Justiciability

The questions that arise for deliberation in this Petition are: Is a workers’ organization, some of whose members are pensioners of the workplace, entitled to declare a strike against the employer on the issue of the pensioners’ rights, although an employer-employee relationship no longer exists between the employer and the pensioners? Should such a strike be recognized as one that is protected by the labor laws?

What remains of a concrete labor dispute, which was resolved during the deliberations before the National Labor Court, are these conceptual-fundamental questions, which, in light of their importance, have constituted a subject of rulings by the various instances of the Labor Courts and also the subject of a petition before this Court?

Full text of the opinion:

The Supreme Court sitting as the High Court of Justice

HCJ 1181/03

Before: The Honorable President D. Beinisch

The Honorable Vice-President E. Rivlin

The Honorable Justice Emeritus A. Procaccia

The Honorable Justice E.E. Levy

The Honorable Justice A. Grunis

The Honorable Justice M. Naor

The Honorable Justice E. Arbel

Petitioner: Bar Ilan University

Respondents: 1. National Labor Court

2. Organization of Senior Academic Faculty Members of Bar Ilan University

3. New General Federation of Labor [Histadrut]

4. Organization of Senior Academic Faculty Members of the Hebrew University of Jerusalem

5. Organization of Senior Academic Faculty Members of the Technion – Israel Institute of Technology

6. Organization of Senior Academic Faculty Members of Tel Aviv University

7. Organization of Senior Academic Faculty Members of Haifa University

8. Organization of Senior Academic Faculty Members of Ben Gurion University of the Negev

9. Organization of Senior Academic Faculty Members of the Weizmann Institute of Science

10. Manufacturers Association of Israel

11. The Attorney General

Petition to grant an order nisi

Date of hearing:

On behalf of the petitioner: Haim Berenson, attorney at law; Assaf Berenson, attorney at law

On behalf of Respondent 2 and Respondents 4-9: Orna Lin, attorney at law; Orit Zilony, attorney at law; Sharon Lulachi, attorney at law

On behalf of Respondent 3: Dorit Tenne Perchik, attorney at law

On behalf of Respondent 10: Ofer Yohananoff, attorney at law

On behalf of Respondent 11: Nurit Elshtein, attorney at law

Judgment

Justice Emeritus A. Procaccia:

The background

1. The Organization of Senior Academic Faculty Members of Bar Ilan University (hereinafter: the University) is a representative organization of workers, whose members are the senior academic faculty members of the University and also pensioners of the senior academic faculty (hereinafter: the Workers’ Organization or the Organization). During the period relevant to the dispute, the employer-employee relationship between the University and the Workers’ Organization was governed by a special collective agreement dated December 6, 1998, which remained in effect until September 30, 1999. The agreement continued to apply even after that date, by virtue of Section 13 of the Collective Agreements Law, 5717-1957 (hereinafter: the Collective Agreements Law).

2. The pensioners of the University have been insured since 1959 by the Gilad Comprehensive Pension Fund, which is an external contributory pension fund. An agreement that was signed in 1988 between the University and the Workers’ Organization stated that the pension should be linked to the Consumer Price Index, although, during the period that preceded the agreement, the pension had been linked to the salaries of the active faculty members. In the salary agreements for the years 1993-1996, the active faculty members received significant salary increments, at the rate of 14%. The senior faculty pensioners did not receive the said salary increments, because their pensions were linked to the Consumer Price Index, as stated above. On that basis, the Workers’ Organization demanded that the University grant a pension increment of 14% to the academic faculty pensioners as well.

3. On October 7, 1999, the Workers’ Organization gave the University notice of a labor dispute and a strike, pursuant to Sections 5 and 5A of the Settlement of Labor Disputes Law, 5717-1957 (hereinafter: the Settlement of Labor Disputes Law). The main issue of the dispute was the Organization’s demand for the payment of a 14% increment to the pensions of the pensioners. The University was also required to improve the pensioners’ rights to the Pensioners’ Research Fund.

4. Pursuant to the notice by the Organization, the University petitioned the Regional Labor Court of Tel Aviv-Jaffa with a petition by a party to the proceeding to hear a collective dispute and with a motion for temporary remedies in order to prevent the strike. The University claimed that the Workers’ Organization could not declare a labor dispute and a strike, based on a cause pertaining to the improvement of the pensioners’ retirement conditions. On November 7, 1999, the parties filed a joint motion to terminate the proceedings in the collective dispute, and the Organization announced the cancellation of the notices that it had given with respect to the labor dispute and the strike. This joint notice was given the validity of a court judgment.

5. On February 17, 2000, the Organization gave the University a second notice of a labor dispute and a strike, under the Settlement of Labor Disputes Law. The notice, stated that the subject of the dispute was “Terms of payment of the compensation for the academic grants increment to pensioners of the Faculty Organization.” On the same day, a general meeting of the Workers’ Organization was held, during which it was decided, inter alia, as follows:

1. The meeting of the senior academic faculty resolves to insist upon a claim for the immediate and unconditional payment of the 14% increment to the pensioners.

...

3. The meeting charges the Workers’ Organization Committee with bringing before the next meeting, which will be convened as soon as possible, a draft resolution on implementing organizational measures, including a lockout, if the increment is not paid to the pensioners immediately and unconditionally....

Approximately two weeks later, on March 1, 2000, an additional general meeting of the Organization was held, during which it was decided that:

In the absence of the 14% payment to the pensioners, the general meeting empowers the Committee to immediately adopt the required measures, sanctions and strike, pursuant to the resolutions by the Committee, until the aforementioned payment is made.

6. Following that resolution, on March 6, 2000, the Organization gave a third notice of a labor dispute and a strike. The matters in dispute were defined as follows:

In the matter of determining rights that arise from an employer-employee relationship, in providing payment for academic grants to members of the faculty who have retired and will retire in the future, and stipulating conditions for making payment in an unreasonable and discriminatory manner.

7. Negotiations that were conducted by the parties on the subject of the dispute succeeded and, ultimately, the strike was averted. On April 9, 2000, an agreement was signed by the parties and was submitted for registration as a collective agreement. In this manner, the dispute was resolved.

The proceeding before the Regional Labor Court

8. Following the last notice given by the Organization regarding the labor dispute, and before the collective agreement governing the dispute was signed, on March 12, 2000 the University petitioned the Regional Labor Court for declaratory relief that would state that the Workers’ Organization was not entitled to declare a labor dispute based on a cause pertaining to improving the retirement conditions of the university’s pensioners and, in particular, was not entitled to declare a strike in that context. The signing of the collective agreement, which brought the dispute to an end, did not lead to the cancellation of the proceeding before the Labor Court, and the University sought to continue it, to allow for fundamental decisions on the questions that had arisen regarding the right of a workers’ organization to declare a labor dispute and a strike based on matters related to pensioners of the workplace. The Workers’ Organization, for its part, claimed that the question that had been raised for deliberation was theoretical, since an agreement had been reached and, therefore there is no need for the Court to deliberate the question. The Court rejected the argument made by the Organization and decided to hear the University’s petition on the merits, in light of the fundamental nature of the issue, and due to the fact that the issue is one that arises frequently and therefore justifies the issuance of a leading decision for the various systems.

9. The judgment of the Regional Labor Court focused on the legal question of whether a workers’ organization is entitled to declare a strike on the issue of pensioners’ rights. The Court (Judge Wirth-Livne and representatives of the public, Messrs. Dorscht and Mutai) responded in the negative and ruled that a workers’ organization is not entitled to declare a strike that focuses on the subject of determining the rights of pensioners who had retired from the workplace.

10. In its ruling, the Regional Court did not deny the power of the organization to represent pensioners, as part of the freedom of association granted to them, or recognition of the organization‘s status as representing their affairs as well. Yet, according to the Court, the question is what is the meaning of the organization’s representation of pensioners’ affairs, and does this representation also extend to the right to declare a strike for the purpose of promoting their affairs?. According to the Court, as a general rule, a workers’ organization is entitled, within the limits of the law, to declare a strike to achieve objectives in the realm of labor relations and in the realm of the working conditions of the active workers who are members of the organization. The same does not apply to pensioners. Upon their retirement from the workplace, the employer-employee relationship between the employer and the retirees is severed and the retirees’ rights are determined by the articles of association of the pension fund of which they are members, or by another legal arrangement that applies to them. Even if a collective agreement is signed with regard to the pensioners, it will not constitute a “collective agreement,” as this term is used in legislation, because it does not deal with “working conditions” or a “labor relationship,” as these terms are defined in Section 1 of the Collective Agreements Law. A collective agreement is intended to serve as a substitute for an individual employment contract that governs a “labor relationship,” while a contractual relationship between parties with no employer-employee relationship is not considered a “labor relationship” in the generally accepted legal sense. Pensioners are also not “workers” and, accordingly, the improvement of their retirement conditions is not a matter encompassed by the terms “working conditions” or “labor relationship.” Even if a collective agreement may apply to workers at the time of their retirement, it cannot determine rights and duties for workers who retired before the agreement went into effect. Therefore, the issue of pensioners’ rights does not constitute a legitimate cause for a strike recognized under labor law, which aims to achieve objectives in the realm of labor relations and the working conditions of the active workers. The Court further held that the argument that a strike on behalf of pensioners’ affairs can be considered a “sympathy strike,” must be rejected. A sympathy strike is recognized by law, insofar as it constitutes a strike by workers to support the professional struggle of other workers, and provided that it takes place in support of a primary strike, which is recognized as a protected strike. A sympathy strike also requires the element of a professional struggle of “workers,” and that element does not exist in the case at hand; Moreover, no “primary strike” exists in this case. In addition, from the standpoint of proper policy, the Court ruled that it was not appropriate to recognize the power of an organization to strike on matters pertaining to pensioners. Granting such power may not only improve the pensioners’ status, but also work to their disadvantage in certain situations, thus detracting from their rights. In light of all the above, the Regional Court ruled that the Organization was not entitled to declare a strike that focused on determining the rights of the University’s pensioners.

The Organization appealed that ruling to the National Labor Court.

The judgment of the National Labor Court

11. The National Labor Court, in a judgment written by President Adler, with which Vice-President Barak, Judge Arad, the employees’ representative Mr. Harpaz, and the employers’ representative Mr. Liav all concurred, allowed the appeal and ruled that a workers’ organization, whose members include pensioners of the workplace, is entitled to declare a labor dispute and a strike, as part of its efforts to improve the pensioners’ retirement conditions .

12. In its opening remarks, the Court noted that, as a general rule, a theoretical petition that does not require a decision for the purpose of resolving a pending concrete dispute should not be adjudicated. Yet, given that the ruling of the Regional Labor Court had been handed down and that it expressed a position on a fundamental matter that had not been previously adjudicated by the Courts, it is fitting and proper to adjudicate the matter and to establish case law with regard to the issue, especially as it concerns a substantive question related to an important right – the right to strike.

13. In considering the case on the merits, the National Labor Court classified the question in dispute regarding the scope of the pensioners’ representation by the workers’ organization. It ruled that, in light of case law and in view of the labor relations currently prevailing in Israel’s economy, a workers’ organization is entitled to include pensioners among its members and to represent them; such an organization is entitled to conduct negotiations to promote the rights of the pensioners of the relevant institution; and a collective agreement can grant rights to pensioners. The question, according to the Court, was whether a workers’ organization has the right to declare a strike as part of negotiations to promote the pensioners’ issues. According to the Court, because pensioners may be included among the members of a workers’ organization and the organization is entitled to represent them, the organization, in any case, has the power to conduct negotiations to improve their conditions, as they belong to it. The question is whether a strike that is declared by the organization, within the framework of a labor dispute, which concerns only the pensioners’ rights, is likely to be considered a protected strike that benefits from special protections under the law.

14. In the opinion of the Court, although the provisions of the Collective Agreements Law and the Settlement of Labor Disputes Law refer to “workers,” “working conditions” and “labor relations,” and contain no direct and explicit reference to pensioners, the purpose of these laws, when interpreted in the circumstances of the current reality, indicates that a workers’ organization is entitled to strike for the sake of its pensioners, and that such a strike is protected under law. The Labor Court pointed out the close relationship between the pensioners and the workplace in the organized sector. It noted that, with regard to the representation of workers and pensioners, there is a pertinent continuity between the period of the workers’ employment in the workplace and the period of their retirement; this is especially true of a university, since pensioners continue to lecture, to perform research, and to publish articles and studies in the areas of the university, in which they acknowledge their relationship with the academic institution. Furthermore, there are pensioners who use the continuing education fund of the university’s faculty members. The Court further ruled that, although the principal role of a workers’ organization is to represent the active workers and to take measures for the improvement of their working conditions, this role also includes concern for the workers’ retirement conditions and concern for the workers after they retire.

15. The National Labor Court examined the legislation relevant to the matter and reached the conclusion that it does negate the position that a workers’ organization can declare a strike with regard to the rights of the pensioners who are among its members. As for the Collective Agreements Law, the Court referred to the definitions that appear in Sections 1, 15 and 19 of the Law, which include terms such as “worker” and “working conditions” in the context of the collective agreement and which imply, prima facie, that such an agreement applies to anyone who maintains an employer-employee relationship with his employer, and does not apply to anyone for whom the labor relations with his employer have ended. Nonetheless, the Court ruled that this Law should be interpreted according to its purpose, and according to the reality of life prevailing at present. Thus, it should be determined that the concept of “working conditions,” which appears in the definition of a collective agreement in Section 1 of the Law, is broad in scope and also includes retirement rights and pension terms of the workers in the workplace; the term “labor relations” in the same provision also includes the affairs of workers who have retired, while the subject of pensioners’ rights in the pension fund is considered part of the labor relations, and the Court has the jurisdiction to adjudicate it. The phrase “all the workers of the types included in the agreement,” in the definition of the scope of the special collective agreement in Section 15 of the Law, also includes pensioners. It was ruled that, in general, the definition of the subjects that can be governed by a collective agreement extends, in the pertinent sense, to the affairs of pensioners as well, and case law has already established that a condition in a collective agreement that grants rights to pensioners is valid. In light of the above, the Court concluded that, within the definition of the collective agreement, the Collective Agreements Law also includes, inter alia, an agreement that specifies the retirement conditions for the workers, and that the workers’ organizations continue to represent the workers even after they have retired. Indeed, the Court emphasized that this does not transform a pensioner into someone who holds the same status as a worker for all intents and purposes, but he should be deemed as such for the purposes of his representation by the organization in matters resulting from his having been a worker in the past, and especially for the purposes of his representation with respect to the terms of his retirement.

The Court ruled that Section 2 of the Settlement of Labor Disputes Law should be considered in the same spirit. Since pensioners’ rights may constitute the subject of a collective agreement under this provision of the Law, they may also constitute the subject of a labor dispute in any case. While the dispute itself is between the employer and its workers, who are represented by the organization, the subject of the dispute may, nonetheless, focus on the retirement conditions of the pensioners. The Court clarified that its fundamental ruling refers to a situation in which the workers’ organization represents pensioners who are among its members, along with its members who are active workers, and does not refer to a situation in which a separate and independent pensioners’ organization wishes to negotiate with the employer with respect to the pensioners’ retirement conditions.

16. As for the concrete matter of the relations between the University and the Workers’ Organization, it was ruled that the pensioners of the institution continued to be members of the organization in practice, and that a close relationship between them and the University was maintained; the articles of association of the Organization enable the inclusion of pensioners among its members. Among the purposes of the Organization is representing pensioners, including in matters relating to pensions and continuing education funds. In practical terms, the Organization conducts negotiations and signs collective agreements on matters pertaining to the pensioners. Accordingly, the Organization was entitled to declare a strike for the benefit of the pensioners among its members. The Court further emphasized that the proper policy is to extend broad protection over citizen-pensioners, and to enable the workers’ organization, where it exists and acts, to represent pensioners and, in so doing, to declare a strike for the purpose of promoting their rights. Insofar as a workers’ organization can represent pensioners, conduct collective negotiations on their behalf and sign collective agreements that include provisions relevant to pensioners, its right to declare a workers’ strike on subjects pertinent to pensioners may be assumed, since, after all, striking is an integral part of the collective negotiation process, and without the power to strike as a means of conducting negotiations, the organization’s power and status would be considerably weakened. Furthermore, the right to strike is anchored in the constitutional right to freedom of association, and the negation of that right is tantamount to a prohibited limitation of the freedom of association. The right to strike, which exists within the framework of collective negotiations, expresses the right of groups to promote their interests, as part of the processes of social change that take place in the state. Denying the right to strike is also liable to violate the human right to live with dignity, since “a pensioner’s constitutional right to human dignity is meaningless if he has no way to protect his income” (paragraph 26 of the ruling). These were the reasons underlying the position of the National Labor Court with regard to the power of a workers’ organization to declare a strike for the purpose of promoting the affairs of the pensioners among its members.

17. Against the background of the aforementioned rulings, the National Labor Court allowed the appeal and ruled that, under the circumstances of this case, the Workers’ Organization was entitled to declare a labor dispute with the University as well as a strike, as part of its efforts to obtain better retirement conditions for the pensioners of the academic faculty.

The proceeding before the High Court of Justice

18. The University filed a petition with this Court, sitting as the High Court of Justice. After a first hearing of the petition before a panel of three, an order nisi was issued and organizations of senior academic faculty members of additional institutions of higher education in Israel – the Hebrew University of Jerusalem, the Technion – Israel Institute of Technology, Tel Aviv University, Haifa University, Ben Gurion University of the Negev and the Weizmann Institute of Science (hereinafter jointly, together with the Organization: the Academic Faculty Organizations) – were joinder to the proceeding. Also added to the proceeding were the New General Federation of Labor [the Histadrut] – as the largest representative workers’ organization in the state (hereinafter: the Histadrut), and the Manufacturers’ Association of Israel – as the largest employers’ organization in the state in the business sector (hereinafter: the Manufacturers’ Association). The attorney general also announced that he would participate in the hearing of the proceeding. At a later stage, it was decided to expand the bench.

The arguments in the petition

The arguments of the Petitioner

19. According to the Petitioner, it is not appropriate to recognize the power of workers’ organizations to exert economic pressure on an employer to accede to economic demands for improving pensioners’ rights. This is primarily because the labor relations between the pensioners and their employers were severed, and the pensioners’ retirement rights were established prior to the date of their retirement.

According to the Petitioner, the Court deviated from the generally accepted rules of interpretation of the relevant pieces of legislation in order to achieve a social purpose, and it did so in an improper way, which was not the way that was paved for this purpose – the way of legislation. It argued that there is a need to return to the proper boundaries of the recognized strike, which is intended for a legitimate labor dispute and not for a pension dispute; there is a need to refrain from expanding the pensioners’ right of representation by the Workers’ Organization, and from recognizing the authority of the Workers’ Organization to conduct negotiations, to sign a collective agreement and to declare a labor dispute that changes the vested rights of the pensioners, for better or for worse. The Petitioner’s position is that the judgment by the National Labor Court changed the existing balances with respect to the protected freedom of strike, thereby causing great harm to the University, the students, and perhaps even to the pensioners themselves. Recognition of the pensioners’ right of representation by the Organization also amounts to the preferential treatment of pensioners, relative to other groups in society that do not have the privilege of being similarly represented.

20. It was further argued that the Court did not examine the factual foundation pertinent to the matter that was brought before it, and made unsubstantiated factual assumptions. It created a legal, economic, social and political revolution, which increases the damage done by strikes, which do harm to Israeli society. The Petitioner went on to argue that a difficulty had arisen in applying the “principle of representation”: it is not clear how to determine the question of which pensioners would be entitled to be included in the represented group, how the collective agreement would be applied to pensioners, how the expansion orders would be applied to pensioners, and what would be determined regarding the deduction of pensioners membership fees and handling fees that are paid to a representative workers’ organization, when the Wage Protection Law, 5718-1958, allows such deductions only from workers and only from wages. Instead of permitting a solidarity strike by active workers for the benefit of pensioners, which renders the strikers immune to liability for the damages that will be sustained by the strike victims, it would have been proper to examine alternative ways of achieving the desired goals, such as exercising the active workers’ legitimate right to strike for the gradual improvement of their own retirement conditions when they become pensioners; utilization of workers’ and citizens’ rights of freedom of expression and freedom of civil protest on behalf of pensioners, but without using the right to strike; and promotion of social legislation in the Knesset. The Petitioner argued that the Court erred in interpreting collective agreements as applying to pensioners, notwithstanding the severing of the labor relations between them and the employer. According to the Petitioner, while a collective agreement can refer to the future pension rights of active workers, it cannot create new economic rights for pensioners after they cease to be workers. The expressions “labor relations” and “working conditions” in Section 1 of the Collective Agreements Law also refer to collective labor relations, and to the working conditions of workers, which, by their very nature, cannot apply to the conditions of pensioners after their retirement. No indirect approval should be given for a “sympathy strike,” which is recognized under Israeli law as a mere exception and is limited to a strike by workers as a sign of their identification with other workers who are embroiled in a labor dispute with an employer. It was claimed that the Court also erred in applying the Settlement of Labor Disputes Law to this matter.

The Petitioner further argued that the improvement or reduction of the existing legal rights of pensioners and senior citizens is a matter for the legislator and is not part of labor law, and, in any event, the judiciary branch must exercise restraint when intervening in a matter of this type. The Petitioner further noted that, when an arrangement for the involvement of a representative organization in the rights of civil service pensioners was required, a special legislative arrangement was established for that purpose in the Civil Service Law (Pensions) [Combined Version], 5730-1970 (Sections 1 and 103-104); in addition, the bill, Basic Law: Social Rights, which defined the right to strike as a constitutional right, also limited that right to active workers, in contrast to pensioners.

21. The Petitioner emphasized that the interpretation that was given to the right to strike in matters pertaining to pensioners detracts from the balance required for delimiting the right to strike as a relative basic right. Granting protection to strikers against contractual or tortious claims requires restraint and strict interpretation of the applicability of the right to strike, which is protected under labor law for active workers only, within the framework of a labor dispute in which they are involved. The expansive interpretation of the right to strike is liable to open the way for encompassing other weak groups within society, which are not composed of “workers,” within the circle for which a protected sympathy strike could be conducted through a workers’ organization. This is not the proper way to improve the status of various groups that do not hold the status of “workers,” and permitting this, in practical terms, is equivalent to recognizing a prohibited sociopolitical strike, which is likely to cause irreparable damage. It was further argued that the risk that the Workers’ Organization, in representing the pensioners, would not act only for their benefit, but also to their detriment, has not been taken into account. It was finally argued that, in the case before us, the classification of the Organization as a representative workers’ organization is doubtful, because the membership of faculty members in the Organization is automatic and even depends on the employer and, as such, it does not comply with the conditions required for voluntary membership in a workers’ organization. The pensioners’ membership in the Organization is a “disabled” membership, since, pursuant to the articles of association, they cannot exert a real influence on the Organization’s decisions.

22. In summary, it was argued that the requirements of justice, from both the general and the individual standpoint, require judiciary intervention in the ruling handed down by the National Labor Court. The ruling violates the property rights of employers and the legitimate interest of their expectations; it involves severe harm to the entire Israeli public, and especially to the university.

The arguments of the Academic Faculty Organizations

23. The Academic Faculty Organizations argued that the determinations made in the National Labor Court judgment should be adopted, as they are compatible with the existing legal framework, and the developments that have taken place in Israel’s labor economy over the years. The Workers’ Organization of the University represents mainly active workers, but its members also include pensioners, who are former workers of the University. Over a period of many years, the Organization has handled the affairs of the pensioners, who have maintained constant contact and a close affinity with their employer even after their retirement. It has acted simultaneously to promote the rights of active workers who had not yet become pensioners and to promote the retirement and pension terms of those who had formerly been active workers. According to their argument, there was nothing new in the judgment’s ruling that pensioners are entitled to organize within the framework of an existing representative workers’ organization, and that a collective agreement may include provisions related to the retirement and pension terms of pensioners. The right to organize includes the right to conduct collective negotiations and the power to take various organizational measures, including the measure of striking, in order to promote the objectives that the organization wishes to achieve. The definition of the term “strike” is dynamic. No binding definition has been attached to it under the law, and its content may change according to the state of Israel’s economy and society. The various concepts in the relevant items of labor legislation – “worker,” “working conditions” and “labor relations” – should also be dynamically interpreted in accordance with the purposes of the legislation. Therefore, it is reasonable and correct to interpret them as governing the retirement conditions as well, so that a pensioner may be considered a “worker” for the purposes of the conditions required for a collective agreement, and for the purposes of the ancillary matters governed by the Collective Agreement Law. The definition of a “labor dispute” in Section 2 of the Settlement of Labor Disputes Law may also include matters that are related to the retirement conditions of pensioners, whose affairs are represented by the workers’ organization vis-à-vis the employer.

24. The Academic Faculty Organizations added that this case involves a classic economic strike and not a sympathy strike, but that, insofar as sympathy strikes are recognized in Israel, it is a fortiori necessary to recognize a strike by workers, who will become pensioners when the time comes, based on the cause of harm to people who were formerly workers of the same institution and who, after retiring, remained members of the Workers’ Organization. They claimed that the Petitioner’s argument about the risk of the Organization violating the pensioners’ rights was also not appropriate. It has already been established that the abrogation of pensioners’ rights by virtue of a subsequent collective agreement would only be valid with regard to pensioners who retired from their work after, and not before, the date on which the agreement took effect. Furthermore, the Organization has a duty of proper representation vis-à-vis its members, including the pensioners among them. The fact that the Organization does not have the power to violate the pensioners’ rights cannot lead to the conclusion that it has no power to act in their favor through the use of its organizational strength. The reality of the labor market and the developments that have taken place in the field of labor relations in the last decades emphasize the potential risk of violating pensioners’ rights and the need to represent their affairs vis-à-vis the employer even after their retirement. Corroboration for this recognition can be found in the close partnership that exists between the Workers’ Organization and the pensioners and their rights. Finally, it was claimed that the Petitioner’s argument about the doubt as to the representative nature of the Organization in the matter before us is not appropriate, in light of the factual and legal infrastructure that was established, and the dozens of collective agreements that were signed between the Parties, all of which are inconsistent with this argument.

The arguments of the Histadrut

25. The Histadrut concurred with the position of the Organization. According to the Histadrut, it would have been appropriate, a priori, to deny the petition before this Court as being theoretical in nature. In any event, the judgment that is the subject of the petition does not have the important lateral implications that people are attempting to attribute to it: the rights in question are not those of “senior citizens” as a whole, but rather, of the pensioners of the Workers’ Organization alone. The judgment contains no general assertions with regard to senior citizens and other population groups within society. The pensioners who are members of the Organization have a special affinity to the Organization, and this is the source of their uniqueness; this applies a fortiori in the matter before us, because, unlike senior citizens and other population groups, which are entitled to certain rights by virtue of general constitutional principles, the pensioners’ rights result from a prior contractual relationship between them and the employer. The ruling by the Court in this case has an especially narrow field of application, also because parts of it rely on the special facts of the case and, inter alia, on the fact that the employer in this case, as a matter of fact, customarily negotiated with the Workers’ Organization with regard to pensioners. At the legal level as well, this is not a legal precedent, because the right to strike in favor of pensioners derives from the right to associate, and this right is well anchored in law and case law. There is no practical meaning to the right to associate without the possibility of exercising that right, inter alia, by striking. Support for the position adopted by the National Labor Court can also be found in international law. Thus, for example, the International Labor Organization Convention (No. 87) on Freedom of Association and Protection of the Right to Organize (hereinafter: the Convention on Freedom of Association and Protection of the Right to Organize) establishes that a workers’ organization is entitled to determine the content of its articles of association without governmental intervention. On this basis, the Histadrut concluded that a workers’ organization may also determine that it will take measures to represent the pensioners’ affairs. According to the Histadrut, the position of Israeli law is consistent with the position of international law, which, in the opinion of the Histadrut, tends to expand the objectives of the workers’ organization and the right to strike. It was further argued that the right to strike should not be limited to the definition of “labor relations” in to the Collective Agreements Law or the Settlement of Labor Disputes Law. There is no inevitable connection between the ability to sign a collective agreement and the right to strike. The right to strike is a basic right that should not be limited unnecessarily, and the legislation with regard to collective agreements and the resolution of labor disputes should not be interpreted in a manner that will restrict its scope. A purposive interpretation of the term “employee” in labor legislation may justify an expansive interpretation, which includes a pensioner, inter alia, for the purpose of exercising the right to strike. Finally, it was argued that the position of the National Labor Court is in line with the current reality. In contrast to the state’s argument that it is not possible to establish conditions in a collective agreement with regard to people who had already retired from their work prior to its formulation, the state, in actual fact, signs collective agreements that govern the affairs of pensioners after their retirement – and examples of these agreements were cited. The Histadrut ended its arguments by stating that, in its capacity as a workers’ organization, it encompasses both active workers and those who have retired from work but continue to be included among its members. The Organization looks after the entire professional life of the workers, both during their active work and thereafter, and all of the workers’ rights, including pension rights, are determined with a direct connection to the period of their work.

The arguments of the Manufacturers’ Association

26. The Manufacturers’ Association concurred with most of the Petitioner’s arguments. It argued that the right to strike was expanded in the judgment, which is the subject of the petition, beyond its proper dimensions with regard to pensioners who have retired and no longer have the status of workers. No proper balance was made between the employers’ proprietary right, which is protected in the Basic Laws, and the workers’ right to strike. This expansive approach is likely to encourage strikes that cause great damage to employers and the society as a whole. In addition, a workers’ organization that generally represents the active workers is liable to become embroiled in a conflict of interest if the causes for striking are expanded to include causes that concern pensioners’ rights. It was further argued that recognizing the Organization’s power to change pensioners’ rights after they have retired is also liable to harm the pensioners and cause them damage in the future. Accordingly, the position adopted by the Manufacturers’ Association is that the judgment that is the subject of the petition should be overturned.

The position of the attorney general

27. The attorney general, who appeared before the Court, claims that it was not appropriate to adopt the National Labor Court ruling, whereby a workers’ organization is entitled to declare a protected strike for the purpose of promoting the affairs of the pensioners among its members.

According to him, the position adopted by the Labor Court expands the status of pensioners to that of “quasi-workers” and such a position finds no support in law or in the basic principles of the system, both of which see fit to distinguish between a person who is a worker and one who is not. According to the judgment that is the subject of the petition, the status of “quasi-employee” is a significant one, because, by virtue of that status, it is possible, inter alia, to declare a strike. However, the scope, the essence, and primarily the boundaries of this status are not defined in the judgment. Workers need the power to strike to adapt the employment contract to the changing circumstances of life. Pensioners, on the other hand, have rights that are vested in them. There is no need to adapt those rights to the changing reality and the force of those rights results from their fixed, vested nature.

28. According to the position adopted by the attorney general, a workers’ organization cannot properly represent the affairs of pensioners. First, from a conceptual standpoint, a workers’ organization, as defined in HCJ 7029/95, New General Federation of Labor v. National Labor Court, IsrSC 51 (2) 63 (1997) (hereinafter: the Amit Case), is an organization in which the members are workers whose membership is voluntary, for the purpose of promoting their employment conditions within the framework of a collective agreement. These characteristics do not exist with regard to pensioners. Hence, for the purpose of recognizing a workers’ organization as an entity capable of promoting pensioners’ affairs, a legislative amendment of the labor laws is required. As long as no such amendment has been made, the Organization’s activities to improve the pensioners’ conditions constitute social welfare activities, which are external to labor law. Therefore, from the conceptual standpoint, it is not appropriate to speak of a workers’ organization that acts for the benefit of pensioners. Second, membership in a workers’ organization and competence to enter into collective agreements both mean that the workers’ organization could also detract from pensioners’ rights, and not only benefit them. This is liable to give rise to an inherent conflict of interest in the operation of the workers’ organization, between the rights of active workers and those of pensioners. Third, “employment conditions” in a collective agreement may, indeed, include retirement conditions, but only insofar as those terms concern workers who have not yet retired, in contrast to those who retired previously. In the absence of working relations between the employer and the pensioner, and in the absence of an employment contract between them, no provisions of a collective agreement, which confer “individual” normative validity with regard to pensioners, can exist. Fourth, the legitimacy of the strike is contingent upon its purpose being the improvement of workers’ conditions, in contrast to promoting the interests of other groups, the nature of which the Labor Court did not clarify. In failing to do so, the Labor Court created too wide an opening, and the outcome of its action cannot be predicted. The ruling by the Labor Court approaches, in essence, a complete recognition of the right to hold a sympathy strike, which, to date, has been recognized under Israeli law only in an extremely limited way. According to the existing legal situation, the strike by the Organization cannot be considered a “sympathy strike,” because the latter is limited to a sympathy strike by “workers” with regard to other “workers” who are embroiled in a labor dispute. It was further argued that the Labor Court did not properly distinguish between a budgetary pension and a contributory pension. In this case, which involves contributory pension insurance, the pensioners’ adversary is not the University but, rather, the pension fund alone. In the attorney general’s opinion, solutions for the aforementioned difficulties faced by the pensioners must be found in other ways, such as the establishment of an independent pensioners’ organization or holding protest rallies or consumer strikes. Expanding the applicability of the concepts of “strike,” “worker,” “collective agreement” and “collective dispute” to pensioners, as done by the Labor Court, deviates from the purpose of the legislation and from the foundations of the legal system. It cannot be accomplished without the intervention of the legislators; it endangers the existing protection of the basic concepts and basic interests of labor law. In light of all of the above, it was argued that the obvious legal error in the National Labor Court ruling justifies the intervention of this Court in order to change it.

Decision

29. The petition confronts this Court with the question of whether a workers’ organization has the power to declare a strike that will be protected under law, in a matter intended to promote the rights of the pensioners among its members. The answer to this question involves the examination of various issues that pertain to the status of pensioners relative to the workplace from which they retired: their status relative to the workers’ organization that represents the active workers in the workplace; the extent of the pensioners’ ability to belong to that organization; the scope of the organization’s power to represent the pensioners among its members, to take action to improve their social benefits, and to engage in a collective agreement for that purpose; and finally, the question of whether, within the framework of collective negotiations, a workers’ organization is entitled to declare a strike that is intended to promote the rights of the pensioners among its members, which will be protected under law. Against the background of the emerging issue and its various complexities, we will first address the argument that was raised, according to which the proceeding does not justify decision on the merits, because the case is of a purely theoretical-academic nature.

A theoretical petition

30. A rule that has been adopted by this Court is that it does not customarily address itself to petitions of a theoretical nature (HCJ 5095/07, Israel Law Center v. MK Peres (unpublished, June 12, 2007); HCJ 967/07, A. v. National Insurance Institute (unpublished, April 29, 2007); HCJ 3206/06, Typhoon Contractors Ltd. v. Minister of Construction and Housing (unpublished, October 23, 2006); HCJ 1853/02, Nawi v. Minister of Energy and National Infrastructures (unpublished, October 8, 2003); HCJ 10026/04, Poalim IBI Underwriting and Issues Ltd. v. Antitrust Commissioner (unpublished, February 6, 2005); and in civil matters, see e.g.: CA 7175/98, National Insurance Institute v. Bar Maimon Ltd. (in liquidation) (unpublished, December 17, 2001)). A theoretical petition is defined as a petition that is not required for the resolution of a sustainable dispute at the time it is heard. It is not based on a specific set of facts and does not involve a petition for a concrete remedy; rather, it raises a legal question of a general nature, with no close relationship to the circumstances of a specific case (HCJ 6055/95, Tzemach v. Minister of Defense, IsrSC 53 (5) 241, 249 (1999) (hereinafter: the Tzemach Case)). As a general rule, a decision on a theoretical petition is not consistent with the definitive judiciary role, which is intended to decide in real disputes and to find a solution for them; it is thus liable to trespass into the domain of other branches of government; it is devoid of any concrete delineation of the matter requiring decision; and there is concern, which is inherent in the adversarial system, that a theoretical argument will not cover all the strata of the matter; this is accompanied by the concern of placing an improper burden on the Court in matters that do not require a decision, in view of the heavy burden resting on its shoulders, which requires it to rule in matters of real significance.

31. Notwithstanding the aforementioned reasons, special considerations may justify this Court’s dealing with an issue, although a decision is not required for the purposes of a concrete matter. The exceptions to the rule, which reject the notion of hearing a theoretical petition, are narrowly interpreted, and the mere fact that an important legal issue is involved is not sufficient reason for hearing a theoretical petition (HCJ 2406/05, Beersheba Municipality v. National Labor Court (unpublished, July 27, 2005); Eliad Shraga and Roi Shahar, Administrative Law: Threshold Causes [Hebrew], 241 (Volume II, 2008)). One of the exceptions to the rule is a situation in which an important question arises and it cannot be adjudicated unless it is presented as a general question, without connection to any specific case (Tzemach Case, at 250; HCJ 73/85, Kach Faction v. Speaker of the Knesset, IsrSC 39 (3) 141, 146 (1985)). When the nature of the matter is such that, in general and for reasons of time it is not possible to render a decision before the matter becomes theoretical, the Court will tend to address the matter even though it is not connected to any concrete dispute that calls for a decision. Another exception concerns a situation in which the parties have already invested considerable input in a legal proceeding that began with a concrete dispute, but a new development in the circumstances, shortly before the ruling was rendered, obviates the need for a decision. In such a case, the Court has discretion as to whether to decide in the matter, notwithstanding the fact that the dispute has already been resolved. This exception will be exercised when the decision is of special fundamental importance, and when considerable input has been invested in the judiciary proceeding that preceded the decision. The Court is given broad discretion in hearing threshold arguments with regard to a theoretical petition, and its role is to strike a balance between the opposing values involved in the matter in question.

32. The matter before us is not a typical case of a theoretical petition that deserves to be denied in limine. First, the proceeding began with a specific, real dispute between the Workers’ Organization and the University. which was resolved prior to the National Labor Court decision, yet the details of this dispute are what dictated the framework of the judiciary decision, which was delineated within a defined topical domain. Second, and more important, this is an issue that has both broad fundamental significance, in the legal and social context, and great immediate practical value. The question of whether a workers’ organization can represent pensioners who are among its members, can declare a labor dispute, and can launch a strike based on a cause that concerns the pensioners’ affairs, has practical and direct consequences for the systems of labor and society. It is not restricted to a legal-conceptual question which is disconnected from day-to-day reality. A decision on this question will have an extensive impact on the relationships between pensioners as a group and workers’ organizations within the circle of labor relations in the state, even if it is not necessarily related to the existence of a specific labor dispute in any particular organization. Such a decision can affect and shape patterns of behavior and activity in the labor economy and in the field of social security, which have a comprehensive, direct and immediate impact. Third, refraining from rendering a decision on the merits of the fundamental question that arises in the petition will mean allowing an important fundamental ruling, which was made by the National Labor Court, to stand with no judicial review, notwithstanding the broader impact of that ruling on nationwide social systems. And fourth, considerable resources have been invested, by all the entities involved in the proceeding, in the judicial handling of this issue.

The cumulative weight of these factors justifies hearing the petition on the merits, notwithstanding the fact that a decision is not required for the resolution of a concrete dispute. Under the circumstances of this case, the examination of the Labor Court’s judgment by this Court, according to the generally accepted tests of judicial review, is meaningful and has important concrete consequences for the establishment of standards of behavior with respect to the extent to which any workers’ organization has the power to represent the affairs of the pensioners among its members. This matter is of importance for Israeli society as a whole and, accordingly, it is fitting and proper to decide it. This was the opinion of the first panel that heard this petition and decided to issue an order nisi in the matter, and this was the opinion of the second panel that heard the petition and determined, at a later stage, that it was necessary to expand the panel to which it was assigned.

Under these circumstances, it is therefore fitting and proper to address the petition on the merits and render a decision.

The outline of the decision

33. The question for decision is whether a workers’ organization has the right to declare a protected strike with the aim of promoting the social rights of the pensioners among the members of the organization.

It is important, even at this stage, to emphasize that the Labor Court limited its rulings to a state of affairs in which the workers’ organization is the entity that seeks to declare a strike, when the labor dispute within which the strike is declared concerns the affairs of pensioners who are members of the organization, which are discussed in collective negotiations related to a collective agreement. The Court’s rulings do not extend to the affairs of pensioners who are not organized within the workers’ organization, and the general aspects of the question of their right to organize and to take measures to promote their rights are not included in the Court’s rulings. The deliberation and decision in the petition will, therefore, focus on the issue of the decision that is subject to judicial review.

34. In the outline of the decision, we will examine the following questions, insofar as they are required for judicial review: what has the situation of Israel’s aging population been in the last decades, and, as a result, what is the status of pensioners in society, and does the law provide them with proper protection of their status and rights; what is the status of the workers’ organization within the framework of labor relations, and is it entitled to accept pensioners who have retired from their work as members, to represent them in negotiations with the employer for the purpose of protecting their rights, and to engage in a collective agreement on their behalf; what are the advantages and disadvantages, the “opportunities and risks,” in the organization representing the pensioners’ affairs in collective negotiations; does the organization’s ability to represent the pensioners also mean the right to declare a strike on their behalf; and is the wording and the purpose of the relevant labor laws – the Collective Agreements Law and the Settlement of Labor Disputes Law – compatible with the recognition of the power of a workers’ organization to declare a strike for the purpose of promoting pensioners’ affairs?

This is the course that we will pursue: as a background for this matter, we will begin by considering the social and legal status of the population group of pensioners in Israel; we will continue with a description of existing case law with regard to the representation of pensioners in workers’ organizations from the standpoint of the freedom to organize, and afterwards with defining the status of the right to strike under our legal system. Against the background of these basic principles, we will address the interpretation of the relevant legislation, for the purpose of providing an answer to the question of whether said legislation enables recognition of the right and power of a Workers’ Organization to declare a workers’ strike for the purpose of promoting the rights of the pensioners among its members.

The social and legal status of pensioners

35. The status of the elderly in Western society has undergone far-reaching changes and upheavals in the last decades. “At the dawn of the 21st century, we are facing a changing demographic reality; human aging characterizes this development” (Ruth Ben-Israel and Gideon Ben-Israel, “Senior Citizens: Social Dignity, Status and Representative Organization” [Hebrew], Avoda, Chevra ve-Mishpat IX 229 (2002) (hereinafter: Ben-Israel, Senior Citizens). Indeed, similar to processes that are taking place throughout the world, a clear process of aging is affecting Israeli society as well. This process is expressed, inter alia, in a decline in the birth rate, a significant increase in life expectancy, and a constant and considerable increase in the proportion of the elderly population in society (Israel Doron and Ido Gal, “Prevention and Legal Planning in Old Age” [Hebrew], Hamishpat IX 427, 428 (2004)). The degree to which the world’s population is aging is extremely impressive: if, during the 1950s, only 8.1% of the population was over 60 years old, in 2050, 100 years later, some 30% of the world’s population is expected to be above that age (Tal Golan and Israel Doron, Aging, Globalization, and the Legal Construction of “Residence”: The Case of Old Age Pensions in Israel, 15 ELDER L.J. 5 (2007). The situation in Israel is similar: although Israel’s population is considered relatively young compared with the populations of Western countries, the proportion of people aged 75 and up among Israel’s population has increased moderately over the years. Thus, for example, it was 4.7% in 2009, in contrast to 3.85% in the early 1990s. People aged 65 and up represent approximately 10% of Israel’s population, whereas, at the establishment of the State [in 1948], they constituted only 4% of the entire population of the state. Nearly half the people aged 65 and up (some 47%) are over 75. The trend of aging among the population is continuing, and life expectancy in Israel is also continuing to rise, compared with earlier periods. In 2009, Israel’s life expectancy was 79.7 years for men and 83.5 years for women; this reflected, relative to 2008, an increase of 0.7 years among men and 0.5 years among women. In the last two decades, the life expectancy of both men and women has increased by nearly 4 years. Looking to the future, the trend of aging is expected to continue among Israel’s population. Although the percentage of 65-year-olds in Israel’s population has been stable since 1995, forecasts show that, by 2030, they will account for some 14% of the population, and the population group consisting of people aged 65 and up will double, totaling 1.367 million people. In comparison to the international level, the proportion of people aged 65 and up in Israel is higher than their proportion throughout the world and in Asia, Africa and Latin America – areas in which the birth rate is now, or was, in the recent past, relatively high; on the other hand, in comparison to Europe and North America – areas in which the birth rate is lower than in Israel – the percentage of the elderly in Israel is lower. Finally, it should be noted that approximately 20% of people registered in the Departments of Social Services of Israel’s Ministry of Social Affairs are elderly people over age 65; this is twice the percentage of their proportion in the general population (9.8%). As of 2008, 34% of all people aged 65 and up were registered in those departments (Israel Central Bureau of Statistics, Press Release: Data in Honor of International Elderly Day [Hebrew] (2009), http://www.cbs.gov.il/www/hodaot2009n/11_09_220b.doc; Israel Central Bureau of Statistics, Press Release: Selected Data from Israel’s Statistical Yearbook No. 61 [Hebrew], 2010, http://www.cbs.gov.il/www/hodaot2010n/11_10_207b.doc; Israel Central Bureau of Statistics, Israel’s Population, 1990-2009 – Demographic Characteristics [Hebrew] (2010), http://www.cbs.gov.il/www/statistical/isr_pop_heb.pdf).Israel is therefore undergoing a revolution with regard to the scope of its elderly population, and these changes have a profound impact on both social and legal aspects of life (Israel Doron, “Old Age and Economic and Social Rights: the Reciprocal Relationship between the Aging of Israeli Society and the Status of Economic and Social Rights in Israeli Law” [Hebrew], Economic, Social and Cultural Rights in Israel, 893, 896 (Y. Rabin, V. Shani, eds., 2004) (hereinafter: Doron)). The marked change in the scope of the elderly population gives rise to changing social needs that did not exist in the past. The expansion of the population group of senior citizens and the considerable increase in life expectancy emphasize, more than in the past, the need to protect the rights of elderly people to a dignified existence, standard of living and lifestyle, and recognition of their social status and their ability to contribute to society as long as the state of their health allows. A broad social stratum is arising, which was not recognized in the past, whose needs in various areas of life must be addressed by society. It is also necessary to adapt the resources and tools available to the Court to ensure proper protection for the elderly (for a description of the demographic revolution that is taking place and its dramatic effect on the nature of labor relations, see: Tal Golan and Israel Doron, “The Rise and Fall of the Halamish Case: ‘Residence’ and the Right to Old-Age Pensions in the Era of Globalization and Aging” [Hebrew], Mishpat u-Mimshal X (2) 637, 641 (2005)).

36. As part of the social development in question, a broad social concept is in the process of formulation. This concept aims to ensure solidarity and mutual support among the various age groups in society, based on recognition of the need to maintain reciprocal responsibility between intergenerational groups, on the assumption that the members of each age-based stratum in society can be expected to move up the scale as the years go by, and eventually to reach their declining years. Arising in this changing reality is an extensive population stratum with special needs, which requires the formulation of a social and legal infrastructure to meet those needs. The aging of the population and the significant increase in life expectancy poses new challenges for society and the law. Principles of intergenerational reciprocal responsibility, founded on respect for senior citizens and concern for their needs, require the adjustment of social and legal patterns to the dynamic, changing reality.

37. The needs of the elderly are reflected in various areas of life, but the most basic need concerns the means of subsistence that are left to them, which are intended to ensure that they live through old age with dignity. The right to human existence with dignity is linked to and interwoven with the right to economic subsistence with dignity. If a person’s basic right to economic subsistence is violated in his old age, his constitutional right to human dignity is also liable to be violated (HCJ 5578/02, Manor v. Minister of Finance, IsrSC 59 (1) 729, 736 (2004); LCA 4905/98, Gamzo v. Yishayahu, IsrSC 55 (3) 360, 375-376 (2001); HCJ 161/94, Atari v. State of Israel (unpublished, March 1, 1994)). The existence of a multi-age society, which is continuing to develop as a result of the demographic changes taking place, calls for the existence of inter-age solidarity as an essential element in securing social dignity for the various age groups in society (Ben-Israel, Senior Citizens, at 230-231). Indeed, “a society that includes senior citizens who do not have sufficient means of subsistence, or whose means of subsistence are uncertain or irregular – such a society is devoid of human dignity, because it deprives individuals of the possibility of being active partners in the social and economic life of the society in which they live” (Ruth Ben-Israel and Gideon Ben-Israel, Who’s Afraid of the Third Age [Hebrew] 113 (2004) (hereinafter: Who’s Afraid of the Third Age)). Ensuring reciprocal responsibility and brotherhood in society therefore necessitates giving senior citizens, like any other individual in society, means of subsistence that will ensure their right to human and economic dignity.

38. One of the pivotal strata in the economic and social system – a stratum intended to provide social security to Israel’s aging population – is that of the occupational pension, which is designed to prevent a steep decline in the standard of living of people once they reach old age, by maintaining a reasonable ratio between their income before and after reaching old age. From a conceptual standpoint, occupational pensions confer eligibility for a secure pension allowance upon people after they retire from work and for the rest of their lives. However, not only do some of Israel’s elderly not benefit from pension insurance (thus, for example, it has been estimated that, as at 2000, approximately one-half of Israel’s civilian labor force did not have such insurance); the pension insurance itself suffers from a number of basic problems and does not always guarantee economic security for the elderly or protect their right to existence with dignity (Doron, at 903-905; for a description of various basic problems in the field of pension insurance, see id., at 905-910). Furthermore, the pension insurance that is given to workers cannot fulfill its purpose over time if it is not formulated to adapt itself to life’s changing circumstances: “In order to ensure that the pension will be able to fulfill its purpose and provide senior citizens with an alternative to the loss of their possibility to earn from work, it is necessary to ensure that it does not become eroded. ... Pension erosion is liable to push senior citizens below the poverty line, even though, throughout their active lives, they worked and did everything that was necessary to ensure their social security after retirement ... As long as fixed, normative, appropriate mechanisms are not established to keep pensions and old-age allowances from eroding, the social dignity of senior citizens will not be secured” (Who’s Afraid of the Third Age, at 105). In this reality, it is essential to give pensioners effective power to secure their economic and social status to make use of recognized legal means, including negotiations with the employer or the pension fund in order to adapt the pensions to the changing conditions of life, especially insofar as pensions are classified as a long-term contract that requires periodic adjustments, based on the wishes of the parties (cf. Gideon Hollin, “Adjusting Employment Contracts and Collective Agreements to Changing Situations” [Hebrew], Menahem Goldberg Commemorative Volume [Hebrew] 288 (2001); David (Freddie) Ronen, Adapting Contracts to Changing Circumstances [Hebrew], 103-109 (2001)).

The representation of pensioners by a workers’ organization – the aspect of freedom of association and organization

39. One of the definitive expressions of the integration of pensioners as a group into the protected social system is reflected in the existing recognition of the power of workers’ organizations to represent pensioners who have retired from the workplace. This representation is recognized in labor law worldwide and in Israel. It basically stems from the principle of freedom of association and organization, which was recognized as early as 1948, within the framework of the Convention Concerning the Freedom of Association and Protection of the Right to Organize. The provisions of Section 3 of the Convention give employees and employers complete freedom to organize in order to promote their rights, and forbid the authorities from imposing limitations upon that right. The freedom of association and the freedom of organization have also been recognized as basic rights in Israeli case law:

The right to associate is ‘one of the human freedoms’... It is deeply anchored and well protected in case law ... both generally and with regard to the right to associate in a workers’ organization... The right to associate in a workers’ organization has been recognized in international conventions... Indeed, in Israel as well, workers, whoever they are, are entitled to establish an organization according to their choice and with no need for previous authorization (Amit Case, at 94-95 (Justice Zamir)).

40. Besides being an independent basic right, the right to freedom of organization within the framework of a workers’ organization fulfills the human right to dignity: “Workers’ organizations play an essential role in regulating labor relations and promoting workers’ rights. Through them, a balance is achieved between the worker’s individual weakness and the employer’s economic strength, thus preventing the exploitation of weakened workers to the point of violating their dignity” (Hani Ofek-Gendler, “Organization for Soldiers – Has the Time for Change Come in Israel?” [Hebrew], Mishpat ve-Tzava XIX 117 (2007)). At the international level, the right to organize is perceived as a framework right, which is composed of three complementary rights: the right to organize; the right to conduct collective negotiations; and the right to strike (Ruth Ben-Israel, “Strikes as Reflected in Public Law: Strikes, Political Strikes and Human Rights” [Hebrew], Berenson Commemorative Volume [Hebrew] 111, 112 (Volume III, 2007) (hereinafter: Ben-Israel, Strikes as Reflected in Public Law)). However, the question of whether a workers’ organization will be recognized as such for the purpose of a certain law is a separate question, which depends on the purpose that the law in question was meant to achieve.

41. For many years, workers’ organizations in Israel have included pensioners from the workplaces within their ranks, as reflected in the articles of association of various workers’ organizations. This appears in the articles of association of the University, in the matter before us, and in the articles of association of the Histadrut as well. For quite some time, the case law of the National Labor Court has recognized pensioners’ membership in workers’ organizations and the role of the organization in protecting the pensioners’ rights. Thus, for example, the National Labor Court noted, as early as 1975:

We have not heard of anyone who, when he stopped working and became a pensioner, stopped being a member of the workers’ organization to which he had belonged before he retired from the workplace – in contrast to membership in a trade union; and it is reasonable to assume that the workers’ organization in question – in this case, the General Federation of Labor – was capable, through its appropriate agencies, of looking after the affairs of members who had stopped working and had become pensioners. Obviously, what is meant here is representation within the framework of negotiations for determining rights. But if what is meant is securing rights and imposing obligations in a collective arrangement with legal validity, there is no other solution than by way of legislation... (National Labor Court File 3-18/35, Israel Electric Corporation Ltd. – Pravosky, IsrNLC VI 253, 269 (1975) (hereinafter: the Israel Electric Corporation Case)).

In (National) Labor Court Appeal 300040/98, Shekem Pensioners’ Organization – Shekem Ltd., IsrNLC XXXVII 289 (2002) (hereinafter: the Shekem Pensioners’ Organization Case), the National Labor Court also addressed the question of the power of a workers’ organization to represent pensioners, in these words:

The Israeli model of a workers’ organization is broad in scope and includes activity on behalf of the pensioners... It has already been ruled that handling the determination of pension terms falls within the realm of the legitimate activity of a workers’ organization. Chapter XI of the Constitution of the General Federation of Labor empowers the Pensioners’ Federation to take measures for the sake of pensioners’ rights in the realm of pensions. A pensioner can be a member of a workers’ organization, and a workers’ organization can include a section or an extension that handles the affairs of the veteran pensioners... Accordingly, in addition to representing workers, which is the main function of the workers’ organization, the workers’ organization is also authorized to represent the pensioners, under certain circumstances and within certain limits (id., at 301-302).

42. The question of extending membership in a workers’ organization beyond the active workers who are its members was addressed by this Court in the Amit Case. According to that judgment, the ability of a workers’ organization to represent the pensioners among its members should be recognized. However, for a workers’ organization to be recognized as having the status required for the Collective Agreements Law and the Settlement of Labor Disputes Law, membership in the organization must be voluntary and reflect the member’s right to join and to withdraw from the organization. Furthermore, the majority of the organization’s members must be active workers in the employer’s service, because the organization’s principal role is to represent the workers’ affairs vis-à-vis the employer and to promote and improve their working conditions by way of collective negotiations. This means that a workers’ organization that is recognized for the purpose of the labor laws in the field of collective agreements and resolution of labor disputes is an organization whose major function is to represent active workers and to take measures to promote their working conditions, whereas representation of pensioners and their affairs, although it is recognized, is not essential. Indeed:

A workers’ organization in which a large part of the members are not wage-earning workers, is a contradiction in terms, and not only from the linguistic standpoint, but from the substantive standpoint as well. This is because, as stated, a workers’ organization, as this term is used in labor laws and according to the purpose of these laws, is an organization whose principal function is to represent the workers vis-à-vis their employer – and the workers, of course, are wage-earners (id., at 108).

The difficulty in recognizing an organization with many members who are not active workers lies in the concern that it is liable to split its loyalties between its activity at the collective level and other activities, and this is not proper conduct, in the opinion of the Court in the Amit Case. However, the judgment in the Amit Case did not negate the status of a workers’ organization for the purpose of the relevant labor laws, when it has a minority of members who are not active workers, and especially when this minority is composed of the pensioners of the workplace, who were active workers and members of the organization before they retired from work.

43. The representation of the pensioners’ interests by the workers’ organization has two aspects: one, at the stage when the worker is still active in his workplace and wishes to ensure a proper standard of retirement conditions before he leaves his work; and the other, after the worker retires, when he has to ensure that the standard of his retirement conditions will be preserved and will not be eroded and, if necessary, will be adapted to the changing conditions of Israel’s economic, social and financial situation.

The representation of the pensioners’ interests by the workers’ organization, including both of these aspects, is closely linked to workers’ rights – both before and after they retire from work. The shaping and formulation of workers’ retirement rights are inextricably tied to the workplace and the period of the work, and are primarily governed within the active years of work. Even after retirement, in most cases, pensioners maintain an ongoing relationship with the workplace, not only in the intergenerational joint activities for the institution’s employees, but also in the context of the continuous and constant concern that the employer is required to exercise in preserving the pensioners’ rights and status. It is only natural for the workers’ organization that represented the workers during their working years, and took care, inter alia, to formulate the retirement conditions to which they could look forward, to extend its protection to them after their retirement as well and to be in charge of exercising their rights and preserving their status after they leave the workplace. In this way, the workers’ organization constitutes the natural link between active workers and workers who have retired, and the continuity of protection that it gives its members in the intergenerational transition from one stage to the next in the workers’ lives is an obvious and natural part of the concept of the workers’ right to organize for the purpose of protecting their rights.

44. The National Labor Court judgment discloses data – which cannot be disputed – showing that the prevailing reality, from the standpoint of customs that are generally accepted and recognized in society, is that, in many workers’ organizations, pensioners are among the organization’s members even after they retire; the close cooperation between the actual workers and the pensioners of the workplace is an existing fact; in many workplaces, the continuous ties between the employer and the pensioners are preserved by means of a collective agreement, a personal contract or internal regulations, which express these ties; in many cases, a collective agreement includes conditions that refer to pensioners, and in the prevailing reality, workers’ organizations that include pensioners actually conduct negotiations on the pensioners’ rights within the framework of collective agreements; frequently, pensioners even continue in vocational activity in their former workplaces, and the institutions of higher education are a typical example of this.

45. The expansion of the elderly stratum of the population, the need to protect the rights of those belonging to this social stratum, the close ties between pensioners and their former workplace, and the close affinity between active workers and pensioners from the standpoint of the interest in protecting retirement rights, confer upon both the pensioners and the workers’ organization an explicit interest in having the organization represent the affairs of the pensioners among its members. This phenomenon is well known in society and under law, in Israel and worldwide. The phenomenon of intra-organizational frameworks that handle pensioners within the workers’ organization is also known in Italy, and finds support in the mechanisms of the European Union as well (Ben-Israel, Senior Citizens, at 246; on the important contribution made by workers’ organizations in securing pensioners’ substantive rights, see: id., at 247).

The means available to the workers’ organization for the purpose of representing its members’ affairs

46. The workers’ organization is basically intended to give workers the power to enable them to deal collectively with the employer’s power. Recognizing the organization’s status as the representative of the group of pensioners among its members, in order to protect their rights, in any event means recognizing the organization’s power to conduct negotiations with the employer in the context of retirement rights, not only with regard to active workers who have not yet retired, but also with regard to workers who have already retired, as long as they remain members of the organization. Recognizing the existence of this power also means recognizing the organization’s power to use the means made available to it by the law for the purpose of conducting collective negotiations and obtaining a collective agreement. If this power of the organization is not recognized, the pensioners’ affairs remain with no real protection. The collective agreement is what makes the protection of the pensioners’ rights real, and the means available to the workers’ organization for achieving the collective agreement and safeguarding its arrangements are the true expression of the existence of solidarity regarding the protection of pensioners as a group.

47. The principal means available to the workers’ organization in its struggle to promote the workers’ interests is collective activity. In the Amit Case, the Court defined the principal means available to the workers’ organization for the purpose of collective activity, as follows:

The organization conducts collective negotiations with the employer, or with an employers’ organization, with a view to signing a collective agreement that will determine the working conditions of the organization’s members, or of all of the employees in the workplace or the industrial sector. In the event of a dispute between the workers and the employer, the workers’ organization can exercise its collective power through sanctions against the employer, primarily by means of a strike (id., at 91).

Without the power to conduct collective negotiations with a view to signing a collective agreement and, in the case of a dispute, to exercise the collective power through the means available to the organization, including a strike, the organization would be deprived of the effective power to fight for the achievement of its objectives and to achieve results in its fight.

48. Recognizing the organization’s power to represent the affairs of the pensioners among its members assumes, prima facie, that the organization has the power to “exercise its collective power through sanctions against the employer, primarily by means of a strike,” (Amit Case, id.) inter alia, in order to promote the affairs of the pensioners represented by it. This assumption is reinforced by the status of the right to strike as a right with a supreme normative status, which also impacts the nature of the means available to the organization in its struggle on behalf of the pensioners’ affairs.

The right to strike

49. As in many other countries across the globe, the rights of strike and lockout in Israel are not explicitly specified by law, nor does legislation provide an explicit definition of the term “strike” (Menahem Goldberg and Nahum Feinberg, Labor Law [Hebrew], Volume III, Chapter 5, at 3-4 (50th edition, 2010) (hereinafter: Goldberg and Feinberg)). In case law, “strike” has been defined as “a coordinated act of pressure, conducted by a group of workers within the framework of the workers’ professional struggle with an employer for the purpose of achieving demands related to the terms of their employment or related to the demands of other workers that were presented to their employer” (HCJ 525/84, Hatib v. National Labor Court, Jerusalem, IsrSC 40 (1) 673, 701 (1986) (hereinafter: the Hatib Case)). A strike is held to be “a coordinated collective refusal to perform work in an attempt to influence the employer with regard to labor relations or working conditions” (Guy Mondalek, “Quasi-Political Strike, Quasi-Political Teaching: Thoughts on Legal Distinctions and Their Teachings” [Hebrew], Iyyune Mishpat Hebrew] XXV (2) 343, 346 (2001) (hereinafter: Mondalek)); a striker is a person who, “without breaking his work connection with his employer, stops working, together with other workers, in order to achieve his demands from his employer or in order to help other workers achieve their demands from their employer” (CA 573/68, Shavit v. Hanan, IsrSC 23 (1) 516, 520 (1969) (hereinafter: the Shavit Case)). A strike does not sever the labor relations; rather, it is part of the worker’s professional struggle (Hatib Case, id.). The starting point is that workers are given freedom to strike, but in order for said freedom to be recognized, without the workers being exposed to the risk of actions for damages caused by the strike, certain conditions must be fulfilled so that the strike will be considered to be protected (Mondalek, id.; for another definition of “strike,” see also: Ben-Israel, Strikes as Reflected in Public Law, at 112-113); for the meaning of an unprotected strike and its consequences, see, inter alia: Goldberg and Feinberg, at 16-17; Sections 37a-c of the Settlement of Labor Disputes Law).

50. The right to strike is basically a social right, which is held to be of special normative value (Ruth Ben-Israel, Strikes and Lockouts as Reflected in Democracy [Hebrew] 77 (2003) (hereinafter: Ben-Israel, Strikes and Lockouts)). In order to anchor the right to strike in a direct constitutional provision, it would have been necessary to promote the legislation of Basic Laws concerning social rights – a course of action that has not yet borne fruit in Israel, notwithstanding repeated attempts. Nonetheless, despite the fact that the right to strike has not yet been expressly anchored in a Basic Law, it is considered to be a basic right that is not anchored in the statute book (HCJ 1074/93, Attorney General v. National Labor Court, Jerusalem, IsrSC 49 (2) 485, 496-497, 507 (1995) (hereinafter: the Bezeq Case); (National) Collective Dispute Appeal 25/07, Israel Electric Corporation Ltd. – New General Federation of Labor in Israel, paragraph 18 (unpublished, January 27, 2008); Goldberg and Feinberg, at 3; cf.: CA 593/81, Ashdod Vehicle Enterprises Ltd. v. the late Tzizik, IsrSC 41 (3) 169, 190-192 (1987); CA 25/71, Feinstein v. Secondary School Teachers’ Organization, IsrSC 25 (1) 129, 131 (1971)).

The right to strike has been recognized at the international level as a universal human right (Section 8 of the International Covenant on Economic, Social and Cultural Rights, 1966; Ben-Israel, Strikes as Reflected in Public Law, at 112)). This is a right of a constitutional nature, which reflects social values of supreme importance. From the beginning, the right to strike has been perceived as a right derived from the very essence of collective labor relations and the recognition of the freedom to organize, which is recognized in our legal system as a basic right that is fundamentally linked to the value of human dignity (Goldberg and Feinberg, id.). A question has arisen as to whether it is possible to include the right to strike among the basic rights anchored in the Basic Laws, as “framework rights,” such as the human right to dignity (Ben-Israel, Strikes as Reflected in Public Law, at 130). There is an approach that holds that the human right to dignity pursuant to Section 2 of Basic Law: Human Dignity and Liberty also extends, inter alia, to the workers’ right to a dignified existence, from which the right to strike – which is an essential means of ensuring the exercise of the right to a dignified existence– is derived. On the relationship between the right to strike and human dignity, Prof. Barak commented in the past:

“Human dignity” must be shaped as a basic constitutional value that has an independent existence of its own. It must not be restricted... It must not be expanded... What we have before us, then, is a rather broad ‘living space,’ within which the Courts – and primarily the Supreme Court – will shape the scope of human dignity in the modern State of Israel. They will have to confront many and varied problems, such as the question of whether a worker’s right to strike and an employer’s right to lock out fall within the human dignity of the worker and the employer (Aharon Barak, “Human Dignity as a Constitutional Right” [Hebrew], Hapraqlit XLI (3), 271, 285 (1994); emphasis added).

Parenthetically, he added, to preclude all doubt, that: “The right to strike is a basic human right. ... The realm of doubt is whether it is included in ‘human dignity’” (id., loc. cit.). In his book on constitutional interpretation, Prof. Barak also referred to the issue of the constitutionality of the right to strike, in the following words:

It appears to me that it is appropriate to argue that, in fact, the workers’ right to strike and the employers’ right to lock out are derived from human dignity. This expresses the autonomy of their individual will. From the workers’ point of view, what is expressed is their right to associate and to realize their professional struggle through striking. From the employers’ point of view, what is expressed is their freedom of occupation (Aharon Barak, Interpretation in Law – Constitutional Interpretation, 431 (Volume III, 1994)).

51. The developments in case law have established that it is possible to include within human dignity various situations that are closely related to human dignity as expressing “autonomy of individual will, freedom of choice and freedom of action, and similar aspects of human dignity as a constitutional right” (HCJ 6427/02, Movement for Quality Government in Israel v. Knesset, paragraph 38 of the ruling by President Barak (unpublished, May 11, 2006)). It may be said that the workers’ right to strike as part of their struggle for their working conditions, their wages, their standard of living and the retirement conditions to which they are entitled touches on the core of the right to human dignity, and is not merely marginal to it. Without the means of striking, the workers and the workers’ organization that represents them lose a considerable portion of their power to negotiate with the employer for their working and retirement conditions. The right to strike is central and essential to the struggle for workers’ and pensioners’ existence and living conditions, to the point that it arguably constitutes part of human dignity.

52. The right to strike can also be regarded as being derived from the right to freedom of occupation, which is protected by Basic Law: Freedom of occupation, and from the right to property, which is protected by Basic Law: Human Dignity and Liberty. The combination of these two rights, on the one hand, embodies the freedom given to human beings to choose their profession and, on the other, confers upon workers proprietary protection, in the broader sense, so that they receive fair consideration for their work, with regard to both the terms of their wages and the terms of their retirement (for the broad concept of freedom of occupation, which also includes the right to reasonable and fair working conditions, see: Aharon Barak, “Basic Law: Freedom of Occupation” [Hebrew], Mishpat u-Mimshal II 195, 200 (2007); HCJ 1/49, Bejerano v. Minister of Police, IsrSC 2 80, 82-83 (1949); Guy Davidov, “The Right to Work as a Community and Individual Right and its Constitutional Potential” [Hebrew], Economic, Social and Cultural Rights in Israel 542 (Y. Rabin, V. Shani, eds., 2004) (hereinafter: Davidov)). As for the aspect of protecting the workers’ proprietary rights, this is also likely to include workers’ general economic interests (cf. e.g.: CA 6821/93, United Mizrahi Bank Ltd. v. Migdal Cooperative Village, IsrSC 49 (4) 221 (1995); National Labor Court File 3-7/98, Moadim – Ministry of Defense, IsrNLC 33 441 (1998)). The principles of freedom of occupation and the protection of workers’ proprietary right therefore have an impact, in the broad sense, on the right to strike.

53. The right to strike is also accompanied by a prominent element of freedom of expression. Freedom of expression has been given a supreme constitutional status in our legal system as a basic right that constitutes a preeminent principle in a democratic regime (HCJ 75/53, Kol HaAm Co. Ltd. v. Minister of Interior, IsrSC 7 (2) 871, 876-878 (1953); HCJ 153/83, Levi v. Southern District Commander, Israel Police, IsrSC 38 (2) 393, 398-399 (1984); HCJ 4804/94, Station Film Ltd. v. Film Control Board, IsrSC 50 (5) 661, 674-675 (1997)). The right to strike encompasses the freedom that is given to workers to express their position and their protest (Davidov, at 536; National Labor Court File 41-27/57, General Federation of Labor – Makhteshim Chemical Enterprises Ltd., IsrNLC 30 449, 459-460 (1997) (hereinafter: the Makhteshim Case)). Protest by workers, which is reflected in the right to strike, therefore carries with it a prominent component of freedom of expression.

54. Case law has referred in the past to the constitutional nature of the right to strike. In the case before us, the National Labor Court noted that the freedom to strike is anchored in the freedom to associate, which is recognized as a constitutional right, and it also tied the right to strike with the human right to dignity, as a way of protecting peoples’ economic status (id., in paragraph 26 of the ruling). In the Bezeq Case, Justice D. Levin commented that: “It appears that the ‘strike,’ which we have always considered to be included among the basic freedoms that are not written in the statute book... will now take shelter under the wings of the value of ‘human dignity,’ which is anchored in this Basic Law” (id., at 497). However, the remaining justices in that case left that question open (id., at 507; see also: Makhteshim Case, at 468; for development in the law on the issue of the freedom to strike from the standpoint of case law, see: Steve Adler, “The Freedom to Strike as Reflected in Case Law” [Hebrew], Berenson Commemorative Volume [Hebrew] 475 (Volume II, 2000) (hereinafter: Adler)).

55. In summary, it can be said that the right to strike is a right with a supreme normative status. There are weighty reasons for perceiving it as a right derived from the statutory constitutional rights in the Basic Laws – the right to dignity, the right to property and the right to freedom of occupation. There is no need for an absolute determination for the purposes of the matter before us here; the determination that this is a basic human right which is a product of case law will suffice.

56. However, it should be emphasized that the right to strike, which is given to employees, is not absolute. There are other important interests that must be considered and balanced against the right to strike. The laws of strikes examine, inter alia, the circumstances under which a strike is legitimate, and seek to create a balance, for this purpose, between the workers’ right to strike, within the framework of their organizational struggle, for the improvement of their living conditions, and weighty conflicting interests; the latter include the harm to the property of the employer against whom the strike is directed, and damage that the strike is likely to cause to third parties and even to the general public. The recognition of a strike as legal and protected requires the creation of proper balances between the strike and the conflicting values. Recognizing the expansion of the right to strike requires consideration of the system of balances set forth above.

Interim summary

57. We have examined the issue of the relationship between a workers’ organization and the pensioners of the workplace, inter alia against the background of the changes and developments that have taken place in the status and needs of Israel’s elderly. We have discussed the power of a workers’ organization to include pensioners from the workplace among its members and to represent them vis-à-vis the employer in matters concerning the terms of their retirement as part of the basic right of organization. We have pointed out that most of the organization’s representative power is reflected in collective activity – i.e., collective negotiations, for the purpose of achieving a collective agreement and preserving the protections that it provides. We have also pointed out that one of the definitive means of promoting the collective activity of a workers’ organization is the means of strike, which is given to employees as a right of utmost importance. Against the background of this infrastructure of principles and values, the question to be asked is: Are all of the means available to a workers’ organization in representing its members who are active workers – the main object of its activity – also available to it with regard to the pensioners among its members? – and, especially: Does a workers’ organization have the power to utilize the means of strike in its struggle to protect pensioners’ rights?

The answer to this question is derived from a purposive interpretation of the labor laws relevant to the matter before us – the Collective Agreements Law and the Settlement of Labor Disputes Law – and from examining the question of whether the existing format of these pieces of legislation denies or supports the power of a workers’ organization to use the means of strike in order to promote pensioners’ affairs. We will now turn to the examination of this issue.

The power of a workers’ organization to use the means of strike to promote pensioners’ affairs – as reflected in the labor laws

58. We will therefore examine the Collective Agreements Law and the Settlement of Labor Disputes Law for the purpose of the following questions: Are the basic provisions of these laws consistent with the representation of pensioners by a workers’ organization, and with its ability to declare a strike to promote their affairs? Do the definition of a collective agreement, and the power of a workers’ organization to engage in a collective agreement, also extend to pensioners’ affairs, and is the meaning of the concept of a “labor dispute,” which has implications for the means that a workers’ organization is entitled to use as part of negotiations for the promotion of its members’ affairs, liable to extend to pensioners’ affairs as well?

59. Section 1 of the Collective Agreements Law defines a collective agreement in these words:

A collective agreement is an agreement between an employer or an employers’ organisation and an employees’ organisation made and submitted for registration under this Law, concerning all or any of the following matters: the engagement of employees or the termination of employment, terms of employment, labour relations, and the rights and obligations of the organisations which are parties to the agreement or any part of these matters (emphasis added).

The Collective Agreements Law distinguishes between a “special” collective agreement, which applies to a specific plant or to a specific employer, and a “general” collective agreement, which applies to all or part of the State of Israel, or one or more specific sectors of employment (Section 2 of the Law). The type relevant to the matter before us is the former; with regard to the scope of an agreement of this type, Section 15 of the Law states as follows:

Scope of Special Collective Agreement

A special collective agreement shall apply to –

(1) The parties to the agreement

(2) The employers represented, for the purposes of that agreement, by an employers’ organization which is a party to the agreement;

(3) All employees of the classes included in the agreement, who are employed in trades or functions included in the agreement by employers who are parties to the agreement or who are represented as specified in paragraph (2) (emphasis added).

Section 19 of the Law concerns the rights and duties of workers and employers in a collective agreement:

Rights and obligations of employee and employer.

Provisions of a collective agreement concerning terms of employment and termination of employment, and personal obligations imposed on, and rights granted to, an employee and employer by such provisions (hereinafter referred to as “Personal Provisions”), shall be regarded as a contract of employment between each employer and each employee to whom the agreement applies, and shall have effect even after the expiration of the collective agreement, so long as they have not been validly varied or cancelled; participation in a strike shall not be regarded as breach of a personal obligation (emphasis added).

The Settlement of Labor Disputes Law defines a “Labor Dispute” to which the Law applies and which, in any event, has implications for the question of whether or not a strike initiated within its framework is protected. The term “Labor Dispute” is defined in Section 2 of the Law as follows:

For the purpose of this Law, "labour dispute" means a dispute as to any of the matters enumerated hereunder arising between an employer and his employees or part of them or between an employer and an employees' organisation or between an employers' organisation and an employees' organisation, but does not include an individual dispute; the matters in question are:

(1) the conclusion, renewal, alteration or cancellation of a collective agreement;

(2) the determination of terms of employment;

(3) the engagement or non-engagement of employees and the termination of employment.

(4) the determination of rights and obligations arising from employer-employee relations (emphases added)..

60. The questions that arise in the matter before us are as follows: Are the language and purpose of the Collective Agreements Law and the Settlement of Labor Disputes Law consistent with the possibility that a workers’ organization will be a party to a collective agreement that concerns pensioners’ social benefits, and will therefore have a status that enables it to conduct collective negotiations on pensioners’ affairs? And is the existing legal concept with regard to a “Labor Dispute,” as this term is defined in the Resolution of Labor Disputes Law, consistent with the existence of such a dispute with respect to pensioners’ affairs, or are the concepts and purposes in the laws in question intended for the affairs of active workers only, thereby entirely excluding pensioners’ affairs from the scope of these concepts? In other words: What is the breadth of the “interpretive margins” for concepts such as “termination of work,” “working conditions,” “labor relations,” “workers,” and “the establishment of rights and duties that arise from an employer-employee relationship,” which appear in the Collective Agreements Law and the Settlement of Labor Disputes Law, in the context of the definition of a “collective agreement” and the concept of a “labor dispute,” and are they likely to include pensioners’ affairs as well, or do the language and purpose of these laws require the application of these provisions to collective agreements and labor disputes that refer to active workers only?

Obviously, insofar as the provisions of these pieces of legislation can also be applied to pensioners, then, subject to fulfillment of the conditions they stipulate, it will also be possible to declare a protected strike within the framework of a “labor dispute” that is recognized under Chapter IV of the Settlement of Labor Disputes Law, for the purpose of promoting the affairs of pensioners who are members of the organization.

61. As we have seen, a collective agreement applies, by definition, in matters related to hiring a person for work, termination of his work, working conditions and labor relations (Section 1 of the Collective Agreements Law); the scope of a special collective agreement applies to all the workers of the types included in the agreement, who are employed by the employer (Section 15 of that Law); the definition of rights pursuant to a collective agreement is attributed to a worker and an employer (Section 19 of that Law); a labor dispute is a dispute that has broken out between an employer and workers or a workers’ organization that is bound by a collective agreement, and relates, inter alia, to the hiring or not hiring of a person or the termination of his work, and with the establishment of rights and duties arising from an employer-employee relationship (Section 2 of the Settlement of Labor Disputes Law).

62. From the literal, narrow wording of the text, it seems that the laws in question are directed toward governing the labor relations between the employer and the active workers, through the workers’ organization. This is true of a collective agreement and the definition of its subjects, its purview, and the nature of the rights that it grants; this is true of the definition of a labor dispute, which refers to the relationship between the employer and the active workers in the context of matters related to the collective agreement, and of other subjects related to the active working relationship between them.

63. However, the process of interpreting the wording of the law does not end with a technical examination of the language of the law. Expressions that appear in the law may have different meanings in different contexts. In order to ascertain that meaning, we must examine the context of the expression and its connection to the subject and purpose of the legislation:

In principle, every expression has a special meaning in a specific context, according to that context. Therefore, the meaning of the same expression may vary from one context to another, according to the environment in which the expression lives, according to the purpose of the law into which it is inserted and according to other interpretive considerations (Amit Case, at 97 (Justice Zamir)).

And also:

One of the rules of interpretation is that a certain expression may be interpreted in different ways in different pieces of legislation, in accordance with the purpose of each of the pieces of legislation, the context in which the expression appears and various other tests (CA 480/79, A. Trager Investment and Construction Co. Ltd. v. Customs Collector, Jerusalem, IsrSC 35 (2) 303, 306 (1981)).

When interpreting the expressions and concepts in legislation, weight should be given to both the purpose of the law and the nature of the material with which it deals, both of which affect the degree of flexibility and dynamism that is likely to accompany the interpretation of the expression, as well as to developments and changes that take place in the natural environment in which it lives and operates (HCJ 1583/94, Saroussi v. National Labor Court, IsrSC 49 (3) 469, 475 (1995)). The field of labor law is known for its dynamism and the rapid changes that take place within it. This has an effect, inter alia, on the interpretation of expressions and definitions that appear in it. The dynamism that characterizes labor law has been expressed, for example, in extreme flexibility in interpreting the term “worker” in various contexts and for various needs, according to the purposes of the legislation and the changing social concepts (CA 502/78, State of Israel v. Nissim, IsrSC 35 (4) 748, 758 (1981); HCJFH 4601/95, Saroussi v. National Labor Court, IsrSC 52 (4) 817 (1998)). The need for a practical interpretation of concepts and definitions in the law, with a view to the changing times and the conceptual and systemic transformations that have taken place, has also been pointed out by the Court in the context of interpreting terms in criminal norms – notwithstanding the unique characteristics of the interpretation of a criminal norm, due to the principle of legality and interpretation favoring lenience for the accused within its framework. Thus, for example, the interpretation of the definition of “public employee” was expanded for the purpose of the offense of bribery, inter alia, against the background of the privatization processes that took place in Israeli society and the social concepts that changed (CrimFH 10987/07, State of Israel v. Cohen (unpublished, March 2, 2009)). In that case, I pointed out the need to adapt the interpretation of concepts and definitions in the law to the changing times and the dynamic of life:

A purposive interpretation of an act of legislation, by its very nature, is forward-looking and encompasses the inherent need to adapt the legislative arrangement to the changing times, and to the social needs that arise from time to time, all within the framework of the purpose that the law seeks to achieve. The integration of changing needs into the framework of the purpose of the law is not only consistent with the purpose of the law. It is inherent to the very core of the purpose itself  ‘its flesh and blood’. Severing the purpose from the changing needs and the changing dynamic of life freezes the purpose at a historic point in time, and adherence to that point is liable to impair attainment of the purpose of the law, and lead to missing the mark that the legislation aimed to achieve. Within the framework of the possible linguistic options of the written text, it is necessary and proper to implement the purpose of the law in order to truly and completely accomplish its objectives (id., paragraph 2 of my opinion).

A similar interpretive approach – possibly a fortiori – should also be adopted in the matter that is being heard before us.

64. The basic purpose of the Collective Agreements Law and the Settlement of Labor Disputes Law is to enable, through the collective workers’ organization, the protection of the workers’ rights vis-à-vis the employer. Indeed, the focus of the protection is directed toward active workers, with regard to both the terms of their wages and the terms of their retirement, which are formulated while they are still workers. Yet, in order for this focus of protection to accomplish its complete purpose, there is a need to extend the protection provided by the workers’ organization to the stage of exercise of the retirement rights, in the broad sense, after the worker has retired from his work. Without protection of the status of workers who have retired, the protection of their rights, in the broader and deeper sense, is harmed, and precisely at the stage when they are especially in need of representation by a strong entity that will concern itself with their fate. The considerable growth of the retired population has led to establishment of the concept that the role of the workers’ organization is not limited to protecting only active workers, but rather, should also be extended to workers who have retired, for the purpose of preserving their status and their dignity. This reality affects the proper interpretive approach, which is affected by the profound changes that have taken place in the reality of life and by the need to adapt the concepts of the law to those changes, in order to achieve their true purpose (HCJ 4948/03, Elhanati v. Minister of Finance, paragraphs 7-8 of my opinion (unpublished, June 15, 2008) (hereinafter: the Elhanati Case)). The view of active workers and pensioners as two links connected to each other by way of an intergenerational bond, both of which have a direct affinity to the workplace as the source from which the retirement rights have derived, justifies an expansive interpretation of the various concepts that appear in the labor laws, in such a way as to ensure that those concepts include, in the practical context, not only active workers, but also workers who have become pensioners. The purpose of the Collective Agreements Law and the Settlement of Labor Disputes Law will not be accomplished in its entirety if the protection that those laws give to workers is limited to the stage of their active employment and the stage of formulation of the retirement conditions, but is removed from them after they have retired, at the stage in which the pensioners’ retirement conditions must be fulfilled and their economic and social status must be protected. Protecting the fairness of the retirement conditions is required during the stage of the workers’ active work, and is a fortiori required after the workers retire; the creation of an artificial barrier between today’s workers and tomorrow’s pensioners undermines the purposes of the laws and does not promote them; leaving pensioners without the protection of the organization means creating retirement rights during the existence of the employer-employee relationship, without granting effective means of protecting the exercise of those rights, through an organized entity, and preventing their erosion after the date of retirement. This, in turn, means that the pensioners will be left as a weak group, devoid of any organized power to protect its status and its rights. A legal interpretation that negates the power of the organization to represent pensioners’ affairs undermines, at least in part, the purposes for which the workers’ organization operates, and leaves those of its members who are pensioners with no real power to protect their legitimate rights during their retirement years. It should not be assumed that this was the purpose of the relevant labor laws.

65. The purpose of the relevant labor legislation therefore justifies the extension of the Collective Agreements Law and the Settlement of Labor Disputes Law, not only to actual workers, but also to pensioners who are members of the workers’ organization, for certain specific purposes. The various expressions that appear in these pieces of legislation are subject to such expansive interpretation. Thus, under certain conditions, and for certain purposes, the term “worker” may also be extended to a pensioner, in his capacity as a worker who retired, due to the close connection between a former worker and an active worker, and given that both of them are entitled to the protection of their status – one as a worker in the present, and the other as a worker in the past and a pensioner today. The terms “termination of work,” “working conditions” and “labor relations,” which are included among the issues to which a “collective agreement” is likely to apply according to its definition in Section 1 of the Collective Agreements Law, should be broadly interpreted as also applying to the affairs of pensioners, members of the organization, who were formerly active workers: “termination of work” is a term that is likely to encompass the retirement conditions related to the termination of a worker’s employment, which are relevant to both the stage of their creation, during the existence of the employer-employee relationship, and the stage of their realization, when the worker retires. “Labor relations” is a broad term, which also includes workers’ retirement conditions both when they arise and when they are realized. Moreover, the applicability of the special collective agreement to “all the workers of the types included in the agreement,” as set forth in Section 15 of that Law, is likely to include pensioners within the expression “workers” as people who were workers in the past and who need protection of their rights that were formulated by virtue of their [former] status as active workers; the same applies to the details of workers’ and employers’ rights and duties, in Section 19 of the Law, which includes, inter alia, matters related to “termination of work” and “working conditions.” A broad interpretation that is suitable for the purpose, requires that these concepts be interpreted as applying not only to the affairs of actual workers, but also to the affairs of pensioners in their capacity as former workers, who are members of the workers’ organization. It should be noted that the case law of the National Labor Court has already given a broad interpretation to the term “working conditions” in the definition of a collective agreement, as including, inter alia:

Conditions under which a person will retire from his work, such as severance pay, pension and other retirement allowances, in the meaning thereof. To what does this refer? To benefits that are promised to the employee as a condition of his work. By the very nature of these, they shall apply even after the expiry of the contract period, and even after the employer-employee relationship between the holder of the right and the entity required to grant it has ceased to exist (National Labor Court File 7-2/33, State of Israel – Rosenblatt, IsrNLC 5 42, 48 (1973)).

This is directed not only at retirement conditions that were established while the person was serving as the “worker,” but also to retirement conditions that were established after he retired from his work.

The term “labor dispute” in the Settlement of Labor Disputes Law should be interpreted in the same vein, thereby establishing that matters related to the signing, renewal, modification or cancellation of a collective agreement are also likely to apply to pensioners; matters related to the termination of work are also likely to refer to pensioners; and the establishment of rights and obligations that arise from an employer-employee relationship is also likely to refer to pensioners, since the retirement rights arise from the employer-employee relationship, and the same applies to the exercise of those rights upon retirement. The definition of “labor dispute” is likely to include aspects related to the protection of pensioners’ rights, either in the framework of an issue related to a collective agreement dealing with that issue or in the framework of issues related to the “termination of work” of a certain person or the establishment of rights that “arise” from an employer-employee relationship. The term “termination of work” is broad in scope and includes issues that refer to pensioners’ rights, which originate in the employer-employee relationship, and which are implemented in practice at the time of retirement. Retirement does not sever the connection between the worker and the employer; that connection continues even after the work has ceased, if only for the purpose of compliance with the rights related to the retirement conditions. The actual labor relations are replaced by a different type of relationship and connection between the pensioner and the employer, which also require representation. Furthermore, the term “rights and duties arising from an employer-employee relationship” is also broad enough to include the rights of pensioners, whose retirement conditions arise from the labor relations that preceded the retirement.

Applying the term “labor dispute” to matters that concern pensioners’ rights imports into the dispute the means that the law makes available to the workers’ organization, for the purpose of promoting its members’ affairs, including the means of strike.

66. It is therefore possible to see that the purposive interpretation of the Collective Agreements Law and the Settlement of Labor Disputes Law do not negate the ability of the workers’ organization to represent the pensioners among its members and to include pensioners’ affairs in the issues for which the organization can conduct collective negotiations, and even to engage in a collective agreement on those issues. They also do not rule out the possibility that the pensioners’ affairs will constitute the subject of a labor dispute. As a direct result, the laws in question do not negate the power of the workers’ organization to utilize the means of strike, within the framework of a labor dispute, for the purpose of promoting the affairs of the pensioners among its members. The interpretive flexibility of these laws, which is required in light of the purposes they seek to accomplish, leads to the outcome that they are not only capable of providing effective protection for the rights of active workers vis-à-vis the employer, but also of providing proper representation for former workers who have retired, whose rights were established, for the most part, prior to their retirement.

67. Needless to say, the broad concept of an “employer-employee relationship” as including the affairs of pensioners for certain purposes, characterizes not only substantive labor law, but also the rules of procedural jurisdiction in the field of labor law. The Labor Court, within the framework of its exclusive jurisdiction, adjudicates matters connected with employer-employee relations. Within this framework, it also adjudicates pensioners’ affairs, although the employer-employee relationship between them and their employer ended upon their retirement. The fact that the Labor Court adjudicates the affairs of pensioners is consistent with the concept that issues related to retirement conditions are still considered an integral part of labor relations. The concept of procedural jurisdiction with regard to labor relations is broad and purposive.. Since the relationship between pensioners and the employer basically resulted from labor relations that prevailed between them prior to the retirement, and given the existence of a connection between the pensioner and the employer by virtue of the previous labor relations between them, actions by pensioners against the employer are perceived as matters within the unique jurisdiction of the Labor Court, as stated above (Elhanati Case). In the Shekem Pensioners’ Organization Case, the Labor Court ruled as follows:

Section 24 of the Labor Court Law gives the Labor Court extensive jurisdiction to adjudicate matters connected with the relationship between an employer or an employers’ organization and workers or a workers’ organization. In the earliest days of the Court... it was ruled, in the Beersheba Municipality Case, that the test for interpretation of its jurisdiction would be ‘... the “purposive interpretation,” i.e., the interpretation that is intended to promote the legislators’ purpose’ (id., at 256). The ruling stated that the interpretation of the term ‘“labor relations,” not in the technical-institutional sense... but the broad meaning of the term, refers to all the reciprocal relations between workers, employers and the state authorities. These relations are governed by a system of rules, including rules that determine the status of the active entities – the workers, their employers and their organizations; “labor relations” are nothing more than part of the “work system,” i.e., the system of societal, economic and value-based relations that are centered on “work” (id., at 256-257...).

When implementing this policy at the personal level, it was established that the Labor Court has jurisdiction to hear actions between an employer and someone who used to work for it, notwithstanding the fact that the language of the section of the Law refers to a ‘worker’ and not to ‘someone who was a worker’ (id., at 299; emphasis added).

Therefore, adapting the definitions of “worker” and “employer” to the purpose of the law with regard to the Labor Court’s jurisdiction led, as stated, to extending the jurisdiction to people who were workers, but who retired from their work, with respect to matters whose cause is the employer-employee relationship – and pensioners’ affairs in the context of the retirement rights given to them are among these matters. Thus, for the purpose of determining the scope of the unique subject matter jurisdiction of the Labor Court, the expression “worker” is also likely to include “pensioner,” in his capacity as a worker who retired – and it has already been ruled that “worker” also includes a retired worker for the purpose of an action for severance pay and social benefits (see Shekem Pensioners’ Organization Case, at 303; National Labor Court File 3-8/31, Beersheba Municipality – Ben-Ami, IsrNLC 2 253, 258-260 (1971)).

68. However, it is important to emphasize that, with regard to representation by the workers’ organization, there is no complete congruence between pensioners and active workers, and rights that are granted in a collective agreement to active workers should not necessarily be automatically interpreted as given to pensioners, who constitute a sector with a different status and different needs. However, a collective agreement can establish conditions that the workers will receive upon retirement, and also grant conditions to workers who have already retired, by way of a distinct reference to the two sectors represented by the organization (Israel Electric Corporation Case, at 269; Shekem Pensioners’ Organization Case, at 301-302).

69. A direct result of all this is that a workers’ organization is also qualified to represent the pensioners among its members, to conduct negotiations on their behalf and to act to obtain beneficial terms for them within the framework of a collective agreement. A labor dispute is likely to address issues related to pensioners’ rights, hence, the means that the law makes available to the workers’ organization for the purpose of promoting its affairs in such a dispute also include the instrument of the strike.

This interpretation is reinforced by the special normative status of the right to strike, which is designed to give the organization more strength in conducting collective negotiations. Without it, the organization’s power is considerably weakened. Indeed, “legal limitations on the right to strike deprive the workers’ organization of the principal tool that enables it to exert pressure on the employer and cause the workers to perceive the organization as superfluous” (Adler, at 489). The right to strike, as a means available to the workers’ organization within the framework of collective negotiations, is intended not only to serve the interests of active workers in promoting their working conditions, but also to give the organization an effective means of protection for promoting pensioners’ affairs and to prevent the erosion of their economic and social status.

The extent of the connection between the right to strike and the power to sign a collective agreement

70. An argument was made that under Sections 3 and 5 of the Settlement of Labor Disputes Law, an entity representing workers, which is not a workers’ organization, can be a party to a collective dispute, under circumstances in which no workers’ organization represents the majority of the workers affected by the dispute. According to this argument, this means that the existence of a “labor dispute,” as this term is used in the Law, does not depend on the existence of a workers’ organization and the ability to engage in a collective agreement, which only such an organization can sign. Accordingly, the argument continues, the right to a protected strike is not derived from the Collective Agreements Law, from the existence of a collective agreement, and from the ability to sign such an agreement at the end of the dispute; rather, it belongs to all workers, organized and unorganized alike. As a result, the right in question is also given to groups that do not belong to a workers’ organization – such as, for example, senior citizens who are not members of an organization (Michal Shaked, “A Theory of Prohibition of the Political Strike” [Hebrew], Shnaton Mishpat Haavoda VII 185, 209, footnote 60 (1999) (hereinafter: Shaked); Ruth Ben-Israel, Strike 51 (1987) (hereinafter: Ben-Israel, Strike)).

71. This question, of the required extent of the connection between the right to strike and the existence of a workers’ organization with the power to engage in a collective agreement, is a complex question which does not require a decision in the matter before us. The National Labor Court ruling delimited the deliberation, restricting it to a defined set of data, in which a workers’ organization, which represents members who are pensioners, wishes to conduct collective negotiations for the purpose of a collective agreement related to the pensioners’ affairs, and to declare a strike within the framework of a labor dispute for the purpose of promoting the negotiations. The petition in the matter before us does not deviate from this set of data. Therefore, we will leave the discussion of the above question for an appropriate time.

Conflicts of interest in the activity of the workers’ organization

72. One of the arguments voiced against recognition of the power of a workers’ organization to represent pensioners’ affairs is that this is liable to drag the organization into actions that constitute a conflict of interest. The conflict is liable to arise between the organization’s action to promote the interests of active workers – which is the organization’s main function – and the organization’s role in representing the affairs of the pensioners, which will not necessarily be consistent with those of the workers. The concern was also raised that, as part of the attempt to reconcile the conflict of interest in question, the organization may use its power in a way that will not benefit the pensioners, and may even detract from their rights.

73. The answer to this argument has several aspects. First, with regard to the fear of conflict of interest in the organization’s activity, although it is not possible to entirely rule out a possible conflict of interest between handling the working and retirement conditions of the active workers and handling the exercise and improvement of the rights of pensioners who have already retired, the assumption is that the organization must, in any case, represent all the sectors it encompasses in a fair and balanced manner and must do so faithfully. The organization’s duty of faithfully representing its various sectors is examined according to generally accepted criteria, which establish the norms of behavior in the internal relationship between the organization and its members. This matter, then, is decided according to rules pertaining to the appropriate area of representation, in accordance with the generally accepted standards in that framework.

On the merits, it can be said that the fear of a possible conflict of interest in the organization’s activity vis-à-vis the employer, between the interests of active workers and those of pensioners, is not of great concern. Although the interests of active workers are not always consistent with those of people who have already retired, in most cases, the retirement conditions that will promote the affairs of present-day pensioners will also serve the active workers upon their retirement in the future. Both groups have a common interest in setting and maintaining fair retirement conditions over the long term. This means that, even if a certain conflict of interest between the two groups may occur, the dominant interest of improving the retirement conditions, for the purpose of implementing them in the present and in the future, is common to both groups and, to a great extent, it reduces the concern about the existence a conflict of interest, as stated.

Second, as to the fear that the workers’ organization may harm the pensioners’ affairs rather than benefit them, it has already been ruled that it is not possible to derogate from the rights vested in pensioners by means of a collective agreement signed after the date of their retirement, because their rights were finalized and became permanent upon their retirement and cannot be violated or reduced ((National) Labor Court Appeal 629/97, Eliav – Comprehensive Pension and Provident Fund Center Cooperative Society Ltd., IsrNLC 36 721, 793, 806 (2002); National Labor Court File 3-60/5750, Barkan – Central Pension Fund for Federation of Labor Employees Ltd., IsrNLC 22 258, 265 (1990) (hereinafter: the Barkan Case)). The United States Supreme Court, in Chemical Workers v. Pittsburgh Glass, 404 U.S. 157 (1971) (hereinafter: the Chemical Workers Case), reached a similar conclusion, whereby the workers’ organization and the employer do not have the power to change the rights vested in pensioners, in contrast to rights that are not vested, and, should they seek to do so, the pensioners will have a contractual cause of action against them (id., at 181, footnote 20). The activity of the workers’ organization is therefore intended solely for improving the conditions of the pensioners, and it has no power to derogate from their rights. Derogation from rights gives rise to a legal cause of action (Barkan Case; National Labor Court File 6-8/5750, Grant – Nativ Pension Fund for Workers and Employees of Essential Enterprises of the General Federation of Labor Ltd., IsrNLC 23 104 (1991)). The power of the workers’ organization with respect to pensioners therefore focuses on activity to benefit their retirement conditions, and it has no power to detract from their rights, which were already finalized at the time of retirement.

Fixing pensioners’ retirement rights, in the context of the power of the workers’ organization to improve their conditions

74. Another argument raised by the Petitioner and the representative of the attorney general is that recognition of the power of the workers’ organization to represent the affairs of the pensioners among its members is not consistent with the basic legal concepts, whereby pensioners’ retirement rights become fixed upon their retirement, and they cannot expect those rights to be changed in their favor. Moreover, a workers’ organization must not be permitted to declare a strike for the purpose of promoting pensioners’ rights, which were already formulated and fixed from the legal standpoint, in a manner that involves harm to the employer and damage to third parties and, at times, even to the entire public.

75. Indeed, pensioners’ rights become legally fixed at the time of their retirement, and it is not possible to diminish them – not even through collective negotiations – after the workers have retired. On the other hand, this legal assumption does not mean there is a need to negate the power of the workers’ organization to represent pensioners vis-à-vis the employer with regard to their retirement conditions, as the years go by and representation is required in order to preserve the pensioners’ economic status and living conditions. Protection by the organization is likely to be required in order to preserve the fixed retirement conditions against erosion, which is liable to cause a decline in the pensioners’ standard of living. Such protection is also likely to be required when the economic and social reality changes over the years and what were once considered fair retirement conditions become unfair as a result of the changing times. The status of the workers’ organization as the entity in charge of protecting the pensioners and preserving their status and standard of living as they grow old does not conflict with the fixing of the retirement rights granted to pensioners upon their retirement. The role of the organization is to protect the pensioners’ rights against violation, in the broader sense.

The nature of a strike by members of the organization to improve the conditions of their retired fellow members

76. In labor law, it is customary to distinguish between types of strikes from the standpoint of their nature and objectives, for the purpose of examining the degree of their legitimacy. This practice also has implications for a strike that is declared by a workers’ organization for the protection of pensioners’ rights and, therefore, we will discuss this briefly.

77. The most definitively recognized type of strike is the “economic strike,” which is intended to improve employees’ economic conditions. A strike of this type is considered a generally accepted, legitimate means of achieving the objectives that underlie the collective labor relations. This is a strike “that is generally directed against an employer, which is attempting to harm the workers’ rights or refusing to improve their working conditions, a strike that may also be directed against the sovereign power, when the latter is acting in its capacity as an employer or attempting to intervene, through the exploitation of its sovereign power, in order to change existing arrangements in the labor relations between workers and employers or to prevent such arrangements” (Bezeq Case, at 500). An economic strike is a means that is primarily intended to equalize the disparity of power between the worker and the employer. What characterizes an economic strike is its purpose – improvement of, or prevention of harm to, the workers’ economic interests (Ben-Israel, Strikes and Lockouts, at 101). An economic strike is considered legitimate, and benefits from the protection of the law, subject to the fulfillment of the conditions imposed by the law in this regard.

78. Another type of strike is the “political strike.” This is a strike directed against the sovereign power and intended to change a policy set by it, or to set a policy held to be desirable by the strikers (Frances Raday, “Political Strikes and Fundamental Change in the Economic Structure of the Workplace” [Hebrew], Hamishpat II 159 (1994) (hereinafter: Raday); (National) Collective Dispute Appeal 1013/04, Israel Discount Bank Ltd. – New General Federation of Labor / Union of Clerks and Administrative Public Service Employees (ruling by Vice-President Barak) (unpublished, September 26, 2005)). (National) Collective Dispute 53/05, Association of Banks in Israel – New General Federation of Labor / Union of Clerks and Administrative Public Service Employees (unpublished, May 4, 2005) ). A strike of this type gives rise to the concern that the striking entity will impose its will on the elective institutions of the authority and will attempt, by means of coercion, to influence democratic processes (Hatib Case, at 703-704; Bezeq Case, at 500-501, 507). The assumption is that a political strike is not protected, since it does not involve improvement of the economic situation of the workers: rather, its purpose is to affect the institutions of government by way of coercion. In Israel and in many countries throughout the world, the legality of the political strike is not recognized (Raday, at 160-161; Mondalek, at 347; for the position in Europe, see: Erika Kovacs, The Right to Strike in the European Social Charter, 26 COMP. LAB. L. & POL’Y. J. 445, 449 (2004-2005). For a different concept, which considers the political strike, in certain circumstances, to be legitimate, as a means of improving employees’ standard of living and quality of life, see Ben-Israel, Strikes and Lockouts, at 106-111; Shaked, at 193-207).

79. Given the approach that a political strike may, under certain circumstances, be motivated by the employees’ wish to improve their economic situation and standard of living, recognition has been given to the “quasi-political strike,” which is launched against the sovereign power, but also pertains to the economic conditions of workers who were harmed by changes in the sovereign’s policy. Unlike a political strike, in a quasi-political strike, the workers’ interests are directly related to the sovereign’s policy. Accordingly, such a strike is recognized as legitimate, albeit to a limited extent (Bezeq Case, at 501; Raday, at 163; Mondalek, at 347, 351-354)

80. Another type of strike is the “sympathy strike,” whose normative content has not yet been fully developed. A partial definition of the nature of a sympathy strike appears in HCJ 566/76, Elco Israeli Electromechanical Manufacturing Co. Ltd. v. National Labor Court, IsrSC 31 (2) 197, 207 (1977), in the ruling by Justice Berinson:

There is no general statutory definition of a strike in our country, and in the matter before us, we can utilize the concise definition that was given in the above-cited Shavit Case, which reads as follows:

A striker is a person who, without breaking his work connection with his employer, stops working, together with other workers, in order to attain his demands from his employer, or in order to help other workers attain their demands from their employer.

A work stoppage of the latter type, in which workers come to the aid of other workers, is what people call a ‘sympathy strike’ (id., at 207-208; emphasis added).

The sympathy strike has been given a certain degree of support in Israeli case law, and there are those who believe that it constitutes part of common-law (Ben-Israel, The Strike, at 56; Haim Berinson and Assaf Berinson, “Sympathy Strike – Its Status and Proportionality” [Hebrew], Berinson Commemorative Volume [Hebrew] 764, 767-769 (Volume II, 2000) (hereinafter: Berinson); Shavit Case, id.) What characterizes a sympathy strike is that it involves one group of workers, who strike as a sign of identification with another group of workers, as an expression of the principles of collectiveness and solidarity among workers (Berinson, at 766-767, 701; for a comparative examination of the matter, see: id., at 782-786). However, many questions with regard to this type of strike have not yet been clarified, such as the question of the entity against which the strike is directed, the type of motives that will be considered legitimate for the purpose of initiating such a strike, and the nature of the means that may serve it.

81. When workers strike to protect their own interests, it is not a sympathy strike at all, and the proper framework for analyzing the legality of the strike is the framework related to the laws of economics strikes (Ruth Ben-Israel, “Political Strike” [Hebrew], Iyyune Mishpat XI (3) 609, 621 (1986); James Pope, How American Workers Lost the Right to Strike, and Other Tales, 103 MICH. L. REV. 545 (2004-2005). A strike that is declared by a workers’ organization for the purpose of promoting pensioners’ affairs, by its very nature, is not a sympathy strike. It is an economic strike aimed at improving the economic conditions of members of the organization, which is held for the purpose of promoting an interest of a certain sector within the organization. This is not a sympathy strike by one group of workers on behalf of another group of workers; rather, it is a joint strike by members of the organization, who are taking measures in order to achieve a shared economic purpose, which is relevant to both the sector of active workers and the pensioners. As such, it is an economic strike that is recognized in principle as a legal strike, subject to the fulfillment of the conditions specified in law for that purpose. However, naturally, the precise classification of the strike and the extent of its legitimacy will be derived from the specific circumstances of the case, and from data that do not concern us here.

82. It should be noted that the United States Supreme Court deliberated a question similar to the matter before us, in Chemical Workers, and ruled (in a judgment by Justice Brennan) that the power of a workers’ organization to represent the affairs of pensioners after their retirement should not be recognized and that, in any event, the organization cannot declare a strike in order to promote their affairs. This ruling was subject to severe criticism; in this regard, see: George Feldman, Unions, Solidarity and Class: The Limits of Liberal Labor Law, 15 BERKELEY J. EMP. & LAB. L. 187 (1994).

Conclusion

83. In the social perspective of the 21st century, with the considerable increase in life expectancy and the significant growth in the numerical scope of the elderly population, the stratum of older people becomes an entity with a prominent presence in society. This fact requires special attention, inter alia, at the level of labor relations, insofar as it affects retirement and pension conditions. Senior citizens, as a group, strive to protect their quality of life and standard of living in their old age and to live out their declining years with a feeling of security and well-being. Not only does this interest on the part of pensioners not conflict with the interests of active workers, it integrates and merges with it. After all, today’s active workers look forward to the future and know that the day will come when they, too, will be pensioners; accordingly, the achievements of today’s pensioners will also constitute the advantages of the active workers, when they retire in the future.

84. Labor legislation, including the Collective Agreements Law and the Settlement of Labor Disputes Law, is framework legislation, whose internal content is flexible to the extent required in the field of labor relations, due to the dynamism and rapid changes that affect that field from time to time, a field which serves as a mirror, reflecting the social changes and upheavals that take place in practice. The rapid changes in labor relations are also reflected in the legal patterns that are designed to govern these relations in the area of law. The purposive interpretation of labor legislation is characterized by the need to bridge between the law and the needs of life as reflected in day to day reality. However, flexibility in interpreting legislation is not unlimited. It is delimited by the boundaries of the purpose of the legislation and is anchored in the literal wording of the text, insofar as it can tolerate the purposive interpretation.

85. In the social reality of this era, the place of pensioners in the system of labor relations is an existing phenomenon. Although pensioners’ basic rights are legally fixed at the time of their retirement, the need to protect those rights against erosion and to adapt them to the changing economy in the years after their retirement calls for giving pensioners, as a group, the organized power to protect their rights. There are various ways of protecting those rights – not necessarily within the framework of the representative workers’ organization. Yet, it seems,, that this mode of protection is the most natural and proper, with regard to pensioners who are members of the organization. The organization was the entity that represented the pensioners while they were active workers and looked after their working conditions, including formulating the terms of their future retirement. The same organization is also supposed to represent the pensioners among its members, for the purpose of exercising and enforcing the retirement rights that are granted to them upon their retirement. The organization is supposed to protect pensioners’ standard of living, in cases where economic fluctuations threaten to impair that standard, or where general changes in the economy are liable to cause a relative decline in their economic status. The pensioners’ ties and connections to the workers’ organization and the active labor system are natural and organic, since yesterday’s worker is today’s pensioner, today’s worker is tomorrow’s pensioner, and the protected interests of workers and pensioners are basically identical and combine into a single system with a plurality of ages and institutions. Recognizing the power of the workers’ organization to represent the pensioners among its members and to act for their benefit constitutes an organic result of the actual social reality of life, the needs of life, and the basic internal purposes of labor legislation – which not only tolerates a purposive interpretation that integrates the pensioners into the fabric of the representative workers’ organization, but also makes that interpretation obvious and worthy. This integration of pensioners into the fabric of the organization means giving the organization all the means to represent the pensioners, and those means also include the power to institute sanctions and strikes if necessary.

86. Striking in favor of the organization’s pensioners is closely related to the basic rationales that underlie the right to strike – including human dignity, the freedom of property, the freedom of occupation and the freedom of expression. Furthermore, striking in favor of pensioners reflects the concept of intergenerational and intra-organizational solidarity between the generation of actual workers and the generation of senior citizens who have retired, between whom there is a close connection. Granting legal recognition to this affinity is consistent with the concepts of social morals and organizational ethics that underlie modern-day social perceptions, which seek to provide the means for effective protection of those sectors of the population that require it. Recognizing the right to strike in favor of the organization’s pensioners is one of the expressions of social solidarity and reciprocal responsibility, which are among the basic values of society; the role of those values is strengthened by the expansion of multi-age society and the need to provide a response to the needs of various strata of the population (Ben-Israel, Senior Citizens, at 230-231). The use of the means made available by the Collective Agreements Law and the Settlement of Labor Disputes Law for the purpose of realizing these principles is appropriate and worthy, especially as it serves the interests of active workers no less than those of pensioners.

The conclusion that arises from all the above is that the workers’ organizations should be given the possibility of using the collective power at its disposal, inter alia, to promote the rights and ensure the status of the pensioners among its members. This includes recognition of its ability to utilize the means of strike, in the appropriate cases, and subject to the limitations established in law and case law for that purpose.

87. In order to set the boundaries of the ruling in this proceeding, it is fitting and proper to emphasize the following points:

First, the legal rulings refer to pensioners who are members of the workers’ organization, in which their membership is voluntary, and as long as that membership continues; they do not refer to other pensioners, to whom the decision does not apply.

Second, within the framework of collective negotiations and the collective agreement, active workers are not identical or equivalent to pensioners in terms of the conditions and arrangements on their own merits. These are two categories of organization members, and the arrangements with regard to each category require specific and separate attention.

Third, the workers’ organization is entitled to take collective action to improve the pensioners’ conditions, and to make use of all the means recognized under law to promote the matter, including strikes. However, the classification of the strike – for the purpose of examining its legitimacy in terms of content and objectives – will be determined according to the circumstances of the concrete case.

Fourth, the organization is entitled to take action to improve the conditions of the pensioners among its members, but it is not entitled to violate their rights as they existed at the time of their retirement.

Fifth, the legal rulings in this proceeding focus on a situation in which the workers’ organization represents the pensioners among its members. It does not provide a response to the much more extensive needs of Israel’s senior citizens as a whole, which call for the creation of effective mechanisms that will help to protect their rights and status. This broad sector currently has no real means of protecting its rights and status. This social phenomenon, which is extremely complex and important to every person in Israel, deserves a comprehensive examination by the appropriate public authorities, and even intervention by the legislator for the purposes of its resolution, and the sooner the better.

88. I will therefore propose to my colleagues to adopt the main rulings of the National Labor Court in this proceeding, and to deny the petition.

I will further propose that no order for costs be issued.

Justice (ret.)

Justice E.E. Levy:

I concur.

Justice

President D. Beinisch:

I concur with the comprehensive judgment of my colleague, Justice Emeritus A. Procaccia, in which she extensively discussed the background for the deliberations on the issue that arose before us, which is rooted in the social and legal status of pensioners. Like my colleague, I agree that the changing times and data with regard to the elderly require the protection of the members of this age group. One of the definitive means of protection is the representation of pensioners by the workers’ organizations, to which they continue to belong in and after their retirement. In this state of affairs, the absence of any possibility for the workers’ organization to take organizational measures, including the possibility of exercising the right to strike with respect to the rights of the organization’s pensioners, is liable to give rise to a situation in which the representation of those pensioners will be rendered devoid of content. In addition, I see no basis for the Petitioners’ argument that the conclusion reached by the National Labor Court gives rise to a real fear that the power of the workers’ organizations will be expanded by giving status to various groups that do not hold the status of workers. Like my colleague, Justice Emeritus Procaccia, I also believe that the organization’s pensioners have a special connection to the workers’ organization in which they grew through the years, inter alia, because, in their capacity as workers until their retirement, they were also involved in its achievements, including aspects connected with their retirement conditions. It should be noted that the actual workers, whom the workers’ organization represent, wish to improve both their working conditions and their rights after retirement, and the power of the continuing organization enables their achievements to be preserved even after their retirement. This outline does not resemble that of other, external entities, and there is no fear that they will become part of an existing, active workers’ organization. These workers’ organizations constitute a continuing dynasty, in which the connection to employer-employee relations is preserved for the purpose of the rights that accrued to the pensioners and remain available to them even after their retirement. This means that, from the standpoint of those rights, the workers do not break the connection with their employer, or even with the workers’ organization, which continues to represent them in this relevant segment. The organization represents the “long arm” of the pensioners in exercising their right to associate, where such an association is required to realize or to improve their retirement conditions or to prevent harm to the pension to which they are entitled. In this, I concur with the opinion of my colleague, Justice Emeritus Procaccia, and with the ruling by President Adler of the National Labor Court. In this regard, I believe that it makes no difference whether the pensioners have a direct and essential interest in the workplace from which they retired, because that workplace gives them a budgetary pension, or whether their rights are exercised by means of a pension fund.

Workers’ organizations have a social role. In the absence of a Basic Law to reinforce the status of social rights, the relevant entities must be given appropriate tools, insofar as the legal norms allow it, for the protection of the social rights of weak groups in society. In the social and economic reality that has arisen in Israel, pensioners undoubtedly represent a weakened group. It is therefore appropriate to preserve and develop the few tools available to this sector of the population. Giving the workers’ organizations that represent them the possibility of protecting pensioners’ rights, which sprang from the framework of their employment, is a tool that can adapt the legal situation to the needs of the new reality.

The President

Justice E. Arbel:

I also concur with the ruling by my colleague, Justice Emeritus A. Procaccia, who authored an extensive opinion with regard to the question of whether a workers’ organization has the power to declare a strike that will be protected under law, in a matter intended to promote the rights of the pensioners among its members. In order to provide a response to this question, my colleague examined various complex issues – inter alia, those concerning the status of pensioners relative to the workplace from which they retired, their status relative to the workers’ organizations, the pensioners’ ability to belong to the organization, the extent of its power and its ability to act on behalf of the pensioners. At the end of a long journey, Justice Emeritus A. Procaccia reached the conclusion that leaving the pensioners without the protection of an organization would mean creating retirement rights during the existence of the employer-employee relationship, without effective means of protecting the exercise of those rights and preventing their erosion after their retirement. I agree with my colleague that any other mode of interpretation would frustrate the purposes for which the organization acts and would leave the pensioners among its members with no real power to protect their legitimate rights during their retirement years. The role of the organization in this context is to protect the pensioners’ rights, standard of living and status during their retirement years. The zenith of this protection lies in making use of the collective power held by the organization – the power to strike – in favor of the pensioners who are members of the organization.

Justice

Justice M. Naor:

I concur.

Justice

Vice-President E. Rivlin:

I also concur with the comprehensive ruling by my colleague, Justice Emeritus A. Procaccia, and the comments by my colleague, President D. Beinisch.

The Vice-President

Justice A. Grunis:

I concur.

Justice

It is therefore decided as set forth in the ruling by Justice Emeritus A. Procaccia.

Given this day, 24 Nisan 5771 (April 28, 2011).

The President The Vice-President Justice Emeritus

Justice Justice Justice Justice

_________________________

This copy is subject to editorial and textual changes. 03011810_R23.doc YT

Information Center Tel: 02-65936666, website www.court.gov.il

Full opinion:

Bar-Ilan University v. National Labor Court.pdf

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/03/810/011/r23/03011810.r23.pdf

Ressler v. Minister of Defence

Case/docket number:

HCJ 910/86

Date Decided:

Sunday, June 12, 1988

Decision Type:

Original

Topics:

Abstract:

The question raised by this petition to the High Court of Justice involves the legality of the long-standing arrangement whereby students of Yeshivot (Talmudical colleges) are granted deferment of their military service for so long as they continue their full-time studies. This arrangement was instituted as long ago as 1948, and has been reconfirmed by successive Ministers of Defence and governments of Israel ever since. It has been tile subject of a number of earlier petitions to the High Court questioning its legality, all of which were dismissed.

The petitioners submitted that they were entitled to bring the question before the Court as being personally involved, in view of the fact that their army reserve service is prolonged as a result of the extensive deferment, amounting to exemption, of Yeshivah students from military service and that the burden of reserve service for them and others in their position would be considerably alleviated if Yeshivah students were recruited into full-time military service.

The petitioners argued that the decision of the Minister of Defence purportedly on the basis of section 36 of the Defence Service Law [Consolidated Version], 1986, to defer the full-times military service of Yeshivah students, requires Knesset legislation to give in effect. They also submitted that the decision was ultra vires, was based on extraneous and discriminatory grounds and was totally unreasonable.

The High Court ruled as follows:

1. The legal standing of a petitioner before the High Court will be recognised if he can show that there is a reasonable prospect that an interest of his (not necessarily amounting to a right) which may be shared by a great number of others, has been prejudiced.

2. While the classical rule was that it is not sufficient for a petitioner merely to show that a governmental authority is in breach of the law, without showing prejudice to his own interest, there have developed several important exceptions to this rule, which have the effect of liberalising the rules of locus standi and making them more flexible. Thus, wherever a petitioner can point to an issue of particular public importance or to a serious flaw in the functioning of a public authority, it would only be right for him to bring such a matter to the attention of the Court whose rule is to review the legality of the acts of public authorities. An even more liberal attitude would allow standing to a "public" petitioner in all cases, thus recognising the actio popularis.

3. In the present case, the standing of the petitioners must be recognised both from the point of view of the "classical" approach which requires proof of an interest in the subject matter of the petition, and from that of the more liberal attitudes which either recognise exceptions to the rule requiring establishment of an interest of the past of the petitioner, or dispense with the requirement of "interest" altogether.

4. The question before the Court is a constitutional one of primary public importance relating to the rule of law, in respect of which the locus standi of the petitioners is impregnable.

5. (per former Deputy President Miriam Ben-Porat): Only where a public authority's action is blatantly unlawful or where an overwhelming important public issue is involved would it be permissible to depart from the basic principle requiring a petitioner to show that he has an interest in the subject matter of the petitioner.

6. The concept of locus standi should not be confused with that of justiciability. The former relates to the question how far the petitioner is the right person to bring the particular issue before the Court, whereas the latter relates to how far the issue is one suitable for judicial consideration.

7. Two forms of justiciability should be distinguished - normative and institutional justiciability. While normative justiciability answers the question whether there exist legal criteria capable of determining the dispute before the court, institutional justiciability answers the question whether the court is the appropriate organ for such determination, rather than any other organ such as the legislature or the executive.

8. All activities, including those of a political nature or matters of policy, are governed by legal norms of one kind or another. There is thus no such thing as a "legal vacuum". Legal norms may be permissive (e.g. "an individual may perform any act, unless it is specifically prohibited") or prohibitive ("governmental entities may not perform any act unless specifically permitted").

9. Lack of normative justiciability means in effect lack of cause of action. In most cases, a submission of lack of normative justiciability has to contend with the general legal norm which obliges governmental bodies to act reasonably, and such reasonableness is examined by legal criteria.

10. (per Barak J): The argument that, in view of the separation of powers an issue of a political nature must necessarily be determined by a political organ, and is therefore institutionally nonjusticiable, is an erroneous one. On the contrary, judicial review of government activity, even if it is of a political nature, ensures that separation of powers is safeguarded. Indeed, where a political or ideological issue is involved, the judge may not express his personal view, but such issue is still justiciable with regard to its legal aspect, and a court cannot refrain from dealing with it without harming public confidence in the rule of law. Thus, the whole doctrine of institutional and (non) justiciability is highly problematical an is only applicable in special instances where it can be shown that public confidence in the judiciary is more likely to be prejudiced than public confidence in the rule of law.

11. (per Shamgar, P.): It is not desirable that all issues concerning governmental activity be referred to the courts, thus depriving other authorities of their proper function. Separation of powers implies a proper balancing of functions between the three powers of government.

Justiciability must be examined by the double test of its normative and institutional aspects. The issue of institutional justiciability must be settled by the judge in accordance with his sense of expertise.

12. (per Ben-Porat, D.P.): The question of justiciability should be left open for further consideration: predominantly it is a matter of the limits of judicial restraint.

13. The question whether a governmental authority is competent to carry out a particular governmental function such as granting deferment to Yeshivah students is normatively justiciable, and is connected with the proper interpretation of s. 36 of the Defence Service Law [Consolidated Version].

14. In the present case, institutional non-justiciability is inapplicable. Basically, the question whether Yeshivah students should be drafted into the armed forces is a matter of public policy which should be determined by the political authorities. However, the question of the legality of deferment of those students' military service is a legal question which is for the courts to settle.

15. The Minister's power to defer military service can only be lawfully exercised on the basis of one of the grounds enumerated in section 36 of the Defence Service Law. In exercising his power, he may take into account considerations other than those relating purely to defence, such as requirements of education, the national economy, family or religious factors, all of which come under the general heading of "other reasons" in the said section.

l6. The Minister must exercise his discretionary power to defer military service in a reasonable manner, allowing appropriate weight to the various relevant considerations. The Court will not substitute its own discretion for that of the Minister, but will confine judicial review to the question whether the Minister of Defence may take into consideration the factor of religion and whether in the circumstances the weight he attributed to that factor was reasonable. The Minister may take the religious factor into consideration, so long as it does not bring about substantial harm to security.

17. In Israel, a democratic and pluralistic society, there is no consensus on the issue of military service for Yeshivah students, and this strengthens the view that the Minister can legitimately take the religious factor into consideration when deciding on that issue.

18. The petitioners have failed to rebut the presumption of reasonableness of governmental action and so have failed to show that the Minister's action in continuing to allow deferment of Yeshivah students' military service was unreasonable. There is therefore no ground for intervention of the High Court of Justice in the Minister's decision.

19. However, the decision on deferment of Yeshivah students' military service ought to be reviewed from time to time in the light of current defence requirements; in the view of Shamgar, P., such review should take place annually.

20. (per Shamgar, P.): The fact that the Minister of Defence has acted in this matter consistently with his predecessors in office strengthens the reasonableness of his action.

Voting Justices:

Barak, Aharon

Primary Author

majority opinion

Shamgar, Meir

Author

concurrence

Ben-Porat, Miriam

Author

concurrence

Full text of the opinion:

H.C.J 910/86

1. Major (Res.) Yehuda Ressler, Advocate

2. Captain (Res.) Zeev Kosseen

3. Staff Sergeant (Res.) Rami Dekel

Minister of Defence

In the Supreme Court sitting as the High Court of Justice

[June 12, 1988]

Before: Shamgar P., Ben-Porat Deputy President, and Barak J.

Editor's Summary

The High Court ruled as follows:

4. The question before the Court is a constitutional one of primary public importance relating to the rule of law, in respect of which the locus standi of the petitioners is impregnable.

12. (per Ben-Porat, D.P.): The question of justiciability should be left open for further consideration: predominantly it is a matter of the limits of judicial restraint.

20. (per Shamgar, P.): The fact that the Minister of Defence has acted in this matter consistently with his predecessors in office strengthens the reasonableness of his action.

Israel Supreme Court Cases Cited:

[l] H.C. 40/70 Becker v. Minister of Defence, 24(1) P.D. 238.

[2] H.C. 448/81 Ressler v. Minister of Defence (Ariel Sharon), 36(1) P.D. 8l.

[3] FH 2/82 Ressler v. Minister of Defence, 36(1) P.D. 708.

[4] H.C. 179/82 Ressler v. Minister of Defence, 36(4) P.D. 421.

[5] H.C. 731/86, Misc. App H.C. 91/87 Micro Daf v. Israel Electric Co. Ltd, 41(2) P.D. 449.

[6] H.C. 287/69 Meron v. Minister of Labour, 24(1) P.D. 337.

[7] H.C. 217/80 Segal v. Minister of the Interior, 34(4) P.D. 429.

[8] H.C. 563, 566/75 Ressler v. Minister of Finance, Zivoni v. Chairman of Knesset Finance Committee, 30(2) P.D. 337.

[9] H.C. 26/76, BarShalom v. Meir Zorea, Director of Israel Lands Administration, 31(1) P.D. 796.

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

[11] H.C. 29/55 Dayan v. Minister for Religious Affairs, 9 P.D. 997.

[12] H.C. 428, 429, 431, 446, 463/86, Misc. App. H.C. 320/86 Barzilai v. Government of Israel, 40(3) P.D. 505.

[13] H.C. 609/85 Sucker v. Mayer of Tel Aviv-Yafo, 40(1) P.D. 775.

[14] H.C. 348/70 Kfir v. Ashkelon Religious Council, 2501 P.D. 685.

[15] H.C. 852, 869/85 Misc, App. H.C. 43, 486, 487, 502. 512-515, 518, 521, 523, 543/86; 1, 33/87 Aloni v. Minister of Justice, 41(2) P.D. 1.

[16] H.C. 98/69 Bergmann v. Minister of Finance, 23(1) P.D. 693.

[17] H.C. 148/73 Kaniel v. Minister of Justice, 27(1) P.D. 794.

[18] H.C. 152/82 Alon v. Government of Israel, 36(4) P.D. 449.

[19] H.C. 243/82 Zichroni v. Executive Committee of the Broadcasting Authority 37(1) P.D. 757.

[20] H.C. 511/80 Galia v. .Haifa District Planning and Building Commission 35(4) P.D. 477.

[21] H.C. 306/81 Flatto Sharon v. Knesset House Committee, 35(4) P.D. 118.

[22] H.C. 73/85 "Kach" Faction v. Speaker of the Knesset, 39(3) P.D.141.

[23] H.C. 295/65 Oppenheimer v. Minister of the Interior and Health 20(1) P.D. 309.

[24] H.C. 606, 610/78 Oyab v. Minister of Defence; Nossoua v. Minister of Defence, 33(2) P.D. 113.

[25] H.C. 65/51 Jabotinsky v. President of the State of Israel 5 P.D.801.

[26] H.C. 222/68, Motion 15/69, National Group, Registered Soc. v. Minister of Police, 24(2) P.D. 141.

[27] H.C. 561/75 Ashkenazi v. Minister of Defence, 30(2) P.D. 309.

[28] H.C. 802/79 Semara v. Commander of Judea and Samaria, 34(4) P.D. 1.

[29] H.C. 186/65 Weiner v. Prime Minister, 19(2) P.D. 485.

[30] H.C. 58/68 Shalit v. Minister of the Interior, 23(2) P.D. 477.

[31] H.C. 89/83 Levi v. Chairman of Knesset Finance Committee, 38(2) P.D. 488.

[32] C.A. 591/73 Bashist v. Vinegrowers Soc. of Winecellars of Rishon LeZion and Zichron Yaakov Ltd., 28(1) P.D. 759.

[33] H.C. 620/85 Mi'ari v. Speaker of the Knesset, 41(4) P.D. 169.

[34] H.C. 731/84 Kariv v. Knesset House Committee, 39(3) P.D. 337.

[35] H.C. 311/60 Y. Miller, Engineer (Agency & Import) Ltd., v. Minister of Transport 15 P.D. 1989.

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

[37] F. H. 9/77 Israel Electric Co., Ltd. v. Ha'aretz Newspaper Publishing Co. Ltd. 32(3) P.D. 337.

[38] H.C. 14/86 Laor v. Films and Theatre Censorship Board, 41(1) P.D. 421.

[39] H.C. 10/48 Ziv v. Acting Commissioner for Tel Aviv Urban Area, 1 P.D. 85.

[40] H.C. 73/53 "Kol Ha'am" Co. Ltd. v. Minister of Interior, 7 P.D. 871.

[41] C.A. 461/62 Zim Israel Navigation Co. Ltd. v. Maziar, 17 P.D. 1319.

[42] H.C. 112/77 Fogel v. Broadcasting Authority, 31(3) P.D. 657.

[43] C.A. 243/83 Jerusalem Municipality v. Gordon, 39(1) P.D. 113.

[44] H.C. 302/72 Hilo v. Government of Israel, El Salimeh v. Government of Israel, 27(2) P.D. 169.

[45] H.C. 69, 493/81 Abu Ita v. Commander of Judea and Samaria Region, Kanzil v. Commissioner for Customs, Gaza Region H.Q., 27(2) P.D. 197.

[46] H.C. 393/82 Jama't Ascan, etc. Co-op Soc. reg. with Judea and Samaria Region H.Q. v. Commander of IDF Forces in Judea and Samaria Region, 37(4) P.D. 795.

[47] H.C. 263/85 (Misc. App. H.C. 222, 267/85) Awar v. Commander of Civil Administration Ramallah Sub-District, 40(2) P.D. 281.

[48] H.C. 629/82 Mustafa v. Military Commander of Judea and Samaria Region, 37(1) P.D. 158.

[49] H.C. 652/81 M.K. Sarid v. Knesset Speaker Menahem Savidor, 36(2) P.D. 197.

[50] H.C. 742/84 Kahana v. Knesset Speaker, 39(4) P.D. 85.

[51] H.C. 669/85 24, 131/86 Kahana v. Knesset Speaker, 40(4) P.D. 393.

[52] H.C. 109/70 Coptic Orthodox Motaran 25(1) P.D. 225.

[53] H.C. 321/60 Lehem Hai Ltd. v. Minister of Trade and Industry, 15 P.D. 197.

[54] H.C. 390/79 Davikat v. Government of Israel, 34(1) P.D. 1.

[55] H.C. 174/62 League of Prevention of Religious Coercion v.Jerusalem Municipal Council, 16 P.D. 2665.

[56] H.C. 98, 105/54 Lazarovich v. Food Controller Jerusalem; Saad v. same, 10 P.D. 40.

[57] H.C. 266/68 Petach Tikvah Municipality v. Minister of Agriculture, 22(2) P.D. 824.

[58] H.C. 156/75 Daka v. Minister of Transport, 30(2) P.D. 94.

[59] Cr. A. 54/81 Rosenne v. State oflsrael, 35(2) P.D. 821.

[60] H.C. 297/82 Berger v. Minister of the Interior, 37(3) P.D. 29.

[61] H.C. 669/86 Misc. App. H.C. 451, 456/86 Rubin v. Berger, 41(1) P.D. 73.

[62] C.A. 365/54 Mann v. Ayun and cross appeal, 11 P.D. 1612.

[63] H.C. 200/83 Watad v. Minister of Finance, 38(3) P.D. 113.

[64] H.C. 72/62 Rufeisen v. Minister of the Interior, 16 P.D. 2428.

[65] Elections Appeal 2, 3/84 Neimann v. Chairman of Central Elections Committee for the 11th Knesset; Avneri v. same, 39(2) P.D. 225.

American Cases Cited:

[66] Poe v. Ullman 367 U.S. 497 (1961)

[67] Flast v. Cohen 392 U.S. 85 (1968)

[68] Baker v. Carr 369 U.S. (1961)

[69] Korematsu v. United States 323 U.S. 214 (1944)

[70] Cohens v. Virginia 19 U.S. 120 (1821)

[71] Goldwater v. Carter 444 U.S. 996 (1979)

English Cases Cited:

[72] Inland Revenue Commissioners v. National Federation of Self Employed and Small Businesses Ltd. [1982] A.C. 617.

[73] Council of Civil Service Unions v. Minister for Civil Service [1985] A.C. 374.

Canadian Cases Cited:

[74] Thorson v. Attorney General of Canada et al. (No. 2) (1974) 43 D.L.R. (3d) 1

[75] Nova Scotia Board of Censors v. McNeil (1975) 55 D.L.R. (3d) 632.

[76] Minister of Justice of Canada et al. v. Borowski (1982) 130 D.L.R.(3d) 588.

Sources of Jewish Law Cited:

[a] Rabbi M.Z. Neriyah, Drafting of Yeshivah Students, Gvilim, 5728.

[b] Rabbi Z.Y. Kook, Paths of lsrael, Collection of Articles, Menorah, 5727, 114-123.

[c] Rabbi S.Y. Zevin, Drafting of Yeshiva Students, Collection of Articles, Menorah, 5727, 114-123.

[d] Rabbi Y.M. Tikochinsky, Release of Yeshiva Students from Draft, Torah u-Medinah, No. 5-6, 5713-4 pp. 45-54.

Petition for Order Nisi. The hearing took place on the supposition that an order nisi had been granted. Petition dismissed.

Y. Ressler - for the Petitioner;

N. Arad - for the Respondent.

JUDGMENT

BARAK J: Is deferment of defence service for Yeshivah (Talmudical College) students lawful? This question - which has been presented in the past for consideration by this Court - once again stands before us for examination. Should we address the question itself, or should perhaps the petition be dismissed because of the petitioners' lack of standing, or because of its non-justiciability? And if we address the question itself - is the deferment of service lawful?

The Facts

1. The question of deferment of defence service for Yeshivah students goes back to the beginning of the State. Already on March 9, 1948, a directive was issued by the Chief of Staff of the [pre-independence] Haganah (the C.N.D.), which stated that "it has been decided that the Yeshivah students, according to approved lists, are exempt from service in the army. Competent students will be given training in self-defense at their place of learning". It was stated that "this decision is effective for the Jewish year 5708, and at the end of the year the problem will be reexamined". In 1949, the Minister of Defence, David Ben-Gurion, notified the Minister of Religions that he had agreed to defer the enlistment of full-time Yeshivah students, for purposes of religious studies. In his diary, Mr. Ben-Gurion describes a meeting which took place (on January 9, 1950) with a delegation of heads of Yeshivot, who explained to him their fears that most Yeshivah students would discontinue their studies. The Minister of Defence granted the request for deferment, taking the view that it must be effected by means of an exemption granted by the Minister of Defence and not pursuant to Knesset legislation. In accordance with this approach, Mr. Ben-Gurion announced - in a letter to the Chief of Staff of January 2, 1951 - that "on the basis of section 12 of the Defence Service Law, I have exempted the Yeshivah students from the obligation of regular service, this exemption applying solely to Yeshivah students who are in fact involved in religious studies in Yeshivot, for so long as they are so occupied".

2. An attempt to after the situation was made in 1954 by the Minister of Defence, Mr. Pinhas Lavon. Mr. Lavon issued a directive, pursuant to which Yeshivah students who had already spent 4 years at a Yeshivah would be drafted. This directive gave rise to an uproar, and the Prime Minister, Mr. Moshe Sharet, requested that its implementation be delayed until the matter could be looked into. It seems that the directive was cancelled pursuant to the establishment (on March 15, 1955) of a ministerial committee, whose function was to examine "the problems associated with the status of men of military age who study in Yeshivot, regarding enlistment in the army". We do not know what the ministerial committee decided. Whatever it was, in 1958 the Deputy Minister of Defence, Mr. Shimon Peres, "summed up", with the approval of the Minister of Defence Mr. David Ben-Gurion, the policy as to this matter, following a meeting with heads of Yeshivot. The summary stated that when a Yeshivot student's time to report for enlistment and medical examination arrived, he would receive a deferment if he expressed his desire to continue to study in the Yeshivot, and if not - he would be drafted.

3. In 1968, after the appointment of Mr. Moshe Dayan as Minister of Defence, the matter was examined anew. The Minister thought that in exercising his discretion in this matter, it would be proper that his policy be acceptable to the Government. A five-person ministerial committee appointed for this purpose (on October 13, 1968) decided to "accept the I.D.F. General Staff proposal regarding service of Yeshivah students in the I.D.F., without at this time instigating for reaching changes". Accordingly it was decided, inter alia, that "the arrangement whereby the enlistment of Yeshivah students who engage in religious study continuously from the age of 16 is deferred for so long as the student remains occupied full-time with religious studies, will remain in effect ".

4. In 1975 the question of the extent of the topic was reexamined by the then Minister of Defence, Mr. Shimon Peres. Until that point the extent was determined by two criteria: a fixed number of existing Yeshivot and an annual quota of those who received draft deferments from the ranks of Yeshivah students at a rate of up to 800 men per year. The Minister of Defence agreed, after an investigation by the I.D.F. manpower division, not to be bound by a fixed number of existing Yeshivot, because their numbers had increased. However, it was decided to leave in place the maximum annual quota of "full-time" Yeshivah students, whose enlistment would be deferred pursuant to pre-existing criteria. In 1977 Minister of Defence Ezer Weizman determined, following a coalition agreement - that "Yeshivah high-school and vocational school as well as those who had recently became observant, would be granted admission to Yeshivot, and that the arrangement regarding the deferment of service for "full-time" Yeshivah students would apply to these groups as well. In 1981 the Minister of Defence Ariel Sharon re-itented this principle, and procedures for implementation of the rules in this matter were established, according to the recommendation of a special committee appointed by the Minister_ of Defence. The Minister of Defence, Mr. Yitzhak Rabin - the Respondent in the Petition before us - found it appropriate to continue the implementation of the policy outlined by the Ministers of Defence who preceded him. In his opinion, the situation did not justify a change in the policy formulated by the Government of Israel and by the previous Ministers of Defence.

After submission of the Petition, the Minister of Defence brought the matter to the attention of the Government, in that he notified the Government that he was "acting on its behalf in maintaining the existing situation despite changes in the numerical data". The Prime Minister Mr. Yitzhak Shamir indicated that the Government had taken note of the Minister of Defence's announcement.

5. The Knesset has addressed the question of deferment of defence service for Yeshivah students on numbers occasions. At least 30 questionnaires on this topic were referred by Knesset Members to Prime Ministers and Ministers of Defence. The questionnaires span the years (D.H. 30 (5721) 66; D.H. 41 (5725) 490; D.H. 51 (5728) 1027, 1111, 1315, 1318, 1820; D.H. 53 (5729) 484; D.H. .56 (5730) 1022; D.H. .58 (5730) 2162; D.H. 63 (5732) 1506; D.H. 65 (5733) 241, 769 ,773; D.H. 69 (5734) 1005; D.H. 70 (5734) 1268, 1271; D.H. 72 (5735) 3738; D.H. 90 (5741) 1443, and from the Tenth Knesset - second session, booklet 16 (5742) 1436, and from the Eleventh Knesset - second session (meetings 123 - 167) part 11 (5746) 989 and part 25 (5746) 2451. The question of deferment of defence service for Yeshivah students was also addressed in the Knesset Foreign Affairs and Defence Committee. On December 23, 1986 the Committee established a sub-committee to reexamine the exemption from enlistment granted to religious seminary students. The sub-committee held a number of meetings. On July 9, 1986 the Eighth Knesset deliberated proposals for the agenda regarding enlistment of religious seminary students. Each proposal was remitted to the Foreign Affairs and Defence Committee, and the sub-committee dealt with these proposals as well. The committee's deliberations have not yet been summarized.

6. Under the current state of affairs, conscription into the defence service of a Yeshivah student, whose full-time occupation is religious studies, and who is exclusively involved in religious studies, is deferred. The student must study continuously from the age of 16 in a recognized Yeshivah. Deferment of defence service is granted after the student presents himself for enlistment, undergoes a medical examination and is found fit for service. Deferment of service is for one year only. The student must report again each year. A student who wishes to discontinue his studies or whose full-time occupation is no longer religious study, is drafted into service in the I.D.F. The length of service is determined according to the Yeshivah student's age at the time that he left the draft deferment arrangement, his physical fitness, and his family situation. According to army statistics for the 1986-1987 working year, the number of students in draft deferment arrangements for Yeshivah students was 17,017. Among the 1987 class of I.D.F. draftees, 1,674 Yeshivah students requested and received draft deferments.

The Legal Framework

7. Upon establishment of the State, enlistment of religious seminary students into the defence service was deferred pursuant to the Defence Service Law, 5709-1949. Section 11 of the statute authorized the Minister of Defence to grant exemption from defence service, whereas section 12 of that Law authorized the Minister to grant exemption and deferment from defence service, as follows:

"If the Minister of Defence considers that reasons connected with the size of the Regular Forces or the Reserve Forces of the Defence Army of Israel or with the requirements of education, settlement or the national economy, or family reasons, or other similar reasons, so require, he may by order direct -

(a) that a person of military age shall be released from the obligation of regular service...

(b) that the regular service of a person of military age shall be postponed for a specific period upon his application...

The Defence Service Law (Amendment), 5719-1959, introduced a change in the legislative technique. The grounds for release and deferment became grounds for exemption or reduction, and the directive regarding service deferral referment to those grounds for purposes of deferment of service also. Section 12 was replaced by the following provision:

"The Minister of Defence may, if he thinks fit to do so for special reasons, defer, by order, on the application of a person of military age, for such period as he may fix, the reporting of such person of military age for registration, medical examination, regular service or reserve service or the continuance of his service as aforesaid if already begun; the deferment may be subject to conditions or unconditional, and the Minister of Defence may cancel the deferment if he is satisfied that any of the conditions attached to the deferment has not been fulfilled".

The term "special reasons" is defined in section 11(ab) of the statute - which was applied, as stated, to exemption or reduction - as follows:

"The Minister of Defence may, by order, if he thinks fit to do so for reasons connected with the size of the regular or reserve forces of the Defence Army of Israel, or for reasons connected with the requirements of education, settlement or the national economy, or for family reasons, or for other similar reasons (all such reasons being hereinafter referred as: "special reasons") -

(1) exempt a person of military age from the duty of regular service, or reduce the period of the regular service of a person of military age;

(2) exempt, for a specific period or permanently, a person...from the duty of reserve service".

In 5719, a consolidated version of the Defence Service Law was drawn up. Section 11 became section 28 and section 12 became section 29 of the Defence Service Law [Consolidated Version], 5719-1959.

8. The Defence Service Law [Consolidated Version] was amended in 1971 by the Defence Service (Amendment No. 7), Law, 5731-1971. Sections 28 and 29 of the Law were replaced by new sections. After the amendment, section 28 of the Defence Service Law [Consolidated Version] applied both to exemptions from defence service and to reduction and deferment of defence service. The grounds for exemption, reduction and deferment were all transferred to this provision. Thus far the change is of a technical nature. At the same time, a substantive change was also made. The word "similar" was eliminated from the phrase "or other similar reasons". The text of section 28 is therefore as follows:

"The Minister of Defence may, by order, if he sees fit to do so for reasons connected with the size of the regular forces or reserve forces of the Defence Army of Israel or for reasons connected with the requirements of education, security, settlement or the national economy or for family or other reasons -

(l) exempt a person of military age from the duty of regular service or reduce the period of his service;

(2) exempt a person of military age from the duty of reserve service...

(3) on the application of a person of military age or a person designated for defence service, other than a person of military age, defer by order, for a period prescribed therein, the date of reporting prescribed for that person, under this Law or regulations thereunder, for registration, medical examination, defence service or, if he has already begun to serve in defence service, the continuance thereof".

Pursuant to the Defence Service Law [Consolidated Version], 5746-1986 (hereinafter: the Law), this provision became section 36, and it forms the basis for examining the lawfulness of the Respondent's actions in the Petition before us.

Earlier Petitions

9. The Petition before us is not the first brought before this Court regarding deferment of defence service for Yeshivah students. The first petition was considered approximately 18 years ago: H.C. 40/70 [l]. The Petition was dismissed without summoning counsel for the Attorney General. Justice Witkon based his decision on the Petitioner's lack of legal standing. He held, at page 247, that "the more that the topic of the complaint is of a public nature, is among the issues commanding attention in the political arena, and serves as a topic for deliberations in the Government and the Knesset, the more it is necessary strictly to enforce the requirement that the complainant should suffer actual harm in his private domain in order to be granted the right of standing before the court". In the Petition before him, the Petitioner did not succeed in indicating personal and substantial harm. The Petitioner's grievance is "a public collective grievance, and the Petitioner is no different from every other person from that group who deems the exemption of persons, who in his opinion are nothing but shirkers, to be invalid". The Court ought not to entertain a grievance of this nature. Justice Y. Cohen at page 249 agreed with Justice Witkon's opinion, and added that the Petition must also be dismissed on account of its general and vague nature, and because "if levels allegations without an adequate factual basis".

10. More than ten years had passed since Becker's petition was dismissed (H.C. 40/70 [1]), when in the early 1980's a second petition was brought before this Court in which Mr. Ressler, who is Petitioner Number 1 before us, petitioned regarding the deferment of service of Yeshivah students (H.C. 448/81 [2]). The affidavits of two senior officers were attached to the petition, which stated that, if all Yeshivah students were drafted into the I.D.F., this source of manpower would add a regular division to the I.D.F. It would also significantly reduce the burden of reserve service on reserve soldiers in general, and on the petitioner in particular. The Supreme Court (Deputy President Y. Cohen and Justices D. Levin and Yehudah Cohen) dismissed the petition and declined to issue an order nisi, in reliance upon H.C. 40/70 [l]. The Deputy President, at page 86, indicated that, in his opinion, "the petitioners failed to establish a right of standing which justifies deliberations in this Court on a topic which on its face appears to be non-justiciable". The Court indicated that the conclusion regarding the reduction in the burden of reserve service is not based on significant data. It may be that the petitioner's belief on this matter is sincere, but it is inadequate to demonstrate that an actual interest of his has been harmed. In Justice Y. Cohen's opinion, id., "the task which the petitioners have taken upon themselves, of demonstrating that the enlistment of Yeshivah students will bring about a significant reduction in the burden of defence service currently imposed upon those serving in the army, is not attainable". The Deputy President was prepared to examine the question of petitioner's standing, taking the judicial attitude most favourable to the petitioner. In his opinion, (page 88), given according to this attitude, the petitioner did not have standing as to the Petition, because "it is concerned with an issue which is not suitable to be considered by a court. The question of whether or not to draft Yeshivah students is a question as to which the court does not have legal standards upon which a judicial determination can be based". In the Deputy President's opinion, id., "even if the petitioners had proved beyond a shadow of a doubt... that their reserve service would be shortened as a result of drafting Yeshivah students, I would not regard this as grounds for issuing an order nisi, because the question of whether or not to draft Yeshivah students is fundamentally a public issue, the solution of which must be left in the hands of the political bodies whose tasks include determination of this matter". In reaching that conclusion the Deputy President relied upon the provisions of section 28 of the Defence Service Law [Consolidated Version], 5719-1959, as amended. The Court indicates, ibid. [2], at page 85, that the amendment was intended 'to rule out any narrowing construction', and pursuant to it the Minister of Defence's authority is extremely wide. This section grants the Minister of Defence the broadest possible discretion. In summarizing his approach, Justice Y. Cohen indicates, id., at page 89, that "the inclination to drag this Court into a sensitive and stormy political debate, in which fierce differences of opinion exist among the public, is conspicuous in this Petition. The petitioners cannot succeed in this, whether because they do not have standing, or because the issue is non-justiciable , or because they have not disclosed grounds for this Court's interference with the discretion granted the Respondent by the Legislature".

11. A request for a further hearing on the Supreme Court's decision in H.C. 448/ 81[2] was submitted (F.H. 3/82 [3]). President Landau, at page 708-709, held that in his opinion, "this time the right of standing was adequately proved", because the petitioner showed prima facie that enlistment of Yeshivah students would significantly ease the burden of reserve service imposed upon him, and thus proved prima facie harm to a personal interest sufficient to grant him a right of standing before the High Court of Justice. Despite this approach of his, President Landau dismissed the request for a further hearing. The reason for this was that the petition in H.C. 448/81 [2] was dismissed also because in the opinion of the Court at page 710, "religious reasons, inherent in the Yeshivah students' and teachers' involvement in religious studies, can constitute a reason which would entitle the Minister of Defence to release, according to his discretion, those for whom religious studies are their full-time occupation". President Landau noted, at page 710-71 l, that "there will be those who will disagree with this broad interpretation. However, as I have not found any request by the Petitioners to subject this reason to a further hearing, I need not go beyond the scope of this petition, as presented to me". In concluding his decision, President Landau noted, at page 711, that the topic has "very great public and ideological importance", and that the Court "is not designed to serve as an arena for public and ideological disputes". Nevertheless, the submission that deferment of the enlistment of Yeshivah students is a question which must be decided by legislation, and not by administrative decision of the Minister of Defense, is "a submission which in my opinion should have been heard" (Id., at page 712). The President noted that this submission was not included in the petition for a further hearing, and accordingly he did not have to entertain it.

12. A few months later the Petitioner submitted a fresh petition (H.C. 179/82 [4]), which he based on the President's opinion in F.H. 2/82 [3]. The Court dismissed the Petition on account of the Petitioner's lack of standing. Justice Ben-Porat (with whom Justices D. Levin and Bach agreed) noted, at page 424, that "everyone agrees, that private parties should not be allowed to assert their grievances or plead the public cause in a public claim (actio popularis"). Everyone admits that the petitioner is motivated by the public aspect, and not because of personal harm. This reason. which was at the base of the dismissal of his Petition in H.C. 448/ 81 [2] - remains unaltered. Accordingly - "without stating our opinion on the questions as to which the honorable justices would differ (in H.C. 448/81 on the one hand and in the decision in F.H. 2/82 on the other)"- it was decided to dismiss the petition without issuing an order nisi ibid., at page 425).

The Petition and Submissions Thereunder

13. The Petition before us, like its predecessors, is concerned with deferment of defence service for Yeshivah students. Taught by past experience, Petitioner Number 1 sought - together with the other Petitioners - to include in the Petition all the areas on which courts had commented in the past. According to the Petitioners' claim, they have standing under the law. They attached to their Petition the affidavit of Maj. Gen. (Res.) Dr. Emanuel Wald, who served as the head of the Long Range Manpower Planning Branch, staff Planning Division, in the Manpower Department of the General Staff. The affidavit states that -

"There is a direct link between the enlistment of Yeshivah students in regular service, and afterwards reserve service, and the length of time which the Petitioners will have to serve in reserve duty, each one in his particular role. In the event that service of Yeshivah students is no longer deferred, as requested in the petition, the period of time the petitioners serve will be shortened every year".

On this factual basis, the Petitioners submit that they have successfully established their standing under the law. True, the Petitioners' interest is not specific to them alone, but according to case law this is immaterial, because, in the Petitioners' opinion, their standing should not be negated because they are defending an interest shared by themselves and many others. However, if these arguments are insufficient, in the Petitioners' opinion they have lawful standing to move the Court to rule on serious harm to the rule of law and the equality of all before the law. In the Petitioners' opinion, their Petition is "justiciable", despite its public nature. As to the substantive issue, the Petitioners make three submissions: First that deferment of the enlistment of Yeshivah students cannot be effected by an act of the Executive, but rather must be effected - in view of the fundamental nature of the matter - by enactment a of Knesset; therefore, the Minister of Defence exceeded his authority in granting deferment to Yeshivah students. Second, the Minister of Defence's considerations are extraneous, discriminatory and unreasonable. The statute does not permit the Minister to defer the Yeshivah students' army service. The purpose of the statute is the promotion of security, not the advancement of study in Yeshivot. The "religious" factor is an extraneous, discriminatory and unreasonable consideration. Third, the Petitioners infer from the statements of the Respondent and the Ministers of Defence who preceded him that Ministers of Defence Sharon, Arens and Rabin believe that Yeshivah students' army service should not be deferred, but they think that it is not within their power to change this situation which was forced upon them. This approach of the Ministers of Defence is fundamentally wrong, since they do have that such power.

14. Upon submission of the Petition it was put before a panel of three justices, and counsel for the Attorney General was summoned to the hearing. His position at this hearing was that the Petitioners have no standing. In the opinion of the Attorney General's representative -

"The effect of removing draft deferment arrangements for Yeshivah students on the length of service of those in the reserves in general, and of the Petitioners in particular, has always been and remains, a most complicated question, with numerous, intricate facets. Accordingly, the question of standing remains an obstacle before the Petitioners in this Petition as well, as in previous petitions.

Counsel for the Attorney General likewise thought that the Petition must be dismissed for lack of justiciability.

"The subject of the Petition is subject to public debate, and it is proper for the Court to recoil from an issue which the political authorities must determine".

15. At the outset of the hearing it became clear - in light of the position taken by the Attorney General's representative - that the Minister of Defence's considerations have not been presented to the Court. In the light of our comments in this regard, counsel for the State requested a stay so as to present a survey to the Court on the array of considerations which guide the Minister of Defence in exercising his discretion on deferment of service for Yeshivah students, including a survey of past development of the topic, its scope, and the relevant procedures and considerations, in light of which the policy on the issue placed the Court was formulated. We decided that the survey would be submitted in the form of an affidavit or affidavits. A survey of this nature, supported by two affidavits, was indeed submitted to us, and from it we learned the issue before us has been treated since the establishment of the State. We were likewise presented with the Minister of Defence's relevant considerations, which are:

"(1) Respect for the spiritual and historical obligation of students and teachers who are occupied full-time with religious study, to continuously uphold the principle of engaging in religious studies;

(2) The desire not to impair the said principle which is transcendant and holy to a segment of the population in Israel and in the Diaspora;

(3) The fact that the way of life of religious seminary students is extreme ultra-orthodox, and accordingly, induction into the army causes them serious problems in adapting to a society and culture which is foreign to them, and difficulties in strict observance of religious precepts. Thus, for example, they do not recognize the Chief Rabbinate of Israel's certification that food is kosher, while they themselves are divided as to recognition of a number of special kosher certifications by various rabbis, and other daily practices of theirs are likely to give rise to many difficulties in the I.D.F.'s preparations to integrate them into its ranks;

(4) The fact that the whole effectiveness of their service is subject to doubt, in light of the psychological difficulty they experience from the neglect of religious studies, and as a result of their education and special way of life.

(5) Recognition of the deep public sensitivity of a topic embroiled in ideological debate among the Israeli public, and of the need to settle the argument in a prudent fashion which will be acceptable nationwide".

In the opinion of the Attorney General's representative, these considerations are lawful, are not extraneous, are reasonable and are not discriminatory. The Minister of Defence did not ignore the effects of deferring Yeshivah students' service upon the size of I.D.F. regular and reserve forces, and on preparations for the defence needs of the State of Israel, but he arrived at the decision that this type of candidates for service should not be drafted into the I.D.F.. In weighing all the various factors, the factors which justify the non-integration of Yeshivah students prevailed with the Minister of Defence. In the opinion of the Attorney General's representative, this Court may not replace the Minister of Defence's discretion with its own.

16. On the basis of the Petition and the response to that, three questions are presented for our determination: First, do the Petitioners have standing under the law to move us to consider the Petition; Second, is the subject of the Petition justiciable; Third, is the Minister of Defence's decision lawful, that is to say, does the Minister have the power to defer the defence service of Yeshivah students, and if so - did he make lawful use of his power. We will address each question separately, beginning with the question of standing.

Legal Standing

A. The Point of Departure

17. As we have seen, in the past petitions regarding the deferment of defence service of Yeshivah students were dismissed because of the rules relating to standing. Must the Petition before us also be dismissed because of these rules? In my opinion, the answer to this is in the negative. In my view, the Petitioners have standing under the law, and if their grievance is justiciable, it is appropriate that it be examined on its merits.

For purposes of establishing this conclusion of mine, the state of our rules relating to standing should be addressed. The point of departure for this examination is in the provisions of section 15 (c) and (d) of the Basic Law: The Judicature. This section empowers the High Court of Justice to hear matters in which it deems it necessary to grant relief for the sake of justice and which are not within the jurisdiction of any other court (sub-section (c)). This section likewise empowers the High Court of Justice to issue orders against governmental authorities "to do or refrain from doing any act in the lawful exercise of their functions" (sub-section (d)). In these two provisions there is no reference to the question of "the administrative right" or "the administrative duty", and in any event, there is no reference to the question of the legal standing of the person seeking to claim a breach of a right or duty. The Legislature created a court with jurisdiction, while assuming that - according to accepted English tradition - that in granting jurisdiction to address a particular issue, there is a type of delegation of power to create judicial rules regarding jurisdiction. I addressed this link between the adjudicator and the rule in one case, when I said (in H.C. 731/86, Misc. H.C. App. 91/87 [5], at page 458) as follows:

"This link between the rule and the adjudicator, between the law and the court, characterizes both Israeli law in general and administrative law in Israel in particular. The development of administrative law has been mainly a by-product of the jurisdiction of the High Court of Justice".

Within the scope of this power, the High Court of Justice created sets of rules regarding the manner of its exercise of discretion. One of these sets of rules are those relating to standing, which are trues rules derived from case law. There is nothing in the Basic Law: The Judicature, which requires the adoption of one rule or another, or one approach or another in the rules relating to standing. Neither those who advocate a "strict" approach those who follows a "generous" approach base nor themselves upon the language of the Basic Law: Judicature. Unlike the United States, where the rules as to standing grew out of the interpretation of a provision in the Constitution, our rules developed without any statutory underpinnings. On the contrary: on its face, the language of the statute is broad, and it empowers the High Court of Justice to address, inter alia, every breach of the law by a governmental authority, whatever the petitioner's standing may be. Indeed, the rules as to standing were developed to place self-imposed limits on the High Court of Justice's exercise of jurisdiction. Modern courts in the Western world have imposed similar limits on themselves. (See A. Bleckmann, "The Aim of Judicial Protection: Protection of the Individual or Objective Control of the Executive Power? The Role of Locus Standi", Judicial Protection Against The Executive (Heidelberg - New York, vol. III, 1971) 19). As to this matter there is no substantive difference between the common law and civil law countries, and in the latter as well, rules as to standing prevail (see Harding, "Locus Standi in French Administrative Law" [1978] Pub. L. 144). In this spirit the High Court of Justice also developed rules as to standing, which come to place self-imposed limits on its discretion - although not on its jurisdiction - in granting relief to a petitioner who does not have standing under the law. The legal standing of the Petitioners must be examined in this context.

B. The Basis of The Problem

18. The rules regarding standing in Israel are in a state of flux, which began some time ago. Already in H.C. 287/81 [6], at page 343, President Agranat noted that "an examination of the local case law reveals that, over the course of time, this Court's approach towards standing has undergone an evolution in the direction of liberality". This evolution continues to this day (see H.C. 217/80 [7]). It is not unique to Israeli law, but exists in other Western countries as well (See H.W. Wade, Administrative Law (Oxford, 5th ed. 1982) 578). Justice Witkon addressed this point when he noted that "in recent years there is a recognizable tendency around the world to facilitate access to the courts by every applicant". (H.C. 566, 563/75 [8], at page 346). This tendency in the modern world has been expressed both in judicial pronouncements, in scholars' essays, and in proposed legislative reforms. (See J.J. Tokar, "Administrative Law: Locus Standi in Judicial Review Proceedings", 14 Man. L.J. (1984) 209).

19. What is at the root of this state of flux, and why have the rules as to standing not become settled? The answer to this question does not derive from the inability of judges and legal scholars to draft clear principles of standing. This possibility exists, and it has been proposed more than once in the literature (See K.C. Davis, Administrative Law Treatise (San Diego, 2d ed., vol. IV, 1983) 208). The answer to this question derives, in my opinion, from the uncertainty regarding the nature of the rules as to standing themselves. One cannot formulate said rules without first formulating a conception of their role in public law. To formulate a conception of the nature and role of these rules, it is necessary to take a position on the role of judicial review in the realm of public law. "Determination of policy with regard to standing is influenced by a fundamental, value-laden and substantive concept of the role of judicial review of governmental authorities" (Z. Segal, Right of Standing Before the Supreme Court Sitting as the High Court of Justice (Papyrus, 5746) 5). Indeed, rules as to standing differ, defending the appropriate model for judicial review is defence of individual rights, or preservation of the rule of law and the lawfulness of governmental functions.

Furthermore, in order to formulate a conception of the role of judicial review, it is necessary to take a stance regarding the judicial role in society and the status of the judiciary among governmental authorities (see P. Cane, An Introduction to Administrative Law (1986) 27, 165). The judge whose judicial philosophy is based solely on the outlook that the role of the judge is to decide a dispute between holders of existing rights, is unlike the judge whose judicial philosophy is based upon the recognition that the role of the judge is to create rights and maintain the rule of law. Against this background, it is possible to explain the conflict between the position of Justice Witkon (in H.C. 40/70 [1], at page 247), that, "the more the subject of the complaint is of a public nature... the more is it necessary strictly to enforce the requirement that the complainant suffer substantive harm in his private domain", and that of Justice Berinson (in H.C. 26/76 [9], at page 802), that, "the more significant the issue from a public perspective, the more the Court's inclination to recognize the petitioner's right to bring the issue before it will be intensified, even though he is a rank-and-file citizen". True, the theory of standing developed "in an empirical manner" (Justice Witkon in H.C. 40/70 [1], at page 245), but behind the practice is the theory, and behind the theory stands a world outdoor as to the role of the judiciary in society. It therefore should not be surprising that different judges have taken different positions as to the rules of standing. By these positions they expressed the differences in their approaches to the role of judicial review in public law, and the role of the judge in a democratic society.

C. "The Classical Approach"

20. I have addressed the liberalization in the rules of standing during the past few decades. This liberalization did not intensify judicial differences, but rather narrowed them. It seems to me that there is agreement between judges as to the outer limits of the standing problem, whereas the argument focuses primarily on areas close to those limits. It seems to me that the following two propositions are accepted by the majority of justices in this Court who have considered the question of standing, and it reflects the "classical" judicial position: first, that in order to attain standing under the law, the petitioner need not point to a legal right of his own which was breached. President Agranat stressed this in H.C. 287/69 [6], at page 343, when he said: "the citizen who comes to complain about a public authority's decision or action need not show, as to this issue, that that decision or action impairs a right of his". Indeed, a petitioner need not be a "Hofheldian petitioner" to attain standing (H.C. 217/ 80 [7], at page 440). It is sufficient that the petitioner point to an interest of his which was harmed. Moreover, this interest need not be particular to the petitioner, and the lawful standing of a petitioner whose interest has been harmed will be recognized even when many others share this interest with him (see H.C. 217/80 [7]). Justice Ben-Porat emphasized this in H.C. 1/81 [10], at page 388, when she stated:

"To establish standing, it is in no way necessary that the alleged harm be confined to the petitioner alone, and not to a group of people among whom he is numbered".

Finally, for purposes of laying the evidentiary foundation as to harm to his interest, the petitioner need not show absolutely that an interest of his was harmed; it is sufficient that he show a reasonable prospect that one of his interests will be impaired. We do not engage in prophecy, merely in the evaluation of prospects. Accordingly, the decisions of this Court have stressed that it is sufficient that the petitioner prove an "apprehension" of harm to one of his interests (Justice Silberg in H.C. 29/55 [ll], at page 1000), or that governmental action is "likely to cause harm" (President Agranat in H.C. 287/69 [6], at page 343), or that the petitioner is "likely to be harmed" (Justice Witkon in H.C. 26/76 [9], at page 806). The second proposition shared by most judges who have dealt with the rules as to standing, is that Israeli law does not recognize the standing of every citizen solely because he claims that the government violated the law. The actio popularis, as such, is not recognized in this country (Justice Agranat in H.C. 287/69 [6], at page 350; H.C. 217/80 [7], at page 443; President Shamgar in H.C. 463, 448, 446, 431, 429, 428/86, Misc. H.C. App. 320/86 [12], at page 559). "This does not embody a kind of general recognition of the existence of the public petition"; (Justice D. Levin in H.C. 609/85 [13], at page 783). Justice Ben-Porat stressed this in H.C. 179/ 82 [4], supra, at page 424, when she stated: "All agree that the individual should not be allowed to assert his grievance or plead the public's case in an actio popularis".

D. The Conventional "Exceptions"

21. In light of the accepted parameters, the debate focuses upon identifying those extraordinary situations ("exceptions"), in which the standing of a petitioner who cannot point to an interest of his own which was harmed is recognized. As to this matter also, there is agreement among the majority of judges in a number of areas: first, a petitioner's standing will be recognized where the substantive claim he raises points to government corruption. Justice Landau stressed this in H.C. 348/70 [14], at page 692, stating:

"Therefore, it may be that in a serious case where the public interest appears to be decisive, as for example, where there is fear that those in charge of expenditure in a local authority are actually acting corrupt, the court will overcome its reluctance and will address the merits of a complaint brought before it by a taxpayer, in his capacity as such".

Accordingly, if a public authority acted out of bias or in a situation introducing a conflict of interest, the standing of a disinterested petitioner would be recognized. Justice Elon emphasized this when he noted that the standing of a petitioner who asserts "an act of corruption by the governmental authority, such as a decision tainted by personal interests of the holder of a position in that authority, in cases of bribery and the like" will be recognized (H.C. 969,852/86, Misc. H.C. App. 543,523,521, 518, 515-12,507,502,487,486,483/86, 1,33/87 [15], at page 66); Second, this Court will recognize the standing of a petitioner who raises a "clear constitutional" problem (Justice Elon, id.). Within this scope are questions related to elections and party financing (H.C. 98/69 [16]; H.C. 148/73 [17]); the establishment of commissions of inquiry under the Commissions of Inquiry Law, 5729-1968 (H.C. 152/82 [18]); the President's power to pardon (H.C. 428, 429, 431, 446, 448, 463/86, Misc. H.C. App. 320/86 [12] supra), the Broadcasting Authority's duty to uphold the principles of free expression (H.C. 243/82 [19]), and other problems as well, which affect the "very essence of the democratic regime or the constitutional structure of our society" (Justice Elon in H.C. 852, 862/86, Misc. H.C. App. 483, 486, 487, 502, 507, 512-515, 518, 521, 523, 543/86, 1, 33/87 [15], at page 68).

E. Liberalization of The "Exceptions"

22. Indeed, the primary area of disagreement concerns the nature of the "exceptions", wherein the standing of the "public petitioner" will be recognized. In this context, three questions arise: First, is the "corruption" exception limited to the claim of corruption, or maybe it should be broadened it to include any allegation of a serious flaw in the administration's action; Secondly, is the "clear constitutional" exception confined solely to constitutional matters, or is there room to extend it to any matter of a public nature which has a direct impact on the rule of law; Thirdly, may additional exceptions be recognized, or are the exceptions limited to just two. In all of these questions, differences of opinion between the judges emerge. As for myself, I follow a "liberal" approach as to each of these questions. Accordingly, my opinion is that the first exception is not limited to government corruption alone, and there is room to broaden it to any case in which the petitioner points to a serious flaw in the administration's actions. Similarly, the second exception is in my opinion not limited solely to constitutional matters, but rather applies, in the words of my colleague President Shamgar, in H.C. 1/81 [10], at page 374, whenever "the issue raised in the petition is a subject of a public nature which has a direct affect on promotion of the rule of law, and on setting of limits, which ensure its maintenance in practice", and to all those "issues of an unusual legal nature, which affect the foundations of the rule of law" (H.C. 852, 869/ 86, Misc. H.C. App. 483, 486, 487, 502, 507, 512-515, 518, 521, 523, 543/86, 1,33/87 [15], at page 23).

Finally, I believe that the exceptions to the general rule which does not recognize the "actio popularis" as such, are not limited to the two noted. We must not create rigid categories of exceptions. The area must remain flexible, by leaving the option of allowing additional circumstances in which the standing of a petitioner with no interest will be recognized. Thus, for example, there are cases, which, as a consequence of their very nature, no individual will have an interest in them according to the accepted criteria. At times, the standing of the "public petitioner" should be recognized in such cases (H.C. 217/80 [7], at page 443; H.C. 852, 869/86, Misc. H.C. App. 483, 486, 487, 502, 507, 512-515, 518, 521, 523, 543/86, 1, 33/87 [15], at page 28). The case law in Canada has consistently taking this view. (See: Thorson v. Attorney General of Canada et al(No. 2) (1974) [74]; Nova Scotia Board of Censors v. McNeil (1975) [75]. Thus, for example, it was held that a public petitioner should be recognized as to the allegation that certain exemptions from criminal liability for abortion, granted to the pregnant woman and the doctor, are contrary to the Constitution. The reason given, inter alia, is that there is no petitioner with an interest who can raise this claim before the court (Minister of Justice of Canada et al. v. Borowski (1982) [76]). Indeed, the borderlines between the exceptions themselves are in any case vague frequently several of them exist simultaneously, as was the case in H.C. 511/80 [20], in which President Shamgar noted, at page 481:

"The grave allegations regarding the extreme illegality of the act, which relate here to a clear public issue, justify allowing access to the petitioner and examining the substance of the allegations, which go, in many respects, to the root of the matter".

Accordingly, I accept Dr. Segal's approach, that the "public petitioner" should be recognized "when he or she points out a matter of particular public importance, or what appears to be a to an apparently particularly serious flaw in the authority's action, or to the fact that the action assailed is of particular importance" (Segal, in his book supra, at page 235). Nonetheless, these should not be viewed as a closed list of "exceptions", but rather as mere signposts which reflect the proper borderline between the High Court of Justice engaging in judicial review and refraining therefrom. Indeed, the point of departure guiding me is the fundamental outlook - which Justice Berinson stressed nearly twenty years ago - that this Court is the citizen's safest and most objective refuge in his dispute with the government" (H.C. 287/69 [6] supra, at page 362), and that the role of the High Court of Justice is to ensure the realization of the principle of the rule of law. Closing this Court's doors before the petitioner without an interest, who sounds the alarm concerning an unlawful government action, does damage to the rule of law. Access to the courts is the cornerstone of the rule of law (see G.L. Peiris, "The Doctrine of Locus Standi in Commonwealth Administrative Law"[1983] Pub. L. 52, 89). Lord Diplock stressed this in the Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd. (1982) [72] case, at 644:

"It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped".

23. Indeed, according to my outlook, courts in a democratic society should undertake the role of safeguarding the rule of law. This means, inter alia, that it must impose the law on governmental authorities, and ensure that the government acts in accordance with the law; this conception of the judicial role does not contradict the principle of the separation of powers and the role of the court within the confines of this principle. On the contrary: this approach is supported by the principle of the separation of powers and the rules thereof. In modern times, this principle means checks and balances between the various authorities (see President Shamgar's statement in H.C. 306/81 [21], at page 141, and also A. Witkon, Politics and Law (Hebrew University of Jerusalem, 5725) 71. I stressed this in one case when I stated:

"An enlightened democratic regime is a one characterized by separation of powers. This separation does not mean that each power operates on its own, without giving any consideration to the other powers. An outlook of this sort would deeply harm the foundations of democracy itself, because it results in a dictatorship by every authority within its own sphere. On the contrary: separation of powers means mutual balance and control between the different powers. Not walls between the authorities, but rather bridges that control and balance" (H.C. 73/85 [22], at page 158).

These checks and balances mean, inter alia, that within the confines of a dispute before a court, the court must ensure that all government authorities - legislative, executive and judicial - operate within the confines of the law. In doing so, the court does not harm the principle of the separation of powers, but rather helps to realize it. Accordingly, I do not accept the following statement by Justice Elon, in support of his approach that, in general, where there is no interest, there is no standing:

"The benefits of opening the gates of this Court to this type of improvement of society are outweighed by its drawbacks, and this statement has reappeared more than once in the opinions of this Court and in the writings of scholars:

a. The court would be flooded with fundamental issues, and so will not be available to engage in its primary function, i.e. doing justice between litigants who claim that their rights have been prejudiced.

b. A likely resulting mishap would be that the principle of separation of powers will be adversely affected, by deflecting the court into dealing with questions of a public nature which should properly be decided in the legislature and the executive;

c. And finally - it would be a kind of perversion of the primary and fundamental role of the judiciary, which is to consider and decide contentious matters between two citizens or between a citizen and the government, where the two of them are 'litigants', and one is allegedly aggrieved by the other". (H.C. 869, 852/86, Misc. H.C. App. 483,486,487, 502,507,512-515, 518, 521,523,543/86, 1,33/87 [15], at page 66).

In my opinion, the principle of separation of powers does not mean that a problem of a public nature is decided in the legislative and executive branches and not in the judiciary. The principle of separation of powers means that the legislative branch is entitled - in the absence of constitutional limitations - to establish the legal framework regulating a public problem, and that the executive branch solves public problems within the legal framework established for it. However, once this framework is established, the court must determine - and this is its role in the system of powers in the state - whether the legal framework which was established is being complied with in practice. There is nothing in the separation of powers principle which permits one of the branches to act contrary to the law. There is also nothing in the separation of powers principle which requires that the judiciary refrain from dealing with actions of a public nature, to the extent that this involvement centers upon the constitutionality of an act. Lord Diplock addressed this issue in the Inland Revenue Commissioners [72] case, at 644:

"It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge".

Indeed, examination of the constitutionality of any act - whether of a public nature or not - is the role of the judiciary, and in this way it fulfils its role in the system of separated powers. In this context, I do not accept the approach - which Justice Elon also considered - that the primary and fundamental purpose of the judiciary is to decide disputes, at whose centre is an allegation of grievance, where one is person is aggrieved by another. This outlook has its source in private law, where a litigant is a person whose rights are denied. In private law itself there are exceptions to this approach (for example, a shareholder's standing to plead the company's case against a third party, by means of a derivative claim).

This approach is not accepted at all in public law. The "classic" rules as to standing, which are based on the interest of the aggrieved party, do not require that the interest party should be able to point to a right of his which was violated before the court will become involved. The generally recognized exceptions are not based on allegations of his. Wade, supra, emphasizes this at 577-578, when he notes that the approach, according to which only a person whose right was violated is entitled to move the court, is not the proper approach in public law:

"In private law that principle can be applied with some strictness. But in public law it is inadequate, for it ignores the dimension of the interest. Where some particular person is the object of administrative action, that person is naturally entitled to dispute its legality and other persons are not. But public authorities have many powers and duties which affect the public generally rather than particular individuals. If a local authority grants planning permission improperly, or licenses indecent films for exhibition, it does a wrong to the public interest but no wrong to any one in particular. If no one has standing to call it to account, it can disregard the law with impunity. An efficient system of administrative law must find some answer to this problem, otherwise the rule of law breaks down....The law must somehow find a place for the disinterested citizen, in order to prevent illegalities in government which otherwise no one would be competent to challenge".

But beyond this, I see nothing in the nature of the judicial role which necessitates holding that only the person whose right is violated is entitled to plead his case. The existence of a right before application to the court is not a basic condition of judicial action. Frequently the court creates, by its very ruling, the right itself. Judging is not merely declarative; it also involves creativity. Furthermore: There is no philosophical justification for limiting the judicial role to cases in which the litigant is aggrieved by another. The role of the court is to settle a dispute, that is, to decide an argument - and there is no justification for limiting the concept of dispute only to those disputes in which one side claims that is aggrieved by the other side. True, it is a well-known, fact that the court is an institution which decides disputes, does not act in the absence of a dispute, and is not entitled to create, of its own initiative, a dispute. However, where a dispute is before the court, there is no basis for limiting the judicial role to those disputes in which one side claims that he is aggrieved by the conduct of the other party. True, without a dispute there is no room for judicial determination - "It is clear that there can be no judicial proceeding except where there is a 'lis'" (Justice Witkon in H.C. 40/70 [1], at page 246). However, it does not follow from this that

"A particular person must come and assert his or her right or grievance. In this respect judicial proceedings differ from proceedings before the legislature or the executive. Without a complainant, there is no place for adjudication, and if a complainant who is nothing but the spokesman for the general public were sufficient, judicial proceedings would be likely to obscure make the borderlines unclear and be interpreted as a breach of the principle of the separation of powers" (id.).

I do not accept this approach. True, without a dispute there can be no adjudication. However, this requirement does not take any position regarding the nature of the dispute, whether it is concerned with the rights of an individual, the interests of a group, or the general duties of the administration. Professor H. Klinghoffer addressed this point in his work, Administrative Law (Mifal HaShichput, 5717) 8-9:

"The essence of adjudication is the power to hear a dispute and decide it. Accordingly, all individual norms which constitute a decision in a dispute constitute adjudication in the functional sense. And what is a dispute? It is sufficient at this point if we say that the concept of a dispute between parties, lis inter partes, does not contain any a priori test as to the content of the dispute. The logic of the law does not require that certain issues be seen as potential subjects of a dispute, while others are excluded from the range of potential subjects of dispute. The issue is entirely dependent on its regulation by positive law. There is, a priori, no relevant test for justiciability in the functional sense. Adjudication takes place as to those issues which the positive law endows procedure with the form of a dispute".

Indeed, adjudication is characterized by determination between claims, whatever content (see E.W. Patterson, Jurisprudence (Brooklyn, 1953) 564). Not infrequently, it is not the right which creates the dispute, but rather the dispute which creates the right. If a right is a desire or interest which is protected by law, then a judicial determination which affords the protection of the law, creates the right itself. Accordingly, the judicial nature of the function is not determined by the content of the dispute, but by its very existence. Judicial involvement in problems of a public nature, and even problems of a political nature, cannot "make the borderlines unclear and be interpreted as a breach of the separation of powers" principle (Justice Witkon in H.C. 40/70 [1], at page 246). Justice Witkon himself stressed this, in his article supra, at page 70:

"Those who view the involvement of the judiciary in political determinations as a form of usurpation of legislative and governmental powers must also remember that the judicial function differs, in nature and character, from functions granted to the legislature and executive. It operates on a different plane - on the plane of supervision and review - which does not necessarily involve overstepping of bounds".

True, "without a complainant there can be no dispute", but why must the complainant complain only as to a right of his which was violated, or an interest of his which was harmed; why should he not complain as to a law which has been violated? What is the moral basis for the approach that he who claims that his money was unlawfully stolen can apply to the court, but he who claims that the public's money was unlawfully stolen cannot do so? What is the fundamental argument which is based on legal theory and the separation of powers theory, that justifies this distinction? In my opinion, it has no basis. Indeed, my approach is that the requirement that a right or interest exist as a condition for standing under the law is a requirement without any philosophical basis, which is not rooted in the separation of powers, does not rest on moral grounds, and does harm to the rule of law.

The Solution: Pragmatic Balancing

24. Insistence upon this perception of the court's role must, in principle, lead to a broad recognition of the public action, and not just in exceptional instances. Nonetheless, I stated that I do not accept this approach. Does my approach not encounter the same difficulty faced by those who maintain that the actio popularis should not be recognized, but are willing to do so in exceptional circumstances? Indeed, in terms of legal theory and the separation of powers theory, there is nothing to prevent "the public court" opening its doors to the public petitioner. The impediment to a "general open-door policy" does not derive from legal theory or the separation of powers, but rather is primarily based on considerations of judicial policy (see K.E. Scott, "Standing in the Supreme Court - A Functional Analysis" 86 Harv. L. Rev. (1973) 645). There is a fear that the court will be flooded with "public petitions"; precious judicial times will, as a result, be improperly allocated, and treatment of litigants who claim an impairment of their rights will be delayed; that at times a party without an interest in the outcome of the litigation will not supply the required factual foundation (see S.A. de Smith, Judicial Review of Administrative Action (London, 4th ed. by J.M. Evans, 1980) 410).

These arguments and others are not of a theoretical dimension, but rather of a practical dimension, which varies from petition to petition. Some are well founded, some less so. Cumulatively they sometimes give rise to a practical problem. The solution to this problem is in the proper balance between the fundamental conception and the practical problems. "The exceptions", wherein the standing of the "public petitioner" is recognized, and the judicial principle that the approach must be empirical and not rigid, reflect this balance. Accordingly, the more serious the alleged defect in the authority's action, the more the dispute is of a public nature, and the fewer the number of people possessing a right and interest, the problem being of a general and public nature, the more the considerations in favour of recognizing the "public petitioner" prevail.

As Justice Berinson noted in H.C. 26/76 [9], at page 802:

"Not rigid rules are required, but an empirical approach, yet flexible, not exacting or strict. It is no longer necessarily the test of a clear issue or direct or indirect personal involvement that is needed, but rather the genuineness of the application and its seriousness, its public importance and actual merit; and the more important the issue from a public perspective, the greater the court's tendency to recognize the petitioner's right to bring the application, even though he is an ordinary citizen".

Accordingly, I believe that we should continue to follow the approach which does not recognize the standing of the "public petitioner", as such, and is not satisfied with the mere allegation that the law was violated. This is a necessary but not sufficient allegation. The petitioner must show "something more", in accordance with the "liberal" approach to the exceptions.

25. I am aware that this flexible "liberal" approach gives rise to a number of difficulties: first, it creates uncertainty, because the courts must apply the "jurist's expert sense" to settle questions relating (see Justice Shamgar's statement in H.C. 1/81 [10], at page 373). As for me, I am not persuaded that this uncertainty is greater than the uncertainty involved in defining the concept of "interest". But be this what it may, it must be assumed that this uncertainty will surely lessen over time, as the borderline between those with standing and those without is defined more clearly. Moreover: I see no flaw in this lack of clarity. I regard, the rules as to standing as practical rules, intended to safeguard the efficiency of the court's activity, not rules which create a "vacuum", wherein, due to lack of standing, the government can ab initio act unlawfully.

Government authorities must assume that every petitioner has standing and plan their actions lawfully. The court itself must, where it sees fit, bring up the rules as to standing as a means of safeguarding the efficiency of its activity. "The court is placed in charge of sifting and examining petitions, and it will decide in a proper case, in light of the nature of the issue and the petitioner's relationship to it, whether to issue an order nisi" (President Shamgar in H.C. 852,869/ 86, Misc. H.C. App. 483, 486, 487, 502, 507, 512-515, 518, 521, 523, 543/86, 1,33/87 [15], at page 28). Secondly, I understand that there are practical difficulties in distinguishing between those "public petitioners" who apply to the court for publicity purposes alone (whose petitions should be dismissed), and those petitioners who turn to the court out of a true desire to ensure the rule of law (whose petitions should at times be heard). There is therefore a fear that undeserving petitioners will be heard, and the court's time will thereby be wasted. Moreover: as a result of its desire to prevent "a fortified and impregnable wall which completely blocks access to the court to anyone, on the sole grounds that he is bringing a matter which is not his personal concern, although it is of general public interest" (in the words of Justice Berinson in H.C. 26/76 [9], supra, at page 803), the court is likely to find itself flooded with baseless petitions. The problem is indeed a real one, and methods of dealing with it must be found. As for me, it seems that the troublesome petitioner is not a serious problem. Scott, supra, referred to this at p. 674:

"The idle and whimsical plaintiff, a dilettante who litigates for a lark, is a specter which haunts the legal literature, not the courtroom".

The problem of the flood of baseless petitions - both in the case before us and in other cases in which it is raised (see F.K.H. Maher and R.C. Evans, '"Hard' Cases, Floodgates and the New Rhetoric", 8 U. Tasmania L. Rev. (1985) 96) - also seems marginal to me, if only for the lack of empirical proof of any substance to this argument. Experience in other countries which were prepared to recognize the public petitioner within clear limits, does not show that they were inundated with petitions with those limits (see Segal, in his book, supra, at page 170). Davis reference to this, supra, at 227-228:

"A reason sometimes asserted against the central principle is that it opens the gates to floods of litigation. The fear has no foundation. New York and Massachusetts have often allowed 'any citizen' or 'any resident' to challenge legality of governmental action ...and the result has been trickles, not floods. The D.C. Circuit has pointed out that the dockets... have not increased appreciably as a result of new cases in which standing would previously have been denied' ...The various statues of the 1970's that allow standing for 'any interested person' or 'any person' have not resulted in an unusual amount of litigation".

It seems to me that this has also been the experience of the High Court of Justice in Israel. The "liberalization" in the standing rules which has taken place in recent years has not brought about the flooding of the Supreme Court with the claims of "public petitioners". "Public petitions" continue to be few in number, and only isolated cases among these are brought by vetations petitioners. Nonetheless, it is baseless claims by such nuisance-petitioners ought to be prevental - even in the few cases where public petitioners apply to court. Like Justice Berinson, I am also certain "that we can cope with such people. There are people of this sort everywhere and at all times, and they are among us today, and we frequently have to contend with them, but we manage to set them aside" (H.C. 287/69 [6], at page 362).

Courts have frequently had experience in determining whether a litigant is genuine in his application. A similar determination can be made as to the public petitioner. Legal costs constitute an appropriate means of deterrence. Indeed, that it is necessary to consider this practical problem, which disturbs many and prevents them from taking a liberal attitude to the question of the standing of the public petitioner. Nonetheless, this practical consideration should not determine the result. A court' s workload must not close the courthouse doors before petitioners who complain about a serious violation of the law on a public issue. Justice Berinson correctly noted in H.C. 26/76 [9] at page 803, that "upholding the rule of law and good government must not become a doormat or scapegoat because of the burden upon the court and the fear that it will press yet heavier if we broaden access there to as well as the basis for standing". Thirdly, I accept that difficulty exists in determining criteria for when the issue raised in a petition is of a public nature and when it is not, when the wrong in the administrative action is serious and when it is not. This difficulty in turn creates uncertainty, which will undoubtedly be dispelled over the course of time. For example, it is obvious that denial of a license for reasons of bias (such as bribery or conflict of interest) is a government action which presents a public problem and indicates a serious defect in governmental activity, on account of which a public petitioner should be recognized (P.P. Craig, Administrative Law (London, 1983) 459), but what is the rule if the license was not denied out of bias, but rather pursuant to an infringement of the license holder's right to a hearing? Is a public problem indicating a serious wrong present here as well? Would there be significance to the fact where the petitioner to show that the infringement of the right to a hearing is not an isolated occurrence, but rather a general policy? Indeed, the public character and serious defect tests are not simple or easy.

I accept that the allegation that the law was violated and the rule of law harmed is not sufficient of itself to grant lawful standing. The allegation of harm to the rule of law is necessary, but not sufficient, to support the public petitioner's standing. The claim that in the petitioner's eyes, the matter is of a public nature is also insufficient. Justice Elon correctly noted that "it is not sufficient that the petitioner seeks in his petition to insist upon the rule of law, even if the issue is, in his fundamental opinion, substantive and foundamental (H.C.852,869/86, Misc. H.C. App. 483, 502, 507, 512-515, 518, 521, 523, 543/86, 1, 33/87[15], at page 66). Indeed, in addition to injury to the rule of law, it is necessary - by objective standards - to indicate additional facts, such as serious injury to administrative actions or a matter of public character or a matter which touches upon the principles of the rule of law, as to which there is no petitioner with an interest.

As noted, this list itself is not closed, and obviously uncertainty is created both with regard to the content of the list and its limits. Nonetheless, this approach seems to me preferable to that which shuts the courthouse doors in such cases. Moreover, the "strict" approach also recognizes a number of "exceptions", and I see no difference, in terms of certainty, between the two. Take, for example, the "strict" approach, which is prepared to recognize an exception as to a petition which raises an issue of "clear constitutional" nature, or a petition which touches "the soul of the democratic regime or the constitutional structure" (Justice Elon, id., at page 66,68). Do these exceptions really generate certainty? What is a "clear constitutional" issue, and what is the difference between it and a constitutional issue which is not clear? And how is the "soul" of the regime determined? Indeed, in my opinion these tests are no more certain than the "liberal" tests which I champion, and I am not prepared to regard the uncertainty contained in the two types of tests as an argument in favour of the "strict" approach.

G. From The General To The Particular

26. The petition before us must be examined against the backdrop of this system of rules as to standing. In my opinion, the petitioners' standing should be recognized, whether we follow the "classic" rules of standing, which require that the petitioner indicate some interest, the "exceptions", accepted by most of the Justices of this Court, or the "liberal" approach" which should be followed as to the standing issue. I will examine each of these possibilities separately.

(1) The Petitioners Have Standing Under The Classic Approach

27. Do the petitioners have standing under the "classic" approach? Have the petitioners succeeded in pointing to an interest of theirs which was harmed by deferment of Yeshivah students' military service? As to this issue, the petitioners have in my opinion satisfied their obligation if they succeed in showing that, were the Yeshivah students to be enlisted, this would alleviate be burden of any reserve duty for the petitioners. True, this alleviation would not be specific to the petitioners alone, but we have already seen that uniqueness of interest is not essential for the attainment of standing under the law. Indeed, already in H.C. 40/70 [1], at page 247, Justice Witkon noted that "if I thought that a portion of his service could be attributed to the waiver of the Yeshivah students' service, I would say that he suffered substantial personal harm. From this we may conclude that it is a question of the factual basis presented by the Petitioners in their Petition as to this matter, the Petitioners attached to the petition, inter alia, the affidavits of Colonel E. Wald and of Colonel M. Bahat. Colonel Wald - who served, inter alia, as Chief of the Long-Term Personnel Planning Division, Assistant to the Chief of the Planning Division, and Assistant to the Deputy Chief of Staff and Chief of the Intelligence Division - analyzed the army's personnel requirements in his affidavit. In his opinion, deferment of the enlistment of 1500 religious seminary students precludes the formation of five tank battalions or two infantry battalions annually. As to our case, the affidavit indicates that deferment of the enlistment of Yeshivah students prolongs the annual reserve service of reserve soldiers. He states:

"I am convinced that there is a direct link between the enlistment of Yeshivah students for regular service, and afterwards in reserve service, and the length of time the petitioners will serve in the reserves, each man in his position. In the event that the enlistment of Yeshivah students is no longer deferred, as requested in the petition, the period of time the petitioners serve in the reserves each year will be shortened".

Colonel Bahat - who served, inter alia, as Chief of the Personnel Planning Division in the Personnel Branch of General Headquarters, stated in his affidavit in H.C. 448/81 [2], an affidavit which was attached as an appendix to the petition before us:

"On the basis of personal knowledge and direct involvement with the system which determines the extent of reserve soldiers' employment in a working year, and the reserve burden on the individual soldier, I have not even a shadow of doubt that if every Yeshivah student of military age would be enlisted and integrated into service in I.D.F. units according to the same criteria as other men of military age who are enlisted, this would bring about a significant alleviation of the reserve service burden of reserve soldiers in general, and of the petitioners in particular, and there is not necessarily any significance to the task which the person in fact performs in the reserves".

The affidavit additionally states:

"The reserve service of the individual soldier is a composite of the joint security needs, the size of the regular army, the size of the reserve army, and the annual budget, and to the extent that the number of regular soldiers and/or reserve soldiers increases (in a particular budget), the burden on the individual who serves in the reserves will be reduced. There is no doubt that non-deferment of Yeshivah students' service, as explained above, will increase the I.D.F. personnel available, in the regular service and the reserve service".

It seems to me that by these affidavits, Petitioners established a factual basis from which it is possible to conclude that if they succeed with their petition, and the enlistment of Yeshivah students is no longer deferred, it will illuminate their reserve service to a certain extent. Thereby they have acquired the right of standing under the classic approach (see M. Negbi, '"Locus Standi' in the Matter of Conscription of 'Yeshiva' Students", 2 Mishpatim (5730) 640) .

This was President Landau's position in F.H. 2/82 [3], supra. In that petition (see paragraph 11, supra) Colonel Bahat's opinion details of which I discussed above was considered inter alia. On the basis of this opinion, Justice Landau determined that the petitioner in that case had prima facie established his right of standing under the law. President Landau states, id, at pages 709-710:

"As for me, I would say that this time the right of standing was properly proved, as distinguished from H.C. 40/70, in the affidavits of Mr. Baruch Bahat. ...In my opinion, the four petitioners, all of whom do reserve service, have thereby shown that apparently, the enlistment of religious seminary students, including the additional categories men of military age recently granted exemptions from service, would, it appears, significantly reduce the burden of reserve service imposed upon them, and they have thus prima facie proved harm to a personal interest of theirs, which is sufficient to grant them a right of standing in the High Court of Justice".

I agree with this approach. It is true that in the end it may become clear that, even if the Yeshivah are enlisted, it will not lighten the petitioners' burden. Deputy President Y. Cohen correctly noted, in H.C. 448/81 [2], supra at page 86, that reality is complex, and it is difficult to prophesy as to this matter. "No one can foretell whether the enlistment of many thousands of religious seminary students, who would view their enlistment into the army as a blow to the foundations of their faith, according to which the study of Torah takes precedence over the obligation to serve in the army, will add to the I.D.F.'s fighting power, or, heaven forbid, will impair such power". Nonetheless, it is sufficient that the Petitioners have established a factual basis from which it can be infer to that, prima facie there is a reasonable chance of harm to an interest of theirs. For purposes of acquiring standing under the "classic" approach, the petitioner need not show certainty of harm to an interest of his. It is sufficient that he show that prima facie there is a reasonable chance of such harm. Dr. Segal considered this in his book, supra, at page 98:

"An element of harm is required for recognition of standing, but it is not necessary that the harm should have actually occurred. It is sufficient that the petitioner demonstrate facts that show that a governmental decision or action is likely to harm an interest of his. For purposes of recognizing standing, it is sufficient that the facts indicate an apprehension of harm, ...It is sufficient for purposes of recognizing standing that the petitioner demonstrate a reasonable, though not certain, possibility that the governmental action is likely to harm him, or affect his situation".

In my opinion, the Petitioners have shown in the Petition before us that the deferment of Yeshivah students' enlistment has a reasonable possibility of harming an interest of theirs, and that cancellation of the deferral and enlistment of Yeshivah students has a reasonable possibility of benefiting the Petitioners. This is sufficient within the framework of the "classic" approach to the rules of standing.

(2) The Petitioners Have Standing Under The Usual "Exceptions"

An exception to the interest rule is recognized where the petitioner raises a problem of clear constitutional character (see paragraph 21, supra), such as the constitutionality of elections and their financing, the President's power to pardon, and similar fundamental problems. In my opinion, the constitutionality of releasing from army enlistment an entire section of the population falls within this framework. The army is one of the central pillars of national existence. Enlistment in the army is a general phenomenon. Every citizen and permanent resident is entitled and obligated to serve in the army. The question of army service is therefore a fundamental question within the structure of our regime. The constitutionality of deferring service for an entire segment of the population appears to me to be a question of sufficient constitutional character for it to be included among the usual exceptions to the interest rule.

(3) The Petitioners Have Standing Under The "Liberalization" Of The Exceptions

29. In my opinion, the Petitioners in the Petition before us have standing, even if we were to say that they have no interest, and even if we say that their petition does not fall within those instances in which a petitioner's standing has been recognized in the past by the majority of the Justices of this Court. The rationale for my approach derives from the fact that the petition before us raises a problem of a public nature, which has a direct effect on the rule of law, and if we do not recognize Petitioners' standing as to its subject matter, it will not be possible to examine its constitutionality in court, because no one has better standing than them. This Court has several times considered broadening the scope of this type of care (see H.C. 2243/82 [19]; H.C. 1/81 [l0]). President Shamgar discussed this in H.C. 428,429,446,463/86, Misc. H.C. App. 320/86 [12], at pages 558-559:

"Even if the argument that none of the petitioners have a real and direct personal interest in revoking the ……on of the amnestys is correct, the petition should not be dismissed in limine because, as this Court has already noted in the past, in specified circumstances, 'where the problem raised is of a constitutional nature' and also where 'the matter raised in the petition is of a public nature, which has a direct affect on the advancement of the rule of law and the delineation of the policies which ensure its existence in practice', it is appropriate to take a more liberal approach and open the gates of this Court to the petitioner who draws attention to such a problem".

And President Shamgar reiterated this approach in H.C. 852,869/86, Misc. H.C. App. 483,486,487,502,507,512-515, 518, 521,523/86, 1,33/87 [15], at page 23:

"The Court was correct to acknowledge, whether explicitly or by inference, the extension of the right of standing regarding issues of an exceptional legal substance, which relate to the principles of the rule of law, including problems which bear a relation to constitutional values. Special attention is paid in cases like these to the consequences of refusing to hear the petition, that is to say, as stated above, there is significance to the fact that there is no other petitioner who has a direct and substantial interest".

These principles apply to our case as well. We are concerned with a constitutional problem of a public nature, which is directly related to the rule of law, and as to which no one has better standing than the Petitioners. The aggregation of these circumstances justifies recognition of Petitioners' right of standing. Having recognized the Petitioners' standing, the question of the justiciability of their petition arises. We now turn to this question.

Justiciability

A. The Parties' Claims

30. The second argument by Counsel for the Respondent is that the subject matter of the petition is not justiciable, and accordingly the Court may not consider the Petition. According to her, the issue of enlistment deferment for Yeshivah students is among those topics which the Court prefers not to enter into and determine. This is a question over which the public is divided in its views, and should therefore, in her view, be settled by other authorities, in the manner accepted in a democratic society. The question of enlistment of Yeshivah students is a political question, and accordingly a change in such a rooted deeply situation requires a political decision, a judicial determination being inappropriate. A court's intervention in this question will fan the flames of public controversy, and accordingly judicial restraint is appropriate. In the opinion of counsel for the Respondent, the mutual relations and reciprocal respect between the governmental authorities indicate the need for the Court to leave the determination of this question in the hands of the other branches of government - the Government and the Knesset.

31. In their response, Petitioners claim that the subject matter of the Petition is justiciable. True, the Petition contains public and political aspects, but this does not bar the hearing of a petition in the High Court of Justice. Even a subject of a clear public nature, from which the aura of politics emanates, and which is likely to give rise to a public outburst, is justiciable. Only thus is it possible to ensure that the executive branch observes the law. Such judicial supervision does not harm the separation of powers. On the contrary: it is in the very soul of every democratic regime.

B. Various Meanings Of The Concept Of Justiciability

32. Contradictory arguments regarding justiciability raise anew the question of justiciability. Indeed, the problem of justiciability is a difficult one, which has occupied this Court's attention since its foundation. It has come up in the decisions of courts outside of Israel, and there as well it has been shown to be a question which is not capable of "scientific verification" (as put by Justice Frankfurter in the case of Poe v. Ullman, (1961) [66], at 508, cited with approved in H.C. 73/85 [22], at page 161. Justice Witkon conducted an in depth study of the question of justiciability in general, and the justiciability of political matters in particular, in his essay, supra, and see Adjudication also A. Witkon, Law and - Collection of Articles and Notes (Schocken, 5748, 1988) 55. At the end of his study he admits, with admirable candor, that "we set out in search of guidance, yet I fear that we are still in a state of confusion (Politics and Law, at page 69). It has been emphasized in case law - in Israel and beyond - that the concept of justiciability is unclear, "that its foundations cannot be defined in a precise manner" (H.C. 73/85 [22], at page 181); and likewise that it is "a concept of uncertain meaning and scope" (Flast v. Cohen (1968) [67], at 95). There are those who have gone so far as to describe it as "a monstrous creature", whose nature "I have never understood" (Justice Silberg in H.C. 295/65 [23], at page 328), while expressing doubt as to "whether a scholar will ever be found who will be able define exactly the meaning of this phrase" (id.). Indeed, the great experts in this area have stated that in their opinion, justiciability "has varying aspects and is among those questions to which no satisfactory answer can be given" (Witkon, Politics and Law, at page 69), and that it has apparently been decreed that the argument over it is to be "an eternal argument" (Justice Witkon in H.C. 606, 610/78 [24], at page 124).

33. I have no intention to resolve Justice Silberg's doubts as to "whether a scholar will ever be found who will be able to define exactly the meaning of this phrase" (H.C. 295/65 [23], at page 328), nor to solve problems "which cannot be settled" (Witkon, Politics and Law, at page 69). Nonetheless, it seems to me that the source of many of the difficulties in understanding the concept of justiciability is the fact that that term carries several meanings (see G. Marshall, "Justiciability" in Oxford Essays in Jurisprudence (Oxford, ed. by A.G. Guest, 1961) 265. It therefore seems to me that the first task is to distinguish between the various meanings of this term, to the extent that they relate to our issue. Afterwards it will be necessary to examine each meaning of the term justiciability separately, against the background of modern developments in the area of public law. It should be stated at this point that this examination of the term justiciability is based on the view that, whatever be its content, it is not a term which relates to the jurisdiction of the court, but rather to the way in which judicial discretion is to exercised therein. In its early days, the Court took the position that lack of justiciability necessarily results in lack of jurisdiction: H.C. 65/51 [25]. Subsequently, this was shown to be erroneous, and it was emphasized that "there is a difference between jurisdiction and justiciability" (Justice Witkon in H.C. 222/68, Mot. 15/69 [26], at page 164), and that the issue of justiciability stands on its own, so that "it should not be confused with the issue of jurisdiction"(Deputy President Y. Kahan in H.C. 306/81 [21], at page 125). Similarly, standing must not be confused with justiciability.

True, this Court's holdings have pointed more than once to the link between these two issues (H.C. 40/70 [1]; H.C. 448/81 [2]), but this connection must not result in the blurring of the distinction between the two issues. Indeed, "the right of standing and justiciability are two separate matters" (Deputy President Y. Kahan in H.C. 448/81 [2], at page 85). Right of standing concerns the petitioner's power to move the court to hear his petition; justiciability concerns the appropriateness of the petition for judicial consideration:

"We must distinguish between two separate issues: on the one hand, the question of the petitioner's right of standing, according to which it is determined whether the court will pay attention to the matters set forth by this particular petitioner as a person pleading his own case. On the other hand, the justiciability question is a separate and different problem, i.e. the question of whether the court will deal with the substance of the matter brought before it" (Justice Shamgar in H.C. 561/75 [27], at page 315).

34. In principle, a distinction can be made between two different meanings of the term justiciability (see H.C. 802/79 [28]). The first can be called normative justiciability; the other may be called institutional justiciability. (Compare A. Bendor's excellent article, "Justiciability in the High Court of Justice", Mishpatim 17 1987-88) 592), which distinguishes between "material justiciability" and "organic justiciability"; see also D.J. Galligan, Discretionary Powers (Oxford, 1986) 241). Normative justiciability answers the question of whether legal standards exist for the determination of the dispute before the court. Institutional justiciability answers the question of whether the court is the appropriate institution to decide a dispute, or whether perhaps it is appropriate that the dispute be decided by a different institution, such as the legislative or executive branches. These two meanings of justiciability are distinct, so that they ought not, therefore, to be confused. Marshall, supra, addressed this at 266:

"Unfortunately, assertions that rules are not justiciable are as a matter of usage employed ambiguously both to indicate the absence in fact of a fixed procedure and to proclaim the unsuitability of a rule for application by that procedure".

I shall now deal with each of the two types of non-justiciability and their place among the High Court of Justice's considerations. It goes without saying that this distinction is relevant to the use of the term justiciability in the High Court of Justice, regarding the hearing of petitions brought before it. This distinction may be irrelevant - and it will be necessary to examine the relevance of other distinctions - to the use of the term justiciability in other contexts. Indeed, the concept of justiciability is a broad concept, which has ramifications in various contexts (R.S. Summers, "Justiciability" 26 Modern L. Rev. (1963) 530). I am dealing here with the concept of justiciability solely within the context of administrative law and the discretion of the administrative court.

C. Normative Justiciability (Or Non-Justiciability)

35. A dispute is justiciable in the normative sense if legal standards exist for its resolution. A dispute is not justiciable in the normative sense if legal standards do not exist for its determination. The question is not whether the dispute ought to be resolved by the law and in court, but rather whether it is feasible to decide it in that way. Normative justiciability therefore does not deal with what is desirable but with what is possible. Justice Brennan addressed this aspect of justiciability in the case of Baker v. Carr (1961) [68], at 217, stating, that a dispute is non-justiciable - or more correctly, raises a "political question", if regarding it there exists -

"a lack of judicially discoverable and manageable standards for solving it".

Justice Sussman also assigned this meaning to the concept of justiciability, both in case law and beyond. In H.C. 186/65 [29], the petitioner requested that the German Ambassador to Israel be barred from entering Israel because of his service in the German army during the Second World War. The High Court of Justice dismissed the petition. In considering the actual question of diplomatic relations with Germany, Justice Sussman noted at page 487, that "the issue is not a legal issue but rather a clear political issue; it cannot be tested by legal standards". As to the confirmation or rejection of one ambassador or another, that, in Justice Sussman's opinion, is a matter of policy:

"It is not a legal issue which by its nature can be resolved in a court. The considerations are not legal, but pertain to foreign policy and the fitness of the candidate for the post, which this Court is neither authorized nor capable of deciding". (Id.)

Justice Sussman reverted to the normative meaning of the concept of justiciability outside the courtroom, stating:

"A matter is said to be non-justiciable when the refrains court from deciding it because it cannot decide it according to legal standards" (Y. Sussman, "The Courts and The Legislature", Mishpatim 3 (5731) 213, 216 margin note E).

Justice Landau addressed this aspect of the concept of justiciability in H.C. 58/ 68 [30]. Here the question arose, inter alia, as to the nature of the Jewish nation for purposes of the Population Registry Law, 5725-1965. In addressing this question, Justice Landau stated that in his opinion, the question is justiciable. Justice Landau said, at page 530:

"The subject of the nature of the Jewish nation is not in itself injusticiable, as shown by the decision of this Court in the Rufeisen case. We are required to abstain from adjudicating in this petition, not from lack of justiciability of the subject, but from our inability to produce a judicial answer to the problem from any of the legal sources from which we usually draw our inspiration".

Justice Silberg reverted to the normative approach to the concept of justiciability in H.C. 222/86, Mot. 15/69 [26], at page 158. Where he said, with regard to the "non-justiciability" argument:

"In my ruling in the Oppenheimer case (H.C. 295/65, supra) I expressed my disapproval of the entire concept, and said that 'I do not understand the nature of this monstrous creature'. Five years have passed since then, and I have been able to reflect upon the 'nature' of that creature. I shall therefore not oppose in principle the very concept, but rather be satisfied with saying that in any event, it has no application to the case before us. Something can only be non-justiciable which, because extra-legal considerations, such as political, constitutional, foreign policy considerations and such, operate within it, it cannot be 'contained' in a legal framework, such as, for example, the American legal principle of 'equal protection' or 'due process'. But an issue cannot be non-justiciable which of itself is a legal matter, but in specified circumstances it is preferable for it to be dealt with by a non-judicial authority. The case before us is of the latter type, and accordingly I dismiss the plea".

Deputy President Y. Kahan reviewed the same approach in H.C. 448/81 [2], at page 88, stating that a question is non-justiciable if it is -

"a question, regarding which the court does not have legal standards on which a judicial decision can be based".

In contrast, it was held that a question is justiciable if it raises "a clear legal issue" (Justice Goldberg in H.C. 89/83 [31], at page 496), which can be resolved "according to ordinary legal principles, under which a statutory body's exercise of jurisdiction is assessed" (President Shamgar in H.C. 852,869/86, Misc. H.C. App. 483, 386, 387,502,512-515,518,521,523,543/86, 1,33/87 [15], at page 37). At times judges express the idea of normative non-justiciability not in terms of "the law", but rather in terms of "the court". They note that "we do not have before us an issue subject to judicial determination and decision" (President Smoira in H.C. 65/51 [25], at page 874), and that these are "such matters which due to their characteristics and nature, the court does not see itselffit to determine" (Justice Berinson in C.A. 591/73 [32], at page 762), or that these are subjects "which are not proper, according to their characteristics and nature, for judicial decision and determination" (Justice Shamgar in H.C. 561/75 [27], at page 315).

36. The relevant point of departure for examination of normative justiciability (or non-justiciability) is the conception that the law is a system of prohibitions and consents. Every act is permitted or forbidden in the world of law. There is no act to which the law does not apply. Every act is contained within the world of law. Accordingly, I do not accept Justice Silberg's approach in H.C. 222/68, Mot. 15/69 [26], which recognizes the existence of actions which cannot be "contained" within the framework of the law. Indeed, every action can be "contained" within the framework of the law. The examples cited by Justice Silberg - the American principle of "equal protection" and "due process"- are appropriate examples of actions which the American Supreme Court has "contained" within the legal framework, and it makes daily use of them in critical examination of legislative and executive action. Indeed, every action can be "contained" within a legal norm, and there is no action regarding which there is no legal norm which "contains" it. There is no "legal vacuum", in which actions are undertaken without the law taking any position on them. The law spans all actions. Sometimes it prohibits, sometimes it permits, at times by creating a presumption of permission ("everything is permitted to the individual, unless forbidden"), or of prohibition ("everything is forbidden to the government, unless permitted). Even in places where there is a "lacuna" in the law, the law sets forth the means for filling the lacuna. According to this approach, there can be no situation in which there is no legal norm applicable to an action.

As to this matter, it is immaterial what the action is, whether it is political or not, whether it is a policy matter or not. Every action - including political or policy matters - is contained in the world of law, and a legal norm exists which takes a stand as to whether it is permitted or forbidden. The argument that "the issue is not a legal issue, but rather a clear political issue" confronts two concepts where there is no basis for such confrontation. The fact that a matter is "clearly political" cannot negate its existence as a "legal matter". Every matter is a "legal matter", in the sense that the law takes a position on whether it is permitted or forbidden. Take, for example, the governmental decision discussed in H.C. 186/65 [29] to establish diplomatic relations with West Germany. This is certainly a clear "political" decision. Nonetheless, the law takes a position on it as well. This is not an action outside the legal world. Thus, for example, the law takes a position as to the question of which organ is authorized to decide, on behalf of the state, on the establishment of diplomatic relations with West Germany. It is inconceivable to argue that this is a political, not a legal, matter. The question of authorization is a legal issue, which has political consequences, just as it is a political issue with legal consequences.

Similarly, if that organ accepts a bribe, it is inconceivable to argue that the issue is political and not legal. The law takes a position on the action of accepting a bribe regardless of the political nature of the action. Accordingly, the political and legal planes are distinct from one another. They do not displace one another, not does one render the other superfluous. They operate in different areas. The very same action, perceived by one, is also perceived by the other. The "political" nature of the action does not negate its "legal" nature, nor does its "legal" nature negate its "political" nature. Naturally, at times the political nature of the acting authority and of the action undertaken have an impact on the content of the legal principles which regulate that action (see the opinion of Justice Elon in H.C. 620/85 [33]) and also Bendor, in his article supra, at page 629). Thus it was held that the participation of a particular party in a Knesset committee, at the time that it was considering an election appeal likely to affect the number of that party's seats, should not be invalidated for conflict of interest. The Court took into consideration the political nature of the Knesset and crafted the rules guiding its conduct in accordance with that nature (H.C. 731/84 [34]).

Similarly, the political nature of the authority is likely to affect the range of factors which it may consider and the options available to it. "The realm of reasonableness... is an area whose measure is determined by taking into consideration the status of the governmental authority concerned and the nature of its powers") (President Shamgar in H.C. 428,429,431,446, 448, 463/86, Misc. H.C. App. 320/86 [12], at page 557), but this is far from saying that political matters are non-justiciable. It is true that the political matter is likely to affect the content of the legal aspect. Moreover, the political aspect is likely at times to bring about a situation where a particular rule of public law will not apply to specific actions having political consequences. In all of these situations, we are not contracted with a situation where no legal norms exist. On the contrary: in every one of these cases we are concerned with a situation in which a legal norm exists whose content does not prohibit, but rather permits, political action. The petition will not be dismissed in these cases because of a preliminary claim of normative non-justiciability, but rather on its merits, for lack of a cause of a dam.

To be precise: I do not take the position that the political nature of the action always affects the content of the rules of law which regulate it. On the contrary: in the vast majority of cases, the political nature of the action does not affect its normative evaluation. Therefore, for example, we were of the opinion that the Knesset is also subject to rules of reasonableness and fairness when depriving Knessets member of their immunity (See H.C. 620/85 [33]). However, there may be exceptional cases. Thus, for example, it may well be out of place to apply the regular rules of the administrative discretion doctrine to the decision to make peace or to go to war. In such exceptional cases the petition will be dismissed, not because of a lack of a legal norm, but because of the lack of a prohibitive norm and the existence of a permissive norm, that is to say, lack of a cause of action. The action is not non-justiciable. The action is justiciable and lawful.

37. Against the background of this theoretical observation regarding the "global" nature of legal thought, it is necessary to revert to and review the case law dealing with normative justiciability (or non-justiciability). Such review shows that the cases which examined this type of justiciability (or non-justiciability) did not stress the absence of a legal norm, but rather emphasized the absence of legal standards and legal criteria to decide the dispute. This position therefore raises the following question: What is the meaning of the view that there exists a legal norm applicable to the issue, but no legal standards within the framework of. such norm to ascertain what is prohibited or permitted thereby? Can a legal norm exist without legal standards? To answer this question, the meaning of the phrase "legal standards" or "legal criteria" must be examined. This phrase apparently means the circumstances and conditions for the application of the norm. When the norm is one of jurisdiction, the standards determine when jurisdiction exists and when it is denied. When the norm relates to taking a bribe, the standards determine when there is the taking of a bribe and when there is not. When the norm is that of reasonableness, the standards determine when an action is reasonable and when it is not. According to this view of the concept of legal norm and of the legal standards, it seems to me that it is quite impossible to refer to the existence of a legal norm, and at the same time, to the absence of legal standards. If the norm exists, it follows that legal standards also exist. If no legal standards exist, that means that the particular legal norm does not exist, and that a different norm applies. I do not see how it is possible to refer to the existence of a legal norm, and at the same time the absence of circumstances and conditions for its application. Of course, the content of the norm and the circumstances and terms of its application may be difficult to apprehend. Every legal norm requires interpretation; no such norm is immune from the process. Interpretation is likely to be complicated and difficult. But at the end of the interpretive process we have before us the legal norm, which by its very nature includes the standards for its application. A legal norm without standards for its application is like a man without a shadow, or a form without substance, Nothing like this exists in the world of law, which consists entirely of '"bodies" and "shadows", and forms which enclose substance.

38. Take, for example, the question of establishing diplomatic relations with West Germany. It was held that this question cannot be "tested by legal standards" (H.C. 186/65 [29], at page 487). It would seem that no one would make this claim - and it was not raised in H.C. 186/ 65 [29] - regarding the question of what organ is empowered under Israeli constitutional law to decide as to the establishment of diplomatic relations. Similarly, I assume that the claim of non-justiciability would not be made if the question were the legality of accepting bribes in the establishment of diplomatic ties in the example I cited. But what is the rule if the argument is that it is not proper to enter into diplomatic relations with West Germany? Does this argument have a legal "framework" and legal standards? To answer this question it is necessary to examine, first and foremost, the nature of the legal norm applicable to the issue. The political plea of "improper" does not have to be translated into the legal norm which signifies means "improper". As we have seen, the political plane and the legal plane are distinct. Examination of the example I have cited reveals that the closest legal norm is that which states that every governmental decision - including that concerning diplomatic relations with West Germany - must be reasonable. The political claim that "it is improper to establish diplomatic ties with West Germany" is translated into the legal argument plea that "it is unreasonable to establish diplomatic ties with Western Germany".

The question is therefore the following: If a general norm in fact exists which imposes on government the duty of reasonableness, and if in fact this general norm applies also to the decision to establish diplomatic ties - could it be that there are no standards and criteria to assess the question of whether governmental conduct is reasonable or unreasonable? In my opinion, the existence of the reasonableness norm implies that standards to assess the reasonableness of an action exist. It cannot be that a norm exists prohibiting unreasonable action, but no standards to decide the question of whether or not an action is unreasonable. We are concerned with an interpretative activity requiring that normative content be given to the principle of reasonableness and that standards be established for its realization. The argument that after the interpretative act there are no standards to determine the reasonableness or unreasonableness of a particular action, resembles the argument that the norm of reasonableness does not apply to a particular action. In that case the argument that the action is illegal would be dismissed, not for lack of legal standards but because of the lack of a prohibiting norm, that is to say, because the action is legal.

39. On the basis of this conception, it is possible to examine the plea of "non-justiciability" which was raised and admitted in H.C. 561/75 [27]. There the petitioner argued that the army was not employing a correct method of debriefing and deriving lessons in the aftermath of the Yom Kippur War. The Court held, at page 319, that "matters concerning the organization of the army, its structure and preparedness, equipping and operations - are not justiciable, since they are not appropriate matters for hearing and determination by courts of law... it is fundamentally unreasonable to expect a judicial authority to weigh and decide what is the most effective method, from a professional-military point of view, for deriving lessons from operational actions and replace the discretion of military authorities, who were trained and placed in command of such, with its own. Personally, I would have reached the same conclusion by a different route, which is as follows: The first question I would have posed is, what is the relevant legal norm for deciding petitioner's claim. To the best of my knowledge, there is no norm which states that an ineffective governmental action is illegal (see H.C. 311/ 60 [35]).

Accordingly, if the sole plea is lack of effectiveness, as such, the petition must be dismissed for lack of a cause of action, because the petitioner did not indicate any norm according to which an ineffective military action is also illegal. However, it seems that the correct legal framework which can "contain" petitioner's plea is that the army is acting unreasonably. His legal argument is therefore that an army which does not conduct debriefing and does not derive lessons as he alleges, is an army which is acting unreasonably.

The reasonableness test is a well-known and familiar one. Under it, the court does not replace the military authorities' exercise of discretion by its own. Under this test, the court asks whether a reasonable army would have taken the actions which the army took, or the actions which the petitioner requests the army to take. The burden is on the petitioner - in light of the presumption of lawfulness - to demonstrate that the army action is unreasonable. If he does not bear this burden, the petition must be dismissed on its merits. On the other hand, if the petitioner succeeds in demonstrating that the army action is unreasonable, his petition must be allowed. The key question is therefore the following: Do legal standards and legal criteria exist, pursuant to which it is possible to decide whether the conduct of debriefing and the learning of lessons undertaken by the army are reasonable, or not? In my opinion, the answer to this question is in the affirmative. I see no difference between this question and any other question concerning the reasonableness of conduct by government (in public law) or by any person (in public and private law). Let us assume that a petitioner suffered a physical injury, and he files a tort claim against the State, alleging that the State was negligent in that it did not conduct debriefing and did not derive lessons, and that because of this he suffered a physical injury. Is it conceivable that this claim would be dismissed solely because it is "non-justiciable"? In my opinion, it would be incumbent on the court to examine this claim substantively, under the reasonableness, negligence and causation standards. More than once, operative plans for the structure of means of combat have been examined under tort law. If legal standards exist within the framework of tort law, why should such standards not exist under administrative law, which seeks to grant a remedy prior to the affliction? To be more precise, I am not now examining the question of whether it is proper for a court to examine the question of whether the derivation of lessons and the conduct of debriefing are lawful. This question will be decided within the framework of institutional justiciability (or non-justiciability). I am currently examining normative justiciability (or non-justiciability). The question which I seek to deal with is whether a legal examination of the issue is impossible, because there are no legal standards for its examination. In my opinion, once it is determined that the norm as to reasonableness applies to particular conduct, it is thereby automatically decided that there are legal standards to measure the reasonableness of that conduct. The argument that there are no legal standards to measure the reasonableness of particular conduct is equivalent to the argument that the norm as to reasonableness does not apply to that conduct, or that the claimant has not discharged the burden placed upon him to demonstrate that the conduct is unreasonable.

40. Since most of the arguments as to normative non-justiciability must, in my opinion, deal with the legal norm which imposes the duty of proving reasonableness on the government, it is worthwhile examining this issue closely. Today everyone agrees that government must act reasonably (see H.C. 389/80 [36]). This means that government authorities must choose that course of action which a reasonable government authority would have chosen under the circumstances of the matter. Frequently a number of reasonable courses of action exist, and then it is incumbent on the authority to choose that course of action which seems best to it, from among the reasonable courses of action ("the scope of reasonableness"). The boundaries of the scope of reasonableness are determined pursuant to the proper balance between the various interests and values struggling for primacy, and in particular the individual's interest and values on the one side, and those of the public on the other. The relevant interests and values are determined according to the relevant material within which framework the action is examined, and on the basis of the fundamental principles of the system, its "credo" and the conception of the enlightened public within it, while the scope is determined according to the weight and balancing between these interests. The determination of the reasonableness of the action is therefore not technical but substantive; the question is not merely a matter for logic and rationality. The question is a matter of legal policy and the balance between competing values. Professor McCormick emphasized this, stating that:

"What justifies resort to the requirement of reasonableness is the existence of a plurality of factors requiring to be evaluated in respect of their relevance or common focus of concern ...unreasonableness consists in ignoring some relevant factor or factors, in treating as relevant what ought to be ignored. Alternatively, it may involve some gross distortion of the relative values of different factors, even though different people can come to different evaluations each of which falls within the range of reasonable opinions in the matter in hand". (Mac Cormick, "On Reasonableness", in Perelman and Vander Elst (ed), Les Notions a contenu variable en droit 131, 136 (1984).

It seems to me that the determination of the various interests and values struggling for primacy is an activity has to be conducted by legal standards. The matter requires interpretation of the relevant norm, and ascertaining the interests and values falling within its Gambit. It is routinely undertaken when the court locates the interests and values - such as public order on the one side and free expression on the other - struggling for primacy. Indeed, the primary difficulty is, in my opinion, inherent in the need to give these values and interests "weight", and to balance them at the decisive point. Justice Shamgar correctly noted in F.H. 9/77 [37], at page 361, that "the process of weighing competing values in the balance indicates the point of departure for interpretation, but it cannot formulate the standards or weight to be attached to values, whereby the interpretative process is carried out". Could it be said that there may be situations with no legal standards or criteria for the assignment of "weight" and far effecting the "balancing" process? To be more precise:

"These phrases - balance, weight - are nothing but metaphors. Behind them stands the concept that not every principle is of identical importance in the eyes of society, and that in the absence of legislative guidance, the court must assess the relative social importance of the various principles. Determining the balance on the basis of weight means assigning social value to the relative importance of the various principles" (H.C.14/86 [38], at page 434).

Could the court find itself in a situation where - in the absence of legislative guidance - it lacks legal standards for conducting "the balancing" and assigning "weight." To be more precise: The question is not whether it is undesirable that the court engage in the activities of weighing and balancing. This question will be considered later on within the framework of the claim of the institutional justiciability (or non-justiciability). The question is whether practically speaking, the court may be incapable of carrying out the process of the weighing and balancing.

In my opinion, the answer to this is in the negative. In the absence of legislative guidance, the court must turn to the fundamental values of the nation, to its "credo"(as the Declaration of Independence was called in H.C. 10/48 [39], at page 89, by President Smoira), or to its "national way of life "(Justice Agranat in H.C. 73,87/53 [40], at page 884), and to "the sources of national consciousness of the people in whose midst the judges reside" (M. Landau, "Rule and Discretion in the Administration of Justice" Mishpatim Vol. I (5729) 292, 306. In doing so, the court will consider the outlooks "accepted by the enlightened public" (Justice Landau in C.A. 461/62 [41], at page 1335; H.C. 112/77 [42]). At times the judge will find that, for one reason or another, those sources do not afford sufficient guidance. In such situations it will be incumbent upon the judge to exercise his discretion (see H.L.A. Hart, The Concept of Law (Oxford, 1961) 128). This task is at times difficult. Justice Frankfurter addressed this when he stated:

"The core of the difficulty is that there is hardly a question of any real difficulty before the Court that does not entail more than one so-called principle....judges cannot leave such contradiction between two conflicting 'truths' as 'part of the mystery of things'. They have to adjudicate. If the conflict cannot be resolved, the task of the Court is to arrive at an accommodation of the contending claims. This is the core of the difficulties and misunderstandings about the judicial process. This, for any conscientious judge, is the agony of his duty". (F. Frankfurter, "The Judicial Process and the Supreme Court", Of Law and Men (ed. by P. Elman, 1956) 31, 43).

The judge's choice in this situation is not arbitrary:

"The judge does not impose his subjective values on the society within which he acts. He must balance between the various interests, according to what seems to him to be the needs of the society within which he lives. 'He must exercise his discretion according to what seems to him, to the best of his objective knowledge, to reflect the needs of society. The question is not what does the judge want, but rather, what does society need'" (C.A.242/83 [43], at page 131).

True, the exercise of judicial discretion in this situation is difficult, but despite the difficulty the judge must exercise it. The lack of sufficient guidance as to "the fundamental principles of the system" and the national "credo" is likely to influence the substance of the choice, but this does not make the choice impossible. In such a situation the judge must consider all values and interests, and he must give them the weight he thinks best reflects their meaning in his society. Justice Landau referred this in H.C. 58/68 [30], at 530, when he stated:

"I should like to make it clear that I am not basing my opinion on any lack of "justiciability" of the problem before us. For me that is largely a matter of semantic definition only. But to be precise, let me say that the subject of the nature of the Jewish nation is not in itself injusticiable, as shown by the decision of this court in the Rufeisen case. Abstention from adjudicating which is our duty in this petition does not stem from lack of justiciability of the subject, but from our inability to draw a judicial answer to the problem from any of the legal sources from which we usually obtain our inspiration.

As I have explained, the views common among the enlightened public are also a proper source of adjudication when no other source is available to us. The court has more than once drawn upon this source in decisions which have become milestones in the development of our case law and there will certainly be further opportunities for doing so in the future. But on the present occasion this source, too, fails us, in view of genuine differences of opinion which prevail among the public. Nevertheless there may be cases where a judge may perforce have to decide and to give his personal answer to a question of general outlook on life, although that question may be in dispute. But that is not the situation in the present case, because here we are required to pass judgement on the directives of the Minister of the Interior which were issued as an authorized administrative act, and whoever wishes to upset those directives must convince the court that they suffer from some invalidity. The petitioner has not discharged this burden".

Accordingly, the fact that the "source" from which the viewpoints of the enlightened public was derived, were in the judge's opinion, disappointing, did not lead him to consider that there was a lack of legal standards to decide the question before him. It influenced the substantive resolution of the question, but did not prevent it being dealt with. This fact is particularly significant where the legal norm on which basis the dispute is decided is that of reasonableness. "The drying up" of the source regarding the "enlightened public's views" is likely to lead to the conclusion that the petitioner did not discharge the burden imposed on him to demonstrate that the governmental decision was unreasonable. But this drying up will never lead to the negation of the norm itself.

41. Thus, my approach is that wherever there is a legal norm, there are legal standards which implement that norm. This simply means that when an issue lacks legal standards to determine it, the legal norm such as that which the petitioner argues for does not apply to the issue, and another norm applies instead. Hence it follows that the argument that the issue is not materially justiciable means no more than that the petitioner has not identified the legal norm which makes the governmental action a prohibited one. Accordingly, the claim of material non-justiciability is nothing but a claim of failure to state a cause of action. In allowing a plea of material non-justiciability, the court is not abstaining from addressing the lawfulness of the action. On the contrary: the court is taking a position as to its lawfulness and determining that it is lawful. Regarding this possibility Justice Witkon noted in H.C. 222/68, Mot. 15/69 [26], at page 166, that "this kind of 'non-justiciability', which does not preclude consideration of the question, and which may only become apparent as a result of such consideration the deliberation, is in reality no different from the usual reasoning in many cases, that the matter is submitted to the discretion of the administrative authority, which acted in a lawful and reasonable manner". In my opinion, lack of normative justiciability is nothing but the lack of a cause of action in law. Professor McCormick stressed this point, stating:

"To say that a 'case' before the court is nonjusticiable is to say that the plaintiff has no judicially enforceable right. To say that the plaintiff has no judicial right is to make a conclusive statement about the nature of the 'law' on which the plaintiff is relying; it is necessarily an exercise in interpretation and application of that law to say that the law applied by the court does not protect the plaintiff. Masking the holding in language that purports to decide only a 'preliminary' or 'threshold' issue hides a decision on the merits without elaborating the reasons behind the decision. Justiciability, like any other decision for or against a claimed 'right', is a label that expresses a decision on the conflicting interests of the parties and constraints that operate on each" (McCormick, "The Justiciability Myth and the Concept of Law", 14 Hastings Const. L.Q. (1987) 595).

42. In my opinion, those cases in which the court dismissed petitions for material non-justiciability could have been dismissed on substantive grounds, for lack of a cause of action. Take, for example, H.C. 65/51 [25]. There the petition was dismissed because in the Court's opinion, the President's action under paragraph 9 of the Transition Law, 5709-1949, is non-justiciable. It is "outside the judicial realm", because "the matter before us is not one which is amenable to judicial determination and decision" (Id. at page 814). In my opinion, the President's action under paragraph 9 of the Transition Law is not "outside the judicial realm" but rather inside the judicial realm. Justice Witkon addressed this in Politics and Law, at page 8, when he presented the following question:

"What for example, would the situation be if a particular Knesset member had the power to form a government enjoying confidence of the majority of the Knesset, but the President steadfastly refused to assign the task to him? Would the court refuse to intervene there as well, even if that Knesset member applied to it and claimed his constitutional right?"

My answer to this question is that, according to the legal situation pursuant to the Transition Law, the court would not refuse to intervene. In my opinion, paragraph 9 of the Transition Law creates a "legal realm" which by its terms sets forth what is permitted and forbidden, so that therefrom, legal standards for the. Presidents action are derived. If the President refuses to assign the task of forming the government to the only Knesset member who has the majority to do so, the President violates the provisions of the statute. His action is "justiciable". According to this very approach, the petition in H.C. 65/51 [25] could have been dismissed because the petitioner did not indicate any illegality in the President's action. Justice Witkon addressed this, when he presented the question (Politics and Law, at page 7):

"Would it not have been preferable to enter into the essence of the matter and dismiss the request as being unfounded. It seems to me that it would have been easy to do so, and it would not necessarily have set any precedent. It is clear that there would not have been any reason to require the President to assign the task of assembling the government to each of the 119 other Knesset members, one after the other, when he was aware, as a result of his consultations with the parties' representatives, that this action would be meaningless and pointless. There is no way out of this impasse other than to dissolve the Knesset and hold new elections".

If it is "easy" to dismiss the petition on its merits, how can it be said that it is outside the judicial realm, and that "we do not have before us an issue subject to judicial determination and decision'? Indeed, I agree with Justice Witkon, that the petition could have been dismissed on its merits, and that the substance of the petition was, accordingly, justiciable.

43. I reach a similar conclusion, and by a similar line of reasoning, in H.C. 186/65 [29]. As noted, the subject of this case was the establishment of diplomatic relations with West Germany and receiving its ambassador, who it was alleged took part in the Second World War. The Court, at page 487, dismissed the petition, holding that:

"This is not a legal issue which by its nature may be brought for adjudication by a court. The considerations are not legal ones, but rather considerations of foreign policy and of the fitness of the candidate for the post, which a court is neither empowered nor capable of deciding".

In my view, the Court should have decide, first and foremost, the legal norm applicable to the matter. To the best of my understanding, the relevant norm is that which imposes upon the government the duty to act reasonably. Once the relevant norm was established, the Court had to assess whether the petitioner's claims indicate, at least prima facie, unreasonable conduct. I would answer this question in the negative and dismiss the petition for this reason. The Court's approach, according to which "the considerations are not legal ones, but rather considerations of foreign policy", does not confront the issue. True, the government's considerations are political ones, but this does not eliminate the need to examine whether a political consideration is lawful from a legal perspective. A political consideration is distinct from a legal one, but the political nature of the consideration does not obviate the need to examine its lawfulness. The Court is empowered and capable of examining the lawfulness of the decision, whatever its political nature may be.

44. In H.C. 302,306/72 [44], the lawfulness of evacuating the petitioners from their homes in the Gaza Strip was examined. Justice Landau examined, inter alia, the substance of the army's actions, and found that there was no basis for interfering with the military government's discretion. Justice Witkon thought, inter alia, that the petition was non-justiciable. He declared, at page 182:

"In the instant case I thought, even before we entered into the of essence the matter that the non-justiciability was apparent on its face, and accordingly I saw no reason to allow counsel for the petitioner to examine the deparents on behalf of the respondent on their affidavits. This entire argument as to the extent of the distress and danger in the area concerned, and on the available and desirable preventative measures, has no place within the framework of a judicial determination. However, as stated, we read their affidavits and heard their arguments, and this was perhaps the right course, if only to mollify the petitioners and avoid the impression that we do not appreciate their situation... And having done this, we could have ignored the lack of justiciability this time as well, and decided the issue according to the usual criteria for such situations. Indeed, as my esteemed colleague Justice Landau explained in great detail, there was no deviation here from the power delegated to the respondents pursuant to the orders of the military commanders, and the considerations were genuine defence considerations... All the other issues, such as the selection of one system or program over others, are subject to the discretion of the respondents, who are conversant with this issue, so that their decision should not be interfered with".

It seems that there is an inherent contradiction in this paragraph. If "this entire argument has no place within the framework of judicial determination", how is this matter examined "according to the usual criteria'? Indeed, Justice Witkon was correct in thinking that it is possible to examine the matter "according to the usual criteria". Such criteria include not only questions of jurisdiction, but also questions of reasonableness, including non-intervention in military discretion where a reasonable military authority would have been entitled to make the type of decision described in the petition. See Y.S. Zemach, "The Non-Justiciability of Military Measures" 9 Isr. L. Rev. 128 (1974)). At the same time, the Court was entitled and obligated to assess whether the military action was not unreasonable. Murphy J. pointed this out in his minority of inion in the case of Korematsu v. United States (1944) [69], at 234, when he stated that:

"It is essential that there be definite limits to military discretion... the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled. 'What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions'".

Indeed, the the Supreme Court has held more than once that the army's security considerations, whether within the boundaries of Israel or in Judea, Samaria and Gaza, are subject to judicial review, and that this review does not extend only to the question of functional jurisdiction and the very existence of the security consideration, but rather extends to the all the grounds, including the question of the reasonableness of the security consideration (see H.C. 69,493/81 [45]; H.C. 393/82 [46]). Accordingly, this Court considered the reasonableness of the Military Governor's decision not to permit reunion of families, despite the fact that the decision on this matter was one relating to military policy and the Court dismissed the plea, justiciability lack of material (see: H.C. 263, 397/ 85 (Misc. H.C. 222,267/ 85 [47]), at page 284; H.C. 629/82 [48]). Accordingly, I would have examined H.C. 302,306/72 [44], as did Justice Landau, on the merits, and without entertaining the non-justiciability argument at all.

45. In H.C. 561/75 [27 J - the case I mentioned (paragraph 39 supra) - I would have reached the same conclusion as the Court did in dismissing the petition, without resort to reasoning regarding non-justiciability. Like the Court in 561/75 [27], I also think that "it is entirely unreasonable for a judicial authority to weigh and decide what is the most effective method, from a professional-military point of view, for deriving lessons from operational acts and to replace the opinion of the military authorities, who were trained for, and put in command of, such action with its own" (Justice Shamgar, at page 319). The legal expression of this approach need not be the classification of the claim as non-justiciable. The proper expression is, in my opinion, the principle that the Court does not substitute its opinion for that of governmental authorities, where they are operating within the realm of their authority and are not exercising their discretion unlawfully. The petitioner did not point in the petition to a lack of reasonableness in the governmental actions, and accordingly his petition had to be dismissed on its merits. Justice Shamgar himself emphasized this, when he stated, at page 318:

"One should distinguish between the situation in which the military authority fails to operate in accordance with its legal duties or according to the order of a competent authority, or arbitrarily refuses to accept the recommendations of an authority lawfully appointed, and the situation where the military authorities acted within the scope of their authority, but the way they acted and their method meets with disapproval of a particular petitioner".

Indeed, I also believe, that if a military authority fails to operate in accordance with its duties, its actions are "justiciable". Similarly, I also distinguish between this situation and the situation in which the military authority acts within the scope of its authority, "but the way they acted and their method meet with disapproval of a particular petitioner". In the latter case, we are not concerned with non-justiciability, but with lack of cause of action. The mere fact that a particular petitioner is dissatisfied with the army's actions does not mean that the action is unlawful. It is not sufficient for the petitioner to state that the governmental action is not to his liking, or that it is ineffective. He must indicate that it is unreasonable, that is, that the weight that the government gave to the relevant considerations and the balance made between them are inappropriate. The petitioner in H.C. 561/75 [27] did not do so, and for this reason I would also dismiss his petition. Like my colleague, President Shamgar, id., at page 319, I also think that "overstepping the limits between military, operational considerations and judicial consideration", should not be favoured, but it seems to me that where the court assesses the reasonableness of the military, operational consideration, it is not confusing military and judicial considerations. Justice Witkon, at page 321-322, explained his view that conduct of debriefing is not justiciable, as follows:

"The judiciary's non-intervention stems from the fact that the standards, order of priorities, and value system we accept and which permit us to review the actions of the civil government, do not necessarily fit the army's needs, which require, first and foremost, discipline and decisiveness".

It seems to me that if this approach is correct, then the law applicable to the army must be adjusted to fit the army's needs. If this adjustment is made, the army action will be lawful, the petition will be justiciable, and it may be dismissed for lack of cause of action. If this adjustment is not made, and the army's actions do not conform with the law, the army's actions must be altered. The petition should not be dismissed for non-justiciability. Justice Witkon continues, at page 322, by stating:

"As we have heard, the I.D.F. ordinarily conducts debriefing, draws conclusions and applies lessons to the future, both from a personnel and from an operational perspective. This is among the army's tasks. The petitioner believes that in this case the army did not fulfill this task or did not properly fulfill it, did not conduct the proper debriefing and did not draw from them the required conclusions. Despite the temerity at the heart of the claim... it is his right to disagree with the military government, but ruling on this disagreement is not among the tasks of the judiciary. We do not have the tools for such, and taking upon ourselves this type of jurisdiction will not serve the purposes of the matter. It is as we stated: The subject is non-justiciable".

In my opinion, the petitioner's right to disagree with the military government "is a right" only where the army has a "duty". A duty of this type exists, as to our matter, within the framework of the duty of reasonableness which is imposed on the army. Within this framework I believe "ruling on this disagreement is among the tasks of the judiciary", and in my opinion the Court has the tools to do so. The Court will hear about the actions that the army undertook with respect to the debriefing, as in fact happened in H.C. 561/75 [27], and will express its opinion as to whether by these actions the army fulfilled its duty to act reasonably. To this end, the Court will have to determine the relevant factors which must be taken into account, assign weight to these factors and balance them. I see there is no lack of tools for carrying out this task. It is no different from any other complicated determination regarding reasonableness or unreasonableness (negligence).

46. It may be asked: Is the decision of a governmental authority justiciable in every instance? Are, for example, the decisions to go to war or to make peace "justiciable" decisions which may be "contained" within a legal norm and a judicial hearing? My answer is in the affirmative. Even in matters of war and peace it must be determined which organ is authorized to make the decision, and what kind of considerations does it take into account (for example, the prohibition of personal corruption). It can of course also be held - and this is an unresolved and difficult question - that the other of the rules of administrative discretion do not apply. In this latter case the petition will be dismissed not because of non-justiciability, but because of its lawfulness. In sum, the doctrine of normative justiciability (or non-justiciability) seems to me to be a doctrine with no independent existence. The argument that the issue is not normatively justiciable is merely amount to alleging that no prohibitive norm applies to the action, and that accordingly the action is permitted.

My approach is based on the view that a legal norm applies to every governmental action, and that within the framework of the applicable norm it is always possible to formulate standards to ascertain the conditions and circumstances for action within the framework of the norm. This is certainly the case with regard to norms which determine jurisdiction and norms which determine the proper considerations in the exercise of jurisdiction. This is also the case where the operative norm is that which requires reasonable conduct by the government. Within the framework of this norm it is always possible to formulate passed standards for the examination of the reasonableness of conduct, and the authority's action will be examined on its merits pursuant to these standards, without any recourse at all to the claim of normative justiciability (or non-justiciability).

D. Institutional Justiciability (Or Non-Justiciability)

47. A dispute is institutionally justiciable if it is appropriate for it to be determined by law before a court. A dispute is not institutionally justiciable if it is inappropriate fact to be determined according to legal standards before a court. Institutional justiciability is therefore concerned with the question of whether the law and the courts constitute the appropriate framework for the resolution of a dispute.

The question is not whether it is possible to decide the dispute by law in court; the answer to this question is in the affirmative. The question is whether it is desirable to decide the dispute - which is normatively justiciable - according to legal standards in court. Justice Brennan addressed this aspect of justiciability - as well as normative justiciability - in the Baker case [68], at 217, when he stated, inter alia, that a dispute is non-justiciable where there is:

"...A textually demonstrable constitutional commitment of the issue to a coordinate political department; ...the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question".

This statement of Justice Brennan has been quoted a number of times in the Supreme Court (see: H.C. 222/68, Mot. 15/69 [26], at page 165; H.C. 302,306/72 [44], at page 182; H.C. 306/81 [21], at page 133; H.C. 448/81 [2], at page 88; H.C. 652/81 [49], at page 203; H.C. 73/85 [22], at page 162), and it indicates an open ended list of considerations which the Court takes into account when it adopts a position on the question of whether it is proper for it to decide a dispute before it. In all of these cases the court asks itself whether it ought not to "abstain from fulfilling its normal judicial role" (Justice Agranat in H.C. 222/68, Mot. 15/69 [26], at page 215) and whether "the issues are suitable for judicial determination" (Justice Witkon in H.C. 302,306/72, at page 182). Thus, for example, it was held that the Court will not consider a petition alleging illegal action in the conduct of the internal affairs of the Knesset, unless the decision concerned is calculated to cause substantial harm to the fabric of parliamentary life and the foundations of the constitutional structure (H.C. 73/85 [22]; H.C. 742/84 [50]; H.C. 669/85, 24, 131/86 [51]; H.C. 620/85 [33]).

48. An examination of the various issues (cited by Justice Brennan in the Baker case [68], which illustrate the principle of institutional non-justiciability, indicate that they are not at all simple. Take for example the first non-justiciable issue, i.e., that determination of the question realm of a political authority. As to this issue it is necessary to distinguish between the legal question of the jurisdiction of the political authority and whether this jurisdiction was lawfully exercised, and determination of the question of whether the political authority chose the appropriate solution from among a number of lawful solutions. Determination of the first question is generally committed to the court, within the context of its power and duty to determine the nature of the statute (see H.C. 73/85 [22], at page 162).

When a particular provision empowers a governmental authority, it thereby empowers the court to interpret it, to determine its scope, and to decide whether it was lawfully exercised. Hence, submission of the decision on a particular act to a governmental authority does not mean that the issue of the lawfulness of that act was also committed to the government authority. On the contrary: "the final and decisive decision on the interpretation of a statute, like its validity at any given time, is in the hands of the courts, and, regarding issues presented for examination within the legal system, it is in the hands of the highest judicial forum" (Justice Shamgar in H.C. 306/81 [21], at page 141). Hence, legal determination of the lawfulness of an act committed to a governmental authority should not be seen as non-justiciable.

49. The second issue cited by Justice Brennan is the non-justiciability of a dispute because it is impossible to decide it judicially without expressing lack of consideration due to coordinate branches of government. This issue is also an intricate one since wherever the court decides whether the governmental authority is acting lawfully or not, it is not thereby expressing any lack of consideration for that governmental authority:

"The role of the court is to interpret legislation, and not infrequently its interpretation will differ from that of same other state organ. It is inconceivable that preferring the judicial interpretation over the interpretation of the other organ (whether executive or legislative) constitutes a kind of disrespect to that organ. How can we intervene in executive actions if we take the position that we impair its honour when we interpret the law in a manner which is not in accordance with its opinion? ... There is no disrespect to other authorities when the authority fulfils its constitutional role and does what the law requires of it. When a court interprets legislation, it fulfills its role, and if its interpretation differs from that accepted by the other authorities, it points out their error, and in doing so it does not express any disrespect towards them whatsoever" (H.C. 73/85 [22], at page 163).

The significant issue is not the respect due this authority or another, but rather respect for the law. As for me, I cannot see how insistence on a governmental authority respecting the law can harm that authority or mar the relations between it and other authorities.

50. It is customarily assumed that the issues cited in the Baker case [68] are merely examples of a general approach, under which institutional non-justiciability should prevail in disputes of a "political" nature (see Y.S. Zemach, Political Questions in the Courts, (Detroit, 1976). The contention is that determination of political disputes must be made by political organs, and not by the judiciary. The involvement of the judiciary in these disputes impairs the principle of separation of powers, harms the democratic regime - in which political decisions are made by political authorities - and harms the court itself. These are weighty arguments. A judge's natural reaction is to distance himself from decisions which have a political aspect. Justice Witkon correctly noted that "recoiling from judicial involvement in sensitive political issues has gained currency in the legal consciousness and in public opinion" (A. Witkon, Politics and Law, at page 70). We shall briefly consider the foundations of this contention. It includes three aspects: those of the separation of powers, democracy, and public confidence in the judicial system. We shall begin with the first aspect.

51. Can it not be argued that, by virtue of the separation of powers principle, a political question must be decided by a political organ and accordingly is not institutionally justiciable? In my opinion, this argument is fundamentally incorrect, according to both the classical and the modern view of the separation of powers. According to the classical view, separation of powers means that "legislation in the functional sense is identical with legislation in the organic sense, that adjudicating according to the functional test is identifical with adjudication according to the organic test, and that the administration in its functional sense is identical with administration in the organic sense" (Klinghoffer, in his book, supra, at page 23).

Hence, the separation of powers principle in its classical sense is upheld, in practice, if the judiciary is engaged in the judicial function, whatever the content of the judicial determination. The same applies to the modern outlook on the separation of powers. According to this outlook, as we saw (see paragraph 23, supra), reciprocal relations exist between governmental authorities, and it is legitimate that a political decision of the political, governmental body, whether it be the Knesset or the Government, be subject to judicial review within the scope of these reciprocal relations . Indeed, the modern outlook does not separate between the powers, so that each power stands on its own. The modern approach creates a link and balance between the powers, so that the judiciary judicially and legally supervises the other authorities. It is only natural that the political branch takes into account political considerations, and it is also only natural that the judiciary examines whether this political consideration is lawful. Justice Shamgar emphasized the modern outlook on the separation of powers principle in H.C. 306/81 [21], at page 141, when he said:

"The separation of powers does not necessarily mean the creation of a barrier which absolutely precludes any link or contact between the authorities, rather, it is reflected primarily in the maintenance of a balance between the powers of the authorities, in theory and in practice, allowing for self-sufficiency through properly defined mutual review.

Justice Shamgar also discussed this principle in H.C. 561/75 [27], at page 319, when he stated:

"Maintenance of effective review over each of the branches of government is the very foundation of every system of government based upon separation of powers, and is also that which ensures, inter alia, a proper balance between the powers, which is an essential component of democratic rule".

President Shamgar expressed a similar approach in H.C. 852,869/86, Misc. H.C. App. 483, 486, 487, 502, 507, 512-515, 518, 521, 523/86,1,33/87, at page 38:

"Everyone is obliged to respect the law, and judicial review extends to the lawfulness of every authority's actions. Separation of powers leads to their independence, but it does not of itself block the way for judicial review. This is the fundamental outlook of Israeli law, and there stems from it the rule of law, which rests, inter alia, upon the operation of paragraph 15 of the Basic Law: The Judicature, regarding the actions of the various branches of the Executive".

Accordingly, nothing in the separation of powers principle justifies rejection of judicial review of governmental acts, whatever their character or content. On the contrary: the separation of powers principle justifies judicial review of government actions even if they are of a political nature, since it ensures that every authority acts lawfully within its own domain, everyby ensuring the separation of powers.

52. A democratic regime is one which strikes the proper balance between majority rule and individual rights. The first principle (majority rule) ensures that the government acts in accordance with majority opinion, meaning, inter alia, that political decisions are made by the political organs chosen, directly or indirectly, by the people. The second principle (individual rights) ensures that the majority, by means of the political organs, does not infringe the fundamental rights of the individual. Judicial review, which ensures that the political bodies act within the scope of the authority granted to them by the democratic regime, is not contrary to this democratic conception. On the contrary, judicial review safeguards the proper realisation of the democratic formula. It ensures, on the one hand, that majority opinion finds its appropriate expression within the legal framework appointed for this purpose in the regime, whether it be the Constitution, statutes, regulations on orders, and does not go beyond such framework, and that governmental action is performed within the legal framework determined by the majority by voting in the legislative body; on the other hand, it ensures that the majority does not infringe individual rights, unless it has lawful authorization to do so. It follows that, no harm is caused to the democratic regime when judicial review denies the legality of actions by governmental bodies which take into account political considerations, if these bodies act unlawfully. To be more precise: the court does not review the internal logic and practical efficacy of the political consideration. The court examines the legality of such considerations. This examination in no way harms the democratic regime. There is nothing in the democratic regime which holds that the majority is entitled to act contrary to statutes, which it itself enacted, and that political decisions can violate the law. Even the most political definition must be based on a lawful decision. In a democratic regime there are no politics without law. There is therefore nothing in democratic principles that can justify institutional non-justiciability.

53. We are left only with the contention that institutional non-justiciability as to political issues is justified because it protects the court from "the politicization of the judiciary" and from impairment of public confidence in judicial objectivity. I regard this argument as being to be most controversial. Even when the court deals with political issues, it does not examine them according to political standards, but merely examines the lawfulness of the political determination.

As we saw (see paragraph 36 supra), the political and the legal realms are distinct from each other. The judiciary assesses the "legal aspect" of politics, not its advisability. Accordingly, when a judge assesses the legality of a political determination, he is not concerned - neither positively and nor negatively - with the merits of that determination. He does not make himself a part of it. He does not assess its internal logic, but examines only its legality according to legal standards. In doing so, he fulfils his classic role. I find it difficult to regard this as activity that ought to be avoided. Justice Landau discussed this in H.C. 295/65 [23], at page 334, stating:

"Parliamentary supervision over the acts and omissions of the Executive is one thing, and legal supervision by this Court is another. When the complaint is clearly legal, it is appropriate for it to be clarified before a court. Nonetheless, it is clear that the Court will only intervene when there is a legal basis for doing so".

Justice Witkon reverted to a similar idea in H.C. 222/68, Mot. 15/69 [26], at page 165:

"This contention (that the question is political and so not suitable for judicial determination - A.B.) ignores the special task of the judiciary, which never takes the place of the administrative authority, but merely reviews its decision".

Indeed, even when the subject of the decision is a politico-ideological problem, judicial review is always of a legal nature. The judge does not express his ideology, but rather his legal view of the legality of the ideology. This type of involvement in ideology is legitimate for the judiciary. Justice Witkon stressed this in H.C. 58/68 [30], at page 532, when he stated:

"The court must at times take up a position on ideological questions and not be apprehensive about its competence to do so or about the effect that this may have upon its prestige... It is no longer either realistic or even desirable to maintain that these questions fall outside the judicial sphere".

In this context President Agranat's statement, id. at page 600, should be added, as follows:

"Strict justice does not require us to take up a position on the above ideological problem, since it is clear that there is no consensus of opinion in respect thereof among the enlightened section of the public and that any position we adopt would rest solely upon our own private views and personal predilections. After all, the principle of the rule of law means that a judge must as far as possible refrain from preferring his personal ideas of what justice demands for the solution of the dispute before him, since otherwise suspicion might arise that instead of being the interpreter of the law, he has adjudicated according to his own arbitrary whims.... If a problem of weltanschauung arises before him as to which the opinion of the enlightened public is fundamentally and uncompromisingly divided - the judge would do better -- and especially so if the differences arouse public agitation - to restrain himself from expressing his private view on the problem, provided he finds a judicial way of doing so".

I agree with this statement. The judge must always restrain himself from expressing his personal opinion, but this statement does not mean that an ideological argument which has a legal aspect is not justiciable. As for me, I see no conflict between Justice Witkon's approach which states that "The court must at times take up a position on ideological questions" (H.C. 58/68 [30], at page 532), and President Agranat's approach that "the judge would do better...to restrain himself from expressing his private view on the problem" (id. at page 600). Indeed, the petition in H.C. 58/68 [30] was decided on its merits, and even the minority, which sought to dismiss the petition, did not base its approach on the claim of non-justiciability. Indeed, more than fearing that legal involvement in "political matters" will cause the "politicization of the judiciary", I fear that the court's abstention from "political matters" will harm the rule of law and undermine public confidence in the law. The following statement by Justice Landau in H.C. 295/65 [23], at page 334 is applicable to our matter:

"Regarding 'justiciability', I am of one mind with my esteemed colleague, the Deputy President. The issue which we were asked to decide falls within the bounds of paragraph 7(b)(2) of the Courts Law, 5717-1957. The State Attorney proposed that we act with a measure of 'judicial restraint'. True, this is a fine quality, but I am not persuaded that it must intervene between what the law prescribes on this occasion and its application in practice. I do not believe that there is a risk herein of disrupting relations between the branches of Government, as argued by Mr. Bar-Neev; but there is risk of impairing the citizen's confidence in the rule of law if we waive the power granted us. Proper balancing of governmental powers between the various branches requires that when the Knesset transfers important legislative powers to the executive, the power of reviewing secondary legislation should remain in the hands of the judiciary".

This statement applies not only to the court's review of secondary legislation, but also to the review of every governmental act of the administration. Relieving the court of its power of review, solely because the dispute subject to review has a "political" aspect - even though it can be resolved according to legal standards - is likely to harm the rule of law and public confidence therein. The outcome of institutional non-justiciability - as with lack of standing - is the creation of an area in which there is law, but no judge. The real import of this outcome is that there is neither law nor judge. Such an outcome is problematic for the separation of powers, the democratic regime and the rule of law. But it is therefore only natural, President Agranat noted dismissing the claim of "non-justiciability" where a recent invasion of a holy place had occured: "The fundamental principle of the rule of law requires that the Court's hands not be tied, on the basis of the justiciability doctrine alone, from intervening for purposes of upholding public order" (H.C. 109/70 [52], at page 249). Indeed, "There are two prohibitions safeguarding exercise of powers, which we must be careful not to violate: on the one hand, that we not exceed the bounds of our authority, and on the other that we not hesitate to exercise it to its fullest extent" (Justice Witkon in H.C. 321/60 [53], at page 208). A similar idea was expressed back in 1821 by Justice Marshal in the case of Cohens v. Virginia (1821) [70], at 181:

"We have no more to decline the exercise of jurisdiction which is given to us than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur, which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty".

I suspect that recognition of institutional non-justiciability transgresses these two "prohibitions", and harms our unwritten Constitution.

54. An examination of the considerations at the base of the principle of institutional justiciability (or non-justiciability) reveals their inherent weakness. Indeed, in the United States the theory of institutional non-justiciability has been limited to judicial review of the constitutionality of a statute. In the United States, the institutional non-justiciability principle is not used with regard to the legality of the administration's actions within the scope of a valid statute. It would seem that the reason for this is that, if the political authorities are not satisfied with a judicial determination, they have the power to change the law, and thus bring about the political arrangement which seems proper to them. This is the situation in Israel today, and accordingly it is doubtful whether the "political question" issue should be learned from American case law, which is based upon a different constitutional background. Indeed, courts in Israel have sensed the weakness of the institutional non-justiciability doctrine. Hence the approach that this doctrine does not apply when the petitioner complains about an impairment of his right, such as the infringement of his right of property (H.C. 606,610/78 [24], at page 124; H.C. 390/79 [54], at page 14). On its face, this "exception" is surprising, because what is the significance of an injury in the private domain, if the judicial determination harms the separation of powers principle, the democratic regime, and public confidence in the judiciary? But this was not the approach of the courts. They felt that the role of the court is first and foremost to defend individual rights which have been violated, and that the countervailing considerations are not weighty prevent performance of this task. This is indeed enough to the proper attitude to fare. Yet, the role of the administrative court is just as much to protect the rule of law and the public confidence in the rule of law (see paragraph 21, supra). Indeed, examination of Supreme Court decisions reveals that the plea of institutional non-justiciability was allowed only in a few instances, and that in most cases where the Court relied on this plea, it was primarily based on normative non-justiciability or no distinction was made between the two types of justiciability. It seems that the leading cases of institutional non-justiciability are those related to judicial review of the legality of the administrative decisions of the Knesset and its organs, while at the same time it has been stressed that this doctrine "is not necessarily the doctrine of non-justiciability" (H.C. 73/85 [22], at page 162).

55. And yet, despite this critique of the "institutional non-justiciability" doctrine, it is difficult to ignore the fact that the public is not likely to make a distinction between judicial review and political review, and is likely to identify judicial review of the political issue with the issue itself; it is likely to identify judicial determination that a governmental action is lawful with a judicial position that the governmental action is desirable; it is likely to maintain that a judicial determination that a governmental action is not lawful is equivalent to the judiciary's negative position towards the action itself; it is likely to find that the judicial determination that a governmental action is reasonable is equivalent to a judicial determination that that position is desirable; it is likely to equate the legal determination with a political viewpoint. The judge has more than once considered this concern (see, for example, H.C. 58/68 [30], at page 523, by Justice Landau). As Justice Landau noted in H.C. 390/79 [54], at page 4:

"This time we have proper sources for our holding and we need not interject into it our personal views as citizens of the State, and we are even forbidden from doing so when sitting in judgment. But the fear is still great that the Court will be seen as having forsaken its proper place and lowered itself into the arena of public debate, and that our decision will be received by a section of the public with acclaim and by the other part with complete and emphatic rejection. In this sense I view myself herein as one whose duty it is to decide according to the law in every matter duly brought before the court. This actually imposes great pressure on me, being well aware at the outset that the general public will not pay attention to the legal reasoning, but solely to the final conclusion, and thus the true standing of the Court as an institution is likely to be harmed, beyond the controversies which divide the public. Yet there is no way out; this is our role and our duty as judges".

And I made a similar point when I said in H.C. 428, 429, 431, 446, 448, 463/86, Misc. H.C. App. 320/86 [12], at page 585:

"The entire issue occupies an important position at the centre of our constitutional life. It is intertwined with questions regarding the rule of law and the law enforcement on questions regarding the President's power to pardon and its operation. We deal with all these matters from a legal viewpoint. The entire issue stirs up public opinion but this is not what what directs our course. We act according to constitutional standards, and according to fundamental legal principles which reflect the "credo" of our national life. Passing moods do not guide our attitude but rather fundamental national conceptions of our existence as a democratic state... We know that the entire issue is subject to public debate, and that from the dynamic political perspective our decision is likely to serve as a factor in the conflict of political forces. We regret this, but we must fulfil our judicial function...".

The key question is, what weight should we give this fear? In his article Politics and Law, Justice Witkon said, at page 69:

"It seems to me that the aversion to judicial consideration of political questions is, to a great extent, irrational in origin. In terms of pure logic, it is difficult to justify it".

However, as we know, "the life of the law has not been logic; it has been experience" (O.W. Holmes, The Common Law (Boston, 1881) 1. The life of the law is logic and experience together. Hence the Court's readiness, in certain situations, to refrain from exercising its jurisdiction, thereby contravening one of the two "prohibitions" noted by Justice Witkon where there is a fear of "politicization of the judiciary", of confusion between the political and legal realms and of impairing the Court's prestige. As stated, this Court has so refrained an respect of review of the Knesset's administrative actions. Even here, a plea of "political dispute "was not sufficient to prevent the Court from exercising its power. The Court took into account the special status of the Knesset and weighed the "political" factor against the other factors related to the rule of law in the legislature. Certainly this is not the only type of case in which the Court will dismiss a petition for lack of institutional justiciability. The list of such cases is not closed. Judicial life experience and expert sense will guide the Court in its formulation of standards for fashioning these cases.

56. What conclusion arises from our analysis of the issue of institutional justiciability (or non-justiciability)? In my opinion, it is that this doctrine is most problematic; that its legal foundations are shaky, that it is based to a great extent on irrational grounds; that it must be approached with caution; that only in special circumstances, in which the fear of harm to public confidence in the judges outweighs the fear of harm to public confidence in the law, should use of it be considered; that the list of such circumstances is not closed, and that it is determined, in the end, by the judicial life experience and according to the judge's expert sense.

E. From The General To The Particular

57. As noted, the lack of justiciability (or non-justiciability) doctrine has no independent status of its own. There is always the law, and legal standards to consider. Indeed, a number of legal provisions - both statutory and case law - apply to the dispute before us, from which legal standards are derived for the determination of the dispute. The question of the power to grant deferment of defence service is related to the interpretation of section 36 of the Law. We are concerned with an ordinary interpretative problem, decided according to the accepted interpretative standards. (Compare the remarks of Justice Brennan in the case of Goldwater v. Carter (1979) [71], at page 1007, according to which the question of whether the President is empowered to declare war is also a justiciable question, because "The issue of decisionmaking authority must be resolved as a matter of constitutional law, not political discretion"). It is inconceivable that the question of whether a governmental authority is functionally empowered to undertake a governmental act or not should be normatively non-justiciable. This is a question for which there are always a legal norm and legal standards to decide it. Let us assume that section 36 of this Law did not exist at all, such that every deferment of service would have to be effected by an enactment of the Knesset. Would it occur to anyone that a petition which maintains that deferment of Yeshivah students' service is unlawful is "non-justiciable"?

The question of the exercise of discretion in the deferment of Yeshivah seminary students' defence service is determined by the usual criteria of the theory of administrative discretion. As we shall see below, we must assess whether the Minister of Defence's considerations are relevant or extraneous, and whether his decision passes the reasonableness test. This test is conducted entirely pursuant to the usual legal standards, and no question arises as to lack of legal tools to conduct it. Thus, for example, the reasonableness question is determined according to accepted standards, which pose the question of whether a reasonable Minister of Defence would be entitled to reach the decision regarding deferment of service. As to this issue, it will be necessary to assess the weight to be given to the various factors, and this assessment will also be conducted according to accepted standards for judicial review of an administrative act.

58. In my opinion, the theory of institutional non-justiciability does not apply to this petition. As we shall see, this petition should be determined entirely in accordance with legal standards. Is it conceivable to argue that public confidence in the judicial system would be impaired if the courts hold, for example, that the Minister of Defence is not empowered to grant deferment of defense service, and that the exemptions given up to now were in excess of his authority, and that as to this matter it is necessary to refer to the Legislature? In my opinion, the answer is that it is precisely if they refrain from ruling that the bounds of authority were overstepped, where there is a proper submission in this regard, that confidence in the courts would be impaired, and that confidence in the courts will be reinforce if they insist on the rule of law. And if this is the case regarding the holding that jurisdiction is lacking, then the same applies regarding the holding that jurisdiction exists. In both cases the court interprets the law, and this does not impair its status. The same applies to assessing the Minister of Defence's discretion. This assessment is carried out objectively, according to legal standards which have long been accepted. The determination that the Minister of Defence acted reasonably - as also the determination that he acted unreasonably - is reached pursuant to the usual legal tests.

The Court does not express any personal ideological position. It takes no position in the public debate. It expresses no position on the question of whether Yeshivah students should or should not be drafted. All the Court examines is whether a reasonable Minister of Defence is entitled to decide that Yeshivah students' enlistment should be deferred. It is true that "the question of whether or not to draft Yeshivah students is basically a public issue, resolution of which must remain in the hands of the political bodies, whose tasks include deciding this issue" (Deputy President Kahan, in H.C. 448/81 [2], at page 88), but the question of whether or not it is legal to grant a deferment to Yeshivah students is a legal question which must remain in the hands of the legal bodies whose tasks include deciding this issue. The politicians will decide the political question, while the judges will decide the legal question, the politicians considering the political factors and the judges the legal ones. It is true that deferment of the service of Yeshivah students has "very great public and ideological significance" (President Landau in F.H. 2/82 [3 ], at page 711). Likewise, I agree that the Court "was not designed to serve as an arena for public, ideological confrontations" (Id.). However, the judicial determination in the Petition before us does not concern the ideological aspect, and the judge does not descend into the arena of the ideological debate.

We are not deciding the question of whether it is proper to defer service for Yeshivah students or not. We are not taking any position at all on this question. We are merely deciding the question of whether the Minister of Defence has the power to defer Yeshivah students' service, whether he weighed the relevant considerations as to the matter, and whether his decision is a reasonable one. As to all of these, no ideological position is taken on the public question. Only a legal position is taken on the legal question. Accordingly, the determination that the Minister of Defence acted as a reasonable Minister of Defence would have been entitled to act in the matter of deferment of service does not mean that it is proper to defer Yeshivah students' service. Its sole import is that it is a factor which the Minister of Defence was entitled to weigh, and that the weight which he gave it is a such that the Minister of Defence was entitled to give it. True, it may be that the general public will find these distinctions difficult. I do not believe that this difficulty justifies our abstaining from a making a judicial determination. The public which finds it difficult to understand that dismissal of the Petition does not imply ideological agreement with the public issue is the same public that will find it difficult to understand that allowing the Petition is not an ideological rejection. Indeed, whether we address the Petition or abstain from doing so, the fear exists that we will be misunderstood, but as President Landau said, "this is our task and our duty as judges" (H.C. 390/79 [54], at page 4).

In my opinion, the focal consideration which must guide us is the legal one. It harmonizes well with considerations of separation of powers and democracy, which require judicial review of the legality of the administration; it derives from the view that the court must insist upon observance of the rule of law in government. For these reasons it seems to me that the Petition before us is justiciable (normatively and institutionally).

Jurisdiction Of The Minister Of Defence

59. Now that we have surveyed the preliminary issues and arrived at the heart of the matter, we must examine the first relevant question surrounding the power of the Minister of Defence to grant deferment from defence service to Yeshivah students. The Petitioner's submission is that deferment of defence service for Yeshivah students is a matter for primary legislation not for administrative decision. This submission "should properly have been heard" (in the words of President Landau in F.H. 2/81 [3], supra, at page 712), and it is accordingly proper to examine i1 substantively.

60. The legal framework for the Minister of Defence's jurisdiction is set forth in section 36 of the statute. According to this provision, the Minister of Defence is entitled to defer by order the defence service of men of military age, "if he considers it proper to do so for reasons connected with the size of the regular forces or reserve forces of the Defence Army of Israel or for reasons connected with the requirements of education, security, settlement or the national economy or for family or other reasons". We find that the power to defer the defence service of men military age is given to the Minister of Defence. Nonetheless, this power is not general, but rather limited to certain "causes for deferment". Deferment of service on grounds not listed among those referred to, leads to deferment of service without legal authorization. Hence, we must examine whether the deferment of Yeshivah students' service fits into one of the grounds set forth in the statute. In my opinion, the answer to this is in the affirmative. The matter of the deferment of Yeshivah students' service fits partially into the "grounds for deferment" concerning "the size of the regular forces", and into the "ground for deferment concerning "the requirements of education". The matter of deferment of Yeshivah students' service fits completely into the "grounds for deferment" for "other reasons".

61. The Minister of Defence is empowered to defer defence service for men of military age "for reasons related to the size of the regular forces" of the army. To the extent that the reason for deferment is related to the size of the regular forces, it falls within the power of the Minister of Defence. We are concerned here with the link between the reason for deferment (as a matter of discretion) and the grounds for deferment (as a matter of jurisdiction). As to this matter, we must turn to the Minister of Defence's affidavit, which indicates his considerations regarding this matter. As we saw (see paragraph 15, supra), the Minister of Defence lists the following among his considerations:

"(3) The fact that the way of life of Yeshivah students is ultra-orthodox, and accordingly, induction into the army causes them serious problems in adapting to a society and culture which is foreign to them, and difficulties in strict observance of religious precepts. Thus, for example, they do not recognize the Chief Rabbinate of Israel's certification that food is kosher, while they themselves are divided between recognition of a number of special kosher certifications by various rabbis, and other daily practices of theirs are likely to give rise to many difficulties in the I.D.F's preparations to integrate them into its system;

(4) The fact that the entire effectiveness of their service is subject to doubt, in light of the spiritual difficulty they experience from the neglect of religious studies, and owing to their special education and way of life.

These two considerations concern "reasons related to the size of the regular forces". The significance of these factors is that the Yeshivah students' service is problematic in terms of the army's needs and requirements. Deputy President Y. Kahan addressed this problematic nature in H.C. 448/81 [2], supra, at page 86-87, stating:

"No one can foretell whether the enlistment of many thousands of religious seminary students, who will view their enlistment in the army as a blow to the foundations of their faith, according to which the study of Torah takes precedence over the obligation to serve in the army, will add to the I.D.F.'s fighting power, or, heaven forbid, harm such power. It is no way certain that this enlistment, even if it numerically increases the army's force, will not have far-reaching negative impacts upon the State's internal and external strength".

This statement was made in connection with negation of the Petitioner's right of standing, but a reflects the Minister of Defence's considerations as to the substance of the matter. We find that the Minister of Defence is entitled to defer the enlistment of Yeshivah students to the extent that his considerations concern the quality of their service. Nonetheless, it seems that this factor was not dominant among the Minister's various considerations, and accordingly I would not base his authority to grant deferment of service to Yeshivah students on that alone.

62. Another "ground for deferment" consists of "reasons connected with the requirements of education". This ground - as well as the grounds regarding the national economy and family reasons - is not limited solely to the education of the person as a better soldier. It extends across the State's "requirements of education". Within the scope of these considerations, the "requirements of education" of a particular segment of the population may also be taken into account. The Minister of Defence considered this "educational" factor, since among his other considerations (see paragraph 15, supra), the following are also included:

"(1) Respect for the spiritual and historical obligation of students and teachers who are occupied full-time with religious study, to continuously uphold the value of engaging in religious studies;

(2) The desire not to impair the stated principle which is transcendent and holy to a segment of the population in Israel and in the Diaspora."

In my opinion, these considerations fall within the definition of "the requirements of education". We were told that within this framework, the service of artists and musicians is deferred. There is an "academic reserve", which defers the army service of university students. I do not see how the educational needs of Yeshivah students differs from those of artists and musicians. Of course, there is likely to be a difference as to the substance of the Minister's deliberations, and the weight which he gives to the different factors, but I do not believe that there is a difference between the two regarding the nature of his power. Nonetheless, it seems that the dominant consideration regarding the deferment of Yeshivah students' defence service is the religious factor, while its educational aspect solely supplements and explains that factor and accordingly I would not base the Minister's power on this reason alone.

63. The third ground for deferment which concerns our matter is that which permits deferment of security service "for other reasons". As we saw (see paragraphs 7 and 8, supra), the original Defence Service Law authorized the Minister of Defence to grant deferment of defence service if he "considers that reasons connected with the size of the Regular Forces or the Reserve Forces of the Defence Army of Israel or with the requirements of education, settlement or the national economy, or family reasons, or other similar reasons, so require" (section 12). In the Defence Service (Amendment No. 7) Law this provision was amended, in the sense that the word "similar" was deleted. The reason given for this in the explanatory comments to the bill was "so as to eliminate any narrowing constructions". (Defence Service (Amendment no. 7) Bill, 5730-1970, at page 282). The said amendment was made after the Supreme Court's decision in H.C. 40/70 [1], and in view of the existence of the arrangement for deferral of Yeshivah students' service. In H.C. 448/81 [2], at page 85, Deputy President Y. Kahan emphasized this state of affairs, noting that "the amendment was made after the attempt to have this issue heard in this Court had failed". Nonetheless, neither in the explanatory comments to the bill, nor in the Knesset proceedings is there any hint that the proposed amendment was related to the question of the deferral of Yeshivah students' service. On the contrary: In the Knesset hearings on the Defence Service (Amendment no. 7) Law, the Minister of Defence noted that this is not an appropriate occasion to deal with the question of deferment of Yeshivah students' service, since this issue is totally unrelated to the bill (see D.H. 59 (5731) 98-99).

64. The Minister of Defence is thus empowered, to defer defence service "for other reasons". This authorization does not allow the Minister to consider any factor which seems to him, subjectively, to be appropriate. I assume - according to the classic example - that had the Minister chosen to defer the defence service of all "redheads" or of everyone belonging to a particular political party, this would not fall within the definition of "other reasons". The test of their relevance is objective, and it is determined in accordance with the purpose of the law and its object. In my opinion, these "other reasons" may include religious reasons. The power of the Minister of Defence is not limited solely to factors concerning the extent of the regular forces themselves. As we have seen, his power extends also to reasons related to the requirements of education, settlement and national economy, or family reasons.

All of these concern factors not necessarily related to the extent of the forces themselves, but, they also include non-security factors, which should properly be considered. There is therefore no reason to limit the "other reasons "to security reasons in particular. Indeed, legislative history and logic point to a contrary trend. Accordingly, the service of new immigrants or minorities may be deferred for "other reasons". Thus, for example, the enlistment of religious Druze who declare themselves to be religious is deferred pursuant to this provision. I see no reason why it is not possible to include within this framework the deferment of service of Yeshivah students for religious reasons. It is true that exemption of women from security service for "reasons of conscience or for reasons arising from the religious lifestyles of their family" is granted by virtue of the provisions of section 39(c) of the Law, but this does not mean that deferment of service for religious reasons is not included within the power to defer "for other reasons".

It must be remembered that while deferment of Yeshivah students' service is a matter within the Minister of Defence's discretion, exemption of women from defence service for reasons of conscience or for reasons arising from the religious way of life of their family is an exemption prescribed by law. The military authorities' discretion is solely as to proof of the existence of the reasons of conscience or of a religious way of life, of the family and when these are recognized, the military authorities have no power to refuse to exempt a woman, because the exemption is given to her as a right by the statute itself. Indeed, when an administrative authority takes into account religious considerations when exercising its statutory authority, it does not exceed the bounds of its authority, so long as these considerations fall within the scope of the empowering statute. Thus, for example, the Minister of the Interior is entitled to take into account a religious concern as to daylight saving time (see H.C. 217/80 [7]); the Road Traffic Controller is entitled to take a religious consideration into account in closing streets to traffic on the Sabbath (see H.C. 174/62 [55]; the Food Controller is entitled to take the religious factor into account in ensuring the provision of food for Passover (H.C. 98,105/54 [56]). Similarly, I see no overstepping of the bounds of authority if, in exercising his authority to grant deferment of security service, the Minister of Defence takes religious factors into consideration. The need to ensure freedom of religion and the prevention of religious coercion do not prohibit consideration of the needs of a religious population. This need has existed since the establishment of the State, and it is natural to assume that within the broad confines of power granted to the Minister of Defence, allowed this factor can also be taken into account.

65. The Petitioner's general submission as to this issue is that deferment of enlistment of Yeshivah students is a matter of substantive, public importance, which applies to all inhabitants of the State, and accordingly it is appropriate that the Knesset expressly consider it and enact legislation regarding it. This submission has two aspects: first, that the arrangements for exemption for religious reasons must be determined by principal legislation, not by secondary legislation; secondly, that the provision in the principal legislation ought to be express and not implied. As to the first aspect, I accept that the grant of power to defer security service itself must be ensured in principal legislation. As we perceived, in my opinion this is ensured by the provisions of section 36 of the Law. As to the second aspect, I do not think - on the formal level - that general authorization ("for other reasons") is insufficient, and that each and every reason for deferment of service must be listed expressly.

Nonetheless, I accept - on the substantive level - that this state of affairs is not desirable. Indeed, pursuant to the principle of the rule of law it is proper that "primary arrangements" be determined in primary legislation, and expressly, and that the secondary legislator not be granted general authority to determine independently the primary arrangements (Y.H. Klinghoffer "The Rule of Law and Secondary Legislation" Hed Hamishpat 11 (5717) 202 and 12-13 (5717) 222 and 14 (5717) 254). Professor B. Bracha correctly notes, Administrative Law (Schocken, 5747) 95:

"Such a massive accumulation of legislative power in the hands of the administrative authorities harms the principle of the rule of law and constitutes a serious departure from the constitutional doctrine applicable in our day, of the separation of powers theory".

Justices Sussman and Witkon stressed this in H.C. 266/68 [57], at page 831:

"Secondary legislation on a fundamental and highly significant matter, pursuant to an enabling statute, is likely to lead to a merely formal democratic regime. A true democratic-parliamentary regime requires that legislation be enacted by the legislature".

I myself would add that where the Knesset believes that the secondary legislator should be granted authority to determine primary arrangements - and this is likely to be justified at times in a modern state - then in addition it should also presiste that validity of these arrangements is conditional upon approval by the Knesset (in plenary session or in committee). Accordingly, it seems to me that justice is on the Petitioner's side because it is desirable, pursuant to principles of "a true democratic-parliamentary regime", that the Knesset take an explicit stand on the question of deferment of enlistment of Yeshivah students, and not be satisfied with the general and sweeping empowerment of the Minister of Defence to grant service deferments "for other reasons". If for one reason or another the Knesset believes that it is more effective for the realization of security needs that primary arrangements on this matter be determined by the Minister of Defence, the validity of the general normative provisions should properly have been conditioned on approval by the Knesset or one of its committees. In the matter before us, the Legislature has not so acted, but has left the primary arrangements ("other reasons") solely in the hands of the Minister of Defence. Nonetheless, I do not believe that it can be said that the Knesset's abstaining from determining the primary arrangements, and from supervising the Minister of Defences' arrangements means that that general empowerment is invalid. The Knesset saw fit to grant the Minister of Defence a broad power to prescribe grounds for exemption and deferment "for other reasons", without reserving for itself the power of approval in this matter. We must respect this desire of the Knesset.

The rule of law does not apply only to government, but also to the judges. The Legislature, having determined that "other reasons" may serve as grounds for deferment of security service, obviously thus empowered the Minister of Defence to determine what these other reasons are. In light of the provision's structure and legislative history, it is clear that "the other reasons" are not necessarily related to security reasons, and they extend to non-security reasons as well. These include, in my opinion, religious reasons also.

We find that the Legislature expressly empowered the Executive to decide, according to its discretion, what "the other reasons" are which justify deferment of security service.

66. We have seen that the religious factor falls within the other reasons which the Minister of Defence is entitled to consider. Accordingly, it seems that the following factor which the Minister of Defence considered, is a legitimate consideration:

"(5) Recognition of the deep public sensitivity of the topic embroiled in ideological debate among the Israeli public, and of the need for a delicate nationwide adjustment of disputes of this kind".

This consideration is added to the other four taken into account by the Minister of Defence, and creates an aggregate of considerations which, of themselves, the Minister of Defence was empowered to consider. The question is, accordingly, if these considerations are reasonable under the circumstances. We now turn to examination of this question.

Reasonableness Of The Minister Of Defence's Exercise Of Discretion

67. The array of factors which the Minister of Defence considered falls within the confines of the relevant considerations which he was entitled to take into account. But did the Minister give the proper weight to these considerations? This question transfers the centre of gravity of the legal discussion from the question of authority to the question of reasonableness. The statute granted the Minister of Defence discretion as to deferment of service for security reasons. This discretion must be exercised in a reasonable manner. A reasonable exercise of discretion means, inter alia, allowing appropriate weight to the various factors (H.C. 389/ 83 [36], at page 445). President Shamgar stressed this in H.C. 156/75 [58], at page 105, stating:

"Situations may arise wherein ministerial authority does not consider any extraneous factors, and only relevant factors are taken into consideration, but such a disproportionate weight is attributed to the various relevant factors that the final conclusion becomes inherently untenable, and for this reason, completely unreasonable".

Indeed, it is one thing to defer defence service of a particular category men of military age for one year or for a fixed period of studies, which in practice will cut minute in defence service (as is done, for example, with those in the academic reserve); it is another matter to defer defence service for an unlimited period of studies, which is likely, according to its natural progression, to lead in practice to an exemption from security service (as occurs with most Yeshivah students). Likewise, it is one matter to defer security service of 800 Yeshivah students (as was the case in 1975); it is another matter to defer the enlistment of 1,674 Yeshivah students (as was the case in 1987). Accordingly, the question is whether the Minister of Defence's discretion was exercised, under the circumstances, in a reasonable manner: the Petitioner's Submission is that the Minister of Defence's discretion was exercised in an "extremely unreasonable manner". In contrast, counsel for the Respondent argues that, in weighing the various considerations:

"The Minister of Defence did not ignore the consequences of deferment of Yeshiva students' service (including students, teachers, and those adopting a religious way of life) on the expect of the regular and reserve forces of the I.D.F. and on deployment of the State of Israel's security needs, yet he arrived at the decision not to draft into the I.D.F. this type of candidates for service. In the end, upon balancing all the various factors, those justifying long-standing arrangement for non-integration of Yeshivah students of the type described into I.D.F. service, prevailed in the end".

Counsel for the Respondent adds that:

"The honorable Court will not substitute the Minister of Defence's exercise of discretion for its own. The Minister of Defence has considered all the reasonable possibilities according to their appropriate weight, and chosen from among them the way which seemed most reasonable and proper to him. The facts do not reveal grounds for intervention of this honorable Court in this exercise of discretion".

68. The question of how to weigh the factors on which deferment of Yeshivah students' service is based is a difficult one. Deferment of Yeshivah students' service is itself a highly controversial matter in Israel. "Serious and real differences of opinion" exist as to it (in the words of Justice Elon in Cr. A. 54/81 [59], at page 832, regarding the enlistment of religious girls). There are those who think that:

"There is no significance to the land of Israel and to the State of Israel without young men who study Torah, who cling with all their heart and all their soul to their mission in their whole way of life. While it is the... I.D.F. that protects the body, the Yeshivot protect the soul. I.D.F. protects Jews while and the Yeshivot protect Judaism... Yeshivah students are volunteer pioneers who give up private material gain and devote themselves to the spiritual values that the soul of the nation is dependant upon" (Rabbi M. Z. Neriyah, "Yeshivah Students and Their Enlistment" (Gvilin, 5728) [A] - quotations from this article were annexed to the Respondents' Affidavit).

In contrast, there are those who think otherwise:

"This is a strange partnership, I send the Yeshivah student to learn in my stead, and he sends me to be killed in his stead. It is revolting". (Brigadier General Nehemyah Dagan, I.D.F. Chief Education Officer, in an article annexed to the Petition).

Within the religious camp itself, different and varied opinions on this issue exist (see, for example, Rabbi Z. Y. Kook, "Precepts relating to the Land of Israel" The Paths Of Israel (Collection of Articles, Menorah, 5727) 114-123 (B); Rabbi S. Y. Zevin, "Enlistment of Yeshivah Students" (Letter addressed to Rabbis and Heads of Yeshivot, 5708) [C] - which regate deferment of service for Yeshivah students; in contrast, see Rabbi Y. M. Tikutchinsky, "Exemption of Yeshivah Students From Enlistment" The Torah and The State, Issue E-F(5713-14) 45-54 [D] - which gives the Jewish law basis for releasing Yeshivah students). It is well known that religious young men have served in all of Israel's wars, have given their lives for the state, and indeed they continue to serve in all I.D.F. units (whether in special combined religious study and defence service programs, or outside them).

Accordingly, we are concerned with an issue as to which there is no national consensus and which is subject to fierce debate. It seems to me that in the State of Israel, in which all the various currents of Judaism and Jews are interwoven, and in which a modern society has been built on the substructure of a prolonged history, each of the opposing factors is legitimate, such that a reasonable Minister of Defence is entitled to take it into consideration. Israeli society is a pluralistic one, which contains many and varied opinions as to various public and social issues. The question of deferment of Yeshivah students' service is one of those issues. Some take the view that the State cannot exist without deferment of their enlistment, whereas others take the position that the State cannot exist without their enlistment. There are those who see deferment of their enlistment as a noble act, and there are those who see it as a disgrace. There is no social consensus on the issue.

Under these circumstances - and against the background of my attitude that the religious factor itself is a relevant consideration - I do not think that it can be said that the Minister of Defence's position is so unreasonable, to the point that no reasonable Minister of Defence in Israel is entitled to assume it. A democratic regime is based on tolerance for the opinions of one's fellow men. This at times even amounts of toleration for an intolerant opinion. In a pluralistic society, toleration is a uniting force, which makes co-existence possible. Accordingly, readiness to consider the various positions, with an effort to smooth the edges of the conflict, does not seem unreasonable to me under the circumstances of the matter. Consideration of it is demanded by the position of the "enlightened public".

It should also be remembered, that alongside the religious-educational consideration is also the military consideration, according to which the service of Yeshivah students is likely to harm more than it helps. In taking all of these into account, against the background of the State's security needs, the Minister of Defence was entitled to reach the decision he came to. It falls within the confines of the "realm of reasonableness" of his discretion. To be precise: the Minister of Defence was also entitled to reach a different decision. He was entitled to think that too many men have been draft deferment, and that the policy should be changed on this issue. Indeed, the decision the Minister of Defence reached is not the only decision he could have reached as to the problem before us. It is one of the lawful decisions which the Respondent was entitled to reach.

69. In balancing on the various considerations on which the Minister's exercise of discretion under section 36 of the statute is based, the overwhelming consideration must be end of security. To that end defence service itself was instituted, and some of the exemptions from defence service are formulated in this spirit as well. It is only natural that non-security considerations, such as those of education, family and the other reasons, are relatively insignificant, and that they should be taken into account only if they cause relatively slight harm to security. Accordingly there is ultimate significance to the number of Yeshivah students whose service is deferred. There is a limit which no reasonable Minister of Defence may cross. Quantity makes a qualitative difference. As to this matter, the Petitioners have not discharged the burden placed on them of showing that harm to security is more than slight.

70. Up to this point I have examined the reasonableness of the Minister's decision. As I have determined that in my opinion the decieved is reasonable, our judicial review is concluded. As is known, under the prevailing rule, we do not substitute, in these types of matters, our discretion for that of the government:

"The question is not what would we, as Justices of the Supreme Court, would decide, were the power in our hands. The question we must decide is whether a reasonable... minister in the respondent's position would have been entitled to reach the conclusion which the respondent reached" (H.C. 297/82 [60], at page 42-43).

Indeed, we are not asked to express our opinion, as ordinary citizens, on the question of whether it is proper to defer the defence service of Yeshivah students. This is a question on which we have our private views, to which we may not give any expression to in our judicial determination.

Our judicial review centres on the question of whether a Minister of Defence may consider the religious factor, and if the weight given to this factor by the Minister of Defence is reasonable under the circumstances. The question is not as to the force of which factor is the most persuasive, but whether the factor considered is legitimate, such that a reasonable Minister of Defence would have been entitled to consider it and give it the weight given to it in practice. As to these questions, my answer is in the affirmative. Whatever opinion on the issue of deferment of enlistment of Yeshivah students - and this opinion is completely irrelevant - I accept that a reasonable Minister of Defence would be entitled to take this consideration into account, to give it the weight which the Respondent gave it, and to arrive at the arrangement which the Respondent arrived at. This approach fits in well with the separation of powers principle I have already discussed (see paragraph 51 , supra). The court engages in judicial review - which is one of its principal sometimes - this review is not an expression of a political viewpoint, but insistance on the lawfulness of the balancing process carried out by the political branch. Thus the democratic principle is expressed (paragraph 52 supra). This approach does not harbor any "politicization of the judiciary". It does not involve any descent into the arena of public debate. It does not involve subjectivisation of judicial discretion, but rather normal judicial activity, as practised by us over many years within the scope of judicial review over decisions of the executive.

71. In the section on justiciability I noted that on the normative plane every action is "justiciable", since as regards to every act, the law takes a position as to whether it is lawful or not. I stressed that every legal problem naturally has legal tools for its solution. Take the question before us, which is concerned with the reasonableness of the Minister of Defence's decision.

On the legal plane the question is whether the weighing by the Minister of Defence of the considerations supporting the deferment of Yeshivah students' security service as against those supporting non-deferment of enlistment, is reasonable. This weighing up is determined as we saw, pursuant to the purpose of the law and its object, as these are interpreted against the background of the fundamental principles of the system and the outlook of the enlightened public in Israel. As I noted, there is deep disagreement among the Israeli public on the question of the enlistment of Yeshivah students, and the enlightened public's opinion is itself divided.

Under these circumstances, my opinion is that the Minister of Defence is entitled to take into consideration the religious factor (alongside educational and military considerations). The purpose and object of the statute prevents the Minister of Defence from giving this factor a weight which will ultimately cause substantial harm to the security of the State. But so long as the harm is not substantial, I believe that an Israeli Minister of Defence is entitled to consider this factor. Moreover, it is precisely the absence of a national consensus and disagreement within the "enlightened public" which reinforce the recognition that, in a democratic society built upon pluralism and tolerance, the Minister of Defence is entitled to consider this factor, so long as security is not harmed. In any event, there is no basis for our intervention in the Minister's decision, which falls within "the realm of reasonableness". This outcome can also be presented in terms of burden of proof. One can say that he who bears the burden of showing that the Respondent's decision is unreasonable has failed in his task, and the presumption of reasonableness which governmental action enjoys, has not been refuted.

Dismissal of the Petition in this situation does not arise from material non-justiciability of the matter, but rather from the Petitioner's inability to show that the government acted unlawfully. These two factors are not the same. Thus, for example, if the number of those whose service is deferred because of Torah study were to increase, until it encompassed a much greater number of men of military age, such that security would be harmed, the moment will surely arrive when it will be said that the decision to defer enlistment is unreasonable and must be declared invalid. This could not happen if the viewpoint is that the issue is non-justiciable.

Additional Submissions

72. In the course of the Petition, the Petitioner raised additional submissions, which I should like to refer to briefly. He claims that deferment of the enlistment of Yeshivah students is invalid because it is granted pursuant to a coalition agreement reached by the parties which constitute the Government.

We cannot accept this submission. The coalition agreement is an accepted device in Israel. It constitutes a framework for political consensus between parties. It cannot, of itself, make an action lawful which is otherwise not lawful. One cannot agree in a coalition agreement to engage in actions which are forbidden under the law. Similarly, the fact that a particular action is included in a coalition agreement does not make that action unlawful, if, were it not for the agreement, the action would be lawful.

Moreover: the coalition agreement is likely to impose a duty, under public law, to work towards its implementation. The rule is that a coalition agreement cannot limit statutory discretion (see H.C. 669/86, Misc. App. H.C. 451, 456/86 [61]). Accordingly, to succeed in his submission, the Petitioner would have to prove that the Minister of Defence acted as he did solely because of the coalition agreement, and were it not for the agreement, he would have acted differently. The Petitioner has not discharged this burden.

73. The Petitioner attached to his affidavit a number of letters written by Ministers of Defence, including the Respondent, to a citizen by the name of Moshe Shapira, in which they expressed their positions regarding deferment of Yeshivah students' enlistment. Thus, for example, Minister of Defence Ariel Sharon wrote in 1982: "As Minister of Defence I am not happy at the fact that the enlistment of students of ultra-orthodox Yeshivah students, as opposed to students of Hesder Yeshivot (combined religious studies and defence service), is deferred... however there is a certain reality which was brought about upon the establishment of the State and it is not within my power to alter it". Similarly, the Minister of Defence Moshe Arens wrote in 1983: - "the decision to defer the enlistment of students occupied full-time with religious studies is anchored in government decisions and it is not within my power or my jurisdiction to change it".

There is no doubt that the ministers erred as to everything related to the legal aspect. The power to grant deferment of defence service is exclusively that of the Minister of Defence. It is not the Government's power, although it could - with the consent of the Knesset - transfer the Minister of Defence's power to another minister (Section 30 of the Basic Law: The Government). It is within the Minister of Defence's power to alter such decision. Minister of Defence Yitzhak Rabin - the Respondent in the Petition before us - wrote to Mr. Moshe Shapira in 1985 as follows:

"My predecessor indicated not only the formal fact that it is not within his jurisdiction to change the decision, but added that it is also not within his power to change it. As Minister of Defence, I would be happy if all able citizens of the State would take part in the defence of the homeland. However, there is a reality, that under existing conditions, cannot be altered".

One year after this letter, Mr. Rabin wrote that the decision of the Ministerial Committee regarding the enlistment of Yeshivah students "binds the defence system". As noted, it is the Minister of Defence that is empowered to decide the matter of deferment of the enlistment of Yeshivah students. In his affidavit of response, the Minister of Defence did not reiterate the submission that he is not entitled to decide the matter, but rather explained the motives that caused him to reach this decision. Regarding the letters referred to, the Respondent repeated his explanation - via his assistant Mr. Haim Yisraeli, as follows -

"The Minister of Defence Mr. Yitzhak Rabin, after weighing all relevant considerations regarding deferment of the enlistment of Yeshivah students... has arrived at the conclusion that the circumstances do not justify a change in the policy determined by Governments of Israel on the subject at issue, and accordingly by the Ministers of Defence who preceded him. In the same way, he is continuing his activity in other matters in accordance with the Government's policy. The passages that the Petitioner cites from the letters of three different Ministers of Defence, who served at various times, and who had differing political outlooks, merely strengthen the argument that the Ministers of Defence exercised their discretion, each in his day, taking into account general, national considerations, which are, as stated, reasonable, relevant and legitimate".

We find that the Minister of Defence is aware that the power is his, and he believes that it is appropriate, in the existing reality, to make use of it as he does in practice. The fact that the Minister of Defence is not "happy" about this decision does not impair its lawfulness.

CONCLUSION

74. I have therefore reached the conclusion that the Petitioner has lawful standing, that the issue which he raises is justiciable (materially and institutionally), but that the Petition must be dismissed on its merits because the Minister of Defence is authorized to grant deferment of defence service to Yeshivah students, and it was not proven that the exercise of his discretion is, under the circumstances, unreasonable. To be precise: I have not expressed my opinion at all as to whether deferment of Yeshivah students' service is proper. All that I have determined is that a reasonable Minister of Defence is entitled to consider this matter.

One may ask: would it not have been wiser to adopt the approach taken in the past, pursuant to which the Petitions were dismissed in limine, without addressing them substantively, rather than substantively dismissing the Petition.

My opinion is that the answer to this question is naturally in the negative, and this is for two reasons: first, that in most petitions, alongside the dismissal in limine there was also a discussion of the substance of the matter; second - and this is the primary reason in my opinion - the rule of law is strengthened if a court examines the lawfulness of the a governmental action on its merits, and reaches the conclusion that it is lawful. The rule of law is impaired if a court refuses to examine substantively the lawfulness of an action, since it may be unlawful, and it thus remains suspended "in limine". Failure to strike down such an action impairs the rule of law. Take the example before us. Recognizing the standing of the Petitioner, and the justiciability of the Petition, permitted substantive discussion of the topic. In the existing circumstances we decided that the Respondent's exercise of discretion is lawful. These circumstances may well change. A decision which is reasonable in a particular set of circumstances may be unreasonable in a different set of circumstances. Deferment of Yeshivah students' defence service is a decision which must be reverted to and examined from time to time, against the background of changing security needs and with a practical and open-minded approach (See H.C. 297/82 [60]).

The Minister of Defence's discretion is an ongoing one. With the dismissal of the submissions regarding lack of standing and justiciability the Minister's discretion is subject to re-examination, if the circumstances so justify. The lawfulness of the government will be ensured. The Court will fulfil its mission as guardian of the rule of law, the separation of powers, and democratic values. And could there be a better outcome than this?

The result is that the Petition is dismissed. There is no order regarding costs.

BEN-PORAT, FORMER DEPUTY PRESIDENT: I have studied closely the profound opinion of my esteemed colleague Justice Barak, and I can say at the outset that on the substantive issue (beginning with paragraph 61), I accept his position without reservation, along with the outcome, pursuant to which the Petition is dismissed. I might add as to the issue of reasonableness, that on examining whether the decision of the Minister of Defence I disregarded my personal stance, because (as explained below), this is not the determinative test.

More involved and complicated is the question of the scope of the right of standing which should ideally be granted to those who apply to this Court, as well as the question of the justiciability of the various issues.

My esteemed colleague correctly noted that the general rule, according to which a right of standing is not given to a "public plaintiff", should be preserved, while the instances in which this Court will be accessible to a plaintiff of this type should properly be exceptional. I also agree that there is no contradiction between maintenance of separation of the three powers and maintenance of judicial review to ensure that each power acts in accordance with the law. On the contrary, one can even say that these matters are quite compatible, and that review upholds the principle of separation in its proper form. If an authority acts out of bias, in excess of jurisdiction, from discrimination, arbitrariness or extreme unreasonableness, it must know that the Court is vigilant, and is empowered to prevent actions of this type. However, everyone agrees that the Court does not act in this manner on its own initiative, but rather that someone's petition must be before it. Normally the petitioner must be the injured party (or the party likely to be injured) by the authority's decision or action, but in exceptional cases a petition filed by someone who is not personally injured (or likely to be injured) will be heard.

As my colleague noted - and I will not repeat the authorities he brought - it is sufficient that the petitioner was thereby hurt not directly, but rather as one of a group of people, and at times - when the subject action is particularly grave - as a member of the general public. The borderlines of the exceptions are quite blurred, and the considerations are likely to vary from case to case. In my opinion, so long as there is a specific injured party, who is likely, able, and even required - according to the dictates of common-sense - to be interested in attacking the authority's decision or action, I would hesitate greatly before recognizing the right of standing of any other person (who is not his '"long arm"). Nonetheless, in (for example) a case involving corruption on the part of an authority, or an act likely to seriously harm the state's image or a public interest, I would tend to recognize the right of standing, for the reason which I will clarify below, of even a petitioner who did so solely for publicity purposes. Despite all the differences between a regular trial in other courts and the nature of a petition to the High Court of Justice, it should be remembered that even if the defendant does not rely on a claim of illegality, the Court will initiate consideration of this question, on condition that it is manifestly clear or proven beyond any doubt, that the action at the center of the hearing (such as a contract entered into) is indeed stricken with illegality (see: C.A. 365,369/54 [62], at page 1615-1616, and the authorities cited therein). And if this is the case in a private matter, all the more so in a public matter affecting the actions of an authority. However, here, as there, an application must be made (a complaint or a petition, as the case may be), whose scope allows for this type of initiative.

In general terms, I would therefore say that primarily, an exception may be made from the rule where the topic is of great public import, and there is no specific "injured party" (or specific person likely to be injured) who ought to be interested and who himself may attack the authority's action. This, for example, was the situation in the petitions filed at the time by many petitioners on the non-extradition of William Nakash (H.C. 852,869/86, Misc. H.C. App. 483, 486, 487, 502, 507, 512-515, 518, 521, 523, 543/86, 1,33/87 [15]).

When it is decided not to extradite a person, obviously that person will not consider attacking the decision (because if he wants to stand trial in the foreign country, there is nothing preventing him from doing so). This means that without granting access to a public "petitioner" or "plaintiff", the decision would not be subjected to examination at all. This, of course, is the rule in cases in which a particular citizen enjoys a benefit as a result of discrimination, or in exchange for bribery, or similar scenarios, in which no injured party will want to complain about such flagrant conduct, except for a citizen who cherishes ethical standards in government. This consideration, which in my opinion is self-understood, was aptly expressed in the words of Professor Wade, supra at 577-578, cited by my colleague, and I will repeat them for my part:

Incidentally, even where it is appropriate to provide wide access to the courts, a proliferation of petitioners should as far as possible be avoided. This topic addressed by President Shamgar in H.C. 852,869/86, Misc. App. H.C. 483, 486, 487, 502, 507, 512-515, 518, 521, 523, 543/86, 1,33/87 [15], and I have merely to support his position.

Nonetheless, it is not desirable that the general rule become the exception, and vice versa. I would also hesitate to remove all the barriers, to permit an application every time a petitioner complains that the authority has engaged in an unlawful action. Justice Barak also agrees that the claim of illegality alone is insufficient for purposes of recognizing the "public plaintiff".

However, I am in favour of further narrowing of the area of exceptions. In general I approve of Justice Berinson's approach, expressed in several of his decisions, according to which it is best to keep away from rigid rules, and to prefer flexibility, while weighing the seriousness and public importance of the problem, "and the more important the issue from a public perspective, the greater the court's tendency to recognize the right of the petitioner, even though he is a rank-and-file citizen, to bring it before the court" (from H.C. 26/76 [9], at page 802). However, reading the opinion of my esteemed colleague Justice Barak, or at least reading between the lines, a tendency towards excessive broadening of the area of exceptions emerges. For example, my colleague says in paragraph 23:

"True, 'where there is no complainant, contention ceases', but why must the complainant complain only as to a right of his which has been violated, or an interest of his which has been harmed; why could he not complain as to a law which has been contravened? What is the moral basis for the view that he who claims that his money was unlawfully stolen can apply to the court, but he who claims that the public's money was unlawfully stolen cannot do so? What is the fundamental argument based on legal theory and the separation of powers theory that justifies this distinction? In my opinion, it is unsupported. Indeed, my approach is that the requirement that a right or interest exist as a condition for standing under the law is a requirement without any philosophical basis, which is not based on the separation of powers, does not rest on moral grounds, and impairs the rule of law".

I fear that this approach is too far-reaching. A person who claims that he was personally harmed - such as by denial of an exemption from taxes - and even in respect of a modest sum, is different from one who claims that another person received an unlawful exemption and thereby public funds were expropriated. The considerations, from a philosophical and even a moral (and not just pragmatic) perspective, are different in the two cases.

The rationale guiding me is that it is not insignificant that paragraph 15(c) of the Basic Law: The Judicature states that this Court is empowered to hear "matters in which it deems it necessary to give relief for the sake of justice..." (emphasis added - M. B-P). Relief is given to a person who is injured (or likely to be injured), although if the government action is serious, or the public problem is of great importance, then, and only then, every individual from the public can be seen as "an injured party", and deserving of relief. In other words, because of the gravity of the action or the seriousness of the public problem, the petitioner, who in normal circumstances would be dismissed in limine as a "public plaintiff" also has protected interest.

I am aware of the fact that my esteemed colleague dealt separately with the moral-philosophical side on the one hand and the practical and pragmatic side on the other, where the latter must be based upon a proper balancing of the various considerations; however, the balance I strive for is more in the direction of restricting access to the court, as explained.

As for me, I also fear, more than my esteemed colleague, the tendency towards litigation is likely to lead to a flooding of the court with public claims, the handling of which is likely to waste precious time which will be irretrievably lost.

And now for the case before us: In light of the affidavit attached to the petition in support of the claim that the deferment of the service of students whose full-time occupation is religious studies is likely to have an impact upon the length of each individual's military service, I am prepared to join in the conclusion that a "right of standing", in its narrow sense, was proven in the Petition before us (being an injury to a personal interest).

I would reserve for further inquiry the demarcation of the limits of justiciability, although in general my opinion tends towards that of my esteemed colleague President Shamgar. In the end, I view this question as primarily involving self-restraint by the Court in appropriate situations. Weighing up the need for restraint therefore should properly be based upon the facts and circumstances of the petition which is to be considered, at times (for example, because of the urgency and essential nature of the issue) at the outset of the proceedings and at times at the end. In any event, suffice it to say that I see no justification for refraining from dealing with the petition before us. If, heaven forbid, the decision to defer military service for particular groups is impaired by arbitrariness, by discrimination between equals, by a consideration which is extremely unreasonable, or by bias, why should the question not be examined by this Court in terms of those aspects? The substantive issue of deferral of the time period for military service is not of a character which justifies deeming it non-justiciable, whether from the normative or the institutional perspectives.

On the substance of the matter, as I stated at the outset, I agree with the reasoning of my colleague, Justice Barak, beginning with paragraph 61 of his opinion, and I see no need to repeat his reasoning. I will merely add that the point of view that people who are "occupied" full-time with religious studies have a unique status in certain situations, was found to be not unreasonable in another context (H.C. 200/83 [63]).

As I emphasized therein, whatever my personal opinion, the determinative test is whether the decision of the authorized person or body is impaired by one of the defects which call for our intervention. This is an entirely different question from the question of the outlook of the judge on the bench. Indeed, if there were another group of people of a different religion, who were also exclusively involved with religious studies, then it would prima facie be discrimination unless they were also granted deferment similar to that granted to Yeshivah students (compare with the holding in H.C. 200/83, supra [63]). Likewise, it may well happen that in the future, the extent of deferments will become a serious consideration as to the reasonableness of the Minister of Defence' attitude, to the point of justifying this Court's intervention. I do not believe that that is the situation today.

Accordingly, my opinion is also that the Petition must be dismissed.

PRESIDENT SHAMGAR: Introduction

1. The legal significance of deferment of enlistment of a number of Yeshivah students has again arise in this Court, and this time has been substantively examined.

2. (a) The central questions which I saw need to refer to in detail, are two-fold: first, the legal question of justiciability; second, the answer to the substantive question, which is: is deferment of service properly based upon the provisions of the law?

(b) My conclusion is that the issue before us is justiciable, and that it should not be concluded that the authority was exercised unlawfully.

Nonetheless, I will add and clarify below that my approach to demarcating the bounds of justiciability is somewhat different from that set forth by my esteemed colleague, Justice Barak.

3. Moreover, it should not be inferred from my concurrence with the legal outcome that I agree with the arrangement of non-enlistment of a some Yeshivah students, as it is practiced today. What do I mean by this?

It is true that it is assumed that the legal solution to a particular problem is rooted in legal norms and not in "the private views and personal predilections" of the judge, as stated by President Agranat in H.C. 58/68 [30], at page 600). For this reason, the Court generally abstains from expressing an opinion regarding circumstances which it does not see fit to address substantively from a legal point of view; however, sometimes the Court is forced to relate to substantive problems because of the nature of the topic brought before it (compare H.C. 62/62 [64]). The legal circumstances therefore impose upon the judge the need to relate to problems upon which he does not usually express an opinion.

Moreover, sometimes a problem lies on the borderline of the realm of reasonableness, and gives rise to serious doubts. In such circumstances it is not necessary - and at times not correct - for the judge to be satisfied with a declaration of the formal legal outcome, recognizing the reasonableness of the outcome under the legal tests applied by the Court, without expressing at the same time his evaluation as to the location of the existing solution within the realm of reasonableness.

In my opinion, this is what has happened herein: the existing arrangement regarding the release from military service of some Yeshivah seminary students (in contrast with other Yeshivah students who have served and continue to serve in all of Israel's wars, alongside with other men of military age) is indeed lawful, but from the practical perspective, it is, in my opinion, unsatisfactory and difficult acquiesce in. It raises weighty questions in the field of both public and personal morality, questions which are left unresolved. This statement is also made here so that the legal outcome will not blur the value-judgment, national and human, which in my estimation is a source of concern for a significant portion of the public.

To summarize this point: although from the legal point of view I see no place for this Court's intervention as requested in the Petition, I am not prepared to support the arrangement on as merits.

From here I move to a legal analysis of the problem before us.

Method Of Analysing The Problem

4. I agree that there are three questions to address, generally, in the issue presented to the Court in this Petition.

(A) The Petitioner's right of standing;

(B) The justiciability of the topic, that is: to what extent are we speaking of an issue which by its nature is capable of judicial determination, or whether this is not an issue of the type determination of which is best left to the decision of other authorities, being either the legislature or the executive;

(C) The legal arrangement, pursuant to which regular service certain Yeshivah students is deferred because they are occupied full-time with religious studies, such that they are, in practice, exempt from regular and reserve service.

The three topics noted above are not presented here in the order of priority by which they ought to be decided under all circumstances, because the order of dealing with these topics, as to a particular issue, depends, of course, on its nature and details.

5. (A) My esteemed colleague Justice Barak summarized the basic facts of this Petition in his decision, and I see no need to add anything further thereto. I likewise accept the description of the essence of the formal legal framework, being a summary of the relevant provisions of the Defence Service Law, as amended and consolidated.

(B) As to the question of whether the Petitioners before us have right of standing, my esteemed colleague Justice Barak answered in the affirmative.

In my opinion as well the Petitioners have right of standing. I will add nothing on this topic to my esteemed colleague's exhaustive discussion, because my opinion in this area corresponds to the approach indicated in his discussion, which has already been presented several times in the past, including in, inter alia, H.C. 852,869/86, H.C. 483, 486, 487, 502, 507, 512, 515, 518, 521, 523,543/86, 1,33/87 [15], at page 22); H.C. 1/81 [10], at page 372; H.C. 511/80 [20]; H.C. 428, 429, 431, 446, 448, 463/86, Misc. H.C. App. 320/86 [12].

(C) As to the question of justiciability, I should observe here, in a nutshell, that my esteemed colleague demarcates lines distinguishing between the realms of normative and institutional justiciability. He thinks that the issue before us is justiciable from both of the two aforementioned perspectives. As to the dispute on its merits, he has arrived at the conclusion that the Minister of Defence's determination on the subject before us conforms with the law and that it does not exceed the realm of reasonableness, that is: the decision is within the confines of those which a reasonable Minister of Defence could have reached in the circumstances, and accordingly, there are no grounds for the intervention of the High Court of Justice, as requested in this Petition.

The Procedural Stage In Which The Justiciability Question Arises

6. (A) The question of right of standing is the type of issue which is decided, usually, at the early stages of the proceedings; the question of justiciability can, in contrast, be decided by the court at any stage of the case, that is, even after clarification of the problem and following the hearing on its merits and particulars. In this regard I noted in H.C. 620/85 [33], at page 191, that when the High Court of Justice finds that it has jurisdiction to consider an issue, and that legal standards are available to decide it, it is nevertheless entitled to consider whether or not it is proper for it to intervene in the dispute brought before it, and even to abstain as a result thereof from judicial intervention. The conferred discretion on the court is, inter alia, a reflection of the need to create a balance between the various interests and functions of governmental authorities', including the interest in maintaining a separation which permits a different governmental body, which is in charge of such, to decide an issue of a predominantly political character. As mentioned, it is necessary in this context to note that, within the framework of a particular problem, there may be components or elements stemming from differing areas, some of a legal nature or having characteristics which permit judicial determination, and some clearly political. It was noted there that there are several topics having components in which the political element is combined with elements allowing for discretion and distinctions of a legal nature. I commented on this in H.C. 852,869/86, Misc. H.C. App.483, 487, 502, 507, 512-515, 518, 521, 523, 543/86, 1,33/87 [15], at pages 29-30:

"...As far as I am concerned, I do not think that one can totally exclude the intrusion of political elements into litigation before the High Court of Justice. It is true that the standard applied by the Court is a legal one, but most of the constitutional issues also contain political elements, in the various senses of this concept, and the question is, in general, what is the dominant characteristic of the dispute. One cannot, therefore accept the proposal that the Court should withdraw from consideration of these topics because of some such incidental political characteristic. On the contrary, examination of an issue on a legal and normative basis can free the problem, not infrequently, from dependence on the concomitant political attaches, which are liable to cloud the true nature of the problem.

Fundamentally, even if a particular problem has political aspects, the standard applied by the court is a legal one, and whether the issue is appropriate for consideration before the courts is examined solely pursuant to such standard. Hence this Court considers whether there are legal grounds - from among those discussed in paragraph 15 of the Basic Law: The Judicature - so as to decide whether to allow access to a petitioner, and in light of this standard, the personal standing of a particular person as a Knesset member ought not to add or detract anything while the ancillary political characteristic of a particular dispute does not and need not alter in any way the justiciability of a problem, if it is indeed, predominantly, a legal problem" (emphasis added - M.S.).

However, the contrary is also true, that is, it can happen that the political nature will dominate to the point that it will conceal or sit aside the legal significance of the problem. The legally significant elements (such as the question of jurisdiction) are, of course, always subject to judicial review; but if the entirety clearly and overtly points to a dispute of a predominantly political nature, the court will not inclined to deal with it (H.C. 58/68 [30], supra, at page 600).

(B) I have noted that determination as to justiciability can be made at any stage of the proceedings. It should not be inferred from this that the issue cannot be decided at the outset of the proceedings. Deciding justiciability after thorough examination of the issue in dispute, is an option but not obligatory. There are circumstances in which a decision on justiciability will be required at the outset proceedings, and this is possible and subject to the court's discretion.

(C) To summarize this point: When a problem combines within it both legal and political elements, the court will not refrain from considering it under its legal criteria, merely because political components are interwoven into the problem. But it is clear that it will not consider the latter.

If the issue is primarily political, but secondarily, it has legal components, the court can do one of the following: It can hold that the legal characteristics are insignificant for purposes of deciding the substance of the problem, and dismiss the petition in all its aspects, or it can confine its examination to the legal aspects and leave the determination of the predominant issues to the body in charge thereof under the constitutional division of responsibility.

(D) This is also why it was stated in H.C. 620/85 [33], supra, that the High Court of Justice will not be ready to exercise its powers as to every petition which raises a subject within its jurisdiction, even if the conditions of justiciability are present. This is also the import of the timing for application of the justiciability tests: when an issue is examined in terms of its justiciability after detailed consideration of it on the merits, attention is of course paid primarily to the circumstances of the specific issue before the court, and not only to the general categorization of that issue. As summarized, ibid., at page 191-192:

"The advantage of the proposition that an important constitutional issue is at the same time a justiciable issue - albeit subject to consideration as to whether to intervene therein under criteria of judicial discretion - lies in its flexibility and in postponing consideration of the justiciability question until after the hearing an the substantive issue. This topic has already been explained in H.C. 306/81, supra, at page 141-142, where it is stated, at page 141:

'On an important constitutional issue... it is preferable for procedural circumstances to be created which permitting consideration of the matter, so long as it is not manifestly clear that the topic is not subject to the jurisdiction of the court'.

The presumption underlying these statements is that, when a question is important, so long as it is not clear that the topic is not suited for judicial determination, the court examines the substantive issue of the petition; there are instances where only a detailed examination will lead to a conclusion regarding existence of jurisdiction or the propriety of the subject proceeding in question; however, the main part is that some of the tests which were set forth as standards for this Court's intervention in the Knesset's decisions require knowledge of the nature and extent of the alleged harm. Everyone agrees that knowledge of this type is impossible prior to examination of the issue or its merits".

Justiciability

7. (A) In all matters concerning to the theory of justiciability (H.C. 65/51 [25]; H.C. 186/65 [29]; H.C. 561/7 [27], at page 315), I accept the method of distinction which was thoroughly clarified in the judgment of my esteemed colleague Justice Barak, pursuant to which examination of the dispute proceeds on two separate planes, i.e., firstly, normative justiciability, and secondly, institutional justiciability.

Normative justiciability answers the question of whether legal standards exist for determination of the dispute before the court.

Institutional Justiciability answers the question of whether the court is the appropriate institution for deciding the dispute, or whether perhaps it is preferable that the dispute be decided by another institution, being either the Legislature, the Executive, or their emanations.

A legal standard for determination means, in other words, that the action which is subject to the court's judicial review is examined in terms of its legality.

In E.A. 2,3/ 84 [65], at page 251-252, it was stated in connection with the standards applied in examining a statutory authority's exercise of discretion:

"So far as concerns this court, the accepted view is that in reviewing the action of a statutory authority we examine, in general, whether the modes of deliberation were lawful, and whether the authority had before it material on which it could base its decision (H.C. 288/51, 33/52[18]; H.C. 554/81 [19], at 251).

This general observation may be broken down into elements. Lawful deliberation means, generally, that the principles of natural justice have not been violated; that the procedures prescribed by statute and applying to the authority, or set out in the regulations under which it functions, have been observed; that the decision was rendered by the competent person and that it was in conformity with the material jurisdiction of the decision-making authority; that the decision-making authority exercised its power in furtherance of its purpose; that no mistake of law occurred and that the decision was not tainted by fraud or influenced thereby; that the decision was made on the basis of supporting evidence, and, finally, that it was not contrary to law for some other reason. The exercise of a power in furtherance of that power's purpose means, in general, that no extraneous considerations were taken into account; that the authority did not overlook relevant information; that the power was exercised for the purpose for which it was granted; that the discretion was exercised by those empowered thereto, and that there is no room for concluding that the decision is marked by unreasonableness so extreme that no reasonable authority could have made it, or that the exercise of the power was simply arbitrary".

In Britain it has even been proposed that the tests be summarized and concentrated under three primary headings, namely, unlawfulness, lack of reasonableness, and defects in the manner of exercising jurisdiction (of on for this matter Council of Civil Service Unions v. Minister for Civil Service (1985) [73]).

The problem is that one can argue that no closed list can reflect the dynamic nature of the development of administrative law; moreover, in our opinion, unreasonableness is one of the aspects of the test of lawfulness.

(B) In any event, legality is examined not just in its plain meaning, by answering the question of whether the law has conferred jurisdiction on the deciding authority, and whether exercise of jurisdiction falls squarely within bounds, and similar tests.

My esteemed colleague correctly states that, as noted above, in accordance with the concepts developed by this Court (inter alia, following H.C. 156/75 [58 ], at page 105, opposite marginal letter E, and see also E.A. 2,3/84 [65], supra), the reasonableness of the act or omission is also one of the tests of legality. If the act or omission are tainted with extreme unreasonableness, i.e., if they exceed the bounds of reasonableness and it is not possible to classify them among any of the reasonable courses of action, then too it is an illegal action, and the same applies in the contrary situation, i.e., if the action is within the realm of reasonableness according to the court's holding, and it also does not stray from the formal rules of jurisdiction, then the act is legal, and the court will not interfere with it.

8. As appears from the discussion by my esteemed colleague Justice Barak, there is no topic in our world as to which the questions of formal legality and of reasonableness could not be asked; i.e., there is no topic which is not justiciable, and any topic can be considered in court. As to this point, I would like to add qualifications and clarifications.

Separation Of Powers

9. I do not disagree with the above-mentioned thesis: it is true that every topic can be examined pursuant to the aforementioned tests of legality, and, inter alia, its place within the realm of reasonableness; whether the topic is the development of a combat plane or the founding of an additional law or medical faculty, or even crucial foreign relations and security questions, an answer can always be sought to the question of whether a particular topic was decided by the authorized to do so by law, and whether the action was carried out within the bounds of the jurisdiction outlined in the statute.

The problem is that, quite frequently, the question is not merely endorsement of the existence or non-existence of a legal test in the sense described above, but rather a question arises which essentially relates to taking a position on topics which require a material decision by those dealing with the matter. Together with the presentation of the question, accordingly, the fundamental problem of separation of areas of operation between the authorities arises as a derivative question.

As I noted in H.C. 306/81 [21], I do not hold that the separation of powers is expressed by establishing an absolute barrier between each of the three powers. As was stated therein, at page 141:

"Separation between the powers does not necessarily mean the creation of a barrier which absolutely prohibits all connection and contact between the powers, but rather it is primarily reflected in the existence of a balance between the powers, in practice, which permits independence with defined, mutual supervision. Hence, it also requires a certain practical relationship, even if it is extremely limited, regarding the exercise of powers in areas where the judicial system is in charge".

Separation of powers was created so as to bring about a balance between the powers, since it is only in this way, that is, by preventing an excessive concentration of power exclusively in the hands of one authority, that democracy is ensured and the freedom of the individual and of society is preserved. In other words, the systematic and conceptual distribution of powers between the authorities, through the imposition of constitutional principles of mutual checks and balances, and the establishment of links and bridges between the various authorities for that purpose, will create the basis of integrated components, embracing all the branches of government. Thus, the parallelogram of forces is created, which maintains and stabilizes the balance, and which is a condition for the maintenance of freedom and proper government in all its branches.

If the theory which allows consideration by the courts of every issue by the constanting put into practice realized regularly, that is: If every topic - from the details of the budget to the construction of housing projects, planes and tanks - will be decided by the court according to formal tests of legality or according to the reasonableness tests regarding which the Court lays down the law, this could well create a concentration of power which will, in practice, nullify the other authorities ability to function.

How are the bounds delineated, and how is the balance created? There is no mathematical formula for this, nor is it possible to set up unclear indicators. However, as I noted above, the test which can be utilized for this end is the test of the predominant nature of the topic. Sometimes such predominant nature leads to the conclusion that the topic ought to be decided by the judiciary, and sometimes that nature indicates that it ought necessarily to be submitted to the legislature and sometimes it can be learned from all the circumstances that, according to our conceptions, it is the issue should be left in the hands of the executive i.e. political power. Of course, sometimes part of the topic will be considered by one authority and the rest by another, each authority addressing that area submitted to its consideration.

All the authorities act, of course, through mutual checks and balances, and therefore the court always has the jurisdiction to exercise its power if the problem brought before it law has legal overtures. It goes without saying that one of the points of difference between one authority and another is that the legislature and executive can take up the topic of their choice, whereas the judiciary only considers that which is brought before it by litigants.

Judicial control always exists because it derives from the essence, role and mode of operation of the judiciary, and from the remedies within its jurisdiction. In the words of Wade, supra, at 605, which I am prepared to adopt:

"...Judicial control is a constitutional fundamental which even the sovereign parliament cannot abolish...".

The way I would express this view is that judicial control will always prevail.

Hence, moreover, the justiciability problem need not arise at all, as far as I am concerned, whenever the dispute affects the safeguarding of rights, political or otherwise. As stated by Justice Brennan in the Baker case [68], at 209:

"...the mere fact that the suit seeks protection of a political right does not mean it presents a political question".

Application Of The Justiciability Test In Practice

10. There are cases where consideration of a particular issue according to legal standards alone will miss the point because it is likely to obscure the true nature of the problem under consideration. Frequently, it is not the legal norm which gives rise to the problem, and it has no decisive significance for the substance of the decision, but once the judicial determination is made, and it appears that the decision, which was subjected to judicial review, was made by the person entitled to do so, in good faith, without discrimination, and is within the realm of reasonableness, it may will be concluded that everything is in order, despite the fact that the decision on the merits is far from satisfactory: Is a decision regarding the production of a plane or questions of foreign policy settled by the answer to the questions examined by the judicial forum by the above-mentioned tests? The answer to this is in the negative. However, the trouble is that this is the misleading conclusion liable to be formed by legal discussion of a problem the basis of which is actually foreign to legal criteria. In such circumstances, the response is likely to be, frequently, what is called "question begging", i.e.: it will permit those who so wish to circumvent and avoid relevant consideration of the issue which is the cause of action of the petition. Accordingly, justiciability is always examined pursuant to the two-fold test, i.e., the question of institutional justiciability is combined with normative justiciability, and according to the former test, the court is required, in theory and in practice, to go back, stop and consider whether hearing of it is indeed proper and desirable for it to hear the issue as the most suitable body to do so. In other words, despite the fact that it is possible to apply legal standards in a formal sense, these should not be seen, in many areas, as an answer to the problem, because pursuant to its essence, nature and characteristics, additional answers are needed in realms that the Court does not refer to.

This argument applies to an even greater extent to the examination of normative justiciability pursuant to the reasonableness tests. There is no issue the reasonableness of which cannot be assessed. However, the reasonableness test in the realm of normative justiciability emphasizes to a greater degree vigor, as stated, the importance of maintaining the additional, cumulative justiciability test, i.e., the institutional justiciability test, which may lead to the conclusion that it is not proper for the court to address the reasonableness of a particular issue, despite the fact that it can be grouped among the issues which can be examined according to normative justiciability tests. The institutional justiciability test allows for exercise of restraint in relations among governmental authorities, a restraint which allows for submission of political problems for determination by politicians. We have already cited H.C. 186/65 [29], supra, in which the entrance of the first German ambassador into Israel was considered. Justice Sussman (as he then was) said therein, at page 487:

"It is common knowledge that public opinion is divided on the question of whether or not it is desirable to acceal to the request of the West German Government and establish diplomatic relations with it. The Government made a decision on the issue, and moreover, brought the matter before the Knesset, and the Knesset supported the Government's decision. The issue was not legal one, but a clear political issue; it cannot be examined pursuant to legal standards. And the confirmation or invalidation of the ambassador of a foreign country is a political issue as well, which the Minister of Foreign Affairs or perhaps the entire Government must address. It is not a legal matter, which by its nature may be brought to a court for resolution. The considerations are not legal considerations, but rather considerations of foreign policy and of the fitness of the candidate for the task, which this Court is neither authorized nor capable of deciding" (emphasis added - M.S.).

According to the normative justiciability test, it was possible for a court to determine whether the establishment of relations was the outcome of a decision by a person authorized to decide person. It was possible even to go on and litigate the question of whether the establishment of relations was a reasonable act or not, or according to the foundation of the legal standard, whether a reasonable government would have established such relations. However, there can be no question that the petition was not directed at the first formal legal issue mentioned above, and that the second criterion - concerning the reasonableness of establishing diplomatic relations with any state - is not of the type which a court ought to, or is able to deal with. A decision on the issue of formal jurisdiction, if it were to have been made by the Court, would, on its own, have been merely a kind of evasion of the topic; consideration of the reasonableness question would have forced on the judicial forum a topic which is entirely unsuitable for consideration by it. The question described above is suitable for political, historical, philosophical or even emotional consideration, but the criteria at the court's disposal in no way allow it to encompass these various aspects or be involved in them.

There are those who propose replacing the justiciability tests by the standards used by the court to examine the exercise of authority which the substantive law has placed in the hands of a statutory authority. Thus it can be argued, according to this thesis, that where discretion is conferred on a particular authority, the court will examine whether the discretion was exercised according to the standards delineated in the law, and nothing else, but it will not replace the authority's exercise of discretion by its own; hence, there will be no room for intervention by the court, so that, the risk of the court dealing with topics which are not with its ambit would be eliminated, so to speak.

The problem is, that this solution does not include by its terms the array of circumstances described above: exercise of discretion as to whether to establish, for example, diplomatic relations with a particular country does not, by its nature, have to be examined in court, in other words, it is not justiciable, because in the words of President Sussman, it is a clear political issue, and the limits on the court's intervention in an authority's discretion does not have to be the determinative factor for it not to intervene.

The same applies to other examples cited in my esteemed colleague's opinion, and first and foremost is the question or whether to declare war or to make peace. To be precise, the problem is not always lack of norms in the personal inability of a judge to examine the norms; it would be the demarcation of the spheres of activity of various public bodies, which is one of the fundamentals of good government. Such demarcation seeks to avoid over-concentration of power, in which the court has resort to all matters - political and otherwise - and purports to adjudicate thereon.

Hence, as stated, we arrive at the institutional justiciability test, since the normative test would embrace everything without exception, and it goes without saying that it would drag the court into making clear political decisions. The expert sense of the jurist (H.C. 65/51 [25], supra, at page 813) must protect the Court - and other governmental authorities - from an outcome of this nature.

As a footnote, I should add that I did not illustrate my comments by reference to the facts of H.C. 65/51 [25], supra, since in my opinion the legal and constitutional issue considered in the aforementioned petition is the opposite of what is described above regarding the establishment of diplomatic relations. That is, it is doubtful whether in fact a non-justiciable political issue existed under the circumstances therein, since it concerned a constitutional process the origin and mode of operation of which are delineated in the statutory enactments; it could well be that it would have been justified in that case to dismiss the Petition because it was, in truth, merely a request to invalidate the exercise of discretion by a authority having proper justification, a request as to which that the Court did not see fit to intervene under the circumstances which existed at the time. This is also the opinion of Justice Witkon, see Politics and Law, and also, Law and Adjudication, at page 57.

11.. What was exemplified above in connection with H.C. 186/65 [29] (establishment of diplomatic relations) is correct regarding questions of peace or war, acquisition of means of combat, methods of dealing with employment difficulties or with distressed enterprises, or establishing unified or separate methods of collection by the income tax authorities and the National Insurance Institute, and the list goes on.

My esteemed colleague in this context also cited the statements made in H.C. 561/75 [27], supra. As I said therein, at page 319:

"Topics related to the organization, structure, preparations, arming and operations of the army are not justiciable because they are entirely unsuitable for consideration and determination by judicial bodies... It is entirely unreasonable for the judiciary to consider and determine what is the most effective method for deriving lessons from military operations, from a professional, military point of view, and substitute its opinion for that of the military authorities who were trained and placed in charge of such matters".

My esteemed colleague's position is that instead of denying the inherent justiciability of the topic, one of the following courses should have been followed:

(a) First, the relevant legal norm should have been identified. Since there is no norm which states that inefficient government action is unlawful, the petition should have been dismissed; alternatively -

(b) The submission that the army acted unreasonably should have been dismissed. It is true that the Court does not replace the authority's opinion by its own; however it examines whether a reasonable army would have taken the steps which the I.D.F. took at that time. If the petitioner succeeds in showing that the army's action was unreasonable, then the petition should be granted. In other words, in his opinion there are legal standards pursuant to which it is possible to determine whether the army's actions as to debriefings and learning lessons in the wake of war are reasonable.

Regretfully, I cannot accept the two courses outlined above.

Dismissal of the Petition on the basis of the conclusion that there is no legal norm which invalidates an inefficient governmental action highlights, in my opinion, the irrelevance of justiciability as to a clearly military operational issue.

The public examination of "whether a reasonable army would take the action which the army took or which the petition is asking the army to take" is in theory and in practice, with all due respect, outside the court's realm. The submission that the court in any event considers the reasonableness of army action whenever it is called upon to address tort claims arising from military activities is no answer to the question.

The problem before us is in the realm of public law, and is concerned with the scope of authority which the High Court of Justice should take upon itself, and the subsequent consequences for democracy in its actions. Examination of a negligence claim in tort law in a concrete context, which in general is specific and narrow, does not place the Court in the position of determining questions of policy, just as deciding a concrete question of medical negligence does not transform the Court into the body which addresses and decides the general and broad topic of how to organize the State's medical system.

I fear that it would not be possible to maintain proper governmental systems - including a court which functions as it should - if all the political problems will begin to make their way to the Court to be examined there according to legal standards.

Indeed, I agree that where there is a legal norm there are also legal standards which implement that norm; however, the threshold question is whether the legal norm is relevant and applicable to a particular problem, and whether it should be learned from the context, the nature of the problem, the substance of the topic and the set of rules, pursuant to which the proper system of interrelations between the various governmental bodies are fashioned, that it is best that the Court refrain from dealing with a particular topic, in whole or in part (that is, except for those portions of the issue which may be decided according to legal tests), so as to submit it to the attention and determination of another governmental institution. Hence the significance of the institutional justiciability test, as noted above.

12. The recognition of the limits of justiciability which may, in appropriate situations, lead the Court to refrain from dealing with a political, economic or other public problem, does not weaken the principle of judicial supervision and review but rather strengthens it, since it determines the proper limits of the principle. Public officials and bodies are subject to judicial supervision, and it goes without saying that the fact that a particular topic belongs to the public realm does not, in and of itself, make it non-justiciable; and it is section 15 of Basic Law: The Judicature which states this. Those who reject the thesis that every topic in the world is justiciable, do not thereby adopt the opposite conclusion, that the Court must, so to speak, narrow the scope of its supervision. Any topic as to which legal norms are applicable may serve as grounds for a request for an exercise of jurisdiction by a court. But if the legal normative issue is secondary, the court can deal with the legal portion of that issue and leave the political issue for determination by another authority. If the political nature of the problem is predominant (such as a question of establishing diplomatic relations or matters of war and peace), the court can transfer the entire topic for determination by the political body, without addressing marginal legal issues, where they are not relevant to the substantive decision.

As noted, it is best to chart the limits so that the court will not find itself unintentionally granting a general stamp of approval to a political action, as a result of the fact that it is asked to examine the legal aspects of it alone.

The Court ascertains whether the facts were assembled and examined, whether they were all taken into account, whether the decision was made with relation to the facts, whether extraneous factors and the like were taken into consideration (see H.C. 297/82 [60] and E. A. 2,3/84 [65], Supra). However, when the jurist's expert sense indicates that the topic, in whole or in part, is clearly political or of another nature which indicates that its determination should be submitted to another authority, then that part which has the aforestated characteristic (and if the legal aspect is insignificant, the entire topic) should properly be referred to whoever is placed in charge of it according to the division of spheres between the different authorities.

The Court's power of supervision over matters as to which its review is expected will not be diminished in the least if it does not decide, for example, as to the reasonableness of establishing diplomatic ties between Israel and a particular state.

In practice, there need not be any difficulty in identifying a particular topic according to its substance and content, and it may fairly be assumed that the Court will know how to treat the topics brought before it according to their nature, so as to choose which is suitable for judicial determination, and not be entangled in legal determinations that conceal problems the real and decisive nature of which are political.

Deferment Of Service

13. I agree with my esteemed colleagues' opinion that the topic before us is justiciable, and that despite its accompanying political elements, this is a topic regarding which legal tests can be employed. I also accept that under the existing circumstances the system of deferment of military service, already in place for nearly forty years, should not be invalidated. However, this statement is insufficient because the exemption of thousands of young people from military service is not a topic which can be removed from the agenda. What do mean by this?

As stated, there is no room for the conclusion that the Minister of Defence, who is currently acting consistently pursuant to a system which was handed on from one minister to another and from one government to another over a period of many years, as explained above, is acting with extreme unreasonableness which goes beyond the bounds of plausibility. The problem is that the issue must be examined not only as it appears on the surface, against the background of its development since the establishment of the State up to the present, but rather also according to its ongoing nature and the impact and consequences which accompany it, year in and year out, for the foreseeable future. This Means that what we now hold regarding the legal validity of the arrangement, when it is subjected to the relevant judicial review for the first time, does not exempt the Executive from the obligation of continuing to examine, and reexamine from time to time, the significance of granting an exemption to increasing numbers of men of military age. Already we are speaking of an exemption for approximately 17,000 men, if we include in this statistic all age groups of men of military age, that is, men between the ages 18 and 54. In the past year, 1,600 men of military age were added, and according to the data before us the number will grow annually in the coming years. Therefore, we are not speaking of fixed data, but rather of facts which change and are updated every year. This means that a duty is imposed on the authorized body to examine the data annually and state its opinion on the question of their connection with other background data.

In this context I once again refer to a matter summarized in H.C. 297/82 [60], at page 49 as follows:

"The process of decision-making by one to whom power is delegated under the law should properly consist, in general, of a number of basic essential stages, which are the tangible expression of the legal exercise of authority while dealing with a defined topic, and they are: assembly and summary of data (including opposing expert opinions, if there are such), examination of the significance of the data (which includes, in the case of alternative theses, also examination of the advantages and disadvantages of the opposing theses), and finally, a summary of the reasoned decision. A process like this ensures that all the relevant factors are taken into consideration, that a fair examination of every submission will be conducted, and that a decision will be made which may be subjected to judicial and public review".

And in H.C. 852,869/86, Misc. App. H.C. 483, 486, 487, 502, 507, 512-515, 518, 521, 523, 543/86, 1,33/87 [15], at page 50, we added:

"A decision must be, in each case, the result of a relevant, fair and systematic examination, and if, in light of the nature of the issue, repeated examinations are required, the new application should not be peremptorily dismissed without proper study, in exclusive reliance upon the fact that the empowered authority was granted discretion to decide the matter, or through adherence to the prior decision which may need to be revised".

Does it appear from the material before us that all the data were collected, examined and considered according to their appropriate value and weight, without the decision being affected from the outset by the long-standing agreed on this issue, political arrangement? I fear that it there is no certainty and that the prior assumptions have rendered the decision obvious, without the data being examined and re-examined in a systematic manner, and without a prior inclination towards an agreed-upon solution.

Thus it does not appear from the State Attorney's Response that the following questions, inter alia, have been considered:

(A) What is the reasonable yearly quota for those granted draft deferment, consistent with safeguarding the security interest in military training of men of military age who are physically fit?

(B) What is the numerical impact on the yearly draft cycle and on the length of military service in the regular army and in the reserves?

In this context it is proposed that the impact of the increase in exemptions at the rate of ten-percent a year (1,674 last year, as against a total of 17,000 total whose draft has been deferred) should be examined, and that setting maximum quotas be considered.

(C) Whether there are standards for the selection of candidates for deferment, in terms of fitness; that is, is grant of deferment entirely within the discretion of the man of military age who decides to give defence to religious study over military service?

(D) What are the means of supervising the way the arrangement is operated?

Of course, the above is not intended to exhaust the topics which should be examined and considered, but rather merely illustrate them; the essence of this discussion is that a phenomenon of the type we have dealt with herein requires a relevant, systematic, periodic examination, and that the competent authority must continuously follow the developments, their connection to other phenomena, and their accompanying significance, and, of course, to report on these matters to the appropriate Knesset committee.

Subject to these comments I have decided to adhere to the conclusion reached by my esteemed colleagues.

Decision as stated in the judgment of Barak, J.

Judgments given on June 12, 1988

Full opinion:

Ressler v. Minister of Defense.pdf

Bargil v. Government of Israel

Case/docket number:

HCJ 4481/91

Date Decided:

Wednesday, August 25, 1993

Decision Type:

Original

Topics:

Administrative Law

Standing

Constitutional Law

State of Emergency and National Security

Justiciability

Abstract:

The petition asks the court to find the Government’s policy of allowing
Israeli citizens to settle in the occupied territories of Judea, Samaria and the Gaza
Strip to be illegal. The court held that the petition was too general to be justiciable.

Voting Justices:

Shamgar, Meir

Primary Author

majority opinion

Or, Theodor

Author

concurrence

Goldberg, Eliezer

Author

concurrence

Full text of the opinion:

The Supreme Court sitting as the High Court of Justice

[25 August 1993]

Before President M. Shamgar and Justices E. Goldberg, T. Or

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

Facts: The petition asks the court to find the Government’s policy of allowing Israeli citizens to settle in the occupied territories of Judea, Samaria and the Gaza Strip to be illegal.

Held: The court held that the petition was too general to be justiciable.

Petition denied.

Israeli Supreme Court cases cited:

[1] HCJ 390/79 Dawikat v. Government of Israel IsrSC 34(1) 1.

[2] HCJ 663/78 Kiryat Arba Administration v. National Labour Court IsrSC 33(2) 398.

[3] HCJ 2926/90 (unreported).

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

[5] HCJ 606/78 Awib v. Minister of Defence IsrSC 33(2) 113.

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

[7] HCJ 1635/90 Jerzhevski v. Prime Minister IsrSC 45(1) 749.

American cases cited:

[8] Warth v. Seldin 95 S. Ct. 2197 (1975).

[9] Schlesinger v. Reservists to Stop the War 418 U.S. 208 (1974).

[10] Valley Forge College v. Americans United 454 U.S. 464 (1981).

[11] Baker v. Carr 369 U.S. 186, 211-213, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962).

[12] Powell v. McCormack, 395 U.S. 486, 519-521, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969).

For the petitioners — A. Feldman.

For respondents 1-8 — N. Arad, Director of the High Court of Justice Department at the State Attorney’s Office.

For respondent 9 – M. Berkovitz.

For respondents 10-11 – D. Rotem.

For respondent 10 – Z. Turlow.

For respondent 12 – Y. Inbar.

For respondent 13 – P. Maoz.

JUDGMENT

President M. Shamgar

1. This petition addresses the settling of citizens who are residents of Israel in settlements, in the territories held by the Israel Defence Forces (IDF) under military occupation.

2. (a) The petition relates to the establishment — in the past or the present — of civilian settlements; in the words of the petition, ‘these actions are not essential for the defence of the IDF forces in the area or for defending the State for reasons determined by the authorities directly responsible for the defence of the State (defence reasons).’ The petition asks why settlement should not be permitted only to settlers who are prepared and undertake to leave the area after the defence reasons lapse. The petition further explains, inter alia, that its intention is to rescind the authority of State authorities to build, with State budget funds, Jewish Agency funds or Zionist Federation funds, any housing units, public buildings, infrastructure, electricity, water connections, roads, paths, etc., other than for defence reasons.

The petition demands that the State budget, when submitted for Knesset approval, should specify the expenditures in the occupied territories ‘for settlement and the settling of citizens of the State and its residents there, separately from and independent of the other expenditures of Government ministries.’ Directing the petition against the Minister of Building and Housing, the IDF authorities, the Custodian of Government and abandoned property and planning and building authorities, is designed to ask us to determine restrictions for the actions of these authorities in matters relating to settlement.

(b) The petition wants us to consider the legality of the actions of the Government of Israel and other authorities with regard to settlement which is being carried out not for defence reasons but for the purpose of permanent settlement. It is argued that the legality is prejudiced because these actions run counter to the State’s obligation under public international law not to exercise its sovereignty in the occupied territories, to maintain the status quo and to act in accordance with the customary and written rules of public international law.

(c) The petition seeks to base its arguments on three areas of law: customary public international law, administrative law and civil law.

The petitioners refer us to public international law, as set out in the Geneva Convention concerning the Protection of Civilian Persons in Time of War, 1949 (hereafter — ‘the Geneva Convention’), which prohibits the transfer of the State’s population to the occupied territories. The issue of settlements is admittedly an ideological one, and the petitioners point out that they do not deny the right to adopt any ideological position, provided that it does not conflict with existing law. Exercising full sovereignty in the occupied territories is contrary to law. The Government has only the authority to exercise its powers under art. 43 of the Annex to the Hague Convention concerning the Laws and Customs of War on Land, 1907 (hereafter — ‘the Hague Convention’). This article embodies the axiom that every action of a military administration is governed by the principle of transience. Emphasis is placed on restoring law and order and life as it was on the eve of the occupation, and no new public order may be established in any sphere. Any permanent settlement is contrary to the principle of transience, since it leads to a substantive change of a permanent nature. Moreover, the settlements change the law in the occupied territories: they lead to Israeli legislation that relates especially to the Jewish residents in the territories, their being subject to the jurisdiction of the courts in Israel etc., and to defence legislation that creates separate and unique legal arrangements for this population.

Furthermore, since the Geneva Convention allegedly prohibits even a voluntary and uncoerced population transfer of the State’s population into an occupied territory, the respondents’ actions are contrary to the rules of the Geneva Convention. Every site on which a settlement is established is de facto annexed to the territory of the State of Israel. The legal and political climate prevailing in it is precisely identical to that of the State of Israel. Any actions of the authorities that do not apply and implement the legislation in force in the area are unreasonable, to the extent that they breach the international undertakings of the State. They are tainted with an improper purpose, and therefore, by virtue of Israeli administrative law, they should be voided, and in order to void them there is no need for the legal determination that the Geneva Convention is part of customary international law.

(d) The authorities that establish settlements are an integral part of the Israeli Government and bureaucracy, which considers questions of settlement, land, people’s willingness to settle, and not considerations of a military Government in occupied territories.

The facts created in the territories as a result of the settlements are permanent and independent of any political arrangement that may occur after the military Government ends. In view of the housing crisis that exists in the State of Israel, the range of economic incentives offered to persons settling in the occupied territories amounts almost to a ‘forced transfer of the citizens of the State to the occupied territories’. The petitioners argue that the expenditure of State funds to finance these benefits is expenditure for purposes prohibited under the customary rules of international law. The act of enticing people to live in the occupied territories and exploiting their economic distress for this purpose are also prohibited, and the impropriety lies both in the motive and in the outcome.

(e) Finally, these acts are not merely contrary to customary public international law norms, nor are they merely improper from the viewpoint of administrative law, but they are also, as stated, allegedly invalid for a third reason, namely under the constitutional law of the State of Israel, since the settlements violate the fundamental principles of the State of Israel as a democratic and egalitarian State. How so? No-one disputes that Israel’s administration of the occupied territories is undemocratic, in the sense that the military commanders are not elected by the local population and are not answerable to it for their actions. Notwithstanding, the court has held on several occasions that to the extent that defence requirements and other obligations imposed on the occupying State allow, human rights of the local residents may not be violated unnecessarily. Creating a large community of Israelis who are citizens of the State and who live in the occupied territories and enjoy material assets, political rights, economic rights, legal rights and basic rights that are far superior to those given to the Arab residents of the occupied territories creates improper discrimination, which humiliates the residents of the occupied territories, and creates a social and political system contrary to the values of the State of Israel as a democratic and liberal State.

In the petitioners’ opinion, the authority given to the Jewish Agency and the Zionist Federation is also improper, for how can the fifth respondent justify, under the customary rules of international law, the conferral of powers and authority on a body that is extrinsic to the territories and that operates within a jurisdiction, discretion and ideology that are blatantly Jewish and Zionist, and that certainly does not include among its goals the welfare of the local Arab population.

3. In my opinion, this petition should be denied, for it is defective in that it relates to questions of policy within the jurisdiction of other branches of a democratic Government, and it raises an issue whose political elements are dominant and clearly overshadow all its legal fragments. The overriding nature of the issue raised in the petition is blatantly political. The unsuitability of the questions raised in the petition for a judicial determination by the High Court of Justice derives in the present case from a combination of three aspects that make the issue unjusticiable: intervention in questions of policy that are in the jurisdiction of another branch of Government, the absence of a concrete dispute and the predominantly political nature of the issue.

4. (a) The petition before us seeks relief which is partly injunctive and partly declarative. The petition is characterised by its generality, namely by the absence of any attempt to establish a concrete set of facts as a basis for the argument, which is customary in this court and of course also in every other judicial forum, or perhaps even by a deliberate failure to make such an attempt. The clear purpose of the petition is to attack a general Government policy that prevailed at the time of submitting and hearing the petition, without reference to concrete acts or inaction.

The petition amounts to a general objection to Government policy. It is more general, by comparison, even than the case heard in the United States Supreme Court, Warth v. Seldin (1975) [8] (a petition claiming that the planning and building legislation in a certain city prevented persons with medium or low incomes from living in that city). In that case, the petition was denied, inter alia, because it violated the rule that the judiciary, by virtue of its judicial self-governance, does not consider abstract matters of sweeping public significance that are merely general objections on matters of policy, best considered by the legislature or the executive.

As stated in that case, the United States Supreme Court rejected the approach where:

‘The courts would be called to decide abstract questions of wide public significance, even though other Governmental institutions may be more competent to address the questions…’

See also, for instance, Schlesinger v. Reservists to Stop the War (1974) [9], at 222. The court does not deal with abstract problems, unless they are linked to a dispute with concrete implications; it will certainly not do so if the case is one of abstract problems of a predominantly political nature.

(b) In Professor A. Barak’s book, Judicial Discretion (Papyrus, 1987) at 242-245, the author points out that:

‘The court is an institution for deciding disputes. This is its main function. Exercising judicial discretion that aims to choose between different possibilities with regard to a legal norm, its existence — the scope of its application — is only a means for deciding a dispute. It is not the purpose of the proceeding but merely a by-product thereof. It is not an act that stands on its own, but it is incidental to deciding the dispute…

…

…It is true that judicial legislation is becoming a central function of the Supreme Court. Nonetheless, even this central function is incidental to deciding disputes. Even the Supreme Court is a court that decides disputes between the parties. In this way it is different from the legislator, for whom the creation of law is a central function... the judge always engages in the creation of law incidentally to deciding a dispute.’