Law of Return

featured:

Rogachova v. Ministry of Interior

Case/docket number:

HCJ 7625/06

Date Decided:

Thursday, March 31, 2016

Decision Type:

Original

Topics:

Abstract:

The Petitioners arrived in Israel from different places throughout the world, and while in Israel, underwent the conversion in an Orthodox community that did not operate within the framework of the state conversion system. The question that must be decided is whether these petitioners should be recognized as Jews for the purpose of the Law of Return. The Respondents argue that from an interpretative point of view, the Law of Return was not intended to apply to a person who converted while already living in Israel, and that a conversion performed in Israel should not be recognized unless it was conducted within the framework of the state conversion system.

The Supreme Court, sitting as the High Court of Justice, ruled:

President Naor: The question of the application of the Law of Return to converts who were living in Israel prior to their conversion has already been addressed in Rodriguez-Tushbeim v. Minister of the Interior. The fundamental decision in that case still holds: the Law of Return applies to a person who came to Israel, and converted while living lawfully in Israel. There is no justification for departing from that rule.

The Respondents’ approach lacks any support in the language of the Law. In this regard, we cannot accept the argument that the provision of sec. 3(a) of the Law of Return, establishing that “A Jew who has come to Israel and subsequent to his arrival has expressed his desire to settle in Israel may, while still in Israel, receive an oleh's certificate” represents a negative arrangement in regard to a person who comes to Israel when he is not a Jew. The conclusion required by purposive interpretation of the Law of Return is that it is, in fact, a positive arrangement.

The approach of the Respondents is incompatible with the purpose underlying the Law, i.e., immigration and the Ingathering of the Exiles. In addition, this approach has consequences that are not egalitarian, and for this reason, too, it cannot be accepted. As has been held, it would be unlawful discrimination for one person to be considered an oleh because he converted and later settled in Israel, while another person who wished to settle in Israel would not considered an oleh only because his conversion occurred after he settled in Israel. Both converts joined the Jewish people and settled in the State of Israel; they are both children returning to their homeland. The difference in the “timetable” of the conversion and the immigration is irrelevant for the purposes of the Law, and the Law should not be interpreted in such a way as to lead to such unlawful discrimination.

True, the purpose of encouraging immigration is not the only purpose that the Law of Return was designed to realize. Underlying the Law is also an objective purpose that concerns abuse of the right to acquire status by virtue of Return. However, it is doubtful whether the approach of the Respondents realizes this purpose, and in any case, it does not constitute the only or the optimal solution to the problem. First, concern about abuse of the Law does not exist only with respect to those converting in Israel. Second, concern about abuse of the Law can be dealt with by increasing the oversight and supervision of a person who wishes to realize his right to status by virtue of Return, such that conversion that is not sincere will not be recognized. This, however, will not affect the rights of sincere converts.

The requirement that the arrangements in the Law of Return be invoked in good faith and without abuse justifies limiting the application of the Law only to a person who was living in Israel lawfully at the time of his conversion. The Law of Return will not apply to a person who underwent conversion while he was knowingly living in Israel unlawfully. For the purpose of the application of the Law of Return, the type of visa held by the convert is irrelevant. If a person was in Israel lawfully at the time of his conversion – the Law applies to him.

We cannot accept the Respondents’ position that the concept of conversion under the Law of Return refers only to conversion in the framework of the state conversion system. First, this approach has no support in the language of sec. 4B. True, the language of the Law inserts almost no content into the concept of conversion. However, sec. 4B must be interpreted in light of the Law in its entirety. Against the backdrop of the context of the provisions of the Law of Return, it may be said that conversion in the context of this Law is a public-civil act. Hence, a certain degree of oversight of the recognition of conversion is necessary. However, the language of the Law does not specify the nature of that oversight and the conditions under which conversion will be recognized. It certainly does not necessitate that oversight be achieved by means of recognizing only conversion by the state conversion system.

Examination of the purpose of the Law also indicates that the Respondents’ approach must be rejected. The purpose of sec. 4B of the Law is to encourage every Jew to immigrate to Israel and to settle in the country. This is so whether he is a Jew from birth or whether he has chosen to affiliate to the Jewish people through conversion. In this, the provision comports with the general purpose of the Law of Return, which is, as stated, the Ingathering of the Exiles. Let there be no mistake: in addition to encouraging immigration, the Law of Return also reflects the purpose of establishing the unity of the Jewish people in Israel and abroad. The interpretation proposed by the Respondents does not realize these purposes. It significantly limits the right of immigration and does not attribute weight to the variety of Jewish communities that exist, and it therefore cannot be accepted.

Make no mistake: the approach whereby the expression “has become converted” refers to any person whom three Jews have declared to have been converted by them is likewise unacceptable. It is clear from the purpose of the Law that the expression “has become converted” in the Law of Return embraces an objective test of public recognition of the process of the conversion. The criterion that should be adopted is that which was adopted for the purpose of recognition of a conversion conducted abroad: the criterion of the recognized Jewish community. This criterion successfully combines realization of the purpose of encouraging immigration and the unity of the Jewish people on the one hand, and oversight of the public aspect of conversion on the other. It is also in keeping with the general, objective purpose underlying the Law of Return, which is concerned with ensuring egalitarian outcomes.

Therefore, the term “converted” in the Law of Return must be interpreted as conversion under the auspices of a recognized Jewish community, in accordance with its established criteria. As has been ruled, “recognized Jewish community” means an established, active community with a common, known Jewish identity, which has fixed frameworks of communal administration and which belongs to one of the streams recognized by the international Jewish community. The Orthodox communities in which the Petitioners were converted comply with the definition of recognized communities, as they are established and have a common, known Jewish identity.

The state conversion system was established in the framework of the Government’s residual authority. It is a well-known principle that residual authority cannot serve as the basis for violating human rights. Furthermore, residual authority does not include the authority to determine primary arrangements. Recognition of conversion for the purpose of the Law of Return is a primary arrangement. This arrangement should be made by the legislature and not by the administration. For these reasons, it was not found to be within the residual power of the Government to determine that only conversion within the framework of the state conversion system is conversion according to the Law of Return.

Oversight of the sincerity of conversion is not exhausted by the one and only possibility offered by the Respondents, which proposes the recognition of state conversion alone. The Respondents have multiple tools for addressing the concern of abuse, by way of individual, careful examination of the sincerity of the conversion, and by attributing weight to the objective facts surrounding the process of conversion, including the circumstances of the convert’s entry into Israel and the type of visa on which he entered. In any case, the requirement that the conversion be conducted in a recognized Jewish community allays, to a great extent, concern about abuse.

On the said basis, the petition of the Petitioner in HCJ 7625/06 is denied. The other petitions are granted, and the petitioner in HCJ 1594/11 and the petitioner in HCJ 1595/11 were held to be Jews for the purpose of the Law of Return.

Justices Danziger, Vogelman, Joubran and Hayut concurred.

Justice Melcer concurred, adding: In administrative law, abuse of a right on the part of others in the past, or a concern about such abuse in the future, does not justify the withholding of a right from a person seeking it in good faith. Refusal of the authority in such a case is tainted by unreasonableness and non-proportionality. This principle applies even more strongly in constitutional law, when what is involved are fundamental constitutional rights.

The Right of Return is a fundamental constitutional right that derives from the Jewish character of Israel, which is defined as a Jewish and democratic state. As such, this right is granted to every Jew. Just as the Law of Return does not present a monolithic view of every person born of a Jewish mother, so there cannot be a monolithic view of every person who has converted.

Justice Amit tended towards the minority opinion in Rodriguez-Tushbeim, according to which the Law of Return applies to a person who was Jewish before he came to Israel. However, since this extremely important decision was decided by a panel of eleven justices, Justice Amit concedes and does not find cause to deviate from that ruling. He concurs in the conclusion whereby recognition of conversion should not be confined to the state system alone.

Deputy President Rubinstein: The difficulty with the position of the President, at this time, lies in the fact that we are lending a hand to discord on the subject of conversion – an important subject in the Israeli experience as a Jewish and democratic state. Thus, recognition that grants status should come from the state, and it should be done in a manner that is friendly to the convert and as broad-minded as possible so that its outcome will apply to all Jewry. This is not something unattainable. The decision proposed by the President should be accepted with a deferment for 18 months, during which the Knesset will be able to establish by law a state conversion system that is harmonious, appropriate and fair both regarding the halakhah and respecting all sectors of our nation, at some level of centralization or decentralization, for otherwise, the responsibility will be borne by the political system.

Justice Hendel: “Conversion” is at base a religious term. Analysis of a concept with clearly religious roots requires addressing the halakhic position. To be clear, the roots of the institution of conversion are planted in the two-pronged philosophic and halakhic legacy of Jewish law, and at the same time, in a legal process. Interpretation of the term “has become converted” in the Law is required in order to give expression to these elements, while scrupulously preserving the frameworks, including an understanding of our role as the Supreme Court and not as a religious beth din [rabbinical tribunal].

The language and purpose of the Law do not entrench a position that would comprehensively negate the status of conversions conducted by private Orthodox religious tribunals. On the contrary: from the point of view of the purpose of the Law of Return, it would appear to be more correct to expand the possibilities of conversion – while giving expression to different halakhic approaches, and to rabbis with different outlooks who fall within the Orthodox framework. Creating over-centralization and granting an absolute monopoly to the Chief Rabbinate over the institution of conversion contradict the main purpose of the Law of Return, which is to encourage immigration. As such, the term “has become converted” must be interpreted broadly, in a way that includes every Orthodox conversion that was conducted in a beth din composed of rabbinic judges of stature.

This outcome is necessitated not only by the specific purpose of the Law of Return, but also by its general objective purpose, as derived from the basic principles of the system. There are substantive disputes even in the world of halakhah, certainly on the issue of conversion. Preferring a particular halakhic approach, while dismissing other approaches that exist in the halakhic-Orthodox arena is not an outcome that can be defended in the present legal situation. The state was not authorized to make such distinctions. Neither is this consistent with the values of the State of Israel as a Jewish and democratic state. Jewish, because the approach of the halakhah throughout the generations has supported pluralism in conversion proceedings, and democratic, due to the wrong in preferring the positions of one Orthodox group over those of another, in violation of equality and of the rights of those entitled to Return.

Voting Justices:

Naor, Miriam

Primary Author

majority opinion

Rubinstein, Elyakim

Author

dissent

Joubran, Salim

Author

concurrence

Hayut, Esther

Non-writer

majority opinion

Melcer, Hanan

Author

concurrence

Amit, Isaac

Author

concurrence

Hendel, Neal

Author

concurrence

Full text of the opinion:


HCJ 7625/06 HCJ 1594/11 HCJ 1595/11
President M. Naor Deputy President E. Rubinstein Justice S. Joubran Justice E. Hayut Justice H. Melcer Justice Y. Danziger Justice N. Hendel Justice U. Vogelman Justice Y. Amit	Before:
Martina Rogachova 1. Shawn Patrick Murphy 2. Rachel Zipporah Alter	Petitioner in HCJ 7625/06: Petitioners in HCJ 1594/11:
Viviana del Sisana Cabarera Martinez	Petitioner in HCJ 1595/11:
v.

1. Ministry of the Interior 2. Population Authority 3. Conversion Committee – Prime Minister’s Office 4. Immigration Authority	Respondents in HCJ 7625/06:
1. Ministry of the Interior 2. Conversion Committee – Prime Minister’s Office	Respondents in HCJ 1594/11 and HCJ 1595/11
1. World Union for Progressive Judaism 2. Movement for Progressive Judaism in Israel 3. Masorti Movement in Israel	Requesting to join as Respondents:
ITIM Organization	Requesting to join as “Amicus Curiae”:
Objection to an Order Nisi Dates of the hearings: 23 Adar 5773 (March 5, 2013) 13 Tammuz 5755 (June 30, 2015
Adv. Theodor Schwarzberg; Adv. Meital Schwarzberg-Hazan	Attorneys for the Petitioner in HCJ 7625/06:
Adv. Yael Katz Mestbaum; Adv. Ella Borochov	Attorneys for the Petitioners in HCJ 1594/11 and the Petitioner in HCJ 1595/11
Adv. Yochi Genessin; Adv. Roi Shweika	Attorneys for the Respondents in HCJ 7625/06, HCJ 1594/11 and HCJ 1595/11:
Adv. Nicole Maor	Attorney for those requesting to be joined as Respondents:
Adv. Aviad Hacohen; Adv. Elad Kaplan	Attorneys for the party requesting to join as Amicus Curiae

Israel Supreme Court cases cited

[1] HCJ 58/68 Shalit v. Minister of the Interior [1970] IsrSC 23(2) 477

[2] HCJ 1031/93 Pessaro (Goldstein) v. Minister of the Interior [1995] IsrSC 49(4) 661

[3] HCJ 5070/95 Naamat v. Minister of the Interior [2002] IsrSC 56(2) 721

[4] HCJ 2597/99 Rodriguez-Tushbeim v. Minister of the Interior [2005] IsrSC 58(5) 412 (May 31,.2004).

[5] HCJ 2859/99 Makrina v. Minister of the Interior [2005] IsrSC 59(6) 721[http://versa.cardozo.yu.edu/opinions/tais-rodriguez-tushbeim-v-minister-...

[6] HCJ 142/62 Funk-Schlesinger v. Minister of the Interior [1963] IsrSC 17 225

[7] HCJ 264/87 Hitahdut Hasefaradim Shomrei Torah – Shas Movement v. Director of the Population Administration in the Ministry of the Interior [1989] IsrSC 43(2) 723

[8] HCJ 265/89 Beresford v. Minister of the Interior [1989] IsrSC 43(4) 793

[9] HCJ 3648/97 Stamka v. Minister of the Interior [1999] IsrSC 53(2) 728 [http://versa.cardozo.yu.edu/opinions/stamka-v-minister-interior]

[10] HCJ 1188/10 Pozarsky v. Ministry of the Interior (31.7.2013)

[11] HCJ 11585/05 Movement for Progressive Judaism in Israel v. Ministry for Absorption of Immigration (May 19, 2009).

[12] HCJ 8091/14 Hamoked Center for the Defence of the Individual v. Minister of Defense (Dec. 31, 2014).

[13] FH 23/60 Balan v. Executors of the Estate of Raymond Litwinsky (dec.), [1961] IsrSC 15(1) 71.

[14] HCJ 3477/95 Ben Attiah v. Minister of Education and Culture [1976] IsrSC 49(5) 1.

[15] HCJ 6624/06 Pashko v. Ministry of the Interior (Aug. 13, 2015).

[16] HCJ 4504/05 Skaborchov b. Minister for Internal Security (Nov. 4, 2009).

[17] AAA 5875/10 Masorti Movement v. Be’er Sheva Religious Council (Dec. 11, 2016) [http://versa.cardozo.yu.edu/opinions/conservative-movement-v-beer-sheva-....

[18] HCJ 72/62 Rufeisen v. Minister of the Interior [1962] IsrSC 16 2428.

[19] HCJ 5079/08 A. v. Rabbi Sherman (April 25, 2012)

[20] HCJ 5444/13 Erez v. Special Conversion Courts (2014)

[21] HCJ 10226/08 Zevidovsky v. Minister of the Interior (Aug. 2, 2010).

[22] HCJ 3994/12 Asphaho v. Minister of Justice (June 15, 2015).

United States courts cases cited

[23] Ran-Dav’s County Kosher, Inc. v. State, 129 N.J. 141 (1992).

[24] Commack Self-Service Kosher Meats, Inc. v. Weiss, 294 F.3d 415 (2d Cir.2002).

Israeli Legislation cited

Basic Law: Human Dignity and Liberty.

Basic Law: The Government, sec. 32.

Citizenship Law, 5712-1952, sec. 2(a).

Defense Services Law [Consolidated Version] 5746-1986, sec. 22A.

Law of Return, 5710-1950, general, and secs. 1, 2(a), 3(a), 4A, 4B.

Marriage and Divorce (Registration) Ordinance, sec. 2A.

Nationality Law, 5712-1942, sec. 2(a).

Population Registry Law, 5725-1965, section 3A(b).

Prohibition on Kashrut Fraud Law, 5743-1983, sec. 2(a)(2).

Religious Community (Conversion) Ordinance

Abstract

The Supreme Court, sitting as the High Court of Justice, ruled:

Justices Danziger, Vogelman, Joubran and Hayut concurred.

JUDGMENT

President M. Naor

The Petitioners before us arrived in Israel from different places around the world, and they underwent a process of conversion in an Orthodox community in Israel which did not operate within the framework of the state conversion system. The main question arising before us is whether they should be recognized as Jews for the purposes of the Law of Return, 5710-1950.

The Facts Pertaining to the Case

1. The petitioner in HCJ 7625/06, Martina Rogachova (hereinafter: Martina), is a Czech citizen. There, according to her, she drew close to Judaism. In 2001, Martina arrived in Israel as a tourist. Towards the end of 2001, the tourist visa on which she had entered Israel expired, but she remained in Israel until the end of 2004, and then returned to the Czech Republic. In the course of the period in which she remained in Israel illegally, Martina underwent an Orthodox conversion in the rabbinical tribunal [beth din; pl. batei din] of Rabbi Karelitz in Bnei Brak, which is not part of the state conversion system. In 2005, and after many upheavals, she was permitted to reenter Israel, and she embarked on a process of acquiring status by virtue of her relationship with an Israeli citizen. Subsequently, after separating from her Israeli partner, Martina submitted a request to the state conversion system to “receive a certificate of conversion of religion” in view of the conversion that she had undergone, hoping to acquire entitlement to status by virtue of the Law of Return. When her application was rejected, she submitted the present petition. To complete the picture, it should be noted that while her petition was pending, Martina left Israel for the Czech Republic several times. During one of her visits in the Czech Republic, she became pregnant by a Czech national, and their son was born there in April, 2014.

2. Petitioner no. 1 in HCJ 1594/11, Shawn Patrick Murphy (hereinafter: Shawn), is a Canadian citizen who entered Israel for the first time in 2006 on a tourist visa, which he extended from time to time. He studied in Israel for about a year in preparation for an Orthodox conversion, which was conducted at the beginning of 2007 in the beth din of Rabbi Frank in Mea Shearim, which is not part of the state conversion system. In 2010, Shawn applied for recognition of status under the Law of Return, but his application was rejected. Hence the petition. Eventually, Shawn received a permit for temporary residence in Israel (an A/5 visa), by virtue of his marriage to Petitioner no. 2, who is an Israeli citizen.

3. The Petitioner in HCJ 1595/11, Viviana del Sisana Cabarera Martinez (hereinafter: Viviana), a native of Ecuador, arrived in Israel in 1999 with an Israeli partner. After the expiration of the tourist visa on which she had entered the country, Viviana remained in Israel illegally for several years. In the course of this period, two deportation orders were issued against her. In 2005, she returned to Israel following an application for status that had been submitted on the basis of her relationship with her Israeli partner, and eventually she received a temporary resident’s permit (an A/5 visa), which expired in 2010. In the course of 2009, after a period of study and preparation she converted – she too did so in the beth din of Rabbi Karelitz. Later that year, she submitted an application to the state conversion system to begin a process of state conversion. A year later, before the state conversion system had decided on her application, Viviana applied to the Ministry of the Interior to be granted temporary status until her conversion was arranged. At that time, she noted that she had separated from her Israeli partner. Her observance of an Orthodox lifestyle was, she claimed, the main reason for the separation. On January 3, 2011, her application for status was rejected; hence the petition. After the petition was submitted, on April 4, 2011, her application to begin a state conversion process was also rejected.

4. The Petitioners in this case are different from one another. Many and varied reasons led them to Israel, and the nature of their stay in Israel is different in each case. However, the question underlying these proceedings is the same: should the conversion that each of the petitioners has undergone – Orthodox conversion that was not conducted in the framework of the state conversion system – be recognized for the purposes of the Law of Return?

The Proceedings

5. A great amount of time has elapsed since the first petition was submitted. The reason for the delay lies in the attempts to find an out-of-court solution for the problem that the petitions raised. In this framework, attempts were made to solve the individual problems presented by the Petitioners (see, e.g., the decision of January 19,2009 (concerning Martina); the decision of May 2, 2012 (concerning Shawn)). These attempts, however, were unsuccessful. Subsequently we also postponed the hearing of the petitions several times with a view to allowing the Respondents to find a comprehensive solution to the problem. Thus, on March 5, 2012, we decided as follows:

In our opinion, the issues that were raised in the three petitions before us, and in other petitions submitted by the those requesting to join as respondents (the World Union of Progressive Judaism, the Movement for Progressive Judaism and the Masorti Movement in Israel), ought to be brought before the Government that will be formed.

On July7, 2013 we granted the Respondents’ request to revisit the matter and update it, after we were informed that –

[I]n two meetings that took place in his office, the incoming Minister of the Interior was presented with the issues that arise in the three petitions … and in other petitions that were submitted by those requesting to join. These issues were also raised before the Deputy Minister for Religious Services, in a meeting that was held in his office.

At present, the Minister of the Interior intends to bring up the matter before the relevant bodies in the Israeli Government (Notice on behalf of the Respondents of July 4, 2013).

On January 23, 2014, we once again granted the Respondents’ request to consider and update the matter, after “exhaustion” of the presentation of the issues before the Government. Finally, on February 13, 2014, the Respondents informed us that “a meeting had taken place on this subject, with the participation of the Minister of the Interior, the Deputy Minister for Religious Services, the Cabinet Secretary and other representatives of the state conversion system, the Ministry of the Interior and the State Attorney’s Office” in which it was concluded that the position of the State remains unchanged, but “one must await developments” in relation to a private member’s bill submitted on the matter of conversion (Amendment to the Religious Community (Conversion) Ordinance (Conversion by the Rabbi of a Town and a Local Council), 5773-2013). The legislative process of the said bill was not crowned with success.

There is, therefore, no avoiding a judicial decision. An order nisi was issued in each of the proceedings before us, and on March 5, 2013 and June 30, 2015, we heard the oral arguments of the parties.

Pleadings of the Parties

6. The Petitioners’ argument was that it is sufficient to convert through a recognized Jewish community – in Israel or abroad – in order to entitle a person to status by virtue of the Law of Return. A similar position was presented by the organization seeking to join as amicus curiae. In the latter’s view, once a halakhic authority has decided on the validity of a conversion, the Ministry of the Interior cannot second-guess it. ITIM also argued that granting status only to a person who has converted through the state conversion system disproportionately violates the right of freedom of religion of those converting in private conversions in Israel, as well as their right to equality (both in relation to a person who converted in Israel through a state conversion, and in relation to a person who converted abroad). ITIM added that since conversion is an act that determines a person’s status, it must be regarded as a “primary arrangement” that the Government cannot regulate by means of the state conversion system.

7. The Respondents, on the other hand, argued that status should not be granted by virtue of the Law of Return to a person who converted in Israel outside the framework of the state conversion system, for two reasons: first, they argued that from a interpretative point of view, the Law of Return was not intended to apply to a person who is already resident in the State of Israel; secondly, it was argued that in view of the legal ramifications of conversion, the term “who converted” in sec. 4B of the Law of Return must be understood as “under the aegis of the state, under state supervision.” In other words, for the purpose of granting a person status by virtue of the Law of Return, only conversion undergone in the special conversion tribunals established in the framework of the state conversion system will be recognized. This position, so stated the Respondents repeatedly, is based on a concern about frivolous requests for conversion, the only purpose of which is to acquire status in Israel. In their view, due to the great importance of oversight on the part of the state over applications for status by virtue of the Law of Return, which this Court has discussed more than once, it is not possible to recognize conversion by “any three people” – in the words of counsel for the state (see, e.g., pp. 5-6 of the protocol of the hearing of June 30, 2015) – but only conversion in the framework of the state conversion system.

8. In addition, the position of the World Union of Progressive Judaism, the Movement for Progressive Judaism in Israel and the Masorti Movement, which requested to be joined as respondents, was submitted to us. Their main argument was that the decision in the petitions before us must be confined to the question of the recognition of private Orthodox conversion in Israel, and should not extend to the question of recognition of private conversion of the Masorti (Conservative) Movement and the Reform Movement – an issue that is the subject of petitions submitted by those requesting to be joined, and which are still pending (HCJ 11013/05 and related petitions).

9. I will already remark at this stage that, in my opinion, we do not need to decide on the requests to be joined. We have read the arguments of those requesting to be joined, and we have also heard their oral arguments. It is, of course, clear that our decision will relate only to the petitions before us. The issues that arise in the petitions that are pending (HCJ 11013/05 and related petitions) will be decided there.

The Normative Framework

10. As stated, the question confronting us is whether, following the conversions that they underwent, the Petitioners should be recognized as Jews for the purpose of the Law of Return. Underlying the matter, therefore, is the interpretation of the Law of Return, which is one of the most important laws in the State of Israel. The Law of Return is a major expression of this being a Jewish state, in addition to a democratic state. At its core is immigration to Israel:

Right of Aliyah

Every Jew has the right to come to this country as an oleh [immigrant].

The Law further provides that aliya [immigration to Israel] will be by virtue of an oleh’s visa (see section 2(a)). An oleh’s visa shall be granted to every Jew who has expressed his desire to settle in Israel, unless the Minister of the Interior is satisfied that the applicant is engaged in activity directed against the Jewish people, or is likely to endanger public health or the security of the state (sec. 2(b)). The arrangement in the Law of Return is complemented by sec. 2(a) of the Nationality Law, 5712-1952, which states:

Nationality by virtue of Return

2(a)

Every oleh under the Law of Return 5710-1950 shall become an Israeli national by virtue of Return […].

11. The right of aliyah – and by virtue thereof, the right of nationality – is granted to every “Jew”. A definition of this concept was added to the Law of Return in 1970, in the framework of Amendment no. 2 to the Law. This Amendment was passed following the judgment of this Court in HCJ 58/68 Shalit v. Minister of the Interior [1], according to which a child who was born to a Jewish father and a mother who was not Jewish is to be registered in the Population Registry as a “Jew”, even though this child is not Jewish according to Jewish law. Since the passage of Amendment no. 2, the Law of Return has not been amended. The term “Jew” is defined thus in the Law of Return:

Definition

4B.

For the purposes of this Law, “Jew” means a person who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion.

In our context, none of the petitioners was “born of a Jewish mother.” Neither was it argued here that any of them is “a member of another religion.” Thus, we must address the interpretation of the term, “has become converted.”

12. This is not the first time that this Court has addressed the question of the interpretation of the term “has become converted” in the Law of Return (see: HCJ 1031/93 Pessaro (Goldstein) v. Minister of the Interior [2]; HCJ 5070/95 Naamat v. Minister of the Interior [3]; HCJ 2597/99 Rodriguez-Tushbeim v. Minister of the Interior [4] (decision of May 31, 2004); HCJ 2859/99 Makrina v. Minister of the Interior [5]). In the various proceedings before this Court, the consistent position of the state has been that recognition of conversions for the purpose of the Law of Return should be limited. As will be explained below, this was based on a number of different arguments, which were dismissed. I will discuss these proceedings in brief.

13. First, the state made the argument that to recognize conversion for the purpose of the Law of Return, the convert had to meet certain conditions stipulated in the Religious Community (Conversion) Ordinance (hereinafter: Conversion Ordinance). This argument was dismissed by the Court in Pessaro v. Minister of the Interior [2] (per President (emeritus) M. Shamgar, Deputy President A. Barak and Justices E. Mazza, M. Cheshin, T. Strasburg-Cohen and D. Dorner concurring, as against the dissenting opinion of Justice Z.A. Tal). It was ruled that the Conversion Ordinance “applies only to subjects that are within the jurisdiction of the religious courts” (p. 690), and does not apply for the purposes of the Law of Return:

All we are saying is that the Conversion Ordinance does not apply for the purpose of recognition of conversion under the Law of Return […]. Our ruling today is of a purely negative nature. We are determining the negative (the Conversion Ordinance does not apply). We are not determining the positive (the precise contents of the essence of conversion in Israel). As we have mentioned, the “positive” is likely to be determined explicitly and specifically by the legislature. At the same time – and as long as the Knesset has not had its say – we do not have a legal lacuna. A “positive” solution to the problem is found in the Law of Return, which defines who is a Jew. If the legislature does not say anything further on this, there will be no option but to come to a judicial determination on this point in accordance with the existing definition (ibid., pp. 747-748).

14. Once the argument concerning the application of the Conversion Ordinance had been dismissed, the argument was raised that a conversion that is conducted in Israel constitutes an act of joining the Jewish religious community – a single religious community at the head of which stands the Chief Rabbinate – and therefore the conversion must have the consent of the Chief Rabbinate. This argument was rejected in the case of Naamat v. Minister of the Interior [3] (per President A. Barak, Deputy President S. Levin and Justices T. Orr, E. Mazza, M. Cheshin, T. Strasburg-Cohen, D. Dorner, Y. Turkel, D. Beinisch and E. Rivlin concurring, as against the dissenting opinion of Justice I. Englard). In that matter it was ruled that the conception of the Jews as a single religious community reflects a “Mandatory-colonialist approach” (ibid., p. 752). Israel, it was ruled, is not the state of a “Jewish community”, but rather, the state of the Jewish people. Therefore, and as held in Pessaro v. Minister of the Interior [2], there is no need for the approval of the Chief Rabbinate for conversion undergone in Israel. It was also ruled that the connection between the convert and the community conducting the conversion is not important, and the convert is not required to join this community in order for the conversion to be recognized.

15. It should be clarified that the relief that was sought, both in Pessaro v. Minister of the Interior [2] and in Naamat v. Minister of the Interior [3], was registration of the petitioners as Jews in the Population Registry. For the purpose of the Population Registry, the term “Jew” is defined “in accordance with its meaning in section 4B of the Law of Return” (section 3A(b) of the Population Registry Law, 5725-1965). For this reason, the Court turned to the interpretation of the expression “has become converted” in the Law of Return. However, it issued its rulings in relation to the Population Registry, and not for the purpose of acquisition of status by virtue of the Law of Return. In the words of President A. Barak:

As in the case of Pessaro, in our case, too, state oversight of the public aspect of conversion [with respect to status by virtue of Return – M.N.] – beyond the oversight of registration in the Registry – must be determined by the Knesset. As long as the Knesset has not expressed itself, we go back – insofar as registration in the Registry is concerned – to the authority of the registration officer under the Population Registry Law (Naamat v. Minister of the Interior [3] at p. 753).

The extent of the authority of the registration officer was determined by this Court over 25 years ago, in the case of Funk-Schlesinger (HCJ 142/62 Funk-Schlesinger v. Minister of the Interior [6]), which has a firmly established place in the case law (see, e.g., HCJ 264/87 Hitahdut Hasefaradim Shomrei Torah – Shas Movement v. Director of the Population Administration in the Ministry of the Interior [7], 732; and see also: Shalit v. Minister of the Interior [1], at p. 507; Pessaro v. Minister of the Interior [2], at p. 674; for an in-depth discussion of the application of the ruling in Funk-Schlesinger v. Minister of the Interior [6], see: Naamat v. Minister of the Interior [3] at pp. 735-745). According to the case law, the role of the registration officer is purely statistical, and it is not within his authority to examine the validity of the conversion.

16. Additional arguments concerning the interpretation of the expression “who was converted” were raised in Rodriguez-Tushbeim v. Minister of the Interior [4]. That case dealt with petitioners who, while living lawfully in Israel, began their studies towards conversion, at the end of which they underwent a conversion ceremony in a Jewish community outside of Israel. The relief sought in that case was recognition of the petitioners as Jews for the purpose of status under the Law of Return (in addition to their registration as Jews in the Population Registry). The State’s argument was that the Law of Return was never intended to apply to a person who came to Israel and converted during his stay, whether the conversion was conducted in Israel or abroad. This argument was dismissed in Rodriguez-Tushbeim v. Minister of the Interior [4] (per President A. Barak, Deputy President (emeritus) T. Orr, Deputy President E. Mazza and Justices M. Cheshin, D. Dorner, D Beinisch and E. Rivlin concurring, as against the dissenting opinion of Justices Y. Turkel, A. Procaccia, E. E. Levy and A. Grunis). The rule that was settled in Rodriguez-Toshbeim v. Minister of the Interior [4] was that the Law of Return applies to a person who was not a Jew, and who converted in Israel or abroad during the period of his lawful stay in Israel.

17. Following dismissal of this argument, another argument was raised, based on the distinction between a conversion undergone in Israel and a conversion undergone outside of Israel. With regard to the former, it was argued that only a conversion undergone in the framework of the state conversion system should be recognized. As for conversion abroad, it was argued that recognition should be granted only to those conversions by which the convert joined the converting community – which could belong to any recognized stream of Judaism – and became part of that community. In Makrina v. Minister of the Interior [5] this argument was dismissed. Concerning conversion undergone abroad, it was ruled (per President A. Barak, Deputy President (emeritus) E. Mazza, Deputy President M. Cheshin, Justices D. Beinisch, E. Rivlin, E. Hayut and myself concurring, as against the dissenting opinion of Justices Y. Turkel, A. Procaccia, E.E. Levy and A. Grunis) that joining the converting community is not a condition for recognition of a conversion undergone outside of Israel. The ruling was as follows:

We rule that according to the Law of Return, it is not a sine qua non for recognition in Israel of a conversion undergone outside of Israel that the conversion was for the purpose of joining the community in which the conversion was conducted (ibid., at p. 740).

The condition that was set for recognition of conversion abroad was that it was conducted in a Jewish community recognized by the authorized religious organs of that community (ibid., at pp. 738-739). With respect to conversion in Israel – which, as stated, was not the core issue in that case – it was noted only that the government is not authorized to determine, by virtue of its residual authority, that only conversion conducted in the framework of the state conversion system will be recognized under the Law of Return (ibid., at p. 744). The legislature did not see fit to amend the Law of Return after these judgments had been handed down.

18. I have only briefly discussed the abundant case law pertaining to the interpretation of the concept of conversion in sec. 4B of the Law of Return. Since we, too, have been charged with the task of interpreting the concept of conversion in the Law of Return, this case law will serve as a basis and a normative framework.

Deliberation and Decision

19. The Respondents, as will be recalled, argued that from the point of view of interpretation, the Law of Return was not intended to apply to a person who converted once he was already in Israel, and that a conversion conducted in Israel should not be recognized unless it was in the framework of the state conversion system. In that case, the first question confronting us is this: does the Law of Return apply to a person who arrived in Israel prior to his conversion, and who converted in the course of his stay? If it is decided – and I recommend to my colleagues to decide thus – that the Law of Return applies, a further question will arise, namely: does the interpretation of the expression “has become converted” in the Law of Return imply that conversion that was undergone in Israel should be recognized only if it was conducted in the framework of the state conversion system? I will address each of these questions in turn.

Application of the Law of Return to Converts Living in Israel

20. The question of the application of the Law of Return to converts who were living in Israel prior to their conversion was discussed in the case of Rodriguez-Tushbeim v. Minister of the Interior [4]. The law as decided on this question a decade ago is still valid. The decision there was as follows:

In principle, the Law of Return applies to someone who is not a Jew, came to Israel and converted (in Israel or abroad) while staying in Israel. (ibid., para. 26 per President A. Barak) (emphasis added – M.N.)

The fact that that case involved individuals who had undergone conversion outside of Israel neither adds nor detracts. The fundamental law remains in force: the Law of Return applies to a person who comes to Israel and converts while he is lawfully in the country. The Respondents are not, in fact, raising a new argument; rather, they are asking us to depart from the decided case law. I do not think there is justification for so doing – neither from the point of view of the language of the Law of Return, nor from the point of view of its purpose. I shall explain.

21. The Respondents’ approach lacks any foothold in the language of the Law. The Law does not contain any exception, express or implied, to its application. On the contrary, its formulation is sweeping: every Jew is entitled to immigrate to Israel. The Respondents based themselves on the provisions of sec. 3(a) of the Law of Return, which states that “A Jew who has come to Israel and subsequent to his arrival has expressed his desire to settle in Israel may, while still in Israel, receive an oleh’s certificate.” According to them, this provision reflects a negative arrangement in relation to a person who is not a Jew. This approach is unacceptable:

Indeed, the provisions of sec. 3(a) of the Law of Return […] are not to be understood as a negative arrangement with respect to a person who comes to Israel when he is not a Jew, and subsequently converts. This provision deals with the special case of a Jew who has not yet crystallized his position and came to Israel other than on an oleh’s visa. It should not be deduced from this that only a Jew who arrives in Israel other than on an oleh’s visa may, while still in Israel, receive an oleh’s certificate. We will not interpret one of the most fundamental of Israeli laws in this technical, formalistic way (Rodriguez-Tushbeim v. Minister of the Interior [4], para. 19 per President A. Barak).

The language of sec. 3(a) does not necessarily indicate a negative arrangement:

[…] From the explicit meaning, an implicit meaning may be deduced. What appears to be the silence of the constitutional text is not silence at all, nor a lacuna, but rather, it is possible to deduce from it an implicit meaning or “informed silence” or “talking silence”. The implicit meaning may be negative (a negative arrangement). The significance of a negative arrangement is that the arrangement that was fixed in the explicit sense will not apply to the unregulated matter. An expression of this is found in the saying, expressio unius est exclusio alterius. The implicit meaning may also be positive (a positive arrangement). The meaning of a positive arrangement is that the arrangement that was fixed explicitly may also apply to the matter that was not regulated explicitly (Aharon Barak, On the Implied in the Written Constitution, 45 Mishpatim (forthcoming)) (Hebrew), p. 11 in the version to which I have access; and see regarding legislation: Aharon Barak, Interpretation in Law – Interpretation of Legislation, 109-115 (1993) (Hebrew) (hereinafter: Barak, Interpretation of Legislation)).

In my opinion, the inescapable conclusion of purposive interpretation of the Law of Return is that this is in fact a positive arrangement. I will explain my reasons.

22. Negating the application of the Law of Return, as the Respondents claim, is incompatible with the purpose underlying that Law – “aliyah” [lit. – going up, namely, immigration to Israel], i.e., the Ingathering of the Exiles. Indeed, “this purpose was to restore the sons to their borders and to make the State of Israel into the state of the Jewish People” (HCJ 265/89 Beresford v. Minister of the Interior [8], at 845). The words of Justice M. Cheshin are apt:

The right of return is granted to every Jew – as such – and the primary characteristic of the right is its decisiveness – it is a right that is almost absolute. Every Jew, whomever, can and is entitled to – at his volition alone – realize the right to return, the right that “your children shall return to their country” [Jeremiah 31:17]. (HCJ 3648/97 Stamka v. Minister of the Interior [9], at p. 751).

This purpose is also evident in the various provisions of the Law of Return, the whole purpose of which is to encourage and facilitate aliyah (on the Law in general as a source for its purpose, see: Aharon Barak, Purposive Interpretation in Law 413 (2003) (Hebrew) (hereinafter: Barak, Purposive Interpretation); Barak, Statutory Interpretation, at pp. 106-108). Among these provisions is sec. 4A of the Law of Return, which deals with granting status to the non-Jewish family of a Jew, whether or not the Jew himself immigrates to Israel. This section “was conceived with the purpose of facilitating the immigration of mixed families, in the hope that the non-Jewish family members would ultimately join the Jewish people” (HCJ 1188/10 Pozarsky v. Ministry of the Interior [10], para. 25 of my opinion (July 31, 2013). The same applies to recognition of the status of a “second-time oleh”, i.e., a Jew who immigrated to Israel by virtue of Return, severed the connection with Israel by leaving and giving up his Israeli citizenship, and subsequently chose to return and settle in Israel. A “second-time oleh”, too, is entitled to immigrate to Israel and to acquire citizenship by virtue of Return (see: ibid., at paras. 26-27 of my opinion).

The approach of the Respondents is incompatible with this purpose of the Law.

23. In addition, the Respondents’ approach leads to results that are not egalitarian. It discriminates between a person who converted prior to settling in Israel and one who settled in Israel prior to his conversion; it discriminates between a person who is a Jew from birth, who according to the Respondents may live in Israel prior to his decision to immigrate to and settle in Israel, and a person who is a Jew by virtue of conversion. For this reason, too, it is unacceptable (see: Barak, Purposive Interpretation, at p. 425). President Barak discussed this matter:

Aliyah [immigration] means the settling of a Jew in Israel. In this context, the question of when the person who settled in Israel became a Jew – either before he settled in Israel or thereafter – is immaterial. Indeed, the process of conversion means “joining the Jewish people. That is its entire nature and entire purpose” […]. With respect to the convert’s joining the Jewish people (conversion) and settling in the State of Israel (immigration), the question of whether the conversion preceded the place of residence or the place of residence preceded the conversion is of no importance. It would be unlawful discrimination if one person would be regarded as an oleh because he converted and then settled in Israel, whereas another person who wishes to settle in Israel would not be regarded as an oleh because his conversion postdated his settling in Israel. Both these converts joined the Jewish people and settled in the State of Israel; both are children returning to their homeland. The difference between the two converts with respect to the “order of events” of the conversion and the immigration is irrelevant for the purpose of the Law of Return, and the Law of Return should not be interpreted in such a way as to entail such illegitimate discrimination” (Rodriguez-Tushbeim v. Minister of the Interior [4], para. 19 per President A. Barak).

24. In truth, encouraging immigration is not the only purpose that the Law of Return was intended to realize. I accept that there is also an underlying, objective purpose that concerns preventing abuse of the right to acquire status by virtue of Return. This Court has stated more than once that the state has a right to prevent abuse of the arrangements in the Law of Return (See Rodriguez-Tushbeim v. Minister of the Interior [4], para. 24 per President A. Barak; HCJ 2859/99 Makrina v. Minister of the Interior [5], at p. 739; see also my position, ibid., at p. 747; HCJ 1188/10 Pozarsky v. Ministry of the Interior [10], para. 29 of my opinion). But it is doubtful whether the Respondents’ approach realizes this purpose. It is hard to see it as a response to the problem of abuse, and in any case it does not constitute the only or the best solution to this problem. First, concern about abuse of the Law of Return does not exist only with respect to a person who has converted in Israel. This concern is apparently also relevant regarding a person who converts abroad. Limiting the application of the Law of Return in such a way that it would not apply in relation to a person who was residing in Israel prior to his conversion does not, therefore, provide a response to the concern about abuse of the arrangements. Moreover, concern about abuse of the Law of Return can be addressed by increasing oversight and monitoring of those who wish to realize their right to acquire status by virtue of Return, in such a way that conversion that is not sincere will not be recognized – and this, without harming the rights of sincere converts; in other words, in the framework of interpretation of the Law of Return, and not by a wholesale negation of its application, which would limit the significance of the right of Return. Indeed, “Woe to basic human rights, if they are given a restrictive interpretation, only for fear of abuse” (Rodriguez-Tushbeim v. Minister of the Interior [4], at para. 24 per President A. Barak).

25. The requirement that the provisions of the Law of Return be invoked in good faith and untainted by abuse – a requirement to which I subscribe – does not justify restricting the application of the Law of Return such that it will not apply to a person who converts in Israel. It does, however, justify restricting its application such that it applies only to a person who was living lawfully in Israel at the time of his conversion. In this spirit, it was decided in Rodriguez-Tushbeim v. Minister of the Interior [4] that the Law of Return applies only to a person “who came to Israel, and underwent a process of conversion while he was in Israel legally” (ibid., para. 25 per President A. Barak; emphasis added – M.N.). The Law of Return does not apply to a person who underwent conversion while he was knowingly in the country unlawfully. To be precise: for the purpose of the Law of Return, the type of visa held by the convert is not important. The Law of Return applies to anyone who was in Israel lawfully at the time of his conversion.

26. Thus, my view is in accordance with the decision in Rodriguez-Tushbeim v. Minister of the Interior [4], that the Law of Return applies to a person who came to Israel, and while he was residing in Israel legally, underwent a process of conversion, whether in Israel or outside of Israel. The question still remains as to the scope of the expression “has become converted” in sec. 4B of the Law of Return, and whether, as the Respondents argue, it extends only to a person who underwent conversion in Israel in the framework of the state conversion system. This is a question of interpretation, which I shall now address.

Interpretation of the Expression “Has become converted” in sec.4B of the Law of Return

27. The concept of conversion in the Law of Return raises complex questions of interpretation. The Knesset did not adopt a position on the question of the meaning of this concept. With respect to a conversion that was conducted abroad, it was decided that it means conversion that was conducted in the framework of a “recognized Jewish community” (Makrina v. Minister of the Interior [5], at pp. 738-739). As for conversion conducted in Israel, according to the Respondents this means conversion in the framework of the state conversion system alone. I cannot accept this approach, and I will explain. First, this approach has no foothold in the language of the section. Section 4B of the Law of Return is formulated concisely. The language does not limit or provide exceptions to the expression “has become converted” in any way whatsoever, over and above what is necessitated by the fact that the legislature invoked a religious concept, i.e., that the act of conversion comports with a Jewish understanding of the concept. In truth, it appears that the language of the Law barely provides content for the concept of conversion. However, the task of interpretation is not exhausted by the meaning of the individual term “has become converted”. As is well known, “a legislative expression is a creature that exists in its environment. It receives its character from its context” (see Shalit v. Minister of the Interior [1], at p. 513). The provision of section 4B must be interpreted in its context, i.e., in light of the Law of Return in its entirety (see: Barak, Statutory Interpretation, at p. 106; Barak, Purposive Interpretation, at p. 413). Against the backdrop of the context of the provisions of the Law of Return, it may be stated that the concept of conversion therein does not refer exclusively to the private, religious act. The intention is not to a person’s personal recognition, which is a matter between himself and his God. Conversion in the context of the Law of Return is a public-civic act: by virtue thereof, a person becomes affiliated to the Jewish people, and by virtue thereof he acquires the right of Return and the right to citizenship. From this it transpires that a certain degree of oversight of the recognition of conversion is required (see: Pessaro v. Minister of the Interior [2], at p. 687; Naamat v. Minister of the Interior [3], at p. 753; Makrina v. Minister of the Interior [4], at p. 746). I accept that recognition of conversion should be contingent upon an objective test and not be dependent upon the personal will of the individual. However, the language of the Law does not indicate the nature of that oversight, or the conditions under which conversion will be recognized. It certainly does not necessitate oversight exclusively by means of recognition of state conversion. In any case, the language is only the starting point of the task of interpretation, and not its end. An examination of the purpose underlying sec. 4B of the Law of Return, and the Law in general, also indicates that the approach of the Respondents must be rejected.

28. The purpose of sec. 4B is to encourage every Jew, as such, to immigrate to Israel and to settle in Israel, whether he is a Jew by birth or whether he has chosen to join the Jewish people by means of conversion. In this, the section merges with the general purpose of the Law of Return, which is, as stated, the Ingathering of the Exiles. Let there be no mistake: the Law of Return is not a law that is designed to regulate immigration to Israel and oversight thereof, but rather, a law that expresses the right of self-determination of the Jewish people, and the link between the Jewish people and its homeland. The Law of Return embodies the justification for the existence of the State of Israel as a Jewish state, in addition to it being a democratic state. It is based on the recognition that “the Jewish people is one nation. Part of it is in Israel; part of it is in one Diaspora; part is in another Diaspora)” (Naamat v. Minister of the Interior [3], at p. 751.

The Jewish people is, indeed, one people, but it is dispersed throughout the world, and it comprises disparate and varied communities, and sub-varieties within those communities. As such, the Law of Return, in addition to encouraging immigration, reflects the purpose of establishing unity of the Jewish people in the Diaspora and in Israel. The interpretation proposed by the Respondents does not reflect these purposes. It significantly restricts the right to immigration, it does not attribute weight to the variety that exists among the Jewish communities, and it cannot, therefore, be accepted.

29. However, also unacceptable is an approach whereby the expression “has become converted” refers to any person whom three Jews have declared to have converted, and certainly not to every person who has decided, by virtue of his own subjective will, to affiliate to the Jewish people. From the purpose of the Law – as well as its language, as explained above – it emerges that the term “has become converted” in the Law of Return embodies an objective criterion of public recognition of the process of conversion. What is that criterion? The criterion that I propose to my colleagues is the very same criterion that this Court adopted in relation to recognizing a conversion that was conducted abroad – the criterion of the recognized Jewish community. In my opinion, this criterion suitably combines the realization of the three purposes that I mentioned: encouraging immigration and unity of the Jewish people on the one hand, and oversight of the public aspect of conversion on the other.

30. The significance of this is that the expression “conversion” in the Law of Return should be interpreted as a conversion conducted in a recognized Jewish community in accordance with the accepted criteria of that community. On this, President A. Barak wrote as follows:

When we say “recognized Jewish community” we mean, as a rule, an established, active community with a common, known Jewish identity, which has fixed frameworks for communal administration, and which belongs to one of the recognized streams of the world Jewish community (Makrina v. Minister of the Interior [5], at p. 737).

Hence, we are talking about conversion that is conducted by religious organs in a recognized Jewish communal framework, and in accordance with the criteria followed in that community. This is no trivial requirement. It means that this is not a matter of conversion by “any three people”, in the words of counsel for the state, but conversion that is conducted by a religious body that has been authorized for this purpose by the community that it serves, and in accordance with the established, accepted criteria of that community. Let it be clear: not every Jewish community the world over will be considered a recognized community. The community must have a common, established, fixed Jewish identity. Nevertheless, I do not think it appropriate, in the present circumstances, to list the specifications for all those Jewish communities that should be regarded as “recognized Jewish communities”. I will also not go into the question of the threshold requirements of such a community, e.g., what is the minimum number of members. For our purposes, it is sufficient to determine that the Orthodox communities in which the Petitioners before us were converted, in Bnei Brak and in Jerusalem, comply with the definitions of recognized Jewish communities that are established and that have a common, known Jewish identity.

31. My conclusion concerning the recognized-community test is in keeping with the objective, general purpose underlying the Law of Return, which is concerned with ensuring egalitarian outcomes (see: Barak, Purposive Interpretation, at p. 224). Indeed, the interpretative preliminary assumption is that the purpose of a legislative act is to uphold and maintain basic rights, including the right to equality (see: ibid., at p. 425). The Respondents’ approach creates discrimination between a person who underwent converted abroad and a person who converted in Israel (see and compare: Rodriguez-Tushbeim v. Minister of the Interior [4], at para. 23 per President A. Barak). In my opinion, there is no room for discrimination between a person who chose to convert abroad before deciding to settle in Israel, and a person who settled in Israel prior to deciding to convert, and who converted while he was lawfully resident in Israel. Both are Jews who wish to establish their homes in Israel.

32. As for the immigration of a Jew to Israel, the order of events of settling in Israel and affiliating to the Jewish people through conversion is not important (see: ibid., at para. 19). In the words of Justice E. Rivlin:

“Aliyah” […] is not exhausted by actual arrival in the Land of Israel. Its essence is reflected in the choice made by a Jew by birth, or a person who converted, to settle in Israel […]. “Aliyah” is not necessarily the first stay in the Land of Israel. This preliminary stay is not necessary, but it is also not sufficient. It is not necessary because a Jew may stay in Israel for a certain period of time before becoming an oleh, and there is nothing to prevent him from making aliyah to Israel even if he had been in Israel previously. Let us say as follows: “aliyah” does not lie in the physical act of arriving at the gates of the country […]. “Aliyah” to Israel is the fact of the decision made by a Jew to live permanently in Israel […]. There is not, nor, in my opinion, can there be, any doubt that if the non-Jew converted after he has been in Israel, and he decided sincerely to reside in Israel – this is a Jew who has “made aliyah” to Israel. It is not surprising that the Bible attaches no significance to the question of whether Ruth the Moabite converted prior to crossing the Jordan River or whether […] only after she crossed the River. One way or another, she merited becoming the mother of the Royal Dynasty of Israel” (id., at para. 4).

I see no justification for interpreting the Law of Return in a manner that entails discrimination between a person who converted in Israel and one who converted abroad. For this reason, too, the interpretation whereby conversion for the purpose of the Law of Return is conversion that was conducted in a recognized Jewish community according to its accepted criteria, whether conducted in Israel our outside of Israel, is preferable.

33. Moreover, the interpretation proposed by the Respondents is incompatible with the accepted principles relating to the exercise of the Government’s residual authority. I shall explain. The position of the Respondents is that for the purposes of the Law of Return, only the conversion of a person who converted through the state conversion system should be recognized. The state conversion system was established by virtue of decision no. 3613 of the 27^th Government (April 7, 1998), which adopted the Report of the Committee on Conversion in Israel (The Neeman Committee). The Neeman Committee recommended establishing a single process of state conversion, in the framework of which an institute for the study of Judaism would be established, with the participation of the three main streams of Judaism, and in the framework of which conversions would be carried out in special courts that would be recognized by all the streams of Judaism. I am not expressing any position on the question of whether the state conversion system that was actually set up indeed realizes these recommendations, inter alia because there does not seem to be agreement among all the streams of Judaism as to its activity. This is not our concern here. We are concerned with the authority to set up a state conversion system, which is allegedly anchored in the residual powers of the Government (sec. 32 of Basic Law: The Government).

34. It is a well-known principle that residual authority cannot serve as the basis for a violation of human rights:

Where sec. 32 of Basic Law: The Government authorizes the Government to act, it requires it to act subject to any law. Clearly this constraint prohibits the Government from acting contrary to the provisions of the law. Moreover, it prohibits the Government from violating any of a person’s human rights (Yitzhak Zamir, Administrative Authority, vol. 1, 421 (2^nd ed., 2010) (Hebrew) (hereinafter: Zamir); see also: Daphne Barak-Erez, Administrative Law, vol. 1, 141 (2010) (Hebrew) (hereinafter: Barak-Erez)).

Limiting recognition of conversion to the state conversion system alone, as the Respondents propose, would lead to a violation of the right of Return, which is a fundamental right vested in every Jew, contrary to the provisions of the Law of Return. The question of the proportionality of this violation does not arise at all, since residual authority cannot constitute justification for violating rights. President A. Barak wrote in this vein:

[W]e accept that the Government is competent to establish, by virtue of its (residual) general power prescribed in s. 32 of Basic Law: the Government, a conversion system similar to the one that was established following the recommendations of the Neeman Commission. Notwithstanding, the Government is not competent to determine, by virtue of its general power, that only conversion that is conducted within this framework shall be recognized under the Law of Return. (Makrina v. Minister of the Interior [5], at p. 744; see also: HCJ 11585/05 Movement for Progressive Judaism in Israel v. Ministry for Absorption of Immigration [11], para. 19 per President D. Beinisch).

35. Neither does the residual authority of the Government include the authority to establish primary arrangements (see: Zamir, at pp. 424-425; Barak-Erez, at p. 142). The principle of the rule of law tells us that those will be established by the legislature, and not the executive (see: Zamir, at pp. 85-86). Recognition of conversion for the purposes of the Law of Return is a primary arrangement. It reflects the general policy of the State of Israel on an issue that lies at the heart of the justification for the existence of the State, and touches upon fundamental questions that go to the very root of Israeli society. Such regulation ought to be undertaken by the legislature, and not by the administration. For these reasons, I do not think that the residual power of the government enables it to determine that only conversion in the framework of the state conversion system is conversion under the Law of Return.

36. Furthermore, the Respondents base their position almost exclusively on concern about abuse of the process of conversion by way of idle requests for recognition of conversion, the whole purpose of which is to allow them to acquire status in Israel. Indeed, it appears indisputable that the state has the right to prevent abuse of conversion and not to grant rights by virtue of Return to a person whose conversion is not sincere. A person whose conversion is not sincere does not, in any case, not realize the purpose of the Law of Return. However, concern about abuse does not justify, per se, restrictive interpretation of the rights under the Law of Return:

[T]he rules and arrangements should not be allowed to lead to a result whereby the desire to prevent recognition of the conversions of converts that abuse the right to immigrate to Israel prejudices the right of converts who properly exercise their right to join the Jewish people […].It is possible to prevent abuse of the right to immigrate to Israel in various different ways. Each case has its own circumstances.(Makrina v. Minister of the Interior [5], at p. 739; see also: Pozarsky v. Ministry of the Interior [10], at para. 29 of my opinion (given that the right of Return that is granted to every Jew is a basic right […] it must not be given a strict interpretation only because of the concern for abuse”).

Indeed, abuse of the process of conversion must be prevented. I am even prepared to assume – and this is only an assumption – that conversion through the state conversion system usually prevents abuse. However, I do not think that this is the optimal way to ensure the sincerity of the conversion. Take, for example, the case of a non-Jew who enters Israel lawfully. While he is in Israel, he draws closer to Judaism and seeks to become part of the Jewish people. He studies for a lengthy period towards the conversion. He undergoes conversion in a recognized Orthodox community, which is known to be extremely strict, in a beth din of well-known rabbis, which is not part of the state conversion system. He does so either because he did not know of the existence of the state conversion system or because he chose to undergo the most stringent conversion. After the conversion, he lives in the community and observes an Orthodox lifestyle. Does the conversion of this person not fulfill the purpose underlying the Law of Return? Is there a reason to assume in advance that his conversion is not sincere? My answer to these questions is negative.

37. In my opinion, oversight of the sincerity of the conversion is not exhausted by the single possibility raised by the Respondents, which involves recognition only of state conversions. The Respondents have many tools for addressing their concern, by means of individual, careful examination of the sincerity of the conversion and consideration of objective criteria surrounding the conversion process, including the circumstances of the person’s entry into Israel and the type of visa on which he entered (see and compare: Pozarsky v. Ministry of the Interior [10], para. 29 of my opinion). In any event, the requirement that the conversion be undergone in a recognized Jewish community can significantly allay concerns of abuse, for “it is not sufficient that three people declare that a person was converted by them” (Naamat v. Minister of the Interior [3], at p. 751). This, as stated, is the main concern expressed by the Respondents. The test of the recognized community provides a response to this concern. The requirement, as I pointed out, is that a religious body that has been recognized for that purpose by a recognized religious community conducted the conversion in accordance with the accepted criteria of that community. Insistence upon these requirements significantly reduces the possibility of abuse of the process of conversion for the purpose of acquiring status by virtue of the Law of Return (and for acquiring the economic rights that come with this status).

38. My position, therefore, is that purposive interpretation of the expression “has become converted” in sec. 4B of the Law of Return leads to its interpretation as referring to a person who has undergone conversion in a recognized Jewish community in accordance with that community’s accepted criteria.

And from general principles to the matter of the Petitioners before us.

From the General to the Specific

The Petitioner in HCJ 7625/06 (Martina)

39. I discussed the fact that the Law of Return applies to a person who came to Israel and underwent a process of conversion while living in Israel lawfully. At the time of her conversion, Martina was in Israeli unlawfully, since in 2001 the tourist visa on which she had entered Israel expired. Martina remained in Israel, as will be recalled, for about three years after that time without making any attempt to lawfully arrange her stay. Accordingly, her conversion cannot be recognized for the purpose of acquiring status by virtue of the Law of Return. Having reached this conclusion, I will not discuss the question of whether the community in which she converted is a recognized Jewish community or not. I also see no need to discuss the sincerity of the conversion, even though the parties raised various arguments on this matter.

40. In Martina’s case it was also argued that her conversion was confirmed by the Rabbinical Court, i.e., by an official state body, and she is therefore to be regarded as a person whose conversion is recognized. It is true that on March 12, 2006 a decision was handed down in the matter of Martina in the Tel Aviv Regional Rabbinical Court, as follows:

The Court hereby confirms that Ms. Rogachova Martina […] was converted before the beth din headed by the Sage Rabbi S.Y. Nissim Karelitz., which is a beth din recognized by the Chief Rabbinate of Israel (Exhibit 6 of the Respondents’ response of Feb. 1, 2007) (emphasis added – M.N.).

However, from that response it emerges that the decision of the Regional Rabbinical Court was based on a mistake, in that the rabbis though that the beth din was a special conversion tribunal that was recognized by the Chief Rabbinate of Israel. In addition, on Nov. 14, 2006, an additional decision was handed down in which it was clarified:

In its decision [of March 12, 2006 – M.N.], the Court was not expressing any opinion about the validity of the conversion. It merely confirmed, on the basis of the documents before it, that the conversion was conducted by the beth din of Rabbi Nissim Karelitz.

Furthermore, the Court was under the impression that the said beth din is officially recognized by the Chief Rabbinate of Israel, but it emerges that there is no document confirming this (exhibit R/11 of the response of the Respondents of Feb. 1, 2007).

Without expressing an opinion about the conduct of the Rabbinical Court in this matter, it seems to me that the decisions of the Rabbinical Court should not be seen as conferring validity upon the conversion of Martina by the state conversion system. Since she was in Israel unlawfully, in any case it is very doubtful whether she could have undergone conversion in the framework of the state conversion system (in which lawful permanent residency is a pre-condition for beginning the conversion process). One way or another, the scope of the argument in our case is confined to the question of Martina’s entitlement to status by virtue of the Law of Return. I see no reason to depart from my conclusion whereby she is not entitled to status under the Law of Return because she was in Israel unlawfully at the time of the conversion.

My position, therefore, is that the order nisi and the interim orders that were issued in HCJ 7625/06 be rescinded.

The Petitioner in HCJ 1594/11 (Shaun)

41. Shaun has been in Israel lawfully for the last nine months or so. As such, the Law of Return applies to him. There is still a question of whether he is to be regarded as a person who “has become converted” according to the interpretation of this expression in the Law of Return, that is to say, was his conversion conducted in the framework of a recognized Jewish community? From this aspect, Shaun’s case is an easy one: he converted in the beth din of Rabbi Frank in the framework of the Orthodox community in Mea Shearim. The Respondents did not dispute that this is a community that belongs to one of the main streams of Judaism – a community with an established Jewish identity and with fixed frameworks of communal administration. It is also easy, in view of the whole array of circumstances, to recognize the sincerity of the conversion. The conversion was preceded by a significant period of preparation and study, and after the conversion, Shaun married a Jewish partner, and they live together in an ultra-Orthodox community in Jerusalem. I have not found a single indication that this conversion was not sincere. Therefore, my conclusion is that Shaun meets the condition of “has become converted” in the Law of Return, and is entitled to status by virtue of that Law. The petition also sought additional relief in regard to the granting of a certificate of conversion. This apparently refers to recognition by the state of his conversion. In view of the conclusion that I have reached, I do not think that the discussion ought to be extended to that matter, but I will say that a certificate of conversion (issued by virtue of the Conversion Ordinance) has no legal implications with respect to recognition of conversion under the Law of Return, but only with respect to matters that are within the competence of the religious courts, as was decided in Pessaro v. Minister of the Interior [2].

42. My conclusion, therefore, is that the order nisi issued in HCJ 1594/11 should be made absolute with respect to recognition of Petitioner 1 for the purpose of status under the Law of Return.

The Petitioner in HCJ 1595/11 (Viviana)

43. At the time of her conversion, Viviana was in Israel lawfully. In her case, too, it is simple to determine that the conversion was undergone in the framework of a recognized Jewish community, for it was conducted in the Orthodox beth din of Rabbi Karelitz in Bnei Brak. The Respondents did not dispute that this is a community that has a known Jewish identity, with a fixed framework, and is renowned. The Respondents argued that the circumstances surrounding the conversion indicate that it was not sincere, but in my opinion, the whole set of circumstances of the case indicates that this is not a case of abuse of the process of conversion, but rather of a person who has tied her fate to the fate of the State of Israel and the fate of the Jewish people, which she seeks to join.

44. Viviana’s conversion was conducted at the beginning of 2009, when she was residing in Israel lawfully by virtue of a permit for temporary residency, on the basis of a relationship with an Israeli partner. The visa was valid until April 2010. In the course of 2009, she applied to the state conversion system to begin a process of state conversion. After a year, when no decision had yet been given by the state conversion system on her matter, she applied to the Ministry of the Interior to be granted temporary status until such time as the matter of her conversion would be arranged. On this occasion, she mentioned that she had separated from her Israeli partner, due, as she claimed, primarily to the religiously observant lifestyle that she had adopted after her conversion. On Jan. 3, 2011, her application for status was rejected on the grounds that the conversion that she had undergone was not a state conversion “as required”, and in view of the fact that she had separated from her Israeli partner. On April 4, 2011, her application to begin a process of state conversion was rejected, based on the fact that her status was not arranged.

45. Indeed, more than a decade ago, Viviana lived in Israel unlawfully for a fairly substantial period, but I do not think that this should tip the scales. Her conversion was conducted long after that period of unlawful residence, at a time when she was lawfully in Israel on a visa that would not expire for a significant period of time. The main doubts of the Respondents concerning the sincerity of Viviana’s conversion arose regarding the sincerity of her relationship with her Israeli partner, mainly because of the fact that at the time that she applied to the Ministry of the Interior to arrange her status and report her separation, the Israeli partner had already married another woman. I do not accept the conclusion reached by the Respondents that this piece of information indicates that the entire relationship was dubious. The information submitted by the Respondents themselves (see, e.g., exhibit R/2 of the Respondents’ response of April 14, 2011, which indicates the existence of a relationship at the beginning of 2011), paints a picture of the two involved in a relationship for about a decade, during about five years of which Viviana’s status was regulated in accordance with the graduated process for the partners of Israelis, and the sincerity of the relationship was subject to periodic monitoring of the Ministry of the Interior. During this period, the Ministry of the Interior found nothing untoward in the relationship, and Viviana’s residence permits were extended several times. It is clear that in the circumstances that have been described, the split between the partners preceded the date of the notice, even though I cannot determine by exactly how much. However, this says nothing about the sincerity of the relationship prior to that date, nor about the sincerity of Viviana’s conversion. Her conversion preceded the date by more than a year. The conversion itself was preceded by long years in which Viviana lived in Israel, and during most of which she worked in the home of a religious family that encouraged her to draw close to the Jewish religion (see: appendix 5 of the petition of Feb. 27, 2011). She still lives with that family today. Also, her conversion was preceded by a long, significant period of study (see: ibid.).

46. This is not a case of a person who tried to arrange her status by any possible means, the conversion being only one of them. Indeed, over the course of a number of years, Viviana’s status was regulated by virtue of her relationship with an Israeli partner, and when this relationship ended, she attempted to arrange her status by means of conversion through the state conversion system. However, the conversion in the beth din of Rabbi Karelitz was undergone when her status was not at all an issue, and her relationship was still strong – and the circumstances of that conversion, as stated, indicate its sincerity. In any case, this is not a person who was thinking only of regulating her status, using any available means. In this context we would note that her application to arrange her status in the Ministry of the Interior was submitted about a year after she applied to the state conversion system, and after a reply was not forthcoming. This application was rejected – while her application to begin a state conversion process was still pending – because she had not undergone state conversion. Subsequently, her request to begin the state conversion process was rejected on the grounds that her status was not settled. In any case, I do not see how any of this casts doubt upon the sincerity of the conversion.

In this petition, too, the relief of being granted a certificate of conversion was sought, but as we have said, that does not touch upon the question of recognition of the conversion under the Law of Return.

47. My conclusion, therefore, is that the order nisi issued in HCJ 1595/11 should be made absolute with regard to recognition of the conversion of the Petitioner for the purpose of her status by virtue of the Law of Return.

Conclusion

48. Our decision today is confined to the question of acquiring status by virtue of the Law of Return. This is not a religious question, but rather a civil-public one. We are not deciding anything in the framework of these proceedings regarding the question of recognition in other contexts of the conversions undergone by the Petitioners. We waited to hear from the legislature. Since the decision of the legislature has not been forthcoming, we saw no option but to issue a judicial decision on this matter.

If my opinion is accepted, we will rescind the order nisi that was issued in HCJ 7625/06, and make the orders nisi in HCJ 1594/11 and HCJ 1595/11 absolute, in the sense that we determine that Petitioner 1 in HCJ 1594/11 and the Petitioner in HCJ 1595/11 are Jews for the purpose of the Law of Return. This is by virtue of the conversion that they underwent in a recognized Jewish community in Israel. There will be no order for costs.

Justice Y. Danziger

I concur.

Justice U. Vogelman

I concur in the comprehensive opinion of my colleague President M. Naor, and with its reasoning.

In HCJ 2597 Rodriguez-Tushbeim v. Minister of the Interior [4], it was decided that the Law of Return applies to a person “who enters Israel and while he is in Israel legally he underwent a process of conversion.” I accept the decision of the President whereby there is no justification for departing from this ruling, and therefore the argument of the Respondents that the Law of Return was not designed to apply to a person who converted when he was already in Israel cannot be accepted.

I also agree with her conclusion that the term “has become converted” in the Law of Return must be interpreted as applying to a person whose conversion was undergone in a recognized Jewish community in accordance with its regular criteria, and that recognition of conversion should not be restricted to the state conversion system alone, as the Respondents argued. This is based on the reasons elucidated by the President in her opinion.

I also fully agree with the decisions in the individual cases at bar based on these principles.

Justice S. Joubran

1. I concur in the thorough and comprehensive opinion of my colleague President M. Naor and with her conclusion.

2. My opinion is the same as that of my colleague the President on the two questions confronting us: first, does the Law of Return apply to a person who arrived in Israel prior to his conversion, and while in the country underwent a process of conversion? And the second, if the answer to the first question is positive, whether the interpretation of the term “has become converted” in sec. 4B of the Law of Return implies that conversion that was conducted in Israel is to be recognized only if it was conducted in the framework of the state conversion system?

3. As the President stated, this is not the first time that this Court has addressed the interpretation of the Law of Return, and in particular, the question of the conversion required under sec. 4B of the Law. Quite the contrary! This Court has dealt with this issue extensively – with expanded benches – in a series of petitions on the subject, and has laid down clear principles that are now our beacon. It is a fundamental principle that we are a court of law, and not a court of judges (see: HCJ 8091/14 Hamoked Center for the Defence of the Individual v. Minister of Defense [12], para. 1, per Justice E. Hayut; FH 23/60 Balan v. Executors of the Estate of Raymond Litwinsky (dec.) [13], at p. 75). As such, and since no reasons justifying departure from these principles have been presented, we must continue on the same established, firmly rooted line of interpretation.

4. Like my colleague the President, I too am of the opinion that the answer to the first question is positive. In Rodriguez-Tushbeim v. Minister of the Interior [4], it was explicitly ruled, as a matter of principle, that the Law of Return applies to a person who is not Jewish, who arrives in Israel, and who in the course of lawful presence in Israel undergoes conversion – whether in Israel or abroad (ibid., at para. 26, per President A. Barak; see also: para. 19, per President M. Naor in this proceeding). As President Naor stated, this is the interpretation that is necessitated both by the language of the Law, and by its purpose. My opinion, too, is that there is no cause for deviating from the settled law. I believe that the cumulative requirements that the convert’s stay in Israel be lawful and that the conversion be sincere allay, to a great extent, concern about abuse of the arrangements in the Law of Return, and I find no reason to introduce further requirements due to this concern.

5. The response to the second question – interpretation of the term “has become converted” in sec. 4B of the Law of Return in relation to conversion undergone in Israel – is apparently more difficult, for it is not based directly on earlier rulings. However, on this matter, too, we rely on previous principles fashioned by this Court. The “criterion of the recognized Jewish community”, which the President proposes that we adopt, is a criterion that was established in Makrina v. Minister of the Interior [5] regarding the interpretation of the expression “has become converted” in sec. 4B of the Law of Return in relation to conversion undergone outside of Israel. According to this criterion, a person who “has become converted” is a person who underwent conversion in a recognized Jewish community, in accordance with its accepted criteria. Like my colleague the President, I too am of the opinion that this criterion should also be applied to conversion undergone in Israel, for it suitably combines realization of the goal of encouraging immigration and unity of the Jewish people on the one hand, and oversight of the public aspect of conversion on the other (and see para. 29 of President Naor’s opinion in this proceeding). This criterion – as opposed to the requirement of conversion in the framework of the state conversion system, on which the Respondents insisted – does not discriminate between a person who chose to undergo the conversion process outside of Israel and a person who decides to convert in Israel. This will ensure an egalitarian outcome, and as such, I can only adopt it enthusiastically.

6. Therefore, I concur in the opinion of my colleague President M. Naor and all its reasons.

Justice E. Hayut

I concur in the comprehensive opinion of my colleague President M. Naor and all its reasons.

Justice H. Melcer

1. I concur in the precise and meticulous judgment of my colleague President M. Naor.

2. I will permit myself, nevertheless, to add two comments:

(a) Abuse of a right on the part of others in the past, or concern about such abuse in the future, does not justify, in administrative law, the denial of the right to a person seeking it in good faith, for the refusal of the authority in such a case is tainted by unreasonableness and lack of proportionality. See and compare: HCJ 3477/95 Ben Attiah v. Minister of Education and Culture [14].

(b) The principle mentioned in para. (a) above is even more applicable in constitutional law, when at stake are basic constitutional rights, the violation of which is permissible only in accordance with the limitations clause in sec. 8 (with respect to the security forces – sec. 9) of Basic Law: Human Dignity and Liberty.

3. The right of Return, regulated under the Law of Return, is a basic constitutional right that emanates from the Jewish character of Israel, which is defined as a Jewish and democratic state. As such, this right is granted to every Jew (see sec. 1 of the Law of Return), and see: HCJ 6624/06 Pashko v. Ministry of the Interior [15], para. 9, per Deputy President E. Rubinstein, and my opinion in HCJ 4504/05 Skaborchov v. Minister for Internal Security [16], at para. 14).

A Jew for the purpose of the Law of Return is, therefore, any person who is born to a Jewish mother, or who has become converted, and who is not a member of another religion (see sec. 4B of the Law of Return). Hence, just as the Law of Return does not adopt a monolithic view in regard to a person who was born to a Jewish mother by virtue of the Law of Return – neither can there be a monolithic view regarding every person who has converted, and it is therefore clear that those Petitioners before us, who converted in good faith in the framework of a recognized (ultra-Orthodox) Jewish community, must be accepted by virtue of Return.

Justice Y. Amit

I personally tend to the minority opinion in Rodriguez-Tushbeim v. Minister of the Interior [4], according to which the Law of Return applies to a person who was Jewish before he came to Israel. However, since such an important decision was made by a bench of 11 justices, I bow my head, and I do not think it appropriate to depart from that decision.

Once we have overcome this preliminary, principal question, I concur in the conclusion of my colleague Justice M. Naor that recognition of conversion should not be confined to the state conversion system.

Deputy President E. Rubinstein

Introduction

1. “And once more with you, once more with you”, but will “peace be upon you, upon us, and upon everyone” (from the song of Dudu Barak)? The subject of conversion is never off the agenda of this Court, as demonstrated by the many judgments that my colleague has cited and quoted (for some of this history, see the article of Prof. Eliezer Don Yehiyeh, ‘Who is a Jew” and Who is a Convert? The Attempts to Amend the Legislation on the Subject and their Failure”, in The Fourth Decade 5738-3738 (Y. Weitz & Z. Zameret, eds., Avi Picard, asst. ed.,) 5776-2016, 69 (Hebrew)). This time we are dealing with an application for citizenship by virtue of Return with respect to persons who converted in an Orthodox community in Israel, outside of the state conversion system. According to the Respondents, such conversions are not acceptable for the purposes of Return. In her comprehensive and interesting opinion, my colleague the President proposes (at para. 29) to interpret the expression “has become converted” in sec. 4B of the Law of Return in light of the criterion of a “recognized Jewish community”, since the High Court in Rodriguez-Tushbeim v. Minister of the Interior [4] ruled that “the Law of Return applies to a person who is not a Jew, and who in the course of his lawful stay in Israel underwent conversion (in Israel or abroad).” According to my colleague (para. 30), we are not dealing with conversion by “any three people” whosoever, as the Respondents fear, but with conversion through a community “with a common, established and fixed Jewish identity”, and the communities in which the Petitioners converted meet this requirement. According to my colleague, conversion through the state conversion system cannot be regarded as exclusive, and the Government does not have the residual authority to determine that only conversion through the state conversion system is valid for the purposes of Return (paras. 34-35). Furthermore, according to my colleague, the concern expressed by the Respondents for abuse of the process of conversion can be dealt with by various administrative tools, and it may be allayed particularly by the criterion of the recognized Jewish community. I will note here that had I been a member of the bench in the case of Rodriguez-Tushbeim v. Minister of the Interior [4], I imagine that I – like my colleague Justice Amit in his comment – would have dissented, but that is in the past, and much water has flowed under the bridge since then.

2. As I shall explain briefly, the problem, as I see it, with the President’s position at this time is that we are lending a hand – unintentionally, of course – to the creation of discord on the subject of conversion, a subject that is important in Israel’s reality as a Jewish and democratic state. Thus, while recognition that grants status – as does conversion – must, in my view, come from the state, it should be achieved in a manner that is as friendly as possible to the convert, should adopt as broad a perspective as possible, and should achieve an outcome that would apply to all of Jewry. This is not impossible to achieve. Clearly, in the background lies not only the question of the Orthodox communities in Israel, but on its coattails also the non-Orthodox – the Conservative and Reform – communities, and my colleague mentioned (para. 8) the petition in HCJ 11013/05 and others, in relation to which, in her decision of Aug. 8, 2015, she noted the “substantive proximity” between them and the present petition, and in a decision of Sept. 3, 2015 she said that “their turn will come.” That is, indeed, so, and the question is whether, instead of this piecemeal approach, we ought not to take this opportunity – possibly the last one – to achieve a just harmony on the subject of conversion that will be acceptable to all, or almost all, in the framework of the state conversion system or with its approval, in the spirit of the recommendations of the Neeman Committee of 1998, which I will discuss below and which I endorse, or in another appropriate way, such as that proposed in recent years by MK E. Stern and others, thus providing a “service to the nation” – an essential one in my view – that is achievable and fair. This, however, requires legislation, and if all would understand that in the absence of legislation, every person will “withdraw into his tent” on the practical as well as the legal level, it may also be possible to achieve the necessary “national compromise” (even though there are those who do not like to use the term “compromise” in this context). This is not at all unattainable. “I have been young and now I am old” [Psalms 37:25] and I am sorry to say that a surfeit of “cautiousness born of humility” (see TB Gittin 56a, the words of the Tanna, R. Zechariah Avkulas, relating to the horrific legends of the destruction of the Temple), and for our purposes, the surfeit of piety or extremism of various elements in the religious and political systems – not only the Orthodox, although they in particular, but also from the other end of the spectrum – have until now prevented a solution. This is so even if we do not draw an analogy to the catastrophic consequences of the Destruction which the sages ascribed to that surfeit of “cautiousness”.

3. I will give you my bottom line right here and now. In my view, President Naor’s proposal should be accepted, but deferred for eighteen months, during which time the Knesset, if it sees fit, can enact legislation in order to establish, by law, a state conversion system that is harmonious, appropriate and fair, vis-à-vis the halakhah and duly respecting all parts of our nation, however concentrated or dispersed, for otherwise, it will unfortunately be the political system that will be held accountable.

4. The President’s opinion, and the decision therein, stem, unfortunately, from the inability of the political system – the executive and the legislature, the Government and the Knesset as one – to generate an appropriate statutory solution for a sensitive subject such as conversion. The negative result is that it is dumped, time and time again, on the doorstep of this Court, which is intended to solve disputes and to interpret the law, in such a way that its binding decisions must address public, value-based disputes that the Government and the Knesset refuse, or find it politically difficult to resolve. Time and again, the Court calls upon the legislature to do its job – a call that passes as a common thread through the judgments. And since this call is not heeded – and at a time when the judicial lot has no choice but to fall – complaints are often levelled at this Court to the effect that it does not satisfy everyone, and mainly that it is “secular” or should one say “liberal”, and not sufficiently “Jewish”, or all of these together, and that it is “activist”. On the other hand, it is not zealous in guarding rights, and it is too passive. In short, it is “a bit of everything.” But in truth, the Court does not “put in an order” for cases, rather, it adjudicates what is submitted to it as a petition or an appeal. If we take a close look at the present issue, the words “has become converted” in sec. 4B of the Law of Return were unclear from the very outset, for the section did not specify how the person became converted. Over the years, bits and pieces of case law have accumulated, as described by my colleague. Incidentally, the same tendency – although there are exceptions – to cast problems at this Court and later to complain when the decision does not satisfy all, is evident not only in relation to conversion: see AAA 5875/10 Masorti Movement v. Be’er Sheva Religious Council [17], in which instead of reaching an agreed arrangement of “modest” dimensions on the matter of ritual baths for converts from the Conservative and Reform Movements, which we urged them to do, they dragged their feet, which led to a “monumental” judgment.

5. I asked myself what it is that bothers me about the President’s conclusion which, if it becomes the “permanent” bottom line of our judgment, I think will be something of a Jewish-national default position, which in universal-Jewish terms would be a pity. Two points should, in my view, be considered. The first: when we say “convert”, we are dealing with a statutory term that brings with it status and benefits, and it ought to have a meaning that is not voluntary and random, so that not everyone who wishes to call himself by that name may do so and “obligate the realm”. Indeed, it is a matter of a “recognized community”, but it is reasonable to assume that much ink will be spilt in relation to the term “recognized community”, and petitions will be submitted and panels of justices will be sorely tried, and it is possible that everything will return to square one. The same concern applies to the interpretation of “serious Orthodox courts that have standing” (paras. 5-9 of the opinion of Justice Hendel). Secondly, and this is the main point: the division between registration of the conversion in accordance with our judgment treating of the Law of Return, 5710-1950, and the civil, administrative legal system, as well as the Population Registry, as opposed to recognition of conversion for the purpose of marriage in the rabbinical courts, which have jurisdiction in matters of marriage and divorce under the Rabbinical Courts (Marriage and Divorce) Law, 5713-1957, is not desirable, to put it mildly. In my view, we must strive to achieve harmony between the two, in order that there not be among us those who are registered as Jews but who cannot, for example, marry as Jews. The implications of this are harsh, as any reasonable person will understand. However, we, as a court, do not have the tools to achieve that harmony, and the intervention of the legislature is required. The boundaries of interpretation are not limitless. In the absence of guidance from the legislature, the President is right: it is difficult to prefer one interpretation over another. And in fact, the interpretation given by the President is, ultimately, a compromise, placing conversion in Israel, like conversion abroad until now, within the bounds of a recognized community, as opposed to – at least this is the thinking – “Thou puttest the law for each man into his own hand” (mShevi’it 2:1). But, as stated, I fear that “adventures in litigation” may still await on this matter – would that I were mistaken! Let us recall: “ObviouslyClearly, in matters of Return, which is a basic right of every Jew (‘Every Jew has the right to come to this country as an oleh’, in the words of sec. 1 of the Law of Return), the State has a special obligation to consider carefully any breach of the right” (para. 9(1) of my opinion in Pashko v. Ministry of the Interior [15], which was also cited by my colleague Justice Melcer). Is there a solution that would be worthy of universal Jewish harmony in the State of Israel? In my view, this is possible, based on a responsible, friendly approach to converts.

The Shalit Case and Amendment of the Law of Return

6. These questions are not new to us. I will recount some – only some – of the history, although I would not presume to exhaust it. Already in the fifties of the previous century, we recall that a crisis erupted against the background of the guidelines of the Ministry of the Interior concerning registration of Jews in the Population Registry, and the appeal of the first Prime Minister, David Ben Gurion, to the sages of Israel on the question of “Who is a Jew”, which this is not the time to discuss (see: Collection of Responsa of the Sages of Israel and Appendices (Hebrew), and A. Ben-Raphael, Jewish Identities: Responses of the Sages of Israel to Ben Gurion (5761) (Hebrew)). However, the crisis arose again in full force in 1970. Due to limitations of space, we will focus on the amendment to the Law of Return (no. 2) of 1970. We will go back four and a half decades, in the footsteps of the Shalit case (Shalit v. Minister of the Interior [1]) that shook the political system at a time when this Court, with what was then a very rare bench of nine justices, ruled by a five-four majority that Major Benjamin Shalit’s children, whose mother was not Jewish, should be registered as Jews in the Population Registry. Following the judgment, a bill to amend the Law of Return was submitted and debated in the Knesset. This is not the place to go into detail, but I will cite, as background, from the words of (then) Justice M. Landau at p. 520 of his opinion in the Shalit case, after the suggestion of the Court to delete the “nationality” section was not accepted (I will admit that I myself, for reasons of principle, agree with the opponents of that suggestion, and I will not elaborate): “The dispute and the division reached this Court. No good will arise from this for anybody, but the grave damage to the public that it involves is clearly evident.”

In the debate on the first reading of the amendment to the Law, MK (and eventually Minister) Haim Zadok, in the Knesset session of Feb. 10, 1980, referred to these words, saying (56 Dvrei HaKnesset 764): “I wish to point out that the Supreme Court was not enthusiastic about deciding this subject”. The Court ruled “because it was left with no option but to rule.” And indeed, at the time, my colleague Justice Sohlberg and I happened to write (Minha LeYitzhak, in honor of Judge Y. Shiloh (5759), 339: “The courts – seemingly more reluctantly than willingly – are called upon to deal with disputes on questions of state and religion” (also cited in my book Paths of Government and Law (5763-2003, pp. 196-197 (Hebrew). The same applies today (see: Masorti Movement v. Be’er Sheva Religious Council [17]).

7. Regarding the substance: when Minister of Justice Yaakov Shimshon Shapira, in the Knesset deliberations of the amendment to the Law of Return (p. 781), described the proposal for defining the term “Jew” (which now appears in sec. 4B of the Law of Return, formulated as follows: “…a person who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion”), he pointed out that the draft law did not contain the words “who has become converted in accordance with the halakhah”, “and we therefore say that a person who arrives with a conversion certificate from any Jewish community, as long as he is not a member of another religion, will be accepted as a Jew.” MK Haim Zadok repeated these words in the debate on the first and third readings (March 10, 1970, 57 Divrei HaKnesset 1137): “A person who became converted in any Jewish community will be accepted as a Jew.” This was the historical basis, which apparently included the understanding – which had no normative anchor – between the two Shapiras (Minister of Justice Yaakov Shimshon Shapira, a member of the Labor Party, and Minister of the Interior H.M. Shapira, a member of the National-Religious Party) that a member of a Jewish community abroad would be registered as Jewish, but in Israel, the conversions would be Orthodox. The position of the State in all of the many petitions surveyed by President Naor was consistently in line with that agreement.

For interpretation from that time (the 1970s) of the legal situation following the amendment of the Law of Return see A.H. Shaki, Who is a Jew in the Laws of the State of Israel (5737) A. 178-184 (Hebrew). Professor Shaki wrote (p. 180): “… It is a fact that the present wording [“has become converted” – E.R.] is understood as being ambiguous, and is liable to suffer … also from a non-halakhic interpretation.” He also mentions that the words “in accordance with the halakhah” already appeared in the directives issued in 1960 by Minister H.M. Shapira with respect to the Registry (p. 181). According to Shaki – who wrote from an Orthodox ideological perspective (p. 183) – “There is no option but to amend unequivocally the existing ambiguous definition in order to clarify that the conversion under discussion is a conversion recognized by Jewish tradition, in the Shulhan Arukh, for generations, and not any substitute for it.” In his view (ibid.), “a minimal uniformity in determination of the nature of affiliation to Judaism…” should be assured, and he proposes (at p. 184) “the adoption of halakhic criteria by non-Orthodox streams as well,” “a traditional common denominator” which in his view is to be found in the formula, “who has become converted according to Torah law.” For another view, see M. Stanislawski, A Jewish Monk? A Legal and Ideological Analysis of the Origins of the “Who is a Jew” Controversy in Israel, in E. Lederhendler & J. Wertheimer, Text and Context: Essays in Modern Jewish History and Jewish Historiography in Honor of Ismar Schorsch (2005), which discusses the case of “Brother Daniel” (Oswald Rufeisen), HCJ 72/62 Rufeisen v. Minister of the Interior [1962] IsrSC 16 2428. See also M. Finkelstein, Conversion in Theory and Practice (5754) (Hebrew); Rabbi Y. Avior, Laws of Converts in Mixed Marriages (Hebrew); Rabbi S.A. Stern, Halakhic Conversion (2^nd ed.)(5762) (Hebrew).

Ministerial Committee on Registration of Converts from Abroad – 1987

8. In the above-mentioned article of Justice Sohlberg and myself (and see Paths of Government and Law, pp. 208ff.), there is a partial recounting of the story of conversion in the State of Israel in the eighties and nineties of the last century. Mention is made of the Ministerial Committee that in 1987 attempted, unsuccessfully, to reach a solution on the subject of conversion. The Ministerial Committee on Registration of Converts from Abroad was appointed on Jan. 25, 1987, by the unity government headed by Prime Minister Yitzhak Shamir, “to examine the questions that arise in connection with the registration of converts from abroad. The Committee will examine the various aspects of the subject, and for this purpose will be able to confer with experts in Israel and among Diaspora Jewry. The conclusions of the Committee and its recommendations will be made with the agreement of all members. The Committee will endeavor to complete its work within 6 months.”

9. In its decision of Feb. 8, 1987, the Committee set up a “team comprising Ministers Z. Hammer, Y. Modai and M. Shahal, the Attorney General and the Cabinet Secretary to advise the Ministerial Committee at its next meeting about the arrangements for a meeting of the Committee plenum or a team thereof, as necessary, with experts from Israel and abroad.” It was decided that meetings of the plenum would be held once a month, and meetings of the team as necessary.

Inter alia, the full Ministerial Committee met with the Chief Rabbis. Below is a summary dated June 23, 1987:

The Prime Minister opens and presents to the Chief Rabbi the aim of the work of the Ministerial Committee on Registration of Converts from Abroad.

The Prime Minister requests, on behalf of the Ministerial Committee, to hear the position and the proposals of the Chief Rabbis on this matter.

The Chief Rabbis present their position, and these are the main points:

- The question of conversion affects the whole of the Jewish people. It is impossible for people who are not Jewish to be affiliated to the Jewish people.

- The problem in Israel focusses on a small number of cases.

- Pressure must be brought to bear on the Reform community to stop converting.

- The Reform Jews are good, “kosher” Jews but they must not be involved in conversion.

- The ways of the Reform rabbis in the United States cannot be imposed upon those people who live in Israel. This leads to assimilation.

- The problem is a problem of US Jewry, and they must find the solution to the problem that they created.

- Every conversion is checked by the rabbinical court. Conversions are not accepted automatically, even if those conducting the conversion are Orthodox rabbis.

The Vote

The Ministers ask the Chief Rabbis for their opinion on the following proposals:

a. To set up a joint beth din of three Orthodox rabbis and two observant rabbis, one Reform and one Conservative.

b. To enhance the authority of the rabbi who is the Registrar of Marriages by granting him authority to accept a sworn affidavit concerning the Jewishness of a candidate for marriage.

c. To add to the items “religion and nationality” in the Population Registry the items “former religion and nationality”.

d. To change nothing from a statutory point of view, and to leave the situation as it is today.

The Chief Rabbis reiterate their position that the problem is a problem of US Jewry, and therefore they cannot intervene by setting up a joint rabbinical tribunal there. Similarly, they say, eligibility for marriage must be examined. The Chief Rabbis also state that the Knesset is not the appropriate framework for deciding on subjects that are exclusively within the area of halakhah.

The Chief Rabbis make the following proposal:

A representative body on the part of the Chief Rabbinate will be set up, which will be located permanently in the United States (for example, in the Israeli Consulate in New York), to which immigrants to Israel can turn for help on various subjects. Inter alia, this representative body will serve as the address for converts who are making aliyah to Israel, for clarification and guidance in connection with their aliyah and their absorption in Israel.

The Prime Minister notes that the proposal could be a pragmatic solution which could partially reduce the problem of registration of converts from abroad. However, this should be presented to the other streams in order to gain their cooperation in this endeavor.

Other Ministers, too, regarded this proposal as positive in principle. The Prime Minister thanks the Chief Rabbis for their participation in the meeting.

On the position of the Israeli rabbinical world in the decade following the Shalit affair, see Conference of Rabbinical Judges – 5739, an appendix to the book Conference of Rabbinical Judges – 5775 (5776-2016), p. 411, at pp. 440-454, and the words of Rabbis Y. Frankel, S.B Werner, S.T. Rubinstein, S. Goren, M. Uriah, A. Shaar Yashuv, H.D. Halevi and B. Rakover, and I will not elaborate.

For the sake of brevity, I will cite only a small part of the discussions of the said team from the Ministerial Committee, which devoted a great deal of time to the matter. In the meeting of the team of June 16, 1987, Prof. Menachem Shawa observed that “if the High Court of Justice had to interpret this expression [“has become converted” – E.R.] at the beginning of the nineteen seventies, immediately after the Amendment to the Law of Return, it would have interpreted it in the halakhic sense, but the attempts to amend the Law by adding the words “in accordance with the halakhah” after the words “has become converted”, and the rejection on the part of the Knesset of the attempts to amend the Law, created an interpretative rule that is now difficult to ignore.”

At the same meeting, Professor Eliezer Berkovits, a Jewish philosopher and halakhist who was himself Orthodox, said that “conversions that are conducted by the Reform and the Conservatives are usually valid retroactively from a halakhic point of view, and agreement should be reached between the streams on the elements that are common and that unite the nation. Every party must compromise a little in order to reach a common path of action, without amending the Law of Return.” Concerning the question of whether it is possible in his view to establish a joint beth din comprising three Orthodox rabbis and another two rabbis who are halakhically observant – one Reform and the other Conservative – he replied that it is possible to achieve such a solution if the State can find Orthodox rabbis who are prepared to sit down with the other streams … he is doubtful whether this idea can be realized in Israel, but in the United States it is possible, and such a solution is almost inescapable.

The representatives of Chabad were in favor of amending the Law by the addition of the words “in accordance with the halakhah,” for the sake of the integrity of the nation and its unity. It should be borne in mind that, at the time, the Lubavitcher Rebbe (Rabbi M. Schneersohn) was at the forefront of those calling for the addition of the words “in accordance with the halakhah” to the term “has become converted”, even following the decisions of the Chief Rabbinical Council 5730 (see his letters to Dr. Zerah Warhaftig of 30 Shevat 5732 [February 15, 1972], Dvar Malkhut, Ki Tissa 5776 (13 Adar 5776 [February 22, 2016]), and to Mr. Aharon Cohen of 6 Kislev 5735 [November 20, 1974], Dvar Malkhut, Vayishlah 5776 (16 Kislev 5776 [November 28, 2015]).

Attempts at a Solution 1988-1989

The team’s work had not yet been completed, and the subject arose once more after a severe crisis concerning conversion following the elections of 1988, on which we will not elaborate here. In 1988-1989, this crisis gave rise to an extremely intensive attempt, focusing primarily on immigrants from the United States, at negotiations with the representatives of the Israeli Government (the Cabinet Secretary at the time – yours truly – who coordinated the negotiations, and the senior official at the Ministry of Religion, Zev Rosenberg), and representatives of the Orthodox (what is called “Modern-Orthodox”), Conservative and Reform streams in the United States (through the rabbinical seminaries of the streams and the rabbinical organizations), with the knowledge of the Israeli Chief Rabbinate and its partial participation (by Rabbi Yohanan Fried, who was then an emissary in New York).

“That you may tell it to the generation following” (Psalms 48:14), I will tell the story of that affair as it was documented in what I wrote in honor of Rabbi Professor Norman Lamm in the jubilee volume, Kema’ayan HaMitgaber (Bentzi Cohen, ed.) 5774-2004, pp. 13-15 (Hebrew). Rabbi Lamm participated in the said process. The words are quoted with light editorial modifications:

After the Israeli elections of 1988l, the conversion crisis erupted. This subject, the “Who is a Jew” question, which some have called “Who is a Rabbi”, occupied the state periodically over the course of many years, and the scope of this paper does not allow for the full history. Towards the end of 1988, important elements in American Jewry, mainly from the Conservative and the Reform movements, feared that the new “narrow” government that was about to be formed in Israel (but which ultimately did not eventuate) would amend the Law of Return such that the Law would define the term “has become converted” in a way that would grant exclusivity to Orthodox conversions. Ultimately the government was established as a national unity government, without the Law of Return being amended. However, in view of the serious crisis that had been created, the idea arose of trying to reach an agreement on the subject of “Who is a Jew”. As cabinet secretary I was appointed by the Prime Minister, Yitzhak Shamir, to deal with the matter. The person with whom I communicated in the Religious-Zionist stream in the United States was Rabbi Dr. Norman Lamm, President of Yeshiva University, who was joined by the late Rabbi Dr. Louis Bernstein, also from Yeshiva University. Representing the Conservative Movement were Rabbi Prof. Ismar Schorsch, Chancellor of the Jewish Theological Seminary, together with Professor Shamma Friedman, from the Seminary in Jerusalem and eventually an Israel Prize laureate; and on behalf of the Reform Movement was the late Rabbi Prof. Alfred Gottschalk, Chancellor of Hebrew Union College in Cincinnati, together with Dr. Walter Jacob of Pittsburgh (grandson of Rabbi Benno Jacob, the biblical commentator, often quoted by Prof. Nechama Leibowitz in her biblical commentary). The emphasis was on finding a solution to the questions of conversion in connection with immigration to Israel.

Intensive negotiations took place throughout 1989, virtually without publicity, in a sincere effort to achieve Jewish unity and fairness towards all, and to seek a formulation that would reflect the idea that Jews should not be fragmented; and therefore on the one hand, to create a common platform for the different streams of Judaism, out of mutual respect, and on the other hand, the result of which would be conversion that would be acceptable also to the Chief Rabbinate in Israel. The formulation that was prepared was as follows:

Memorandum of Agreement

We the undersigned, having conferred on the arrangements necessary for the conversion of candidates for aliyah to Israel, in order to ensure that they will be accepted in Israel as full Jews for all intents and purposes, and in order to promote the unity of the Jewish people, have agreed as follows: “A Joint Conversion Committee will be established, which will be comprised of one rabbinical representative who will be appointed by each of the three heads of these institutions: the Hebrew Union College, the Jewish Theological Seminary and the Rabbi Isaac Elchanan Rabbinical Seminary attached to Yeshiva University.

The Chief Rabbinate of the State of Israel will appoint a rabbinical representative (an attaché to the Israeli Consulate in New York), whose tasks will include matters of conversion of olim.

After examination of each candidate for conversion who wishes to make aliyah, the Committee will make a recommendation, by consensus, in full coordination with the said attaché, concerning those candidates whom it finds suitable, and the recommendations will be passed on by the attaché to a beth din that will be set up by the Israeli Chief Rabbinate for the purpose of conversion prior to aliyah.

(-) Israel Cabinet Secretary

(-) Ministry for Religious Matters in the Government of Israel

(-) The Hebrew Union College, The Jewish Theological Seminary

Guidelines as follows were to have been attached to the document:

Guidelines:

1. Conversion will be in accordance with halakhah. The process will include, in its contents and its spirit, “He is informed … about some of the easy precepts and some of the more severe ones.” Doctrinal matters are beyond the purview of this process.

2. The length of the process of preparation depends on the intellectual ability of the candidate and the time that he devotes to his studies. The minimum period is six months. The candidate for conversion must develop a basic understanding of and commitment to Judaism, its history and its lifestyles. He must also prove his loyalty to Israel.

3. The candidate for conversion must come equipped with a recommendation from a rabbi who will take responsibility for his preparation and commitment. The rabbi must determine that the candidate has a sincere and healthy interest in Judaism and in Israel.

4. The candidate is expected to demonstrate suitable knowledge of Hebrew.

5. An attitude of warmth and kindness towards the candidates is necessary, bearing in mind that they will be living in Israel.

6. We expect that the candidate for conversion will make a substantial contribution to a Jewish charity of his choice.

7. Every suitable past conversion will be accepted without the necessity of a second conversion.

Simply put, the proposal, like the proposal of the Neeman Committee that was eventually set up in 1997 (see below), was intended to make possible a common platform for all the various streams of Judaism in the form of a joint committee for all (and not a joint beth din, as the subject was later presented in a distorted way by certain circles of New York ultra-Orthodox Jewry), and at the same time, to ensure that the conversion would be in accordance with the halakhah and acceptable to the Chief Rabbinate, for the sake of the unity of the Jewish people.

However, due to the proposal being presented in a certain way by those ultra-Orthodox circles (as was the case with the Neeman Committee many years later), and in view of the opposition from the other end of the spectrum, in certain parts of the Reform movement, it never took off.

At that time, we tried to introduce a fair, moderate trend, which called for promoting unity in Israel – unity for all the parts of the Jewish people, while preserving the framework of halakhic Judaism with no violation of the halakhah, and we were not successful. A similar fate awaited the Neeman Committee, even though it progressed further, reaching the stage of a Government decision, but it did not reach the stage of legislation.

The Neeman Committee

10. The Neeman Committee was appointed by Prime Minister Benjamin Netanyahu on June 27, 1997, and headed by Prof. Yaakov Neeman, who later became Minister of Finance and Minister of Justice. The background to the appointment of the Committee was an initiative – and subsequent crisis – to enact an amendment to the Rabbinical Courts (Marriage and Divorce) Jurisdiction Law, the aim of which was to give official status to Orthodox conversion, apparently following the judgment of the Supreme Court in Pessaro v. Minister of the Interior [2]. This time, the emphasis was on Jews from the former Soviet Union, as opposed to the effort described above which primarily concerned US Jewry. This occurred after an agreement was reached on June 17, 1997 between the Coalition Chairman, MK Michael Eitan and representatives of the Masorti movement (the Conservative movement – Rabbi Reuven Hammer) and the Movement for Progressive Judaism (the Reform movement – Rabbi Uri Regev), with the involvement of Minister Natan Sharansky and MK Prof. Alex Lubotzky. It was agreed to freeze impending legal proceedings, and to establish a committee comprising seven members, which would include one representative of the Reform Movement and one of the Conservative Movement, aimed – inter alia – at leading “to a situation in which registration of particulars under the Population Registry Law and regulation of the matter of naturalization, including that of converts, would be done in a way that would be satisfactory to all parties,” with the Coalition debating and approving the conclusions. On that same day – June 17, 1997 – Prime Minister Benjamin Netanyahu wrote to the leadership of the Conservative and of the Reform Movements that a joint committee would be established, and “I regard this as an important step in which Israel and the Diaspora will work together to preserve the unity of the Jewish people out of mutual respect. And I hope that out of this crisis we will emerge strengthened.”

The Neeman Committee worked intensively, and held 50 meetings. It searched for a fair path. I will mention a memorandum that was submitted to it on Sept. 2, 1997 by Dr. Menachem Finkelstein, author of the important work, Conversion in Theory and Practice (2004) (Hebrew), who later served as the Military Advocate General with the rank of Major General, and is now Deputy President of the Tel Aviv District Court. The memorandum – in the spirit of “It is time to act for the Lord”, and in reliance on well-known halakhic case law – discusses the approach of “in accordance with the need” (in the words of Rabbi Moshe Feinstein, one of the greatest halakhic decisors of the twentieth century in the USA), in order to deal with the subject of observance of commandments, which is the principal halakhic difficulty with accepting converts. Among the decisors that were cited as authorities were Rabbi Ben-Zion Meir Hai Uziel, Rabbi Ovadia Yosef and Rabbi Isser Yehuda Unterman – all Chief Rabbis of Israel; see the memorandum, “On the Problem of Conversion in the State of Israel: Opinion of 1997”, also in the special edition of the Judges Bulletin in honor of Judge Shmuel Barukh (website of the Judiciary) p. 182 (Hebrew); on the approach of Rabbi Feinstein, see Harel Gordin, The Conversion Ceremony as a Ritual of Defining Jewish Identity: A Study of the Theory of Rabbi Moshe Feinstein, in A. Maoz and A. Hacohen (eds.) Jewish Identity (5774-2014) 101 (Hebrew).

11. On Jan. 28, 1998 Yaakov Neeman, who by that time was already serving as Minister of Finance, informed the Prime Minister that the Committee had completed its task, and that it was seeking the approval of the Chief Rabbis for its recommendations, which included the establishment of an Institute for the Study of Judaism and rabbinical conversion tribunals, as will be described. The Report of the Committee, which was attached to the letter, included an agreement (para. 3) “to establish a unified state process of conversion – according to Jewish law – that will be recognized by all of Israel. This will make it possible to ensure the unity of the Jewish people. The proposed conversion track is intended to ensure, insofar as possible, in the framework of the halakhah, maximum consideration of the constraints of the time and human distress.” The Report included – as stated – the establishment of an Institute for the Study of Judaism in which all the streams would be represented, and special conversion tribunals that would be appointed by the Chief Rabbis, which would be “batei din comprising three judges, in the halakhic sense, as required for purposes of conversion (Shulhan Arukh, Yoreh Deah 268:3-4), and not a beth din with jurisdiction by virtue of the Rabbinical Court Judges Law, 5715-1955. This conversion, in that it would be acceptable to the entire Jewish people, contributes to national unity.” It was also said that “in relation to a candidate for conversion, ‘We inform him of the fundamentals of the faith, i.e., the unity of God and the prohibition against the worship of false deities. We elaborate on this matter. We inform him about some of the easy precepts and some of the more severe ones. We do not elaborate on this matter. … . We do not teach him all the particulars lest this cause him concern and turn him away from a good path to a bad path. For at the outset, we draw a person forth with soft and appealing words’...” (Maimonides, Laws of Forbidden Sexual Unions 14:2). This, in my view, transmitted cautious optimism.

The protocols of the Council of the Chief Rabbinate of 13 Shevat 5758 (Feb. 9, 1998) dolefully document Professor Neeman’s attempt to convince people of the conclusions of the Committee, stressing the need for a solution to the problem of conversion of tens and even hundreds of thousands of people who made aliyah lawfully but are not Jewish according to the halakhah, and the fact that the conclusions of the Committee include conversion according to Jewish law. In his words, “Conversion is not something private … it is unacceptable that each person should choose a rabbinical tribunal for himself,” and he refers, therefore, to an exclusive track – if the Chief Rabbinate approves –to prevent fracturing the nation. However, from the many statements of rabbis such as Chief Rabbi I. M. Lau, Rabbi S. Kook and others – apart from the demand to legislate exclusivity for the rabbinical courts – reservations emerge about the joint institute. One of the participants, Rabbi U. Gliksberg, stated, “Were I to hear that the recommendations of the Committee had been enacted as law, we would weigh up whether this is worth ’the trouble of the King’, (Book of Esther 7:4), but if it is not a law, who can guarantee that the Reform will stop converting people. If it is not so, we have not helped in any way”. Rabbi M. Rochwerger also asked the same question. The reply of Minister Neeman was that “I see a possibility that if the Council should wish with respect to the question addressed to it, and would ask to bring this matter to the Knesset, there is a chance that it would become law. There is no doubt that this would be the decision of the Knesset. The Attorney General has undertaken to defend [the Government] against the petitions that will be submitted to the High Court of Justice. If a subject that was settled by agreement comes before the court, it will not need to adjudicate it.”

Ultimately a decision was made, parts of which are quoted below:

The Chief Rabbinical Council received clarifications, in a clear and absolute manner, that it is required only to consider the matter of conversion itself, and in spite of its clear stance that there should be no cooperation with those who do not accept the yoke of the Torah on themselves, the Council was called upon to discuss the matter of conversion in view of the serious, grave problem of mixed families who arrived in Israel after being estranged for decades from the Jewish sources. There is no doubt that responding to this involves many difficulties and a huge effort, and the Rabbinate is tackling the heavy task which has been laid on its shoulders.

The Council received the unequivocal announcement of the Minister of Finance that there are no longer, and will no longer be, conversions in Israel that are not in accordance with halakhah, and that he has made a clear undertaking that acts that are called “conversion” and that are only a semblance of conversion will be prevented in Israel. The demand of the Chief Rabbinical Council is that this exclusivity in relation to conversion according to halakhah will be anchored in statute and will receive legal force.

The Council has seen fit to announce publicly that conversion is a personal matter concerning the convert himself and he, and he alone, must convince the beth din that he accepts the yoke of the Torah and the commandments, and is committed to joining the Jewish people. The beth din is and will be concerned only with the matter of the particular person in front of them, to enable it to consider his matter fearlessly, recognizing the duty imposed on it.

The Chief Rabbinical Council reiterates the longstanding position of the Chief Rabbinate that conversion in Israel must be considered and conducted only in the batei din that operate according to the law of the Torah “at the discretion of the beth din which will convert, in accordance with the halakhah, a person who it considers to have accepted the yoke of the commandments.

Accordingly, the Chief Rabbinate decides hereby that additional batei din should be set up wherever there is found to be a need for this.

The Chief Rabbinical Council calls upon everyone who is able to do so to prevent the activities of those who do not believe in Torah from Heaven, and who are trying to uproot the foundations of the Jewish religion, thus creating a fissure between parts of the people, and attempting to sow in the hearts of the people a departure from the traditional path that has been trodden for generations. They have already brought about disastrous consequences and assimilation amongst Diaspora Jewry. The great sages of Israel prohibited any cooperation with them and with their approach. It is inconceivable to establish a joint institute with them.

The Torah of Israel is one, and was given from Heaven, and there is no room for any deviation whatsoever from what we were taught by the sages of all the generations, from whom we are sustained. Conversion in Israel is an entry ticket to the Jewish people, and it will be conducted solely according to Jewish law.

I will not presume to offer an interpretation of the decision of the Rabbinical Council; clearly, it did not support the decisions of the Neeman Committee. It appears that on the one hand, it reflects some sort of understanding of the needs of the hour, and on the other hand, it contains a demand for “exclusivity of jurisdiction” for the batei din and serious rejection of the non-Orthodox streams – even though it did not call them by names – in a manner that rules out cooperation with them. As I understand, once the Rabbinate did not approve, at least some of the non-Orthodox partners pulled out.

12. As opposed to this, what follows is the decision of the Government dated April 7, 1998, bearing the heading “Conversion in Israel”:

We have decided (2 against) to approve the decision of the Ministerial Committee on Conversion in Israel no. NGR/1 of April 6, 1998 as follows:

a. Following decision no. 3610 of the Government of April 5. 1998, to adopt, with the Government’s approval, the attached recommendations of the Committee to Develop Ideas and Proposals in the Matter of Conversion in Israel, headed by Minister Yaakov Neeman (hereinafter: the Committee).

The Ministerial Committee takes a very positive view of the recommendations of the Committee, and believes that they present an appropriate solution for the problem of conversion.

The Ministerial Committee is further of the opinion that realization of the recommendations of the Committee will bring sectors of the nation closer together both in Israel and abroad.

The Minister of Finance will find in the State budget the resources necessary for the realization of the recommendations of the Committee, and will allocate this budget for the implementation of the proposed plan in these recommendations.

b. (1 absention) – To take note of the announcement of the Chairman of the Ministerial Committee that with the approval of the Prime Minister, the Chairman of the Ministerial Committee for Diaspora Affairs, Immigration and Absorption, and the Chairman of the Jewish Agency, the composition of the board of directors of the Institute for the Study of Judaism (in accordance with the second part of the Committee’s recommendations – Chap. 1, sec. 3(a)), will be as follows:

Prof. Benjamin Ish-Shalom – Chairman

Ms. Aya Dashevsky – Member

Mr. Avraham Duvdevani – Member

Dr. Amnon Shapira – Member

Prof. Chaim Shine - Member

Rabbi Michael Boyden – Member

Rabbi Reuven Hammer – Member

(the last two – from the Reform Movement and the Conservative Movement)

The Rabbinical Council is one thing, the Government is another, and indeed, the rabbinical tribunals were established.

13. We will cite, somewhat at length, our view (i.e., mine and that of Justice Sohlberg, who served as the Senior Assistant to the Attorney General and the advisor to the Committee in formulating its recommendations) of the Neeman Committee, not long after it had completed its task, in the aforementioned article (see Paths of Government and Law, pp. 210-214):

The deep internal struggle within the Jewish people changed, unintentionally, that which was secondary into that which was primary, and that which was primary into that which was secondary. In truth, regarding conversion in Israel at this time – it is not the struggle between the streams that is the main thing; the main thing is the serious problem of those many tens of thousands of immigrants from the Former Soviet Union – some set the number at two hundred thousand or higher – who immigrated to Israel under the Law of Return, but who are not Jewish according to halakhah, and they are therefore held back from fully integrating into Israeli society. It was not for nothing that the emphasis in the Neeman Committee was on conversion in Israel, as opposed to the emphasis on conversions abroad in the previous attempt.

What was required here, as well, was an attempt to leave aside those disputes of principle that will continue to echo around the world not to push too fast, and to allow each to hold on to his own worldview. Instead, to create a reasonable, consensual arrangement, that would allow for respectful mutual coexistence, with moderation, patience and common sense; to find a common interest that would be the basis for consensual patterns of action. This interest in the matter of conversion is apparently the need to help in the integration of tens of thousands of olim into Israeli society. Alongside this common interest, there is also the desire, common to most of those involved, to avoid widening the divisions within the Jewish people. It is no secret that the Reform and the Conservative streams aspire to improve their position in the Israeli reality, and to prevent the exclusivity of Orthodox Judaism. However, in this battle there are red lines, and apparently there is a joint desire not to cross them.

… from these points of view, as seen from the office of the Attorney General, we have tried to balance, to learn and to promote a reasonable, suitable solution.

In these circumstances, the view was widely held – and it still is widely held, despite all the obstacles – that people were prepared for that two-tiered solution proposed by the Neeman Committee, in order to strive for maximum unity of the Jewish people, out of mutual respect. It was appropriate to have a unified state conversion process, in accordance with Jewish law, which would be recognized by all of Israel, something which apparently could and should have been acceptable to all. The conversion track that was proposed by the Committee was designed to ensure, insofar as possible within the framework of the halakhah, maximum consideration of the constraints of the hour and of human distress.

A preparatory, basic stage is that of the Institute for the Study of Judaism, in which the students would study for conversion. The idea is that the institute for the study of Judaism will operate in different locations around the country, the emphasis being on places in which there are concentrations of immigrants, and it will provide a suitable response from the points of view of accessibility and of the curriculum needs of each person who wishes to convert. Not only is this a promise to the tens of thousands of immigrants, not only a preservation of the halakhic basis which has been the practice over the years in the pre-state Jewish community and in the State of Israel, but also a promise to the Reform and the Conservatives. The Institute is intended to serve the concept of cooperation among the streams and unity in the Jewish people. The directorship of the institute is intended to represent the Jewish population of Israel in all its variety and streams. Just as in the Neeman Committee, in which the members were, inter alia, representatives of the Movement for Progressive Judaism and the Masorti Movement, so too the directorship of the Institute.

The curriculum and the teaching staff were also supposed to be varied, to familiarize students with Judaism while stressing the uniqueness of the Jewish people and its Torah, and what unites the Jewish people in all its variety and its streams. And at the same time, the plan was designed to prepare the students, to teach them and to ready them – should they so wish – for the process of conversion before the special conversion tribunals that would be established by the Chief Rabbis of Israel, and of course, this would be clear to all those involved.

… How unfortunate it is that those “soft and appealing words” (as per Maimonides in Laws of Forbidden Sexual Unions) were not adopted by all. For ultimately – what was in the proposals? The dialogue stage – a joint institute for the study of Judaism, in which people of the different streams among the Jewish people would come together, all in order to prepare students for conversion in the knowledge that the conversion would be halakhic; and at the second stage, conversion in batei din that would be set up by the Chief Rabbinate, with an understanding of the severe human distress in this generation, and for the purpose of conducting halakhic conversions that would be valid for all intents and purposes, in the most reasonable way possible. One of the present authors, the Attorney General, wrote to the Chief Rabbis on the eve of the discussion of these recommendations in the Committee, that in his eyes, this was a historic agreement: “As a person who has dealt with these matters in the past on behalf of the Government of Israel, in an effort to achieve solutions which at this time have not come to fruition, the achievements of the Committee are indeed great in my view. This is a rare opportunity to achieve a substantive solution in a peaceable manner … for the problem that has accompanied us for forty years … I do not make light of the problems that the Chief Rabbinate is liable to identify, but it seems that the advantages of the proposal of the Committee far outweigh – to an infinite degree – the problems from the perspective of the Rabbinate – and there are, also, the problems from the perspectives of the Reform and the Conservative movements … It would indeed be unfortunate if it were to be rejected, for then, Heaven forbid, we should all be regarded as having the humility of Rabbi Zechariah ben Avkulas (TB Gittin 56a) – the talmudic figure whose surfeit of cautiousness born of humility led to disastrous results….

Far away from the spotlight, the Committee of Rabbi Druckman deliberated the issue of the conversion of minors. The recommendations of this Committee – just the tip of the iceberg – were accepted unanimously. The Committee internalized recognition of the need to deal with the major issues: finding a suitable solution for those minors and their families upon whom fate had not smiled, to distance them from battles of prestige and politics, and to lead to their optimal integration into Israeli society. Common sense prevailed. The Druckman Committee toiled and succeeded, as proven, apparently, in reality.

The Neeman Committee sat for two long months, holding many meetings and displaying great patience, endeavoring to hear and to understand everyone who was involved in the issue. This in itself was an achievement whose importance is not to be underestimated: a meeting around one table of Jews from completely different backgrounds, in order to find a basic common denominator. From time to time, proposals were made for “technical” solutions, such as attaching a special designation to converts in the Population Registry. We opposed most of them, whether due to the need to avoid reminding the convert (and even more so – those around him) of his past; or whether due to the fact that a technical solution defers the substantive problem somewhat, but it still exists in full force; and primarily due to the fact that as the deliberations of the Neeman Committee progressed, a feeling prevailed that people were becoming open to a substantive solution for which so many had yearned.

In the formulation of the agreements, as is the nature of things, there are things that are revealed and those that are concealed; some things could be said explicitly, and some only in vague terms or hinted at, if at all … it stands to reason that continuing dialogue and mutual respect would make possible suitable solutions for the questions that arose.

Valiant efforts were made in order to ensure that the institute, in the proposed format, would be launched, and that the opportunity would not slip away. We did not ignore the existence of questions of implementation for which no solution had been offered in the recommendations of the Committee. We did not make light of the problematics of the Chief Rabbinate and its misgivings, due to the fact that the institute in question would comprise representatives of the various streams of Judaism, even though we would have been happy had the decision of the Chief Rabbinical Council been formulated differently, and it should be recalled that many conversions that had been performed to date with the approval of the Chief Rabbinate were not based on pure halakhic observance on the part of the converts. We did not ignore the difficulty of the Conservatives and the Reform who were required to agree (even though this coincided with the establishment of a joint forum – the institute – which is a very significant innovation) to the continuation of the monopoly of the Chief Rabbinate in conducting the conversions. This, when at the same time the attempt to orchestrate a direct meeting between the representatives of the non-Orthodox streams and the Chief Rabbinate did not succeed. We were aware of the fact that this was not the perfect realization of a noble, elevated goal, but the beginning of the lower path which contained many potholes. And with all that we did not see – not then and not now – any other reasonable solution.

Insistence on the continuation of uniform, halakhic conversion with a clear trend towards understanding the needs of the time and its voice, on the responsibility of the Chief Rabbinate, respectful dialogue with the non-Orthodox movements in Israel by way of their integration in the joint institute, and all this based on a common interest to act for the sake of the wellbeing of the olim, in a way that is likely to be acceptable to all the different sectors and streams in the nation, including those that wish to challenge the hegemony of the Chief Rabbinate, is a fitting compromise. Each one according to its view and approach would be able to point out its achievements, alongside concessions with which it could live.

It is impossible to elaborate here all the efforts and attempts that were made – whether in order to bring about a comprehensive solution, or to solve concrete problems – in the dozens of cases that came before the courts. We wanted to obviate the need for legal discussions in order to help clear the air and allow for the processes recommended by the Neeman Committee to run their full course. Similarly, our hope was to reach a situation which would make legislation on this issue unnecessary … The goal was to try and reach informed consent to the solution of compromise, of common sense and goodwill, without us falling between the hammer of the Knesset and the anvil of the Court (the latter is not interested in adjudicating these matters, and would of course prefer for them to be solved within the political system).

At the time of this writing, puffing slowly uphill, breathing heavily, is the engine and with it several carriages, bearing the establishment of the joint institute for the study of Judaism and the establishment of the special rabbinical conversion tribunals. Not all the carriages were attached as anticipated. Some of them are destined to break off, or to stop at one station or another. The passengers, too, are not yet knocking on the doors of the train, even though it is proceeding slowly. There are those attempting to have it both ways, with only one foot on the train, waiting, anticipating, considering whether to jump on or not. And with all that, we hope that the train will roll on, and that in the end, the recognition that the proposed combined solution – which is a golden path at this time for dealing with the polarized views – will eventuate.

There may be more oscillations, protests and objections. Recourse will be made to the parliamentary and judicial arenas. Each party will try to chalk up another victory in one battle or another. But ultimately – so we believe – the possible reasonable path is for a solution of the type that was proposed, on the basis of a basic, common interest. Sometimes solutions arise based on lack of choice, after a crisis or serious friction. The push to seek solutions until now usually occurred in such circumstances. We would prefer that it not necessarily be circumstances such as those that lead to a solution, for it is obviously better that the solution be achieved calmly.

Why did we cite the above at length? Because what was said then is, in my opinion, applicable today as well, and in order to show that, with appropriate changes, it is not impossible, with goodwill, to achieve universal-Israeli harmony, so that all those who convert, belonging to all the sectors of the Jewish people, will be able to marry in Israel in the proper way, and conversion – the preparation for which will include an inter-denominational dialogue – will be acceptable to all, in the regular batei din of the Rabbinate.

Regrettably, the recommendations of the Neeman Committee, even though they were adopted by a government decision, did not achieve their overall purpose either. The Joint Institute for the Study of Judaism, which was established following the proposals, did eventually – possibly too late – receive the approval of the Chief Rabbinate, but the conclusions did not become law, and were left dangling between Heaven and Earth.

14. With respect to the position of the Rabbinate regarding the Institute, I will mention that following petitions to the High Court of Justice on the subject of conversion, and after much effort on the part of the Attorney General, a letter was sent to me by the two Chief Rabbis, Ashkenazi Chief Rabbi Israel Meir Lau and Sephardi Chief Rabbi Eliahu Bakshi-Doron, on Sept. 12, 2000, which stated:

Following the hearing before the Supreme Court on the subject of conversion, out of concern for the unity of the Jewish people, we believe that the following should be clarified:

The batei din dealing with matters of conversion that come under the Rabbinical Courts Administration accord decent treatment to every person who turns to them, child as well as adult, who wishes to shelter under the wings of the Divine Presence.

The batei din operate in accordance with the halakhic rule whereby the request of whosoever is not Jewish and who wishes to convert is examined on the substance of the matter, i.e., the person’s seriousness, his motives, his knowledge and his desire.

In this framework, the place of the studies of the person wishing to convert does not constitute a factor by virtue of which the batei din weigh their decisions on matters of conversion, and there is even no requirement for studies in an institute. The beth din does not disqualify any person wishing to enter its gates.

With respect to the Joint Institute for the Study of Judaism: its graduates who converted in the batei din after they were examined, are the very best proof, each one individually, that they were treated like every other convert (emphasis added – E.R.).

The halakhic principle that leads the batei din to consider every person seeking to convert irrespective of the place of studies will also lead the batei din in the future.

We will add as an aside that we have ruled that every person who undergoes conversion in the special conversion courts will receive a conversion certificate from the Director of the Rabbinical Courts, and the conversion has the same status as conversion conducted in the regional batei din.

This letter speaks for itself, and at the time I regarded it as being very important, for in it the Chief Rabbis endorsed not only conversion in the special courts, but also the Joint Institute for the Study of Judaism. However, no agreed arrangement with any statutory expression has been achieved, and this is the root of the problem.

15. Some eighteen years have passed since the Neeman Committee convened. It appears that there have been no dramatic “strategic” developments, that is, no new agreements and no new legislation, but the subject has not disappeared from the agenda, and it arises and dies down again both in the Government and in this Court, and my colleague the President has reviewed the case law. I will add that, as for myself, as Attorney General I insisted that conversion should be conducted in a governmental framework, and therefore the “Conversion Administration” (headed by Rabbi Israel Rosen, one of the main contributors on the subject) which was a quasi-public-private body even though it bore the name “governmental”, became a governmental system; see also the review of Rabbi Rosen, Fifteen Years of State Conversion From a Personal and Public Perspective, on the Tzomet Institute website,.

I will mention here that in the judgments of this Court, alongside their decisions on the cases before them, there is a consistent overtone calling upon the legislature to speak out, but unfortunately, it has not been heeded. Thus, for example, in Pessaro v. Minister of the Interior [2], President Barak stated (p. 746), in response to the words of Justice Tal (dissenting) on the need for public oversight of the act of conversion: “My colleague further notes that this result [that every private body will conduct conversions – E.R.] is unacceptable, for conversion is not only a private act but a public one. Indeed, my colleague’s considerations are worthy. It is, of course, in the hands of the Israeli legislature, to consider what requirements there should be for the purposes of the Law of Return and the Registry …”. And further on (p. 747): “Conversion for the purposes of the Law of Return is an act by virtue of which a person joins the Jewish people. It has public ramifications regarding Return and nationality … The concept ‘conversion’ is, first and foremost a religious concept, of which the secular legislature makes use.” Further on President Barak stated that, indeed, it was ruled that the Religious Community (Conversion) Ordinance does not apply to the Registry, but added (pp. 745-748): “We are not determining that which ‘is’ [the exact contents of the nature of conversion in Israel – E.R.]. As we mentioned, that which ‘is’ is liable to be determined explicitly and in detail by the legislature. At the same time, as long as the Knesset has not made its voice heard, there is no juridical lacuna. A solution to the problem of ‘what is’ is found in the Law of Return, which defines who is a Jew. Should the legislature add nothing to this, there will be no option but to seek a judicial decision on this matter according to the existing definitions.” As President Barak said in the majority opinion in Makrina v. Minister of the Interior [5], at p. 732, conversion in the Law of Return has two aspects: “From one aspect, it is entirely in the private domain, between man and his Maker. From the other aspect, conversion is of huge public significance.” That is why the distinction was made in that case (at p. 734, per President Barak), inasmuch as, unlike matters of registration, in which the level of oversight is “low” in that the issue is a statistical compilation, here we are dealing with the Law of Return, which grants “the convert the entry key to Israel and to acquire citizenship of Israel. The oversight in this framework must, naturally, be stricter, and the degree of evidence that is required must be higher. Hence the possibility that the same individual will be registered as a Jew in the Population Registry, but will not be able to register as a Jew for the purpose of the Law of Return” (p. 734); in Naamat v. Minister of the Interior [3], at p. 753, President Barak stated:

Let there be no mistake – I accept that conversion in Israel is not a private act. It has public ramifications. By virtue thereof a person joins the Jewish people. Following conversion it is possible to acquire Israeli citizenship. There is, therefore, a need for governmental regulation of the public aspects of conversion, beyond what is determined in the Population Registry Law, the purposes of which are limited and are statistical in nature … as in the case of Pessaro, so too in our case, state oversight of the public aspect of conversion – beyond the oversight of registration in the Registry – must be determined by the Knesset. As long as the Knesset has not stated its position, we return – in all that concerns registration in the Registry – to the authority of the Registrar.

President Barak’s judgments constitute a call that could not be more clear that the Knesset state its position. It has not done so.

16. Below is a short, non-comprehensive review of other developments. On Sept. 1, 2003, the Government adopted a decision entitled “Head of the Conversion System in Israel”, which stated as follows:

We decide (unanimously):

Following government decision no. 3613 of April 7, 1998, in which it was decided to adopt the recommendations of the Neeman Committee on the subject of conversion in Israel, and under which batei din for conversion were established, a person will be appointed to head the conversion system in Israel, from among the judges of the conversion tribunals.

The head of the conversion system in Israel will be appointed by the Chief Rabbi of Israel, who serves as the president of the Chief Rabbinical Court.

The head of the conversion system will be responsible, on behalf of the Chief Rabbis of Israel, inter alia, for the conversion system and the overall policy on the question of conversion in Israel.

The head of the conversion system will be authorized by the Minister for Religious Affairs to sign conversion certificates.

On July, 10, 2004, a decision was adopted, entitled “The Conversion System in Israel” as follows:

We decide (11 in favor; 2 against; 3 abstentions):

a. Following government decision no. 761 of Sept. 1, 2003, according to which the Chief Rabbi of Israel, President of the Chief Rabbinical Court, appointed the head of The Conversion System in Israel, and in accordance with sec. 31(d) of Basic Law: The Government:

To transfer the conversion tribunals unit from the Ministry of Justice to the Israel Conversion System in the Prime Minister’s Office.

In accordance with the request of the Chief Rabbi of Israel, President of the Chief Rabbinical Court, the place of the conversion tribunals unit in the Prime Minister’s Office will be examined and determined in coordination with the head of the Conversion System in Israel, the Director General of the Chief Rabbinate of Israel and the Cabinet Secretary.

b. Any power that was held by the Director of the Rabbinical Courts in accordance with government resolution no. 1705(8/GR) of 8.6.2000 will be granted to the head of the Conversion System.

c. To transfer from the Ministry of Justice to the Prime Minister’s Office the budgetary items that were allocated in its budget and/or that it used for the subject of the special conversion tribunals, as well as the personnel who dealt with this subject and the means and the resources they had at their disposal.

In the event of disagreement on the said subject – the Cabinet Secretary will decide.

d. Until the complete transfer of the budgets and the means as stated in sec. (c) above, the special conversion tribunals, with their staff and their judges, will continue to receive all the administrative services that they received to date from the Ministry of Justice, including through the Rabbinical Courts Administration, unless it should be decided otherwise in coordination between the Prime Minister’s Office and the Ministry of Justice.

e. The staff of the special conversion tribunals and the judges will remain in their present location, unless it should be decided otherwise by the Prime Minister’s Office.

f. This resolution amends sec. b(1)(a) of government decision no. 900 of Oct. 8, 2003.

17. In order not to overburden, I will not discuss the case law reviewed by my colleague. I will mention only that whenever a relevant judgment was handed down (such as Rodriguez-Tushbeim v. Minister of the Interior [4]), parliamentary debates ensued concerning the preparedness of the Ministry of the Interior for its implementation (see the survey of the Center for Research and Information of the Knesset, The Issue of Conversion in Israel, by N. Ben-Ami, 9 Tammuz 5767 (June, 25, 2007), which contains, inter alia, a description of the bodies that are involved in conversion – the Conversion System in the Prime Minister’s Office, the Conversion Department in the Ministry for Immigration and Absorption, the Department of Adult Education in the Ministry of Education, the Department of Human Resources and the Chief Army Chaplain, the Joint Institute for the Study of Judaism (described as “the central state body dealing with the preparation of potential converts, acting in the framework of the Jewish Agency), and private non-profit organizations (p. 9). The difficulties in the process of conversion were also described, as well as the fact that the number of those undergoing conversion had not risen significantly despite the partial implementation of the conclusions of the Neeman Committee and the establishment of the Conversion System in the Prime Minister’s Office. There was also a description of the work of the “Committee for the Examination of an Overall Organizational Structure and Pooling of Resources on the Subject of Conversion in Israel” (Halfon Committee), which was established in 2007, headed by the Director General of the Ministry for Immigrant Absorption, Erez Halfon, following the stagnation in the number of olim, and this Committee recommended the establishment of a supreme steering committee, a pooling of the conversion activities in one governmental support unit (the Conversion System), and expansion of the special conversion tribunals, as well as families to accompany every convert, and a central information system.

18. See also Procedural Rules and Applications for Conversion 5766-2006, published by the Chief Rabbi and the President of the Chief Rabbinical Court, the Sephardi Chief Rabbi, Rabbi S. Amar, Official Gazette 5766-2062, of Feb. 27, 2006, in which the location of the special conversion tribunals and their districts was established (five districts throughout the country, with two of them handling Ethiopian immigrants), a description of the pre-conversion procedures and the role of the representative of the beth din who, inter alia, conducts an interview with the candidates. It was determined that a foreign national (who is not a citizen or a permanent resident) will not be converted except in special circumstances, with the authorization of the Exceptions Committee, and there was discussion of questions of training rabbinical court judges, appointment of judges of the special tribunals (by a search committee according to the decision of the Government of 24 Kislev 5766 (Dec. 25, 2005)0, the proceedings in the tribunal (after examination of the preparation), deciding by unanimous decision, arrangements for ritual immersion and enforcement of the tribunal’s decision, as well as the possibility, in exceptional cases, of nullifying a conversion, and also issuing a certificate of conversion (on cases of nullification of conversion, see HCJ 5079/08 A. v. Rabbi Sherman (April 25, 2012); HCJ 5444/13 Erez v. Special Conversion Courts (2014); on this see Rabbi Shlomo Dichovsky, Retroactive Nullification of Conversion, in Rabbi Yaakov Dichovsky, (ed.), Lev Shome’a LeShlomo, vol. 1, 367 (5774) (Hebrew); A. Edrei, And Are we Not Responsible For Them? More on the Conversion Debate, 24 (5771) Akdamut 178 (Hebrew); Asher Maoz, Uncircumcised of Heart – Enough!, Haaretz May 5, 2008).

There has also been no let-up in the preoccupation with attempts to change the alignment of authority in order to allow town rabbis or a local council to conduct conversions in the framework of special tribunals; see government decision no. 2147 of Nov. 2, 2014 concerning “Local Conversions Panels” which was intended to enable the establishment of local conversion panels which would operate in accordance with Jewish law (a compromise proposal following the proposal of MK Elazar Stern, to which I will refer below). See also, e.g., the Israel Chief Rabbinate Law (Amendment – Authority in Matters of Conversion) Bill, 5775-2015 (Twentieth Knesset; it was preceded by an identical bill in the Eighteenth Knesset).

19. Much has been written on the attitude to the convert since the time of Hillel the Elder (TB Shabbat 31a) who, when a Gentile approached him and requested “Convert me on condition that you teach me the entire Torah while I stand on one foot”, said to him (unlike the sage, Shammai the Elder), “That which is hateful to you, do not do to your fellow – that is the entire Torah, the rest is commentary. Go and study.” See Rabbi Y.Y. Weinberg, On One Foot – The Attitudes of Hillel and Shammai to the Convert, Lifrakim (5763) 367 (Hebrew), who explains (p. 368) Hillel’s belief that after a person embarks on his path into to Judaism, “The love of the convert for his Jewish brethren will grow over time” (and see the comment of Rabbi A. A. Weingort, ibid.); see also Joshua Schoffman, And if a Stranger Sojourn with You in Your Land, You Shall Not Do Him Wrong, A. Hacohen and M. Wigoda (eds.), Parshat Hashavua 181, Leviticus (5775-2012) (Hebrew); Aviad Hacohen, “And You Shall Love the Stranger” – On Maimonides’ Attitude to the Convert and the “Other”, A. Hacohen and M. Wigoda (eds.), Parshat Hashavua 294 (Ekev 5767-2007), published also in his book Parshiot Umishpatim, Jewish Law in the Weekly Portion (2011) (Hebrew), 265; and Rabbi Dr. Benjamin Lau, “You Did Not Seek That which was Lost” – On the Conversion Decisions of Rabbi Uziel, Akdamut 21 (5768) 96 (Hebrew); see also A. Mintz & D. Stern (eds.), Conversion, Intermarriage and Jewish Identity, (R.S. Hirt, series editor) (2005); and inter alia the important article of Chaim I. Waxman, Giyur in the Context of National Identity, 151. See also the articles of Rabbi Eliahu Birenbaum, And Many from among the People of the Land Became Jews, Makor Rishon weekend edition, 21 Heshvan 5775 (Nov. 14, 2014), and Not a Jew, but Also Not a Gentile, ibid., 3 Adar I 5776 (Feb. 12, 2016).

I will add that Rabbi Haim Amsalem, in his monumental work Zera Israel (5770) 1 (Hebrew), distinguishes with respect to conversion between a person who has Jewish antecedents and a person who has no Jewish roots, and “if regarding the latter, the Torah said ‘And you shall love the stranger’, how infinitely much more so does this apply to those with Jewish antecedents who wish to return to the rock of their quarry, that they should be loved and brought close, and this commandment requires us to be lenient in respect of them as far as possible within the framework of the halakhah”, whereas in relation to Gentiles who do not have Jewish roots, according to him there is no need to be lenient, and each case should be decided on its merits and they must undergo the entire process (p.2).

20. In these contexts, see also Netanel Fisher, The Challenge of Conversion in Israel – An Analysis of Policy and Recommendations (Israel Democracy Institute, 2015) (Hebrew), which includes a comprehensive survey of the history of state conversion already from the seventies (although he does not discuss some of the matters described above). According to the author (p. 41):

The State of Israel is exceptional in the extent of its involvement in the process of conversion of its citizens. In Israel, there is unique regulation of the process of conversion, and the State has invested many resources in order to promote the conversion of its citizens Indeed, in the – relatively few – years in which the leaders of the State and the rabbinical establishment have been active in promoting conversion, the results were commensurate.

At the same time, however, the conversion system did not meet its goals, and only about 24,000 people (about 7% of the non-Jewish olim) converted to Judaism between 1996 and 2014, and about half of those who began the process did not complete it. The book claims that state conversion declined over the years for various reasons, and see, e.g., pp. 36-37; and see pp. 80-86 regarding the pragmatic approach adopted by the rabbinical establishment. According to the author (p. 113), “the governmental status of the conversion tribunals should be preserved, and therefore it is proposed to improve the existing system, through cooperation”. Various recommendations are also brought, including that “the judges [must] create an atmosphere that will admit additional identities as long as they do not contradict the Jewish halakhah. They must transmit to the person converting that his Israeli and Zionist identities are important, and that Russian or universal identity is not necessarily incompatible with Jewish-religious identity.” The author elucidates the various alternatives on the subject of conversion that were raised over the years (chap. 6, pp. 154ff.), and mentions the proposal of MK Stern to decentralize the conversion system (147-149).

I will now address what is possibly the author’s main point which – I admit – is also close to my heart, and that is “the recommended alternative: Orthodox, state, welcoming conversion” (Chap. 7, pp. 171ff.). As the author says:

Orthodox state conversion will solve the personal problems of identity of the non-Jewish group and will act as a bridge between the Jewish identity of its members and the Orthodox Jewish definitions that are accepted by the majority of sectors of society. From the point of view of regulation of personal status, too, state Orthodox conversion will grant Jewish status in relation to all that concerns matters of marriage, divorce and burial, the absence of which violates the basic civil rights of the non-Jewish group, and which private or non-Orthodox conversion cannot provide, even from the national point of view …” (p. 171).

The author subsequently demonstrates how this is possible also from rabbinical perspectives throughout the Diaspora (pp. 172-174). Here is his summary:

1. Over the course of the last centuries, the leading halakhic decisors would welcome those converting, and would convert them even if they knew with certainty that the converts did not intend to observe all the commandments of the Torah.

2. The considerations of those decisors – preserving the unity of the Jewish people and restoring the “seed of Israel” which was lost – are infinitely more apt in the Israeli reality of ingathering of the exiles and the return of the forsaken of Israel.

3. It appears that according to this halakhic position, as ruled by Chief Rabbi Unterman, on the basis of the words of the “Ahiezer” (Rabbi Haim Ozer Grodzinski, Vilna, 20th century), there is no need to “push the candidate into a corner” in relation to the level of his future observance of the commandments, and a “good faith” acceptance of the commandments is sufficient.

4. Whereas the sages of recent generations settled for a basic training towards conversion, today the process is much stricter. The demands made of the candidates are high, and they are required to undergo both educational and experiential preparation that continues for a whole year. These demands were not made of candidates for conversion in the past.

5. There is, therefore, a clear halakhic solution to the problem of conversion in our day: it is possible to adopt the lenient approach that was common in many communities, and to achieve higher rates of conversion.

21. This alternative is similar to the proposals from the eighties and the nineties that the author describes. However, the author does not proceed from a jurisprudential perspective, and as good as his proposals may be – and I think they are – without legislation I fear that they will not succeed, for it is the absence of legislation that brought us to this point. The conception that embraces friendly, “welcoming” Orthodox conversion leads to universal-Jewish harmony, and this is such an important thing. Let us be perfectly clear: no matter what this Court decides regarding the conversions of the non-Orthodox streams, with regard to marriage and divorce there will be fundamental difficulties that an appropriate statutory arrangement could prevent. Again – it would appear that there will be no avoiding the legal situation described by the President that will eventuate if there is no awakening in the direction of legislation, and nothing more need be said. Let me explain: why Orthodox conversion? Because the Israeli public includes a large proportion of ultra-Orthodox, Orthodox and traditional Jews, whose religious world is Orthodox, and as was once said by an Israel social scientist – a secular person – “The synagogue that I do not attend is Orthodox”, i.e., “the old synagogue”. Indeed, the Conservatives and the Reform, who are entitled to equal religious services from the state (see, e.g., Masorti Movement v. Be’er Sheva Religious Counci [l7]) are a small minority in Israel, but a significant majority in the Diaspora, particularly in the United States, and they too have a suitable place under the Israeli sky. Let us recall the poem of Nathan Alterman: “There will be No Cultural War” (The Seventh Column, vol. 2, (5732) 239-240 (Hebrew).

Despite all the declarations that

“This is the last straw…how long will we be silent?”

The new Jew can never forsake

his debt to the “old” Jew…

And still: It is not worth the price for the State, not worth the price

to insist upon a decision, whatever the cost,

with forces that have displayed their prowess

in overwhelming mighty kingdoms…

While there is yet time, let not the embers ignite,

for conflagration may follow.

And it seems to me that the Jewish People

have greater enemies than the Jewish People.

The words there were aimed at protecting Orthodoxy, but the pendulum swings in both directions. What is necessary, therefore, is a friendly approach to every candidate for conversion, one that is welcoming and understanding, an approach that is directed at the truth and the essence of conversion, its fundamental elements, and which does not discount reality. I am not saying that the special conversion tribunals do not operate in this manner; but for the sake of universal Jewish harmony, a statutory solution is essential.

22. In order to achieve a statutory solution such as this, various options available to the legislature should be considered: the approach of the Neeman Committee could be adopted; or that of Yedidia Stern, Seth Farber and Elad Kaplan, A Proposal for a State Conversion Law (June, 2014), which was taken up by MK Elazar Stern and MK Aliza Lavie in the Knesset; see also Ariel Finkelstein, Opinion on the Matter of the Conversion Bill, the “Golden Mean” project of the Institute for Zionist Strategies (June, 2014); Rabbi Nachum A. Rabinowitz, In Each and Every City, Makor Rishon weekend edition (April 25, 2014) 4. A more centralized course is possible, under the supervision of the Chief Rabbinate, or a decentralized one – it is not up to us to decide. The main thing is for a harmonious solution to be found, the outcome of which will be conversion that is recognized by all Jewry and which would prevent a situation of “each person with his own Torah”, with its implications, for example, for marriage and divorce.

23. I will not presume here to anticipate the outcome of future petitions. But I believe that the non-Orthodox communities, too, apparently have an interest in their conversions being accepted by all, including for the purpose of marriage and divorce. Hence the importance of a comprehensive state solution that will allow the flames to subside, out of a general-Israeli interest; “general-Israeli” means, in my view, recognition of the Israeli reality with its longstanding traditions on the one hand, and on the other hand, treatment of the entire Jewish people, including Diaspora Jewry, fearlessly, as part of the conversation. The dispute over the meaning of a Jewish and democratic state includes interpretation of “Jewish”, which involves searching for the golden mean and extending a mutual hand, in decency and tolerance, without dismissing beliefs, opinions and principles. I proposed to allow the said period to enable the government and the legislature to do their work. Although different, this is in the sense of the watchman to whom the prophet Ezekiel referred (33:7): “So thou, son of man, I have set thee a watchman unto the house of Israel …” And what will become of the love of Israel – all Israel? Has it not also been said, “Love you therefore the stranger; for you were strangers in the land of Egypt” (Deuteronomy 10:19). If any person wishes to convert, and is a genuine convert, Maimonides – and who is greater than he? –has already said (Laws of Forbidden Sexual Unions 14:1):

We ask him: “Why did you choose to convert? Don’t you know that in the present era, the Jews are afflicted, crushed, subjugated, strained, and that suffering comes upon them?” If he answers: “I know, and I am unworthy of joining,” [and as Rashi says in TB Yevamot 47a, s.v. “I am unworthy”: “and I am not fit to be party to their trouble, and would that I would merit doing so”] we accept him immediately.

Again, let us recall the surfeit of humility and piety of the Tanaitic sage in the accounts of the Destruction that were mentioned above, as well as the statement that is always apt: “When you seize a large amount you may not have seized anything” (TB Yoma 80a). I will conclude with what I wrote in the above-mentioned matter of A. v. Rabbi Sherman [19]:

“And if a stranger sojourn with you in your land” – so says the verse, “you shall not do him wrong’ (Leviticus 19:33). The Bible repeats the prohibition against oppressing the stranger dozens of times … Woe to the society, morally and normatively, that disparages the strangers who dwell among it (para. 26).

And further: “From a certain point of view, mutual respect [emphasis in the original – E.R.] is in my opinion the key term -- mutual respect among the different streams of contemporary Jewry; mutual respect between the tribunals that deal with conversion and those converting” (ibid., para. 50). It is precisely the seriousness and the importance of the subject of conversion that also emerge from the almost desperate cry of this Court over the years to the legislature that indicate the need for a harmonious, sensitive and Jewishly-comprehensive approach of the legislature and those around it, and common sense. I will conclude with a section from what Deputy President Silberg wrote in Shalit v. Minister of the Interior [1] (p. 500):

And I believe with perfect faith that if there should be mass aliyah from the Communist countries – aliyah which may determine the fate of the Jewish people for good or bad – there will be those sages who will employ their full authority, and will be halakhically lenient regarding the absorption of the far-flung Russian tribe into the people and into the land. The bonds of the halakhah have always united the people, but have not choked it [emphasis in the original – E.R.].

Justice Silberg did not live to see the day, but we have. We should collect this debt.

24. And a word as to the important opinion of my colleague Justice Hendel. I read with great interest the many apt examples that he brought from Jewish sources concerning “decentralized conversion”, which may also be called “privatization of conversion”. However, in my view – with all due respect and admiration – the nature of the State of Israel as a Jewish and democratic state, in which the subject of Judaism is relevant on two levels – the religious level (marriage and divorce according to Jewish law) and the civil level (the Law of Return and the Population Registry) must be emphasized. Hence the aspiration for universal state conversion, which will grant every convert full, unquestioned recognition, both for the purpose of Return and registration, and for the purpose of marriage. The moving words of my colleague towards the end of his opinion regarding the treatment of strangers highlight, in my eyes, the need for the convert to gain his rightful place in all the frameworks of the State of Israel.

25. In conclusion, I propose that the outcome in the opinion of the President be deferred for 18 months, for the purpose of statutory regulation of the subject of conversion, and for the good of all the converts from all aspects, and the sooner the better.

Justice N. Hendel

1. We will begin at the end: my conclusion is the same as that of my colleague President M. Naor, whereby the order nisi issued in HCJ 7625/06 should be rescinded, and the orders nisi issued in HCJ 1594/11 and in HCJ 1595/11 be made absolute, such that the Petitioners will be recognized as Jews for the purpose of the Law of Return, based on the conversions that they underwent in the ultra-Orthodox rabbinical tribunals in Israel that do not belong to the state conversion system. At the same time, my reasons relating to the last two petitions are different, and they will be presented below.

Section 1 of the Law of Return states that “Every Jew has the right to come to this country as an oleh,” and in sec. 4B it clarifies that “For the purposes of this Law, ‘Jew’ means a person who was born of a Jewish mother or has become converted to Judaism, and who is not a member of another religion.” The legislature therefore defined the term “Jew” as including, inter alia, a person who converted. At the same time, however, the expression “has become converted” was not defined. This time, we are dealing with the question of the status of conversions that were conducted upon Israeli soil by “private” Orthodox batei din that do not belong to the state conversion system. Of course, the petitions before us focus on the interpretation of the expression “has become converted” in the Law of Return, and they do not affect the validity of the Petitioners’ conversions in other areas. Nevertheless, I would not concur – certainly not fully – in the President’s determination that “[t]his is not a religious question, but rather a civil-public one.” Indeed, the Law of Return, which was described by President A. Barak as “the most fundamental of laws”, and which expresses better than any other law the historical uniqueness of the State of Israel (see HCJ 10226/08 Zevidovsky v. Minister of the Interior [21], para. 2 of my opinion) is not a religious law. However, as I remarked in relation to the expression “is not a member of another religion” in that same section, “an attempt to define the term ‘religion’ without referring to religion is bound to fail” (ibid., at para. 5). “Conversion”, too, constitutes a term that is religious at base, and no matter how much we may wish to refrain from deciding on an internal-religious question, the term is present in the background – and even at the center. Even according to the approach that refuses to adopt a “pure” halakhic interpretation in relation to every factual variation that arises, there is no doubt that an analysis of a concept that has clearly religious roots requires basic consideration of the halakhic position – if only due to the central role it has played in fashioning the institution of conversion (see and compare ibid., paras. 5-6).

This position does not stem from the unique characteristics of the State of Israel as a Jewish state, but rather from the very nature of the expression “has become converted” that appears in the Law, which from a linguistic, social and historical point of view bears religious significance. Certain support for this position can be found in the attitude of the courts in the United States to consumer legislation that sought to prevent kashrut fraud, and prohibited misrepresentation of food that was not kosher as kosher. Thus, for example, the Supreme Court of the State of New Jersey explained that the secular purpose of the legislation, i.e., protection of consumers who wish to buy particular food products, does not obscure its religious nature, for –

The laws of kashrut are intrinsically religious, whether they are ambiguous or not and whether they are disputed or not […] Here, the disputes that would arise under the kosher laws would call inescapably on the State to assume a religious role. The State itself invariably would be one of the disputants, seeking to impose and enforce its own interpretation of Orthodox Jewish doctrine (Ran-Dav’s County Kosher, Inc. v. State [23], 162-163).

In other words, enforcement of civil legislation requires an in-depth examination of religious kashrut arrangements. It is not possible to detach it from these arrangements, and to determine that the term “kashrut” will be given an independent, civil meaning (a similar position was presented in the Federal Court in the matter of Commack Self-Service Kosher Meats, Inc. v. Weiss [24]). Hence, anchoring a religious concept in a civil law does not create a divider between it and its religious roots. On the contrary, such a separation is likely to miss the original mark of the legislature. The distinction is fine, and one can point out differences between the example that was presented and the interpretation of sec. 4B confronting us. However, this would seem to emphasize the importance of recognition of the religious aspect of the term “has become converted” in the framework of the interpretative process.

Nevertheless, the feeling is that the issue of defining “has become converted” in the Law of Return in the State of Israel constitutes a heavier legal question, with a different load and nature – possibly due to the history of the Jewish people, the religion of Israel and the establishment of the State of Israel. As Justice Y. Turkel wondered in Rodriguez-Tushbeim v. Minister of the Interior [4]: “Ought the Court decide on the question of whether a particular Gentile has become a Jew? Ought it decide on the question of whether the internal process and the external process have taken place in regard to the person converting? Ought it decide on the question of who is authorized to conduct the conversion?” Therefore, he wrote, “If my opinion is heeded, we would wash our hands of this decision” and leave it for the legislature.

However, for all that this approach is good and wise, we cannot avoid making a decision, in my opinion. The petitions here have been pending for many years -- one of them, almost a decade -- and although this Court has repeatedly called upon the legislature to regulate the matter by statute, the Knesset is still delaying. Granting relief to the Petitioners, who are desperately waiting for recognition of the conversion they underwent, and to acquire status in the State of Israel, is within the authority of this Court, and not that of a religious court. At the end of the day, days, year, and decade – and even if we are still waiting for the legislature’s word, we are not at liberty to ignore the order of the Angel of the Law who whispers, “Go out and decide.”

2. In view of the above, and bearing in mind the weight that must be attributed to Jewish halakhah in interpreting sec. 4B of the Law of Return, we should turn our gaze for a moment from the concrete questions before us – who is a convert or who is the converter – and address, even if only briefly, the question of “what is conversion?” The position of Judaism on this question appears to be somewhat unique. One might have expected that a religion that claims to possess divine truth would aspire to convert all mortals. The Jewish approach, however, even in ancient times, was that every Gentile must indeed observe the seven universal Noahide laws, but he is not required to convert and to adopt the Jewish religion (TB Sanhedrin 56a; on the basis of observing these seven laws, a Noahide is entitled to be called “a righteous Gentile” and he has a share in the World to Come (Maimonides, Laws of Kings 8:11)). It is not for nothing that the issue of conversion does not appear in the Laws of Repentance, for a person’s decision to convert, even though he is not obliged to do so, is not perceived as being “repentance”. The Gentile is judged on his own deeds, and in order to fulfil his destiny in the eyes of the Lord he is not required to convert. As it has been said, “I call both Heaven and Earth as my witnesses to testify to the fact that the Holy Spirit rests upon a person in accordance with his virtuous deeds, whether Gentile or Jew, male or female, slave or maidservant” (Yalkut Shimoni, Judges 247, 42).

At the same time, Judaism did recognize the process of conversion. This might not be obvious due to another characteristic of Judaism: one could say that Judaism is not a religion in the normal sense of a community of faith, but is more similar to an extended family. This family grew and grew, and over the generations it became a people, with a history and a culture. Its beginning was in family, and its continuation in a nation. The Law of Return, too, recognizes the halakhic principle whereby Jewishness passes down from generation to generation, by way of the mother – as stated at the beginning of sec. 4B of the Law. This unique characteristic raises doubts as to the possibility of conversion: can a convert with non-Jewish origins “change” his family roots? Can he become an integral part of the history of the nation? Despite the complexity this involves, Judaism responded positively to these questions. An interesting treatment of this appears in Iggerot HaRambam [Letters of Maimonides] in his response to Obadiah the Proselyte, who asked whether he was permitted to recite the prayer “Who has chosen us … [because] You have given to our forefathers as a heritage … And You brought us out of the Land of Egypt ... He who performed miracles for our forefathers …” etc. – wording that relates to historical events to which the ancestors of the proselyte were not party. Maimonides’ answer is clear:

You may say all this in the prescribed order and not change it in the least. In the same way as every Jew by birth says his blessing and prayer, you, too, shall bless and pray alike, whether you are alone or pray in the congregation. …. Since you have come under the wings of the Divine presence and confessed the Lord, no difference exists between you and us… as it is said, “One ordinance shall be both for you of the congregation, and also for the stranger that sojourns with you (Maimonides, Responsa, 293).

This also finds expression in the Shulhan Arukh (Even Ha’ezer 129:20): “The convert writes [his name]: A. son of Abraham our Forefather.” The convert therefore belongs not only to the community of believers, but he integrates fully into Jewish history, both as a family member and as a member of the nation. Thus, the Gentile is not obliged to convert, but he may do so, and once he is recognized as a convert he becomes an integral part of the extended family and entitled to full equality.

Alongside the said theoretical aspect, it must be explained that according to the halakhah as well, the process of conversion is a legal process, the validity of which is contingent upon the execution of a particular procedure in the beth din. As stated in the Babylonian Talmud (TB Yevamot 47a): “R. Judah said, a convert who converted in court is a convert; in private – [he] is not a convert.”

Here we have it: the roots of the institution of conversion are planted in a bifurcated ideological and halakhic tradition of Jewish law, and at the same time, in a legal process that is subject to certain laws and does not stem only from the person’s subjective conception. Interpretation of the words “has become converted” in the Law of Return must give expression to all these elements, while scrupulously preserving the frameworks – including an understanding of our role as the Supreme Court and not as a religious tribunal.

3. To be more specific: the present issue is that of recognition, for the purposes of the Law of Return, of conversions that were conducted in Israel by ultra-Orthodox batei din that are not part of the state conversion system. According to the state, these conversions should not be recognized, for two reasons: first, because the conversion is conducted in Israel and not overseas, hence the Law of Return does not apply to the Petitioners and others like them; secondly, because the converting body is not part of the state conversion system, which must be granted exclusivity in the context of the Law of Return. I will address each of these arguments in turn.

In Rodriguez-Tushbeim v. Minister of the Interior [4] it was ruled that the Law of Return applies only to a non-Jewish person who came to Israel, and in the course of living here lawfully underwent a process of conversion overseas. The petitions before us give rise to a somewhat different issue, since the petitioners were not only living in Israel prior to their conversion, but they also underwent the conversion itself in Israel. At the same time, and as President Naor pointed out (para. 20), in Rodriguez-Tushbeim v. Minister of the Interior [4] the Court said:

…. we decide – as a matter of principle – that the Law of Return applies to a person who is not a Jew, who comes to Israel, and while he is lawfully in the country he undergoes a process of conversion (in Israel or outside of Israel) (para. 26 per President Barak).

Indeed, the conclusion regarding the application of the Law of Return to conversion that was conducted in Israel is not free of doubt. From the language of sec. 3(a) of the Law of Return, which states that “a Jew who has come to Israel and subsequent to his arrival has expressed his desire to settle in Israel may, while still in Israel, receive an oleh’s certificate,” it may apparently be concluded that a non-Jew who has come to Israel is not entitled to receive an oleh’s certificate – even if in the course of his stay he converted and applied to settle in Israel.

However, my view is that the Law of Return applies with full force to a non-Jew who underwent the process of conversion in Israel, for the following four reasons: first, the linguistic interpretation that is implied by sec. 3(a) is not definitive. It is entirely possible that the term “Jew” does not relate to the date of arrival in Israel but to the situation of the person seeking status at the time of submission of the application. Second, the judgment in Rodriguez-Tushbeim v. Minister of the Interior [4], which was handed down by an expanded bench, related to the application of the Law of Return to those converting who had been living in Israel prior to their conversion. In the decade that has elapsed since, the Law has not been changed, and as such I do not find grounds for the position of the state – which is in fact seeking to depart from the prevailing case law. Third, there is logic to the position whereby purposive interpretation supports the conclusion reached by this Court in the matter of Rodriguez-Tushbeim v. Minister of the Interior [4], for the main purpose of the Law of Return is to enable Jews, whether by birth or by virtue of conversion, to settle in Israel and to realize the vision of the Ingathering of the Exiles. This purpose teaches that decisive significance should not be attributed to the place in which the conversion was conducted, and that the main question is whether the person applying for status is a Jew. Fourth, since the Rodriguez-Tushbeim v. Minister of the Interior [4] decision says that a person who was living in Israel lawfully – and it is possible that also due to his stay in Israel, the decision to convert was made – is entitled to the status by virtue of the Law of Return if he converted abroad, then practical considerations support the Petitioners’ position. Making the entitlement dependent upon the conversion ceremony being conducted abroad will force the person converting to cut short his lawful stay in Israel. It is difficult to see the justification for creating such a “nuisance”. For these reasons, I am of the opinion that the first question should be answered in the affirmative, and that recognition should be granted to the application of the Law of Return to converts who converted in Israel while they were living here lawfully.

With this we conclude our deliberation of HCJ 7625/06. The Petitioner in that process was living in Israel unlawfully at the time that the conversion was conducted, and as such I can only concur in the position of President Naor (paras. 39-40 of her judgment) and rescind the order nisi that was issued in her matter. On the other hand, the Petitioners in HCJ 1594/11 and 1595/11 have overcome the first hurdle, and therefore we must consider the second question on the agenda, which focuses on the status of the process of conversion that the Petitioners underwent in batei din that do not belong to the state conversion system. In other words, we must look not at the geographical location of the conversion – Israel as opposed to abroad – but at the identity of the body conducting the conversion: a private body that does not belong to the state conversion system, and is not supervised by the state.

4. It would appear that even according to the state’s approach, according to which it has the fundamental authority to operate a state conversion system and to grant it exclusivity in the context of the Law of Return, the petitions should be granted. In other words, even according to the state, the conversions undergone by the Petitioners should be recognized for the purposes of the Law of Return. Why is this?

On April 7, 1998, the Israeli Government (decision no. 3613) decided to adopt the recommendations of the Committee to Develop Ideas and Proposals on the Matter of Conversions in Israel (hereinafter: Neeman Committee, or Committee) – a committee that was appointed in an attempt to appease the various streams of Judaism – Orthodox, Conservative and Reform – and to resolve the disagreements around the issue of conversion. On the one hand, the Neeman Committee considered the pressing need to make conversion possible and accessible for the tens of thousands of Israelis who are not recognized as Jews according to the halakhah, at a time when the conversion process was controlled by the rabbinical courts. On the other hand, the Committee was of the opinion that recognition of non-Orthodox conversions – which are in dispute and which are unacceptable to the Orthodox stream – would be detrimental to national unity. Upon completion of its task, the Neeman Committee recommended the establishment of “a uniform state conversion process – according to Jewish law – which would be recognized by all Israel”, through establishing a joint conversion system: an institute for the study of Judaism, in which there would be representation for all the streams, and special conversion tribunals that would be appointed for this purpose by the Chief Rabbis. The Committee stressed that “the intention” is not to be too strict in the conversion procedures, and to settle for acceptance of the main principles of religion and the primary commandments.

The recommendations of the Neeman Committee were adopted, as we have said, by the Government, which attributed great importance to encouraging the conversion of the non-Jewish olim, and was so enthusiastic in its support that “it sometimes seemed that the leaders of the state … were more interested in conversion than the religious establishment” (Netanel Fisher, The Challenge of Conversion in Israel: An Analysis of Policy and Recommendations, 78 (2015) (Hebrew) (hereinafter: The Challenge of Conversion); on the elements of this policy see ibid., at p. 21-27). Over the course of the years, additional decisions were made concerning the mode of operation and the degree of independence of the state conversion system. In 2003, it was decided that the Chief Rabbi of Israel would appoint the head of the system, who would sign the certificates of conversion and “would be in charge, on behalf of the Chief Rabbis of Israel, inter alia, of the conversion system and the overall policy regarding the subject of conversion in Israel” (decision 761 of Sept. 1, 2003). In 2008, it was decided that the conversion system would be defined as an adjacent unit of the Prime Minister’s Office, the special conversion tribunals were transferred to the responsibility of this system, and it was decided that it would be headed by a “halakhic authority” who would act “under the guidance of the Sephardic Chief Rabbi” (decision 3155 ofFeb. 14, 2008). The format for the activity of the special conversion tribunals was regulated by the Chief Rabbi through the Rules of Procedure in Applications for Conversion, 5766-2006. Inter alia, these Rules provided that the rabbinical court judges who would sit in these conversion tribunals would be appointed by a “search committee for candidates”, and that the Chief Rabbi would appoint a president for each panel, who was ordained as a religious court judge (Rules 10(2)-(3)).

In his opinion, my colleague Deputy President Rubinstein presents an excellent survey of the complicated, on-going attempt to reach accord on the subject of conversion. I will permit myself to say that in view of his part and his efforts in the framework of his former public functions, my colleague’s review is as enriching as it is moving. In any case, without delving into the depths of how events unfolded, suffice it to say that an analysis of the government decisions on the background of the Report of the Neeman Committee indicates that at the heart of the establishment of the State Conversion System lay the intention to grant a monopoly to conversion “according to Jewish law” – since such conversion is recognized by “all Israel” and is accepted by all the streams. The purpose of the system is, therefore, to subordinate conversion to the Chief Rabbinate, depositing control of this system in the hands of the Orthodox stream and negating recognition of conversions that are conducted by other Jewish streams, in accordance with their outlooks. This, alongside a certain “compensation” in the form of a joint institute for conversion, in which representation would be given to Conservative and Reform Jewry. From a review of the circumstances that led to the establishment of the State Conversion System, it can easily be seen that the claim of the state – which took center stage in the proceedings before us – concerning what was wrong with depositing the “house keys” in the hands of private elements – does not by any means present the whole picture, or even the main thrust of the considerations that underlay the decision. The catalyst for the government decision was not the choosing of an authorized body for the sake of “making order”, come what may, without taking a stand on the identity of that body. The “biography” of the system shows that its establishment did not put great emphasis, for example, on solving the “problem” of private Orthodox rabbinical tribunals that handle conversion. In fact, their activity, as such, did not constitute a real consideration in the recommendations of the Neeman Committee. The main “problem” that arose was the issue of non-Orthodox conversions, and for this reason the Rabbinate was given control over the state system, and the principle of conducting the conversions according to “Jewish law”, namely, Orthodox conversion, was adopted. This analysis of the conversion system and its purposes is highly significant – as I will elucidate below.

Before discussing the significance of this, I will mention that in the framework of the petitions before us, we are concerned only with the status of conversions that were conducted by “private” Orthodox rabbinical tribunals. Indeed, at a certain stage, the state sought to establish a connection between these petitions and the issue of recognition of non-Orthodox conversions that were conducted in Israel – an issue that was raised in the framework of a series of petitions that are still pending in this Court (HCJ 11013/05 Dahan v. Minister of Justice and others). However, the World Union for Progressive Judaism, the Movement for Progressive Judaism in Israel and the Masorti Movement in Israel (organizations that represent Reform and Conservative Judaism) claimed that these were “two totally different issues.” This emerges, according to them, from the separate contacts between the State and themselves in an attempt to regulate the status of non-Orthodox conversion, and this is appropriate bearing in mind their unique characteristics: whereas the Orthodox streams enjoy representation in the state system, which is subordinate to the Chief Rabbinate, the Reform and the Conservatives remain locked in a stalemate if recognition is not given to the conversions that their tribunals conduct. In the present proceedings, this position gained support in the decision of President D. Beinisch of April 12, 2011, which clarified that there is no justification for a stay of proceedings in the present case until the contacts between the state and the non-Orthodox communities have been exhausted, due to the substantive difference between the proceedings. From a procedural point of view, we decided to respect the position of the Reform and the Conservative Movements, to refrain from consolidating the petitions, and to separate the issues of recognition of non-governmental Orthodox conversion and adjudication of the status of non-Orthodox conversion. The turn of the petitions dealing with this latter issue will also come soon, but I believe that it is possible, and desirable, to decide on the present petitions without addressing the other issue.

An additional preliminary remark concerns the question of the basic authority of the Government to grant a monopoly to the State Conversion System. In this regard, the position of President A. Barak in Rodriguez-Tushbeim v. Minister of the Interior [4] is interesting: he says that due to the nature of the issue at hand – a preliminary arrangement with ramifications for human rights – section 32 of Basic Law: The Government cannot be considered a suitable source of authority for granting such a monopoly. Indeed, in the same breath, President Barak explained that it is possible that the provisions of the Law of Return themselves, as opposed to the residual authority in sec. 32, will lead to the conclusion that such authority indeed exists:

We accept that the Government is authorized, by virtue of its general (residual) authority under sec. 32 of Basic Law: The Government, to establish a conversion system similar to that which was established following the recommendations of the Neeman Committee. At the same time, the Government is not authorized by virtue of its general authority to determine that only conversion conducted within this framework will be recognized under the Law of Return. Recognition of conversion for the purpose of the Law of Return will be determined according to the interpretation of the Law of Return. The requirements of the Law of Return regarding conversion may possibly overlap the arrangements pertaining to the conversion system according to the Neeman Committee Report. Insofar as this overlap exists, it stems from the provisions of the Law of Return and from them alone (para. 30 of his opinion).

For this reason, I decided to elaborate and clarify that even if the Law of Return authorizes the Government to establish a state conversion system, as the state claims, this does not negate the status of the conversion of the Petitioners in HCJ 1594/11 and HCJ 1595/11. Clearly, it is possible to decide on these petitions and to grant them even on the assumptions presented in the state’s position, or at least some of them.

From the above it emerges that one of the main grounds for the establishment of a state conversion system is the desire to ensure that only conversions conducted according to Orthodox halakhah will be recognized. A big question, therefore, is why only the conversions of the tribunals belonging to the state system should be recognized as valid for the purpose of the Law of Return and not the conversions of other Orthodox batei din which rule according to Jewish law.

This question derives from the shortcomings in the state’s position. To clarify: the State Conversion System, as presented to us by the state, consists of three levels. The first is the granting of exclusivity to Orthodox conversion; the second is the establishment of special conversion tribunals; and the third is the non-recognition of the conversions conducted by other tribunals – whatever their commitment to halakhah and whatever their status may be. As we have said, for the purpose of deciding on this petition I am prepared to accept the two first levels. The focus of the examination, therefore, will be upon the third level – non-recognition of any Orthodox beth din that was not appointed by the Chief Rabbinate as part of the special conversion tribunals.

In my opinion, this third level, whose many shortcomings lie at the interface of the triad of authority, interpretation and reasonability, is unacceptable. As will be recalled, in Rodriguez-Tushbeim v. Minister of the Interior [4], this Court ruled that the Government is authorized to establish a state conversion system by virtue of its residual powers – in the absence of concrete statutory regulation of the status of the Chief Rabbinate and the religious courts in the area of conversion. However, in the same breath it was clearly stated that sec. 32 of Basic Law: The Government does not authorize the Government to decide that only conversions conducted in the special tribunals may confer status for the purpose of the Law of Return, in the absence of such authorization in the formulation of the Law:

Where there is a contradiction between the interpretation of the Law of Return and the arrangements for conversion under the Report of the Neeman Committee, the Law of Return prevails. The general (residual) power of the Government cannot contradict the provisions of the Law of Return or violate a human right […] therefore, as long as the Knesset has not had its lawful say on the matter, the problem of recognition of conversion for the purpose of the Law of Return must be resolved in the framework of the interpretation of the Law of Return (para. 30 per President A. Barak).

As stated, the need to prevent abuse of the arrangements under the Law of Return by means of fictitious conversions was recognized in the case law, and led to the ruling that conversions conducted before any three people, no matter what their halakhic status, are insufficient. Thus, counsel for the state argued repeatedly that the purpose underlying the withholding of recognition of the validity of private Orthodox conversions for the purpose of the Law of Return was legitimate. According to her, a situation in which any three Jews may serve as a conversion tribunal for the purpose of acquiring status by virtue of the Law of Return is unacceptable.

However, the choice is not between granting a monopoly to batei din that belong to the state conversion system and recognizing the conversions of any panel of three Jews. There is another possibility, one which is consistent with the relief sought in the present petitions: to recognize Orthodox batei din that are headed by rabbis and halakhic decisors whose standing in the community is unquestioned.

6. This intermediate possibility is strengthened in view of the existence of groups of rabbis whose status as rabbis complying with the halakhah has received a certain degree of state recognition. For example, why detract from the status of a municipal rabbi, or the heads of the hesder yeshivas [rabbinical seminaries in which the students combine Jewish studies and military service]? As for the first group, the State of Israel has an abundance of rabbis who serve in rabbinical positions on its behalf, and constitute, in fact, an integral part of the public service on the one hand, and of the rabbinical establishment on the other. These are, first and foremost, the rabbis of cities or towns, in whom the legislature has placed its trust and granted them sensitive powers. Local rabbis possess various religious-civil powers, such as issuing kashrut certificates (sec. 2(a)(2) of the Prohibition of Kashrut Fraud Law, 5743-1983), and registration of marriages – with all the sensitivities involved in regulating matters of personal status (sec. 2A of the Marriage and Divorce (Registration) Ordinance)). It is difficult to see why considerations of “making order” and protecting the integrity of Israel’s borders could justify the restrictive interpretation of sec. 4B of the Law of Return in a way that would except conversions conducted by recognized town rabbis.

Moreover, concern about abuse of conversion proceedings also diminishes in regard to conversions that are conducted by semi-official figures, such as heads of hesder yeshivas who rule on practical halakhic issues. Section 22A of the Defense Services Law [Consolidated Version] 5746-1986 anchors the status of the students of the hesder yeshivas – academies that comply with the criteria set by the Minister of Defense, which are included in a list drawn up by him, and that are granted the exclusive right to combine active military service with yeshiva studies. The process of individual recognition of these yeshivas, and its substantive ramifications for a substantive institution such as military service, grants their leaders, at the very least, a quasi-official status. Could it be said that they are trigger-happy when it comes to conversion? To these – town rabbis and heads of hesder yeshivas – must be added known ultra-Orthodox batei din. It is hard to take seriously the argument that these batei din, such as the batei din involved in this case, which are committed to the halakhah and to examining the purity of intention of the person converting, would not be trustworthy, and would cause Israel to be inundated with pretenders seeking to abuse the institution of conversion in order to acquire civil status.

In accordance with the decision in Rodriguez-Tushbeim v. Minister of the Interior [4], conversions that were conducted by rabbis who served in recognized Orthodox communities overseas, for example, in the United States, are recognized, and the converts are granted the right of Return. However, according to the state’s position, if those rabbis would immigrate to Israel, and would reestablish their batei din, in which conversions would be conducted according to the same practical and halakhic criteria according to Jewish law, the conversions they conducted would no longer be valid. Beyond the fact that such an outcome discriminates between those converting who presented themselves before a beth din overseas and those who did so in Israel, it reveals the lack of logic in the sweeping dismissal of “private” conversions that were conducted on Israeli soil – and shows that the considerations of sincerity and purity of intention cannot form its basis.

Even if there are real concerns about abuse of the conversion process, the state’s position is flawed and unconvincing. As I have said, I do not advocate an absence of oversight, and clearly the conversions of a beth din whose members do not have halakhic authority will not acquire status by virtue of the Law of Return. But even without discussing the setting of clear criteria for recognition of batei din – criteria that are not required in the framework of this petition – it is difficult to ignore the fact that the solution that the state has chosen is not proportionate. No basis has been laid before us for the concern that recognition of the conversions of serious Orthodox batei din in which the rabbinic judges are people of stature will lead to a breaching of the dams and to mass fictitious conversions of olim. In this context it will be noted that even if not every town rabbi or head of a hesder yeshiva, for example, is interested in dealing with conversions, most of the batei din that deal with this subject are experienced in it. I am referring mainly to Orthodox batei din that are committed to halakhah and that examine the conversion meticulously. In these circumstances, clearly there is no room for exclusive recognition of the special tribunals, while negating wholesale the status of every other conversion.

On the other hand, and as my colleague the President noted in her opinion (para. 36), it was not proven that the State Conversion System is immune to mistakes and abuse, particularly in view of the appointment and oversight mechanism of the special conversion tribunals, which are not part of the regular rabbinical court system. The status of the latter system is directly regulated by statute, with all the implications – including procedures for selecting the judges. As opposed to this, the conversion tribunals are designated tribunals, appointed by the Chief Rabbi for the sole purpose of conversion, and therefore there is significant doubt as to whether the factual investigations that they are able to conduct regarding the sincerity of the motives of the person converting are qualitatively superior to the investigations conducted by the Orthodox batei din that are not part of the conversion system.

We thus find that there is no purposive or linguistic anchor for a position that comprehensively dismisses the status of conversions that were conducted in private Orthodox batei din. On the contrary, from the point of view of the purpose of the Law of Return, it would appear that it is more correct to expand the possibilities of conversion, giving expression to the different halakhic approaches, and granting recognition to rabbis with different outlooks that fall within the Orthodox framework – at least with respect to the three groups I mentioned: rabbis with an official or semi-official status, such as town rabbis or heads of hesder yeshivas; ultra-Orthodox batei din that have stature in the Haredi community; and rabbis from established Jewish communities abroad who immigrated to Israel. Over-centralization, and granting an absolute monopoly to the Chief Rabbinate over the institution of conversion – a monopoly the practical significance of which is the adoption of a strict approach and the placing of obstacles in the path of Jews who wish to immigrate to Israel – are contrary to the central purpose of the Law of Return, which is to encourage aliyah. This being the case, the expression “has become converted” must be interpreted broadly, to include every Orthodox conversion process that was conducted in a beth din in which the rabbinical judges are people of standing. Indeed, this would not prevent the state from checking the sincerity of the motives of the person converting, and from deciding every case on its merits (see and compare HCJ 3994/12 Asphaho v. Minister of Justice [22], para. 6 of my opinion, in which my colleagues Justices E. Hayut and Z. Zylbertal concurred), but wholesale disqualification of conversions is contrary to the language and the purpose of the Law of Return.

I would incidentally note that the position of the state raises a difficulty in the area of reasonableness. No criteria were presented to us to explain why certain courts are recognized but not others. Make no mistake: the emphasis is not on recognition of the special conversion tribunals, but on the lack of justification for negating the status of the conversions of the batei din that do not belong to the conversion system. Consequently, even if I accept that recognition should be confined to batei din that belong to the Orthodox stream, and even if I agree that authority exists to set up special conversion tribunals, there is no basis for withholding similar recognition from the batei din that adhere to Jewish law and which have gained stature and recognition.

This result is inevitable not only in view of the specific purpose of the Law of Return, but also of its general, objective purpose, as derived from the basic principles of the system. It should come as no surprise if I say that in the halakhic world as well, there are substantive differences of opinion – certainly on the subject of conversion. Preferring a particular halakhic approach, while dismissing other approaches that exist in the halakhic-Orthodox arena, is not a defensible outcome in the present legal position. The state was not authorized to draw such distinctions. Moreover, doing so is incompatible with the values of the State of Israel as a Jewish and democratic state. Jewish, because the approach of halakhah over the centuries has supported pluralism in conversion proceedings, as will be explained, and democratic, due to the defect in preferring the positions of one Orthodox group over another, thus violating equality and harming those entitled to Return. This is not an expression of a position on whether this is correct in relation to non-Orthodox batei din to the same degree as in relation to non-governmental ultra-Orthodox batei din.

7. Before I explain why the establishment of a centralized conversion system is incompatible with the values of the State of Israel as a Jewish state, I will say that, of course, I am not here to decide upon an internal halakhic disagreement on matters of conversion. My purpose is to present, if only briefly, by means of various approaches, the complexity of the halakhic decisions on the subject. This, as well as supporting the reasons cited above, is in order to provide a basis for the conclusion that, in the present legal system, one cannot grant exclusivity to certain batei din – in the absence of the necessary legislative mechanism that would provide a basis for such a conclusion.

As I understand matters, the necessity of recognizing a wide array of batei din, which represent different halakhic approaches, is derived from the nature of the halakhic decisions on the laws of conversion. Even though there is consensus, albeit not absolute, with respect to the ideal conditions for accepting converts – circumcision (for a male), ritual immersion, acceptance of the yoke of the commandments and affiliation to the Jewish people – reality, as is its way, thwarts neat definitions. The question of conversion does not usually arise under laboratory conditions. Indeed, over the centuries and to the present day, different approaches have been presented, sometimes very distant from each other, with respect to accepting a convert under conditions that were not ideal. As Rabbi Ovadia Yosef pointed out when he was serving as the Sephardic Chief Rabbi of the State of Israel: “We always had disputes between the House of Shammai and the House of Hillel, the former strict and the latter lenient. This is the basis for the fact that in certain batei din there are strict rulings whereas in others they are lenient.” (Protocol of the Internal Affairs and Environment Committee, 8^th Knesset (Nov. 16, 1976) (hereinafter: the Internal Affairs Committee Protocol)).

Maimonides, in his halakhic work HaYad HaHazakah, discussed the conversion of the wives of King Solomon, which were carried out due to monarchical-political considerations, and not necessarily out of a desire to embrace Judaism. He explains: “One should not think that … Solomon King of Israel…. married gentile women who did not convert”, as implied by the literal reading of the Bible (I Kings 11:1-4). Indeed: “the court did not accept converts throughout the reign of … [and] Solomon … [they feared] that they were motivated by the sovereignty, prosperity and eminence which Israel enjoyed… Nevertheless there were many people who converted in the presence of ordinary people during the era of … Solomon” – and the courts did not reject the conversion after the immersion ceremony had already taken place (Laws of Forbidden Sexual Unions 13:14-16).

More generally, the Great Eagle [a sobriquet for Maimonides] stressed that the beth din asks the convert, “‘Why did you choose to convert? Don't you know that in the present era, the Jews are afflicted, crushed, subjugated, strained, and suffering comes upon them?’ If he answers: ‘I know. Would it be that I be able to be part of them,’ we accept him immediately.” (ibid., 14:1). The willingness of a Gentile to cast his lot with that of the Jewish people, when he has no ulterior motivation for converting, is sufficient. Maimonides also explains that the convert is informed of the “fundamentals of the faith, which are the unity of God and the prohibition against the worship of false deities. We elaborate on this matter.” It is interesting to note that the only precepts that Maimonides saw fit to specify in this context are precepts between man and his fellow – “gleanings of the field and the second tithe” – and in this, too, we learn of the nature of acceptance of the yoke of commandments required in the conversion process (ibid., 14:2). Rabbi Shimon Gershon Rosenberg, the head of the Siach Yitzhak Yeshiva, who passed away a decade ago, showed how Maimonides trod the middle ground between the ideal and the reality of his day:

From Maimonides one can learn about the ability to combine different dimensions of thought: recognition of the ideal but also understanding the practical, recognizing the goal and also understanding the reality and identifying that which is achievable – without giving up on the perpetual and active aspiration to move the reality on towards the vision. The halakhic outlook of Maimonides is conceptual, but not necessarily coherent and certainly not monolithic. Moreover, even though he molds the laws of conversion in light of his views, he leaves the last question – whether the convert will be integrated into the Jewish people by the beth din – unsolved; and in order to answer it the beth din must weigh considerations of time and place and not considerations of the ideal. We have seen that Maimonides preferred to be lenient in the laws of conversion in order to prevent mixed marriages and to preserve the integrity of the family – a weighty consideration in our day as well. However, even if this leniency is a necessity at the time, one must not forget the objective and the vision, which are the creation of the community at the center of which stands the will of God and the way of God – that very community that was established by our forefather Abraham, who as Maimonides emphasizes, was the father of all converts (Shimon Gershon Rosenberg-Shagar, Zot Briti: Conversion, Secularization, Civil Marriage 93 (5772-2912) (Hebrew) (hereinafter: Shagar.

In the spirit of the present time of the year,[1] let us discuss the conversion of the Persians in the account in the Book of Esther. In chap. 8 verse 17, it is written that after the victory, “[and] many from among the people of the land became Jews; for the fear of the Jews was fallen upon them.” Rashi explains the words “became Jews” – as “became converted”. And despite the problematic motive, Rabbi Shlomo Dichovsky, a judge in the Supreme Rabbinical Court and past Director of the Rabbinical Courts (Lev Shome’a leShlomo 1:23, Retroactive Nullification of Conversion, (Shafat: 2014) (Hebrew)) writes that it is hard to believe that “a beth din in our day would perform wholesale conversions of enemies of the Jews who became frightened of them”. Nevertheless, the conversions were not nullified.

More recently, in the 20th century, we have also seen decisions regarding conversion according to halakhic policy and the times, in at least the following two senses. One is the willingness to recognize conversion under conditions that are not ideal, in order to prevent more serious consequences as a result of not accepting the convert. The second is recognition of wider general phenomena as a basis for deciding on the validity of the conversion of an individual.

An example of the first sense is provided by the ruling of Rabbi David Zvi Hoffman, one of the great German decisors at the beginning of the 20th century. In his responsa (Responsa Melamed Leho’il, 2, 83) he discusses the situation of a Gentile who “married a Jewish woman under their laws … and she is already pregnant from him and it is very clear that she will marry him even if he does not convert.” Despite the difficulty, Rabbi Hoffman allowed the non-Jew to convert, inter alia, for the reason that the couple could have remained married according to the civil law only, so that the very willingness of the non-Jewish partner to convert and to gain religious recognition indicates that “there is a basis for saying that he is doing it for the sake of Heaven.” Another reason: “If we do not accept him, she will marry him in violation of a scriptural prohibition, for marriage of a Jewish woman to a non-Jew is a scriptural prohibition … And therefore it is better that we accept him rather than that she marry him in violation of the prohibition.” He also addresses the fact that the conversion of the non-Jewish partner is for the benefit of the couple’s children, and regards this as a relevant consideration. At the end of the discussion, Rabbi Hoffman proposes that in all that concerns observing the commandments, such as keeping the Sabbath and refraining from eating forbidden foods, “it is better for him to promise rather than take an oath.” In another responsum, Rabbi Hoffman addressed the issue of a kohen who married a non-Jewish woman in a civil ceremony, and who bore him a child, who was circumcised and then died. Now, “she has misgivings, and she wishes to convert and to marry the kohen in accordance with Jewish law.” The question noted that if her request is not granted, there is a concern that “she will become ill and go insane.” In his responsum, Rabbi Hoffman sketches the guidelines for deciding as follows: “One must investigate which is the greater prohibition – for a kohen to marry a convert or for him to marry a non-Jewess? It seems to me to be simple that the prohibition against marrying a non-Jewess is stricter.” Despite the prohibition against the marriage of a kohen and a convert, he converted the woman in order to avoid an even graver halakhic situation; “to repair the status of the kohen and that of his lineage, she is accepted” (ibid., Part 3, Even Ha’ezer and Hoshen Mishpat 8). In the two responsa, Rabbi Hoffman is careful to say that every effort must be made to ensure that the convert will be scrupulous in his observance of the commandments, but it emerges from the responsa that this is far from being a certainty. These responsa demonstrate the new complexity that faced the decisors of that generation in their efforts to be true to both the halakhah and the reality (see Arye Edrei, And are we not responsible for Them? More on the Conversion Debate, 24 Akdamut (5771) (Hebrew)).

As for the second sense, the effect of the general considerations and challenges that face the Jewish people on the institution of conversion, we will cite the following examples: Rabbi Ben-Zion Meir Hai Uziel, the first Sephardic Chief Rabbi of the State of Israel, while serving as the rabbi of Thessaloniki, was asked a question concerning “an Israelite who married a Gentile woman and lived with her for several years and she bore him children, and now the woman wishes to convert and to marry with huppah and kiddushin according to Jewish law.” Inter alia, Rabbi Uziel based his decision that it was possible to convert the woman on the fact that “this Gentile woman is already married to an Israelite, and in bringing her into the covenant of Judaism she will become much closer to the family of her husband and his religion, and moreover, the children who have been born to her and those who will be born from now on will be full Jews […] It is a mitzvah for them to bring them close and to include them in the Covenant of the Torah of Israel and to banish the blight of assimilation which is a malignant blight in the orchard of the House of Israel” (Responsa Mishpetei Ouziel 1, Yoreh Deah 14; emphasis added – N.H.). In other words, the need to fight assimilation led to an institutional change in the concept of conversion, and to an attempt to consolidate ranks even at the price of relaxing the formal requirements.

In a similar fashion, Rabbi Isser Yehuda Unterman – the Ashkenazic Chief Rabbi of the State of Israel 1964-1972 – in referring to the immigrants from the Soviet Union, said that “one must be lenient in this hour of need when it is absolutely impossible to prevent non-Jewish immigrants from assimilating into the People of Israel … those who require conversion must be dealt with according to the law of the Torah, with sensitivity and understanding, bearing in mind what these brothers of ours have undergone in their spiritual plight” (Isser Yehuda Unterman, Laws of Conversion and their Mode of Execution, Torah Shebe’al Peh 13, 15 (5735-1975) (Hebrew)). Here, too, the integration of the olim who were not recognized as being halakhically Jewish into Israeli society led to a change in the halakhic rulings and to recognition of the need to display “sensitivity and understanding,” making the dry criteria with which the converts must comply more flexible.

Thus the major decisors consciously adopted the changing reality in society and among the Jewish people as a basis for fashioning rulings contrary to what had been accepted previously. In the words of Rabbi Ovadia Yosef:

Despite all these reservations, there has been a change in our generations with respect to a person who comes to convert for marital reasons, and our sages are aware of the new development. In the past, every nation adhered to its own people; a non-Jew could not marry a Jewish woman and the converse; everyone preserved the tradition. Only in recent generations, in view of the development of democracy and individual freedom, can people act in this regard, and if they will not be able to marry according to Jewish law, they will anyway continue to live together as man and wife. When a person lives thus with a Gentile woman and she later presents herself for conversion, they are viewed thus: if only for marital purposes –in any case he is already living with her; hence the request to convert is for the sake of Heaven. This is therefore a good development.

The great sages of the Torah in recent generations have disagreed on this question. Some of the Ashkenazic rabbis are more strict on this matter […] As opposed to them, there are many rabbis who are lenient […] in fact, the majority of judges of the rabbinical courts today accept this change, and therefore, even when they know that the woman who has presented herself for conversion does so due to marital interests – she is accepted (Protocol Neeman Committee, p. 3).

There is no denying, therefore, that different approaches exist. In fact, there is a dispute over whether there is in fact any halakhic disagreement on the question of conversions, or rather, that the differences in approach are limited to investigating the practical aspects. Rabbi Bezalel Zolty, a judge in the Supreme Rabbinical Court of Appeals, and the Ashkenazic Chief Rabbi of Jerusalem until his death in 1982, argues that:

The problem of conversion in our times is not a halakhic problem. The laws of conversion are fixed and clear, there are no complicated halakhic problems in the acceptance of converts, and in any case, there is no cause for saying that there are rabbis who act like the House of Shammai and are strict in the laws of conversion, and there are rabbis who act like the House of Hillel and are lenient in the laws of conversion

The main problem in accepting converts, particularly in our time, is purely factual: to determine with certainty the true intention of the person who seeks to convert […] In this matter there are no clear rules […] and it is clear that in determining facts there is no room for strictures or leniencies, but rather the facts must be determined as they truly are (Bezalel Zolty, On the Laws of Accepting Converts, 13 Torah Shebe’al Peh 33 (5731-1971) (Hebrew)).

On the other hand, there are stricter approaches, such as that of Rabbi Abraham Sherman, a judge of the Supreme Rabbinical Court, who holds that:

All the conversions of the modern period in Israel and the world over, since the beginning of the period of the Enlightenment in which mixed marriages began and the need for conversion was created, are accompanied by interests, and it transpires that the vast majority of the converts did not accept the yoke of the commandments at the time of the act of conversion, and also did not observe the commandments after the conversion. The vast majority of conversions in the modern period and in Israel require investigation by an authorized beth din prior to the converts entering the community of Jews. They are not definitely Jewish. (For a discussion of his approach, see Etgar Hagiur, 90 (Hebrew); see also Avraham Haim Sherman, The Authority of the Sages of the Generation on Subjects of Conjugal Relations and Conversion, 30 Tehumin 163 (5770-2000) (Hebrew)).

The responsa cited are only a small sampling of the rulings over the generations. There were those who were lenient and those who were strict in accepting the convert. This was so from the time of the Talmud: see the different attitudes of Hillel and Shammai – one was tolerant and one was pedantic (TB Shabbat 30b-31a). The truth be told that the many approaches traverse many of the different issues. Thus, for example, Shagar writes (at p. 87):

In the sources we found a difference between the Land of Israel and countries abroad with respect to conversion. There is a solid argument for saying that only in the Land of Israel is it possible to convert, but there is also the opposite argument, that only abroad is it possible to convert, due to the concern that in Israel, people want to convert due to the “goodness of the Land of Israel” and not for the sake of Heaven. However, the considerations of Rabbi Unterman are different: outside of Israel the Jews constitute a minority in the midst of a non-Jewish society, whereas in the State of Israel they are the majority, and therefore only in Israel does the convert join Jewish society.

Regarding the changes over time, and sometimes in relation to that same phenomenon, it emerges from the survey that there were those who wished to make the conditions more lenient, those who wished to make them stricter, and even those decisors who held that one must not depart from the rules (see at length the article of Prof. Edrei (Arye Edrei, And are We not Responsible for Them? More on the Conversion Debate, 24 Akdamut (5771)); Shagar, pp. 15-93, and a collection of sources over the generations, as appears in Rabbi Haim Amsalem, Zera Yisrael, part. 2 (5770-2010)).

Therefore, in this context I do not wish to propose one model of halakhic ruling as being preferable to another. That is not my job. My objective is to disclose the variety and the disagreements on the issue of conversion – a variety that is not similar to that which exists in relation to other halakhic issues, such as kashrut. What I have written was intended to afford a glimpse of the array of rulings.

I believe that this information is significant when we set about interpreting sec. 4B of the Law of Return and deciding whether it is possible to grant the special conversion tribunals exclusive control of the process of conversion and the right of Return – while dismissing various Orthodox approaches that differ from the one adopted by the Chief Rabbinate. Against the backdrop of the approaches that were cited, it would certainly be incorrect to dismiss the approach of a particular halakhic decisor simply because it is lenient. Such dismissal ignores the complexity not only of the rabbi’s response, but also of the question that was put to him.

8. It appears that adoption of a broad approach, by recognizing the conversions of ultra-Orthodox batei din of stature, is also supported by halakhic rulings from the past and the present. In other words, the problem with preferring one particular halakhic approach is even greater in the area of conversion, in which many decisors stress the importance of the existence of a pluralistic system that is capable of embracing different approaches at the same time. In this matter let us look at the words of Rabbi Professor Nachum Rabinowitz, head of the Birkhat Moshe hesder yeshiva, who takes a grave view of the establishment of a centralized conversion system, and believes that this is “liable to uproot conversion”:

Clearly there is no room to enact a law or to fix a procedure whereby all the conversions must be subject to a single central halakhic authority. This was never the case in Israel, and such a determination is liable to put an end to conversion. If all the conversions are subject to the approach of a single halakhic authority, a situation is liable to arise whereby the door is barred to converts. On the contrary, over the generations every beth din was authorized to conduct conversions, and even in the days of the Sanhedrin, at the time of Hillel and Shammai, we find that Shammai rejected several potential converts whereas Hillel converted them, proving that there is room for differences between batei din in their approach to converts. It is precisely the variations among the batei din that allow for the acceptance of converts (Nachum Eliezer Rabinowitz, Mesillot Bel’vavam, 283 (2015) (Hebrew)).

In view of the need to accommodate the variety of halakhic approaches, on the one hand, while ensuring the sincerity and the proper conduct of conversion processes, on the other, Rabbi Rabinowitz proposed that the role of the local rabbis be expanded significantly. He writes:

Accordingly, the town rabbis should be permitted to handle conversions, as was the practice throughout the generations, and even to appoint the members of their beth din themselves. Moreover, town rabbis are close to the people of their towns, and know them better than the judges of the centralized batei din. In addition, they are able to create connections with the municipal frameworks in their localities, and it will be easier for them to establish cooperation with the schools, the youth movements and the residents in the various communities, and they will be able to encourage, monitor and advance the process of conversion of the young people (ibid., at p. 284).

Rabbi Ovadia Yosef, who objected to the establishment of special conversion tribunals – inter alia, due to the concern about the lack of an alternative in the event that these tribunals would adopt a strict conversion policy – wrote in a similar vein (Etgar Hagi’ur, 96) that “there were difficult cases … and I accepted them. But everything was done quietly. Even the Tablets of the Covenant that were given publicly, with thunder and lightning – were broken. Everything must be done in a private manner … For this reason, a national conversion tribunal will not only not help, but it is also liable to cause harm” (Protocol of the Internal Affairs Committee, at p. 8).

As I understand it, at the root of the various approaches lies the philosophical dispute that moves on the scale between “Converts are as harmful to Israel as a sore” (TB Yevamot 47b) and “Love you therefore the stranger” (Deuteronomy 10:19) – or, as Rabbi Ovadia Yosef pointed out, “The Bible definitely deems conversion as a positive act. Our rabbis took an affirmative view of it” (Protocol of the Internal Affairs Committee, p. 2). The decisor knows the intricacies of the halakhic requirements, but reality, as is its way, does not fit into neat categories. The reality of conditions that are not ideal is not something new. But the particular variations change. One cannot compare the questions that came before the decisor at the beginning of the twentieth century in Germany to the issues that arose in the United States in the middle of that century. In Israel, too, the issue of the new immigrants in the seventies was not similar, factually, to this issue in the nineties. So we see that the non-ideal reality is not new but it often assumes a different garb in accordance with the conditions of time and place. It seems that the exclusive situation that was created in the State of Israel in our times, following the immigration from the states of the Former Soviet Union, in which tens and possibly even hundreds of thousands of people who are not recognized as Jewish in accordance with the halakhah live among us, highlights the need to provide a platform for different halakhic approaches that advance a solution to the problem.

9. Hence, the substantive halakhic disputes in relation to the institution of conversion – as well as the importance of a variety of halakhic opinions in this area – lend support to the interpretative conclusion whereby, in the absence of explicit statutory entrenchment, the conduct of conversions for the purpose of the Law of Return should not be entrusted to a halakhic monopoly that represents one approach. In addition, the purposes of the Law of Return, alongside the basic principles of the State of Israel as a Jewish and democratic state, indicate that the different approaches that exist within the halakhic framework should be allowed to operate in parallel as a basis for granting the right of Return. In the absence of an explicit directive from the legislature, the state must refrain from taking a side in the dispute by recognizing a single, centralized body that dictates its halakhic conception to the whole conversion system. Just as the strict approach should not be dismissed, the state is not authorized to dismiss the lenient approach.

Indeed, there is a Chief Rabbinate in our state that is in charge of a variety of religious issues. It is not my intention to challenge its status. However, in the case before us, the Law of Return contains no specific authorization granting the Chief Rabbinate exclusive control over conversion proceedings – as exists in the present formulation of sec. 2 of the Prohibition Against Kashrut Fraud Law, 5743-1983, for example. As such, there is no avoiding an examination of the exclusive status of the State Conversion System by means of purposive interpretation of the expression “has become converted” in sec. 4B of the Law. On this plane, in view of the combination of its civil purposes – the Zionism of the Law of Return, Ingathering of the Exiles and bringing Jews and their family members to the Land of Israel – and its halakhic purposes, which show the importance of preserving halakhic breadth of opinion, I believe that interpretation that dismisses the status of conversions that were conducted in other serious Orthodox batei din is unacceptable, as explained above. We are not dealing with a clearly religious determination. The term “conversion” is, in my eyes, a religious term. But the interpretation is implemented in the framework of the Law of Return, which is not a religious law. In the absence of an explicit definition of the expression “has become converted,” I believe that limiting the list should be avoided, and that recognition should be granted, for the purpose of the Law of Return, to the Jewishness of Jews who underwent the process of conversion in recognized, appropriate batei din – each, in accordance with his halakhic outlook – without imposing one, single, halakhic conception.

To summarize, the conclusion I have reached stems from a combination of several factors. First, there is no explicit law granting the Government the authority to grant exclusivity to the State Conversion System – even if there is authority to establish such a system. Second, for the purpose of deciding upon the status of established, private, ultra-Orthodox batei din, in this petition it is possible to decide based on the assumption, which stems from the government decision, that only Orthodox conversion should be recognized. Third, given the complexity of the halakhic rulings on matters of conversion, with all its varied approaches, and the purpose of the Law of Return that was intended to encourage the aliyah of Jews – both those born as Jews, and those who converted – restrictive interpretation of the Law is not justified. The cumulative force of these reasons leads to the outcome that recognition should be granted to the status of conversions that were conducted in serious, respected Orthodox batei din, as explained.

10. And from the general to the specific. Above, I explained that in HCJ 7625/06, the petition should not be granted, since the Petitioner was living in Israel unlawfully at the time of the conversion. This is a relevant, appropriate consideration, consistent with the case law cited above, and for this reason the order nisi issued in her case should be rescinded (see paras. 39-40 per President Naor). As for the other Petitioners, for the reasons elucidated above, and in view of the established status of the batei din that conduct conversions in the ultra-Orthodox communities, I believe that their conversions should be recognized for the purpose of the Law of Return. Clearly, the two batei din whose conversions were at issue in the framework of these petitions do not constitute a closed list, and the status of conversions conducted by additional batei din that enjoy a similar status should be recognized.

Before concluding, I wish to clarify again that this judgment is handed down on the assumption that arises from the position of the state in accordance with the government decision that places Orthodox conversion at center stage. I am not expressing an opinion on the issue of Reform or Conservative conversions, which is not under discussion in this framework.

I will also add that bearing in mind that in the absence of action to amend the Law in the course of the decade that has elapsed since the question of “private” Orthodox conversions was brought before us, and with all due understanding for the position of my colleague Deputy President E. Rubinstein, I believe that there is no longer any justification for delaying the execution of this judgment. Of course, should the Knesset wish to amend the Law, it can do so. However, in the absence of an amendment, there is no choice but to decide the petitions on their merits.

11. A final point: the opinions in this case, as in the other cases dealing with the Law of Return and the status of conversion, are characterized by an abstract juridical analysis, dealing with public-constitutional issues that are of great importance, and involve the tension between religious law and civil law. But to complete the picture it should be made clear that, as is obvious to all my colleagues, we are dealing with personal status, and more precisely, with a personal matter. At issue are people’s deepest and most sensitive aspirations. The legal decision that we must make will affect the person’s self-perception, the most basic components of his identity, not to mention the practical question of where he will spend his life. Irrespective of the outcome, I will say that the matter of the Petitioners, and others in their situation, must be treated with utmost sensitivity. It is appropriate to mention in this context that the commandment to love the stranger, and the prohibition against harming him, appear in the Bible no less than 36 times – more than any other commandment, including the commandment to love God. In fact, Maimonides equated the commandments to love the stranger and to love God, and noted in his response to Obadiah the Proselyte that “with respect to the stranger we were commanded to show great love ... just as we were commanded to love His Name (Maimonides, Responsa, 369). We will once again mention the talmudic account (TB Shabbat 31a) of the non-Jew who asked Shammai, one of the great sages of Israel in the period of the “Pairs”, to teach him the entire Torah while he stood on one foot. The Talmud relates that Shammai shouted at him, and “pushed him away with the ruler in his hand”. His reaction is understandable. True, it was Shammai who instructed: “Receive every man with a pleasant countenance” (mAvot 1:15). Nevertheless, the demand to learn the whole Torah while standing on one foot relays a lack of seriousness and insincerity, and hence Shammai’s cold response. However, and despite this, when the Gentile presented himself before Hillel and threw down the same challenge, Hillel treated him seriously and with compassion, and responded that the Torah can be condensed into the negative aspect of the command to love one’s neighbor as oneself, i.e., what is hateful to you, do not do unto others. Beyond the message of the talmudic story in relation to flexibility and the broad view that are necessary in conversion proceedings, as I mentioned above (para. 6), it would seem that we can all learn from Hillel’s response – and more than that, from the approach that this response expresses – about the desirable treatment of a person who is not a convert but wishes to become one. It is not for nothing that the Talmud chose to end the story with the following words: “The humble manner of Hillel brought us under the wings of the Divine Presence” (ibid.).

12. And finally, for these reasons that I have explicated, I too concur in the outcome reached by my colleague President M. Naor (see para. 1 above).

Decided by majority opinion to rescind the order nisi issued in HCJ 7625/06 and to make the orders nisi in HCJ 1594/11 and HCJ 1595/11 absolute, in the sense that it is decided that the Petitioners are Jewish for the purpose of the Law of Return, as against the dissenting opinion of Deputy President A. Rubinstein, who was of the opinion that the date on which the orders enter into force should be deferred for 18 months, in order to allow for statutory regulation. There is no order for costs.

21 Adar 5776

March 31, 2016

[1] Translator’s note: The decision was handed down around the time of the Festival of Purim, when the Book of Esther is read.

Full opinion:

Rogachova v. Ministry of the Interior.pdf

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

http://elyon1.court.gov.il/files/06/250/076/c75/06076250.c75.pdf

Ornan v. Ministry of the Interior

Case/docket number:

CA 8573/08

Date Decided:

Wednesday, October 2, 2013

Decision Type:

Appellate

Topics:

Abstract:

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

The Appellants – Israeli citizens registered in the Population Registry as members of different nationalities (some registered as Jewish, and some as members of other nationalities: Arab, Druze, Buddhist, Burmese, etc.) – petitioned the Jerusalem District Court for a declaratory order stating that they are members of an Israeli nationality, in hopes that such a decision would serve as official document for modifying the nationality marker on their registration in the Population Registry. The District Court rejected the petition ruling that the petition was a de facto request that the Jerusalem District Court find that a new nationality, common to all its citizens and residents, was formed in the State of Israel – an “Israeli” nationality. This issue, the lower court found, was a national-social issue whose legal aspect is insignificant to its non-legal aspects. Therefore the lower court found held that this issue is not justiciable in the institutional sense (as opposed to the normative sense). Hence this appeal.

The Supreme Court (opinion by Justice Vogelman, with Justice Melcer and President Grunis, concurring) rejected the appeal for the following reasons:

Justice Vogelman discussed the theoretical complexity and institutional sensitivity of examining the existence of an “Israeli nationality,” which involves fundamental questions concerning the State of Israel and the Jewish people. These questions include the relationship between religious identity and national identity; the competing theoretical approaches to the idea of “nationality” and their application here; the connections between the State of Israel and Diaspora Jews; the relationships between different groups of citizens and their national identity. Indeed, this sensitivity warrants restraint in applying judicial discretion. The natural setting for these discussions is not within the walls of the court, but other spaces of public discourse and academic writing. This is what led the lower court to rely on the institutional justiciability doctrine.

That said, Justice Vogelman believes that the lower court’s position on institutional justiciability should not stand. Issues concerning the content of religion and nationality markers in the Population Registry (and specifically the question of “who is Jewish”?) have been brought before this Court even at its earliest days.

In CA 630/70 (“The Tamarin Decision”), which is an early incarnation of this matter, then President Agranat held, first, that in order to grant a declaratory order about one’s membership of a certain nationality, there must be objective evidence about the existence of that nationality. A subjective belief is insufficient for a legal determination that a certain nationality exists for purposes of registering a nationality marker in the Population Registry. Second, President Agranat held that there was no evidence that an “Israeli” nationality was formed in the State of Israel that is separate and distinct from the Jewish nationality.

Though this Court reiterated in the past that the Population Registry is not the appropriate space for determining sensitive matters of religion and nationality, and stated expressly that its rulings on this matters should not be considered a material determination of these questions on their merits. However, the notion that these are not justiciable matters remains that of the minority.

Relying on precedent regarding the technical nature of registration in the registry, the Court did not shy away from extending a helping hand to those who approach the Court, even when the matters involved “sensitive” issues of conversion, Jewish law, religious identity and national identity. More importantly, in the Tamarin Decision, this Court addressed on its merits a similar issue to the one at hand, and ruled that the existence of an “Israeli” nationality was not proven by objective criteria.

The Appellants argue that the Tamarin Decision has become obsolete. The primary target of their claims is the Tamarin Court’s finding that an “Israeli” nationality does not exist as separate and distinct from the Jewish nationality. The Appellants do not dispute that the first holding in Tamarin is yet applicable.

Though institutional consideration should not lead to a determination on an issue’s justiciability, they may have bearing on this Court’s willingness to again pronounce on the same issue. Therefore, if the Appellants are asking that we stray from the holdings in Tamarin, they must meet a significant burden that requires – sadly – presenting arguments that were not examined at the time by this Court and point to a clear need for change. These were not presented and so the Appellants have not met their burden to show that straying from the judicial findings of the Tamarin Decision are justified.

Additionally, Justice Vogelman believes that even without straying from the Tamarin Decision, existing law already provides the Appellant with the means to identify – to themselves and to the world – as Israelis vis-à-vis their Israeli citizenship, which would continue to be registered in the Population Registry, regardless of the nationality marker. This is possible through following the proper process for removing the registration in terms of the nationality marker, according to the Shik decision.

Justice Melcer joined in rejecting the institutional non-justiciability argument as it pertains to this case and in concluding that the Appellants did not meet their burden to show that straying from judicial findings from the Tamarin Decision are justified. However, he presents his approach on issues where he is not fully united with Justice Vogelman.

Among others, Justice Melcer finds that the Appellant failed to demonstrate that in the years since the Tamarin Decision an “Israeli nationality” has developed (factually or legally) in Israel, which – per their argument – includes members of different religions, or those without religion, or those who belong to different ethnic groups.

That said, Justice Melcer opposes Justice Vogelman’s suggestion that the Appellants may proceed to remove the nationality registration. First, as this is not requested by the Appellants in this proceeding, and second, because – as opposed to citizenship or religion, which may be renounced, or changed, and for which there normally is an institution or “ceremony” that facilitates or approves the renunciation or conversion – a nationality is generally very difficult to “renounce” (as a child cannot, in principle, renounce its parents.)

Additionally, Justice Melcer emphasizes that Justice Agranat’s conclusion in his monumental opinion in Tamarin that “the existence of an ‘Israeli nationality’ was not proven in the legal sense and the development of new ‘fractions’ of nationality should not be encouraged” still hold force.

President Grunis joins the conclusion that the Tamarin Decision applies on the matter at hand and that it has not become obsolete. Therefore, he does not see a need to pronounce on whether the District Court was correct in rejecting the Appellants’ petition based on lack of institutional justiciability. The President abstained from expressly addressing Justice Vogelman’s suggestion that the Appellants’ nationality marker in the Population Registration would be removed and remains blank – as the Appellants did not raise this option at all.

Voting Justices:

Vogelman, Uzi

Primary Author

majority opinion

Melcer, Hanan

Author

concurrence

Grunis, Asher

Author

concurrence

Full text of the opinion:

In the Supreme Court

Sitting As a Court of Civil Appeals

CA 8573/08

Before:

His Honor, President A. Grunis

His Honor, Justice H. Melcer

His Honor, Justice U. Vogelman

The Appellants:

1.Uzi Ornan

2.Uri Avneri

3.Itamar Even-Zohar

4.Joseph Agassi

5.Yehudit Buber Agassi

6.Shulamit Aloni

7.Alon Oleartchik

8.Yosef Barnea

9.Ibrahim Dwiri

10.Einav Hadar

11.Yuval Halperin

12.Chen Yehezkeli

13.Hubert Yu-Lon

14.Ofra Yeshua Lyth

15.Yehoshua Sobol

16.Yehoshua Porath

17.Rivka (Becky) Kook

18.Nili Kook

19.Adal Kaadan

20.Dan Tamir

21.Gideon Chapski

VS.

The Respondents:	1. Ministry of the Interior
	2. Attorney General

Appeal against the judgment of the District Court of Jerusalem (Judge N. Sohlberg) of July 5, 2008, in OM 6092/07

On behalf of the Appellants:

Adv. Yoela Har-Shefi, Adv. Yosef Ben Moshe

On behalf of the Respondents:

Adv. Ruth Gordin

[Israeli Supreme Court cases cited:

[1] CA 630/70 Tamrin v. State of Israel [1972] IsrSC 26(1) 197.

[2] HCJ 11286/03 Ornan v. Minister of the Interior (20.9.2004).

[3] HCJ 910/86 Ressler v. Ministry of Defense [1988] IsrSC 42(2) 441.

[4] HCJ 143/62 Funk-Schlesinger v. Minister of the Interior [1963] IsrSC 17(1) 225.

[5] HCJ 58/68 Shalit v. Minister of the Interior [1970] IsrSC 23(2) 477.

[6] HCJ 4/69 Ben Menashe v. Minister of the Interior [1970] IsrSC 24(1) 105.

[7] HCJ 147/80 Shtederman v. Minister of the Interior [1970] IsrSC 24(1) 766.

[8] HCJ 18/72 Shalit v. Minister of the Interior [1972] IsrSC 26(1) 334.

[9] CA 448/72 Shik v. Attorney General [1973] IsrSC 27(2) 3.

[10] CA 653/75 Shelah v. State of Israel [1977] 31(2) 421.

[11] HCJ 264/87 Shas Movement v. Population Registrar [1989] IsrSC 43(2) 723.

[12] HCJ Naamat v. Minister of the Interior [2002] IsrSC 56(2) 721.

[13] HCJ 6539/03 Goldman v. Ministry of the Interior [2004] IsrSC 59(3) 385.

[14] HCJ 769/02 Public Committee against Torture in Israel v. Government of Israel [2006] IsrSC 62(1) 507.

[15] HCJ 4481/91 Bargil v. Government of Israel [1993] IsrSC 47(4) 210.

[16] HCJ 3125/98 Iyad v. Commander of IDF Forces in Judea and Samaria [1999] IsrSC 45(1) 913.

[17] Temple Mount Faithful Organization v. Prime Minister [1993] IsrSC 47(1) 37.

[18] HCJ 4877/93 Victims of Arab Terror Organization v. State of Israel (12.9.1993).

[19] HCJ 7523/11 Almagor – Victims of Terror Organization v. Prime Minister (17.10.2011).

[20] HCJ 9549/09 Legal Forum for the Land of Israel v. Ministerial Committee for Matters of National Security (21.4.2010).

[21] HCJ 9056/00 Kleiner v. Chairman of the Knesset [2001] IsrSC 55(4) 703.

[22] HCJ 10104/04 Peace Now for Israel Educational Projects v. Commissioner for the Jewish Settlements in Judea and Samaria [2006] IsrSC 61(2) 93.

[23] LCA 1287/92 Bosqila v. Zemah [1992] IsrSC 46(5) 159.

[24] HCJ 754/83 Rankin v. Minister of the Interior [1984] IsrSC 38(4) 113.

[25] HCJ 466/07 MK Zehava Gal-On v. Attorney General (11.1.2012).

[26] EA 1/65 Yardur v. Knesset Elections Committee [1964] IsrSC 19 (3) 365.

[27] HCJ 9149/10 Dr. Vatad v. Israeli Knesset (13.5.2014).

District Court cases cited:

[28] F (Tel Aviv District) 907/70 Tamrin v. State of Israel [1970] PM 42 287.

[29] RM (Tel Aviv District) 25477-05/11 Kaniuk v. Minister of the Interior (27.9.2011)

[30] OM 6092/07 (Jerusalem) Ornan v. Minister of the Interior

International conventions cited:

Universal Declaration of Human Rights, 1948, art. 15

Israeli legislation cited:

Basic Law: Freedom of Occupation, and sec. 2

Basic Law: Human Dignity and Liberty, and sec. 1A

Basic Law: The Knesset, secs. 5, 7(a)(1)

Civil Union for Persons Having No Religious Affiliation Law, 5770-2010

Culture and Arts Law 5763-2002, sec. 2(c)

Law and Administration (Nullification of the Application of Law, Jurisdiction and Administration) Law, 5759-1999, sec. 6

Law of Return 5710-1950, and sec. 4B

Nazi and Nazi Collaborators Punishment Law, 5710-1950

Parties Law, 5752-1992, sec. 5(1)

Penal Law, 5737-1977, sec. 13(b)(2)

Population Registry Law 5725-1965, and secs. 3A, 19C , 2, 4, 5,

Ships Ordinance (Nationality and Flag), 5708-1948

Shipping (Vessels) Law, 5720-1960

Special Cultural Educational Institutions Law, 5768-2008, sec. 2(b)

State Education Law, 5713-1953, sec. 2b

Terminally Ill Patient Law, 5768-2008, sec. 1(b)

JUDGMENT

Justice U. Vogelman

The appellants filed a motion in the Jerusalem District Court for a declaratory judgment that they are of Israeli nationality. This motion was filed in order to serve as a public document for the purpose of officially changing the “nationality[1]” item in their entries on the population registry. The District Court (per Judge N. Sohlberg) denied the motion, determining that this was an issue that was non-justiciable at the institutional level, hence the appeal before us.

1. The appellants are all Israeli citizens. They are registered as having different nationalities in the population registry – most are registered as Jewish, and some as other nationalities: Arab, Druze, Buddhist, Burmese and other. Appellant no. 1, Prof. Uzi Ornan (hereinafter: Ornan), is registered in the population registry as “Hebrew”, based on his declaration. More than a decade ago, Ornan set up the “I Am An Israeli” non-profit organization, whose members signed a petition according to which they belong to the Israeli nation. In 2000, Ornan asked the Ministry of Interior to register him, under the “nationality” item in the population registry, as “Israeli”. His request was denied on the basis of case law established forty years earlier in CA 630/70 Tamrin v. State of Israel [1972] IsrSC 26(1) 197 (hereinafter: Tamrin Case), to be elucidated below. Late in 2003, Ornan began a legal battle to change the entry for “nationality” in his case. First, he submitted a petition to this Court, together with other petitioners, but they withdrew their petition in 2004 following the Court’s recommendation that they approach the correct forum in order to obtain a public document attesting to their Israeli nationality, in accordance with the requirement of sec. 19C of the Population Registry Law 5725-1965 (hereinafter: Population Registry Law) (HCJ 11286/03 Ornan v. Minister of the Interior (20.9.2004)). More than two years later, the petitioners filed a new petition in the District Court of Jerusalem, sitting as a Court for Administrative Affairs, but the petition was transferred, with consent, to the procedural framework of a civil suit, since it involved a request for declaratory relief.

The Judgment of the District Court

2. The Jerusalem District Court (per Judge N. Sohlberg) dismissed the action for declaratory relief, after determining that the matter is not institutionally justiciable. The previous court conducted an extensive, thorough examination of the issue of justiciability, in accordance with the common approach in our system that distinguishes between two principal aspects of the issue: normative justiciability and institutional justiciability. After laying the said foundations, the court applied the criterion adopted in the framework of HCJ 910/86 Ressler v. Ministry of Defense [1988] IsrSC 42(2) 441 (hereinafter: Ressler Case) as the test guiding the discretion of the court when called upon to decide this question - the criterion of the dominant nature of the subject under discussion. Accordingly, the District Court held that the dominant nature of the requested declaration was public, ideological, social, historical and political – but not legal. In the court’s view, the appellants request cannot be viewed as a technical-administrative matter concerned only with registration in the population registry; rather, it is – in actual fact – a request that the District Court of Jerusalem determine that in the State of Israel, a new nationality has developed, common to all residents and citizens, the “Israeli” nationality. This issue, said the District Court, is a political-national-social question, the legal aspect of which is secondary to the meta-legal main subject. The District Court emphasized that the matter is justiciable from a normative point of view, but it is not justiciable from the institutional point of view, for a determination concerning the existence of an Israeli nationality has far-reaching, momentous ramifications for the image, the nature and the future of the State. This determination is not the type of matter in which the court has a relative advantage over others, and it is not the court’s place to make such a determination. The District Court emphasized that we are in fact dealing with the creation of a new status, “a type of legislative act”. It further pointed out that the platform proposed by the appellants as the basis for the recognition of an Israeli nationality – the population registry – is not suited for that purpose, for the technical-statistical registration in the registry cannot constitute an alternative to deliberation on the part of the legislative and executive authorities and to public discourse, which are the suitable arenas to promote their ideas. The conclusion of the District Court was that “from the point of view of statute and the law, there is no Israeli nationality, and this Court must not create such a creature ex nihilo; legislating rather than adjudicating.” The lower court nevertheless stressed that its judgment was not a determination that an “Israeli nationality” did not exist in a person’s heart and in his personal belief, but pointed out that this belief –worthy of appreciation and respect – does not require legal validation or approval.

The Appellants’ Arguments

3. According to the appellants, the lower court erred in determining that the dominant nature of the request was not legal, and therefore not institutionally justiciable. They argue that the determination of the issue carries practical implications for the daily life of the individual, in both the domestic legal aspect and the international legal aspect, and the court may not, therefore, refrain from deciding on the matter. According to the appellants’ line of argument, the entire citizenry of the state constitutes the nationality that composes the state; therefore, negation of the existence of an Israeli nationality is equal to the denial of the existence of the State of Israel as a sovereign, democratic state. According to the appellants, with the declaration and the establishment of the State of Israel, the Israeli nation, which does not include Diaspora Jewry, was created, and thus the court’s determination that “from the point of view of statute and the law, there is no Israeli nationality” is mistaken. In support of their position, the appellants refer to the Declaration of Independence, from which it transpires – so they argue – that Diaspora Jewry is not a part of the nation that arose in Israel with the establishment of the State, comprised of “the independent Hebrew people in its land” and “members of the Arab people who reside in the State of Israel.” To support their arguments, the appellants also refer to legislation from the early days of the State, which uses the word “nationality”, and from which one can learn that an Israeli nationality exists: thus, for example, in 1948 the Ships Ordinance (Nationality and Flag), 5708-1948 was enacted, and it specified that in the case of a ship registered in the State of Israel, “its nationality is that of the State of Israel”; and subsequently, the Shipping (Vessels) Law, 5720-1960, which replaced the Shipping Ordinance, stated that “the nationality of a vessel registered under this Law is Israeli.” The appellants further point to the fact that in the Israeli passport, the term “nationality” appears, and underneath it appears the word “Israeli”. According to the appellants, “nationality” is not a religious or ethnic nationality, but “a nationality of the state in its legal sense”, the right to belong to which was entrenched in art. 15 of the Universal Declaration of Human Rights, adopted in 1948 by the General Assembly of the United Nations.

In addition, the appellants make two further points. First, they argue that the list of nationalities presented by the Ministry of the Interior, which includes 137 different nationalities, does not constitute a binding legal source in any respect, for it has no statutory basis, and it is not at all clear who was authorized to compile this list. Secondly, it was argued that the fact that the “nationality” item has been removed from the identity card cannot change the situation, for even if the registration is for the purpose of collecting statistics, the information about the declarants’ Israeli nationality ought to be available to the Ministry of the Interior. In this aspect, the appellants emphasized that underlying their request is the assumption that recognition of an Israeli nationality would be a substantive expression of the principle of equal and full citizenship that was entrenched in the Declaration of Independence, for the present situation creates a distinction between nationalities on an ethnic-religious basis.

Subsequently, after the hearing on the appeal and following the comments of the panel of justices, the appellants asked to submit short complementary pleadings relating to two aspects. The first was with regard to the substance of registration in the population registry, in view of the fact that under the common law, it constitutes a statistical-registrational tool of limited significance. According to the appellants, this legal reality does not present a full picture of the implications of the registration, as they claim that the current registration, which relies on the ethnic-religious component, might be determined, at a future date, to be a violation of the equality between groups of Israeli citizens who are of different ethnic origins. According to the appellants, this situation, whereby Israeli citizens are coercively tagged with a nationality with which they do not identify, is justification for the court to entertain the matter and to grant their request. In reference to another aspect, the appellants asserted that every citizen should retain free choice as to registration of the nationality in which he is interested.

Arguments of the Respondents

4. Respondents nos. 1-2, the Ministry of the Interior and the Attorney General (hereinafter: the respondents), ask that the appeal be denied. In their view, the lower court was correct in holding that the matter is not justiciable as it has dominant social, national and public aspects, which have significant and far-reaching ramifications for the image and the character of the society and the State. In a complementary pleading filed on October 29, 2012 the respondents referred to the writings of various thinkers, from the 19th century to present day, regarding the profound dispute on the question of whether Judaism is a separate nationality from the nationality of the state of citizenship (“a Jew with German citizenship” as opposed to “a German of the Mosaic faith”). The respondents argue that this question must be resolved in the appropriate arenas – in the framework of academic and public discourse – and the Court would do well to stay away from this discussion. The respondents reviewed many other cases in which the Court decided not to entertain a particular issue, relying on the principle of separation of powers and the concern that the public’s trust in the judiciary would be damaged, and they sought to draw an analogy from those cases to the circumstances of the present case.

According to the respondents, the judgment does not contain determinations on the merits of the matter, and is therefore seemingly sufficient to accept the argument of lack of institutional justiciability in order to deny the appeal. At the same time, the respondents add that the appeal ought to also be denied on the grounds that the appellants did not meet the burden of proof they bore as those who seek declaratory relief, which requires them to show the existence of an “Israeli nationality”. In arguing on the merits, the respondents emphasized that they believe that it is the Israeli citizenship that constitutes the expression of the common self-determination of the residents of Israel, and it is the citizenship that unifies the array of nationalities that have come together in the State of Israel. According to them, the argument of the appellants that an Israeli nationality was created upon the establishment of the State must be dismissed, in view of the fact that the separate classification of the different groups of the Israeli population as belonging to different nationalities existed prior to the establishment of the State and remained thereafter. It was also emphasized that the information concerning nationality appears only in the population registry, which is a statistical database, and it does not even constitute prima facie evidence of its accuracy. The respondents therefore argued that in practice, the appellants’ request has no real import, and it is wholly a product of the symbolism that they attach to it. As such, so it is argued, the appellants have not shown that granting declaratory relief is justified in this matter.

Following the retirement of President D. Beinisch, who presided over the panel that heard the arguments of the parties, President A. Grunis assumed her place. Later, complementary written pleadings were filed, and now the time has come to rule.

Deliberation

Population Registry Law

5. Let us begin by presenting the normative framework for our deliberations – the Population Registry Law and the acts performed pursuant to it. The Population Registry Law regulates the operation of the population registry, in which the details of Israeli residents are registered. The details that must be registered for each resident are enumerated in sec. 2 of the Law:

(1) Family name, first name and former names;

(2) Parents’ names;

(3) Date and place of birth;

(4) Sex;

(5) Nationality;

(6) Religion;

(7) Personal status (single, married, divorced or
widowed);

(8) Name of Spouse;

(9) Names, dates of birth, and sex of children;

(10) Past and present citizenship or citizenships;

(11) Address;

(11A) Postal Address […];

(12) Date of entry into Israel;

(13) Date of becoming a resident […].

The registration officers appointed by the Minister of the Interior are responsible for the administration of the registry (sec. 4 of the Law). The resident has a duty to notify the registration officer of his details and the details of minor children in his charge (sec. 5 of the Law), as well as of any change in them (sec. 17 of the Law). In addition, the Law contains particular provisions regarding the duty of notification in relation to birth, adoption, death, leaving the country (secs. 6-14 of the Law), and regarding the updating of certain details at the instigation of the relevant authority or the court (secs. 15-16 of the Law). The powers of the registration officer are specified in chap. 3 of the Law (secs. 19-23 of the Law). Section 3 of the Law states that registration in the registry shall be “prima facie evidence of the correctness of the details of registration referred to in items (1) to (4) and (9) to (13) of section 2.” The details of registration dealing with nationality (5), religion (6) and personal status (7) – (8), do not have probative weight, and as such – as we will see below – they have been interpreted in the case law as constituting purely “statistical” data.

6. Section 19B of the Law is concerned with the registration of a resident who is registering for the first time (“initial registration”), which will be done on the basis of a public document or on the basis of the declaration of the resident or his custodian. The registration officer is authorized to demand that the person making the notification furnish him with any information or document in his possession that is relevant to the details of registration, and to make a written or an oral declaration as to the truth of the information or the document (sec. 19 of the Law). If the registration officer has reasonable grounds to assume that the notification is not correct, he is authorized to refuse to register that detail (sec. 19B(2) of the Law). Section 19C of the Law – which is the relevant section in our case – deals with a change in a registration detail of a resident (“registration of changes”), which will be done, in general, on the notification of the resident accompanied by a public document attesting to the change. In other words, whereas for the purpose of initial registration the registration clerk may be satisfied solely with a notification of the resident or his custodian, in order to change the existing registration of a detail in the registry, presentation of a public certificate is required. As an aside, it will be noted that an address may be changed on the basis of notification by the resident alone, without a public document being required. The Law authorizes (under certain conditions) the Chief Registration Officer to register a resident who is not registered, or to amend a detail of registration in relation to a resident, insofar as the existing registration is deficient or contradicts another registration or a public document (sec. 19E).

Case Law on the Substance of the Detail “Nationality”

7. As mentioned above, questions of religion and nationality – and especially the question of “who is a Jew?” were raised in this Court early on, in the framework of discussion of the Population Registry Law and the exercise of authority thereunder. The case law consistently accorded an extremely narrow interpretation to the authority of the registration officer and the discretion granted to him in relation to registration of the details of nationality, religion and personal status. This case law began with HCJ 143/62 Funk-Schlesinger v. Minister of the Interior [1963] IsrSC 17(1) 225 (hereinafter: Funk-Schlesinger Case), in which it was ruled that “the function of the registration officer […] is only that of a collector of statistical data for the purpose of conducting the residents’ registry, and he was given no judicial power at all” (at p. 244). As we will see below, the holding that this is a statistical registration, and that exercise of power under the Population Registry Law is technical and not substantive, allowed the Court to afford relief to those turning to it without having to issue iron-clad rulings on the sensitive and complicated questions of “who is a Jew” (for criticism of the Funk-Schlesinger judgment and the decisions stemming from it, see Eitan Levontin, “A Castle in the Air – The Funk-Schlesinger Decision and Population Registry Laws”, Mishpat Umimshal 11(1) (2007), 129 (Heb.).

8. HCJ 58/68 Shalit v. Minister of the Interior [1970] IsrSC 23(2) 477 (hereinafter: the First Shalit Case) dealt with the case of Mr. Benjamin Shalit, who notified the registration officer that the nationality of his children was “Jewish”, but his request to register them as such was refused by the clerk because the children were born to a non-Jewish mother. The Court granted the petition, by a majority opinion, relying on the judgment in the Funk-Schlesinger Case and ordered the registration officer to register the petitioners’ children as “Jewish” under “nationality”, on the basis of their father’s declaration. Against the background of the judgment in Shalit’s case and the public tempest it aroused, sec. 3A of the Population Registry Law was enacted, which provides as follows:

A person shall not be registered as a Jew by nationality or religion if a notification under this Law or an entry in the Registry or a public document indicate that he is not a Jew, so long as the notification, entry or document has not been controverted to the satisfaction of the Chief Registration Officer or so long as declaratory judgment of a competent court or tribunal has not otherwise determined ”

(Subsec. (b) states that for the purpose of this Law, the definition of “Jew” shall be the same as its definition in sec. 4B of the Law of Return, 5710-1950 (hereinafter: Law of Return): “… a person who was born of a Jewish mother or has become converted to Judaism, and who is not a member of another religion”; see also: Michal Shaked, Moshe Landau: Judge (2012), 368-380 (Heb.)).

9. HCJ 4/69 Ben Menashe v. Minister of the Interior [1970] IsrSC 24(1) 105 (hereinafter: Ben Menashe Case) – a sort of a “mirror image” to the First Shalit Case - was a case in which the entry under the nationality of the petitioner’s children had initially appeared as “Jewish”, despite the fact that their father asked that they be registered as devoid of nationality. It was ruled that the initial registration was unlawful, for the registration officer was not authorized to make such a registration contrary to the declaration of the petitioner. In HCJ 147/80 HCJ 147/80 Shtederman v. Minister of the Interior [1970] IsrSC 24(1) 766 (hereinafter: Shterderman Case), the petitioners’ request to delete the entry under nationality as “Jewish” from their registration in the population registry was denied. The petitioners sought to express their discontent with the change in legislation that followed the ruling in the First Shalit Case. The petition was denied after the Court ruled that the initial registration was lawful (as opposed to the case in the Ben Menashe Case), and a public document was therefore required for the purpose of amending the registry under sec. 19C of the Population Registry Law. Justice H. Cohn noted that the petitioners had not really and truly changed their self-definition, and they do not see themselves as belonging to another nation; therefore their petition lacks substance. Later, the Court denied another petition filed by Benjamin Shalit, in which he sought to register his third son (who was born after the legislation had been changed) as being of “Hebrew” nationality. The Court held that “in actual fact, there is no difference between the Jewish nationality and the Hebrew nationality”, and registration of Shalit’s son as a “Hebrew” would therefore constitute a circumvention of sec. 3A of the Population Registry Law (HCJ 18/72 Shalit v. Minister of the Interior [1972] IsrSC 26(1) 334) (hereinafter: Second Shalit Case).

10. The Tamrin Case was, as aforesaid, an early incarnation of the case at hand. Dr. George Tamrin immigrated to Israel in 1949 from Yugoslavia, and was registered in the population registry as “Jewish” under nationality, and as “without religion” under religion. According to Tamrin’s assertion, the enactment of sec. 3A of the Population Registry Law in 1970 – which states that a person will not be registered as “Jewish” in the nationality or religion field if he does not satisfy the definition of “Jew” under sec. 4B of the Law of Return – made him change his feelings about being of Jewish nationality. He therefore turned to the District Court for declaratory relief, to allow him to change the entry under nationality to “Israeli”. The District Court of Tel Aviv-Jaffa (per Judge Y. Shilo) denied the petition (F (Tel Aviv District) 907/70 Tamrin v. State of Israel [1970] PM 42 287).

In a lengthy, reasoned opinion by President S. Agranat, this Court denied Tamrin’s appeal.

First, the Court ruled that in order to issue a declaratory judgment concerning a particular person’s affiliation to a particular nationality, proof based on objective criteria is required concerning the existence of that nationality. President Agranat held that “the subjective feeling of a person about belonging to a particular nationality has no significance, unless it is possible to determine, on the basis of some sort of criteria, that that nationality in fact exists” (at p. 201).

Secondly, it was held that it was not proven that in the State of Israel, an Israeli nationality had come into being, separate and differentiated from a Jewish nationality. President Agranat proceeded to examine the question of the nature of nation and nationality, relying on the conclusion of (then) Justice J. Sussman in the First Shalit Case, according to which “an array of objective and subjective factors, taken together, raise a group of people to the status of national group” (p. 514): the feeling of unity that exists amongst the members of the national group, mutual reliance and collective responsibility, as well as ethnic values and cultural heritage that characterize the national group and differentiate it from other national groupings. In applying the said criteria to the Israeli case, President Agranat found that “there is no merit to the claim of the appellant – not even prima facie – that there has been a separation from the Jewish nation in Israel, and the creation of a separate Israeli nation” (p. 205). This holding is based on many historical examples that attest to the existence of a feeling of mutual reliance between Jews living in Israel and in the Diaspora, and on that Tamrin did not show that there is a significant group in Israel who lacks this “feeling of Jewish mutual reliance”. President Agranat discussed at length the meaning of the terms “identity” and “identification” in their ethnic-national sense (pp. 203-204), and ruled that the academic essays and the research to which Tamrin had referred in support of his arguments, which dealt with the preference of individuals in the renascent Israeli society for their Israeli identity over their Jewish identity, do not necessarily attest to the absence of their identification with the Jewish nationality. That is to say, President Agranat held that even if there are Israelis who prefer the Israeli aspect of their identity to its Jewish aspect, this does not negate their identification with the members of the Jewish nationality.

In addition to this ruling, which relied on the judgment of the District Court in the matter, the President added that in his view, the principle of the right to national self-determination was intended to apply to nations and not to “fragments of nations”. In his opinion, recognition of such nationality might lead to national and social fragmentation of the entire nation. The President added that a separatist trend of splitting the Jewish people was unacceptable. In his view, this was not the intention of the legislator in inserting “nationality” as an item in the population registry, and in any case the Court cannot support this (at pp. 217-223). Justice Z. Berinson concurred in the opinion of President Agranat, for the same reasons. Justice Y. Kahan also concurred in denying the appeal, but the main reason for his conclusion was that the relief requested by Tamrin was apparently inconsistent with the definition of “Jew” in sec. 3A of the Population Registry Law.

11. In CA 448/72 Shik v. Attorney General [1973] IsrSC 27(2) 3 (hereinafter: Shik Case), the Court heard the matter of a person who was registered as a Jew under “nationality”, and petitioned the District Court for declaratory relief whereby he is entitled to be registered in the Population Registry without any entry for national affiliation. The intention was for the ruling to serve as a public document for the purpose of amending the registry, under sec. 19C of the Population Registry Law. The District Court denied the application. The Supreme Court allowed the appeal on the denial of the application, holding that a person has the right not to belong to any religion or nationality, and when he makes a declaration to that effect – and the court is convinced that this declaration is true and sincere – the declaratory judgment must be made, on the basis of which the registration in the registry will be changed. Justice Berenson wrote that no distinction must be made here between the item designated as “religion” and that designated as “nationality”, for –

… they are both matters of a person’s heart, his faith and his world view, particularly in the case of a person who does not want to belong to any religion or any nation. When a person declares of himself that he belongs to a particular religion or nation, it is still not a certainty that this religion or that nation, according to its laws, will adopt him and recognize him as such. However, lack of faith or heresy of religion, and a person’s desire to view himself as a citizen of the world and free of the constraints of any nationality – that is his business that does not require any consent and any external validation (at p. 6).

In this, Justice Berenson adopted the approach of Justice Sussman in the First Shalit Case according to which the determination of a person’s affiliation to a particular religion and nationality stems primarily from the individual’s subjective feeling. At the same time, Justice Berenson confined his ruling to a person who wishes to change the registration in order to deny his affiliation to a religion or nationality, and he also noted in his opinion that if the purpose of the request is to change the registration from one nationality to another, the considerations are liable to be different. Justice Berenson added:

This is not a matter of whim or caprice, that a person can declare himself to be a member of a particular religion or national affiliation and the next day or the day after that as a member of another religion or national affiliation, or as being without religious or without ethnic affiliation …. When a person wishes to change an existing registration, he must convince the court that he is indeed serious, his thoughts are sincere and his intention is true (at p. 8).

The Court remarked that weight should be given to the fact that in that matter, the existing registration (Jewish nationality) was based on the notification of the parents when the appellant was a minor, and he has not accepted it ever since he was able to make up his own mind (p. 5). The Court reiterated this ruling in granting declaratory relief according to which Mrs. Johanna Shelah had no religion and was entitled to register without an entry under the religion item in the registry (CA 653/75 Shelah v. State of Israel [1977] 31(2) 421) (hereinafter: Shelah Case); see also a recent decision: RM (Tel Aviv District) 25477-05/11 Kaniuk v. Minister of the Interior (27.9.2011)) (hereinafter: Kaniuk Case).

12. Whereas in Shelah Case the Court – as we said – granted the appellant’s request to be registered as without religion, her request to register in the population registry as a “Hebrew” under the nationality item was denied. (Then) Deputy President M. Landau adopted the determination of the District Court whereby there is no difference between the terms “Jew” and “Hebrew”, and that uniformity of the registry must be preserved. In his decision, Deputy President Landau also relied on the ruling in the Tamrin Case, stating that the appellant had not proven that there exists a Hebrew nation separate from the Jewish nation, and that separatist tendencies to split the nation should not be encouraged. (Then) Justice M. Shamgar concurred in the judgment of Deputy President Landau and in its reasoning. Justice A. Witkon concurred in the conclusion reached by the Deputy President, for the reasons given by the District Court (that the meaning of the term “Hebrew” is identical to that of the term “Jew”, and preservation of uniformity of the registry is a proper purpose), but he did not agree with the reliance on the ruling in the Tamrin case. Justice Witkon remarked that it was not the job of the authority responsible for the population registry to express an opinion about “separatist” movements – either for or against, and that each person should be able to be registered as he wishes.

13. After a “lull” of several years in cases concerning the dispute over registration of religion and nationality notations, petitions related to the registration of these particulars – religion and nationality – again came before the Court regarding individuals who underwent non-Orthodox conversions (HCJ 264/87 Shas Movement v. Population Registrar [1989] IsrSC 43(2) 723) (hereinafter: Shas Case); HCJ Naamat v. Minister of the Interior [2002] IsrSC 56(2) 721) (hereinafter: Naamat Case)). The broad principle that the registration officer is obliged to register in the population registry – in the initial registration – information furnished to him and attested to in a document, with no authority to examine the legal validity of that information, was also applied in our rulings relating to these matters. It should be pointed out that in the framework of the judgment in the Naamat Case, a decision was also made regarding the process concerning the amendment of the registration of the items of religion and nationality, items under sec. 19C of the Law, in the framework of which a judgment was sought as a public document. In relation to that process, too, the rule concerning the technical and statistical nature of the registration in the registry was applied (ibid., per President A. Barak, paras. 3 and 33). Thus, the Court did not turn away the petitioners empty-handed by determining that this was a non-justiciable issue, but it limited its decision to the technical-registration aspect. To be precise: the Court emphasized that it was not making any determination on the question whether the petitioners were considered Jewish according to the Halacha (Jewish Law), and that its decision was restricted to the purposes of the Population Registry Law, and stemmed from the case law relating to the registration of the particulars of religion and nationality in the population registry.

14. We therefore see that the items of religion and nationality in the population registry were fertile ground for stormy legal debates on matters of “peoplehood and nationality, of religion and state, of Orthodox and non-Orthodox conversion, of who is a Jew and who is not a Jew” (HCJ 6539/03 Goldman v. Ministry of the Interior [2004] IsrSC 59(3) 385, at p. 395). These were tempestuous, radicalizing debates, which touched the very core of opponents and supporters – and all of this, even though the registration itself had no stated legal ramifications in practice. Against this background, even in the early case law of this Court on the subject, Justice A. Witkon expressed his displeasure with questions of values in the area of nationality being brought before the Court, and called upon the Government “to initiate legislation that would obviate the need for registration of this superfluous field” (First Shalit Case, at p. 532; see also p. 536). After several decades of litigation revolving around the “nationality” item, it seems that the picture has not changed. And indeed, once again a dispute concerning the registration of “nationality” item in the population registry is brought before us.

At this stage, we wish to examine the main reason underlying the decision of the District Court – the question of institutional justiciability.

Institutional Justiciability

15. The District Court held an elaborate and detailed discussion of the question of justiciability in its judgment, and reached the conclusion that the matter brought before it is not institutionally justiciable, for its dominant aspects are meta-legal. The issue of justiciability has been part of our legal system since its early days. The discussion of the scope of issues appropriate for deliberation in this Court, and in the courts in Israel in general, is not new. In the Ressler Case, (then) Justice A. Barak distinguished between normative justiciability and institutional justiciability (see also: I. Zamir, “Judicial Review of Administrative Decisions – From Practice to Theory”, Mishpat veAsakim 15 (2012) 225, 247 (Heb.)). A claim of normative non-justiciability questions the ability of the court to decide a dispute before it using legal criteria. “A dispute is not justiciable in the normative sense, if there are no legal criteria for its resolution” (ibid., at p. 475). In Justice Barak’s view, the claim of normative non-justiciability has no legal basis, for there is always a legal norm by virtue of which a dispute can be resolved (see also: HCJ 769/02 Public Committee Against Torture in Israel v. Government of Israel, at p. 578 (hereinafter: Targeted Killings Case); Aharon Barak, The Judge in a Democratic Society (2004) 276-279 (Heb.)). Institutional justiciability comes to answer the question of whether the correct institution for resolving the dispute is the court (as opposed to other arenas, such as the government, the Knesset or public discourse). Justice Barak’s approach is that recourse to the doctrine of absence of institutional justiciability should be extremely limited, and confined to special cases in which there is a significant concern of damaging the public trust in judges (see: The Judge in a Democratic Society, at p. 275; HCJ 769/02 Public Committee against Torture in Israel v. Government of Israel [2006] IsrSC 62(1) 507, at p. 579). The test outlined by President M. Shamgar in the Ressler Case for examining the claim of lack of institutional justiciability is that of the dominant character of the subject:

It may be that the political character is dominant to such extent that the legal implications of the problem will be swallowed up by it or pushed to a corner […]. If the totality clearly and openly indicates that the dispute is of a dominantly political nature, the court will not tend to deal with it (at p. 515).

On the basis of this test, petitions that addressed policies relating to the settlement of Israeli citizens in the areas of Judea and Samaria were denied, after it was determined that the dominant nature of the subject is political and not legal (HCJ 4481/91 Bargil v. Government of Israel [1993] IsrSC 47(4) 210; HCJ 3125/98 Iyad v. Commander of IDF Forces in Judea and Samaria [1999] IsrSC 45(1) 913); for similar reasons, petitions relating to the negotiations conducted by Israel with Syria at the beginning of the 1990s were denied (Temple Mount Faithful Organization v. Prime Minister [1993] IsrSC 47(1) 37), and to signature of the Oslo Agreements between the State of Israel and the PLO (HCJ 4877/93 Victims of Arab Terror Organization v. State of Israel (12.9.1993)); decisions concerning the release of prisoners and prisoner exchanges (HCJ 7523/11 Almagor – Victims of Terror Organization v. Prime Minister (17.10.2011)) and the decisions mentioned in para. 3 of this decision); a decision on the building freeze in Judea and Samaria (HCJ 9549/09 Legal Forum for the Land of Israel v. Ministerial Committee for Matters of National Security (21.4.2010)). Another area in which we find reference to considerations of institutional justiciability is intervention in certain intra-parliamentary procedures (HCJ 9056/00 Kleiner v. Chairman of the Knesset [2001] IsrSC 55(4) 703; see also Daphna Barak-Erez, “The Justiciability Revolution – An Evaluation”, Hapraklit 3 (2008) 19-20 (Heb.) (hereinafter: Barak-Erez – The Justiciability Revolution).

Institutional Justiciability and the Question of the Israeli Nationality

16. As stated, the appellants argue that the law established in the Tamrin Case is outdated, and direst the core of their argument at the holding of the Court in the Tamarin Case that there is no “Israeli” nationality distinct from the Jewish nationality. The appellants are not disputing the validity of the first part of the law established in the Tamrin Case, whereby objective proof of the existence of a nationality is a necessary condition for granting declaratory relief, and that a subjective feeling is insufficient for a judicial determination that a particular nationality exists for the purpose of registration of the particular of nationality in the population registry (as opposed to the stance of Justice A. Witkon in the Shelah Case, according to which every person should be allowed to register as he wishes). We will not, therefore, discuss an argument that was not made before us and which is not in dispute between the parties. Moreover, the pleadings seem to indicate that the appellants wished to invoke this first part of the said ruling, for they are asking this Court to render a decision with broad implications: an unreserved declaration of the objective existence of an Israeli nationality. Thus, for example, the appellants signed off on their summations in the appeal by noting that they “believe that the Supreme Court will ‘restore the Crown to its former glory,’ it will raise the Israeli nationality out of its wretched state and in so doing will make a vital contribution to strengthening the foundations of the State of Israel …” (para. 25 of the appellants’ summations).

17. Therefore, unlike other matters in which questions relating to the registry were at issue – which we discussed above – we are not required to step into the path of the decision in the Funk-Schlesinger Case in a way that would restrict the significance of the registry and the actions performed pursuant to it to a purely technical act based on the declaration of the registrant. Hence the significant difference between the process before us and the other cases in which the Court dealt with questions in the area of the population registry. For the requested relief to be granted, as presented by the appellants and in accordance with the case law which they do not dispute, the Court would have to declare the existence – on the basis of objective criteria – of an “Israeli nationality” to which they belong.

This question has many layers; it is complex from a theoretical point of view and sensitive from the public aspect. We are dealing with fundamental issues that have preoccupied the State of Israel and the Israeli society since the establishment of the State and even prior to that, as we shall see below.

18. The appellants argue, for example, that “it is impossible to define the whole of world Jewry as belonging to the “Jewish nation”, for the Jews … are all of the nationality of the states of which they are citizens” (sec. 28 of the statement of appeal). We are dealing with an issue that is sensitive and controversial on the moral level and the historical level, one which has been accompanying the Jewish people for many years, and the Zionist movement from its inception. The conception that Judaism is not only a religious affiliation but also a national affiliation is the foundation-stone of Zionism. Standing contra to this is the conception that Judaism is only a religion, and consequently, the national affiliation of Jews is only to the state whose citizenship they hold. The basic elements of this latter conception lie in the process of emancipation of the Jews in the states of Western Europe, when many of them began to define themselves as Jewish from the religious aspect only (“Germans of the Mosaic faith”; for a description of this trend amongst German Jews until the rise of Nazism, see Amos Elon, The Pity of It All: A Portrait of Jews in Germany 1743-1933 (2002)). After the establishment of the State of Israel, this controversy changed its direction. On the one hand, the establishment of the state of Israel is the realization of the Zionist vision to establish a national home for the Jewish people in the Land of Israel. Thus, the Declaration of Independence states that “The Land of Israel was the birthplace of the Jewish People” and that it is the “natural right of the Jewish People to be masters of their own fate, like all other nations, in their own sovereign State.” On the other hand, there were those who argued – as do the appellants before us – that with the establishment of the State and pursuant to that process, an Israeli nation was born (or at least, ought to have been born), distinct from the Jewish nation.

19. The ramifications of this discussion are tremendously far-reaching. They touch upon the relations of the State of Israel with Diaspora Jewry, and upon the perceptions and relations of the different groups within the State of Israel. The lower court discussed the possible ramifications of a judicial decision on the dispute:

A declaration as requested is liable to upset the delicate balance between the national and cultural components of the State, that are based on national identities including ones that are not Jewish, and between the manner in which the religious components find expression.

Nota bene: a person cannot belong to two nations. If an Israeli nationality is to be recognized, the members of the Jewish nation in Israel will have to choose between two options: whether they are Israeli, and then they will not be Jewish; or whether they are Jewish, and then they will not be Israeli – the same applies to the members of the minority groups.

In other words, a declaration by the Court as to the existence of an Israeli nationality as an objective reality is likely to impact the question of the registration of the “nationality” item of all citizens of Israel, even those who are not interested in this. In this last context, we would mention the position of the scholars Jacobson and Rubinstein, who discussed the meaning of such a step in relation to the Arab community:

In the present situation of two clear national identities within the citizenry, the official – or even unofficial – adoption of the term “the Israeli people” might, rather than including the Arab minority from a national point of view – exclude it from a civil point of view …. Amongst the Arab population, many will refrain from defining themselves as Israelis, or even refuse to do so outright, due to the “lack of national neutrality” of that term, or simply for political reasons (Alexander Jacobson and Amnon Rubinstein, Israel and the Family of Nations (2003) 346 (Heb.) (hereinafter: Jacobson and Rubinstein).

20. It will be noted that the appellants’ line of argument and the question that it raises are to a great extent derived from the argument regarding the nature of the term “nationality”. The definition of the term “nationality” is not simple, and extensive academic writing exists in the field of the social sciences in an attempt to understand its depths, its historical sources, the reciprocal relations between nationality and national state, and between nationality and nationalism (for contemporary writings, see: Ernest Gellner, Nations and Nationalism (1983); Erich Hobsbawm, Nations and Nationalism since 1780: Programme, Myth, Reality (1991); Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (1983)). The distinction between several models of nationalities and conceptions of nationalism is generally accepted: civil nationalism, in which there is identity between the nationality and the political citizenship, which is based on a social contract and the will of the citizens (the example representing this model is France: see: Jacobson and Rubinstein, at pp. 375-386), and ethnic-cultural nationalism, in which the affiliation of the individual to a national group is primarily the result of common objective characteristics (common language, religion, culture and history). This is the conception that prevails nowadays in Israel in relation to the term “nationality”, which the appellants before us seek to challenge. That is to say, the appellants’ quest to change the notation of “nationality” in the population registry expresses their wish for the population registry to reflect the civil nationality conception, as part of their public battle to establish this as the appropriate model for the State of Israel (see also: Moshe Barnet, A Nation Like all Other Nations – Towards the Establishment of an Israeli Republic (2009) (Heb.); Yosef Agassi, Between Religion and Nation – Towards an Israeli National Identity (2^nd ed., 1993) [the author is appellant no. 4 in the present appeal – U.V.]).

21. Thus, we have seen that in order for the Court to grant the request of the appellants for a declaratory judgment to the effect that they belong to the Israeli nation, they must, according to the case law, prove by means of objective criteria the existence of this nation. This discussion involves basic questions about the State of Israel, the Jewish people, Zionism, and different conceptions of nation and nationality. The complexity involved in dealing with these questions – upon which we have barely touched– hardly needs to be stated. Answers to some of these questions may perhaps be found within the public consensus, and some are still subject to heated debate. The natural venue for these discussions is not within the courtroom, but in other arenas of public debate and academic literature. The Court would do well to exercise great restraint in relation to these issues (Aharon Barak, Judicial Discretion (1987), 289-291).

22. The above notwithstanding, I cannot entirely accept the conclusion of the lower court, namely, that this is an issue which is not justiciable from an institutional point of view. First, as we saw, this Court has often dealt with issues that relate to the contents of the “religion” and “nationality” fields in the population registry, despite the public sensitivity of these questions. The view that these questions are institutionally non-justiciable remains a minority one (see the opinion of Justice I. Englard in the Naamat Case, at p. 755). Rather, the Court has chosen to examine a narrow and technical aspect of the significance of the information recorded in the entries on religion and nationality in the registry, to interpret narrowly the authority of the registration officers to examine the contents of the detail that was registered by virtue of a person’s declaration.

23. Indeed, our case law has repeatedly emphasized that the population registry and the actions performed within its framework pursuant to the Population Registry Law are not the appropriate arena for deciding on complex moral questions in the area of religion, national identity and personal status. So, in the words of Deputy President M. Cheshin in one of the cases:

The Population Registry Law is, in the main, a technical law, and if we load upon its narrow shoulders a heavy burden of fateful questions, it will not be able to bear it. The Population Registry Law was not intended, at base, to embrace questions of people and nation, of religion and state, of Orthodox and non-Orthodox conversion, of who is a Jew and who is not a Jew (HCJ 6539/03 Goldman v. Ministry of the Interior [2004] IsrSC 59(3) 385, at p. 395 (hereinafter: Goldman Case)).

I agree with this statement unreservedly. Nevertheless, it cannot be concluded that the Court washes its hands of the concrete questions that are presented to it in cases involving the Population Registry Law and the actions performed pursuant to it. It is the legislator who determined that “nationality” would appear in the population registry, and in consequence, various issues arise for our consideration. As pointed out by Deputy President M. Cheshin in the Naamat Case, “Where the legislator makes legal norms that apply to the individual – rights and duties, immunities, privileges and other such legal relations between people – dependent upon the existence of a particular thing, by the very same flourish of the pen does he, as a matter of principle, make that “thing” justiciable where before it may not have been so” (ibid., at pp. 761-762). In other words, were the nationality item not included in the Population Registry Law, it could easily have been decided that this was an issue that, by its nature, ought not to be decided in court, for the reasons elucidated by the District Court. But this is not the situation. This becomes even more clear in the case at hand, for the issue that was laid at the doors of the District Court – the question of the existence of an “Israeli nationality” – has already been examined and discussed, on its merits, by this Court in the Tamrin Case.

Is a Reexamination of the Holdings in the Case of Tamrin Justified?

24. Within the contours of their argument, the appellants face a high hurdle – the need to convince the Court that justification exists for ordering a change in the holdings in the Tamrin Case., by pointing to a substantive change in circumstances or other reasons that justify so doing (and cf.: HCJ 10104/04 Peace Now for Israel Educational Projects v. Commissioner for the Jewish Settlements in Judea and Samaria [2006] IsrSC 61(2) 93, at p. 151). Let us recall that “it is not sufficient that an earlier ruling does not seem to the judge to be good in order to justify a departure from it” (per President A. Barak in LCA 1287/92 Bosqila v. Zemah [1992] IsrSC 46(5) 159, at p. 172). This is even more pertinent in our case, against the background of the institutional considerations that we discussed. Even if the said considerations do not tip the scales in favor of a determination that this is an issue that is institutionally non-justiciable, the Court may – in the framework of exercising its judicial discretion – reach the conclusion that there is no room to depart from the holdings in the Tamrin Case, after weighing additional considerations on different planes. To be precise: the institutional considerations do not stand alone, and their weight changes according to the circumstances of the matter. In the present case, additional considerations exist that justify the determination that renewed discussion of the question that was decided in the Tamrin Case is not warranted.

25. First, the appellants barely dealt with the holdings of the Court in the Tamrin Case. The sources to which the appellants referred were directed primarily at indicating that Israeli nationality was already created in 1948, with the establishment of the State of Israel, as part of the civil-national conception in which they believe. However, the judgment in the Tamrin Case – and its holdings – was handed down over twenty years after the establishment of the State of Israel. The arguments on principle that the appellants raise were therefore considered by the Court in the Tamrin Case, and were dismissed on the merits.

Secondly, the appellants do not deal with the existence of deeply-rooted conceptions in the Israeli public and in the case law in relation to the interpretation of the term “nationality” in Israeli law. The appellants’ argument is therefore a normative one, to the effect that there ought to be recognition of the existence of an Israeli nationality as derived from Israeli citizenship, and the existence of other nationalities amongst Israeli citizens should be rejected. The hurdle that the appellants must overcome is, as stated, on the objective plane. However, apart from elucidating their coherent world view on the matter, the appellants have not presented a factual basis for the contention that the general public’s approach to the concept of “nationality” has changed between the judgment in the Tamrin Case and nowadays.

Thirdly, the appellants have not dealt with the distinction that exists within the Population Registry Law between the nationality item (sec. 2(a)(5) of the Law) and that of the citizenship item (sec. 2(a)(10) of the Law). Many of the sources to which the appellants referred in support of their arguments about the existence of an Israeli nationality refer to nothing other than Israeli citizenship. Thus, for example, the term “Israeli nationality” in the Ships Ordinance means only citizenship, and this is also the meaning of the term “nationality” that appears in the Israeli passport. The distinction between citizenship and nationality is not new to us. The substantive item of the two is, of course, the citizenship. Citizenship creates an ongoing legal connection between the individual and his state (HCJ 754/83 Rankin v. Minister of the Interior [1984] IsrSC 38(4) 113 (hereinafter: Rankin Case), at p. 117; and see Amnon Rubinstein and Barak Medina, The Constitutional Law of the State of Israel, Vol. 2: Governmental Authorities and Citizenship (6^th ed., 2005), 1071 (Heb.)). This connection is important in broad areas of law. From the citizen’s point of view –

It has the capacity to accord him rights, to grant him powers, to impose duties upon him and to recognize his immunity in various, varied matters. Citizenship is connected to the right to vote in the elections to the Knesset, to hold various public offices, to the jurisdiction of the courts, to matters of extradition and many and varied matters …(the Rankin Case, at p. 117).

A person’s citizenship is registered, as stated, in the population registry according to sec. 2(a)(10) of the Law, and this registration does constitute proof of its accuracy. Nota bene: it is crystal clear that the reliance of the appellants on statutory provisions in Israeli and international law relating to citizenship does not stem from a confusion of terms on their part. As we saw, the appellants’ desire to bring about a unification of these two terms is the ideological underpinning of their motion and the conception of nationality that they support. At the same time, when they asked the Court to depart from the case law, they did not grapple with the existence of the said distinction in the Law.

26. At the same time, and possible even more importantly: in my view, the existing law affords the appellants a possible course of action that may bring about the desired result from their point of view, even if only partially, without the Court having to depart from the decision in the Tamrin Case by declaring the objective existence of an Israeli nationality. This is by way of registration in the population registry as Israeli citizens only. Such a course of action is based on the ruling in the Shik Case, where it was held that when a person asks to leave the “nationality” field blank, he need only prove the sincerity of his request (this, similar to the recent decision of the Tel Aviv-Jaffa District Court in RM (Tel Aviv District) 25477-05/11 Kaniuk v. Minister of the Interior (27.9.2011), in the framework of which the court granted Kaniuk’s request for declaratory relief that enabled the deletion of the word “Jewish” from the “religion” field). In the Tamrin Case the appellant sought relief of this type – a declaration that he is not part of the Jewish nation – as alternative relief as part of his summations. This request was dismissed in limine, for it appeared for the first time in the framework of the summations at the appeal stage, and had not been raised in the District Court or during the hearing on the appeal itself. However, President Agranat added that the request ought also to be denied on the merits, since the only reason underlying it is the appellant’s desire to express his disapproval of the statutory amendments that were made pursuant to the First Shalit Case. In this, the Court reiterated the holdings in the Shtederman Case judgment. It would seem – prima facie – that this is not the situation in the present case. The appellants, some of whom are registered as Jewish in the “nationality” field and some as being of other “nationalities”, are not seeking to express their objection to the limitations set in the legislation on registration of a person as “Jewish” by nationality; rather, they wish that true expression be given to their subjective self-definition. Even if the sought-after relief is not granted in full, it would appear that adoption of the course of action established in the Shik Case could, to a certain extent, serve their purposes. On the one hand, they will no longer be “labeled” as belonging to a nation to which they do not wish to belong according to their declaration (whether it is “Jewish”, “Hebrew”, “Arab” or other). On the other hand, they can continue to define themselves – to themselves and to the whole world – as Israelis according to their Israeli citizenship, which will continue to be registered in the population registry. If the appellants’ wish is that the registry reflect their approach whereby citizenship is the appropriate characteristic for inclusion in the definition of a person’s identity, then omission of the contents of the “nationality” field in the entry that relates to them, while leaving the citizenship in place, can serve this purpose faithfully.

True, the circumstances in the present case are somewhat different from those in the Shik Case. There, the discussion was of the matter of a person who declared that he does not belong to any nation (“negates nationality altogether and sees himself as a cosmopolitan who does not belong to any nation”), whereas in our case, the appellants claim that they belong to the Israeli nation. At the same time, if this Court is convinced of the sincerity of the declaration of the appellants that they no longer wish to appear as being of the nationality under which they are presently registered, it would seem that this ruling might be applied to them as well. In my view, this is the inevitable outcome of the principle of human dignity, for in labeling a person as a member of a nation to which he feels no connection we violate his right to self-determination, which the Court already discussed in its early judgments (the Shik Case, at p. 7, per Justice Berenson; the First Shalit Case, at p. 511, per (then) Justice Sussman). Needless to say, this has been reinforced following the enactment of Basic Law: Human Dignity and Liberty, which accords human dignity constitutional status.

Nota bene: relief such as this was not requested in the proceedings that were the subject of the appeal, for this was not the declared wish of the appellants, and therefore there is no room to grant this relief in the framework of the present discussion. Nevertheless, the existence of this possible course of action for erasing the entry of the nationality entry – in reliance on the decision in the Shik Case – is in my view an important consideration amongst the whole array of considerations leading to the conclusion that a departure from the law as decided in the Tamrin Case is not warranted.

Conclusion

27. The appellants seek a declaratory judgment that will serve as a pubic document for the purpose of amending their registration under the “nationality” field in the population registry to “Israeli”. The lower court denied the request, ruling that this was an issue that was not justiciable.

We discussed the theoretical complexity and the institutional sensitivity involved in examining the question of the existence of “Israeli nationality”, which is tied to fundamental questions about the State of Israel and the Jewish people: the relationship between religious identity and national identity; competing theoretical conceptions of the term “nationality” and their application in our case; the connections between the State of Israel and Diaspora Jewry; the relations between different sectors of the citizens of the State and their national affiliation. Indeed, this sensitivity necessitates restraint in exercising judicial discretion. The natural place for these discussions is not in the courtroom, but in other arenas of public discourse and scholarly writing, hence the reliance of the lower court on the doctrine of institutional justiciability.

At the same time, I cannot adopt the holding of the lower court on the question of institutional justiciability. As we have seen, issues connected to the contents of the fields of religion and nationality in the population registry (and in particular, the question of “Who is a Jew”) have been brought before this Court since its inception. The Court has indeed repeatedly emphasized that the population registry is not the appropriate forum for deciding on the sensitive issues of religion and nationality, and has explained that its holdings on these issues do not settle the questions on their merits. Nevertheless, the view that these issues are not justiciable has remained a minority view.

Relying on the case law relating to the technical nature of the act of registration in the population registry, the Court has not refrained from extending relief to those who turn to it, even when in the background there were “sensitive” issues of conversion, Jewish law, religious identity and national identity. And more importantly, in the Tamrin Case discussed above, this Court deliberated the issue brought before it on the merits, and ruled that the existence of an Israeli nationality had not been proven by objective criteria. As such, we have been asked to reopen the discussion on this question, after it has already been decided by this Court.

Even though the institutional considerations cannot lead to a determination that the issue is non-justiciable, they can impact on the willingness of this Court to reopen the discussion of this matter. Therefore, if the appellants seek to depart from the decision in the Tamrin Case, they bear a significant onus that requires – at least – the presentation of arguments that were not considered at the time by this Court and that clearly indicate that there is a need for a change. Such arguments were not, as explained, presented before us. In addition, I found that even without changing the Tamrin Case ruling, the existing law provides the appellants with a course of action that would allow them to define themselves – to themselves and to the whole world – as Israelis according to their Israeli citizenship, which would continue to be registered in the population registry, without any connection to the “nationality” item. This could be done by following the appropriate procedure for erasing the registration of “nationality”, in accordance with the law as decided in the Shik Case.

In the balance between the various considerations, I have concluded that the appellants have not lifted the onus that they bore to justify a departure from the holdings in the Tamrin Case. I will therefore propose to my colleagues that the appeal be denied, with no order for costs, and I will clarify that denial of the appeal in no way detracts from the principled battle of the appellants, born of their personal convictions, and from the discourse that will continue in the public domain.

Justice H. Melcer

I concur in the comprehensive, carefully-crafted judgment of my colleague, Justice U. Vogelman, in which he dismissed the claim of institutional non-justiciability in the present case, and reached the conclusion that the appellants did not lift the burden that they bore to show justification to depart from the judicial determinations made in the Tamrin Case. I also agree with the result at which my colleague arrived, whereby the appeal should be denied, with no order for costs.

Nevertheless, due to the importance of the questions that arose in this case, and in view of the fact that on several matters, my opinion differs slightly from that of my colleague, I will permit myself to elucidate my approach to the questions on which we do not entirely agree. I will focus only on the legal aspect, for the issues that the appellants seek to raise obviously also touch on deep disagreements in public, philosophical and historical areas, although in my view, as in that of my colleague, this does not lead to normative or institutional non-justiciability of the legal issues involved in the questions arising here (see and compare the deliberations and the different results that were obtained, pursuant to changes in the legislation, in each of the Shalit cases – the First Shalit Case in 1970, and the Second Shalit Case in 1972).

2. It seems to me that the fact that decades have passed since the judgment in the Tamrin Case entitled the appellants to initiate new proceedings (HCJ 11286/03 Ornan v. Minister of the Interior (20.9.2004)), and OM 6092/07 in the Jerusalem District Court, the object of this appeal, pursuant to the judgment in HCJ 11286/03 above) and to argue for factual and normative changes that justify, in their view, a departure from the Tamrin Case decision insofar as they are concerned. In relation to the considerations that allow for the “opening” of constitutional issues that have been settled (particularly with respect to the validity of laws, but regarding other matters as well), see my opinion in HCJ 466/07 MK Zehava Gal-On v. Attorney General (11.1.2012).

3. Against the background described in para. 2 above, I have reached the conclusion that the appellants have not succeeded in showing that over the many years that have passed since the decision in the Tamrin Case was handed down, an “Israeli nationality” has developed (factually or legally) in Israel, as they claim, to which members of different religions, or those without religion, or those who belong, or belonged, to various ethnic groups are meant to belong.

And indeed, a people and a nation are not easily created. Even Amir Gilboa, in his famous “Song of the Morning”, which in its first verse and the chorus refers to a situation in which –

“Suddenly a man wakes up in the morning

He feels he is a people and begins to walk

And to all he meets on his way he calls out ‘Shalom!’”

qualifies himself as the song continues, and writes – out of historical awareness – thus:

And he laughs with the strength of generations in the mountains,

And shamed, the wars bow down to the ground,

To the glory of a thousand years flowing forth from the hiding places,

A thousand young years in front of him

Like a cold stream, like a shepherd's song, like a branch.

(Emphasis added – H.M.)

Hence the appellants, even though they are wise and have attained impressive personal achievements, and have contributed to Israeli society (and this indeed is my opinion of them), and all feel subjectively that they belong to the “Israeli nation”, cannot establish (at this stage, at least), a legal entity of an “Israeli nationality”. At this point two comments are in order:

(a) The list of nationalities recognized by the Ministry of the Interior, which includes some 140 items (appendix 4 of the appellants’ statement of claim in the District Court) is in fact substantively different in its characteristics from that which the appellants are seeking (this list contains nationalities that are defined according to sovereign states (such as Italian nationality, Belgian nationality, Polish nationality etc.), nationalities with no sovereignty (such as Kurdish nationality), nationalities of religious-ethnic groups (such as Samaritans, Druze etc.), and even Hebrew nationality, which was recognized with respect to the members of the “Young Hebrews” Movement (so named at the time by their opponents, the “Canaanites”), when this movement emerged in Israel (this was before the enactment of sec. 4B of the Law of Return, and prior to the “constitutional revolution”)).

(b) Appellant no. 1, Professor Uzi Ornan, registered at the time by virtue of his declaration as being of “Hebrew nationality”, and now, with the passage of the years, he asks to “change nationality” and to be considered as belonging to what he defines as “Israeli nationality”. This requested change from one nationality to another nationality attests, in itself, to the fragility of the distinctions proposed by the appellants.

4. Neither do the legislative changes that have occurred since the decision in the Tamrin Case support the appellants’ approach: the opposite may even be true. I will deal with this point forthwith; before that, however, I would point out that I do not accept the central legal proposition of the appellants, which is as follows:

A ‘Jewish sovereign entity in the Land of Israel’ does not exist, but rather a sovereign entity called Israel, and its decisions are made by the Israeli nation – the entire citizenry only, without distinction of race, religion or sex …”

(para. 17 of the appellants’ written arguments; at the end of that paragraph, the appellants added another statement in relation to what, in their view, is an inevitable disconnection from Jews outside of Israel; below, therefore, I will discuss separately the connection between Israel and Diaspora Jewry).

The above basic proposition is problematic in several respects:

(a) The proposition ignores the “constitutional given” (this expression is borrowed from the opinion of President Agranat in EA 1/65 Yardur v. Knesset Elections Committee [1964] IsrSC 19 (3) 365, at p. 386), by virtue of which Israel is defined at the constitutional level – at least since 1992 – as a “Jewish and democratic state”, in the framework of the provisions that were then introduced into the Basic Law: Human Dignity and Liberty and in Basic Law: Freedom of Occupation. For the significance of this, see: Hanan Melcer, “The IDF as the Army of a Jewish and Democratic State”, Mishpat ve-Asakim 14, Mishpat ve-Adam Festschrift for Amnon Rubinstein (2012) 347) (hereinafter: Melcer, IDF as the Army of a Jewish and Democratic State). See also: Menachem Mautner, “The National Identity of Israel and the Problem of Equality”, in Arab Politics in Israel at the Crossroads, 111-112 (1995), who stated that “the process of victory of ‘Judaism’ over ‘Hebrew-ism’ received symbolic expression in 1992” (in the above two Basic Laws), and added:

… We recognize the power of the law to determine the culture … the law also determines identities. Identities of persons, and identities of groups. The two Basic Laws of 1992 are an example of laws that seek to determine national identity.

Elaboration of these subjects is found in Prof. Mautner’s book, Law and Culture in Israel at the Beginning of the Twenty-First Century, Chap. 2, and pp 31-32, 298, 365, 345, 420, 565-566 (2008)(Heb.) (hereinafter: Mautner, Law and Culture in Israel). It is noteworthy that Prof. Mautner, both in his above article and in his above book, supports the adoption of an inclusive element of identity that is “Israeli-ism” in the constitutional conception of the state, but in his view, too, this is the ideal law, and not the existing law (as opposed to the approach of the appellants, who believe that their request is grounded in the existing law).

(b) The proposition displays a certain confusion of concepts on the part of the appellants. Israel is defined internationally (since the United Nations decision on the “Partition”) and internally (at least since the enactment of the above two Basic Laws, and even prior to that, by virtue of what emerges from the Law of Return – 1950 ) hereinafter: law of Return) and the Declaration of Independence), as the nation-state (medinat hale’om) of the Jewish People. The fact that it is also the national-state (medinat ha’umah) of its Israeli citizens – whoever they may be – does not negate its identity as the nation-state of the Jewish people (the term “nationality” (Le’um) refers to the components of the People that lives in the state, whereas the concept of “nation” (Umah) relates to the citizens of the state. And see: Mautner, Law and Culture in Israel, at p. 32). See also: Prof. Ruth Gavison, “The National Rights of the Jews” (hereinafter: Gavison); Sir Martin Gilbert, “An Overwhelmingly Jewish State”: From the Balfour Declaration to the Palestine Mandate; Prof. Shlomo Avineri, “Self-Determination and Israel’s Declaration of Independence” – all from: Israel’s Rights as the Nation State of the Jewish People, Alan Baker (ed.), 2012, at pp. 8, 22 and 32 respectively (Heb.)).

In her article, Prof. Gavison argues that a distinction must be made between a national-ethnic identity and a national-civil identity (a distinction that the appellants ignore). She explains that in many contexts, nationality does not refer to civil identity, but to the desire of a particular ethnic (national) group to achieve political independence. She explains her position as follows:

…For otherwise, it would be illogical to talk of “national minorities” because by definition such minorities could not exist within any state. (ibid., at p. 12).

And she further clarifies:

The argument that the Jews are a nationality distinguishes between citizenship and cultural-national identity. All Israelis – both Jews and Arabs – share citizenship and a number of cultural characteristics … Nevertheless, Arabs and Jews both aspire for recognition as belonging to their national (Jews as opposed to Arabs) and religious (Jews, Muslims, Druze and Christians) group (ibid., at p. 12).

Furthermore, in her view –

There are also significant differences within these religious and national groups. Each of these identities is likely to entail practical implications. Jews who are citizens of other states do not aspire for those states to recognize their national rights. It is quite possible that they will choose to migrate to the only national (ethnic) state in the world of the Jews and thereby realize their national rights. They are also likely to maintain their non-Jewish (civil) nationality, and to recognize their cultural ties with the only country in the world that is the nation state of the Jews (ibid., at p. 12).

(c) The proposition seeks to read the Declaration of Independence in a new way and to say that by virtue of the Declaration, the “Israeli” nationality was established, comprised of members of the “independent Hebrew people in its land” and members of the “Arab people who are citizens of the State of Israel.” This approach was already rejected in the Tamrin Case, based on an analysis of the Declaration of Independence – see p. 221 of the opinion of President Agranat, who stated, inter alia, as follows:

The Declaration [states – H.M.] that ‘the State of Israel will be open for Jewish immigration and for the Ingathering of the Exiles’ – this incorporates … the mission of a melding of the diasporas into ‘one people’…. I have only mentioned this … in order to stress that the great event that was the establishment of the State of Israel … did not happen to us so that a split would occur in the midst of the nation – Jewish on the one side, and ‘Israeli’ on the other.

This position expressed by President Agranat has become even more pertinent as the Basic Laws now refer, directly and explicitly (alongside their definition of the State of Israel as Jewish and democratic) – to the principles of the Declaration. See: Rubinstein and Medina, Vol. 1, at pp. 41-43 (6^th ed. 2006) (hereinafter: Rubinstein and Medina). These principles include recognition of the legitimacy of the existence of the State of Israel as a Jewish State, based – as Rubinstein and Medina say –on three central foundations:

(1) The United Nations Resolution of 29 November 1947, according to which a Jewish State will be established in the Land of Israel.

(2) Moral recognition of the right of the Jewish people to self-determination in a national framework.

(3) The practice in nation states, accepted by other democracies in the world, which negates the contention that a democratic system requires a “neutral state” from a national point of view.

(ibid., at pp. 322-323; for an elaboration of these issues, see: A. Yakobson and A. Rubinstein, Israel and the Family of Nations – The Jewish Nation State and Human Rights (2003); R. Gavison, Israel as a Jewish and Democratic State: Tensions and Chances (1999) (Heb.)).

Prof. Chaim Gans, whose general approach is entirely different, also does not dispute the fact that in the Declaration of Independence, expression was given to a three-fold justification for Zionism and its realization in the State of Israel. According to him, these three justifications, that were mentioned in the Declaration, included:

(1) The historical connection between the Jews and the Land of Israel;

(2) The right of Jews to stand on their own like every other people, i.e. their right to national self-determination;

(3) The defense of necessity, which is learned from the persecutions of the Jews and from the Holocaust.

According to Gans’ approach, these justifications constitute the moral skeleton of the Israeli Declaration of Independence, if they are read in such a way that only the three together can provide legitimacy for the establishment of the State of Israel. See: Chaim Gans, “The Threefold Justification for Zionism”, Ha’aretz, Weekend Magazine, 30.8.2013, pp. 66-69 (Heb.) (for elaboration, see: Chaim Gans, Political Theory for the Jewish People – Three Zionist Narratives (2013), and the references to the Declaration of Independence, ibid., as per the Index).

The appellants were unable to respond to these interpretations, which, even if they stem from different world views, reflect a significant degree of agreement with respect to the contents of the Declaration of Independence in these contexts, and its significance for their arguments.

5. Following the above preliminary remarks, I will now turn from the general principles to a description of the extant law, and I will emphasize that the combination of “Jewish and democratic state” has indeed brought about an extremely significant change here, gaining recognition in every normative arena in which the constitutional law of Israel is shaped. For various reasons, this phrase emerged in 1992 from the “stage of obscurity” (which was reflected in the expression, “Rock of Israel” that appeared in the Declaration of Independence – see: Yoram Shahar, “The Early Drafts of the Declaration of Independence”, Iyunei Mishpat 26 (2002) 523, 526-530 (Heb.); Yizhar Tal “Declaration of Independence – A Historical, Interpretative Study” Mishpat Umimshal 6 (2003) 551, 564-565 (Heb.); Pinhas Shifman, One Language, Different Tongues – Studies in Law, Halakhah and Society (2012), 20, 27-28 (Heb.)) and entered the “the stage of declarations”. See Melcer, The IDF as the Army of a Jewish and Democratic State, 351. This has a direct impact on our matter, for the appellants wish to raise objections, as we have said, to the significance of the Jewish nation and to Israel being the Jewish nation state. In this context I would like to further remark that in addition to sec. 1A of Basic Law: Human Dignity and Liberty and sec. 2 of Basic Law: Freedom of Occupation, which refer to the values of the State of Israel as a Jewish and democratic state, sec. 7(a)(1) of Basic Law: The Knesset also refers and characterizes Israel as a “Jewish and democratic state”, the existence of which as such may not be denounced. These approaches also found expression in regular legislation – see: State Education Law, 5713-1953, sec. 2(b); Electoral Parties Law 5752-1992, sec. 5(1); Culture and Arts Law 5763-2002, sec. 2(c); Special Cultural Educational Institutions, 5768-2008, sec. 2(b); and Terminally Ill Patient Law, 5768-2008, sec. 1(b).

Due to the importance of the above change in relation to the constitutional characterization of the State, a great deal has been written on the various aspects of the significance of the combination “Jewish and democratic state”, and in particular, on the tension between the “Jewish state” and the “democratic state”, and on the ramifications of the “Jewishness” of the State. See, for example, a select sample: Haim H. Cohn, “The Value of a Jewish and Democratic State – Studies in Basic Law: Human Dignity and Liberty” Hapraklit, Jubilee Volume 9 (1993) (Heb.); Ariel Rosen-Zvi, “A Jewish and Democratic State: Spiritual Paternity, Alienation and Symbiosis – Can the Circle be Squared?” Iyunei Mishpat 19(3) (1995), 479 (Heb.); Asher Maoz, “The Values of a Jewish and Democratic State”, Iyunei Mishpat 19(3) (1995), 547 (Heb.); Ruth Gavison, “A Jewish and Democratic State: Political Identity, Ideology and Law”, Iyunei Mishpat 19(3) (1995), 169 (Heb.); Ruth Gavison, “A Jewish and Democratic State: Challenges and Risks”, Multiculturalism in a Jewish and Democratic State – Ariel Rosen-Zvi Memorial Volume (Menahem Mautner, Avi Sagi, Ronen Shamir eds., 1998), 213 (Heb.); Asa Kasher, “Jewish and Democratic State – a Philosophical Sketch”, Ruah Ish 13 (2000) (Heb.); Mordechai Kremnitzer, “The Image of the State of Israel as a Jewish and Democratic State” in The Jewish Character of a Democratic State (Aviezer Ravitzky and Yedidia Stern, eds., 2007), 395 (Heb.); Aharon Barak, “The Values of the State of Israel as a Jewish and Democratic State” in Aharon Barak – Selected Writings, vol. 1 (Haim H. Cohn, Yitzhak Zamir eds., 2000) 445 (Heb.); Aharon Barak, Legal Proportionality: Constitutional Rights and their Limitations (2010), 302-316 (Heb.); Yitzhak Zamir, Administrative Authority vol. 1 (2^nd ed., 2010) 59-72 (Heb.); Amnon Rubinstein, “The Curious Case of Jewish Democracy”, Techelet (2010) 41, 78 (Heb.); Melcer, The IDF as the Army of a Jewish and Democratic State; see also all the papers in Israel as a Jewish and Democratic State (Asher Maoz, ed., 2011). As for the case law, the term “Jewish and democratic state” has been mentioned to date, in various contexts, in hundreds of judgments of this Court.

For our purposes it is important to emphasize that the “constitutional Jewishness” of the state negates the legal possibility of recognizing an “Israeli nationality” which is distinct, as it were, from the “Jewish nationality”, as so succinctly elucidated by President Agranat in his decision in the Tamrin Case even prior to these Basic Laws (even more so - this the inevitable conclusion after their enactment). Moreover, negation of the other nationalities in Israel and the inclusion of all of them in one “Israeli nationality” is contrary to the democratic nature of the State.

6. The appellants are apparently aware of the above conclusions, and they are therefore attempting to blur the distinction between citizenship and nationality (or alternatively, to omit the “nationality” item from the population registry). Nevertheless, they are not able to explain why, under the extant law, these two must be entered separately in the population registry under sec. 2(a) of the Population Registry Law, 5725-1965 (hereinafter: Population Registry Law). I therefore agree with my colleague, Justice U. Vogelman, that all the appellants’ arguments concerning the existence of Israeli nationality in fact relate to Israeli citizenship. To the examples he cited in par. 25 of his opinion I will add that even the appellants’ argument in relation to the Law and Administration (Nullification of the Application of Law, Jurisdiction and Administration) Law, 5759-1999 (hereinafter: the Referendum Law), does not support their contention. The appellants attempt to deduce from the institution of “referendum” and from the provisions of the Referendum Law that within the bounds of “the people” – as a collective noun –all Israeli citizens of the state are included, as one nationality. However, the Referendum Law states, in sec. 6, only that –

A person shall have the right to participate in a referendum if he would have had the right to participate in elections to the Knesset had these been held at the time of the referendum. (Emphasis added – H.M.)

Section 5 of Basic Law: The Knesset, provides in this context as follows:

Every Israeli citizen of or over the age of eighteen years shall have the right to vote in elections to the Knesset, unless the court has deprived him of that right by virtue of any Law; the Elections Law shall determine the time at which a person shall be considered to be eighteen years of age for the purpose of the exercise of the right to vote in elections to the Knesset. (Emphasis added – H.M.)

From the above it transpires that in the Referendum Law also (the validity of which is now being examined in a petition before us in HCJ 9149/10 Dr. Vatad v. Israeli Knesset (13.5.2014)), eligibility to participate in a referendum is contingent upon Israeli citizenship (as well as majority), and not on affiliation to one nationality or another.

7. Here I will also remark that in relation to the connection between Israel and Diaspora Jewry, from which the appellants wish to dissociate themselves in order to isolate the “Israelis” from the “Jews” and vice versa, the appellants were not sufficiently precise from a legal point of view. One of the characteristics of Israel as a Jewish state is –

… its responsibility for the fate of the Jewish people as a whole, because it was established as an expression of universal Jewish solidarity. In view of this responsibility, it has the right and the duty to employ the tools of collective state action for the protection of Jews who are harmed “qua Jews.” (See: Prof. Moshe Halbertal, “Is a Jewish Democratic State Possible” (Ha’aretz Weekend Magazine, 22.4.2013).

A manifestation of this may be found in sec. 13(b)(2) of the Penal Law, 5737-1977, which applies Israeli penal law to foreign offenses against “the life, body, health, freedom or property of a Jew, as a Jew, or the property of a Jewish institution, because it is such.” This provision attests to the general approach of the legislator in relation to the protection of world Jewry that Israel is expected to provide. See: Melcer, “The IDF as the Army of a Jewish and Democratic State”, at p. 354.

This is also the view of Prof. S.Z. Feller and Prof. Mordechai Kremnitzer in their article: “Reply to the Article ‘Against Extra-Territorial Application of Penal Law on National Grounds’ by Y. Shachar”, Plilim (1996), 65-69 (Heb.), and see especially what the authors write on p. 88:

The most serious anti-Jewish events … in which so many Jews were murdered and injured and so many institutions throughout the world damaged only because they were Jewish – for example in France, Italy, Belgium, Austria, Turkey, Argentina .… It seems that the Jewish people, which has been persecuted most cruelly throughout its long history, has accumulated a feeling of solidarity in its heart, irrespective of the citizenship of each individual Jew, which obligates Israel, as a Jewish state, to spread the net of its penal law to such injuries, whether or not they were successful, and to ensure that being brought to justice for these deeds will not encounter any legal consideration that is based on foreign law, or on an act of a foreign court.

This logic also underlies the Nazi and Nazi Collaborators (Punishment) Law, 5710-1950.

8. I shall now proceed from the general to the specific, and deal with the relevant specific legislation. In this aspect, the appellants did not attempt to engage the compelling argument voiced at the time by (then) Justice Y. Kahan in the Tamrin Case, who referred to sec. 3A of the Population Registry Law. This section today provides as follows:

3A (a) A person shall not be registered as a Jew by nationality or religion if a notification under this Law or another registration in the Registry or a public document indicates that he is not Jewish, so long as the said notification, registration or document has not been controverted to the satisfaction of the Chief Registration Officer or so long as declaratory judgment of a rabbinical court in an action of a litigant who is a resident concerning matters of marriage and divorce in accordance with sec. 1 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, or of a court, provided that he is not a member of another religion.

(a1) If in the opinion of the Registration Officer, the notification, registration or public document as aforesaid in sec. (a) above were not presented to the rabbinical court or the court that made the determination as aforesaid in that section, he may approach the rabbinical or civil court, as relevant, and present the above to the court, and he is entitled to defer the registration, its amendment or change thereof until a decision is rendered by the rabbinical or civil court.

(b) For the purposes of this Law and any registration or document by virtue thereof, “Jew” – within its meaning in sec. 4B of the Law of Return, 5750-1950. (Section 4B of the Law of Return defines “Jew” as a person who was born of a Jewish mother, or who has converted to Judaism, and who is not a member of another religion.)

(c) Nothing in this section shall derogate from any registration that was made prior to its coming into force.”(Emphasis and comments in parentheses added – H.M.)

Hence, (then) Justice Y. Kahan deduced, in the Tamrin Case, that a Jewish person’s affiliation to the Jewish nation, for the purpose of registration, must be determined in principle according to a single criterion, i.e., whether the conditions for the definition of a Jew in the Law of Return have been met (here I must comment that in these contexts, questions remain on the meaning of “converted to Judaism, and who is not a member of another religion”; however, these questions are not relevant to the dispute before us. Moreover, even the monikers “the Jewish People” and “the Hebrew People” have undergone changes and taken on various meanings over the ages. See: Meir Sternberg, Hebrews Between Cultures: Group Portraits and National Literature (Indiana Uni. Press, 1998); Eric Nelson, The Hebrew Republic: Jewish Sources and the Transformation of European Political Thought (Harvard Uni. Press, 2010).

The appellants did not furnish a satisfactory response to the above approach of Justice Y. Kahan (and I will add that the legislative amendments brought about in sec. 3A of the Population Registry Law since the decision in the Tamrin Case have no bearing on our matter), and it therefore remains valid today. Hence, for the purposes of changing the item of nationality, the subjective feelings and views of the person requesting the change are unimportant; what is important is the provisions of the law and the accepted definitions of nationality. Nevertheless, the need may arise in the future to introduce certain legislative changes, in the framework of which it may also be possible to recognize some “local” nationality, one which will be created with the years, even if only in relation to the thousands who immigrated to Israel (as the relatives of Jews) by virtue of sec. 4A of the Law of Return, similar to the process behind the enactment of the Civil Union for Persons Having No Religious Affiliation Law, 5770-2010. It would be possible to include the appellants and those like them within this framework.

9. From what has been said to this point, and particularly in view of the argument discussed in para. 8 above, it is clear that I cannot agree to the course that my colleague, Justice U. Vogelman, described in para. 26 of his opinion for the appellants to consider adopting in the future. First, I cannot accept this because it was not something that the appellants requested in the framework of this process – the subject of the appeal before us – and my colleague indeed mentions this. To this I will add that in the Tamrin Case, even though the appellant there did make a request of this type in the framework of the appeal process, the Court decided not to accept it. This applies here a fortiori, where such alternative relief was not even sought. Needless to say, we have not heard arguments on this matter. Moreover, one can also argue about the distinctions that my colleague drew in these contexts (in view of the decision in the Shik Case). I will therefore confine myself to commenting that as distinct from citizenship and from religion, which can be “renounced” or changed, and for which there is also usually an institution or a “ceremony” by means of which, or with the authorization of which, the “renunciation” or “change” are performed – it is usually very difficult to renounce one’s nationality (just like a child cannot, in principle, “renounce” his parents). I will not go into the question here of whether one can hold “dual nationality” (like “dual citizenship”) and in what cases precisely is it possible to be a “universal person” lacking any nationality – a status claimed by Isaiah Shik, and which was granted to him.

10. Beyond all that has been said so far, I believe that President Agranat’s conclusion in his monumental decision in the Tamrin Case – in which all the other justices on the panel concurred – according to which, as Justice H. Cohn said there, “It was not proved that legally, an ‘Israeli nationality’ exists, and we ought not to encourage the creation of new national ‘fragments’” – is still valid.

11. Before concluding I would emphasize that the most that can be said in the context of the appellants’ position was expressed in the concluding paragraph of the opinion of the District Court (per (then) Judge N. Sohlberg), who stated:

There is nothing in this decision to say that there is no Israeli nationality – in a person’s heart, in the platform of a group of people, amongst a particular sector in the state. On the contrary, Prof. Uzi Ornan, like the other petitioners, believes that he is a member of the Israeli nation. This belief deserves respect and appreciation from those who share his view and those who oppose it.

My colleague, Judge Sohlberg, added “this belief does not require legal approval”; I however, believe that according to the prevailing legal situation, the subject is justiciable, but the demands of the appellants cannot be grounded in the existing law.

12. What emerges at this time from all the above is that in the current legal situation, citizenship is one thing, and nationality is another. Together with this basic position, several additional conclusions must be drawn:

(a) With respect to the members of different nationalities who reside in Israel – at this point the separate nationalities should not be “unified” and legally gathered into a new, inclusive “Israeli nationality”, for this controverts both the Jewish and the democratic character of the state (with respect to all the nationalities in our country, including Jewish nationality).

(b) Insofar as the Jewish nationality is concerned – it has been proved thus far that the Seer of the State, Dr. Benjamin Zeev Herzl, was right when he wrote in his book, The Jewish State (1896):

I think the Jewish question is no more a social than a religious one, notwithstanding that it sometimes takes these and other forms. It is a national question … We are a people – one people. (Emphasis added – H.M; from the Introduction to the book, The Jewish State (in Hebrew, see: http://benyehuda.org\herzl_003.html)

(c) The State of Israel was established and exists as a Jewish and democratic state as a solution for the Jewish people, which has suffered severe persecutions over the centuries and was mortally wounded in the Holocaust, and this is also one of the reasons for its definition – constitutionally – as such. There is therefore no legal basis for the appellants’ desire to negate the “Jewishness” of the State and to make all its citizens members of an “Israeli nationality”. The said determination does not, of course, detract from the obligation of the State, as derived, too, from the Jewishness of the State and from its democratic character, to protect and to grant full equality to all its citizens, residents and those over whom it has control, irrespective of nationality, race, religion, ethnic group and sex.

President Grunis

I concur in the opinions of my colleagues, Justice U. Vogelman and Justice H. Melcer, that the decision in the Tamrin Case applies to the matter which is the subject of the appeal, and that it has lost none of its validity. As such, I see no need to address the question of whether the District Court was justified in dismissing the appellants’ request on the grounds that the issue is non-justiciable from an institutional point of view. And another remark in relation to the proposal of my colleague, Justice U. Vogelman, that the nationality field in the population registry remain blank in the case of the appellants (para. 26 of his opinion): since this possibility was never raised by the appellants, I explicitly refrain from relating to it.

Appeal denied, with no order for costs.

28 Tishri 5774

October 2, 2013

Amended: 2 Heshvan 5774

October 6, 2013

[1] Translator’s note: The Population Registry Law translates the Hebrew לאום – le’om – as “ethnic affiliation”. Throughout the translation of this judgment, the more common, and more versatile translation, “nationality” or “nation”, will be used for le’om/le’umi- לאום/לאומי, but always as distinct from “citizenship”, unless otherwise dictated by the context.

Full opinion:

Ornan v. Ministry of the Interior.pdf

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

http://elyon1.court.gov.il/files/08/730/085/m15/08085730.m15.pdf

Tais Rodriguez-Tushbeim v. Minister of Interior

Case/docket number:

HCJ 2597/99

HCJ 2859/99

Date Decided:

Tuesday, May 31, 2005

Decision Type:

Original

Topics:

Constitutional Law

Law of Return

Jewish Law

Abstract:

Facts: The petitioners were lawful non-Jewish residents in Israel. They studied Judaism in various frameworks in Israel, and went abroad for a short time to undergo the ceremony of converting to Judaism in various Jewish communities outside Israel. Upon their return to Israel, they applied to the Ministry of the Interior (the first respondent) to be recognized as Jews for the purposes of the right of immigrate to Israel under the Law of Return, 5710-1950. The first respondent refused to recognize the conversions of the petitioners, on the ground that the petitioners did not join the communities that converted them, but returned immediately to Israel after the conversion ceremonies.

Held: (Majority opinion — President Barak, Vice-President Emeritus Mazza, Vice-President Cheshin and Justices Beinisch, Rivlin, Naor and Hayut) A conversion that is performed abroad within the framework of a ‘recognized Jewish community’ by the religious organs of the community that are competent for performing conversions should be recognized by the respondents for the purposes of the Law of Return. The ground for refusal, that the petitioners did not join the communities that converted them, was unreasonable, since the petitioners wished to join another Jewish community — the Jewish community in Israel. Consequently the petitions should be granted and the petitioners recognized as Jews for the purpose of the Law of Return.

(Minority opinion — Justice Procaccia) The combination of the spiritual act of joining the Jewish people with the acquisition of a civil status under the Law of Return and the right of citizenship in Israel, for someone who converts abroad while living in Israel, creates a dilemma. It mixes two worlds that should be kept distinct. The state has a duty to supervise the acquisition of citizenship, and to prevent the abuse of conversion in order to obtain citizenship by means of the Law of Return. The state should formulate a comprehensive policy that will regulate the conditions required for the purpose of recognizing conversions of an Israeli resident that are conducted abroad. The state’s criterion that a convert abroad should join the community that performed the conversion is a reasonable criterion for examining whether a conversion is genuine, although not necessarily the sole criterion. Since the first respondent has not yet formulated a comprehensive policy in this sphere, the petitioners’ conversions have not yet been properly examined. The petitions should therefore remain pending for an additional period, while the respondents formulate a comprehensive policy for recognizing conversions abroad of Israeli residents.

(Minority opinion — Justice Levy) The process of conversion involves a recognition of the right of every convert to return to Israel, which, except in rare cases, is equivalent to receiving Israeli citizenship. It is only natural that granting citizenship should be controlled by a state authority. The first respondent has no expertise in the field of the validity of conversions. It follows that the state is obliged to avail itself of another party that has expertise in this regard. The court has the tools to decide the question of the validity of the conversion, and it is therefore enjoined to turn to a state authority that has expertise in this field. Such an authority is the new state conversion system, which is capable of publishing, after extensive investigation, a list of Jewish communities abroad whose conversion processes will be recognized, so that there will be no question of the validity of their conversions.

(Minority opinion — Justice Grunis) The requirement that the state imposed for recognizing conversion of the kind that the petitioners underwent is reasonable. The possibility of receiving ‘instant’ citizenship by virtue of the right of return, easily and without commitment, is likely to lead to the occurrence of problematic and unseemly phenomena.

(Minority opinion — Justice Emeritus Türkel) The very important questions in this petition lie entirely within the spiritual realm. These questions have no legal solution and they cannot be resolved by a judicial determination. The court is not required to decide them merely because the petitioners chose to seek the court’s decision. Therefore the court should refrain from making a decision. The decision ought to be made following a thorough study of all the opinions and beliefs of all the sectors of the public, and with a joint effort to reach a broad consensus. The proposal of Justice Levy, that the new state conversion system should be authorized for these purposes, should be adopted.

Petition HCJ 2859/99 granted by majority opinion (President Barak, Vice-President Emeritus Mazza, Vice-President Cheshin and Justices Beinisch, Rivlin, Naor and Hayut), Justice Emeritus Türkel and Justices Procaccia, Levy and Grunis dissenting.

Petition HCJ 2597/99 became redundant since the petitioner received citizenship while it was pending, and the petition was therefore dismissed.

Voting Justices:

Barak, Aharon

Primary Author

majority opinion

Beinisch, Dorit

majority opinion

Rivlin, Eliezer

majority opinion

Naor, Miriam

Author

concurrence

Procaccia, Ayala

Author

dissent

Cheshin, Mishael

Author

concurrence

majority opinion

majority opinion

Author

dissent

Grunis, Asher

Author

dissent

Turkel, Jacob

Author

dissent

Full text of the opinion:

HCJ 2597/99

Tais Rodriguez-Tushbeim

1. Minister of Interior

2. Director of the Population Register, Ministry of Interior

HCJ 2859/99

Tamara Makrina

and 14 others

1. Minister of Interior

2. Director of the Population Register, Ministry of Interior

The Supreme Court sitting as the High Court of Justice

[31 March 2005]

Before President A. Barak, Vice-President Emeritus E. Mazza,
Vice-President M. Cheshin, Justice Emeritus J. Türkel and
Justices D. Beinisch, E. Rivlin, A. Procaccia, E.E. Levy, A. Grunis, M. Naor
E. Hayut

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

Petition HCJ 2597/99 became redundant since the petitioner received citizenship while it was pending, and the petition was therefore dismissed.

Legislation cited:

Basic Law: the Government, s. 32.

Citizenship Law, 5712-1952, ss. 1, 2(a), 2(b), 5(a)(2).

Engineers and Architects Law, 5718-1958, s. 9(a)(6).

Entry into Israel Law, 5712-1952.

Law of Return, 5710-1950, ss. 1, 2(a), 2(b), 2(b)(2), 2(b)(3), 4B.

Law of Return (Amendment no. 2), 5730-1970.

Physicians Ordinance [New Version], 5737-1976, s. 4(a)(3).

Population Registry Law, 5725-1965, s. 3A(b).

Psychologists Law, 5737-1977, s. 2(b).

Religious Community (Conversion) Ordinance, s. 2(1).

Veterinarians Law, 5751-1991, s. 5.

Israeli Supreme Court cases cited:

[1] HCJ 5070/95 Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [2002] IsrSC 56(2) 721.

[2] HCJ 72/62 Rufeisen v. Minister of the Interior [1962] IsrSC 16 2428.

[3] HCJ 58/68 Shalit v. Minister of Interior [1969] IsrSC 23(2) 477.

[4] HCJ 3648/97 Stamka v. Minister of Interior [1999] IsrSC 53(2) 728.

[5] HCJ 573/77 Dorflinger v. Minister of Interior [1979] IsrSC 33(2) 97.

[6] HCJ 265/87 Beresford v. Minister of Interior [1989] IsrSC 43(4) 793.

[7] HCJ 758/88 Kendall v. Minister of Interior [1992] IsrSC 46(2) 505.

[8] HCJ 487/71 Clark v. Minister of Interior [1973] IsrSC 27(1) 113.

[9] HCJ 1031/93 Pesero (Goldstein) v. Minister of Interior [1995] IsrSC 49(4) 661.

[10] HCJ 143/62 Schlesinger v. Minister of Interior [1963] IsrSC 17 225.

[11] HCJ 264/87 Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [1989] IsrSC 43(2) 723.

[12] HCJ 2888/92 Goldstein v. Minister of the Interior [1996] IsrSC 50(5) 89.

[13] HCJ 8600/04 Shimoni v. Prime Minister (unreported).

[14] HCJ 754/83 Rankin v. Minister of Interior [1984] IsrSC 38(4) 113.

[15] HCJ 2208/02 Salama v. Minister of Interior [2002] IsrSC 56(5) 950.

[16] CrimFH 8612/00 Berger v. Attorney-General [2001] IsrSC 55(5) 439.

[17] HCJ 1689/94 Harari v. Minister of Interior [1997] IsrSC 51(1) 15.

[18] HCJ 7139/02 Abbas-Batza v. Minister of Interior [2003] IsrSC 57(3) 481.

[19] AAA 9993/03 Hamdan v. Government of Israel [2005] IsrSC 59(4) 134.

[20] HCJ 2527/03 Assid v. Minister of Interior [2004] IsrSC 58(1) 139.

[21] HCJ 8030/03 Samuilov v. Minister of Interior (not yet reported).

[22] HCJ 11406/03 Peroskorov v. Minister of Interior (not yet reported).

[23] HCJ 47/82 Israel Movement for Progressive Judaism Fund v. Minister of Religious Affairs [1989] IsrSC 43(2) 661.

[24] HCJ 2757/96 Alrai v. Minister of Interior [1996] IsrSC 50(2) 18.

[25] HCJ 6191/94 Wachter v. Ministry of Interior (unreported).

[26] HCJ 4889/99 Abu Adra v. Minister of Interior (unreported).

[27] HCJ 1692/01 Abu Adra v. Minister of Interior (unreported).

[28] HCJ 8093/03 Artmiev v. Minister of Interior (unreported).

[29] HCJ 2526/90 Vegetable Growers Organization v. Vegetable Production and Marketing Board [1991] IsrSC 45(2) 576.

[30] HCJ 4354/92 Temple Mount Faithful v. Prime Minister [1993] IsrSC 47(1) 37.

[31] HCJ 636/86 Nahalat Jabotinsky Workers’ Moshav v. Minister of Agriculture [1987] IsrSC 41(2) 701.

[32] HCJ 399/85 Kahana v. Broadcasting Authority Management Board [1987] IsrSC 41(3) 255.

[33] HCJ 389/80 Golden Pages Ltd v. Broadcasting Authority [1981] IsrSC 35(1) 421.

[34] LAA 3186/03 State of Israel v. Ein Dor [2004] IsrSC 58(4) 754.

[35] CA 1805/00 Kineret Quarries (Limited Partnership) v. Ministry of Infrastructure [2002] IsrSC 56(2) 63.

[36] HCJ 2324/91 Association for Civil Rights in Israel v. National Planning and Building Council [1991] IsrSC 45(3) 678.

[37] HCJ 2828/00 Koblabesky v. Minister of Interior [2003] IsrSC 57(2) 21.

[38] HCJ 4156/01 Demetrov v. Minister of Interior [2002] IsrSC 56(6) 289.

[39] HCJ 758/88 Kendall v. Minister of Interior [1992] IsrSC 46(4) 505.

[40] HCJ 3373/96 Zathra v. Minister of Interior (unreported).

Jewish law sources cited:

[41] Jeremiah 31, 16.

[42] Mishnah, Avot (Ethics of the Fathers) 4, 7.

[43] Babylonian Talmud, Yevamot 47b.

[44] Maimonides, Letter to Obadiah the Convert.

For the petitioners — U. Regev, N. Maor.

For the respondents — Y. Gnessin.

JUDGMENT

President A. Barak

The petitioners came from different places around the world to Israel. Their presence here is lawful. They began conversion proceedings in Israel. They participated for approximately a year in courses for studying Judaism. When they completed the courses, they underwent a conversion process in a Jewish community outside Israel. Most of the conversions were performed by a religious court of the Reform community. One conversion was performed by a religious court of the Conservative community. Shortly after this they returned to Israel. They applied to be recognized as Jews for the purposes of the Law of Return, 5710-1950. The Minister of the Interior refused their applications, since immediately prior to the conversions they were not members of the Jewish community that converted them. Is this refusal lawful? That is the question before us.

The proceedings

1. The proceedings began with five petitions — including the two petitions before us — that were heard jointly. The respondent in all of the petitions is the Minister of the Interior. Three petitions concerned the effect of the conversions for the purposes of the Population Registry Law, 5725-1965 (HCJ 5070/95, HCJ 2901/97, CA 392/99). Two petitions, which are the petitions before us, concerned the effect of the conversions both for the purposes of the Population Registry Law and for the purposes of the Law of Return. After we finished hearing the arguments, we decided to separate the petitions concerning the Population Registry Law only from the petitions concerning both the Law of Return and the Population Registry Law. We first gave judgment in the three petitions concerning the Population Registry Law: HCJ 5070/95 Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [1]. Subsequently we turned to consider the two remaining petitions, which are the petitions before us. These petitions concern the effect of the conversion both for the purposes of the Population Registry Law and for the purposes of the Law of Return. In so far as the effect of the conversion for the purposes of the Population Registry Law is concerned, we ruled in our decision that this would be determined in accordance with our decision concerning the Law of Return. Let us now turn to consider this question.

2. Originally it was argued before us — when we were still hearing the five petitions together — that a conversion that is conducted outside Israel for someone who is not a part of the community in which the conversion takes place, and for the sole purpose of enabling the convert to join the Jewish community in Israel, can have no effect in Israel either for the purposes of the Population Registry Law or for the purposes of the Law of Return. According to this argument, the Jewish community in Israel should not be required to recognize the conversion of someone who is living lawfully in Israel (under the Entry into Israel Law, 5712-1952) and who travels to a community outside Israel merely in order to undergo the actual conversion ceremony. This approach was based on the respondents’ outlook that in Israel there is one Jewish community, which is headed by the Chief Rabbinate of Israel. Conversion in Israel, which by its very nature constitutes an act of joining this community, should be done with the approval of the Chief Rabbinate. In Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [1] (which was decided by a majority of Justices A. Barak, S. Levin, T. Or, E. Mazza, M. Cheshin, T. Strasberg-Cohen, D. Dorner, D. Beinisch, E. Rivlin, with the dissenting opinion of Justices J. Türkel and I. Englard), we rejected this argument in so far as it concerned registration in the Population Registry. We held that Jews in Israel do not constitute one religious community that is headed, in the religious sphere, by the Chief Rabbinate. Against the background of this ruling, on 5 March 2003 we asked the respondents to present their position in view of the judgment in Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [1].

3. In their reply (of 2 October 2003), the respondents no longer repeated their argument concerning the Jewish community in Israel. Instead, the respondents presented us with a new position. According to this, the Law of Return does not apply at all to someone who came to Israel under the Entry into Israel Law, and while he was in Israel underwent a conversion process (in Israel or outside Israel). According to this approach, the Law of Return concerns the right to live in Israel. It is not an immigration law that seeks to regulate the status of non-Jews who are present in Israel. The petitioners objected to this position, both because it involved a change of the state’s line of argument and also on its merits. In a decision of 31 May 2004 (hereafter — ‘the decision’), we rejected this line of argument by a majority (Justices A. Barak, T. Or, E. Mazza, M. Cheshin, D. Dorner, D. Beinisch, E. Rivlin, with the dissenting opinion of Justices J. Türkel, A. Procaccia, E.E. Levy and A. Grunis). We held, in principle, that the Law of Return applies to someone who is not a Jew, who comes to Israel and while present in Israel lawfully undergoes a process of conversion (whether in Israel or abroad). On the basis of this determination, which did not conclude the hearing of the petitions, and was merely an interim decision within the framework of the petitions, we requested in the decision that the respondents should present their position with regard to the petitioners’ claim that they are entitled to have the provisions of the Law of Return applied to each of them.

4. In a statement presented by the respondents on 17 November 2004, we received their revised position. It contains a restatement of the original position, with new reasoning. This reasoning is no longer based on the existence of a Jewish community in Israel which the convert wishes to join (an argument that was rejected in Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [1]). The respondents’ reasoning now distinguishes between a conversion that was conducted outside Israel and a conversion that was conducted in Israel. With regard to the former, the respondents recognize conversions conducted outside Israel, on an equal basis, by every recognized branch of Judaism (Orthodox, Conservative and Reform), in a recognized Jewish community and by the competent organs of the community. This recognition is restricted to conversion proceedings in which the convert joins the converting community, lives in it and becomes one of its members. It does not apply to converts who come to the converting community merely for the purpose of carrying out the conversion ceremony, without any real intention of joining that community. The reasons for this are as follows: the state’s recognition of a conversion performed outside Israel is based on the principle of respecting an act of a recognized Jewish community. The realization of this principle, for the purposes of the Law of Return, justifies a substantive examination of the conversion process, which will clarify whether the accepted procedures in that community with regard to a non-Jew who wishes to join it as a regular member were carried out for the convert. A certificate that a ceremony was conducted is insufficient in itself. With regard to conversion in Israel, the respondents’ position, which is based on several government decisions in recent years, is that the importance of the issue of conversion and the substantial rights that it brings with it justify recognition by the state (for the purposes of the Law of Return) only of a conversion that was conducted within a framework established by the state. Such a framework was established by the Israeli government, within the scope of its residual powers (s. 32 of the Basic Law: the Government), when it approved the conclusions of the Committee for Formulating Ideas and Proposals concerning the issue of Conversion in Israel (‘the Neeman Commission’). It includes an institute for studying Judaism, in which the three branches are represented, and a system of special religious courts which deals exclusively with the issue of conversion and which operates in accordance with Jewish religious law. A conversion that takes place in Israel must, therefore, comply with this procedure that was determined by the Neeman Commission. The petitioners did not carry out either of these procedures — in Israel or abroad —and therefore the conversions that they underwent should not be recognized.

5. On 22 December 2004, the petitioners filed a reply to the respondents’ statement. They reject the respondents’ position in both respects. With regard to conversion outside Israel, the petitioners argue that it is not the duty of the Ministry of the Interior, or any other official body, to evaluate the sincerity of the conversion on the basis of criteria of joining or becoming affiliated with the converting community abroad. That is the concern of the community that performed the conversion, and the state should be satisfied with the fact that a conversion process took place in that community, which is confirmed by a certificate from the relevant movement to the effect that the converting community is a recognized Jewish community that complies with the accepted rules of conversion in that movement. With regard to conversion in Israel, the petitioners deny the picture that is presented in the respondents’ statement, as if the state conversion system that was established guarantees openness and consideration for the various branches of Judaism. The petitioners describe the framework that the government established as a framework that perpetuates Orthodox control of the issue of conversion, without providing a solution for persons who wish to convert in a non-Orthodox conversion, and that keeps open the possibility of cancelling the conversion retrospectively when it transpires that the convert does not observe the commandments on a regular basis. Thereby, the petitioners claim, the state is acting contrary to the decision of this court, which (according to their understanding) regards a conversion performed in Israel and a conversion made outside Israel as equal for the purposes of the Law of Return. In reply to the state’s concern that a conversion process that does not take place within the framework of the state will lead to abuses, the petitioners say that the movements that represent the Conservative and Reform branches have told the Minister of the Interior in the past that they do not convert persons who do not have a residency status in Israel.

6. While we were considering the petitions, we were told that the petitioner in HCJ 2597/99 received Israeli citizenship by virtue of naturalization, and that she has been registered (according to the respondents, in error) in the Population Register as a Jew under the Law of Return. Consequently the petition on its merits has become redundant, and the petition remains pending only for the purpose of deciding the question of costs. Since making the decision (on 31 May 2004), two of the justices on the panel (Justice T. Or and Justice D. Dorner) have retired, and they were replaced by Justice M. Naor and Justice E. Hayut. With the consent of the parties, we are giving this judgment on the basis of the material in the files, without holding another hearing on the petitions before the current panel.

The normative framework

7. In the decision of 31 May 2004, we held, by a majority that —

‘In principle, the Law of Return applies to someone who is not a Jew, came to Israel and while staying in Israel underwent a conversion process (in Israel or outside Israel). It follows that the Law of Return applies in the case of the petitioners, and their right to an immigrant’s certificate will be determined in accordance with its provisions.’

The basic principle provided in the Law of Return is the following:

‘The right to immigrate

1. Every Jew is entitled to immigrate to Israel.’

The immigration shall be by means of an immigrant’s visa (s. 2(a)). The immigrant’s visa shall be given to every Jew who has expressed his desire to live in Israel (s. 2(b)). The Citizenship Law, 5712-1952, supplements this arrangement. It provides that ‘Every immigrant under the Law of Return, 5710-1950, shall become an Israeli citizen, by virtue of the right of return’ (s. 2(a)). The right to immigrate and the right to citizenship in consequence thereof is given to a ‘Jew.’ The term ‘Jew’ is defined in the Law of Return (s. 4B) as follows:

‘Definition

4B. For the purpose of this law, a ‘Jew’ is someone who was born to a Jewish mother or who converted, and who is not a member of another religion.’

It follows that the question before us is whether each of the petitioners is a Jew according to the definition of this term in the Law of Return. Since none of the petitioners was born to a Jewish mother, the question is whether it is possible to regard each of them as someone ‘who converted.’ There is no claim that, notwithstanding the conversion of each of the petitioners, he is ‘a member of another religion.’ But is it possible to say that each of the petitioners ‘converted’? It should be noted that this question does not arise before us within the framework of the Population Registry Law. That issue was decided in Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [1]. The question arises before us within the framework of the Law of Return. What is the meaning of conversion in the Law of Return?

8. The Law of Return originally provided that every Jew is entitled to immigrate to Israel, without the term ‘Jew’ being defined in the law. This gave rise to considerable problems, some of which came before the Supreme Court (see HCJ 72/62 Rufeisen v. Minister of the Interior [2]; HCJ 58/68 Shalit v. Minister of Interior [3]; see also A. Rubinstein and B. Medina, The Constitutional Law of the State of Israel (vol. 1, fifth edition, 1996), at p. 111). Against this background, the Law of Return was amended (Law of Return (Amendment no. 2), 5730-1970; on this development, see HCJ 3648/97 Stamka v. Minister of Interior [4], at p. 753; M. Corinaldi, The Riddle of Jewish Identity: the Law of Return de facto (2001), at p. 13; Rubinstein and Medina, The Constitutional Law of the State of Israel, supra, at pp. 124-125; A.H. Shaki, Who is a Jew in the Law of the State of Israel (vol. 1, 1977), at pp. 173-198). The Law of Return (Amendment no. 2) defined the term ‘Jew.’ It was provided that this definition applies both for the purposes of the Law of Return and for the purposes of the Population Registry Law. This definition resolved several problems and created new problems. The latter focused on two main questions. One concerns the meaning of the term ‘who converted’; the other concerns the meaning of the term ‘another religion’ (on this question, see HCJ 573/77 Dorflinger v. Minister of Interior [5]; HCJ 265/87 Beresford v. Minister of Interior [6]; HCJ 758/88 Kendall v. Minister of Interior [7]). The focus of the petition before us concerns the question of conversion. Let us turn to this.

9. Prima facie the answer to the question whether a person has joined Judaism should be left to the subjective decision of the convert. This was the position of Justice H.H. Cohn in Rufeisen v. Minister of the Interior [2]. It is a matter between a person and his God. The state should not adopt any position on this issue. I said ‘prima facie’ because there is no possibility of adopting this position for the purposes of conversion in the Law of Return. There are two reasons for this: first, the Law of Return provides someone who converted is a Jew. Conversion is a religious concept. It involves an act ‘of taking upon oneself the burden of Judaism and joining the Jewish people’ (per Justice Berinson in HCJ 487/71 Clark v. Minister of Interior [8], at p. 119). For the purposes of implementing the Law of Return it is therefore necessary to examine also the attitude of the Jewish religion to conversion, not merely the attitude of the convert. I discussed this in one case, where I said:

‘The concept “conversion” is, first and foremost, a religious concept, of which the secular legislature makes use… therefore the act of conversion — whatever its substantial content may be — should be consistent with a Jewish understanding of this concept’ (HCJ 1031/93 Pesero (Goldstein) v. Minister of Interior [9], at p. 747).

There is great dispute on the question of this ‘Jewish understanding’ (see Rubinstein and Medina, The Constitutional Law of the State of Israel, supra, at p. 131). There are those who claim that it only embraces Orthodox conversion (see A.H. Shaki, ‘The Validity in Israel of Reform Conversion Abroad — concerning the Meaning of “Jews” in the Jurisdiction in Matters of Dissolution of Marriage (Special Cases) Law, 5729-1969,’ 4 Israel Law 161 (1973); Shaki, Who is a Jew in the Law of the State of Israel, supra, at p. 178; Tz.E. Tal, ‘Reform Conversion,’ 17 Tehumin 189 (1997)). Others claim that it is also possible to recognize Reform and Conservative conversion within this framework (see Rubinstein and Medina, The Constitutional Law of the State of Israel, supra, at p. 135; A. Maoz, ‘Who is a Jew — Much Ado About Nothing,’ 31 HaPraklit 271 (1977); cf. also H.H. Cohn, ‘The Law of Return,’ Selected Writings 312 (1992); P. Shifman, ‘On Conversion Not According to Jewish Law,’ 6 Hebrew Univ. L. Rev. (Mishpatim) 391 (1975); Corinaldi, The Riddle of Jewish Identity: the Law of Return de facto, supra, at p. 82); as we shall see below, we do not need to decide this issue in the petitions before us.

10. Second, a person’s conversion for the purpose of the Law of Return has an effect that goes beyond the relationship between him and his Creator. It gives him the right ‘to immigrate to Israel’ (s. 1 of the Law of Return); it gives him ‘citizenship by virtue of the right to immigrate’ (s. 2(b) of the Citizenship Law). Indeed, Justice Tz.E. Tal rightly pointed out that conversion in the Law of Return has two facets: ‘On the one hand it is entirely a private matter, between man and his Maker. On the other hand, conversion has great public significance’ (Pesero (Goldstein) v. Minister of Interior [9], at p. 703). In a similar vein I said in the same case:

‘Conversion for the purposes of the Law of Return is not merely a private action of a person vis-à-vis his Creator; it is not merely a private action of several people who wish to convert someone. Conversion for the purpose of the Law of Return is an act that enables a person to join the Jewish people. It has public ramifications for regard to the right of return and citizenship’ (ibid. [9], at p. 747).

Justice Tz.E. Tal said that ‘the Law of Return is the central immigration law of the State’ (Pesero (Goldstein) v. Minister of Interior [9], at p. 703). It would appear that thereby Justice Tal understated the value of the Law of Return. The Law of Return has ramifications on the questions of immigration and citizenship. But it is far more than this. It is the expression of the connection between the Jew and his historic homeland. This was discussed by Prime Minister D. Ben-Gurion during the debate on the Law of Return:

‘The Law of Return has nothing to do with immigration laws. It is the eternal law of Jewish history. This law establishes the national principle that led to the founding of the State of Israel’ (Knesset Proceedings, vol. 6 (1950), at p. 2036).

The uniqueness of the right of return has been discussed by my colleague Justice M. Cheshin, who said:

‘This decisiveness of the right derives from its unique nature, in that it is the concrete expression of the connection between the Jew — as such — and the land of Israel. A Jew from the Diaspora who wishes to settle in Israel is no immigrant; he is “going up” to Israel, he is “coming back” to Israel, in the sense of “And the children shall return to their borders” (Jeremiah 31, 16 [41])’ (Stamka v. Minister of Interior [4], at p. 751).

In the decision (of 31 May 2004) that was made in the petitions before us, I said:

‘The Law of Return is one of the most important laws in Israel, if not the most important. Although it is not a “Basic Law” in form, it is certainly a Basic Law in essence… it is the most fundamental of all laws, and it constitutes, in the words of David Ben-Gurion, the “foundation law of the State of Israel.” This is the key to entering the State of Israel, which constitutes a central reflection of the fact that Israel is not merely a democratic state, but also a Jewish state; it constitutes “the constitutional cornerstone of the character of the State of Israel as the state of the Jewish people”… it gives expression to the “justification… for the existence of the Jewish state”… it is an expression of the right of the Jewish people to self-determination’ (ibid., at para. 18 of the decision).

It follows from this that the application of the Law of Return should not depend merely on the subjective wishes of the individual. A state does not entrust the key to enter it to every individual, according to his subjective wishes. The operation of the Law of Return depends upon the application of an objective test, according to which a person joins the Jewish people, and on the existence of proper measures of control and supervision for realizing this test, and for preventing its abuse.

11. In this we can see the difference between registering an individual as a Jew under the Population Registry Law and recognizing that same individual as a Jew under the Law of Return. The definition of a Jew in the two laws is identical (see s. 3A(b) of the Population Registry Law, which was introduced in 1970 at the same time as the definition of a Jew in the Law of Return). Notwithstanding, within the framework of the identical definition, the degree of state supervision and the standard of evidence required in these two situations is different. For the purpose of the Population Registry Law, the premise is (for the purpose of initial registration) that the registration official should register what he is told, unless it is manifestly incorrect (see HCJ 143/62 Schlesinger v. Minister of Interior [10]; HCJ 264/87 Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [11], at p. 732; HCJ 2888/92 Goldstein v. Minister of the Interior [12]; Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [1], at p. 735). Naturally, the definition of a Jew in the Law of Return — which is also the definition for the purposes of the Population Registry Law — has an effect on the question whether the subjective statement of the person seeking registration is manifestly incorrect. Obviously the registration official will not register as a Jew someone who applies to be registered as a Jew while stating that his mother is not Jewish and that he has not converted, but that his subjective feeling is that he is Jewish. It such a case it is manifest that this person is not a Jew, and the registration official will not register him as a Jew (Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [1], at p. 742). But apart from these cases where what the registration official is told is manifestly incorrect, the registration official does not make additional checks. This ‘low’ level of supervision and this minimal degree of evidence is determined by the nature of the register, which for the purpose of registering an individual’s religion is merely ‘a collection of statistical material for the purpose of managing the register of residents’ (Goldstein v. Minister of the Interior [12], at p. 93). The position with regard to the Law of Return is different. The recognition of conversion for the purpose of this law gives the convert the key to enter the State of Israel and to acquire citizenship in it. The level of supervision in this context should naturally be stricter and the standard of evidence required should be higher. It follows that it is possible that the same individual may be registered as a Jew in the register, but may not be considered a Jew for the purpose of the Law of Return. This difference derives from the different purposes underlying the Population Registry Law and the Law of Return. Let us now turn to the normative and objective test underlying the term ‘who converted’ and its operation in the context of the Law of Return, and let us begin with the fundamental position of the state.

12. Underlying the fundamental position of the State is the outlook that for the purposes of conversion in the Law of Return two main situations should be distinguished: first, where the conversion takes place outside Israel, and second, where the conversion takes place in Israel. This distinction originated in the state’s position in Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [11]. It continued in the state’s position in Pesero (Goldstein) v. Minister of Interior [9], at p. 678, and in Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [1]. Now this position has been presented to us in the petitions before us. The respondents’ statement says the following:

For the purposes of the petition before us, without deciding the issue, the basic distinction made by the state between a conversion that is performed outside Israel and a conversion that is performed in Israel will serve as a premise. We accept the state’s approach that if a conversion takes place within the framework of a recognized Jewish community outside Israel, in accordance with its rules, this conversion will be recognized in Israel for the purposes of the Law of Return. Indeed, the Jewish people is one entity. It is dispersed throughout the world, in many communities. Whoever converts in one of the communities outside Israel thereby joins the Jewish people, and should be regarded as a ‘Jew’ by virtue of conversion for the purposes of the Law of Return. This serves to encourage immigration to Israel. It serves to maintain the unity of the Jewish people in the Diaspora and in Israel. This approach — which emphasizes the approach that should be adopted, for the purpose of the Law of Return, in respect of a conversion that took place outside Israel — found its expression in the deliberations of the Knesset on the Law of Return (Amendment no. 2). The Minister of Justice, Y.S. Shapira, who presented the draft Law of Return (Amendment no. 2) on its first reading, emphasized in his remarks that:

‘There are many Jewish communities. I have no knowledge of what communities we have in the east. For example, do we know very much about the Jewish community in the Caucasus? But we know that there are Liberal Jews, there are Conservative Jews, there are Reform Jews, for all sorts and for all types, and they perform conversions. Therefore, I do not wish to determine any rules. We say therefore that an individual who comes with a conversion certificate of any Jewish community, provided that he is not a member of another religion, will be accepted as a Jew’ (Knesset Proceedings, vol. 56, at p. 781).

In the debate during the first reading, MK H. Zadok (the chairman of the Constitution, Law and Justice Committee of the Knesset) said that this amendment would contribute to the absorption of immigration, since it allowed Jews from the various branches to fall within the scope of the Law of Return. MK Zadok added:

‘The proposed law adopts a more general language, by saying that a Jew is someone “who converted,” which shows that anyone who underwent a conversion process in any Jewish community in the world does not have his credentials checked, and he is considered a Jew’ (Knesset Proceedings, vol. 56, at p. 766).

When he presented the draft law for a second and third reading on behalf of the Constitution, Law and Justice Committee, the chairman of the committee, MK H. Zadok, said:

‘There is in Judaism a large range of communities. In the west there are Ultra-Orthodox, Orthodox, Conservative, Liberal and Reform communities, and in each of these there are different nuances. In all these communities, which are all Jewish communities, conversions are performed. In other words, by means of a conversion process, individuals who are not Jews are welcomed into Judaism. I do not have sufficient knowledge about Judaism in the east; but I assume that there too there are different nuances and there too conversions are performed. If a person proves that he was converted in a Jewish community, it is not the concern of the secular official to examine, for the purposes of the Law of Return and for the purposes of the Population Registry Law, whether the conversion was performed in accordance with Jewish religious law. Anyone that converted in a Jewish community will be accepted as a Jew; in other words, he is entitled to immigrate to Israel as a Jew, he is entitled to citizenship by virtue of his right to immigrate to Israel and he is entitled to be registered as a Jew in the register of residents and in his identity card. The state will not examine — through its secular authorities — whether the conversion processes were in accordance with Jewish religious law’ (Knesset Proceedings, vol. 57, at p. 1137).

13. The distinction that the state makes between a conversion that is performed outside Israel and a conversion that is performed in Israel therefore enshrines a fundamental outlook with regard to the attitude of the Law of Return to conversion in Jewish communities outside Israel, and with regard to the important role of the law in the project of the ingathering of the exiles. Even if this is so, we would like to point out that notwithstanding the obvious difference between the two cases, naturally there is much in common between a conversion that is performed in Israel and a conversion that is performed abroad. The petitions before us do not require a decision on the question of the scope of the difference (or the scope of the similarity) between the cases, and we shall not express an opinion on this at this time. In our opinion, as aforesaid, the distinction between a conversion that is performed abroad and a conversion that is performed in Israel is a premise that is accepted by the state. Let us begin with conversion that is performed outside Israel. As we shall see, the decision in the petitions before us will find its place in this category of cases. We will not need, therefore, to examine the law that applies to conversions that are performed in Israel. Notwithstanding, we shall make several remarks on this matter.

Conversion performed outside Israel

14. As we have seen, the state does not dispute the fact that the Law of Return recognizes a conversion that is performed outside Israel, whatever the branch of Judaism under whose auspices the conversion was performed. Indeed, this achieves the purpose that underlies the Law of Return. Of course, within this framework — in order to realize this purpose — it must be ensured that only a conversion of a religious character is recognized, and no recognition should be given to a conversion that is made solely for the purpose of exploiting the right of a Jew to immigrate to Israel in order to acquire economic benefits. For this purpose, an appropriate degree of control and supervision is required to ensure that the institution of conversion is not abused. What is the significance of these demands? Let us turn to the state’s position.

15. The principle underlying the state’s position is that, for the purposes of the Law of Return —

‘The state is entitled to examine, inter alia, whether the accepted procedures, which are customary in that recognized community abroad in respect of a non-Jew who wishes to become a member of it for all intents and purposes, were carried out, and whether the conversion was performed by a religious body that received recognition for this purpose from a recognized Jewish community’ (para. 24 of the respondents’ statement).

Against the background of this principle, the state’s conclusion is that —

‘This principle is naturally limited to a convert who joins a community. The conversion proceeding is therefore a community act of a non-Jew who joins and becomes integrated into the Jewish community in the place where he lives’ (para. 23 of the respondents’ statement).

In summarizing her position, counsel for the state (Ms. Y. Gnessin) said:

‘The State of Israel recognizes, on an equal basis, a conversion that was conducted abroad by every recognized branch of Judaism, provided that it was done in a recognized Jewish community, by the competent religious body of the community, and in accordance with the procedures and rules that are adopted and accepted by it, which were intended to ensure the seriousness of the conversion. This principle is naturally limited to a convert who is a member of the community, who joins it and is integrated in it. The conversion process is therefore a community act of a non-Jew who joins a Jewish community and is integrated into it in the place where he lives, and as such it is as if he has been “converted” for the purposes of the Law of Return’ (para. 23 of the respondents’ statement).

It will be remembered that in Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [1] we rejected this conclusion with regard to the register. We said (while relying on Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [11]) that:

‘There is no importance to the connection between the convert and the community in which he converted. The relevant matter is that the Jewish community abroad carried out its accepted conversion practices with regard to the applicant. Indeed, what underlies the ruling in Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [11] is the approach that the Jewish people is one people. A part of it is in Israel; a part is in one Diaspora community; a part is in another Diaspora community’ (ibid. [11], at p. 751).

These remarks were made solely with regard to the Population Registry Law. The question before us is whether they are also valid with regard to the Law of Return. Indeed, the question is whether the state is right that for the purposes of the Law of Return a condition is required that the conversion was performed for the purpose of joining the community where the conversion was performed.

16. We accept the principle underlying the state’s position. A conversion, in view of its character (joining the Jewish people) and its importance (giving the convert a right to immigrate to the State of Israel), should be conducted in the accepted manner in a recognized Jewish community, which conducts conversions in accordance with its approach to conversion procedures. In saying ‘a recognized Jewish community’ we mean, as a rule, an established and active community that has a well-known Jewish identity that is common to its members, that has fixed frameworks of communal management and that belongs to one of the recognized branches of world Judaism. Insisting on these requirements will ensure that the conversion is not abused for the purpose of acquiring economic rights without any desire to join the Jewish people. I discussed this approach in Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [1], where I said:

‘It is not sufficient that three people announce someone to be converted by them. The requirement is that the conversion is performed by a religious body that has received recognition from a Jewish community’ (ibid. [1], at p. 751).

And in the decision of 31 May 2004 I said that:

‘Care must be taken to ensure the sincerity of the conversion, and the right of return should not be given to impostors, whose sole desire is economic benefits and not joining the Jewish people and coming to live in the Jewish state’ (ibid., at para. 20).

I said that we should increase ‘the supervision and scrutiny concerning anyone who wishes to realize his right under the Law of Return’ (ibid.).

17. Whereas we accept the fundamental approach of the state that conversion should be performed within the framework of a recognized Jewish community by the religious organs of the community that are authorized for this purpose, the conclusion that the state derives from this approach — recognizing only a conversion of an individual who wishes to join the community and become integrated in it — is totally unacceptable. It is not at all clear why we should limit the recognition of conversions performed abroad merely to those converts that wish to join the community that converts them. Why is it not sufficient to ensure that the conversion proceedings that take place with regard to a non-Jew who wishes to join the Jewish people but does not wish to join the Jewish community that converts him are identical to the conversion proceedings that take place with regard to a non-Jew who does wish to join the Jewish community that converts him? What is so special about joining the Jewish community in which the conversion took place? Why is it insufficient for an individual who underwent a conversion process to wish to join another recognized Jewish community that is outside Israel and from there to immigrate to Israel? And why should a conversion that was made in a recognized Jewish community not be recognized if the convert wishes to join the Jewish people who live in the land of Israel? Moreover, why should recognition be denied to someone who already lives lawfully in Israel and whose sole desire is to ensure recognition of the fact that he has joined the Jewish people living in the land of Israel?

18. We accept that abuse of conversions outside Israel should be prevented; we accept that if the convert does not immigrate immediately to Israel but joins a recognized community where he converted, this usually ensures that the conversion is not abused. But why should this be determined to be the sole possibility of ensuring the seriousness of the conversion? Take the case of an individual who is not Jewish. He wishes to join the Jewish people. He undergoes an Orthodox conversion in a recognized Jewish community outside Israel. He does not wish to joint that community but to immigrate to Israel. Why should he be prevented from doing so? Is there any doubt that the conversion that he underwent satisfies the requirement of conversion in the Law of Return? And if this is so with regard to an Orthodox conversion, why should conversions by other branches of Judaism be considered less favourably, when even according to the position of the state they should be treated equally?

19. The logical conclusion is that we should ensure that conversions in a recognized Jewish community outside Israel, which lead to immigration to Israel, are performed in accordance with the criteria that are accepted in that community for anyone who wishes to join that community. For this purpose, it is sufficient that those in charge of this matter in that community should give notice that a person converted in a recognized Jewish community in accordance with the ordinary criteria that it accepts and applies to all the conversions in that community, whether for persons who wish to join that community or for persons who do not wish to join it. Indeed, with regard to recognizing a conversion for the purposes of the Law of Return, we should not insist upon a requirement that the convert wishes to join the community that converts him. The recognition of conversion outside Israel should not be restricted solely to someone who joined the community in which he was converted. This is certainly the case for someone who after conversion did not join the community that converted him but joined another community outside Israel. If after several years that person realized his right under the Law of Return, what concern of abuse is there in such a case? The same should apply to someone who after the conversion does not join a Jewish community outside Israel but wishes to join the Jewish people in the land of Israel. Such a case should certainly require consideration and scrutiny. But no strict rule should be determined to the effect that such a convert will not be recognized as a Jew for the purposes of the Law of Return. Indeed, the rules and arrangements should not be allowed to lead to a result whereby the desire to prevent recognition of the conversions of converts that abuse the right to immigrate to Israel prejudices the right of converts who properly exercise their right to join the Jewish people. Control and supervision should be exercised to ensure that anyone who converted abroad and immigrates to Israel has undergone an accepted conversion procedure. To this end, we should examine whether the convert underwent a conversion that is accepted by a recognized Jewish community outside Israel. The control and supervision are not limited to the sole possibility that the state raised, which requires joining the converting community. It is possible to prevent abuse of the right to immigrate to Israel in various different ways. Each case has its own circumstances. Let us now turn to the petitioners before us.

From general principles to the specific case

20. What is the position concerning the petitioners? The answer to this question requires us to consider two secondary questions. The first of these is the following: should the petitioners be regarded, for the purposes of the Law of Return, as persons who converted outside Israel, or should they be regarded as persons who converted in Israel? If each of the petitioners should be regarded as someone who converted outside Israel, then the second question arises. This is whether we should recognize, for the purpose of the Law of Return, the conversion that was conducted for each of the petitioners outside Israel, in view of the fact that, shortly after the conversion took place, the converts returned to their lawful place of residence in Israel. Let us begin with the first of these questions.

21. Was each of the petitioners converted in Israel or abroad? As we have seen, each of the petitioners was living lawfully in Israel. They devoted themselves to Jewish studies in Israel for the purposes of a conversion. Most of the petitioners studied within the framework of the Reform movement. One of the converts studied within the framework of the Conservative movement. The studies lasted approximately one year. At the end of the studies, each of the petitioners was referred by the movement in which he studied to a religious court of that movement that operates in one of the communities outside Israel. They travelled to that community. They were converted in it. Shortly afterwards they returned to Israel. Is the conversions of each of the petitioners a conversion that was made outside Israel or in Israel?

22. Conversion in Judaism is based on a legal act of conversion that constitutes the conversion (see M. Finkelstein, Conversion: Theory and Practice (1994), at p. 19). The studies in preparation for the conversion are not a part of the conversion itself. Therefore the conversion of each of the petitioners took place outside Israel. The studies that each of the petitioners underwent in Israel are not a part of the conversion. They are merely preparatory acts for the conversion. They are not a constitutive part of the act of conversion. Indeed, in the petitions before us it was not alleged at all by the respondents that the petitioners did not undergo a process of conversion in a recognized Jewish community. The respondents’ arguments, in their various forms, focused consistently on requirements that are external to the actual conversion. At first the respondents argued that since each of the petitioners does not wish to join a Jewish community outside Israel but to join the Jewish community in Israel, the act of conversion that was done outside Israel should require the approval of the Chief Rabbinate, which heads the Jewish community. When we rejected this argument in Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [1], the respondents raised another argument before us. According to this, the Law of Return does not apply at all to someone who came to Israel, and while he was in Israel underwent a conversion process — whether Reform, Conservative or Orthodox — in Israel or abroad. Even in the context of this argument, no doubt was cast on the existence of a conversion outside Israel. When we rejected the argument that the Law of Return does not apply to the petitioners’ case, the respondents raised before us the argument, which we are now considering, that the conversion that took place outside Israel required the external condition that the convert would join the community in which he converted. Ms. Gnessin writes on behalf of the state:

‘The petitioners before us lived in Israel throughout the period during which their conversion process took place. They underwent the preparatory procedures in Israel, not within the framework of the state’s conversion system, and they went abroad for a few days in order to hold the conversion ceremony. Consequently, since the petitioners are not members of the community abroad where the conversion took place, and they did not join that community nor were they integrated into it, they should not be regarded as persons who underwent the conversion process abroad nor should they be regarded as persons who “converted” for the purposes of the Law of Return’ (para. 27 of the respondents’ statement).

We are rejecting this position in our judgment. We are deciding that under the Law of Return there is no absolute condition, for recognition in Israel of a conversion that took place outside Israel, that the conversion was intended for the purpose of joining the community where the conversion took place. Against this background, the second question before us arises. This requires us to consider whether the conversion outside Israel was done merely in order to take advantage of the right of a Jew to immigrate to Israel. Let us now turn to examine this secondary question.

23. Each of the petitioners devoted approximately one year to Jewish studies in Israel. They were referred by the Reform movement (in the vast majority of cases) and the Conservative movement (in the case of one of the petitioners) to perform the conversion in a community of that movement in which they studied Judaism. It has not been argued at all that the conversion that was conducted for each of the petitioners was different from the conversion that is conducted for anyone wishing to joint the converting community. In our opinion, it is sufficient that each of the petitioners was referred for conversion procedures within the framework of the movement in which he studied Judaism and presented a certificate from the competent organ in the recognized converting community with regard to the completion of the conversion procedure in order for us to assume that the act of conversion that he underwent was not designed specifically for him, but was the same conversion that everyone undergoes in any community that belongs to that movement. I will add, though it is not required for our decision in this case, that no argument was made before us to the effect that the sole purpose of each of the petitioners was to obtain the economic benefits that immigration to Israel provides, and that they have no real intention of joining the Jewish people in Israel. In all of the proceedings concerning the petitioners, the state did not question the sincerity of each of the petitioners. Indeed, the prima facie impression received is that each of the petitioners formed a genuine desire to join the Jewish people in the State of Israel; that for most of the petitioners this desire is what brought them to Israel; and that for each of the petitioners this desire is what led them to devote a year of their lives to Jewish studies. We discussed this in the decision of 31 May 2004:

‘All of the petitioners are lawful residents in Israel. They devoted themselves to Jewish studies in Israel, which lasted for many months. It was not alleged before us that the petitioners are insincere in their desire to join the Jewish people and to live in our country’ (ibid., at para. 20).

24. We accept that it is necessary to check and examine whether the conversion was performed in a recognized Jewish community. This is required in order to prevent an abuse of the right to immigrate to Israel. Within this framework, the case before us is prima facie a simple and easy case to examine: the converting communities are a part of the main branches of world Judaism; these branches operate in many communities, and they even operate in Israel; the preparation for the conversion was done in Israel and took place over a significant period. These facts, when taken together, lead to the conclusion that the fact that each of the petitioners did not join the community where he was converted but returned to Israel in order to join the Jewish community that lives in Israel cannot prevent the recognition of the conversion for the purposes of the Law of Return. All of the facts indicate that the conversion is not a fiction that was designed to achieve economic advantages, but a genuine conversion that was intended to lead to joining the Jewish people. Indeed, precisely the fact that the preparations for the conversion were done in Israel, within the framework of one of the recognized branches of Judaism, is what gives credibility to the conversion that was conducted in a Jewish community outside Israel that belongs to that branch.

25. Our conclusion is therefore that each of the petitioners converted outside Israel in a manner that satisfies the definition of the term ‘Jew’ in the Law of Return. He is entitled to immigrate to Israel and he is entitled to receive an immigrant’s visa, unless the Minister of the Interior finds that he is likely to endanger public health or security (s. 2(b)(2) of the Law of Return) or that he has a criminal record that is likely to endanger public safety (s. 2(b)(3) of the Law of Return). Thus the case of the petitioners is concluded. We therefore do not need to consider the petitioner’s case on the assumption that their conversion took place in Israel. Since the arguments of the state were devoted mainly to this question, we will raise several points on this subject.

A conversion that is conducted in Israel

26. The consistent position of the state is that in view of the character and consequences of conversion, state scrutiny of conversion should be ensured. With regard to the Law of Return (and other civil issues), a conversion performed by a ‘private religious court’ should not be recognized without distinguishing between the various branches of Judaism. First it was argued before us that in order to recognize a conversion that was conducted in Israel for the purposes of the Law of Return, the conditions in the Religious Community (Conversion) Ordinance should be satisfied, which means that approval should be obtained from the head of the community that a person wishes to join, as proof that he was accepted into that religious community (s. 2(1) of the Ordinance). We rejected this position in Pesero (Goldstein) v. Minister of Interior [9]. We held that the Religious Community (Conversion) Ordinance applies to the matters on which the religious courts have jurisdiction. It has no application with regard to the Law of Return. How, then, is the recognition of conversion in Israel determined for the purpose of the Law of Return? On this issue, we wrote in Pesero (Goldstein) v. Minister of Interior [9]?

‘Our decision today is limited in scope. All that we are deciding is that the Religious Community (Conversion) Ordinance does not apply for the purpose of recognizing conversion under the Law of Return. We are not holding that every Reform conversion is recognized for the purposes of the Law of Return… Therefore, we are not ordering the respondents to regard the petitioner as a Jewess for the purposes of the Law of Return… Our decision today is of a negative character only. We are determining the “negative aspect” (the Religious Community (Conversion) Ordinance does not apply). We are not deciding the “positive aspect” (the exact content of the nature of conversion in Israel). As we said, the “positive aspect” may be determined expressly and specifically by the legislature. Notwithstanding, as long as the Knesset has said nothing on the subject, we are dealing with a lacuna in the law. If the legislator does not say anything on this subject, there will be no alternative but to make a judicial decision in this matter in accordance with the existing definition. This judgment does not determine the scope of the “positive aspect” or the details thereof’ (ibid. [9], at p. 767).

Since the judgment was given in Pesero (Goldstein) v. Minister of Interior [9] (on 12 November 1995), no law has been enacted in this regard.

27. After the argument concerning the application of the Religious Community (Conversion) Ordinance was rejected — within the framework of the petitions before us and in the petitions that were considered in Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [1] — the state raised a new argument. It argued that there is one Jewish community in Israel, which is organized within a national framework under the leadership of the Chief Rabbinate. A conversion that is conducted in Israel, which by its very nature constitutes an act of joining this community, should be done with the approval of the Chief Rabbinate. We rejected that argument in Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [1]. We held that Jews in Israel do not constitute one religious community that is headed, in the religious sphere, by the Chief Rabbinate.

28. When we rejected the state’s arguments with regard to the Religious Community (Conversion) Ordinance (in Pesero (Goldstein) v. Minister of Interior [9]) and with regard to joining the Jewish community (in Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [1]), we asked for the state’s position concerning the petitioners before us. We asked what were the conditions for recognizing their conversion for the purposes of the Law of Return. It was first argued that the Law of Return does not apply to them. We rejected this argument in the decision we made on 31 May 2004. We once again asked for the position of the state concerning the conversion of the petitions under the Law of Return. Against this background, the respondents raised a new argument with regard to conversions conducted in Israel, which relies on the conversion system that was set up following the report of the committee established by the government on the question of conversion in Israel. This committee was chaired by Prof. Y. Neeman (‘the Neeman Commission’). This committee recommended establishing one national conversion procedure, which would be recognized by the whole Jewish people. Within this framework, it was recommended that a joint institute would be established for the study of Judaism. This institute would be common to all the three branches of Judaism. The actual conversion proceedings would be carried out in special religious courts for conversion, that would be recognized by all the branches of Judaism. The purpose of the proposal was to prevent a split in the Jewish people, and at the same time to regulate the national approach to conversion. On 7 April 1998, the Government of Israel adopted the report of the Neeman Commission. The Knesset also approved these recommendations in their entirety. The government further determined that the head of the conversion system would be appointed by the Chief Rabbi of Israel. He is the person responsible, on behalf of the Chief Rabbinate, for the conversion system and the comprehensive policy concerning conversion in Israel. He was authorized to sign conversion certificates on behalf of the Minister of Religious Affairs. On 27 Elul 5764 (13 September 2004) the Chief Rabbi of Israel and the President of the Great Rabbinical Court published rules for considering conversion applications. The state’s position before us now is that for the purposes of the Law of Return only a conversion conducted in Israel within the framework of this national system should be recognized. With regard to the legal basis for establishing the conversion system it was argued before us that it is enshrined in s. 32 of the Basic Law: the Government.

29. The conversion in our case took place outside Israel. We therefore have no need to examine the state’s position in depth. We only wish to make two comments in this regard: first, in so far as the Law of Return is concerned, a conversion, whether in Israel or abroad, is not merely a private matter. It has a public aspect (Pesero (Goldstein) v. Minister of Interior [9], at p. 747). There is a basis, therefore, for public supervision of conversion in Israel, for the purposes of the Law of Return. This was discussed by President M. Shamgar in Pesero (Goldstein) v. Minister of Interior [9]:

‘The further we distance ourselves from the sphere of personal status, it is clear that religious affiliation has a different significance, and therefore it is logical that the scope of the control and supervision, as well the body responsible therefore, should be a civil and national one... Whereas in the field of religious jurisdiction there is a reason to entrust the consideration and decision of issues to the religious authority, there is no such reason when we are speaking of a secular law’ (ibid. [9], at p. 687).

I made similar remarks in my opinion (ibid. [9], at p. 747). I returned to this idea in Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [1]:

‘I accept that conversion in Israel is not merely a private act; it has public ramifications. By virtue of it a person joins the Jewish people. In consequence he can acquire Israeli citizenship. There is therefore a justification for state regulation of the public aspects of conversion… State supervision of the public aspect of conversion… should be determined by the Knesset’ (ibid. [1], at p. 753).

30. Second, the government regarded the realization of the Neeman Commission report as a solution to the problem of conversion in Israel. We are not adopting any position on this matter, which raises difficult problems. It is sufficient to point out that it can be seen from the petitioners’ reply (of 22 December 2004) that there is no consent on the part of all the branches in Judaism with regard to the manner in which the government acted, and that according to the petitioners the conversion system that was established does not follow the Neeman Commission Report, but makes the conversion subservient to the Chief Rabbinate. We are not going to consider these claims. We wish merely to say this: we accept that the government is competent to establish, by virtue of its (residual) general power prescribed in s. 32 of the Basic Law: the Government, a conversion system similar to the one that was established following the recommendations of the Neeman Commission. Notwithstanding, the government is not competent to determine, by virtue of its general power, that only conversion that is conducted within this framework shall be recognized under the Law of Return. The recognition of conversion for the purposes of the Law of Return shall be determined in accordance with the interpretation of the Law of Return. It is of course possible that the requirements of the Law of Return for the purposes of conversion will be consistent with the arrangements provided in the conversion system under the Neeman Commission report. In so far as this consistency exists, it derives solely from the provisions of the Law of Return. Where there is a conflict between the interpretation of the Law of Return and the conversion arrangements under the Neeman Commission report, the Law of Return prevails. The government’s (residual) general power cannot override what is stated in the Law of Return or violate a human right (see HCJ 8600/04 Shimoni v. Prime Minister [13]). It follows that as long as the Knesset has not lawfully said anything on the subject, the problem of recognizing conversion for the purpose of the Law of Return should be resolved within the framework of the interpretation of the Law of Return. This is what we decided in Pesero (Goldstein) v. Minister of Interior [9]. We affirmed this in Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [1]. We are affirming this once again today.

Postscript

31. The term ‘Jew’ in the Law of Return gives rise to difficult problems. This was the case before the Law of Return (Amendment no. 2). It is also the case after the amendment. The recognition of conversion that is performed outside Israel and in Israel gives rise to fundamental questions concerning the character of the State of Israel as a Jewish and democratic state. It concerns the relationship between the Jewish people in the Diaspora and the State of Israel and the relationship between religion and state in Israel. The main task of resolving these problems lies with the Knesset as the legislature. Even though it is not completely unfettered in carrying out this task — in view of the restrictions that it imposed on itself in the Basic Laws — the discretion that it has is broad. Apart from the Law of Return (Amendment no. 2), the Knesset has adopted no position on this question. The resolution of these problems was therefore brought before the court by the petitioners who were personally harmed by the position of the Minister of the Interior. We had no choice but to decide them, since the petitioner argued that their rights under the Law of Return were violated. Notwithstanding, the primary arrangements with regard to the problem that arises — namely the recognition of Reform or Conservative conversions that are conducted in Israel — should be determined by the legislature. I will not express any position on this matter. I will merely repeat some of the remarks that I wrote in memory of Zevulun Hammer on the subject of national unity:

‘As justices, our power is limited. Admittedly, every problem has a legal solution. But the legal solution is not the ideal solution for every problem. Not every problem that can be solved in the court should be solved in the court. The solution for the relationship between religion and state and healing the national rift requires a national compromise. Judges cannot bring about this compromise. We make our contribution in our judgments; we do our part in our constitutional approach that is based on a balance between competing values; the balance between the power of the majority and the right of the minority; the approach that human rights are not absolute, but relative; that it is permitted to violate them for a proper purpose, but not excessively; that democracy is tolerant, even of intolerance. All of these are essential, but insufficient, conditions for a national compromise. It requires the emotional strength of the whole people; it requires love of others, and not hatred of others; it requires bringing people closer together and understanding them, and not distancing oneself from them and pushing them away’ (A. Barak, ‘On National Unity,’ 23 Tel-Aviv University Law Review (Iyyunei Mishpat) 601, at p. 604).

32. Our judgment does not decide the question whether a Reform or Conservative conversion that is conducted in Israel is recognized for the purposes of the Law of Return. We gave no answer to this question in Pesero (Goldstein) v. Minister of Interior [9] or in the decision of 31 May 2004 in the petitions before us. In this judgment we also give no answer to this question. The petition before us concerns conversions that took place outside Israel, and there are no grounds in this case for deciding the question of the recognition of conversions that took place in Israel. With regard to conversions outside Israel, we are deciding that a conversion conducted in a recognized Jewish community in accordance with its own rules should be recognized for the purposes of the Law of Return. In this regard, it makes no difference whether the convert joins that community after the conversion, whether he goes to another Jewish community outside Israel and afterwards immigrates to Israel, or whether he immigrates to Israel shortly after the conversion. With regard to the last possibility, it makes no difference whether before immigrating to Israel he already lived lawfully in Israel or he came to it for the first time after the conversion. In all of these cases, the conversion that was conducted outside Israel will be recognized under the Law of Return.

33. We are aware of the state’s need to maintain control of the recognition of conversions within the framework of the Law of Return. This is required by the natural need of a state to supervise a process that makes a person a citizen in it. Conversion is not merely a private act of a religious nature. It has a public civil nature. This aspect requires state supervision. This supervision finds expression in our approach that a conversion that takes place outside Israel within the framework of a recognized Jewish community satisfies the requirements of the Law of Return. Thus the state fulfils the need for supervision, while maintaining the relationship between the Jewish people in Israel and the Jewish people in the Diaspora. This condition is satisfied by the petitioners, and therefore they should be recognized as Jews for the purpose of the Law of Return.

The result is that we are making the order nisi absolute, in the sense that we hold that each of the petitioners in HCJ 2859/99 is a Jew for the purposes of the Law of Return, since they have undergone a process of conversion in a recognized Jewish community outside Israel. The petition in HCJ 2597/99 has become redundant, and therefore it is dismissed. In the circumstances of the case, no order for costs will be made.

Justice D. Beinisch

I agree with the opinion of my colleague the President, and like him I am of the opinion that the requirement that the conversion should be conducted in a ‘recognized Jewish community’ allows the state to maintain the supervision that is required by the significance of recognizing conversion for the purposes of the Law of Return.

I also agree with the outcome in the specific cases of the petitioners in HCJ 2859/99, for the reasons set out in the President’s opinion.

Justice E. Rivlin

I agree with the opinion of my colleague, President A. Barak.

Justice M. Naor

1. Subject to one comment, which has no ramifications on the petitioners’ case, I agree with the opinion of my colleague the President.

2. The matter has been concluded but it is not complete. The case of the petitioners and the petitions have been concluded. The consideration of the question of conversion is not complete. First, we have not decided the question of conversion in Israel for the purpose of the Law of Return. Second, in these petitions the state did not dispute that there is no case before us where the conversion proceedings were abused. Therefore in this petition the question of how we can, de facto, prevent the key to enter the State of Israel being handed over to external bodies did not arise. I accept that as a rule we should recognize a conversion that was conducted by a recognized Jewish community. The state proposed a criterion according to which conversion abroad should be recognized only for persons who joined one of the communities, and as the President explained, this criterion should not be adopted. But in my opinion even when we are speaking of conversion that was conducted abroad within the framework of a recognized Jewish community, there may arise a question as to whether the conversion process was abused. Indeed, as a rule, and as my colleague the President says, ‘a conversion that was conducted outside Israel within the framework of a recognized Jewish community satisfies the requirements of the Law of Return’ (para. 33), but this is not necessarily the case. In my opinion, even a conversion process that is carried out in a recognized Jewish community may still not be recognized by the state if it involved an abuse of the possibility of conversion. I do not think that Jewish communities are aware that the State of Israel ‘relies’ upon them to examine the question of abuse. The facts and the arguments in the petition before us do not allow us to determine firm rules on the question of when there is abuse. If in the future concrete problems are brought before us on this question, we will hear the arguments of the parties and make our decision.

Justice A. Procaccia

Introduction

1. I regret that I cannot agree with the conclusion of my colleague, President Barak, and with my other colleagues who agree with his opinion, according to which the order nisi in this proceeding should be made absolute and the conversion process that the petitioners underwent in a Jewish community outside Israel should be recognized as valid for the purpose of recognizing their status under the Law of Return.

The reason for this lies, in my opinion, in the fact that the competent authority has not yet been given an opportunity to adopt a comprehensive policy that will regulate the conditions required for the purpose of recognizing conversions of an Israeli resident that are conducted abroad, and the cases of the petitioners have not been examined on an individual basis in accordance with the conditions that should be determined as aforesaid. The dispute does not focus on the principle and essence of the matter, according to which, for the purposes of the Law of Return, a conversion that takes place abroad within the framework of a religious branch that is not Orthodox should be recognized not only for a foreign resident but also for someone who resides in Israel. The difficulty concerns the method and system that should be adopted in order to realize this principle in a correct and proper manner. The method and the system have not yet been properly formulated by the public authority, and therefore the time for recognizing the interests of the petitioners has not yet arrived. The state should be given an opportunity to regulate the matter in a general and systematic manner in order to guarantee a proper conversion process that will not lead to any problem, in view of the important ramifications of this process not merely for the purpose of acquiring the national-religious connection that is acquired thereby, but also for the purpose of acquiring the status under the Law of Return and the right of citizenship that derive from it. Addressing the manner of realizing foreign conversions and ensuring their propriety will ensure the proper application of the important principle that recognizes the validity of pluralistic conversions abroad for the purpose of granting rights under the Law of Return and the right of citizenship to someone who resides in Israel.

Following the majority view in the first decision that was made by us in this proceeding, the premise in our case is that it is possible to recognize the status of someone who is a resident in Israel as having a right under the Law of Return where, while he was resident in Israel as aforesaid, he underwent a recognized conversion procedure, whether in Israel or abroad. I also agree with the determination in the President’s opinion that, although the conversion process that is carried out in Israel within one of the branches of Judaism that is not Orthodox (Reform or Conservative, hereafter — ‘a pluralistic branch’) has not yet been recognized by the organs of the state, nonetheless where it is conducted in a recognized Jewish community abroad it is likely to grant someone who converted abroad a status under the Law of Return when he comes to Israel. This is the case with regard to a foreign resident who converted in this manner and later immigrated to Israel, and it is also the case with regard to someone who lives in Israel and began conversion proceedings in Israel within the framework of one of the pluralistic branches and for the purpose of completing the conversion process he underwent a conversion ceremony abroad in a recognized community and returned to live in Israel. The point in dispute is therefore narrow. It concerns, in essence, the following questions: is there an inherent concern that conversions abroad will be abused as a means of obtaining a civil status in Israel? Is a system of rules and conditions required in order to ensure the propriety of such a conversion with regard to persons living in Israel? What is the scope of the state’s authority to determine such rules? What is the scope of the supervision and judicial scrutiny that should be exercised with regard to this policy?

My ultimate conclusion, in essence, is this: combining the act of conversion with the acquisition of a status under the Law of Return and the right of citizenship that derives therefrom creates an inherent difficulty for people living in Israel. This is because it combines an act of conversion that seeks to create a connection with the Jewish people and Jewish tradition with the acquisition of a civil status in Israel by means of the right under the Law of Return and the right of citizenship. This combination naturally gives rise to a question concerning the motive for the conversion; is it being done for its own sake or in order to facilitate the process of acquiring citizenship? A second difficulty arises in a situation where part of the conversion process — the studies and the preparation in matters of Judaism — is done in Israel, whereas the act of conversion itself is done abroad, in one of the Jewish communities scattered around the world. In this context there are questions as to the propriety of the process, the honesty of the motive for undergoing the process, and the scope of the state’s responsibility to supervise properly the process of acquiring the civil status in Israel, including the acquiring of a status under the Law of Return and the Citizenship Law. In order to ensure the propriety of the aforesaid process of conversion abroad, the competent authority needs to formulate a detailed set of rules in order to ensure the propriety and reliability of the conversion process abroad. The state has not yet been given the opportunity of formulating a comprehensive policy in this field. All that it has decided at this time is to impose a condition that the convert should join the converting community abroad for a significant period of time in order to show the sincerity and propriety of the process. This condition, in itself, is not unreasonable in my opinion, and it is capable of indicating the sincerity of the conversion process. Notwithstanding, there is no basis for making this condition a sole criterion in itself, since there is a concern that it will prevent many people from realizing their sincere desire to convert because they are unable, or do not have the means, to comply with the requirements that it establishes. A complete set of conditions should be formulated, and these should include alternative conditions that are intended to ensure genuine conversions, of which the condition of joining the converting community may be one. Within the framework of this case, the policy of the authority has not been fully formulated. Moreover, the specific cases of the petitioners in this proceeding were not examined by the state, according to the circumstances of each individual. Consequently, the proper way forward in my opinion is to leave the petitions pending in this court in order to give the state an opportunity to formulate a complete set of conditions and criteria for the purpose of recognizing the foreign conversions of individuals who are resident in Israel, and to allow the petitioners to act in order to further their interests in accordance with guidelines that will be established in the future, within a reasonably short period of time.

Let me clarify my position in detail.

The issue

2. A person who is not Jewish comes to Israel and lives here lawfully with a permit (hereafter — ‘the Israeli resident’). In the course of time, he wishes to convert and continue to live in Israel. He wishes to undergo a conversion process within the framework of one of the pluralistic branches, and since such a conversion is not recognized by the state establishment in Israel, he acts in the following manner. He undergoes a process of studying Judaism in Israel for a period of time within the branch that he chose. When his studies are completed, he is referred to a community abroad that belongs to that branch. He travels to that community for a short period of time, which is usually a few days, undergoes a conversion ceremony there and returns to Israel to continue living here as a Jew. When he returns to Israel, he applies for recognition as someone who is entitled to a status under the Law of Return. The status under the Law of Return gives him a right to citizenship. What are the conditions required for the purpose of granting such recognition, and what is the scope of the judicial scrutiny over the policy of the competent authority in this matter? These are the issues that are central to this case.

Splitting the issue into two

3. The issue raised in these petitions in complex, and it has several strata. Because of its complexity, we split it into two and considered it in two stages: in the first stage we considered the question whether the Law of Return inherently applies only to someone who came to Israel as a Jew (whether by birth or as a convert) or whether it also extends to a non-Jew who came to Israel, took up residence here, and underwent a conversion process in Israel or abroad while he was living in Israel. This fundamental question was decided by us in our first decision, by a majority (hereafter — ‘the first decision’). According to this decision, the Law of Return applies in principle also to someone who is not Jewish, comes to Israel and takes up residence here, and during his lawful residence here undergoes a recognized conversion procedure in Israel or abroad. According to this position, the scope of application of the Law of Return is broad, and it extends also to a non-Jew who took up residence in Israel and converted during his period of residence as aforesaid. The opinion of the minority, in which I was included, took the position that this broad interpretation was inconsistent with the language and purpose of the Law of Return, and therefore it was not possible to regard someone who converted in the course of his stay in Israel as a person with a status under the Law of Return from the time of his conversion; he is not a ‘person returning to his land’ for whom the Law of Return was enacted against the background of the unique history of the Jewish people following the Holocaust of European Jewry.

Once it was determined that the Law of Return applies to someone who converted during his lawful residence in Israel, the time came for the second stage of the decision, namely whether it is possible to recognize, under the Law of Return, the status of someone who converted in a pluralistic conversion abroad while he was living in Israel. If this is possible, what are the conditions for such recognition?

Pluralistic conversion abroad — two aspects

4. Once it was decided in the first decision, by a majority, that it was possible, for the purposes of the Law of Return, to recognize a conversion of an Israeli resident that was conducted abroad, the following were the questions that remained:

First, what is the nature of the conversion process of someone who lives in Israel that will be recognized for the purposes of the Law of Return?

Second, how can the propriety of the conversion proceeding that takes place in this context be guaranteed?

Let us consider these questions.

The nature of a conversion process of an Israeli resident for the purposes of the Law of Return

5. A fundamental question in the matter before us is what are the conversion processes that will grant recognition for the purpose of the Law of Return when we are speaking of someone who lives in Israel. For this purpose, do we recognize only an Orthodox conversion that is carried out in Israel by means of the official institutions of the state, or do we also recognize a conversion that takes place abroad wholly or partly in a Jewish community that belongs to one of the pluralistic branches of Judaism. It need not be said that the character of the conversion procedures in these branches of Judaism is different from the character of conversions in the Orthodox branch, and there are also differences in the conversion processes within each of the pluralistic branches of Judaism.

I entirely agree with the approach expressed in the President’s opinion that a pluralistic conversion that takes place in a recognized Jewish community abroad by the competent organs that operate within it should be recognized, and that such a conversion that is carried out in the normal course of events is a recognized and valid conversion for the purposes of the Law of Return. The state, for its part, gave notice that it is prepared to recognize the conversions of Israeli residents that are performed abroad, but only subject to certain conditions that it established for this purpose. This is what the respondents said in their statement (paras. 23 to 25):

‘The State of Israel recognizes, on an equal basis, a conversion that was conducted abroad by every recognized branch of Judaism (Orthodox, Conservative, Reform), provided that it took place within the framework of a recognized Jewish community abroad, by the competent organs of the community. Underlying this recognition is the principle of respecting an act of a recognized Jewish community abroad. This principle is naturally limited to a convert who joins a community. The conversion process is therefore a community act of a non-Jew who joins and becomes integrated into the Jewish community in the place where he lives.

Therefore, for the purpose of a decision as to whether to recognize under the Law of Return (as distinct from the Population Registry Law) a conversion that took place abroad, the state is entitled to examine, for all the branches of Judaism equally, the sincerity and seriousness of the conversion, and whether the applicant (the convert) has joined the converting community. Within this framework, and for the purposes of the Law of Return, the state is entitled to examine, inter alia, whether the accepted procedures that are customary in that recognized community abroad with regard to a non-Jew who wishes to become a member of it for all intents and purposes were carried out, and whether the conversion was performed by a religious body that received recognition for this purpose by a recognized Jewish community…

It follows that, in the opinion of the state, for the purposes of the Law of Return and for the purpose of examining the term ‘who converted,’ there should be a substantive examination of the conversion process, and the presentation of a formal document that testifies to the conducting of the ceremony is insufficient for determining that we are speaking of someone who became a Jew abroad. Even if, for the purposes of the Population Registry Law, it is possible, according to case law, to satisfy ourselves merely with a certificate that testifies to the conducting of a ceremony abroad, for the purposes of granting substantive rights under the Law of Return and for the purpose of interpreting the term “Jew” in the Law of Return, there is no basis for relying solely on a certificate that testifies to the holding of a ceremony.’

The state summarized its position with regard to the character of those conversions abroad that it is prepared to recognize, by saying (in para. 33 of its statement):

‘The State of Israel recognizes, on an equal basis, a conversion that was conducted abroad by every recognized branch of Judaism, provided that it was done in a recognized Jewish community, by the competent religious body of the community, and in accordance with the procedures and rules that are adopted and accepted by it, which were intended to ensure the seriousness of the conversion. This principle is naturally limited to a convert who is a member of the community, who joins it and in integrated in it. The conversion process is therefore a community act of a non-Jew who joins a Jewish community and is integrated into it in the place where he lives, and as such it is as if he is “converted” for the purposes of the Law of Return’ (para. 23 of the respondents’ statement).

The state therefore recognizes, for the purposes of the Law of Return, pluralistic conversions that are carried out abroad not only for a foreign resident that converted abroad and afterwards came to Israel and wishes to become a resident here, but also for an Israeli resident. This approach extends the recognition of the various ways in which a person can act in order to realize his connection with the Jewish people. It recognizes different paths for creating the national identity of the individual, while giving validity, for the purpose of a status under the Law of Return, to his right of self-determination within the framework of one religious branch or another. It thereby adopts an approach that recognizes a pluralism of ideas and values, which is consistent with the fundamental constitutional principles of freedom of religion and freedom of the human spirit (Pesero (Goldstein) v. Minister of Interior [9], at p. 687; Beresford v. Minister of Interior [6], at p. 843; Y. Sheleg, Jews Contrary to Jewish Religious Law — On the Question of the Non-Jewish Immigrants in Israel, at pp. 38 et seq.). Since the Orthodox branch is the only one recognized at this time in the state system in Israel, recognition is given, for the purposes of the Law of Return, to the pluralistic religious system abroad as a means whereby a person may join the Jewish people, whether he converted while he was a foreign resident and was living outside Israel, or he converted when he was an Israeli resident.

The problem: combining the affiliation to the Jewish people and the connection to the State of Israel from the perspective of the sincerity of the conversion proceedings

6. The conversion process for someone living in Israel brings with it a recognition of his status by virtue of the Law of Return and the acquisition of the rights of citizenship. This combination creates an inherent difficulty that lies in the linking of two factors that are not naturally or necessarily connected to one another. One is the spiritual connection to Judaism and the Jewish people that is created by the act of conversion; the other is the connection to the state which mainly involves the acquisition of the status of citizenship, with the rights and duties that this status gives the citizen. Citizenship of Israel and belonging to the Jewish people are not identical.

By means of the conversion a person joins the Jewish people and the Jewish religion, and thereby becomes a part of Jewish culture, tradition and history. He takes upon himself the basic principles of the faith and lifestyle and becomes a member of the Jewish people, as has been the case throughout history. This act of creating a connection with the Jewish people is a spiritual and principled act that is done for its own sake, ‘for the sake of Heaven,’ as an expression of freedom of religion and conscience (M. Finkelstein, Conversion: Theory and Practice (1994), at p. 124); it lies within the sphere of the autonomy of the individual and it is also the concern of the community that the individual joins (Pesero (Goldstein) v. Minister of Interior [9], at p. 686). By contrast, citizenship expresses the connection of a person to a state, with the rights and duties acquired by virtue of this connection. Citizenship is a status that leads to the creation of an ongoing legal relationship between an individual and the state (HCJ 754/83 Rankin v. Minister of Interior [14], at p. 117). There is therefore no conceptual similarity between the connection to the Jewish people and the civil connection to the state. Although there is a reciprocal relationship between them, we are speaking of two different connections; one expresses a connection to a people, a cultural heritage, a religion and Jewish tradition; the other concerns a connection to the state and acquiring a status therein.

Combining the act of joining the Jewish people with acquiring a status under the Law of Return and the right of citizenship in the state which apply to someone who converts abroad while he is living in Israel creates a dilemma. It mixes two worlds that should be kept distinct. It mixes an act of spiritual identification and belonging with the acquisition of a status under the Law of Return and a right of citizenship that also have practical and material aspects. This combination of factors is likely to raise question marks with regard to the sincerity and credibility of the motives for the act of conversion; it is likely to be abused as a way of bypassing the acquisition of citizenship that otherwise would involve many difficulties and take a long time. It naturally diverts the supervision of the state from the sphere of administrative scrutiny of someone who wants to be naturalized, which is exercised in accordance with the Citizenship Law, to the sphere of supervision of the sincerity and propriety of the conversion process, which, if recognized, immediately grants a status under the Law of Return and a right to citizenship. It requires care to ensure that the competent authority does not relinquish the means of supervision over processes that result in a person acquiring a civil status in the state, where these processes are carried out de facto by remote communities abroad.

It is therefore necessary to contend, on the one hand, with the need to ensure the sincerity and propriety of the conversion process from the viewpoint of the convert; linking the conversion to the right under the Law of Return and the right of citizenship is likely to obscure its unique nature and turn it into an action that does not reflect a genuine desire to join a Jewish community but is intended for practical purposes that are based on considerations of material benefit. On the other hand, it requires the state to keep within its control the mechanism of proper supervision to ensure that recognition of a status under the Law of Return will be given only to someone who converted abroad in a conversion that satisfies proper criteria of propriety, as the state will define these. In principle, it is possible to recognize the status of someone who converted abroad in a pluralistic conversion when he is a resident of Israel. But rigorous state supervision is required for the conversion process, as aforesaid, in order to ensure its genuineness and propriety, at least with regard to its consequence that it grants a civil status to the convert. Let us now turn to the state’s responsibility in this sphere.

The state’s responsibility in supervising the acquisition of a civil status in Israel

7. Section 1 of the Citizenship Law provides several ways of acquiring citizenship, including the right of return, living in Israel by virtue of birth, adoption, naturalization and a grant of citizenship. Compliance with the conditions for acquiring citizenship in accordance with any of these methods requires scrutiny and supervision on the part of the competent authority. The acquisition of citizenship often requires lengthy processes of scrutiny and examination. Sometimes these processes involve a prolonged consideration of the sincerity of representations made to the competent authority by the person seeking to acquire a civil status. Thus, for example, the arrangements for a foreign spouse who is married to an Israeli resident or citizen and who wishes to acquire permanent residency and citizenship involve several stages and extend over a period of many years and they are accompanied by a thorough scrutiny and checks. They involve an examination of the sincerity of the marriage and the absence of a security or criminal obstacle to granting a civil status to the applicant. The authority examines whether the centre of the couple’s life is in Israel. The process of acquiring the civil status, which lasts several years, is ultimately subject to the discretion of the Minister of the Interior as to whether to grant the spouse Israeli citizenship by virtue of marriage (HCJ 2208/02 Salama v. Minister of Interior [15], at p. 956; Stamka v. Minister of Interior [4]; CrimFH 8612/00 Berger v. Attorney-General [16], at p. 454). The position of someone who wishes to become naturalized without being married to a spouse who is an Israeli citizen or resident is even harder. The naturalization process is long and its results are uncertain. Against this background, the authority examines various representations, including representations of marriage between a foreigner and an Israeli resident or citizen, to discover whether they involve any fiction as a means of evading the difficulties involved in the ordinary naturalization process. The supervision authority of the state in these matters has been recognized also with regard to the granting of visas for the permanent residency of foreigners to whom the Law of Return does not apply (HCJ 1689/94 Harari v. Minister of Interior [17], at p. 19); the period of time provided for the purpose of the procedure for obtaining the civil status makes it possible to increase the scope of the checks that can be made and to collect direct or circumstantial evidence from which it is possible to ascertain, inter alia, the sincerity of a marriage or to assess a security or criminal risk that can be anticipated from the applicant. This is a complex investigation and it involves cooperation between various government departments, and case law has recognized a need for this ‘in view of the fact that, at the end of the process, citizenship, which is a right of special importance that gives an entitlement to significant rights, is granted’ (HCJ 7139/02 Abbas-Batza v. Minister of Interior [18]; see also AAA 9993/03 Hamdan v. Government of Israel [19]). With regard to the scope of considerations for the purpose of the staged process and its importance in examining the stability of the family unit and for the purpose of ensuring that granting the civil status does not harm public interests, such as presenting a criminal or security risk, see HCJ 2527/03 Assid v. Minister of Interior [20], at p. 144.

The state also exercises supervision in the sphere of the Law of Return over the methods of acquiring the status under that law. Thus, for example, s. 4A of the Law of Return grants rights of return, inter alia, to a spouse of a Jew, and to a spouse of a child and a grandchild of a Jew. This method of acquiring a status by virtue of the Law of Return is also the subject of supervision and scrutiny by the public authority, in order to ensure that it is not abused. Thus, for example, an examination is made to discover whether between spouses, where one is entitled to the right of return by virtue of his Judaism and the other requests recognition by virtue of this right of the spouse, there is a genuine marital relationship, not merely from the viewpoint of the credibility of the marriage ceremony that took place but also from the viewpoint of realizing their married life within the framework of a family unit. For this purpose, all the circumstances of the couple’s life will be examined, in so far as they are relevant to the issue, in the short term and the longer term (HCJ 8030/03 Samuilov v. Minister of Interior [21]; HCJ 11406/03 Peroskorov v. Minister of Interior [22]). This examination may also continue for a considerable time until the public authority makes its decision with regard to the fate of the civil status of the person applying for recognition.

The state’s responsibility to exercise a supervision mechanism for the methods of acquiring a status under the Law of Return and a right of citizenship also applies, by analogy, to a conversion process that is carried out with regard to an Israeli resident. The state has a responsibility to ensure that the act of conversion, which gives someone living in Israel a status under the Law of Return and a right of citizenship, is a proper and genuine one, and not fictitious. Its duty is to ensure that the conversion process does not become a means whose main purpose is to evade the difficult and prolonged naturalization procedures, the consequences of which cannot be foreseen, and that a conversion is not motivated by material concerns that mainly involve the acquisition of a civil status in a relatively short process that brings with it a new status in the State of Israel and economic benefits that are granted to someone who has a right under the Law of Return. The duty of the state to regulate and supervise the conversion process of persons living in Israel for the purpose of acquiring a status under the Law of Return, and the need for state regulation in this matter were discussed by the President in Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [1], where he said:

‘I accept that conversion in Israel is not merely a private act. It has public ramifications. By virtue of it a person joins the Jewish people. In consequence he can acquire Israeli citizenship. There is therefore a justification for state regulation of the public aspects of conversion, beyond what is provided in the Population Registry Law, whose purposes are limited and are of a statistical nature’ (ibid. [1], at para. 31; emphasis supplied).

Associating the act of conversion with the acquisition of a civil status under the Law of Return and the right of citizenship, which is the case with regard to an Israeli resident, creates a difficulty from the viewpoint of the supervisory measures that should be adopted in order to ensure the propriety and genuine nature of the conversion. The question of the sincerity of the conversion abroad does not arise, in general, with regard to a person who converted while he was still a foreign resident and who comes to Israel at a later date and wishes to become a resident here. In this case, the separation between the conversion process and acquiring the civil status is clear, and usually a question of the sincerity of the process does not arise. Therefore it does not involve any special difficulty from the viewpoint of the recognition of such a convert as a person who has a status under the Law of Return when he comes to Israel at a later date. The position is different with regard to a convert who is an Israeli resident, since the reciprocal relationship between the act of joining the Jewish people and the acquisition of the civil status in Israel cannot be separated de facto.

The concern that conversion will serve as a means of obtaining a civil status as opposed to an end in itself may apply to anyone living in Israel who wishes to convert through one of the recognized branches of Judaism. Notwithstanding, the easier and more convenient the conversion process in one of the pluralistic branches, and the smaller the investment of time and money required on the part of the prospective convert, the greater the concern that the process may be abused. This concern increases with pluralistic conversion because of the relative ease that is associated with it. Indeed, the pluralistic Jewish branches in the Diaspora are characterized by a lack of uniformity between one community and another, and between one branch and another (HCJ 47/82 Israel Movement for Progressive Judaism Fund v. Minister of Religious Affairs [23], at p. 705). The petitioners in our case studied for a long period before their conversion; all of them immersed themselves in a ritual bath (mikveh) for the purposes of conversion, and the men among them were circumstances. These conditions were satisfied in the case of the petitioners, and this can serve as an indication of the sincerity of their conversion, but they will not necessarily be satisfied by every future convert who is converted by a community abroad. Thus, for example, the court noted what happened in the case of Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [11], at p. 737):

‘Counsel for the petitioners even declared expressly and openly that the petitioners’ conversion ceremony did not include ritual immersion; the conversion certificate in HCJ 272/88 is signed by three persons, of whom one is the husband of the convert (the petitioner); and the conversion certificate in HCJ 216/89 was signed by three persons, of whom two are the father and mother of the convert (the petitioner)’ (emphases supplied).

The Reform movement’s Central Conference of American Rabbis ruled as long ago as 1893 that circumcision or the removal of a drop of blood (for persons already circumcised) is not required for the purpose of conversion in the Reform movement (‘Circumcision for Adult Proselytes,’ American Reform Responsa (W. Jacob ed., vol. III, at pp. 69ff.),[1] and even modern responsa emphasize that although the movement encourages converts to be circumcised, it does not require this for the purpose of recognizing their conversion (‘Circumcision for an Eight-year-old Convert,’ NYP no. 5756.13).[2] It is also possible to find in the movements’ responsa database a discussion of the doubts expressed by a rabbi of a local community in a city in the United States, with regard to a conversion that was conducted by a colleague of his in Australia, which in his opinion was too hasty (‘A Convert from Another Land,’ New American Reform Responsa (Solomon Freehof, 1980), at pp. 199-200),[3] and in another responsum there is a discussion of the conversion of someone who came from another country to the United States, and it transpired that she was converted ‘after only an afternoon of instruction,’ in the words of the questioner (‘The Course of Study for Gerut,’ New American Reform Responsa (Solomon Freehof, 1980), at pp. 194-196).[4] Cf. also ‘Conversion Without Formal Instruction,’ American Reform Responsa (W. Jacob ed., 1983), vol. XCII, 1982 at pp. 209-211).[5] Additional discussion of reform conversion can be found in Tz.E. Tal, ‘Reform Conversion,’ 17 Tehumin 189.

It is therefore clear that unsupervised recognition of a conversion process abroad for someone who lives in Israel means recognition of very varied processes among the different branches of Judaism and the different communities scattered around the world. This means that the state is accepting procedures that are being carried out abroad far away from its scrutiny, and this means recognition of the status of the convert as someone having a right under the Law of Return and a right to citizenship. This recognition gives great power to Jewish communities abroad to determine not only the Judaism of someone by virtue of conversion but also his status as a citizen, which derives therefrom. This complex reality naturally requires the introduction of a detailed policy that will establish how it is possible to undergo a conversion process abroad that will be recognized for the purpose of the Law of Return, in order to ensure the genuineness of its purpose and aims. This policy is likely to be complex. State supervision of the conversion process is therefore required as a part of the supervision policy of the public authority over the ways of acquiring a civil status in Israel.

Scope of the public authority’s discretion in determining its policy

8. The right to citizenship is a significant human right. It is a right to a continuing relationship between a person and his state. It gives a person a status that gives rise to civil rights and duties. It is not limited to what happens inside Israel only. It grants a status vis-à-vis the whole world. A consequence of this is the recognition of the broad scope of the discretion given to the Minister of the Interior, in exercising his powers with regard to the acquisition of a civil status in Israel. This was discussed by the court (per Justice Cheshin) in Stamka v. Minister of Interior [4], at pp. 790-791):

‘The scope of the discretion of the Minister of the Interior is derived, inter alia, from the nature of the right of citizenship, and in general we can say that the nature of this right shows that the discretion is very broad. The right of citizenship is a basic right: HCJ 2757/96 Alrai v. Minister of Interior [24], at pp. 22-23. The right establishes a continuing relationship between the citizen and the state, and it is also capable of granting him rights and imposing various duties… the citizen carries his citizenship with him on his back, and whersoever he goes, it goes with him. The right is not confine itself to the borders of the State of Israel… From all of this we see that granting citizenship naturally involves broad discretion, and that the minister has the power to consider many different factors before he decides whether to grant the naturalization application or refuse it.’

(See also HCJ 6191/94 Wachter v. Ministry of Interior [25]; HCJ 4889/99 Abu Adra v. Minister of Interior [26]; HCJ 1692/01 Abu Adra v. Minister of Interior [27]).

The scope of jurisdiction of the competent authority also extends to examining the proceedings that lead to the acquisition of a civil status, including proceedings that give rise to a status under the Law of Return that brings civil rights with it. The Minister of the Interior has been defined in one judgment as the ‘doorkeeper’ of the state, who has been given the power to grant residency permits and the status of citizenship in Israel. This is a power with broad discretion. He must exercise it reasonably; the court will rarely intervene in his discretion in view of the recognition of its broad scope (HCJ 8093/03 Artmiev v. Minister of Interior [28]).

Scope of judicial review of the policy of the Minister of the Interior

9. It is well-established case law in Israel that this court will usually refrain from intervening in the discretion of the public authority, and its intervention will be limited to cases of extreme unreasonableness. This is also the case in matters of policy, including matters of social and economic policy (I. Zamir, Administrative Authority, part 1, at p. 90; HCJ 2526/90 Vegetable Growers Organization v. Vegetable Production and Marketing Board [29]; HCJ 4354/92 Temple Mount Faithful v. Prime Minister [30]). When examining the reasonableness of the policy, we examine the considerations taken into account and the way of balancing them, as well as the proportionality of the decision (HCJ 636/86 Nahalat Jabotinsky Workers’ Moshav v. Minister of Agriculture [31], at p. 708; HCJ 399/85 Kahana v. Broadcasting Authority Management Board [32], at p. 307; HCJ 389/80 Golden Pages Ltd v. Broadcasting Authority [33], at pp. 436-448). The court does not act as a tribunal that decides in the place of the administrative authority, even if it is inclined to support a different approach (LAA 3186/03 State of Israel v. Ein Dor [34], at p. 766; CA 1805/00 Kineret Quarries (Limited Partnership) v. Ministry of Infrastructure [35]; HCJ 2324/91 Association for Civil Rights in Israel v. National Planning and Building Council [36], at p. 688).

In the sphere of the policy of the Minister of the Interior concerning the acquisition of a civil status, judicial intervention is especially limited in view of the broad discretion given to him in these matters (cf. Hamdan v. Government of Israel [19]; HCJ 2828/00 Koblabesky v. Minister of Interior [37], at pp. 27-28; HCJ 4156/01 Demetrov v. Minister of Interior [38], at p. 293; HCJ 758/88 Kendall v. Minister of Interior [39], at p. 520; HCJ 3373/96 Zathra v. Minister of Interior [40]).

Supervision of foreign conversions by the Ministry of the Interior — the condition of joining the converting community

10. State recognition of the foreign conversions of Israeli residents implies the acquisition of a status under the Law of Return and the right of citizenship. This reality that associates the act that creates the affiliation to the Jewish people with the connection to the state that is acquired by virtue of the Law of Return and the right to citizenship, justifies state scrutiny and supervision of the sincerity and genuineness of the procedure. It justifies the existence of a general and fundamental policy infrastructure in this sphere and a set of conditions that define the methods of conversion abroad that will be recognized for the purpose of an Israeli resident acquiring a status under the Law of Return. For example, conditions concerning the identity of the persons living in Israel from the viewpoint of the length of their residency in Israel, the status of their residency in Israel (temporary residents, permanent residents, etc.), their family status, and other personal circumstances; conditions concerning the type, character and location of the Jewish communities abroad that will be recognized for the purpose of foreign conversions of Israeli residents; in addition to the need for examining such a fundamental infrastructure, a specific examination of each case on its merits is required, to ascertain whether the necessary conditions are satisfied in the individual case or not. Formulating a general set of criteria together with individual supervision will ensure state supervision and control of the issues of civil status that derive from the conversion procedures abroad. The absence of such supervision is likely to undermine the powers and responsibility of the state with regard to the acquisition of a civil status in Israel. This is particularly necessary in view of the significant differences in the character of the conversion procedures in the various communities of the different kinds. State supervision of the conversion procedures abroad in the case of Israeli residents is intended to prevent the keys to acquiring Israeli citizenship being entrusted to persons who are not the official organs of the state, are not Israeli citizens and have no national responsibility to the state or its citizens.

Against the background of the need to determine such a policy and conditions, the state gave notice that it requires, as a condition for recognizing a foreign conversion of an Israeli resident, that he joins the converting community abroad for a significant period of time. This condition is intended, prima facie, to ensure the credibility of the motive underlying the conversion process. It is capable of creating a significant separation between indicating a desire to be Jewish and realizing this desire by means of conversion and the aspiration to realize — by means of the conversion — the acquisition of the civil status in the State of Israel. This demand is capable of effectively examining the sincerity of the convert’s intentions, and giving an indication thereof.

By establishing the aforesaid criterion, the state is saying that, from its point of view, the symbolic act that takes place at a specific point in time is insufficient, when it takes place in a community that is distant from the State of Israel and is unfamiliar with the person coming before it, and when that person went to it for only a short period, so that it is not really possible to examine his character, motives and intentions in the conversion process. A sincere and genuine process is required. The separation between the stage of Jewish studies in Israel and the act of conversion that takes place in the community abroad, during merely a short stay in the converting community, raises, according to the state, questions with regard to the sincerity of the process. It is likely to be used as a means to an end, as a ‘spade for digging with’ (Mishnah, Avot 4, 7 [41]), for facilitating and accelerating the acquisition of the civil status as the predominant purpose underlying it. It is likely to make the act of conversion a fiction that is designed to facilitate and accelerate the process of receiving citizenship. Supervision of this process is therefore dictated by the proper state supervision that is required in this sphere.

President Barak accepts the basic approach of the state that requires, for the purpose of recognizing a status under the Law of Return a conversion within the framework of a recognized Jewish community by the competent religious organizations of that community, but he rejects the condition that the state imposes, according to which the recognition of a foreign conversion should be limited to someone who joins the converting community and is integrated in it for a significant period of time. According to his position, the joining of the Jewish community in which the conversion was made is a condition that is unacceptable, since there is no significant difference between the convert joining the community where the conversions took place and his joining another recognized Jewish community, whether in Israel or abroad. He asks ‘why should this be determined to be the sole possibility of ensuring the seriousness of the conversion.’ He summarizes his position by saying that it is sufficient in this context that the conversion was carried out in accordance with the criteria accepted by the community for someone who wishes to join that community. Control and supervision are not limited to the single possibility raised by the state, namely joining the converting community. It is possible to prevent an abuse of the right to immigrate to Israel in many different ways, and each case should be considered on its merits.

Two comments may be made vis-à-vis these remarks: first, the criterion of joining the community is intended to serve as a test that indicates the sincerity of the act of conversion. It is not required to the same degree for a foreign resident who converts in a community abroad, when there is no connection between the act of conversion and immigration to Israel and obtaining a civil status here. Therefore, there is not necessarily a justification for imposing a condition of joining a community for a convert who does not immigrate to Israel. The position is different for a convert who is an Israeli resident, because of the difficulty arising from combining the act of conversion with the acquisition of the civil status in Israel. Second, examining the sincerity of the process for an Israeli resident who converts is consistent with the power and responsibility of the Ministry of the Interior to examine the sincerity of the actions and the representations of the individual with regard to the acquisition of a civil status in Israel. Judicial review that places major obstacles and qualifications upon the power and responsibility of the state to examine the genuineness of the conversion process is inconsistent with the broad discretion given to the Minister of the Interior in this sphere, and with his responsibility to ensure the propriety of the procedures that are intended to lead to an entitlement to acquire a civil status in Israel. It is also inconsistent with the accepted legal outlook that judicial review of an administrative act with regard to these matters is very narrow.

The condition of joining the converting community abroad for a significant period of time is, in itself, a condition that in my opinion satisfies the reasonableness test when we are speaking of a conversion of an Israeli resident abroad. This is because of the special reciprocal relationship that exists in these circumstances between the act of conversion and the acquisition of a status under the Law of Return and of the right of citizenship. The rules concerning judicial review of the administrative act do not justify intervention in this criterion by means of its cancellation. Notwithstanding, the requirement of joining the converting community abroad is not necessarily the only possible test for examining the sincerity of the process. There may be additional ways that will lead to the same outcome but demand of the individual a lower price on his path to Judaism. It is therefore desirable that in addition to this criterion of joining the converting community there should also be other alternative conditions that can open additional channels that allow a foreign conversion to be realized in other ways whose credibility and seriousness is guaranteed by appropriate rules.

Our first decision in this proceeding recognized, for the first time, the reciprocal relationship between the conversion of an Israeli resident and his status under the Law of Return. This recognition is what gave rise, for the first time, to the question of what are the recognized ways of converting for the purpose of achieving this purpose. Naturally, the policy of the public authority has not yet been properly formulated in this regard. The authority has not yet been given an opportunity to construct a set of rules that can be implemented with regard to this important issue — rules that will both ensure the propriety of the conversion process abroad and be adapted to the practical ability of the individual to comply with them and satisfy them.

From general principles to the specific case

11. The petitioners before us differ from one another. Some of them drew closer to Judaism before they came to Israel and some them drew closer to Judaism only after they came to Israel. Some of them came to Israel as tourists, and some stayed here as work immigrants with foreign workers’ visas, and over the course of time they wanted to build their home here. They studied in Israel within various frameworks and for different periods. All of them underwent an act of conversion outside Israel, in different religious courts, in different communities and in different countries. Some of them had a connection to the converting community and some went to it merely for the purpose of the act of conversion. Many of them stayed in the converting community abroad only for the act of conversion and for a very short period of time, and then returned to Israel. All of them, with the exception of the petitioner in HCJ 2597/99, who has meanwhile achieved her goal for other reasons, did not have a status of permanent residents in Israel when they converted. The petitioners were impelled to undergo a conversion ceremony abroad because the state conversion arrangements in Israel were unsuited to their needs. The reliefs sought by them in the petitions focus on the purpose of recognizing their status as being entitled to the rights of return and citizenship.

It is clear that the petitioners do not satisfy the condition of joining the converting community abroad in accordance with the condition imposed by the state. No other tests were applied in their cases in order to examine the nature of the conversion process that each of them underwent. No examination was made of the personal background and special circumstances of each petitioner, their residency status and the period of time that they were Israeli residents, the character of the communities in which they underwent the conversion ceremony, the nature of the conversion ceremony and its seriousness. Similarly, the content and level of the Jewish studies that they underwent in Israel were not considered. Even were we to say that the condition of joining the converting community abroad that the state imposed is not acceptable for the purpose of recognizing a status under the Law of Return, it is not possible, in my opinion, to recognize every kind of foreign conversion, without it satisfying fundamental criteria that should be determined and without a specific examination as to whether they have been followed in the case of each person seeking recognition. This is because such a sweeping recognition means, de facto, leaving the foreign conversion process without any supervision or scrutiny, notwithstanding its consequences that automatically grant a status under the Law of Return and a right of citizenship. The rejection of the condition of joining the converting community as unreasonable, and the sweeping recognition of the petitioners as persons who have duly converted and as persons who have acquired a status under the Law of Return, without a consideration of each case by the competent authority, leave the Ministry of the Interior without any real means of supervising the propriety of these processes. I find it difficult to agree with this outcome.

In his opinion, the President does indeed assume that there is a need for a proper degree of supervision and control by the public authority, to ensure that conversions are not abused (at para. 14); but by making the order absolute, without giving the state an opportunity to formulate a general supervision policy in this area, and without an examination of the individual cases of the petitioners against the background of principles that will be determined, the administrative authority is left de facto without any means of supervising the sincerity and propriety of the conversion process that gives rise to a status under the Law of Return and to the right of citizenship, which are automatically acquired in consequence of an act of conversion by someone who is an Israeli resident. In such circumstances, it is also unable to supervise the acquisition of the civil status in Israel by that resident.

Were my opinion accepted, the test of joining the converting community abroad for a significant period time, as the state demands, should remain in force as a reasonable and valid test, even if not as a sole test. The public authority should be directed to formulate a comprehensive policy that will establish a set of conditions and possibilities for realizing a process of a pluralistic conversion abroad; in this, the condition of joining the foreign community may be one of the possible conditions. I would give the public authority a period of time to formulate its policy, and allow the petitioners, while leaving the petitions pending, to examine whether the conversion processes that they underwent satisfy the tests that will be determined, and, if not, to take the steps required in order to satisfy them.

Summary

12. The uniqueness of this proceeding lies in the recognition that it gives to the right of a person who is an Israeli resident to undergo a conversion process that is not necessarily an Orthodox conversion and to obtain a status under the Law of Return and, by virtue thereof, the right of citizenship. This recognition is of great importance and significance in two spheres: first, for recognizing someone who converted in Israel while living here as someone who is entitled to a status under the Law of Return; second, for recognizing, with the state’s consent, a pluralistic conversion process abroad, for someone who is an Israeli resident, as capable of giving him a status under the Law of Return and a right to citizenship.

The recognition of the pluralistic conversion abroad of an Israeli resident for the purposes of a status under the Law of Return opens a new chapter in the adoption of a broad approach with regard to the right of an individual to choose the religious branch that he desires and through which he wishes to join the Jewish people. It is difficult to exaggerate the importance of this recognition. Notwithstanding, it is no less important that the recognition of the individual’s right of choice, as aforesaid, is accompanied by criteria and supervision that will ensure the propriety of the processes by means of which a person joins the Jewish people, and through which he acquires a status under the Law of Return and the right of citizenship. We should protect the right of the state to supervise these processes, since it has the main responsibility with regard thereto. The civil and national control and supervision should be retained by the Ministry of the Interior to ensure the propriety of the processes that lead to the creation of a connection between an individual and the state. The state has not yet had a real opportunity of formulating a comprehensive policy in this area. It should be given the opportunity and means to do this. We should not rush into the recognition of conversion processes abroad that have not been adequately examined because a framework of comprehensive rules has not yet been formulated, and without an individual examination of each case. Realizing the recognition of the various branches of Judaism as reflecting the different aspects of humanity and Judaism requires the path to this goal to be well paved and kept in good order, since otherwise the idea and the substance will be harmed.

Were my opinion accepted, we would leave the petitions, as aforesaid, pending for an additional period; at the same time we would direct the competent authority to formulate detailed policy rules on this issue. Against the background of these policy rules, the petitioners will be able to plan their future actions.

Vice-President M. Cheshin

I agree with the opinion of my colleague, President Barak.

2. The Law of Return is a law that was enacted in 5710-1950. The world in which the Law of Return was enacted was in certain senses — in relation to today — the world of yesterday. The time was after the Second World War. Jews from places outside the young State of Israel — Holocaust survivors and refugees from Arab countries — sought a place of refuge and a haven for their exhausted bodies and souls. The time was after the War of Independence. Those were simple times, times of great changes, early days. Only Jews, Jews born of Jewish parents, mostly persecuted Jews, wished to come to Israel. Anyone who was not a Jew did not even contemplate coming to live in Israel. Everyone knew who was a Jew and who was not a Jew. The question of conversion was not even on the agenda, since anyone who was not a Jew did not even dream of converting merely for the sake of immigration. Only approximately fifteen or twenty years later did questions begin to arise. This is what happened in the case of ‘Father Daniel’ (Rufeisen v. Minister of the Interior [2]). It was also the case in Shalit v. Minister of Interior [3]. Following the decision in Shalit v. Minister of Interior [3], the Law of Return was amended, together with the Population Registry Law, in the Law of Return (Amendment no. 2), 5730-1970, but even after that the question of conversion did not arise. Only in the middle of the 1970s, approximately thirty years after the founding of the state, did the questions of ‘Who is a Jew?’ gradually begin to arise. Even then, not only were these esoteric and isolated questions, but the question of conversion — as conversion — did not arise at all.

3. If the truth be told, the issue of conversion is not a simple or easy issue at all. And I am not referring to the religious ceremony of conversion. The issue is not simple and easy because the convert is not merely joining the Jewish religion, as a Protestant does when he becomes a Catholic. The convert joins a people, a nation, a history, a culture of several thousand years antiquity of a people that in the past lived on its land; a people of whom the great majority did not live for thousands of years on its own land, but in the ‘Diaspora’; and now a part of it has been gathered together and has returned to its historic land. It is no small matter to join the ‘eternal people.’ Even if the person joining the Jewish people becomes religiously observant, he will not easily become assimilated in the conscious and sub-conscious culture of the Jewish people, its language, religious holidays and way of thinking.

4. The Orthodox method of conversion made the act of conversion difficult and still makes it difficult, so that the entrance was kept very narrow. ‘Converts are difficult for the Jewish people’ (Babylonian Talmud, Yevamot 47b [43]) — this was and is the path of the religiously observant, and so over the years the passage for non-Jews joining the Jewish people remained a narrow one. And since conversion was only done in small numbers, no problems or difficulties arose with regard to the issue of people joining the Jewish people.

5. We do not know whether the question of converts arises today in its full strength or whether we are witnessing another passing trend. Whichever is the case, the time has come to address the special problems that the issue of conversion raises, problems that we have not experienced until now in implementing the other parts of the Law of Return. We are referring, first and foremost, to the immense power wielded by Jewish communities around the world to open and close, as they see fit, the door to conversion and immigration to Israel.

6. As we said in our opening remarks, when the state was established the question of conversion was not even on the national agenda. Only Jews, born of Jewish parents, came to Israel, and if these included persons who regarded themselves as Jews even though they were not Jews, they were merely a handful of individuals. As times changed, so too have customs changed, and it appears that Israel has suddenly become a desirable home even for non-Jews, for members of other nations. Thus the question of conversion found its way onto our agenda as a national question of paramount importance, and differences of opinion increased.

7. According to statute and case law, Jewish communities around the world — whether they are Orthodox, Conservative or Reform communities — have the power and authority to give converts a key to enter Israel, to obtain a status under the Law of Return and to receive immediate citizenship as if they were Jews born of Jewish parents. This means that institutions that are not a part of the State of Israel, Jewish communities that are not bound by the laws and jurisdiction of the State or the authority and jurisdiction of its elected organs, Jewish religious courts and rabbis throughout the world — all of these have the power to decide and determine who will come to Israel as holders of rights, as citizens who have the right to vote and be elected to the organs of the state once they set foot on Israeli soil. It is as if the state is deprived of its power and its authority to determine and decide who will be its citizens and who will have rights in Israel. The state, of its own free will, is giving its fundamental and innate power to bodies outside the state — to bodies whose composition is determined by Jews who live abroad, while the state has no say in their composition or in the way in which they are managed — to decide and determine that one individual or another will be citizens of the State of Israel; that one individual or another may vote and may be elected to the competent organs of the state, the organs that decide the fate of the state; that one individual or another may live among use as an integral part of the Jewish people in Israel. We have become used to strange situations and to surprising outcomes in the interpretation and application of the Law of Return, but we will find it difficult to accustom ourselves to defer and yield to these and other bodies outside Israel, and to acquiesce in their decisions as to who will be the citizens and residents of the state. But this is what the Law of Return ordains: conversion is controlled solely by the dictates of religion; whoever converts is a Jew; and no one can tell Jewish communities outside Israel what they may or may not do.

8. My colleague Justice Procaccia is concerned that restraints are being lifted, that the keys to enter the State of Israel are being given to Jewish communities around the world, that power is being given to Jewish communities abroad to decide who will enter and who will not enter the State of Israel. My colleague may rest assured that she is not alone in the concerns that she raises. I too share them. Indeed, in agreeing with the opinion of the President I am making an assumption, which seems to me self-evident, that the state retains the power to determine guidelines and criteria for recognizing foreign conversions, both in general and in the specific case. The president speaks in his opinion of a ‘recognized Jewish community,’ and in my opinion this complex concept contains the power to determine all those criteria of which my colleague Justice Procaccia speaks. With regard to the petitioners before us, I have found no good reason not to recognize the conversions that they underwent, even had detailed criteria been formulated before their conversions.

Vice-President Emeritus E. Mazza

I agree with the opinion of my colleague President A. Barak and I agree with the remarks of my colleague Vice-President M. Cheshin and my colleague Justice M. Naor.

Justice E. Hayut

I agree with the opinion of my colleague, President A. Barak, and I too am of the opinion, as he says and as my colleague Vice-President M. Cheshin reiterates and emphasizes in his opinion, that the supervisory powers and procedural arrangements that are required in this area will find their place within the framework of the words ‘recognized Jewish community.’

Justice E.E. Levy

1. In my dissenting opinion within the framework of the decision that was made in the petitions before us on 31 May 2004, I quoted the remarks of David Ben-Gurion, the first prime minister of the State of Israel, that he uttered when the draft Law of Return was tabled in the Knesset:

‘The Law of Return is not a kind of immigration law, which determines under what conditions the state accepts immigrants and what types of immigrant it accepts. These laws exist in many countries, and they change from time to time in view of internal and external changes and transformations. The Law of Return has nothing to do with immigration laws. This is the eternal law of Jewish history. This law determines the national principle by means of which the State of Israel was established.’

I was and remain of the opinion that the decision of the majority justices goes too far, in that it allows use to be made of the Law of Return for purposes for which it was not intended (immigration), and therefore I went on to say the following in my opinion:

‘The deliberations on the issue that is the subject of these petitions cannot be conducted without reference to the social developments of recent years. The State of Israel has become an immigration target, and therefore the broad interpretation of the term “Jew” in its sense in the Law of Return that my colleague the president proposes will, almost certainly, create a way of evading the immigration laws, which will be used not only by those who really and genuinely want to join the Jewish people, but also by others whose motives are questionable. This scenario is likely to lead to a problematic outcome, since the practical significance is that the State of Israel will be compelled to acquiesce in the fact that various parties that reside abroad and that are not subject to the supervision and scrutiny of any of the authorities in the State of Israel are those who will determine who will enter Israel and who will be its citizens. It would appear that this outcome is so far-reaching that even this reason alone would justify denying the petitions.’

2. My opinion, like that of the other minority justices, was not accepted, and it was held, in principle, that the Law of Return applies to anyone who is not Jewish, who comes to Israel and while staying here lawfully undergoes a conversion process, in Israel or abroad. In such a situation, where I am commanded to accept in humility the decision of my colleagues, I am of the opinion that we are required to look for methods that will ensure control over the conversion processes that take place outside Israel, as a result of the far-reaching consequences of these processes in so far as they concern the rights that the convert acquires under the Law of Return, of which the most important is the right of Israeli citizenship. In this sphere, there is much in common between me and the opinion of my colleagues, the majority justices, as can be seen in the principles that my colleague the president outlined in his opinions in the past, and which he has reiterated also in his opinion in this case. I am referring to the following:

(a) ‘The concept of conversion is, first and foremost, a religious concept, of which the secular legislature makes use… therefore the act of conversion should — whatever its substantial content may be — be consistent with a Jewish understanding of this concept’ (HCJ 1031/93 Pesero (Goldstein) v. Minister of Interior [9], at p. 747).

(b) A person’s conversion for the purposes of the Law of Return has an effect beyond the relationship between him and his Creator, in that it also grants him the right to immigrate to Israel and the right to receive citizenship. This was the opinion of my colleague the president in Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [1], at p. 753:

‘I accept that conversion in Israel is not merely a private act; it has public ramifications. By virtue of it a person joins the Jewish people. In consequence he can acquire Israeli citizenship. There is therefore a justification for state regulation of the public aspects of conversion, beyond what is determined in the Population Registry Law, whose goals are limited and are of a statistical character.’

My colleague reiterated this in para. 10 of his opinion in the present petitions:

‘It follows from this that the application of the Law of Return should not depend merely on the subjective wishes of the individual. A state does not entrust the key to enter it to every individual, according to his subjective wishes. The operation of the Law of Return depends upon the application of an objective test, according to which a person joins the Jewish people, and on the existence of proper measures of control and supervision for realizing this test, and for preventing its abuse.’

In para. 11 of his opinion my colleague the President says:

‘The recognition of conversion for the purpose of this law gives the convert the key to enter the State of Israel and to acquire citizenship in it. The level of supervision in this context should naturally be stricter and the standard of evidence required should be higher. It follows that it is possible that the same individual may be registered as a Jew in the register, but may not be considered a Jew for the purpose of the Law of Return.’

Finally, I will cite my colleague’s remarks in para. 14 of his opinion, where he says:

‘… it must be ensured that only a conversion of a religious character is recognized, and no recognition should be given to a conversion that is made solely for the purpose of exploiting the right of a Jew to immigrate to Israel in order to acquire economic benefits. For this purpose, an appropriate degree of control and supervision is required to ensure that the institution of conversion is not abused’ (emphases supplied).

3. When we are speaking of a member of another religion who wishes to take upon himself the burden of the Torah and the commandments, because he desires to join a Jewish community outside Israel, naturally that community is entitled to determine, in accordance with the understanding and choice of its members, the processes that a candidate for conversion must undergo in order to receive the community’s recognition, and the character of these processes. However, as aforesaid, the process of conversion has an additional significance that is not limited to the individual sphere, but involves a recognition of the right of every convert to return to Israel, which, except in rare cases, is equivalent to receiving Israeli citizenship. But it is only natural that granting citizenship should be controlled by a state authority, since this status in Israel that is acquired by virtue of conversion has ramifications beyond the definition of the individual’s beliefs.

This is the place to emphasize that this approach is not restricted merely to the sphere of acquiring a status in Israel, but it is recognized also in other spheres of our lives, in which state supervision is required because of various public interests, such as the licensing of persons whose professional training was acquired abroad, and who wish to continue their profession in Israel as well. Such are the provisions of the Physicians Ordinance [New Version], 5737-1976, which concerns the licensing of someone who studied medicine abroad to engage in medicine in Israel as well. Section 4(a)(3) requires the person applying for a licence to pass, inter alia, a test that is set by the director-general of the Ministry of Health, except in those cases where the director-general grants him an exemption, after reaching the conclusion that the applicant studied in a university or a school of medicine that the director-general recognizes. This is also the case in s. 9(a)(6) of the Engineers and Architects Law, 5718-1958, which provides that anyone who worked as an engineer or architect abroad may be registered in the Register of Engineers and Architects, only after he has satisfied the panel of examiners that he did indeed work in that profession, and he is found to have suitable qualifications to work in that profession in Israel (see also, in this regard, s. 5 of the Veterinarians Law, 5751-1991; s. 2(b) of the Psychologists Law, 5737-1977).

I see no reason why we should not also adopt the same practice in the field of conversion, since the ramifications of this are no less important than the licensing of physicians and engineers, and in my opinion are considerably more important, since they concern the essence of the secret of our existence as a people. The State of Israel cannot leave foreign conversion, which involves the acquisition of citizenship in Israel under the Law of Return, to a body that is not one of its organs, no matter how respectable it is. That body, which is called ‘a Jewish community abroad’ not only is defined vaguely but also leaves a great deal more vague that clear with regard to the qualifications and authority of those who conduct the conversion processes on its behalf. This issue has also troubled this court in the past, and this also found expression in the remarks of Vice-President M. Elon in HCJ 264/87 Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [11], at p. 735:

‘What is the meaning of the term any Jewish community? What is the law with regard to a community that is not identified with any of the three aforesaid branches? Is a minimal number of members required in a community that is not identified with one of the aforesaid branches, in order to regard it as “any Jewish community”? And how should the registration official behave when a document attesting to a conversion in such a community comes before him? This determination therefore attributes to the legislature a definition that lacks any objective-normative test, and it is a major principle of our law that so vague a definition should not be attributed to the legislature, especially when we are concerned with an issue like the issue before us, which is at the forefront of the constitutional law in our legal system.’

4. The state authority that supervises this sphere of granting a status in Israel is the Minister of the Interior. But the assumption is that the expertise of the personnel of this ministry is not in the field of the validity of conversion, and that they are also not allowed to address this matter. It follows that in order to provide a solution to the supervision and scrutiny that are required even according to my colleague’s approach, it would appear that the state has no alternative but to avail itself of another party that has expertise in this regard.

For various reasons that need not be discussed here, there is a reluctance to turn in matters of conversion to the Rabbinical Court system. The State of Israel was aware of this reluctance, as it was also aware of the outlooks of the various branches of Judaism on the question of conversion. Therefore, following the recommendations of the ‘Neeman Commission,’ which were adopted by the Government of Israel and the Knesset with an overwhelming majority, out of a desire to find a solution that would be common to and unite all the branches of Judaism, and thereby prevent a split among the Jewish people, it was decided to establish an institute in which those who wished to do so could engage in intensive Jewish studies as one of the stages leading to conversion. Moreover, it was also decided to establish an independent system of religious courts for conversion, which would be headed by Rabbi Drukman, and whose purpose would be to facilitate conversion in so far as this is possible.

From the respondents’ statement of 17 November 2004 it can be seen (see para. 9) that ‘since Rabbi Drukman began to exercise his powers as the head of the conversion system, from September 2004 until today, approximately 700 conversion certificates were signed by him.’ In my opinion, this is a statistic of some significance, that can indicate a material change in so far as the approach of state authorities to conversions is concerned. This is also a worthy solution, that should be preferred especially in the case of persons who decided some time ago to make their homes not in a Jewish community abroad, but in the State of Israel, where they also completed their Jewish studies. But since there are also persons who decided to circumvent the conversion process in Israel, and to complete their conversion process during a visit abroad of a few days duration, I am of the opinion that the state has the right, if not the duty, to examine the validity of the conversion in view of its ramifications, not only from the viewpoint of the sincerity of the candidate for conversion, but also from the viewpoint of the qualifications and authority of the person carrying out the conversion. Here I see a need to emphasize that this approach was not intended to cause hardship to someone who really and truly wishes to join the Jewish people, and to make his home in the State of Israel. It was intended to protect essential interests of the state, and one of these interests is that the state should not lose the power to determine who will become its citizens.

5. With all due respect, I am of the opinion that this court has the tools to decide the question of the validity of the conversion, and therefore we are enjoined to find a state authority that has expertise in this field. Such an authority is the new state conversion system, which is capable of publishing, after extensive investigation, a list of Jewish communities abroad, so that after performing the conversion processes that they practise, there will be no question of the validity of the conversion. With regard to those persons who have undergone conversion proceedings in other ‘unapproved’ communities, they will be required to appear before some kind of ‘examination committee’ in Israel to examine their conversion. As long as the legislature has not said otherwise, it appears to me that this role can be discharged by the head of the conversion system or someone whom he appoints for this purpose, and one of the possibilities is to authorize for this purpose one of the Rabbinical Courts for conversion that already operate in Israel.

6. With regard to the petitioners before us, it is possible that their subjective sincerity to undergo a conversion is agreed by everyone. But the question of the standing of the foreign bodies that performed the conversion is still unanswered, and this is a question that in my opinion has not been addressed at all, or at least has not been addressed sufficiently. Therefore, were my opinion to be accepted, we would order that the cases of the petitioners should be addressed in the manner that I have set out at the end of para. 5 of my opinion.

Justice A. Grunis

1. A person, who is a citizen of another country, resides lawfully in Israel, either as a foreign worker or as a tourist. He undergoes in Israel a conversion course that is provided by a certain institution. At the end of the course, he goes to another country for several days and undergoes a conversion ceremony there. When he returns to Israel, he applies to receive citizenship by virtue of the Law of Return. According to the position of the majority justices, as stated in the opinion of my colleague, President A. Barak, the Minister of the Interior is obliged to grant their application. I am unable to agree with this position. My opinion, in brief, is as follows.

2. It has often been said that conversion, when associated with a right under the Law of Return, is not a private act (see, for example, Pesero (Goldstein) v. Minister of Interior [9], at p. 746). One cannot compare someone who undergoes a conversion for the purpose of the Law of Return to someone who lives in a foreign country and undergoes there a conversion process for the purpose of joining the Jewish people, which is unrelated to immigration to Israel. Section 2(a) of the Citizenship Law, 5712-1952 (hereafter — the Citizenship Law) tells us that ‘Every immigrant under the Law of Return, 5710-1950, shall become an Israeli citizen, by virtue of the right of return…’. This provision is what creates the public significance of conversion for the purpose of the right of return. The convert is entitled to Israeli citizenship on an immediate basis. His position is completely different from that of an individual who is interested in becoming a naturalized Israeli citizen. The latter must comply with various conditions, including, inter alia, staying in Israel for three years out of a period of five years that preceded the date of filing the application to receive Israeli citizenship (s. 5(a)(2) of the Citizenship Law). The special and unique character of the State of Israel as the state of the Jewish people and its founding a few years after the Holocaust in Europe are what led to the enactment of the Law of Return, of which it has been said, rightly, by President Barak that in essence it is the most basic of the laws of the state, even though it is not a Basic Law (para. 18 of the decision given in this case on 31 May 2004). The easy and unsupervisable method whereby it is possible to obtain citizenship by virtue of the right of return in view of the position of the majority justices is inconsistent with the special significance of joining the Jewish people and obtaining citizenship by virtue of the right of return. The requirement that the state imposed for recognizing conversion of the kind that the petitioners underwent is reasonable and very much consistent, in my opinion, with the public ramifications of the right of return and the subsequent right to citizenship.

3. The present case is dramatically different from the cases that were considered in the past with regard to registration in the Population Register of individuals who underwent conversions abroad. Since the judgment in the case of Schlesinger v. Minister of Interior [10], the court has on countless occasions reiterated that registration in the register is for statistical purposes only and has no other significance. It was therefore held that a document testifying to a conversion in a Jewish community outside Israel was sufficient for the registration official to register the applicant as a Jew in the Population Register (Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [11]). Later it was also held that it did not matter at all whether the person applying for registration belonged to the community in which he underwent a conversion or —

‘… whether he was a passer-by that stopped briefly for the purposes of conversion only, or not. The sole criterion… is that a conversion ceremony was held in accordance with the accepted practice of that Jewish community’ (Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [1], at pp. 750-751).

But now the majority opinion is leading to a position in which a passer-by who stops briefly for the purposes of conversion only is entitled to receive Israeli citizenship by virtue of the right of return. In Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [1] my colleague President A. Barak wrote that ‘registration under the Population Registry Law is one thing, and a status under the Law of Return quite another’ (ibid. [1], at p. 745). Following the opinion of the majority justices, the distinction between conversion for the purposes of registration, with its statistical significance, and conversion for the purposes of the Law of Return, with its far-reaching public significance, has been cancelled. Someone who is in Israel can now go abroad for a few days, undergo a conversion ceremony, return to Israel and become a new immigrant who is entitled to citizenship and to various benefits that derive from his new status (naturally in addition to his registration at the Population Registry as a Jew).

4. I am prepared to accept that the petitioners are sincere in their intention to join the Jewish people and in their desire to become citizens of the state by virtue of the right of return. But the decision cannot and should not be made on the basis of the sincerity of specific petitioners. The court should determine a general test that can be implemented in order to prevent conversion merely for the sake of appearances. The majority opinion is likely to lead to serious consequences and the development of undesirable phenomena. An opening has been made to allow Israeli citizenship to be obtained easily — perhaps too easily — without it being possible to examine thoroughly the conversion of an individual who applies for citizenship by virtue of the right of return. The many difficulties that are placed in the path of those persons such as the petitioners, who wish to become a part of the Jewish people and citizens of the state, but do not wish or are unable to undergo conversion in Israel, do not justify the making of a large opening for the abuse of citizenship by virtue of the right of return. The remedy proposed in the majority opinion for these cases is likely to lead, in my opinion, to more serious results that the malady that it was intended to cure. As I have said, the condition imposed, namely joining the Jewish community abroad as a condition for recognizing a conversion that is conducted in that community, is in my opinion a reasonable and proper condition. I have not found any defect in imposing this condition that should lead us to say that we should intervene in the discretion of the Minister of the Interior.

5. The approach of the majority justices recognizes de facto that the state and its various organs can relinquish their powers and authority and that it is no longer able to supervise the process of obtaining citizenship by virtue of the Law of Return. Around the world there are hundreds and thousands of Jewish communities. The majority opinion gives those communities a ‘key to enter Israel’ (in the words of my colleague, Vice-President M. Cheshin, in para. 7 of his opinion). Because of the large number of the Jewish communities and because of the great variety thereof, there will be no practical possibility of seriously supervising the conversion ceremonies. The belief that it will be possible to determine guidelines and criteria on the question of what is a recognized Jewish community is mistaken. The possibility of receiving ‘instant’ citizenship by virtue of the right of return easily and without commitment is likely to lead to the occurrence of problematic and unseemly phenomena in this regard; those who understand will know to what I refer. I also cannot see clearly how it is possible to recognize the conversions of the petitioners before us, even according to the approach of the majority justices. No criteria have yet been determined on the question of what is a recognized Jewish community and therefore how we can know that the petitioners underwent a conversion in such a community? I find this very questionable. Were the petitioners’ applications to be examined in accordance with the proper criterion that the state proposes — joining a Jewish community as a condition for recognizing a conversion that was carried out in that community — the necessary outcome would be that the petitions would be denied. According to my approach, a visitor who stays briefly in a Jewish community abroad cannot become an Israeli citizen by means of a ‘quick’ conversion.

6. Were my opinion accepted, we would cancel the order nisi and deny the petitions.

Justice Emeritus J. Türkel

1. The time of decision has arrived. Now we are no longer considering the ‘periphery’ of the term Jew, but we are about to shape ‘its real content’ (see my remarks in Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [1], at pp. 762-768); and here I cannot join with my esteemed colleague President A. Barak and with my esteemed colleagues Vice-President Emeritus E. Mazza, Vice-President M. Cheshin and Justices D. Beinisch, E. Rivlin, M. Naor and E. Hayut, who have agreed with his opinion.

2. Conversion is a process that converts a non-Jew into a Jew. It is an ‘internal’ spiritual process in which, so to speak, the non-Jewish identity of the convert is deleted and he acquires a new Jewish identity. It is also an ‘external’ process — involving study, actions and a ceremony — which accompanies the internal spiritual process, supports it, strengthens it and testifies to the fact that the convert intends, with all his heart and with all his soul, to be a Jew. Ultimately, when the two processes are completed, the convert stands beneath the wings of the Divine presence, and he becomes a member of the House of Israel, the Jewish people, without any difference whatsoever between him and a Jew who was conceived and born as a Jew. The two processes, the internal and the external, are interrelated and interdependent, and one is inconceivable without the other. This leads to the duty to ensure the fulfilment of all the stages of the external process, without concessions or compromises, since without these there are grounds for concern that the internal process is not a sincere one.

It is beneficial here to cite the remarks of our master Maimonides in his outstanding letter to Obadiah the convert, on the subject of converts, where he says the following:

‘Therefore anyone who converts, until the end of time, and anyone who makes the name of the Holy One, blessed be He, unique, as is written in the Torah, is one of the disciples of Abraham our father, and a member of his household, and it is he that has returned him to the correct path. Just as he returned the members of his generation to the correct path, with his words and his teaching, so he returned all those who will in the future convert, by means of the testament that he bequeathed to his descendants and to the members of his household. Thus Abraham our father is the father of all his righteous descendants that follow in his footsteps, and the father of his disciples, who are every person that converts.

…

And know that our ancestors who left Egypt were mostly worshippers of false gods in Egypt, and they intermingled with the nations and learned from their actions, until the Holy One, blessed be He, sent Moses our teacher and the teacher of all the prophets, and separated us from the nations, and brought us under the wings of His presence, equally for us and for all converts, and gave us one law. And you should not disparage your lineage, for if we are related to Abraham, Isaac and Jacob, you are related to He who spoke and the world came into being’ (emphasis supplied) (Maimonides, Letter to Obadiah the Convert [44]).

3. Should the court decide the question of whether a specific non-Jew has become a Jew? Should the court rule on the question of whether a convert has undergone the internal process and the external process? Should the court rule on the question of who is competent to perform conversions?

In Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [1], which considered — in my opinion, only prima facie — the request of the petitioners in that case to be registered in the Population Registry as Jews, I expressed my opinion, inter alia, as follows:

‘The question of who is a “convert” — which involves the question of who is a Jew — is of very great significance, the subject of great public controversy; it touches the raw nerves and basic values of large parts of the public in the State of Israel and the Jewish people in the Diaspora, and from the earliest days of the state it has been on the public agenda (see, inter alia, the survey of Justice M. Landau in Shalit v. Minister of Interior [3], at pp. 522-525). I am of the opinion that we can no longer avoid a definition, which should not be made in a decision of the court, but as a result of a thorough study of all the opinions and beliefs of all the sectors of the public, and with a joint effort to reach a broad consensus’ (ibid. [1], at p. 765).

I went on to say in that case:

‘It should be emphasized that in so doing I am not expressing an opinion on the substantive content of the expression “who converted” in the Law of Return, or on the question of who is a Jew, or on the question of who is competent to perform conversions. All that I am saying is that the decision should no longer be brought to the door of the court and that the solution should be found outside the courtroom’ (ibid. [1], at p. 768).

The very important questions that have been brought before the court lie entirely within the spiritual realm, the sphere of religion and belief, and they are national and historical concerns. These questions have no legal solution and they cannot be resolved by a judicial determination. We are not required to decide them merely because the petitioners chose to seek our decision in the way they did, rather than choosing a different path. Therefore, were my opinion accepted, we would refrain from making a decision, and we would declare, as I proposed in Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [1], that the decision ought to be made as ‘a result of a thorough study of all the opinions and beliefs of all the sectors of the public, and with a joint effort to reach a broad consensus.’ We would also declare that the Knesset should determine in statute the forum that will define the rules for conversion outside Israel that will be recognized in Israel, and will determine whether the conversion of an individual abroad is valid. In this respect, I agree with the proposal of my esteemed colleague Justice E.E. Levy, that the new state conversion system should be authorized for these purposes, as stated in para. 5 of his opinion.

3. For these reasons, I would cancel the orders nisi and deny the petitions.

Petition HCJ 2597/99 became redundant since the petitioner received citizenship while it was pending, and the petition was therefore dismissed.

20 Adar II 5765.

31 March 2005.

[1] This can be found at the following web address:

http://data.ccarnet.org/cgi-bin/respdisp.pl?file=68&year=arr.

[2] This can be found at the following web address:

http://data.ccarnet.org/cgi-bin/respdisp.pl?file=13&year=5756.

[3] This can be found at the following web address:

http://data.ccarnet.org/cgi-bin/respdisp.pl?file=127&year=narr.

[4] This can be found at the following web address:

http://data.ccarnet.org/cgi-bin/respdisp.pl?file=124&year=narr.

[5] This can be found at the following web address:

http://data.ccarnet.org/cgi-bin/respdisp.pl?file=66&year=arr.

Full opinion:

Rodriguez-Tushbeim v. Minister of Interior.pdf

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

http://elyon1.court.gov.il/files/99/970/025/A29/99025970.a29.pdf

Kiwaan v. Minister of Defense

Case/docket number:

HCJ 155/53

Date Decided:

Tuesday, March 9, 1954

Decision Type:

Original

Topics:

Abstract:

An order of deportation was issued against the petitioner who had lived in Palestine and who in the year 1948 had been registered in the Register of Inhabitants. He had been compelled in 1949 to leave the country as a result of army action and had lived for a while in a neighbouring Arab country. He returned to Israel without permission and as a result of subsequent court proceedings was held to be entitled to receive and did receive an identity card. The petitioner now contended that as he was the holder of an identity card and had become an Israel national in terms of S. 3(a) of the Nationality Law 1952 the deportation order was illegal.

Held: that the mere possession of an Identity Card did not give the holder a right to stay in the country; that the petitioner was entitled to be regarded as an Israel national having satisfied the conditions of S. 3(a) of the Nationality Law and as such could not be deported.

Voting Justices:

Cheshin, Shneor Zalman

Primary Author

majority opinion

Goitein, David

majority opinion

Berinson, Zvi

majority opinion

Full text of the opinion:

H.C.J 155/53

SALEM AHMED KIWAAN

MINISTER OF DEFENSE AND OTHERS

In the Supreme Court sitting as the High Court of Justice

[March 9,1954]

Before Cheshin J., Goitein J., and Berinson J.

Nationality - Nationality Law, 1952, s. 3(a) - When nationality acquired - Petitioner forced to leave country as result of enemy action - Lawful return - Identity card - Whether holder entitled to remain in country - Deportation order set aside.

Held : that the mere possession of an Identity Card did not give the holder a right to stay in the country ;

that the petitioner was entitled to be regarded as an Israel national having satisfied the conditions of S. 3(a) of the Nationality Law and as such could not be deported.

Israel cases referred to:

(1) H.C. 8/52, Mustafa Saad Bader v. Minister of the Interior and Others; (1953), 7 P.D. 366.

(2) H.C. 227/52, Jamil El-Khalil v. Minister of Police and Others; (1953), 7 P.D. 49.

(3) H.C. 145/51, Sabri Hassan Moustafa Abou Rass and Others v. Military Governor of Galilee and Others; (1951), 5 P.D. 1476.

(4) H.C. 138/51, Ahmed El-Taha and Others v. Minister of the Interior and Others; (1953), 7 P.D. 160.

Nakkara and Wachsman for the petitioner.

Kwart, Deputy State Attorney, for the respondents.

CHESHIN J. (giving the judgment of the court). The subject of the proceedings before us is an order nisi dated July 29, 1953, calling upon the Minister of Defense, the first respondent, to show cause why a deportation order made against the petitioner should not be set aside. The reply filed on behalf of the fourth respondent, the Inspector of Police of the Zevulun Division, Acre, who was authorized to execute the order referred to, confines itself mainly to points of law. It is submitted that the deportation order, which was made in accordance with section 10(1)(f) of the Immigration Ordinance, was lawfully made. It is also contended that the arguments advanced by the petitioner should not be entertained since he is not an Israel national, and that the identity card issued to him does not in itself confer upon him the right of residence in this country.

2. Before dealing with the merits of the petition we shall state some of the important facts which are not in dispute. The petitioner does not deny that he lived for some time beyond the borders of the State - in one of the neighbouring Arab countries - at the beginning of 1949, and that he returned to Israel without having obtained permission to do so. He contends, however, that he was expelled from the country by force and that his short stay outside the country, therefore, was the result of compulsion. He submits that as the conditions entitling him to nationality have been fulfilled, he may not again be deported from the country. Counsel for the respondents admits that the petitioner was already registered in the Register of Inhabitants in 1948 and that as a result of previous proceedings in this court, the petitioner was given an identity card. Counsel submits, however, that the issue to a person of an identity card does not in itself entitle him to reside in the country, and that the authorities are entitled to deport any person who is not a citizen of the State on the grounds laid down by law.

The decisive question which arises in these proceedings, therefore, is the status of the petitioner from the point of view of nationality, and in regard to this question opinion is divided.

3. Israel nationality is acquired in one of the ways set forth in the Nationality Law, 1952, that is to say by return1⁾ (section 2 of the Law), by residence in Israel (section 3), by birth (section 4) and by naturalisation (sections 5-9). It is not disputed that three of the four ways mentioned do not apply to the petitioner, and that his status must be tested in the light of those provisions which entitle a person to be regarded as a national under section 3(a) of the Law, namely by residence in Israel. This section, in so far as it applies to the matter before us, provides as follows:

"3(a) A person who, immediately before the establishment of the State, was a Palestine citizen... shall become an Israel national with effect from the day of the establishment of the State if -

(1) he was registered on March l, 1952, as an inhabitant under the Registration of Inhabitants Ordinance, 1949;

(2) he was an inhabitant of Israel on the day of the coming into force of this Law;

(3) he was in Israel ...from the day of the establishment of the State to the day of the coming into force of this Law, or entered Israel legally during that period."

As I have already said, it is admitted by counsel for the respondents that the petitioner is deemed to have been registered as an inhabitant under the Registration of Inhabitants Ordinance from the year 1948, that is to say, that the first of the conditions mentioned has been fulfilled in regard to the petitioner. The petitioner contends in his affidavit that he was a Palestine national immediately before the establishment of the State and that on July 14, 1952, - the day of the coming into force of the Nationality Law - he was a resident of Israel. These facts were not denied by the respondents in the only affidavit filed on their behalf - or, more accurately, on behalf of the fourth respondent - and we must assume, therefore, that these conditions too have been fulfilled in regard to the petitioner. The only question that remains, therefore, is whether the last condition mentioned in the Law has been satisfied, namely, whether he was in Israel or entered Israel legally during the period from the day of the establishment of the State (May 14, 1948) to the day of the coming into force of the Nationality Law (July 14, 1952).

4. As I have said, the petitioner admits that he was beyond the borders of the State - in one of the neighbouring Arab countries - for a short time in January, 1949, but he contends that he was driven there forcibly and unlawfully by the army. This allegation is denied by counsel for the respondents according to whom the petitioner originally left his village willingly and was only subsequently captured by the army and expelled after he had returned to the village without permission. It follows that it is of the utmost importance in these proceedings to determine the exact facts, for if the petitioner was indeed expelled from the country unlawfully, then his enforced residence outside the country and his return thereto - even without permission - were lawful. These principles have been laid down by this court on a number of occasions and have become firmly entrenched in the law of this country. It is sufficient to refer to Bader v. Minister of the Interior (1), and El-Khalil v. Minister of Police (2). It was said in Bader's case, at page 373:

"It has been emphasised time and again by this Court that a person who has been unlawfully expelled from the country is entitled to return without permission. Such a person is deemed never to have left the country and he therefore requires no entry permit in order to return to it".

and in the case of El-Khalil (2), it was said (at page 51):

"In a number of decisions dealing with identity cards it has been laid down by this court that, in regard to residents of Israel, the authorities may not rely upon unlawful entry into the country where such entry follows upon the unlawful expulsion of such residents from the country by the authorities."

5. Counsel for the petitioner submitted in the course of his argument that since as a rule the authorities only issue an identity card to a person who entered the country legally and who is permitted to reside therein, the very fact that an identity card was issued to the petitioner shows that he did not leave the country willingly, and that his residence therein is lawful. We cannot accept this argument. An identity card is not a talisman against deportation from the country and the possession of such a card does not indicate lawful entry into the country or lawful residence therein. The opinion has already been expressed in the case of Abou Rass v. Military Govenlor of Galilee (3), at page 1478, that the Registration of Inhabitants Ordinance confers no special rights upon a person who is registered under its provisions - except, of course, the right to receive an identity card, and that in view of the very wide definition in that Ordinance of the expression "inhabitant" it cannot be maintained with certainty that the Ordinance was intended to refer to lawful residents alone. It follows, therefore, that an identity card cannot always be regarded as a permit of residence. It has indeed often been argued before us in this court that the authorities do not usually deport a person who holds an identity card. This, however, refers only to administrative practice, which is not decisive in interpreting the law. The matter before us proves that even the administrative authorities do not regard themselves as bound by the custom alleged, for in one of the deportation orders made against the petitioner the Minister of Defense says quite clearly that "I have considered the fact that the person mentioned (that is to say, the petitioner) is the holder today of an identity card but I nevertheless order his deportation...".

In short, the very fact that the petitioner holds an identity card does not in itself invalidate the deportation order against him. Even this, however, does not bring us to a final conclusion, for in the circumstances of this case it is of great importance to ascertain how the petitioner came to receive an identity card. It is desirable therefore at this stage to review shortly the previous proceedings which were conducted in this court between the petitioner and the respondents, other than the first respondent.

6. The petitioner has already been deported by the authorities on a number of occasions and has been accustomed to return to the country after such deportations without permission. In 1952, when the authorities sought to deport him for the third or fourth time, he applied to this court1⁾ for an order directing the Minister of the Interior - the second respondent - to issue him an identity card, and preventing his deportation from the country. A number of facts, inter alia, which were set out then by the petitioner in his application have been repeated and relied upon by him in these proceedings, namely, that he was resident in his village at the time of its capture by the Defense Army of Israel on October 30, 1948; that he was registered in the Register of Inhabitants on December 12, 1948; that he was expelled by the army on January 14, 1949, and that in these circumstances he should not be deported but should be given an identity card.

All these allegations of fact were denied by the representatives of the Minister of the Interior in the affidavit which was then filed on his behalf, and on the return to the order nisi the court entered upon the merits of the matter in order to discover where the truth lay, and to ascertain the facts. The court, however, did not proceed far along this road, for at the conclusion of the cross-examination of the petitioner on his affidavit counsel for the respondents made a declaration before the court that "in view of the decision of this court in El-Taha v. Minister of the Interior (4)," he had no objection to the order nisi being made absolute. The court then acted on the basis of this declaration, made the order absolute, and an identity card was issued to the petitioner on the strength of the order of the court.

We now turn to examine the decision of the court in El-Taha's case (4), and to ascertain what moved counsel for the authorities to withdraw his opposition to the issue of an identity card to the petitioner.

7. In El-Taha's case, a number of Arab residents of the village of Majd-al-Kroum in Western Galilee petitioned this court and submitted that they were entitled to receive identity cards and not to be deported from Israel by reason of the following facts: they were in their village, Majd-al-Kroum, on the day of its capture by the Defense Army of Israel, and a short time after they were registered in the Register of Inhabitants. In the middle of January, 1949, a unit of the army arrived at the village, arrested some 400 of its residents, including the petitioners, and transferred them across the borders of the State. At the end of January, 1949, the petitioners returned to their village but they were again expelled from the country, and again returned to it without obtaining permission. The representatives of the Minister of the Interior denied these allegations in their reply to the order nisi which had been granted on the petition of the Arabs referred to. They insisted that the petitioners had left the State of their own free will and had thereafter infiltrated into the country. The court, however, after hearing evidence and argument, accepted the version of the petitioners - the Arab residents of Majd-al-Kroum - and held that they had been unlawfully expelled from the country. It was for this reason that the court made an order that identity cards be issued to the petitioners in that case.

This is the background against which the proceedings in El-Taha's case were conducted, and "in view of" the decision that was given in those proceedings - to use counsel's expression in the previous proceedings between the petitioner and the authorities in H.C. 81/52 - he withdrew his opposition to the issue of an identity card to the petitioner. We must now ascertain the connection between the petitioner before us and the petitioners in El-Taha's case, and the relationship between the decision that was given by the court in that case and the prayer of the petitioner in H.C. 81/52 to be given an identity card. The answer is a very simple one: the petitioner - according to his submission - is one of those very 400 Arabs who were once forcibly driven from the village of Madj-al-Kroum by the army. He made this submission, as I have said, in his first petition which was dealt with in H.C. 81/52, and counsel for the authorities then denied these allegations. However, in the course of the proceedings in H.C. 81/52 the decision was given in El-Taha's case. It was because of that decision that counsel for the respondents found it proper to withdraw his opposition to the issue of an identity card to the petitioner. What is the interpretation of that withdrawal in these circumstances, and what is the meaning of the court order which was given upon the basis of that withdrawal? The reply is that the authorities recognised the justice of the contention that the petitioner - as the petitioners in El-Taha's case - had been forcibly driven from the State, and that for that reason - and for that reason alone - he was entitled after his return to demand and receive an identity card. It follows that the identity card was not issued to the petitioner without consideration of the intrinsic factors involved, but after proceedings in court in which the merits of the case were considered. The decision of this court directing the authorities to issue an identity card to the petitioner, was based upon the consent of counsel for the authorities, and was given in the light of the decision in El-Taha's case. The court thereby recognised the correctness of the petitioner's submission and of his status as a resident of Israel, or as a person who had entered Israel lawfully. That was a decision in rem, since it determined the status of the petitioner as a lawful resident of the State. This decision binds the authorities and the court in the proceedings now before us. The authorities are now estopped from contending that the entry of the petitioner into Israel was unlawful, or that his leaving the country before that was of his own free will and without obtaining permission. For this reason the court is now obliged to hold that the third condition, too, of the conditions entitling a person to be regarded as a national of the State by reason of his residence therein, in accordance with section 3(a) of the Nationality Law, has been fulfilled by the petitioner.

As has been said counsel for the respondents does not deny - and at the conclusion of his argument he explicitly admitted - that the petitioner may not be deported if it be held that he is a national of the State.

It is decided, therefore, to make the order nisi granted on July 29, 1953, absolute.

Order nisi made absolute.

Judgment given on March 9,1954.

1⁾ The text of this section appears infra p. 322.

1⁾ This is the technical term for the right of a Jew, from any part of the world, to "return" to Israel. The theory is that throughout the ages he has not been able to "return" to Israel but with the rise of the State he is entitled to "return" and settle there.

1⁾ In H.C. 81/52 Kiwaan v. Minister of Interior and Others the court made an order for the issue to the petitioner of an identity card.

Full opinion:

Kiwaan v. Minister of Defense.pdf