was held on 13 Adar 5751 (Feb 2, 1991), as requested by the Petitioners in HCJ 2410/90.

 

The Facts

HCJ 257/89

4.         The Petitioners are Jewish women, and residents of Jerusalem. Petitioner 1 is a member of the Jerusalem city council. The Petitioners come “to pray at the Wall, together with other Jewish women, at various times, as part of a group called the ‘Rosh Hodesh [new month] Group’” (sec. 1.a of the amended petition). In the course of their prayer, they wear tallitot and read the Torah. Petitioners 1 and 2 “are Torah readers, and on occasion, serve as prayer leaders in their congregations” (sec. 3.a of the amended petition).

            The Petitioners claim that when they went to pray at the Western Wall Plaza, as described, their prayers were disturbed. This began on the Rosh Hodesh beginning of the month of Tevet 5749 (Dec. 9, 1988), when there was “violent conduct … (directed at them – M.E.) by hareidim [“ultra-Orthodox”]” (Appendix A to the amended petition). In regard to the events of Rosh Hodesh Adar I 5749, the third Petitioner, Dr. Judith Green, states:

On Monday morning, 1 Adar I (Feb. 6, 1989) … at 6:30 AM, a group of about 25 women began the Rosh Hodesh prayers at the Western Wall Plaza … we informed the police in advance a day earlier, on Sunday, 30 Shevat (Feb. 5, 1989), of our intention to conduct prayers, and we provided full details ….

We, indeed, saw a police van opposite the Wall, in which there were some 10 police and border patrol officers. We thought that they were there to see what would happen, and to intervene if necessary. We conducted the morning service and recited Hallel without any significant disturbance, but when we began reading the Torah, several hareidi women began to interrupt and curse us. In the end, they ran to the mehitza [separation barrier between the sections for male and female prayer] and called for the hareidi men to assist them. The men broke through the mehitza and began to beat us.  They grabbed prayer books and tried to take our Torah scroll. ‘Reinforcements’ arrived from various yeshivas in the Jewish Quarter (apparently), and at that moment, several men who were concerned for our safety went to the police van to ask for help. The police told them that they should not intervene, and that they should let the police ‘do its job’. When the hareidim began to throw chairs and tables at us, I asked the police to ask for help. They told me not to worry, that they were in control of the situation and had called for assistance. Several other people turned to the police, but none of them left the van. At that point, we began to worry about the safety of the Torah scroll and the safety of the men who were trying to protect us. We therefore left the place as a group, encircling the Torah scroll, while the hareidim continued to curse and hit us. No police or border patrol officer entered the area of this violent event, although it occurred right before their eyes.

When we left, we encountered a police officer who said that he was the area commander. He said that he was unaware of our intention to conduct Rosh Hodesh prayers on that morning. Several police officers who had been in the van were also there, and they continued to berate us for trying to tell them how to do their job [Appendix A to the amended petition].

 

            Following the events described, the Respondents and the Petitioners conducted negotiations that proved unsuccessful. The Petitioners informed Respondent 1 that they “will come to pray at the Wall on the Fast of Esther, without tallitot and without a Torah scroll”, and Respondent 1 assured them that he would see to “their safety and the conducting of their prayers” [sec. 9a of the petition].

            And this – according to the Petitioners – is what occurred on the Fast of Esther 5749:

11.       (a) On March 20, 1989 (the day of the Fast of Esther), the Petitioners gathered with their friends, in a group numbering several dozen women, to pray at the Wall without tallitot or Torah scrolls  ...

(b) When they entered the women’s section at the Wall, there was a large commotion by yeshiva students, and other men and women who were there, who insulted the Petitioners and tried to assault them. Border patrol officers who were at the scene ensured their entry into the women’s section unharmed.

(c) During their prayers, unruly men tried to break through into the women’s section, shouting and cursing, and throwing chairs and stones at the prayer group. Several extremist women who were present in the women’s section, also contributed their insults and fists.

(d) The border police first tried to protect the prayer group and catch the offenders, but quickly, and in accordance with orders from above, they left the Wall and the Plaza, and abandoned the prayer group to the devices of the violent rioters. The Western Wall ushers were at a loss to provide help.

(e) Counsel for the Petitioners, who was present at the event, demanded that the police protect the praying women, but was referred to Respondent 6 (the Commander of the Old City Police Precinct – M.E.).

(f) At the time of the event, Respondent 6 stood on the balcony of the police post near the Wall, and observed what was occurring while doing nothing, as if to say ‘let the young men play before us’ [II Samuel 2:14].

(g) Counsel for the Plaintiffs, who turned to Respondent 6 and requested his quick intervention in light of the rioting, and fearing the spilling of blood at the Wall, was ordered to leave the police post.

(h) The violent rioting at the Wall, which included the throwing of a bottle that shattered in the women’s section, the throwing of chairs and stones, and shouting and whistling, continued without police intervention.

(i) As a result of the throwing of a chair at the heads of the praying women, one of the women was injured. Mrs. Rachel Levin sustained a head injury, and was later treated at Hadassah Hospital …

(j) The person who threw the said chair fled from the women’s section and ran into the Cardo, while Counsel for the Plaintiffs and others gave chase. Border police standing at the entrance to the Cardo, who were asked to arrest the fleeing suspect, stood aside and allowed him to flee and disappear into the depths of the Cardo. They referred the complainants to their commander, Respondent 6.

12.       After about 45 minutes, the police finally intervened, dispersing tear gas canisters in the Western Wall Plaza and moving the men away. As a result of the tear gas canisters, the prayers of the Petitioners and their friends could not continue, and they were forced to leave the women’s section, hurt, injured, and crying, to conclude their prayers far from the Western Wall Plaza.

13.       The Director General of the Ministry of Religion was present throughout the Petitioners’ prayers at the Wall on March 20, 1989, and observed what took place [secs. 11.a – 13a of the amended petition].

 

            The day following the events of the Fast of Esther, the Petitioners submitted the petition at bar, as noted.

5.         The Respondents presented a different version of the events that transpired up to the date of the submission of the petition. This is how the matters are described by Respondent 1, Rabbi Getz, the rabbi in charge of the Western Wall and the other holy sites surrounding the Temple Mount, in his letter of 22 Adar 5750 (March 19, 1990) to the Director of the High Court of Justice Department of the State Attorney’s Office:

For over twenty years, since the day I was appointed to my position as Rabbi of the Wall, the Western Wall Plaza has been a quiet, calm island in the raging sea of our lives in Israel.

Every year, millions of Jews come from Israel and the Diaspora to visit the Wall to pour out their hearts beside the remnant of our Temple, and each can commune with his Maker in tranquility and safety.

All are equal before the Creator, poor and rich, scholar and unschooled, knowledgeable and ignorant, and recite their prayers according to the Sephardic, Ashkenazic, or Oriental rite, or a revised prayer book, in Hebrew, English, French, or any other language. And no one says a word when, with no comparison implied, Moslems, Catholics, Protestants, Presbyterians, and even Japanese Makuya also come, and we have been privileged to see the prophesy of redemption  ‘for My house shall be a house of prayer for all peoples’ [Isaiah 56:7].

The river of Israel’s sorrows laps calmly beside the ancient stones, and our brothers and sisters depart with a sense of relief and ease.

This until that bitter day of 2 Kislev 5749 (Dec. 1, 1988), when, late at night, sitting in my office at the Wall, I received an anonymous notice from a person warning me that feminist women would be coming to the Wall, and they would overturn the mehitza that separates the men and the women. I could hardly believe my ears, and I thought that he was putting me on.

Nevertheless, early the next morning I informed the police commander of this, and I demanded an increased police presence, while expressing my reservations as to the credibility of the notice.

But when, at about 7:00 AM, I saw an army of Israeli and foreign journalists and photographers, I called the Director General of the Ministry for Religious Affairs, Mr. Z. Orlev, who arrived immediately, and I put all of the ushers and all the other staff of the Wall at the ready beside the mehitza.

Indeed, half an hour later, some fifty or sixty women arrived at the site, some wrapped in a tallit or wearing a kippah, and one of them holding a Torah scroll in her arms, and that immediately ignited the emotions of the men and women at prayer.

I did not prevent them from entering the Western Wall Plaza, and I even calmed the enraged spirits, explaining to all interested that from a halakhic legal perspective, there is no prohibition, but it is contrary to custom, and not accepted among Jews, and that calmed the anger of the protesters. I naively thought that this was a one-time phenomenon that would pass. (Incidentally, I firmly deny that I knew, or that it was reported to me, that women, or a woman, would come to the Western Wall wrapped in a tallit, and I did also did not attest to that effect!).

I was also surprised that in declarations made to the various press outlets, the Petitioners emphasized that this would now be a permanent, systematic policy. I therefore asked the honorable Chief Rabbis of Israel for their halakhic opinions, and on 17 Shevat 5749, they ruled to forbid, and this after the phenomenon recurred on Rosh Hodesh of Tevet (Dec. 9, 1988), and this time was met by the angry vocal reactions of the worshippers.

The matter of the arrival of the women wrapped in tallitot and carrying a Torah scroll evolved into a serious breach of public order, and turned the Western Wall Plaza into a shameful battle ground, ending in disrespect and discord.

The Petitioners, for their part, only stoke the flames with daily announcements to the press, which have drawn angry responses for and against.

Nothing transpired on the Rosh Hodesh of Shevat, as it fell on the holy Sabbath.

On the Rosh Hodesh of Adar I (Feb. 6, 1989), the terrible spectacle recurred. The said group of women arrived, accompanied by a crowd of reporters and photographers, and this time there was an escalation because their announcements to the press “mustered” a crowd of opponents, and the women, on their part, added an element of singing, which is expressly contrary to halakha.

I am unaware of any physical injury whatsoever. But it is shocking that the aforementioned expressly claimed to have received my permission to conduct their prayers. Several meetings were held between the Chief Rabbinate of Israel and our office administrators in order to limit the damage and embarrassment. I personally turned to several public personalities and requested that they use their influence with the complainants, and especially Plaintiff 1, to refrain from causing a desecration and dragging the public to sacrilege.

On 11 Adar II, a joint meeting was held in the Director General’s office, at which the Petitioners were present. They demanded that we protect them when they come on the Fast of Esther, and we unequivocally declared that they are disturbing public order, and we, for our part, will strictly enforce it …

We therefore prepared for that day, 23 Adar II 5749 (the day of the Fast of Esther – M.E.) (March 20, 1989), and in coordination with the police and its commanders, I reinforced the ranks of female ushers, emphasizing that the police would intervene only if the ushers lost control of the area.

Once again there were announcements to the press, a timely assembly of photographers and reporters, and the women confronted a wall of people who attempted to block their access to the Wall, while the ushers protected them and allowed their access. But the shouts and the attempts at physical harm forced me to request the intervention of the police, who dispersed the disturbances with two tear gas canisters.

And my face is covered in embarrassment and shame by this – for what? What harm would come to them if they were to pray as they wish in their own homes or their own places of prayer that requires all this commotion? [Appendix R/B of the Respondents’ response of April 8, 1990].

 

6.         During the period between the submission of the petition, 14 Adar II 5749 (March 21, 1989), and the first hearing of the petition, 20 Iyar 5749 (May 25, 1989), the commotion in the Western Wall Plaza subsided. And this is how the events are described in the above letter of Rabbi Getz:

Prior to 28 Nisan 5749 (April 6, 1989), in coordination with the office administration, I assembled a staff of women who could control the women worshippers who were attempting to oppose their arrival. I also removed the chairs from the men’s section and from the women’s section. And, indeed, when they arrived at the Plaza, I was given a ‘legal affidavit’ by their attorney that they are coming without a Torah scroll and without tallitot, and that they would not approach the women’s section. And, indeed, other than a single shout, there were no reactions by anyone.

That was also the case on Rosh Hodesh Iyar (May 6, 1989). I explained to the women present that this was not the time for disturbances, and that they should bear in mind that only yesterday the blood of two Jews was spilled in the center of Jerusalem, and that they must behave with restraint.

Nevertheless, when they began singing in the course of their prayers, that had been silent until that point, there were shouts of disapproval by male and female worshippers, and they quickly left the area” [Appendix R/B of the Respondents’ response of April 8].

 

            And this is what we can learn about the events up to the first hearing in the matter of this petition from the letter of 2 Iyar 5749 (May 7, 1989) of Mr. Zevulun Orlev, then Director General of the Ministry of Religion, to the Director of the High Court of Justice Department:

I respectfully present you with a report of the course of events in regard to the prayers of a group of feminist women who have recently been praying at the Western Wall each Rosh Hodesh.

I have personally been following this matter over the months of Shevat, Adar I, Adar II, Nisan, and Iyar. I have also met personally met with Rabbi Getz, the rabbi responsible for the Western Wall, and with representatives of the group concerned.

The matter was first brought to my attention by the media, which reported that the group would pray at the Wall while wrapped in tallitot and reading form the Torah.

The first Rosh Hodesh prayers were preceded by announcements in the media. By analyzing their content, I have no doubt that the source of the reports was the women themselves.

The announcements led to opposing responses in the hareidi press, which heated up the atmosphere, and created expectations of a struggle.

Even when the women arrived at the Wall without tallitot and Torah scrolls, there were fierce reactions by the hareidim, inasmuch as they believed the reports in the media, and expected that the women would do what was reported.

This was exacerbated by the conspicuous presence of politicians walking at the head of the group, and the presence of many television crews, photographers and reporters accompanying the group of women, which entered the Plaza as a united group, in organized rows and columns as if in a clear protest march.

Our office invested substantial effort to make it clear to the women, on the one hand, that they would not be permitted to enter if they prayed with tallitot and read from the Torah, and to the hareidim, on the other hand, that if the women promise not to deviate from the local custom, they will not break their promise.

And, indeed, on Rosh Hodesh Nisan, the effort produced results, and other than the loud protests of a small number of men and women against the women, there was no significant disturbance. Those protests were the result of the organized, demonstrative entrance, and the accompaniment of the media, who were not invited by us or by the other side …

Prior to Rosh Hodesh Iyar, there were no reports of the matter in the media. The group of women arrived without the conspicuous presence of politicians, and presumably, without the accompaniment of television crews, photographers and reporters. I am glad to report that the group entered undisturbed (they did not enter in formation, but as a normal group), prayed for about half an hour, and quietly left the Plaza. In the course of prayer, after the group began to pray with organized singing aloud – contrary to the decision of the rabbi in charge of the Wall – two hareidi women shouted that the singing bothered them, and were silenced by the Wall ushers.

This progression of events proves and leads to the following conclusions:

  1. When the event assumes the character of a demonstration by the women, it is also met by reactions from the other side, and vice versa.
  2. When the event is conducted within the framework of the directives of the rabbi of the Wall, there are no harsh responses or disturbances, and vice versa.

From the my discussions with the commander of the Old City police, Chief Superintendent Yair Must, who accompanies me at every event, I know that he agrees with the event analysis and its conclusions [Appendix R/1 to the response submitted by the Respondents in MHCJApp 312/89 on Aug. 15, 1989].

 

7.         As noted, an order nisi was issued on the day of the hearing, with the State’s consent. The Court also recorded the State’s notice that “the competent authorities in the area of the Western Wall Plaza will see to … ensuring the well-being and safety of the Petitioners, and that their prayer services at the Western Wall Plaza will not be disturbed,” with the proviso that the Petitioners will continue to conduct their services at the Wall “in accordance with the prevailing prayer customs at that place, that is – that they will pray in the women’s section, without tallitot and Torah scrolls” [sec. 2 and 3 of the State’s notice of May 24, 1989].

            Unfortunately, this interim agreement did not bring about an end to the confrontations at the Western Wall.

8.         On 6 Av 5749 (Aug. 7, 1989), the Petitioners requested “to issue an interim order instructing the Respondents to take all the necessary steps to ensure the uninterrupted conduct of the prayer service of the Petitioners’ and their friends without physical or verbal violence” (MHCJApp 312/89). In this request, the Petitioners described the events that they claim occurred after the interim arrangement described above. The events of Rosh Hodesh Sivan 5749 (June 4, 1989) are described as follows in the letter of the Petitioners’ attorney of June 5, 1989, to the Attorney General and the Director of the High Court of Justice Department:

A.  On Rosh Hodesh Sivan, June 4, 1989, the Petitioners, together with their friends, tried to pray in the women’s section of the Wall. They arrived at the Wall without tallitot and without a Torah scroll, and prayed in the women’s section. The following events occurred at the place:

  1. A group of women made noise and deafening shouts and insults that interfered with the prayers.
  2. A group of men, on the other side of the mehitza, shouted and interfered with the prayers.
  3. A few women tried to push the worshippers out of the area while they were trying to pray.
  4. The prayer book of Mrs. Anat Hoffman was grabbed, folded and spat upon, and the prayer book of another women was grabbed and thrown to the ground.
  5. Another women was hit by a stone that was thrown at her.
  1. Cognizant of the State’s notice, submitted in writing to the Supreme Court sitting a High Court of Justice as an assurance of the State in file 257/89, the women approached the ushers and the police.
  2. Both of the above stood by, indifferent, and refrained from “ensuring the well-being and safety of the Petitioners, and that their prayer services at the Western Wall Plaza will not be disturbed” (quote from the State’s said notice).
  3. If that were not enough, the women were shocked when Mr. Shmuel Markovich, the police officer in charge, approached them and demanded, in Rabbi Getz’s name, that the women only pray silently, and if not, then the police would take action against them.
  4. As was their custom, the women departed for the “Hurva” synagogue, where the following events occurred:
  1. The site was “occupied” by a group of hareidi men.
  2. When the women tried to pray at a lower place, the men poured water on them, and the hareidim tried to force their way in among the praying women. In doing so, they injured Miriam Keltz and Helen Louis, who fell, were hurt, and required medical attention.
  3. The police made no serious effort to allow the women to pray.
  4. The women who submitted complaints were sent from pillar to post between the Kishle [the Old City police precinct], the Russian Compound, the Ministry of Tourism, etc. And complaints were accepted from the two women who were injured only after they were subjected to a thorough runaround.

 

Another description of the events on Rosh Hodesh Sivan is given by the Petitioners in their letter of 26 Sivan 5749 (June 29, 1989) to the Minister of Religion:

 

  1. …Despite the State’s promise, on Rosh Hodesh Sivan (June 4, 1989) we found that the violence against us continued, and that your office did not succeed in protecting our well-being in an effective manner, as promised in court.

 

On Rosh Hodesh Sivan, the ushers did not succeed in protecting us, and Rabbi Getz, who was present at the scene, did not call the Israel Police for help. The Wall ushers claimed that they were unwilling to touch a woman even if she was riotous, and hitting and cursing other worshippers. In order to resolve this problem, is was suggested that female ushers would be sent for, and we were grateful for this initiative on your part.

 

  1. … Since December 1988, on Rosh Hodesh, holidays and Shabbat eves, we follow the same customary practice, arriving at the Western Wall Plaza unobtrusively, singly or in pairs. We gather into a group in the women’s section, without a Torah or tallitot, and pray together.

On Rosh Hodesh Sivan, we did not deviate from our customary practice, despite what is stated in the written report presented to you by Rabbi Getz (Appendix D of the Petitioners’ request in MHCJApp 312/89).

On Rosh Hodesh Tammuz 5749 (Aug. 2, 1989), the violence increased, as attested by Petitioner 1, Mrs. Anat Hoffman, and Petitioner 2, Dr. Bonna Haberman, in their affidavit of Aug. 6, 1989:

(c)        For our prayers on 1 Tammuz and 1 Av, the Ministry of Religion provided a force of female ushers who were intended to protect us from our violent attackers, and permit us to pray undisturbed. But instead of that, the ushers joined those who were trying to silence our prayers. When we tried to continue our prayers as usual, and even though we were without tallitot and without a Torah scroll, we and our friends were forcefully dragged out of the women’s section before we could finish our prayers, while women who call themselves “hareidi” exploited the opportunity to pelt us with pebbles and throw mud and dirt at us.

4.         Not only were we forcefully dragged and expelled from the women’s section in a humiliating and degrading manner for all to see, but the Director of the Western Wall, Rabbi Getz, stated to our attorney Advocate Herzl Kadesh – as he reported us – that in the future, we will be entirely barred from entering the women’s section. A similar report appeared in the media as a statement made on behalf of the Ministry of Religion.

5.         Although those of us who pray at the Wall every Friday (in a group of 10-25 worshippers) have encountered verbal violence, to date the prayers have not been frustrated as occurred on the occasions of the Rosh Hodesh prayers.

            …

  1. (a)  The authorities pretend to explain their conduct by an artificial distinction that they make between “prayer” and “singing”, and by defining our prayer as singing. In that manner, they seek to evade their responsibility and obligation under the law and in accordance with their commitment to the High Court of Justice.

(b) We pray only from prayer books, and in accordance with the standard Ashkenazic rite. We pray in a group, with a prayer leader. The service includes, among other things, pesukei d’zimra [preliminary blessings and psalms], which include the “Song of the Sea”, as well as prayers like “tzur yisrael” and “aleinu”. On Rosh Hodesh, the service also includes hallel. These prayers are recited aloud [affidavit of the Petitioners submitted in support of their request in MHCJApp 32/89].

 

The Petitioners also appended pictures to the said affidavit, which depict the events of Rosh Hodesh Av. The pictures show a group of women sitting on the Western Wall Plaza while female ushers try to lift one of the women; the women of this group lying of the Western Wall Plaza and female ushers trying to lift one of them; a women being removed from the Plaza by a female usher; a “hareidi” woman using her bag to fight with one of the women sitting on the Western Wall Plaza.

9.         The Respondents explained what occurred on Rosh Hodesh Sivan, Tammuz and Av as the result of the Petitioners breaching the interim agreement reached in the hearing of 20 Iyar 5749 (May 25, 1989):

                        7.         (a) …

(b) When the petition for an interim order was heard by the honorable Court, the parties agreed that until the end of the legal proceedings, the Petitioners would conduct themselves in accordance with the local custom. And because the petition focused upon a specific issue, the notice to the Court emphasized the reference to that issue, i.e., prayer by women while reading the Torah and wearing tallitot.

(c) It would appear that the Petitioners inferred from this that they had been granted permission to breach the local custom in regard to everything not included in their petition, and from that point onward, when they came to pray on Rosh Hodesh, they began to sing.

In doing so, the Petitioners knowingly deviated from the local custom, while claiming to act in accordance with the customs of their congregations [the State’s response of Aug. 15, 1989 in MHCJApp 312/89].

 

            The Respondents also provided a different description of the events of Rosh Hodesh Sivan, Tammuz and Av. Rabbi Getz addresses what occurred on Rosh Hodesh Sivan 5759 (June 4, 1989), in his aforementioned letter to the Director of the High Court of Justice Department:

Rosh Hodesh Sivan 5749 (June 4, 1989) saw a recurrence of the matter of provocative singing and the opposition of the worshippers, and somehow I got the situation under control [Appendix R/B of the Respondents’ response of April 8, 1990).

            The events of Rosh Hodesh Tammuz 5749 (July 4, 1989) are described by Rabbi Getz in his letter to the Director General of the Ministry of Religion of 1 Tammuz 1989 (July 4, 1989), which was the day of the event:

This morning, the first day of Rosh Hodesh Tammuz, a group of the Reform women, headed by Mrs. A. Hoffman, arrived. It was a relatively smaller group than we expected, and comprised some 40-50 women.

Before that, I gave the male and female ushers that we mustered for the emergency situation specific instructions … I also fully coordinated with the police commander Mr. Y. Must, and I also pressed upon the male and female worshippers not to intervene in any way, and to leave the matter exclusively to me. When the said group of women arrived on the scene at about 7:00 AM, each was given a copy of my request, in Hebrew on one side, and in English on the reverse, in which the worshippers were asked not to deviate from “the tradition of generations of our people in any way’ [Appendix R/2(a) of MHCJApp 312/89 – M.E.].

They approached the wall undisturbed, and began to pray. But now and again they began to sing, and the ushers politely asked them to be quiet, and here and there, a few women voiced their objection. But when they began singing very loudly, and were unwilling to stop, I instructed the ushers to remove them – without especial force – from the Plaza. When the said worshippers saw that, they calmed down, finished their prayers quietly, and went up the steps to the Jewish Quarter to read the Torah, etc. I should point out that Mrs. A. Hoffman constantly ran from one woman to another, apparently trying to incite them, but without great success.

In summary – and the police force commander agrees – there was no need to resort to force, and it would appear that this will be the proper approach until the legal issue is decided. And so, thank God, we have managed to maintain order without causing any physical or emotional injury [Appendix R/2 to the Respondents’ response submitted in MHCJApp 312/89 on Aug. 15. 1989].

            It would also be appropriate to quote the instructions that Rabbi Getz gave to the ushers in preparation for Rosh Hodesh Tammuz:

 

                                    It is your task today:

  1. To prevent any disturbance of any woman who comes to pray at the Wall, and to protect her.
  2. To prevent any breach of public order by anyone.
  3. In accordance with section 4(c) of the Western Wall Regulations (5741), also to physically remove from the Western Wall Plaza any person when you receive such instruction from the undersigned [Rabbi Getz – M.E.] [Appendix R/2 (b) of the Respondents’ response submitted in MHCJApp 312/89 on Aug. 15, 1989].

 

The serious events that transpired on Rosh Hodesh Av 5749 (Aug. 2, 1989) are described by Rabbi Getz in his letter to the Director of the Ministry of Religion of 1 Av 5749 (Aug. 2, 1989), which was the day of the events:

 

This morning, a group of the Reform women arrived that was larger than usual, comprising some 70-80 women. They were preceded by representatives of Israeli and foreign television, as well as photographers and reporters.

Upon their arrival, they were asked by the ushers to maintain order and respect the local custom. Our male ushers stood beside the mehitza, on the men’s side, in order to prevent any outburst by the worshippers.

The Reform women began their prayer quietly, and did not create any disturbance. But when they broke out in song, there was a general cry for silence, and I sent a few of the female worshippers in the women’s section to speak to them and politely ask them to preserve the holiness of the place.

For a moment, the singing ceased, but then they resumed it loudly. After they were warned to stop, the ushers began to remove them. Then, at a prearranged signal, they all sat down at once on the floor, and amplified their singing in a very provocative manner.

I was then forced to order their physical removal, one at a time, while the ushers blocked the entrance to prevent their return to the site. The picture made me very very uncomfortable, but they left me no choice. I would like to praise the readiness of the police, under the command of Inspector Markovich, although I saw no need to activate them (Must was on vacation).

In summary, I see an escalation in the phenomenon, and I would recommend that we now consider not permitting their entry to the area, so as not to see a recurrence of today’s difficult scene [Appendix R/3 of the Respondents’ response submitted in MHCJApp 312/89 on Aug. 15, 1989].

 

            And this is what was stated in Rabbi Getz’s letter to the Director of the High Court of Justice Department:

 

… On Rosh Hodesh Av (Aug. 2, 1989), we reached the nadir of disrespect for the holiness of the Western Wall. As befits destruction,[1] I foresaw what might happen, mustered a reinforced staff of ushers, coordinated with the police, and also sent a written note, in Hebrew and in English, in which I greeted the arriving women with a cordial blessing and a request that they not breach the public order. I actually begged them that they act with reserve, and not bring about any provocations.

Indeed, at first they began to pray quietly, but suddenly they began singing loudly, and despite my repeated requests, they completely ignored them and sang even louder.

Of course, on the other hand, the expected reaction followed, and in fear of severe developments and violence, I instructed the ushers to remove them. Then, by a prearranged signal, they all sat down at once on the floor, arm in arm, singing loudly.

Despite the stinging pain that I feel to this very day, I instructed that they be dragged out right in front of the many cameras that, as usual, had been invited in advance [Appendix R/B of the response of April 8, 1990].

 

            A similar picture of the events of Rosh Hodesh Av is presented in Mr. Zevulun Orlev to the Director of the High Court of Justice Department of 2 Av 5749 (Aug. 3, 1989). As stated in the letter:

 

… the women breach the rules for prayer and conduct of the place by intentional, organized  and  flagrant singing.

On Rosh Hodesh Av (Aug. 2, 1989), they went even further, coming in a large, organized group, accompanied by politicians and the media (newspaper, radio and television) that were invited by them.

We see that as a flagrant breach of the decision of the High Court of Justice, which ruled that the prayers be conducted in accordance with the usual customs of the place, and I therefore request that legal steps be taken for breach of the High Court’s decision and contempt of court.

In addition, I respectfully inform you that, in light of the recurring breaches of the local custom by the group, we are considering not permitting them to enter the Plaza as an organized group, but only as individuals [Appendix R/4 of the response submitted in MHCJApp 312/89 on Aug. 15, 1989].

 

10.       At the end of the hearing held on 20 Av 5749 (Aug. 21, 1989) in regard to the Petitioners’ request for an interim order, as described above, and in light of the described events, this Court ruled as follows:

 

In regard to the interim order, the existing situation should continue without any change either way. Any change in the manner of conducting prayer can result, if at all, only following a legal ruling by this Court, following a hearing of the petition on the merits. Therefore, the Petitioners shall be permitted to pray at the site in accordance with the local custom, as dictated by the Rabbi of the Wall. This means, inter alia, that their prayers will be conducted without talittot or Torah scrolls. As for singing aloud at the site, this, too, must be conducted – as long as the matter is not addressed on the merits by this Court – in accordance with the said local custom. The Petitioners’ prayers, in accordance with the local custom, must be permitted by the Respondents, who must ensure appropriate security arrangements for properly carrying it out [decision in MHCJApp 312/89].

            Following that decision, peace returned to the women’s section, and the Petitioners’ prayers – in accordance with the local custom – preceded peacefully. Rabbi Getz refers to this in the aforementioned letter of 22 Adar 5750 (March, 12, 1990) to the Director of the High Court of Justice Department:

 

The lowering of tensions began on 19 Av 5749 (Aug. 20, 1989) (should be: 20 Av 5749 (Aug. 21, 1989) – M.E.), with the issuance of the order by the honorable Supreme Court that they must observe the instructions of the Rabbi of the Wall, and not change the local custom.

With the exception of a certain attempt at disturbing the peace on Rosh Hodesh Elul 5749 (Sept. 1, 1989), there has been absolute calm, and large or small groups of women arrive every Rosh Hodesh, without prior notice to the press, pray quietly at the Wall like all daughters of Israel, and depart, and they are made welcome [Appendix R/B of the response of April 8, 1990].

 

            This is also what can be understood from the letter of 38 Kislev 5750 (Nov. 29, 1989) from Mr. Zvi Hoffman, Director of the Holy Places Department in the Ministry of Religion, to Mr. Zevulun Orlev:

 

This morning, Rosh Hodesh Kislev, a group of the Reform women, numbering about 100 women, arrived at 7:20 AM. The group was relatively larger than usual. Representatives of the media, as well as photographers and reporters, preceded them. Upon their arrival, they were asked by Rabbi Getz’s secretary, Mr. Z. Hecht (as Rabbi Getz was absent due to illness), to maintain order and respect the local customs.

They approached the Wall undisturbed, and began praying without any singing and without raising their voices. They finished their prayers after about 20 minutes, and went up the steps to the Jewish Quarter for the reading of the Torah, etc.

In conclusion, there was no need to make recourse to the police contingent or the ushers that we had requested. This only goes to show that their prayers can be conducted in accordance with the local custom without any problems [Appendix R/C of the response of April 8, 1990].

 

HCJ 2410/90

11.       The facts of this petition – although they raise the same issue – are entirely different from the facts of the petition in HCJ 257/89. Petitioners 1-6 are Jewish women who are residents of the United States. The Petitioners founded Petitioner 7 – the International Committee for Women of the Wall – and they claim to “represent a group of at least 1000 Jewish women who are members of the primary Jewish movements, including the Orthodox, Conservative, Reform, and Reconstructionist” (para. 1 of the petition).

            As for the manner of prayer of the Petitioners and the group that they represent:

13. As for the character of the prayer of this group, because the women are members of different movements, although primarily Orthodox, they decided to adopt the rule of following their common denominator, that is, prayer that is acceptable to all the movements.

14. In light of that decision, this group prays in accordance with Orthodox halakha, and it alone, inasmuch as this does not offend the religious views of any of its members, and therefore they conduct their prayer services in accordance with the accepted halakha of the Orthodox religious Jewish world.

15. In light of that, in their joint prayer as a group, the Petitioners are careful:

            (a) Not to refer to themselves or consider themselves a minyan for any and all purposes.

            (b) Not to recite those prayers that are permitted only in the context of a minyan, such that they do not recite the kaddish, they do not say the “barechu …”, there is no repetition of the shemoneh esreh, etc.

            (c) They do not hold a Torah reading service, and do not bless or “go up” to read from the Torah.

16. In practice, the Petitioners conduct individual prayer, with all its characteristics and restrictions, together, with the addition of two elements that are halakhically permitted:

            (a) They wear a tallit during their prayers;

            (b) They read from a Torah scroll that they bring with them [Petitioners’ summary of pleadings of Feb. 27, 1991].

 

            As for the background of the petition, it states as follows:

  1. In their efforts to forge a strong, deep tie with Jerusalem, the Women of the Wall brought a Torah to Jerusalem towards the end of 1989, and left it in Jerusalem, inter alia, so that so that they would be able to read from it in the course of their prayers during their recurring visits.
  2. The Women of the Wall requested to pray at the Wall, as aforesaid, on Rosh Hodesh Kislev (Nov. 29, 1989), while wearing tallitot and reading from the Torah that they brought, as stated above.
  3. When the Women of the Wall were informed that Respondent no. 2 (Rabbi Getz, the Director of the Western Wall – M.E.)  might try to prevent their praying as aforesaid, as he did in regard to a group of Israeli women whose petition is pending before this honorable Court in file 257/89, Petitioners 1-6 postponed the intended date of prayer to Thursday, Nov. 30, 1989, and on Nov. 26, 1989, they wrote to Respondent no. 2 and to the representative of Respondent no. 3 (the Commissioner of the Israel Police – M.E.) in the Old City, while sending a copy of their request to Respondents no. 1 (the Minister of Religion – M.E.) and no. 4 (the Attorney General – M.E.) … so that the Respondents could take the necessary steps in order to prevent a disturbance of their intended prayers, as aforesaid. The letters were delivered to their recipients no later than Nov. 28, 1989.

                        12. At the intended time for their prayers, as aforesaid, the Women of the Wall arrived at the Western Wall Plaza, carrying tallitot and the Torah scroll, but the representative of Respondent no. 1 prevented their entry to the Western Wall Plaza, claiming that since they were women, they are not permitted to wear tallitot or read from the Torah, in accordance with a decision of Respondent 2 … Petitioners 1-6 were informed that their entry into the Western Wall Plaza and their prayers there would be prevented by force [paras. 4-6, and 12 of the petition in HCJ 2410/90].

            In addition, the Petitioners emphasize that:

                              Upon the preventing of their entry to the Western Wall Plaza, as aforesaid, the group of Petitioners and those that accompanied them dispersed that day, Nov. 30, 1989, peacefully and quietly, making no attempt to cross the security barrier outside the Western Wall Plaza on the Dung Gate side, and in no case, neither in the past nor following the submission of the petition, did the Petitioners request to conduct prayers at the Wall in accordance with their custom, due to the position of the Respondents, as aforesaid.

                              … and their prayers did not cause any breach of public order, inasmuch as they were never conducted at the Wall, beside it, or in the Plaza facing it [paras. 17, 20 of the Petitioners’ summary pleadings of Feb. 27, 1991].

 

Pleadings

Petitioners’ Pleadings

12.       The Protection of Holy Places Law, 5727-1967, states as follows:

                              Protection of Holy Places

  1. The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places.

Offences

  1. (a) Whosoever desecrates or otherwise violates a Holy Place shall be liable to imprisonment for a term of seven years.

(b) Whosoever does anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places shall be liable to imprisonment for a term of five years.

                              Saving of Laws                                                     

  1. This Law shall add to, and not derogate from, any other law.

Implementation and regulations

  1. The Minister of Religious Affairs is charged with the implementation of this Law, and he may, after consultation with, or upon the proposal of, representatives of the religions concerned and with the consent of the Minister of Justice, make regulations as to any matter relating to such implementation.

 

            When the original petition in HCJ 257/89 was submitted, the Regulations for Protection of Holy Places to the Jews, 5741-1981, promulgated under sec. 4 of the Protection of Holy Places Law, stated, inter alia:

 

                                    Definitions

  1. In these Regulations:

Holy Places – The Western Wall and its Plaza, including any structure and any aboveground or underground passage the entrance of which is from the Plaza; …

The Director – The person appointed by the Minister of Religion, on the proposal of the Chief Rabbis of Israel, to be the Director in Chief, or the Director of a specific Holy Place.

                                    Conduct

  1. (a)  In the area of the Holy Places, and subject to what is set out in sub-regulation (b), the following is prohibited:
  1. Desecration of the Sabbath and Jewish holidays;
  2. Improper dress;
  3. Placing kiosks or stands;
  4. Providing religious services of any kind without the permission of the Director;
  5. Distributing publications without the permission of the Director;
  6. Making speeches, announcements aloud, carrying placards or signs, without the permission of the Director and in accordance with his conditions;
  7. Panhandling or accepting contributions, with the exception of placing charity boxes in places designated  by the Director for purposes that he has established;
  8. Slaughtering;
  9. Eating, drinking or holding a celebration outside of places designated for that purpose by the Director;
  10. Smoking;
  11. Sleeping outside of places designated for that purpose by the Director;
  12. Entrance of animals.

                                                   (b) …

                                    Restrictions upon Photography in the Western Wall Plaza

Powers of the Director

  1. (a)                          The Director may, with the consent of the Chief Rabbis of Israel or the Minister of Religion, give instructions to ensure the efficient enforcement of the prohibitions set forth in Regulation 2.

(b)     Any person present in the area of the Holy Places must obey the lawful instructions of the Director.

(c)                          The Director may remove from a Holy Place any person who interferes with the carrying out of his function or who transgresses any of the provisions of Regulations 2 or 3.

 

                                    Punishment

  1. Anyone who transgresses any of the provisions of Regulations 2 or 3 is liable to imprisonment for a term of six months or a fine in the amount of 500 shekels.

 

            Inasmuch as that was the wording of the Regulations at the time of the submission of the original petition in HCJ 257/89, the Petitioners’ primary claim in that petition was that:

The Protection Regulations do not prohibit women’s prayer in the women’ section, and do not prohibit women from reading the Torah or wearing tallitot [para. 3.b of the original petition].

 

            They further argued that the Director of the Western Wall and the Chief Rabbis are not authorized “to impose prohibitions or promulgate decrees that are not expressly stated in the Protection Regulations, and if they did so, they exceeded their authority” [paras. 4.5b-5.b of the original petition]. The Petitioners therefore argued that they should not be prevented from praying at the Western Wall while reading the Torah or wearing tallitot, and that the Israel Police must ensure their right to do so.

13.       On 4 Tevet 5750 (Jan. 1, 1990) – prior to the State’s submission of its affidavit in response to the petition – the State informed the Court of the promulgation of the Regulations for the Protection of Holy Places to the Jews (Amendment), 1989, which amended Regulation 2, above, as follows:

                                    Amendment

  1. In Regulation 2(a) of the Regulations for Protection of Holy Places to the Jews, 5741-1981, following section (1), shall come: (1a) Conducting a religious ceremony that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place.

 

            As noted, in light of the amendment of the Regulations, the Petitioners in HCJ 257/89 submitted an amended petition.

14.       In their amended petition, the Petitioners argued extensively against the validity of the said amendment to reg. 2 of the Regulations for Protection of Holy Places to the Jews. The Petitioners argued that the new amendments are void ab initio, or in the alternative, should be voided, inasmuch as they suffer from various flaws: extreme unreasonableness, unlawful discrimination, extraneous considerations, improper purpose, deviation from authority, and infringement of the principles of justice (para. 14 of the amended petition; para. F of the summary pleadings of the Petitioners in HCJ 257/89).

            They further argued that their praying while wrapped in tallitot and reading the Torah does not fall within the ambit of the prohibition established under the new regulations. The reasoning grounding this claim is that prayer in the manner described is not contrary to the “local custom” [para. 6 B (a) of the amended petition; para. 7 of the Petitioners’ summary pleadings].

15.       The Petitioners in HCJ 2410/90 essentially repeated the arguments in HCJ 257/89, while noting the factual differences between the two petitions.

            In their petition, the Petitioners especially emphasized their strict observance of halakha. They further emphasized the fact that they – as opposed to the Petitioners in HCJ 257/89 – had not caused a disturbance of the peace [paras. 18-20 of the Petitioners’ summary pleadings in HCJ 2410/90].

 

The State’s Pleadings

16.       In its response, the State emphasized that the Petitioners’ right of access to the Western Wall and their right to pray there are not disputed. What it forbidden to the Petitioners is praying in their own manner, that is, arriving as a group, wrapped in tallitot, carrying a Torah and reading from it. The reason for this prohibition is that when the Petitioners conducted such prayer, it caused serious disorder in the Western Wall Plaza, disturbance of the peace, and a breach of appropriate decorum [para. 3 of the State’s summary pleadings of Feb. 24, 1991].

            By virtue of the authority vested in him under the Protection of Holy Places Law, the Minister of Religious Affairs promulgated the Regulations for Protection of Holy Places to the Jews, after conferring with the Chief Rabbis of Israel, and with the consent of the Minister of Justice, as required under sec. 4 of the Law. Those Regulations established arrangements intended to realize the purpose of the Law, namely: the avoiding desecration or other harm to the holy places, and avoiding any other offense to the sensitivities of the praying public in regard to the place. These arrangements ensure that public order and appropriate decorum will be preserved in the holy place.

            As part of the said arrangements, reg.2 establishes a list of prohibited actions in the area of the holy places. Among the prohibited acts is a prohibition upon “conducting a religious ceremony that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place” – reg. 2 (a) (1a) [paras. 6-7 of the State’s summary pleadings of Feb. 24, 1991].

            In order to carry out the obligation to preserve public order and decorum in the Holy Places, there is a principle of strict preservation of the status quo in the Holy Places. In the Declaration of Independence, the State of Israel affirmed that it would ensure freedom of religion, and that it would “safeguard the Holy Places of all religions”. That promise was kept, in practice, by strict preservation of public order and decorum in all the Holy Places, and by the preservation of the “status quo” in those places. That policy of the Government of Israel is also expressed in the Protection of Holy Places Law, and in sec. 3 of Basic Law: Jerusalem, Capital of Israel [paras. 1-15 of the State’s summary pleadings of Feb. 24, 1991)].

            It is therefore contended that the regulation that is the subject of the petitions is valid, and that the manner in which the Petitioners conducted their prayers at the Wall should be examined in its light. The State further argues that for the purpose of the application of the regulation’s provisions to the Petitioners, the question that must be asked is whether prayer in the manner performed by the Petitioners has ever been the local custom at the Western Wall. The answer to that question is no, and prayer in the manner performed by the Petitioners at the Western Wall constitutes an offense to the sensitivities of the praying public in regard to the place [paras. 19-22 of the State’s summary pleadings of Feb. 24, 1991].

            The State referred to the opinions provided by the Chief Rabbis in the matter before us, in which they expressed their extreme opposition to the conducting of prayer services in the manner of the Petitioners. According to the State, these opinions were given by virtue of the authority granted to Chief Rabbis as stated in sec. 4 of the Protection of Holy Places Law, which requires consultation with the representatives of the relevant religions. Thus, sec. 4 of the said Law states that the Minister of Religion may promulgate regulations suggested by the representatives of the relevant religions [para. 23 of the State’s summary pleadings of Feb. 24, 1991].

 

The Parties’ Pleadings in regard to the Court’s Jurisdiction

17.       Initially, the State did not raise any objection to the jurisdiction of this Court over the subject of the petition at bar. Respondents 9-12 in HCJ 257/89 – the Shas Movement, Rabbi Miron, the Degel HaTorah Association, and Rabbi Ravitz – claimed that “the subject matter of the petition … is not within the jurisdiction of the honorable Court due to the provisions of sec. 2 of the Palestine Order in Council (Holy Places), 1924” [para. 7(a) of the affidavit of Rabbi Miron of Aug. 17, 1989, and the affidavit of Rabbi Ravitz of Aug. 18, 1989].

            The State explained its reasons for not raising the issue of the jurisdiction of this Court in the summary pleadings submitted on 10 Adar 5751 (Feb. 24, 1991). The petitions address the arrangements established in the Regulations for Protection of Holy Places, by virtue of which the Petitioners were prevented from conducting their prayers at the Wall in their manner. The Petitioners in HCJ 257/89 responded at length and in detail to the claim of lack of jurisdiction of the Court [Chapter B of the Plaintiff’s summary pleadings of Feb. 24, 1991]. We do not see any need to address this at length for the purpose of the matter before us.

            The Palestine Order in Council (Holy Places), 1924, does not deprive the Court of jurisdiction to adjudicate in regard to the preservation of public order and the prevention of criminal offences, as established in the Law and the Regulations for Protection of Holy Places to the Jews. In HCJ 222/68, Mot 15/69 National Circles Association v. Minister of Police, IsrSC 24(2) 141 (hereinafter: the National Circles case), the majority held that while the Order in Council does deprive the Court of jurisdiction in matters of freedom of worship in the Holy Places, it does not deprive it of jurisdiction        in regard to freedom of access to the Holy Places, the duty to ensure the prevention of desecration of the Holy Places, or the duty to protect the sensitivities of the members of the various religions towards their Holy Places, which are the matters addressed by the Regulations in the matter at bar. This petition treats of the freedom of access of the Petitioners to the Western Wall, the danger of desecration of the site, and a possible affront to the sensitivities of the worshippers, and this Court holds jurisdiction over the matter of the petition.

 

The Subject before the Court in Halakha

18.       The questions that we must decide concerns prayer and its rules, which are matters deriving from the world of halakha. I would not presume to rule on any of the matters before us from the perspective of halakha. I am no halakhic decisor, nor a halakhic decisor’s son[2]. I probe the words of scholars and decisors, and contemplate the wisdom and thoughts of sages and philosophers, and express my thoughts on the matter. This enquiry is appropriate, inasmuch as the parties presented lengthy arguments on this matter from the halakhic perspective, in particular, by submitting the opinions of Prof. Pinhas Schiffman (in HCJ 257/89), Prof. Shmuel Shilo (in HCJ 2410/90), and Prof. Eliav Shochetman, who first submitted an opinion in HCJ 257/89, and later submitted an opinion in HCJ 2410/90. Out of respect for them,[3] I will also say a few words on the subject. This examination is necessary in order to understand the subject before the Court, which relates to intrinsically halakhic questions that are grounded in the world of halakha and its values. It is only proper, therefore, that we briefly address them as they are expressed in halakha, before delving into the legal aspects of the issues raised by the petitions.

           

Social Changes in the Status and Role of Women

19.       The subject at issue –prayer by women, their obligation and exemption, and additional, related subjects – have long been a subject of halakhic and scholarly literature. The discussion of these issues has intensified in this generation, against the background of social changes in the status of women that I will discuss below, and many books and articles have been written on the subject, some of which I will cite.

            The problem of the status of women in halakha in the face of changes in women’s social involvement, status and education, and the roles that women fulfil in daily life – including religiously observant women – is a central subject in the investigations of contemporary halakhic decisors and philosophers. We, too, have addressed this question at length in the decisions of this Court (see: ST 1/81 Nagar v. Nagar, IsrSC 38 (1) 365 (hereinafter: the Nagar case); HCJ 153/87 Shakdiel v. Minister of Religious Affairs, IsrSC 42 (2) 221 [http://versa.cardozo.yu.edu/opinions/shakdiel-v-minister-religious-affairs] (hereinafter: the Shakdiel case)), in regard to the study of Torah by women in the context of our decisions concerning the equal obligation of a father and a mother to educate and raise their child (the Nagar case; and see the Shakdiel case, at p. 265), and in regard to the right to vote for and be elected to public office (the Shakdiel case). Following a detailed examination of those two issues, we concluded (ibid., at p. 268):

 

With respect to the Torah study by a woman, there is an express rule in the Talmud, generally upheld in the halakhic codes, that a woman is not only exempt from studying the Torah but even forbidden to do so, this rule being derived from the Biblical verse "and you shall teach them to your sons", and not your daughters. But the profound socio-ideological changes experienced in latter generations, has radically altered also the outlook on the issue of women studying Torah, and it has been determined that not only is there no longer any prohibition, but women are even obligated to study Torah; and not only do they study it for themselves, but they even teach it to the sons of others. And if this is the outcome of the controversy concerning women studying the Torah, then the issue of the election of women to public office should have the like outcome, a fortiori, since most rabbinical scholars are of the opinion that the matter is not expressly prohibited in the Talmudic halakha, and some of the codifiers and Rishonim differed from Maimonides' opinion that only a man may be appointed to all public office. And if so radical a departure as abrogation of the grave prohibition against women studying the Torah could result from social and ideological changes, why not a much less radical departure that permits a woman to serve on a religious council? Should we not see Rabbi Malka's assessment of the contemporary situation that obligates women to study Torah, i.e., that “in current times, when women play a large part in all walks of life, penetrate the depths of the secular sciences and fill the benches of the universities, run offices and own businesses, and have a hand and a voice in the leadership of the state and in political affairs”,  as constituting decisive reason to permit modern women to take part in developing and maintaining religious services in their place of residence, by serving on the council charged with implementation of the task? At a time when women actively take part in diverse educational, cultural, social and political pursuits, is not a woman's preclusion from serving on a religious council, in particular, a harsh insult to her dignity and standing, precisely as a religious woman? She may discharge a public function in all areas of social, cultural and political life, but not in a public body that caters to her religious way of life? Is the native-born to be on the earth and the foreign-born in the highest heavens? (TB Bava Kama, 42a).

 

            And we went on to say (ibid., at p. 269):

It need scarcely be said that in the world of the halakha we do not discuss purely legal-halakhic questions, in the sense of juridical rights and duties. Rather the ideological and normative values of Jewish religious life are inherent in and inseparable from the subject of the discourse. For we are taught "do not read ways of behaviour [halikhot], but legal rules [halakhot] (cf. TB Megilla 28b) and by way of paraphrase we could equally well say, "do not read legal rules [halakhot] but ways of behavior [halikhot], since legal rules and ways of behavior come inextricably linked. We have seen clearly reflected - throughout the scholarly passages here cited - in addition to the legal exposition of our subject, also lengthy and detailed discussion of the conceptual implications of Jewish family life; the roles of the father and the mother, of the woman and the man, domestic harmony, the concept of modesty, and so on. All this because examination of these concepts is essential to the juridical-halakhic ruling on our subject. However, these important concepts must be addressed according to both their original significance and their contemporary setting, as we have learned from the passages quoted. Take, for example, this last concept [of modesty - Ed.] and its deep significance in Jewish life, for all persons, as stated by the prophet Micah:  “You have been told, man, what is good and what the Lord requires of you - only to do justice, and to love mercy, and to walk modestly with your God. (Micah 6:8; and see TB Makkot 24a).

 

            In this connection, we quoted (ibid.) Rabbi A. Lichtenstein, the head of the Har Etzion Yeshiva in Alon Shevut in Gush Etzion (in his article published in The Woman and Her Education (Emunah, 5740) 158):

 

 The question is, to what extent do we want to perpetuate the original position we find in the halakha or to modify it by legitimate halakhic means, having regard to historical developments. This is a question of outlook affecting not only our present problem but also many others, such as the sabbatical year, the transactions permit [allowing interest-bearing loans – trans.], and so on. When we circumvent the halakha, by halakhic means of course, should we say that the halakha wanted one thing then and now wants another? Or does the halakha still require the same today, except that we cannot meet its standard? To discuss this problem we must consider not only the specific question on the agenda but also the normative ramifications of the problem. When we seek to circumvent the halakha today, by legitimate means, we must ask whether or not it is for attaining a meaningful purpose, religiously and normatively speaking. There is a difference between using a circumvention in order to feed a number of poor women, as in the example of Rabbi Tarfon given in the Jerusalem Talmud (TB Yevamot, 4:12), or so that someone can gain a few extra pounds.

 

As for the problem of changing or reforming the status of women, if it is feasible to build a sounder and more perfect society, one that is mindful of the values of the Torah and the halakha, then it must be contended that what once was, was suited to those times, but today there is reason to relate to contemporary reality detached from the past. It is impossible to bring back the past – that is not realistic. It is not possible to revive the simplistic naiveté of women that was then. Hence it is needed to replace the Ze'ena Ure'ena,[4] with a tractate of the Mishna, such as Hullin, to teach women more and lend their lives a content closer to that of men, so that women can derive benefit from the existing reality. But to have neither the one nor the other, that certainly is inconceivable. If there is to be neither innocent belief as in past times, nor serious study of the Torah, women will fall between two stools, and that clearly will not be good.

 

            We, therefore, further stated (the Shakdiel case, pp. 269-270):

Such is the way of the halakha from ancient times. On this score we wrote elsewhere (M. Elon, Jewish Law – History, Sources, Principles, 3rd ed., (Magnes, 1978), p. xv – M.E.): “... The history of the Jewish nation is reflected in the history of Jewish law, its institutions and subject matter. For the development of Jewish law was intertwined with the problems that arose in reality, the law and reality reciprocally influencing each other. The halakhic scholars and the community leaders faced a twofold task: on the one hand, a continuing concern to create and develop the Jewish law, and on the other hand, a great responsibility to preserve the spirit, purpose and continuity of the ideas that were central to each legal institution. The performance of this twofold task - to find and determine legal solutions that were founded in the past and also served the many needs of the current generation – is clearly evident to anyone who studies the history of Jewish law in its different periods...” (and see, ibid., at p 45 – M.E.).

 To the above end, the system of Jewish law has drawn upon its own legal sources – those very sources recognized by the halakha as means to create and develop the rules of the system (ibid., at pp. xv and 45 – M.E.).

 

            Indeed, that is the way and the world of halakha, and every problem or issue that confronts it as the result of a changing societal and social reality requires in-depth examination and consideration of the halakhic rules, principles and values in order to arrive at an appropriate, correct solution by means of the creative sources of halakha – both in terms of the resolution of the problem and in terms of the spiritual world and values of the halakhic system. The more fundamental and comprehensive the issue, the greater the need for in-depth, responsible examination. And so it is, to no small extent, in regard to the issues presented by the petitions at bar, which we will now address.

20.       In terms of halakha, the questions raised by the petitions concern the rules of prayer: one – is a woman permitted to wear a tallit and tziztit; two – are women permitted to carry a Torah scroll and read from it. These two subjects must be preceded by the examination of an additional question, that of the manner for conducting public prayer by women.  The latter question is particularly emphasized by the Petitioners in HCJ 2410/90, who take care that their prayer groups are “in accordance with the accepted halakha of the Orthodox religious Jewish world”, “not to refer to themselves or consider themselves a minyan for any and all purposes”, “not to recite those prayers that are permitted only in the context of a minyan”, etc. (see para. 11, above).

            As we noted at the outset, many instructive things have been said and decided in regard to these and other related issues in the Talmudic literature, commentaries, and responsa literature, and in the writings of scholars. These issues have been increasingly discussed of late, due to the changes in the social reality and the status and role of women in that reality, which we referred to at beginning our examination of the subject before us in the world of halakha. This is not the place for a lengthy examination of these matters, and we do not pretend – nor do we see a need – to conduct an exhaustive examination of them. We will only briefly address some of the fundamental matters regarding the issues before us.

            It is worth noting the interesting phenomenon that a significant part of the halakhic literature on these issues is to be found in books and articles published in English (see: Rabbi Avraham Weiss, Women at Prayer: A Halakhic Analysis of Women's Prayer Groups; Rabbi Moshe Meiselman, Jewish Women in Jewish Law; Rabbi Prof. Eliezer Berkovits, Jewish Women in Time and Torah; Rabbi J. David Bleich, “Survey of Recent Halakhic Periodical Literature,” 14 (2) Tradition 113 (1973); Rabbi Saul Berman, “The Status of Women in Halakhic Judaism,” 14 (2) Tradition 5 (1973)  ; Rabbi Aryeh Frimer, “Women and Minyan,” 23 (4) Tradition 54 (1988); etc., to which we will make reference below).

            This phenomenon, which is uncommon in regard to the overwhelming majority of other halakhic subjects, derives from the fact that interest – from its inception and to this day – in the application of these issues has largely been among the various Jewish congregations in the United States. This, too, will be of importance in deciding the petitions before us from a legal perspective.

 

Prayer in a “Minyan”

21.       Women are required to pray, but they are not obligated to public prayer (TB Berakhot 20a-b; Maimonides, Mishneh Torah, Laws concerning Prayer 1 (b); Shulhan Arukh, OH 106, 1-2, Magen Avraham, ss. b, ad loc.; Responsa Shaagat Aryeh 14. There is a difference of opinion as to whether women are obligated to pray three times a day – arvit, shaharit, and minha – or only for some of them. In the opinion of one of the accepted contemporary decisors, Israel Meir of Radun, in his book Mishna Berura, women are required to pray shaharit and minha (see: Mishna Berura on Shulhan Arukh OH 106 b). We will address the reason why women are exempt from public prayer below, in our discussion of time-bound positive commandments.

            According to halakha, fulfillment of the obligation of public prayer requires a “minyan”, i.e., ten men, and “acts of sanctification” – i.e., prayers in which God is sanctified, such as kaddish, barekhu, kedusha, and the repetition of the amida – are only performed in a minyan (TB Megilla 23b). Women are not counted for constituting a minyan of ten, as we shall explain below. A minyan of ten men is also required for additional things, such as the priestly blessing, a “zimun” of ten for the grace after meals, but there is disagreement among halakhic decisors as to the reason for this (see: Maimonides, Mishne Torah, Laws concerning Prayer 8, d-f; Shulhan Arukh, OH 55 a; and see in detail, Encyclopedia Talmudit, vol. 6, s.v. “Davar SheBikedusha”, pp. 714ff.).

            Women are not counted for the constitution of the required minyan, except for certain matters and for specific reasons, in the opinions of various halakhic decisors among the Rishonim and Aharonim.[5] By way of example, in regard to the reading of the Megilla and the recitation of the blessing “harav et rivenu” that follows the reading, see: Nachmanides, Milhamot HaShem, on Rif [Isaac ben Jacob Alfasi], Megilla 5:a; Meiri, Berakhot 47b; Ran [Rabbi Nissim ben Reuven Gerondi] on Rif, Megilla 19:b s.v. “Hakol Kesherin”, and Megilla 23a, s.v. “Hakol Olin Lamina Shi’va”; in regard to the public sanctification of God, see: Rabbi Reuven Margulies, Margoliot HaYam, Sanhedrin II, 6 and 27 and sources cited there; on the HaGomel blessing, see: Mishneh Berurah OH 29:3 and sources cited there; and see Encyclopedia Talmudit, v. 4, s.v. “Berakhot hahoda’ah”, pp. 318-319, etc.; and this is not the place to elaborate (see Rabbi A. Frimer’s detailed article “Women and Minyan,” 23 (4) Tradition 54 (1988), pp.54ff. and Rabbi Weiss’ book, Women at Prayer: A Halakhic Analysis of Women's Prayer Groups, pp. 13-56).

 

Time-Bound Positive Commandments

22.       In regard to the questions raised by the issue before the Court and the reasons behind them, we should address the halakhic principle that women are exempt from the performance of time-bound positive commandments, that is, commandments that must be performed at specified times (day not night, at specific times of day, on specific days or holidays, etc.: Mishna Kiddushin 1:7; TB Kiddushin 32a; Maimonides, Laws concerning Idolatry, 12:3, Laws concerning Tzitzit, 3:9; Shulhan Arukh OH 17:2. Before examining the reason for this halakhic rule, we should note that there are no few exceptions to this rule, and that women are obligated to perform a significant number of time-bound positive commandments, such as, reciting (and hearing) kiddush on the Sabbath, eating matzah on the first night of Passover, and others (TB Berakhot 20a-b; Kiddushin 34a; Sukkah 28a, etc.; and see Saul Berman, “The Status of Women in Halakhic Judaism,” 14 (2) Tradition 5, 1-13 (1973).

            Various reasons have been adduced for this exemption (see, e.g., Ellenson, Bein HaIsha LeYotzra, vol. I, 2nd ed. (Jerusalem, 1982), pp. 30 ff. (Hebrew) [English translation: Ellinson, Women & the Creator/Serving the Creator, v. I, 2nd ed. (Jerusalem, 1986)]; Rabbi Berman, above). The prevailing view is that the exemption is intended to make it easier for a woman to fulfill her role, rather than due to her lesser status relative to men. In the Jewish world, a woman’s central role is to maintain the home and family – “The king's daughter is all glorious within” (Psalms 45:14). Therefore, the Sages ruled that a woman is exempt from performing acts that must be performed at specific times in order not to make it more difficult to fulfil her primary role. This reason appears in halakhic literature as early as the Rishonim (see, for example, Abudarham HaShalem, Daily Prayers, chap.3, Benedictions for Mitzvot (Hebrew).

            We would note what was said by Rabbi Moshe Feinstein, one of the greatest contemporary decisors, in regard to our subject (Responsa Iggerot Moshe, OH Part IV, 49):

For women, in general, are not wealthy, and they are responsible for raising the children, which is the more important task before God and the Torah … women are, by nature, better suited to raising the children, and for this reason, they were relieved of having to study Torah and of the time-bound positive commandments. Therefore, even if the social reality were to change for all women, as it was for wealthy women of all times, and even if it would be possible to entrust the raising [of children] to some other men and women, as in our country – the rules of the Torah, and even of the rabbis, does not change.

 Rabbi Feinstein goes on to state:

We should be aware that this is not because women are of a lower state of holiness than men, as in regard to holiness, they are equal to men in regard to the applicability of the obligation to observe the commandments. For the commandments relate only to the holiness of Israel, and every verse of the Torah that speaks of the holiness of people was also directed to women, whether in regard to the giving of the Torah: “then you shall be my treasured possession … and a holy nation” was said to the House of Jacob, which refers to the women, and “speak to the children of Israel” refers to the men … and we find that every place that the Torah speaks of the matter of the holiness of Israel, it also speaks to the women. Therefore, women recite blessings in the form “who has sanctified us by His commandments”, just like men, even for commandments that the Torah does not require of them. And it is merely a matter of leniency, because God wished to make it easier for women as explained above, and not, God forbid, to denigrate. And as far as the relations between a man and his wife, there is no distinction between a man’s obligation to honor his wife, and a women’s obligation to her husband. And many women were prophets, and all the laws of prophecy apply to them as to men. And they were praised more than men in many regards, both in the Bible and by the Sages. And there is no denigration of their honor in any regard in that they were exempted from Torah study and from time-bound commandments, and there is no reason to complain about that. And it brings honor to the Torah to explain this again and again.

 

            We also find an enlightening explanation in the writings of Rabbi Isaac Arama, author of the Akedat Yitzhak and one of the great scholars and Torah commentators, who lived in the 15th century, in the generation of the expulsion from Spain (Akedat Yitzhak, Genesis, chap. 9):

By her two names – “isha” [Woman] and “chava” [Eve] – we learn that a woman has two purposes: One is shown by the name “Isha [Woman], for from ish [Man] was she taken”, and like him she can understand and learn matters of the intellect and piety, like the matriarchs, and the righteous women and prophetesses, as we learn from the plain meaning of eshet hayil [a woman of valor] (Proverbs 31).            The second is the matter of childbirth … and the rearing of children, as is shown by the name “chava [Eve], because she was the mother of all the living”.

A woman who cannot give birth is prevented from fulfilling her minor purpose [the second above], and for good or for ill, she remains like a man who does not bear children, of whom it is said [of a barren man and a barren woman]: “I will give them, in My House and within My walls, a monument and a name better than sons or daughters” (Isaiah 56:5), for the main progeny of the righteous is good deeds [Rashi’s commentary to Genesis 6:9, s.v. “eleh toldot noah”]. That is why Jacob was angry with Rachel when she said: “Give me children, or I shall die” (Genesis 30:2), to reproach her and teach her this important matter, which is that she would not be dead as a result of this mutual purpose, by having been denied offspring, just as it would be for him if he would not bear children.

            The primary purpose of a woman, as for her husband, is to “understand and learn matters of the intellect and piety, like the Matriarchs, and the righteous women and prophetesses”. The minor, secondary purpose is that of childbirth and rearing children. This hierarchy is interesting and instructive, and deviates from what was accepted among philosophers of that period [15th cent.] (also see Rabbi Weiss’ aforementioned book, at p. 115).

            A particularly instructive and unique example was provided by Rabbi Samson Raphael Hirsch, the founder of the Torah im Derech Eretz philosophical school, (in his commentary to the Torah, Leviticus 23:43):

Clearly, the reason for the exemption of women from time-bound commandments does not derive from their lesser importance, so to speak, or because the Torah did not find them appropriate, as it were, for observing those commandments.

It would appear to us that the reason for not obligating them to those commandments is that the Torah does not think that women are in need those commandments and their observance. The Torah assumes that our women have an extraordinary love and holy enthusiasm for their role in serving the Creator, which are greater than those of men. Men, who face trials in their professional lives that threaten their devotion to Torah, need regular encouragement and cautionary reminders in the form of the time-bound commandments. That is not so for women, whose lifestyle comprises fewer of such trials and dangers.

 

            23.       The “exemption” from the obligation to observe time-bound commandments – such as public prayer, blowing the shofar (on Rosh Hashana), shaking the lulav (on Succot) – does not, therefore, deprive a women of permission to observe the commandments, if she so desires, and in the opinion of many decisors, when a women performs a time-bound commandment, she is also permitted to recite the appropriate benediction that is said by men: “… who has sanctified us by His commandments and commanded us” (Tosafot on TB Kiddushin 31a, s.v. “delo makpidna”; Nachmanides, Novellae, TB Kiddushin 31a, s.v. “man d’amar li”; Ritba [Rabbi Yom Tov ben Avraham Asevilli], Novellae, TB Kiddushin 31a, s.v. “delo makpidna”; Ra’avya [Rabbi Eliezer ben Yoel HaLevi of Bonn], Part II, chap. 597). Indeed, as noted above, a women who attends public worship cannot be counted for the requisite quorum of ten. A reasonable, logical reason was, inter alia, given for this, which is that a person who is exempt from the performance of an obligation cannot be counted for the requisite, obligatory quorum for constituting a minyan of ten. For the very same reason, for example, a man who is exempt from the performance of commandments – e.g., when a man is required to mourn a relative who has died, that man is deemed an “onen” until the deceased is buried. In that period, he is exempt from the fulfilment of commandments, due to his sorrow and his involvement in making funeral arrangements. According to many halakhic decisors, because an onen is exempt from the obligation of prayer, he cannot be counted toward the quorum required for a minyan (Shayarei Knesset Gedolah, OH 55, Glosses of the Beit Yosef [Rabbi Joseph Karo] 4; Responsa Perah Mateh Aharon [Aharon ben Hayyim Avraham HaKohen Perahyah] Part I, 19; Rabbi Yaakov ben Yosef Reischer, Responsa Shevut Yaakov, Part II, 25). Therefore, women are counted as part of the quorum for a minyan for matters for which they are obligated for whatever reason (e.g., for the reading of the Megillah, the public sanctification of God’s name, etc. (see what we stated above, and see Weiss, ibid., at pp. 44-54)).

 

Women’s “Prayer Groups”

24.       Before the modern period, women did not generally go the synagogue for public prayer. In the modern period, women began attending synagogue services on the Sabbath and holidays. The prayers and the reading of the Torah were all conducted by men, who were in the men’s section of the synagogue, while the women sat in a separate women’s section, and fulfilled only a passive role, that is, they recited all of the prayers that were led and recited in the men’s section.

            The Petitioners in HCJ 257/89 ask to conduct prayers that are entirely constituted and led by women, as is customary in a minyan of men, i.e., including the recitation of kaddish, “barekhu”, and so forth. This is clearly in contradiction of the halakha. As opposed to them, the Petitioners in HCJ 2401/90 also wish to conduct prayer entirely constituted and led by women, but not as it is conducted in a minyan of men – i.e., with the recitation of kaddish, “barekhu”, and so forth – but rather without reciting those elements, so as not to contravene the halakha. These petitioners call their prayer ceremony “prayer groups” or “tefillah groups”, in order to distinguish between the status of the prayer group and that of a minyan of men. However, in regard to two matters with which their petition is concerned, the practice of their “prayer groups” is the same as the practice in a minyan of men – that is, they wear tallitot and tzitzit, and they read from the Torah, albeit without reciting the blessings and being “called up” to the Torah as is customary in a minyan of men.

25.           As noted, the women who are members of the “prayer groups” do not adopt the approach of the Petitioners in HCJ 257/89, inasmuch as it is incompatible with the halakhic rules. According to them, the approach of the “prayer groups”, as described above, is consistent with the halakhic rules. Some Orthodox rabbis support these “prayer groups”. But other Orthodox rabbis, who are also aware of the social role and education of contemporary, halakhically observant women, and who are supportive of such observance, nevertheless object to the approach of the “prayer groups”, and deem them harmful to the halakhic world. At present, the number of such “prayer groups” is not large. They were originally founded in the United States, and there are very few in Israel.

            These two approaches of Orthodox Jewry, although they hold much in common, also have sharp disagreements, as expressed in abundant writings, some of which we shall mention, while addressing a few of their details. Those disagreements are particularly pointed, and at present, the overwhelming majority of Orthodox Jewry absolutely rejects the “prayer groups”, and sees them as a serious deviation from halakha. We will address the nature and substance of these disagreements below. But before doing so, we will briefly make several observations on the subject of wearing a tallit and tzitzit, and reading the Torah by women.

 

Wearing a Tallit by Women

26.       Women are exempt from wearing tzitzit or a tallit, as this is one of the time-bound positive commandments inasmuch as the obligation is limited to a defined time period (day and not night). But as we noted, women are exempt from time-bound positive commandments, but they are not forbidden to perform them, and this applies to the mitzvah of tzitzit, as well. Maimonides even notes this principle in the context of the mitzvah of tzitzit, as follows (Maimonides, Laws concerning Tzitzit, 3:9):

The Torah exempts women … from tzitzit; women who wish to wrap themselves in tzitzit, do so without a blessing. Similarly, in regard to all other positive commandments from which women are exempt, if they wish to perform them without a blessing, we do not prevent them.

            This is also the view of Ravad [Rabbi Abraham ben David of Posquières] (Glosses of Ravad on Maimonides, Laws concerning Tzitzit 3:9), who adds that women are also permitted to recite the appropriate benediction upon the performance of commandments (see further, Commentary of Ravad on Sifra, Leviticus chap. 2).

            This brings us to differences of opinion in regard to the halakha as it concerns the question of whether women who voluntarily perform time-bound positive commandments may recite the benediction associated with the performance of those commandments. We earlier noted the view of some halakhic scholars, first and foremost Rabbeinu Tam [Rabbi Jacob ben Meir], one of the greatest Tosafists, that women are permitted to recite “who has sanctified us by His commandments … and commanded us”, and this is also the view of Ravad in regard to women who wear a tallit, who holds that they may recite the appropriate benediction. As opposed to that, the opinion of Maimonides was, as noted, that they may wear tzitzit but not recite the benediction, which is a different view that is held by many leading halakhic scholars, particularly Sephardic scholars (and see our discussion below).

            Thus, Rabbi Moshe Feinstein, writes in his aforementioned responsum (Responsa Iggerot Moshe, OH Part IV, 49) that just as women are permitted to perform time-bound positive commandments, and to recite the benediction, so it is in regard to the commandment of tzitzit: “it is possible for a woman who wishes to do so, to wear a garment that is distinct from men’s clothing, but that has four corners, and to tie tzitzit thereto and observe this commandment.” But Rabbi Feinstein adds a proviso that runs consistently through his work, stating:

However, clearly that is only if her soul yearns to perform commandments even though she is not commanded to perform them. However, since it is not with this intention, but rather due to her protest against God and His Torah, this is not the performance of a commandment at all, but the opposite, a forbidden act, for it is heresy as she performs it thinking it possible for the laws of the Torah to be changed, and it is a grave matter.

            This requirement of intentionality, that a commandment be performed for the purpose of observing it and not motivated by a lack of consideration of the halakhic rule due to “foreign considerations” of principled objection to the exemption because it insults women, is a fundamental principle of the halakhic world in regard to the introduction of legislative enactments, establishing customs, and introducing changes thereto. The parties submitted a letter from Rabbi Tendler, the grandson of Rabbi Moshe Feinstein, which explicates the approach of his grandfather in regard to the great fear that the motives of the prayer groups derive from such extraneous considerations, and that the permission to wear a tallit is applicable only when it is clear that “their intention is for the sake of heaven, without any questioning of the Torah of Israel or the customs of Israel” (responsum (letter) of Rabbi Tendler).

            This reason represents one of the values of the halakhic world, and is an important element of the decision-making policy of halakha in general, and in regard to sensitive and special subjects such as the one before us, in particular. We shall further consider this aspect below.

            At the time of the Rishonim and the Aharonim there were women who wore tallitot and recited the benediction with the approval of the rabbinic sages (Maharam [Rabbi Meir ben Baruch] of Rothenberg, Teshuvot, Pesaqim u-Minhagim, I.Z. Kahana, ed. (Jerusalem, 1957) 24 p. 141; Responsa Tzemah Tzedek (of the third Lubavitcher Rebbe), OH 3, which presents a detailed examination of the subject; Rabbi M. Toledano, Ner HaMa’arav, p. 155; and see S. Ashkenazi, HaIsha  B’Aspeklariyat HaYahadut (1953) vol. I, p. 137). However, it has not been customary for women of more recent generations to wear tallitot, as opposed to other time-bound commandments such as the blowing of the shofar, waving the lulav, and sitting in the sukkah, which they customarily perform. The reason for this derives from the custom first recorded by Maharil [Rabbi Yaakov ben Moshe Moelin] (New Responsa of Maharil (Jerusalem, 1977) OH 7, pp. 13-14 (Hebrew)) that women refrain from it. This custom was cited by the Rema [Rabbi Moses Isserles] (Glosses on the Shulhan Arukh OH 17:2 (Hebrew)) as follows:

And in any case, if they wish to wear it and say the benediction, they may do so as with the other time-bound positive commandments … but it has the appearance of haughtiness. Therefore, they should not wear tzitzit, as it is not an obligation pertaining to the person.[6]

            From the writings of some of the more recent halakhic decisors, it appear that the contemporary custom is that women do not wear tzitzit (Rabbi Yaakov Chaim Sofer, Kaf HaHayyim, OH 17:8; Rabbi Yechiel Michel Epstein, Arukh HaShulhan, OH 17:b-c, and see the explanation of the author of the Arukh HaShulhan, loc. cit., of the Rema’s explanation “it has the appearance of haughtiness”, and his conclusion: “and therefore we do not permit them to perform this commandment, and that is the custom from which we should not deviate”; and see Rabbi S. Yisraeli, “The Performance of Commandments by Women,” published in HaIsha veHinukha (Emunah, 1980) (Hebrew), p. 29; and see Meiselman, above, at pp. 44-45, 152-154. To complete the picture, we should add the statement in the Targum Yonatan ben Uziel, Deuteronomy 22:5: “A woman must not put on a man’s apparel” etc., but this explanation was not accepted by most decisors (see the responsum of Rabbi Moshe Feinstein, which we quoted above, and his careful wording: “a garment that is distinct from men’s clothing”).  We should also note that the explanation of “the appearance of haughtiness” has not always led to a generally accepted prohibition in other contexts in which it is found. Thus, for example, some important halakhic decisors and kabbalists, like Rabbi Isaac Luria, the Ari, ruled that tzitzit should not be worn on the outside of one’s clothing because it has the appearance of haughtiness, and other important halakhic decisors ruled that one should not wear tefillin arranged in the manner specified by Rabbeinu Tam[7] because it has the appearance of haughtiness, yet in both cases, and particularly in regard to the former – not to wear tzitzit on the outside of one’s clothing – a significant part of the contemporary religiously observant community does not follow the ruling (and see on the above in detail, Chief Rabbi Ovadiah Yosef, Responsa Yehaveh Da’at, II, 1 (Hebrew)).

 

Reading the Torah by Women

27.       In the opinion of the majority of halakhic decisors, women are exempt from the obligation of reading the Torah, because it is deemed to be a time-bound positive commandment (Tosafot, TB Rosh Hashanah 33a, s.v. “ha rabi yehuda ha rabi yosei”’; and see the detailed discussion of most of the issues under discussion in this case in Ran on Rif, TB Megilla 23a, s.v. “hakol olin leminyan shiv’a”; Rabbi Shalom Mordechai Schwadron, Responsa Maharsham, I, 158; Arukh HaShulhan, OH 282:11).

            In order to examine this aspect of the matter before us, it would be appropriate to briefly examine the explanation given by the author of the Arukh HaShulhan (above). In beginning his explanation, he states that there is a halakhic source from which we may infer that women are indeed required to hear the reading of the Torah:

And note that in tractate Soferim (18:4) we find that women are required to hear the reading of the Torah like men, etc., and it is required to translate each portion and prophetic reading following the Sabbath Torah reading for the people, the women and children; end quote.

            However, he rejects this proof, as follows:

And it would appear to me that this is not an absolute obligation, but is like that of children, inasmuch as she is exempt from Torah study. Moreover, nothing is more time-bound than this. And as for a woman being counted in the quorum of seven (i.e., for the reading of the Torah, the reference is to TB Megilla 23a), the Tosafot already wrote in Rosh Hashanah (33a at the end of s.v. “ha”) that this is just as they recite the benedictions for all time-bound commandments… And this is not to be compared to the commandment of Hakhel, where the Torah commands (Deut. 31:12) “Gather [Hakhel] the people – men, women, children …” which is a special commandment that once in seven years the king himself reads words of admonition from the book of Deuteronomy.

 

            The reference is to what is stated in Deuteronomy 31:10-13, and it is appropriate that we quote the entire text, inasmuch as what is stated there serves as one of the sources cited in regard to the subject that we are addressing. And this is what is stated in those verses:

And Moses instructed them as follows: Every seventh year, the year set for remission, at the Feast of Booths, when all Israeli comes to appear before the Lord your God in the place which He will choose, you shall read this Teaching aloud in the presence of all Israel. Gather the people – men, women, children, and the strangers in your communities – that they may hear and so learn to revere the Lord your God and to observe faithfully every word of this Teaching. Their children, too, who have not had the experience, shall hear and learn to revere the Lord your God as long as they live in the land which you are about to cross the Jordan to occupy.

 

            The author of the Arukh HaShulhan therefore concludes that this does not prove that women are obligated in regard to the reading of the Torah, and he thus ends his remarks in stating:

But to state that women are obligated in regard to the reading of the Torah every Sabbath is certainly strange, and everyday conduct is proof, and for the most part, they cannot hear it. Rather, tractate Soferim states, as a matter of moral principle, that when they would translate, it was appropriate to translate before them and before the children in order to instill in their hearts the fear and the love of God.

And see Mishna Berura OH 282:12.

            As opposed to this view, it would seem to appear from the opinion of the Rabbi Abraham Abele Gombiner (Magen Avraham commentary (OH 282:6) on Shulhan Arukh, OH 282:3) that one might deduce from the sources cited by the Arukh HaShulhan that women are obligated for the reading of the Torah. After citing TB Megillah 23a that “all are qualified to be among the seven” [“hakol olin leminyan shiv’a”] (see above) and the various explanations that have been given for that, he continues to say:

It would appear from this that a woman is obligated to hear the reading of the Torah. And although it (reading the Torah) was enacted for the sake of Torah study, and women are exempt from Torah study, in any case it she is commanded to hear, as in regard to the commandment of Hakhel regarding which women and children are obligated. See section 146. However, it would seem that even though they are not obligated, they are qualified to be among the seven, and so wrote the Tosafot at the end of (tractate) Rosh Hashanah. But in tractate Soferim, chapter 18, it is written that women are obligated to hear the reading of the Torah like men, and it required that we translate for them so that they understand. End of quote.

But the Magen Avraham concludes his remarks as follows:

                        And here it is customary for the women to leave.

            This is not the appropriate place to address this issue at length for the purpose of our examination. For that very reason, we have not found it necessary to address the statement in tractate Megillah (above), and in Maimonides, Laws of Prayer, 12:17, and in the Shulhan Arukh, OH 282, in regard to “respect for the congregation” [k’vod ha-tzibbur] (in regard to the meaning of that expression, see the detailed discussion in Weiss, pp. 67-83; and see Meiselman, pp. 140-146).

            The obligation to read the Torah is defined as a time-bound positive commandment because it is specific to fixed times. Women are, therefore, not counted for the purpose of forming a minyan of ten for the reading of the Torah, just as they do not constitute a minyan for prayer. But they are permitted to read the Torah, where we are concerned with a “prayer group” composed solely of women, and the nature of that reading. The question that arises is in regard to reciting the “barechu” benediction, which was established by the Sages, and which is deemed to be among the “acts of sanctification” (see above). Many discussions resulted in various suggestions in regard to one benediction recited before the reading of the Torah, which is also recited before the morning prayers, and it is, therefore, permissible to recite it. As noted, the Petitioners in HCJ 2410/90, who seek to hold a prayer group while observing the halakhic rules, stated in their petition: “They read from a Torah scroll that they bring with them,” – “They do not hold a Torah reading service, and do not bless or “go up” to read from the Torah” (para. 11, above). Therefore, I see no need to elaborate further. We would note what was stated in the said letter of Rabbi Tendler, which we addressed earlier, who, after emphasizing the theoretical position in regard to the possibility of conducting “prayer groups” of women whose intention is for the sake of heaven, stated:

And they may read from the Torah, but must be careful not to do so in a manner that might be misinterpreted as public reading. For example, they may not publically recite the benediction or rely upon the benediction they made earlier, and if they have not yet recited it, they should do so silently.

            And see the conclusion of the said letter: “And there is no absolute prohibition for a menstruating woman to look upon or touch a Torah scroll, and even though it is proper to be stringent, in any case it has become prevalent to be lenient in this regard” (and see: Maimonides, Laws concerning the Torah Scroll, 10:8; Shulhan Arukh, YD 282:9; and see the Rema’s gloss on Shulhan Arukh OH 88:1; Weiss’ discussion in his aforementioned book, at pp. 85-98).

            As for reading in this manner in a synagogue, we will address that below.

 

Custom in the World of Halakha

28.       Having arrived at this point, it would be appropriate to say something about the power of custom in the halakhic system, which plays a special role in the subject of the case before us.

            A.        The subject of custom as one of the established, creative sources of Jewish law is discussed at length in in my book (Jewish Law – History, Sources, Principles, above, pp. 713ff.). Custom can testify to the existence of longstanding law, which has found its way into halakha by means of midrash, enactment, etc., and can itself serve as a creative source of law under certain circumstances and subject to certain conditions: the difference between the power of custom in regard to prohibitions and other fields of halakha; proof of the existence of the custom, and the assessment of the custom by halakhic experts – is it the result of a mistake, is it a bad custom, is it an imposition upon the public, etc. (see: ibid.). This is not the place to discuss this very broad subject at length. We would only note this: just as custom can be general, it can also be local, that is, restricted to a place or to specific places, where various internal factors influence its generality or restriction. It may also be subject to change by its nature, the place and the time, in accordance with the existence of legitimate factors of the place and time that justify such change (see: ibid.; M. Elon, ed., Digest of the Responsa Literature of Spain and North Africa, v. I, (Institute of Jewish Law, 1986)  s.v. “Minhag”, pp. 230-233; and also see Prof. D. Sperber’s comprehensive Minhagei Yisrael: Origins and History,  v. I (Mossad Harav Kook, 1988) pp. 60-61 and fn. 18, v. II (1991).

            B.        Rabbi Zvi [Hershel] Schachter states in regard to our subject (“Tz’i lakh b’ikvei ha-tzon,” 17 Beit Yitzhak 118, 127 (1988):

We have never heard nor seen such a custom of arranging the reading of the Torah and the reading of the Megillah for women alone, and we are obligated to follow the tradition of our fathers and our fathers’ fathers in the manner of observing the commandments.

Therefore:

Since it was never customary for women to observe the commandment of prayer and reading the Torah, etc. in such a manner, we must not change our ancestral custom and create of our own imagination new types of conduct … and not only must we continue to follow the customs of our fathers, but it is also prohibited to change their customs. And although it is true that “we have not seen is not evidence”, in any case the Shakh [Siftei Kohen commentary of Rabbi Shabbatai ben Meir HaKohen] on [Shulhan Arukh] YD 1:1 explained “… that, in any case,  such conduct established the custom … and in any event such conduct is prohibited as being a change in custom” (ibid., pp. 128-129).

            This position is not unambiguous. Not every absence of a custom grounds an “argument from silence”. In certain circumstances, it is evidence of a lacuna that must be remedied when the time and need arises, assuming that there is no halakhic prohibition that prevents it.

            C.        An interesting example of this can be found in two responsa of Rabbi Yehiel Weinberg, one of the most important contemporary halakhic decisors and in his Responsa Seridei Esh III:93 and 96 [New Edition:  II:39 and 62]. In support of his view, Rabbi Schachter cites one of those two responsa – number 96 (above, at p. 128), but a comparison of the two responsa yields a different conclusion. We will briefly examine the matter.

            In responsum 96, Rabbi Yehiel Weinberg considers the question whether it is permissible to employ a general anesthetic in the course of performing a circumcision of a child or an adult – such as a convert or a person not circumcised as child – in order to relieve him of the pain associated with circumcision. He answers in the negative, particularly in the case of an adult. In the other responsum – number 93 – Rabbi Yehiel Weinberg was asked about the permissibility of celebrating a bat mitzvah for a girl who has attained the age of obligation to the commandments, when she is 12 years old, just as it has always been the custom to celebrate the bar mitzvah of a boy who has reached the age of obligation, upon reaching the age of 13. In this matter, his answer is positive, and approves the celebration of a bat mitzvah for a girl. What the two responsa share in common is the introduction of a new practice in regard to circumcision and in regard to celebrating a bat mitzvah. In a long and detailed responsum, Rabbi Yehiel Weinberg explains his negative answer in the case of the use of an anesthetic in the course of a circumcision in that this possibility has long been available, even in Talmudic times, but the halakhic sages expressed their opposition to its use, for halakhic reasons detailed in the responsum, and in such matters the principle “a custom of Israel is Law” applies, and we may not deviate therefrom. As opposed to this, he gives a positive answer in regard to the celebrating of a bat mitzvah. His reasons for this response are instructive. Indeed, there was no such custom of celebrating a bat mitzvah in past generations, and therefore:

There are those who argue against permitting the celebrating of a bat mitzvah, as it is contrary to the custom of prior generations that did not observe this custom (ibid., sec. 1).

But he rejects this argument. And why?

But in truth, this is no argument, because in prior generations there was no need to see to the education of girls, as every Jew was filled with Torah and the fear of heaven, and even the atmosphere of every Jewish city was brimming with Jewish spirit … but times have radically changed … (ibid.).

And also this:

And it is heartbreaking that in regard to general education, the study of secular literature, natural sciences and humanities, girls are educated in the same manner as boys, but religious studies, the study of Bible, the ethical literature of the Sages, and the study of the practical commandments that women are obliged to observe, are entirely neglected. To our good fortune, the Jewish leaders of the previous generation were aware of this problem, and they established institutions for Torah education and the strengthening of religion for Jewish girls. The establishment of a large, comprehensive network of Beth Jacob schools is the most wonderful expression of our generation. And common sense and the demands of pedagogic principles almost require that we also celebrate a girl’s attainment of obligation to commandments.

And this distinction that we make between boys and girls in regard to the celebration of attaining maturity deeply offends the humanity of a maturing girl who, in other areas, has achieved emancipation, as it were.

And as for the fear of “extraneous considerations” in introducing a new custom of celebrating a bat mitzvah, i.e., the fear of imitating the practices of gentiles, and so forth, he states:

And those among our brethren who have introduced this innovation of celebrating a bat mitzvah say that they do so in order to instill in the heart of a girl who has reached the age of obligation a sense of love for Judaism and its commandments, and to awaken her sense of pride in being a daughter of a great, holy nation. And we are not concerned that the gentiles celebrate confirmation for both boys and girls, for they do what they do and we do what we do. They pray and bow in their churches, and we bend our knees, bow and offer thanks to the King of kings, the Holy One, blessed be he (ibid. p. 296, col. 1 [New Edition: p. 458, sec. 26]).

 

            D.        In conclusion, a custom that deviates from a prior custom that forbids the custom to be introduced – as in the case of anesthesia for a circumcision – and which is not justified by legitimate social and ideological changes in the halakhic world may not be followed, inasmuch as that is the power of a custom for which there is no material, halakhic justification for change. As opposed to this, the introduction of a new custom – such as the celebration of a bat mitzvah – that is not contrary to law and which was not observed in the past due to different social and ideological circumstances that have entirely changed (and see what we wrote above – para, 19 – in the Nagar case and the Shakdiel case in regard to the difference in the social role and education of contemporary women), is appropriate on the merits in order to prevent in our generation what Rabbi Yehiel Weinberg described as “this distinction that we make between boys and girls in regard to the celebration of attaining maturity (which) deeply offends the humanity of a maturing girl”.

            Rabbi Weinberg’s student Prof. Eliezer Berkovits addressed this material distinction in regard to custom in light of the above two responsa of Rabbi Weinberg in his book Jewish Women in Time And Torah (1990) pp. 79-81.  He arrived at the conclusion (at p. 81) that women’s “prayer groups” may be permissible, subject to the restrictions observed by them, as we explained above.

            E.         The celebration of a bat mitzvah for a girl who has reached the age of twelve was also addressed by Rabbi Moshe Feinstein (Responsa Iggerot Moshe, OH  I, 104). In his responsum, he expresses doubt as to the propriety of introducing the custom of celebrating a bat mitzvah, and he does not deem such a celebration to be “a mitzvah or a se’udat mitzvah [a religiously required celebratory meal], but merely a celebration like a birthday party”. Rabbi Moshe Feinstein absolutely prohibits celebrating a bat mitzvah in a synagogue, permitting it only in the home. He adds, as we have seen elsewhere in his earlier responsum, the consideration that such a celebration may comprise an improper extraneous consideration of emulating the practices of groups that do not accept the primary obligation to the observance of halakha. In his aforementioned responsum, Rabbi Yehiel Weinberg agreed with this proviso stated by Rabbi Moshe Feinstein that a bat mitzvah not be held in the synagogue, “but only in a private home or a social hall adjacent to the synagogue” (above, at p. 297, col. 1), for the reason of the improper extraneous consideration of emulation.

            Incidentally, in his responsum, Rabbi Yehiel Weinberg addresses the question of why the fact that a custom derives from negatively characterized imitation deems it as deriving from an “extraneous consideration” that taints the custom, and why a bat mitzvah celebration should not properly be held in a synagogue. The reason is that this custom imitates a practice of the Reform Movement, which sought, and achieved among its members, the abrogation halakhic rules that were fundamental to Judaism, inter alia, “they eliminated all reference to the return to Zion and the restoration of the Temple worship to Jerusalem” (ibid., 93, p. 298; and see: our discussion of the position of the Reform Movement, then and now, that does not recognize the halakhic system as an obligatory, normative system even in regard to the most fundamental matters of the Jewish world, in HCJ 47/82 Foundation of the Israel Movement for Progressive Judaism v. Minister of Religion, IsrSC 43 (2) 661, 705-709; and see Responsa Seridei Esh, III:93; an instructive responsum by Professor Rabbi David Zvi Hoffmann, one of the most important halakhic decisors of the previous generation, in Responsa Melamed Le-ho’il, OH 16, concerning the prohibiting of the playing of an organ in the synagogue due to this consideration of imitation). This proviso, with which Rabbi Yehiel concurred, is also founded upon the special care required in changing synagogue practices, as we shall discuss below.

            F.         From the above responsum of Rabbi Moshe Feinstein, we see that he was not comfortable with the idea of introducing bat mitzvah celebrations, as explained above. In this regard, it is interesting to note the responsum of the Sephardic Chief Rabbi, Rabbi Ovadiah Yosef, who took an unequivocally favorable view of celebrating and encouraging this custom, and he even recommends it:

… It certainly would appear that it is a mitzvah to have festive meal and celebration for a bat mitzvah, in accordance with what the Maharshal (Rabbi Solomon Luria, one of the great halakhists of sixteenth-century Poland) wrote in his book Yam shel Shlomo (Bava Kama, 7:37), that there is no greater se’udat mitzvah than that of a bar mitzvah… And so it is, as well, in regard to a girl who becomes obligated to the commandments that a woman must observe, and it therefore a mitzvah for her that she performs, it is good to make it a day of celebration and also a mitzvah to do so… (Responsa Yabi’a Omer, part II, OH 29, para. 4).

            Chief Rabbi Ovadiah Yosef also addresses this matter in another place (Responsa Yeheveh Da’at, part II, 29), where he adds (at p. 111):

And in fact, preventing bat mitzvah celebrations lends support to the sinners to criticize the scholars for oppressing the daughters of Israel and discriminating between boys and girls.

            He also cites and relies upon Rabbi Yehiel Weinberg’s view (in Responsum 93) that it is not an emulation of the gentiles, and that not holding bat mitzvah celebrations constitutes a form of discrimination that severely injures a girls humanity.

            Further on, Rabbi Ovadiah Yosef relies upon other response of contemporary Sephardic halakhists, among them Rabbi Ovadiah Hedaya (Responsa Yaskil Avdi, part V, OH 28) who is also of the opinion, as is also the case for the illustrious Rabbi Yosef Ben Ish Hai (Responsa Yabi’a Omer, above; and Yeheveh Da’at, above).

            Rabbi Ovadiah Yosef refers to the opinion of Rabbi Moshe Feinstein, who cast doubt on the propriety of celebrating bat mitzvahs, as we noted above, and takes exception to his view:

…And I saw that the illustrious Rabbi Moshe Feinstein, in Responsa Iggerot Moshe, part I, OH 104, wrote … And with all due respect for his knowledge, what he says is not clear, inasmuch as she enters into the commandments and is like an adult who is obligated and observes all the commandments that a woman is required to observe, certainly it is a mitzvah … (Responsa Yabi’a Omer, above; and see response Yeheveh Da’at, above, pp 110-111 in which he disagrees with other things that Rabbi Moshe Feinstein wrote in this regard in justification of his position, and see there).

            Thus, Chief Rabbi Ovadiah Yosef concludes his responsum (Yeheveh Da’at, above):

The custom of making a festive party and a meal of thanksgiving and rejoicing for a bat mitzvah on the day she attains thirteen years and one day is a good and proper custom. And it is appropriate to say words of Torah, and sing songs in praise of God. However, the rules of modesty must be carefully observed in accordance with our holy Torah … and our blessed God will not withhold His blessings from those who attend in good faith.

            It should be noted that Rabbi Yosef does not refer to Rabbi Yehiel Weinberg’s statement that a bat mitzvah celebration not be held in a synagogue. In this regard, we should take note of what we said in regard to the opinion of the late Sephardic Chief Rabbi, Rabbi Ben-Zion Meir Hai Uziel, in regard to his opinion that women should be granted the right to vote, like men, for various public institutions. Thus we wrote in the Shakdiel case, at p. 257:

The approach of Rabbi Uziel is instructive in his bringing “indirect” evidence of the spirit of the halakha that points to the desirable policy. According to halakha, a person who brings a sacrifice lays his hand on the animal’s head. In this regard. [Midrash] Sifra, Leviticus, chap. 2 states: “And he shall lay his hand upon the head of the burnt offering (Leviticus 1:4) – the sons of Israel lay their hands and the daughters of Israel do not lay their hands”. In other words, the law in regard to the laying of hands upon an animal sacrifice does not apply to a woman.

            But the Midrash goes on to state:

Rabbi Yosei said, Abba Elazar told me, we had a calf for a peace-offering, and we took it out to the Women’s Court (of the Temple), and the women laid their hands upon it, not because laying of hands applies to women, but for their gratification.”

If that is how we are to act in regard to something that is forbidden – laying hands by women – then, continues Rabbi Uziel, a fortiori we should act in that manner in regard to the granting women the right to vote, as no law forbids it “and preventing them from participating (in elections) would be an insult and a misrepresentation”.

            This assembled material, and the judicial policy that it indicates, are also appropriate to the matter before us.

            G.        This is the way of custom as a creative source of halakha. Custom is rooted in the accepted principles of halakha, its rules and values. Today, when Jewish women study and teach, and know the law and the ways of halakha, it is proper that when a woman attains the age of obligation to the commandments, that occasion be celebrated as it is for boys. But sometimes there are considerations, which are also legitimate, that influence the acceptance of a custom by halakhic sages subject to various provisos, due to a fear of imitation and extraneous influences – each according to his approach to deciding halakha and the extent of the existence of a fear of imitation in this or some other place. In the world of halakhic values, this fear must also be given significance, after careful, appropriate examination. We shall address this below.

 

Changing Synagogue Custom

29.       The halakhic world is especially careful in regard to introducing new customs in the synagogue. This fact is expressed in regard to the custom of “prayer groups”, which is a central issue in this case. Such “prayer groups” are generally conducted outside of synagogues, in special places designated for them. Thus, Rabbi Avraham Weiss, in his abovementioned book, at p. 18, writes: “Even in communities where women’s groups have been approved by the rabbinic leadership, the synagogue has, with few exceptions, been declared off limits to them. In virtually all cases, they are held in homes or rented hotel facilities.” Indeed, Rabbi Weiss goes on to point out that the synagogue is the most appropriate and preferable place for conducting prayer, and his words are worthy of consideration. But as far as our investigation into the nature of custom and the manner of observing it goes, we find that, in practice, the overwhelming majority of “prayer groups” are not held in synagogues themselves, which attests to the especially problematic nature of changing custom as it relates to synagogue practice (and see the Encyclopedia Talmudit, vol. 3, s.v. Beit Haknesset, pp. 192ff. (Hebrew); in regard to the use of a synagogue, its sanctity and respect, see loc. cit.; and see Rabbi Zvi Schachter, above, p. 130; and see: Rabbi Abraham Isaac HaKohen Kook, Responsa Orah Mishpat 38).

 

The Synagogue in the Western Wall Plaza

30.       What we have said thus far is of special interest in regard to the subject of this case – conducting the Petitioners’ prayers in the Western Wall Plaza. The prayer space at the Western Wall is the holiest synagogue in the halakhic and Jewish world. It is the place of which the Midrash (Exodus Rabba 2:2, and elsewhere) states:

                        The Divine Presence never departs from the Western Wall.

            Indeed, the Western Wall is not a part of the Temple itself, but a wall surrounding the Temple Mount upon which the Temple stood. But in Jewish tradition, the Wall is generally viewed as a “remnant of our Temple”. The prayers recited in the synagogue replace the Temple service following its destruction, and synagogues are referred to as “mikdash m’at” [a little sanctuary]: “Yet have I been to them as a little sanctuary (Ezekiel 11:16). Rabbi Isaac said: This refers to the synagogues and houses of learning in Babylonia” (TB Megilla 29a; and see HCJ 4185/90 Temple Mount Faithful v. Attorney General, IsrSC 47 (5) 221, 230).

            Throughout the generations, Jews have considered prayer beside the site of the Temple to be especially propitious, and especially beside the Western Wall – the only remnant that remains of the Temple (see HCJ 4185/90, ibid., at pp. 245-246). Due to the fact that the plaza before the Western Wall has always served as a permanent place for Jewish prayer, the halakhic scholars held that this plaza is subject to the law of a synagogue. Thus, in the last century, Rabbi Hillel Moshe Gelbstein wrote in his book Mishkenot Le-Abir Yaakov:

It is a mitzvah to respect and extol that place as much as possible, at least as much as a synagogue, and more so … because it stands before the holy and awesome place … we must try with all our might to make … an attractive, elegant and beautiful floor ... and of course protect it from desecration as far as possible …and a fortiori in comparison to a synagogue … for the outer wall of a synagogue is holy like the synagogue itself.

            Moreover, the site of the Western Wall is subject to the commandment of “guarding the Temple” [against desecration], for although it is not possible to fulfill that in our day at the actual site of the Temple, it can be observed adjacent to the Temple Mount, that is, beside the Western Wall (Rabbi Gelbstein’s remarks are quoted in Zvi Kaplan, “The Western Wall in Halakha,” 5728 Shana Beshana 174-175 (Hebrew)).

            And this is what Chief Rabbi Ovadiah Yosef ruled on the subject:

This place must certainly be no less than a synagogue, which is a beit mikdash m’at [a little Temple]. So it is in regard to the laws of a synagogue … certainly all that is true there, is true for the Western Wall … it should be treated with no less strictness than a synagogue and a mikdash m’at (“The Western Wall and its Surroundings in Halakha,” in The Western Wall (Jerusalem, 1976) p. 139 (Hebrew)).

 

The Prohibition upon changing Custom “On account of the Disputes”

31.       At the prayer area beside the Western Wall, which must be treated like a synagogue and even more so, there was never any customary women’s prayer, neither in the form requested by the Petitioners in HCJ 257/89, nor in the form of “prayer groups”, as described in HCJ 2410/90. Granting the Petitioners’ petitions would involve a clear change in the local custom in the synagogue, as observed for generations upon generations. An important principle of halakha is that custom should not be changed “on account of the disputes [that would ensue]” (TB Pesahim 50a-b). This principle was enunciated in regard to every custom in halakha, and it applies a fortiori to synagogue customs, and all the more so in regard to the synagogue in the Western Wall Plaza. This is the unequivocal opinion of the Chief Rabbis of Israel, which we noted above.

            In his letter, Rabbi Avraham Shapira wrote:

Moreover, in addition to the halakhic prohibition, as noted above, there is also a principle of prohibiting the annulling of customs, which was never done, whether in regard to tzitzit or in regard to a women’s prayer in a minyan. Such a thing is unheard of and unacceptable in Judaism, and for this reason alone, it is unlawful, as a custom of Israel is Law.

All of this is true even if they do so in their own homes. But when they come to change the halakha and custom in public, in a holy place like the Western Wall, a matter that raises dispute, contention and altercations, there is also a prohibition of increasing disputes in Israel, and the desecration of a holy place (response of Rabbi Avraham Shapira (letter)).

            That is also the conclusion to be drawn from the letter of the Sephardic Chief Rabbi, Rabbi Mordechai Eliyahu, in his aforementioned opinion:

We are commanded and warned not to change any custom, and particularly customs of synagogue prayer … and it is therefore prohibited to make any change in the traditional manner of prayer of many generations at the Western Wall, which is a remnant of our Temple and our glory, besides having the additional holiness of being the place of the prayers of all Israel (response of Rabbi Mordechai Eliyahu (letter)).

            As we shall see, the opinions of the Chief Rabbis of Israel are of legal importance in the Israeli legal system in regard to the issue addressed by the petitions before the Court.

32.       Much has been written and said on the extreme severity of causing disputes, particularly in synagogues. We will suffice in quoting the words of the Hafetz Hayim [Israel Meir HaCohen Kagan] (Mishna Berura, OH 151:2):

And all the more so must one be careful in the synagogue and study hall to refrain from offenses of forbidden speech such as defamation, rumor mongering, disputes and altercations, because not only are these very serious offenses, but the offense is even greater in a holy place because it shows contempt for the Divine Presence, as a person who sins alone is not like a person who sins in the King’s palace, in the presence of the King.

And even worse, such a person also causes the public to commit those serious offenses, as “strife is like a ruptured water pipe” (TB Sanhedrin 7a), in the beginning the sin seeps into a few people, and ultimately the channels unite into strife between one and another until the entire synagogue is ablaze like a bonfire, and to our great discredit, this sometimes leads to disgrace, insult and public shaming, and to blows and informing, and increasing the desecration of God’s name.

            An important principle of halakha, particularly in the field of customs, was established on the basis of the biblical statement “lo titgodedu” [literally: “you shall not cut yourselves”] (Deut. 14.1), which the Sages interpreted as a severe prohibition of sectarianism[8] and dispute (see: M. Elon, Jewish Law – History, Sources, Principles, p. 759; [Rabbi Yehuda Greenwald], Responsa Zikhron Yehuda, 37; [Isaac ben Sheshet Perfet], Responsa Rivash, 512; [Simon ben Tzemah Duran], Tashbatz, II 204, III 176; [Ben-Zion Meir Hai Uziel], Mishpetei Uziel, III, HM 228). The Sages were particularly strict in regard to changes in synagogue customs, in light of the injunction “lo titgodedu” (see: Prof. Y.D. Gilat, “Lo Titgodedu,” 18-19 Bar Ilan University Yearbook 88ff. (1981)).

 

The Severity of the Disagreements on the Issue in the World of Halakha

33.       We became aware of the severity of the disagreement concerning the issue before us from the detailed description of the facts, as presented in the petitions and from all the event that occurred in the affair: the prayer space beside the Western Wall became a “battlefield” of extreme violence, hitting, tear gas, physically lying on the floor of the prayer area before the Wall, and incessant incitement, and all in front of the various media. But this is not the only way that the dispute was expressed. As we stated, this subject – concerning the laws and customs of prayer – is particularly sensitive in the halakhic world. The halakhic world is defined by its laws and values, and just as halakhic scholars and decisors disagree in regard to its rules, so they may disagree as to its values, or to be more precise, in regard to the implementation of its values. We briefly addressed this earlier in regard to the issue before us. It would be appropriate to take a further, special look into this matter, which, at its core, concerns a dispute between two opposing approaches to halakhic values, with each approach sharing a common devotion to halakha. This can be seen in reading the aforementioned article of Rabbi Zvi Schachter, who serves as a rosh yeshiva at Yeshiva University in New York (“Tz’i lakh b’ikvei ha-tzon,” 17 Beit Yitzhak 118, 134 (1988)), and the aforementioned book of Rabbi Avraham Weiss, which we cited earlier. We will consider several examples.

            A.        As noted, the Petitioners in HCJ 2410/90 conduct women’s “prayer groups” that are not considered “prayer in a minyan”. They do not include the reciting of the “barekhu”, “kedusha”, or a repetition of the amida, and they are not halakhically flawed from a formal perspective. Yet, in Rabbi Schachter’s opinion, women’s prayer groups should not be conducted because, in his words: “If they were to pray in a regular minyan in a synagogue, they would observe the obligation to prayer in its fullest form (that is, with the recitation of “barekhu”, kaddish, etc.), and by making a “minyan” of their own, they detract from their prayer” (ibid., p. 118).

            It is hard to understand this argument. As earlier noted, women are indeed halakhically obligated to private prayer, but they are not obligated to public worship, and therefore, they are not counted for the purpose of constituting a “minyan” in its halakhic sense. What, then, is detracted when a woman does not pray in the women’s section [of the synagogue] in the presence of a minyan of men, but rather prays with a group of women, and thus does not hear the “barekhu”,etc., which she is not obligated to hear? (Weiss, ibid., pp. 55-56). Moreover, “prayer groups” of women (that do not perform “acts of sanctification”) are common in Orthodox schools and colleges for women, and it was never the practice to bring a “minyan” of men to those prayer services in order to enable the saying of “barekhu”, etc. The same flaw in Rabbi Schachter’s argument is present in regard to the reading of the Torah by women without reciting the “barekhu” benediction, and in regard to other matters, as well.

            B.        Rabbi Schachter views women’s prayer groups as a “falsification of the Torah” (ibid., p. 119).Why? Because “their intention is to demonstrate that women are as important as men”. Rabbi Schachter relies upon a statement of the Maharshal, Rabbi Solomon Luria, one of the great halakhists of sixteenth-century Poland, which was made in an entirely different context (Yam shel Shlomo, Bava Kama, 4:9). The Maharshal absolutely and emphatically forbids teaching Torah to a non-Jew, due to the attendant spiritual and other dangers, and he disagrees with those “in Spain, Italy and the Moslem lands who study God’s Torah with the gentiles for their pleasure and salaries”, referring to the Jews of Spain and the East who studied and discoursed with non-Jews. But I searched the writings of the Maharshal and did not find the term “falsification of the Torah”! In any case, it is hard to understand what connection there might be between what the Maharshal wrote and the subject of women’s prayer groups, and what might be halakhically wrong with women viewing themselves to be as important as men, and conducting public worship in which “acts of sanctification” are not performed!

            C.        In the opinion of Rabbi Schachter, the public prayer of such Orthodox women smacks of “hukkot akum” [non-Jewish practices] (ibid., 131). Why? “Because it is clear that such practices did not emerge from a vacuum, but rather are a result of the general trend of women’s liberation, whose subject and purpose in this regard is licentiousness, and to make them equal to men in every way possible” (ibid.). And not merely non-Jewish practices in general, but “non-Jewish practices in the performance of mitzvoth” (ibid.), and he cites Nachmanides on the verse (Deut. 12:30): “Beware of being lured into their ways”. With all due respect to the honorable author, it is hard to fathom the intention of this statement. Why would one suspect that the participants in public prayer restricted to women and led by women might be guilty of such grave intentions and tendencies, when the very manner in which they are conducted proves strict observance of the halakhic rules prohibiting such acts of sanctification as the repetition of the amida, and so forth? Does that alone not prove that the purpose of the organizers of such public prayer by women – carefully observing the halakhic framework and its rules – serves a spiritual purpose that derives from knowledge and awareness of the commandments and halakha, the views and approaches of rabbinic scholars and thinkers, and from many years of study in Torah-im-Derekh-Eretz educational institutions, and that as a result of that education they seek to express themselves, within the confines of halakha, by means of the “prayer groups” that are the subject of these proceedings? Indeed, this is how Rabbi Yehiel Weinberg, author of the Seridei Esh, views the intentions and proper desires of those parents and girls who wish to celebrate a bat mitzvah, and the same is explicitly stated by Chief Rabbi Ovadiah Yosef, as we quoted above.

            D.        In his pointed opposition to women’s “prayer groups”, even when they are not viewed as a constituting a minyan, Rabbi Zvi Schachter relies upon the decisions of two of the generation’s foremost halakhic decisors, the late Rabbi Moshe Feinstein and the late Rabbi Joseph B. Soloveitchik:

It is well known that two of the greatest scholars of this generation, to whom we all defer, our teacher Rabbi Joseph B. Soloveitchik, and our teacher Rabbi Moshe Feinstein, are very much opposed to all the above conduct, as well as to special hakafot for women, and special “minyans” for prayer, and for reading the Torah and the Megillah. And see the Tosafot on Bava Batra (51b) s.v. “beram”, per Rabbeinu Tam, that if all the leading authorities of the generation disagree with him, then his opinion is without value” (ibid., p. 126).

            Rabbi Weiss correctly comments that this statement is not precise. As for the opinion of the late Rabbi Soloveitchik, we do not have a written record, and what is attributed to him is based upon the statements of students who sought his advice. From them we learn that he was not opposed to the very existence of prayer groups, but rather to particular aspects of their practice, such as reciting the Torah blessings before and after the reading of the Torah (Rabbi Weiss, ibid., pp. 107-108). And as for the opinion of the late Rabbi Moshe Feinstein, it can be found in a detailed responsum (Iggerot Moshe, OH, part 4, 49), which we discussed above. That responsum does not present a rejection of women’s prayer groups in principle, provided that they are conducted for the sake of heaven, except as regards certain changes relating to particular practices of such groups regarding the reading of the Torah (see: Rabbi Weiss, ibid., pp. 108-110); and see in the footnotes, ad. loc., what Rabbi Mordechai Tendler wrote on behalf of his grandfather, Rabbi Moshe Feinstein, which we addressed above; and see, ibid., pp. 111-112, fn. 39).

34.       We should note that Rabbi Zvi Schachter’s pointed objection to women’s prayer groups is particular to this specific subject, and it does not derive from a general approach that rejects the reality of halakhic development and change over the course of generations and eras, in accordance with the recognized, special methods for change provided by the halakha itself. Rabbi Schachter emphasizes this in several places in his article, and it is appropriate that we take note of them (ibid., pp. 122-124):

It is clear that the halakha is not frozen. The large number of situational changes requires that halakha change. The questions of the year 5748 are completely different from those of 5738, and in any case, in many instances, different answers are needed.

Moreover, just as there is progress in the scientific world, so there is progress in the halakhic world. See Genesis Rabba on VaYera (49:2) that there is no day when  God does not innovate a new halakha in the Heavenly court. And see Yalkut Shimoni on the book of Judges (Remez 49) explaining the verse “When new gods were chosen, then war was at the gates …” [Judges 5:8], concerning the wars of Torah, that the Holy One loves innovation in Torah. And in the words of Rabbi Chaim of Volozhin (in his book Nefesh HaChaim, 4:46), the awesome, wondrous effects of man’s true Toraitic innovations upon Heaven are immeasurable.

            Further on, he cites the responsum of the Netziv [Rabbi Naftali Zvi Yehuda Berlin] of Volozhin (Meishiv Davar, I, 46), and goes on to say (ibid., p. 123):

And see in that responsum, that this is the case, and this is the reason in regard to an innovation in the performance of a mitzvah, which even if not done for the sake of Heaven, still constitutes the performance of a mitzvah. But in the case of the innovation of a new practice, if it is not done for the sake of Heaven, that innovation cannot be called a mitzvah at all. And that is the meaning of the Mishna in Avot (2:2) that “all who labor with the community labor with them for the sake of Heaven”, because labors undertaken not for the sake of Heaven are not mitzvoth at all. For labor that does not involve any specific mitzvah (like laying tefillin or blowing the shofar, and so forth) that defines the labor as the performance of a mitzvah, must be labor that is for the sake of Heaven in order for that labor to be deemed a mitzvah.

            Notwithstanding this generally positive approach, the aforesaid does not apply, according to Rabbi Schachter, to the matter before us.

And the reason that they prefer to make a “minyan” (i.e. “prayer groups” – M.E.) for themselves is not by reason of the halakhic principle that “it is more meritorious through himself than through an agent” [TB Kiddushin 41a], but rather because “a man prefers a kab of his own to nine of his neighbor’s” [TB Bava Metzia 38a], and in their “minyan” the women feel that it is “their thing”. Surely we should not willfully destroy the additional halakhic essentials that we mentioned above (letter A) for such a feeling. On the contrary, we must sensitize these educated, intelligent women to sensitize and repair their spiritual resources to the point that they are consonant with the priorities of halakha (ibid., 121).

            Therefore (ibid., p. 122):

We must also explain to those women, who with God’s help this generation has become more righteous,[9] and who are more educated both in Torah and wisdom than previous generations … that all our women are deemed important, and it was never our practice to deny the rights of women. And so there is no need or purpose for us in the objectives of the women’s liberation movement, inasmuch as the halakha instituted several obligations upon a husband in regard to his wife, like the seven obligations of a woman toward her husband, among them to love his wife as himself, and to respect her more than himself … and we find several places in the Bible and the Talmud where women are lauded more than men, and it is the halakha that a woman is deemed an adult at the age of 12, while a man at 13, because God granted women greater understanding than men, and so it is in other, similar matters. And in any case, truth be told, our women should not feel that they have only now been liberated from their servitude, and adopt the psychological attitude of a slave who has become a king, but rather they should themselves see and understand that it has always been thus among us, for the promise that God made to women is greater than that of men, and that there has not really been any fundamental or systematic change in our view of the importance of women, but merely changes in details, inasmuch as the entire world has changed in recent years, but not changes is the principles.

35.       I have said what I have, and commented as I have, because that is the way of Torah and the “war” of Torah. And I have treated Rabbi Schachter’s remarks at length in order to point out the especially problematic nature of the matter before us.

            As stated in the remarks we have just quoted, Rabbi Schachter’s opinion is that the halakhic world, by its nature, does not stagnate, and that it is open to innovation and to enactments in accordance with the needs of time and place. But it also comprises matters and principles regarding which halakhic creativity must be exercised with great caution. In his opinion, the subject of this case is among them. He is aware of the changes that have occurred over the last generations in regard to the social status of women, in their knowledge of halakha, and in their education, but none of these – in his view – justify the change represented by women’s prayer groups, which are influenced by “extraneous” and extra-halakhic considerations, and all that is associated therewith, in regard to the central place of prayer and the synagogue in Jewish tradition (and also see: ibid., at the end of p. 125, and pp. 127ff in regard to “the purpose of the mitzvah in the acts of mitzvoth”, and pp. 130-131 in regard to the particularly stringent approach to “synagogue customs).

36.       We have thus come to the end of our discussion of the issue, and this is not the place to elaborate further. A detailed, comprehensive discussion of this fundamental issue can be found in many additional sources in halakhic literature, as well as in articles and research in addition to those we have cited, and I refer the interested reader to them.

            As we hinted at earlier, a significant part of the disagreements and approaches in this great, complex and sensitive matter concerns not merely the determination of the law in the halakhic system, but also the evaluation of the values of the halakhic world – which also constitute part of the law in the broad sense – and the application of those values to the present case; the lege lata and lege ferenda, and the appropriate judicial-halakhic policy – in light of the past and in view of desires for the future. These are accepted, legitimate considerations in the halakhic world in general, and they are of particular importance in regard to a sensitive subject such as the one before us. Indeed, each side has expressed its views both on the world of halakha and on the realities of the contemporary world in regard to the status of women – including women who are halakhically observant and equally heedful of the minor mitzvoth and the major ones – in terms of their social roles and status, their knowledge of the Torah and its commandments, the ways of the world and their education. But the parties disagree in their evaluations, and therefore in their conclusions.

            Needless to say, an in-depth study of the halakhic sources, with both knowledge and understanding, as practiced from generation to generation, is a necessary prior condition to any proper halakhic examination of any halakhic matter, and of the matter before us. To this we must add an evaluation of the values of the halakhic world and the manner of their application in every generation, in accordance with its problems and needs.

            This is a double condition. Each of the two approaches in this matter, which we have considered above, claims to meet the requirements of this double condition.

            In this regard, it would be appropriate to add a few remarks concerning the element of imitation, which serves as a factor of recognized influence upon judicial policy in deciding the law and recognizing customs in the halakhic world. As we saw, this factor is mentioned often by decisors and scholars in regard to our subject. The intention here is to imitation of a negative character of things practiced outside the world of halakha and Judaism, whether directly – i.e., imitation of “non-Jewish practices” – or indirectly – i.e., imitation of the Reform Movement, which is influenced to an extreme degree by things that are contrary to the basic principles of Judaism and halakha, such as elementary kosher laws, marriage and divorce, conversion, and at one time, even the annulment of the religio-national bond to the land of Israel, and so forth, which present an absolute contradiction of the entirety of the world of halakha.  Thus we saw that Rabbi Yehiel Weinberg did not view Christian “confirmation”, which applies to boys and girls, as a factor that influences the propriety of the custom of celebrating a bat mitzvah in the Jewish world, stating, “they do what they do and we do what we do”. So it is in regard to the very celebration of a bat mitzvah. But as for the question of celebrating a bat mitzvah in the synagogue or not, he takes account of the fact that Reform Jewry celebrates bat mitzvahs in the synagogue , and in order to prevent influence by the Reform Movement – which does not recognize the obligatory nature of halakha – upon the halakhic world, he is of the opinion that it would be improper to hold a bat mitzvah celebration in the synagogue itself – as was the Reform practice at that time, under the influence of elements foreign to Judaism – but rather in a hall adjacent to the synagogue.

            Granting weight to the factor of negative imitation as an extraneous consideration in the halakhic world is a factor that we also find, in principle, in the general legal system in the field of public administrative law, where it is referred to as an “extraneous consideration”, and it is from there that I have “borrowed” the term. In other words, a court may void an administrative decision by reason of it having been made for motives and considerations that were foreign to the subject of the decision. So it is in the halakhic world, in which a new law or custom will also be examined in light of the nature of the considerations that led to the creation of the law or custom, and whether those considerations were irrelevant or, at times, contradictory to the spirit of the halakha and its values, and thus extraneous considerations that may lead to the abolition of the new law or custom.

            Extraneous considerations are weighed in halakha much as they are in the general law. In certain cases, the conclusion will be that there was no extraneous consideration of “unwanted” influence from another cultural or conceptual world. In other cases, there may be an influence that is not deemed to exercise a negative impact of an extent justifying the abrogation of the new law or custom. In other cases, the conclusion may be that the extraneous consideration is so negative that annulling the new law or custom is appropriate and correct.

            The choice among the various possibilities is a value judgment that concerns judicial policy in the halakhic world, much as it is in the case of a judicial ruling in the general legal system in regard to the presence or absence of an extraneous consideration in an administrative decision.

37.       Rabbi Schachter concludes his detailed article as follows:

And the true God gave us a Torah of truth, a Torah in which the truth is written, our eyes look only to the truth, and blessed be He who keeps his true promise, for the Torah of truth will not be forsworn by the true people.

            As for the truth in the world of halakha, there is a great saying of the Gaon of Vilna explaining the statement of the Sages that a judge must “judge true judgment that is according to the truth” (TB Shabbat 10a, and elsewhere). Many halakhic scholars ask: What is “true judgment that is according to the truth”? Is there “truth” that is not “according to the truth”? And what is the nature of this truth that is according to the truth?

            The Gaon provided this answer:

Judges must be experts in worldly matters so that they do not rule erroneously, for if they are not expert in such matters, then even if they are expert in the Torah law, the result will not be according to the truth. In other words, even though he will give true judgment, it will not be according to the truth … and therefore the judge must be an expert in both … that is, wise in matters of Torah and astute with regard to worldly affairs (Commentary of the Gaon of Vilna (Mikra’ot Gedolot, Pardes) to Proverbs 6:4).

            Torah law that is integrated with the nature of the world is “according to the truth”; Torah law alone, without astuteness with regard to worldly affairs is “true”, but not “according to the truth”. According to Rabbi Zvi Schachter, the matter before us must be decided in accordance with Torah law, true law, but the “nature of the world” – which in the matter before us is the social and educational reality of contemporary women – is absent, due to the nature of the subject, its centrality, and the “extraneous considerations” that may be involved, for the purpose of integration in a decision that would be “according to the truth”. So the question remains—is that approach according to the truth?

38.       Rabbi Avraham Weiss, in his aforementioned comprehensive book, considers the matter before us, and inter alia, is critical of Rabbi Zvi Schachter’s approach for some of the same reasons we raised above. He concludes his examination of women’s prayer groups, inter alia, with the following words (pp. 123-124):

Within halakhic guidelines, women may participate in women’s prayer groups, as long as these groups fall into the halakhic category of tefillah and not minyan … Participants in such groups are not rebelling against Torah Judaism. Quite the contrary. They are seeking to instill greater religious meaning in their lives. Their purpose is not to diminish the Torah, but to enhance their Jewish commitment and halakhic observance … Their quest to reach nobly to attain this lofty objective should be applauded.

            These earnest thoughts are worthy of consideration against the background of the special sensitivity of the halakhic world in regard to changes in synagogue customs, as we discussed above (and see Rabbi Weiss, ibid., p. 118ff.) Having noted the explanation of the Gaon of Vilna in regard to the concept of the “thorough truth” that a judge must strive to realize, we will mention an additional explanation of this concept, which is appropriate to what we have just quoted and stated (see the Mishnah Rishonah commentary to Mishna Pe’ah, 8:9, s.v. “vechen dayan shedan emet la’amito”):

Because it is possible for a judge to recuse himself from judging in the belief that even if he would believe that he is judging truly, there is still the fear that if the case were brought before a greater judge, it would be found that he was in error, the result would be that no person would be willing to judge, for fear of error. Therefore it says: “according to the truth”, because he has only his own truth, as opposed to his knowing that it is false. But if it appears to him that he is judging truly, then he should fear no more, because even if he errs, he is not culpable, because he was scrupulous in accordance with what he believed.

And so we find in the Gemara at the end of the first chapter (6b) of Sanhedrin: “And lest the judge should say, ‘Why have all this trouble and responsibility?’ It is therefore said: ‘He is with you in giving judgment’. The judge is to be concerned only with what he actually sees with his own eyes.” And Rashi explains: “According to what he sees with his own eyes – he will render true justice.”

            And this too is part of judging “true judgment that is according to the truth”.

 

Summary of the Halakha in regard to the Issue at Bar

39.       As we have seen, the subject of these petitions is very sensitive in the Jewish world in general, and in the halakhic world in particular. The petition of the Petitioners in HCJ 257/89 is contrary to the world of halakha and generations of halakhic decisions. But even in the halakhic world, there is sharp disagreement. One view, reflected by the petition in HCJ 2410/90, is expressed in the comprehensive discussion of women’s prayer groups in Rabbi Weiss’ book. Even there we find uncertainty as to the manner for realizing this approach, whether in the framework of the synagogue or whether elsewhere, outside of the synagogue, due to the generally greater sensitivity in regard to change in synagogue customs as opposed to other changes in customs. The second approach is that expressed by Rabbi Zvi Schachter in his detailed article. Although it recognizes the possibility of change in customs and laws by the accepted means of the halakhic world, it strongly opposes the approach of petitioners in HCJ 2410/9, even in regard to conducting “prayer groups” outside of the synagogue. The strongest opposition to this approach is expressed in the opinions of the two Chief Rabbis of Israel. We referred to part of Rabbi Avraham Shapira’s opinion above (para. 31). Rabbi Shapira concludes his opinion saying:

In brief: in terms of law, all of the above things, including wearing tzitzit by women, and conducting a minyan by women for acts of sanctification, are contrary to the halakha and contrary to custom, and are unacceptable in Israel, and what we have here is simply a satanic act intended to increase dispute and raise accusations against Israel. And the matters are so simple, that they require no elaboration.

            We also referred to part of the opinion of the Sephardic Chief Rabbi, Rabbi Mordechai Eliyahu (para. 31, above), who concludes in stating:

No nation has ever desecrated its own holy place, even concerning such customary actions as removing shoes, and so forth. Will Jews come to annul the customs of those of us who seek to preserve the customs of our holy ancestors? We will not permit it. This would be an insult to generations of righteous women, an insult to all the women who come daily to pray, and an insult to the Torah of Israel.

            These pointed, strong disagreements should be understood against the background of the special issue before us. We are concerned with a subject that holds a central place in the world of halakha and the Jewish religion. As earlier noted, Jewish tradition sees the synagogue as a “little sanctuary”, a reminder and continuation of the Temple that stood on the Temple Mount. The synagogue is and was a center and gathering point for the religious experience and the world of halakha. That is the reason for the substantial difference between the issue before us and the halakhic world’s acceptance of change in regard to the status of women in areas like education, the study of Torah, the right to vote for and be elected to public office, and other subjects. It is conceivable that the substantial change in the status and role of women in this century, in which religiously observant participate, will have an effect over time, and will lead to an appropriate resolution even of this complex, sensitive subject of prayer groups, as noted above. But the prayer space beside the Western Wall is not the place for a “war” of acts and opinions over this issue. The present reality is that the overwhelming majority of halakhic decisors, including the Chief Rabbis of Israel, see the granting of the Petitioners’ petitions – even that in HCJ 2410/90 – would constitute a desecration of the customs and sanctity of the synagogue. Such is the case in regard to the prayer customs of the synagogue, and all the more so in regard to the prayer space at the Western Wall, which is the holiest synagogue in the halakhic and Jewish world.

 

The Holy Places and the Principle of Preserving the Status Quo

40.       Having reached this point, we will now return to an examination of the issue in light of Israeli law and case-law.

            Nothing matches the Holy Places as a source for disputes, altercations and bloody flare-ups. The intensity of emotion in regard to these places, deriving from deep in the human heart, is so great that it can ignite conflagrations. It therefore requires that the Executive and the Judiciary approach disputes relating to the Holy Places with extreme caution. This is well known, and we need not elaborate.

            A comprehensive survey of the disputes over the Holy Places in the Land of Israel can be found in S. Berkowitz, The Legal Status of the Holy Places in Jerusalem (Diss., Hebrew University, 1978 (Hebrew)), and the interested reader can review the details there.

41.       The history of the Holy Places in the Land of Israel goes back some three-thousand years, with the building of the First Temple on Mount Moriah by King Solomon. And even a thousand years earlier, since the Binding of Isaac by Abraham in the “Land of Moriah”, Mount Moriah was holy in the eyes of the People of Israel (see in detail, our comments in HCJ 4185/90, pp. 228-240).

            The disputes over the Holy Places originated after the destruction of the Temple, beginning in the seventh century, between Christians and Moslems, and from the thirteenth century to the First World War the disputes were characterized by struggles among the various Christian churches. In 1757, these disputes resulted in what is referred to as the Ottoman Status Quo. The history of this arrangement can be found in the opinion of the late Agranat, P. in the National Circles case (above, p. 196).

 

The British Mandate

42.       With the conclusion of the First World War and the granting of the Mandate for Palestine to Great Britain, the subject of the Holy Places was addressed in articles 13 and 14 of the Mandate.

            The late President Agranat wrote the following in regard to these articles of the Mandate, in the National Circles case, p. 192:

Article 13 defines the responsibility of the Mandatory Power for the Holy Places and the other religious places (buildings or sites) in Palestine. That responsibility included the duty, in regard to such places, to preserve the “existing rights”, securing freedom of access and the free exercise of worship. It was further established that the fulfillment of those duties will be subject to its responsibility to ensure “the requirements of public order and decorum”.

My first comment relates to the meaning of the term “existing rights”. I should note that it is not my intention to address the construction of that term or definitively establish its meaning. My primary purpose is to point out that during the Mandatory period, the responsibility to preserve “existing rights” was generally understood to refer to the duty to preserve the status quo ante bellum, that is, those rights in regard to the Holy Places that actually prevailed prior to the outbreak of the First World War (see: J. Stoyanovski, The Mandate for Palestine (London: Longmans, Green, 1928) p. 293) [emphasis added – M.E.].

            Article 14 of the Mandate provided for the appointment of a special commission in connection with the Holy Places, the composition of which was supposed to be established by the Mandatory, subject to the approval of the Council of the League of Nations. Such a council was never established, and the British government therefore promulgated the Palestine Order-in-Council (Holy Places) (see: the National Circles case, p. 198).

 

The Palestine Order-in-Council (Holy Places)

43.       The Order-in-Council comprised two operative sections. The first, art. 2, was intended to exclude the hearing or determining of any matter in connection with the Holy Places from the jurisdiction of the courts:

Notwithstanding anything to the contrary in the Palestine Order-in-Council, 1922, or any Ordinance or Law in Palestine, no cause or matter in connection with the Holy Places or religious buildings or sites or the rights or claims relating to the different religious communities in Palestine shall be heard or determined by any Court in Palestine.

            The second provision – art. 3 – was a complimentary provision that granted the High Commissioner the authority to decide the preliminary question “whether any cause or matter comes within the terms of the preceding Article”. The High Commissioner’s decision upon the question “shall be final and binding on all parties”. According to art. 3, the authority of the High Commissioner was intended to be temporary, “pending the constitution of a Commission charged with jurisdiction over the matters set out in the said Article”. As noted, the said commission was never established.

            The late President Agranat addressed the reasons for the promulgation of the Order-in-Council in the National Circles case:

As we saw, the said article (article 14 of the Mandate – M.E.) requires the conclusion that the authority to decide upon rights and claims relating to the Holy Places was not granted to the Mandatory, but was intended for a commission that was to be appointed with the approval of the Council of the League of Nations. Thus, the Mandatory did not think itself – and could not think itself – as having jurisdiction to determine such rights and claims, even by means of the courts that it established in Palestine. It therefore established, by means of the Order-in-Council, 1924, that such matters are non-justiciable. Therefore, it also granted the High Commissioner the limited and “minimal” authority mentioned in art. 3 of the Order-in-Council – an authority that has nothing to do with the substantive determination of disputes in relation to the Holy Places (ibid., at p. 202).

President Agranat went on to say (at p. 203):

If one were to ask how, under such circumstances, the Mandatory thought to fulfill … the responsibility placed upon it in regard to the Holy Places under art. 13 of the Mandate – the necessary answer is twofold. First, inasmuch as the article established that the responsibility to preserve the “existing rights” and secure free access and the free exercise of worship was subject to the obligation to ensure the requirements of public order and decorum in those places, therefore the Mandatory conducted itself (or purported to conduct itself) in accordance with the principle that the latter duty precedes the others, and that it is required to fulfill it without addressing the merits of the rights and claims, which were a dispute between the competing religious sects. But concurrently, it was required to act, to the extent possible, to preserve – and this is the second principle, which will be further discussed – the situation that it apprehended to be the “status quo” [emphasis added – M.E.].

44.       In 1929, L.G.A. Cust, the former District Officer of Jerusalem, prepared a secret report for the Mandatory government: The Status Quo in the Holy Places (hereinafter: the Cust Report). The report was intended to aid the officers of the Government of Palestine in in deciding upon the  interpretation and application of the Status Quo in the Holy Places (see the Report’s Introductory Note, written by H.C. Luke, the Chief Secretary to the Government of Palestine). The Report did, indeed, serve as a basis for the application of the Ottoman Status Quo during the Mandate period (see: Berkowitz, above, at p. 34).

            The report addresses in great detail the various rights granted to the Christian communities in the Holy Places – the Church of the Holy Sepulchre in Jerusalem, the Sanctuary of the Ascension on the Mount of Olives, the Tomb of the Virgin at Gethsemane, and the Church of the Nativity in Bethlehem. As an example of the great detail in regard to the Holy Places – detail that was a practical necessity due to the many disputes – we will present the Report’s summary of the situation in the Church of the Holy Sepulchre. Rights are claimed in this church by the Orthodox, the Latins, the Armenians, the Copts, the Ethiopians, and the Jacobites:

In the various component parts of the Church the position at the present moment can be summarized as follows:—

(1) The Entrance Doorway and the Facade, the Stone of Unc­tion, the Parvis of the Rotunda, the great Dome and the Edicule are common property. The three rites consent to the partition of the costs of any work of repair between them in equal proportion. The Entrance Courtyard is in common use, but the Orthodox alone have the right to clean it.

(2) The Dome of the Katholikon is claimed by the Orthodox as being under their exclusive jurisdiction.  The other Communities do not recognize this, maintaining that it is part of the general fabric of the Church, and demand a share in any costs of repair. The Orthodox, however, refuse to share payment with any other Community. The same conditions apply mutatis mutandis to the Helena Chapel, claimed by the Armenians, and the Chapel of the Invention of the Cross claimed by the Latins.

(3) The ownership of the Seven Arches of the Virgin is in dispute between the Latins and the Orthodox, of the Chapel of St. Nicodemus between the Armenians and the Syrian Jacobites, and of the Deir al Sultan between the Copts and Abyssinians. In these cases neither party will agree to the other doing any work of repair or to divide the costs.

(4) The Chapel of the Apparition, the Calvary Chapels, and the Commemorative shrines are in the sole possession of one or other of the rites, but the others enjoy certain rights of office therein. Any projected innovation or work of repair is to be notified to the other rites.

(5) The Katholikon, the Galleries and the Chapels in the Court­yard (other than the Orthodox Chapels on the West) are in the exclusive jurisdiction of one or other of the rites, but subject to the main principles of the Status Quo as being within the ensemble of the Holy Sepulchre.

(Cust Report, pp. 14-15. The Cust Report also included reference to the Jewish Holy Places – the Western Wall and Rachel’s Tomb (Cust Report, pp. 43-48)).

 

The Western Wall

45.       In HCJ 4185/90, we discussed the regard of the Jewish people to the Western Wall at length, and we will present a summary of that discussion:

…The Temple Mount is the holiest place, the first in its level of holiness, for the Jewish people for some three-thousand years, ever since Solomon built the First temple on Mount Moriah (II Chronicles 3:1), and Mount Moriah itself was holy for the People of Israel even a thousand years earlier, since the Binding of Isaac by Abraham – Patriarch of the Jewish People – in the “Land of Moriah” (Genesis 22:2). The Temple Mount is Mount Moriah, “and Isaac our forefather was sacrificed in the Temple” (Maimonides, Laws concerning the Chosen House, 2:1-2; 8:1). This primary holiness of the Temple Mount remains to this very day, even following the destruction of the First and Second Temples: “There is no sanctuary for all generations except in Jerusalem and on Mount Moriah … as it says (Psalms 132:14): This is My resting place forever” (Maimonides, ibid., 1:3). And the western wall of the Temple Mount (the Western Wall), which stands to this very day, is the holiest site in Jewish tradition (at p. 244).

            When the Land was conquered by foreigners, each conqueror had a special interest, of varying extent, in the Temple Mount (see in detail, HCJ 4184/90, at pp. 240-243). Even in those situations, Jews maintained their connection with the Temple Mount and conducted prayers there throughout all the years of exile (see ibid., at pp. 245-256). And just as the Temple Mount, and the Temple that stood upon it, was a symbol of the Jewish religious world and of the Jewish nation’s political sovereignty over Israel, so the Western Wall, the remnant of our destroyed temple, was the holiest place for the Jewish People, and symbolized its desire and aspiration for the return of national sovereignty (see HCJ 4185/90, at pp. 228-229, 232, 233-234, 237-239, 270-271).

            In modern times, the disputes around the Western Wall have increased, along with attempts to deny Jewish historical rights to the site:

At that time (the middle of the nineteenth century) there were many attempts by the Jews to improve their standing at the site most holy to them. In the 1850’s, Hakham Abdallah of Bombay [Rabbi Ovadia (Abdallah) Somekh] tried to buy the Wall, but failed. [Moses] Montefiore unsuccessfully tried to obtain a permit to better the lot of the worshippers by placing benches (or large stones) for sitting, and erecting a rain canopy above the area, but the Jews were permitted only to pave the area. There are testimonies that a table for reading the Torah, as well as a canopy, were occasionally installed, but these arrangements were temporary and were regularly rescinded at the demand of the Waqf, which feared that the Jews would obtain rights over the area. In 1887, Baron Rothschild came up with a plan to purchase the Mughrabi Quarter, remove its dismal stones and – with the consent of the Jerusalem rabbis – turn it into a Jewish trust … but the plan was abandoned for reasons that have remained largely unknown to this day … On the eve of the First World War, the Anglo-Palestine Bank attempted to purchase the Western Wall area for the Jews, but the negotiations were interrupted by the outbreak of war. In the meantime, Jews began to write on the Wall, hammer in nails, place notes in it, and erect prayer furnishings and benches, a mehitza to separate between men and women, a glass-enclosed case for candles, a table for reading the Torah, etc. This led the head of the Waqf to lodge a complaint, in 1912, with the Turkish authorities, and they ordered the removal of all the above furnishings – that had, in the meantime, become almost a tradition – in order to prevent Jewish “possession” of the Western Wall.

After the Balfour Declaration and the Mandate, Jews were granted recognized national status in Palestine, and they began to emphasize the importance of the Western Wall as a national symbol, in addition to its traditional religious significance. As opposed to this, the Mufti employed … the claim that the Jews were trying to take over the Wall in order to incite his flock against “the Zionists”. Thus, without any religious or historical basis, he declared the Wall to be a holy Moslem site. The Western Wall, to which Moslems had never before ascribed any importance – and which, at times, they even did not refrain from soiling in order to anger the Jews – was now called “Al Buraq”, in honor of Muhammad’s horse, which the Prophet allegedly tethered to the Wall during his legendary visit to Jerusalem. Interreligious friction concerning the Western Wall continued throughout the 1920’s. In order to aggravate the Jews, the Mufti, who looked down at the Wall from his office in the adjacent “Mahqama”, ordered the making of an opening at the southern end of the Wall, at the Mughrabi Gate, such as to turn the prayer plaza from a dead-end into a thoroughfare for pedestrians and animals, in order to emphasize Moslem ownership of the Wall, several layers of stone were added (on the north), and a wall was built on the northern side, such that those who passed through its gate disturbed the worshippers. On the other side of that wall, adjacent to the Temple Mount, long and loud Moslem ceremonies were intentionally conducted. All of this in addition to the complaints which served to intensify the interreligious tensions. The Moslems complained, in particular, about the erection of prayer furnishings in the plaza by the Jews, and their complaints led to the forcible removal – by the British police – of the separation between men and women on Yom Kippur (in 1928). In August 1929, an incited Moslem mob stormed through the opening that the Mufti had opened on the southern end of the plaza, attacked the worshippers and destroyed religious objects. Several days later, the mayhem spread, and the murderous “1929 Arab riots” began …

In response to these events, the British established a commission of enquiry. The report of the commission included an express comment in regard to the Mufti’s use of the Al-Buraq legend to incite against the Jews. In addition, the report recommended the establishment of an international commission to resolve the “Wailing Wall controversy”. Such a commission was appointed by the League of Nations. Its members were Swiss, Swedish and Dutch, and it conducted the “Wall trial” in Jerusalem in the summer of 1930. Its report (of December 1930) established that the Moslems had absolute ownership of the Wall, but the Jews had an uncontestable right to access it for prayer. However, it also established that the Jews did not have a right to place benches in the plaza, nor to blow the shofar. The Arabs rejected the report’s conclusions, while the Jews accepted them. However, the prohibition upon blowing the shofar was not acceptable to the Jewish public, which viewed it as a harsh insult. Every year, young nationalist Jews continued to blow the shofar at the Wall at the end of Yom Kippur, which always led to the intervention of the British police and to arrests (HaEncyclopedia HaIvrit, vol. XX (1971), s.v. “HaKotel HaMa’aravi”, pp. 1122-1124).

            As for the conclusions of the commission:

They were given the force of law in The Palestine (Western or Wailing Wall) Order-in-Council, 1931. It is generally agreed that this Order-in-Council breathed its last breath with the establishment of the State of Israel (the National Circles case, p. 208). (On the Western Wall, also see: M. Ben Dov, M. Naor, & Z. Aner, The Western Wall, 13th ed. (1989) (Hebrew).

 

The Liberation of the Western Wall in the Six Day War

46.       With the Jordanian occupation, in 1948, access to the Western Wall was denied to the Jewish residents of the State of Israel. During this period – as far as the Israeli legislature was concerned – there was no need for any specific law treating of the Holy Places, inasmuch as they were in foreign hands. This situation changed with the liberation of the Western Wall in the Six Day War. We addressed this in HCJ 4185/90, above, pp. 246-247:

In the Six Day War, when the Kingdom of Jordan initiated a military attack against the State of Israel and the Jewish part of Jerusalem, the Temple Mount and the Western Wall were liberated from the Jordanian occupation. In addition to the religio-cultural connection between the Temple Mount and the Jewish People, which was never severed, Israeli political sovereignty over the Temple Mount was restored, as it was for a long period in the history of the Jewish nation, from the building of the First Temple by King Solomon, some three-thousand years ago. The historical circle was closed. At the time of the liberation of the Temple Mount by the Israel Defense Forces, while the battles were still raging, the commanders of the IDF ordered that the Holy Places of other religions not be harmed, and to scrupulously maintain respect for them (see: George Rivlin, Har HaBayit BeYadeinu (Ma’archot) 322-323; Amanat Yerushalayim, ibid., part IV, and the bibliography there). That is how Israel’s fighters felt and ordered, as the prophet Micah prophesied: “For all the peoples walk each in the name of its god, but we walk in the name of the Lord our God for ever and ever” (Micah, 4:5)…

A few days after the liberation of the Temple Mount, the Israeli government decided, for political and security considerations, to order the paratroop company on the Temple Mount to leave the area. A Border Police observation post was erected, and the area was kept under constant surveillance (Schiller, p. 40). The government also decided to allow Moslems to continue to maintain their presence and worship on the Temple Mount. For these very reasons and additional reasons … and in order to prevent friction with the Moslems, the government decided not to permit public worship by Jews on the Temple Mount.

            This reality led the Knesset to adopt the Protection of the Holy Places Law, on 19 Sivan 5727 (June 27, 1967), which we quoted above (para. 12). The provisions of that law were reiterated in sec. 3 of Basic Law: Jerusalem, Capital of Israel, which states as follows:

                        Protection of Holy Places:

3. The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings towards those places.

 

The National Circles Affair

47.       After the liberation of the Temple Mount, Jews sought to pray there, but the police prevented them. When this occurred in 1968, the National Circles Association petitioned the High Court of Justice to order the Israel Police to “provide appropriate security … in order to prevent the disturbance of Jewish prayer on the Temple Mount”, and “to refrain from disturbing Jewish prayer on the Temple Mount”. The petition was assigned to an expanded bench of six judges. The petition was dismissed by a unanimous Court, but the justices’ opinions differed as to the reasons for the dismissal. All of the justices, as well as the State’s attorneys, agreed that the right of Jews to pray on the Temple Mount, per se, was uncontested. In the words of the late President Agranat:

It would be superfluous to point out … that the right of Jews to pray on the Temple Mount is their natural right, rooted deep in the long history of the Jewish People (National Circles, p. 221).

            Nevertheless, the petition was dismissed. The late Silberg D.P. was of the opinion that the petition should be dismissed because the Protection of the Holy Places Law could not be applied without the promulgation of regulations that would provide practical guidelines for exercising the right to pray on the Temple Mount, given that the site is the holy place of worship for two peoples, Jews and Moslems. Inasmuch as the petitioners had not asked that the Minister promulgate such regulations, the petition should be denied (ibid., pp. 153-156). However, he emphasized that, in his opinion, the Court held jurisdiction to consider the petition, even though it concerned a Holy Place, because The Palestine Order-in-Council (Holy Places), which restricted the Court’s jurisdiction, ceased to hold force and was nullified upon the termination of the Mandate (ibid., pp. 156-158).

            Witkon J. was also of the opinion that The Palestine Order-in-Council (Holy Places) was nullified upon the establishment of the State of Israel, or at least upon the enactment of the Protection of the Holy Places Law (ibid., pp. 161-162), but that the right of the petitioners to request the aid of the police for the purpose of conducting prayers on the Temple Mount was limited by the “common-sense test” (ibid., p. 168). As far as the petition was concerned, “the situation is sensitive and dangerous due to the interreligious situation, and the site is ripe for trouble” (ibid.). Therefore, there were no grounds for the intervention of the Court in the discretion exercised by the police in deciding not to extend assistance to the petitioners (ibid., pp. 166-168).

            Berenson J. was of the opinion that The Palestine Order-in-Council (Holy Places) continued to be in force, and therefore, inasmuch as the petition concerned a Holy Place, the Court lacked jurisdiction to hear or determine the issue. The Government was authorized to address the issue, in accordance with sec. 29 of Basic Law: The Government, which establishes: “The Government is competent to do in the name of the State, subject to any law, any act the doing of which is not enjoined by law upon another authority.” (ibid., pp. 170-178). That was, essentially, the view of the late Kister J., as well (ibid., pp. 182-189).

            As opposed to them, the late Agranat P. was of the opinion that the Protection of the Holy Places Law impliedly repealed the Palestine Order-in-Council (Holy Places) pro tanto. The Protection of the Holy Places Law established substantive rights in regard to the prevention of the desecration of a Holy Place, freedom of access to the Holy Place, and in regard to injury to the feelings of the various religious groups towards their Holy Places (see sec. 1 of the Law). But the Law did not say so much as a word in regard to the right of worship at the Holy Places. In the view of Agranat P., the Protection of the Holy Places Law thus repealed the Order-in-Council in regard to anything repugnant to that Law, but the Order-in-Council remained in force in regard to the right of worship, which was not addressed by the Law. Therefore, the Court held jurisdiction to address the prevention of desecration of a Holy Place, but it did not hold jurisdiction to hear claims in regard to freedom of worship in the Holy Places. The treatment of that matter was granted to the Executive branch (National Circles, pp. 218-228).

            Inasmuch as two of the justices – the late Silberg D.P. and the late Witkon J. – were of the opinion that the Order-in-Council was null and void, and two of the justices – Berenson and Kister JJ. – were of the opinion that the Order-in-Council remained in force, the result was that the opinion of Agranat P. – that the Order-in-Council was repealed in part, but remained in force in regard to rights of worship in the Holy Places – prevailed. This is not the place to elaborate further.

 

The Orthodox Coptic Patriarch of Jerusalem v. Minister of. Police Case

48.       A good example of the extreme sensitivity of the Holy Places can be found in the Coptic Patriarch case. In HCJ 109/70 Orthodox Coptic Patriarch of Jerusalem v. Minister of. Police, IsrSC 25(1) 225 (hereinafter: the first Coptic Patriarch case), this Court addressed a dispute between the Coptic religious community and the Ethiopian religious community. The subject of the dispute was two chapels, “The Chapel of the Four Living Creatures” and the “Chapel of Saint Michael” (adjacent to the Church of the Holy Sepulchre, whose “division” among the various Christian communities we addressed above (para. 44) in the Cust Report), and the passage through which they are entered. In practice, control of the passage and the chapels is maintained by affixing locks on the doors to at the ends of the passage and holding the keys used for opening and closing them. Until the event that led to the petition, the passage and the chapels were controlled by the Copts, but the Ethiopians claimed an exclusive right to possession and worship. During the Easter celebrations of 1970, while the Copts were standing in prayer in the Church of the Holy Sepulchre, the Ethiopians changed the locks affixed to the doors at the two ends of the passage. Pursuant to that, the Coptic Patriarch submitted a petition to this Court, asking that the Court order the restoration of the preexisting status (the first Coptic Patriarch case, pp. 229-234).

            In the Court’s judgment (per Agranat P., Landau, Berenson, Witkon and Kister JJ. concurring), Agranat P. emphasized that the Court would not address the conflicting claims of the parties concerning the disputed rights of ownership and possession, inasmuch as the Court lacked jurisdiction, as was held the National Circles case (the first Coptic Patriarch case, pp. 234-235). However, Agranat P. was of the opinion that the petitioner’s prayer for relief was well founded in principle, based upon the prohibition of self-help. Therefore, on 19 Adar 5731 (March 16, 1971, he ordered that the order nisi issued against the Minister of Police be made absolute, but that “… the implementation of the order be postponed until April 6, 1971, in order to allow the Government, if it find appropriate, to exercise its authority – which it always has – to address the substantive dispute at issue in any manner that it may deem fit. Clearly, in a case as this, the Government may, at any time, issue an order to the parties for the purpose of temporarily regulating the possession, which will be in force until a final decision or arrangement as to the dispute” (ibid., p. 252).

49.       That did not bring the matter to a close. The further developments following the first Coptic Patriarch case are set out in HCJ 188/77 Orthodox Coptic Patriarch of Jerusalem v. Government of the State of Israel, IsrSC 33 (1) 225 (hereinafter: the second Coptic Patriarchate case). The Government issued an interim order not to change the possession of the two Chapels, that is, to leave the possession in the hands of the Ethiopian community, while allowing the Coptic community a right of access. The Government appointed a ministerial committee to decide the dispute between the two churches. The ministerial committee held many meetings, heard detailed arguments, and tried – to no avail – to bring the parties to a compromise. Four years passed, the Government changed, and a new Prime Minister was elected in 1977. Then Prime Minister, the late Mr. Menachem Begin, decided to hand the entire matter to the Ministerial Committee for Jerusalem. That committee established a sub-committee of its members to address the Coptic-Ethiopian dispute after the petition was submitted in the second Coptic Patriarchate case, in which the Court was asked to implement the order absolute issued in the first Coptic Patriarch case. The sub-committee held many meetings, and it too heard the arguments of the parties. The Court made an additional attempt to bring the parties to an agreement, but all to no avail. In the end, when the Court was forced to render judgment, the opinions of the justices were divided.

            In his dissenting opinion, Landau D.P. (Witkon J., concurring in principle) took the view that the petition should be granted, and the Government should be ordered to decide the Coptic Patriarchate’s claim within a reasonable period (ibid., at pp. 241, 248-249). The majority of the Court – Asher, Bechor, and S. Levin JJ. – was of the opinion that the petition should be denied because “the time dimension for deciding is a matter regarding which there is almost nothing in common between the approach of the Court and the Government’s approach to it” (ibid., p. 246).

            This is what occurred in one example of a dispute and disagreement in regard to one of the Holy Places. It is an important warning in regard to the issue before us. And with this we conclude our examination of the history of the Holy Places.

50.       An examination of the history of the Holy Places shows the very sensitive nature of these places to which disputes, disagreements and strong emotions are inherent. The treatment of the Holy Places is characterized by extreme care and moderation, attempts to achieve compromise and mediation between the parties, and by refraining from unequivocal rules and definitive solutions. Such an approach is inappropriate to the nature of the Judiciary, which is used to deciding disputes definitively on the basis of clear legal rules. Therefore, in practice, the treatment of the Holy Places was entrusted to the Executive branch. It relied upon the long-established principle of maintaining the status quo. Preserving the existing situation is the only means that ensures that peace and quiet, and public decorum – so necessary for places imbued with holiness – will be maintained.

 

Freedom of Worship and the Near-Certainty Test

51.       The principle of preserving the status quo can be presented in terms of legal rules that we employ in similar matters. Such is the rule by which a person’s freedom of worship is not absolute, but must retreat where there is a probable threat of harm to public order. This legal rule would seem to be nothing other than the status quo principle in different clothing, more appropriate to the Holy Places.

            Freedom of worship and religion is a fundamental right of our legal system. This was held in HCJ 262/62 Peretz v. Kfar Shemaryahu Local Council, IsrSC 16 2101; IsrSJ 4 191, and it is undisputed:

Religion and ritual are not merely matters of legal ruling to be gathered from the books but essentially matters of emotion, faith and reverence, and even of taste and sensitivity, which are not to be measured by any objective scale equal for all (at p. 2105 per Cohn J. [IsrSJ  4 194]).

…the Council in its decision (not to rent a public hall to members of the Progressive Judaism movement for the festival of Sukkot – M.E.) displayed a bias to one religious denomination and denied the right to exist of another, and in a somewhat arrogant tone decided that the form of service hitherto followed in the village is capable of providing for the religious requirements of the local inhabitants. I would have thought that it is a matter for each individual to search his own soul and decide which form of religious service and which form of prayer would give him inner satisfaction and elevation of spirit. If unity in public life and avoidance of division is what the Council strives for, compulsion will not serve to achieve such aims, and not at the expense of freedom of conscience and religion (ibid., p. 2113 per Witkon J. [IsrSJ 4 204]).

And in the words of Sussman P:

…but neither is it up to them (the Council – M.E.) to decide that the local inhabitants should pray in one form and not in another … But the Declaration of Independence guarantees freedom of religion and worship to every citizen of the State, and even if the Declaration itself does not grant the citizen a right enforceable by judicial process, the way of life of the citizens of the State is determined by it and its fundamental nature obliges every authority in the State to be guided by it (ibid., at p. 2116 [IsrSJ 4 207]).

            More recently, Shamgar P. wrote in his decision in HCJ 650/85 Movement for Progressive Judaism v. Minister for Religious Affairs IsrSC 42 (3) 377, 381:

Freedom of religion and worship is one of the fundamental freedoms recognized by our legal system, and constitutes a part of it.  The expressions of this freedom are, of course, primarily found in the freedoms of religious expression and action, but that is not sufficient. That freedom also requires, inter alia, that all believers be treated equally, and that governmental authorities refrain from any act or omission in regard to the believers of all movements, as well as their organizations and institutions, that smacks of discrimination.

Therefore, every general act performed in the course of carrying out the functions of a governmental authority requires an open, fair approach that is not conditional upon identification with the views of any movement, but that expresses the equality to which all movements are entitled.

52.       Freedom of worship is not an absolute freedom, and it retreats before other rights and interests:

Freedom of conscience, belief, religion and worship, to the extent that it proceeds from potential to practice, is not an absolute freedom … My right to pray does not permit me to trespass upon another’s borders or create a nuisance. Freedom of conscience, belief, religion and worship is a relative freedom. It must be balanced against other rights and interests deserving of protection, such as private and public property rights and freedom of movement. One of the interests that must be considered is that of public order and safety (HCJ 292/83 Temple Mount Faithful Association v. Jerusalem District Police Commander, IsrSC 38 (2) 449, 455, per Barak P.).

            As for the “balancing formula” between freedom of worship and public order and safety, this Court has held that it is to be found in the “near-certainty test”:

… Freedom of conscience, belief, religion and worship is limited and restricted in so far as required and necessary for the protection of public safety and public order. Of course, before any action is taken that may violate or limit this freedom by reason of harm to public safety, the police ought to adopt all reasonable means at its disposal in order to prevent the violation of public safety without violating the right to belief, religion and worship. Therefore, if the fear is of violence against the worshippers by a hostile crowd, the police must act against that violence and not against the worshippers. But if, due to its limitations, reasonable action by the police is insufficient to effectively prevent the violation of public safety, there is no alternative but to limit the freedom of conscience and religion as may be required for the protection of public safety.

… The power of the police is not unlimited. It is tasked with many responsibilities. Protecting freedom of conscience, belief, religion and worship is one of the duties of the police, but not its only one. It must also protect other freedoms, including the freedom of conscience and religion of others. In such circumstances, there may be a situation in which, despite the actions of the police, the fear of harm to public safety may remain. Does the existence of that fear, which is not certain, justify the denial or limitation of freedom of conscience, belief, religion and worship?

A fear alone … is not sufficient, but absolute certainty is also not required. Israeli law takes a middle ground of near-certainty … It would therefore appear to me that it would be appropriate that the “near-certainty test” serve for establishing the “balancing equation” between freedom of conscience, belief, religion and worship, on the one hand, and public safety on the other (ibid., pp. 455-456).

            The finding that there is near-certainty that the exercise of freedom of worship will harm public safety must have an evidentiary basis. Such evidence may be found in prior experience:

The requirement is of “substantial” evidence … the assessment must be based upon known facts, including past experience. Conjectures, speculations and apprehensions are not enough (HCJ 153/83 Levi v. Southern District Police Commander, IsrSC 38 (2) 393, 411 [English translation: http://elyon1.court.gov.il/files_eng/83/530/001/Z01/83001530.z01.pdf].

            In the Holy Places there is – in light of past experience that we have reviewed at length – an evidentiary presumption that a deviation from the status quo may lead to a disturbance of public order. This evidentiary presumption, together with additional evidence – and perhaps even on its own – may, in appropriate cases, provide the necessary evidentiary grounds required under the near-certainty test to limit the freedom of worship in the Holy Places, and to delimit it due to the need to preserve public order. In the Holy Places, the principle of maintaining the status quo is often nothing more than a concrete expression of the near-certainty test.

 

Freedom of Worship and the Need for finding the Common Denominator of the Worshippers

53.       In the matter of the petitions at bar, the possible clash is not only between the freedom of worship of the Petitioners and the interest in maintaining public order. There is an additional possible clash between the freedom of worship of the Petitioners and the freedom of worship of other worshippers. The legal principle that must apply to the latter – when it arises in the Holy Places – is one that seeks to find the broadest common denominator of all the worshippers. In the Holy Places, there is no choice – in a case of a clash between the freedom of worship of different worshippers themselves – but to try to find the common denominator of all the worshippers, even if, as a result, the freedom of worship of one may come somewhat at the expense of the freedom of worship of another. The special respect attendant to the Holy Places, and their character, require that worship at the Holy Places be conducted quietly and with decorum, without disputes, and in a manner that allows each person to serve his Maker without infringing the worship of his neighbor. There is no way to accomplish this other than by finding the common denominator of all the worshippers.

It was to this test of finding the broad common denominator that the late Kister J, referred in HCJ Ben Dov v. Minister of Religion IsrSC 22 (1) 440, which concerned a clash – in a particular Holy Place – between the members of one religious denomination and another:

… in the area under the jurisdiction of the State of Israel, there are places that are holy to the members of more than one religion, and the legislature wished to treat all religions equally, and protect the place that are holy to each and every religion. On the one hand, the legislature established the requirement of protection in order not to infringe the freedom of access of the members of the various denominations to their holy places, while on the other hand, it established a requirement of protection against desecration and any other harm, as well as to prevent offense to the feelings of the members of the religious communities in regard to those places. Each religion has its various rules and customs in regard to respect, conduct and even the conditions and restrictions upon entering their holy places, and it is not easy to fulfil them all while ensuring the freedom of access of the members of one religion, on the one hand, and respecting and not offending the feelings of some other religion, on the other hand (ibid., p. 448).

            Kister J. addressed this at greater length in the National Circles case, at pp. 180-181:

The freedom of access to pray does not grant a person the right to act in a manner that injures others or the existing arrangements in the place, and the police may prevent such injury. For example: A person who visits a Catholic church, whether or not he is Catholic, and acts in a manner that offends or angers, such as being dressed in a manner that is not appropriate for church, or covering his head when the accepted practice is to uncover one’s head, or who stands while others bow, and certainly talking during a service, or demonstrating derision, cannot complain if the police remove him from the place, and criminal charges may also be appropriate. This is not limited to a church, but applies to any other place that is holy to Christians, as well as to a procession or other ceremony. By the same token, a Christian may not enter a place reserved for priests, nor may a Moslem man enter a women’s mosque.

            And further on, at pp. 181-182:

It is only natural that when a particular site is deemed holy by the members of different faiths, problems and even disputes may arise in regard to the extent that the members of all those faiths may use the site for their ceremonies. Moreover, it may be that the conducting of a ceremony or the placing of religious symbols by the members of one religious denomination may offend the members of another denomination who may deem it as sacrilege (an extreme example in Jewish history was the erecting of a statue or altar of a pagan god in the Temple by Antiochus Epiphanes). In such a case, it may not be possible for the members of different religions to hold their ceremonies at that holy site, but only that the members of the religion whose ceremonies so offend pray as individuals, without any ceremony and without offending the others, and it is also possible that none of the religious groups will be able to conduct regular ceremonies if what one religion views as worship, another sees as sacrilege. Even if the differences are not so great, it would be hard to order the police to permit the members of each and every religion to conduct prayers or worship in the same place, as each saw fit, inasmuch as the matter might result in clashes and riots.

            In some Holy Places, a common denominator may be found among all the worshippers by maintaining the status quo. In such cases, maintaining the status quo is the appropriate path.

 

Local Custom” and the Principle of maintaining the Status Quo

54.       Having arrived at this point, we will now employ these principles to examine the regulation promulgated by the Minister, the validity of which is disputed by the parties.

            As earlier stated, subsection (1a) of regulation 2(a) of the Regulations for the Protection of Holy Places to the Jews states as follows:

            Prohibited Conduct

            2.        (a)                     In the area of the Holy Places, and subject to what is set out in sub-regulation (b), the following is prohibited:

            (1) …

(1a) Conducting a religious ceremony that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place [emphasis added – M.E.].

            This regulation expresses the principle of maintaining the status quo – “local custom” and the status quo are one and the same. In promulgating this regulation, the Minister of Religion did not exceed the authority granted to him by the legislature in the existing Protection of the Holy Places Law, as Shamgar P. explained in HCJ 337/81 Mitrani v. Minister of Transportation, IsrSC 37 (3) 337, 357-358:

The criterion for the validity of secondary legislation is always to be found in the words of the primary legislator. It sets out the boundaries for the actions of the secondary legislator by granting positive authority to carry out secondary acts in defined areas, and in the absence of such a conferral of authority by the primary legislator, the secondary legislator has nothing. The secondary legislator draws its power only from the conferral of authority in the parent law, which defines its permissible operating framework.

            In the matter before us, the secondary legislator acted within the operating framework delineated by the primary legislator. The Protection of the Holy Places Law establishes that the Holy Places – including, of course, the Western Wall – will be protected from desecration and any other violation and from anything likely to violate the feelings of the members of the different religions with regard to the places sacred to them (sec. 1 of the Law). The purpose of the regulation is to realize this law – to prevent the desecration of the Western Wall and violation of the feelings of the worshippers there in regard to the Wall.

55.       There was more than enough evidence before the Minister of Religion that prayer conducted in the manner of the Petitioners – prayer that, as we explained, violates “local custom” – leads to severe, tangible harm to public order, and thereby leads to desecration of the Western Wall. That evidence was presented in great detail at the beginning of our opinion, in the description of the factual background of the petitions (see paras. 4-11).

            The described events create a sufficient evidentiary basis to ground the need for promulgating subsection (1a) of the Regulations in order to prevent desecration of the Western Wall. “… the phrase ‘protected from desecration’ means ‘protection of respect …’” (HCJ 223/67 Ben Dov v. Minister of Religion, at p. 447, per Sussman D.P.). The events that occurred in the Western Wall Plaza when the Petitioners began to pray in accordance with their custom – that is, while wearing tallitot, reading from the Torah, and singing aloud in prayer – demonstrate the severe violation of the respect due to the Wall, and of the desecration. Women sitting and women lying on the Western Wall Plaza, women removed from the Plaza, worshippers throwing mud and dirt, chairs, tables and rocks at one another, and worst of all, the use of tear gas canisters – all intolerable sights at this Holy Place.  And all of this took place in the sight of the media who “happened” to be there. The events that occurred when the Petitioners in HCJ 257/89 attempted to realize their right to pray in the prayer area of the Western Wall Plaza inform us of what may be expected if the Petitioners in HCJ 2410/90 try to pray in that place. It should be noted to the credit of the Petitioners in HCJ 2410/90 that when they were told that their praying at the Wall while wearing tallitot and reading from the Torah would violate local custom and the feelings of the other worshippers, they refrained from conducting their prayers (see para. 11, above), as opposed to the Petitioners in HCJ 257/89 whose conduct precipitated severe, bitter disturbances, while they laid themselves out on the Western Wall Plaza, and so forth, with no thought for the desecration of the Holy Place.

56.       The Petitioners argue that “if the police fear the violence of a hostile crowd against the women worshippers, then it must act against that violence and not against the women worshippers” (sec. 13 (a) of the amended petition in HCJ 257/89). It has already been held in this regard that:

… if, due to its limitations, reasonable action by the police is insufficient to effectively prevent the violation of public safety, there is no alternative but to limit the freedom of conscience and religion as may be required for the protection of public safety (HCJ 292/83, above, p. 455, per Barak J.) [emphasis added – M.E.].

            In the Holy Places, the reasonableness of police action is not evaluated exclusively on the basis of “the means at its [the police] disposal” (ibid., p. 456), but also with regard for the special character of the Holy Place. The sight of dozens of baton-wielding police standing in the city center is not comparable to the sight of dozens of police in a Holy Place. The very presence of those police in a Holy Place can lead to a desecration of the site.  Therefore, when ensuring someone’s freedom of worship may require that the police take such action as dispersing tear gas canisters, we must conclude that such action should not be required of the police in a Holy Place.

57.       Despite the said evidentiary grounds before the Minister of Religion, the Minister did not promulgate the regulation addressed by these petitions immediately following the described events, but first attempted to bring the parties to a peaceful compromise. The Minister was right to adopt that approach, inasmuch as the paths of peace, which are always appropriate, are particularly appropriate in regard to the Holy Places.

            The Minister of Religion was forced to promulgate the regulation to prevent desecration of the Western Wall only when it became clear that the dispute could not be resolved peacefully. An additional virtue of the regulation is that the “local custom” to which it refers is intended not only to prevent desecration of the Wall, but also expresses the broadest common denominator of all the worshippers at the site. As we explained in addressing the halakhic position, prayer in the manner conducted by the Petitioners comprises ceremonial elements that are not acceptable to the overwhelming majority of Jewish communities. The broadest common denominator of all the female worshippers in the Western Wall Plaza is in accordance with the form of worship that has been acceptable in the Western Wall Plaza for generations by the male and female worshippers who visit the site every day, every year, in all seasons, and even by the Petitioners. The common denominator for women praying at the Western Wall is to be found in the manner of prayer that is customary in the overwhelming majority of Jewish communities, which does not include women wearing tallitot and reading the Torah.

58.       In light of all the above, we conclude that the regulation promulgated by the Minister of Religion is valid. Promulgating the regulation was within the Minister’s authority, it was not intended to discriminate among worshippers, but was entirely compelled by the need to preserve the sanctity of the Western Wall. The regulation is a reasonable expression of the principle of preserving the status quo, the principle of preserving public order in a Holy Place, and primarily – in expressing the broadest common denominator of all the worshippers at the site. In this regard, in another context, Shamgar P. wrote in HCJ 156/75 Daka v. Minister of Transportation, IsrSC 30 (2) 94, 103-105:

Not every decision that the Court sees as comprising some measure of unreasonableness is sufficient to invalidate a regulation. For the purpose of the matter before us, the unreasonableness must be extreme and not mere trivial unreasonableness.

                        …

… Here, too, we apply the important principle that the Court will not supplant its own discretion for the discretion of the authority that promulgated the regulation, and the fact that the Court might have established other, more flexible rules had the matter been given to its discretion and authority, does not itself justify invalidating a regulation …

                        ….

The Court will generally exercise great self-restraint in evaluating the validity of secondary legislation.

            And as Olshan P. explained in HCJ 57, 58/53 Tabak Haus v. Haifa Municipality, IsrSC 7 701, 707, the basic tendency of the Court is to validate secondary legislation, to the extent possible, and not to invalidate it.

            Further on in the Daka case (above), Shamgar P. added (at p. 106):

The reasonableness of a regulation cannot be deduced merely from its application in a single concrete case, without also addressing and weighing its general, legitimate purpose. Here, too, reasonableness is not an absolute concept but a relative one. Therefore, a situation may arise in which the weight to be granted to an injury to an individual that derives from the regulation may be reduced when considered in light of the policy that the regulation expresses, which is firmly grounded in the authorizing primary legislation.

            In the case before us, the reasonableness of the subsection of the regulation derives from the policy grounding the regulation, and from the purpose that it seeks to realize – a policy grounded in the Protection of the Holy Places Law – which is the protection of the Holy Place against desecration.

 

Consultation with the Chief Rabbis

59.       As stated, the Petitioners complained of the Minister of Religion’s consultation with the Chief Rabbis prior to promulgating the regulation. This claim is lacks any merit. Section 4 of the Protection of the Holy Places Law expressly states:

                                    The Minister of Religious Affairs is charged with the implementation of this Law, and he may, after consultation with, or upon the proposal of, representatives of the religions concerned and with the consent of the Minister of Justice, make regulations as to any matter relating to such implementation [emphasis added – M.E.].

            In the matter before us, the relevant representatives of the religions concerned are the Chief Rabbis:

Until now, no regulations have been promulgated in regard to the right of prayer on the Temple Mount for the relevant religious communities …

… and when the matter shall reach the Minister of Religion, he will be required to enquire as to the position of the heads of the Moslem religious community and the position of the Chief Rabbinate (the National Circles case, at p. 189) [emphasis added – M.E.].

            The Chief Rabbinate is the “highest halakhic authority in the State” (HCJ 47/82 Foundation of the Israel Movement for Progressive Judaism, above, p. 682). That is all the more so after the enactment of the Chief Rabbinate of Israel Law, 5740-1980, the adoption of which:

Reinforced the status of the Chief Rabbinate as an official religious authority of the entire Jewish public, in accordance with the functions granted to the Council in sec. 2 of the Law (HCJ 47/82, at p. 693).

            The Minister of Religion was therefore required to consult with the Chief Rabbis before promulgating the said regulation.

 

“Local Custom” for Worship at the Western Wall

60.       The Petitioners raised various claims in regard to the differences in the liturgy between the Ashkenazic and Sephardic communities, and so forth, but these claims lack any merit and have nothing in common  with the subject of the petitions regarding a prayer service conducted by women wearing tallitot, reading the Torah, and so forth. Another strange claim raised by the Petitioners is:

Both the International Commission (for the Wailing Wall, 1930 – M.E.), and even the Shaw Commission Report on the Palestine Disturbances of August 1929 … make it clear that at that time there was no mehitza at the Wall, or any other furnishings other than a portable Torah ark that could be brought to the Wall on specified days (para. 64 of the summary pleadings, above).

            In this regard, the Petitioners in HCJ 2410/90 appended photographs from various periods, prior to 1948, from which it appears, as they state it, that: “There was not even a custom of separating Jewish male and female worshippers at the Wall” (para. 65 and appendices P/19-P/23 of the summary pleadings, above).

            It were better that these claims had not been raised at all. As we stated above:

Interreligious friction concerning the Western Wall continued throughout the 1920’s … The Moslems complained, in particular, about the erection of prayer furnishings in the plaza by the Jews, and their complaints led to the forcible removal – by the British police – of the separation between men and women on Yom Kippur (in 1928). In August 1929, an incited Moslem mob stormed through the opening that the Mufti had opened on the southern end of the plaza, attacked the worshippers and destroyed religious objects. Several days later, the mayhem spread, and the murderous “1929 Arab riots” began (HaEncyclopedia HaIvrit, vol. XX, pp. 1123-1124) [emphasis added – M.E.].

            How can one infer the lack of a “local custom” in regard to the separation of women and men from a situation that was forced upon the Jews by the decree of a foreign ruler? I am at a loss.

            The question before the Court is, therefore, whether it accords with the “local custom” at the Wall for women to pray while wrapped in tallitot or reading the Torah, and whether women pray there in the framework of a “minyan” and while raising their voices in song. The answer to this question is clear. It can be found in the affidavit of Rabbi Getz, according to which:

Women’s prayer in the manner requested by the Petitioners has never taken place in the Western Wall Plaza, not during all the years that I have served as Rabbi of the Wall since 1986 (para. 3 of the affidavit of Rabbi Getz of Feb. 7, 1991).

            The Petitioners claimed that there was an event in which people prayed “in an identical or similar way” in a ceremony at the Wall (para. 18 (b) of the petition in HCJ 2410/90. Needless to say, that is insufficient to testify to the “local custom”, as Rabbi Getz testified:

If ever there was such an event in the Western Wall Plaza, as claimed in the petition, it was an exception that is neither evidence or instructive as to the rule (para. 3 of the affidavit of Rabbi Getz of Feb. 7, 1991).

 

Conclusion

61.       It is clear beyond all doubt that granting the petitions before us would lead to particularly harsh, bitter and sharp dispute, as well as to violence that would end in bloodshed. It is an uncontested fact that the overwhelming majority of worshippers who visit the prayer area at the Western Wall every day and every night are of the honest, good-faith opinion and belief that the changes requested in the two petitions before the Court amount to desecration of the prayer area at the Western Wall. Not only will it result it extremely violent and severe dispute, but in terms of halakha, both men and women will be prevented from praying at the Wall. At present, access to the Wall and prayer at the Wall are open and permitted to every Jewish man and women, who pour out their hearts before God as each women and man desires, and as each wishes to speak with his Maker, whether by heart or from a book. It is would be unthinkable that different dates and times for prayer would be instituted at the prayer area at the Western Wall for the prayer services of different groups, and that the fate of this holy site would be its division into times and periods among the members of the Jewish People, their holidays and different movements, as has been the fate of the Holy Places of other religious communities, as we have learned and seen in what we stated above (paras. 44, 48, 49). As stated above (para. 39), the substantive change in the status of women and their place in the current century, to which religiously observant women are full partners, may be eventually show its effects even in this complex, sensitive area of women’s prayer groups, as stated above. But the prayer area at the Western Wall is not the place for a “war” of deeds and opinions in this regard. At present, the reality is that the overwhelming majority of halakhic decisors and the Chief Rabbis of Israel are of the opinion that granting the petitions, even that in HCJ 2410/90, would constitute a desecration of the prayer area at the Western Wall, which is the one and only place in all the Jewish world, divided in opinions and customs, where free access is guaranteed to every Jew, man and women, regardless of who they are. The Western Wall is a spiritual and real, special and unique asset that unites all the Jewish People, and we are obligated to protect it against every challenge. That objective can be achieved by finding the common denominator of all the Jewish People, whoever they may be, who come to pour out their hearts before their Creator in the prayer area at the Western Wall. That objective will be achieved only if we strictly observe what is set out in regulation 2 (a) (1a) that was promulgated by the Minister of Religion, in consultation with the Chief Rabbis, and with the approval of the Minister of Justice, which prohibits “Conducting a religious ceremony that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place”. In light of all the above, this regulation, promulgated by the Minister of Religion under the authority granted him by the legislature, is reasonable and even necessary, and is not tainted by any extraneous consideration that might invalidate it. Granting the petitions before the Court would constitute a substantive change in the local custom, and the conducting of prayer services in the manner requested in the petitions would constitute a grave offense to the feelings of the overwhelming majority of worshippers in regard to the place. An important principle of this Court is that we do not intervene in secondary legislation except when it suffers from extreme unreasonableness or is tainted by extraneous considerations. That is not the case here. The purpose of the regulation is to find the common denominator in order to facilitate the prayers of every Jew, whomever he may be, in the place that is holiest to the Jewish People, while preventing severe, violent dispute in this one unique place that unites the Jewish People. That is a good objective. It is reasonable and desirable in accordance with the facts and circumstances that we presented above.

            Clearly, it goes without saying that the Petitioners are entitled to pray in accordance with their custom in their communities and synagogues, and no one will stand in their way. The freedom of worship of the Petitioners stands. But due to the uniqueness of the Western Wall, and the great sensitivity of Jewry’s holiest site, prayer at that one unique place must be conducted in accordance with the common denominator that makes it possible for every Jew to pray there – the local custom that has been observed there for generations, and that should be strictly adhered to.

62.       Along the way, we addressed the concept of “true judgement that is according to the truth”, which the Sages deemed a proper and desirable objective for which a judge should strive in rendering judgment (paras. 37 and 38; and see my book,  Jewish Law – History, Sources, Principles above, pp. 226-232, 1075, and elsewhere). We addressed two interpretations of this concept, and it would seem fitting to conclude this discussion with an additional interpretation that was given to the task of a judge in making “true judgment that is according to the truth”. This interpretation is that of Rabbi Joshua Falk Katz, one of the greatest and earliest commentators of the Tur and the Shulhan Arukh, in seventeenth-century Poland, who wrote (Drisha, Tur, HM 1(b)):

Their intention in saying “true judgement that is according to the truth” means to say that one judges in accordance with the place and time of the matter so that it be according to the truth, with the exception of not always actually judging in accordance with actual Torah law. Because sometimes the judge must rule beyond the letter of the law in accordance with the time and the matter, and when he does not do so, even though he renders true judgment, it is not according to the truth. As the Sages said: Jerusalem was only destroyed because they based their decisions only upon Torah law and they did not go beyond the letter of the law. And concerning that it is said: You must not deviate from verdict that they announce to you either to the right or to the left, on which the Sages said: Even if they say to you that right is left, etc., and all the more so if they say the right is right, etc.

            When treating of a subject as sensitive and central to the world of halakha, in the place that is holiest in the Jewish world and Israel in the generations following the destruction of the Temple, it is only right and fitting that we act beyond the letter of the law, in accordance with the common denominator of all Jews, whomever they may be, so that all can go to the Western Wall at any time or hour to pour out their hearts before their Maker, for the peace and unity of Jerusalem their capitol. In that, we will have rendered true judgment that is according to the truth.

            I therefore recommend to my colleagues that the petitions be dismissed.

            In order to bring the parties to the observance of the law and what is beyond the letter of the law, I recommend that we do not impose costs.

63.       I have read the opinion of Justice S. Levin, and I see no need to add to my clearly detailed opinion. I will, however, address my colleague’s conclusion, that:

A total ban upon conducting worship services at the site of the Wall should not be imposed merely because there are groups that oppose them, and considerations of certain and proximate danger of disturbance of the peace need not necessarily justify imposing such a ban. Rather, it is the duty of the relevant authorities to see to the appropriate conditions in order to strike a balance among all the relevant interests, in order that all who seek to congregate at the Wall and its plaza can fully exercise their rights without overly offending the sensitivities of others.

            Accordingly, he is of the opinion that the petitions should be granted.

            This is an absolutely new approach in the case law of this Court, and it stands in utter contradiction to a long line of decisions since the National Circles case. This decision concerns the holiest place in the Jewish world on the eastern side of the Wall, that is, the Temple Mount, upon which the First and Second Temples stood, and which housed the Holy of Holies (see in detail: HCJ 4185/90, pp. 228-247), and the holiness of the Western Wall derives from its being “the last remnant of our Temple”. In all of those decisions, without exception, it was held, on the one hand, that the right of members of the Jewish People to pray on the Temple Mount is undisputable and eternal, it exists from time immemorial and will continue for all the future, and other such superlatives. However, on the other hand, in order to preserve public order and prevent a proximate threat of disturbances and rioting, Jews were prevented from praying on the Temple Mount. Freedom of worship thus retreated before the need to preserve public order to the point of denying any Jewish religious worship on the Temple Mount. The extent of this approach can be seen in a decision issued by this Court some eight months ago, on April 4, 1993, in which we addressed, inter alia, the petition of a Jew who wished to enter upon the Temple Mount “while wearing tefillin and a tallit or carrying holy ashes …” (HCJ 67/93 “Kach” Movement v. Minister of Religious Affairs, IsrSC 47 (2) 1, 3). The petition was denied. The reasons for the decision (per Goldberg J., Barak and Mazza JJ. concurring) stated, inter alia (at pp. 5-6):

It would not be superfluous to point out that the position of the State Attorney’s Office in the aforesaid HCJ 99/76 was … that: ‘The Petitioner’s right of access to the Temple Mount is a fundamental right, established by law, and is not and never was disputed. We may even assume that no one will bother to enquire if, in the course of visiting this exalted place, he chooses to speak quietly with his Maker. But if what he desires is a demonstrative display of prayer … the matter is different.

This would appear to be consistent with the claim of the Petitioners. If their right of access to the Temple Mount is a fundamental right that is not infringed even if, while realizing it, the visitor silently speaks with his Maker, then why should silent prayer be prevented simply because the Petitioner has a prayer book or other holy text in his possession, or is wearing tefillin or a tallit? However, in the opinion of the police, there is a real fear that such an act would be interpreted as a provocation, and would lead to a disturbance of public order that might even result in bloodshed …

The question is, do we have the ability to decide that the fear raised by the police is groundless, and that its considerations are unfounded to the point that we will intervene? I believe that the answer is self-evident in view of the exceptional sensitivity of the place, which is unparalleled in any other place in the country. Therefore, even if we understand the desire of a visitor who innocently wishes to pray privately while carrying religious paraphernalia, we cannot, at this time, deem the positon of the police to be flawed in terms of its reasonableness.

            And here one may ask: How is it possible that a single, solitary Jew cannot ascend to the Temple Mount (and we are concerned with those parts of the Temple Mount to which entrance is permissible in the opinion of many great halakhic scholars – see in detail HCJ 4185/90, at pp. 259-268) while wearing a tallit or holding a prayer book in his hand, when such an absolute prohibition of freedom of worship is justified by this Court by reason of the existence of a threat to public order and rioting, while as opposed to this, prohibiting prayer by women wearing tallitot and reading the Torah, which involves only a certain concession in the religious ceremony, and other than that they are free to pray as they wish at the Wall, and while there is no doubt that this has always been the local custom, and where there is a nearly certain danger of riots, disputes and tear gas canisters – as occurred in the past – nevertheless, such a change should be permitted in order to prevent an infringement of freedom of worship! How is the Temple Mount on the east of the Wall different from the prayer plaza on the west of the Wall, both of which are Holy Places? According to the decisions of this Court, any Jew, even one individual, is prohibited from praying on the Temple Mount, and that is consistent with the principle of freedom of worship, but prohibiting the inclusion of a single element in the prayer service, one that was never customary at the Wall and to which the overwhelming majority of worshippers there are extremely opposed, such a prohibition constitutes an infringement of freedom of worship? Therefore, it is fitting and proper that, in order to prevent discrimination, a commission be appointed, as my colleague the President proposes, and that when the Court is called upon to address this subject again, it will consider the subject of freedom of worship in its entirety, on both sides of the Western Wall. As I stated above, the petitions should be dismissed.

 

President M. Shamgar:

1.         These petitions focus, in theory and practice, upon the interpretation and meaning of sec. 3 of Basic Law: Jerusalem, Capital of Israel, and the Protection of the Holy Places Law and its regulations.

            These statutes express the State’s concern in preventing the desecration and any other violation of the Holy Places. At the same time, the said provisions establish that the Holy Places will be protected against anything that might violate the freedom of access of the members of the various religious communities to their Holy Places or their feelings in regard to those places.

            This provides statutory expression to the statements of the Declaration of Independence, which declares that the State of Israel will ensure freedom of religion and conscience, and will protect the Holy Places of all religions.

2.         The Wall – which bounds the Temple Mount on its western side – was sanctified in the religious tradition of the Jewish People as the remnant of our Temple. For thousands of years, it has represented in our national tradition what we lost with the destruction of the Temple, as well as the continuity of our national existence. In the eyes of the religious halakha, it is a mikdash m’at; from a nationalist perspective, it symbolizes generations of suffering   and the aspiration for a return to Zion and the return of our diaspora, and therefore, it expresses the strength and vitality of the nation, its ancient roots and its eternality. Therefore, inter alia, the opening ceremony of Remembrance Day for the Fallen Soldiers of Israel is held there, and soldiers are sworn in while facing it.

            The importance of preserving it – its exalted, esteemed status and the unifying, fortifying power it radiates to all parts of the nation in Israel and in the Diaspora – increased and was reinforced due to the temporary restrictions imposed, in practice, by the governments of Israel upon the freedom of access of Jews to the Temple Mount.

            In light of the status of the Western Wall in the public mind, one can understand the concern and diligence in regard to the following two objectives: maintaining freedom of access to the Wall, and upholding the obligation to preserve respect for the place and all its visitors. Expression was already given to these different objectives in the law enacted in 1967: In speaking of desecration – against which the Holy Place must be protected – the legislature was referring to harmful acts that by their nature or consequences violate the holiness of the site. At the same time, it established that freedom of access must be ensured to anyone who regards the place as sacred, and infringement of that free access must be prevented. The law further instructs that violation of the feelings of the members of the religious community that regard the place as sacred be prevented (and see sec. 2 (b) of the above law[10]). Understandably, these primary objectives are not necessarily compatible in all possible circumstances, and when a conflict arises, an appropriate path must be found to balance these objectives in order to ensure that the fundamental purpose is not infringed.

            It is therefore sad when a Holy Place become a scene of verbal or physical dispute, and when people conduct themselves there in a manner that does not show respect for the place and its visitors. We should be mindful that it is difficult to preserve the honor of a Holy Place if we do not also respect the honor of those who visit it.

            Therefore, we have emphasized on various occasions that the sons and daughters of a free society in which human dignity is a fundamental value, are asked to respect the personal-emotional feelings of the individual and his dignity as a person, while understanding that the personal-emotional priorities and the manner of expressing them differs from person to person. Thus we were of the opinion in CA 294/91 Jerusalem Community Jewish Burial Society v. Kestenbaum, IsrSC 46(2) 464, that a free society is sparing in imposing limits upon the choices of the individual and acts with patience and tolerance, and even tries to understand the other, even when he chooses paths that the majority does not deem acceptable or desirable.

            However, we must bear in mind that tolerance and patience are not unidirectional norms, but rather they are peripheral and multidirectional. An enlightened society also respects the beliefs and opinions of those who fiercely hold them and identify with them in a manner that is not necessarily the manner of the average person. Understanding others is more important than self-understanding. With all due regard for the aphorism “know thyself”, borrowed from another cultural tradition, it cannot replace adopting the principle of tolerance as expressed in the great rule: “what is hateful to you, do not do to your fellow”. Tolerance is not a slogan for acquiring rights, but a standard for granting rights to others. Ultimately, tolerance must be mutual. Belligerent demonstrations that sometimes draw upon the practices of violent societies from the east and west are not appropriate to it.

            All of this leads us to the bumpy road of trying to balance between approaches and beliefs that are incompatible. In this regard, it is worth remembering that exclusive focus upon presenting questions and problems before the Court – the “wonder drug” of our generation – is not necessarily the appropriate solution or the desirable remedy for all that ails us. At times it comprises the desire for an imposed solution, grounded in a judicial order, when an attempt at reaching agreement and discussion between the various approaches seems more difficult. However, a solution achieved through agreement and understanding has the advantage of deriving from the parties, and the spirit that led to the agreement will imbue its results.

3.         The halakhic and historical analysis in the opinion of my colleague Deputy President (Emeritus) Elon is impressive and tremendously informative.

            My honorable colleague’s call to find a common denominator for all Jews, whomever they may be, is also worthy of respect. But in my view, the common denominator means sufficing with the basic arrangements that would ensure freedom of access and freedom of worship to everyone, without imposing special conduct upon those who do not want it, and without violating the sensitivities of the believers. It does not mean imposing the strictest approach. Incidentally, if we were to adopt the strictest approach, then no Jew would be permitted to visit the Temple Mount.

            I also concur with my colleague’s conclusion that, in light of the unusual sensitivity of the issue at bar, it cannot be resolved at a stroke, while ignoring its deep roots. On the other hand, I am not convinced that the Respondents are not exaggerating the conflicts and differences. Thus, for example, anger was expressed in regard to the Petitioners’ singing, despite the fact that they were singing prayers. Besides, is there any prohibition upon singing at the Wall? After all, people often sing and dance there, and it is unthinkable to prevent the singing of visitors, Israelis or foreigners, soldiers or citizens that is conducted with decorum. Therefore, it is possible, and I emphasize the term “possible”, that the objectors’ opposition to the identity of the singers has led to an opposition to singing itself, which is inappropriate.

            In my opinion, practical solutions should continue to be sought, according to which anyone who wishes to approach his Creator in prayer will be able to do so in his own style and manner, as long as it will not constitute a substantial interference with the prayers of others. The legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner, as is clear from the provisions of the said laws.

            I have already noted that this Court may not be the most effective medium – and certainly not the only one – that, through meeting with the various parties, can try to find practical ways for realizing the legislative purpose of the two aforementioned laws, which continues and realizes the principle declared in the Declaration of Independence.

            If the relevant parties are willing, it would be appropriate to make at least an attempt to reach a solution that would be suitable to all those who wish to visit the Western Wall.

            It is, therefore, my opinion that, at this stage, we should not decide the matter before us in the manner that a normal legal dispute is decided. I would recommend to the Government that it consider the appointing of a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit the harm to the feelings of the worshippers.

            Therefore, I would, at present, dismiss the petitions, subject to my above recommendation. The gates of this Court are always open, but as stated, the other available options should first be exhausted.

 

Justice S. Levin:

            I concur in the opinion of my colleague the Deputy President with regard to the jurisdiction of this Court to address the subject of the petition, but I do not see eye-to-eye with him with regard to most of his reasoning or with the operative result for the petitions. I will briefly explain my view of the subject:

A.        In my opinion, the subject of the petition should not be decided on the basis of halakhic considerations. After all, it is clear that the Protection of the Holy Places Law (hereinafter: the Law) is a secular law. It takes account of considerations of the relevant religious communities, including the considerations of the Chief Rabbis (see sec. 4), but not only those considerations, and the terms it employs should be interpreted in accordance with the common denominator acceptable to the Israeli population in its entirety. Therefore, the terms “desecrate”, “other violation”, and “anything likely to violate … their feelings (of the members of the religious communities – S.L.) towards those places” in sec. 1 of the Law should be given an interpretation that, on the one hand, expresses the right to freedom of worship and religion, as accepted in a democratic society and as “tolerated in it”, and on the other hand, the protection of the interests of public safety and “intolerable” violation of the feelings of others as acceptable in that society.

B.        Unquestionably, the Western Wall (and its plaza) has been a holy site for the Jewish People for generations, as a religious site and a prayer site, but at the same time, it also bears national symbolic significance as a unique historical remnant of the walls of the Temple, a symbol of the Jewish kingdom that the masses of Israel yearned for throughout the generations. In these circumstances, the fact that the Wall serves as a site for prayer is not necessarily decisive in establishing the scope of activity permitted at the site. In this sense, I am unwilling to accept a priori and as a foregone conclusion that for the purposes of the Law, the Western Wall should be viewed as a “synagogue” in every way, and that the activity conducted there is subject to the rules of halakha that apply to a synagogue and none other.

C.        The above leads to two primary results. One in regard to the right to freedom of worship at the Western Wall site, and the other in regard to the right to conduct other activities of an appropriate nature at the site. As for these two types of matters, we should establish permission in principle for conduct, as long as that conduct does not constitute “desecration”, an “other violation”, or a “violation of feelings” of the nature that I have already mentioned above. In this regard, in my opinion, the adoption of the broadest common denominator as a standard – in the manner presented by my honorable colleague -- is of no help. Consider, for example, even if there are those who believe that a particular manner of prayer is absolutely forbidden by a severe halakhic prohibition, or that activities of a national character at the Wall are objectionable in their eyes, that alone should not justify prohibiting such activity. In my view, the common denominator that must be taken into account in the matter before us – and I agree that it is possible to employ this test – is the common denominator of all the groups and people who visit the Western Wall site and the plaza in good faith, whether for prayer or for other legitimate purposes. If we do not say this, then we hand an exclusive monopoly to a particular point of view, in preference to any other, in regard to freedom of expression, and as a result, the right to freedom of worship and freedom of expression will be found lacking.

D.        What I have said up to now does not mean that limitations cannot be placed upon certain types of conduct at the Western Wall site. Without exhausting the subject, it may be justifiable to restrict religious ritual or other conduct at the site when the common denominator of the public that legitimately cares about the Wall, and not merely one sector, sees the conduct as an “intolerable” violation that “desecrates” the site, or where the conduct is not carried out in good faith but simply to anger and provoke, or where circumstances justify establishing that certain concrete conduct will, by reason of its extent or timing, lead to a breach of public order in circumstances in which preventing the conduct (in those concrete circumstances) overrides the right to worship or the conduct of the relevant party, while ensuring appropriate alternatives for the conduct in order to limit the danger to public order that would result from it.

E.         The result of all the above is that no absolute prohibition should be placed upon conducting prayer services at the Western Wall site simply because there are groups that oppose them, and considerations of certain and proximate danger of a breach of the peace need not necessarily justify imposing such a prohibition. Rather, it is the duty of the relevant authority to ensure the appropriate conditions in order to balance all the relevant interests so that all those who seek to assemble at the Wall and its plaza may fully realize their rights without unnecessarily violating the feelings of others.

F.         I concur with my honorable colleague President Shamgar that regulation 2 (a) (1a) of the Regulations for the Protection of Holy Places to the Jews is not repugnant to the Law, but in my opinion, the term “local custom” need not be interpreted specifically in accordance with the halakha or the existing situation. It is the nature of custom to change over time, and in its framework expression should be given to a pluralistic, tolerant approach to the views and customs of others, subject to the limitations that I have noted above.

            Four years have passed since the events that led to the filing of the petitions before us, and that period is long enough for the Petitioners and the Respondents to reexamine their concrete positions in accordance with the guidelines set out above. In light of the long period that has passed since the above events, it is no longer appropriate to decide at present whether or not the conduct of any of the Petitioners was in good faith at the time.

            Under these circumstances, I am satisfied that, at this point, it is sufficient to issue a decision that recognizes in principle the good-faith right of the Petitioners to pray at the Western Wall Plaza while wearing tallitot and while carrying Torah scrolls, subject to the provisos that I have already noted above. That is what I would decide. In light of the sensitivity of the subject, and the need to prepare for the execution of this decision, and perhaps also to enact legislation to arrange the matter, I would recommend to my colleagues that this judgment be issued subject to the interim order remaining in force for one year from today.

            Like the Deputy President, I too would not make an order for costs.

 

            Decided by majority to dismiss the petitions, subject to the recommendation in the opinion of presiding judge.

 

Given this 14th day of Shevat 5754 (Jan. 26, 1994).

 

[1] Translator’s note: The reference is to the fact that the Temples were destroyed in the month of Av.

[2] Translator’s note: Elon, D.P., who was an ordained rabbi and a professor of Jewish law, is adapting the verse, “I am no prophet, nor a prophet’s son; but I am a herdsman, and a dresser of sycamore trees” (Amos 7:14), an expression of modesty frequently employed in rabbinic literature, see, e.g., TB Berakhot 34b, TB Eiruvin 63a, TB Yevamot 121b, Leviticus Rabbah (Margulies), Vayikra 6, Aharei Mot 20.

 

[3] Translator’s note: Both Prof. Shilo and Prof. Shochetman were students of Elon, D.P. at The Hebrew University.

[4] A sixteenth-century Yiddish exegetical/homiletical presentation of the weekly Torah and Haftarah readings, and the Five Scrolls.

[5] Translator’s note: The term “Rishonim” refers to scholars who were active following the Geonic period and the period prior to the writing of the Shulhan Arukh, approximately from the middle of the 11th century to the middle of the fifteenth century. “Aharonim” refers to scholars active following that period.

[6] Translator’s note: That is, the commandment pertains to the article rather than the person, i.e., in principle, it does not require that a person wear tzitzit, but rather that tzitzit be affixed to any four-cornered article of clothing that a person wears.

[7] Translator’s note: This refers to wearing tefillin in which the parchments are arranged in the order specified by Rabbeinu Tam in addition to wearing tefillin in which the parchments are arranged according to Rashi.

[8] The Sages gave a homiletic interpretation of the words lo titgodedu as meaning “lo ta’asu agudot agudot”, thus understanding the verse as “you should not cut yourselves into factions”.

[9] Trans. Note: On this expression, often employed as a question as to whether a later generation has become more righteous than its predecessors,  see: TB Yevamot 39b; Hullin 93a

[10] Trans. note: The Protection of the Holy Places Law, 5727-1967.

Lahisse v. Minister of Defense

Case/docket number: 
HCJ 27/48
Date Decided: 
Sunday, February 1, 1959
Decision Type: 
Original
Abstract: 

An officer in the Israel Army was charged before a military court in Israel with murder, an offence under S. 214(b) of the Criminal Code Ordinance 1936 and section 97 of the Army Code 1948. The officer submitted that the military court had no jurisdiction inasmuch as the acts with which he was charged were alleged to have been committed in Hula, a village in Lebanon, and outside the borders of either Israel, or Palestine as constituted under the Mandate. This submission was rejected, but the case was stood over to allow him to petition the High Court on the question of jurisdiction.

               

Upon the hearing of the petition it was argued, in addition to a submission of no jurisdiction in the military court, that only that Court had jurisdiction to interpret the Army Code.

 

Held, rejecting the petition, that where a criminal offence is committed by an army officer beyond the borders of Israel, he may be tried by a military court under the Army Code:

 

A person charged before a military court who alleges that that court is without jurisdiction, may petition the High Court without awaiting the decision of the military court:

 

The High Court may interpret the Army Code, the military court having no exclusive jurisdiction to interpret that Code :

 

The military court has jurisdiction to try a case such as the present in accordance with Article 38 (as amended) of the Palestine Order in Council, read together with Section 3(b) of the Criminal Code Ordinance 1936 and section 3 of the Army Code.

 
Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

CHESHIN J. giving the judgment of the court. On December 6, 1948, an order nisi was issued by this court calling upon the respondents to appear and show cause why they should not be restrained from placing the petitioner on trial before the Special Tribunal of the Defence Army of Israel on a charge of murder under section 214(b) of the Criminal Code Ordinance. 1936, and section 97 of the Army Code, 1948, and why they should not release the petitioner from custody.

           

2. The facts, as detailed in the affidavit of the petitioner, are not in dispute, and may be summarised shortly as follows:

 

            The petitioner, Shmuel Lahisse, an officer of the rank of first lieutenant, served in the Defence Army of Israel as a Company Commander. On November 12, 1948, he was arrested by order of the prosecutor of "A" Command, and was charged with the murder of a number of persons in the village of Hula, Lebanon, on October 31, 1948, and November 1, 1948.

           

            On December 2, 1948, the petitioner was brought to trial before the Special Tribunal of the Defence Army of Israel sitting in Haifa. After the charge had been read to him, but before he had pleaded to the charge, his counsel submitted that the tribunal had no jurisdiction to consider the offences charged, as it was clear from the information itself that the acts constituting the offence had been carried out beyond the borders of Palestine and, therefore, outside the jurisdiction of the tribunal. The tribunal, by majority decision, dismissed this contention, and counsel for the petitioner requested an adjournment in order to enable them to apply to this court for a ruling on the question of jurisdiction. The tribunal held unanimously, "that there is no justification for acceding to the request of the Defence", but it adjourned the hearing to another date - in its own words - "as an exception and having regard to the unusual matter arising in this case and the serious penalty to which the accused" (the petitioner) "will be liable in the event of his conviction". At the same time the tribunal hinted, in the course of its decision, that ''the Defence is entitled to make use of this delay for the taking of such steps as it sees fit". The accused then petitioned this court and, as above stated, an order nisi was issued.

 

3. Before considering in detail the principal submissions of counsel for the parties we would like to refer, although the matter may not be strictly relevant, to the following point, because it is one that gives rise to much discussion in cases of this nature. The point is this : In section 10 of his petition the petitioner submits that "the decision of the Supreme Court, sitting as the High Court of Justice... binds all the courts in the country, including military tribunals". Mr. Cohn, the State Attorney, who appears on behalf of the respondents, does not deny the soundness of this contention, and the affidavit of the President of the Special Tribunal before whom the charge against the petitioner was heard, the third respondent before us, makes no reference to this submission. In the absence of any reference to the point in the affidavit it is unnecessary to deal with it at any length. It appears, however, from the detailed record of the proceedings before the Special Tribunal - which was annexed to the petition - that this question was the subject of lengthy discussion and argument, and the President of the Tribunal made some remarks which seem to throw doubt on the competence of this court to interfere in proceedings before the military courts. In one of its decisions it was held by the Special Tribunal that:-

 

            "There is no authority in the law of the State for the submission:

 

            (a) that the High Court of Justice may intervene in the course of proceedings before a military tribunal:

           

            (b) that a military tribunal is bound in any way by the decisions of any civil court...".

           

            It was this very decision which induced counsel for the petitioner to make the submission contained in paragraph 10 of the affidavit which he filed, and since the question of the "superiority" of the civil as against military courts is raised in this court all too frequently, it is imperative that something be said here on this subject which will constitute an "authority", or, at least, something in the "nature of an authority".

           

4. The Army Code, 1948, from the provisions of which the military tribunals derive their jurisdiction, is modelled upon the English Army Act. This Act does not lay down specifically the relationship between the civil courts and military tribunals. Learned jurists in England, however, regard the military tribunals as part of the general system of courts for certain purposes, and in the course of time a number of principles which indicate the de facto relationship between these courts have been laid down by the courts and legal writers. A number of these principles are cited in the Manual of Military Law, in Chapter 8 of which the following is laid down:1)

 

            "The members of courts martial... are, like the inferior civil courts and magistrates, amenable to the superior civil courts for injury caused to any person by acts done either without jurisdiction, or in excess of jurisdiction... Such injuries will equally be inquired into whether they affect the person, property, or character of the individual injured; and whether the individual injured is a civilian or is subject to military law".

 

            '"The jurisdiction of a tribunal may be limited by conditions as to its constitution, or as to the persons whom, or the offences which, it is competent to try, or by other conditions which the law makes essential to the validity of its proceedings and judgments. If the tribunal fails to observe these essential conditions, it acts without jurisdiction... The result of acting without jurisdiction is that the act is void, and each member of the court-martial... is liable to an action for damages".

 

            "The proceedings by which the courts of law supervise the acts of courts-martial... may be criminal or civil... Civil proceedings may either be preventive, i.e., to restrain the commission or continuance of an injury; or remedial, i.e., to afford a remedy for injury actually suffered. Broadly speaking, the civil jurisdiction of the courts of law is exercised as against the tribunal of a court-martial by writs of prohibition or certiorari.

 

            "The writ of prohibition issues out of the High Court of Justice to any inferior court, when such inferior court concerns itself with any matter not within its jurisdiction, or when it transgresses the bounds prescribed to it by law. The writ forbids the inferior court to proceed further in the matter, or to exceed the bounds of its jurisdiction; and if want of jurisdiction in the inferior court be once shown, any person aggrieved by the usurpation of jurisdiction is entitled to the writ as a matter of right".

           

            "Disobedience of a prohibition is a contempt of court, and as such punishable by fine and imprisonment at the discretion of the court which granted the writ “.

           

5. These principles are laid down in respect of the courts of England, but as it is not disputed that the military tribunals in this country are also part of the system of the courts generally, it may be assumed that they also apply to the relationship between the civil and the military courts in Israel. Since this is so, this court is competent to direct military tribunals, through orders issued by it, to refrain from considering a particular matter, and it is the duty of the military tribunal to which the order is addressed to comply with its terms. Section 58 of the Army Code, 19481), is entirely irrelevant. This section, which for some reason has been given the title "The supremacy of Military Tribunals" - is merely designed to provide that a soldier who has committed an offence and is arraigned in criminal proceedings before a civil court is not released thereby from also being tried for the same offence before a military tribunal. It can on no account be deduced from the language of the section, however, that military tribunals are never subject to the authority of this court, even when they purport to arrogate to themselves jurisdiction which in law they do not possess.

 

6. Mr. Cohn, in the course of his argument before as, submitted that in fact only a small number of applications for a Writ of Prohibition had been made to the civil courts in England, and even those which had been made, were dismissed. If this be the fact, it merely shows that those responsible for prosecutions in the military tribunals in England are very careful in their work and are anxious not to bring matters before the tribunals which are beyond their jurisdiction, or that the few applications which were in fact brought were not sufficiently well based to succeed. This does not show that a civil court will never intervene in the work of a military tribunal. The Manual of Military Law, which I have quoted, deals also with this point, and it is said there, at page 123:

 

"Although the writ of prohibition has never actually been issued to a court-martial, there seems no doubt that it might issue in a proper case".

           

7. We make these comments in the belief that the question of the "superiority" of military tribunals over civil courts will no longer trouble the judges who sit on such tribunals nor those who plead before them.

 

8. Turning now to Mr. Cohn's reply on behalf of the respondents, we find it is divided into two parts. The first includes those arguments which deal, in the main, with the submission that the petitioner's application to this court is premature. The second contains Mr. Cohn's arguments on the merits of the petition. We shall deal with these submissions separately.

 

9. In the first place, it is submitted by Mr. Cohn that this Court should not accede to the prayer of the petitioner, since the regular work of the military tribunals would be seriously hampered if it be held that any person charged before them is entitled, at any time, to apply to this court for a writ of mandamus or a writ of prohibition. It is emphasised by Mr. Cohn that he makes this submission on the specific instructions of the third respondent, the President of the Special Tribunal, which dealt with the case of the petitioner. In our opinion this argument discloses no ground for dismissing the petition, and there is no need to deal with it at any length. Where a person accused before a military tribunal requests a postponement of the proceedings in order to petition this court, the military tribunal may dismiss the application and proceed with the case, if this appears to it to be the correct course. Where, however, a person accused petitions this court and demands justice, it is right that he should be heard, and the doors of the court should not be closed against him merely to suit the convenience of the military tribunal. On no account are the basic rights of a citizen to be withheld on grounds such as these. If, indeed, a military tribunal acts in a particular case without jurisdiction, a serious infringement of the rights of the citizen has taken place, and this court will not hesitate to hear his petition, nor will it pay any regard to the degree of inconvenience which may be caused to the military tribunal in its work.

 

10. The second submission of the State Attorney is that this court will not usually intervene when another remedy is available to the petitioner. According to this argument the petitioner in this case must first be tried before the military tribunal. If he is convicted, he will be able to appeal against the judgment as is provided in the Army Code, 1948. If the judgment on the appeal does not satisfy him, he may apply to the responsible authority for a pardon. If at that stage too he feels aggrieved - only then may he petition this court. As a general rule the principle stated above is a sound one, and this court has in first acted upon it in innumerable cases. The jurisdiction of this court is derived from the second paragraph of Article 43 of the Palestine Order in Council, 1922, and section 7 of the Courts Ordinance, 1940. The second paragraph of Article 43 of the Order in Council provides that: -

 

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

           

Section 7 of the Courts Ordinance provides, inter alia, that: - "The High Court of Justice shall have exclusive jurisdiction in the following matters: -

 

            (a)        ..................

           

            (b)        orders directed to public officers or public bodies in regard to the performance of their public duties and requiring them to do or refrain from doing certain acts".

           

            In the light of these two provisions this court (in the time of the Mandate) gave a number of directives to indicate in which cases it will intervene and in which cases it will refrain from intervening; see, for example, Havkin v. Inspector-General of Police and Prisons (1) which sets forth the principles which had been laid down in a number of earlier decisions. Today, however, it is beyond doubt that this court will certainly intervene by the issue of a Writ of Prohibition, where an inferior court in a particular case proposes to assume jurisdiction it does not possess. The present case is not similar to one in which it may be said to the petitioner, as was said to him in the case of Barakat v. Maronite Ecclesiastical Court (2), "You have the right not to appear before the body which wishes to try your case if in fact it does not constitute a proper court; wait until actual steps are taken against you, for at this stage of the proceedings you have suffered no injury".

           

            In the case before us the petitioner does not deny that the body which proposes to try him is in general a legal and competent tribunal to deal with the cases of soldiers. His contention, however, is that in this particular case it is wholly incompetent to demand of him that he account for his actions. He is, moreover, not entitled to refuse to obey the summons of the tribunal - he is compelled to appear before it. It would be unjust, therefore, to compel the petitioner first of all to stand trial, and later to be subject to the several stages of the proceedings, with a serious charge carrying a heavy penalty hanging over him, and only after the trial has run its full course to appear here and show that all the proceedings were invalid. At this stage there is no place other than this court to which the petitioner can turn for relief. It seems to us, therefore, that this is one of the eases in which this court is entitled to come to a decision in accordance with both the second paragraph of Article 43 of the Order in Council, and section 7 of the Courts Ordinance.

 

11. The third submission of the State Attorney is that this court should not intervene during the proceedings of the Special Military Tribunal, since section 40 of the Army Code, 1948, deprives it of the right to interpret that Code. That section, which is headed "Interpretation of the Code", provides that "The Presidency of the Supreme Tribunal and any 'sitting' of the Supreme Tribunal shall be competent to interpret this Code should they deem it necessary so to do, and such interpretation shall be binding unless set aside by the Minister of Defence." As I have said, nothing is further from the intention of Mr. Cohn to deny the jurisdiction of this court. On the contrary, he has emphasisd time and again that this court is competent to make orders against military tribunals, and the presidents and judges of such tribunals. In his opinion, however, one power alone has been denied this court by the section cited, and that is the power to interpret the Code and the principles to which it gives expression. It can only be concluded, therefore, that section 40 impliedly deprives this court altogether of the power to consider any matter connected with the soundness of this submission.

 

12. We would point out that section 40, as is the case with many other sections in the Code, is drafted negligently and carelessly, and is defective both in what is lacking and in what is superfluous. It provides, for example, that "a sitting of the Supreme Tribunal" shall be competent to interpret the Code, but we do not know the nature of such a "sitting". Is it intended to refer to every panel of judges "of not less than twenty-one in number" spoken of in section 341), or only to the three or five judges of whom a tribunal is constituted for a particular purpose, as stated in section 361). If the intention is to refer to all the judges sitting together, why are they described by the name "sitting" and not "panel of judges", the name which appears in the marginal note to regulation 34? And if it is intended to refer to a tribunal as ordinarily constituted, sitting for the purposes of a particular case, the question arises whether it is only the Supreme Tribunal which is competent to interpret the Code? Have the inferior military tribunals been deprived of this power ? If so, how is it possible to imagine that an ordinary military tribunal will consider a case in accordance with the Code without being competent to interpret it? And how did the Special Tribunal, which dealt with the case before us, reach its decision if not by interpreting the Code? Moreover, section 40 provides that "such interpretation shall be binding". On whom shall it be binding? Shall it bind every inferior military tribunal in every case brought before it, or only a single particular military tribunal dealing with a particular matter brought before it? And what about the Superior Military Tribunal itself? Will an interpretation given by one "sitting" bind another "sitting" of the same tribunal, or not? And was it the intention that such interpretation should also bind other courts - such as this court - or not? It is elementary principle that an ordinary civil court is not to be deprived of jurisdiction otherwise than by an express provision or an implied intimation in the body of the law itself. (See, for example, section 8(3) of the Registrars Ordinance 1936: section 45 of the Constituent Assembly Elections Ordinance, 1948; regulation 5 of the Emergency (Requisition of Property) Regulations 1948). It would seem, therefore, that the only remarkable feature of this regulation is that the presidency of the Supreme Military Tribunal - although this presidency is not a tribunal in the accepted sense of the term and is also not included in the judicial administration as detailed in regulation 7 - is also competent to interpret the Code, and its interpretation, as also the interpretation of "every sitting of the Supreme Military Tribunal" shall be binding "unless rejected by the Minister of Defence" Their interpretation "will be binding", excludes a case in which their interpretation has not yet been given. In the case before us no interpretation has yet been given by the bodies mentioned in regulation 40, and for this reason this court is competent to interpret the Code for the purpose of this case.

 

13. We now come to deal with the principal submissions of counsel for the parties. As I have said, the petitioner was brought to trial before the Special Military Tribunal under section 214(b) of the Criminal Code Ordinance, 1936, and section 97 of the Army Code. All the arguments of counsel for the parties were concentrated on the exact interpretation which is to be given to section 97, and indeed the fate of the application depends upon which version is accepted by the court.

 

14. Section 97 of the Army Code, 1948, provides:

 

            "(97) Every soldier who, within the framework of the army or by reason of his belonging to the army commits an offence punishable under the general criminal law which is in force or will from time to time be in force in the State and for which belonging to the army does not expressly release the offender from liability, may be tried for such offence before a military tribunal and shall be liable to the same punishment as that to which he would be liable in the ordinary courts".

           

            It is difficult to say that this provision is short and clear, and it is no wonder that the parties before us differ as to its meaning.

           

            Mr. Geiger, counsel for the petitioner, interprets this regulation so as to deprive a military tribunal of the power to try a soldier who has committed an offence under section 214(b) of the Criminal Code Ordinance, 1936, beyond the borders of Palestine. His submission may be framed as follows : when a soldier is tried before a military tribunal for an act which constitutes an offence under the existing criminal law, it must first be ascertained whether, according to that law, the accused would be liable to be punished were he to be tried before the ordinary courts. Counsel stresses the words "commits an offence which is punishable under the existing criminal law", and concludes from this that any act, even if it constitutes an offence, which for any reason would not be punishable by the ordinary courts, is also not punishable by military tribunals. One of the limitations on the powers of the ordinary courts, so counsel continues, is contained in section 6 of the Criminal Code Ordinance, 1936. This section provides : "The jurisdiction of the Courts of Palestine for the purposes of this Code extends to every place within Palestine or within three nautical miles of the coast thereof measured from low water mark".

           

            From this it follows, counsel submits, that the general criminal law recognises only the territorial jurisdiction of the ordinary courts, and not jurisdiction as to persons who commit offences outside the territory. The only exception is that contained in section 5 of the Ottoman Law of Criminal Procedure 18791) which is still in force. Every section of the Criminal Code Ordinance which creates an offence, therefore, must be read together with section 6 of that Ordinance, in order to test whether or not the courts have jurisdiction.

 

15. Applying this test, counsel submits, it is clear that had the petitioner in the case before us been brought to trial for the offence charged before an ordinary civil court, that court would have had no jurisdiction to try the case since the offence charged was committed in Lebanon. That being so, the special Military Tribunal also has no jurisdiction to try the petitioner, since the act in respect of which he is charged before that tribunal does not constitute "an offence punishable under the existing criminal law".

 

16. Mr. Geiger finds support for his submission in the concluding portion of section 97. This section, in speaking of the punishment which may be imposed by a military tribunal for an offence described in the opening portion thereof, provides that the accused "shall be liable to the same penalty as could have been imposed upon him in the ordinary courts". Had a person in the position of the accused been tried before the ordinary courts, so the argument proceeds, he would not have been liable to any penalty at all since, as the offence was committed beyond the borders of Palestine, such court would have had no jurisdiction to try the case. This being so the petitioner, in terms of the concluding portion of the section quoted, is also not liable to any penalty before the Special Tribunal, and if there is no penalty there is no jurisdiction, and there can be no trial.

 

17. Mr. Geiger has not overlooked section 3 of the Army Code which provides that "the Army Code, 1948, shall be binding upon the army and all its institutions and units, and upon soldiers of all ranks whether within the State or beyond its borders". In the first place, however, he submits that this section applies the Code only in respect of the offences set forth in the Army Code itself, that is to say, military offences, and not in respect of other offences which are civil in character and to which the Criminal Code Ordinance - including the limitation in section 6 thereof - applies. According to this argument, therefore, the Army Code, 1948, binds the army, its institutions, units, and soldiers, wherever they are, but only in respect of the offences set forth in that Code, and not in respect of an offence which is stated in the general criminal law. Mr. Geiger further submits in the alternative that the words "beyond its borders" in section 3 mean beyond the borders of the State of Israel, and beyond the borders of the area which was once covered by the Mandate, and was called "Palestine". From this it follows that the Army Code, 1948, binds the army, its institutions, units, and soldiers both in the State of Israel and in Palestine, but does not apply to acts performed by a soldier in Hula in Lebanon - a place beyond the borders of Palestine.

 

18. In explanation of this latter interesting conclusion Mr. Geiger relies upon a number of ordinances, regulations and proclamations. His contention may be put in this way: On May 14, 1948, there was the declaration of the establishment of a Jewish State, namely, the "State of Israel". The Declaration of the establishment of the State, which is published in Official Gazette No. 1, page 1, draws a distinction between the "State of Israel" and "Eretz-Yisrael".1) The "State of Israel" extends only over a portion of "Eretz Yisrael". In terms of section 1 of a proclamation published the same day a legislative authority, the Provisional Council of State, was constituted, and by virtue of the powers conferred upon it, it enacted the Law and Administration Ordinance, 1948. In terms of section 11 of that Ordinance there shall remain in force in the State of Israel ''the law which existed in Palestine on 14th May, 1948". It follows that the limitations on the powers of the legislative authority which applied previously under the law "which existed in Palestine" were not repealed and are still in force. Article 38 of the Palestine Order in Council, 1922, as amended by the Order in Council (Amendment) 1935, provides that "Subject to the provisions of any part of this Order or any Ordinance or Rules, the Civil Courts hereinafter described, and any other Courts or Tribunals constituted by or under any of the provisions of any Ordinance, shall exercise jurisdiction in all matters and over all persons in Palestine".

 

            From this it follows that the territorial jurisdiction of the courts of the State of Israel is in fact more limited than that of the courts which existed in the time of the Mandate, for the area of jurisdiction of the courts of the State of Israel only extends over the area of the State, while the area of jurisdiction of the courts in the time of the Mandate extended over the whole area of "Eretz-Yisrael".

           

19. The Provisional Council of State, in enacting section 1 of the Area of Jurisdiction and Powers Ordinance, 1948, opened the door for extending the areas in which the law of Israel will apply. That section provides : "Any law applying to the whole of the State of Israel shall be deemed to apply to the whole of the area including both the area of the State of Israel and any part of Palestine which the Minister of Defence has defined by proclamation as being held by the Defence Army of Israel." In this extension, however, there are limitations. Firstly, it is necessary that the extended area be defined by a proclamation of the Minister of Defence as being held by the Defence Army of Israel. Secondly, it is necessary that such extended area be situated within the borders of Palestine - even if it be beyond the borders of the State of Israel. In no circumstances, however, may it extend beyond the borders of Palestine.

 

20. The result, so counsel submits, is that if we read section 3 of the Army Code in the light of all the statutes and proclamations to which I have referred, the meaning of that section is as follows : The Army Code binds the army both within the State and beyond its borders that is to say, beyond the borders of the State of Israel, but not beyond the borders of Palestine. This being so, and the village of Hula in Lebanon being beyond the borders not only of the State of Israel but also of Palestine, and seeing it has not been defined by the Minister of Defence as an area which is held by the Defence Army of Israel, the Army - Code does not apply to it, and the military tribunals have no jurisdiction to try a person for an offence committed by him in that village.

 

21. In view of the authorities which apply to this case these arguments, though forceful, do not appeal to us. Section 97 of the Army Code is of course of decisive importance. The correct intention of that section may be discovered by considering the sections which precede it. Section 97 is found in that chapter of the Army Code which deals with the various types of offences. All the preceding sections, starting with section 77, specify the offences for which a soldier is liable to be tried, and lay down penalties attaching to them. Almost all of these offences are of a military character and are not mentioned in the general criminal law. On the other hand, the general criminal law details numerous offences of a civil character of which there is no mention in sections 77-96 inclusive of the Army Code. Were it not for section 97 a military tribunal would not be competent to try a soldier for one of the offences included in this last group of sections referred to. This section introduced two innovations:

 

            (a) the offences specified in the general criminal law are also offences under the Army Code and may therefore be dealt with by military tribunals.

           

            (b) the penalties which may be imposed upon a soldier by military tribunals in respect of such offences are those laid down in the general criminal law.

           

            This section, therefore, serves as a channel through which all the offences specified in the general criminal law flow into the Army Code, thereby adding to the list of offences already specified in the preceding sections. The opening words of the section "commits an offence punishable under the general criminal law" refer to a soldier who has committed an act regarded by the general criminal law as a punishable offence - that is to say, an act for which a penalty has been prescribed. This is the substantive portion of the law regarding military tribunals and it bears no relationship whatsoever to the question of the jurisdiction of the ordinary courts. Let us suppose that a person is charged before the District Court of Haifa with an offence committed by him within the area of jurisdiction of the District Court of Jerusalem. It is clear that the District Court of Haifa has no jurisdiction to try and punish the accused. This in itself, however, in no way affects the fact that the act committed by the accused is in the nature of a punishable offence. The District Court of Haifa has no jurisdiction but the offence is still an offence which is punishable under the Criminal Code.

           

22. This is what is intended by the opening words of section 97. Where a soldier is charged before a military tribunal under a section of the Criminal Code, the opening words of section 97 require that that Code be consulted in order to determine whether the act of the accused constitutes an offence for which a penalty is prescribed. At this stage no reference should be made to section 6 of the Criminal Code, for that section deals not with offences and punishments but with the jurisdiction of the general courts, while we are concerned with the military courts.

 

23. In the same way in which the offences described in the general criminal law are introduced into the Army Code by the opening words of section 97, so the penalties attaching to such offences are introduced by the concluding words of the same section. There may be some force in the submission of Mr. Geiger that the words "shall be liable to the same punishment as that to which he would be liable in the general courts" in the concluding portion of the section, force as to ask whether the person in question would be liable to be punished had he been charged before an ordinary court, and I attach importance to the words "to which he would be liable". The person charged in this case would not be liable to be punished in a general court - not because there is no offence, but because in terms of section 6 of the Criminal Code such court would have no jurisdiction to impose the punishment. This submission, however, goes not to the jurisdiction of the military tribunal but to the merits of the case. It must be made, therefore, before that tribunal when all the other submissions of the defence on the merits of the case are presented to that tribunal.

 

24. It must be borne in mind, moreover, that the opening words of section 97, in speaking of the offence, are directed not to a particular person charged nor to a particular offence, but to offences generally ("an offence punishable"). As against this, the concluding words of the section speak of the punishment to which a particular accused may become liable. It follows, therefore, that the jurisdiction of the military tribunal is to be determined by the following two factors:

 

(a)    whether the accused committed an act which constitutes an offence under the Criminal Code;

 

(b)   whether a punishment for such offence is prescribed by the Criminal Code.

 

The question whether or not a particular person charged is liable to be punished for a particular act does not require consideration of the jurisdiction of the military tribunal but of the charge itself, that is to say, whether or not upon that charge the accused is liable to be punished. That is a matter for the military tribunal - and not for this court.

 

25. We find support for this opinion in section 3(b) of the Criminal Code Ordinance, 1936. That section provides that "The provisions of this Code shall be without prejudice to . . . .

 

(b)   the liability of any person to be tried and punished for an offence under the provisions of any law relating to the jurisdiction of the Palestine Courts in respect of acts done beyond the ordinary jurisdiction of such Courts;"

 

            In other words, the legislature has left the door open for itself to enact laws in the future (and to provide therein also for what has happened in the past) whereby courts will be competent to try and punish persons for acts committed by them which fall beyond the ordinary jurisdiction of such courts, without their being limited by the provisions of the Criminal Code Ordinance (referring, apparently, to section 6 of that Ordinance). The Army Code must be regarded as one of those laws.

           

26. To sum up our consideration of this problem, therefore, section 97 was not intended to introduce into the Army Code the whole of the existing Criminal Code, but only specific sections thereof, namely, those which deal with particular offences and the punishment for such offences, and no more.

 

            The Criminal Code Ordinance, for example, devotes a whole chapter (chapter 4) to "General Principles relating to Criminal Responsibility". For the purposes of the Army Code, however, sections in the Ordinance creating an offence must not be read together with the sections of that chapter, since a whole chapter of the Army Code, namely, part 3, chapter I, is also devoted to these and similar matters. Moreover, the expression "offence" itself is defined differently in the two statutes. It follows from this that it is not the whole of the Criminal Code that has been introduced into the Army Code by section 97, and that section 6 of the Criminal Code Ordinance falls outside the Army Code which contains a parallel provision in section 3 thereof.

           

27. Even if this is not so, and section 6 of the Criminal Code Ordinance is included in the Army Code by virtue of section 97, that Code also includes section 3(b) which, as I have said, renders section 6 inapplicable.

 

28. We shall now examine the nature of Mr. Geiger's second submission. As we have already said, it is his contention that the Special Military Tribunal lacks jurisdiction because even if the Army Code, by virtue of section 3, binds the army and its soldiers also beyond the borders of the State of Israel, it does not apply to them beyond the borders of Palestine, and the act in respect of which the petitioner is charged took place beyond the borders of Palestine. There is no doubt that a number of legislative provisions published after the declaration of our political independence distinguish between the area which is included in the State of Israel and the area which is outside the State of Israel, but within the borders of Palestine, and lay down a number of provisions relating to those areas of Palestine which have been defined by the Minister of Defence as occupied areas. This distinction, however, between the "State of Israel" and "Palestine" does not appear in section 3 of the Army Code. That section applies the Army Code to the army wherever it is, whether within the State or beyond its borders - the words "beyond its borders" are without limitation.

 

29. Two further submissions have been advanced by Mr. Geiger:

 

            (a) just as no extra-territorial jurisdiction has been conferred upon the civil courts, the military tribunals have no such jurisdiction;

           

            (b) if, indeed, it was the intention of the Minister of Defence to confer extra-territorial jurisdiction upon the military tribunals by section 3 of the Army Code, that section would be ultra vires.

 

30. In support of these submissions Mr. Geiger relies upon the case of Attorney-General v. Nikolaiovitch (3) and upon obiter dicta in the judgment. In that case a number of persons were charged under the Immigration Ordinance with assisting Jewish refugees to immigrate to this country. It was proved that the act committed by the accused had been performed beyond the territorial waters of Palestine. It was accordingly held by the court that since it exercised no authority over the place where the offence was committed it had no jurisdiction to deal with the matter. The Supreme Court (in the time of the Mandate), sitting as a Court of Appeal, upheld the judgment, relying upon the English case of Macleod v. Attorney-General for New South Wales (4).

 

            The facts in Macleod's case were as follows: The appellant, a resident of New South Wales, married a woman in America during the life of his former wife. Upon his return to New South Wales he was charged with the crime of bigamy and upon the basis of a statute which made the marriage of a second wife in any place whatsoever, during the lifetime of the former wife a criminal offence, was duly sentenced. The Court of Appeal in New South Wales upheld this judgment. The decision, however, was reversed by the Privy Council which held that the statute in question must be very strictly interpreted, and that the words "in any place whatsoever" meant any place within the area of New South Wales and not outside it.

           

            The Privy Council went on to point out that were the position otherwise it would mean that the colony of New South Wales assumed jurisdiction over every place in the world. The assumption of powers such as these, which exceeded those conferred upon the colony, was inconceivable. The Privy Council cited with approval the remarks of Baron Parke in Jefferys v. Boosey (5) that,

           

            "It is clear that the Legislature has no power over any person except its own subjects, that is, persons natural-born subjects, or resident, or whilst they are within the limits of the Kingdom. The Legislature can impose no duties except on them; and when legislating for the benefit of persons must, prima facie, be considered to mean the benefit of those who owe obedience to our laws, and whose interests the Legislature is under a correlative obligation to protect.”

           

The Court in the case of Nikolaiovitch (3), when dealing with the principle laid down in Macleod's Case (4), pointed out obiter that had it been the intention of the legislature in enacting the Immigration Ordinance to empower the courts of this country to deal with offences committed beyond its territorial waters, it could not have done so because of the limitations upon its own powers. For these reasons Mr. Geiger asks us to conclude that even under section 3 of the Army Code the area of jurisdiction of the Special Tribunal in this case does not extend beyond the borders of Palestine since that section is to be strictly interpreted.

 

31. These arguments too, which were advanced by Mr. Geiger with much ingenuity, do not appeal to us. It is an important principle of the common law that the area of jurisdiction of the courts extends over the area of the State alone, and that they have no jurisdiction in regard to offences beyond the borders of the State - that is to say, that the criminal jurisdiction of the courts is territorial and not personal (see Archbold's Pleading, Evidence and Practice in Criminal Cases, thirty first Edition, page 25). The Privy Council in Macleod's Case (4) reached its decision upon the principles of the common law which have been introduced into the framework of our criminal law by section 6 of the Criminal Code Ordinance. In England too, however, that principle is subject to limitation and change, and it does not apply when the jurisdiction of the courts has been expressly extended by the legislature. Thus it is said by Archbold, (ibid),

 

            "The jurisdiction of the Courts of British colonies is limited to offences committed within their territories unless express legislation otherwise provides".

           

and at page 26 he says,

 

            "in the case of British subjects who have committed offences abroad there are many exceptions to the common law rule by virtue of specific statutes".

           

We have already seen that the Ottoman Law also recognised personal jurisdiction in the special case dealt with in section 5 in the Ottoman Code of Criminal Procedure, and it is not impossible that this is also the intention of section 3(b) of the Criminal Code Ordinance. Section 3 of the Army Code is then only another example of this. This section confers jurisdiction upon military tribunals to try a military offender who has committed an offence beyond the borders of the State. In other words the jurisdiction of military tribunals is personal and is unlimited by geographical boundaries. Moreover, as we have already seen, the words "beyond its boundaries" are intended to refer to any area beyond the borders of the State, without limitation.

 

32. We now come to deal with the second argument of Mr. Geiger that if that was indeed the intention of section 3 of the Army Code, then that section is ultra vires. Mr. Geiger bases this submission upon Article 38 of the Order in Council, the Declaration of the State of Israel and the first Proclamation made on May 14, 1948, section 11 of the Law and Administration Ordinance, and section 1 of the Areas of Jurisdiction and Powers Ordinance.

 

            There would have been substance in this submission of Mr. Geiger had the Army Code, 1948, been enacted by virtue of the Palestine Order in Council. That, however, is not the case. The Code was enacted in the exercise of powers conferred upon the legislature after the establishment of the State. It is stated at the commencement of the Emergency Regulations Army Code, 1948, that they were made by virtue of the powers conferred upon the Minister of Defence by Section 9 (a) of the Law and Administration Ordinance, 1948. Section 9(b) of the Ordinance provides that,

           

            "An emergency regulation may alter any law, suspend its effect or modify it..... "

           

It is true that in terms of section 11 of the Ordinance

 

            "The Law which existed in Palestine on the 14th May, 1948, shall remain in force"

           

but there are added immediately the additional words,

 

            "in so far as there is nothing therein repugnant to this Ordinance or to other laws which may be enacted by or on behalf of the Provisional Council of State . . . . ."

           

Section 2(a) of the Law and Administration (Further Provisions) Ordinance, 1948, moreover, explains section 11 of the Law and Administration Ordinance, 1948, in providing that

 

            "Where any Law enacted by or on behalf of the Provisional Council of State is repugnant to any law which was in force in Palestine on the 14th May, 1948, the earlier Law shall be deemed to be repealed or amended even if the new Law contains no express repeal or amendment of the earlier Law".

 

It follows therefore that whatever may be the effect of Article 38 of the Order in Council and section 6 of the Criminal Code Ordinance, 1936, there can be no doubt whatsoever that section 3 of the Army Code, 1948, repealed or amended or replaced all earlier provisions in the Law as was the case, as we have seen above, with the specific statutes in England which modified the principle applied by the common law. It follows therefore that by virtue of this section a military tribunal is competent to try a soldier who has committed an offence under the Army Code (this including an offence under the general criminal law which has been introduced into the Army Code under section 97) beyond the State of Israel, or beyond the area of Palestine to which the Mandate applied. Since this is so, the Special Tribunal constituted for the purpose of dealing with the offence committed by the petitioner in the village Hula in the Lebanon was also competent to try the case.

 

33. We desire in conclusion to mention one other argument of the State Attorney. He submitted at the outset of his argument that since the Minister of Defence had dealt neither directly nor indirectly with the matter of the petition there was no necessity to join him as a respondent. In any event, he continued, the name of the Minister should be deleted from the petition so as not to hinder him in the exercise of the powers conferred upon him by section 40 of the Army Code.

 

            It might be proper to examine this submission but in view of the conclusion which we have reached, as set forth above: we do not deem it essential to deal with it here since, in any event, the court has refused the petitioner the relief which he seeks.

           

            In view of what we have said it has been decided to discharge the order nisi granted upon the application of the petitioner.

           

                                                       Order Nisi Discharged.

                                                       Judgment given on February 1, 1959.

 

1) The learned judge gives a citation from an early edition.

1) See supra p. 132.

1) Army Code, S. 34:

Panel of Judges.

34. The Minister of Defence shall appoint, and ensure that there will always be appointed by him, Judges of the Supreme Tribunal of no less than twenty-one in number and that among the Judges there will be at least two from each commanding rank in the Army except the Chief of Staff.

 

 

1) Army Code, S. 36:

Three or five judges to sit in every case

36. In every case there will sit three or five judges, as may be decided by the President of the Tribunal in each instance, and they shall be appointed thereto from among the Judges of the Supreme Tribunal by the Presidency of the Tribunal, and one of them shall be appointed by it to act as president of the tribunal.

 

1) Ottoman Law of Criminal Procedure, S. 5:

Every Ottoman who has committed outside the territory of the Empire a crime against the safety of the Empire or the crime of forgery of State seals, of legal currency, of any kind of Government titles, of bonds, of treasury bills and of bank notes authorised by the law may be prosecuted and convicted of such offence in accordance with the Ottoman Law if he has not already been convicted therefore in a foreign country.

(Note: The Law was repealed - as regards Israel - in 1955).

1) Meaning literally the 'land of Israel'. This is the Hebrew for Palestine.

Physicians for Human Rights v. Prime Minister

Case/docket number: 
HCJ 201/09
Date Decided: 
Monday, January 19, 2009
Decision Type: 
Original
Abstract: 

Facts: Following years during which rockets were fired at Israel from the Gaza Strip, on 27 December 2008 the IDF began a large-scale military operation in the Gaza Strip. The petition in HCJ 201/09 concerns delays in evacuating the wounded to hospitals in the Gaza Strip, and claims that ambulances and medical personnel are being attacked by the IDF. The petition in HCJ 248/09 relates to the shortage of electricity in the Gaza Strip, which prevents hospitals, clinics, the water system and the sewage system from functioning properly. According to the petitioners, this is a result of disruptions caused by the IDF.

 

Held: The Court reconfirmed that the IDF’s combat operations are governed by international humanitarian law (IHL). According to the fundamental principles of IHL that apply during the conduct of hostilities, ‘protected civilians’ — whether located in territory subject to belligerent occupation or within the sovereign territory of one of the parties to the conflict — in all circumstances are entitled, inter alia, to be treated humanely and to be protected against all acts of violence or threats. The Court referred specifically to those provisions within IHL that grant protection to medical facilities and staff against attack, unless such facilities are exploited for military purposes. The Court also focused on provisions within IHL that require the parties to enable the evacuation and the treatment of the wounded. Furthermore, the Court reaffirmed that the protection of the civilian population includes the obligation to allow the free passage of humanitarian relief. The respondents did not dispute the obligations incumbent on them under IHL, as interpreted by the Court. They provided detailed explanations of all the measures that had been and continued to be implemented in fulfilment of these duties. Having considered all the circumstances and information presented to it, the Court found no basis to grant the relief sought by the petitioners. The petition was therefore denied. 

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
majority opinion
Full text of the opinion: 

HCJ 201/09

Physicians for Human Rights

and others

v.

Prime Minister of Israel

and others

HCJ 248/09

Gisha Legal Centre for Freedom of Movement

and others

v.

Minister of Defence

 

 

The Supreme Court sitting as the High Court of Justice

[19 January 2009]

 

Before President D. Beinisch and Justices A. Grunis, E. Rubinstein

 

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

 

Facts: Following years during which rockets were fired at Israel from the Gaza Strip, on 27 December 2008 the IDF began a large-scale military operation in the Gaza Strip. The petition in HCJ 201/09 concerns delays in evacuating the wounded to hospitals in the Gaza Strip, and claims that ambulances and medical personnel are being attacked by the IDF. The petition in HCJ 248/09 relates to the shortage of electricity in the Gaza Strip, which prevents hospitals, clinics, the water system and the sewage system from functioning properly. According to the petitioners, this is a result of disruptions caused by the IDF.

 

Held: The Court reconfirmed that the IDF’s combat operations are governed by international humanitarian law (IHL). According to the fundamental principles of IHL that apply during the conduct of hostilities, ‘protected civilians’ — whether located in territory subject to belligerent occupation or within the sovereign territory of one of the parties to the conflict — in all circumstances are entitled, inter alia, to be treated humanely and to be protected against all acts of violence or threats. The Court referred specifically to those provisions within IHL that grant protection to medical facilities and staff against attack, unless such facilities are exploited for military purposes. The Court also focused on provisions within IHL that require the parties to enable the evacuation and the treatment of the wounded. Furthermore, the Court reaffirmed that the protection of the civilian population includes the obligation to allow the free passage of humanitarian relief. The respondents did not dispute the obligations incumbent on them under IHL, as interpreted by the Court. They provided detailed explanations of all the measures that had been and continued to be implemented in fulfilment of these duties. Having considered all the circumstances and information presented to it, the Court found no basis to grant the relief sought by the petitioners. The petition was therefore denied.

 

Israeli Supreme Court cases cited:

[1]        HCJ 4764/04 Physicians for Human Rights v. IDF Commander in Gaza [2004] IsrSC 58(5) 385; [2004] IsrLR 200.

[2]        HCJ 3452/02 Almadani v. Minister of Defence [2002] IsrSC 56(3) 30; [2002-3] IsrLR 47.

[3]        HCJ 3114/02 Barakeh v. Minister of Defence [2002] IsrSC 56(3) 11; [2002-3] IsrLR 39.

[4]        HCJ 769/02 Public Committee against Torture v. Government [2006] (2) IsrLR 459.

[5]        HCJ 3799/02 Adalah Legal Centre for Arab Minority Rights in Israel v. IDF Central Commander [2005] (2) IsrLR 206.

[6]        HCJ 2117/02 Physicians for Human Rights v. IDF Commander in West Bank [2002] IsrSC 53(3) 26.

[7]        HCJ 3278/02 Centre for Defence of the Individual v. IDF Commander in West Bank [2003] IsrSC 57(1) 385; [2002 3] IsrLR 123.

[8]        HCJ 5591/02 Yassin v. Commander of Ketziot Military Camp [2003] IsrSC 57(1) 403.

[9]        HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [2003] IsrSC 57(2) 349; [2002-3] IsrLR 173.

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

[11]     HCJ 7957/04 Marabeh v. Prime Minister of Israel [2005] (2) IsrLR 106.

[12]     HCJ 5488/04 Al-Ram Local Council v. Government of Israel (not yet reported).

[13]     HCJ 102/82 Tzemel v. Minister of Defence [1983] IsrSC 37(3) 365.

[14]     HCJ 69/81 Abu Ita v. IDF Commander in Judaea and Samaria [1983] IsrSC 37(2) 197.

[15]     HCJ 9132/07 Albassioni v. Prime Minister (2008) (not yet reported).

[16]     HCJ 7015/02 Ajuri v. IDF Commander in West Bank [2002] IsrSC 56(6) 352; [2002-3] IsrLR 83.

[17]     CrimA 6659/06 Iyad v. State of Israel (2008) (not yet reported).

[18]     HCJ 393/82 Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [1983] IsrSC 37(4) 785.

[19]     HCJ 2936/02 Physicians for Human Rights v. IDF Commander in West Bank [2002] IsrSC 56(3) 3; [2002-3] IsrLR 35.

 

Jewish law sources cited:

[20]     Jerusalem Talmud, Sanhedrin 4, 9

[21]     Tosefta, Shabbat 16, 14.

 

For the petitioners — T. Feldman, Y. Elam, F. El-Ajou, H. Jabarin.

For the respondents — A. Helman, A. Segal-Elad, H. Gorni.

 

 

JUDGMENT

 

 

President D. Beinisch

1.    We have before us two petitions filed by human rights organizations, which concern the humanitarian situation in the Gaza Strip due to the state of hostilities that prevails there as a result of the military operation known as ‘Cast Lead’. The petition in HCJ 201/09 addresses delays in evacuating persons wounded in the Gaza Strip to hospitals, and claims that ambulances and medical personnel are being attacked by the Israel Defence Forces (hereinafter: IDF). The petition in HCJ 248/09 addresses the shortage of electricity in the Gaza Strip, which prevents hospitals, clinics, the water system and the sewage system from functioning properly. According to the petitioner, this is a result of disruptions caused by the IDF.

Background

2.    For approximately eight years the towns near the Gaza Strip have confronted the threat of missiles and grenades that are fired by members of the terrorist organizations operating from within the Gaza Strip and are directed at the civilian population in the cities and towns of southern Israel. After the Hamas organization came to power in Gaza, the terrorist operations increased in intensity and in number. The scope of the attacks was extended to a large part of Israel; the range of the missile attacks became greater, causing the deaths of civilians and disrupting the lives of all the residents of southwest Israel.

For a long time, while Israel acted with restraint and moderation, the terrorist organizations in the Gaza Strip, led by Hamas, took steps to increase their abilities: they smuggled a huge quantity of weapons and missiles through hundreds of subterranean tunnels they had dug, improved the weapons they used and increased the threat to the inhabitants within range of the missiles.

3.    On 27 December 2008 the IDF embarked on a large-scale military operation initiated by Israel in the Gaza Strip, in order to stop the firing of grenades and Quassam and Grad missiles at the Israeli towns in the south of the country, and to change the security position in the south of the country that had been brought about by Hamas, the terrorist organization that controls the Gaza Strip. In the framework of this operation, the Israeli Air Force attacked targets used by the Hamas leadership in the Gaza Strip, and on 3 January 2009 tanks, infantry and engineering forces joined in the fighting in the Gaza Strip. Intensive fighting is taking place in the area in difficult conditions. The military compounds and targets are situated in areas inhabited by the civilian population, and sometimes even in actual homes. Regrettably, the local population is consequently suffering serious and considerable harm.

4.    The two petitions were filed on 7 January 2009, and on 9 January 2009 we held an urgent hearing on both of them. During the hearing it emerged from the state’s response that the IDF had set up a humanitarian operations room, which was intended to resolve the difficulties in coordinating the evacuation of the injured, and that action was being taken to restore the electricity infrastructure in the Gaza Strip. Unfortunately, the hearing on 9 January 2009 was not attended by any of the army personnel responsible for the humanitarian situation in the Gaza Strip, who would be able to clarify the position and the manner in which the humanitarian mechanisms set up by the state were operating, and respond to specific questions. We therefore decided at the end of the hearing that the state should submit a detailed response with regard to the mechanisms that it had established and the steps it had taken in order to enable the evacuation of the wounded in a more effective manner. We also found that we required an update with regard to the action that was being taken to repair the electricity lines and the electricity supply to the Gaza Strip. We therefore ordered counsel for the state to submit a revised detailed response, supported by a deposition of a senior officer responsible for the humanitarian arrangements in the Gaza Strip. On 13 January 2009, the state filed its detailed response together with the deposition of the head of the District Coordination Office for the Gaza Strip, Colonel Moshe Levy, and on 15 January 2009 we held an additional hearing of the petition, to which Colonel Levy was summoned. Shortly before the hearing the petitioners also filed revised statements.

The arguments of the petitioner in HCJ 201/09

5.    The petitioner claims that since the military operation in the Gaza Strip began on 27 December 2008, there have been many cases in which IDF soldiers fired on medical personnel while they were carrying out their duties, despite the fact that the vehicles and uniforms of the medical personnel bear the distinguishing insignia recognized and agreed in the Geneva conventions. It is alleged that on 4 January 2009 alone, four medical personnel were killed as a result of an IDF strike while they were carrying out their duties, and details were provided of additional cases in which medical personnel were injured as a result of IDF attacks. An additional claim made by the petitioner is that the Palestinian Red Crescent and the International Red Cross have encountered serious difficulties in coordinating the evacuation of the injured for medical treatment, on account of the ongoing military operations, the refusal of the Army to allow movement between the north and the south of the Gaza Strip, and due to the complicated methods of coordination. According to the petitioner, many hours elapse from the time a coordination request is made until the time it is actually carried out. It is alleged that in some cases, the medical personnel waited a whole day for coordination. According to the petitioner, these attacks on the medical personnel and the evacuation efforts are contrary to the provisions of customary international humanitarian law and are also prohibited under the constitution of the International Criminal Court; they are also contrary to the provisions of Israeli administrative law, in that they are disproportionate. Finally the petitioner requested that the court issue an interim order that the respondents allow and coordinate the evacuation of the injured members of the Elaidi family, who were injured by shells fired by the IDF at their home on the night of 3 January 2009 and who have been trapped in their home since that night because all efforts to coordinate their evacuation have failed. In the petitioner’s revised statement, which was only filed on the date of the last hearing, details were provided of additional incidents in which it was alleged that shots were fired at medical personnel and rapid assistance was not given to families who were injured.

The arguments of the petitioners in HCJ 248/09

6.    This petition focuses on the shortage of electricity in the Gaza Strip. In their petition, the petitioners furnished details of the quantities of electricity and industrial diesel oil that are needed in the Gaza Strip, compared to the quantities that Israel allowed to enter the Gaza Strip in recent months. It was alleged that since 27 December 2008, the State of Israel has prevented all entry of industrial diesel oil into the Gaza Strip, and as a result the power station in the Gaza Strip (which supplies approximately one third of the amount of electricity required by the inhabitants of the Gaza Strip) has been completely shut down since 30 December 2008. It was also alleged in the petition that on 3 January 2009 an IDF attack in the Gaza Strip damaged seven of the twelve electricity lines that bring electricity from Israel and Egypt into the Gaza Strip. As a result, it was alleged that the inhabitants, as well as hospitals, the main sewage purification plant in the Gaza Strip and other essential facilities, were deprived of electricity. It was further alleged that it is impossible to repair the damaged electricity lines because Israel is preventing the transfer of the necessary spare parts and because of the ongoing hostilities, which do not allow sufficient time for repairs to be made by Palestinian. The petitioners provided details in their petition of the humanitarian damage to the civilian population that results from the shortage of electricity: thousands of people do not have access to running water; sewage is flowing in the streets as a result of the shortage of electricity for the sewage pumps and purification facilities, and at the purification plant in the city of Gaza the spillage has already reached a distance of approximately one kilometre from the plant; approximately a quarter of a million people have had no electricity for more than two weeks; the hospitals in the Gaza Strip are completely dependent on generators, which are about to shut down entirely because they are operating round the clock and beyond their capacity; the activity of most of the bakeries in the Gaza Strip has come to a halt due to a shortage of cooking gas and electricity, leading to a serious shortage of bread in the Gaza Strip. In this aspect it was alleged in the petition that since the State of Israel controls the supply of electricity to the Gaza Strip, especially at present when IDF troops control large parts of the Gaza Strip, its duty to provide the needs of the civilian population in the Gaza Strip is even greater, especially with regard to the proper functioning of medical facilities, water supply facilities and sewage facilities.

The respondents’ arguments

7.    The respondents’ preliminary response to the two petitions, which was filed on 8 January 2009, contained legal arguments and initial factual contentions on the merits of the case. In their revised statements that were filed in the court and at the hearings that we held on the petitions, the respondents provided additional descriptions of the factual position in the Gaza Strip, as far as circumstances allowed. Originally they requested that we dismiss the petitions in limine because they are too general and because the matters raised in them are not justiciable. They argued that while the hostilities are taking place, the court cannot address issues of this kind, if only for the reason that it is not possible to present a dynamic picture of the battlefield to the court in real time. Nevertheless, the respondents stated that the IDF is operating in accordance with international humanitarian law, and they  accept that the army has duties to respect the humanitarian needs of the civilian population even during hostilities and that preparations to this effect should be made in advance, as this court held in HCJ 4764/04 Physicians for Human Rights v. IDF Commander in Gaza [1], subject to any changes required by the circumstances. In this context it was alleged that since the Disengagement Plan was implemented in September 2005, there is no longer any state of occupation in the Gaza Strip and the State of Israel has no control over what is done there. Therefore, there is no ‘military commander’ today, within the meaning of this term under the laws of occupation, who can operate throughout the Gaza Strip. It was also argued that since there are no channels of communication between Israel and the terrorist leadership of the Hamas organization in the Gaza Strip, it is necessary to make the various humanitarian arrangements with international organizations and with the Palestinian Civil Committee, whose offices are in Ramallah.

8.    With regard to the various mechanisms that have been established by the State of Israel for providing humanitarian assistance for the civilian population in the Gaza Strip, the state specified in its response that prior to the military operation known as ‘Cast Lead’, an additional sixty-six reserve officers and twenty regular officers were assigned to the District Coordination Office for Gaza, and the District Coordination Office as a whole was increased to a complement of three hundred staff. Moreover, a set of humanitarian war rooms was established, each for a separate subject — health, international organizations and infrastructures. The purpose of these is to provide a solution in real time for the humanitarian problems that arise during the fighting, and to strengthen communications between the combat forces and the coordination and communication authorities. Each of these war rooms operates around the clock, with on-site professional and legal support. Furthermore, a humanitarian unit was established in each operational division, each comprising five officers, for the purpose of coordinating operations in the field with the international organizations. It was claimed that the activities are also coordinated with private organizations that are known to the District Coordination Office, and also with the doctor in charge at Al-Shifa Hospital, the Ministry of Health in Ramallah and sometimes also with individual doctors and ambulance drivers.

9.    With regard to the evacuation of the wounded and coordination of the movements of medical personnel in the Gaza Strip, it was argued in the state’s response that the order issued to the forces operating in the area is to refrain from attacking medical personnel and ambulances in the course of carrying out their duties, except in cases where it is clear and known that ambulances are being exploited for the purpose of fighting the IDF. The respondents claim that from intelligence information in their possession, it transpires that terrorists are making use of ambulances to perpetrate terrorist activity and to transport missiles and ammunition from one place to another, and that in these circumstances, even international humanitarian law provides that these protected institutions lose the protection that they normally enjoy. Establishing the coordination mechanism was intended to ensure that humanitarian rescue operations are carried out. The respondents further argued that they do not have complete and up-to-date information, but if indeed medical personnel have been and are being injured during the fighting, this has not been done intentionally, but results from the hostilities that have been taking place in the vicinity. The respondents also pointed out in this respect that it is well known that IDF soldiers have also been injured by mistake as a result of fire from other IDF troops. The respondents provided details of the measures adopted before and during the military operations in order to maintain and improve the coordination of the evacuation of the wounded. With regard to the application for an interim order for the immediate evacuation of the members of the Elaidi family, the respondents said at the hearing of 9 January 2009 that after making arrangements with the forces in the field and the Palestinians, the evacuation of the members of the family was completed, with the exception of two adult women who chose not to be evacuated.

10.  With regard to the claims concerning the supply of electricity to the Gaza Strip during the Operation, the respondents said that in view of the ongoing combat activities in the Gaza Strip, it is not possible to totally prevent damage to the local electricity network. They argued that although the electricity network in the Gaza Strip was indeed damaged during the IDF’s combat operations, constant efforts were being made to repair the electricity lines that were damaged. At the last hearing that we held, we were told that nine of the ten electricity lines that provide electricity from Israel to the Gaza Strip had been repaired, that there was a fault in the other line that would be repaired and that the state was taking steps to allow optimal supply of electricity to the Gaza Strip, subject to the security restrictions and constraints that will be described below.

Judicial review

11. It should be stated at the outset that we do not accept the preliminary arguments of the state whereby we were asked to dismiss the petitions in limine because they are not justiciable. We have already held in a series of judgments that the combat operations of the IDF do not take place in a normative vacuum. There are legal norms in customary international law, in treaties to which Israel is a party and in Israeli law, which provide rules and principles that apply in times of war and which demand that steps are taken to provide humanitarian assistance and protection for the civilian population (see, for example, HCJ 3452/02 Almadani v. Minister of Defence [2], at p. 35 {53}; HCJ 3114/02 Barakeh v. Minister of Defence [3], at p. 16 {46}; Physicians for Human Rights v. IDF Commander in Gaza [1], at pp. 391-393 {205-208}). In HCJ 769/02 Public Committee against Torture v. Government [4], we discussed this question at length, and we said as follows, per President A. Barak:

‘Indeed, in a long string of judgments the Supreme Court has considered the rights of the inhabitants of the territories. Thousands of judgments have been handed down by the Supreme Court, which, in the absence of any other competent judicial instance, has addressed these issues. Our concern has been with the powers of the army during combat and the restrictions imposed on it under international humanitarian law. Thus, for example, we have considered the rights of the local population to food, medicines and other requirements of the population during the combat activities (Physicians for Human Rights v. IDF Commander in Gaza [1]); we have considered the rights of the local population when terrorists are arrested (HCJ 3799/02 Adalah Legal Centre for Arab Minority Rights in Israel v. IDF Central Commander [5]); when transporting the injured (HCJ 2117/02 Physicians for Human Rights v. IDF Commander in West Bank [6]; when besieging a church (Almadani v. Minister of Defence [2]); during arrest and interrogation (HCJ 3278/02 Centre for Defence of the Individual v. IDF Commander in West Bank [7]; HCJ 5591/02 Yassin v. Commander of Ketziot Military Camp [8]; HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [9]). More than one hundred petitions have examined the rights of the local inhabitants under international humanitarian law as a result of the construction of the separation fence (see HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [10]; HCJ 7957/04 Marabeh v. Prime Minister of Israel [11]; HCJ 5488/04 Al-Ram Local Council v. Government of Israel [12]). In all of these the dominant characteristic of the question in dispute was legal. Admittedly, the legal answer was likely to have political and military ramifications, but these did not determine the nature of the question. It is not the results deriving from the judgment that determine its nature, but the questions considered therein and the way in which they are answered. These questions have in the past been, and they remain today, of a predominantly legal nature’ (Public Committee against Torture v. Government [4], at para. 52).

12.  As can be seen from the judgment in Physicians for Human Rights v. IDF Commander in Gaza [1] and from additional judgments, cases in which the court examines the legality of military operations while they are happening are not uncommon, in view of the reality of our lives in which we are constantly confronting terrorism that is directed against the civilian population of Israel, and in view of the need to respond to it while fulfilling the obligations imposed by law even in times of combat. Of course, the court does not adopt any position with regard to the manner in which military operations are conducted nor with regard to the wisdom of the decisions to conduct military operations. Nevertheless, it is the role of the court, even in times of combat, to determine whether, within the framework of the combat operations, the obligation to act in accordance with legal guidelines —within the context of both Israeli law and international humanitarian law — is being upheld.

13. In the present case the petitions were filed while the hostilities were still taking place in the area, with the purpose of obtaining guidelines for the immediate conduct of the army in humanitarian matters, for the benefit of the civilian population that found itself at the heart of the hostilities taking place around it. Our judicial scrutiny is being exercised here while the hostilities are continuing. Naturally this imposes restrictions upon the court’s ability to exercise judicial review and to ascertain all of the relevant facts at this stage of the hostilities. The difficulty of obtaining information in real time was discussed in our judgment in Physicians for Human Rights v. IDF Commander in Gaza [1] (at para. 8). Indeed, while the hostilities are taking place it is not always possible to obtain all the information that is required for exercising judicial review, in view of the dynamic changes that are continually occurring. But the court endeavours to examine the claims in real time, so that it may grant effective relief or set up an arrangement. Thus, for example, I said in this respect in Physicians for Human Rights v. IDF Commander in Gaza [1] that:

‘… judicial review concerning the fulfilment of humanitarian obligations during wartime is limited for many reasons. First, from a practical viewpoint, the urgency with which the court is required to conduct the judicial review process, while dynamic developments are taking place on the battlefield, makes it difficult to carry out the process and to investigate the facts required to authenticate the contentions of the parties. Unlike the process of judicial review in regular petitions, where the mechanism of ascertaining the facts operates after they have occurred and the particulars has been clarified, and the factual picture has been laid out before the court, judicial review that seeks to examine the need for relief when combat activities are still in progress requires a judicial proceeding of a special kind, and the petition before us is a clear example of this. The petition was being heard at the very time that changes and developments in the field were taking place. The parties who presented their arguments before us based their contentions on continual reports from the field of battle, and these reports changed the set of circumstances and the facts during the hearing of the petition. The factual description of ascertainment of the particulars as aforesaid finds expression in the opinion of the President. In such circumstances, the judicial review process is limited and suffers from a lack of adequate tools with which to ascertain the relevant particulars in order to examine them in real time and to grant effective relief in respect of them.’

Naturally, where it is not possible to obtain all the necessary information in real time, the legality of specific incidents is often reviewed retrospectively, after all of the necessary information has been obtained; at the time that hostilities are taking place, however, the role of the court focuses upon judicial review of whether the army is upholding the rules of customary international law, international treaties and Israeli administrative law during the hostilities.

The normative arrangements

14. The normative arrangements that govern the armed conflict between the State of Israel and the Hamas organization are complex. They revolve around the international laws relating to an international armed conflict. Admittedly, the classification of the armed conflict between the state of Israel and the Hamas organization as an international conflict raises several difficulties. Nevertheless, in a string of judgments we have regarded this conflict as an international conflict. Thus, for example, we held in Public Committee against Torture v. Government [4], per President Barak, as follows:

‘Contending with the risk of terror constitutes a part of international law that concerns armed conflicts of an international nature…

The premise on which the Supreme Court has relied for years — and which also was always the premise of counsel for the state before the Supreme Court — is that the armed dispute is of an international character. In this judgment we are adhering to this approach. It should be noted that even those who think that the armed dispute between Israel and the terrorist organizations is not of an international character hold that it is subject to international humanitarian law or international human rights law’ (Public Committee against Torture v. Government [4], at para. 21).

In addition to the laws concerning international armed conflict, the laws of belligerent occupation may also apply. In HCJ 102/82 Tzemel v. Minister of Defence [13], this court held that the application of the laws of occupation in international humanitarian law depends upon the existence of the potential to exercise administrative powers on the ground as a result of the entry of military forces, and not necessarily upon the actual exercise of such power. It was also held that ―

‘If the army takes de facto and effective control of a certain area, the temporary nature of the presence in the area or the intention to maintain only temporary military control cannot derogate from the fact that such conditions give rise to the application of those provisions of the laws of war that address the consequences that also arise in the belligerent occupation. Moreover, the application of the third chapter of the Hague Regulations and the application of the corresponding provisions in the Fourth Geneva Convention are not contingent upon the establishment of a special organizational system that takes the form of military rule. The duties and powers of the military force that derive from the effective occupation of a certain territory come into being as a result of the military control of the territory, i.e., even if the military force exercises its control solely through its ordinary combat units, without establishing and designating a special military framework for the purposes of the administration (see HCJ 69/81 Abu Ita v. IDF Commander in Judaea and Samaria [14])’ (Tzemel v. Minister of Defence [13], at p. 373).

Recently, in HCJ 9132/07 Albassioni v. Prime Minister [15], we discussed the changes in the factual and normative position in the Gaza Strip after the implementation of the Disengagement Plan and the abrogation of Israeli military rule in the Gaza Strip. We held:

‘Since September 2005 Israel no longer has effective control of what happens in the territory of the Gaza Strip. The military administration which governed this territory in the past was terminated by a decision of the government, and Israeli soldiers are no longer present in this territory on a permanent basis, nor do they control what takes place there. In such circumstances, the State of Israel does not have a general duty to ensure the welfare of the inhabitants of the Gaza strip and to maintain public order in the Gaza Strip under all of the laws of occupation in international law. Israel also does not have the ability in its present status to effectively impose order and to manage civilian life in the Gaza Strip. In the circumstances that have been created, the main obligations incumbent on the State of Israel with regard to the inhabitants of the Gaza Strip derive from the state of hostilities that prevails between it and the Hamas organization that controls the Gaza strip; these obligations derive also from the degree to which the State of Israel controls the border crossings between it and the Gaza Strip, as well as from the connection that was created between the State of Israel and the territory of the Gaza Strip following years of Israeli military rule of the territory, as a result of which the Gaza Strip is at present almost completely dependent upon the supply of electricity from Israel’ (Albassioni v. Prime Minister [15], at para. 12).

The position described in Albassioni v. Prime Minister [15] as aforesaid is also dynamic and variable, and at this time it is not yet possible to draw conclusions with regard to the factual position in the territory of the Gaza Strip and the scope of control of the IDF in the new situation that has arisen. However, it is not necessary to decide this question now, since the state in any case agrees that the humanitarian laws relevant to the petitions apply.

15.  In accordance with the aforesaid, the normative arrangements that govern the State of Israel when it conducts combat operations in the Gaza Strip derive from several legal sources. These legal sources include international humanitarian law, which is enshrined mainly in the Fourth Hague Convention Respecting the Laws and Customs of War on Land, 1907, and the Regulations appended thereto, the provisions of which have the status of customary international law; the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949, the customary provisions of which constitute a part of the law of the State of Israel and have been interpreted by this court in several judgments (HCJ 7015/02 Ajuri v. IDF Commander in West Bank [16], at p. 364 {95-96}; Marab v. IDF Commander in Judaea and Samaria [9]; Marabeh v. Prime Minister of Israel [11], at para. 14); and the first Protocol Additional to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1977 (hereinafter: “the First Protocol”), to which Israel is not a party, but whose customary provisions also constitute a part of Israeli law (see Public Committee against Torture v. Government [4], at para. 20; CrimA 6659/06 Iyad v. State of Israel [17], at para. 9). In addition to international law, the fundamental rules of Israeli public law also apply (see HCJ 393/82 Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [18], at p. 810; Ajuri v. IDF Commander in West Bank [16], at p. 365 {96}; Marabeh v. Prime Minister of Israel [11], at para. 14; Public Committee against Torture v. Government [4], at para. 18). According to Israeli public law, the army is liable to act, inter alia, fairly, reasonably and proportionately, while striking a proper balance between the liberty of the individual and the needs of the public and while taking into account security considerations and the nature of the hostilities occurring in the area (see Physicians for Human Rights v. IDF Commander in Gaza [1], at para. 10).

16.  The fundamental provision of international humanitarian law that applies during the conduct of hostilities (in both territory subject to belligerent occupation and territory of the parties to the conflict) is enshrined in art. 27 of the Fourth Geneva Convention, which provides that protected civilians ― whether they are located in territory that is subject to belligerent occupation or territory that is under the sovereignty of the parties to the conflict — are entitled in all circumstances, inter alia, to be treated humanely and to be protected against all acts of violence or threats thereof (see also art. 46 of the Hague Regulations). However, these basic obligations vis-à-vis the civilian population are not absolute; rather, they must be balanced against security considerations and the measures that are required as a result of the hostilities. Alongside this general and basic provision, international humanitarian law contains additional specific obligations that relate directly to the matters raised in the petitions.

17.  Before we turn to the specific laws governing the matters raised in the petitions, we should point out that in practice there is no dispute between the parties with regard to the binding legal arrangements. Everyone agrees that the rules of customary international law — which grant protection to medical personnel and institutions, require enabling the wounded to be evacuated from the site of the hostilities, and also require that the civilian population be protected and its basic rights upheld — apply to the combat activities that are involved in the Cast Lead campaign and are binding on the IDF.

The prohibition against intentionally harming medical personnel

18.  The provisions of international humanitarian law provide protection to medical facilities and staff against attack. Thus art. 18 of the Fourth Geneva Convention provides protection for hospitals; arts. 24-25 of the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1949, prohibit any attack upon medical personnel, if they are exclusively or at the time engaged in medical activities; art. 26 of the Fourth Geneva Convention extends this protection to members of the Red Cross or other international organizations that fulfil similar functions (see also art. 20 of the Fourth Geneva Convention). A detailed definition of what constitutes protected medical personnel is laid down in art. 8(c) of the First Protocol, and detailed provisions with regard to the protections that are granted to medical personnel are laid down in arts. 12-16 of the First Protocol.

19.  It is clear from these provisions that international humanitarian law attaches great importance to medical personnel and facilities. Nevertheless, this protection is not absolute, and it will be withdrawn if use is made of medical facilities for non-humanitarian purposes, or if they are exploited for military purposes. In accordance with this principle, medical personnel are entitled to full protection only when they are exclusively engaged in the search for, or the collection, transport or treatment of the wounded or sick, and similar matters (arts. 24-26 of the First Geneva Convention), whereas the protection of medical facilities will cease if use is made of them, in departure from their humanitarian functions, for the perpetration of acts harmful to the enemy (art. 21 of the First Geneva Convention; art. 19 of the Fourth Geneva Convention). In this regard, in Physicians for Human Rights v. IDF Commander in West Bank [6], at p. 29, the Supreme Court emphasized that the abuse of medical personnel, hospitals and ambulances that sometimes occurs requires the IDF to act to prevent such activity, but it does not per se permit a blanket violation of the principles of humanitarian law, and that ‘this is the position required not only by international law, on which the petitioners rely, but also by the values of the State of Israel as a Jewish and democratic state.’

The duty to allow the evacuation and medical treatment of the wounded

20.  In addition to the protections granted by international humanitarian law to medical personnel and facilities, there are provisions that require the parties to allow the evacuation and medical treatment of the wounded. In this context, art. 16 of the Fourth Geneva Convention prescribes special protection for the sick and wounded, and it requires the parties to the conflict to enable and facilitate searches for and provision of assistance to the wounded and to protect them from improper treatment, as far as military considerations allow:

‘The wounded and sick, as well as the infirm, and expectant mothers, shall be the object of particular protection and respect.

As far as military considerations allow, each Party to the conflict shall facilitate the steps taken to search for the killed and wounded...’ (Emphasis added — D.B.).

In addition, art. 15 of the First Protocol states that medical personnel should be allowed access to every site where they are needed, subject to supervision and security measures that are essential to the relevant party. In Physicians for Human Rights v. IDF Commander in Gaza [1] the court held in this context that — 

‘The army must do everything possible, subject to the state of the fighting, to allow the evacuation of local inhabitants who were wounded in the fighting’ (ibid. [1], at para. 23).

(See also HCJ 2936/02 Physicians for Human Rights v. IDF Commander in West Bank [19], at pp. 4-5 {37}; Physicians for Human Rights v. IDF Commander in West Bank [6], at p. 29).

The duty to ensure the needs of the civilian population

21.  One of the fundamental principles of international humanitarian law is the principle that distinguishes between combatants and military targets on the one hand and civilians and civilian targets on the other, and grants protection to the latter (see Public Committee against Torture v. Government [4]). Inter alia, the protections granted to the civilian population of all parties to the conflict also include the duty to allow free passage of humanitarian medical supplies, as well as consignments of essential foodstuffs and clothing for children, pregnant women and mothers at the earliest opportunity, subject to a number of restrictions (art. 23 of the Fourth Geneva Convention). Article 70 of the First Protocol provides a more general and broader duty, whereby parties to a conflict are obliged to allow the passage of items that are essential for the civilian population, at the earliest opportunity and without delay. Article 30 of the Fourth Geneva Convention requires parties to a conflict to allow citizens to contact the Red Cross or similar international organizations, in order to receive assistance. In Albassioni v. Prime Minister [15] we considered these provisions explicitly, and we held:

‘The state’s arguments on this matter are based on norms that are a part of customary international law, and that specify basic duties that are incumbent upon combatant parties during an armed conflict and require them to guarantee the safety of the civilian population and to protect its dignity and its basic rights. It is not superfluous to add that according to the rules of customary international humanitarian law, each party to a conflict is bound to refrain from impeding the transfer of basic humanitarian items of aid to the population requiring them in the areas that are under the control of that party to the dispute.’

From general principles to the specific case

22.  The respondents’ position, as it was presented to us in their written statements and in the testimony of Colonel Levy during the hearing, is that they do not deny the obligations enshrined in international law as specified above and as they were interpreted by the court in Physicians for Human Rights v. IDF Commander in Gaza [1]. Accordingly, during the hearing of the petitions Colonel Levy explained the mode of operation of the various mechanisms that the state established in order to discharge the humanitarian obligations binding it, and it discussed the various difficulties with which they must contend due to the complexity of the conflict and the lack of cooperation with the Hamas authorities. These difficulties include, for example, the refusal of the Hamas authorities to allow the IDF to evacuate the wounded for treatment in the territory of the State of Israel, and the cynical exploitation by Hamas of the IDF-initiated humanitarian cessations of hostilities, in order to rearm and carry out attacks against the IDF. From the aforesaid it appears that the dispute between the parties does not relate to the legal arrangements that bind Israel, but rather, the manner in which these obligations are discharged de facto. We shall therefore provide details below of the developments and changes in Israel’s deployment for and ways of dealing with the humanitarian problems that underlie the petitions.

23. Within the framework of the obligations that the IDF confirms are binding upon it, preparations were made — some in advance and some in response to developments in the course of the fighting — to deal with the collateral damage to the civilian population and to provide a response to the humanitarian needs of the local inhabitants. With regard to the various mechanisms that were established and improved during the fighting to deal with the difficulties of coordinating the evacuation of the wounded, the respondents said that on 5 January 2009 a special health operations room was set up, under the command of an officer with the rank of major, who is responsible for providing a response to any civilian population that is in danger, and for coordinating the evacuation of the wounded and the dead from the area where fighting is taking place. Professional matters that arise in the operations room are decided by a doctor, who is an officer with the rank of lieutenant-colonel and who is prepared to receive communications from Palestinian inhabitants, the Palestinian health coordinator, the Red Cross and human rights organizations around the clock. Colonel Levy informed us in great detail, orally and in writing, about the deployment of the officers and soldiers of the District Coordination Office among the combat units, and he explained how the various units communicate with one another to coordinate the evacuation of the wounded and to make it possible for them to be given safe passage by the combat units. Colonel Levy also elaborated on the way in which each body contacts the humanitarian operations rooms that have been set up, and said that upon receiving a request to coordinate the evacuation of a wounded person, the health-related operations room initiates contact with an international organization (the Red Cross operating through the Red Crescent or UNWRA) in order to coordinate the evacuation and the provision of assistance to Palestinian personnel, and the IDF makes the utmost effort to overcome delays in evacuating the wounded — delays which are sometimes caused as a result of the hostilities or damage to infrastructures. With regard to the alleged attacks on medical personnel, the respondents told us that if indeed any medical personnel who were genuinely seeking to provide medical assistance were injured, this was not the result of a deliberate attack on the medical personnel. It was also claimed that quite a few problems have been caused by the conditions in which the fighting is taking place, and Israeli soldiers have similarly sustained serious injuries as a result of friendly fire.

Despite Colonel Levy’s willingness to answer all our questions, it is clear that he lacked information about the various incidents that took place during the evacuation of the wounded, insofar as the extent of the attacks on ambulances and medical personnel was concerned. Nonetheless, the specific case of evacuation for which an order to ensure the evacuation was sought in the petition was resolved during the hearing of the petition; with regard to other cases there is insufficient information at this stage to examine the contentions, and we have asked Colonel Levy to provide us with detailed information concerning the additional cases that were brought before us by the petitioners on the date of the hearing. The alleged use of ambulances and medical facilities by the terrorist organizations to carry out and further combat operations without doubt greatly undermined the coordination of evacuation and rescue operations, and this is to be regretted. But as we said above, the army is obliged to examine each case on its merits and to do all that it can in order to allow the swift and safe passage of ambulances and medical teams to the areas where there are injured and wounded persons requiring treatment.

In view of the establishment and improvement of the humanitarian mechanisms, which it may be assumed will prove their effectiveness; in view of the statement made to us that a serious effort will be made to improve the evacuation and treatment of the wounded; in view of the establishment of a clinic in the vicinity of the Erez crossing (and to the extent that the Palestinian side will also agree to the transfer of the wounded to Israel for treatment), it is to be hoped that the humanitarian mechanisms will operate properly in accordance with the obligations of the State of Israel. In these circumstances, we see no further reason to grant relief in the form of an order nisi at this time.

24.  With regard to the problems of the electricity supply to the Gaza Strip, we were informed that an infrastructures operations room was set up, which is staffed twenty-four hours a day and is under the command of an officer with the rank of lieutenant-colonel, who is responsible for providing a response to infrastructure problems in the combat areas, obtaining an up-to-date picture of the economic situation and coordinating consignments of humanitarian aid to the Gaza Strip. In this respect, the respondents explained that upon receiving a request to coordinate the handling of infrastructure problems, the operations room examines the nature of the problem and its effect on the civilian population, and subsequently, where required, it coordinates the arrival of Palestinian technical personnel at the site of the problem, together with an international organization. With regard to the current position concerning the supply of electricity to the Gaza Strip, we were told at the last hearing of the petitions that, as of the date of the hearing (15 January 2009), nine out of the ten electricity lines that transfer electricity from the State of Israel to the Gaza Strip had been repaired and were operating, and that the remaining line would be repaired. In addition, we were told that there is direct contact between the Palestinian Energy Authority and the Israeli Electric Corporation in order to identify problems and repair them as soon as possible. With regard to the two electricity lines that are transferring electricity from Egypt to the Gaza Strip, the respondents informed us that as of the morning of 13 January 2009 the two lines were intact and operational. We were also told that as of 11 January 2009, the line that transfers electricity from the Palestinian power station throughout the Gaza Strip had been repaired and that the power station had returned to partial operation, with a supply of 50% of the manufacturing capacity of the station. In this respect Colonel Levy told us that in the course of the fighting significant quantities of industrial diesel oil had been brought into the Gaza strip for the use of the Palestinian power station. According to him, the supply of industrial diesel oil was reduced after a tunnel was discovered near the Nahal Oz crossing, containing preparations for a major attack. Nevertheless, and despite the risk, the supply of industrial diesel oil to the Gaza Strip was renewed via the Kerem Shalom crossing. Colonel Levy also told us that part of the fuel waiting on the Palestinian side of the Nahal Oz crossing is not being moved on from there by the Palestinians, because the international organizations have other priorities. He also clarified that the intention is to continue to send industrial diesel oil into the Gaza Strip for the purpose of operating the power station, subject to security constraints. In addition, he said that four trucks containing equipment for maintaining the electricity network in the Gaza Strip entered the Gaza Strip between 9 January 2009 and 12 January 2009 (in this context the petitioners claim in their revised statement that these spare parts were destroyed in an IDF bombardment of the storage facility to which the parts were transported from the Karni terminal, and on this matter Colonel Levy was unable to provide us with any information).

25.  We were informed by the respondents that in addition to the industrial diesel oil that was intended for operating the Palestinian power station, 200,000 litres of diesel oil for transport, 234 tons of cooking gas, water hygiene and purification kits, and bottled water were also brought into the Gaza Strip in the course of the fighting. It was also stated that in order to enable distribution of the humanitarian supplies to the inhabitants of the Gaza Strip, the respondents decided to introduce lulls in fighting in the Gaza Strip for several hours, during which they did not initiate any combat operations. However, exploitation of these lulls by the Hamas organization in order to rearm and carry out shooting attacks sometimes interrupts the transfer of the humanitarian aid. We were also told of the establishment of an operations room for dealing with the international organizations, under the command of an officer with the rank of lieutenant-colonel, which is responsible for coordinating the movement of the workers and vehicles of the international organizations within the framework of their (non-medical) humanitarian work in the Gaza Strip, and for coordinating the transfer of humanitarian donations from international organizations or foreign countries. This operations room is also responsible for obtaining an up-to-date picture of the humanitarian situation, on the basis of reports received from the various international bodies. Finally, we were told that an additional humanitarian operations room had been established in Tel-Aviv, under the command of a reserve officer with the rank of lieutenant-colonel, for the purpose of improving the coordination work in the field of humanitarian aid between the security establishment and the representatives of the international organizations.

26.  From the aforesaid it transpires that steps are being taken to repair the faults in the electricity network in the Gaza Strip, and that despite the state of combat and the security risks, efforts are being made to facilitate the entry into the Gaza Strip of industrial diesel oil for operating the local power station in Gaza, as well as other humanitarian requirements, such as cooking gas, diesel oil, water, food and medications. In these circumstances, this petition too should be denied.

Conclusion

27.  The civilian population is suffering greatly as a result of the IDF combat operations. The operations are taking place in built-up, densely populated areas. Owing to these conditions, many of the victims — hundreds of dead and thousands of wounded — are civilians who were not involved in the dispute and who are paying a high price. Regrettably, children on both sides are innocent victims, suffering the consequences of the intense fighting. The circumstances under which the hearing took place meant that we did not receive all the information that was needed to clarify the position, but it cannot be denied that a strenuous effort should be made to discharge the humanitarian obligations of the State of Israel. It is true that the IDF is fighting against a terrorist organization. That organization does not observe international law; it does not respect humanitarian obligations; there is also no channel of communication with it that might further the implementation of the principles and laws that govern parties involved in armed conflict of the type that is raging here. We appear to be on the verge of a ceasefire; however, the state of conflict is still continuing, and in that state, as long as Israel controls the transfer of essentials and the supply of humanitarian needs to the Gaza Strip, it is bound by the obligations enshrined in international humanitarian law, which require it to allow the civilian population access, to — inter alia — medical facilities, food and water, as well as additional humanitarian items that are necessary for the maintenance of civilian life.

28.  We have heard the petitioners’ claims, and we requested and received detailed responses from the respondents regarding the various humanitarian concerns that were raised in the petitions. It was made clear to us that the IDF and the senior commanders acting in its name are aware of and prepared to carry out their humanitarian obligations. We said in a similar context in Albassioni v. Prime Minister [15]:

‘The Gaza Strip is controlled by a murderous terrorist organization, which acts incessantly to harm the State of Israel and its inhabitants and violates every possible rule of international law in its acts of violence, which are directed indiscriminately against civilians — men, women and children. Nevertheless, as we said above, the State of Israel is obliged to act against the terrorist organizations within the framework of the law and in accordance with the provisions of international law, and to refrain from any intentional attack upon the civilian population in the Gaza Strip’ (ibid. [15], at para. 22).

29.  As we have said, at the time of handing down of this judgment, the combat may be about to end; no-one, however, disputes that the humanitarian aid and rehabilitation work is not yet finished. It is our hope that the state will indeed do its very best to comply with Israeli and international law, in order to alleviate the suffering of the civilian population in the Gaza Strip, which has been seriously affected by the combat. This suffering is a result of the mode of conduct of the cruel terrorist organization that controls the Gaza Strip and operates from within the civilian population while endangering it and abandoning it to its fate. Despite this, even in the face of a terrorist organization whose declared objective is to harm the civilian population of the State of Israel indiscriminately, we shall carry out our duty to uphold the principles and values that are the foundation of our existence as a Jewish and democratic state, which cherishes human rights and humanity.

Subject to all of the aforesaid, the petitions are denied.

 

 

Justice E. Rubinstein

1.    I agree with the opinion of my colleague, the President. The combat in which the State of Israel is engaged is not ‘symmetrical’ in the extent to which the parties respect the law. As noted by my colleague, following many years of restraint, Israel was forced into battle in self-defence — lawfully, and in accordance with the Charter of the United Nations and deeply entrenched international law — against those who seek to take our lives. It is difficult to imagine many free world countries holding back for so very long while many of their citizens were subject to the constant — and all too often realized — threat of missile fire, bodily harm and damage to property. The enemy is cynical and cruel, and, beyond its disregard for every established norm, operates within a civilian populace, which regrettably pays the price of its actions. It deliberately and openly directs its weapons indiscriminately at the Israeli civilian population, while our forces are ordered to take every possible measure to avoid harming civilians, as prescribed by binding legal norms.

2.    This court has a responsibility to deal immediately with petitions that raise humanitarian concerns, and so it did in the present case. Often, the role of the court in such cases is to urge and monitor compliance with the provisions of Israeli and international law, even where it knows and trusts that the authorities are unreservedly committed to the appropriate legal framework; it does so, however, from the judicial perspective aimed at capturing the broad picture. There is therefore constant need for judicial review.

3.    My colleague mentioned the difficulty of classifying the battle against terrorism in terms of international law. The international legal system encounters, from time to time, distressing innovations on the part of international terrorism, including the weapons it employs (aided by members of the United Nations, ostensibly committed to international law) and its methods of combat. Steady efforts toward legislation and enforcement notwithstanding, the international legal system has been unable to cope with these constant new challenges. Nevertheless, the State of Israel, probably the most prominent victim of terrorism among the countries of the free world, sees itself — as noted by President Barak in Public Committee against Torture v. Government [4], cited by my colleague — as committed in this conflict to the various aspects of international humanitarian law.

4.    We have become convinced, in hearing these petitions, of the commitment of the military establishment and the political echelon to the pertinent legal norms. This commitment means, in practice, a systematic, unceasing effort at implementation, learning the lessons from difficulties and mishaps in real time, and persistent attempts toward improvement.

5.    Indeed, not infrequently under the current circumstances, the Israeli system finds itself between a rock and a hard place, for, as the President noted, accidents happen in times of war, including injury to our soldiers from friendly fire; on occasion, our battle against the enemy, even when intentions and planning are above reproach, yields tragic cases of harm to Palestinian civilians, among them innocent bystanders, including children — and this fills the heart with grief. Israel, too, has experienced such tragedy, and has seen its own children suffer, and so it deeply regrets casualties on the other side. A concerted effort must be maintained at all levels — and we have no reason to believe that it is not — to restrict lamentable accidents to a minimum, even in evil or inconceivable scenarios.

6.    Finally, as a Jewish and democratic state, we are committed to the norms prescribed by Jewish law with respect to the proper attitude toward human beings created in the image of God in heaven, whoever they may be. The Jerusalem Talmud (Sanhedrin 4:9 [20]) states: ‘Therefore man [Adam] was created alone, to teach you that whoever destroys one person is deemed to have destroyed an entire world, and whoever saves one person is deemed to have saved an entire world.’ And, where matters of life and death are concerned, ‘nothing stands in the way of saving a life, except for idolatry, adultery and murder’ (Tosefta, Shabbat 16:14 [21]). This ethos has accompanied the Jewish people from time immemorial, and will continue to do so in the future.

 

 

Justice A. Grunis

I agree with the opinion of my colleague, President D. Beinisch, on the merits of the case. In the circumstances I see no need to address the question of justiciability.         

 

 

Petition denied.

23 Tevet 5769.

19 January 2009.

 

Ornan v. Ministry of the Interior

Case/docket number: 
CA 8573/08
Date Decided: 
Wednesday, October 2, 2013
Decision Type: 
Appellate
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

 

The Appellants – Israeli citizens registered in the Population Registry as members of different nationalities (some registered as Jewish, and some as members of other nationalities: Arab, Druze, Buddhist, Burmese, etc.) – petitioned the Jerusalem District Court for a declaratory order stating that they are members of an Israeli nationality, in hopes that such a decision would serve as official document for modifying the nationality marker on their registration in the Population Registry. The District Court rejected the petition ruling that the petition was a de facto request that the Jerusalem District Court find that a new nationality, common to all its citizens and residents, was formed in the State of Israel – an “Israeli” nationality. This issue, the lower court found, was a national-social issue whose legal aspect is insignificant to its non-legal aspects. Therefore the lower court found held that this issue is not justiciable in the institutional sense (as opposed to the normative sense). Hence this appeal.

 

The Supreme Court (opinion by Justice Vogelman, with Justice Melcer and President Grunis, concurring) rejected the appeal for the following reasons:

 

Justice Vogelman discussed the theoretical complexity and institutional sensitivity of examining the existence of an “Israeli nationality,” which involves fundamental questions concerning the State of Israel and the Jewish people. These questions include the relationship between religious identity and national identity; the competing theoretical approaches to the idea of “nationality” and their application here; the connections between the State of Israel and Diaspora Jews; the relationships between different groups of citizens and their national identity. Indeed, this sensitivity warrants restraint in applying judicial discretion. The natural setting for these discussions is not within the walls of the court, but other spaces of public discourse and academic writing. This is what led the lower court to rely on the institutional justiciability doctrine.

 

That said, Justice Vogelman believes that the lower court’s position on institutional justiciability should not stand. Issues concerning the content of religion and nationality markers in the Population Registry (and specifically the question of “who is Jewish”?) have been brought before this Court even at its earliest days.

 

In CA 630/70 (“The Tamarin Decision”), which is an early incarnation of this matter, then President Agranat held, first, that in order to grant a declaratory order about one’s membership of a certain nationality, there must be objective evidence about the existence of that nationality. A subjective belief is insufficient for a legal determination that a certain nationality exists for purposes of registering a nationality marker in the Population Registry. Second, President Agranat held that there was no evidence that an “Israeli” nationality was formed in the State of Israel that is separate and distinct from the Jewish nationality.

 

Though this Court reiterated in the past that the Population Registry is not the appropriate space for determining sensitive matters of religion and nationality, and stated expressly that its rulings on this matters should not be considered a material determination of these questions on their merits. However, the notion that these are not justiciable matters remains that of the minority.

 

Relying on precedent regarding the technical nature of registration in the registry, the Court did not shy away from extending a helping hand to those who approach the Court, even when the matters involved “sensitive” issues of conversion, Jewish law, religious identity and national identity. More importantly, in the Tamarin Decision, this Court addressed on its merits a similar issue to the one at hand, and ruled that the existence of an “Israeli” nationality was not proven by objective criteria.

 

The Appellants argue that the Tamarin Decision has become obsolete. The primary target of their claims is the Tamarin Court’s finding that an “Israeli” nationality does not exist as separate and distinct from the Jewish nationality. The Appellants do not dispute that the first holding in Tamarin is yet applicable.

 

Though institutional consideration should not lead to a determination on an issue’s justiciability, they may have bearing on this Court’s willingness to again pronounce on the same issue. Therefore, if the Appellants are asking that we stray from the holdings in Tamarin, they must meet a significant burden that requires – sadly – presenting arguments that were not examined at the time by this Court and point to a clear need for change. These were not presented and so the Appellants have not met their burden to show that straying from the judicial findings of the Tamarin Decision are justified.

 

Additionally, Justice Vogelman believes that even without straying from the Tamarin Decision, existing law already provides the Appellant with the means to identify – to themselves and to the world – as Israelis vis-à-vis their Israeli citizenship, which would continue to be registered in the Population Registry, regardless of the nationality marker. This is possible through following the proper process for removing the registration in terms of the nationality marker, according to the Shik decision.

 

Justice Melcer joined in rejecting the institutional non-justiciability argument as it pertains to this case and in concluding that the Appellants did not meet their burden to show that straying from judicial findings from the Tamarin Decision are justified. However, he presents his approach on issues where he is not fully united with Justice Vogelman.

 

Among others, Justice Melcer finds that the Appellant failed to demonstrate that in the years since the Tamarin Decision an “Israeli nationality” has developed (factually or legally) in Israel, which – per their argument – includes members of different religions, or those without religion, or those who belong to different ethnic groups.

 

That said, Justice Melcer opposes Justice Vogelman’s suggestion that the Appellants may proceed to remove the nationality registration. First, as this is not requested by the Appellants in this proceeding, and second, because – as opposed to citizenship or religion, which may be renounced, or changed, and for which there normally is an institution or “ceremony” that facilitates or approves the renunciation or conversion – a nationality is generally very difficult to “renounce” (as a child cannot, in principle, renounce its parents.)

 

Additionally, Justice Melcer emphasizes that Justice Agranat’s conclusion in his monumental opinion in Tamarin that “the existence of an ‘Israeli nationality’ was not proven in the legal sense and the development of new ‘fractions’ of nationality should not be encouraged” still hold force.

 

President Grunis joins the conclusion that the Tamarin Decision applies on the matter at hand and that it has not become obsolete. Therefore, he does not see a need to pronounce on whether the District Court was correct in rejecting the Appellants’ petition based on lack of institutional justiciability. The President abstained from expressly addressing Justice Vogelman’s suggestion that the Appellants’ nationality marker in the Population Registration would be removed and remains blank – as the Appellants did not raise this option at all. 

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Full text of the opinion: 

In the Supreme Court

Sitting As a Court of Civil Appeals

 

CA 8573/08

 

Before:

His Honor, President A. Grunis

His Honor, Justice H. Melcer

His Honor, Justice U. Vogelman

 

 

 

The Appellants:

 

1.Uzi Ornan

2.Uri Avneri

3.Itamar Even-Zohar

4.Joseph Agassi

5.Yehudit Buber Agassi

6.Shulamit Aloni

7.Alon Oleartchik

8.Yosef Barnea

9.Ibrahim Dwiri

10.Einav Hadar

11.Yuval Halperin

12.Chen Yehezkeli

13.Hubert Yu-Lon

14.Ofra Yeshua Lyth

15.Yehoshua Sobol

16.Yehoshua Porath

17.Rivka (Becky) Kook

18.Nili Kook

19.Adal Kaadan

20.Dan Tamir

21.Gideon Chapski

 

 

 

 

VS.

 

The Respondents:

1. Ministry of the Interior

 

2. Attorney General

 

 

Appeal against the judgment of the District Court of Jerusalem (Judge N. Sohlberg) of July 5, 2008, in OM 6092/07

 

On behalf of the Appellants:

Adv. Yoela Har-Shefi, Adv. Yosef Ben Moshe

 

On behalf of the Respondents:

Adv. Ruth Gordin

 

 

[Israeli Supreme Court cases cited:

[1]     CA 630/70 Tamrin v. State of Israel [1972] IsrSC 26(1) 197.

[2]     HCJ 11286/03 Ornan v. Minister of the Interior (20.9.2004).

[3]     HCJ 910/86 Ressler v. Ministry of Defense [1988] IsrSC 42(2) 441.

[4]     HCJ 143/62 Funk-Schlesinger v. Minister of the Interior [1963] IsrSC 17(1) 225.

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

[6]     HCJ 4/69 Ben Menashe v. Minister of the Interior [1970] IsrSC 24(1) 105.

[7]     HCJ 147/80 Shtederman v. Minister of the Interior [1970] IsrSC 24(1) 766.

[8]     HCJ 18/72 Shalit v. Minister of the Interior [1972] IsrSC 26(1) 334.

[9]     CA 448/72 Shik v. Attorney General [1973] IsrSC 27(2) 3.

[10]   CA 653/75 Shelah v. State of Israel [1977] 31(2) 421.

[11]   HCJ 264/87 Shas Movement v. Population Registrar [1989] IsrSC 43(2) 723.

[12]   HCJ Naamat v. Minister of the Interior [2002]  IsrSC 56(2) 721.

[13]   HCJ 6539/03 Goldman v. Ministry of the Interior [2004] IsrSC 59(3) 385.

[14]   HCJ 769/02 Public Committee against Torture in Israel v. Government of Israel [2006] IsrSC 62(1) 507.

[15]   HCJ 4481/91 Bargil v. Government of Israel [1993] IsrSC 47(4) 210.

[16]   HCJ 3125/98 Iyad v. Commander of IDF Forces in Judea and Samaria [1999] IsrSC 45(1) 913.

[17]   Temple Mount Faithful Organization  v. Prime Minister [1993] IsrSC 47(1) 37.

[18]   HCJ 4877/93 Victims of Arab Terror Organization v. State of Israel (12.9.1993).

[19]   HCJ 7523/11 Almagor – Victims of Terror Organization v. Prime Minister (17.10.2011).

[20]   HCJ 9549/09 Legal Forum for the Land of Israel v. Ministerial Committee for Matters of National Security (21.4.2010).

[21]   HCJ 9056/00 Kleiner v. Chairman of the Knesset [2001] IsrSC 55(4) 703.

[22]   HCJ 10104/04 Peace Now for Israel Educational Projects v. Commissioner for the Jewish Settlements in Judea and Samaria [2006] IsrSC 61(2) 93.

[23]   LCA 1287/92 Bosqila v. Zemah  [1992] IsrSC 46(5) 159.

[24]   HCJ 754/83 Rankin v. Minister of the Interior [1984] IsrSC 38(4) 113.

[25]   HCJ 466/07 MK Zehava Gal-On v. Attorney General (11.1.2012).

[26]   EA 1/65 Yardur v. Knesset Elections Committee [1964] IsrSC 19 (3) 365.

[27]   HCJ 9149/10 Dr. Vatad v. Israeli Knesset (13.5.2014).

 

District Court cases cited:

[28]      F (Tel Aviv District) 907/70 Tamrin v. State of Israel [1970] PM 42 287.

[29]      RM (Tel Aviv District) 25477-05/11 Kaniuk v. Minister of the Interior (27.9.2011)

[30]      OM 6092/07  (Jerusalem) Ornan v. Minister of the Interior  

 

International conventions cited:

Universal Declaration of Human Rights, 1948, art. 15

Israeli legislation cited:

Basic Law: Freedom of Occupation, and sec. 2

Basic Law: Human Dignity and Liberty, and sec. 1A

Basic Law: The Knesset, secs. 5, 7(a)(1)

Civil Union for Persons Having No Religious Affiliation Law, 5770-2010

Culture and Arts Law 5763-2002, sec. 2(c)

Law and Administration (Nullification of the Application of Law, Jurisdiction and Administration) Law, 5759-1999, sec. 6

Law of Return 5710-1950, and sec. 4B

Nazi and Nazi Collaborators Punishment Law, 5710-1950

Parties Law, 5752-1992, sec. 5(1)

Penal Law, 5737-1977, sec. 13(b)(2)

Population Registry Law 5725-1965, and secs. 3A, 19C , 2, 4, 5,

Ships Ordinance (Nationality and Flag), 5708-1948

Shipping (Vessels) Law, 5720-1960

Special Cultural Educational Institutions Law, 5768-2008, sec. 2(b)

State Education Law, 5713-1953, sec. 2b

Terminally Ill Patient Law, 5768-2008, sec. 1(b)

 

 

JUDGMENT

Justice U. Vogelman

The appellants filed a motion in the Jerusalem District Court for a declaratory judgment that they are of Israeli nationality. This motion was filed in order to serve as a public document for the purpose of officially changing the “nationality[1]” item in their entries on the population registry. The District Court (per Judge N. Sohlberg) denied the motion, determining that this was an issue that was non-justiciable at the institutional level, hence the appeal before us.

1.    The appellants are all Israeli citizens. They are registered as having different nationalities in the population registry – most are registered as Jewish, and some as other nationalities: Arab, Druze, Buddhist, Burmese and other. Appellant no. 1, Prof. Uzi Ornan  (hereinafter: Ornan), is registered in the population registry as “Hebrew”, based on his declaration. More than a decade ago, Ornan set up the “I Am An Israeli” non-profit organization, whose members signed a petition according to which they belong to the Israeli nation. In 2000, Ornan asked the Ministry of Interior to register him, under the “nationality” item in the population registry, as “Israeli”. His request was denied on the basis of case law established forty years earlier in CA 630/70 Tamrin v. State of Israel [1972] IsrSC 26(1) 197 (hereinafter: Tamrin Case), to be elucidated below. Late in 2003, Ornan began a legal battle to change the entry for “nationality” in his case. First, he submitted a petition to this Court, together with other petitioners, but they withdrew their petition in 2004 following the Court’s recommendation that they approach the correct forum in order to obtain a public document attesting to their Israeli nationality, in accordance with the requirement of sec. 19C of the Population Registry Law 5725-1965 (hereinafter: Population Registry Law) (HCJ 11286/03 Ornan v. Minister of the Interior (20.9.2004)). More than two years later, the petitioners filed a new petition in the District Court of Jerusalem, sitting as a Court for Administrative Affairs, but the petition was transferred, with consent, to the procedural framework of a civil suit, since it involved a request for declaratory relief.

The Judgment of the District Court

2.    The Jerusalem District Court (per Judge N. Sohlberg) dismissed the action for declaratory relief, after determining that the matter is not institutionally justiciable. The previous court conducted an extensive, thorough examination of the issue of justiciability, in accordance with the common approach in our system that distinguishes between two principal aspects of the issue: normative justiciability and institutional justiciability. After laying the said foundations, the court applied the criterion adopted in the framework of HCJ 910/86 Ressler v. Ministry of Defense [1988] IsrSC 42(2) 441 (hereinafter: Ressler Case) as the test guiding the discretion of the court when called upon to decide this question - the criterion of the dominant nature of the subject under discussion. Accordingly, the District Court held that the dominant nature of the requested declaration was public, ideological, social, historical and political – but not legal. In the court’s view, the appellants request cannot be viewed as a technical-administrative matter concerned only with registration in the population registry; rather, it is – in actual fact – a request that the District Court of Jerusalem determine that in the State of Israel, a new nationality has developed, common to all residents and citizens, the “Israeli” nationality. This issue, said the District Court, is a political-national-social question, the legal aspect of which is secondary to the meta-legal main subject. The District Court emphasized that the matter is justiciable from a normative point of view, but it is not justiciable from the institutional point of view, for a determination concerning the existence of an Israeli nationality has far-reaching, momentous ramifications for the image, the nature and the future of the State. This determination is not the type of matter in which the court has a relative advantage over others, and it is not the court’s place to make such a determination. The District Court emphasized that we are in fact dealing with the creation of a new status, “a type of legislative act”. It further pointed out that the platform proposed by the appellants as the basis for the recognition of an Israeli nationality – the population registry – is not suited for that purpose, for the technical-statistical registration in the registry cannot constitute an alternative to deliberation on the part of the legislative and executive authorities and to public discourse, which are the suitable arenas to promote their ideas. The conclusion of the District Court was that “from the point of view of statute and the law, there is no Israeli nationality, and this Court must not create such a creature ex nihilo; legislating rather than adjudicating.” The lower court nevertheless stressed that its judgment was not a determination that an “Israeli nationality” did not exist in a person’s heart and in his personal belief, but pointed out that this belief –worthy of appreciation and respect – does not require legal validation or approval.

The Appellants’ Arguments

3.    According to the appellants, the lower court erred in determining that the dominant nature of the request was not legal, and therefore not institutionally justiciable. They argue that the determination of the issue carries practical implications for the daily life of the individual, in both the domestic legal aspect and the international legal aspect, and the court may not, therefore, refrain from deciding on the matter. According to the appellants’ line of argument, the entire citizenry of the state constitutes the nationality that composes the state; therefore, negation of the existence of an Israeli nationality is equal to the denial of the existence of the State of Israel as a sovereign, democratic state. According to the appellants, with the declaration and the establishment of the State of Israel, the Israeli nation, which does not include Diaspora Jewry, was created, and thus the court’s determination that “from the point of view of statute and the law, there is no Israeli nationality” is mistaken. In support of their position, the appellants refer to the Declaration of Independence, from which it transpires – so they argue – that Diaspora Jewry is not a part of the nation that arose in Israel with the establishment of the State, comprised of “the independent Hebrew people in its land” and “members of the Arab people who reside in the State of Israel.” To support their arguments, the appellants also refer to legislation from the early days of the State, which uses the word “nationality”, and from which one can learn that an Israeli nationality exists: thus, for example, in 1948 the Ships Ordinance (Nationality and Flag), 5708-1948 was enacted, and it specified that in the case of a ship registered in the State of Israel, “its nationality is that of the State of Israel”; and subsequently, the Shipping (Vessels) Law, 5720-1960, which replaced the Shipping Ordinance, stated that “the nationality of a vessel registered under this Law is Israeli.” The appellants further point to the fact that in the Israeli passport, the term “nationality” appears, and underneath it appears the word “Israeli”. According to the appellants, “nationality” is not a religious or ethnic nationality, but “a nationality of the state in its legal sense”, the right to belong to which was entrenched in art. 15 of the Universal Declaration of Human Rights, adopted in 1948 by the General Assembly of the United Nations.

In addition, the appellants make two further points. First, they argue that the list of nationalities presented by the Ministry of the Interior, which includes 137 different nationalities, does not constitute a binding legal source in any respect, for it has no statutory basis, and it is not at all clear who was authorized to compile this list. Secondly, it was argued that the fact that the “nationality” item has been removed from the identity card cannot change the situation, for even if the registration is for the purpose of collecting statistics, the information about the declarants’ Israeli nationality ought to be available to the Ministry of the Interior. In this aspect, the appellants emphasized that underlying their request is the assumption that recognition of an Israeli nationality would be a substantive expression of the principle of equal and full citizenship that was entrenched in the Declaration of Independence, for the present situation creates a distinction between nationalities on an ethnic-religious basis.

Subsequently, after the hearing on the appeal and following the comments of the panel of justices, the appellants asked to submit short complementary pleadings relating to two aspects. The first was with regard to the substance of registration in the population registry, in view of the fact that under the common law, it constitutes a statistical-registrational tool of limited significance. According to the appellants, this legal reality does not present a full picture of the implications of the registration, as they claim that the current registration, which relies on the ethnic-religious component, might be determined, at a future date, to be a violation of the equality between groups of Israeli citizens who are of different ethnic origins. According to the appellants, this situation, whereby Israeli citizens are coercively tagged with a nationality with which they do not identify, is justification for the court to entertain the matter and to grant their request. In reference to another aspect, the appellants asserted that every citizen should retain free choice as to registration of the nationality in which he is interested.

Arguments of the Respondents

4.    Respondents nos. 1-2, the Ministry of the Interior and the Attorney General (hereinafter: the respondents), ask that the appeal be denied. In their view, the lower court was correct in holding that the matter is not justiciable as it has dominant social, national and public aspects, which have significant and far-reaching ramifications for the image and the character of the society and the State. In a complementary pleading filed on October 29, 2012 the respondents referred to the writings of various thinkers, from the 19th century to present day, regarding the profound dispute on the question of whether Judaism is a separate nationality from the nationality of the state of citizenship (“a Jew with German citizenship” as opposed to “a German of the Mosaic faith”). The respondents argue that this question must be resolved in the appropriate arenas – in the framework of academic and public discourse – and the Court would do well to stay away from this discussion. The respondents reviewed many other cases in which the Court decided not to entertain a particular issue, relying on the principle of separation of powers and the concern that the public’s trust in the judiciary would be damaged, and they sought to draw an analogy from those cases to the circumstances of the present case.

According to the respondents, the judgment does not contain determinations on the merits of the matter, and is therefore seemingly sufficient to accept the argument of lack of institutional justiciability in order to deny the appeal. At the same time, the respondents add that the appeal ought to also be denied on the grounds that the appellants did not meet the burden of proof they bore as those who seek declaratory relief, which requires them to show the existence of an “Israeli nationality”. In arguing on the merits, the respondents emphasized that they believe that it is the Israeli citizenship that constitutes the expression of the common self-determination of the residents of Israel, and it is the citizenship that unifies the array of nationalities that have come together in the State of Israel. According to them, the argument of the appellants that an Israeli nationality was created upon the establishment of the State must be dismissed, in view of the fact that the separate classification of the different groups of the Israeli population as belonging to different nationalities existed prior to the establishment of the State and remained thereafter. It was also emphasized that the information concerning nationality appears only in the population registry, which is a statistical database, and it does not even constitute prima facie evidence of its accuracy. The respondents therefore argued that in practice, the appellants’ request has no real import, and it is wholly a product of the symbolism that they attach to it. As such, so it is argued, the appellants have not shown that granting declaratory relief is justified in this matter. 

Following the retirement of President D. Beinisch, who presided over the panel that heard the arguments of the parties, President A. Grunis assumed her place. Later, complementary written pleadings were filed, and now the time has come to rule.

Deliberation

Population Registry Law

5.    Let us begin by presenting the normative framework for our deliberations – the Population Registry Law and the acts performed pursuant to it. The Population Registry Law regulates the operation of the population registry, in which the details of Israeli residents are registered. The details that must be registered for each resident are enumerated in sec. 2 of the Law:

       (1)        Family name, first name and former names;

       (2)        Parents’ names;

       (3)        Date and place of birth;

       (4)        Sex;

       (5)        Nationality;

       (6)        Religion;

       (7)        Personal status (single, married, divorced or
                        widowed);

       (8)        Name of Spouse;

       (9)        Names, dates of birth, and sex of children;

       (10)      Past and present citizenship or citizenships;

       (11)      Address;

       (11A)   Postal Address […];

       (12)      Date of entry into Israel;

       (13)      Date of becoming a resident […].

 

The registration officers appointed by the Minister of the Interior are responsible for the administration of the registry (sec. 4 of the Law). The resident has a duty to notify the registration officer of his details and the details of minor children in his charge (sec. 5 of the Law), as well as of any change in them (sec. 17 of the Law). In addition, the Law contains particular provisions regarding the duty of notification in relation to birth, adoption, death, leaving the country (secs. 6-14 of the Law), and regarding the updating of certain details at the instigation of the relevant authority or the court (secs. 15-16 of the Law). The powers of the registration officer are specified in chap. 3 of the Law (secs. 19-23 of the Law). Section 3 of the Law states that registration in the registry shall be “prima facie evidence of the correctness of the details of registration referred to in items (1) to (4) and (9) to (13) of section 2.”  The details of registration dealing with nationality (5), religion (6) and personal status (7) – (8), do not have probative weight, and as such – as we will see below – they have been interpreted in the case law as constituting purely “statistical” data.

6.    Section 19B of the Law is concerned with the registration of a resident who is registering for the first time (“initial registration”), which will be done on the basis of a public document or on the basis of the declaration of the resident or his custodian. The registration officer is authorized to demand that the person making the notification furnish him with any information or document in his possession that is relevant to the details of registration, and to make a written or an oral declaration as to the truth of the information or the document (sec. 19 of the Law). If the registration officer has reasonable grounds to assume that the notification is not correct, he is authorized to refuse to register that detail (sec. 19B(2) of the Law). Section 19C of the Law – which is the relevant section in our case – deals with a change in a registration detail of a resident (“registration of changes”), which will be done, in general, on the notification of the resident accompanied by a public document attesting to the change. In other words, whereas for the purpose of initial registration the registration clerk may be satisfied solely with a notification of the resident or his custodian, in order to change the existing registration of a detail in the registry, presentation of a public certificate is required. As an aside, it will be noted that an address may be changed on the basis of notification by the resident alone, without a public document being required. The Law authorizes (under certain conditions) the Chief Registration Officer to register a resident who is not registered, or to amend a detail of registration in relation to a resident, insofar as the existing registration is deficient or contradicts another registration or a public document (sec. 19E).

Case Law on the Substance of the Detail “Nationality”

7.    As mentioned above, questions of religion and nationality – and especially the question of “who is a Jew?”  were raised in this Court early on, in the framework of discussion of the Population Registry Law and the exercise of authority thereunder. The case law consistently accorded an extremely narrow interpretation to the authority of the registration officer and the discretion granted to him in relation to registration of the details of nationality, religion and personal status. This case law began with HCJ 143/62 Funk-Schlesinger v. Minister of the Interior [1963] IsrSC 17(1) 225 (hereinafter: Funk-Schlesinger Case), in which it was ruled that “the function of the registration officer […] is only that of a collector of statistical data for the purpose of conducting the residents’ registry, and he was given no judicial power at all” (at p. 244). As we will see below, the holding that this is a statistical registration, and that exercise of power under the Population Registry Law is technical and not substantive, allowed the Court to afford relief to those turning to it without having to issue iron-clad rulings on the sensitive and complicated questions of “who is a Jew” (for criticism of the Funk-Schlesinger judgment and the decisions stemming from it, see Eitan Levontin, “A Castle in the Air – The Funk-Schlesinger Decision and Population Registry Laws”, Mishpat Umimshal 11(1) (2007), 129 (Heb.).

8.    HCJ 58/68 Shalit v. Minister of the Interior [1970] IsrSC 23(2) 477 (hereinafter: the First Shalit Case) dealt with the case of Mr. Benjamin Shalit, who notified the registration officer that the nationality of his children was “Jewish”, but his request to register them as such was refused by the clerk because the children were born to a non-Jewish mother. The Court granted the petition, by a majority opinion, relying on the judgment in the Funk-Schlesinger Case and ordered the registration officer to register the petitioners’ children as “Jewish” under “nationality”, on the basis of their father’s declaration. Against the background of the judgment in Shalit’s case and the public tempest it aroused, sec. 3A of the Population Registry Law was enacted, which provides as follows:

 A person shall not be registered as a Jew by nationality or religion if a notification under this Law or an entry in the Registry or a public document indicate that he is not a Jew, so long as the notification, entry or document has not been controverted to the satisfaction of the Chief Registration Officer or so long as declaratory judgment of a competent court or tribunal has not otherwise determined ”

(Subsec. (b) states that for the purpose of this Law, the definition of “Jew” shall be the same as its definition in sec. 4B of the Law of Return, 5710-1950 (hereinafter: Law of Return): “… a person who was born of a Jewish mother or has become converted to Judaism, and who is not a member of another religion”; see also: Michal Shaked, Moshe Landau: Judge (2012), 368-380 (Heb.)).

9.    HCJ 4/69 Ben Menashe v. Minister of the Interior [1970] IsrSC 24(1) 105 (hereinafter: Ben Menashe Case) – a sort of a “mirror image” to the First Shalit Case - was a case in which the entry under the nationality of the petitioner’s children had initially appeared as “Jewish”, despite the fact that their father asked that they be registered as devoid of nationality. It was ruled that the initial registration was unlawful, for the registration officer was not authorized to make such a registration contrary to the declaration of the petitioner. In HCJ 147/80 HCJ 147/80 Shtederman v. Minister of the Interior [1970] IsrSC 24(1) 766 (hereinafter: Shterderman Case), the petitioners’ request to delete the entry under nationality as “Jewish” from their registration in the population registry was denied. The petitioners sought to express their discontent with the change in legislation that followed the ruling in the First Shalit Case. The petition was denied after the Court ruled that the initial registration was lawful (as opposed to the case in the Ben Menashe Case), and a public document was therefore required for the purpose of amending the registry under sec. 19C of the Population Registry Law. Justice H. Cohn noted that the petitioners had not really and truly changed their self-definition, and they do not see themselves as belonging to another nation; therefore their petition lacks substance. Later, the Court denied another petition filed by Benjamin Shalit, in which he sought to register his third son (who was born after the legislation had been changed) as being of “Hebrew” nationality. The Court held that “in actual fact, there is no difference between the Jewish nationality and the Hebrew nationality”, and registration of Shalit’s son as a “Hebrew” would therefore constitute a circumvention of sec. 3A of the Population Registry Law (HCJ 18/72 Shalit v. Minister of the Interior [1972] IsrSC 26(1) 334) (hereinafter: Second Shalit Case).

10.  The Tamrin Case was, as aforesaid, an early incarnation of the case at hand. Dr. George Tamrin immigrated to Israel in 1949 from Yugoslavia, and was registered in the population registry as “Jewish” under nationality, and as “without religion” under religion. According to Tamrin’s assertion, the enactment of sec. 3A of the Population Registry Law in 1970 – which states that a person will not be registered as “Jewish” in the nationality or religion field if he does not satisfy the definition of “Jew” under sec. 4B of the Law of Return – made him change his feelings about being of Jewish nationality. He therefore turned to the District Court for declaratory relief, to allow him to change the entry under nationality to “Israeli”. The District Court of Tel Aviv-Jaffa (per Judge Y. Shilo) denied the petition (F (Tel Aviv District) 907/70 Tamrin v. State of Israel [1970] PM 42 287).

In a lengthy, reasoned opinion by President S. Agranat, this Court denied Tamrin’s appeal.

First, the Court ruled that in order to issue a declaratory judgment concerning a particular person’s affiliation to a particular nationality, proof based on objective criteria is required concerning the existence of that nationality. President Agranat held that “the subjective feeling of a person about belonging to a particular nationality has no significance, unless it is possible to determine, on the basis of some sort of criteria, that that nationality in fact exists” (at p. 201).

Secondly, it was held that it was not proven that in the State of Israel, an Israeli nationality had come into being, separate and differentiated from a Jewish nationality. President Agranat proceeded to examine the question of the nature of nation and nationality, relying on the conclusion of (then) Justice J. Sussman in the First Shalit Case, according to which “an array of objective and  subjective factors, taken together, raise a group of people to the status of national group” (p. 514): the feeling of unity that exists amongst the members of the national group, mutual reliance and collective responsibility, as well as ethnic values and cultural heritage that characterize the national group and differentiate it from other national groupings. In applying the said criteria to the Israeli case, President Agranat found that “there is no merit to the claim of the appellant – not even prima facie – that there has been a separation from the Jewish nation in Israel, and the creation of a separate Israeli nation” (p. 205). This holding is based on many historical examples that attest to the existence of a feeling of mutual reliance between Jews living in Israel and in the Diaspora, and on that Tamrin did not show that there is a significant group in Israel who lacks this “feeling of Jewish mutual reliance”. President Agranat discussed at length the meaning of the terms “identity” and “identification” in their ethnic-national sense (pp. 203-204), and ruled that the academic essays and the research to which Tamrin had referred in support of his arguments, which dealt with the preference of individuals in the renascent Israeli society for their Israeli identity over their Jewish identity, do not necessarily attest to the absence of their identification with the Jewish nationality. That is to say, President Agranat held that even if there are Israelis who prefer the Israeli aspect of their identity to its Jewish aspect, this does not negate their identification with the members of the Jewish nationality.

In addition to this ruling, which relied on the judgment of the District Court in the matter, the President added that in his view, the principle of the right to national self-determination was intended to apply to nations and not to “fragments of nations”. In his opinion, recognition of such nationality might lead to national and social fragmentation of the entire nation. The President added that a separatist trend of splitting the Jewish people was unacceptable. In his view, this was not the intention of the legislator in inserting “nationality” as an item in the population registry, and in any case the Court cannot support this (at pp. 217-223). Justice Z. Berinson concurred in the opinion of President Agranat, for the same reasons. Justice Y. Kahan also concurred in denying the appeal, but the main reason for his conclusion was that the relief requested by Tamrin was apparently inconsistent with the definition of “Jew” in sec. 3A of the Population Registry Law.

11.  In CA 448/72 Shik v. Attorney General [1973] IsrSC 27(2) 3 (hereinafter: Shik Case), the Court heard the matter of a person who was registered as a Jew under “nationality”, and petitioned the District Court for declaratory relief whereby he is entitled to be registered in the Population Registry without any entry for national affiliation. The intention was for the ruling to serve as a public document for the purpose of amending the registry, under sec. 19C of the Population Registry Law. The District Court denied the application. The Supreme Court allowed the appeal on the denial of the application, holding that a person has the right not to belong to any religion or nationality, and when he makes a declaration to that effect – and the court is convinced that this declaration is true and sincere – the declaratory judgment must be made, on the basis of which the registration in the registry will be changed. Justice Berenson wrote that no distinction must be made here between the item designated as “religion” and that designated as “nationality”, for –

 … they are both matters of a person’s heart, his faith and his world view, particularly in the case of a person who does not want to belong to any religion or any nation. When a person declares of himself that he belongs to a particular religion or nation, it is still not a certainty that this religion or that nation, according to its laws, will adopt him and recognize him as such. However, lack of faith or heresy of religion, and a person’s desire to view himself as a citizen of the world and free of the constraints of any nationality – that is his business that does not require any consent and any external validation (at p. 6).

In this, Justice Berenson adopted the approach of Justice Sussman in the First Shalit Case according to which the determination of a person’s affiliation to a particular religion and nationality stems primarily from the individual’s subjective feeling. At the same time, Justice Berenson confined his ruling to a person who wishes to change the registration in order to deny his affiliation to a religion or nationality, and he also noted in his opinion that if the purpose of the request is to change the registration from one nationality to another, the considerations are liable to be different. Justice Berenson added:

This is not a matter of whim or caprice, that a person can declare himself to be a member of a particular religion or national affiliation and the next day or the day after that as a member of another religion or national affiliation, or as being without religious or without ethnic affiliation …. When a person wishes to change an existing registration, he must convince the court that he is indeed serious, his thoughts are sincere and his intention is true (at p. 8).

The Court remarked that weight should be given to the fact that in that matter, the existing registration (Jewish nationality) was based on the notification of the parents when the appellant was a minor, and he has not accepted it ever since he was able to make up his own mind (p. 5). The Court reiterated this ruling in granting declaratory relief according to which Mrs. Johanna Shelah had no religion and was entitled to register without an entry under the religion item in the registry (CA 653/75 Shelah v. State of Israel [1977] 31(2) 421) (hereinafter: Shelah Case); see also a recent decision: RM (Tel Aviv District) 25477-05/11 Kaniuk v. Minister of the Interior (27.9.2011)) (hereinafter: Kaniuk Case).

12.  Whereas in Shelah Case the Court – as we said – granted the appellant’s request to be registered as without religion, her request to register in the population registry as a “Hebrew” under the nationality item was denied. (Then) Deputy President M. Landau adopted the determination of the District Court whereby there is no difference between the terms “Jew” and “Hebrew”, and that uniformity of the registry must be preserved. In his decision, Deputy President Landau also relied on the ruling in the Tamrin Case, stating that the appellant had not proven that there exists a Hebrew nation separate from the Jewish nation, and that separatist tendencies to split the nation should not be encouraged. (Then) Justice M. Shamgar concurred in the judgment of Deputy President Landau and in its reasoning. Justice A. Witkon concurred in the conclusion reached by the Deputy President, for the reasons given by the District Court (that the meaning of the term “Hebrew” is identical to that of the term “Jew”, and preservation of uniformity of the registry is a proper purpose), but he did not agree with the reliance on the ruling in the Tamrin case. Justice Witkon remarked that it was not the job of the authority responsible for the population registry to express an opinion about “separatist” movements – either for or against, and that each person should be able to be registered as he wishes.

13.  After a “lull” of several years in cases concerning the dispute over registration of religion and nationality notations, petitions related to the registration of these particulars – religion and nationality – again came before the Court regarding individuals who underwent non-Orthodox conversions (HCJ 264/87 Shas Movement v. Population Registrar [1989] IsrSC 43(2) 723) (hereinafter: Shas Case); HCJ Naamat v. Minister of the Interior [2002]  IsrSC 56(2) 721) (hereinafter: Naamat Case)). The broad principle that the registration officer is obliged to register in the population registry – in the initial registration – information furnished to him and attested to in a document, with no authority to examine the legal validity of that information, was also applied in our rulings relating to these matters. It should be pointed out that in the framework of the judgment in the Naamat Case, a decision was also made regarding the process concerning the amendment of the registration of the items of religion and nationality, items under sec. 19C of the Law, in the framework of which a judgment was sought as a public document. In relation to that process, too, the rule concerning the technical and statistical nature of the registration in the registry was applied (ibid., per President A. Barak, paras. 3 and 33). Thus, the Court did not turn away the petitioners empty-handed by determining that this was a non-justiciable issue, but it limited its decision to the technical-registration aspect. To be precise: the Court emphasized that it was not making any determination on the question whether the petitioners were considered Jewish according to the Halacha (Jewish Law), and that its decision was restricted to the purposes of the Population Registry Law, and stemmed from the case law relating to the registration of the particulars of religion and nationality in the population registry.

14. We therefore see that the items of religion and nationality in the population registry were fertile ground for stormy legal debates on matters of “peoplehood and nationality, of religion and state, of Orthodox and non-Orthodox conversion, of who is a Jew and who is not a Jew” (HCJ 6539/03 Goldman v. Ministry of the Interior [2004] IsrSC 59(3) 385, at p. 395). These were tempestuous, radicalizing debates, which touched the very core of opponents and supporters – and all of this, even though the registration itself had no stated legal ramifications in practice. Against this background, even in the early case law of this Court on the subject, Justice A. Witkon expressed his displeasure with questions of values in the area of nationality being brought before the Court, and called upon the Government “to initiate legislation that would obviate the need for registration of this superfluous field” (First Shalit Case, at p. 532; see also p. 536).  After several decades of litigation revolving around the “nationality” item, it seems that the picture has not changed. And indeed, once again a dispute concerning the registration of “nationality” item in the population registry is brought before us.

At this stage, we wish to examine the main reason underlying the decision of the District Court – the question of institutional justiciability. 

Institutional Justiciability

15.  The District Court held an elaborate and detailed discussion of the question of justiciability in its judgment, and reached the conclusion that the matter brought before it is not institutionally justiciable, for its dominant aspects are meta-legal. The issue of justiciability has been part of our legal system since its early days. The discussion of the scope of issues appropriate for deliberation in this Court, and in the courts in Israel in general, is not new. In the Ressler Case, (then) Justice A. Barak distinguished between normative justiciability and institutional justiciability (see also: I. Zamir, “Judicial Review of Administrative Decisions – From Practice to Theory”, Mishpat veAsakim 15 (2012) 225, 247  (Heb.)). A claim of normative non-justiciability questions the ability of the court to decide a dispute before it using legal criteria. “A dispute is not justiciable in the normative sense, if there are no legal criteria for its resolution” (ibid., at p. 475). In Justice Barak’s view, the claim of normative non-justiciability has no legal basis, for there is always a legal norm by virtue of which a dispute can be resolved (see also: HCJ 769/02 Public Committee Against Torture in Israel v. Government of Israel, at p. 578 (hereinafter: Targeted Killings Case); Aharon Barak, The Judge in a Democratic Society (2004) 276-279 (Heb.)). Institutional justiciability comes to answer the question of whether the correct institution for resolving the dispute is the court (as opposed to other arenas, such as the government, the Knesset or public discourse). Justice Barak’s approach is that recourse to the doctrine of absence of institutional justiciability should be extremely limited, and confined to special cases in which there is a significant concern of damaging the public trust in judges (see: The Judge in a Democratic Society, at p. 275; HCJ 769/02 Public Committee against Torture in Israel v. Government of Israel [2006] IsrSC 62(1) 507, at p. 579). The test outlined by President M. Shamgar in the Ressler Case for examining the claim of lack of institutional justiciability is that of the dominant character of the subject:

It may be that the political character is dominant to such extent that the legal implications of the problem will be swallowed up by it or pushed to a corner […]. If the totality clearly and openly indicates that the dispute is of a dominantly political nature, the court will not tend to deal with it (at p. 515).

On the basis of this test, petitions that addressed policies relating to the settlement of Israeli citizens in the areas of Judea and Samaria were denied, after it was determined that the dominant nature of the subject is political and not legal (HCJ 4481/91 Bargil v. Government of Israel [1993] IsrSC 47(4) 210; HCJ 3125/98 Iyad v. Commander of IDF Forces in Judea and Samaria [1999] IsrSC 45(1) 913); for similar reasons, petitions relating to the negotiations conducted by Israel with Syria at the beginning of the 1990s were denied (Temple Mount Faithful Organization  v. Prime Minister [1993] IsrSC 47(1) 37), and to signature of the Oslo Agreements between the State of Israel and the PLO (HCJ 4877/93 Victims of Arab Terror Organization v. State of Israel (12.9.1993)); decisions concerning the release of prisoners and prisoner exchanges (HCJ 7523/11 Almagor – Victims of Terror Organization v. Prime Minister (17.10.2011)) and the decisions mentioned in para. 3 of this decision); a decision on the building freeze in Judea and Samaria (HCJ 9549/09 Legal Forum for the Land of Israel v. Ministerial Committee for Matters of National Security (21.4.2010)). Another area in which we find reference to considerations of institutional justiciability is intervention in certain intra-parliamentary procedures (HCJ 9056/00 Kleiner v. Chairman of the Knesset [2001] IsrSC 55(4) 703; see also Daphna Barak-Erez, “The Justiciability Revolution – An Evaluation”, Hapraklit 3 (2008) 19-20 (Heb.) (hereinafter: Barak-Erez – The Justiciability Revolution).

Institutional Justiciability and the Question of the Israeli Nationality

16.   As stated, the appellants argue that the law established in the Tamrin Case is outdated, and direst the core of their argument at the holding of the Court in the Tamarin Case that there is no “Israeli” nationality distinct from the Jewish nationality. The appellants are not disputing the validity of the first part of the law established in the Tamrin Case, whereby objective proof of the existence of a nationality is a necessary condition for granting declaratory relief, and that a subjective feeling is insufficient for a judicial  determination that a particular nationality exists for the purpose of registration of the particular of nationality in the population registry (as opposed to the stance of Justice A. Witkon in the Shelah Case, according to which every person should be allowed to register as he wishes). We will not, therefore, discuss an argument that was not made before us and which is not in dispute between the parties. Moreover, the pleadings seem to indicate that the appellants wished to invoke this first part of the said ruling, for they are asking this Court to render a decision with broad implications: an unreserved declaration of the objective existence of an Israeli nationality. Thus, for example, the appellants signed off on their summations in the appeal by noting that they “believe that the Supreme Court will ‘restore the Crown to its former glory,’ it will raise the Israeli nationality out of its wretched state and in so doing will make a vital contribution to strengthening the foundations of the State of Israel …” (para. 25 of the appellants’ summations).

17.  Therefore, unlike other matters in which questions relating to the registry were at issue – which we discussed above – we are not required to step into the path of the decision in the Funk-Schlesinger Case  in a way that would restrict the significance of the registry and the actions performed pursuant to it to a purely technical act based on the declaration of the registrant. Hence the significant difference between the process before us and the other cases in which the Court dealt with questions in the area of the population registry. For the requested relief to be granted, as presented by the appellants and in accordance with the case law which they do not dispute, the Court would have to declare the existence – on the basis of objective criteria – of an “Israeli nationality” to which they belong.

This question has many layers; it is complex from a theoretical point of view and sensitive from the public aspect. We are dealing with fundamental issues that have preoccupied the State of Israel and the Israeli society since the establishment of the State and even prior to that, as we shall see below.

18.  The appellants argue, for example, that “it is impossible to define the whole of world Jewry as belonging to the “Jewish nation”, for the Jews … are all of the nationality of the states of which they are citizens” (sec. 28 of the statement of appeal). We are dealing with an issue that is sensitive and controversial on the moral level and the historical level, one which has been accompanying the Jewish people for many years, and the Zionist movement from its inception. The conception that Judaism is not only a religious affiliation but also a national affiliation is the foundation-stone of Zionism. Standing contra to this is the conception that Judaism is only a religion, and consequently, the national affiliation of Jews is only to the state whose citizenship they hold. The basic elements of this latter conception lie in the process of emancipation of the Jews in the states of Western Europe, when many of them began to define themselves as Jewish from the religious aspect only (“Germans of the Mosaic faith”; for a description of this trend amongst German Jews until the rise of Nazism, see Amos Elon, The Pity of It All: A Portrait of Jews in Germany 1743-1933 (2002)). After the establishment of the State of Israel, this controversy changed its direction. On the one hand, the establishment of the state of Israel is the realization of the Zionist vision to establish a national home for the Jewish people in the Land of Israel. Thus, the Declaration of Independence states that “The Land of Israel was the birthplace of the Jewish People” and that it is the “natural right of the Jewish People to be masters of their own fate, like all other nations, in their own sovereign State.” On the other hand, there were those who argued – as do the appellants before us – that with the establishment of the State and pursuant to that process, an Israeli nation was born (or at least, ought to have been born), distinct from the Jewish nation.

19.  The ramifications of this discussion are tremendously far-reaching. They touch upon the relations of the State of Israel with Diaspora Jewry, and upon the perceptions and relations of the different groups within the State of Israel. The lower court discussed the possible ramifications of a judicial decision on the dispute:

A declaration as requested is liable to upset the delicate balance between the national and cultural components of the State, that are based on national identities including ones that are not Jewish, and between the manner in which the religious components find expression.

       Nota bene: a person cannot belong to two nations. If an Israeli nationality is to be recognized, the members of the Jewish nation in Israel will have to choose between two options: whether they are Israeli, and then they will not be Jewish; or whether they are Jewish, and then they will not be Israeli – the same applies to the members of the minority groups.

In other words, a declaration by the Court as to the existence of an Israeli nationality as an objective reality is likely to impact the question of the registration of the “nationality” item of all citizens of Israel, even those who are not interested in this. In this last context, we would mention the position of the scholars Jacobson and Rubinstein, who discussed the meaning of such a step in relation to the Arab community:

In the present situation of two clear national identities within the citizenry, the official – or even unofficial – adoption of the term “the Israeli people” might, rather than including the Arab minority from a national point of view – exclude it from a civil point of view …. Amongst the Arab population, many will refrain from defining themselves as Israelis, or even refuse to do so outright, due to the “lack of national neutrality” of that term, or simply for political reasons (Alexander Jacobson and Amnon Rubinstein, Israel and the Family of Nations (2003) 346 (Heb.) (hereinafter: Jacobson and Rubinstein).

20.  It will be noted that the appellants’ line of argument and the question that it raises are to a great extent derived from the argument regarding the nature of the term “nationality”. The definition of the term “nationality” is not simple, and extensive academic writing exists in the field of the social sciences in an attempt to understand its depths, its historical sources, the reciprocal relations between nationality and national state, and between nationality and nationalism (for contemporary writings, see: Ernest Gellner, Nations and Nationalism (1983); Erich Hobsbawm, Nations and Nationalism since 1780: Programme, Myth, Reality (1991); Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (1983)). The distinction between several models of nationalities and conceptions of nationalism is generally accepted: civil nationalism, in which there is identity between the nationality and the political citizenship, which is based on a social contract and the will of the citizens (the example representing this model is France: see: Jacobson and Rubinstein, at pp. 375-386), and ethnic-cultural nationalism, in which the affiliation of the individual to a national group is primarily the result of common objective characteristics (common language, religion, culture and history). This is the conception that prevails nowadays in Israel in relation to the term “nationality”, which the appellants before us seek to challenge. That is to say, the appellants’ quest to change the notation of “nationality” in the population registry expresses their wish for the population registry to reflect the civil nationality conception, as part of their public battle to establish this as the appropriate model for the State of Israel (see also: Moshe Barnet, A Nation Like all Other Nations – Towards the Establishment of an Israeli Republic (2009) (Heb.); Yosef Agassi, Between Religion and Nation – Towards an Israeli National Identity (2nd ed., 1993) [the author is appellant no. 4 in the present appeal – U.V.]).

21.  Thus, we have seen that in order for the Court to grant the request of the appellants for a declaratory judgment to the effect that they belong to the Israeli nation, they must, according to the case law, prove by means of objective criteria the existence of this nation. This discussion involves basic questions about the State of Israel, the Jewish people, Zionism, and different conceptions of nation and nationality. The complexity involved in dealing with these questions – upon which we have barely touched– hardly needs to be stated. Answers to some of these questions may perhaps be found within the public consensus, and some are still subject to heated debate. The natural venue for these discussions is not within the courtroom, but in other arenas of public debate and academic literature. The Court would do well to exercise great restraint in relation to these issues (Aharon Barak, Judicial Discretion (1987), 289-291).

22.  The above notwithstanding, I cannot entirely accept the conclusion of the lower court, namely, that this is an issue which is not justiciable from an institutional point of view. First, as we saw, this Court has often dealt with issues that relate to the contents of the “religion” and “nationality” fields in the population registry, despite the public sensitivity of these questions. The view that these questions are institutionally non-justiciable remains a minority one (see the opinion of Justice I. Englard in the Naamat Case, at p. 755). Rather, the Court has chosen to examine a narrow and technical aspect of the significance of the information recorded in the entries on religion and nationality in the registry, to interpret narrowly the authority of the registration officers to examine the contents of the detail that was registered by virtue of a person’s declaration.

23.  Indeed, our case law has repeatedly emphasized that the population registry and the actions performed within its framework pursuant to the Population Registry Law are not the appropriate arena for deciding on complex moral questions in the area of religion, national identity and personal status. So, in the words of Deputy President M. Cheshin in one of the cases:

The Population Registry Law is, in the main, a technical law, and if we load upon its narrow shoulders a heavy burden of fateful questions, it will not be able to bear it. The Population Registry Law was not intended, at base, to embrace questions of people and nation, of religion and state, of Orthodox and non-Orthodox conversion, of who is a Jew and who is not a Jew (HCJ 6539/03 Goldman v. Ministry of the Interior [2004] IsrSC 59(3) 385, at p. 395 (hereinafter: Goldman Case)).

I agree with this statement unreservedly. Nevertheless, it cannot be concluded that the Court washes its hands of the concrete questions that are presented to it in cases involving the Population Registry Law and the actions performed pursuant to it. It is the legislator who determined that “nationality” would appear in the population registry, and in consequence, various issues arise for our consideration. As pointed out by Deputy President M. Cheshin in the Naamat Case, “Where the legislator makes legal norms that apply to the individual – rights and duties, immunities, privileges and other such legal relations between people – dependent upon the existence of a particular thing, by the very same flourish of the pen does he, as a matter of principle, make that “thing” justiciable where before it may not have been so” (ibid., at pp. 761-762). In other words, were the nationality item not included in the Population Registry Law, it could easily have been decided that this was an issue that, by its nature, ought not to be decided in court, for the reasons elucidated by the District Court. But this is not the situation. This becomes even more clear in the case at hand, for the issue that was laid at the doors of the District Court – the question of the existence of an “Israeli nationality” – has already been examined and discussed, on its merits, by this Court in the Tamrin Case.

Is a Reexamination of the Holdings in the Case of Tamrin Justified?

24.  Within the contours of their argument, the appellants face a high hurdle – the need to convince the Court that justification exists for ordering a change in the holdings in the Tamrin Case., by pointing to a substantive change in circumstances or other reasons that justify so doing (and cf.: HCJ 10104/04 Peace Now for Israel Educational Projects v. Commissioner for the Jewish Settlements in Judea and Samaria [2006] IsrSC 61(2) 93, at p. 151). Let us recall that “it is not sufficient that an earlier ruling does not seem to the judge to be good in order to justify a departure from it” (per President A. Barak in LCA 1287/92 Bosqila v. Zemah  [1992] IsrSC 46(5) 159, at p. 172). This is even more pertinent in our case, against the background of the institutional considerations that we discussed. Even if the said considerations do not tip the scales in favor of a determination that this is an issue that is institutionally non-justiciable, the Court may – in the framework of exercising its judicial discretion – reach the conclusion that there is no room to depart from the holdings in the Tamrin Case, after weighing additional considerations on different planes. To be precise: the institutional considerations do not stand alone, and their weight changes according to the circumstances of the matter. In the present case, additional considerations exist that justify the determination that renewed discussion of the question that was decided in the Tamrin Case is not warranted.

25.  First, the appellants barely dealt with the holdings of the Court in the Tamrin Case. The sources to which the appellants referred were directed primarily at indicating that Israeli nationality was already created in 1948, with the establishment of the State of Israel, as part of the civil-national conception in which they believe. However, the judgment in the Tamrin Case – and its holdings – was handed down over twenty years after the establishment of the State of Israel. The arguments on principle that the appellants raise were therefore considered by the Court in the Tamrin Case, and were dismissed on the merits.

Secondly, the appellants do not deal with the existence of deeply-rooted conceptions in the Israeli public and in the case law in relation to the interpretation of the term “nationality” in Israeli law. The appellants’ argument is therefore a normative one, to the effect that there ought to be recognition of the existence of an Israeli nationality as derived from Israeli citizenship, and the existence of other nationalities amongst Israeli citizens should be rejected. The hurdle that the appellants must overcome is, as stated, on the objective plane. However, apart from elucidating their coherent world view on the matter, the appellants have not presented a factual basis for the contention that the general public’s approach to the concept of “nationality” has changed between the judgment in the Tamrin Case and nowadays.

Thirdly, the appellants have not dealt with the distinction that exists within the Population Registry Law between the nationality item (sec. 2(a)(5) of the Law) and that of the citizenship item (sec. 2(a)(10) of the Law). Many of the sources to which the appellants referred in support of their arguments about the existence of an Israeli nationality refer to nothing other than Israeli citizenship. Thus, for example, the term “Israeli nationality” in the Ships Ordinance means only citizenship, and this is also the meaning of the term “nationality” that appears in the Israeli passport. The distinction between citizenship and nationality is not new to us. The substantive item of the two is, of course, the citizenship. Citizenship creates an ongoing legal connection between the individual and his state (HCJ 754/83 Rankin v. Minister of the Interior [1984] IsrSC 38(4) 113 (hereinafter: Rankin Case), at p. 117; and see Amnon Rubinstein and Barak Medina, The Constitutional Law of the State of Israel, Vol. 2: Governmental Authorities and Citizenship (6th ed., 2005), 1071 (Heb.)). This connection is important in broad areas of law. From the citizen’s point of view –  

It has the capacity to accord him rights, to grant him powers, to impose duties upon him and to recognize his immunity in various, varied matters. Citizenship is connected to the right to vote in the elections to the Knesset, to hold various public offices, to the jurisdiction of the courts, to matters of extradition and many and varied matters …(the Rankin Case, at p. 117).

A person’s citizenship is registered, as stated, in the population registry according to sec. 2(a)(10) of the Law, and this registration does constitute proof of its accuracy. Nota bene: it is crystal clear that the reliance of the appellants on statutory provisions in Israeli and international law relating to citizenship does not stem from a confusion of terms on their part. As we saw, the appellants’ desire to bring about a unification of these two terms is the ideological underpinning of their motion and the conception of nationality that they support. At the same time, when they asked the Court to depart from the case law, they did not grapple with the existence of the said distinction in the Law.

26.  At the same time, and possible even more importantly: in my view, the existing law affords the appellants a possible course of action that may bring about the desired result from their point of view, even if only partially, without the Court having to depart from the decision in the Tamrin Case by declaring the objective existence of an Israeli nationality. This is by way of registration in the population registry as Israeli citizens only. Such a course of action is based on the ruling in the Shik Case, where it was held that when a person asks to leave the “nationality” field blank, he need only prove the sincerity of his request (this, similar to the recent decision of the Tel Aviv-Jaffa District Court in RM (Tel Aviv District) 25477-05/11 Kaniuk v. Minister of the Interior (27.9.2011), in the framework of which the court granted Kaniuk’s request for declaratory relief that enabled the deletion of the word “Jewish” from the “religion” field). In the Tamrin Case the appellant sought relief of this type – a declaration that he is not part of the Jewish nation – as alternative relief as part of his summations. This request was dismissed in limine, for it appeared for the first time in the framework of the summations at the appeal stage, and had not been raised in the District Court or during the hearing on the appeal itself. However, President Agranat added that the request ought also to be denied on the merits, since the only reason underlying it is the appellant’s desire to express his disapproval of the statutory amendments that were made pursuant to the First Shalit Case. In this, the Court reiterated the holdings in the Shtederman Case judgment. It would seem – prima facie – that this is not the situation in the present case. The appellants, some of whom are registered as Jewish in the “nationality” field and some as being of other “nationalities”, are not seeking to express their objection to the limitations set in the legislation on registration of a person as “Jewish” by nationality; rather, they wish that true expression be given to their subjective self-definition. Even if the sought-after relief is not granted in full, it would appear that adoption of the course of action established in the Shik Case could, to a certain extent, serve their purposes. On the one hand, they will no longer be “labeled” as belonging to a nation to which they do not wish to belong according to their declaration (whether it is “Jewish”, “Hebrew”, “Arab” or other). On the other hand, they can continue to define themselves – to themselves and to the whole world – as Israelis according to their Israeli citizenship, which will continue to be registered in the population registry. If the appellants’ wish is that the registry reflect their approach whereby citizenship is the appropriate characteristic for inclusion in the definition of a person’s identity, then omission of the contents of the “nationality” field in the entry that relates to them, while leaving the citizenship in place, can serve this purpose faithfully.

True, the circumstances in the present case are somewhat different from those in the Shik Case. There, the discussion was of the matter of a person who declared that he does not belong to any nation (“negates nationality altogether and sees himself as a cosmopolitan who does not belong to any nation”), whereas in our case, the appellants claim that they belong to the Israeli nation. At the same time, if this Court is convinced of the sincerity of the declaration of the appellants that they no longer wish to appear as being of the nationality under which they are presently registered, it would seem that this ruling might be applied to them as well. In my view, this is the inevitable outcome of the principle of human dignity, for in labeling a person as a member of a nation to which he feels no connection we violate his right to self-determination, which the Court already discussed in its early judgments (the Shik Case, at p. 7, per Justice Berenson; the First Shalit Case, at p. 511, per (then) Justice Sussman). Needless to say, this has been reinforced following the enactment of Basic Law: Human Dignity and Liberty, which accords human dignity constitutional status.

Nota bene: relief such as this was not requested in the proceedings that were the subject of the appeal, for this was not the declared wish of the appellants, and therefore there is no room to grant this relief in the framework of the present discussion. Nevertheless, the existence of this possible course of action for erasing the entry of the nationality entry – in reliance on the decision in the Shik Case – is in my view an important consideration amongst the whole array of considerations leading to the conclusion that a departure from the law as decided in the Tamrin Case is not warranted.

Conclusion

27.  The appellants seek a declaratory judgment that will serve as a pubic document for the purpose of amending their registration under the “nationality” field in the population registry to “Israeli”. The lower court denied the request, ruling that this was an issue that was not justiciable.

We discussed the theoretical complexity and the institutional sensitivity involved in examining the question of the existence of “Israeli nationality”, which is tied to fundamental questions about the State of Israel and the Jewish people: the relationship between religious identity and national identity; competing theoretical conceptions of the term “nationality” and their application in our case; the connections between the State of Israel and Diaspora Jewry; the relations between different sectors of the citizens of the State and their national affiliation. Indeed, this sensitivity necessitates restraint in exercising judicial discretion. The natural place for these discussions is not in the courtroom, but in other arenas of public discourse and scholarly writing, hence the reliance of the lower court on the doctrine of institutional justiciability.

At the same time, I cannot adopt the holding of the lower court on the question of institutional justiciability. As we have seen, issues connected to the contents of the fields of religion and nationality in the population registry (and in particular, the question of “Who is a Jew”) have been brought before this Court since its inception. The Court has indeed repeatedly emphasized that the population registry is not the appropriate forum for deciding on the sensitive issues of religion and nationality, and has explained that its holdings on these issues do not settle the questions on their merits. Nevertheless, the view that these issues are not justiciable has remained a minority view.

Relying on the case law relating to the technical nature of the act of registration in the population registry, the Court has not refrained from extending relief to those who turn to it, even when in the background there were “sensitive” issues of conversion, Jewish law, religious identity and national identity. And more importantly, in the Tamrin Case discussed above, this Court deliberated the issue brought before it on the merits, and ruled that the existence of an Israeli nationality had not been proven by objective criteria. As such, we have been asked to reopen the discussion on this question, after it has already been decided by this Court.

Even though the institutional considerations cannot lead to a determination that the issue is non-justiciable, they can impact on the willingness of this Court to reopen the discussion of this matter. Therefore, if the appellants seek to depart from the decision in the Tamrin Case, they bear a significant onus that requires – at least – the presentation of arguments that were not considered at the time by this Court and that clearly indicate that there is a need for a change. Such arguments were not, as explained, presented before us. In addition, I found that even without changing the Tamrin Case ruling, the existing law provides the appellants with a course of action that would allow them to define themselves – to themselves and to the whole world – as Israelis according to their Israeli citizenship, which would continue to be registered in the population registry, without any connection to the “nationality” item. This could be done by following the appropriate procedure for erasing the registration of “nationality”, in accordance with the law as decided in the Shik Case.

In the balance between the various considerations, I have concluded that the appellants have not lifted the onus that they bore to justify a departure from the holdings in the Tamrin Case. I will therefore propose to my colleagues that the appeal be denied, with no order for costs, and I will clarify that denial of the appeal in no way detracts from the principled battle of the appellants, born of their personal convictions, and from the discourse that will continue in the public domain.

 

Justice H. Melcer

I concur in the comprehensive, carefully-crafted judgment of my colleague, Justice U. Vogelman, in which he dismissed the claim of institutional non-justiciability in the present case, and reached the conclusion that the appellants did not lift the burden that they bore to show justification to depart from the judicial determinations made in the Tamrin Case. I also agree with the result at which my colleague arrived, whereby the appeal should be denied, with no order for costs.

Nevertheless, due to the importance of the questions that arose in this case, and in view of the fact that on several matters, my opinion differs slightly from that of my colleague, I will permit myself to elucidate my approach to the questions on which we do not entirely agree. I will focus only on the legal aspect, for the issues that the appellants seek to raise obviously also touch on deep disagreements in public, philosophical and historical areas, although in my view, as in that of my colleague, this does not lead to normative or institutional non-justiciability of the legal issues involved in the questions arising here (see and compare the deliberations and the different results that were obtained, pursuant to changes in the legislation, in each of the Shalit cases – the First Shalit Case in 1970, and the Second Shalit Case in 1972).

2.    It seems to me that the fact that decades have passed since the judgment in the Tamrin Case entitled the appellants to initiate new proceedings (HCJ 11286/03 Ornan v. Minister of the Interior (20.9.2004)), and OM 6092/07 in the Jerusalem District Court, the object of this appeal, pursuant to the judgment in HCJ 11286/03 above) and to argue for factual and normative changes that justify, in their view, a departure from the Tamrin Case decision insofar as they are concerned. In relation to the considerations that allow for the “opening” of constitutional issues that have been settled (particularly with respect to the validity of laws, but regarding other matters as well), see my opinion in HCJ 466/07 MK Zehava Gal-On v. Attorney General (11.1.2012).         

3.    Against the background described in para. 2 above, I have reached the conclusion that the appellants have not succeeded in showing that over the many years that have passed since the decision in the Tamrin Case was handed down, an “Israeli nationality” has developed (factually or legally) in Israel, as they claim, to which members of different religions, or those without religion, or those who belong, or belonged, to various ethnic groups are meant to belong.

And indeed, a people and a nation are not easily created. Even Amir Gilboa, in his famous “Song of the Morning”, which in its first verse and the chorus refers to a situation in which –

“Suddenly a man wakes up in the morning 

He feels he is a people and begins to walk

And to all he meets on his way he calls out ‘Shalom!’”

qualifies himself as the song continues, and writes – out of historical awareness – thus:  

And he laughs with the strength of generations in the mountains,

And shamed, the wars bow down to the ground, 

To the glory of a thousand years flowing forth from the hiding places, 

A thousand young years in front of him 

Like a cold stream, like a shepherd's song, like a branch.

(Emphasis added – H.M.)

Hence the appellants, even though they are wise and have attained impressive personal achievements, and have contributed to Israeli society (and this indeed is my opinion of them), and all feel subjectively that they belong to the “Israeli nation”, cannot establish (at this stage, at least), a legal entity of an “Israeli nationality”. At this point two comments are in order:

(a)   The list of nationalities recognized by the Ministry of the Interior, which includes some 140 items (appendix 4 of the appellants’ statement of claim in the District Court) is in fact substantively different in its characteristics from that which the appellants are seeking (this list contains nationalities that are defined according to sovereign states (such as Italian nationality, Belgian nationality, Polish nationality etc.), nationalities with no sovereignty (such as Kurdish nationality), nationalities of religious-ethnic groups (such as Samaritans, Druze etc.), and even Hebrew nationality, which was recognized with respect to the members of the “Young Hebrews” Movement (so named at the time by their opponents, the “Canaanites”), when this movement emerged in Israel (this was before the enactment of sec. 4B of the Law of Return, and prior to the “constitutional revolution”)).

(b)   Appellant no. 1, Professor Uzi Ornan, registered at the time by virtue of his declaration as being of “Hebrew nationality”, and now, with the passage of the years, he asks to “change nationality” and to be considered as belonging to what he defines as “Israeli nationality”. This requested change from one nationality to another nationality attests, in itself, to the fragility of the distinctions proposed by the appellants.

4.    Neither do the legislative changes that have occurred since the decision in the Tamrin Case support the appellants’ approach: the opposite may even be true. I will deal with this point forthwith; before that, however, I would point out that I do not accept the central legal proposition of the appellants, which is as follows:

A ‘Jewish sovereign entity in the Land of Israel’ does not exist, but rather a sovereign entity called Israel, and its decisions are made by the Israeli nation – the entire citizenry only, without distinction of race, religion or sex …”

(para. 17 of the appellants’ written arguments; at the end of that paragraph, the appellants added another statement in relation to what, in their view, is an inevitable disconnection from Jews outside of Israel; below, therefore, I will discuss separately the connection between Israel and Diaspora Jewry).

The above basic proposition is problematic in several respects:

(a)   The proposition ignores the “constitutional given” (this expression is borrowed from the opinion of President Agranat in EA 1/65 Yardur v. Knesset Elections Committee [1964] IsrSC 19 (3) 365, at p. 386), by virtue of which Israel is defined at the constitutional level – at least since 1992 – as a “Jewish and democratic state”, in the framework of the provisions that were then introduced into the Basic Law: Human Dignity and Liberty and in Basic Law: Freedom of Occupation. For the significance of this, see: Hanan Melcer, “The IDF as the Army of a Jewish and Democratic State”, Mishpat ve-Asakim 14, Mishpat ve-Adam Festschrift for Amnon Rubinstein (2012) 347) (hereinafter: Melcer, IDF as the Army of a Jewish and Democratic State). See also: Menachem Mautner, “The National Identity of Israel and the Problem of Equality”, in Arab Politics in Israel at the Crossroads, 111-112 (1995), who stated that “the process of victory of ‘Judaism’ over ‘Hebrew-ism’ received symbolic expression in 1992” (in the above two Basic Laws), and added:

… We recognize the power of the law to determine the culture … the law also determines identities. Identities of persons, and identities of groups. The two Basic Laws of 1992 are an example of laws that seek to determine national identity.

Elaboration of these subjects is found in Prof. Mautner’s book, Law and Culture in Israel at the Beginning of the Twenty-First Century, Chap. 2, and pp 31-32, 298, 365, 345, 420, 565-566 (2008)(Heb.) (hereinafter: Mautner, Law and Culture in Israel). It is noteworthy that Prof. Mautner, both in his above article and in his above book, supports the adoption of an inclusive element of identity that is “Israeli-ism” in the constitutional conception of the state, but in his view, too, this is the ideal law, and not the existing law (as opposed to the approach of the appellants, who believe that their request is grounded in the existing law).

(b)   The proposition displays a certain confusion of concepts on the part of the appellants. Israel is defined internationally (since the United Nations decision on the “Partition”) and internally (at least since the enactment of the above two Basic Laws, and even prior to that, by virtue of what emerges from the Law of Return – 1950 ) hereinafter: law of Return) and the Declaration of Independence), as the nation-state (medinat hale’om) of the Jewish People. The fact that it is also the national-state (medinat ha’umah) of its Israeli citizens – whoever they may be – does not negate its identity as the nation-state of the Jewish people (the term “nationality” (Le’um) refers to the components of the People that lives in the state, whereas the concept of “nation” (Umah)  relates to the citizens of the state. And see: Mautner, Law and Culture in Israel, at p. 32). See also: Prof. Ruth Gavison, “The National Rights of the Jews” (hereinafter: Gavison); Sir Martin Gilbert, “An Overwhelmingly Jewish State”: From the Balfour Declaration to the Palestine Mandate; Prof. Shlomo Avineri, “Self-Determination and Israel’s Declaration of Independence” – all from: Israel’s Rights as the Nation State of the Jewish People, Alan Baker (ed.), 2012, at pp. 8, 22 and 32 respectively (Heb.)).

In her article, Prof. Gavison argues that a distinction must be made between a national-ethnic identity and a national-civil identity (a distinction that the appellants ignore). She explains that in many contexts, nationality does not refer to civil identity, but to the desire of a particular ethnic (national) group to achieve political independence. She explains her position as follows:

…For otherwise, it would be illogical to talk of “national minorities” because by definition such minorities could not exist within any state. (ibid., at p. 12).

And she further clarifies:

The argument that the Jews are a nationality distinguishes between citizenship and cultural-national identity. All Israelis – both Jews and Arabs – share citizenship and a number of cultural characteristics … Nevertheless, Arabs and Jews both aspire for recognition as belonging to their national (Jews as opposed to Arabs) and religious (Jews, Muslims, Druze and Christians) group (ibid., at p. 12).

Furthermore, in her view –

There are also significant differences within these religious and national groups. Each of these identities is likely to entail practical implications. Jews who are citizens of other states do not aspire for those states to recognize their national rights. It is quite possible that they will choose to migrate to the only national (ethnic) state in the world of the Jews and thereby realize their national rights. They are also likely to maintain their non-Jewish (civil) nationality, and to recognize their cultural ties with the only country in the world that is the nation state of the Jews (ibid., at p. 12).

(c)   The proposition seeks to read the Declaration of Independence in a new way and to say that by virtue of the Declaration, the “Israeli” nationality was established, comprised of members of the “independent Hebrew people in its land” and members of the “Arab people who are citizens of the State of Israel.” This approach was already rejected in the Tamrin Case, based on an analysis of the Declaration of Independence – see p. 221 of the opinion of President Agranat, who stated, inter alia, as follows:

The Declaration [states – H.M.] that ‘the State of Israel will be open for Jewish immigration and for the Ingathering of the Exiles’ – this incorporates … the mission of a melding of the diasporas into ‘one people’…. I have only mentioned this … in order to stress that the great event that was the establishment of the State of Israel … did not happen to us so that a split would occur in the midst of the nation – Jewish on the one side, and ‘Israeli’ on the other.

This position expressed by President Agranat has become even more pertinent as the Basic Laws now refer, directly and explicitly (alongside their definition of the State of Israel as Jewish and democratic) – to the principles of the Declaration. See: Rubinstein and Medina, Vol. 1, at pp. 41-43 (6th ed. 2006) (hereinafter: Rubinstein and Medina). These principles include recognition of the legitimacy of the existence of the State of Israel as a Jewish State, based – as Rubinstein and Medina say –on three central foundations:

(1)   The United Nations Resolution of 29 November 1947, according to which a Jewish State will be established in the Land of Israel.

(2)   Moral recognition of the right of the Jewish people to self-determination in a national framework.

(3)   The practice in nation states, accepted by other democracies in the world, which negates the contention that a democratic system requires a “neutral state” from a national point of view.

(ibid., at pp. 322-323; for an elaboration of these issues, see: A. Yakobson and A. Rubinstein, Israel and the Family of Nations – The Jewish Nation State and Human Rights (2003); R. Gavison, Israel as a Jewish and Democratic State: Tensions and Chances (1999) (Heb.)).

Prof. Chaim Gans, whose general approach is entirely different, also does not dispute the fact that in the Declaration of Independence, expression was given to a three-fold justification for Zionism and its realization in the State of Israel. According to him, these three justifications, that were mentioned in the Declaration, included:

(1)   The historical connection between the Jews and the Land of Israel;

(2)   The right of Jews to stand on their own like every other people, i.e. their right to national self-determination;

(3)   The defense of necessity, which is learned from the persecutions of the Jews and from the Holocaust.

According to Gans’ approach, these justifications constitute the moral skeleton of the Israeli Declaration of Independence, if they are read in such a way that only the three together can provide legitimacy for the establishment of the State of Israel. See: Chaim Gans, “The Threefold Justification for Zionism”, Ha’aretz, Weekend Magazine, 30.8.2013, pp. 66-69 (Heb.) (for elaboration, see: Chaim Gans, Political Theory for the Jewish People – Three Zionist Narratives (2013), and the references to the Declaration of Independence, ibid., as per the Index).

The appellants were unable to respond to these interpretations, which, even if they stem from different world views, reflect a significant degree of agreement with respect to the contents of the Declaration of Independence in these contexts, and its significance for their arguments.

5.    Following the above preliminary remarks, I will now turn from the general principles to a description of the extant law, and I will emphasize that the combination of “Jewish and democratic state” has indeed brought about an extremely significant change here, gaining recognition in every normative arena in which the constitutional law of Israel is shaped. For various reasons, this phrase emerged in 1992 from the “stage of obscurity” (which was reflected in the expression, “Rock of Israel”  that appeared in the Declaration of Independence – see: Yoram Shahar, “The Early Drafts of the Declaration of Independence”, Iyunei Mishpat 26 (2002) 523, 526-530 (Heb.); Yizhar Tal “Declaration of Independence – A Historical, Interpretative Study” Mishpat Umimshal  6 (2003) 551, 564-565 (Heb.); Pinhas Shifman, One Language, Different Tongues Studies in Law, Halakhah and Society (2012), 20, 27-28 (Heb.)) and entered the “the stage of declarations”. See Melcer, The IDF as the Army of a Jewish and Democratic State, 351. This has a direct impact on our matter, for the appellants wish to raise objections, as we have said, to the significance of the Jewish nation and to Israel being the Jewish nation state. In this context I would like to further remark that in addition to sec. 1A of Basic Law: Human Dignity and Liberty and sec. 2 of Basic Law: Freedom of Occupation, which refer to the values of the State of Israel as a Jewish and democratic state, sec. 7(a)(1) of Basic Law: The Knesset also refers and characterizes Israel as a “Jewish and democratic state”, the existence of which as such may not be denounced. These approaches also found expression in regular legislation – see: State Education Law, 5713-1953, sec. 2(b); Electoral Parties Law 5752-1992,  sec. 5(1); Culture and Arts Law 5763-2002, sec. 2(c); Special Cultural Educational Institutions, 5768-2008, sec. 2(b); and Terminally Ill Patient Law, 5768-2008, sec. 1(b).

Due to the importance of the above change in relation to the constitutional characterization of the State, a great deal has been written on the various aspects of the significance of the combination “Jewish and democratic state”, and in particular, on the tension between the “Jewish state” and the “democratic state”, and on the ramifications of the “Jewishness” of the State. See, for example, a select sample: Haim H. Cohn, “The Value of a Jewish and Democratic State – Studies in Basic Law: Human Dignity and Liberty” Hapraklit, Jubilee Volume 9 (1993) (Heb.); Ariel Rosen-Zvi, “A Jewish and Democratic State: Spiritual Paternity, Alienation and Symbiosis – Can the Circle be Squared?” Iyunei Mishpat 19(3) (1995), 479 (Heb.); Asher Maoz, “The Values of a Jewish and Democratic State”, Iyunei Mishpat 19(3) (1995), 547 (Heb.); Ruth Gavison, “A Jewish and Democratic State: Political Identity, Ideology and Law”, Iyunei Mishpat 19(3) (1995), 169 (Heb.); Ruth Gavison, “A Jewish and Democratic State: Challenges and Risks”, Multiculturalism in a Jewish and Democratic State – Ariel Rosen-Zvi Memorial Volume (Menahem Mautner, Avi Sagi, Ronen Shamir eds., 1998), 213 (Heb.); Asa Kasher, “Jewish and Democratic State – a Philosophical Sketch”, Ruah Ish 13 (2000) (Heb.); Mordechai Kremnitzer, “The Image of the State of Israel as a Jewish and Democratic State” in The Jewish Character of a Democratic State (Aviezer Ravitzky and Yedidia Stern, eds., 2007), 395 (Heb.); Aharon Barak, “The Values of the State of Israel as a Jewish and Democratic State” in Aharon Barak – Selected Writings, vol. 1 (Haim H. Cohn, Yitzhak Zamir eds., 2000) 445 (Heb.); Aharon Barak, Legal Proportionality: Constitutional Rights and their Limitations (2010), 302-316 (Heb.); Yitzhak Zamir, Administrative Authority vol. 1 (2nd ed., 2010) 59-72 (Heb.); Amnon Rubinstein, “The Curious Case of Jewish Democracy”, Techelet (2010) 41, 78 (Heb.); Melcer, The IDF as the Army of a Jewish and Democratic State; see also all the papers in Israel as a Jewish and Democratic State (Asher Maoz, ed., 2011). As for the case law, the term “Jewish and democratic state” has been mentioned to date, in various contexts, in hundreds of judgments of this Court.

For our purposes it is important to emphasize that the “constitutional Jewishness” of the state negates the legal possibility of recognizing an “Israeli nationality” which is distinct, as it were, from the “Jewish nationality”, as so succinctly elucidated by President Agranat in his decision in the  Tamrin Case even prior to these Basic Laws (even more so -  this the inevitable conclusion after their enactment). Moreover, negation of the other nationalities in Israel and the inclusion of all of them in one “Israeli nationality” is contrary to the democratic nature of the State.

6.    The appellants are apparently aware of the above conclusions, and they are therefore attempting to blur the distinction between citizenship and nationality (or alternatively, to omit the “nationality” item from the population registry). Nevertheless, they are not able to explain why, under the extant law, these two must be entered separately in the population registry under sec. 2(a) of the Population Registry Law, 5725-1965 (hereinafter: Population Registry Law). I therefore agree with my colleague, Justice U. Vogelman, that all the appellants’ arguments concerning the existence of Israeli nationality in fact relate to Israeli citizenship. To the examples he cited in par. 25 of his opinion I will add that even the appellants’ argument in relation to the Law and Administration (Nullification of the Application of Law, Jurisdiction and Administration) Law, 5759-1999 (hereinafter: the Referendum Law), does not support their contention. The appellants attempt to deduce from the institution of “referendum” and from the provisions of the Referendum Law that within the bounds of “the people” – as a collective noun –all Israeli citizens of the state are included, as one nationality. However, the Referendum Law states, in sec. 6, only that –

A person shall have the right to participate in a referendum if he would have had the right to participate in elections to the Knesset had these been held at the time of the referendum. (Emphasis added – H.M.)

Section 5 of Basic Law: The Knesset, provides in this context as follows:

Every Israeli citizen of or over the age of eighteen years shall have the right to vote in elections to the Knesset, unless the court has deprived him of that right by virtue of any Law; the Elections Law shall determine the time at which a person shall be considered to be eighteen years of age for the purpose of the exercise of the right to vote in elections to the Knesset. (Emphasis added – H.M.)

From the above it transpires that in the Referendum Law also (the validity of which is now being examined in a petition before us in HCJ 9149/10 Dr. Vatad v. Israeli Knesset (13.5.2014)), eligibility to participate in a referendum is contingent upon Israeli citizenship (as well as majority), and not on affiliation to one nationality or another.

7.    Here I will also remark that in relation to the connection between Israel and Diaspora Jewry, from which the appellants wish to dissociate themselves in order to isolate the “Israelis” from the “Jews” and vice versa, the appellants were not sufficiently precise from a legal point of view. One of the characteristics of Israel as a Jewish state is –

… its responsibility for the fate of the Jewish people as a whole, because it was established as an expression of universal Jewish solidarity. In view of this responsibility, it has the right and the duty to employ the tools of collective state action for the protection of Jews who are harmed “qua Jews.” (See: Prof. Moshe Halbertal, “Is a Jewish Democratic State Possible” (Ha’aretz Weekend Magazine, 22.4.2013).

A manifestation of this may be found in sec. 13(b)(2) of the Penal Law, 5737-1977, which applies Israeli penal law to foreign offenses against “the life, body, health, freedom or property of  a Jew, as a Jew, or the property of a Jewish institution, because it is such.” This provision attests to the general approach of the legislator in relation to the protection of world Jewry that Israel is expected to provide.  See: Melcer, “The IDF as the Army of a Jewish and Democratic State”, at p. 354.

This is also the view of Prof. S.Z. Feller and Prof. Mordechai Kremnitzer in their article: “Reply to the Article ‘Against Extra-Territorial Application of Penal Law on National Grounds’ by Y. Shachar”, Plilim (1996), 65-69 (Heb.), and see especially what the authors write on p. 88:

The most serious anti-Jewish events … in which so many Jews were murdered and injured and so many institutions throughout the world damaged only because they were Jewish – for example in France, Italy, Belgium, Austria, Turkey, Argentina .… It seems that the Jewish people, which has been persecuted most cruelly throughout its long history, has accumulated a feeling of solidarity in its heart, irrespective of the citizenship of each individual Jew, which obligates Israel, as a Jewish state, to spread the net of its penal law to such injuries, whether or not they were successful, and to ensure that being brought to justice for these deeds will not encounter any legal consideration that is based on foreign law, or on an act of a foreign court.

This logic also underlies the Nazi and Nazi Collaborators (Punishment) Law, 5710-1950.

8.    I shall now proceed from the general to the specific, and deal with the relevant specific legislation. In this aspect, the appellants did not attempt to engage the compelling argument voiced at the time by (then) Justice Y. Kahan in the Tamrin Case, who referred to sec. 3A of the Population Registry Law. This section today provides as follows:

3A (a)  A person shall not be registered as a Jew by nationality or religion if a notification under this Law or another registration in the Registry or a public document indicates that he is not Jewish, so long as the said notification, registration or document has not been controverted to the satisfaction of the Chief Registration Officer or so long as declaratory judgment of a rabbinical court in an action of a litigant who is a resident concerning matters of marriage and divorce in accordance with sec. 1 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, or of a court, provided that he is not a member of another religion.

     (a1) If in the opinion of the Registration Officer, the notification, registration or public document as aforesaid in sec. (a)  above were not presented to the rabbinical court or the court that made the determination as aforesaid in that section, he may approach the rabbinical or civil court, as relevant, and present the above to the court, and he is entitled to defer the registration, its amendment or change thereof until a decision is rendered by the rabbinical or civil court.

     (b)   For the purposes of this Law and any registration or document by virtue thereof, “Jew” – within its meaning in sec. 4B of the Law of Return, 5750-1950. (Section 4B of the Law of Return defines “Jew” as a person who was born of a Jewish mother, or who has converted to Judaism, and who is not a member of another religion.)

     (c)   Nothing in this section shall derogate from any registration that was made prior to its coming into force.”(Emphasis and comments in parentheses added – H.M.)

Hence, (then) Justice Y. Kahan  deduced, in the Tamrin Case,  that a Jewish person’s affiliation to the Jewish nation, for the purpose of registration, must be determined in principle according to a single criterion,  i.e., whether the conditions for the definition of a Jew in the Law of Return have been met (here I must comment that in these contexts, questions remain on the meaning of “converted to Judaism, and who is not a  member of another religion”; however, these questions are not relevant to the dispute before us. Moreover, even the monikers “the Jewish People” and “the Hebrew People” have undergone changes and taken on various meanings over the ages. See: Meir Sternberg, Hebrews Between Cultures: Group Portraits and National Literature (Indiana Uni. Press, 1998); Eric Nelson, The Hebrew Republic: Jewish Sources and the Transformation of European Political Thought (Harvard Uni. Press, 2010).

The appellants did not furnish a satisfactory response to the above approach of Justice Y. Kahan (and I will add that the legislative amendments brought about in sec. 3A of the Population Registry Law since the decision in the Tamrin Case have no bearing on our matter), and it therefore remains valid today. Hence, for the purposes of changing the item of nationality, the subjective feelings and views of the person requesting the change are unimportant; what is important is the provisions of the law and the accepted definitions of nationality. Nevertheless, the need may arise in the future to introduce certain legislative changes, in the framework of which it may also be possible to recognize some “local” nationality, one which will be created with the years, even if only in relation to the thousands who immigrated to Israel (as the relatives of Jews) by virtue of sec. 4A of the Law of Return, similar to the process behind the enactment of the Civil Union for Persons Having No Religious Affiliation Law, 5770-2010. It would be possible to include the appellants and those like them within this framework.

9.     From what has been said to this point, and particularly in view of the argument discussed in para. 8 above, it is clear that I cannot agree to the course that my colleague, Justice U. Vogelman, described in para. 26 of his opinion for the appellants to consider adopting in the future. First, I cannot accept this because it was not something that the appellants requested in the framework of this process – the subject of the appeal before us – and my colleague indeed mentions this. To this I will add that in the Tamrin Case, even though the appellant there did make a request of this type in the framework of the appeal process, the Court decided not to accept it. This applies here a fortiori, where such alternative relief was not even sought. Needless to say, we have not heard arguments on this matter. Moreover, one can also argue about the distinctions that my colleague drew in these contexts (in view of the decision in the Shik Case). I will therefore confine myself to commenting that as distinct from citizenship and from religion, which can be “renounced” or changed, and for which there is also usually an institution or a “ceremony” by means of which, or with the authorization of which, the “renunciation” or “change” are performed – it is usually very difficult to renounce one’s nationality (just like a child cannot, in principle, “renounce” his parents). I will not go into the question here of whether one can hold “dual nationality” (like “dual citizenship”) and in what cases precisely is it possible to be a “universal person” lacking any nationality – a status claimed by Isaiah Shik, and which was granted to him.

10.   Beyond all that has been said so far, I believe that President Agranat’s conclusion in his monumental decision in the Tamrin Case – in which all the other justices on the panel concurred – according to which, as Justice H. Cohn said there, “It was not proved that legally, an ‘Israeli nationality’ exists, and we ought not to encourage the creation of new national ‘fragments’” – is still valid.

11.   Before concluding I would emphasize that the most that can be said in the context of the appellants’ position was expressed in the concluding paragraph of the opinion of the District Court (per (then) Judge N. Sohlberg), who stated:

There is nothing in this decision to say that there is no Israeli nationality – in a person’s heart, in the platform of a group of people, amongst a particular sector in the state. On the contrary, Prof. Uzi Ornan, like the other petitioners, believes that he is a member of the Israeli nation. This belief deserves respect and appreciation from those who share his view and those who oppose it.

My colleague, Judge Sohlberg, added “this belief does not require legal approval”; I however, believe that according to the prevailing legal situation, the subject is justiciable, but the demands of the appellants cannot be grounded in the existing law.

12. What emerges at this time from all the above is that in the current legal situation, citizenship is one thing, and nationality is another. Together with this basic position, several additional conclusions must be drawn:

(a)  With respect to the members of different nationalities who reside in Israel – at this point the separate nationalities should not be “unified” and legally gathered into a new, inclusive “Israeli nationality”, for this controverts both the Jewish and the democratic character of the state  (with respect to all the nationalities in our country, including Jewish nationality).

(b)  Insofar as the Jewish nationality is concerned – it has been proved thus far that the Seer of the State, Dr. Benjamin Zeev Herzl, was right when he wrote in his book, The Jewish State (1896):

I think the Jewish question is no more a social than a religious one, notwithstanding that it sometimes takes these and other forms. It is a national questionWe are a peopleone people. (Emphasis added – H.M; from the Introduction to the book, The Jewish State (in Hebrew, see: http://benyehuda.org\herzl_003.html)

 

(c)  The State of Israel was established and exists as a Jewish and democratic state as a solution for the Jewish people, which has suffered severe persecutions over the centuries and was mortally wounded in the Holocaust, and this is also one of the reasons for its definition – constitutionally – as such. There is therefore no legal basis for the appellants’ desire to negate the “Jewishness” of the State and to make all its citizens members of an “Israeli nationality”. The said determination does not, of course, detract from the obligation of the State, as derived, too, from the Jewishness of the State and from its democratic character, to protect and to grant full equality to all its citizens, residents and those over whom it has control, irrespective of nationality, race, religion, ethnic group and sex.

 

President Grunis

I concur in the opinions of my colleagues, Justice U. Vogelman and Justice H. Melcer, that the decision in the Tamrin Case applies to the matter which is the subject of the appeal, and that it has lost none of its validity. As such, I see no need to address the question of whether the District Court was justified in dismissing the appellants’ request on the grounds that the issue is non-justiciable from an institutional point of view. And another remark in relation to the proposal of my colleague, Justice U. Vogelman, that the nationality field in the population registry remain blank in the case of the appellants (para. 26 of his opinion): since this possibility was never raised by the appellants, I explicitly refrain from relating to it.

 

Appeal denied, with no order for costs.

28 Tishri 5774

October 2, 2013

Amended: 2 Heshvan 5774

October 6, 2013

 

[1] Translator’s note: The Population Registry Law translates the Hebrew לאוםle’om – as “ethnic affiliation”. Throughout the translation of this judgment, the more common, and more versatile translation, “nationality” or “nation”, will be used for le’om/le’umi- לאום/לאומי, but always as distinct from “citizenship”, unless otherwise dictated by the context. 

Hess v. Chief of General Staff

Case/docket number: 
HCJ 4146/11
Date Decided: 
Tuesday, July 9, 2013
Decision Type: 
Original
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.] 

 

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

 

HCJ (per Judge Arbel and with the concurrence of Judges Melcer and Danziger) dismissed the petition, subject to guidance regarding the review of the issue the subject of the petition, and held as follows:

 

With regard to the issue’s justiciability, war is subject to laws and the laws are subject to judicial interpretation, within the boundaries of the restraint that the HCJ has imposed on itself especially with regard to quintessential military matters. The choice of weapons used by the Army is not generally a matter for this Court’s consideration. Nonetheless, it cannot be said that in every case in which issues related to the use of weapons arise the Court will refuse to consider the matter. The boundaries of the HCJ’s intervention in matters of this kind are extremely limited to exceptional cases, where there is concern of injury to established legal norms. The HCJ intervenes in petitions even if they have political or military implications, so long as the dominant aspect considered therein is the legal aspect.

 

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

 

This petition raises, prima facie, serious arguments against the use made by the IDF of shells containing white phosphorus, which oblige, ex facie, another in-depth examination. The arguments are of a dominant legal nature. Accordingly, the HCJ proceeded to the second stage of review. However, at this stage the HCJ stopped the judicial review in light of the State’s declarations that it had been decided not to allow at this time the use of shells containing white phosphorus in a built-up area. The exceptions to this order are very limited and leave the prohibition of use effective and very wide, such that it is doubtful whether this matter will realistically arise again. With regard to the concern regarding a change in the Army’s orders, since the State has not declared that the orders are permanent ones, the HCJ ordered the IDF to conduct a comprehensive and in-depth review of the use of white phosphorus in the Army and the possible alternatives for its use, which will serve either to make the orders permanent or to substantiate a position justifying a change in the orders. The HCJ further ordered the State to notify the petitioners’ attorney in the event of a change in the orders, so that he may once again raise his arguments before the HCJ. 

 

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

 

In the Supreme Court

Sitting as a High Court of Justice

 

HCJ 4146/11

 

Before:

Her Honor, Judge E. Arbel

 

His Honor, Judge H. Melcer

 

His Honor, Judge Y. Danziger

 

The Petitioners:

Yoav Hess + 116 other Petitioners

 

 

v.

 

 

The Respondent:

The Chief of General Staff

 

 

 

 

Petition for the grant of an order nisi

 

 

 

Date of session:

Sivan 4, 5773 (May 13, 2013)

 

 

On Behalf of the Petitioners:

Adv. M. Sfard,  Adv. E. Schaeffer

 

 

On Behalf of the Respondent:

Adv. Y. Roitman

 

 

 

Judgment

 

Judge E. Arbel:

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

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

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

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

Discussion

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

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

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

President Beinish has also referred to the matter:

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

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

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

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

 

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

Given today, July 9, 2013.

 

___________________

___________________

___________________

Judge

Judge

Judge

 

 

Carmel Haifa Hospital v. Malul (summary)

Case/docket number: 
FH 4693/05
Date Decided: 
Sunday, August 29, 2010
Decision Type: 
Appellate
Abstract: 

Facts: The first respondent was born with multiple defects. She was delivered through a Caesarean section performed on her mother, the second respondent.  The trial court found that the appellant hospital had negligently delayed the surgery, but there was no certainty as to whether the respondent’s defects were caused by her premature birth (for which the appellants were not at fault) or by the delay in her mother’s medical treatment (a result of the first appellant’s negligence). The lower court awarded the respondents compensation in the amount of 40% of the full damages amount and an appeal was brought to the Supreme Court. The original three judge panel that heard the appeal held that the hospital was to be held proportionally liable for its negligence, even though the respondent had not proven, by the normal preponderance of the evidence standard, that the negligence had actually caused the damage. A rehearing of the appeal, before an expanded panel of the Court, followed.

 

Holding: Majority view, opinion by Vice President Rivlin. Vice President Rivlin ruled that proportional liability was desirable as an exception to the preponderance of the evidence standard only in circumstances in which that standard loses its advantage as an evidentiary norm. Primarily, those circumstances occur when a joint, repeated risk has been created; when this risk has been created vis-à-vis multiple potential plaintiffs and when the application of the preponderance of the evidence standard, combined with “all or nothing” damages standard, leads to a recurring distortion regarding the assignment (or non-assignment) of liability to the defendant.  In such cases only, the use of the preponderance of the evidence standard achieves neither corrective justice nor optimal deterrence. However, the assignment of proportional liability in other situations, based on a desire to do justice in the individual case, leads to an unacceptably high level of uncertainty.  President Beinisch approved of the recurring distortion standard as the only permissible narrow exception to the normal evidentiary requirement, agreeing with Justice Grunis that a general use of the proportional liability rule would lead to a slippery slope of expanding tort liability, for which, the President emphasized, the public would be required to pay. Justice Procaccia emphasized that the preponderance of the evidence standard should not be changed absent a legislative enactment. Justice Levy concurred with the Vice President’s opinion in full.

 

Minority view, opinion by Justice Naor: Justice Naor wrote that the decision in the original appeal should be allowed to stand. The requirements set out in the Vice President’s majority opinion refer to a different type of ambiguity than was present in this case, dealing as they did with ambiguity regarding the identity of the injured party. In the instant case, the ambiguity related to the actual causation of damage itself, and in such cases the recurring distortion and multiple potential plaintiff components are irrelevant. The “all or nothing” approach for awarding damages should be abandoned in favor of the proportional liability exception,  in cases such as this, meaning cases that involve inherent ambiguity regarding the actual causation of damages, and in which the defendant’s negligence towards the plaintiff — even a single plaintiff — has been established using the preponderance of the evidence standard, and in which it has been determined that negligence of the type committed by the defendant is a potential cause of the damages suffered by the plaintiff in the particular case.  In such cases, the innocent injured party must be favored over the party whose negligence has been proven, and compensation should be awarded based on the probability that the defendant had in fact caused the damage; such causation can be proven using evidence of general probability or of scientific estimations of the actual causation. However, for the time being, as the law develops, the exception should be applied only in cases involving bodily injury, which are the most typical cases for inherent ambiguous causation. Justice Joubran agreed with Justice Naor’s views, except for emphasizing that the proportional liability exception is to be applied specifically to cases of scientific ambiguity, and that it should be recognized as an evidentiary exception, not a change in the substantive law. Justice Rubinstein noted that recurring cases are the best examples of the need for proportional liability, and that the professional expertise of the judges who will use the proportional liability exception is adequate protection against “slippery slope” and judicial uncertainty concerns. In his view, proportional liability is required for reasons of justice. He also presented the positions taken by Jewish law in this regard, in cases of doubt as to the actual fault of the various parties. Justice Arbel noted that the proportional liability exception as outlined by Justice Naor provided the optimal balance in terms of deterrence against negligent behavior, and that the decisions issued by courts since the decision in the original appeal showed that judges can apply the exception without breaching the boundaries of judicial certainty.

Voting Justices: 
Primary Author
majority opinion
majority opinion
Author
concurrence
Author
concurrence
Author
concurrence
Author
dissent
Author
dissent
Author
dissent
Author
dissent
Full text of the opinion: 

FH 4693/05 (summary)

 

1. Carmel Haifa Hospital                               

2. Clalit Health Fund

 

v.

 

1. Eden Malul

2. Tzipora Malul

3. Armond Malul

 

 

The Supreme Court

[29 August 2010]

 

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

 

Petition for a Further Hearing on the Judgment of the Supreme Court dated 31 March 2005 in CA 7375/02, issued by the Honorable Justices Mazza, Naor and Joubran.

 

Facts: The first respondent was born with multiple defects. She was delivered through a Caesarean section performed on her mother, the second respondent.  The trial court found that the appellant hospital had negligently delayed the surgery, but there was no certainty as to whether the respondent’s defects were caused by her premature birth (for which the appellants were not at fault) or by the delay in her mother’s medical treatment (a result of the first appellant’s negligence). The lower court awarded the respondents compensation in the amount of 40% of the full damages amount and an appeal was brought to the Supreme Court. The original three judge panel that heard the appeal held that the hospital was to be held proportionally liable for its negligence, even though the respondent had not proven, by the normal preponderance of the evidence standard, that the negligence had actually caused the damage. A rehearing of the appeal, before an expanded panel of the Court, followed.

Holding: Majority view, opinion by Vice President Rivlin. Vice President Rivlin ruled that proportional liability was desirable as an exception to the preponderance of the evidence standard only in circumstances in which that standard loses its advantage as an evidentiary norm. Primarily, those circumstances occur when a joint, repeated risk has been created; when this risk has been created vis-à-vis multiple potential plaintiffs and when the application of the preponderance of the evidence standard, combined with “all or nothing” damages standard, leads to a recurring distortion regarding the assignment (or non-assignment) of liability to the defendant.  In such cases only, the use of the preponderance of the evidence standard achieves neither corrective justice nor optimal deterrence. However, the assignment of proportional liability in other situations, based on a desire to do justice in the individual case, leads to an unacceptably high level of uncertainty.  President Beinisch approved of the recurring distortion standard as the only permissible narrow exception to the normal evidentiary requirement, agreeing with Justice Grunis that a general use of the proportional liability rule would lead to a slippery slope of expanding tort liability, for which, the President emphasized, the public would be required to pay. Justice Procaccia emphasized that the preponderance of the evidence standard should not be changed absent a legislative enactment. Justice Levy concurred with the Vice President’s opinion in full.

Minority view, opinion by Justice Naor: Justice Naor wrote that the decision in the original appeal should be allowed to stand. The requirements set out in the Vice President’s majority opinion refer to a different type of ambiguity than was present in this case, dealing as they did with ambiguity regarding the identity of the injured party. In the instant case, the ambiguity related to the actual causation of damage itself, and in such cases the recurring distortion and multiple potential plaintiff components are irrelevant. The “all or nothing” approach for awarding damages should be abandoned in favor of the proportional liability exception,  in cases such as this, meaning cases that involve inherent ambiguity regarding the actual causation of damages, and in which the defendant’s negligence towards the plaintiff — even a single plaintiff — has been established using the preponderance of the evidence standard, and in which it has been determined that negligence of the type committed by the defendant is a potential cause of the damages suffered by the plaintiff in the particular case.  In such cases, the innocent injured party must be favored over the party whose negligence has been proven, and compensation should be awarded based on the probability that the defendant had in fact caused the damage; such causation can be proven using evidence of general probability or of scientific estimations of the actual causation. However, for the time being, as the law develops, the exception should be applied only in cases involving bodily injury, which are the most typical cases for inherent ambiguous causation. Justice Joubran agreed with Justice Naor’s views, except for emphasizing that the proportional liability exception is to be applied specifically to cases of scientific ambiguity, and that it should be recognized as an evidentiary exception, not a change in the substantive law. Justice Rubinstein noted that recurring cases are the best examples of the need for proportional liability, and that the professional expertise of the judges who will use the proportional liability exception is adequate protection against “slippery slope” and judicial uncertainty concerns. In his view, proportional liability is required for reasons of justice. He also presented the positions taken by Jewish law in this regard, in cases of doubt as to the actual fault of the various parties. Justice Arbel noted that the proportional liability exception as outlined by Justice Naor provided the optimal balance in terms of deterrence against negligent behavior, and that the decisions issued by courts since the decision in the original appeal showed that judges can apply the exception without breaching the boundaries of judicial certainty.

Legislation cited

Courts Law (Consolidated Version), 5744-1984, s. 79A.

Foundations of Law Statute, 5740-1980.

Compensation for Victims of Road Accidents Law, 5735-1975, s. 4(c).

Israeli Supreme Court Cases Cited

[1] CA 2781/93 Daaka v. Carmel Hospital IsrSC 53(4) 526 (1999).

[2] CA 8279/02 Golan v. Estate of Albert (2006) (unreported).

[3] FH 15/88 Melech v. Kornhauser [1990] IsrSC 44(2) 39.

[4] CA 600/86 Amir v. Confino [1992] IsrSC 46(3) 233.

[5] CA 5604/94 Hemed v. State of Israel [2004] IsrSC 58(2) 498.

 

American cases cited

[6] In re Agent Orange" Prod. Liab. Litig 597 F. Supp. 740 (E.D.N.Y. 1984).

[7] Summers v. Tice 199 P.2d 1 (Cal., 1948).

[8] Sindell v. Abbott Laboratories 607 P.2d 924 (Cal., 1980).

 

English cases cited

[9] Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22.

[10] Barker v Corus Plc Ltd [2006] UKHL 20.

[11] McGhee v National Coal Board [1973] 1 WLR 1.

Estonian case cited

[12] Case No. 3-2-1-78-06, 3 October 2006.

French case cited

[13] Appeal No. 06-109767, 22 May 2008.    

For the petitioners — Ran Shapira, Avimor Yaakov.

For the respondents — Joseph Leon.

 

JUDGMENT

(Summary)

Deputy President E. Rivlin

The respondent, Eden Malul, was born prematurely by way of a Cesarean section in the petitioner’s hospital. The trial court found that the hospital was negligent in not conducting the Cesarean section as fast as was medically necessary, and the respondent was born with certain mental deficiencies. However, it was not clear whether these deficiencies were the result of the premature birth — which is a no-fault factor — or the result of the hospital’s negligent delay in conducting the Cesarean section.

The trial court decided that the hospital’s negligence may have caused the respondent’s injury, and awarded the respondent damages covering 40% of her damage. The petitioners (the hospital and the HMO) appealed this decision to the Supreme Court. The Supreme Court decided that in cases of ambiguity regarding factual causation it is sometimes justified to assign “proportional liability”, if the probability that factual causation exists is substantial and yet does not exceed 50%. In this case, the Supreme Court determined that assigning proportional liability was justified, but reduced the damages to 20% of the damage.

The issue of assigning proportional liability in cases of ambiguity regarding factual causation, as an exception to the preponderance of the evidence standard, was brought for further hearing before a wide panel of the Supreme Court judges.

Normally, the plaintiff must prove all the elements of her claim according to the preponderance of the evidence standard in order to receive compensation. If she does not manage to do so, she will receive no compensation. This is often called the “all or nothing” rule. This rule must not be replaced altogether by a rule of “proportional liability”. First, the “all or nothing” rule reflects the basic conception that factually, only one reality exists — the defendant has either caused the injury or not. Second, this rule, along with the preponderance of the evidence standard, minimizes judicial errors and divides the risk of such errors equally between the plaintiff and the defendant (see: David Kaye, “The Limits of the Preponderance of the Evidence Standard: Justifiably Naked Statistical Evidence and Multiple Causation,” 7 Am. B. Found. Res. J. 487 (1982)). Thus, this rule is socially efficient. The “all or nothing” rule also reflects principles of fairness and corrective justice, as it leads to full compensation whenever it is more likely than not that the defendant has negligently caused the plaintiff’s injury. 

Despite these advantages, courts in Israel have recognized certain exceptions to the preponderance of the evidence standard, and to the “all or nothing” rule which follows it. One such exception is the recognition of “lost chances of recovering (in the medical sense)” as an actionable loss. When applying the loss-of-chances doctrine, compensation is not awarded for the physical injury, as it is not known whether that injury is causally linked to the negligent conduct. Therefore, the physical injury merely assists in calculating the damages for the alternate head of damage — lost chances. Damages for lost chances are calculated as a percentage of the monetary value of the physical injury. As can be seen, the loss-of-chances doctrine shifts the difficulty in proving causation, so that partial damages may be awarded de facto, without deviating from the preponderance of the evidence standard. It may be noted that in some cases, courts in Israel have applied the loss-of-chances doctrine when the lost chances were above 50%, even though in these cases the preponderance of the evidence standard allowed for full damages. Also, the mirror-image of lost chances — “increased risk” — was not recognized as an actionable loss, although it could be argued that the distinction between the two is not very well founded. Recognizing “increased risk” as a head of damage, however, could lead to a significant deviation from the preponderance of the evidence standard.

Another exception to the preponderance of the evidence standard was suggested by courts in Israel in the context of informed consent to a medical procedure. It was decided that the question of how the plaintiff would have acted if her consent had been properly obtained is largely hypothetical; therefore, the causal link between the lack of consent and the physical injury is usually ambiguous. In the case of CA 2781/93 Daaka v. Carmel Hospital [1], it was suggested that the court should estimate the probability that the plaintiff would have rejected the procedure, had her consent been properly obtained. If the probability is significant, albeit lower than 50%, the court may award partial damages. This suggestion had not been adopted as a rule, as the majority opinion recognized “infringement of autonomy” as an actionable tort, rendering the proof of causation regarding the physical harm unnecessary.

In this petition, it is suggested that a more general rule be set as to the conditions under which exceptions to the preponderance of the evidence standard should be made. In forming such a rule it must be remembered that generally, the preponderance of the evidence standard is the optimal way of dealing with uncertainty in the civil law. Its advantages are achieved when it is applied consistently and therefore it must not be abandoned merely because it does not alleviate the ambiguity in a specific case. However, under certain specific conditions, applying the preponderance of the evidence standard will nullify its usual advantages. These conditions are the creation of a joint, repeated risk towards a group of potential plaintiffs by a potential defendant; and the existence of an inherent, recurring distortion in the application of the preponderance of the evidence standard. A joint, repeated risk may be created by a single tortious act, such as environmental contamination; it may also be created by a series of tortious acts conducted by the defendant, each one exposing some members of the group to the risk. Such is the case when the defendant sets a negligent medical care policy. A recurring, inherent distortion in the application of the preponderance of the evidence standard would lead, under the current legal regime, to a fixed legal result in any litigation between any of the plaintiffs and the defendant. The legal result would always be biased in one direction: if the probability of factual causation is lower than 50%, no plaintiff will succeed in proving her case, although it is clear that in some cases the defendant did indeed cause the injury. If the probability is higher than 50%, all plaintiffs will succeed in proving their case, although the defendant did not actually cause the injury in all of the cases.

Therefore, under the aforementioned conditions, the application of the preponderance of the evidence standard would lead to undesirable results. Corrective justice is not achieved when the defendant is not held liable for damage she has truly caused by her negligence, or if the defendant is held liable for damage she has not caused. The status quo is not restored. Also, in order for efficient deterrence to take place, the defendant must be held liable for no more and no less than the damage she negligently caused. Applying the preponderance of the evidence standard in such cases as described above could make the defendant immune to liability — if the probability is inherently lower than 50%, in which case there would be no deterrence at all. On the other hand, if the probability is inherently higher than 50%, the preponderance of the evidence standard would lead to over-deterrence. In contrast, under the proportional liability rule, the expected liability of the defendant equals the actual losses caused by the tortious conduct. Finally, applying the preponderance of the evidence standard when there is a recurring distortion in its application, and it affects a group of plaintiffs, does not minimize the cost of judicial errors, and has a negative distributive effect. If a recurring distortion exists, the same party will always bear the cost of a judicial error. Normally, the risk of a judicial error is distributed equally between both parties.

Indeed, proportional liability in cases of a recurring distortion and a group of potential plaintiffs does not entirely restore the status quo, as some plaintiffs will be compensated for damage that was not caused by the defendant, and others, whose damage was caused wholly by the defendant, will be under-compensated. However, the defendant’s total liability will equal the true value of the injuries she caused — an outcome which could not have been achieved under the preponderance of the evidence standard. Also, under the preponderance of the evidence standard, the plaintiffs who are under-compensated would not have received any compensation at all (if the probability is lower than 50%). The requirement of a group of plaintiffs ensures that a defendant will not be held liable if she had not caused any damage at all, as may happen if proportional liability is assigned with regard to a single litigant. Although this result is achieved by shifting the perspective from the specific plaintiff to a group of plaintiffs, and thereby it somewhat differs from the concept of corrective justice in its most strict sense, it is the closest possible result to restoring the status quo. Corrective justice is achieved in the aggregative sense.

Of course, the proportional liability rule must apply both when the probability is higher than 50% and when it is lower, in order for the advantages of this rule to be achieved. Therefore, it is to be expected that both plaintiffs and defendants will attempt to prove the conditions set for the application of the proportional liability rule (of course not in the same case). Any party who wishes to apply a proportional liability rule must prove the existence of 4 conditions: the existence of a tortfeasor, of a group of plaintiffs, a joint and repeated risk, and a recurring distortion in the application of the preponderance of the evidence standard (hereinafter: “a recurring distortion”). The group of plaintiffs must be actual and not theoretical or hypothetical, although the plaintiff does not necessarily have to identify the individual members of the group. The party attempting to prove these conditions will naturally have to also supply the court with evidence regarding the probability that there is a causal link between the tortious act and the injury. This evidence may be scientific or statistical evidence. As the court’s perspective shifts from a single-plaintiff to a group of plaintiffs, many of the difficulties associated with relying on statistical evidence become irrelevant, and the court may rely on such evidence, as long as it is credible and relevant to the case.

In summary, the preponderance of the evidence standard remains the general rule for most cases. The “recurring distortion” doctrine serves as a well defined exception to that rule. It should not be understood too widely, but neither should it be understood too narrowly. When the conditions for the “recurring distortion” doctrine’s application are met it can serve as a suitable framework for different types of cases characterized by ambiguous causation, including environmental toxins and tobacco cases.

How should the “recurring distortion” doctrine affect different exceptions to the preponderance of the evidence standard, which have been suggested by courts in Israel as well as in other legal systems? As mentioned previously, courts in Israel have discussed two such exceptions: the loss-of-chances doctrine (possibly including liability for increased risk) and cases of lack of informed consent in the medical context. Of these, only the loss-of-chances doctrine has been accepted as a rule. Considering the difficulties and disadvantages associated with this doctrine, as well as the need for an all-encompassing framework for proportional liability, it is suggested that the “recurring distortion” doctrine replace the recognition of loss-of-chances as an actionable loss.

Other exceptions to the preponderance of the evidence standard, which have been suggested in other legal systems, are the cases of “market share liability” and “mass” or “Toxic Torts”. These can be understood as examples of the type of cases in which the “recurring distortion” doctrine applies. Market Share Liability can be understood as part of the “recurring distortion” doctrine, if it is seen in the following manner: each of the manufacturers has created a joint risk to a group of plaintiffs. The probability that each plaintiff’s damage is due to a specific manufacturer’s tortious conduct is equal to that manufacturer’s market share, so there is a recurring, inherent distortion in applying the preponderance of the evidence standard in such cases. Although in the case of Market Share Liability there are typically several defendants, this is not a necessary condition for applying the “recurring distortion” doctrine. What is required in this regard is a group of plaintiffs — and indeed such a group exists for each defendant.  

The term “Mass Torts” applies to a situation in which a large number of people are exposed to a certain risk, but in each individual case it is unclear whether the damage is linked to the tortious exposure to risk. Such was the case in the Agent Orange cases (In re “Agent Orange” Prod. Liab. Litig. [6]). In these cases many American soldiers were exposed to toxins which increase the risk of different illnesses. When seen as a population, it was evident that many of those soldiers were indeed ill. However, it could not be proven, in each individual case, that it was “more likely than not” that the illness was due to the tortious exposure to toxins, and not caused by other factors. These attributes are basically those required by the “recurring distortion” doctrine. It is important to note that although Mass Torts usually meet the requirements of the “recurring distortion” doctrine, the latter are usually wider than the former. The “recurring distortion” doctrine does not include any requirement that the group of plaintiffs will be unusually large, and it would apply also to such cases as a negligent medical policy.

One of the most significant advantages of the “recurring distortion” doctrine is that it serves as a general, well defined framework for all types of ambiguous causation, rather than offering specific and narrower solutions to each type of ambiguous causation separately. It is a solution that is not based on the characteristics of any specific case, but rather on wide theoretical considerations. Finally, it should be noted that the “recurring distortion” doctrine applies to cases in which the defendant is the common figure to all the individual cases. Some — though not all — of the justifications for this doctrine also apply to cases in which the plaintiff is the common figure, such as when a plaintiff is exposed to several tortious acts and it is unknown which one caused her injury. The question of whether the doctrine of “recurring distortion” should also apply in some of these cases remains undecided.

Justice E.E. Levy

Justice Levy agreed with Deputy President Rivlin’s clear and comprehensive opinion and with the result at which he arrived.

 

 

Justice M. Naor

Justice Naor wrote that Israeli tort law allows for a probability-based award of damages in the event of an inherent difficulty in proving a factual causal connection between the proven negligence and the proven damages. This is an exception to the traditional rule allowing for compensation to be awarded on the basis of a preponderance of the evidence. Justice Naor outlined a test to determine when proportional liability may be assigned — which she defined as the “proportional liability exception”. According to her, Deputy President Rivlin’s proposed outline for the exception is not the only possibility.

Justice Naor proposed that the test should require that all the following conditions be met:

a.     Negligence: the plaintiff must prove by a preponderance of the evidence that the defendant was negligent;

b.    Damage: the plaintiff must prove by a preponderance of the evidence that the plaintiff has suffered damages;

c.     Inherently ambiguous causation: the plaintiff must prove by a preponderance of the evidence that there is inherent ambiguity regarding the factual causal connection, which makes it impossible to prove the causational process that actually occurred, as is normally required when the “but for” test is applied;

d.    The negligence was a potential tortious risk factor: the plaintiff has proved by a preponderance of the evidence that the negligence is a risk factor for the particular damage caused to the plaintiff and that the defendant should have foreseen such damage (hereinafter: “the tortious risk factor”);

e.     A significant tortious risk factor: the plaintiff must prove that there is a substantial chance — although less than 50% — that the tortious risk factor actually caused the damage;

f.     Failure to award compensation for the damages would be an unjust result.

According to Justice Naor, when these conditions are met, the court may be satisfied with a finding of a probability-based factual causal connection, which can be established on the basis of statistical evidence or on the basis of an estimation. In these cases, all possible factors —those that involve fault and those that do not — can be accorded their proper weight under the circumstances, for the purpose of establishing the appropriate scope of compensation.

Justice Naor emphasized that she does not seek to create a new uniform theoretical framework for deciding the issue. The issue has been discussed at length in the legal literature in Israel and throughout the world, and it is doubtful whether a comprehensive solution can be found (para. 9). There is no need for concern regarding measures that move in new directions. But such movement needs to be connected, at its core, to the concrete facts in the case under discussion. The general norm that is proposed is therefore directed at resolving the specific case — the particular case of a single plaintiff who has suffered damages, and not a multiple potential plaintiff (hereinafter: “multiple-plaintiff”) case.

Justice Naor’s opinion in the rehearing of the case covered several matters: the presentation of the ambiguous causation problem; the justifications for resolving the ambiguous causation problem through the proportional liability exception in the particular case; the response to the criticism directed at her approach; and finally, a description of the criteria for awarding compensation under the proportional liability exception. These are the main points.

The preponderance of the evidence rule. The starting point is that it must be proven that the defendant was negligent and that the plaintiff suffered damage. The purpose of the causation rules in tort law is to establish whether, from a legal perspective, there is a sufficient connection between the defendant’s negligence and the damage suffered by the plaintiff. Causation is the dividing line between, on the one hand, an individual’s freedom to act as he wishes, to take chances and even to be negligent — and on the other hand, the responsibility that an individual must bear for his acts and for the damages caused by his behavior. The problem of ambiguous causation refers to uncertainty regarding the factual causal connection, which makes it impossible to determine whether or not such a connection exists. The uncertainty is an inherent aspect of the bodily injury that arises in these cases, because of the limitations of the available medical knowledge regarding the factors that cause the injury, and because medical illnesses and defects can be the result of many factors.

Definition of the proportional liability exception: Justice Naor wrote that the proportional liability exception should apply only to the law of torts, only when bodily injury has been proven, and only when the matter involves ambiguity with respect to the actual causation of the injury. The exception and its limitations are derived directly from tort law policy considerations that require a relaxation of the preponderance of the evidence rule as applied to the law of torts, and from the adjustment of that rule for the purpose of conforming it to the objectives of the law of torts. This relaxation will, in turn, lead to a “proportional” compensation outcome rather than an “all or nothing” decision. This is therefore a substantive exception to the law of torts, and not an evidentiary exception applicable to all legal fields. The starting point for this “relaxation” is, as stated, the problem of ambiguous causation. 

Focusing the exception among the different categories of ambiguous causation: We can point to four typical categories of ambiguous causation cases. The first group of cases involves ambiguity regarding the scope of the damage. The second group consists of cases in which there is ambiguity regarding the identity of the party who caused the damage. The third group consists of those cases in which there is ambiguity regarding the actual causation of the damage. The fourth group involves ambiguity regarding the identity of the party that has been injured. This division into categories is not absolute and there may be sub-categories as well, but the proposed division can refine the analysis and simplify the discussion of the complex problem of ambiguous causation. The test that is proposed in Justice Naor’s opinion involves the third group (ambiguity regarding the actual causation of the damage). This group includes those cases in which the ambiguity pertains to the factual causal connection between the wrongful behavior and the plaintiff’s injury — when it is inherently impossible for the plaintiff to prove, using the ordinary preponderance of the evidence standard, that the negligent defendant has caused any damage to him whatsoever.

In light of the importance of the ambiguous causation problem, Justice Naor also discussed the other three categories briefly — categories which are described and analyzed in depth in articles by Israeli legal scholars (I. Gilead, “Comments on the Tort Arrangements in the Legal Codex — Liability and Remedies,” 36 Hebrew Univ. L. Rev. (Mishpatim) 761 (2006), at p. 775; A. Porat and A. Stein, “Liability for Uncertainty: Making Evidential Damage Actionable,” 6 Cardozo L.R. 1891 (1997)).

Ambiguity regarding the extent of the damage: Ambiguity regarding the extent of damage arises when it is known that some part of the damage was undoubtedly caused by the behavior of a particular defendant, who is unquestionably at fault, but what is unknown is the percentage of the damage that was caused by the defendant, relative to the percentage caused by other factors, whether or not such factors are at fault. Regarding this category, the norm under Israeli tort law is to award proportional compensation according to probability, including through the use of an estimation (CA 8279/02 Golan v. Estate of Albert [2], per President Barak, at para. 5). The primary reason for this is that there is no justification for ignoring the interest of an innocent injured party and giving absolute preference to the interest of the culpable tortfeasor, who is, with certainty, responsible for a part of the damages that have been caused to the injured party. The starting point for tort law has always been to prefer the innocent injured party over the party whose tortious behavior has undoubtedly caused harm.

Justice Naor referred to English law as providing support for the proportional liability exception for this category of cases (Fairchild v. Glenhaven Funeral Services Ltd [9]; Barker v. Corus UK Plc. [10]). The Fairchild case appears to belong to the category of cases involving uncertainty regarding the scope of the damage; in that case, it was certain that a portion of the injured party’s damage had been caused by at least one of the defendants.

Justice Naor tends to understand the Israeli jurisprudential recognition of a head of damage for loss of chance of recovery as relating to ambiguity regarding the scope of the injury that has been caused. This is because the norm is to view a loss of chance of recovery as an independent head of damage, the causation of which can and must be proved by a preponderance of the evidence. Justice Naor has a similar understanding of the Israeli jurisprudential recognition of a violation of autonomy arising from the lack of informed consent to medical treatment as an independent category of damage. The reason for this is that in such cases, there is no uncertainty regarding the fact that damage has been caused, as it has been proven by a preponderance of the evidence that the defendant tortiously caused independent damage in the form of an impairment of the plaintiff’s interest: the defendant caused an injury to a person’s “well-being”, and this injury falls within the definition of the term “damage” in s. 2 of the Civil Wrongs Ordinance.

Ambiguous causation regarding the identity of the wrongdoer: Ambiguous causation with respect to the identity of the party causing the damage relates to a situation in which a single injured party faces a series of behaviors all of which are at-fault (i.e., two or more negligent parties) but it is not possible to know which of these caused the damage. Here, unlike the category of ambiguous causation regarding the extent of the damage, there is uncertainty as to whether a particular defendant, as opposed to any other member of the group of negligent actors, is the actual tortfeasor. The difficulty is in identifying the “correct defendant”. Israeli tort law has no single standard approach regarding this category. In certain circumstances, the case law has adopted the solution of transferring the burden of proof to the defendants, in order to allow the injured party to be awarded full compensation. Thus, for example, if it has been proven by a preponderance of the evidence that each one of the culpable defendants has caused some damage to the plaintiff, even if the plaintiff’s damage is by its nature a single inseparable injury, the defendants are viewed as joint tortfeasors who are all jointly and severally liable for all the damage (FH 15/88 Melech v. Kornhauser [3], at pp. 109-112, 115). However, Melech v. Kornhauser [3] is not one of the “hard cases” of ambiguous causation regarding the identity of the party causing the damage; it involved, as stated, a certainty that each of the defendants had indeed caused some damage. In a “hard case” in which it has not been proven by a preponderance of the evidence that a particular party has caused any damage whatsoever to the plaintiff, the Israeli case law has upheld the concept of personal responsibility, even in cases in which all the defendants are at fault (see the majority opinion in CA 600/86 Amir v. Confino [4]).

In light of this, Justice Naor reviewed the issue from a comparative law perspective. In the United States, it has been held that when there are two possible defendants/wrongdoers, the burden of proof is transferred to the defendants so that effectively, they are each held to be jointly and severally liable for the full amount of the damage (for example, in Summers v. Tice [7], two hunters had fired their guns and it was not possible to establish which of them had hit the injured party). In this typical case there was no certainty that any part whatsoever of the damage was caused by a particular defendant. The transfer of the burden of proof to the defendants as a resolution of this issue was adopted in s. 28 of the Third Restatement of the Law of Torts. This solution is implemented, as stated, when the ambiguity relates to the identity of the wrongdoer and arises in connection with bodily injury only. In other circumstances, such as when there are more than two possible negligent defendants, the practice has been to charge the defendants with proportional liability according to the market share doctrine (see the DES case, involving medications marketed by hundreds of manufacturers of a generic oil, which had been marketed to pregnant women for the purpose of preventing miscarriages and which many years later caused serious illnesses in the daughters of these women: Sindell v. Abbott Laboratories [8]). In that case as well, there was no certainty that any particular portion of the plaintiff’s damage had been caused by a particular wrongdoer. The case therefore appears to belong to the category of cases in which there is ambiguous causation regarding the identity of the wrongdoer. Nevertheless, the DES case can also be classified as falling within the category of cases involving ambiguous causation regarding the identity of the injured party; the identity of the wrongdoer-defendants was known because the damage was caused by all the wrongdoers, such that their identity was known, but the division of the liability among them was not. In these circumstances, in which the danger presented by each of the defendants was identical, the division of liability according to market share was a solution that was both attractive and capable of being implemented. Alternatively, the DES cases could be categorized as a combination of two categories — ambiguous causation regarding the identity of the wrongdoer and that of the injured party (see: J. Spier and O.A. Haazen, “Comparative Conclusions on Causation” in Unification of Tort Law: Causation 127 (J. Spier, ed., 2000), at p. 151) — or as belonging to each one of those two categories separately (T.K. Graziano, Digest of European Tort Law, Volume 1: Essential Cases on Natural Causation (2007), at pp. 452-457).

On the other hand, the Principles of European Tort Law (PETL) use a different solution for this category of cases — that of probability-based proportional liability. The objective of these principles is to establish a common tort law foundation for application in the European Community states, with the ultimate aim of harmonization in this area. The PETL, which are based on in-depth and comprehensive multi-country research, have served as a source of inspiration for the case law of the various national courts (see B.A. Koch, “Principles of European Tort Law,” 20 KLJ 203, at pp. 203-205; Article 3:103(1) of the PETL).

The common basis for these different approaches to the issue of ambiguous causation regarding the identity of the wrongdoer is the understanding that the injured party cannot be left without compensation: the multiplicity of “tort suspects” is a consideration in assigning liability and not in limiting it. “There is blatant injustice in the fact that an entire group of tortfeasors, each of whose behavior is at fault and one of whom has caused the damage [will be freed] of the obligation to compensate the injured party, only because the nature of the wrongful activity is such that the plaintiff is prevented from knowing who, out of the entire group, had caused the damage” (B. Shnor, “Factual Causal Connection in Claims for Bodily Injury Caused by Environmental Pollution,” 23 Bar Ilan Univ. L. Rev. (Mehkarei Mishpat) 559 (2007), at p. 618).

Ambiguous causation regarding the identity of the injured party: Ambiguity regarding the identity of the injured party arises when there is a group of injured parties, on the one hand, and a series of behaviors, some of which involve fault and some of which do not, and it is not possible to determine which of the injured parties was affected by the at-fault behaviors and which were injured by the other causes. Here as well — unlike the issue of ambiguous causation regarding the scope of the damage — there is no certainty that any portion whatsoever of a particular injured party’s damages were caused by a particular defendant. The uncertainty concerns the matter of whether a particular plaintiff, as distinguished from any other member of the group of plaintiffs, was injured by the negligent party. The difficulty involves the identification of the “correct plaintiff”.

In this category too, the PETL apply the concept of probability-based proportional compensation, as described in Article 3:103(2) with respect to multiple victims. This category was discussed in the United States in the Agent Orange case (In re “Agent Orange” Prod. Liab. Litig. [6]). In that case, the court offered the plaintiffs a settlement arrangement that provided for pro rata compensation. There was certainty regarding the identity of the factor causing the damage — Agent Orange. The uncertainty arose in relation to the identity of the individual injured parties (ibid. [6], at p. 833). It was apparently possible to prove that a certain number of the plaintiffs, out of the entire class, had been injured due to the exposure to the dangerous substance. However, it was not possible to determine which particular members of the plaintiff class were those who had been injured. The court noted that the identification of the injured parties on an individual basis was impossible (ibid. [6], at p. 837). The Agent Orange case therefore appears to represent an example of ambiguous causation regarding the identity of the injured party. The court held that because, as stated, no individual solutions could be reached according to the normal preponderance of the evidence rule, it was necessary to use a collective “class action” solution (ibid. [6], at pp. 837-838).  

Discussion of Deputy President Rivlin’s recurring distortion test: Deputy President Rivlin proposes a “collective” solution, similar to that proposed in the Agent Orange case, based on a delineation test that he defines as the “recurring distortion test”. This test is relevant to the “set of cases characterized by the creation of repeated and shared risks to a group of injured parties” (para. 21 of his decision). The recurring distortion test is conditioned on the existence of a group of injured parties (para. 22 of his decision). In this situation, the difficulty is “the inability to distinguish among the injured parties [in a manner that] may lead to some of them being compensated for damage that was not the result of the commission of a tort” (para. 24). The test that he proposes is “[to] distribute the compensation among all the members of the group of injured parties — when it is not possible to determine in relation to which of them the risk created by the wrongdoer reached the level of actual damage” (para. 26 of his decision).

According to Justice Naor, the delineation test proposed by the Deputy President applies to the category of ambiguous causation regarding the identity of the injured party; it is not intended to deal with the category of cases discussed in the decision which was the subject of the original appeal (hereinafter: Malul) — i.e., cases of ambiguity regarding the actual causation of damage. The examples cited by the Deputy President suppose the existence of an at-fault wrongdoer who is indisputably responsible for at least part of the damage suffered by the group of injured parties, with the only question being the identity of those members of the group who actually suffered the damage. This is ambiguous causation regarding the identity of the injured party. It appears that the “recurring distortion test” is intended, in the main, to resolve the issue of ambiguous causation which is characteristic of “mass tort” lawsuits. The Deputy President thus allows the main remedy requested by the petitioners, which is to qualify the proportional compensation exception such that it would “apply primarily to cases of torts that involve the exposure of a large population to mass risk factors, such as the suits involving DES, Agent Orange, Benedictine [a medication prescribed for morning sickness], cigarettes, etc.”

Justice Naor remarked that she is inclined to adopt Deputy President Rivlin’s position as a useful solution for cases of ambiguous causation relating to the identity of the injured party, but ultimately left the issue for further review. According to her, the Deputy President’s approach abandons the actual facts discussed in Malul and establishes a rule for the determination of liability in group tort cases — a category that is not an issue at all in Malul. In Justice Naor’s view, the desired legal approach should be formulated on the basis of the facts of the case at hand. She added that in her view, the recurring distortion test is too narrow, in that it rules out the possibility of awarding probability-based compensation in single-plaintiff cases, and thus, in principle, rules out compensation in cases such as the one presently before this Court. The main outcome of the Vice President’s approach appears to be that in principle he believes that the respondents should not be awarded damages; however, due to practical considerations, he proposes that the judgment reached in the original appeal should be left intact. Justice Naor’s approach is that there are principled standards for probability-based compensation in a single-plaintiff case, and the award of partial damages to the respondents here was correct. According to Justice Naor, the operative result of the Malul decision cannot, in the absence of agreement, be allowed to stand, if probability-based compensation is possible only according to the recurring distortion test. Justice Naor also believes that the recurring distortion test is in a certain sense too broad: when it is invoked, according to the Vice-President, the traditional preponderance of the evidence rule will not apply at all — neither in favor of the injured parties nor in favor of the wrongdoers. On the other hand, the exception that Justice Naor has proposed is more limited and benefits only a single injured party, and does not operate in favor of the wrongdoer (as will be explained below). In any event, as stated, the policy considerations set out by Vice President Rivlin deal with a different category of cases, and they therefore do not apply in the same way to the category discussed in Malul. Justice Naor therefore believes that the Vice President’s opinion does not negate the probability-based compensation approach in the case of ambiguity regarding the actual causation of damage. Such compensation has its own separate and independent justification.

Ambiguity regarding the actual causation of damage — the Malul case: The division of cases into different categories refines the discussion and focuses the delineation test proposed by Justice Naor here on the situation which constitutes the very core of ambiguous causation, i.e., uncertainty regarding the actual causation of damage. Ambiguity regarding the actual causation of damage arises when the injured party cannot prove by a preponderance of the evidence that any at-fault behavior of the defendant’s caused any damage whatsoever. As opposed to ambiguous causation regarding the extent of the damage or the identity of the wrongdoer, it is not possible in these cases to prove that any at-fault behavior whatsoever caused any damage whatsoever. Unlike cases of ambiguous causation regarding the identity of the injured party (in which it is certain that the defendant, through his negligence, has tortiously caused damage to a group of individuals and the plaintiff suffered the same type of damage), there is in this case an inherent uncertainty regarding the question of whether the defendant caused any damage at all through his negligence, to any individuals whatsoever. Ambiguity regarding the actual causation of damage can arise when, as in Malul, there is an at-fault risk factor as well as a risk factor that does not involve fault (a “natural” factor), and it is not known whether the tortious risk factor caused any damage whatsoever. Justice Naor believes that the following weighty reasons will justify, in certain cases, a deviation from the preponderance of the evidence standard in situations in which there is ambiguity regarding the actual causation of damage:

The justifications for probability-based compensation when there is ambiguity regarding the actual causation of damage:

a.     First justification: corrective justice: The main consideration in favor of “relaxing” the normal preponderance of the evidence rule is justice itself. When there is ambiguous causation, the injured party may be unable to prove the elements establishing a tort of negligence according to the normal rules of evidence applied in civil law, even though leaving the injured party without any compensation is contrary to the objectives of the law of torts and is unjustified. A review of the decisions that have been rendered in the trial courts in reliance on this Court’s opinion in Malul, which is the subject of this further hearing, indicates that the rule has been widely assimilated and invoked. The desire to reach a just result under the circumstances of a concrete case is the heart of the judicial process. Justice is the ideal towards which we must strive. According to Justice Naor, the principle of corrective justice is the key policy consideration involved in the law of torts.

Definition of corrective justice: If the principle of corrective justice is identified with the idea of personal liability of the wrongdoer, the imposition of liability on the negligent party in a situation of ambiguity regarding the actual causation of damage is one that undermines the principle of corrective justice. Nevertheless, a different definition of the principle of corrective justice may be adopted — one which is adjusted for situations of ambiguous causation and which conforms as closely as possible to the principle of corrective justice. This definition involves a “relaxation” of the concept of personal liability, in a way that makes it possible under certain circumstances to order the negligent party to pay partial damages. The principle of corrective justice is a conceptual framework which can be filled with normative content that varies according to the society’s standards.

Justice Naor believes that the courts can adopt a definition of corrective justice that focuses on a certain level of correction of the injured party’s situation, even at the expense of the negligent party. This definition of corrective justice is not neutral vis-à-vis the negligent party; in fact, it puts that party in an inferior position. Once negligence has been proven, there is no longer a situation of equality between the negligent defendant and the injured plaintiff. The reason for favoring — to a certain degree — the injured party is the flawed behavior with which the negligent party has been tainted. Even if there is some uncertainty regarding the actual causation of the damage, it is still a certainty that the defendant was negligent vis-à-vis the plaintiff and that his behavior has been improper. The determination that the defendant was “negligent” means that the defendant has failed to maintain the level of care required by society from a reasonable person under the circumstances of the case. The defendant is tainted by a sort of “social guilt”. This guilt has been proven according to the ordinary preponderance of the evidence test and using the standard evidentiary proofs. Under these circumstances, the guilt with which the negligent party’s behavior is marked also has ramifications for the issue of the factual causal connection and overrides the “mantle of individual ambiguity”. (An Austrian scholar, F. Bydlinski, has proposed an approach which is similar in theory — an approach that creates a relationship of reciprocal balance between the element of responsibility and the element of causal connection: see H. Koziol, “Causation under Austrian Law” in Unification of Tort Law: Causation 11 (J. Spier ed., 2000) at p. 14; H. Koziol “Problems of Alternative Causation in Tort Law” in Developments in Austrian and Israeli Private Law 177 (H. Hausmaninger, H. Koziol, A.M. Rabello, I. Gilead eds., 1999), at pp.178-180; B.A. Koch, Digest of European Tort Law, at pp. 396-398).

This definition of corrective justice, used when there is ambiguity regarding the actual causation of damage, prefers the innocent plaintiff over the negligent defendant with respect to the final remedy. The reason for this is that when the wrongdoer has been proven negligent, it would be unjust to allow the entire burden of the damages to be borne by the entirely innocent injured party. This preference with regard to the final remedy, in connection with ambiguity regarding the actual causation of damage, means that a party who is negligent will bear a certain part of the cost. This cost is translated into partial compensation for the injured party. The individual injured party’s demand that the damage or a part thereof be compensated only by a negligent party (or parties), when there is ambiguity regarding the actual causation of damage, is not without a moral basis. The negligent party (or parties) and the individual injured party are part of a single relationship. The event creating the damage occurred as part of the relationship between the specific injured party and the specific negligent party (or parties). In the context of this relationship, according to Justice Naor, the injured party’s right to redress for his injury corresponds to the negligent party’s obligation to redress the injury that was caused, even if only partially, based on a consideration of the probability of there being a factual causal connection. According to the said definition of the principle of corrective justice, it is preferable to assign partial liability and to impose a duty to provide partial compensation on the negligent party, including in a single-plaintiff case, and not to apply an “all or nothing” rule, the consequence of which is that no liability will be assigned at all and the injured party will receive no compensation. The justification is therefore based on the choice of the lesser evil. This solution is preferable to a situation in which an injured party is left without any compensation. There is, it is true, a chance that the defendant is not the party that caused the damage to the plaintiff; this possibility is reflected in the fact that the duty to compensate imposed on the defendant is partial and not full. This definition of the principle of corrective justice does not limit the concept of probability-based compensation to cases in which torts have been committed against a group of plaintiffs.

Justice Naor does not believe that it is practical to apply a “multiple-plaintiff” limitation in situations in which there is ambiguity regarding the actual causation of damage, as Vice President Rivlin proposes. How can the plaintiff be required to prove anything regarding a “group of injured parties” when the plaintiff has no information concerning the group’s existence or its characteristics? Is there an appropriate litigation process for this purpose under the existing law? And if not, should a special litigation process be created, and how would that be done? And even if these procedural issues can be overcome, the multiple-plaintiff claim is not accorded any preference within the framework of the corrective justice concept: corrective justice can be obtained with regard to the entire system on the basis of an accumulation of judicial decisions involving single-plaintiff cases. The objective of achieving corrective justice does not require the abandonment of the individual solution and a transition to either a multiple-plaintiff or class action. According to Justice Naor, the objectives of tort law can also be realized through probability-based compensation in the individual/single- plaintiff case. In her view, the choice of the “multiple-plaintiff only” solution means foregoing the possibility of achieving a just solution in single-plaintiff cases, and she therefore believes that it is inappropriate.

b.    Second justification: deterrence. Optimal deterrence considerations are based on the view that tortious liability should be assigned in a manner that will contribute to a maximum reduction of the total damages from accidents and of the expenses involved in preventing them. According to Justice Naor, the principle of deterrence and considerations of economic efficiency cannot constitute the only objective: “The reasonable man is not only the efficient man. He is also the just, fair and moral man” (CA 5604/94 Hemed v. State of Israel [5], at p. 511c).

In the past, the standard position was that with regard to factual causal connection, the “all or nothing” approach would give rise to optimal deterrence. This approach proved to be flawed, and the belief was expressed that under certain circumstances, proportional compensation could bring about optimal deterrence as well (see J. Makdisi, “Proportional Liability: A Comprehensive Rule to Apportion Tort Damages Based on Probability,” 67 N.C.L. Rev. 1063 (1988), at pp. 1067-1069 (1988); S. Shavell, “Uncertainty over Causation and the Determination of Civil Liability” 28 J.L. & Econ. 587 (1985), at pp. 589, 594-596;  D. Rosenberg, “The Causal Connection in Mass Exposure Cases: A ‘Public Law’ Vision of the Tort System,” 97 Harv. L. Rev. 849 (1984), at pp. 862-866 (1984)). Vice President Rivlin limits these circumstances to those of the recurring distortion test, which is primarily intended to avoid insufficient deterrence resulting from application of the standard preponderance of the evidence rule in a multiple-plaintiff case. According to Justice Naor, deterrence considerations do not require this limitation, for the following reasons.

First, it seems that Vice President Rivlin is of the opinion that the application of the “all or nothing” rule in a single-plaintiff case does not cause any significant harm. The scholars Porat and Stein have made similar remarks, to the effect that injustice and inefficiency in the single-plaintiff case are matters “far removed from the judge’s desk” (see A. Porat and A. Stein, “Indeterminate Causation and Apportionment of Damages: An Essay on Holtby, Allen, and Fairchild,” 23 Oxf. J. Leg. Stud. 667 (2003), at p. 671). This position conflicts with Justice Naor’s view of a judge’s function. Every case that reaches a judge is of the greatest importance for the litigant, and the judge’s decision regarding that case does not depend, and should not depend, on the existence or non-existence of other cases that are similar to it. The complaint is personal and not representative; the cause of action is personal and not shared by a group; the injustice or inefficiency are personal and are not shared by other plaintiffs. Policy considerations must not ignore the single-plaintiff case as “negligible”. The “multiple-plaintiff” criterion is based, inter alia, on the condition that the case involves an incident that is likely to recur. Justice Naor believes that this is an artificial criterion. It reflects a procedural rather than a substantive consideration. Thus, for example, it is argued that a complaint may be moved from the single-plaintiff category to the multiple-plaintiff category through the change of the name of the defendant from that of a single doctor to that of the hospital in which the doctor is employed, or through the use of the doctrine of agent liability (Porat & Stein, “Indeterminate Causation,” ibid., at p. 682, n. 41). Of course, this change is a procedural one, while the substantive cause of action of the injured party — the existence of negligence vis-à-vis the plaintiff — remains in place.

Second, it should be recalled that the factual causal connection is examined after negligence has been proven, taking into account, inter alia, the deterrence issue. The deterrence consideration as it is weighed at the stage of determining negligence interacts with the deterrence consideration as it is weighed at the stage of determining the causal connection. In the final analysis, these considerations are the same. If the defendant is freed of any liability due to ambiguous causation, the deterrence consideration that was a guiding factor in the determination of the (proven) negligence loses its value. In such a case, the determination that the “defendant did not take sufficient precautions and was therefore negligent” does not translate, in terms of relief, into an award of any damages whatsoever arising from the breach of the duty of care, and the negligent party effectively avoids any obligation to provide compensation. This result undermines the same deterrence principle that provided guidance at the stage of determining negligence. This important point emerges from the British decision, McGhee v. National Coal Board [11]. That was a clear case of “scientific” ambiguous causation resulting from the limitations of medical science (see Lord Rodger’s comments in Fairchild [9], at para. 153). The House of Lords there ordered an employer to compensate an employee, finding that it was sufficient that a failure to provide showers had increased the duration of the employee’s exposure to asbestos, which is recognized as a possible risk factor for disease. Lord Simon held that an acquittal of the negligent party in that case of ambiguous causation, after the party’s negligence had been proven with respect to the failure to take the necessary precautionary measures, would amount to a grant of judicial permission to employers to fail to take such precautionary measures (McGhee [11], at pp. 8E and 9B).

Third, Justice Naor believes that in a single-plaintiff case, a policy consideration relating to deterrence, by itself, is weak as compared to the main consideration of corrective justice. This is because the assignment of any particular level of liability is of no relevance with respect to the achievement of the deterrence objective in a case that is singular and inherently exceptional, and which is unlikely to recur in the future. Thus, even if an injured party is overly compensated, no real harm will have been done to the principle of deterrence. The recurring distortion test leads, Justice Naor believes, to under-compensation and to a violation of the optimal deterrence principle in single-plaintiff cases (in effect, the test leads to under-deterrence). Vice President Rivlin’s approach absolves the negligent party from any liability in a single-plaintiff case and thus gives a “green light” to the causation of tort damages in such cases. In contrast, Justice Naor’s approach, applied both to multiple-plaintiff and single-plaintiff cases, leads to a minimal violation of the principle of optimal deterrence in the single-plaintiff case. In fact, in certain cases, it leads to over-deterrence. However, in a case in which the damage is bodily injury, a certain measure of over-deterrence is acceptable.

c.     Third justification: reducing the magnitude of judicial errors. The preponderance of the evidence rule, and apparently the multiple-plaintiff restriction proposed by the Vice-President as well, are intended to limit the number of judicial errors. However, restricting the number of legal mistakes is not the only possible goal. The objective of reducing the magnitude of a legal error in a single-plaintiff case, i.e., reducing the number of “large errors”, is also a valid goal. According to this approach, the effect of a legal error on an individual is weaker, and may even be more proportionate (Shnor, “The Factual Causal Connection,” supra at p. 588). The decision to set as an objective the reduction of the magnitude of a legal error and to prefer that objective to the reduction of the number of legal errors is a value choice. The court is obligated to decide a dispute within the restrictions of existing knowledge. This is done by dividing the risk of an “erroneous” factual decision (risk of error) between the plaintiff and the negligent defendant. In cases of ambiguity regarding the actual causation of damage, in which a negligent actor is juxtaposed with an innocent injured party and it is not possible to directly trace the real path of causation that actually took place, even on an approximate basis, the proportional liability exception is justified. This view reflects a value judgment that prefers, as an objective, the reduction of the impact of a legal error with regard to an individual injured party over the objective of reducing the overall number of legal errors. This option is consistent with the case law dealing with probability-based compensation in the single-plaintiff case. However, while a concern for reducing the number of legal errors is necessarily based on an analysis of a group of judicial decisions, the aim of reducing the magnitude of a legal error is examined — and can be achieved — through each individual case on its merits.

The spreading of the risk of error can of course be accomplished in the framework of settlement agreements, reached either at the initiative of the court or through agreements made by the parties. Courts have always acted this way in settlement agreement proceedings, in which the risk of error is divided between the parties. Nevertheless, according to Justice Naor, in appropriate cases the risk of error can be divided even without the parties’ consent. The probability-based compensation exception — allowing for a decision that is just under the circumstances of the case, in situations of ambiguity regarding the actual causation of damage — does not rely on the agreement of the parties but rather on substantive tort law policy considerations.

d.    Fourth justification: as a truth-finding incentive. The assignment of proportional liability in this category of cases gives defendants an incentive to develop as much relevant probability-based information as is possible. This type of information, regarding damage causing processes, has substantial social value as a tool that can be used to provide more precise and just compensation in litigation proceedings. Similarly, it can indirectly lead to improvements in the fields of medicine, insurance, risk management and other fields of knowledge. The typical defendants in this type of case (negligence in the framework of bodily injury) are large institutional entities who are — in contrast to the typical plaintiffs — “repeat players” in the legal forum, at least in a series of individual cases. Regarding these defendants, therefore, special importance must be attributed to long-term considerations relating to the guidance of their behavior; such considerations are different from the considerations involved in the specific case. This consideration, too, is not necessarily limited to situations in which there are multiple injured plaintiffs.

Response to criticism — probability-based compensation does not require a legislative change. Probability-based compensation in situations of ambiguity regarding the actual causation of damage is not only the result of “greater sympathy” for the injured party. It is also derived from the principles of tort law themselves, and is justified by the principle of corrective justice, the “lesser evil” argument, and the need to reduce the magnitude of a legal error. According to Justice Naor, it also does not require legislation. A probability-based compensation doctrine, of any kind, can be adopted on the basis of case-by-case rulings. Of course, the legislature may ultimately express its view on this matter, and obviously any statutory criteria that may be prescribed will bind the courts. It should be noted that the concept of transferring the burden of persuasion, which has been invoked in the past in the case law, is not based on any express statute.

The appropriate legal doctrine — proportional liability. Justice Naor made it clear that the doctrine that she is proposing is an exception to the proportional liability rule and not a new conceptual framework that is intended to replace the proportional liability rule. It is not a general risk-based liability doctrine. According to Justice Naor, the proportional liability doctrine in situations of ambiguity regarding the actual causation of damage provides the court with useful tools for providing appropriate protection to the various interests involved in a case, and for balancing those interests. It gives the court the discretion to award partial compensation, to be determined on the basis of statistical evidence or by way of an estimation.

Inspiration from European law. In her opinion, Justice Naor referred extensively the proposed PETL, as support for the absorption of the proportional liability exception into Israeli law. The PETL recognize the proportional liability exception for cases of ambiguity in relation to the actual causation of damage. The exception is the product of the combination of two principles in the proposed PETL. Article 3:103(1) provides as follows:

‘In case of multiple activities, where each of them alone would have been sufficient to cause the damage, but it remains uncertain which one in fact caused it, each activity is regarded as a cause to the extent corresponding to the likelihood that it may have caused the victim’s damage.’

Article 3:106 expands the reach of Article 3:103(1) and provides as follows:

‘The victim has to bear his loss to the extent corresponding to the likelihood that it may have been caused by an activity, occurrence or other circumstance within his own sphere’.

Article 3:106 supplements Article 3:103, and the two are based on the proportional liability exception (see: European Group of Tort Law, Principles of European Tort Law: Text and Commentary (2005) (hereinafter: “Commentary to the PETL”), at p. 56). This article deals with a situation in which there are multiple potential risk factors for the actual causation of the damage suffered by the plaintiff, including “natural” risk factors or risk factors related to the plaintiff himself. The European Principles provide that “natural” risk factors or those related to the plaintiff himself are encompassed within the injured party’s sphere, and he may not receive compensation with respect to these factors. Article 3:103 (2), combined with Article 3:106 which expands it, leads to a proportional liability outcome. The term “activities” means any action or behavior (see Article 3:101) which is liable to constitute a risk factor regarding the actual causation of damage to the plaintiff, including risk factors within the range of the injured party’s liability, such that this definition applies with regard to the two articles, and leads to the proportional liability result in the single-plaintiff case, with liability being divided between the plaintiff and the defendant.

The PETL do not require proof of a recurring distortion: the proportional liability exception applies even if the case is one that does not repeat itself, and it is not necessary to prove that the preponderance of the evidence standard will lead to a systematic distortion in favor of one of the parties. The commentary to Article 3:106 of the PETL offers an individual case of medical negligence as an example of the application of the concept (see Commentary to the European Principles, at p. 58).

The drafters of the PETL were aware of the innovation that the proportional liability exception introduced into English Common law, and they nevertheless recommended its adoption:

‘As already mentioned, supra Article 3:103, the Group realizes that the approach of Article 3:106 might be quite a step for the common law… Seen from a European angle, there is hardly a common core to support the balance of probabilities doctrine. Besides, there seems to be some dispute about it in the common law-world as well’ (Commentary to the European Principles, at pp. 57-58).

According to Justice Naor, the proportional liability exception is consistent with the proposed PETL. It is particularly close to the Austrian law, the “fingerprints” of which are recognizable in the text of the PETL. A similar approach to proportional liability can be found in Estonia, and to a certain extent in the Netherlands as well (see H. Koziol, Digest of European Tort Law, Volume 1: Essential Cases on Natural Causation (2007) at p. 437). A decision of the Estonian Supreme Court, sitting as a Court for Civil Matters, reflects a relaxation of the factual causal connection requirement (see the decision in Case No. 3-2-1-78-06 [12], as cited in Lahe Janno, “Fault in the Three-Stage Structure of the General Elements of Tort,” Juridica International (Vol. 1, 2007), at pp. 152-160). It should be noted that French decisions have also included expressions of a relaxation of the factual causal connection requirement (see the decision in Appeal No. 06-109767 [13]). The European Principles have not yet become law in the European countries, but they are very consistent with Justice Naor’s perspective regarding proportional liability in single-plaintiff cases.

Summary of the Proportional Liability Exception: Specification of the Standard for Probability-Based Compensation:

First, the plaintiff must prove the two other elements of the tort of negligence — negligence and damage — on the basis of the regular preponderance of the evidence standard. The plaintiff must also prove that there is a legal causal connection between the negligence and the damage, in accordance with the regular preponderance of the evidence standard. These requirements reduce the ambiguity issue to the matter of the factual causal connection only. As stated, the plaintiff must prove the damage element as well. Justice Naor’s proposal is that at the current time, the proportional liability exception should be applied only to cases of negligence in connection with bodily injury.

Second, the plaintiff must prove that there is inherent ambiguity in terms of the factual causal connection with regard to the actual causation of damage. If inherent ambiguity with regard to the actual causation of damage has not been established, the case will not be litigated on the basis of the proportional liability exception, but on the basis of the normal preponderance of the evidence standard. On the other hand, if ambiguous causation is proved with regard to the actual causation of damage, the regular preponderance of the evidence standard will not apply.

Third, the assignment of proportional liability is conditioned on proving bodily injury. Justice Naor’s proposal is that the proportional liability exception be applied only in relation to litigation in torts, and only with respect to cases involving bodily injury. The proportional compensation is therefore linked to the existence of the main bodily harm that was caused to a plaintiff, and it is derived from such harm. Justice Naor is aware of the concern that the exception constitutes a “breaching of boundaries” or a “slippery slope”. She therefore believes that it is necessary to establish the bodily injury qualification, even if only at this stage of the development of the rule. Uncompensated bodily injury is the firmest ground for the implementation of the corrective justice consideration in a manner that favors recognition of probability-based compensation. Justice Naor believes that at this stage of the rule’s development, the question of whether the exception should also apply to negligence cases that do not involve proven bodily injury should be left for further review, as this subject did not arise in the Malul case. Justice Naor is also aware of the fact that her approach can be criticized on the ground that a consistent solution would mandate its application to all areas of tort law, and there are those who would say that it should be applied to all areas of law in general; others could argue the opposite — that consistency would require that the proposed solution be rejected, or that no solution be chosen at all. According to Justice Naor, it is necessary to move one step at a time with respect to this complicated issue, drawing conclusions along the way. She does not see a need to restrict the concept of probability-based compensation for bodily injury to medical negligence cases. Nevertheless, as a practical matter, a claim of inherent ambiguity regarding the actual causation of bodily injury will arise in many claims involving medical negligence. This is due to the difficulty in making an absolute determination regarding the reasons for an illness or a defect. Medical negligence is therefore a common case for recognizing the proposed exception (see Porat & Stein, “Indeterminate Causation,” supra, at p. 668). Although the policy considerations that underlie the proportional liability exception are characteristic of all of tort law in general, there is a dispute as to whether the award of probability-based damages should be limited to medical negligence cases only, and various opinions have been expressed in the legal literature. Justice Naor believes that the exception should not be limited to cases of medical negligence only. The proportional liability exception could also apply, for example, to environmental contamination cases. The need to provide a solution to the problem of ambiguity with regard to the actual causation of damage is usually related to ambiguity that is the result of scientific limitations pertaining to the ability to identify the risk factors that can cause bodily injuries. A typical case involving inherent ambiguity regarding the actual causation of bodily injury is when there is no scientific possibility of proving or denying the existence of specific causation using the preponderance of the evidence test. This will be the situation even when there is no statistical evidence, because no relevant scientific research has ever been done. Nevertheless, Justice Naor believes that at present, the proportional liability exception should be applied only to tort law cases based on bodily injury. This exception is frequently applicable in medical negligence cases, although, as stated, it is not exclusive to this area.

Fourth, the plaintiff must prove, by a preponderance of the evidence, that the proven negligence is a significant cause of the particular type of damage that was caused to the plaintiff and that the defendant should have anticipated such damage (hereinafter: “the tortious risk factor”). The proportional liability exception does not necessitate a numerical-mathematical probability criterion, and a significant probability requirement will be sufficient. Such probability will be neither minimal nor negligible. If the plaintiff cannot prove a significant level of probability, even if based on an estimation only, the plaintiff will not be able to rely on the proportional liability exception, and the regular “all or nothing” rule will apply. This requirement of significant probability can reduce the concern that the court will be flooded with lawsuits by excluding marginal cases and establishing a minimum threshold, below which no liability will be assigned to the defendant.

Fifth, the proportional liability exception is available only to injured parties. The proportional liability exception will be adopted only in cases in which the plaintiff has difficulty in meeting the preponderance of the evidence standard due to an inherent obstacle, and when the exception can save him from the trap of ambiguity with respect to the actual causation of damage and help him to obtain partial (proportional) compensation. According to Justice Naor, the exception is not available to defendants in cases in which the plaintiff has proven a factual causal connection based on a preponderance of the evidence. Therefore, injured parties who are able to prove their cases based on a preponderance of the evidence, in reliance on their own specific evidence, opinions and details, will receive full, rather than partial, compensation. The application of the proportional liability exception in favor of defendants as well could go too far in upsetting the traditional preponderance of the evidence approach. Since this is an exception to the main principle, it must be treated as such and interpreted narrowly, especially in light of the centrality of the rule to which it is an exception. The main point is that one of the key policy considerations supporting the proportional liability exception is, as stated, the flaw that has tainted the behavior of the negligent defendant. The moral asymmetry between the plaintiff (the injured party) and the defendant (the wrongdoer) whose negligence has been proven is the starting point that justifies probability-based compensation for this category of cases. Accordingly, this starting point justifies a corrective asymmetry in the legal tools available to the parties in the proceeding. The harm — the damage — is suffered by the injured party. The legal weakness of a factual causal connection that cannot be proved due to ambiguity regarding the actual causation of the damage is also suffered by the injured party. The solution must, therefore, also be something that works in favor of the injured party and not of the wrongdoer. This aspect removes the concern that the doctrine proposed by Justice Naor in this case will worsen the situation of the injured parties.

Sixth, the boundary between the preponderance of the evidence rule and the proportional liability exception is clear. The judge must first establish whether the plaintiff has proved his claim by a preponderance of the evidence, based on the evidentiary material before him. The court has broad discretion in terms of assessing the facts and their relative weight. When the court is persuaded that it is able to determine, based on the preponderance of the evidence, whether a factual causal connection has been established or ruled out, there is no ambiguity regarding the fact of the causation of damage, which is a condition for recourse to the proportional liability exception, and the regular “all or nothing” rule will apply. Thus, when the court is convinced that it has been presented with sufficient evidence to enable it to decide the factual dispute on the basis of the preponderance of the evidence, it must act in accordance with the regular decision-making rule. Accordingly, if the regular preponderance of the evidence rule establishes that a factual causal connection has been proven, the plaintiff will receive full compensation. On the other hand, if it is proven by a preponderance of the evidence that the defendant did not cause any damage, the judgment will clear him of liability. This allays the concern that a defendant might be obligated to pay for damages that he has clearly not caused.

Judicial practice: The manner of calculating compensation

When the criteria for probability-based compensation in cases of ambiguity with respect to the actual causation of damage  have been met (even in a single-plaintiff case), Justice Naor believes that the court has the discretion to award compensation in accordance with the level of probability that the tortious risk factor caused the proven bodily injury.

As stated, the use of statistical evidence cannot replace the regular evidentiary rules for proving facts. However, in cases of ambiguity with respect to the actual causation of damage, it is reasonable to assume that neither of the parties will have specific statistical evidence regarding the injured party. In the absence of specific statistical evidence, the court may rely on evidence of a general statistical probability, for the purpose of awarding probability-based compensation. According to Justice Naor, reliance on evidence regarding a general statistical probability is permissible only if the criteria for applying the proportional liability exception are met. Once the test for the use of the proportional liability exception has been met, and only then — i.e., once the plaintiff has proven, inter alia, that in his case there is ambiguity with respect to the actual causation of damage — the court may rely on statistical evidence regarding general probability, for the purpose of assessing the amount of the probability-based compensation.

Proof based on statistical evidence

General statistical evidence involves an estimation of the general-potential probability, i.e., the probability that the negligence would have caused the damage of the type suffered by the plaintiff, in reliance on scientific proofs, epidemiological studies