Marriage

 

 

 

HCJ 143/62

 

           

 

The Petitioner:            Henriette Anna Katerina Funk Schlesinger

 

                                    v.

 

The Respondent:         Minister of Interior              

 

Attorney for the Petitioner - Y. Ben Menashe

Attorneys for the Respondent – State Attorney Z. Bar Niv, Deputy State Attorneys Z. Terlo and Dr. M. Cheshin

 

 

Abstract

 

The Petitioner, a Christian woman and Belgian national, married Mr. Israel Schlesinger, a Jewish citizen of Israel, in Nicosia, Cyprus, in a civil ceremony in December 1961, as shown by a copy of the marriage register, confirmed by the Cyprus Minister of Interior. The Belgian Consul General in Limassol entered the Petitioner’s marriage in her Belgian passport. The registration in the personal status register of the Belgian Embassy testifies to her marriage in Nicosia in reliance upon the marriage certificate issued to her by the district officer there and on the said entry in her passport. Several days after the said marriage ceremony, the Petitioner arrived in Israel as a tourist. Her request to be granted a visa for permanent residency was denied. After submitting a request to the Inhabitants Registry for a certificate of identity, she was told she could not be granted a certificate of identity showing her as married, an accordingly, the name “Schlesinger” would not appear. An order nisi was issued against the Minister of Interior. In his response, the Respondent granted the Petitioner’s request for permanent residency, but maintained his refusal to register her as married, arguing that the Petitioner and Mr. Schlesinger are not a married couple in accordance with the applicable personal status laws.

 

The Supreme Court, by a majority, made the order nisi absolute, holding:

 

1. The complex issue of the validity of the Petitioner’s marriage under the applicable law should not have been raised in the context of her registration in the Inhabitants Registry.

 

2. (1)        The role of the registration officer under the Registration of Inhabitants Ordinance, 5709-1949,[1] is merely that of a collector of statistics for the purposes of administering the Register of Inhabitants, and he holds no judicial authority.

 

(2)        The above officer’s considerations are strictly administrative and he is not charged with implementing religious instructions.

 

c.         (1)        According to the instructions given to registration officer by the Minister of Interior, a citizen who appears before an administrative authority is presumed to be speaking the truth.

 

(2) Having been presented with prima facie evidence, the officer must suffice with this evidence, because – being an administrative authority – he must not intrude into an area that is not his own in order to determine a legal dispute. Should he not wish to become the arbiter, he must register the details as presented by the requesting party, even if it is not convinced of their correctness.

 

4. The above Ordinance does not confer upon registration in the Register of Inhabitants the force of evidence or proof of anything. The information in it may or may not be true, and no one vouches for its correctness.

 

5. For the purposes of registering the family status of the Petitioner in the Register of Inhabitants, the marriage ceremony is conclusive, and prima facie evidence is sufficient to prove it. Examination of the marriage’s validity is not a matter for the registration officer. It is presumed that the Legislature did not task a public agency with a duty it is unable to fulfill.

 

f.          (1)        The instructions that order the registration officer to pass on a matter of interfaith marriage to the “determination of the department” are unfounded as there is nothing for the department to determine.

 

(2).       The validity or invalidity of an interfaith marriage is an extremely weighty matter, and when a couple askes to register under the above Ordinance, it cannot be said how the issue may ultimately be determined. The registration officer cannot speculate as to which court may address the matter, how the President of the Supreme Court may exercise his authority under art. 55 of the Palestine Order-in-Council 1922, and cannot predict whether the validity of the marriage will be recognized.

 

(3)       As long as the Petitioner’s marriage has not been invalidated in a judicial proceeding, she is deemed a married woman for the purposes of the Inhabitants Registry.

 

Israeli cases cited:

[1]        MApp 39/57 S. v. S, IsrSC 11, 921, 922 (1957)

[2]        CA 26/51 Shimon Kotik v. Tzila (Tzipa) Wolfson, IsrSC  5, 1341 (1951)

[3]        CA 191/51 Leib Skornik v. Miriam Skornik, IsrSC 8, 141 (1954)

[4]        HCJ 237/61 Peer Hadar Co. Ltd. v. Head of the Land Registration and Arrangement Dept. et al., IsrSC 16, 1422 (1962)

[5]        CA 85/62 Calling-Up Officer under the Defence Service Law v. Avraham Nahari, IsrSC 16, 2813 (1962)

[6]        HCJ 145/51 Sabri Hassan Abu-Ras et al. v. Military Governor of the Galilee et al., IsrSC 5, 1476 (1951)

[7]        HCJ 155/53 Salem Ahmad Kiwan v. Minister of Defence et al., IsrSC 8, 301 (1954)

[8]        CA 238/53 Aharon Cohen and Bella Buslik v. AG, IsrSC 8, 4, 36 (1954)

 

 

Palestinian cases cited:

[9]        C.A. 186/37 Rivka Cashman v. Lindsay Gordon Cashman,  P.L.R. 4, 304 (1937) S.C.J. 2, 422; (1937)  Ct.L.R. 2, 132

[10]     C.A. 119/39 Pessia Nuchim Leibovna Shwalboim v. Hirsch Zvi Shwalboim, (1940)  P.L.R. 7, 20; (1940) S.C.J. 1, 38; (1940) Ct. L.R. 7, 55

[11]      C.A. 9/40 Eliyahu Bichovsky v. Nitsa Lambi-Bichovsky, (1940), P.L.R. 7, 228; (1940) S.C.J. 1, 184; (1940) Ct. L.R. 7, 173

[12]      C.A. 11/41 Eliyahu Bichovsky v. Nitsa Lambi-Bichovsky, (1941) P.L.R. 8, 241; (1941 S.C.J. 1, 230; (1941) Ct. L.R. 11, 238

[13]      C.A. 158/37 Leib Neussihin and ors. v. Miriam Neissihin, (1937) P.L.R. 7, 373; (1937) S.C.J. 1, 391; (1937) Ct. L.R. 2, 210

[14]      Misc. App. 20/43 Dr. Asher Apte v. Jehudit Gross (Apte) and an., (1943) P.L.R. 10, 124; (1943) A.L.R. 1, 12

 

English cases cited:

[15]      Mette v. Mette, [1859] 164 E.R. 792; 1 Sw. & Tr. 416; 28 L.J.P.&M. 117; 33 L.T.O.S. 139 sub nom. In the Goods of Mette; 7 W.R. 543

[16]      Brook v. Brook, (1861) 1 1 E.R . 703, 704, 711; ( 1861 )  9 H.L . Cos. 193; 4 L.T. 93, 99, 101 , 98 ; 25 J.P. 259; 7 Jur. N.S. 422; 9 W.R. 461, H.L.

[17]      Ogden v. Ogden (otherwise Philip), (1908) P. 46, 52, 61, 66, 67, 75; 77 L.J.P. 34; 97 L.T. 827; 24 L.T.R. 94, C.A.

[18]      In re Paine, (1940) Ch. 46, 49, 50; 108 L.J. Ch. 427; 161 L.T. 266; 55 T.L.R. 1043; 83 Sol. Jo. 701

[19]      Pugh v. Pugh, (1951) P. 482, 494; (1951) 2 L.T.R. 806; 95 Sol. Jo. 468; (1941) All E.R. 680

[20]      Sottomayer v. De Barros, (1879) 5 P.D. 94; 49 L.J.P. 1; 41 L.T. 281, 282; 27 W.R. 917

[21]      Lepre v. Lepre, (1962), see: The Law Times, vol. 233, December 6, 1962

[22]      Gray (otherwise Formosa) v. Formosa, (1962) 3 All E.R. 419, 423; (1962) 3 W.L.R. 1246

[23]      Spivak v. Spivak, (1930) 142 L.T. 492; (1930) L.J.P. 52; 94 J.P. 91; 46 T.L.R. 243; 74 Sol. Jo. 155; 28 L.G.R. 188; 29 Cox, C.C. 91

[24]      Dalrymple v. Dalrymple, (1811) 161 E.R. 665, 669; 2 Hag. Con. 54

[25]      In re Peete, Peete v. Crompton, (1952) 2 All E.R. 599; (1952) 2 T.L.R. 383; 96 Sol. Jo. 561

[26]      Middleton v. Janverin, (1806) 161 E.R. 797; 2 Hag. Con. 437

[27]      Simonin v. Mallac, (1860) 2 L.T. 327, 330; (1860) 2 Sw. & Tr. 67; 29 L.J.P.M. & A. 97; 6 Jur. N.S. 561; 164 E.R. 917

[28]      Hay v. Northcote, (1900) 82 L.T. 656; (1900) 2 Ch. 262; 69 L.J. Ch. 586; 48 W.R. 615; 16 T.L.R. 418

[29]      Baindail (otherwise Lawson) v. Baindail, (1946) 174 L.T. 320; (1946) P. 122; (1946) 1 All E.R. 342; 115 L.J.P. 65; 62 T.L.R. 263; 90 Sol. Jo. 151, C.A.

[30]      Chetti v. Chetti, (1909) P. 67; sub nom. Venugopal Chetti v. Venugopal Chetti, 78 L.J.P. 23; 99 L.T. 885; 25 T.L.R. 146; 53 Sol. Jo. 163

[31]      Brook v. Brook, (1858) 65 E.R. 747

[32]      Cheni (otherwise Rodriguez) v. Cheni, (1962) 3 All E.R. 873; (1962) 12 C.L. 112

 

American cases cited:

[33]      Ruth Loughran v. John Loughran, (1934) 78 L. Ed. 1219

[34]      Hastings et al. v. Douglas, (1918) F. 378

[35]      Alecia McDonald v. James McDonald, (1936) 58 P. (2d) 163; 104 A.L.R. 1290

 

English Statutes cited:

Age of Marriage Act, 1929 (9 & 20) Geo. 5, c. 36)

Matrimonial Causes Act, 1857 (20 & 21 Vict. C. 85) s. 22

Supreme Court of Judicature (Consolidation) Act, 1925 (15 & 16 Geo. 5, c. 49), s. 32

Marriage Act, 1949 (12 & 13 Geo. 6, c. 76)

 

Jewish Law sources cited:

Kiddushin 15b; 68b

Rashi, Kiddusin  68b, s.v. “Lo”

Leviticus 18

 

Catholic Canon Law cited:

Codex Juris Canonici, 1917, ss. 1014, 1070(2), 1070, 1071, 1133-1141, 87, 1099(2)

 

 

 

 

 

The Supreme Court sitting as a High Court of Justice

 

Before: Justices Silberg, Sussman, Berenson, Witkon and Manny

 

 

An objection to an order nisi dated 24 Iyar 5722 (May 28, 1962) ordering the Respondent to show cause why he continues to refuse to recognize the Petitioner as a married woman, whose name is Schlesinger, and register her accordingly in the Register of Inhabitants, and why he continues to refuse to issue a certificate of identity in accordance with the requested registration, as well as a permit for permanent residency. The order nisi was made absolute by a majority opinion, against the dissenting opinion of Justice Silberg.

 

 

Order

 

Justice Silberg:

1.         This is an objection to an order nisi granted by this Court, which concerns recognizing the Petitioner as a married woman, whose surname is Schlesinger, and so registering her in the Register of Inhabitants on the basis of a civil marriage between her and Mr. Israel Schlesinger in Cyprus, on December 21, 1961. The Petitioner is a Christian woman of Belgian nationality, and Mr. Israel Schlesinger is an Israeli Jew, and a permanent resident of the State of Israel. The Respondent’s refusal stems from the fact that he does not recognize the validity of the above marriage.

 

2.         Two questions stand before us in this matter. The Petitioner’s attorney attempted to intertwine them, “joined together” in his hands [Ezekiel 37:17]. We shall not follow his lead, but rather separate them and discuss them individually. Were we not to do so, we would lose our conceptual train of thought in the zigzag, and find ourselves unable to resolve the problem or problems.

 

The questions before us are:

1. Whether a marriage performed between a Jewish man and non-Jewish woman is valid according to the laws of the state?
2. If we find that it is not legally valid – can the registration officer , indeed must the officer, register the Petitioner as married based on the civil marriage ceremony performed between the couple in Cyprus.

 

I emphasized above, according to the laws of the state, because according to Jewish law, there is no doubt whatsoever that such a marriage is not legally valid.

 

And any woman who cannot contract kiddushin with that particular person or with others, the issue follows her status. This is the case with the issue of a bondmaid or a gentile woman” (TB Kiddushin 66b).

…. How do we know it in regard to a gentile woman? Scripture says, “You shall not intermarry with them” (TB Kiddushin 68b).

You shall not intermarry with them: The law of marriage will not apply to them” (Rashi, Kiddushin, ad loc., s.v. lo).

 

“The law of marriage will not apply to them” – no marital relationship can exist between a Jewish man and a gentile woman. Therefore – it is indisputable, except by the Petitioner’s attorney in one of his arguments – the marriage of a Jewish man and a non-Jewish woman is invalid under Jewish law, whether it was conducted in a Jewish marriage ceremony or in a civil ceremony.

 

3.         The question is, therefore, whether such a marriage is valid under the laws of the state. It is interesting and quite curious that no Israeli tribunal can dissolve this marriage. The rabbinical court cannot, because it has no jurisdiction over a marriage in which one spouse is not Jewish, MApp 39/57, IsrSC 11, 921, 922 [1]. The District Court also cannot, because the woman is a foreign national, and under art. 64 of the Palestine Order-in-Council, the District Court is not authorized to issue a decision dissolving the marriage of a foreign national (see and note: art. 2(f) of the Palestine Order-in-Council (Amendment) 1935, together with CA 186/37 [9]). And I think it greatly doubtful that – for reasons that need not be elaborated here – the Respondent can make recourse to art. 55.

 

But the fact that no tribunal has jurisdiction to dissolve the marriage does not mean that the marriage stands. The law precedes the judge, and it has its own reality. But the fact is that we are not concerned here with dissolution or validation of a marriage – as we lack jurisdiction for either – but with an incidental decision on its invalidity or validity for the purpose of deciding upon the mandamus petition before us. We, like any court, are competent to make incidental decisions under the provisions of sec. 35 of the Courts Law, 5717-1957.

 

4.         And so we return to the question at the beginning of the previous section: Is the marriage entered into by the Petitioner and Mr. Schlesinger in Cyprus valid under the laws of the State of Israel?

 

The primary argument of the Petitioner’s attorney is that whatever the validity of this marriage may be in regard to the man, Mr. Schlesinger, from the perspective of the woman – the Petitioner before us – and for the woman, it is nevertheless valid. This is because under art. 64(ii) of the Palestine Order-in-Council, the validity of a marriage of a foreign national is determined in accordance with the national law that applies to her, and under Belgian law there is no flaw or defect in the marriage of a Christian woman and a Jewish man. In other words, Mr. Schlesinger is not married to the Petitioner, and he is a bachelor, whereas the Petitioner is a married woman, who is married to Mr. Schlesinger.

 

This is a serious argument, but it would seem that it must ultimately be rejected. I am not at all overwhelmed by the absurdity of this idea – a married woman who is married to a bachelor! – because in the vast, factious field of private international law that is so full of contradictions and inconsistencies, such wonders do exist. Consider, for example, a country that permits its citizen to marry a woman who is not eligible for marriage under her national law, and it (the state) also maintains the married woman in her pre-marriage citizenship. When that couple arrives in Israel, they may find themselves in such a paradoxical situation. This is not because Israeli law looks favorably upon such a half-married and half-single couple – indeed, as we shall see below, Israeli law objects to such divisions – but because the explicit provision of art. 64 of the Palestine Order-in-Council requires that the court view the spouses through different prisms: the husband (in the example above)  is viewed through the prism of his national law, which deems them both married, while the woman is viewed through the prism of her national law, which deems them both single.

 

5.         My response to that argument will be presented in the next two sections. First, I will examine the relevant legal situation in English Common Law, which is imported into our law through art. 46. I will then examine the view of Belgian law, which may lead us to art. 64.

 

6.         As for the Common Law: an important rule of British private international law jurisprudence states that a marriage has no legal effect unless it is valid under the personal law of each of the spouses. This is termed the “cumulative system,” as opposed to the “distributive system” that addresses such an issue by “allocation”, that is, it determines the validity of the marriage of each spouse separately, in accordance with the law of his domicile alone.

 

The cumulative system, according to which the invalidity of the marriage in regard to one spouse renders the marriage invalid for the other spouse as well, has been the common thread in English case law for a hundred years or more – some of which expresses it explicitly, while in some it becomes absolutely clear through careful analysis. Below are the prominent cases that addressed this issue directly or indirectly. I shall present them in chronological order:

 

(a) Mette v. Mette, (1859) 164 E.R. 792 [15]:

In this earliest case, a marriage was invalidated for both parties because of the lack of capacity of one spouse, the husband, under the law of his domicile. The husband, a resident of England, married his sister-in-law (the sister of his late wife), who was a resident of Germany prior to the marriage, in Frankfurt. Under English law at the time, the marriage of a brother-and-law and sister-in-law was void, while under German law it was valid. The Court voided the marriage, stating:

 

There could be no valid contract unless each was competent to contract with the other ([15] at 795-96).

 

(b) Brook v. Brook, (1861) 11 E.R. 703 [16]:

This case, decided two years later, also concerned the marriage of a brother-in-law and sister-in-law solemnized in a foreign country that permitted such marriage (Denmark). The House of Lords voided the marriage for violating English law. Halsbury (Simonds) vol. 7, p. 91, comment (r), presents this decision as evidence of the rule that a marriage is void unless it is valid under the antenuptial domicile law of both spouses. But that is mistaken, inasmuch as an examination of the Brook case shows (at p. 704, in the middle of the page), that the antenuptial domicile of both the husband and the wife was England, and in any event this does not show that the marriage would have been voided under the cumulative system, even if – as in the Mette case – only the domicile law of one party would have voided the marriage. But this decision indeed provides additional proof that in the matters of capacity to marry, English law follows the domicile and not the place of solemnization, and it (the above decision) of course does not contradict the said cumulative system.

 

As a living illustration of a modern Gretna Green in nearby Cyprus, it is apt and interesting to take note of a quote from the Brook case, in which Lord Campbell states:

 

It is quite obvious that no civilised state can allow its domiciled subjects or citizens, by making a temporary visit to a foreign country to enter into a contract, to be performed in the place of domicile, if the contract is forbidden by the law of the place of domicile as contrary to religion, or morality, or to any of its fundamental institutions (p. 711).

 

(c) Odgen v. Ogden (otherwise Philip), (1908) [17], p. 46:

A 19-year-old French domicile named Philip married an English domiciled woman. Under French law at the time, a man under the age of 25 could not lawfully marry without parental consent – which Mr. Philip did not have. Under the laws of England, a 19-year-old does not require parental consent. When the English woman heard that her husband, who had left her, had been granted an annulment in France, she went ahead and married her second husband, in England, whose name was Ogden. After a while, conflicts arose between the lady and her second husband, and Mr. Ogden filed suit against his wife for a decree of nullity of marriage, on the grounds of bigamy, because – despite the French decision – his wife was still married to the above Mr. Philip. The question was whether the first marriage of Mrs. Philip-Ogden was valid or void, and the issue was which law should be applied to the first marriage – the English law of the wife, which deemed the marriage valid, or the French law of the husband, which deemed the marriage void, and which actually annulled it by judicial order due to the absence of parental consent.

 

The English court, applying the laws of England to the first marriage, deemed it valid, and therefore annulled the second marriage as bigamous.

 

This decision seemingly contradicts the cumulative system as, in validating the first marriage, it sufficed with its validity under the wife’s law of domicile. But when we reviewed this precedent in depth, read the pleadings by the attorneys, the comments of judges, the text of the decision and the views of English legal scholars on the matter (see: Ogden, [17] pp. 52, 61, 66, 67, 75; Wolff, Private International Law, 2^nd ed., pp. 328-29; Cheshire, Private International Law, 3^rd ed., p. 288; Dicey’s Conflict of Laws, 7^th ed., p. 235) we learned that the ratio decidendi of the Ogden decision was that parental consent for their son’s marriage was a requirement of “form” rather than of “substance” – inasmuch as the two young spouses are not ineligible to be married to one another – and as we know, any matter of form is decided under the law of the place where the marriage was solemnized (les loci celebrationis), which was in the Ogden case – coincidentally – also the law of the wife’s domicile. In effect, the only value of the Ogden decision is in the fact that the classification or distinction between the terms “form” and “substance” was made according to the lex fori, the law of the location of the court, and under  English law, parental consent is a matter of form, as the “Gretna Green” cases confirm! “Gretna Green” marriages have been performed for centuries. Very young English couples who required the consent of their parents to marry would cross the border to a nearby Scottish village, stay there for several hours, and marry there before the blacksmith and his assistant at the customs office. And why were these youthful elopements useful? Because Scotland did not require parental consent, and thus the marriage was valid under the law where the marriage was solemnized, and thus also valid upon return to England.

 

As we can see, the reasoning in Ogden is not only consistent with the cumulative system, it even supports it. This is because were the marriage of Mrs. Ogden to her first husband invalid under his law of domicile – not for a flaw of form but for a flaw of substance – the English court would have found it void for the other partner, that is the English wife, as well. In the case before us, it is unnecessary to elaborate on this, because the flaw in the marriage of a Jewish man and a non-Jewish woman – were Jewish law to apply, which we will discuss below – is a flaw of substance, of actual competence, because there can never be a lawful marriage between a Jewish man and a non-Jewish woman under Jewish law, as we have seen above.

 

(d) In re Paine ; (1940), Ch. 46 [18], provides clear, explicit authority for the above cumulative perspective. The discussion there concerned the provisions of a particular will. Incidentally, a question arose as to whether the parents of the children mentioned in the will were legally married. The marriage was solemnized in Germany. The wife was the husband’s sister-in-law (the sister of his late wife.) His domicile was in Germany, her domicile was in England, and the court held that the marriage was void due to a flaw under the wife’s law of domicile, because – said the judge – “the marriage must be a good and legal marriage according to the law of the domicil of both contracting parties at the time of the marriage” (pp. 49-50).

 

(e) Pugh v. Pugh, (1951),  P. 482 [19]:

A resident of England married a Hungarian-born 15-year-old girl in Austria – which was permitted under the laws of Austria and Hungary, but prohibited and void under the English Age of Marriage Act, 1929. The court voided the marriage, stating:

 

In view of those authorities it is clear that the marriage under consideration here was not valid, since, by the law of the husband’s (emphasis added) domicil it was a marriage into which he could not lawfully enter (p. 494).

 

The court did not bother to enquire into the question of the wife’s domicile because – so it would appear – it deemed it irrelevant, since even a flaw regarding one of the parties voids the marriage entirely under the above cumulative system.

 

(f) Sottomayor v. De Barros, (1879) 5 P.D. 94:

This case is, as far as I am aware, the only exception to the cumulative system. However, it, too, would be of no importance but for the special coincidence with the case before us. A Portuguese man, resident in England, and a woman who was a Portuguese national and resident, married in England. The two were first cousins, and under the laws of Portugal, such relatives cannot marry without a dispensation from the Pope. The English court declared the marriage valid, despite the substantive flaw under the wife’s law of domicile. This decision is surely inconsistent with the cumulative system. However:

 

(a).       It is insignificant in view of the many decisions handed down in the past hundred years in favor of the cumulative system, and it should be deemed overturned by the later decisions in Ogden, Paine, and Pugh as mentioned above.

 

(b).       In Sottomayer, the validating law was the lex fori, the law of the state where the presiding court convened, and the invalidating law was the foreign law, and the court rejected the foreign law in favor of the local law. The case before us is the reverse: the local law, which is identical to the common law, invalidates the marriage at hand – were we to apply Jewish law – whereas the law that validates it is the foreign (Belgian) law. There is no precedent for validating such a case, even in the above Sottomayer case.

 

7.         Here, one might argue: You have applied the Anglo-Israeli Common Law – but not the Belgian law! Were it to become clear that Belgian law actually follows the distributive system, we would be compelled – in terms of the wife – to reject art. 46 in favor of art. 64, and to validate the marriage in her regard.

 

My response is as follows: Based on Arminjon (Precis de Droit International Prive, pp. 45-46), which was cited before us by the Respondents’ attorney, it seems that Belgian law, too, follows the cumulative rather than the distributive system. But even were we not consider the words of this author as clear evidence of the Belgian law, we would arrive at the very same outcome. This is because when a party argues for the application of a foreign law but does not prove it, the “doctrine of processual presumption” immediately applies and the court assumes that the foreign law is identical to the law of the forum. Or – as the most recent editors of Dicey state – the court in this instance simply applies the law of the forum (Dicey’s Conflict of Laws, 7^th ed., p. 1116).

 

And since the law of the forum in this case is, under art. 46,  English Common Law, we again return to the cumulative system, which requires marriage eligibility under the personal law of both spouses.

 

As a result – assuming that Jewish law is the personal law of Mr. Schlesinger – his marriage to the Petitioner lacks legal validity both for the husband and for the wife, because one of the spouses, the husband, lacked the capacity to marry the Petitioner.

 

8.         We thus reach the additional question: Is Jewish law indeed the “personal law” under which the civil court must adjudicate the matter of Mr. Schlesinger’s personal status, in accordance with the aforementioned provision at the end of art. 47 of the Palestine Order-in-Council?

 

The answer to this is yes, certainly, and without a shadow of  doubt. The Mandatory Supreme Court so ruled in CA 119/39 [10], and in CA 11/41 Bichovsky v. Lambi-Bichovsky, (1941) P.L.R. 8, 241 [12], and the Israeli Supreme Court so ruled in CA 26/51 Kotik v. Wolfson, IsrSC  5, 1341 [2], and CA 191/51 Skornik v. Skornik, IsrSC 8, 141 [3], and so rule the Israeli courts each and every day without any misgivings, in hundreds and thousands of judicial decisions.

 

9.         The Petitioner’s attorney made a last-minute argument on this point immediately after we informed him of an English decision handed down several weeks ago in Lepre v. Lepre, (1962) [21], which was reported in The Law Times on December 6, 1962. This decision essentially relies upon an earlier decision handed down by the English Court of Appeal in the matter of Gray (otherwise Formosa) v. Formosa, (1962) 3 All E.R. 419 [22]. In summary, both decisions hold that English courts will not recognize a foreign court’s annulment of a marriage due to the different faiths of the husband and wife, because such nullification is inconsistent with English principles of natural justice. The Petitioner’s attorney argues that we, too – as a civil, secular court – must ignore Jewish law to the extent that it prohibits the marriage of Jewish man and a non-Jewish woman, because that flaw offends the sense of natural justice of Israeli public, as well.

 

This claim is incorrect. A court in state A can say that the laws of state B infringe its sense of justice, and completely ignore them. But a judge presiding in state B itself cannot say that the laws of the state infringe his sense of justice and that he is, therefore, unwilling to uphold them. The laws of every state, and all the more so a democratic state with a parliamentary legislature, befit – or is deemed to befit – the accepted principles of natural justice of that state, otherwise the laws would not have been enacted, and if enacted – would have been repealed under public pressure. Lord Denning could say in the Formosa case ([22] p. 423) that were a person off the street in England asked whether a marriage between a Catholic man and an Anglican woman was valid or not, that person would have answered: Valid! But it certainly cannot be said that any person in Israel, off the street or from the garret, would have responded in the affirmative to the question whether the marriage of a Jewish man and a non-Jewish woman should be recognized as valid. I believe that the vast majority of our public would answer in the negative. That is, not only are we, the presiding judges, not permitted to ignore existing laws so long as they are in force, but in reality, and in truth, our religious personal laws do not contradict the view of the Israeli general public.

 

10.       My conclusion is, therefore, that the marriage of the Petitioner to Mr. Schlesinger is null and void for both spouses, because the personal law of Mr. Schlesinger is Jewish law, which binds this Court under art. 47 of the Palestine Order-in-Council, as aforesaid.

 

11.       This brings us to the second question of whether, despite the marriage’s invalidity, the registration officer was required to register the Petitioner as married. The Petitioner’s attorney argued that the registration officer only records what the registering party reports, and must not further enquire into the citizen’s legal personal status.

 

I am willing to agree that if, for example, the registration officer believes that the citizen applying to him is married, he may register the citizen as such, and is not required to seek expert advice in order to root out any doubt he may have about the matter. But when he is convinced that the person is not married, he may not register anything that he believes to be a complete lie. Since the registration questionnaire inquires as to the legal family statues of the registering person, rather than the bare fact of whether that person had a marriage ceremony or not – as argued before us by the Petitioner’s attorney – I wonder whether I can order the Respondents to register the Petitioner as married, after I have stated my opinion, in this very decision, that she is not married.

 

I therefore reject the second argument, as well, and recommend that we rescind the order nisi and deny the Petition.

 

12.       This concludes my opinion, but I wish to direct a few words to the legislature, and draw its attention to the fact that the case before us is but a sad part of a much broader problem, which urgently requires a clear statutory arrangement. I testify before heaven and earth that I was but a hair’s breadth from a converse ruling. For were only one detail of the many details in the present case different, I would have been obligated, as a judge of a civil court, to find in favor of the validity of this marriage.

 

I shall clarify. In the present case – which we shall call hereinafter the Schlesinger case – no evidence was presented as to the whether Belgian law adopts the cumulative or distributive approach to the spouses’ personal law. We imputed the cumulative system to Belgian law on the basis of the “presumption of identity”, after showing the position on this matter of the Common Law, and of Israeli law pursuant thereto. But there are various legal scholars who argue in favor of the distributive system. The opponents of the cumulative system point to its absurd outcome that the marriage is sometimes voided because of the wife’s pre-marital domicile, whereas were the marriage not compromised,  the saw would exalt itself against him who saws with it [Isaiah 10:15], and the marriage itself would void the domicile that voids it. This is because, as we know, the domicile of the married woman follows the domicile of the husband. However, if clear, explicit evidence demonstrated in the Schlesinger case that the Belgian legislature follows the distributive approach, then we would have been required to recognize the validity of the marriage in regard to the Belgian subject,  and to order the Respondents to register her as married.

 

Or change a different detail, which also would have reversed the result of the judgment. English judges are divided on the question of what is this “law of domicile” that determines the validity of the marriage? Is it the law of the antenuptial domicile of each of the spouses, or is it the law of the domicile of both spouses following the marriage that prevails, or – in other words, and perhaps by a different intention – “the intended matrimonial domicile”. This question should not be determined as a matter of course, as there are arguments and authority for both alternatives, although most of the case law seemingly tends toward the former.

 

In the Schlesinger case, we did not address this question at all, as it was not material. The State of Israel was both the antenuptial domicile of the husband, as well as the intended matrimonial domicile, as appears from the all the circumstances, and thus the marriage is in any case invalid.

 

But let us imagine a different “Schlesinger case”, which is slightly different in terms of this detail. The man, a Jewish resident of Israel, travels to Cyprus for a short period of time, where he marries a non-Jewish woman in a civil ceremony, and returns with her to Israel in order to prepare papers and documents for the purpose of immigrating to England – a country that, as we have seen under the Lepre matter [21], does not prohibit marriage because of differences in the partners’ faith, regardless of the position of the laws of state of domicile on the matter. Were this the case, we would have been required to first get into the thick of the aforementioned dispute in the case law. Then, were we to determine in favor of the intended matrimonial domicile – we would have to find that the marriage was valid under our civil law, both for the non-Jewish wife and for the Jewish husband.

 

Moreover, in our country, as we know, there is no general territorial law on matters of personal status (aside for some morsels such as the distribution of an estate and guardianship of children under the Woman’s Equal Rights Law, 1951) and at times – as I have written elsewhere – the law is a “function” of the adjudicator.

 

For example: a Jewish man, resident of the United States, enters a civil marriage there with a divorced Jewish woman who married her previous husband in a Jewish ceremony and divorced him by a civil divorce. The spouses immigrate to Israel and enquire as to their personal status and whether they are married or single. Were the issue brought directly before the Rabbinical Court under sec. 1 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, the decision of the court would be that they are not married, as according to Jewish law, she would still be married to her previous husband, and a marriage to a married woman is invalid. On the other hand, should the woman apply to the District Court prior to the Rabbinical Court’s decision, in a suit for maintenance from the man under sec. 4 of the above statue, the court would incidentally find (under sec. 35 of the Courts Law, 1957), that the plaintiff is lawfully married to her husband by virtue of the Common Law rules that establish the validity of the marriage under the law of the couple’s domicile at the time of the solemnization of the marriage, and would order the defendant to pay maintenance. The question then arises: what should the registration officer properly do when asked to register the above couple’s personal status?

 

Another example: Jewish spouses, who reside permanently in France, marry there in a Jewish ceremony in accordance with Jewish religious law and then move to Israel. The Rabbinical Court would recognize the validity of the marriage retroactively from the day of its performance, as it is valid under the Jewish law (compare CA 158/37 Nosse Chen v. Nosse Chen) [13]. The civil court – were it not to accept the dissenting opinion of my honorable colleague Justice Agranat in the Skornik appeal, CA 191/51, IsrSC  8, 141 [3], 175-78 – would void that marriage (while considering it incidentally), relying on another ruled of English private international law which states that the form of the ceremony is considered, for better or for worse, according to the location where it is celebrated, and the laws of France – if my memory serves me right – do not recognize the validity of a religious marriage ceremony. This case is the inverse of the previous case: there the marriage is invalid in the eyes of the religious court and valid in the eyes of the civil court; here it is valid in the eyes of the religious court and invalid in the eyes of the civil court. Is this not a case of the law becoming a “function” of the judge?! And again the question arises, how must the registration officer proceed in registering the personal status of the above couple?

 

I, therefore, offer the following simple suggestion that would effectively remove the painful sting form the vast majority of difficult cases. When the marriage was solemnized abroad, the registration officer should be permitted and even obligated to add the words “in a civil ceremony” or “in a religious ceremony” after the word “married”, as the case may be. This innovation requires an explicit statutory provision, because as the law presently stands, the registration officer must register the legal family status of the person registering, which presents him with a complex web of legal questions from which he may not always be able to extricate himself. Clearly, what is recorded in the certificate of identity will not obligate or bind the religious or the civil court if they later adjudicate – directly or incidentally – the issue of the marriage’s validity. But it shall provide some small but important satisfaction to spouses whose marital status is in doubt, and would spare them shame and considerable discomfort whenever they must present their certificate of identity. Let us not further strain the already tense relations between the religious and the “free” sectors of the population, nor pour oil on the fire that might erupt around this issue in Israeli society.

 

Therefore, I found it necessary to make the above comments, in hope that the Israeli legislature consider them when it addresses this painful question.

 

My opinion, as presented at the end of the previous paragraph, is that the order nisi should be rescinded and the petition denied.

 

Justice Sussman:

 

The Petitioner, a Christian subject of Belgium, married Mr. Israeli Schlesinger, a Jewish citizen of Israel, on December 21, 1961. The marriage was solemnized in a civil ceremony in Nicosia, Cyprus, and was evidenced by a copy of the marriage register confirmed by the Cypriot Minister of Interior. After marrying Mr. Schlesinger, the Petitioner went to the Belgian Consul General in Limassol, who registered her marriage in her Belgian passport. He further registered that due to her above marriage, her name was changed to Schlesinger, her husband’s name. The Petitioner did not suffice with this registration. On July 26, 1962, she presented herself at the Belgian embassy and made a declaration that was registered in the Embassy’s personal status register (Registre matricule). The registration details the Petitioner’s personal details and attests to her marriage in Nicosia, in reliance on the marriage certificate issued to her by the district officer in Nicosia, and in reliance on the registration in her passport by the Belgian Consul, as noted.

 

2.         On December 12, 1961, the Petitioner arrived in Israel as a tourist. She initially sought a permit for permanent residency, however her request was denied, and she was permitted to remain in Israel only until March 17, 1962. Two days after that, on March 19, 1962, she applied to the Tel Aviv registration office for a certificate of identity. To this end, she submitted all the information required under the Registration of Inhabitants Ordinance, 1949. The outcome of the application was that the Petitioner was summoned to the said office for “clarification”. The purpose of the “clarification” was to inform the Petitioner that she could not be issued a certificate of identity that would state that she was married, and accordingly, the name “Schlesinger” could not be entered. This notice was given to the Petitioner orally, and her request that she be given written notification went unanswered. An additional request for a certificate of identity, submitted by the Petitioner’s attorney to the Ministry of Interior in Jerusalem on April 30, 1962, received no response. The Petitioner therefore brought her matter before this Court, which granted an order nisi instructing the Respondent – the Minister of Interior – to show cause why he maintains his refusal to recognize the Petitioner as a married woman whose name is Schlesinger, and why he maintains his refusal to issue her a certificate of identity as requested, as well as a permit for permanent residency.

 

Only in its response to the order nisi did the Respondent grant the Petitioner’s request for a permanent residency permit, so that one issue has now become moot. Still, the Respondent maintains his refusal to register the Petitioner as a married woman, arguing that according to the laws of personal status that apply to the Petitioner and her husband, they are not a married couple. In this context, it should be noted that the Petitioner’s husband was registered in the Register of Inhabitants as married, on the basis of that same marriage ceremony celebrated between him and her in Cyprus, but the Respondent’s investigation into the Tel Aviv registration office revealed that this registration was made in error, and that the officer who registered the husband’s marriage was not familiar with the web of contradictory instructions given over the years by his superiors.

 

3.         It would not be superfluous to emphasize already at this stage – at the outset of our remarks – that we are not concerned here with the validity or voidance of the marriage. The issue before us is the question that arises from the what was stated in the order nisi, that is: whether there is justification for the refusal of the registration officer to register the Petitioner as a married woman who, as a result of her marriage, bears the name of her husband.

 

4.         In order to respond to the above question, we shall turn to the Registration of Inhabitants Ordinance, 1949. According to sec. 2 of the above Ordinance, a Register of Inhabitants was established in the territory of the state, and the roles of the registration offices are defined in sec. 3 of the Ordinance. These duties are:

1. To keep a Register of Inhabitants containing the particulars of registration enumerated in section 4;
2. To issue, renew and enter changes in certificates of identity;

…

 

As an “inhabitant”, according to its meaning in sec. 1 of the above Ordinance, the Petitioner must, under sec. 5(a), provide the registration office with the details listed in sec. 4 of the Ordinance. These details include, inter alia, her name (sec. 4(a)), and her family status (sec. 4(d)), and there is no doubt that she is required to provide correct details, as providing incorrect details is punishable under sec. 12(a)(2) of the Ordinance. These are the details which the registration officer must register, and issue the inhabitant a certificate of  identity according to them, as stated in sec. 7 of the Ordinance.

 

5.         In the course of the hearing, my honorable colleague Justice Berenson raised the question: what is the registration officer to do when a person comes before him and provides, for the purpose of registration, details that are not acceptable to the registration officer, such as when a person wishes to register his son as five years old, and the registration officer sees the boy and believes that he may be twenty years old?

 

Section 6 of the Ordinance speaks of the “procedure of notification”, and instructs that anyone providing details of registration must, at the request of the registration officer, “produce any relevant document” as well as “affirm, either orally or in writing, the correctness of the particulars furnished or produced by him”.

 

The learned State Attorney, who argued on behalf of the Respondent, did not touch on this question, except for a single incidental comment. He said that a public officer is not under a duty to enter incorrect information in a register that he maintains, and in any event, this Court will not order him to do so, as we held in HCJ 237/61 [4]. I accept this argument, but it concerns an incorrect registration that is manifest and not subject to reasonable doubt. I do not question that a public officer must not exercise his authority in order to be a party to an act of deception. When a person who is undoubtedly an adult presents himself and wishes to register as a five year old child, what doubt is there here that the registration is false and this person’s act is fraudulent? In such a case, the registration officer is correct to refuse to register the details, and this Court certainly will not exercise its power, under sec. 7 of the Courts Law, 5717-1957, to require the registration officer to “falsify” the Register of Inhabitants.

 

But consider a different case, in which the officer indeed has suspicions as to the age of a person, but the matter is uncertain. Recently,  a matter came before this Court concerning a person of Yemenite origin who, according to his certificate of identity, was already 18 years old, and thus, in accordance with his registered age, he was subject to military conscription. He reported for a medical examination in accordance with the Defence Service Law, 5719-1959, and the medical committee that examined him found that he was only 14 or 15 years old. The boy’s father, too, supported the finding of the medical committee, but nevertheless did not object to his son be conscripted immediately, apparently in the belief that it would be best that when the son is 18, he would already be exempt from the obligation for regular service and could assist him in his work or business. In light of the finding of the medical committee, the calling-up officer petitioned the District Court, in accordance with sec. 4 in the Appendix to the said law, for a declaration as to the age of the person reporting for military service. The District Court collected testimony and declared the registration in the certificate of identity was correct and the boy was 18 years old. The  calling-up officer appealed to this Court, and we held that the registration was incorrect and that the boy was still 14 years old (CA 85/62 [5]).

 

6.         The same question that worried the calling-up officer may arise before the registration officer when registering a resident under the above Ordinance. When that same person I discussed in sec.. 5 above presents himself and asks to register his son as 15, and the officer believes, according to what he sees, that the boy is already 17 years old, what is he to do? Needless to say, such cases are possible, whether because of a false registration was made in order to allow a person to avoid military service, or for any other purpose. When the registration officer wishes to determine the age of a person when the issue may cut both ways, the question arises: who authorized you? The matter in dispute may be difficult and complex, as the difference of opinions between the two courts in the above matter demonstrates. Have registration officers been granted judicial authorities? Has the Ordinance authorized them to decide upon matters of registration? It is clear beyond doubt that the task of the registration officer, under the above Ordinance, is but that of a collector of statistical information for the purposes of keeping the Register of Inhabitants, and he holds no judicial authority. What, then, is a registration officer to do in such a case? Should the registration officer register despite doubts as to the correctness of the registration – whether in terms of age or in terms of a different matter, such as one’s family status – or should he refrain?

 

It would appear that the registration officer was given “instructions” in this regard by the Ministry of Interior, but those instructions were changed from time to time. The instructions that were in effect until March 1958, were replaced at that time by other instructions given by the Deputy Director General for Immigration and Population in the Ministry of Interior, with the approval of the Minister of Interior (exhibit M2). These instructions also include provisions in regard to the registration of family status. On January 1, 1960, things changed again, and the Minister of Interior personally ordered the cancellation of previous instructions for registering mixed marriages. On May 2, 1962, the above Deputy Director General in the Ministry of Interior ordered, pursuant to this order of the Minister of Interior to the district commissioners, that “since the registration of mixed marriages…requires examination on a case by case basis”, registration officers must accept the notifications of requesting parties, but they must refrain from registering this in their certificate of identity and personal documentation and “transfer the personal file of the couple to the department for determination.”

 

7.         The determination of the department in regard to the Petitioner’s marriage was made on March 15, 1962, and it was passed on to the Immigration and Inhabitants Registration Office in Tel Aviv, as follows:

 

(2)… It should be clear that the civil marriage performed between him and Miss Funk is not valid for him. The personal law that applies to him is the Rabbinical Courts Jurisdiction Law, and this statute does not permit mixed marriages.

 

(3) Since the marriage is not valid, Miss Funk must not be considered his wife and she must not be registered as married. The parties – should they wish to do so – may apply to the District Court for a determination on the matter by way of a motion for granting an order. The background for the decision should be explained to Dr. Schlesinger.

 

This determination of the Registration of Inhabitants Department in the Ministry of Interior is flawed in at least two ways. First, I wonder what source the Respondent or his subordinates found specifically in the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law,  5713-1953,[2] – it and none other – that “does not permit mixed marriages.” Section 2 of the above Law states:

 

Marriages and divorces of Jews shall be performed in Israel in accordance with Jewish religious law.

 

The law addresses the marriage of Jews, and only a marriage conducted in Israel. The Petitioner is not Jewish, and her marriage was conducted outside of Israel. Second, if a judicial decision is required, why should the Petitioner specifically turn to the District Court? Could she not submit the matter for decision by a competent religious court?

 

I think it appropriate to note, at this point, that the authority of the Minister of Interior to instruct the registration officers as to when to perform a registration and when not to was not disputed before us. There is no mention of such authority in the above Ordinance itself, and the Respondent did not argue that he relied upon regulations he made by virtue of sec. 10 of the Ordinance. However, in light of the position taken by the Petitioner’s attorney, I will assume that the Respondent was empowered to issue such “instructions”.

 

What was said in the instructions?

 

Exhibit M2 – that is, the instructions given by the Respondent on March 10, 1958, in accordance with the opinion of the Attorney General – states, inter alia, as follows:

 

            1. Defining the Role of the Registration Officer:

The registration officer is solely an administrative authority and he must, therefore, register the personal details of a person required to provide them for registration according to the above statutes, both for himself and for his minor children.

The registration officer is not the judicial authority that determines the personal status of the person, and it is not for him to determine legal or religious questions.

If every determination of a legal question is beyond the scope of the role and competence of the authority tasked with implementing the laws – then that is certainly so for a determination of a religious nature. Whether one converted according to Jewish law, or married a wife according to Jewish law, or whether one was divorced by her husband according to Jewish law, or whether one may be considered Jewish under Jewish law – these are all religious questions, and their determination is within the purview of the religious authorities.

 

The considerations of the registration officer are solely administrative, and he is not charged with the implementation of religious law.

 

                        The civil administrative authorities are not ordered, are not able, and thus are not even permitted to carry out religious law or determine what is permitted or forbidden under religious law.

 

2.         What is the Registration Officer to Register?

The registration officer only registers what the citizen who is required to register tells him to register.

 

3.         The Duty of Investigation and Examination of the Registration Officer

The registration officer must not be charged with a duty to investigate and inquire that he cannot and should not meet before registering the details provided to him by the resident who must register.

It is true that the registration officer must exercise caution in fulfilling his duties. But “it (that is, this caution) is not but that same caution required of any public servant when fulfilling his administrative role.

 

4.         The Duty of Warning by the Registration Officer

The Registration officer shall warn the person required to register that he registers only what he is told, and that the registration does not serve as legal evidence of the truthfulness of the registered details, but only evidence of meeting the obligation to register. It must be explained to the declaring person that any court or tribunal, and even any administrative authority, may reject the details as a finding, and even disregard them.

In particular, he must be warned that, according to the standing rules of the Chief Rabbinate and the Ministry of Religion of 1950, rabbis who serve as registrars of marriages are obligated not to rely only on the information registered in the certificate of identity, but to investigate themselves those who come before them to marry, or to demand that they submit a certificate that they are unmarried from an authorized rabbi or religious court. In practice, rabbis follow these instructions all the time.

 

5.         The Registration Officer’s Duty to Register the Details

After the registration officer has given the above warning, he must register the details provided to him:

1. If he sees no prima facie reason to doubt the details provided to him.
2. If, after any doubt arose as to a particular detail, he requested evidence and the details were prima facie proven to him.

 

                                          The registration officer must always bear in mind that he is not a judge and that he is not an arbiter, but that he is solely a registration officer, and he registers only what the citizen required to register tells him to register. The law authorizes the registration officer to refuse to register what seems to him as false or misleading. For this purpose, he is granted the authority to demand from the person required to register documents and other evidence to prove what he claims ought to be registered. But when the registration officer sees no prima facie reason to doubt the details provided to him by the person required to register, or – after such doubt has arisen and he has demanded such evidence – should he be satisfied that these details were prima facie proven to him, then the registration officer must register them. The fact that the certificate he issues as to the registration will be deemed valid, and that it may serve to prove its content, is of no consequence to him at all.

 

6.         The Citizen’s Declaration – Presumption of Truth

The registration officer must presume the citizen’s declaration to be true, and particularly if he has warned the citizen. The registration officer may not raise unsubstantiated suspicions. Doubt must be based on a reasonable foundation.

 

This is a rule: the registration officer is required to respect the citizen, but he is not required to suspect him.

 

7.         What is a Reasonable Foundation for Suspicion?

A reasonable foundation may be based upon the conduct of the declaring citizen, inconsistencies in his declarations, apparent flaws in his documents, knowledge the officer has in regard to the citizen or the documents – and so forth.

 

8.         Anyone Seeking Amendment bears the Burden of Proof

When a person seeks to amend the registration – he must prove that there is indeed a mistake that requires correction and should be corrected. Here, the registration officer is not generally permitted to forego the evidence.

 

9.         An Official Document Presumed to be Valid

In the absence of special reasons (see below) to rebut the presumption of validity, the registration officer must not second guess an official document, but must act to register in accordance with it.

What constitutes an official document –

Any document created by a public servant (government, legal or administrative, civil or religious, in Israel or abroad) in the course of his duties, and in this regard, anything recorded in the  Register of Inhabitants and the certificate of identity itself, is presumed true.

                        Therefore, the authorities competent to execute the laws may and must presume the validity of any official document, whether from Israel or from abroad, that is presented to them as proof of a certain fact, and it is immaterial whether the document is a birth certificate or a passport or a marriage certificate or a divorce decree or a death certificate or probate order. Such documents prove prima facie not only the underlying fact for which they were issued (such as a marriage certificate or a divorce decree), but also all the other details written in them. The agency issuing the document is presumed not to have issued a document in which it recorded something that is incorrect.

 

10.       Rebutting the above Presumption

However, this presumption is rebuttable. It is only prima facie evidence. For example, should the registration officer sense a forgery of a document (uncertified additions or amendments or redactions), the officer may demand additional evidence.

 

11.       The Value of Decisions by the Registration Officer

The decisions of the registration officer are valid and binding only for the purpose of implementing the Registration of Inhabitants Ordinance (or one of the other above statutes). They have no binding legal force for the implementation of other statutes.

Even in those cases where the registration officer demanded evidence to prove a certain detail, the satisfaction of the registration officer does not bar a court or any other administrative authority from rejecting that very same evidence and to not be persuaded thereby.

 

……

 

16.       The Marriage of Spouses, One of whom is not Jewish, before a Consul

A consul has no authority to perform a civil marriage ceremony for a couple where both partners are Jewish, but the said consul retains authority to perform a civil marriage ceremony for a couple when one partner is not Jewish, provided that the consul is so authorized by the laws of his state to perform the marriage ceremony.

Any certificate issued by a foreign consul in Israel in regard to any person who is a citizen of the country that the consul represents, and which concerns the personal status of that person (such as marriage, birth and so forth, but not divorce), must be accepted as a basis for registering that detail that the certificate addresses.

 

9.         I agree with what is been presented above from exhibit M2, which also includes

the answer to the question how the registration officer is to proceed when he harbors doubt as to the accuracy of the details that the declaring citizen provided to him. Section 3 of the above regulations aptly states that the registration officer must act with caution, and I have already called attention to sec. 6 of the Ordinance, which establishes that he may investigate and inquire. But once the officer is presented with prima facie evidence, he must suffice with it, because being an administrative authority, he would exceed his authority should he seek to determine a legal dispute. And should he not seek to be an arbiter, then he must register the details as presented by the requesting citizen, even if he is not persuaded of their accuracy. Should a citizen seeking registration, as in the example in sec. 6 above, insist that his son is 15 years old, the registration officer shall register him as declared by the requesting citizen.

 

As said in the instructions above, a citizen coming before an administrative authority is presumed to speak the truth, and the registration officer must not forget that should he seek to exercise judicial authority and make a determination in a matter that he believes requires determination, he has not been granted the tools to do so. And since the above Ordinance requires the citizen to submit details for registration, and requires that the officer register them and issue a certificate of identity, the matter cannot end in a draw. There is no choice but to say that the registration officer must register what the citizen tells him.

 

The above Ordinance did not attribute to the registration in the Register of Inhabitants the force of evidence or proof of anything. The purpose of the Ordinance is, as was said in HCJ 145/51 [6], to collect statistical information. This material may be correct or incorrect, and no one guarantees its accuracy. In order to establish one’s age for the purposes of conscription into the military, the registration in the Register of Inhabitants serves as prima facie evidence, not by force of the above Ordinance, but by force of the Appendix to the Defence Service Law, 5719-1959. A certificate of identity is issued to a resident, according to sec. 7 of the Ordinance, as a “means of identifying.” But no one is obligated to act according to it, and no one is obligated to identify the holder of a certificate of identity by means of that document. Holding a certificate of identity grants its holder no right whatsoever (HCJ 155/53 [7]).

 

Just as registering an age in the certificate of identity does not serve as proof of age except to the extent established by a statute, the same holds true for the registration of family status, inasmuch as which law – like the Defence Service Law, 5719-1959, for the purposes of proving an age – permits a person to use his certificate of identity to prove whether or not he is married? Section 4 of the M2 directives says that according to the standing rules of the Chief Rabbinate and the Ministry of Religion, a marriage registrar does not rely on the registration for purposes of fulfilling his duties, and may act accordingly. Who, then, must rely on the registration?

 

10.       Consider the case of some Jewish man who married some Catholic woman in a civil service in some country, and who presents a marriage certificate to the registration officer. A civil court would establish the sufficiency of the ceremony under the law of the country of solemnization. However, that would not be the case in a religious court, which would not recognize a civil ceremony. How must the registration officer form his opinion, according to the district court or according to the religious court? I dare say that for the purposes of the validity of such a mixed marriage, no one in Israel can predict in advance whether or not it is valid.

 

Let us even assume that the man is an Israeli citizen, and the woman (like the Petitioner) is not. The District Court is not authorized to invalidate this marriage, in light of the restriction in art. 64 of the Palestine Order-in-Council, while MApp20/43 [14] held that this restriction denies the court the authority to declare this marriage void ab initio by reason of the spouses being ineligible to marry each other. But not only can the matter come before the District Court in a different action that would require it to rule on the question of the marriage’s validity, but there are two religious courts in the country that, while not competent to invalidate the marriage, can declare its existence and validity. Their authority would be contingent upon the consent of the parties to be judged by a religious court, and the President of the Supreme Court would then exercise his authority under art. 55 of the Palestine Order-in-Council to determine which court would be authorized to hear the matter. In light of art. 65 of the Palestine Order-in-Council, there is no bar to a foreign citizen consenting to the jurisdiction of a religious court (MApp 39/57 [1]. In this case, the validity of the marriage will depend upon how the President of the Supreme Court exercises his discretion, because once the authority of the religious court has been established, so has the substantive law that applies to the matter, as the law follows the judge (CA 238/53 IsrSC 8, 4, 36 [8]).  Were the President of the Supreme Court to authorize the Rabbinical Court to rule on the matter, it would invalidate the marriage, since Jewish religious law does not recognize civil marriage, and certainly not a mixed marriage between a Jewish man and a Christian woman. But the President of the Supreme Court might authorize the Catholic Court to adjudicate the matter, and were he to do so, the validity of the marriage would be determined according to the Catholic religious law. And what would the Catholic Court rule? The law of the Catholic Church is established by the Codex Juris Canonici of 1917. According to sec. 1014 and sec. 1070(2) of the above Codex, the Catholic Church, like a civil court, also follows the rule of semper praesumitur pro matrimonio (see Spivack v. Spivack (1930), 142 L.T. 492 [23]; and CA 191/51, IsrSC 8, 141, 149 [3]), and presumes every marriage to be valid as long and the opposite has been demonstrated. It is true that the law of the Catholic Church also requires, though not with the same severity of Jewish law, solemnizing a marriage in a religious ceremony. Additionally, according to sec. 1070 of the above Codex, the Church bars a mixed marriage between Catholic and Jewish partners, by reason of disparitas cultus, but this is not an absolute prohibition. According to sec. 1070 of the above Codex, it is possible to secure a dispensation from the prohibition on mixed marriages, and the questions and answers collected in the Canon Law Digest, vol. 3, p. 420ff. reveal that such dispensation is not such a rare occurrence. Moreover, even were the mixed marriage solemnized without obtaining a dispensation, the marriage would not inherently be void, but only flawed for violating the prohibition of disparatis cutus, and the priest is authorized to cure the flaw and “heal it in the root” (sanatio in radice) by retrospectively forgiving the sinner, according to secs 1138 to 1141 of the above Codex. And once he has done so, the marriage is given validity in retrospect, see Eichmann-Morsdorff, Lehrbuch des Kirchenrects, 5th ed., sec. 161 (2) (b) at p. 286. And as for form, even the duty to hold a religious ceremony does not originate from the scriptures, but is “rabbinic”,[3] because before the decrees of the Council of Trent in the 16^th century, the Catholic Church, too, recognized not only the validity of a marriage ceremony be expressing consent to marry per verba de praesenti without religious format, but also the sanctity of a marriage conducted in this manner (sacramentum), see Dalrymple v Dalrymple (1811), 161 E.R. 665, 669 [24].

 

But even now, although the Church establishes the principle of a religious ceremony for solemnizing a marriage, it does not completely rule out a marriage for not meeting the religious requirements. Once the flaw is made known to a religious authority, it has the primary responsibility not to bring about the invalidation of the marriage, but rather, to the extent possible, to seek its validation, see Eichmann-Morsdorff, ibid., sec. 159, at p. 281. And even this flaw may be corrected in retrospect by means of “healing in the root”, ibid., sec. 161, p. 287.

 

11.       Let us now slightly change the facts of the above example, and assume that the woman was a Protestant at the time that she married the man, but that she converted after her marriage and joined the Catholic Church. We can disregard the provision of sec. 4(2) of the Religious Community (Conversion) Ordinance, whether by assuming that the woman converted prior to arriving in Israel, or whether due to the fact that the Protestant church does not seek its own jurisdiction, but leaves jurisdiction to the state and has not established its own courts. For the purpose of jurisdiction, the situation at the time of initiating the action is determinative, and thus the President of the Supreme Court may authorize the Catholic Court to adjudicate the matter of this couple as well. Because of its “catholicism”, that is, its universality, the Catholic Church accepts into its fold anyone baptized into Christianity (sec. 87 of the Codex), but it is lenient with a Christian who is not a Catholic, and exempts him, under sec. 1099(2) of the Codex, from the obligation to solemnize a marriage ceremony in accordance with its law, and suffices with the civil ceremony that was held, see Eichmann-Morsdorff, ibid.,, sec. 132, p. 146. But not only is the religious form not required, but such a mixed marriage is not at all flawed, and there is no need for forgiveness or sanation by way of “healing in the root”. Preventing the marriage, for reasons of disparitas cultus, according to sec. 1070 above, was established only for a case where one of the spouses was a Catholic. If he was not, but was a Christian of another faith and married a Jew, the marriage would be completely valid, ibid., sec. 141, at p. 186.

 

12.       I have expanded on the different possibilities for addressing mixed marriages as valid or invalid in order to show that the question of their validity or their invalidity is extremely weighty, and once a couple approaches the registration officer in order to be registered according to the Registration of Inhabitants Ordinance, 5709-1949, it is impossible to know how the matter would be decided. The registration officer cannot anticipate which court would decide the matter, or how the President of the Supreme Court may exercise his authority under art. 55 of the Palestine Order-in-Council, and he cannot predict whether the marriage’s validity would be recognized or not.

 

Furthermore, my honorable colleague Justice Silberg conducted in-depth research into the validity of the marriage, and reached the conclusion that it is invalid. However, in sec. 12 of his opinion, he testifies before heaven and earth that only a but a hair’s breadth stood between him and a converse ruling. When this is the declaration of a Supreme Court justice, is it conceivable that an administrative clerk, such as the registration officer, would even consider such a problem? Were you to say yes, then the conclusion must be that only one who is an expert in the rules of conflicts of law – which are among the most complex of jurisprudence – may be appointed as a registration officer under the above Ordinance. Had the legislature intended this, I wonder why it honored the holder of such duties merely with the modest title of “registration officer”.[4]

 

I tend to the opinion that when registering the family status of a resident, it is not the duty of the registration officer to consider the validity of the marriage. The legislature is presumed not to have charged a public agency with a duty it is not capable of fulfilling. It suffices that, for the purposes of fulfilling his duties and registering the family status,  the registration officer was presented with evidence that the citizen held a marriage ceremony. The question of the validity of that ceremony may, at times, cut both ways, and determining its validity exceeds the scope of the Inhabitants Registry.

 

We should explain that the marriage register maintained by the Rabbinate only testifies that a Jewish marriage ceremony was held between a man and a woman. The document testifies to the conducting of the ceremony (compare In re Peete (1952) [25]).  It is possible that a properly performed ceremony was void ab initio, and possible that it was valid. The registration demonstrates neither one nor the other. The presumption of the legitimacy of the marriage, which I discussed in a different context, that is, the presumption of the validity of the marriage, results from the conducting of the ceremony rather than from the registration that the ceremony was conducted, or from a document attesting that fact, and it is rebuttable. If this is the case for the marriage register maintained by the Rabbinate, it is all the more so the case for the Register of Inhabitants of the Inhabitants Registry. And there is no need to say that if the duty of the registration officer for purposes of registering the family status is limited to checking whether a marriage ceremony was held, there should be no concern whatsoever that the Register of Inhabitants may comprise inaccurate information and attest to a valid marriage where it was void ab initio due to a substantive defect or flaw. As we see, the definition of the purpose of the Register of Inhabitants, and preserving the boundaries of the role of the registration officer are sufficient to prevent mishaps. The result is that under no circumstances must the requesting resident supply the registration officer with more than prima facie evidence. The Petitioner presented the registration office with the marriage certificate. She secured the confirmation of the Belgian Embassy, which registered her marriage in the embassy’s personal status record, as well as in her passport. What more could she have done in order to satisfy the burden of proof? As long as the marriage has not been found void in a judicial process, the Petitioner must be considered a married woman for the purpose of the Register of Inhabitants.

 

I shall here allow myself the liberty to say that not only is there no statutory source for investigating and inquiring to uncover a flaw in the marriage, but it is also improper form an administrative perspective that a citizen coming to provide details for statistical purposes, and whose only sin is that his marriage is invalid, must stand before a suspicious officer who will delve into the depths of his past. There are marriages that are voidable and yet the spouses live together in peace until the end of their days. What interest does the administration have in raising problems as to its validity? Needless to say, the instructions from May 2, 1962, which instruct the registration officer to pass the matter of mixed marriages on to the “determination of the department”, are unfounded inasmuch as the department has nothing to determine.

 

13.       The conclusion I have reached absolves me from the need to address the question whether the marriage was indeed invalid on the grounds of the spouses’ ineligibility to marry one another, and I will only make as few comments on this issue:

 

(a)        The State Attorney did not argue before us that the marriage was invalid because it was performed in a civil ceremony. There was no place for this argument since this Court has already ruled that we follow the law of the place of the ceremony in regard to the form of the marriage (CA 191/51[3]), and in the absence of evidence to the contrary, a ceremony conducted in a foreign country is presumed to have been conducted lawfully.

 

(b)        Were the question of the marriage’s validity to be raised because of questions as to incapacity to marry, it would first be necessary to decide upon the proper law in the matter. For such purposes we cannot make recourse to the provision of art. 64(ii) of the Palestine Order-in-Council, which refers us to the “the law of the nationality of the foreigner concerned”, because the parties have no single national law. The law that would apply in such a case would be determined by the rules of conflicts of laws.

 

(c)        The State Attorney argued for the English rule that follows the parties’ domicile for purposes of their capacity to marry, but honestly noted that American law establishes one law for the form and the substantive validity of the act, and the law of the location where the marriage was solemnized applies for both of them, see Restatement, Conflict of Laws, sec. 121; Loughran v. Loughran (1934) [33[; Hastings v. Douglas [34].

 

(d)       Not only is the American rule easier to apply and more practical, because it prevents the need to split the discussion when the spouses did not have a single domicile (a split that might lead us to the strange outcome, as my honorable colleague Justice Silberg noted, where the husband would be married to his wife, whereas she would not married be to him), but the American rule is actually the English Common Law rule, which remained in its original form in the United States, whereas it transformed in England itself. Indeed, it is the rule that was followed by the Ecclesiastical Courts that held jurisdiction over matters of marriage until the enactment of the Matrimonial Causes Act, 1857. In England itself, different rules applied as to the form and in regard the capacity of the parties, see: Dalrymple v. Dalrymple (1811), 161 E.R. 665 [24]; Middleton v. Janverin (1802) [26]; Simonin v. Mallac (1860) [27].

 

(e)        The change in the English rule can already be discerned, in effect, in the decision of the Court of Appeal on the matter of Sottomayer v. De Barros (1879) 41 L.T. 281, 282 [20], where Justice Cotton said as follows:

                        The law of a country where a marriage was solemnized must alone decide all questions relating to the validity of the ceremony by which the marriage is alleged to have been constituted, but as in other contracts, so in that of marriage, personal capacity must depend on the law of domicil.

 

(f)        This rule was, as Professor Beale put it in his article The Law of Capacity in International Marriages, 15 H.L.R. 382, 286 – “an ignorant error.”

 

I have cited these words in the name of their author, but in defense of Justice Cotton, it can be said that hints in support of his view are found in the opinions of Lord Campbell and Lord Cranworth in the matter of Brook v. Brook (1981) 4 L.T. 93 [16]. However, the remaining justices in the matter of Brook joined the conclusion of their colleagues for other reasons (see p. 99, 101, [16] ibid.). For more on the Sottomayer rule, see Sottomayer v. De Barros (No. 2.) 1879, 41 L.T. 283, 285 [20]; Ogden v. Ogden (1907) [17]; Hay v. Northcote (1900) [28]. In all three, the courts refrained from ruling according to Justice Cotton, though they employed more temperate language than Professor Beale.

 

(g)        The said change in the rule is inconsistent with the provision of sec. 22 of the Matrimonial Causes Act, 1857, which has since been replaced by sec. 32 of the Supreme Court of Judicature Act, 1925, because according to it, the court was required to continue to decide upon matters of marriage as the Ecclesiastical Courts would have ruled when they still held jurisdiction. And as was already made clear, the Ecclesiastical Courts decided marriages under one law for the form and for the capacity of the parties.

 

(h)        When the Israeli Court sets out to determine the Israeli rule, we are not required to adopt the English rule specifically. And for my part, I do not see myself as obligated to correct the English rule which – even if the result of a mistake – is now accepted in England, though it has yet to be tested in the House of Lords. If the English rule suits our needs, we can accept it as the rule in Israel. However, it is possible that the American rule is more suitable. The English judges who considered the issue relevant to our matter cited the words of American commentators and judges at length, see Brook v. Brook (1861) [16], and Ogden v. Ogden (1907) [17], and many others as well. If English courts do so, why would we not do the same, and draw inspiration also from common law sources outside of England?

 

(i)         It would not be superfluous to note that the incapacity of a Jewish man to marry a Christian woman, even if it is a lack of capacity, is not an actual “status”. Schlesinger’s status is that of an adult man, and he is competent for any legal act, including marriage. Only the religious law that applies to him invalidates his action if he marries a Christian woman, and such marriage would be a nullity. In this regard, Professor Martin Wolff states in his book  Private International Law, 2nd ed., sec. 259, at p. 278:

To be married is a status; to be married to Mr. X is not.

 

He terms such inability to marry a particular woman  “relative incapacity”. In the meantime, the idea of the uniformity of one’s status for all purposes has been done away with in England. It was already decided in the matter of Baindail v. Baindail (1946) [29] that a person may be married for the purposes of barring a second marriage, and at the same time may not be married for the purposes of granting a divorce decree. Such relative incapacity was addressed by the court in the matter of Chetti v. Chetti (1909) [30], from which it arises that there are times when the law does not consider it. Should  the Petitioner, for example, seek maintenance from her husband in the District Court, I am not at all certain that such relative incapacity would lead the court to absolve the husband from the obligation to support his wife.

 

(j)         When a man lacks legal capacity in his domicile, he will also be barred from performing any legal act in any other location, according to the statement of Justice Cotton in Sottomayer, which is not limited to capacity for marriage. As a result, if a 23 year-old person, who has yet to reach the age of majority in his domicile, were to arrive in Israel and make some transaction, the transaction would be invalid. However, in that regard, sec. 77 of the Capacity and Guardianship Law, 5722-1962, provides that while the validity of such a transaction would indeed be subject to the law of the minor’s domicile, a person in Israel who was unaware of the minor’s incapacity may be entitled to the defense under sec. 77(1), and the transaction may remain in effect despite the person’s minority.

 

From the above law’s provision we learn that the Israeli legislature intends to follow the law of the domicile, but subject to exceptions, rather than in every case.

 

14.       In the matter of Brook v. Brook (1861) [16], and in the matter of Mette v. Mette (1859) [15], the marriage of a widower who married the sister of his late wife abroad was ruled invalid. Such a marriage was then prohibited in England under an explicit statute that purported to reflect Divine law, deeming the marriage as incestuous in violation of Leviticus 18 (as was mistakenly interpreted by way of expansion in the Christian tradition).

 

There was no general incapacity to marry here, as was already clarified in sec. 13(h) above, but in light of the English statute, the marriage was in violation of English moral sensibility, and recognizing it was in violation of public order. The fact that in the matter of Brook, the court relied upon the opinion of Judge Creswell in that same matter in the trial court proves this (Brook v. Brook  (1858) 65 E.R. 747 [31]). In addressing the question of the capacity to marry, the same judge said in the matter of Simonin v. Mallac, (1860) 2 L.T. 327, 330 [27] as follows:

           It is very remarkable that neither in the writings of jurists nor in the arguments of counsel, nor in the judgments delivered in the courts of justice, is any case quoted or suggestions offered to establish the proposition that the tribunals of the country where a marriage has been solemnized in conformity with the laws of that country should hold it void because the parties to the contract were the domiciled subjects of another country where such a marriage would not be allowed.

 

Every legal system refuses to recognize the validity of a legal act if it may harm the public order in that country, and even the United States, despite its liberal attitude to the validity of a marriage, is no exception to this rule. In sec. 132(b), the Restatement denies the validity of a marriage that was valid in the location where the marriage was solemnized, in this case:

 

… incestuous marriage between persons so closely related that their marriage is contrary to a strong public policy of the domicil.

 

This is none other than the English rule that derives from the judgments in Brook [16], Mette [15], and others.

 

15.       Does Israeli public order demand the denial of the validity of mixed marriages? This is a question that the courts may be be required to consider when the time comes, but I would argue that we not jump to a hasty conclusion as a result of the English Brook [16] precedent. There are several rationales for this.

 

Any country that wishes to live among the family of nations must, to that end, forgo the implementation of some of its legal rules when a foreign element arises and intervenes in a legal act. For example, we do not believe that a surety must be found invalid because it was given orally, and the prevailing law regarding Jews in Israel does not require the determination of a court in order to dissolve a marriage, but rather the granting of a get [a Jewish bill of divorce – ed.] and its acceptance suffice. In other countries the law is different, but this difference does not infringe public order in Israel, and just as we ask other nations to recognize Israeli law, we do not invalidate a transaction that is subject to foreign law that is different from our law. When the rules of conflict of laws refer us to foreign law, Israeli law yields. But there are cases – exceptional cases – where giving effect to a foreign law and to its outcome would significantly infringe the public order by which we live, and only when a foreign law stands in contrast to the sensibilities of justice and morality of the Israeli public would we be required to invalidate it. This is the well-known distinction of the learned Savigny in System des Roemischen Rechts, vol. 8, p. 35, that led to the distinction between ordre public interne that yields before the rules of conflict of laws, and ordre public externe (international,) which yields to nothing.

 

The fact that Jewish religious Jewish invalidates mixed marriage does not necessarily compel the conclusion that when we come to consider a person’s matter according to foreign law, we will invalidate the marriage because it is a mixed marriage. The marriage would be found invalid if its invalidation is required for reasons of external (international) public order, as we explained above, that is, when an Israeli judge, giving expression to the sentiments of the Israeli public, would be compelled to say that the validity of such a marriage does not comport with our way of life, wherever the ceremony was solemnized. When in doubt – the validity of the act must benefit from such doubt.

 

The invalidity of the marriage according to religious law would be a very weighty consideration, but it must not be the sole consideration. The Israeli public is currently divided into two camps. One camp, which observes the religious precepts – or most of them – stands opposed to a different camp which stresses the difference between a state under the rule of law and a state under Jewish religious law. The views of the two camps are in direct opposition to one another. Public order in Israel does not mean that the judge would compel the view of one camp upon the other. Life requires an attitude of tolerance for the other, and consideration for his different views, and thus the judge must be guided by balancing all of society’s prevailing views.

 

In the matter of Brook [16], the court emphasized (ibid., p. 98) that the unlawfulness of an incestuous marriage does not stem from God’s law but from what Parliament has explicitly pronounced, mistakenly or not, as God’s law. A similar question recently stood before the English court. Another man, a Jew, married his brother’s daughter. Such a marriage is still prohibited in England, on the grounds of consanguinity, according to the Marriage Act, 1949. And it was proven to the court that this is not the Christian approach alone, but that a similar approach has been adopted by Islam and in India. But the marriage was lawful in Egypt, where the spouses were married, and the prohibition against such marriage within England – so held the court – does not necessarily establish the demands of public order for purposes of addressing a ceremony conducted outside of it (Cheni v. Cheni (1963) [32]).

 

16.       Section 2 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, is the law of the land, but it only provides for the marriage of Jews in Israel. This is the internal public order, that is the public order that prevails within the country. But what is the public order when the marriage was not solemnized in the country?

 

Since this Court held, in CA 191/51 [3], in regard to the form of the ceremony, that the law of the location where the ceremony was performed is determinative, there are hundreds – perhaps thousands – of couples in Israel who did not enter into a Jewish marriage but rather married in a civil ceremony. The state recognizes this, but the religion does not. I fear that from the perspective of an observant Jew, this is an offense that is no less serious than that of a mixed marriage. Recognizing the validity of such a marriage is inconsistent with his world view and is an egregious offense to his sensibilities. But this is a compromise required from such a Jew in exchange for the compromise required from the other camp for the sake of a common life as one nation. The stream of immigration continues to bring to Israel couples from all the countries of the world, among them some who did not marry in accordance with Jewish law in their countries of origin. Should the public order of such a country of immigrants interfere with the welfare of such families and declare all of these cases as simply concubinage? This is a weighty question that requires consideration, but the answer is not required for the matter before us.

 

I will only say this: neither English law nor American law invalidates a marriage on the grounds that the couple went abroad to solemnize a marriage that they could not celebrate in their own country. See Simonin v. Mallac (1860) ibid., [27], McDonald v. McDonald (1936) [35].

 

In the present case, it is clear that the Petitioner’s husband traveled to Cyprus and married her there because he could not marry her here, but we do not invalidate a marriage for that reason alone.

 

In conclusion:

1. For the purpose of registering the family status of the Petitioner in the Register of Inhabitants, the marriage ceremony that was performed is determinative, and investigation into the validity of the marriage is not the concern of the registration officer.
2. Prima facie evidence of the ceremony is sufficient in order to require the registration officer to register a marriage ceremony that was performed.
3. In addition, it cannot be determined with certainty that when the question of the validity of the marriage comes before a civil or a religious court – a mixed marriage would be found to be invalid.

 

I would, therefore, make the order nisi absolute.

 

Justice Berenson:

I agree that the order nisi must be made absolute for the reasons given by my honorable colleague Justice Sussman in the first part of his opinion, addressing the question of the status, duties and authorities of the registration officer. I, too, am of the view that the instructions assembled in document M2, presented in their entirety in the opinion of my honorable colleague, provide a correct response to this issue. The registration officers would, therefore, do well to continue to keep these instructions in mind, and follow them, even though they apparently do not yet constitute official directives of the Minister of Interior.

 

Justice Witkon:

I, too, concur in  the opinion of my honorable colleague Justice Sussman that for the purposes of registering the Petitioner in the Register of Inhabitants, there was no reason to raise the complex question as to whether her marriage is valid or invalid in terms of the law to which she is subject. With this, I, like my honorable colleague Justice Berenson, leave the answer to this question for future consideration.

 

Justice Manny:

I concur in the opinion of my honorable colleague Justice Sussman that is neither the function, nor within the capability of the registration officer to decide as to the validity of a marriage proven to be legitimate by prima facie evidence presented to him by the party seeking its registration. For this reason, I, too, am of the view that the order nisi should be made absolute.

 

Decided by a majority to make the order nisi absolute.

 

The Respondent will pay the Petitioner a sum of IL 250 as costs for the petition and attorney’s fees (in total).

 

Given this day, 28 Shevat 5723 (February 22, 1963).

 

HCJ 3648/97

HCJ 8016/96

HCJ   343/97 

HCJ   604/97

HCJ   924/97

HCJ 2124/97

HCJ 2180/97

HCJ 3533/97

HCJ 4514/97

HCJ 4696/97

HCJ 7187/97

HCJ 7218/97

HCJ 7346/97

HCJ 7353/97

HCJ 7604/97

HCJ    18//98

HCJ   151/98

HCJ   468/98

HCJ   588/98

HCJ 2125/98

HCJ 2355/98

HCJ 2567/98

HCJ 3533/98

HCJ 4019/98

HCJ 4110/98

HCJ 4623/98

HCJ 5188/98

 

 

 

Petitioners in HCJ 3648/97                 1.  Yisrael Stamka

                                                            2.  Bijelbahan Fatel

                                                            3.  Miriam Gorodetsky

                                                            4.  Peter Pobi

                                                            5.  Zohar Yifat

                                                            6.  Steven Wally Adeniji

 

Petitioner in HCJ 8016/96                       Jorge Arnulf

 

Petitioner in HCJ 343/97                         Anita Rantzer

 

Petitioners in HCJ 604/97                   1.  Ido Idan

                                                            2.  Tatiana Wodenski

 

Petitioner in HCJ 924/97                    1.  Yitzhak Friedman

                                                            2.   Davina Dragomir

 

Petitioners in HCJ 2147/97                 1.  Baruch Semo

                                                            2.  Zion Azav Tespazag

 

 

Petitioners in HCJ 2180/97                 1.  Abdullah Yildiz

                                                            2.  Natalia Kadoshvitz

 

Petitioners in HCJ 3533/97                 1.  Tatiana Ivanovna Valchok

                                                            2.  Boris Sapozhnikov

 

Petitioners in HCJ 4514/97                 1.  Webeto Warko Imer

                                                            2.  Semelvit Vladias

 

Petitioners in HCJ 4696/97                 1.  Alexander Diachenko

                                                            2.  Alexandra Gorlov

 

Petitioners in HCJ 7187/97                 1.  Boris Srebrenic

                                                            2.  Alicia Vasiliadi

                                                            3.  Yuri Vasiliadi

 

Petitioners in HCJ 7218/97                 1.  Skub Renata

                                                            2.  Agponikov Igor

 

Petitioners in HCJ 7346/97                 1.  Simona Wilf

                                                            2.  Jugen Hosano

                                                            3.  Einat Primo

                                                            4.  Prince Hays Amlalo

 

Petitioners in HCJ 7353/97                 1.  Yevgeny Stramovsky

                                                            2.  Larissa Shevetz

 

Petitioners in HCJ 7604/97                 1.  Hannah Yisraeli

                                                            2.  Frederick Kuamina Wilson

 

Petitioners in HCJ 19/98                     1.  Ashmei Ichelhum Tespai

                                                            2.  Abeba Pishah

 

Petitioner in HCJ 92/98                           Mesfin Matheus Bakela

 

Petitioner in HCJ 151/98                         Mazalach Peretz

 

Petitioners in HCJ 468/98                   1.  Garda Gamaliel

                                                            2.  Godwin Iheanacho Ugwu

 

Petitioners in HCJ 588/98                   1.  Moshevitz Igor

                                                            2.  Kozayev Oksana

 

Petitioners in HCJ 2125/98                 1.  Kuznezov Maxim

                                                            2.  Vasiliev Irina

 

Petitioners in HCJ 2355/98                 1.  Miriam Yanai

                                                            2.  Joseph Uchenna Dike

 

Petitioners in HCJ 2567/98                 1.  Yagudaev Inesa

                                                            2.  Bobriniov Vaceslav

 

Petitioners in HCJ 3533/98                 1.  Dimitri Sendekov

                                                            2.  Nina Lookout

 

Petitioners in HCJ 4019/98                 1.  Dov Holzberg

                                                            2.  Rosalia Chipai

 

Petitioners in HCJ 4110/98                 1.  Genadi Lifschitz

                                                            2.  Valentina Ovchinkova

                                                            3.  Leah Hazzan

 

Petitioners in HCJ 4623/98                 1.  Ella Elizabeth Shunia

                                                            2.  Ade Juwon Ajifolawe Ojomo

 

Petitioners in HCJ 5188/98                 1.  Semion Rabinikov

                                                            2.  Irina Rabinikov (Rastborchev)

 

 

                                                                                    v.

 

 

Respondents:                                      1. Minister of the Interior

2. Head of the Visas and Aliens Department in the  Ministry of the Interior

                                                            3. Head of the Population Authority

 

Respondent in HCJ 604/97                 4. Head of the Consular Section – Ministry of Foreign Affairs

 

 

Attorneys for the Petitioners in HCJ 3648/97: Anat Scolnicov, Adv.; Anat Ben-Dor, Adv.; Nicole Maor, Adv. (Center)

 

Attorney for the Petitioner in HCJ 8016/97:  Rami Amir, Adv.; Nir Amoday, Adv.; Eyal Akunis, Adv.

 

Attorney for the Petitioners in HCJ 343/97 and HCJ 604/97: Shmuel Mintzer, Adv.

 

Attorney for the Petitioners in HCJ 924/97, HCJ 2124/97, HCJ 2180/97, HCJ 4514/97, HCJ 19/98, HCJ 3533/98, HCJ 4019/98: Yosef Ben-Menashe, Adv.

 

Attorney for the Petitioners in HCJ 3522/97: Arnon Shotland, Adv.

 

Attorney for the Petitioners in HCJ 4696/97: Grigori Geiman, Adv.

 

Attorney for the Petitioners in HCJ 7187/97: Ilya Waisberg, Adv.

 

Attorney for the Petitioners in HCJ 7218/97: Rami Mashinsky, Adv.

 

Attorney for the Petitioners in HCJ 7346/97, HCJ 7604/97, HCJ 468/98, HCJ 2355/98, HCJ 4110/98, HCJ 4623/98:  Theodor Schvarcberg, Adv.

 

Attorney for the Petitioner in HCJ 92/98: Avinoam Ashkenazi, Adv.

 

Attorney for the Petitioners in HCJ 2125/98: Vadim Strovichovsky, Adv.

 

Attorney for the Petitioners in HCJ 2567/98: Lora Maxic, Adv.

 

Attorney for the Petitioners in HCJ 5188/98: Dayana Har-Even, Adv.

 

Attorney for the Respondents: Yochi Gnessin, Adv. (Director of the High Court of Justice Affairs in the State Attorney’s Office); Dana Briskman, Adv.; Aner Helman, Adv.; Udit Corinaldi-Sirkis, Adv.; Orit Koren, Adv.

 

Abstract:

For many years, the Ministry of the Interior interpreted the Law of Return, 5710-1950, such that a non-Jew who married a Jewish Israeli citizen was entitled – upon marriage – to the status of a Jew under the Law of Return, and to the status of an oleh [Jewish immigrant] under the Nationality Law, 5712-1952. In 1995, the Ministry of the Interior changed its view. According to the new interpretation, that non-Jewish partner would not fall within the scope of the Law of Return, and consequently, would not be entitled to the rights granted a Jew, including the right to automatic Israeli citizenship upon request.

In their petitions, the Petitioners – who are “intermarried”, such that one of the partners is Jewish and the other is not – challenged the Ministry of the Interior’s new interpretation. They also challenged the Ministry of the Interior’s policy requiring the non-Jewish spouse to leave the country until the Ministry of the Interior had completed its examination of whether the marriage was bona fide or fictitious.

The Supreme Court held:

1. (1)        An agency that understood its authority in one way – even over a long period of time – and eventually reached the conclusion that it had erred in its interpretation, and that its authority differed from what it previously thought, is not only permitted to change its erroneous conduct, but is required to do so. Therefore, there are no grounds for a claim that the authority is estopped from retracting its mistaken interpretation.

(2)        Past acts and decisions made in light of the incorrect interpretation will stand, if only because individuals acquired interests and rights, and it would be improper to change their situation for the worse.

B. (1)         In accordance with the principle of the separation of powers, the authority and responsibility for interpreting the law are granted to the judiciary. Therefore, the Court will grant only very limited weight to the interpretation of the administrative authority acting thereunder. Moreover, it is the Court that is the expert in the matter of interpreting laws.

     (2)         In this regard, a distinction should be drawn between laws intended to establish behavioral norms and laws of a purely professional or technical nature. In the case of the latter, the Court should properly be aided by the interpretation of the administrative agency possessing the technical knowledge and expertise in the concrete matter.

     (3)         In the instant case, the Law of Return is a normative law that constitutes one of the foundational laws of the State. Therefore, the interpretation given to the law by the Ministry of the Interior has minimal, if any, influence on the Court in the interpretation of this law.

C. (1)         The primary characteristic of the right of return is that is almost an absolute right. Every Jew, wherever he may be, can and is entitled – at his volition alone – to realize the right of return, except in those limited, exceptional cases listed in sec. 2(b) of the Law of Return. In light of sec. 2(a) of the Nationality Law, a Jew who falls within the purview of the Law of Return becomes a citizen of the State upon arriving in Israel, without any waiting period.

     (2)         As opposed to this, the entry of a non-Jew to the State of Israel, and his presence in the country, are subject to the Entry into Israel Law, 5712-1952, which establishes a regime of permits, and grants the Minister of the Interior and his appointees broad discretion as to whether or not to grant a permit to enter and stay in Israel.

D. (1)         The provisions of sec. 4A of the Law of Return – which grant the rights of return to the non-Jewish family members of Jews – was intended for intermarried families in the Jewish Diaspora, in order to preserve family unity and encourage their immigration to Israel. The legislature sought to realize this purpose by granting the rights of return to a family member of a Jew, even without recognizing that person as a Jew.

     (2)         Therefore, although by its language, sec. 4A would appear to apply to the non-Jewish spouse of a Jewish Israeli citizen who wishes to benefit from the Law of Return and the Nationality Law, the main purpose of the law was not intended for such cases.

     (3)         The necessary conclusion is that the right of return is granted exclusively to the family members of Jews prior to their immigration to Israel. The right is not afforded to the Petitioners, inasmuch as their spouses are Jewish Israeli citizens – whether by birth or by realizing their right of return prior to their marriage – and they do not enjoy the power to grant the right of return to their spouses.

E.               An alien who marries an Israeli citizen does not acquire a right to naturalization by the very fact of the marriage, and the Minister of the Interior holds the authority to grant or deny an application for naturalization submitted by that alien spouse. Therefore, by virtue of sec. 13 of the Naturalization Law, the Minister of the Interior holds the authority to issue a deportation order to such a spouse who is neither an Israeli citizen nor an oleh under the Law of Return if he is in Israel without a residence permit.

F. (1)         An administrative agency that establishes internal directives that affect individual rights has a duty to bring those directives to the knowledge of the concerned parties by means of publication to the general public or by some other means. This duty is a precondition to the establishing and implementation of the directives.

     (2)         The Ministry of the Interior’s policy requiring a non-Jewish spouse who married an Israeli to leave the country until the completion of an examination of the legitimacy of the marriage was not published in an orderly manner by the Ministry of the Interior, except for a one-time, general notice in the daily newspapers. Such a situation borders upon illegality.

     (3)         The fact that some of those affected by the lack of publication of the policy reside in Israel unlawfully would not appear to prevent raising the argument that the administrative agency failed to fulfill its duty to publish under the legality principle.

G.               The Minister of Justice’s authority to deport an alien under the Entry into Israel Law is very broad, but it is not absolute. The exemption from stating reasons – granted to the Minister by virtue of sec. 9(b) of the Administrative Procedure Amendment (Statement of Reasons) Law, 5719-1958 – denies the possibility of effective judicial review of the deportation authority.

H. (1)         The proportionality requirement – which applies to the exercise of discretion of every authority – requires that there be a rational connection between the means chosen by the authority and the objective it seeks to achieve, and that the harm that the administrative policy causes to the individual not be inordinately greater than the benefit of the policy.

     (2)         The Ministry of the Interior’s desire to combat the phenomenon of “fictitious marriages” is a “proper purpose”, however, the question is whether the means that it chose – requiring that the non-Jewish spouse of an Israeli citizen leave the country until the end of the examination of the legitimacy of the marriage – exceeds its contribution to advancing its objective.

     (3)         First and foremost, real doubts arise in regard to the existence of a rational connection between the said policy and promoting the objective of reducing the number of fictitious marriages, for a number of reasons. First, it would appear, on its face, that the demand that the non-Jewish spouse leave the country until the conclusion of the examination may, on the one hand, not deter a person who has decided to acquire Israeli citizenship by means of a fictitious marriage, while on the other hand, it may severely harm legitimate marriage relationships as a result of the separation imposed by the policy.

     (4)         Second, although the Ministry of the Interior has followed this policy for a number of years, it did not show that it actually contributes to a reduction in the number of fictitious marriages. The Ministry of the Interior did not present any relevant data as to the effect of the policy upon fictitious marriages.

     (5)         Third, it would appear that removing one spouse (or both together) from the country until the conclusion of the examination may actually make it more difficult to conduct some of the examinations required in assessing the legitimacy of a couple’s relationship, and primarily, to enquire into whether the couple live together and maintain a common household.

     (6)         The further requirement of proportionality – that there be a proper relationship between the public benefit achieved by the policy and the harm inflicted thereby upon the individual – is not met in the instant case. The policy adopted by the Ministry of the Interior severely and painfully harms many couples by ripping them from one another for a period of months, in addition to the economic and other burdens it imposes upon the couple, in order to achieve what would appear to be a purely speculative, unproven objective.

     (7)         Therefore, the necessary conclusion is that the Ministry of the Interior’s policy in regard to aliens married to Israelis while residing in Israel without a permit does not meet the proportionality test and is unlawful and void. The policy is also inconsistent with fundamental principles of a democratic regime that is concerned for civil rights.

     (8)         This does not mean that there are no possible cases in which the Ministry of the Interior is authorized to demand that a non-Jewish spouse leave the country until the conclusion of the examination of the legitimacy of the marriage. This would be the case where the fictitious nature of the marriage is facially obvious on the basis of clear evidence obtained in the course of the preliminary examination, or where the marriage certificate is a manifest forgery. In such cases, the said means may be employed after granting the couple an opportunity for a hearing of their arguments.

     (9)         However, in the usual case, the very fact that the non-Jewish spouse resided in Israel unlawfully at the time of the celebration of the marriage does not permit the Ministry of the Interior to condition addressing an application for naturalization upon the spouse’s leaving the country. The proper solution in such situations would appear to be that the unlawful residence at the time of the marriage would place a heavier-than-normal evidentiary burden upon the couple for proving the legitimacy of the marriage.

9.  (1)         There are no grounds for intervening in the Ministry of the Interior’s policy to apply the same arrangement for granting permanent residency to the spouses of Israeli citizens that it applies to the spouses of Israeli residents in regard to the waiting period required of the alien spouse prior to receiving permanent residency.

     (2)         It would be proper that the waiting-period requirement for an alien spouse be established in regulations, or at least in internal administrative directives published to the public at large.

10. (1)        Section 7 of the Nationality Law authorizes the Minister of the Interior to grant citizenship to the spouse of an Israeli citizen even if that spouse does not meet the general criteria for citizenship detailed in sec. 5(a) of that law. However, the Minister holds broad discretion in this regard. Just as the Minister can waive the criteria set forth in sec. 5(a), he may decide not to waive them, and insist that some of them they be met. However, in the framework of his discretion, the Minister cannot ignore the provision of sec. 7 permitting leniency for the spouses of Israeli citizens requesting Israeli citizenship.

     (2)         In this regard, the burden is upon the Minister to explain why he does not exempt such a spouse from the criteria under sec. 5(a) in whole or in part. Only in very exceptional cases would it possible to accept the Minister’s decision to require a spouse to meet all the criteria under sec. 5(a).

     (3)         In practice, the Minister of the Interior’s policy, as presented to the Court, shows that there are not real differences between the naturalization requirements for spouses of citizens and persons seeking naturalization who are not spouses of Israeli citizens. This is particularly true in regard to the lengthy waiting period of nearly six years before the Minister is willing to begin to process an application for the naturalization of a spouse of an Israeli citizen. In this regard, the Minister’s policy is not consistent with the legislature’s directive under sec. 7 of the Nationality Law to show leniency to spouses of citizens in the naturalization process. The requirement also does not meet the reasonableness and proportionality tests.

     (4)         Therefore, the Minister must establish and publish a policy by which the spouse of a citizen will be granted citizenship at the conclusion of a reasonable period of time, as shall be established, and upon meeting the prerequisite criteria. This policy must also relate to exceptional cases. Refraining from addressing all naturalization applications on their merits is prohibited.

 

                       

 

 

The Supreme Court sitting as High Court of Justice

 

 

Before:  Justice M. Cheshin, Justice D. Dorner, Justice D. Beinisch.

 

 

Judgment

 

 

Justice M. Cheshin:

 

1.         Twenty-eight petitions stand before the Court, in the matter of thirty-one married couples. Just as no two people are entirely alike, so the matter of each of those thirty-one couples is not identical to that of any of the others. However, each in its own way, all of the petitions (except one) raise the same legal questions that require resolution. That being the case, we decided to address all of the cases together, and we shall hand down one decision in them all. What follows is that one decision.

2.         “A’, a Jewish man and an Israeli citizen, marries “B” abroad – whether by a proxy “Paraguay marriage”, or by a marriage in which both are present in a foreign state – and “B” is non-Jewish woman who is not an Israeli citizen. Similarly, “C”, a Jewish woman and an Israeli citizen, marries “D”, who is not Jewish and not an Israeli citizen, in a foreign marriage. Both are “mixed marriages”. Thirty-one couples are petitioning us, and all but one (HCJ 604/97 Ido Idan v. Minister of the Interior) are mixed couples according the model we described – a couple in which the man is a Jewish, Israeli citizen and the woman is a foreign non-Jew, or a couple in which the woman is a Jewish, Israeli citizen and the man is a foreign non-Jew. In the Ido Idan case (HCJ 604/97), both partners are not Jewish – the man is an Israeli citizen, and the woman is a citizen of Uzbekistan – and so the petition raises only some of the questions that we will address. For the sake of simplicity, we will address below the model of a couple in which the man is a Jewish Israeli citizen and the woman is a foreign non-Jew. Needless to say, the solutions that we will propose will also apply to couples in which the woman is a Jewish Israeli citizen and the man is a non-Jewish foreigner. As for couples in which one partner is Israeli (non-Jewish) and the other partner is not Israeli (and non-Jewish), the same rule will apply, except in regard to the Law of Return, which applies only to Jews and their non-Jewish family members (as we shall further explain below).

3.         We are presented with four primary questions, as follows:

            (1)        Is the non-Jewish partner entitled to the rights granted by the Law of Return, 5710-1950, and the Nationality Law, 5712-1952, to a Jew who immigrates to Israel? Is that partner entitled to Israeli citizenship as if she were a Jew who immigrated to Israel?

            (2)        In most of the petitions, the non-Jewish, foreign partner has been asked to leave the country for a period of months until the Ministry of the Interior can investigate the marriage, primarily to ascertain whether it is bona fide or fictitious. Is that policy justified, and should the Ministry of the Interior be permitted to continue to act in accordance with that policy, as it has until now?

            (3)        On the assumption that the answer to the first question is negative – in other words, that the non-Jew is not entitled to the rights granted a Jew under the Law of Return, 5710-1950 – what is her status under the Nationality Law, 5712-1952? Does she enjoy preferred rights under this law, or is she the same as any immigrant?

            (4)        Most of the Petitioners further request that their marital status be registered in the Population Registry, and the question is whether the Ministry of the Interior is justified in refusing that request?

            We will address each of these questions in order.

 

The Right of a Non-Jewish Spouse to Return

The Administration’s longstanding Interpretation of the Law

4.         As we stated at the outset, this is the model upon which we will base our opinion: A Jewish, Israeli citizen marries a woman – who is not Jewish and not an Israeli citizen – in a foreign marriage ceremony. Most of the couples before us were married by means of “Paraguay marriages”, which are performed by correspondence with the competent authorities in Paraguay. Each of the partners appoints a proxy in Paraguay, and those proxies celebrate the marriage on behalf of the partners without the partners leaving the borders of the State. Some of the couples married in a foreign state in a regular marriage ceremony.

5.         For many years, and until just recently, the Ministry of the Interior interpreted the Law of Return such that the non-Jewish partner of a Jew who was an Israeli citizen at the time of the marriage was entitled – upon marriage – to the status of a Jew under the Law of Return, and to the status of an oleh [Jewish immigrant] under the Nationality Law, as if he were a Jew. In other words, the non-Jewish partner was entitled to “return” like any Jew. (See and compare, for example: HCJ 1850/93 Chima Eduares Oniolo v. Ministry of the Interior (unpublished); HCJ 3680/95 David Teveria v. Ministry of the Interior (unpublished)). In 1995, the Ministry of the Interior changed its view, and began to interpret the law differently. According to the new interpretation, the non-Jewish partner would not fall within the scope of the Law of Return, and consequently, would not be entitled to the rights granted a Jew, including the right to be granted automatic Israeli citizenship upon request. The latter interpretation is the one that the Respondents are advancing before us.

            Against the background of this alternative reading, the Petitioners argue that – after a generation of acting otherwise – the authorities of the Ministry of the Interior are estopped from reconsidering and reinterpreting the law in a different manner than they have over the years. In other words: Once the Ministry of the Interior stated its position in the past, it should not be permitted to recant and state otherwise. The interpretation given in the past has rooted itself, as it were, in the law itself: the interpretation “shall become one” [Ezekiel 37:17], and none shall separate “between the joints” [I Kings 22:34]. That being the case, the Petitioners further argue that they are, in consequence, entitled – by the original interpretation – to what is theirs, and to be granted Israeli citizenship on the basis of their request, alone. This argument raises a serious question in regard to the rules interpretation in all its force, and it is this: when a law is brought before the Court for interpretation and for establishing its scope, can the Court take into consideration – as a valid factor – the interpretation that the administrative agency employed, sometimes over the course of many years? The competent agency has conducted itself in some way or another in interpreting the law. In coming to interpret that very same law and its scope, would it be proper for the agency’s interpretation, in and of itself, to influence the Court’s discretion to any extent? This is not a new question, and we will say a few things about it.

6.         On the claim of estoppel – raised gently and half-heartedly – we will comment only briefly. An agency that understood its authority in one way – even over a long period of time – and eventually reached the conclusion that it had erred in its interpretation, and that its authority differs from what it previously thought, is not only permitted to change its erroneous conduct, but is required to do so. The legislature’s word is law, and the law stands unchanged, unless the agency misunderstood it. Needless to say, we are speaking of the agency’s prospective acts and decisions. As for past acts and decisions – acts and decisions made when the law was incorrectly interpreted – the rule may, at times, be different, if only because individuals acquired interests and rights, and it would be improper and incorrect to change their situation for the worse.

7.         The question of the weight that should be attributed to the agency’s conduct when the Court addresses the interpretation of the law is separate and distinct from the question of estoppel. What weight should be given to the specific conduct of the authority competent to interpret it when the Court addresses the interpretation of the law? Put differently: when the Court finds that its interpretation of the law is different from the practice of the agency authorized to interpret the law – a practice that it adopted for many years – should the Court grant weight to the agency’s interpretation simply because that is how it interpreted the law for a long time? Needless to say, this question will arise when a law has two – or more – possible interpretation, which is not commonly the case. The author Aharon Barak addresses this in his book Interpretation in Law, vol. II (1994) 791ff. (Hebrew) in which he describes three schools of interpretation: “the ignoring approach”, “the zone of legality approach”, and “the judicial discretion approach”, and we will not reiterate was has already been written there.

8.         To my own way of thinking, I believe that the recognized weight of an agency’s interpretation  -- whatever it may be – is a light as  feather: as light as a feather, and at the same time, as heavy as a feather. First and foremost, we would say that we cannot ignore the recognized psychological influence of an agency’s interpretation. Until the question was brought before the Court, the interpretation of the competent authority was the interpretation that was firmly rooted in reality, and the Court cannot ignore – even if only subconsciously – the interpretation that held sway for many years. Therefore, whatever the rhetoric may be, it would seem to me that as hard as it may try to free itself of the agency’s interpretation, at the very least, the Court will be influenced by that interpretation that has infiltrated its consciousness. However, and bearing that in mind, I am of the opinion that the agency’s interpretation of a law – as such – should be afforded minimal weight. In any case, we can distinguish among different types of laws, and that minimal weight may differ from law to law. We will now begin with the first things first.

            The first principle – first and foremost – is that the authority to interpret laws is given to the Court. That authority brings with it the responsibility to interpret the law. Here, then, is the principle of the separation of powers – or perhaps: the principle of the distribution of powers among the authorities – and the division of work among them: the Legislature legislates, the Executive executes, and the Judiciary judges – it interprets and establishes the scope of the law’s application. Thus, once the legislature has enacted a law, the authority to interpret it falls to the Court, and to it alone. In LCrimA 1127/93 State of Israel v. Yossi Klein, IsrSC 48 (3) 485, 500-501, we wrote:

The authority to enact laws is given to the legislative branch – to it and it alone. Or as Justice Silberg so poetically expressed it in CrimA 53/54 Eshed, Temporary Transportation Center v. Attorney General [IsrSC 8 785] at p. 819:  “There is no legislature but the Legislature, and by it laws are measured”.[1] However, once the child has come into the world, its cord severed from its mother, the legislature has completed its task (for that time) – like a functus officio – and from then it is the authority of the court to interpret the law, decide its force, the scope of its incidence, and its content. That is the law of the separation of powers between the Legislature and the Judiciary on one foot, the rest is commentary, go and learn …

Once the legislative act is completed, the law leaves the legislature’s court. It lives as if on its own, and its interpretation – in the broad sense of the term – is, at the end of the process, given to the courts, and to them alone.

                        And see: HCJ 4031/94 Betzedek et al. v. Prime Minister, IsrSC 48 (5) 1.

            So it is in regard to the interpretation of subsidiary legislation and normative administrative acts, as well. In one case, a minister established criteria for subsidies for public institutions, and the Court was called upon to interpret those criteria. We said in that regard that the interpretation of the criteria is for the Court, and not the minister who established them, stating:

The Minister was required to establish criteria … nothing will be done except in accordance with the criteria. They establish rights, and they withdraw rights. The Minister’s intent is meant to be expressed in the published criteria, and the published criteria are the Minister’s intent. Once they have been published, and until they are rescinded or changed, the Minister no longer exercises control over the criteria. They live on their own, and are no longer dependent upon the Minister. While the Minister fathered them, from the moment of their birth – the moment of their publication – the umbilical cord was cut, and they are meant to live their own lives and speak for themselves. The baker cannot testify as to [the quality of] his dough, and like him, the legislature cannot interpret laws (except by the manner that it enacts those laws). That is the rule of law, that is the separation of powers, that is the democratic process (HCJ 5290/97 Ezra et al. v. Minister of Religious Affairs et al., IsrSC 51 (5) 410).

            The law is asked of the court, and the court may not excuse itself from its duty – and authority – to interpret the law by making recourse to experts or to the interpretation of the competent agency. The court is the “expert” in interpreting the law – for that it was prepared, and that is its mission – and it may not turn to any but itself. That is what I thought in the past, and that is what I think even now in regard to our intervention in the decisions of the Labor Court, particularly in regard to the comprehensive thesis that the labor Court’s “expertise” may serve as a bar to our intervention in its decisions. Thus, in HCJ 1520/91 Wilensky v. National Labour Court, IsrSC 46(5) 502, 519, I wrote:

This consideration of “expertise” and of “specialization” as a reason for the non-intervention of the High Court of Justice in the decisions of the Labor Court is beyond me. Thus, for example, the Civil Service (Pensions) Law treats of labor law, but I do not know or understand why the Labor Court is more “expert” than the High Court of Justice in interpreting and deciding its intended legislative purpose in any particular case. So it is in regard to that law, and all of labor law, as we are concerned with a corpus of norms that is part of the national law like any other legal area. The “expertise” and “proficiency” of a traffic court judge, for example, in traffic law is greater than the “expertise” of most of the justices of this Court, but it is unthinkable to say that that “expertise”, in and of itself, carries weight in interpreting a statute that is a member of the traffic law family.

            And I added in this regard in HCJ 3679/94 National Association of Managers and Authorized Signatories of First International Bank of Israel Ltd v. Tel-Aviv Labour Court, IsrSC 49 (1) 573, 592:

We thus find that in addressing a particular matter, the Court considers the interpretation of some law, and concludes that the relevant, material considerations pulling to each side lead to a certain interpretation of the law. The Court then, so to speak, places all the interpretations that present themselves on the scales in a “correct interpretation competition”, and at the end of the process it concludes that a particular interpretation is decisive. Now, having arrived at the “right interpretation”, would it change its mind simply because the Labor Court – as an “expert” who “specializes” in labor law—thinks otherwise? The answer, in my opinion, is no.

And further on (ibid., p 593):

…the decision of the Labor Court, as such – as distinct from its reasoning – cannot serve as a consideration, in and of itself, in the interpretation of a law. Our relationship to the law is direct, and our conversation with it is unmediated.  A judge, each judge, is a lone knight in the fields of the law and justice. Indeed, the judge’s heart will ever be open to the opinions of others, to hear voices from near and afar, but the fact that some person holds a particular opinion, as such, must never influence his discretion, be that person be as exalted and venerated as he may be (all subject to the express provisions of law like the provisions of binding precedent). The responsibility for the interpretation of law and precedent couches at our door, and we cannot shirk it off.

            If that was said in regard to the Labor Court – presided over by judges like myself and my colleagues – would the same not hold true for the interpretation of an administrative agency, and even a fortiori? The question provides its own answer.

9.         Thus far, the grounding principle: The Court’s exclusive authority to interpret laws is its authority and its attendant duty to interpret the law. We would also note this: all laws are not the same. For example, when a law concerns a professional or technical subject, the practice of the competent agency – an agency that has professional or technical knowledge, or that is aided by advisors with the professional or technical knowledge – should be attributed weight when the Court addresses the interpretation of the law. The matter is different in regard to a normative subject, that is: a subject regarding which the legislature intends to establish behavioral norms, in order to direct the conduct of the general public and of individuals. The “expert” on the normative subject is the Court alone, and it is the Court that will establish the law and its scope. Moreover, as we climb higher up the normative pyramid, the responsibility of the Court for interpreting the law will increase, while the weight that will be given to the interpretation of the competent agency will approach zero.

            As for the matter before us, we will state emphatically: we are concerned with the interpretation of a provision of the Law of Return – the question of the incidence of one of the State’s foundational laws. Not only does its interpretation not require “expertise”, but given the law’s exalted place on the Israeli normative scale, I do not have the slightest doubt that the governmental agency’s interpretation of the law – even if over a period of many years – is of no importance whatsoever. If that is the general rule, it is all the more so the case when the agency has changed its approach, and has suggested an interpretation of the law that the Court considers correct.

10.       We would conclude in adding in this regard that all that we have said – concerning an interpretation by the Court that quashes the interpretation of an administrative agency – as good and correct as it may be, is solely prospective, and the petitions that require our decision concern the future. Indeed, we cannot turn a blind eye to the consequences of a longstanding practice, and it would not be proper to harm – even indirectly – rights that were acquired by individuals on the basis of the agency’s prior interpretation of the Law of Return. Our interpretation of the Law is not retrospective, and we will not stir up the past, “for once an error has entered, it remains” [TB Pesachim 112a]. (And further see and compare: the Klein case, ibid., p. 504 and the references there; Aharon Barak, Interpretation in Law, vol. 3, p. 740 (Nevo, 1994)).

11.       Now that we have found that the Ministry of the Interior’s interpretation of the Law of Return is of no consequence – or in the view of some, only of minimal consequence – we will turn to the Court’s interpretation of the Law. The model, as we recall, is of a man who is a Jewish Israeli citizen married a foreign woman who is not Jewish. And the question is: does the Law of Return grant the non-Jewish partner the same rights that it bestows upon a Jew?

 

The Right of Return of a Non-Jewish Partner

12.       We are all acquainted with the Law of Return and its amendments, but it would not be superfluous to remind ourselves of its language. The fundamental provision calls out to us from its first section, which states:

                        Every Jew has the right to come to this country as an oleh.[2]

            A Jew becomes an “oleh” by virtue of an “oleh’s visa” or an “oleh’s certificate” (sec. 2(a) and 3(a) of the Law, respectively), and the right of aliyah can be denied only for the special reasons set out in sec. 2(b) of the Law (the oleh is engaged in an activity directed against the Jewish people; the oleh is likely to endanger public health or the security of the State; the oleh is a person with a criminal past, likely to endanger public welfare).

            In 1970, the Law of Return was placed upon the operating table, and the Knesset changed the genetic code that directs its implementation. We are speaking of the Law of Return (Amendment no. 2), 5730-1970, which added secs. 4A and 4B to the Law. Those sections state as follows:

Rights of members of family

4A. (a) The rights of a Jew under this Law and the rights of an oleh under the Nationality Law, 5712-1952, as well as the rights of an oleh under any other enactment, are also vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew, except for a person who has been a Jew and has voluntarily changed his religion.

(b) It shall be immaterial whether or not a Jew by whose right a right under subsection (a) is claimed is still alive and whether or not he has immigrated to Israel.

(c) The restrictions and conditions prescribed in respect of a Jew or an oleh by or under this Law or by the enactments referred to in subsection (a) shall also apply to a person who claims a right under subsection (a).

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.

            To these provisions we would add sec. 2(a) of the Nationality Law, which states as follows:

                        Nationality by Return

2. (a) Every oleh under the Law of Return, 5710-1950, shall become an Israel national by return …

(Section 2 of the Nationality Law goes on to set out details, restrictions and expansions, but for our purposes, we are primarily concerned with the above). For our purposes, we are primarily concerned with the provisions of sections 4A and 4B of the Law of Return, and sec. 2(a) of the Nationality Law as a derivative therefrom.

13.       By its language, sec. 4A of the Law of Return is intended to broaden the scope of those entitled to benefit under the Law of Return. Since the adoption of sec. 4A, the Law of Return does not apply exclusively to Jews. Its incidence expands to include family members of a Jew who is entitled to immigrate to Israel as an oleh. Those family members – even if they are not Jewish – are entitled to the right of a Jewish oleh by virtue of the Law of Return. (Also see and compare: Haim Cohn, The Law, pp. 497-498 (Jerusalem: Mossad Bialik, 1991) (Hebrew); Dr. Asher Maoz, Who is a Relative in the Law of Return? 38 Hapraklit 637, 641-642 (Hebrew)).

            Thus, the Petitioners argue that sec. 4A(a) of the Law of Return informs us that the rights of a Jew under that Law (and the rights of an oleh under the Nationality Law) “are also vested in … the spouse of a Jew”, and the necessary conclusion is almost self-evident: A Jew is entitled to immigrate to Israel and become an Israeli citizen, the spouse of a Jew is vested with the same rights of a Jew, therefore: the spouse of a Jew is entitled to immigrate to Israel as an oleh, and become an Israeli citizen. Moreover, the Law itself does not distinguish between Jews – whether a Jew who has not yet immigrated to Israel and is not an Israeli citizen, or a Jew who is an Israeli citizen. All Jews are treated alike. And just as all Jews are treated alike, such should be the rule in regard to the (non-Jewish) spouses of Jewish Israeli citizens. It should be of no consequence that the (non-Jewish) partner became a spouse prior the Jew’s immigration to Israel – in which case it is undisputed that he would be entitled to return – or whether the partner became the spouse of someone who was already a Jewish Israeli citizen. The Petitioners further argue that this conclusion is reinforced by sec. 4 of the Law, which equates the status of a Jew who immigrated to Israel after the enactment of the Law of Return and a Jew who was born in Israel or immigrated to Israel prior to its adoption, as the section states:

                        Residents and persons born in this country

4. Every Jew who has immigrated into this country before the coming into force of this Law, and every Jew who was born in this country, whether before or after the coming into force of this Law, shall be deemed to be a person who has come to this country as an oleh under this Law.

            Thus: every Jew is a Jew, and every spouse of a Jew – as the spouse of a Jew – is entitled, by virtue of section 4A, to the rights of a Jew, even if the Jew is an Israeli citizen at the time of the marriage.

            The Respondents reply: Not so. “Spouse”, as this term is used in section 4A of the Law of Return, refers only to a person who became the spouse of a Jew when that Jew was not (or was not yet) an Israeli citizen. Whereas if the Jew is an Israeli citizen, section 4A does not apply to him at all, and his spouse will not be entitled to the rights of a Jew under the Law of Return, nor to citizenship by virtue of return (as provided by the Nationality Law).

            This raises the question: In regard to that “spouse of a Jew” referred to in section 4A(a) of the Law of Return – is every spouse of a Jew entitled to return and citizenship (as the Petitioners argue), or should we say that the text speaks exclusively of the spouse of a Jew prior to his becoming an Israeli citizen, as the Respondents contend?  That is the issue that we will now address.

Linguistic Examination

14.       As is our custom, as is the custom of a court, we will begin with a linguistic examination of sec. 4A of the Law of Return. A close reading of sec. 4A reveals that even a linguistic examination is not of one cloth. It would appear that, form a linguistic perspective, we find at least two interpretive levels, and even they do not coexist in harmony.

            Reading sec. 4A in accordance with its plain meaning – and at face value – would seem to support the view of the Petitioners. As we see, the legislature instructs us that the rights of a Jew and an oleh are granted to the non-Jewish spouse of a Jew, and the Law does not express any limitation or restriction of any kind in regard to his status at the time of his marriage in regard to being, or not being, a citizen of the state. It would, therefore, appear that even if a Jewish Israeli citizen marries a non-Jewish woman – whether in Israel or abroad – and that woman request to enjoy the benefits of the Law of Return and the Nationality Law, both of those laws extend their embrace and grant her their rights. That is the interpretation of the Law in accordance with its plain meaning. We will refer to this interpretation as the “static linguistic construction”.

            Alongside the static linguistic construction we find the “dynamic linguistic construction”, which is an interpretation that does not read the provisions of sec. 4A in isolation, as does the static linguistic construction. The dynamic linguistic construction tells us not to take sec. 4A out of its context – in this case, in the correct sense of taking something out of context – but to read it in the context of all the provisions of the Law of Return, and that we read the Law of Return – along with sec. 4A – as a single, flowing unit; as a single idea that divided itself into sections and subsections simply due to our limitations, because of the paucity of our communication, because we are unable to express a complex idea other than be dividing it into words, phrases, sentences and paragraphs. Thus, if we read sec. 4A as it flows within the Law of Return, we can say that the underlying provision of the Law of Return is to be found in sec. 1, according to which a Jew is entitled to immigrate to Israel. Section 4A is nothing but a continuation of sec. 1. Section 1 flows into sec. 4A, and sec. 4A converges with the flow of sec. 1, and is to be understood as saying just this: that the right granted to a Jew to immigrate to Israel, is also granted to the members of that Jew’s family when he immigrates. Indeed, the phrase “when the Jew immigrates to Israel” is not to be found expressly in sec. 4A. But although it is not expressly stated in the Law, it is subsumed in the text. Section 4A is a quasi-continuation of sec. 1, and the said family members in sec. 4A are the family members of that oleh referred to in sec. 1. That the spouse referred to in sec. 4A refers to a (non-Jewish) spouse at the time of the immigration of a (Jewish) spouse is a necessary conclusion. Of course, this interpretation removes a non-Jew who became the spouse of a Jew who is an Israeli citizen at the time of marriage, as the State argues. That Jew is not an oleh, and therefore, the non-Jewish spouse has no one upon whom the right can be grounded.

            The decisive question in each and every case is whether or not the spouses were spouses before their immigration to Israel. If they were, then the non-Jewish spouse is vested with rights under the Law of Return and the Nationality Law, and if not, then not. We would further add that under the provisions of sec. 4A(b) of the Law of Return, the right of the non-Jewish spouse under sec. 4A  – once having vested – remains whether or not the Jewish spouse is alive, and whether or not he immigrated to Israel.

15.       To my mind, the dynamic linguistic construction is more persuasive than the static linguistic construction. It would be neither correct nor proper that we say that sec. 4A is a provision that dwells apart, not reckoned among other legal provisions. We have not found an ancient shard in an archeological dig upon which sec. 4A is engraved – a shard in isolation, without origin or destiny, unrelated to anything that came before it or that will come after it – a self-contained entity that we may understand thus, or perhaps otherwise. That is not the case. Section 4A is planted in the body of the Law of Return with the intention that it be a living part thereof. The Law of Return flows within it, and it flows within the Law of Return. Against this background, it would be neither right nor proper that we uproot it from its place, grasp it between our fingers, and hold it up to the light to examine it in isolation. If we seek the truth, we must examine it in situ, in the context of the Law of Return, and we will find ourselves led inevitably to the spouses – one Jewish and one not Jewish – who became a couple before they came to Israel.

16.       Of course, we will not suffice with interpreting the Law from within. We will continue our interpretive journey beyond the Law, to discover whence it came, how it came into being, and who conceived it and gave it life. We will learn wisdom and become enlightened, and then we will return to the Law and interpret it to the best of our ability.

About the Law of Return

17.       There are few laws around the world like the Law of Return, and it is the justification – albeit not the only justification – for the existence of the Jewish State. “Every Jew has the right to come to this country as an oleh by return…”, declares sec. 1 of the Law, and it language is like that of an anthem: a Jew – the soul of a Jew still yearns;[3] “as an oleh”, because one ascends[4] to the Land of Israel, and those who leave permanently are “descenders” [yordim]; to “this country” – the name of the country is “Israel”, but one does not ascend to Israel, one ascends to “the country”. These are not the words of an ordinary law. They are the words of poetry. And let us recall the exalted, stirring words of Prime Minister David Ben-Gurion at the beginning of the debate on the Law of Return (6 Divrei HaKnesset 2035, 2036-3037):

The Law of Return is one of the foundational laws of the State of Israel. It comprises a central purpose of our state, the purpose of ingathering the exiles. This law establishes that it is not the state that grants a Jew from abroad the right to settle in the state, but rather it is his inherent right as a Jew, if he desires to join in settling the land … The Law of Return has nothing in common with immigration laws. It is the law of the persistent history of the history of Israel. This law establishes the sovereign principle upon which the State of Israel was established. It is the historic right of every Jew, as such, to return and settle in Israel…

            Some have argued that the right of return is absolute, and suffers no restrictions. Ultimately, the proposal that was accepted comprised two exceptions to this exalted right, albeit exceptions of limited scope, as set out in sec 2(b) of the Law (the Minister of the Interior can refuse an oleh visa to a Jew who is engaged in an activity directed against the Jewish people, and to a Jew who is likely to endanger public health or the security of the State).

            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]. Other than those limited exceptions, the right is not contingent, and the authorities have no discretion as to whether the right of return will or will not be granted to a Jew who wishes to immigrate to Israel. The decisiveness of the Law derives from its uniqueness – from its being a concrete expression of the relationship between every Jew and the Land of Israel. A Jew from the “Diaspora” who wishes to settle in Israel is not an immigrant, he is an “oleh” to the land, he “returns” to the land, in the sense of “your children shall return to their country” [Jeremiah 31:16]. Indeed, the Law of Return is the direct continuation of the Declaration of the Establishment of the State of Israel and its declaration that “the Jewish State … will open the gates of the homeland wide to every Jew”, and “The State of Israel will be open for Jewish immigration and for the Ingathering of the Exiles”. It is, therefore, no wonder that the Law of Return was described as “one of the foundational laws of the State of Israel. It comprises a central purpose of our state, the purpose of ingathering the exiles” (Prime Minister David Ben-Gurion, 6 Divrei HaKnesset (1950) 2037). And as the Court stated: “It should not be forgotten that the Law of Return is one of the State’s most fundamental laws. If you like, it is its first Basic Law” (HCJ 265/87 Gary Lee Beresford v. Minister of the Interior, IsrSC 43 (4) 793, 845 per Barak J.).

18.       A derivative of the right of every Jew to immigrate to Israel is his immediate, undisputed right to become a citizen of the State. As stated in sec. 2(a) of the Nationality Law: “Every oleh under the Law of Return, 5710-1950, shall become an Israel national”. Prior to the enactment of the Nationality Law in 1952, we did not know whether an oleh by virtue of return acquired citizenship “from the moment his foot tread upon the ground of the homeland” (HCJ 26/51 Salem Menashe v. Chairman and Members of the Rabbinical Court in Jerusalem et al., IsrSC 5 (2) 714, 721). However, since the enactment of the Nationality Law, we know that there is no statutory waiting period: when a Jew who is subject to the Law of Return immigrates to Israel, he immediately becomes a citizen for all intents and purposes (and see: Rubinstein & Medina, The Constitutional Law of the State of Israel, 5th ed., vol. 2 (1996) 881) (Hebrew)). The Minister of the Interior does, indeed, have the authority to delay the granting of a oleh certificate for the purpose of examining the necessary facts (see, e.g., HCJ 125/80 Engel v. Minister of the Interior, IsrSC 34 (4) 329), or to suspend his decision in regard to an oleh who refuses to undergo medical examinations (these are the examinations listed in reg. 6 of the Return Regulations, 5716-1956). However, once the examinations have been completed and the oleh is not found to fall within the scope of any of the exceptions enumerated in sec. 2(b) of the Law, he is entitled to an oleh certificate, to citizenship, and to all attendant rights.

            Incidentally – although not incidental from the perspective of the olim – we would note that olim are entitled to material benefits, both by law and by virtue of subsidiary legislation and the directives of various governmental agencies (see, e.g., reg. 2 of the Arrangements in the State Economy (Discounts in Property Taxes) Regulations, 5753-1993; sec. 8 of the National Insurance Law, 5754-1994; sec. 351(k)(2) of the National Insurance [Consolidated Version] Law, 5755-1995; sec. 12 of the Development Towns and Areas Law, 5748-1988; and other exemptions, and customs and tax benefits). The Court stated in this regard:

The State of Israel welcomes every Jew who wishes to immigrate to Israel and settle in it with generously open arms. The blessing that greets every oleh is not mere lip service, but involves and is accompanied by real benefits that are granted to the oleh upon his immigration to Israel… (HCJ 825/89 Leon Kelef v. State of Israel, IsrSC 44 (4) 772, 775).

19.       A person who arrives in Israel but who does not fall within the scope of the Law of Return is unlike an oleh. His entry into the country, and his residence in it are subject to the Entry into Israel Law, 5710-1952, and the regulations thereto. Both his entry and residence are in accordance with visas, and the Minister of the Interior and his representatives enjoy broad discretion as to whether to grant or deny a person an entry or residence visa. A decision to deny the request is exempt from explanation under the Administrative Procedure Amendment (Statement of Reasons) Law, 5719-1958. While the exemption from explanation does not, itself, affect the Minister’s obligation to exercise discretion (HCJ 758/88 Kendel v. Minister of the Interior IsrSC 46 (4) 505, 525-526), needless to say that in the absence of a statement of reasons, the ability of the Court to review the decision is impaired (HCJ 482/71 Clark v. Minister of the Interior IsrSC 27 (1) 113, 116-117). If that is the case in regard to entry to Israel and residence, clearly an alien whose residence in Israel is not in accordance with the Entry Law has no right to Israeli citizenship. The same is true in regard to benefits granted to olim that are not granted to non-olim.

            We have addressed the rights of an oleh at length not only in order to explain and interpret the superior status of an oleh under Israeli law, but also – and primarily – to present the difference between the rights of an oleh and those of a non-oleh who arrives in Israel. We will reserve our discussion of this profound, fundamental difference for further consideration below.

 

The Provisions of Section 4A of the Law of Return – Where do they originate and what do they address?

20.       The provisions of sec. 4A and 4B originated in 1970, in Amendment No. 2 to the Law of Return. Section 4B defines who is a Jew for the purpose of the Law of Return, while sec. 4A establishes the right of return – or if one prefers: the quasi-return rights of the family members of a Jew. The issue that concerns us began with the Shalit case (HCJ 58/68 Shalit v. Minister of the Interior, IsrSC 23 (2) 477). That case involved a Jewish man and a non-Jewish woman, or more precisely, their children, who were not deemed Jewish under the criteria of Jewish religious law. Shalit and his children asked that the children be registered as “Jewish” in the Population Registry, and the Registrar refused the request. The Shalit family’s petition was granted, and the Supreme Court – by a five-to-four majority – ordered the Population Registry to register the children in accordance with their request, even though they were not “Jewish” in accordance with Jewish religious law. The majority’s opinion was premised upon the nature of registration under the Population Registry Law, and upon the scope and limits of the authority of the Registrar to deny the registration of data when he lacked reasonable grounds to doubt their veracity. That affair did not decide the question of “who is a Jew”, but rather the scope of the Registrar’s duty to enter registration data presented in good faith, among them, data as to ethnicity.

            In fear that the Law of Return might be implemented in accordance with the Population Registry Law, such that the term “Jewish” in the Law of Return would be interpreted in accordance with the Shalit rule – bearing in mind that there were several dicta in the majority opinion that the Law of Return should be interpreted in the same manner as the Population Registry Law – the legislature enacted Amendment No. 2 to the Law of Return, comprising secs. 4A and 4B (the Population Registry Law was also amended by the addition of sec. 3A thereto). Section 1 of the Law of Return states that “Every Jew has the right to come to this country as an oleh”, and sec. 4B was added, stating that for purposes of the Law of Return, a Jew is “a person who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion”. At the same time as the addition of sec. 4B, sec. 4A was enacted with the purpose of granting the rights of an oleh to the close family members of a Jew, as stated there. As stated in the Law:

 

Rights of members of family

4A. (a) The rights of a Jew under this Law and the rights of an oleh under the Nationality Law, 5712-1952, as well as the rights of an oleh under any other enactment, are also vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew, except for a person who has been a Jew and has voluntarily changed his religion.

(b) It shall be immaterial whether or not a Jew by whose right a right under subsection (a) is claimed is still alive and whether or not he has immigrated to Israel.

(c) The restrictions and conditions prescribed in respect of a Jew or an oleh by or under this Law or by the enactments referred to in subsection (a) shall also apply to a person who claims a right under subsection (a).

21.       One cannot avoid being aware of the two contrary tendencies of this amendment to the Law of Return. On one hand, there is a clear desire to provide an objective definition of “Jewish” – while eliminating the subjective element – while on the other hand, granting the right of Jews to people who are obviously not Jewish. Both for purposes of the Law of Return and the Population Registry Law, a “Jew” is – consistent with halakha – only a person born to a Jewish mother or who converted and does not profess another religion. Simultaneously, and seemingly  contradictorily, for the purpose of return, the close family members of a Jew acquire the rights of “Jews”, even though they are not Jewish (and see the words of Knesset Member Moshe Sneh in the Knesset debate, 57 (5730) Divrei HaKnesset 1133-1134).

            These two, apparently – and perhaps only apparently – contradictory tendencies, each intended for its own purpose, were ultimately meant to complement one another. The definition of a “Jew” was intended to preserve the unity of the Jewish people in accordance with accepted tradition, while expanding the right of return to family members was intended to preserve family unity where one family member was Jewish. Intermarriage is a common phenomenon among Diaspora Jews, and the fear was that denying rights to a non-Jewish family member might dissuade Jews from immigrating to Israel, as Jews would not be willing to immigrate to Israel without their families. Indeed, sec. 4A was manifestly intended for intermarried families, with a view to prevent their division, and with a purpose of encouraging their immigration. The legislature sought to achieve this latter purpose by granting rights of return to the non-Jewish family member of a Jew, without recognizing that person as being Jewish. Knesset Member Haim Zadok addressed this in the course of the Knesset debate, stating (56 (5730) Divrei HaKnesset 766):

When the husband was Jewish, he immigrated under the Law of Return, while his wife and children, in accordance with the Entry into Israel Law. He was granted citizenship automatically, while his wife and children had to wait some period until their naturalization. This could not but be interpreted by people, to the East and to the West, as meaning that such families were not wanted in Israel. This created a serious problem for potential olim from the West, and it may create a serious problem for the large-scale immigration that we expect from the Soviet Union.

The important change that is now established is that, from now on, when one of the two heads of the household is Jewish, both heads of household, and their children and grandchildren, whether they immigrate together or separately, are entitled to come to Israel by virtue of the Law of Return, and obtain automatic citizenship. This is of primary importance for us as a land of immigrants.

            As Deputy President Elon stated in the Beresford case (ibid., 834):

The entire purpose of enacting sec. 4A of the Law of Return … is to resolve the problem of the immigration of families in which Jews and non-Jews are intermarried, in regard to the spouses and children who do not meet the definition of a Jew in the Law of Return. Granting the right under sec. 4A is intended to facilitate the immigration of such mixed families in their entirety, in the hope that all the members of the family will join the Jewish People.

            And further see CA 3157, 3339, 3363, 4066/98 Kniazhinski et al. v. State of Israel (not yet published; particularly sec. 2 and 3 of the opinion of Justice Beinisch). And see the words of Prime Minister Golda Meir in 56 (5730) Divrei HaKnesset 773. It is like the act of Ruth the Moabite, who lovingly clung to her mother-in-law Naomi:

But Ruth replied: “Do not urge me to leave you, to turn back and not follow you. For wherever you go, I will go; wherever you lodge, I will lodge; your people shall be my people, and your God my God” (Ruth 1:16).

            So it was then, and so it is now, except that the non-Jewish relatives of the Jew – unlike Ruth the Moabite – will be granted the right of return even without converting.

            In regard to the granting Jewish rights to non-Jews, we should address sec. 4A(b) of the Law of Return, stating:

                        Rights of members of family

                        4A.      (a) …

 (b) It shall be immaterial whether or not a Jew by whose right a right under subsection (a) is claimed is still alive and whether or not he has immigrated to Israel.

            The non-Jewish family members of a Jew are, in some ways, seen as having attached themselves to the Jewish people, and thus the law grants them independent rights of their own – they are entitled to the rights of an oleh even if they immigrate on their own, without the Jew (the source of the rights), and whether or not that Jew has immigrated, even after that Jew is no longer living.

22.       Against this background, we can now return to the problem that concerns us, which is the matter of a Jewish Israeli citizen who married a woman who is neither Jewish nor an Israeli citizen. Will the Law of Return avail such non-Jews and grant them the rights of an oleh under the Law of Return? Will sec. 4A of the Law of Return spread its wings over that woman and grant her those benefits reserved for new olim? Will that woman – solely by her own volition – be granted Israeli citizenship and the other benefits that the Law of Return and the laws of the State grant to new olim?

            A synoptic view of the subject will provide an unequivocally negative response. The reason is that such an interpretation of the Law will not lead us to the purpose arising from the Law of Return – neither its primary purpose, nor those secondary purposes attendant to it.

23.       As regards the primary purpose of the Law of Return, we addressed the uniqueness of the Law of Return, and saw that at its core stands the desire of “your children shall return to their country”. “Go from your country and your kindred and your father’s house to the land that I will show you” (Genesis 12:1). So the Lord commanded Abram, and since then, the homeland of the Hebrew – the Jew – is the Land of Israel. The historical homeland of a Jew, every Jew wherever he may be, is the Land of Israel. And if he wishes to observe God’s command to Abram, we will accept him with an open heart, as we accept a lost son. All this – in whole and in part – does not apply to that non-Jewish spouse. Indeed, we will respect the foreigner among us, but we will never say that he has returned to the land of his forefathers, and that the Law of Return thus applies to him automatically.

            As for the amendment of the Law of Return, that Amendment introducing secs. 4A and 4B of the Law, we have addressed it’s the historical event that led up to it, and its twofold purpose that restricts and limits while expanding and extending. The main purpose of the expansion was to encourage the immigration of spouses in a mixed marriage, together with their close family members, while preventing the division of families and a distinction in the status of family members seeking to immigrate to Israel. All of these exalted objectives have nothing in common with granting the right of return to a non-Jew merely by reason of marriage to a Jewish citizen of Israel. The interpretation advanced by the Petitioners does not in any way serve the purpose of the Law of Return or of the Amendment to the Law of Return, and we would automatically reject it as inadmissible. Indeed, in the case of people who were family before their immigration to Israel, not only will we not divide them but we will encourage them to immigrate as one. That is the purpose of sec. 4A of the Law, which we will fully realize. That is not the case in situations of the type before us, in which an Israeli Jew marries a person who is neither Jewish nor Israeli. That Jew – whether he was born in Israel or whether he immigrated to Israel at some time in the past – has exhausted his right to return, and thus no non-Jew can sign on to that extinguished right.

24.       Moreover, it would not be proper to interpret secs. 4A and 4B of the Law of Return detached from the original Law of Return. The original provisions of the Law of Return, and secs. 4A and 4B, cannot be interpreted and understood in isolation. They are complementary and become one: one body whose organs are in harmony with one another. In amending the Law of Return, the legislature was like one who plants additional flowers and fruit trees in a long-existing garden that already thrives and bears fruit. The provisions of sec. 4A of the Law of Return became an inseparable part of the “greater purpose” of the Law of Return: gathering in the exiles of the Jewish People to the Jewish State – returning the children to their home. The Law of Return, as its name says, is directed at Jews wherever they may be. It invites Jews to return home – to return to the Land of Israel. Every Jew, as such, always has a sort of “stock option” that can be redeemed at will. “The Law of Return establishes a principle that all of the People of Israel, throughout the entire world, have a part and place in Israel, and that when a person of Israel wishes to return to his homeland – to Israel – it is not as an immigrant, but as one who returns to his homeland” (Knesset Member Zerach Warhaftig in the Knesset session of Feb. 2, 1954, 15 Divrei HaKnesset 823). And even if here and there we may find some subsidiary purpose or other, this is the primary matter, and the provisions of sec. 4A will be interpreted in accordance with that primary purpose (and see the Beresford case, ibid., 844).

            I will not deny that we may face “hard” cases. What, for example, is to be done in the case of a man and woman – he Jewish, and she not – who were about to be married in in their place of residence, and then immigrate to Israel? Had they married where they resided, then the non-Jewish spouse would enjoy the right of return, and everything would be fine. But for whatever reason, the two did not marry in their place of residence, but rather did so (in a foreign marriage, of course) after immigrating to Israel. That is an example, and there will be others like it. We will contend with such cases when the time comes. We will contend and succeed.

25.       A final word. As we have seen, the Law of Return is a special, unique law that is primarily intended for Jews. Its roots are longer than long, and are woven into the natural right of every Jew to immigrate to Israel and join his people in his land. Thus far, we are all in agreement, and we will not expand upon the bitter debates as to the justifications that might be raised for its very existence (see, e.g., Haim H. Cohn, The Law, ibid., 486ff; Asa Kasher, Justice and Affirmative Action: Naturalization and the Law of Return, 15 Israel Yearbook on Human Rights 101 (1985); Chaim Gans, The Law of Return and Affirmative Action, 19 Iyunei Mishpat  683-697 (1995) (Hebrew); Chaim Gans, Nationalism and Immigration,  M. Mautner, A. Sagi and R. Shamir (eds.), Multiculturalism in a Democratic and Jewish State, (Tel Aviv, Ramot Press, 1998), 341- 360 (Hebrew) [also published in English: Chaim Gans, Nationalism and Immigration, 1 Ethical Theory and Moral Practice (1998), 159-180]). All this applies to a Jew who returns to his land – him and his family – but there can be no justification for preferential treatment of a Jew residing securely in his land as opposed to a non-Jew, such that the former would be entitled to acquire the right of return for his non-Jewish spouse while the latter would not. While we fully agree with the entitlement granted every Jew, whomever he may be, to immigrate to Israel together with his family, we would be hard-pressed to agree to showing preference to a Jew who is an Israeli citizen by granting a right of return to a non-Jew who has become his spouse, while not granting the same right to a non-Jewish citizen of the State. Were we to recognize the right of a Jewish Israeli citizen to bestow the right of return upon his non-Jewish spouse, while denying that same right to a non-Jewish Israeli citizen, we would be committing a serious act of discrimination, with no conceivably proper purpose. In this regard, Minister of the Interior Haim Shapira stated in the Knesset debate on the Nationality Law (6 Divrei HaKnesset 2039 (5710)):

The Law of Return defines the right of Jews to immigrate to Israel, and the Nationality Law defines their right to become Israeli citizens. But acquiring citizenship does not grant preferential rights or higher status to Jews. There will be no difference whatsoever, and no discrimination whatsoever, between those who acquired citizenship as olim and those who acquired it under one of the other provisions of the Nationality Law. One law shall apply to all citizens, without distinction of origin…

This will be the composition of the citizens of the State of Israel. The large majority of citizens will be member of the Jewish nation, but also those prior residents who joined the new State at its outset, and all those who will join it in the future, will be citizens with equal rights and obligations.

            Neither a Jew who immigrates to Israel – once having immigrated – nor a Jew born in Israel is entitled to a right of return that they can pass on to non-Jews who are not entitled to it. In regard to the right of return, sec. 4A of the Law of Return is exhausted within the confines of the family that immigrates, and not beyond.

26.       But the Petitioners do not desist. As a last resort, they make recourse to sec. 4 of the Law of Return, and seek to pin their rights upon it. Section 4 states:

                        Residents and persons born in this country

4. Every Jew who has immigrated into this country before the coming into force of this Law, and every Jew who was born in this country, whether before or after the coming into force of this Law, shall be deemed to be a person who has come to this country as an oleh under this Law.

            The Petitioners argue as follows: This provision teaches us that all Jews in Israel are like “new olim”, and we thus learn that there should be no distinction between those entitled to immigrate who have not realized their right, and people entitled to immigrate who have realized their right or who were born in Israel. The conclusion, therefore, is that the right of a Jewish citizen of Israel – whether he acquired citizenship at birth or acquired citizenship by immigration – is identical to the right of a Jew living abroad, the former and the latter are all entitled to grant a right of return to their spouses.

            We are unable to accept that argument, and for the very reasons that we addressed at length, above. Section 4 of the Law of Return seeks to make the law equal for all Jews as Jews, and sees all Jews as having realized their natural right to return to the Land of Israel. See: Amnon Rubinstein, Israel Nationality, 2 Tel Aviv University Law Review 159, 161 (1976); and see Haim Cohn, Selected Writings, Aharon Barak and Ruth Gavison eds. (1991) 331-332 (Hebrew). However, after a person has immigrated and acquired citizenship, or has been born and acquired citizenship, their rights are the same as the rights of every citizen, and they have no excess rights (we would note, obiter dictum, that the legislature was mistaken in its language. No Jew immigrates to Israel “under this law”. Jews did not immigrate, and do not immigrate to Israel “under this law” or any other law. Jews immigrated and immigrate to Israel of their souls’ desire to immigrate, of their yearning to immigrate, of their deep longing to immigrate, or because they fled their haters. The Law of Return appended a legal right to immigration to Israel, a right that is attendant to the natural, historical right of every Jew).

27.       In conclusion, the right of return is granted only to the family members of Jews prior to their immigration to Israel. Each of the Jewish spouses before us is an Israeli citizen – whether by birth or by realizing the right of return – and thus do not have the power to grant a right of return to their partners.

The policy in regard to the request of the alien spouse for permanent residency and citizenship

28.       First, let us recall the typical case that we are addressing: “A”, an Israeli citizen marries a woman – who is not Jewish and not an Israeli citizen – in a foreign marriage ceremony. Similarly, “B”, an Israeli citizen marries a man – who is not Jewish and not an Israeli citizen – in a foreign marriage ceremony. From here on, for simplicity’s sake, we will speak only in terms of the first example, but needless to say, the law is the same in regard to the second. We would further add that in addressing the Law of Return, we spoke of a couple in which one of the partners was a Jewish Israeli citizen, whereas now we will speak in terms of a couple in which one of the partners is an Israeli citizen, regardless of whether or not he is Jewish.

            When the Ministry of the Interior is informed that a couple married in accordance with the model we presented above, and the non-Jewish partner requests permanent residence in Israel and Israeli citizenship, the question presented is this: How should the Ministry of the Interior treat such requests, and what criteria should govern its policy?

            We are informed that the Ministry of the Interior’s policy distinguishes two types of a cases, and in each it acts differently. One type of case concerns marriages celebrated when the foreign, non-Jewish partner was lawfully in Israel, whereas the other type concerns cases where the marriage was celebrated when the non-Jewish partner was not in Israel lawfully. This type of case also comprises a subcategory that we will address in para. 29, below. We will address each of the two types of cases, beginning with the second.

 

At the time of the marriage, the non-Jewish partner was in Israel unlawfully

29.       There was a change in the Ministry of the Interior’s policy in regard to this issue. In the past, when the couple presented a marriage certificate to the Ministry of the Interior clerk, and the alien non-Jewish partner requested permanent residence in Israel and to acquire citizenship, that partner was required to pay a fine for the period of unlawful residence in Israel, and once the fine was paid, he would be granted a tourist visa and work permit (a B/1 visa, as defined in reg. 5(a) of the Entry into Israel Regulations, 5734-1974). This visa was granted for a period of six months, during which time the Ministry would examine the veracity of the marriage.

            The Ministry of the Interior changed its policy in September 1996. From then on, the non-Jewish alien partner – who had resided in Israeli unlawfully at the time of the marriage – was required to leave Israel immediately for a period of two months, and his request for permanent residence and citizenship was made conditional upon his leaving the State. During those months, in accordance with the new policy, the Ministry of the Interior was meant to examine the veracity of the marriage, and if it was persuaded of that the marriage was legitimate, the alien non-Jewish partner was permitted to return to Israel, and the pursuant consideration was the same as that for the marriage of an Israeli citizen who had married a person who was not Jewish and not an Israeli citizen, but who lawfully resided in Israel. We will further address such cases below.

            The main points of this policy were published in a notice by the spokesperson of the Ministry of the Interior on Sept. 25, 1996, as follows:

Aliens unlawfully residing in Israel and who are married to Israelis will be required to leave Israel, and will be permitted to enter Israel only after obtaining a decision in regard to their status from the Ministry of the Interior.

To date, the Ministry of the Interior permitted the residence in Israel of those who had married Israeli citizens, and did not require that they depart.

Recently, after a significant increase in the number of persons married in Paraguay marriages (marriages conducted by mail) pursuant to the Ministry of the Interior’s efforts to deport unlawful foreign residents, the Ministry decided not to further permit the exploitation of this method of arranging the status of unlawful residents for preventing their deportation.

Once persuaded as to the legitimacy of the relationship between the partners, the Ministry of the Interior will permit the reentry of the alien to Israel (emphasis original – M.C.).

            The Ministry of the Interior employs a similar procedure in regard to a request by a non-Jewish alien who enters Israel on a tourist visa, which is granted for a very short period, and during those few days – and while lawfully in Israel – marries an Israeli citizen. This non-Jewish alien is also required to leave the country before his request will be addressed on its merits, and leaving the country is a precondition for considering the request.

            Needless to say – as is self-evident – as far as the Ministry of the Interior is concerned, the couple’s marriage certificate is of no significance or value. The policy presupposes that the couple have a marriage certificate that testifies to some marriage ceremony. Moreover, the Ministry of the Interior does not deny that that ceremony may have succeeded in marrying the couple, and that the couple are married to each other in every way in terms of substantive law. The Ministry’s policy simply ignores all of that. It does not consider the marriage ceremony or the possible legal significance that may derive therefrom. For the purpose of the policy, it is sufficient that the non-Jewish partner was residing in Israel without a permit at the time of the wedding, and this factor – as such – sets off the policy, and the non-Jewish alien partner is required to leave the country for a number of months, until the legitimacy of the marriage ceremony and the status of the partners as truly married are examined.

30.       The Petitioners, needless to say, are bursting with arguments against the policy of the Ministry of the Interior, and they present their arguments in painful detail. Of course, the arguments are repeated by the Petitioners’ attorneys – each in his own style, loudly or in anguished whisper, in arguments that waft fundamental rights or in standard arguments regarding interpretation. However, before we consider those arguments on the merits of the policy, we must first address several arguments presented on threshold and quasi-threshold issues. Once we have finished considering those arguments, we will proceed to address the policy on the merits.

 

Did the Minister of the Interior possess authority to deport the non-Jewish alien married to an Israeli citizen?

31.       Advocate Dr. Schvarcberg – representing some of the Petitioners before us – argued that the Minister of the Interior entirely lacked authority ab initio to deport the alien non-Jewish spouse married to an Israeli citizen. From the moment of marriage, he argues, and as long as nothing changed in the couple’s status, no Israeli law permits the deportation of the alien partner from Israel. If we accept this argument, we can, of course, conclude this part of our opinion and move on to other issues that require decision.

            This is how the argument proceeds, step by step. The Minister of the Interior’s authority to deport a person from Israel resides in sec. 13 of the Entry into Israel Law, 5710-1952, according to which the Minister it authorized to issue a deportation order in regard to “a person other than an Israel national or an oleh under the Law of the Return, 5710-1950 … if such person is in Israel without a permit of residence”. Advocate Schvarcberg argues that the Minister’s authority to deport the non-Jewish partner from Israel is subject to two conditions, and one of them is that the partner “is not an Israeli citizen”. I argue – as he further states – that the non-Jewish partner is an Israeli citizen, in practice – even though he is not a regular citizen in all the jots and tittles of the term “citizen” – and in any case, he is very nigh a citizen, and having acquired that status of almost-a-citizen, the Minister lacks authority to deport him from Israel.

            In what way is an alien spouse a citizen or almost-citizen? Section 1 of the Nationality Law lists the various ways for acquiring Israeli citizenship one after the other, as though assembled for inspection, and marrying an Israeli does not muster. Indeed, sec. 5 of the Nationality Law Bill, 5710-1950 (Bills 190) was meant to grant citizenship by marriage to an Israeli (and see: the Explanatory Notes to the Bill, ibid., 198; and the statement of then Minister of the Interior Haim Moshe Shapira in presenting the Bill to the Knesset: 6 Divrei HaKnesset 2039 (5710)). However, that proposal was rejected, and the under the Nationality Law, marriage to an Israeli citizen does not, itself, grant citizenship to a spouse who is not an Israeli citizen. Dr. Schvarcberg does not deny that, but he argues that the alien spouse acquires a right to obtain citizenship by naturalization, and that right that is vested in him makes him an almost-citizen whom the Minister of the Interior is barred from deporting. How can this be?

            Section 5 of the Nationality Law treats of citizenship. Subsection (a) thereof lists six conditions that, if met by some adult who is not an Israeli citizen, authorize the Minister of the Interior to grant citizenship. As sec. 5(b) states:

                       

                        5. (a) …

                            …

    (b)  Where a person has applied for naturalisation, and he meets the requirements of subsection (a), the Minister of the Interior, if he thinks fit to do so, shall grant him Israel nationality by the issue of a certificate of naturalisation.

Section 7 of the Nationality Law adds as follows:

                        Naturalisation of husband and wife

7. The spouse of a person who is an Israel national or has applied for Israel nationality and meets or is exempt from the requirements of section 5 (a) may obtain Israeli nationality by naturalisation even if she or he is a minor or does not meet the requirements of section 5 (a).

            On the basis of all this, Dr. Schvarcberg argues that the right of the alien spouse to Israeli citizenship is acquired and crystalizes upon marriage, and that the authority of the Minister of the Interior – the authority under sec. 7 of the Nationality Law – is merely of a declaratory nature, viz: it is a declaration as to a right that the alien acquired upon marriage to an Israeli citizen. Therefore, inasmuch as the alien is entitled to Israeli citizenship from the moment of marriage, he cannot be deported on the basis of the authority granted under sec. 13 of the Entry into Israel Law.

32.       This argument is nothing but an argument. First of all, the Entry into Israel Law authorizes the Minister of the Interior to deport anyone who is not an Israeli citizen or an oleh under the Law of Return. That is undeniable. Therefore, the Minister’s authority to deport stands. Section 13 does not recognize a status of “almost-a-citizen”, and “almost-a-citizen” does not, therefore, grant immunity from deportation.

            This status of “almost-a-citizen” is a creation of the argument, but has no basis in the law in regard to the Minister of the Interior’s authority to deport aliens from Israel. Indeed, under the provisions of secs. 5(b) and 7 of the Nationality Law, the Minister of the Interior can – at his discretion – show leniency in regard to the spouse of an Israeli who requests naturalization, and grant him citizenship even if he does not meet all of the conditions required of persons seeking naturalization as set forth in sec. 5(a) of the Nationality Law. However, the Minister of the Interior’s discretion remains, and marriage – in and of itself – is insufficient to waive the need for submitting an application for naturalization, or to deny the very discretion of the Minister of the Interior. Leniency in regard to the conditions for naturalization – yes; denial of the Minster’s discretion whether or not to grant citizenship – absolutely not.

33.       Dr. Schvarcberg further argues that sec. 7 of the Nationality Law limits the Minister of the Interior’s authority to examining the legitimacy of the alien’s marriage to an Israeli citizen, and if he is satisfied that the marriage is bona fide, he must grant Israeli citizenship to the alien. There is nothing to this argument. The Minister of the Interior holds discretionary authority whether or not to grant an application for naturalization – that is his authority as established under sec. 5(b) of the Nationality Law – and that authority also extends to an application submitted by an alien spouse married to an Israeli citizen. Or, as stated by Justice Barak in HCJ 754/83 Rankin v. Minister of the Interior, IsrSC 38 (4) 113, 116:

The power of the provision under sec. 7 of the Nationality Law makes it possible for a spouse to obtain Israeli citizenship by naturalization even if he does not meet all the special criteria established under sec. 5(a) of the Nationality Law. The provision does not have the power to do away with the need for the exercise of discretion by the Minister of the Interior in accordance with sec. 5(b) of the Nationality Law…Thus, a spouse can acquire Israeli citizenship by virtue of naturalization even if he does not meet the special criteria established under sec. 5(a) of the Nationality Law, but he can acquire Israeli citizenship only if he requests it, and if the Minister of the Interior “thinks fit”, as stated in sec. 5(b) of the law …

The Minister of the Interior thus has discretion (“thinks fit to do so”) whether or not to grant Israeli citizenship to the spouse of an Israeli citizen.

            Moreover, sec. 7 of the Nationality Law speaks of leniency in favor of an alien spouse, by which he may be granted citizenship even if he does not meet the criteria of sec. 5(a). The case law has established that it is within the scope of the Minister of the Interior’s discretion to establish a policy under which the right of the alien spouse will be contingent upon fulfilling the conditions of secs. 5(a)(1) and 5(a)(4). In other words, the Minister of the Interior is not required to waive the conditions for presence in Israel and the conditions for residence (or intention to reside) in Israel. (See: HCJ 576/97 Uriel Scharf et al. v. Minister of the Interior (not yet published); and see: the Rankin case, ibid., 116-117; HCJ 328/60 Jamal Najib Mousa v. Minister of the Interior, IsrSC 17 69, 74).

            We therefore reject these arguments by Advocate Schvarcberg. An alien who marries an Israeli citizen does not acquire – by virtue of marriage alone – a right to naturalization, and the Minister of the Interior retains his authority to grant or deny an application for naturalization submitted to him by that alien spouse. It is, of course, another question whether the Minister of the Interior properly exercises his authority when he orders the deportation of the alien spouse, but that question – which is not a question of authority – is a separate one, which we will address further on.

 

Was the deportation policy approved by the High Court of Justice?

34.       Another threshold argument – raised by the State – is that the policy of deporting alien spouses unlawfully living in Israel was approved by the High Court of Justice, and that we should not overturn that established ruling. In this regard, the State relies upon two decisions rendered in HCJ 774/97 Natalia Molodova et al. v. Ministry of the Interior (not yet published), and HCJ 6844/97 Reggie Kedar v. Minister of the Interior (not yet published), claiming that these two judgments have established the policy of the Ministry of the Interior in the case law.

            We do not agree with the State Attorney’s Office.

            As for the Natalia Molodova case, the petitioner in that case entered Israel on a fifteen-day tourist visa, and when – at the conclusion of the period – she was ordered to leave the country, she claimed before the Ministry of the Interior that in the course of the days of her visit, she had married an Israeli citizen in a Paraguay marriage. The Ministry of the Interior demanded that the petitioner leave the country immediately, adding that an examination of the legitimacy of the marriage would be undertaken while she was abroad. In making that decision, the Ministry of the Interior relied upon its policy by which a person who received a short-term tourist visa would be required to leave the country at the end of the visit granted in the visa, and his application in regard to his status would be addressed while he was abroad. The petitioner asked that her visa be extended until her status was set in order, but the Court approved the decision of the Ministry of the Interior. The Court found that the petitioner’s intention – from the outset, upon arriving in Israel – was to marry and remain in Israel, and that she had not revealed that intention to the Ministry of the Interior, and that for that reason, refusing her request was justified. In the words of the Court: “If the petitioner sought to come to Israel in order to marry and reside, it was her duty to inform the appropriate authority in the Ministry of the Interior of that intention”. Having failed to do so, the position of the Ministry of the Interior could not be found “unreasonable in the extreme”.

            That case, therefore, concerned a tourist who misled the authorities of the Ministry of the Interior, and the Court adopted the well-known, accepted rule that the Court will do its best to ensure that a wrongdoer not benefit by his misdeed. (And see and compare: HCJ 164/97 Conterm v. Ministry of Finance, para. 33ff. of my opinion [http://versa.cardozo.yu.edu/opinions/conterm-ltd-v-finance-ministry]). The Court expressed no opinion, one way or the other, as to the Ministry of the Interior’s deportation policy.

            The second case that the State seeks to rely upon – that of HCJ 6844/97 Reggie Kedar v. Minister of the Interior – cannot serve to support its argument. In that case, a deportation order was issued against the petitioner, a non-Jewish alien who was living in Israel unlawfully, and his request was that the deportation order be rescinded simply because he wished to marry an Israeli woman (of Philippine birth, who had married a man outside of Israel and had acquired Israeli citizenship) after she divorced her husband. The Court dismissed the petition, and refused the petitioner’s request that his application be reviewed and his status arranged before he departed the country. Needless to say, that case is not at all like the one before us, if only because the petitioner was not married to an Israeli citizen. The policy in regard to married couples did not, therefore, arise for examination on the merits. Moreover, reading the judgment reveals that the claim regarding a pending marriage appeared suspicious to the Ministry of Interior on its face. All would agree – including the Petitioners – that the Ministry of the Interior is justified in its policy not to allow fictitious marriages – which create fictitious spouses – to create a real right to permanent residence in Israel and to citizenship when, of course, the authority has sufficient administrative evidence showing that the marriage is a fiction. (And see and compare: HCJ 2394/95 Svetlana Motzenchik v. Ministry of the Interior, IsrSC 49 (3) 274, 278-280; HCJ 559/92 Bernardo Daniel Mendel at al. v. Ministry of the Interior – Population Administration (unpublished); the Rankin case, ibid., 117; and further see: the Kniazhinski case, ibid.).

 

The deportation policy – Publication

35.       The Petitioners raise an argument that has the character of a quasi-threshold argument, which is that the deportation policy was never properly published to the public at large as required. And that is indeed so. We noted above the publication of a notice regarding the policy in the newspaper (see para. 29), but needless to say, a one-time publication by the spokesperson of the Ministry of the Interior is not sufficient to fulfill the publication requirement. We thus find that an individual facing deportation has no way of knowing his rights or how to plan. He cannot seek the advice of legal counsel, as without published directives, how will that counselor know what to advise? As we will see, there are exceptions to the deportation policy. But how can an individual or his lawyer know about those exceptions and their scope if he doesn’t even know the scope of either the policy itself or its exceptions? In this manner, the exceptions will be nothing but a dead letter, for the only one who can make recourse to them would be some beneficent clerk who might reveal their existence. We thus find that the deportation policy is carried out in the light of day, but its principles and details – including its exceptions – were never reasonably published as appropriate to good governance.

36.       This situation is not only unsatisfactory, it borders on actual illegality. While, indeed, this policy that the Ministry of the Interior established for itself is not – itself – a regulation having legislative effect, which must be published in the Official Gazette under sec. 17 of the Interpretation Ordinance, we have, nevertheless held – time and again – in regard to internal directives that may affect individual rights – like the policy before us – that “a necessary precondition to their establishment and implementation…is bringing them…to the knowledge of those interested, whether by publication to the public or by other means” (HCJ 5537/91 Efrati v. Ostfeld, IsrSC 46 (3) 501, 513; and also see: HCJ 4539/94 Dr. Nabil Naksa v. Dr. Ephraim Sneh, Minister of Health (not yet published, paras. 13ff. of the opinion of Justice Strasberg-Cohen); HCJ 1689/94 Harari v. Minister of the Interior, IsrSC 51 (1) 15). As we have held, this publication requirement “is required by the nature of the material, and as a derivative of the rule-of-law principle” (the Efrati case, ibid., 515). And when we are concerned with so serious a violation of an individual’s right – the right of the spouse of an Israeli to continue to live in the country with the person she has chosen as her partner in marriage – there is no doubt in my mind that the Ministry of the Interior is under an obligation to publish its policy and make it available to any who may wish to read and study it.

37.       We have considered, and are aware that we are speaking of couples in which one member is an Israeli citizen, while the other is a non-Jewish alien residing in Israel unlawfully. They married while the foreigner was living in Israel without a permit, and the alien is being asked to leave the country until the authorities of the Ministry of the Interior examine the sincerity of the marriage. One might argue: What right has the alien to raise an argument against the non-publication of the policy, when the preliminary assumption is that he is living in the country unlawfully? Will we entertain a claim by an unlawful resident that the Ministry of the Interior’s policy was not published to the public at large? For my part, I do not believe that this response to the alien is appropriate or pertinent. We are concerned with the rule of law, and if the case law has established a requirement of publication, the argument as to non-publication will be heard from anyone injured by the policy. But even if we had said otherwise – and we did not – there is the Israeli partner, and his right – that the Ministry of the Interior not deport his spouse – certainly stands, and no one can argue that the claim of non-publication cannot, at the very least, be raised by him.

 

Deportation and a request to leave the country

38.       One of the Respondents’ arguments is that they are not deporting the alien spouse from Israel. All that they are doing is requesting that the alien spouse leave the country before his application for residence and naturalization will be considered on the merits.

            That argument/response is meaningless. Cultured people speak politely, and it is appropriate that we all speak with our friends – and even with those who are not our friends – in polite language. At the same time, we must not use polite language deceptively, and we all know that the silk glove is hiding a fist. When a representative of a governmental agency asks a person residing in the country without a permit “to be so kind” as to leave the country, he is not merely offering that alien good advice. Moreover, every governmental agency has the authority granted to it by the law, and within the scope of that authority, it may act in accordance with its discretion. An agency of the Ministry of the Interior that asks an alien to leave the country is understood to be doing so in accordance with its authority. The question is, therefore, whether or not it is authorized to ask the alien – the spouse of an Israeli – to leave the country. This is the question we are addressing in this opinion, and therefore, the manner of addressing the alien is of no relevance. We have long experience with suggestions that are not suggestions, and we know how to distinguish between a suggestion and a directive, and between advice and an order (see: HCJ 144/50 Dr. Israel Sheib v. Minister of Defence, IsrSC 5 399, IsrSJ 1 1 [http://elyon1.court.gov.il/files_eng/50/440/001/Z01/50001440.z01.pdf]).

39.       Having concluded our examination of the threshold and quasi-threshold arguments of the Petitioners and the Respondents, we will now turn to an examination of the policy on the merits. We will first briefly discuss the Respondents’ authority to deport aliens, and against the background of that authority, we will address the Petitioners’ issues on their merits.

 

On the status of aliens in Israel and the authority to deport them

40.       An Israeli citizen has the right to be in Israel as he wishes, and the State does not have the right to deport him. The citizens of Israel constitute Israel. Is it conceivable that Israel would deport Israel? That is not the case in regard to one who is not an Israeli citizen. A person who is neither an Israeli citizen nor an oleh enters Israel by virtue of an entry permit granted under the Entry into Israel Law, 5712-1952. The Minister of the Interior may grant visas and permits of various sorts, and may extend them from time to time, as stated in the Entry into Israel Law (secs. 2 and 3). Entering and residing in Israel without a permit, and violating the terms of a visa or residence permit, constitute a criminal offense, and the offender is liable to punishment (sec. 12). In addition, and this is the main thing for the matter before us, the Minister of the Interior may issue a deportation order against a person who is not an Israeli national or an oleh under the Law of Return if that person is in Israel without a residence permit (sec. 13(a) of the Entry into Israel Law). The Minister of the Interior is exempt from stating his reasons for issuing a deportation order, in accordance with the express provision of sec. 9(b) of the Administrative Procedure Amendment (Statement of Reasons) Law, 5719-1958.

41.       The case law has established that the Minister of the Interior’s authority to order the deportation of an alien is very broad (HCJ 740/87 Bentley v. Minister of the Interior, IsrSC 42 (1) 443), and some have gone so far as to describe it as “absolute discretion” (the Bentley case, ibid., 444). Nevertheless, the Supreme Court has held that despite its breadth, the authority is not immune to review by the High Court of Justice, and that review covers all the known reasons for review under administrative law. (See: HCJ 282/88 Awad v. Prime Minister and Minister of the Interior, IsrSC 42 (2) 424, 434; HCJ 100, 136, 137/85 Gideon Ben Yisrael et al. v. State of Israel, IsrSC 39 (2) 45, 47). Of course, the exemption from stating reasons – in those cases in which the Minister of the Interior does not state his reasons for a deportation decision – makes review more difficult, but it does not detract from the authority to review or from its scope (the Kendel case, above, 524-528, and see and compare: the Clark case, above, 117). To their credit, the Ministers of the Interior have only rarely made recourse to that privilege of exemption from stating reasons, and I cannot recall a single case over the last few years in which the Minister of the Interior decided to deport a person from the country, and refused to reason his decision.

            At present, no one would describe the Minister of the Interior’s authority to deport aliens from the country as one of “absolute” discretion. However, we would all agree that the Minister’s authority is considerably broad. In other words: the Minister’s discretion whether or not to deport an alien is of considerably wide scope. Against this background, we will now examine the policy for the deportation of non-Jewish aliens married to Israeli citizens.

 

The deportation policy – Reasons and reasonableness

42.       Our preliminary assumption is that when an Israeli citizen marries a non-Jewish person lawfully residing in Israel, but who is not an Israeli citizen, the Ministry of the Interior does not intervene in that alien person’s right of residence. If that alien applies for permanent residence in Israel, as well as for citizenship, the Ministry of the Interior addresses the application in accordance with a particular policy that it has established (and that we will address below). The matter is different if than alien resides in Israel without a permit. An Israeli citizen marries a woman who is not Jewish and not an Israeli citizen, while she is residing in Israel without a permit. If the couple request that that alien be allowed to reside in Israel permanently and acquire citizenship, that woman will be asked to leave the country until such time as the Ministry of the Interior will evaluate the nature of that marriage in order to determine whether it is bona fide of fictitious. The Appellants have cried out against this demand to leave the country for the purpose of the examination, and it is that cry that we will now address.

43.       The question that presents itself is why the Ministry of the Interior decided to change the policy it had maintained for many years (see above, para. 29) and begin to implement the deportation policy that we have just described. It would appear that the Ministry of the Interior decided to change its policy due to a precipitous rise in the number of fictitious marriages among aliens in Israel, and the new policy was originally intended to combat this deplorable practice of fictitious marriages.

            As we are all aware, Israel has become a lodestone for people of various nationalities and countries who come to live and work in Israel. Those aliens who come here see that it is good, and wish to remain as long as possible, and even establish permanent residence. Thus, when their residence permit expires, they stay even without a permit. We are informed that we are concerned with tens of thousands of people. The Ministry of the Interior, having decided to put an end to this improper and undesirable phenomenon, began to check the residence permits of aliens in Israel, and when it found that they were residing in Israel without a valid permit, it sent them back to their countries of origin. The phenomenon of fictitious marriages began as a counter-measure.

            Mr. A or Miss B who found the good land but lacks a residence permit, discovered a way to lengthen their stay by marrying an Israeli citizen in a wedding ceremony that is merely a fiction. The couple have no intention of forming a family unit and living together as a couple. The entire purpose of the purported marriage is to obtain recognized status in Israel for the alien spouse, and thereby prevent deportation. As the Ministry of the Interior’s enforcement policy became more severe, the number of fictitious marriages increased, and the battle waged on. (On the subject of fictitious marriages and the family unit, see the Kniazhinski case, above, particularly the opinion of Justice Beinisch).

            We would add that such fictitious marriages can have various motives, and similarly, various forms of “consideration”. Sometimes, the consideration is simply money, where the Israeli citizen receives payment for his participation in that ugly ceremony of fictitious marriage. Sometimes there is a symbiotic relationship in which both partners gain some consideration. Thus, for example, a foreign worker seeking to ensure his continued stay in Israel marries (so to speak) a young Israeli woman who wishes to evade the burden of military service by means of the fictitious marriage.

44.       The Ministry of the Interior is intent on a fight to the finish against these fictitious marriages, and the method it found appropriate was that of demanding that the alien leave the country while the legitimacy of the marriage was examined. The Ministry believes that this method will reduce the incentive to conduct fictitious marriages, and all – or almost all – will be well. Or, in the words of the Ministry of the Interior, as sated in its affidavit:

The purpose of the said policy is to deprive unlawful residents of an “insurance policy”, while sending a clear message that anyone who seeks to retroactively legitimize his residence in Israel (or obtain some other benefit, such as an exemption from military service) by means of a fictitious marriage, will not easily achieve it. Rather, obtaining any legal status in the State of Israel will subject him, as well as his Israeli spouse, to an examination and waiting period, during which time the Ministry of the Interior will be able to examine all that needs to be examined, in advance and retroactively, by various ways and means.

As stated, the purpose of the said policy is to frustrate, to the extent possible, attempts to unlawfully establish permanent residence in Israel, while granting the Ministry of the Interior the opportunity to form an opinion as to the legitimacy of the marriage before, rather than after, granting legal status in the State of Israel.

The said policy decision by which the application of the couple would be examined while the applicant for “family reunification” is out of the country will not only serve to offset the immediate benefit and significantly frustrate attempts at unlawful residence, but will also allow the Ministry of the Interior to examine the relationship without the outward appearance of “living under one roof in Israel” itself carrying real weight in examining the relationship, and without “the sinner benefitting from his sin”.

            The Ministry further informs us that the new policy has proven itself in the following two ways: first, since adopting the new policy, the number of applications for changing status in Israel by reason of marriage has decreased, and second, there has been an increase in the discovery of fictitious marriages. We would, however, note that these statements by the Ministry of the Interior are not supported by statistical data, and are merely based upon “impressions” and “educated guesses” of those involved in the matter.

45.       The Ministry of the Interior adds that against this gloomy background that was clear to all, the new policy under which the alien is asked to leave the country before and as a precondition to examining his application is sensible and reasonable. The former policy encouraged widespread fraud, and that fraudulent activity was advanced by “marriage contractors” who arranged for Israelis and aliens to meet for the sole purpose of arranging fictitious marriages to mislead the authorities. The Ministry of the Interior further argues:

If we would not have adopted this policy, we would soon find ourselves facing a situation in which all the unlawful aliens in Israel would be married to Israelis, and any possibility of addressing the problem of unlawful residency would be foiled.

            The Ministry of the Interior further argues that the harm inflicted upon the individual is not at all severe. The alien is only asked to leave for a few months, and a brief separation of a few months is only a slight inconvenience to a bona fide couple, as opposed to the great benefit of the new policy in frustrating the fictitious marriages.

46.       In the course of the proceedings before the Court, the Ministry of the Interior further informed us that the Ministry’s policy is not overly strict, and that there are exceptions to the general policy that address the personal circumstances of the couples. Thus, where there is a strong humanitarian concern, it may override the general policy. We were informed of these exceptions in the course of the arguments presented by the Ministry of the Interior’s attorney, but we were not shown any clear, written directive in this regard. However, after the conclusion of the hearings and arguments, the Ministry of the Interior submitted a document entitled “Criteria for granting an Exceptional Exemption from the Demand that an Illegal Alien who married in the course of his Unlawful Residence leave the Country”. The document presented by the Ministry of the Interior states as follows (emphasis original):

Criteria for granting an Exceptional Exemption from the Demand that an Illegal Alien who married in the course of his Unlawful Residence leave the Country

The Rule:

An unlawful resident who marries an Israeli is required to leave Israel before the examination of his application and the application of the Israeli partner for family reunification in Israel in accordance with the law.

 

Exceptions:

The Head of the Population Administration, his deputy, and department heads in the Population Administration are authorized to grant an exemption from the said rule to the alien partner in exceptional cases in such special humanitarian circumstances as the following:

a.         Special health circumstances that require that both partners remain in Israel.

            An appropriate medical opinion must be submitted to that effect.

 

b.         The couple have a joint child, and the couple brought unequivocal evidence that they maintained a common household for a period of 12 months.

 

c.         The alien partner cannot return to his country of nationality due to a danger to his life, and he is unable to leave for a third-party country and remain there until a decision is made.

 

            We would add that we do not know the origin of these criteria, and the Respondents’ attorney made us no wiser. Thus, for example, the document’s heading does not state the date of the issuance of the criteria, and we also do not know who issued them and what there normative value might be.

            Moreover, it seems strange to us that these criteria – which go to the heart of the matter – were not brought to our attention until after the conclusion of the proceedings. And having brought them to our attention, the Respondents did not indicate the date of their issuance or the place of their publication, and did not even claim that the criteria had been published to the public at large. That being the case, of what value are criteria – and let us bear in mind that we are concerned here with exceptions – that the individual does not know exist? Needless to say, criteria that lie in a clerk’s drawer, and never see the light of day, invite arbitrariness and have all the weight of a plucked feather.

47.       In conclusion: An alien residing in Israel without a permit, who has married an Israeli citizen, will be asked to leave the country for a number of months until the authorities have time to investigate whether the marriage is bona fide or fictitious. Only after a few months, and if the Ministry of the Interior official is satisfied that the marriage does not appear to be fictitious, will that alien be permitted to return to the country. Only then will his application for permanent residence or naturalization be considered. In accordance with this policy, a marriage certificate between an Israeli and an alien carries no weight – in and of itself – in the eyes of the Ministry of the Interior. The alien spouse is asked to leave the country notwithstanding the existence of a marriage certificate, and despite there being no factual foundation that the marriage is fictitious. Under the current policy, except for those limited exceptions of which we have recently been informed, the individual matter of the couple presenting itself before the authorities will not be addressed on the merits. The Ministry of the Interior does not conduct any examination whatsoever, and does not hear the arguments of the couple. The alien partner must leave the country, regardless of the nature of the marriage.

48.       The Petitioners clamor with strident arguments challenging the Ministry of the Interior’s new policy. For example, they argue that the new policy is based upon the gut feeling of administrator’s without any statistical data to back it up. Indeed, when the Respondents were asked to present the data upon which they based the policy, they were hard-pressed to collect it. We were only presented with data after examinations and investigations, and even then, the data was partial, and primarily sample data. Thus, we heard that some 2,500 applications are submitted annually by the type of couple with which we are concerned, and 500 of those applications are submitted by couples in which the alien partner resided in Israel without a permit. How many of these were proven to be fictitious marriages? How many of these fell within the scope of the humanitarian exceptions? We were not told. And if we were not told, we do not know.

            In the absence of any real data on the extent of fictitious marriage, the question automatically arises as to the justification for the firm policy currently in place. If, for example, there are only a (relatively) small number of fictitious marriages among all the marriages in this category, is it really justifiable to shake up hundreds of innocent couples due to those few sinners? Is it proper to harm the many for the few? Perhaps the shadows of hills look to the Respondents as men?[5]

            It is established law that before a governmental authority makes a decision that affects individual rights – whether an individual decision or one of general policy – it must collect data on the matter, winnow the grain from the chaff, dissect the data, weigh it, consider the significance of the proposed decision and its expected consequences, and only then act (see:HCJ 297/82 Berger et al. v. Minister of the Interior, IsrSC 37 (3) 29, 48-49; HCJ 987/94  Euronet Kavei Zahav (1992) Ltd. v. Minister of Communications, IsrSC 48 (5) 412, 423-426). In establishing their policy – and in the way they established it – the Respondents transgressed this fundamental rule of administrative conduct.

49.       The Petitioners further argue that the Respondents are also violating the fundamental principle requiring that a potentially harmed person be granted a hearing, whereas the Respondents refuse to hear the arguments of a person residing in Israel without a permit, and “ask” that he leave the country prior to addressing his application. To this we would respond that infringing the right to be heard is a severe violation of the rights of the person harmed, and the Respondents are guilty of this, as well. (And see: the Motzenchik case, above, 281; and see and compare: Galvan v. Press, 347 U.S. 522, 530 (1954); Landon v. Plasencia, 459 U.S. 21, 2-33 (1982)).

            We would also recall that we are also concerned with the right of an Israeli individual. His interest in the application would appear to be equal to that of his alien spouse. If the couple is separated, and the alien is sent abroad – or even if the alien’s application for permanent residence will not be addressed until he leaves the country – not only is the interest of the alien harmed, but that of the Israeli citizen, as well. And certainly no argument can be made in favor of violating the right of the Israeli partner to be heard.

 

On reasonableness and proportionality

50.       The attorneys for the parties – the attorneys for the Petitioners on one side, and the attorney for the Respondents on the other – devoted most of their arguments to the subject of the reasonableness of the Ministry of the Interior’s policy, and in particular, the question whether the policy is “proportionate”. Needless to say, the Petitioners argue that the condition that the alien leave the country before the couple’s application for residence and naturalization will be considered on the merits is a “disproportionate” means that must be voided. This argument of disproportionality was accompanied by additional arguments – like those we addressed above – concerning the failure to collect relevant data, failure to hear the spouse, and other such arguments that have bearing upon the inappropriateness of the means to the purpose.

51.       There is no need to elaborate on the proportionality test. As we know, the test comprises three branches: a rational connection between the means and the purpose; the least harmful means; and the benefit-injury test, better known as the proportionality stricto sensu test (see: HCJ 3477/95 Ben-Atiya rt al. v. Minister of Education and Sport, IsrSC 49 (5) 1; HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance, IsrSC 51 (4) 367; CA 6821/93, LCA 3363, 1908/94 United Mizrachi Bank et al. v. Migdal Cooperative Village et al., IsrSC 49 (4) 221, 346-347, 436-437, 470 [http://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooper... HCJ 450/97 Tenufa Manpower and Maintenance Services Ltd v. Eli Yishai, Minister of Labor and Social Affairs, IsrSC 52 (2) 433; HCJ 6972, 6971/98 Partitzky v. State of Israel (not yet published) and the references there). The question is whether the policy of the Ministry of the Interior passes this three-part test that every administrative act must meet.

            But before we enter the chamber, let us first take a moment to enjoy the fresh air.

            There is disagreement among the experts as to the status of proportionality, and more specifically, about its origin (see, e.g., the Ben-Atiya case, above, 14-15 per Barak D.P., and the references there). Some are of the opinion that it is a derivative of the reasonableness test, and nothing more than a refinement of that test whose boundaries were not established, and which breaks out in every direction. As opposed to those, there are some who say that the proportionality test stands on its own two feet, and is sustained by a light that emanates from within. I believe that the truth lies somewhere in between those two schools of thought. Historically, the proportionality cause predates that of reasonableness – as that cause is presently recognized – and was born before the reasonableness cause took its first breath (see, e.g., HCJ 14/65 Khouri and Basil v. Minister of the Interior, IsrSC 19 (2) 322, 334; HCJ 115/67 Rosh Haayin Local Council v. Minister of Education and Culture, IsrSC 21 (1) 524, 526). In time, when it appeared as a comprehensive cause of action, reasonableness – like the tort of negligence in its time and place – came to dominate all, and its predecessors fell under its shadow. Like negligence in tort law, reasonableness in administrative law came to be a “framework” cause whose characteristics changed from matter to matter and from time to time, in accordance with the time and the place. In the next stage, the reasonableness cause gave birth to rules, causes and sub-causes of various types, accompanied by new headings that achieved independent status. One of those new category headings was proportionality. And as reasonableness is to legality, so proportionality is to reasonableness. Having liberated itself from its parent, proportionality could develop itself freely and independently, such that we might say: in the beginning (although not at the beginning of all beginnings) proportionality dwelt in the house of reasonableness, but one day it left that house, and through its own efforts, built a house of its own. Thus, proportionality now presents us with a sharper, more decisive means than the general cause of reasonableness. It provides us with a more developed tool for examining the rationality of administrative acts.

            We have stated the above only “to magnify the Law and make it glorious”,[6] inasmuch as we would all agree that it is by means of the proportionality test that we examine the discretion of a duly-authorized governmental agency.

52.       The proportionality test focuses upon the means for achieving an objective. The preliminary assumption is that the objective itself is proper, and the question is simply whether the means chosen for its achievement are proper, as well. We should bear in mind that in implementing the proportionality test, the measure of our strictness with the governmental agency will be commensurate with the importance of the infringed right, or the severity of its infringement.

            In the matter before us, the preliminary assumption is that the fight to the finish that the Ministry of the Interior is waging against fictitious marriages is a “proper purpose”, and that the Ministry’s intention is to eradicate this weed is a proper intention. All agree that the Ministry of the Interior’s intention befits the values of the State of Israel, and that it is intended for a proper purpose. The State of Israel is trying to contend – and may contend – with unlawful immigration across its borders, and it is certainly appropriate to recognize its right to combat people and organizations that exploit the limitations of the enforcement mechanisms in order to reside unlawfully in Israel. The battle against fictitious marriages is, therefore, a proper battle. However, the question that must be asked is whether, notwithstanding all the above, the means adopted by the authorities – i.e., the demand that the alien leave the country until the question of whether the marriage is bona fide or fictitious is examined – is a means “ to an extent no greater than is required”.

53.       In our opinion, the means adopted by the Ministry of the Interior does not stand in a proper ratio to the purpose that the Ministry seeks to achieve – a purpose that is, itself, proper. The means is inappropriately forceful relative to the purpose, and insofar as the benefit-harm ratio, its harm exceeds its benefit.

54.       As for the appropriateness of the means to the purpose, the Ministry of the Interior is of the opinion that a policy requiring the alien spouse to leave the country before the application in regard to his status is reviewed constitutes a disincentive to fictitious marriages, inasmuch as the alien partner will know that (fictitious) marriage will not, itself, guarantee his continued presence in Israel. Is that truly the case?

            Indeed, although the policy has been in place for a number of years, not only has it not adequately been shown to actually bring about a reduction in the number of fictitious marriages, but it can be argued that the rational connection between the means and the objective is not sufficiently strong. An alien who seeks to extend his presence in Israel by means of fictitious marriage will not be deterred by a waiting period of several months abroad. As opposed to this, a couple – both the alien and the Israeli – who have entered into a bona fide marriage will certainly and severely be harmed if they are compelled to separate, or if – out of their love for one another – they are forced to leave the country together for a number of months.

            Moreover, the Ministry of the Interior did not provide us with any relevant statistics either in regard to the number of fictitious marriages or in regard to the ratio between them and the total number of marriages between Israeli citizens and non-Jewish aliens. Let us assume that we are concerned with a one-to-ten ration of fictitious marriages. Would that represent a rational connection between the means and the end? Is there a rational connection when nine suffer on account of one?

55.       And further, according to the Ministry of the Interior, it examines the legitimacy of the marriage while one of the spouses is in the country and the other is abroad, or while both are abroad. To my mind, it would seem that examining the marital relationship while one of the spouses is abroad and the other in Israel is more difficult than examining that relationship when both are in Israel. I will not deny that there are certain advantages to an examination conducted when the couple is separated, but I find it hard not to be under the impression that the possibility for conducting an examination, as well as the dependability of that examination, would be far greater when the two are in the country, rather than under the alternative of one being here and the other abroad, and would certainly be greater than when both are abroad. Indeed, one of the clear indicators of a bona fide marriage – although not the only one – is the maintaining of a common residence and a joint household over time. How can the Ministry of the Interior ascertain that if one of the partners isn’t even in the country? Indeed, one gets the clear impression that the laxity of the Ministry of the Interior’s scrutiny was a – and perhaps the primary – reason for adopting the new policy, and rather than improve the efficiency of its inspections, the Ministry of the Interior chose the easy route of demanding that the alien spouse leave the country.

            That was the case in the matter of Ben-Atiya (above). In that case, we were concerned with a program implemented by the Ministry of Education and Sport under which students were exempted from matriculation examinations in certain fields of study. In place of the exams, the Ministry recognized the grades that the students attained in internal exams administered by their high schools. The question was whether the Ministry could deny certain schools the right to participate in that program solely because large-scale occurrences of copying on matriculation exams had been discovered in those schools in previous years. The Court granted Ben-Atiya’s petition, and Justice Kedmi wrote (ibid., p.8):

The occurrence of a relatively large number of infringements of the honesty of the exams reflects a laxity in supervision, and the manner for contending with that phenomenon is by improving the efficiency of supervision, and by the appropriate punishment of those involved, rather than by harming “the next class” and the educational institution and its faculty.

What the Court stated there in regard to increasing supervision can be said in this case, as well.

56.       The second branch of the proportionality test treats of the question of whether the harm caused to the individual is greater than necessary. There is no doubt in our minds that the Ministry of the Interior’s policy absolutely fails this test. First, we will agree with our colleague Justice Dorner that this second branch of the proportionality test concerns the “margin of proportionality”, or as she stated in the Tenufa Manpower and Maintenance Services case (above):

And it is sufficient that the violation of the right fall within the “margin of proportionality” for the norm to meet the proportionality requirement. This is certainly true in regard to the legislature…and it is even true in regard to norms adopted by the executive branch… the “margin of proportionality” is also decided with consideration for the nature of the violated right or interest, and their relative importance.

The Ministry of the Interior’s policy fails this test, as well.

57.       It does not require great powers of imagination to know and understand the severity of the harm to a legitimately married couple compelled to leave the country or separate for a number of months. The Respondents state in this regard:

On the contrary, if the couple’s relationship is sufficiently strong, then it will not suffer at all from a not particularly long separation, or due to the couple’s travelling to the alien partner’s country of origin, if it is real.

            This response that love will conquer a few months of separation is cynical and inappropriate. Moreover, the violation of their dignity and family unity is not something to make light of. And how will separating lovers make matters easier in this matter. Have we forgotten Desdemona’s pain when the Duke ordered Othello to leave to fight in Cypress (William Shakespeare, Othello)?

                        DESDEMONA:

That I did love the Moor to live with him,

My downright violence and storm of fortunes

May trumpet to the world: my heart's subdued

Even to the very quality of my lord:

I saw Othello's visage in his mind,

And to his honour and his valiant parts

Did I my soul and fortunes consecrate.

So that, dear lords, if I be left behind,

A moth of peace, and he go to the war,

The rites for which I love him are bereft me,

And I a heavy interim shall support

By his dear absence…

            Should our hearts make light of the pain of separation? Justice Elon addressed the pain of separation in CA 488/77 Anonymous and Anonymous v. Attorney General, IsrSC 32 (3) 421, teaching us (p. 432):

The Sages said that it is as difficult to match people together as parting the Red Sea (TB Sotah 2a, and Rashi ad loc.). And if that is true for matching and joining  people, a fortiori, separating and “parting” them from one another is as difficult as parting the Red Sea.

And let us not ignore the financial burden involved in such a compelled separation of a couple.

58.       In their summation briefs, the Petitioners presented us with some of the obstacles confronting a couple when one of them is required to leave the country: the economic problems involved in leaving the country and staying abroad; the limited employment opportunities; and health issues. Indeed, it is hard to avoid the impression that a decree requiring a spouse to leave the country is too heavy to bear. The Respondents did not adequately weigh the right of an individual to marry, and the severe harm to family life attendant to the policy they adopted. In the the Tenufa Manpower and Maintenance Services case (above), our colleague Justice Dorner addressed the issue of violating basic rights:

As for the test regarding the choice of the means that violate the right to the least extent necessary, which, as noted, is not an absolute test, the choice of the means will be influenced by the right violated. When an important, basic right is involved, we must be more strict in choosing means that only minimally violate the right, even if those means are significantly costly.

The matter before, it should be recalled, concerns a basic right of the individual – every individual – to marry and found a family. We should need no reminding that this right is recognized in universally accepted international conventions (see: Art. 16 of the Universal Declaration of Human Rights, 1948; Art. 12 of the European Convention on Human Rights; Art. 23(2) of the International Covenant on Civil and Political Rights, 1966. For more on this right, see: Amnon Rubinstein, The Right to Marry, 3 Iyunei Mishpat 433 (1973) (Hebrew); Irene Fahrenhorst, Family Law as Shaped by Human Rights, 12 Tel Aviv University Studies.in Law 33 (1994)).

            Indeed, the force of the right and its strong emanations require, almost on their own, that the means that the Ministry of the Interior chooses be softer and more moderate than the hard, drastic means that it decided to adopt. It is difficult not to infer that the Respondents entirely ignored – or gave only minimal weight to – these basic rights of the individual to marriage and founding a family. If that is the case in regard to the alien, it is all the more so in regard to the Israeli citizen who is a partner to the marriage.

59.       It would have been appropriate for the Respondents to choose other means for achieving their – itself proper – purpose, which would be less harmful to the individual. Thus, for example, increased monitoring of unlawful residence in the country, greater supervision over the legitimacy of marriages, and so forth. The employment of such means would, we assume, require the expenditure of greater resources, but that alone cannot justify the harsh means that the Ministry of the Interior chose to adopt towards individuals.

60.       The third branch of proportionality addresses the benefit deriving from the policy, as opposed to the harm that it inflicts. In our opinion, the benefit of the policy does not stand in a proper ratio to the harm it causes. The benefit that the policy achieves is, primarily, merely speculative, and we did not receive any of the data we would have expected to see. It is hard to free oneself from the impression that whether the policy will lead to the eradication of fictitious marriages or to harm to bona fide marriages is merely a matter of chance. The harm – harm to bona fide marriages – is real and proven, whereas the benefit – harm to fictitious marriages – is speculative and unproven. Moreover, in the absence of statistics, it is hard to ignore the real possibility that the many – those in bona fide marriages – will suffer for the few – those in fictitious marriages.

            In our opinion, examining the harm and benefit leads to the unequivocal conclusion that the Ministry of the Interior’s policy does not meet the test of a proper, proportionated relationship, as required.

61.       The necessary conclusion from the above is that the Ministry of the Interior’s policy in regard to aliens who married Israelis while they (the aliens) were living in Israel without a permit is a policy that does not meet the proportionality test, and is improper and void. The Ministry of the Interior’s demand – as a fundamental policy – that the alien spouse leave the country for a number of months until the legitimacy of the marriage is reviewed, is a policy that is inconsistent with first principles of a democratic regime that is concerned for civil rights.

62.       Does that mean that the Ministry will be acting unlawfully whenever it demands that an alien living in Israel unlawfully, and married to an Israeli, leave the country immediately until his application is reviewed in depth? In our opinion, the answer is no. It may be assumed that there will be cases in which the fictitious character of the marriage will be apparent to all in all its ugliness, even without any in-depth investigation. That would be so, for example, when it becomes apparent in the course of an interview with the couple that the woman barely knows her spouse, or the opposite, and that, of course, neither of the two is acquainted with their spouse’s family, birthplace, and so forth. That would also be the case where it is manifest that the marriage certificate is a forgery (see, for example, the Motzenchik case, mentioned above in para. 34). In such cases, and after granting the couple an opportunity to be heard, there would appear to be nothing that would prevent asking the alien spouse to depart the country immediately until the completion of a further review of the marriage (if there would be any need for such a review). However, subject to such exceptions, the Ministry of the Interior is prohibited from demanding that the alien leave the country prior to a review of the legitimacy of the marriage. This, of course, is subject to overriding concerns of a criminal record or a danger to public safety. Needless to say that the couple is entitled to present their case to the Ministry of the Interior official, and that no decision shall be made before they are granted a fair opportunity to present their case in full. If, following the examination, the Ministry of the Interior concludes that the couple’s marriage is fictitious, it may then deport the alien from the country, subject to his right to challenge the deportation in court.

63.       Moreover, our preliminary assumption is of a couple presenting itself as married to the Ministry of the Interior. The man (for example) is Israeli, and the woman is an alien. The wedding ceremony took place while the alien woman was living in Israel without a permit, and the two now request that the woman be granted permanent residency and citizenship. We have not agreed to the establishing of a precondition requiring the woman to leave the country before her application will be addressed. At the same time, we cannot ignore the fact that the woman took the law into her own hands, continued to remain in the country contrary to law and order, and that she now seeks to legitimize her continued stay in reliance upon the marriage. We can also not ignore the fictitious marriage phenomenon that the Ministry of the Interior confronts when that woman (in this example) and her spouse seek to fraudulently extend the woman’s stay in the country. In considering all the above, and having rejected deportation, it would appear to us that in such cases, the couple should be subject to a heavier-than-normal burden to prove the legitimacy of the marriage. Indeed, the nature and severity of the matter should influence the burden of proof, as in other matters of law, and require a higher level of proof of the couple than is usual. If that is the general rule, it is all the more so the case when the marriage was celebrated after deportation proceedings against the alien spouse commenced.

            An analogy – although not a perfect one – can be brought from the rule requiring that a complainant in a tort suit who claims a larger loss of income than his reported tax income must bring “persuasive evidence” as to the truth of his claim (see, e.g., CA 8639/96 Aryeh Insurance Company Ltd. v. Kardonis (not yet published; para. 5 of the opinion of Justice Orr; and see: CA 5794/94 Ararat v. Ben Shevach (unpublished) in which Justice Orr held that we must be “strict” with such a complainant).

            The law is similar in the United States in cases comparable (although not identical) to our own, where the law speaks of the non-deportation of an alien where the alien proves:

[B]y clear and convincing evidence to the satisfaction of the Attorney General that the marriage was entered into in good faith and in accordance with the laws of the place where the marriage took place and the marriage was not entered into for the purpose of procuring the alien’s admission as an immigrant and no fee or other consideration was given... (8 U.S.C. § 1255(e)(3)) (emphasis added).

            Thus we find that in order to prevent deportation, the alien will be required to meet a higher standard of proof in order to convince the authorities of the legitimacy of the marriage.

 

Proceedings for granting the right of permanent residence – the “graduated test”; Naturalization of an alien married to an Israeli

64.       As we saw above, the Ministry of the Interior’s policy distinguishes between a marriage between an Israeli and an alien residing in Israel unlawfully, and the marriage of an Israeli to an alien residing in Israel lawfully. Up to now, we have addressed cases in which the alien resides in Israel unlawfully, and we shall now turn to the other type of case, in which the alien resides in the country lawfully. We would preface this by stating that this situation also includes cases in which the residency is unlawful, and it has been determined that the marriage is bona fide.

            We are now concerned with the case of a married couple in which one spouse is Israeli and the other is a non-Jewish alien applying for the right of permanent residency and naturalization. Under the currently accepted procedure, these two requests are handled separately, and we will, therefore, address them separately, respectively.

65.       The Ministry of the Interior’s policy for granting permanent residency to the alien spouse – which has been in place since 1996 – is divided in to three separate stages, and the entire process may take nearly six years to complete. The first stage – an undetermined period, up to six months; a second period of two years; and a three-year third period, totaling some six years.

66.       In the first stage – which extends for an undetermined period of up to six months – the Ministry of the Interior begins to examine whether the marriage was entered into in good faith, and the question of any security or criminal impediment to granting the requested rights. Unlike the situation of an alien who marries an Israeli while residing in Israeli without a permit, the alien residing in Israel with a permit is not requested to leave the country until the completion of the examination. The examination is conducted while both spouses are in the country.

            In conducting its examination on the merits, the Ministry of the Interior assigns little importance to the marriage certificate presented by the couple as proof of their marriage, and needless to say, it does not suffice with that document. The Ministry of the Interior invites the couple for an interview, and conducts further meetings in order to ascertain whether the marriage is bona fide, as well as in regard to the continued marital relationship. Once the Ministry is satisfied that the marriage is bona fide – at least prima facie – and in the absence of any security or criminal impediment to the spouse’s continued presence in the country (these issues were not raised before the Court, and we will not address them), the “graduated test” period begins. The total length of the “graduated test” period is five years and three months, and it begins, as noted, on the day that the Ministry of the Interior is satisfied that the two people who presented themselves as a couple are partners to a bona fide marriage.

67.       In the second stage (the first stage of the graduated test), the alien spouse is granted a visa and a B/1 visitor’s permit (temporary worker) under the provisions of reg. 5(a) of the Entry into Israel Regulations, 5734-1974. The visa and permit are valid for three months (as stated in sec. 2(a)(2) of the Entry into Israel Law, 5712-1952), and can be renewed. After 27 months in this status, we proceed to the third stage (the second stage in the graduated test).

            If the marriage continues as before, and in the absence of any security or criminal impediment, the alien spouse acquires the right to a visa and A/5 temporary residence permit (general temporary resident) under reg. 6(e) of the Entry into Israel Regulations. The alien spouse will remain in this status for a period of three years, until the completion of the aggregate test period of five years and three months. At the end of that period, the Ministry of the Interior examines whether the marriage is still in force. Having so found, and in the absence of any impediment, the alien spouse is granted the status of permanent resident, i.e., a visa and permit for permanent residence under sec. 2(a)(4) of the Entry into Israel Law.

            Thus far, the procedure for granting the right of permanent residency. We will now address the procedures for naturalization.

68.       The alien spouse is entitled to commence naturalization proceedings only upon completing the test period for granting the right to permanent residence. That is the policy and practice of the Ministry of the Interior.

69.       The Petitioners primarily complain of the length of the proceedings for obtaining permanent residence; of the fact that the Ministry subjects them – unjustifiably in their opinion – to the graduated-test period applying to “family reunification” proceedings; of the fact that naturalization proceedings begin only upon the completion of the graduated-test period; and of the fact that the Ministry does not apply a more lenient naturalization policy, as provided under the Nationality Law. We will now address these arguments.

 

Granting the right to permanent residence – prefatory remarks

70.       The attorneys for the parties employed the term “family reunification” in regard to granting rights to alien spouses, but that term is inappropriate, and we should make that clear from the start. A distinction should be drawn between the concept of “family reunification” as it applies to the administered territories – in which regard the use of this concept is correct – and borrowing that concept and applying it to the territory of the State. The substance of the two may appear similar, as in both instances we are concerned with the desire of family members to live together. However, if there is (partial) substantive identity between “family reunification” in the administered territories and “family reunification” in Israel, there is no legal identity. The law is different, the authorized government agency is different, and the nature of the right is different. We do not intend to go into the details of the arrangements for “family reunification” in the administered territories. Our intention is merely to state that no analogy should be drawn to the matter before us, just as no analogy should be drawn between the matter before us and those arrangements. Each arrangement addresses its own issues.

71.       A further comment. The Ministry of the Interior applies the identical “graduated test” to aliens seeking status after marrying Israeli residents, and to aliens who married Israeli citizens. As a matter of law, one could argue that the spouse of a citizen is different from the spouse of a resident, inasmuch as the spouse of a citizen (as we shall see below) falls directly under the purview of the Nationality Law, whereas the matter of a resident is governed by the policy that the Ministry of the Interior chooses to adopt from time to time. However, as noted, the Ministry of the Interior decided to adopt a uniform policy for citizens and residents, and applies the “graduated test” to the spouses of both.

72.       We hall now address the subject of granting the right to permanent residence and the right to citizenship, respectively.

 

The procedure for granting the right of permanent residence to the alien spouse

73.       The State of Israel recognizes a citizen’s right to choose a partner freely, and to establish a family together. Israel is committed to protecting the family unit on the basis of international conventions (see: art. 10 of the International Covenant on Economic, Social and Cultural Rights, 1966, and art. 23.1 of the International Covenant on Civil and Political Rights, 1966). Although those conventions do not dictate any particular policy in regard to family reunification, Israel has recognized – and recognizes – its duty to provide protection for the family unit also by means of granting permits for family reunification. In doing so, Israel joined the most enlightened nations, those recognizing – subject to restrictions regarding state security, and public good and welfare – the right of family members to live together in the territory they may choose. (See and compare:  Ryszard Cholewinski, The Protection of the Right of Economic Migrants to Family Reunion in Europe, 43 Int. & Comp. Law Quarterly 568 (1994); the judgment of the European Court of Human Rights in Berrehab v. The Netherlands (1988) 11 E.H.R.R 322).

74.       The same is true for the matter before us. The Respondents recognize the right of the partners – an Israeli citizen and a non-Israeli citizen – who married in good faith to live together in Israel, and the right of the alien to an arrangement that will ultimately grant him permanent status in the State: permanent residency and citizenship. What, then, gives rise to the complaint? It arises due to the length of time of that “graduated test”, and the rigidity of the arrangement.

75.       When we are concerned with endogamous Jewish marriage, no problem arises inasmuch as every Jew is entitled to return and to citizenship. Our matter concerns non-Jews who marry Israeli citizens. All would agree that the alien partner is not entitled to an immediate right of permanent residency and citizenship, and that such an entitlement would not be proper. As is universally accepted, the State has the right to monitor and supervise the procedures for granting rights to an alien spouse, and the State will naturally adopt a policy of stages. We may also assume that it is generally agreed that proceeding from one stage to another will be contingent upon the continued marital relationship (in the course of each stage, as well) and the absence of any security or criminally related impediment to the continuation of the process. It would have been proper that these arrangements adopted by the State be established by statute, or at least, in regulations, rather than in “internal directives” (and we have not seen even those). We would, nevertheless, recall that those directives were subjected to judicial review (see: HCJ 2950/96 Hana Mousa and 37 others v. Minister of the Interior (not yet published); HCJ 3087/97 Raina Aisha et al. v. Minister of the Interior (not yet published)). The question is simply whether the policy of a test in stages in regard to an alien spouse, as adopted by the Ministry of the Interior, meets the proportionality test and its derivatives.

The reasonableness of the arrangement for granting permanent residency

76.       As noted, the same graduated arrangement that the Ministry of the Interior employs in regard to the spouse of an Israeli resident is also applied to the alien spouse of an Israeli citizen. This is why the alien spouse is subjected to a waiting period of five years and three months prior to the granting of permanent residency. The Petitioners argue that their matter is different, and that there is no justification for applying this years-long test that applies to the spouse of a resident to the spouse of a citizen, as well.  We will state that, as a matter of principle, this argument has been raised in the past, and this Court rejected it. Thus, for example, in HCJ 3497/97 Afaf Said Musa Kamleh v. Minister of the Interior (not yet published), the Court stated:

As far as the procedure and the reason grounding it, there is no room for distinguishing between a resident and a citizen.

As for the period of time required before the spouse of a citizen can obtain permanent residency, the Petitioners argue that the time period does not meet the proportionality test in that it is unjustifiably long. The Respondents reply that they are acting lawfully, with due authority, and reasonably. We would all agree that, to the extent that considerations of national security or public safety are concerned, the Respondents are acting properly and reasonably even if the procedure is significantly long. However, in the absence of such or similar considerations, we unfortunately heard only hesitant, partial arguments as to the time required until the alien spouse can obtain permanent residency. Against this background, it would not be appropriate for the Court to further explore this subject on its own. Moreover, in the main, the subject of permanent residency is subsumed in the alien spouse’s application for naturalization. It would, therefore, be appropriate that we first address the question of citizenship. If that is not enough, we have also discovered that this question in regard to permanent residency is the primary issue in another petition pending before the High Court of Justice (HCJ 338/99 Sabri Issa et al.), and it would be preferable that we leave our decision of this question for that petition.

            Thus far on the issue of permanent residency. We shall now proceed to the subject of naturalization.

 

Naturalization of the alien spouse – lawfulness and reasonableness

77.       The issue of the naturalization of the alien spouse differs from that of permanent residency, if only because here we are not navigating policy and directives, but stand on the terra firma of statute. Elsewhere (see paras. 31-33, above) we briefly addressed the relevant provisions of the Nationality Law, and we shall now expand somewhat.

78.       Nationality is conferred by seven means (sec. 1 of the Nationality Law), and we are concerned with that of naturalization (secs. 5-8 of the Nationality Law). Section 5 of the Nationality Law establishes as follows:

Naturalisation

5(a)      A person of full age, not being an Israel national, may obtain Israel nationality by naturalization if –

1. He is in Israel; and
2. He has been in Israel for three years out of five years preceding the day of submission of his application; and
3. He is entitled to reside in Israel permanently; and
4. He has settled, or intends to settle, in Israel; and
5. He has some knowledge of the Hebrew language; and
6. He has renounced his prior nationality or has proved that he will cease to be a foreign national upon becoming an Israel national.

(b) …

            That is the general path for naturalization, but not the path in the case of a spouse, whose right to citizenship takes precedence over the right of others. Thus, sec. 7 of the Nationality Law informs us:

                        Naturalisation of husband and wife

7.         The spouse of a person who is an Israel national or has applied for Israel  nationality and meets or is exempt from the requirements of section 5 (a) may obtain Israeli nationality by naturalisation even if she or he is a minor or does not meet the requirements of section 5 (a).

            The spouse of an Israeli citizen – alone – is entitled to this more lenient procedure for naturalization, the reasons for which were addressed by Justice Barak in the Rankin case (above, p. 117):

There is a readiness for significantly greater flexibility in regard to the requirements when the spouse of a citizen requests citizenship. The reason for this is to be found in the desire to preserve the family unit, and the need to prevent a division in the citizenship of its members.

And further see the Kniazhinski case, above.

79.       The spouse of an Israeli citizen may, therefore, be granted some leniency in the naturalization process, but in order to obtain it, he must pass through the corridor of the Minister of the Interior’s (or a person upon whom the Minister of the Interior confers authority) discretion. We have already noted (para. 33, above) that this leniency granted to the spouse of a citizen does not detract from the discretion of the Minister of the Interior, and we are concerned only with the boundaries of that discretion and the criteria that the Minister may employ in exercising it. All would agree, for example, that in the case of an applicant with a criminal record that may place the public at risk, or an applicant who may present a threat to national security, the Minister of the Interior can refuse the application for naturalization. If that is true of return – which allows for the prevention of the immigration of a Jew for these reasons (see sec. 2(b)(2) and (3) of the Law of Return) – should not the same hold for normal naturalization?

            Moreover, it is decided law that the Minister’s discretion in regard to the granting of citizenship is so broad that, despite the provisions of sec. 7 of the Law – authorizing the Minister to waive the conditions established under sec. 5(a) of the Law in addressing the naturalization application of the spouse of an Israeli – he is permitted not to waive the fulfillment of some of those conditions and insist that they be met. Thus, the Minister of the Interior is authorized to waive the conditions established under sec. 5(a)) of the Law, or not to waive them, and insist upon fulfilling some of them (and cf. HCJ 31/53 Nabia Taufiq Badran Mustafa v. General of the Northern Command, IDF et al., IsrSC 7 587, 588). Thus, for example, the Minister of the Interior decided – as a matter of general policy – not to waive the requirements under sec. 5(a)(1) and 5(a)(4) of the Law in regard to the spouse of an Israeli citizen requesting naturalization. In other words, the applicant for naturalization must meet the requirement of presence “in Israel” and the requirement that he “has settled, or intends to settle, in Israel”. When that matter was raised before us, we approved that policy, stating that the Minister of the Interior properly exercised his discretion in seeking to prevent the exploitation of the naturalization process by those who did not intend to use it for the purpose of the family’s residing in Israel. As we stated in the Uriel Scharf case (above):

This policy of the Minister of the Interior is intended to prevent enlarging the circle of Israeli citizens who do not reside in Israel, do not intend to reside in Israel, and do not take any part in the obligations imposed upon its residents.

80.       The scope of the Minister of the Interior’s discretion is derived, inter alia, from the nature of the right to citizenship, and we may state, in general, that the nature of that right is such as to indicate broad discretion. Citizenship is a basic right (HCJ 2757/96 Alroi v. Minister of the Interior, IsrSC 50 (2) 18, 22-23). It is a right that establishes a continuing relationship between the citizen and the state that may grant rights and ground various obligations (see: Rubinstein & Medina, vol. 2, 896-903; M.D. Gouldman, Israel Nationality Law (Hebrew University, 1970) 101-118. And see more recently: CrimA 6182/98 Sheinbein v. Attorney General, IsrSC 53 (1) 624). A citizen carries his citizenship on his back, and it accompanies him wherever he may go. The right is not limited to the country’s borders, but “applies to the territory of the state and beyond” (the Rankin case, 117). From the above we see that, by nature, the granting of citizenship is subject to broad to discretion, and that the Minister has the authority to weigh many different considerations before deciding whether or not to grant an application for naturalization.

            Nevertheless, as with every matter of discretion, boundaries and limits have been imposed upon the Minister of the Interior’s discretion under the Nationality Law. One of those limits is established in sec. 7 of the Nationality Law, in which the legislature expressed its desire that leniency may be shown in regard to the spouses of Israeli citizens who apply for Israeli citizenship. The legislature stated its desire, and the Minister of the Interior cannot ignore the directives of the law.

 

The legislature’s directive regarding leniency in the naturalization of the spouse of an Israeli citizen

81.       Section 7 of the Nationality Law does not deprive the Minister of the Interior of his broad discretion, even when he is considering the naturalization application of the spouse of an Israeli citizen. At the same time, it instructs us that leniency is appropriate in considering such an application. I would not go so far as to say that the “burden of persuasion” rest on the Minister’s shoulders to show why and wherefore he chooses not to exempt the spouse of an Israeli citizen from the provisions of sec. 5(a) of the Nationality Law. However, I would have no difficulty in stating that the Minister is under a burden to explain why he will not grant an exemption from those requirements to the spouse of an Israeli citizen, in part or in full.

            Once again, we are not traversing untrodden ground. Section 7 of the Nationality Law expresses the international obligation that Israel assumed in regard to granting leniency in the naturalization of a married woman, or in the language of art. 3 of the Convention on the Nationality of a Married Woman (8 Kitvei Amana 605):

Each Contracting State agrees that the alien wife of one of its nationals may, at her request, acquire the nationality of her husband through specially privileged naturalization procedures; the grant of such nationality may be subject to such limitations as may be imposed in the interests of national security or public policy.

            The Convention is intended, by its language, to protect the rights of women, but in view of the principle of equality in our legal system, we can say that the right also extends, in principle, to men, as well. The purpose of sec. 7 of the Nationality Law is to protect the rights of the spouse, from which we learn that the Minister of the Interior is required to include this purpose in the policy that he establishes for the implementation of sec. 7. Thus, for example, a rigid policy that would declare that a spouse would not be granted citizenship unless he met all of the conditions established under sec. 5(a) would be hard to accept as being within the Minister’s authority and lawful. Indeed, we might possibly approve such particular discretion only in the most exceptional case, as it severely detracts from the provisions of sec. 7 of the Law.

82.       As for the matter before us, as we saw, the Minister of the Interior is unwilling to consider an application for naturalization before the conclusion of the probationary period for permanent residency, or in terms of months and years: after five years and three months from the submission of the application for permanent residency. Is it proper to impose that condition upon a spouse seeking naturalization?

83.       In sec. 5(a) of the Nationality Law, the legislature established six preconditions – threshold conditions –for the right to naturalization (subject to the Minister of the Interior’s discretion not to grant citizenship even upon meeting those conditions). Two of those conditions – those listed in sec. 5(a)(1) and 5(a)(4) – compose part of the Minister’s permanent policy, i.e., presence in Israel and settling, or intending to settle, in Israel (see para 79, above). Now, in demanding – as a precondition – that the spouse requesting naturalization first obtain permanent residency, the Minister adds a requirement similar to the condition established under sec. 5(a)(3), i.e., that the applicant be “entitled to reside in Israel permanently”. In practice, if not in law, the spouse is required to meet a condition similar to the condition established under sec. 5(a)(2) of the law, under which a precondition for granting citizenship is that the applicant “has been in Israel for three years out of five years preceding the day of submission of his application”.

            Of the six conditions of sec. 5(a), there remain only two from which the spouse is (apparently) exempt: “has some knowledge of the Hebrew language” (sec. 5(a)(5)), and “renounced his prior nationality or has proved that he will cease to be a foreign national upon becoming an Israel national” (sec. 5(a)(6)). I am of the opinion that in so burdening the spouse, the Minister of the Interior went too far in the scope of his broad discretion. If that is so in general, it is all the more so when that policy was presented to the Court – even then, only orally – without our hearing that it is subject to some or other exceptions.

84.       Thus we find that, in accordance with sec. 7 of the Law, in considering an application for naturalization by a spouse, the Minister is authorized to waive the condition of permanent residence, and for good reason. Acquiring the right to permanent residency generally involves a long waiting period, and one might argue that the Law impliedly asks that we exempt a spouse from a long waiting period prior to naturalization. However, in practice, the policy established by the Minister of the Interior ignores this directive of the legislature by imposing nearly a six-year waiting period upon a spouse before considering his application for naturalization. Even if we were willing to accept this policy in regard to the right to permanent residency, we are hard pressed to distinguish how the Minister intended to be lenient toward a spouse, as the Law directs (in principle). The legislature asked that we not be strict with the spouse of an Israeli citizen, and rather than establishing rigid conditions and fixed time periods – the conditions established under sec. 5(a) of the Law – the Minister of the Interior was asked to weigh a more lenient approach, in accordance with each person’s circumstances and a predetermined policy. Yet the Minister of the Interior hardened his heart against the spouse as if he were a regular applicant for naturalization.

            Moreover, we were not informed of the establishing of any exceptions to the policy, and a policy without exceptions is like bearings without lubricating oil. Just as the latter will not work and will quickly burn out, so it is in regard to the policy as well. Imagine a couple living in Israel for four years, with three children. The husband is a civil servant, and the wife is a senior industrial and management engineer in an industrial factory. Are we seriously going to say that they must wait more than a year before the Minister of the Interior will begin to consider whether to grant this non-Jewish woman citizenship?

            We are not saying – and would not say – that the spouse of an Israeli citizen is entitled to automatic citizenship. By nature, some period of time is required until the authorities decide to grant citizenship to the alien spouse, and even in establishing a policy, the time periods may differ from one matter to another. However, it is hard to accept that the Minister of the Interior has established a rigid requirement of a waiting period of more than five years before he is willing to begin considering an application for naturalization submitted by the non-Jewish spouse of an Israeli citizen. The legislature showed us the way, and we may not stray from it.

85.       In conclusion, it would appear to us that when an alien spouse, married to an Israeli citizen, submits an application for naturalization, the Minister of the Interior may not rigidly condition the examination of that application upon the conclusion of the graduated test and the obtaining of permanent residency as a necessary prerequisite. We should also bear in mind, and not forget, that we are not only concerned with the right of that non-Jewish, alien spouse. We are also concerned with the right of the Israeli spouse, and his desire that his spouse, who lives with him and their children in Israel, enjoy equal rights to those around her. The Minister of the Interior holds discretion as to how and when to decide, but establishing a rigid framework of nearly six years until he is willing to begin examining a foreign spouse’s application for naturalization pushes the Minister of the Interior’s discretion beyond the established boundaries of his authority. Indeed, the Minister of the Interior is authorized to establish a minimum time period (“TIG” in colloquial usage), and it is but natural that the authority will establish internal directives for the average case. But the directives that the Minister established for himself do not meet the tests of reasonableness and proportionality.

Regarding registration of the marriage in the Population Registry

86.       Some of the Petitioners further request that we direct the Minister to register their marriages in the Population Registry. Inasmuch as, in any case, we are going to remand the matter of the Petitioners to the discretion of the Minister of the Interior, a separate discussion of the issue of registration is not appropriate at this time. The Minister will carry out his examination and decide, and the doors of this Court will remain open to anyone who believes that he has been wronged.

Conclusion

87.       At the outset of our journey, we presented four questions that required decision (see para. 3, above). Now, at the end of the voyage, we will present the main points of our conclusions:

            A.        The right of return: We have found that the right of return is granted only to the family members of Jews prior to their immigration to Israel. In other words, Jews who are citizens of Israel – whether by birth, or after realizing their right to return – cannot grant the right of return to their non-Jewish spouses. We should, however, bear in mind that aliya [immigration] to Israel is not necessarily a clear-cut process. In some cases, the process may be prolonged, and there may be instances in which we will have to apply the Law flexibly in regard to couples whose matter is being considered (see the end of para 24, above).

            B.        (1)        The Ministry of the Interior’s policy in regard to aliens who marry Israelis while they (the aliens) reside in Israel without a permit does not meet the proportionality test, and it is therefore unlawful and void. The Ministry of the Interior’s requirement – as a matter of policy – that the alien spouse leave the country for a number of months while the legitimacy of the marriage is investigated is not consistent with the fundamental principles of a democratic regime that is concerned for civil rights.

                        (2)        Nevertheless, in a case in which the alien spouse resided in Israel without a permit, the Ministry of the Interior may be strict with the couple, and demand a higher-than-usual degree of proof of the legitimacy of the marriage. This higher level of proof will apply all the more so in cases in which deportation proceedings have commenced, and the alien spouse seeks to legitimize his stay in Israel on the basis of that marriage.

                        (3)        In those cases in which the fictitious character of the marriage is manifest without need for in-depth examination and investigation, the Ministry of the Interior may demand that the alien spouse leave the country prior to conducting a comprehensive examination of the legitimacy of the marriage.

                        (4)        In any case, the State is under an obligation to hear the spouses and permit them to persuade the authority of the legitimacy of their marriage. No decision as to the legitimacy of the marriage can be made before the couple has been afforded an opportunity to fully present its case.

                        (5)        The above addresses only the legitimacy of the marriage. Needless to say, the Ministry of the Interior is authorized to weigh considerations other than the legitimacy of the marriage, such as considerations concerning a criminal record, danger to public safety, and other such overriding considerations.

                        (6)        If, following a comprehensive examination, the Ministry of the Interior concludes that the marriage was merely a fiction, it may deport the alien from the country, subject to his right to challenge that deportation before a court.

                        (7)        It would be appropriate for the Ministry of the Interior to compose its policy in detailed, written form, and that the internal directives that it establishes be published.

            C.        The arrangements for the alien spouse’s stay in Israel should be set out in regulations, or at the very least, the Ministry of the Interior must establish them as internal directives that will be published to the public at large.

            D.        (1)        Naturalization of the alien spouse: The Minister of the Interior is authorized to establish a policy – which must be published – under which the alien spouse will be granted citizenship at the conclusion of a reasonable period that will be decided, and upon fulfilling the necessary preconditions. Needless to say, the Minister of the Interior must consider each application for naturalization on its merits, in accordance with its special circumstances, and in accordance with the established policy. In the absence of special reasons, the Minister of the Interior may not condition the commencement of the examination of the application for naturalization upon the passage of the time period required for the granting of permanent residency to the alien spouse.

                        (2)        In the framework of his general policy, the Minister of the Interior may establish a minimum time period for responding to the application of the alien spouse for naturalization, and needless to say, that time period must meet the proportionality test.

            E.         We were not required to decide upon the question of the time period required for the granting of permanent residency, nor upon the question of the registration of the marriage.

88.       We have decided the fundamental legal issues without expressing our opinion as to each individual petitioner. We now further order that the matters of the Petitioners before the Court be remanded to the examination and consideration of the duly authorized agency, which shall decide upon the matter of each one of them in accordance with the decisions made in this judgment. Needless to say, the doors of this Court stand wide open – and shall always be so – for any who may be in distress.

89.       The matter of Jorge Arnulf (HCJ 8016/96) raises the particular problem of a non-Jewish alien who married a Jewish Israeli citizen, where the Rabbinical Court has declared that marriage void. This petition raises additional problems that do not arise in the others, and the Ministry of the Interior must, therefore, consider this petitioner’s request in light of all the circumstances of his case in their entirety.

            Here we shall conclude.

90.       We order that the orders nisi be made absolute in all that relates to the policy of the Minister of the Interior’s policy in regard to the treatment of the application of an alien residing in Israel without a permit who married an Israeli, and in all that regards the Minister of the Interior’s policy on the subject of granting citizenship to a non-Jewish alien married to an Israeli – all as explained and detailed in our opinion hereinabove. The Respondents shall pay the legal fees of the Petitioners in each of the petitions in the amount of NIS 10,000.

 

Justice D. Dorner:

            I concur.

 

Justice D. Beinisch:

            I concur.

 

            Decided in accordance with the opinion of Justice M. Cheshin.

 

            This 18^th day of Iyar 5759 (May 4, 1999).

 

 

 

 

 

 

 

 

 

                       

 

 

 

 

 

 

C.A. 238/53

 

           

AHARON COHEN and BELLA BOUSSLIK

v.

THE ATTORNEY-GENERAL

 

 

In the Supreme Court sitting as a Court of Civil Appeal

[January 15, 1954]

Before Cheshin J., Silberg J., and Sussman J.

 

 

 

 

Family law - Husband and wife - Form of marriage ceremony - Impediment of marriage - Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953 - Alteration of substantive rights - No retrospective effect - Declaratory order.

 

                The appellants, Aharon Cohen and Bella Bousslik, went through a  form of marriage ceremony in the office of their advocate. They had previously requested the Rabbinate to marry them but since the petitioner, Cohen, was regarded as of, Priestly stock and Bella Bousslik was a divorcee, the Rabbinate refused to solemnize their marriage because of the Biblical injunction forbidding the marriage of a "Cohen" and a divorced woman.

               

                The office of the Registration of Inhabitants refused to register Cohen as a married man and the appellants then sought a declaration in the District Court that they were lawfully married. After the case had been heard but before judgment, the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, was passed by the Knesset. Section 1 of this Law1⁾ confers exclusive jurisdiction in matters of marriage of Jews in Israel, being nationals or residents of the State, upon the Rabbinical Courts. The District Court declined to make the declaration sought, and the appellants appealed.

           

            Held by a majority (Silberg and Sussman JJ.)

               

1) As the Rabbinical Courts Jurisdiction (Marriagge and Divorce) Law, 1953, alters substantive rights it does not operate retrospectively and the District Court had jurisdiction to make the order sought.

 

2) Notwithstanding the Biblical prohibition of a marriage between a "Cohen" and a divorcee, once such a marriage has been entered into in a manner recognised by Jewish law, that law regards them as husband and wife.

 

3) In the present case the marriage had been entered into in a manner recognised by Jewish law (by the intended husband handing the intended wife something of value, namely, a ring, in the presence of two witnesses) and accordingly the petitioners were entitled to the declaration sought.

 

Held by Cheshin J. dissenting:-

 

1) The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, affected procedure only, and operated with retrospective effect, and the District Court accordingly had no jurisdiction.

 

2) The granting of a declaratory order is a matter within the discretion of the courts and in the circumstances of the present case that discretion should be exercised against the petitioners and the order refused.

 

Palestine cases referred to:

 

(1)   C.A. 22/42 - Olga Waldar (also known as Azgour) v. Samuel Azgour and Another; (1942), 9 P.L.R. 328.

(2)   Cr. A. 4/38 - Abdul-Rahim Muhammad Nassar v. Attorney-General;(1938), 5 P.L.R. 65.

(3)        Cr. A. 6/38 - Issa Jaber Abou Iswai v. Attorney-General;(1938), 1 S.C.J. 64.

(4)        C.A. 158/37 -Leib Neussihin and Others v. Miriam Neussihin ; (1937), 4 P.L.R. 373.

(5)   C.A. 240/37 - Palestine Mercantile Bank Ltd. v. Jacob Fryman and Another; (1938), 5 P.L.R. 159.

(6)        H.C. 22/39 - Zussman Stark v. Chief Execution Officer, Tel Aviv and Another; (1939), 6  P.L.R. 323.

(7)   L.A. 136/26 - Saleh Salah Hamdan and Others v. Ma'mour Awkaf Nablus and Another; (1926), 3 C.O.J. 1119.

(8)   H.C. 76/36 - Josef Babayoff v. Chief Execution Officer, Jerusalem and Another; (1936), 4 P.L.R. 19.

(9)   C.A. 92/42 - Municipal Council of Jerusalem v. Hevrat Harchavat Hayishuv B'eretz Israel; (1942), 9 P.L.R. 503.

(10) C.C. 117/45, Tel Aviv-Moshe Nathaniel v. Joseph Cohen and Others; (1945), S.D.C. 695; C.A. 5/46 - (1947), 14 P.L.R. 313 (on appeal).

(11) C.A. 190/35 - Esther Banin v. Moshe Banin; (1936), 3 P.L.R. 71.

(12) H.C. 5/42 - Israel Rokach v. The District Commissioner, Lydda District, Jaffa and Others; (1942), 9 P.L.R. 191.

(13) H.C. 1/37 - Rivka Silberstein and Others v. Constable in Charge of the Police Lock-up, Haifa and Another; (1937), 1 S.C.J. 13.

(14) Motion 190/43, Jerusalem - Dr. Raphael Ossorguine and Others v. The Hotzaah Ivrith Ltd.; (1943), S.D.C. 144.

(15) C.C. 267/47, Tel-Aviv - Mordechai and Le'ah Levin v. Local Council Ramat Gan; Hamishpat, (1948), Vol. 3, 296.

 

Israel cases referred to:

 

(16)      H.C. 149/51 - Zigfrid Garler v. Maya Garler and Others; (1951), 5 P.D. 1399.

(17) H.C. 293/52 - Edna Amitsaur v. Chief Execution Officer, District Court, Tel Aviv and Others; (1953), 7 P.D. 98.

(18) Cr. A. 122/51 - Dov Ben-Avraham Ogapel and Others v. The Attorney-General; (1951), 5 P.D. 1672.

(19) Cr. A. 121/51 - David Epstein v. The Attorney-General, (1953), 7 P.D. 169.

(20) H.C. 71/49 - Izhak Kwatinski v. District Commissioner, Jerusalem and Others; (1950), 4 P.D. 815.

(21) C.A. 26/51 - Shimon Cotic v. Tsila (Tsipa) Wolfsohn ; (1951), 5 P.D. 1341.

(22) A. v. B. Appeal No. 1/60/706; (1950), Rabbinical Courts of Appeals (Collected Judgments), p. 132.

 

English cases referred to:

 

(23)      Marie Tilche Sasson v. Maurice Sasson; [1924] A.C. 1007.

(24)      Abbot v. The Minister for Lands; (1895), 72 L.T. 402.

(25)      Hitchcock v. Way; (1837), 112 E.R. 360.

(26)      In re Athlumney; Ex parte Wilson; [1898] 2 Q.B. 547.

(27)      In re Joseph Suche and Co., Limited (1875), 1 Ch.D. 48.

(28)      Hutchinson v. Jauncey; [1950] 1 All E.R. 165; [1950] 1 K.B. 574.

(29) Republic of Costa Rica v. Erlanger; (1876), 3 Ch. D. 62.

(30)      The Colonial Sugar Refining  Company, Limited v. Irving; [1905]    A.C. 369.

(31)      Guaranty Trust Company of New York v. Hannay and Company; [1915] 2 K.B. 536.

(32)      Richardson v. Mellish; (1824), 130 E.R. 294.

(33) Sasty Velaider Aronegary and his wife v. Sambecutty Vaigalie and others; (1881) 6 App. Cas. 364.

(34)      H. (otherwise D.) v. H.; [1953] 2 All E.R. 1229.

(35)      Leeds and County Bank, Ltd. v. Walker; (1882-3), 11 Q.B.D. 84.

(36)      James Gardner v. Edward A. Lucas and Others; (1878) 3 App. Cas. 582.

(37)      Kimbray v. Draper; (1868), L.R. 3 Q.B. 160.

(38)      Wright v. Hale and Another; (1860), 3 L.T. 444.

(39)      Warne v. Beresford; (1837), 150 E.R. 1002.

(40)      The Ironsides; (1862), 6 L.T. 59.

(41) Hamilton Gell v. White; [1922] 2 K.B. 422.

(42) Grand Junction Waterworks Co. v. Hampton Urban District Council; [1898] 2 Ch. 331.

(43) Dyson v. Attorney-General; [1911] 1 K.B. 410.

(44) Burghes v. Attorney-General; [1911] 2 Ch. 139.

(45) Russian Commercial and Industrial Bank v. British Bank for Foreign Trade, Ltd.; [1921] 2 A.C. 438.

(46)      Gray v. Spyer; [1922] 2 Ch. 22.

(47)      Thomas v. Attorney-General; (1936), 155 L.T. 312.

(48)      Har-Shefi v. Har-Shefi; [1953] 1 All E.R. 783.

(49)      Roesin v. Attorney-General; (1918), T.L.R. 417.

 

American case referred to:

 

(50)      Harril v. American Home Mortgage Co.; 1 Corp.Juris Sec., p. 1025.

 

South African case referred to:

 

(51) Martens v. Martens ; [1952] 3 S.A. L.R. 771.

 

Ganor for the appellants.

Weinberg, Deputy State Attorney, for the respondents.

 

SILBERG J. The subject of the appeal before us is the determinatian of the legal significance of an unusual act, namely the solemnization of the marriage of a Jew and a Jewess not in the Office of the Rabbinate, but in an advocate's office, by an advocate, after the Office of the Rabbinate had refused to solemnize it on the ground that it was contrary to Jewish law.

 

2. The particulars in the case are set out below. They present such a tangle of questions of law and fact, of law and ceremonial, of Jewish law and that of the State of Israel, that it is desirable to set them out in a detailed and systematic way:

 

            (a) The first appellant, Aharon Cohen, and the second appellant, Bella Bousslik, are Israeli Jews not figuring in the list of adult members of the Jewish Community of Palestine (Knesset Yisrael).

           

            (b) In 1949, the first appellant applied to the Offices of the Rabbinate in Tel Aviv and Ramat Gan for the solemnization of his marriage to the second appellant, who had shortly before been divorced from her husband by a bill of divorcement, in accordance with Jewish law. The appellant stated that in spite of his name Aharon Cohen1⁾, which suggested he was a descendant of Aharon the High Priest, he was not a priest and, therefore, the Biblical prohibition of the marriage of a man of priestly stock and a divorced woman (Leviticus XXI, 7) did not apply to him. The statement, however, did not satisfy the Rabbis, and they refused to grant his application.

           

            (c) In view of this refusal, the appellants proceeded to live together as man and wife in the same dwelling; they regarded themselves for all purposes as husband and wife and were reputed to be husband and wife by all their acquaintances. This state of things lasted until August-September 1952. About that time, the first appellant again applied to the Chief Rabbinate of Tel Aviv for permission to marry the second appellant, reiterating his claim that he was not of priestly descent. The learned Rabbis considered the application - this time not in their capacity as an Office of the Rabbinate, but as a Rabbinical Court - heard argument, took evidence, and ultimately rejected the application on the ground that the first appellant was at least "possibly of priestly descent" and could not, therefore, be granted permission to marry a divorcee.

           

            (d) A rumour then reached the appellants - we do not know how - that the rabbinical prohibition might be circumvented by the performance of a religious ceremony outside the Office of the Rabbinate, and they asked Mr. David Ganor, an advocate, to perform the ceremony for them. Mr. Ganor consented. He at first published a notice in two local newspapers to the effect that Mr. Aharon Cohen, "who is divorced and at liberty to marry", proposed to marry Mrs. Bella Bousslik, "who is divorced and at liberty to marry"; that the marriage would take place on December 16, 1952, "at an advocate's office in Tel Aviv"; and that "anyone being aware that either of the parties is disqualified from marrying the other may notify the advocate's secretary, Miss Haya Tomashin, to such effect."

 

            (e) When no opposition had been lodged with the aforementioned Miss Tomashin, Mr. Ganor, on December 16, 1952, prepared to perform the marriage ceremony. There appeared in his office the groom and bride, together with two witnesses specially invited for the purpose (Fisher and Hirsh), and two uninvited witnesses, namely, two police sergeants (Katz and Pachter) of the Investigation Branch of Tel Aviv District Headquarters, who had come to watch the "irregular" ceremony as guardians of the law, and were prepared to take part in it themselves as witnesses to the marriage. In the presence of all four witnesses, the first appellant took a gold ring from his pocket and gave it to the second appellant, saying as he did so: ''You are sanctified to me by this ring in accordance with the Law of Moses and Israel." Moreover - as he has explained to us, to enhance the validity of the proceedings - Mr. Ganor had the appellants and the two invited witnesses sign a special document - "special" in a twofold sense - styled by him "marriage deed (and settlement)". This deed certifies that "I, Aharon Cohen, do this day take Mrs. Bella Bousslik to wife by 'acquisition', that is to say, I sanctify her to me by a ring, etc.", and that "I, Bella Bousslik, after Aharon Cohen has taken me to wife this day ....hereby affix my signature to this deed to signify my consent to the marriage etc." The declarant, Aharon Cohen, further says in the deed: "As a settlement in accordance with age-old Jewish custom, I allocate to my wife, Bella Bousslik, an amount of IL. 5,000.-". This brief passage ostensibly justifies the description "settlement", which, as we have seen, figures (in brackets) at the top of the document. This is how the appellants' marriage ceremony was held - a marriage ceremony without a canopy, for a canopy, for some reason, was not put up either in or outside the advocate's office.

 

            (f) Some days after this ceremony the first appellant asked the Office of the Registration of Inhabitants of Tel Aviv at Hakirya to enter the change of his personal status from "single" to "married" in his identity booklet, but that office refused to do so on the ground that the marriage was not legal and not recognised by law.

           

            (g) Following this refusal, the appellants filed an application by way of motion against the Attorney-General in the District Court of Tel Aviv, asking for a judgment declaring that they were married one to the other. This application was accompanied by various sworn declarations - by the appellants (the applicants) themselves, by the invited witnesses to the marriage (Fisher and Hirsh) and by Mr. Ganor- certifying the main facts stated above. In connection with another application, for the early hearing of the case, a further sworn declaration was submitted by the first appellant (the first applicant), containing two paragraphs which give a hint, and perhaps more than just a hint, of the background of the matter. These two paragraphs read as follows :

 

            "6. Owing to the non-recognition of our marriage by the competent authorities, we are denied certain commodities, such as those due to the head of the family on a special ration card, and various income tax facilities. We are further caused unpleasantness when staying at an hotel in another town, since our identity booklets make us appear as unmarried people; this is most distressing for us.

 

            7. The non-recognition of our marriage threatens the economic security of one of us in the event of the death of the other, since only a person whose marriage is recognised shares in the inheritance of the other."

 

            (h) And now for the two other particulars which, although of a legal character, belong to this recital of facts. They are - if one may use the expression - two legal "facts", which, in the opinion of the court below determined the case against the applicants-petitioners  - the Jerusalem Ban, and the Marriage and Divorce Law.

           

(aa) The Jerusalem Ban. At the end of the winter of 1949, a national conference of Rabbis met in Jerusalem which, with the sanction of the Chief Rabbinate, considered and approved various rules of matrimonial law designed to regulate certain matters and to obviate certain difficulties in connection with matrimony and the solemnization of marriages. These rules contain the following paragraph :

 

''We prohibit every Rabbi or other person in Israel from solemnizing marriages, unless he has been authorised and appointed to perform this function by the writ and signature of the Chief Rabbis of the towns of Eretz Israel."

 

The rules conclude as follows:

 

            "These rules have been made by the Assembly of the Enlarged Council of the Chief Rabbinate of Israel. The sanction against anyone breaking these rules is the imposition of a ban to be applied - as it has always been applied - with the full severity of the rules made by the Rabbis in Israel for all communities in Israel... and they shall be observed according to the letter until the Redeemer comes to Zion. The offender against any of them shall suffer the penalties of excommunication, ban and curse."1⁾

 

            These rules thus impose a ban on anyone solemnizing a marriage without being authorised to do so by the local rabbi and this ban, as appears from an earlier passage of the rules, applies to anyone "assuming the function of a witness to such a marriage." The act under consideration is thus affected by the ban both as regards the part played by the advocate and by the invited witnesses.

           

(bb) The Marriage and Divorce Law. The application in question was filed in the court below on January 1, 1953, and judgment was given on October 4, 1953. Between these two dates an important event took place. The Knesset enacted the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, which came into force on the date of its publication in the Official Gazette, i.e. on September 4, 1953 - exactly one month before the date of the judgment. I refer to Section 1, which enacts:

 

            "1. Matters of marriage and divorce of Jews in Israel, being nationals or residents of the State, shall be under the exclusive jurisdiction of rabbinical courts."

           

            From that date, it is quite immaterial whether or not the parties are members of the Jewish community of Eretz Israel, and it appears, at least prima facie - and this was also the opinion of the learned judge in the court below - that if the application had been filed after the coming into force of the said Law, the District Court would not have been competent to deal with the matter.

           

3. The Court below considered the application of the appellants, and rejected it after extensive discussion of the relevant Jewish law. I shall later revert to the reasons for the judgment. For the time being, it is sufficient to point out that the learned judge arrived at the opinion that of all the three ways in which a woman is 'acquired', "by money, by deed or by intercourse," (Kiddushin, I, 1) the most valid one in this case seems to have been the first, the 'acquisition' by something of value, but that method too was of doubtful validity, in view of the opinion expressed in rabbinical literature that a marriage performed in contravention of any ban (which applies also to the witnesses) is null and void, since the violation of the ban disqualifies the witnesses, and the marriage thus becomes one contracted without witnesses, which is invalid "even if both parties affirm that it has taken place" (Kiddushin 65^a; Shulhan Aruh, Even Ha-Ezer, 42, 2). This was considered to apply to the present case, too ; as a result of the Jerusalem Ban, the witnesses were disqualified; the disqualification of the witnesses entailed the nullity of the marriage - not only in form but in substance - so that it could not be recognised in a civil court either.

 

            The learned judge was not quite positive on this point. He did not overlook the fact that other authorities oppose the view just set out, whether as regards the disqualification of the witnesses or the resulting nullity of the marriage, but the result of this conflict of views is, in his opinion -

           

            "that considering the possible disqualification of the witnesses, the solemnization following the payment of something of value must be regarded as of doubtful validity and cannot be pronounced valid."

 

            The same doubt, though for other reasons, was expressed by him with regard to the validity of the solemnization by consummation. He sums up his remarks saying that since "not more has been proved than allows us to declare that the second applicant (the second appellant) is possibly married to the first applicant (the first appellant)", therefore, 'as it cannot be said with certainty that there has been no solemnization... it cannot be held, either, that the parties are married to each other."

           

            For this reason alone the learned judge was about to reject the application. But before he was able to pronounce judgment, the second legal fact mentioned came into existence, namely, the promulgation of the Rabbinical Courts (Marriage and Divorce) Law, 1953; and this was an additional, independent ground for rejecting the application. The opinion of the learned judge was that in view of the provision contained in section 1 of the Law, he no longer had power to decide upon the application, although the proceedings had begun before the passing of the Law.

 

            The learned judge thus placed his judgment on a two-fold basis.He rejected the application for lack of jurisdiction or, alternatively - in case the court of appeal should find that he had been competent to consider and determine the matter - on substantive grounds. It is against this judgment, and the two grounds upon which it is based, that the appeal before us is directed.

 

4. I shall first deal with the question of jurisdiction, the answer to which will open or close the door to the remaining questions which arise. That question falls into three parts:

 

(a)    Was the District Court competent to deal with the application when it was first filed, before the promulgation of the Marriage and Divorce Law?

 

(b)   Would the District Court have been competent to deal with the application had it been filed after the promulgation of the Marriage and Divorce Law?

 

(c)    If the answer to the first question is 'yes', and to the second 'no', how are we to decide a case where, as here, the application was filed before, but determined after, the promulgation of that Law?

 

5. I begin with the second question, declaring at once that, in my opinion, the answer to it must be a definite 'no'. Section 1 of the Marriage and Divorce Law provides that "matters of marriage and divorce of Jews in Israel, being nationals or residents of the State, shall be under the exclusive jurisdiction of rabbinical Courts." Now a declaration of the validity of a marriage is undoubtedly a "matter of marriage"; the parties in this case are Jews and nationals and residents of the State, and the first that they are not members of the Jewish Community of Eretz Israel is now irrelevant, since section 1 is principally designed to abolish the distinction between members and non-members of the Jewish community of Eretz Israel. This being so, exclusive jurisdiction over an application of this kind is today vested, by virtue of that Law, in the Rabbinical Courts, and the District Courts will not in future have power to entertain such an application.

 

            Our attention has been drawn to the judgment given by the Supreme Court in the case of Waldar (Azgour) v. Azgour (1), which seemingly contradicts the opinion I have just expressed; but that judgment is irrelevant here and has no bearing at all, even by way of analogy, on the question before us. It merely establishes, in reliance on the judgment of the Privy Council in Samson v. Samson (23), that the declaration of the validity of a divorce already effected is not a judgment of divorce (which cannot be granted to foreign nationals in view of Article 64(i) of the Palestine Order in Council 1⁾, but it does not say anywhere that such a declaration is not even a "matter of divorce" (within the meaning of Article 51 of the Order in Council), and there can be no doubt that the Supreme Court regarded that declaration as such a matter. Logic demands that we should hold that a declaration of the validity of a marriage must be regarded as a "matter of marriage". Is it possible that such a declaration, which ordinarily serves as the basis for the very existence of the matrimonial relationship of the couple, should not be regarded as a "matter of marriage" within the meaning of section 1 of the said Law or of Article 53(i)2⁾ of the Order in Council? It might well be said that both legislators, the Palestinian and the Israel, in referring to a "matter of marriage", meant first and foremost the making of such declarations. The least that can be said is that they certainly had no intention of excluding these declarations from the scope of that term. We can thus say that the declaration requested by the appellants is a "matter of marriage" within the meaning of section 1 of the Marriage and Divorce Law and that, if the application had been filed after the promulgation of the said Law, the District Court would undoubtedly not have been competent to deal with it.

 

6. It seems to me, on the other hand, that the answer to the first question should be in the affirmative, i.e. that during the period between January 1, 1953 (the date of the filing of the application) and September 4, 1953 (the date of the coming into force of the Marriage and Divorce Law) the District Court was competent to consider and determine the application of the appellants. The sole reason for this is that the parties were not members of the Jewish Community of Eretz Israel and that, therefore, the provisions of Article 53(i) of the Palestine Order in Council did not apply to them. It is true that I doubted, even before the promulgation of the Marriage and Divorce Law, the validity of the distinction between a member and a nonmember of the Jewish community of Eretz Israel, regarding the distinction as having lost its content immediately with the establishment of the State. However, it was then an accepted legal principle in Israel, and was adopted by this Court, although with various reservations and qualifications, even in cases which occurred after the establishment of the State (see Garler v. Garler (16), Amirsaur v. Chief Execution Officer (17), and others). We are thus not entitled to depart from this principle, and have to decide that before the promulgation of the Marriage and Divorce Law, i.e., until September 4, 1953, the District Court was certainly competent to consider and determine the application.

 

7. There thus arises the third of the above questions, namely, whether or not, in view of the fact that the application was filed before the promulgation of the Marriage and Divorce Law, the District Court was competent to decide upon it even after the promulgation of that Law, or, in more technical language, whether or not the provision in section 1 of the Marriage and Divorce Law is a retroactive provision which deprives the court of jurisdiction, even in actions begun before the promulgation of the Law.

 

8. Ostensibly, this problem may be solved by reference to certain basic rules governing the interpretation of statutes, that is, to the well-known distinction between substantive and procedural Laws. It is generally known that a new substantive Law, which changes the rights and obligations of a person, is entirely prospective, that is to say, unless the Law itself makes explicit or implicit provision to the contrary, it is presumed to operate prospectively and not retrospectively, and not to affect the rights that were vested in the parties at the time the proceedings began (for an interpretation of the term "vested right" or "right accrued", compare the judgment of the Privy Council in Abbot v. The Minister for Lands (24)). As regards a procedural Law, however, which changes the modes of procedure of the court, it is presumed that it operates retrospectively, that is to say, that the court is obliged to follow it even with regard to proceedings begun before its promulgation. This is an accepted principle which has found its expression in very many English judgments. I cite a few instances.

 

            "Where the law is altered, by statute, pending an action, the law as it existed when the action was commenced must decide the rights of the parties, unless the Legislature, by the language used, show a clear intention to vary the mutual relation of such parties." (Hitchcock v. Way (25).)

           

            "Perhaps no rule of construction is more firmly established than this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only." (Per Wright J., in re Athlumney, Ex parte Wilson (26).)

           

            "...it is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them... there is one exception to that rule, namely, that where enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights." (Per Jessel M.R. in re Joseph Suche and Company Ltd. (27), vide Hutchinson v. launcey (28) at p. 168.)

           

            The gist of the idea of the retroactivity of new procedural provisions of law has been expressed by Lord Justice Mellish in one short, simple and clear sentence:

           

            "No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done." (per Mellish L.J. in Republic of Costa Rica v. Erlanger (29).)

           

            This and only this is the reason why a change in procedural law differs from a change in substantive law with regard to the question of retroactivity. The underlying consideration is that procedure is not a personal matter of the litigant; it is, so to speak, a preserve of the court, and therefore, if it is changed by the legislator, the change will operate also with regard to those parties who began to litigate before the change occurred.

           

9. But what I have said does not by itself provide a solution to our problem - therefore I have used the expression "ostensibly". The next and more difficult question is: what is the nature of the innovation introduced by the Marriage and Divorce Law, and must not the transfer of jurisdiction from the civil court to the religious court be here regarded as a fundamental change in the substantive law of the State? Not everything relating to court procedure is a procedural matter within the meaning of the above distinction. For instance, the right of appeal, a matter with which the court is unconcerned, is regarded, for the purposes of the principle in question, as a substantive right, and a new Law withdrawing it will not as a rule affect the position of a party whose case in the lower court began before the promulgation of that Law (see the judgment of this court in Ogapel and Others v. The Attorney-General (18), and Epstein v. The Attorney-General (19), and the judgment of the Privy Council in Colonial Sugar Refining Company v. Irving (30)).

 

10. But before embarking upon a discussion of this question let us see whether a solution to it cannot be found in the statute law of this country. I am thinking of section 17 of the Interpretation Ordinance,1945. Subsection (2) of that section provides :

 

"(2) Where any enactment repeals any Law, such repeal shall not, unless a contrary intention appears,-...

 

(c) affect any right, privilege, obligation or liability, acquired, accrued, or incurred, under any law so repealed ; or

 

(d) affect any penalty, forfeiture, or punishment, incurred in respect of any offence committed against any law so repealed ; or

 

(e) affect any investigation, legal proceeding, or remedy, in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, as aforesaid, and any such investigation, legal proceeding, or remedy, may be instituted, continued, or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing enactment had not been passed, made or issued."

 

Thus the text of the Law, as far as it is relevant to our case.

 

11. If the above section 17 (2) (e) did not use the words "may be instituted", there would be no doubt whatever in my mind that the provision of subsection (e) definitely solves our problem. The proceeding which began in the District Court under the old Law (the Order in Council) which empowered that Court to deal with matters of marriage of Jews not being members of the Jewish Community of Eretz Israel, is certainly a "legal proceeding", and consequently may "be continued" by virtue of the provision of subsection (e), until the passing of judgment, as if the "repealing enactment", i.e. section 1 of the Marriage and Divorce Law, "had not been passed, made or issued". But how are we to interpret the words "may be instituted" ? It is certain, as I have mentioned in para. 5 above, that today, after the promulgation of the Marriage and Divorce Law, the District Court is not competent to entertain proceedings in matters like the one in question. Now, if that is so, do not those words indicate that the reference is to a legal proceeding which has not been changed by the new Law, and which concerns a substantive right which has been so changed, and not to a legal proceeding which has itself been changed by the new Law ? For the legislator could not have permitted the institution of a legal proceeding under the old law unless he had in mind a change in the substantive, not the procedural, law.

 

            I think that this line of reasoning is not convincing. The simple solution is that the legislator had in mind two things: a change in the substantive law and a change in the procedural law. In the case of the former, a proceeding of the kind referred to in the Ordinance may be instituted and continued; in the latter case such a proceeding may of course be only continued, where it was begun before the promulgation of the new Law. The conclusion is that where, as in the present case, the new Law withdraws jurisdiction from one court and transfer it to another court or tribunal, this transfer of jurisdiction does not affect a proceeding begun previously, and the court may continue it until it has given judgment.

           

            Explicit proof of this is to be found in two judgments given by the Supreme Court in the Mandatory period, and to which the Attorney -General, most fairly, has drawn our attention, namely, Nassar v. Attorney-Jeneral (2), and Iswai v. Attorney-General (3). The question in those cases was whether, in view of a new Law which withdrew the power to deal with a certain offence from the District Court and vested it in the Military Court, the District Court was still permitted to try the accused, whose case had been referred to it prior to the promulgation of that Law. The court decided that it was. It reached this decision on the strength of section 5(1) of the Interpretation Ordinance, 1929 (Laws of Palestine, cap. 69), which agrees almost word for word with the above-quoted s. 17(2) of the Interpretation Ordinance, 1945. Some support for this view may, on close scrutiny, be found also in the dicta of Justice Dunkelblum in Kwatinski v. District Commissioner (2).

           

12. But even one who does not agree with the interpretation given above to section 17(2) (e) or consider himself bound by the two judgments rendered during the Mandatory period will in the present case arrive at the same conclusion, for the reason referred to in para. 9 above. I am of the opinion that the transfer of jurisdiction from a civil court to a religious court, in the course of the proceedings, would in effect be a substantive change in the legal position of the litigant. Let us not be unduly influenced by terms and concepts of alien origin, but try to see things in the light of our own realities. The additional authority granted to the Rabbinical Courts with the promulgation of the Marriage and Divorce Law was not authority for authority's sake, but authority for the purpose of a change in content in order to ensure the correct application of a particular law, namely, the Jewish law. They said "the vessel" and meant its contents1⁾ It was contended that it was immaterial who dealt with matters of marriage of the citizen so long as the law according to which they were dealt with was the Jewish religious law. But this contention was not accepted by those who fought for the adoption of the new Law, and from their point of view they were quite right. Jewish law as applied by a civil court is different from Jewish law as applied by a religious court. There is a difference in approach, in method, and sometimes also in the actual content of the judgment. For instance : in a civil court, everyone, even the party himself, may be a witness, while not everyone is qualified to give evidence in a religious court (see. e.g., the many categories of persons disqualified as witnesses enumerated in Shulhan Aruh. Hoshen Mishpat, 33 to 37). In Jewish law, "two are equivalent to a hundred", that is to say, if a hundred witnesses state that the husband is dead, and two state that he is not, the wife may not remarry, because she is possibly still bound to a living husband ; and if she has already remarried, she must be released from the new husband's control (Shulhan Aruh, Even Ha-Ezer, 17, 46; Ba'er Heitev, ibid. 127); the religious court may under no circumstances declare the absolute validity of the new marriage. But if (before the promulgation of the new Law) a civil court had had to deal with such a question, it would certainly have preferred the testimony of a hundred reliable witnesses and decided that the new marriage was valid.

 

            Yet, it is not only because of the different rules of evidence, but also because of the different approach to the substance of the case that the judgment of the civil court will not always be the same as that of the religious court, though both purport to deal with the matter according to Jewish law. One of the reasons for this is a different attitude towards the accepted principles of private international law, which require the recognition of the validity of legal acts done in the past, outside the territory of the State and under a foreign law, such as the national law of the parties or the law of their place of residence, and similar matters to be taken into consideration. The religious court regards itself as completely free from these "cramping" rules ; it extends the application of the religious law - a priori and unrestrictedly - to acts performed in the past by foreign nationals outside the boundaries of the State, and it is permitted so to do (Neussihin v. Neussihin (4)) ; the civil court, on the other hand will, to some extent at least, take those rules into account, even if it deals with the matter, in principle, according to Jewish law.

 

            In short: the differences between the jurisdiction of the civil court and the jurisdiction of the religious court are so profound and so fundamental, that in my opinion it is quite impossible to say that the transfer of authority by the new Law from the civil court to the religious court is merely a procedural change. Whatever its "official" description in customary terminology, this change, as we have seen, is in practice likely to affect decisively the substantive rights of the parties, and it should therefore be treated as a change in the substantive law, that is to say: the law should not be read retroactively, and it should be declared that the transfer of jurisdiction does not deprive the civil court of the power to consider and determine a matter with which it had begun to deal before the promulgation of the new Law.

 

13. The conclusion at which I have arrived is, therefore, that as the application was filed in the court below before the promulgation of the Marriage and Divorce Law, that court was competent to consider and determine it even after the promulgation of that Law.

 

14. It is fitting at this point to deal with a contention brought forward by Mr. Weinberg, the representative of the Attorney-General. That contention is that even if the Court was competent to deal with the application, and even assuming that from the point of view of the substantive law the parties are married to each other, the court should have dismissed the application, because the grant of a declaratory judgment in the circumstances is contrary to public policy. There are in this country - Mr. Weinberg submits - various provisions of law aimed at regulating matters of registration of marriages in a proper and orderly fashion through the competent authorities. He had in mind the Marriage and Divorce (Registration) Ordinance, 1919. That Ordinance says that the registering authority, in the case of a Jewish marriage, is the Rabbi. This means that the legislator particularly intended that a Rabbi, and not a private person, should perform the marriage ceremony and that, in the language of our sources, "anyone who does not know the nature of divorce and betrothal shall not deal with them" (Kiddushin 6a). Public policy, too, in such serious matters, in which the community is also interested, demands that not everyone who claims authority should be permitted to exercise it. The action of the appellants thus constituted both a circumvention of the law and an infringement of public policy, and they should therefore not be granted the declaration for which they applied. Accordingy, the representative of the respondent concluded, the learned judge was right - though not for the reason given by him - in rejecting the application of the appellants.

 

            I must confess that this contention appealed to me, and that I was almost on the point of accepting it. Upon reflection, however, I realized that it was not well-founded. It is true that such acts, in themselves, infringe upon public policy, and that there can be no greater "mischief" than the performance of such "private" marriage ceremonies. It is moreover correct that with regard to the grant of declaratory judgments the court has a certain discretion and will refuse relief prayed for where it would not be equitable to grant it (Guaranty Trust Co. v. Hanney & Co. (31)). I am prepared to add: or where the grant of the application would be contrary to public policy. But I am still not prepared to say that in the present case, after the act in question has been carried through, the act being legal according to religious law and therefore also according to civil law, it would be contrary to public policy to declare explicitly the validity of that act. All that the parties requested the court to do was to tell them what, according to the civil law, was the legal status of their marriage; and if the civil law endorses in this matter the religious law and recognizes the validity of the marriage, how can it be said that the declaration of this fact is contrary to public policy ? In any case, it is not particularly healthy and safe to rely on considerations of public policy in withholding the grant of a declaratory judgment. An English judge said 130 years ago that "public policy" was "a very unruly horse, and when once you get astride of it you never know where it will carry you." (Richardson v. Mellish (32)).

           

 

            I am of opinion that in this respect, too, there was nothing to prevent the court below from granting the appellants the relief they prayed for, provided only that their arguments were well-founded.

           

15. This brings us to the last, and most difficult, part of this appeal, namely, the question whether the learned judge was right in deciding that the validity of the marriage of the appellants could not be recognised according to Jewish law. A particular difficulty arises from the fact that the learned judge, as will be remembered, did not definitely rule that the marriage was null, but only that it was of doubtful validity, so that, in effect, he left the question open and refrained from deciding the legal problem confronting him.

 

            With all due respect to the learned judge, it seems to me that this is not the correct approach. "Teach your tongue to say: I know not" (Berahot 4^a) is not an injunction addressed to a judge, who should, rather, as a general rule, arrive at a definite opinion on every legal question arising before him. Here the judge was faced - as he saw the matter - with a disagreement between the authorities as to the disqualification of witnesses by reason of a ban; and despite his understandable reluctance to become involved in the debate between these great authorities, it was his duty to reach a decision in the matter for the purposes of the concrete case before him. Proof of this duty - if such proof be required - may be found in the following pronouncement of the Supreme Court in Palestine Mercantile Bank Ltd. v. Fryman (5) :

 

"If the Ottoman Law is not clear it is the duty of the judges to expound it, however difficult it may be."

           

            From a purely legal point of view, as distinguished from the religious point of view, which deals with "prohibitions" and which always tends, in cases of doubt, to forbid, there is in Jewish law no special marriage status because of the doubt that perhaps a marriage has been contracted (see Kiddushin 5^b : "Where there is a doubt, it is only on prescription of the Sages that we suspect a marriage", and Rabbi Nissim, in his commentary on Alfasi, Responsa of the Maharik). The doubt which can arise is what is the exact legal status of such people, and where the doubt arises out of judicial conflicts between great authorities, the judge is bound, in this as in any other question of law, to arrive at a decision which is both certain and clear, however humble he may feel himself to be.

           

            We therefore have to supply what, to our regret, the learned judge has omitted and to try to take a stand, one way or the other, on the questions he left open.

           

16. A woman, in Jewish law, is "acquired" in three ways : by money, by deed, or by intercourse; and the contention of counsel for the appellants is that his clients have adopted all three methods: solemnization by something of value - by the giving of the ring ; solemnization by the "marriage deed" - by the delivery of the so-called "marriage deed" ; and solemnization by intercourse - by living together as husband and wife. As to the third method, he invokes of course the legal presumption that no man will indulge in sexual intercourse for the purpose of sin (Yevamot 107^a, Gittin 81^b, Ketubot 73^a), for were it not for this presumption, there would be no evidence of intention, which as is well known, is required also for a marriage by intercourse (Shulhan Aruh, Even Ha-Ezer, 26, 1). In addition to that, Mr. Ganor invokes a presumption of another kind, the presumption of "repute" - that is, where a man and a woman were reputed to be husband and wife for at least 30 days, an adulterer with the wife will be able to be punished (Yerushalmi Kiddushin IV, 8), and Mr. Ganor argues that whereas the appellants have been reputed for a long time as married to each other among all their acquaintances, this "presumption by itself creates a sort of matrimonial bond between them." These are, very succintly, the contentions of counsel for the appellants.

 

17. For brevity's sake, I will begin with the last three contentions of counsel for the appellants and say at once that in my opinion they are completely unfounded, and provide no basis for assuming - or even for having any doubt in the matter - that the marriage of the appellants is valid.

 

            (a) Solemnization by Marriage Deed. It is obvious even to a person with only a rudimentary knowledge of rabbinical law that the "marriage deed" (and settlement) drawn up by Mr. Ganor can on no account, either as to its form or as to its contents, be regarded as a real marriage deed. A marriage deed in Jewish law is a constitutive document, which itself (by its delivery) creates the legal bond between the partners, and not a declaratory document, confirming something that has already taken place.

           

            "What is the procedure for a marriage deed? The man writes on a piece of paper or a clay tablet... 'thou art sanctified unto me', and gives it to the woman in the presence of witnesses", (Shulhan Aruh, Even Ha-Ezer, 32, 1; the source is Kiddushin 9^a).

           

            The object of the marriage deed is constitutive and not probative - the creation of the matrimonial relationship (upon delivery of the deed) and not the evidencing of it (although some say that under certain circumstances a marriage deed may serve also as evidence: see the Responsa of R. Yosef Kolon, Shoresh 74, and compare the Responsa of R. Shmuel of Modena, (known and hereinafter referred to as "Rashdam") Even Ha-Ezer, 2 and ibid., 21, the latter quoted in paragraph 20 below). But what did Mr. Ganor instruct the appellants to do? He had them sign a document in which they certified to each other that they had already bound themselves by way of solemnization by something of value, i.e. through the delivery of the ring. This is what the first appellant declared:

           

"I, Aharon Cohen, do this day take Mrs. Bella Bousslik to wife by 'acquisition', that is to say, I betroth her unto me by a ring..."

 

            And the second appellant stated:

 

            "I, the undersigned, Bella Bousslik, after Aharon Cohen has taken me to wife this day... hereby affix my signature to this deed.. ."

           

            It is obvious that a marriage was not here performed by means of the deed, but that the deed attests that a marriage has been performed independently of it; and such a document, whatever its name, can on no account serve as a marriage deed, which in Jewish law effects the solemnization.

           

            (b) Solemnization by intercourse. This, too, has not taken place in the present case since there is no evidence that the relations between the parties were maintained "for the purpose of solemnization". The presumption that "a man does not indulge in intercourse for the purpose of sin" does not in my opinion apply here, for the following reason. This presumption is, in the final analysis, the legal conclusion from the well-known principle : "a man does not abstain from doing what is allowed to him and prefer doing what is forbidden to him", which means: where two ways are open to a man, one legitimate and the other illegitimate, normally a man does not leave the legitimate and choose the illegitimate way. Therefore when a man has sexual intercourse with a woman, we prefer to say that he did so for marriage, rather than to say that he did so for sin, for it is forbidden to have intercourse with an unmarried woman. Thus it is laid down (Shulhan Aruh, Even Ha-Ezer, 149, 1):

           

            "The presumption is that a man does not indulge in sexual intercourse for the purpose of sin, because he can indulge in sexual intercourse in obedience to the law."

           

            The emphasis is thus placed on the religious aspect: on the willingness of a person to prefer a lawful act to a transgression; therefore the presumption in question is inapplicable to the present case. The appellants had applied to the Rabbinate Offices for the solemnization of their marriage and had been turned away; they had applied to the Chief Rabbinate Tel Aviv, for a licence with equal ill-success. The reason given was that the appellant, Aharon Cohen, was at least possibly of priestly stock and could not therefore marry a divorced woman. This ruling of a high religious authority, expert in the matter, cannot be questioned by us as far as the religious aspect is concerned, so that for the purposes of this case, we have to assume that the appellant was indeed prohibited from having the solemnization performed. Now if religious considerations should have prevented the man from marrying the divorcee, and if by doing so he violated the religious code, how can he, in respect of that very act, invoke a presumption which, as we have seen, is based entirely upon the idea that a person will not wish to commit a sin?

 

            Here it may be objected that we cannot definitely say that the first appellant has broken a religious rule. Even according to the decision of the Rabbis, he is only possibly of priestly stock, that is to say, he is either a priest or an ordinary Israelite; so he may in reality be an ordinary Israelite, permitted to marry a divorcee. Can we say that the presumption does not apply on the strength of a mere doubt?

           

            My answer to this is that a presumption to which a doubt attaches ceases to be a valid presumption and cannot establish a valid marriage even because of doubt. For "a slight doubt cancels out much that is certain", and anyway there was no evidence here of any intention to solemnize a marriage.

           

            I shall clarify the matter. The presumption that a man does not indulge in sexual intercourse for the purpose of sin is, on close scrutiny, some substitute for direct evidence on the issue of the intention to solemnize a marriage. It is quasi-evidence similar to judicial notice, which is founded on contentions of logic. We ourselves are witnesses, everyone of us, that that man surely intended to live in marriage, for that is the "presumption", that is to say, it is something we know from our observation of the nature of man, that he does not reject the legitimate and prefer the illegitimate, and therefore we take it for granted that he intended to be married. In the case before us, as I have already said, we have to proceed on the assumption that the first appellant is at least possibly of priestly stock; that is to say, we have to assume that possibly this man is indeed a 'priest', and knows that he is, and if in spite of this fact he is prepared to marry a divorcee, it shows that he is not strict in the observance of religious prohibitions. The consequence of this doubt is that we, the "witnesses", are not certain that the appellant intended that the sanctification should be solemnized by the act of intercourse itself, and we are unable to attest this; it follows that the solemnization by intercourse is, at most, a solemnization without witnesses, which does not create a marriage even where marriage is intended. An explicit rule provides that even when a man had intercourse with a woman not for the purpose of sin but for the purpose of matrimony, but the intercourse took place in private, then the woman is not regarded as his wife (Tur Shulhan Aruh, Even Ha-Ezer, Hilchot Kiddushin, 26, 1; Shulhan Aruh, Even Ha-Ezer, ibid.), meaning she is not regarded as his wife for any purpose.

 

            In the present case, the position is consequently this. Although the fact of the appellants' living together proves abundantly - just as the evidence of eyewitnesses would prove, in the above sense - the existence of sexual relations between them, it gives no indication at all of the intention involved in having such relations, i.e. of whether or not the parties had such relations for the purpose of matrimony. The solution to this question must be sought in the presumption that a man does not indulge in sexual intercourse for the purpose of sin; but this presumption, as I have already said, does not apply here because of the doubts involved; and in the absence of this presumption, there is no evidence of intention which is one of the material elements for the validity of a marriage.

           

            It follows from the above that the said presumption cannot be relied on in this case.

           

            (c) Presumption of reputation. This presumption does not help the appellants either. The problem - if problem there be - may here be solved in a few words. The presumption is that if a couple come to another town, introduce themselves there to everybody as husband and wife, and are reputed to be such for at least thirty days, it is assumed as a fact that they have contracted a marriage in the manner prescribed by the Jewish religion. This presumption is not peculiar to Jewish law but occurs also, in one form or another, in English common law (see the judgment of Aronegary v. Vaigalie (33)). But what is the nature of this presumption? Its nature is, both in Jewish and in English law, that it does not create, but proves the matrimonial relationship. Its effect is the exact opposite of that of the marriage deed, as explained above. This being so, it is quite useless in this case, for we need no proof of facts, and a relationship cannot be created by it. We know all the facts, all the processes of solemnization gone through by the appellants ; the question is only ; what is the value of these processes, and how can they be supported by that presumption? The latter, as stated, evidences facts, but is unable to create facts, to transform an unmarried woman into a married one.

 

18. To sum up: The appellants can rely neither on solemnization by marriage deed, nor on solemnization by consummation, nor on a presumption arising from their being reputed to be husband and wife. From these three points of view they certainly cannot be regarded as married.

 

19. There remains the last question: is there no basis here for assuming solemnization by something of value? Should the appellants not be regarded as husband and wife because of the ring which the first appellant gave to the second appellant at Mr. Ganor's office?

 

            The learned judge, as will be remembered, rejected this contention, but not decisively; he regarded the ceremony in question as of doubtful validity. The reason was that according to the Responsa of the Rashdam, Even Ha-Ezer, 21 (quoted by the learned judge from Freimann's well-known "Seder Kiddushin Ve-Nissu'een", p. 172), an infringement of the Salonica Ban on sanctifying a woman "otherwise than in the presence of ten witnesses" disqualifies the witnesses, and disqualification of the witnesses makes the marriage null, as does a sanctification without any witnesses; the witnesses in the present case seemed further disqualified, and the ceremony invalid, as a result of the Jerusalem Ban quoted above. Although many disagreed with the Rashdam the matter still seems to be in doubt, and it therefore seemed impossible to declare the marriage valid, as requested by the appellants.

           

            Mr. Ganor relied on a judgment of the Rabbinical Court of Appeal in Israel, in Case No. 1/60/706 (22), where the court ruled that a "secret marriage" performed between a man of priestly stock and a divorced woman, in the presence not of ten, but of only two witnesses, without a canopy, without benedictions and without a rabbi, was valid "and made her the man's wife for his lifetime" (ibid.p. 135). The learned judge did not consider this reference and made no comment upon it. The reason for this is, I suppose, that he saw an important difference between the two cases in the fact that the earlier one occurred some twenty years before, and the present one, as will be remembered, after the imposition of the Jerusalem Ban. In actual fact, however, this distinction is of no importance, because although the Jerusalem Ban was not in existence at the time of the earlier case, there did exist - as a perusal of the earlier judgment will show - other rules that were violated, but this did not induce the learned Rabbis to disqualify the witnesses and invalidate the marriage.

 

            On careful examination of the dicta of the learned judge, and the sources on which they are based, we find that the invalidation of a marriage because of witnesses being disqualified through the infringement of the Ban receives support - ostensibly - only in a responsum of the Rashdam, Even Ha-Ezer, 21, and in a passage of R. Yosef Mitrani's Responsa, Part One, 138 (Fourth Impression, 5528, fol. 99B) which relies on the aforementioned opinion of the Rashdam. The other references given in the judgment of the learned judge are the following (in the order of their occurence):

           

1) Responsa of Maharchash, Even Ha-Ezer, Article 42;

2) Responsa "Shoel U-Meshiv", 3rd Ed., part One, Article 239;

3) Responsa "Be'or Moshe", Kuntras Kevod Hachamim, Article 9;

4) Yeshuot Yaakov to Even Ha-Ezer, Article 28;

5) Responsa "Minhat Eleazer", Part Three, Article 39;

6) Response "Divrei Malkiel", Part Four, Article 119.

 

            The first, fifth and sixth of the above authorities come to the conclusion that a marriage should not be invalidated for the reason in question; the second and third do not touch at all upon the question of the disqualification of the witnesses, and apparently base the invalidation of the marriage on another reason; the fourth gives no decision one way or the other, either on the question of disqualification or on the question of invalidation (compare Freimann, op. cit., pp. 320-322). It should be pointed out here that the author of "Shoel U-Meshiv" who was quoted by the learned judge as aforesaid, in another responsum deals expressly with the question of the disqualification of the witnesses by reason of a violation of the Ban, and reaches the definite conclusion that a marriage should not be invalidated on account of such a disqualification (Response "Shoel U-Meshiv", ibid. Part Two, Article 157). It follows that we have to deal here solely with the significance of the rule laid down by the Rashdam in his above-mentioned responsum.

           

20. Upon perusal of the text of the Rashdam's responsum, it seems to me, with all due respect to the learned judge, that the Rashdam's decision, too, should not have led him to dismiss the application of the appellants.

 

            There are many reasons for this.

           

            a) I am of the opinion that the Rashdam - one of the principal originators of the Salonica Ban - did not himself intend the extreme conclusion drawn from his responsum by the learned judge and, as far as I know, such an intention was not attributed to him in the controversy which arose in his own times over the question of the disqualification of the witnesses. Let us now acquaint ourselves with the Rashdam's responsum and examine the case decided by him.

           

   A young man gave out that he had sanctified, through solemnization by money, his brother's daughter, a girl of twelve or thirteen, and produced in evidence a deed certifying the act of solemnization. The deed was signed by two witnesses, "and the deed was confirmed - that is to say, the signature of the witnesses were authenticated - by three laymen" (i.e. three persons who were not expert religious judges or experts at all). Two or three days later, the matter came before the community and the witnesses began to back out of the awkward affair :

           

            "One of them said that the alleged incident had never taken place, the other said that it was true that he (the young man) had given her (the girl) such and such a sum, but that he had not told her at all (that he was sanctifying her thereby); he had only said to the witnesses : 'be my witnesses' ; and he (the witness) said that he had not heard it".

           

            There was thus ground for the assumption that the whole matter was a fabrication. But what was to be done when according to law a witness could not go back on his original testimony (Ketubott 18^b and elsewhere)? The only question to be considered was, therefore, what value attached to that deed, and whether it could serve as legal evidence of the act of solemnization. The Rashdam (who lived in Salonica -" the events took place in the 16th Century) was requested to make a thorough investigation. He studied the case in all its aspects, and ruled that the solemnization in question was undoubtedly null, and that the girl was still unmarried. What led him to this decision? We shall do well to quote his own fine words, which reflect  - both directly and between the lines - the warm heart and the keen brain of a great humanitarian (I am giving only the main passages):

 

"Responsum. In my humble opinion they are not to be regarded as husband and wife, and I will set out my reasons. First of all, it is well known within this city (Salonica), that both saintly men who have died in the meantime and men who are still alive among us, have agreed and pronounced, and have imposed a severe and absolute Ban, at a great assembly held on the Sabbath of Chanukkah in the Talmud Torah Society, that no woman shall be sanctified unless in the presence of 10 witnesses, all of or above the age of 18 years, and witnesses testifying to sanctifications otherwise than aforesaid, should be banned, and all this is very well known within this city."

 

            And after raising several doubts on the position of the law which might tend to tip the scales to a more vigorous conclusion, he continues as follows:

           

            "I do not disregard these stricter opinions, but nevertheless I have not hesitated to search for ways and means to find in favour of this girl. And this is what every humane man should do, so that fraud should not be rewarded, and criminals not be given the benefit of their evil deeds when they take advantage of young girls deceitfully and wrongfully, to bind them unto them as if they had captured them by sword."

           

            "After God has taught us all this, there can to my mind be no doubt that this marriage cannot at all be regarded as sanctified. If we were to be strict because of the deed, the Rashba has already written that a deed of sanctification in itself is no evidence : and it is clear that such a deed does not prove anything. Thus there is no doubt that as far as the deed is concerned, the marriage need not be recognised, and if we were to be strict because of the testimony of the witnesses who, when called upon to confirm their signatures before the three, orally testified as to their witnessing the marriage, there is surely in this also nothing whatever, for several reasons:

           

(a) most of the authorities have laid this down that testimony which has been taken in the absence of a party is no evidence;

 

(b) those witnesses have transgressed a ban, and thereby disqualified themselves from testifying."

 

            It is obvious that the Rashdam did not invalidate the solemnization on the ground that the witnesses had already been disqualified while watching the proceedings, so that this was a "marriage" without witnesses; rather, he invalidated the evidence given subsequently by the disqualified witnesses, and did not admit it as valid proof of the facts (which, as we have seen, were very doubtful). In other words : he did not invalidate the actual, physical "witnessing", but the giving of evidence, the statement of the witnesses (before the three "laymen") after the event. If the Rashdam had been of the opinion - as the learned judge assumes - that the witnesses were already disqualified at the time of the solemnization, why did he choose a roundabout way, rather than say, briefly and simply, that the marriage of the child was null and void even if the facts were as stated in the deed ?

           

            b) The second case in which the Rashdam deals with the question of the disqualification of witnesses on account of the Ban (Responsa of the Rashdam, Even Ha-Ezer, 27) - and which was the subject of a sharp controversy between him and his chief opponent, R. Izhak Adarbi (Responsa "Divrei Rivote", 225 and 226) - likewise exclusively concerns the invalidation of testimony taken after the solemnization. It involves two rival bridegrooms, each claiming to have sanctified the woman in question, and each producing evidence to this effect. Again we can do no better than read the actual text of the responsum which contains most interesting folklore material on the life of the Jewish community and the jealousies between the different congregations within the communities in the Balkan countries at the end of the 16th Century :

           

"The youth Yosef son of Tishtiel had sanctified Gamila daughter of R. Izhak Herbon. The youth had lived in the house of his father-in-law for a long time ; he ate, drank and plied his trade there. Eventually, the girl's father conceived some grudge against him and threw him out of the house, and he went far away. The girl remained as he left her for nearly a year and a half. Then her father wished to arrange a marriage between her and another youth, and she, for fear of her father, revealed nothing to him and kept silent. She never gave the other youth a friendly look... Then the (other) youth gave out that he had betrothed the said girl Gamila, and the Rabbi of the congregation of the other youth was willing to accept the testimony of the witnesses (to the betrothal of the second youth)...

 

            In the meantime, the first bridegroom was in Constantinople when he sent a deed signed by two witnesses attesting that he had betrothed his aforesaid bride. Then the court of the congregation of the girl appointed a bench of three from among the learned members of the Yeshiva, 1⁾ and they sent for the girl..... and they sent for the witnesses. One of them was found in the city; he appeared, attested his signature, and attested orally everything stated in the deed. The second (witness) was not found in the city, but two witnesses appeared and attested his signature and the deed was confirmed.

           

            Then one of the judges went to talk to the girl, and exhorted her to tell the truth. She said that it was true that she had become sanctified to the first youth, in the presence of the witnesses to the deed, knowingly and willingly without the knowledge of her father and mother. The judge then asked her why she had said nothing when she saw that her father had negotiated her marriage to another man. She replied that she had been afraid of her father and had thought that the truth would come out in time ; she substantiated this latter statement by pointing out that all the neighbours knew from personal observation that she had never given the other youth a friendly look...

           

            The next day, this Yosef (the first bridegroom) and the father of the girl appeared before the court of the congregation of the girl. The second bridegroom and his father also appeared. The court asked him to produce his evidence, and he impudently declared that he would not bring his witnesses before them, but only before his own Rabbi. They told him to bring his witnesses anyway, and if his Rabbi wished, he could come too.

           

            On a Wednesday morning, while we were studying at the Yeshiva, members of the congregation of the second bridegroom's Rabbi appeared to produce the record of the evidence which they had taken ; and we were verily furious at so much impertinence, and seeing that all their goings on were just hocus-pocus, we did not trouble to investigate anything.

           

            The eminent Rabbi Yosef Bibas then ordered the father of the girl to have his daughter brought under the wedding-canopy with the first bridegroom, which he did. There the matter remained for nearly a fortnight. The bride groom sanctified his wife in public under the wedding -canopy, and on the Sabbath he gave a great feast. Nobody said anything until, a fortnight later, a different mood came over them - the work of the devil......"

 

            There ensued a quarrel between the two Rabbis - the one of the congregation of the first bridegroom and the one of the congregation of the second bridegroom. Each of the rabbis pleaded for "his" bridegroom and invoked his decision. The matter was brought before the Rashdam, who wrote as follows :

           

"..... God knows and is witness how reluctant I am to assume authority in matters like these, but since the event has already taken place (the reference to the wedding ceremony), I am compelled to rule, and have no hesitation, that this woman is his absolutely lawful wife married to her husband Yosef (the first bridegroom)."

 

            The Rashdam then embarks on an analysis of the law and continues as follows : -

           

            "In the present case I do not say only that there is some slight suspicion of marriage, but the matters appear to me to be as clear as the sun, for several reasons :

 

(a) There are several witnesses who testified that the girl never showed the second man any friendliness, and if that is so, how can it be assumed that she would have accepted him in marriage without the concurrence of her parents ?

 

         (b) At the outset, when the suspicion arose that false witnesses were being sought, we asked the Rabbi that he should now take the evidence of the second man and warn him to bring his witnesses before us - and we did this not only once, but twice - without avail ; the whole country knows the Ban which was pronounced about a year ago in the Talmud Torah Society, that no man may sanctify a woman where there are only two witnesses present, and that all witnesses must be of or above the age of 18 years.

 

         All these matters go to prove clearly that everything was made up and fabricated, and the witnnesses were just afraid to appear before us."

           

            We see here, too, that the result of the disqualification of the witnesses by reason of the Ban was, not that the sanctification was void ab initio, but that the testimony taken on it subsequently - in the case before the Rabbi of the "opposing congregation" - could not be relied upon. The Rashdam, as we have seen at the end of his opinion, used this argument as additional support for his finding that there was no truth in the statements of the witnesses of the second bridegroom.

           

            Thus, as I said before : the Rashdam did not invalidate the act of sanctification but the testimony of the witnesses given subsequently with regard to that act. If that is so, and the reference is to the invalidation not of the material evidence but of the mode of taking the evidence, then such invalidation can have no bearing on the case before us, because -

           

1) the civil court is not bound by the rules of evidence of the religious law, and may, in any matter, take evidence also from a person not qualified to give evidence under Jewish law (see Cotic v. Wolfsohn (21)) ;

 

2) (and this is perhaps the main point) there is no dispute between the appellants and the respondent as to the act itself : everybody agrees that the first appellant has performed the act of sanctification. The question is only whether he has also succeeded in thereby sanctifying the woman to him, and this question, as is apparent, is totally unaffected by the disqualification of the witnesses after the fact ; incidentally, even in Jewish law,if both partners declare that the sanctification has taken place before two competent witnesses, they are bound by their declaration as regards the prohibitions resulting from their union (he is forbidden to her relatives, and she is forbidden to his) ; only where he has sanctified her in private, i.e. without witnesses, "a marriage is not recognised even if both of them admit it" ( Kiddushin 65^a , Shulhan Aruh, Even Ha-Ezer, 42, 2).

 

The Rashdam was one of the chief sponsors of the Salonica Ban ; he was foremost among those who spoke of the disqualification of the witnesses on account of that Ban ; nonetheless, as we have seen, he did not intend to invalidate the sanctification itself. Now if the Rashdam did not do so, how could his disciples? So I do not agree with the view that the Salonica Ban entailed the invalidity of the sanctification, and I am therefore of the opinion that the infringement of the Jerusalem Ban, too, did not invalidate the sanctification performed by the first appellant.

 

            c) At this point it will be asked : why, indeed, were the witnesses not disqualified at the time of the actual sanctification ? If the infringement of the Ban disqualified witnesses attending the ceremony, surely the sanctification itself was invalidated.

           

            The answer is to be found in the Responsa of Rabbi Shabtai Cohen, Part III, 1 (I have not been able to obtain the original, and therefore quote from Freimann, op. cit., p. 175). After Rabbi Shabtai - fellow-townsman and near-contemporary of the Rashdam - states that in spite of the numerous cases of "fraudulent sanctification in the presence of two witnesses" which occurred in his time in Salonica, he has never heard of a decision invalidating a sanctification on account of the infringement of the Ban by the witnesses, he raises the question as to the reason for this and offers the following solution :

           

            "It seems in my humble opinion, that the possible reason for this is that there are no grounds for disqualifying them (as witnesses to the sanctification) because of their infringement of the Ban, since that infringement took place while they were witnessing the sanctification, and they were not under any prior disqualification before attending the ceremony ; it follows that they did not become disqualified until after the woman was sanctified. The sanctification is thus completed. but the witnesses are 'wicked men' and disqualified from then on­wards."

 

            The language is somewhat difficult, but the idea is simple and clear : a person who becomes disqualified as a witness by reason of having committed a sin becomes so upon completion of the sin, in the present instance upon completion of attendance at the sanctification; by the time the witnesses become disqualified, the sanctification is already complete and valid.

           

            Exactly the same idea, in relation to a very similar question, occurs in the Responsa of Rabbi Moshe Rotenberg, Hoshen Mishpat, 5 (quoted in Pithei Teshuva, Hoshen Mishpat, 34, 5, 14). The question there was the legal validity of the evidence where the witnesses (as in that case) had by the very act of testifying in court, infringed a prohibition of the Torah. Is the evidence admissible or inadmissible ? The answer was : there has been the commission of a sin, but no disqualification, because the disqualification was as a result of the giving of evidence and committed only thereafter.

           

            This arithmetic of hours and minutes will doubtless seem to many as formalistic or an empty quibble; but such criticism will not be justified. It should be remembered that the disqualification of "a wicked man" from giving evidence, originating as it does in most cases in a particular passage of the Torah (see Sanhedrin 25^a and Baba Kama 72^b), is itself only a formalistic disqualification, a disqualifcation imposed by the law, operating quite regardless of the actual credibility or reliability of the witness (see Rabbi Shabtai Cohen, Hoshen Mishpat, 34, 1, 3). Therefore it is only just that we should watch most jealously the limits of such disqualification, even in a formalistic manner, for the very purpose of restricting the consequences of that other formalism.

           

            d) Although, perhaps, it is unnecessary, yet, to prevent all misapprehension, I would nevertheless emphasize that paras. (a) to (c) above refer solely to Bans such as the Salonica Ban and the Jerusalem Ban, which do not themselves, directly and by express provision, invalidate a marriage solemnized in contravention of them. I am not unaware that, in the Middle Ages and later, certain communities enacted "regulations" ("takkanot") or "agreed rules"("haskamot") which expressly and directly - by judicial "expropriation" of the sanctification money or by reference to the principle that a man who sanctifies presumably does so in conformity with the Rabbinical precepts (Gittin 33^a) - invalidated sanctifications not so complying. It is very doubtful, though, whether these regulations could actually have had the effect of invalidating marriages ; very few Rabbis applied them in practice and not only in theory. However, this question does not concern us, for the Jerusalem Ban, at least, contains no such invalidating provision. The question before us was merely whether this Ban causes invalidation of the marriage indirectly, through the disqualification of the witnesses, and as explained above, my answer to this question is in the negative.

 

            e) I have given consideration to a further point which, independently, forces us to conclude that the marriage of the first appellant is not invalid because of the infringement of the Ban by the witnesses. Let us not forget that the first appellant sanctified the second appellant, not before two, but before four witnesses : two who had been specially invited, Mr. Fisher and Mr. Hirsh, and two who had come to the scene as unbidden guests, Police Sergeants Katz and Pachter, These two police officers certainly did not infringe the Ban, because they had not come in order to abet an offence - had not, in the language of the Ban, "assumed the function" of witnesses  - but, on the contrary, had come to watch the unusual ceremony with a view to investigation and action by the police. On the other hand, although the two police officers had not been invited, and had not come in order to be witnesses to the sanctification, they became so automatically, because it is the law that "if a man sanctifies a woman in the presence of two persons without having said to them 'you are my witnesses', she is nevertheless sanctified" (Kiddushin 43^a ; Shulhan Aruh, Even Ha-Ezer, 42, 4) ; "even if the witnesses do not intend to be witnesses, but have only come to look on, they become witnesses, and the woman is sanctified" ("Beit Meir", quoted in Pithei Teshuva to Even Ha-Ezer, ibid., subs. 1i).

           

            It follows that even if we regard Mr. Fisher and Mr. Hirsh as disqualified witnesses by reason of the infringement of the Ban, the validity of sanctification still has some support in its having been "witnessed" - i.e. attended and observed-by the Police Officers Katz and Pachter, and this attendance and observation has been legally and adequately proved in the District Court.

 

            It might be objected that even Police Officers Katz and Pachter cannot be witnesses to the sanctification, because the disqualified witnesses (Fisher and Hirsh) disqualify the valid witnesses (Katz and Pachter) according to the well-known rule that "where one of them is a relative or disqualified, the testimony of both of them is invalid." The brief and simple answer is ; we are here concerned with the validity of the actual physical witnessing of the sanctification, and not with the acceptability of witnesses who are to testify on it subsequently, and in regard to this actual, physical witnessing - "seeing in itself", in the language of R. Yehuda - the aforementioned rule is quite inappplicable (see R. Yehuda's remarks in Tosefta Makkot 6^a, from the word "Shmuel").

           

            f) In conclusion, I would point out that the whole idea of the disqualification of witnesses because of a Ban has never gained wide acceptance in rabbinical literature, and that it is very doubtful whether there is still room for it at all in our day, especially in the case of the Ban which - unlike the Salonica Ban of the Rashdam of Modena - has not gained much recognition even in this city. This is what Meirat Einayim on Hoshen Mishpat 34, 5, 10 writes:

           

            ".... but a person who infringes bans imposed by community regulations should not be disqualified from giving evidence, for in that case not one in a thousand would be qualified."

           

            If this applied in the days of the author of the Sefer Meirat Einayim, it applies all the more today. That idea of the disqualification of the witnesses is still sometimes resorted to - but even then only as a secondary consideration - where it is a question of permitting the remarriage of a deserted wife, the whereabouts of the husband being unknown, since Rabbis have at all times regarded it as their sacred duty to release such an unhappy woman from the bonds of matrimony and to use, in a matter of this kind, their power to allow rather than their power to forbid. This is evidenced by thousands of responsa releasing such women on the strength of very flimsy suppositions, from a patent desire to grant them relief ; the judges have here, in fact, entered the domain of the legislator.

           

21. It follows that the first appellant has contracted a marriage with the second appellant by way of "sanctification by something of value", in the presence of competent witnesses, and that by virtue of that act, they have to be regarded as husband and wife. The fact that the husband is, or may possibly be, of priestly stock and that the woman is a divorcee in no way affects the validity of the marriage. Although the prohibition of the marriage of a divorced woman to a man of priestly stock is a disobedience of the law: "Thou shalt not......", a marriage involving the infringement of such laws is nevertheless valid (Kiddushin 68^a, and elsewhere). I will not here express an opinion as to the legal consequences of this prohibited marriage in respect of maintenance, the marriage settlement, the succession of the husband and the like, because there is no claim before us on these points within the framework of this case. What the appellants have claimed is a declaration that they are "married" to each other, that is to say, that he is her legal husband and she his legal wife, and to this declaration they are entitled.

 

22. I have arrived at this conclusion with considerable reluctance. I frankly admit that my inclination, as a judge and as a man, has been, from beginning to end, not to give official sanction to that private ceremony. Nobody will approve of marriage ceremonies like this and no judge will feel sympathetic towards applications like the present. I have examined very carefully whether there is not some basic flaw in a marriage of this kind, but I have found none. I thought for a moment that it might be possible to invalidate it on the ground that the whole intention of the couple was, not to become married to each other in accordance with Jewish law but, as appears from the sworn declaration quoted in paragraph 2(g) above, to obtain a marriage certificate entitling the "head-of-family" to receive a ration-card, income-tax facilities and other similar paraphanalia. I told myself that the solemnization had been effected not for "sacramental" but for documentary purposes and that there had been no intention of sanctification. But I had eventually to reject all these arguments in favour of validation. For the purpose of sanctification it is the events that matter, "and in matters of sanctification no conjectures and no evidence are admissible to disprove the intention of sanctification." (See R. Moshe Isserlis, Even Ha-Ezer, 42, 1; see also ibid., 4.)

 

- Moreover, even if we were permitted to use such conjectures and evidence, and thereby - on the well-known principle that there are certain conclusions which a judge must draw from given circumstances even without formal proof - to ascertain the ultimate intention of the couple, those secondary objectives would not in themselves be calculated to invalidate the matrimonial relationship established between them. For in matters of sanctification, it is intended relationship, and not any ulterior motive, that counts (even in the case of the seven women who "take hold of one man, saying, 'We will eat our own bread, and wear our own apparel : only let us be called by thy name, to take away our reproach' " (Isaiah IV, 1), and who thus avowedly marry for "nominal" reasons, it is very doubtful whether it would have been possible to permit remarriage on the strength of this solemn declaration). This is illustrated by the great difficulties confronting the rabbinical courts in this country when attempting to dissolve "fictitious" marriages. An ancient precedent is to be found in the Tosefta story (Ketubbot V, 1) of R. Tarphon, a man of priestly stock, who, in a year of dearth, married three hundred women for the sole purpose of enabling them to partake of the priestly dues - which reminds us, if the comparison could be permitted, of the ration-cards of the first appellant.

 

            The same inclination not to annul a marriage by reason of its having been contracted "fictitiously" (for the purpose of obtaining citizenship, an entry visa or the like) is conspicuous also in the secular jurisprudence of the British Commonwealth as shown, for instance, by the South African judgment of Martens v. Martens (51), quoted with unqualified approval in N. v. H. (34). This principle prevails also in several Central European countries; we know that famous revolutionaries, such as Rosa Luxemburg in Germany in 1898, succeeded in avoiding deportation by means of such fictitious marriages. The reluctance of the legislator and the judge to probe into the purpose of the marriage is thus a feature common to the matrimonial law of a number of legal systems - both religious and secular - and the reason for it is easy to see: intimate matters such as the genuineness of the relationship between spouses are impossible to investigate, and a sensible legislator will not be anxious to prohibit an "evasion of the law" which cannot be prevented. We may here - with a slight change in wording - apply a talmudical dictum Yevamot 65^b) :

           

            "Just as the legislator is required to legislate reasonably so is he required not to legislate unreasonably. If he does the latter, he will find himself among the 'aiders and abettors' of transgressors."

 

            In short: I have reviewed every aspect of the case, and have found no ground for the annulment of the sanctification. I therefore consider it my duty as a judge to declare its legal validity. A judge has nothing to go upon but the law, and therefore must not disregard anything he finds therein, whatever the consequences. There is no one more competent in matters of religion and religious law, and no one more jealous of them, than the Chief Rabbis of Israel, and they, too, in a similar case, have declared the validity of a marriage. I am referring to Appeal No. 1/60/706 (22), mentioned in paragraph 19 above. That case, too, concerned a sanctification performed without ten witnesses, without a canopy, without benedictions and without a Rabbi, and there, too, the parties were a man of priestly stock - definitely, not merely possibly, so - and a divorcee. The man was subsequently left by the divorcee and married another woman, lived with her for several years and then died. The two women then began to litigate over the estate. The matter came before the Rabbinical Court of Appeal where the second wife of the deceased appeared as appellant, the first wife as respondent. One of the arguments of the appellant was:

           

            "...the court (i.e. the court below) should not have entertained the application of the respondent and sanctioned after eighteen years a secret sanctification effected without a canopy, without benedictions, without a Rabbi and without ten witnesses. Such a judgment not only casts a slur on the deceased and his daughter, who is stamped by it as illegitimate, but it is likely to become a very dangerous precedent and to have a deleterious effect on Jewish family life." (ibid., p. 134.)

           

            This contention of the appellant was dismissed by the learned Rabbis as follows:

           

            "It is true that in the present case the marriage was forbidden by the Torah, and that both husband and wife infringed a prohibitive law, that is to say that a man of priestly stock shall not "take a woman put away from her husband" (Leviticus XXI, 7), but the court was not for this reason prevented from affirming the validity of that marriage, because a sanctification infringing a prohibitive law is nevertheless valid; on the contrary, the court was in duty bound to define the present personal status of the wife in accordance with her application, notwithstanding that this status is based on a sanctification contrary to the law of the Torah, and regardless of the fact that the husband is no longer alive, for the wife is of course interested even after the death of the husband in the determination of her personal status." (ibid., p. 136.)

 

            These are most telling remarks, worthy of those who made them. The Rabbis did not refuse to give that widow the relief claimed by her, although she herself, by the very act in question, had by no means behaved in accordance with the law. Just as there is no mercy in the law, so there is no resentment in the law. Nor were the learned Rabbis afraid of the difficulties and dangers to family life suggested by the second wife; because the refusal to adjudicate according to law is in itself an offence, and no one is told, "Do commit an offence, so that you may reap a benefit" (Menahot 48a).

           

            We, in this court, are even less in a position to withhold our judicial opinion as to the marriage contracted by the first appellant; we must categorically declare its validity.

           

            In the light of all I have said, I think that the appeal should be allowed and that the appellants should be granted the declaration requested by them, namely, that on December 16, 1952, at Tel Aviv, the first appellant contracted a marriage with the second appellant by way of "sanctification by something of value," and that they are to be regarded as husband and wife as from that date.

           

SUSSMAN J. In this appeal I have had the advantage of reading the judgments of my learned colleagues, which show that the following three problems arise:

 

            a) Was the District Court competent to continue dealing with the application of the appellants after the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 (hereinafter referred to as "the said Law") had come into force?

           

            b) Are the appellants married to each other?

           

            c) Do considerations of public welfare demand that the court refrain from granting the appellants the relief which they claim?

           

2. As for the first problem: the question arises whether s. 1 of the said Law is a purely procedural provision for seeing that a person has no vested right in procedure, a provision introducing a change in procedure applies also to proceedings which began before that provision came into force. Thus, the provisions of the said Law concerning jurisdiction do not apply to the present case unless they are procedural; if they are substantive, the application of the appellants must be determined according to the rules which obtained before the said Law came into force.

 

            I do not think that section 14 of the Interpretation Ordinance helps the appellants; section 17(2)(e) of that Ordinance refers to proceedings for the enforcement of a right arising from a Law which has been repealed; such a right is susceptible of enforcement even after the Law from which it arises has been repealed, since a new Law does not, as a rule, detract from a substantive right a person has acquired. As for rules of procedure, however, it is generally agreed that there can be no vested right in them. As to this point, I have nothing to add to the remarks made by my esteemed colleague, Justice Cheshin, in paragraph 12 of his judgment.

           

            On the other hand, I think that it would be unrealistic to say that the extension of the jurisdiction of the Rabbinical Courts, and the curtailment of the jurisdiction of the civil courts, by the provisions of the said Law represent a change in procedure only. In paragraph 12 of his judgment Justice Silberg points to the fact that jurisdictional change has affected in a substantive manner the validity of marriage : where a couple have married in a foreign country before a civil official, in accordance with the laws of that country, a civil court in Israel will recognise the marriage, but a Rabbinical court will regard it as null - by reason of the "universal" effect of Jewish law, which does not require or invoke the rules of international law designed to settle conflicts between the legal systems of different countries; it makes no difference that a question of private international law did not arise in the present case; the fact that had such a question arisen the Rabbinical court would not have decided it in the same way as a civil court is sufficient to convince me that the significance of the change resulting from the provisions of the said Law with regard to the powers of the courts is not purely procedural.

           

            Moreover, the technique applied by the legislator is calculated to support my conclusion. Section 1 of the said Law vests the Rabibinical court with exclusive jurisdiction in matters of "marriage and divorce of Jews in Israel, being nationals or residents of the State". The legislator did not specify according to what law the Rabbinical courts were to deal with those matters. But it is beyond doubt that it intended not only to transfer jurisdiction from the civil court to the religious court (in so far as it had previously been vested in the former), but also to make Jewish law applicable to those matters from the substantive aspect. This meant, in so far as jurisdiction in matters of the personal status of foreigners was transferred to the Rabbinical courts, the repeal of the rule embodied in Article 64 of the Palestine Order in Council, which prescribes the application of the national law of the persons concerned. By way of a change of jurisdiction the legislator introduced, in effect, a change in the substantive rights of the parties.

 

            It follows that, even if the power of the District Court to deal with an application like the one before us was withdrawn, its power to continue dealing with and determine such proceedings has not been affected.

           

3. The marriage contracted in this case is valid according to Jewish law in spite of the Biblical prohibition.

 

4. There remains the third problem on which, again to my regret the views of my learned colleagues are divided.

 

            I am not prepared to dispute the principle enunciated by Justice Cheshin, namely, that, in considering whether or not to grant declaratory relief, the court may take into account the behaviour of the parties, as reflected in the actions which constitute the basis for their application to the court. However, even if we take this factor into account, there is still an important consideration which, in my opinion, tips the scales in favour of the appellants: the Biblical prohibition infringed by the appellants is a lex imperfecta, since no sanction is attached to it, and a marriage contracted in disregard of it is nevertheless valid. In fact, as hinted by my colleagues, should the appellants apply to a Rabbinical court, the latter will recognise the validity of the marriage (see Stark v. Chief Execution Officer (6)) and grant the declaration requested. So what point would there be in a civil court acting otherwise? It seems to me that in a case like the present the need to remove doubts as to the personal status of the appellants (and to remove such doubts is the purpose of the declaration prayed for) is a more weighty consideration than the behaviour of the parties.

 

5. In conclusion, I wish to add one remark. My learned colleagues have already expressed their distaste for the irregularity of a secret marriage. I share this feeling, but would not be easy in my mind unless I called attention to the situation which in my opinion has given rise to that marriage. Persons of religious views will of their own accord avoid infringing religious prohibitions and not take the course the parties in this case have taken. However, those who are not religious have no opportunity in this country of contracting a marriage by way of a civil ceremony, under the auspices of the State authorities. There is, in my opinion, no better way to prevent the recurrence of what happened in this case than the enactment of a civil marriage Law, which will enable those who do not wish to have a religious marriage ceremony to undergo a civil marriage. I agree that the appeal be allowed and the appellants granted the declaration sought.

 

CHESHIN J. This is an appeal against a judgment of the District Court of Tel Aviv dismissing a claim for an order declaring that a sanctification of the second appellant (a divorced woman) to the first appellant (a man of a priestly family) solemnized by a lawyer in his office and not in the presence of ten persons, is a valid and binding sanctification according to Jewish law.

 

2. I must confess that had the question of the validity of the sanctification been the only question before me, I would not have hesitated for one moment to express my full concurrence in the exceptionally clear and well-reasoned judgment of my colleague, Silberg J., without adding one word to it. At the very outset, before entering on the merits, however, we are faced with two important and weighty questions to which we must find an answer and, to my great regret, I differ from the opinions of my learned colleagues in regard to both of these questions. The first question relates to the jurisdiction of the District Court, and the second question relates to the discretion of the Court to grant the declaratory order sought. I shall deal with these questions one by one.

 

3. In regard to jurisdiction, the claim was brought at the beginning of 1953, and it is not disputed that the District Court was at that time competent to deal with it. In the course of the proceedings, however, and before judgment was pronounced, the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, which introduced a number of important changes in the legal position which previously existed in the field of personal status, was passed. Section 1 of that Law provides:

 

            "Matters of marriage and divorce of Jews in Israel, being nationals or residents of the State, shall be under , the exclusive jurisdiction of Rabbinical Courts"

           

            Since it is not disputed that both the appellants in this case are nationals and residents of Israel, it is clear that had they brought their claim to-day, they would have had to lodge it in the Rabbinical Courts. The question therefore is whether, and to what extent the jurisdiction of the District Court to continue to hear the claim in question, which was pending before it at the time the new Law was enacted, was affected by that Law.

           

4. No authority dealing with the interpretation of statutes is necessary for the proposition that a new Law is presumed not to affect vested rights in any way, and that it does not operate to annul, vary, replace, derogate from or add to such rights, unless the legislature has disclosed its intention of doing so in unambiguous terms. Every statute, therefore, is deemed to be prospective, that is to say, to apply to the future, and not retrospective, that is to say, to apply to the past. The direct logical result of that interpretation is that the provisions of a Law which are repealed by a later Law remain in force and fully operative in regard to rights acquired by a person before such repeal, whether the repeal was prior to the presentation to court by such person of a claim to his rights, or whether it was subsequent to such claim but before the case was decided. My colleague, Silberg J., cited a number of authorities to this effect, and I do not intend to cite them here a second time. I shall merely add one or two cases in order to support this view.

 

            In Leeds and County Bank v. Walker (35), Denman J. said, at page 91:

           

            "...in the absence of anything in the Act to show that it is to have a retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to the note in question as it existed in 1880, and down to the time when the present action was brought..."

 

            In Maxwell's work on the Interpretation of Statutes (9th ed.) p. 229, it is mid (as quoted in the judgment of Evershed M.R. in Hutchinson v. Jauncey (28)):

           

            "In general, when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights."

           

            The very same principle is laid down in section 17(2) (c) of the (Palestine) Interpretation Ordinance, 1945, which provides that:

           

            "Where any enactment repeals any law, such repeal shall not... affect any right, privilege, obligation, or liability, acquired, accrued, or incurred, under any law so repealed."

           

            A distinction, however, must be drawn - and all judges and commentators, without exception, are in agreement with such a distinction  - between substantive rights and rules of procedure. It is agreed by all that no one acquires a vested right in rules of procedure, and that a litigant will not be heard to say: my claim must be determined in accordance with the procedure which existed at the time that I acquired my rights or at the time that I filed my claim, and new rules of procedure which were framed thereafter do not apply to it. A number of authorities on this point, too, were cited by my colleague, Silberg J., and I shall content myself with adding only a few more.

           

In Gardner v. Lucas (36), Lord Blackburn said, at p. 603:

 

            "...I think it is perfectly settled that if the Legislature intended to frame a new procedure, that instead of proceeding in this form or that, you should proceed in another and a different way; clearly there bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be. Then, again, I think that where alterations are made in matters of evidence... those are retrospective, whether civil or criminal."

 

            Even before this, in Kimbray v. Draper (37), Blackburn J. had said, (at p. 163) that:

           

            "When the effect of an enactment is to take away a right, prima facie it does not apply to existing rights; but where it deals with procedure only, prima facie it applies

to all actions pending as well as future."

 

6. This same principle was first fully adumbrated and explained in Wright v. Hale (38), which is regarded as the leading authority. In that case Pollock C.B. said, at p. 445 :

 

            "There is a considerable difference between such laws as affect vested rights and those which only affect the proceedings or practice of the Courts ...If therefore a Statute were to say: 'In questions which depend an mere judgment ...no suitor shall be allowed to call more than three witnesses', that enactment would apply to all actions, whether pending at the time it was passed or to be brought afterwards; it would be an enactment relating to practice, and a suitor could not say: 'I have a right to call as many witnesses to that subject as I please, and will therefore call ten surveyors, ten brokers, ten surgeons, etc. A matter of that sort cannot be called a right, and I think, when a statute merely alters the course of procedure in a cause, and does not especially say that its provisions shall not apply to any action commenced before it came into operation... its provisions will apply to the procedure in such actions."

 

7. This principle too - namely, the principle relating to matters of procedure - was laid down in numerous English cases which are followed by the courts until today. My attention has not been directed to even one judgment in which judges have deviated from this principle in the slightest degree. Matters of procedure are decided according to the existing law, and this rule also applies to claims which are pending. There is one exception to this rule, and that is the right to appeal in an existing claim.

 

            "To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure".

           

says Lord MacNaghten in the case of The Colonial Sugar Refining Co. v. Irving (30) (see also Craies on Statute Law, 5th Ed., p. 371).

 

8. In connection with statutes, moreover, which are directed towards divesting a court of its jurisdiction to deal with a particular category of claims, it would appear that opinions in England changed somewhat in later years on the question of the application of such statutes to claims which are pending. Thus, for example, in re Joseph Suche and Co. (27), it was said by Jessel M.R. that:

 

            "it is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them."

 

            But the observations made in Hutchinson's case (28), and the rules laid down in that case, deviated from the principle stated. In that case Evershed M.R. said at p. 579:

           

            "Having examined the many cases cited for the landlord, I doubt whether the principle ought to be expressed in quite such precise language as Jessel M.R. used in re Joseph Suche & Co. Ltd. (27). In other words, it seems to me that, if the necessary intendment of the act is to affect pending causes of action then this Court will give effect to the intention of the Legislature even though there is no express reference to pending actions."

 

            It follows that in matters of procedure and jurisdiction, even in regard to claims which are pending, we are to be guided not only by the express language of the legislature, but also by the intention to be gathered from that language.

           

9. The great importance for our purposes of Hutchinson's case (28), and the remarks of Evershed M.R. which I have cited, lie in the fact that that case dealt with a new law which divested a court of its jurisdiction to deal with a particular class of claims and its effect upon a claim which had been brought before that law came into force. The court reached the conclusion that by virtue of the new law, it had been divested of jurisdiction to deal with a claim which had already been filed, but had not yet been determined. Effect was thus given - though this was not expressly stated - to what had already been decided in England, namely, that a statute which introduces a change in the jurisdiction of a court also applies to claims which are pending. (See, for example, Warne v. Beresford (39), the Ironsides' case (40), and the observations of Maxwell, Interpretation of Statutes, 9th edition, p. 233 on Warne's case (39).)

 

10. I also find some support for this principle in Hamden v. Nabus (7). The facts of that case were as follows. After the constitution of the Land Courts in this country, a certain land case was brought before the Land Courts in Sh'khem. When it became known to the Court however, that the same case had previously been brought before the Sharia Court 1⁾ and had not been concluded, the Court dismissed the claim, holding that the Sharia Court and that court alone, was competent to deal with claims that were pending before it. The Appeal Court rejected this opinion, and said:

 

            "By the Proclamation of 1918 all jurisdiction over cases concerning ownership of land was taken from the Sharia Court... Instead, a jurisdiction has been given to the Land Courts by the Land Courts Ordinance, 1921. Whether or not a case was pending in the Sharia Courts at the date of the Proclamation, the Courts were prohibited from giving any judgment deciding the ownership of land... The judgment of the Land Court must be set aside and the case heard."

 

            It must be noted that the Proclamation of 1918 (that is the Proclamation of June 24, 1918), entitled "Constitution of Courts", (Bentwich, Legislation of Palestine, 1918-1925, Vol. I, p. 605), did not expressly and permanently abolish the jurisdiction of the Sharia Court to deal with land cases, though it did direct - in section 23 - that "until further notice the Court shall not give any judgment decided the ownership of land ..."

           

            It was not therefore, the intention of the Proclamation permanently to deprive the courts - including the Sharia Courts - of the jurisdiction to deal with land matters, nor to lay down that cases pending before those courts should be transferred to courts other than those which existed or which would be established in the future, as it did provide, for example, in section 25 of that Proclamation. The intention of the Proclamation was merely to suspend the jurisdiction of the court to give judgments in land matters for an unspecified period, that is to say, until the giving of further notice. That additional notice was not given; the jurisdiction of those courts was not explicitly terminated, and no direction was given as to the fate of cases which were pending before them. Instead of this a new Ordinance, the Land Courts Ordinance, 1921, was enacted, and that Ordinance, too, did not provide that cases which had begun in other courts should be transferred to the Land Courts, or be disposed of in some other way. Nevertheless, it was held by the Court of Appeal in Hamdan's case (7), that the jurisdiction to deal with those cases which were pending before other courts had been conferred upon the Land Courts which were established for the first time by the new Ordinance. It follows that a case which has been filed in a competent court, and is pending before that court at a time when jurisdiction to deal with cases of that kind is conferred upon another court, must be dealt with in such other court, although the jurisdiction of the court in which the claim was first filed has not been taken away from it, and has not been clearly terminated. And why is this so? The reason, in my opinion, is that a person has no vested right in rules of procedure. From the time, therefore, that a new law was passed conferring jurisdiction upon special courts, the jurisdiction of the existing courts came to an end in respect of pending claims as well, and such claims, when brought before the special courts, cannot be said to be pending in two courts at one and the same time, as the Land Court thought was the position in Hamdan's case (7).

 

11. It has been said that section 17(2)(e) of the Interpretation Ordinance is designed to prevent any legal proceedings which have commenced from being affected. What is referred to, however, are legal proceedings "in respect of any such right, privilege, obligation" and so forth, as stated in subsection (c), and the meaning of the provision is that where a right or obligation, etc., has been changed, such change shall not affect any legal proceedings which have already begun in connection with such right or obligation.

 

            I would mention here, in passing, that section 17 of the Interpretation Ordinance is substantially similar to section 38 of the English Interpretation Act, 1889, and it has already been laid down more than once that the rights spoken of in section 38 are material rights, personal rights, and not abstract rights, rights in matters of procedure and other rights of that kind (see, for example, Gell v. White (41)).

 

12. Let us now return and enquire what was the purpose of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953. Was its purpose to change vested material rights, or was it to introduce a new procedure and different jurisdiction? It should be pointed out at once that the name of the Law indicates its content. This is a law relating to jurisdiction. Its whole purpose is to define the limits of jurisdiction of the Rabbinical Courts. Section 1, which is the most important section for our purposes, lays it down that: "matters of marriage and divorce of Jews in Israel, being nationals or residents of the State, shall be under the exclusive jurisdiction of Rabbinical Courts."

 

            Not a single word in this section is designed to affect in the slightest degree any substantive rights of the individual, to vary them, change them, or derogate from them. The section deals with the question of the jurisdiction of the courts alone, and details those matters which shall henceforth fall within the jurisdiction of the Rabbinical Courts. From the historical point of view the real meaning of this section, and the background of the law as a whole, are well known. It may be mentioned in parenthesis that the legislature itself has pointed out the purpose which the law was intended to achieve. In the explanatory note to the proposed law (see Proposed Laws, No. 163, of May 12, 1953), it is said:

           

            "The proposed Law removes the restriction contained in the Mandatory Legislation... which established the jurisdiction of the Rabbinical Courts only in respect of persons who were 'members of the Jewish Community', that is to say, who were registered in the Register of the 'Knesset Yisrael', and who were not foreign nationals."

           

            I do not intend to say that we are entitled to interpret the Statute in the light of the explanatory note of the legislature to the proposed Law. That explanation, nevertheless, throws light upon the legislative background, and from this point of view is likely to give additional support to the interpretation which follows in any case from the law itself. Were it said in the Law, for example, that the marriage of a person of priestly family and a divorced woman will henceforth be void, or that a religious marriage which was not celebrated in the presence of ten persons, shall be deemed not to have been celebrated at all, there would be room for the argument in each of these cases that vested rights of the applicant and others in a similar position had been affected, and that since the legislature did not expressly reveal its intention that the Law should act with retrospective effect, it has no effect upon claims which were pending in the civil courts at the time that the Law came into force.

 

            That was in fact the basis of the decision of the High Court of Justice in Babayofff v. Chief Execution Officer (8). That was a case of maintenance which had been dealt with in the Rabbinical Court. At the time the claim was filed the parties were thought to be Palestinian nationals, and the Rabbinical Courts were therefore competent to deal with the case. In the course of the proceedings the law was changed, and persons of the class to which the parties belonged were accorded the status of foreign nationals. The effect of this change in the law, therefore, was to deprive the parties of their status as Palestinian nationals, that is to say, to change them from Palestinian nationals to foreign nationals. In these circumstances it was held by the High Court of Justice that the new Law was not retroactive, and that it therefore had no effect upon the proceedings that were pending. The position is entirely different in a law such as the one we are considering, in that that Law does not deal at all with the rights and status of the litigants, but only with the jurisdiction of the court. Nothing whatever is said in the Law about the personal rights of individuals. The whole object of the Law is to introduce a procedural change. Before the Law was passed, the appellants could have brought their claim before the civil courts of the State. After the enactment of the Law they, and persons in the same situation, have to bring their claims before the Rabbinical Courts of the State. Where, therefore, is the substantive personal right which has been affected? What has happened is that the forum has been changed; there has been in these circumstances nochange in a right or deprivation of a right.

 

13. It has been submitted that a statute which transfers jurisdiction from one court to another cannot affect pending claims. As authority for this proposition the case of Nassar v. Attorney-General (2) was cited. In that case a man had been convicted by a civil court, and it was argued on appeal that that court had been deprived of jurisdiction in the course of the proceedings on the charge, since military courts had been established after the appellant had been charged but before he had been convicted, and jurisdiction to deal with the offence of the type of which the appellant had been convicted, had been conferred upon the military court. This submission was not accepted by the court which contented itself with the following laconic judgment: "In our view, having regard to section 5 of the Interpretation Ordinance, the accused was properly tried by the civil court."

 

            This was the sole ground upon which the court based its decision. We have already seen, however, that the court held otherwise in Hamdan's case (7), and it seems to me, moreover, with all respect that the court fell into error in Nassar's case (2). At that time the Interpretation Ordinance, 1929 ( Drayton, Cap. 69), was in force, and section 5(1)(e) of that Ordinance - which is fundamentally similar to section 17(2)(e) of the Interpretation Ordinance of 1945 - provided that the repeal of an Ordinance shall not affect "any investigation, legal proceeding or remedy in respect of any such right and any such investigation, legal proceeding or remedy may be instituted, etc." But we have already seen that that 'right' which is spoken of here is the right mentioned above in section 5(1)(c) - which is identical with section 17(2)(c) of the Ordinance of 1945 - and the meaning of that right is a personal, substantive right acquired by a person, and not some abstract advantage gained from the rules of procedure. The whole purpose of section 5 was to prevent a substantive right from being affected by the Law which was repealed,and not the judicial procedure itself.

           

            14. It has also been submitted that there is not in this case a change of the jurisdiction of the courts alone, but also a material change in substantive law and the application of the law. I do not accept this submission. The appellants applied to the District Court and sought a declaration in regard to their personal status. It is not disputed that their status is to be determined according to Jewish law. What then is the difference between the District Court and the Rabbinical Court? Both courts will have to deal with the matter within the same framework of substantive law, while the Religious Court has the advantage that it is also competent to decide questions of Jewish law, on which some of the greatest of the rabbis of Israel have differed. In what respect then can the appellants be aggrieved if they must now seek their remedy in the Rabbinical Courts?

           

 15. The doors of the Religious Courts, moreover, are wide open before them. And they may also have resort to legal precedents. I refer to the case of A. v. B. (22). In that case a Rabbinical Court was asked at the outset to decide the question of the validity of a sanctification which had been performed between a member of a priestly family and a divorced woman, before two witnesses alone, without ten persons being present, and without the canopy and the recitation of the traditional blessings. The Rabbinical Court pronounced the marriage valid. In the judgment, on appeal, of the Supreme Rabbinical Court of Appeals it is said, inter alia:

 

"The Supreme Court holds that the court of first instance was correct in law in accepting the evidence of the witnesses in regard to the marriage of the respondent and the deceased; although this marriage was forbidden by the Bible, being a marriage of a divorced woman to a member of a priestly family, nevertheless the marriage was valid, and made the woman the wife of her husband all the days of her life, and she is regarded as the widow of the deceased after his death." (Ibid., p. 135.)

           

            And two important principles - of those relevant to the matter before us - were laid down in that case by the Rabbinical Court of Appeals. First, "the right of any person interested to request the Court to determine his personal status", and secondly, "a marriage without a canopy and the seven blessings, without the presence of ten Jews and without the drawing up of the marriage contract - although such a marriage is a disgraceful mode of procedure contrary to the teachings of the scholars and the accepted custom in Israel - such a marriage, despite the above defects, is valid." (Ibid., p. 139.)

           

            From the point of view of its jurisdiction the Rabbinical Court accordingly reached the conclusion that it was "obliged to entertain the application and give its decision in accordance with the results of its consideration and deliberations" (ibid. p. 135-136), and, as I have said, in regard to the merits of the case, held the marriage to be valid. In which respects, therefore, will the rights of the appellants be adversely affected if it be held that the law in question operates with retrospective effect, and that it is to the Religious Courts that they must now present their claim? The opposite is the case I have great doubts whether a civil court is obliged to entertain the case of the appellants, not from the point of view of lack of jurisdiction alone, but also from the point of view of discretion - an aspect which is not taken into account in the Rabbinical Courts, as we have seen above - but I shall return to deal with this question later at greater length.

 

16. It has been said that the law of evidence in a Rabbinical Court is not the same as the law of evidence, and the method of assessing evidence, in a civil court, and it has also been said that the system of justice in the two sets of courts cannot be compared, and that the principles of private international law will not be accorded proper recognition in the Rabbinical Courts. We are asked to conclude from these considerations that the transfer of the jurisdiction from the ordinary court to the Rabbinical Court is not a matter of procedure alone, but involves a fundamental change of material rights. There are a number of replies to this submission. In the first place, in regard to the law of evidence and the assessment of the sworn statements of witnesses, these are matters relating to the procedure of the courts, and we have already said that a person has no vested rights in matters of this kind. Secondly, in regard to private international law, no question has arisen in the present case which calls for investigation or clarification according to the principles of private international law, and this is neither the time nor the place for a consideration of this question. Thirdly, it is true that the Rabbinical Courts do not regard themselves as bound by the principles of private international law, but that is no proof that those courts will never in any case be prepared to follow those principles, and in a proper case will pay no attention to them. And finally, even if we must regard the new law as altering material rights upon the single ground that the Rabbinical Courts do not recognise the principles of private international law, what is the distinction between a case that is pending - such as the case before us - and a case which has not yet been brought? A case brought from now onwards in the Rabbinical Courts will not be subject there to the principles of private international law, although the marriage was celebrated before the new Law came into force. This conclusion, as it seems to me, is plainly inconsistent with the presumption - which is not disputed  - that also in cases such as that before us jurisdiction will henceforth be in the hands of the Rabbinical Courts.

 

17. In short, it is my opinion that it was not the intention of the new Law - the Law of Marriage and Divorce - to impair any material right of the appellants, and persons similarly placed. Section 1 merely lays down which court is competent to deal with matters of marriage and divorce relating to Jews of the class of the appellants. It follows that it merely regulates matters of procedure and nothing more. In the leading case, Wright v. Hale (38). which I have already mentioned,. it was held by Channell B. that:

 

"Where the giving to a statute a retrospective operation would be to divest a right to put an end to an action by plea or such like, the Court should clearly see that the Legislature intended such a retrospective operation; that rule does not apply where a statute only relates to procedure or practice."

           

            The Law of Marriage and Divorce deprived no one of his right of action. Nor did it impair any other substantive right. It was de­signed to change the procedure which was previously employed in regard to the jurisdiction of the courts of the State to deal with matters of marriage and divorce of particular classes of persons. Section 1 of the Law does not provide that "claims in regard to marriage, etc. shall be brought only in the Rabbinical Courts". Had the law laid this down, I would have said that "shall not be brought" ex­cludes cases which have already been brought. The Law lays down another and different provision, namely, that from the day the law comes into force those matters shall be dealt with in the Rabbinical Courts. In other words, no other court will in the future be com­petent to hear and decide such matters. This intention on the part of the legislature is, in my opinion, clear, and it is therefore right that this procedural provision should apply not only to claims which will be brought in the future, but also to claims which had already been brought and were pending at the time that the Law came into force, since the civil courts have been deprived of jurisdiction to give a decision in such matters.

           

18. The dicta of Dunkelblum J. in Kwatinski v. District Com­missioner (20) do not, in my view, contradict what I have said above, and this for two reasons. In the first place, the law which was being considered in that case by Dunkelblum J. dealt with the material rights of the individual, and not merely with questions of procedure. Secondly, the Law there dealt with repealed older Laws, and since the legislature "found it desirable to create unity in the position of various persons", (to quote the words of the judgment in that case) it enacted special interim provisions in order to preserve the rights which were vested in such persons. Completely different is the case of a law which does not expressly repeal earlier laws, but which lays down provisions the purpose of which is merely to transfer the jurisdiction of one court to another court.

 

19. For these reasons it seems to me that the learned judge in the District Court was right in his conclusion - shortly expressed - that he had no jurisdiction to deal with the case. I am not sure that it was necessary for him to dismiss the claim completely - as he did - for this reason: it seems to me that in the circumstances, since the Rabbinical Courts are also included within the framework of the courts of the country, he could have transferred the case to the local Rabbinical Courts for consideration, without the appellant being compelled to restart proceedings.

 

20. In view of my conclusion as stated above, according to which the District Court is deprived of jurisdiction to deal with the matter, there is no need for me to consider the other questions which have arisen in this appeal. However, since my opinion is a dissenting opinion, I shall add some dicta on one further question, namely, whether in the circumstances of the case before us the court should have exercised its discretion in favour of the appellants.

 

21. The relief claimed is a declaration that the sanctification by which the first applicant - a person of a priestly family - married the second applicant - a divorcee - was valid; and that the applicants are married to each other according to Jewish religious law. A District Court is competent to grant relief of this kind by virtue of Rule 52(4) of the Civil Procedure Rules, 1938, which provides that:

 

            "No action shall fail on the grounds that the relief claimed is declaratory only."

           

            The rule referred to does not differ in principle - though it is very much more limited in scope - from Rule 5 of Order 25 of the Rules of the Supreme Court of Judicature in England. This last mentioned rule has been the subject of much discussion from the very day of its coming into force - in the year 1883 - and a number of basic principles in regard to its application have been laid down for the guidance of the courts. These principles may assist us in solving the question whether the circumstances of the case before us justify the granting of the declaratory order sought or not before examining those principles, however, it will be proper to point out very shortly the nature and origin of an order declaring rights.

 

            The remedy in question developed in three stages. Before 1852 the Courts of Equity in England were not accustomed to grant declarations of rights, save as relief which was incidental to the principal remedy sought in the claim. This does not mean that they did not regard themselves as competent to grant such orders. There is no doubt that they were competent, but they saw no necessity to exercise that power since they did not regard the grant of declaratory orders alone as an appropriate solution for the problems which were brought before them. In order to amend this custom, which was accepted in the Courts of Chancery, Section 50 of the Chancery Procedure Amendment Act, 1852, was passed. This section laid down that Courts of Equity would be entitled to grant orders declaring rights, although no additional principal remedy had been sought in the body of the claim, and no such remedy was granted by the courts. This second stage, however, did not see the complete solution of the difficulty, since according to the interpretation given to Section 50 by the courts, declaratory orders would not be given save where the court was also competent to grant the principal remedy, although such remedy was not claimed by the plaintiff. This state of affairs continued until 1883, in which year Rule 5 of Order 25 - that is the third stage in the development - was made, which empowered the court to give Declaratory Orders whether a remedy ancillary to such relief was claimed, or not. (On this point see the judgment of Bankes L.J. in the Guaranty Trust Co. v. Hannay (31).)

           

22. In the Rules of Procedure which we are accustomed to follow, the provision parallel to Order 25, Rule 5, is Rule 52(4), although, as I have said, our Rule is very much more restricted than the English rule from which it was taken ; and there is room for the submission that our rule introduced to our law only the second stage of the development which I have described, and that we have not yet reached the third stage of that development. I make no comment on this submission, because it was not argued before us. One thing is clear, however, from all that I have said, and is not disputed: the source of a declaratory judgment is to be found in the Courts of Equity. Since that is so, it seems to me that it would not be proper to grant such an order without paying due regard to the accepted principles of equity.

 

23. Let us now deal with some of the judgments of the English courts - both superior and inferior courts - on the nature, scope and content of a claim for a declaratory order made under Order 25, Rule 5, on the measure of usefulness of such an order, and on the duty of care cast upon the courts before granting such an order.

 

            In the Grand Junction Waterworks Co. v. Hampton Urban District  Council (42), Stirling J. said (at pp. 345, 346) :

           

            "...When the court is simply asked to make a declaration of right, without giving any consequential relief, the court ought to be extremely cautious in making such a declaration, and ought not to do it in the absence of any very special circumstances."

           

            And in Dyson v. Attorney-General (43), Cozens-Hardy M.R. said (at p. 417):

           

            "The Court is not bound to make a mere declaratory judgment, and in the exercise of its discretion will have regard to all the circumstances of the case. I can, however, conceive many cases in which a declaratory judgment may be highly convenient..."

           

            And in Burghes v. Attorney-General (44), Warrington J. said (at p. 156) :

           

            "But the jurisdiction (to give a judgment declaratory of rights under Order 25, Rule 5) is discretionary, and should be exercised with great care and after due regard to all the circumstances of the case."

 

            A judgment more to the point in regard to the restrictions imposed upon the Court in considering the issue of a declaratory judgment, was given by Bankes L.J. in the leading case of Guaranty Trust (31), which we have already mentioned. In that case the learned Lord Justice said (at p. 572):

           

            "There is, however, one limitation which must always be attached to it (the relief claimed), that is to say, the relief claimed must be something which it would be unlawful or unconstitutional or inequitable for the Court to grant or contrary to the accepted principles upon which the Court exercises its jurisdiction. Subject to that limitation I see nothing to fetter the discretion of the Court in exercising a jurisdiction under the rule to grant relief ..."

 

            In Russian Commercial Bank v. British Bank (45), Lord Dunedin, in delivering one of the majority decisions, after praising the correctness of the test applied by the Courts of Scotland when requested to give an order declaratory of rights, said:

 

            "The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it ; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought."

 

            And Lord Wrenbury, expressing a dissenting opinion in the same case, said (at p. 461) :

           

"...the authorities are numerous that the discretion of the Court to make a declaration..... is to be most carefully and jealously exercised. The present case is so extreme that if the discretion is to be exercised in favour of entertaining an action for a declaration without relief in this case, I cannot at the moment picture any state of facts in which the court might not exercise its discretion in that direction ...."

 

In Gray v. Spyer (46), Lord Sterndale M.R. said (at p. 27) that

 

            ".... claims for declaration should be carefully watched. Properly used they are very useful ; improperly used, they almost amount to a nuisance."

           

In Thomas v. Attorney-General (47), Farwell J. said (at p. 313) :

 

            "That power given to the court to make declaratory judgments is purely discretionary and the court is not bound to entertain such an application except in a proper case."

           

            And finally, in Har-Shefi v. Har-Shefi (48), Singleton, L.J said (at p. 786):

           

"... any such claim (for the giving of a declaration) will be carefully watched. The Court will not grant a declaration in the air."

 

24.       The courts of this country have in general followed English precedent, and have defined the power to grant an order declaring rights in the light of the interpretations given to Rule 5 of Order 25 by the English courts. I shall cite, for example, the opinion of Windham J. , as quoted in Nathaniel v. Cohen (10), a judgment which was overruled on appeal on another point. And this is what Windham J. said (at p. 697 ibid.):

 

            " ... the court will with the greatest caution and reluctance give a declaratory judgment in vacuo where no consequential relief is prayed for and where at the same time, such consequential relief ... lies within the exclusive jurisdiction of some other tribunal."

           

            The same applies to Levin v. Local Council, Ramat Gan (15), in which Judge Kassan said, at p. 298, that:

           

"It has already been held by the court... nor is the point in dispute - that the court is entitled, by virtue of Rule 52(a) (sic.) of the Civil Procedure Rules, 1938, to issue a declaratory judgment even if it is not asked to grant relief ancillary to the main relief sought... but the question whether or not a declaratory judgment should be given is one within the discretion of the court, which is required to act with the utmost care and circumspection."

 

25. To sum up then, the position may be stated very shortly in these terms: The court will not as a rule refuse to give a declaratory judgment where there exists a dispute between the parties and one of them seeks advice and guidance in regard to his legal rights so that he may know which path to follow, even though he does not at the same time also seek relief which is ancillary to such a declaration. The court, however, will examine an application of this kind with the closest scrutiny, and will not grant the application save after having weighed all the circumstances of the case - only then will it decide in favour of the plaintiff.

 

26. No general principles have been laid down in the decided cases under which the court is to weigh the circumstances of the case brought before it. In any event, the investigation of such principles has not been exhausted, and it would seem that each case is to be decided according to its own particular facts. We have already seen the test suggested by Lord Dunedin in the Russian Commercial Bank case (45). This test was adopted by Bourke J. in Ossorguine's case (14). As against this, we find that different and additional considerations have been relied upon in other judgments. I shall not deal with them all, but with only a number of them.

 

In Roesin v. Attorney-General (49), it was held that a foreign national who resided in England, and had received no notice from the authorities of their intention to discriminate against him in regard to his duty of military service, in favour of other foreign nationals residing temporarily in England, was abusing the power of the court in applying for an order declaring that he was a national of a particular state.

           

            In the Grand Junction Waterworks case (42), which has already been referred to above, it was held that where an alternative remedy exists, a declaratory judgment will not be given. This principle was also laid down in the Municipal Council of Jerusalem case (9), and was even extended to some extent in that case (see p. 510).

           

27. I have not found any judgment which deals directly with the question whether the behaviour of the applicant for a declaration - that is to say, his behaviour before he came to court, whether his hands were clean, whether his conscience was clear, and so forth - is one of the circumstances which the court is required to weigh in dealing with the application. However, even though I have found no proof of this, I have found a reference to this question. It appears from Nathaniel's case (10), that the Appeal Court, in confirming the decision of the lower court to dismiss the application for a declaratory  order, did not disregard the behaviour of the applicant for such an order (see, particularly, the dicta on p. 320). And in an American case (see Harril v. American Home Mortgage Co. (5)), it was held that a mortgagor was not entitled to an order declaring promissory notes and the trust deed void, "without doing equity by repaying or offering to repay money borrowed on the security thereof."

 

28. It is not surprising that the courts have not been required to lay down a principle in connection with this serious question, for what kind of applicant turns to the court for a declaration ? I would say that the usual applicants are persons who, by reason of negotiations which they have conducted with others in good faith, are puzzled as to their rights. They ask themselves what, indeed, are the obligations into which they have entered and to what rights they are entitled from the other party. Against them stand litigants who submit legal submissions to deprive them of their rights. The doors of the courts are open before applicants such as these, subject to the restrictions which we have seen above. It is very rare that persons will knowingly - and, I would say, deliberately - place themselves in a position of embarrassment and thereafter approach the court and request an order declaring their rights and their legal status. It may be that this is the reason for the dearth of judgments on this point. It is my feeling, however - and I cannot rid myself of this impression - that the court, in considering all the circumstances of the case before it, particularly as we are dealing with relief which originated in the Courts of Equity, cannot, and should not, disregard the behaviour of an applicant and the background of his actions which, he submits, have created the rights in respect of which he seeks an authoritative declaration from the court.

 

29. How did the appellants behave? The facts are clear, and there is no need to relate them again except in a very abbreviated form. The first appellant is a man of priestly family - or a person in respect of whom there is a doubt whether or not he is of such a family - and the second appellant is a divorced woman. The first appellant proposed marriage to the second appellant, who agreed. No Rabbi, however, could be found in Israel who was prepared to perform the ceremony of marriage according to Jewish religious rites, by reason of the Biblical prohibition (Leviticus XXI, 7) "..... neither shall he take a woman put away from her husband". The parties then approached the advocate, David Ganor, who represents them and who has submitted his contentions on their behalf in these proceedings. He conducted an "unofficial" wedding ceremony for the appellants in his office, in the presence of only two witnesses who had been specially invited for the occasion, and in the presence of two constables who came as uninvited guests in order to warn those participating in the marriage farce that their action was illegal. All those present knew, of course, that the celebration was irregular, and had not been performed in accordance with the usual and accepted manner between bride and groom. Mr. Ganor, however, who described himself as one who has completed courses in an 'Academy, and studied the Talmud, although not the Shulhan Aruh', and who attended lectures on Jewish law by Dr. Eisenstadt for a year at a law school, and who - he added - was in a better position than others, knowing both parties to the marriage, for 'it is impossible to deceive me as those who register marriages at the Rabbinate might be' - this advocate examined the certificates in the hands of the parties, and after having made his findings in regard to their personal status, he performed the ceremony of sanctification and authorised them to live together as husband and wife. It is, of course, no part of our duty to examine the standard of 'knowledge' attained by Mr. Ganor in Jewish law - of the Talmud and the commentators, both the early and the later - nor is the matter of any importance for our present purposes. It is, however, admitted by all that Mr. Ganor knew - and it is to be assumed that he also conveyed this knowledge to his clients, the bride and bridegroom, and also to the witnesses who 'accompanied the bridal pair' - of the prohibition imposed by the Bible on a person of priestly family from marrying a divorced woman, and of the rules of marriage made by the Rabbis of Israel, in accordance with which - as was held by the learned judge:-

 

"It is forbidden (a) to perform a sanctification of a betrothal except when there is a marriage canopy, in the presence of ten witnesses, and after the registration of the marriage in the offices of the Rabbinate ; (b) to celebrate a sanctification save by those who are authorised and appointed for that purpose by the Chief Rabbinate of Israel, local officers of the Rabbinate, and officers of the Chief Rabbinate in each city and large town; (c) to rely upon any evidence of a marriage which has not been performed in accordance with this rule."

 

As is well known, these restrictions are strengthened by the Ban which is imposed on any person who infringes them. I do not intend to investigate here the validity of the marriage which was celebrated in breach of these rules, or the penalty which follows such infringement. What interests me here is the intrinsic meaning of the Regulations of the Rabbis of Israel in general, and of these marriage regulations in particular.

 

30. The various rules framed by the spiritual leaders of the Jewish people during the long period of its exile were designed to regulate, by means of the imposition of an internal independent discipline, the conduct of Jewish communities, to uphold their spiritual and moral level, to define the right of the individual and the community, to fix the relationship between man and his neighbour, and to lead to the increase of religion and wisdom in Israel. One of the earliest series of rules was intended to regulate married life and was designed to build a fence around and to prevent any breaches in the wall of the Jewish family. These rules in regard to marriage, which were dictated by the needs of the place and time, were framed primarily to prevent clandestine sanctifications, sanctifications of persons kidnapped, sanctifications which would bring the institution into contempt, sanctifications contrived as a result of cunning, sanctifications entered into by compulsion, and other sanctifications and marriages which were opposed to the morals of Judaism and the customs of the Jewish people. They were designed to impose, and they did in fact impose, the rule of the home over Jewish communities in the lands of their dispersion, and to impose community rule upon the individual. By reason of the special circumstances in which diaspora Jews found themselves, the sanction for these rules was the punishment which could be imposed, namely, the Ban, which involved not only the exclusion of the wrongdoer from the communal group, but also his excommunication and treatment as an outlaw.

 

31. It is not disputed that in our times, and in the Jewish State, matters such as these demand an approach consistent with the existence of a sovereign state, and the elimination from our renewed life of the institutions of the exile. Until, however, such matters are regulated by the State, it would seem that in some areas of activity - and in particular in the area of personal status - the vital need today, even in this country, for a number of rules which, in their time and place, fulilled so vital a function in the life of the Jewish communities of the exile, has not yet completely disappeared. My colleague, Silberg J., with great erudition, has dealt at length with the 'Jerusalem Ban' - which was relied upon by the learned judge in the Court below - and cited both early and late authorities in support of his observations. I do not wish to repeat the details of that Ban, which is similar to rules acted upon previously by our people, in exile and in the Land of Israel itself. Special interest attaches, however, to the introductory words to that Ban, and to the rules for the enforcement of which it was introduced. The introduction provides as follows: -

 

"Because of the Ingathering of the Exiles from all the places of their dispersion, and from the ends of the earth, and far-away isles, who are coming up in their thousands and tens of thousands, and are settling in the Holy Land through the great loving-kindness of the Holy One, and are bringing with them their former customs which are not in accordance with the rulings of the sages of the Land of Israel in the Holy City of Jerusalem, and those of the Rabbis of the communities of Israel in Matters of sanctification, divorce, levirate marriage, and this is liable to lead to differences of opinion in Israel and to disturb the peace of the House of Israel; for this reason we have regarded it as our duty to re-enact the rules issued by our former Rabbis, and to add further similar rules which are demanded by the times for the sake of ensuring the peace of the community - rules which are of fundamental importance in regard to all the rules of our former Rabbis for their communities from the days of Moses until later generations.

 

This follows the customary invocation of the help of God and the expression of deference to the great sages of bygone ages, and the consent obtained for the Ban by all the great rabbinical authorities then living in Jerusalem."

           

            This Ban and these rules were designed, therefore, to build a fence 1⁾ and so prevent licentiousness in Jewish family life, and thus preserve stable relationships, a high moral level, and the purity of ethical standards in this fundamental institution of human society. The fact that such regulations have not lost their meaning may be seen from the facts of Banin v. Banin (11). That case dealt with a man who sanctified a woman against her will, and not in the presence of ten persons, and so forth. The matter came before the Rabbis, who annulled the sanctification. This shows that demoralization still exists, threatening the stability of the family and the status of the Jewish woman. The regulations were designed to build a fence against such lawlessness. What did the appellants do in this case?! What did the lawyer do who guided them by his advice and acts? They impudently disregarded accepted rules, and were impervious to the purpose which those rules were designed to achieve.

 

32. Nor is this all. In the time of the Mandate the authorities in this country recognised the urgent communal need of centralising in one legal body matters relating to the marriage and divorce of the residents of the country, in order that there should be continuous and effective control over such matters. This is proved by the Marriage and Divorce (Registration) Ordinance ( Drayton, Vol. 2, Chap. 88), which laid down detailed and express directions for the registration of marriages and divorces, and special instructions for giving effect to those directions. And in order to prevent unbridled licence in such matters, it was held by this court in the time of the Mandate (see Rokach v. District Commissioner (12)) that the authorities were not obliged to supply forms of certificates for the registration of marriages and divorces to a Rabbi who was not authorised as a registering authority by the competent religious institutions of the Jewish community. The effect of this ruling is that not even every Rabbi in Israel is empowered by the law of the country to celebrate sanctifications. A couple, therefore, who approach a rabbi who is not entitled to register marriages according to law, to celebrate a marriage between them, does so in vain. In that case Frumkin J. said, at p. 201:

 

"... One cannot overlook the danger of upholding the contention of the respondents, both from the point of view of public policy, as well as of the preservation of the traditional purity of Jewish family life ... The main object of the Ordinance would then be defeated and the purpose of keeping the celebration of marriage and divorce within the framework of law and good order undermined."

           

33. It would perhaps not be superfluous to review here, shortly, the attitude taken by the Supreme Court in the time of the Mandate to the question of the validity of marriages of the type with which we are now dealing, though I myself am not prepared to decide the appeal on this point in view of my attitude on the other questions which have arisen. The opinion of the Supreme Court in the time of the Mandate was expressed on a number of occasions by Frumkin J.,and the same conception is found in all his judgments on this question as a central theme. In Banin's case (11), Frumkin J. said, at p. 562:

 

            "We personally feel some doubts as to the validity in law of the second marriage. According to the evidence of the woman, who is supposed to be the second wife of the Respondent, she was not married to the Respondent by marriage contract, but by a marriage ceremony (Kiddushin) in the presence of two witnesses. In the case of HefziBah v. Ibrahim Mizrahi, the Rabbinical Court of Appeal of Palestine has declared invalid Kiddushin not effected before a representative of the Rabbinate and not in the presence of a congregation of ten, and not accompanied by a deed of writing."

 

            In another judgment, (see ,Silberstein v. Constable in Charge of Police Lock-up (13), Frumkin J. said, at p. 17 :

 

            "The effective part of the solemnisation of a marriage ceremony under Jewish law is that the bridegroom puts a ring on the finger of the bride saying : 'You are hereby sanctified to me under the Law of Moses and Israel'. Under strict Religious law the mere handing over of the ring or a coin to the bride followed by the said phrase is sufficient to establish a binding marriage between the parties; but in practice this is not the common form of marriage. It is only a part - as I have said, the effective part - of the ceremony which should be 1⁾ celebrated by a religious minister in the presence of a congregation of at least ten males and is accompanied by a written deed of marriage, called 'Ketuba'.

 

            Again in another judgment, Stark v. Chief Execution Officer (6), Frumkin J. said, at p. 279 :

           

"On more than one occasion I expressed my distaste  for forms of marriage like this and I have a very strong view that semi-marriages of that sort, if I may so call it, should be discouraged, but if under Jewish law some sort of a tie is established between a couple undergoing such a formality, a dispute arising out of or in connection with it must be left for the Rabbinical Court to decide.However strange it might seem that there might be a marriage which is yet incomplete such a thing apparently exists in the Jewish law and just as parties are allowed to sue for certain rights under a defective agreement, there is no reason why a party should not be allowed to sue for certain rights under an incomplete marriage."

 

            In these cases a civil court was not asked to give a declaration of rights, and the question of validity of the marriage only arose incidentally in an application for the giving of actual relief of another kind. The court, however, whenever it found it possible to do so, did not fail to express its contempt for marriages performed in this way, and to voice serious doubts as to the validity of such marriages.

           

34. In short, we are not dealing with the case of a man who came to this country from overseas bringing his wife with him, or who sanctified a woman here according to Jewish rites in good faith and in a manner in which such a ceremony is performed in his own country, and who seeks a declaration of rights, that is to say, in more usual terms - who seeks legal confirmation of his marriage. We are dealing with people who knew the position, and intended to circumvent it. They did not genuinely believe that their sanctification had been performed in accordance with religious rites and in accordance with law. On the contrary, they knew that - at least from a formal point of view - the sanctification had been performed in defiance of the rites of the law. They ask us for a judgment declaring their rights according to Jewish law, when they themselves have impudently paid no regard to Jewish law and the rules promulgated by those having authority in the very matter from which, as they submit, their rights flow. They claim rights emanating from their own wrongdoing. The matter may be compared with one who offends the law as did Zimri and asks to receive the reward of Phineas 1). And Phineas, let it be added, was also of priestly family. Is this a case in which the court should help those who seek its assistance and exercise its discretion in their favour ? Is it conceivable, for example, that a man who married a minor in contravention of the Marriage Age Law, 1950, could petition a civil court and seek a declaration that the marriage was valid according to Jewish law ? And if he were to seek such relief - is it conceivable that the court would accede to his request although his submission be sound from the purely legal point of view? This would be an abuse of the process of the court and not a means of exercising its jurisdiction. In my opinion the court is not bound to assist lawbreakers and should prevent a wrongdoer from reaping the benefits of his wrong.

 

35. As I have said, I have found no direct authority for the conclusion which I have reached. I cannot help feeling, however, that from the point of view of equity, and from the point of view of "the accepted principles according to which the court uses its powers" - according to the true test as laid down by Bankes L.J. in the Guaranty Trust case (31) - this is a case in which the court is not bound to exercise its discretion in favour of the appellants. My colleague, Silberg J. has reached the opposite conclusion, but he too did not do so without much reluctance. This is what he says : -

 

            "I have arrived at this conclusion with considerable reluctance. I frankly admit that my inclination, as a judge and as a man, has been, from beginning to end, not to give official sanction to that private ceremony. Nobody will approve of marriage ceremonies like this, and no judge will feel sympathetic towards applications like the present."

           

My learned colleague states, at the conclusion of his remarks: -

 

            "In short: I have reviewed every aspect of the case, and I have found no ground for the annulment of the sanctification."

           

            With all respect and regard for the views of my colleague, the court has not been asked to annul the sanctification, but to declare its validity - that is to say, to give it legal confirmation. As is well known, the distance is wide indeed between a prayer for annulment and one for a declaration of validity.

           

            Neither in the South African case of Martens v. Martens (51), which is mentioned at the conclusion of the judgment of Silberg J., nor in the English case of H. v. H. (34), which quotes the South African case with approval, was the question considered of the right of the 'deceivers', the 'fictitious' husband and wife, to appear before the court and to ask with supreme effrontery for a declaration by the court that their marriage was celebrated in accordance with religion and law. The question of the marriage, although it was of importance in those cases, arose only incidentally in connection with the question of the granting of other vital relief. Those cases, therefore, are of no assistance in the present appeal.

 

            As far as the attitude of the lower court is concerned, it is sufficient to read the judgment of the learned judge to see that were it not for the fact that he held the sanctification itself to be invalid, he too would not have exercised his discretion in favour of the appellants.

           

            My colleague, Sussman J., also expresses his dissatisfaction at the 'act of lawlessness' in the celebration of the secret sanctification, and he suggests his own solution to the whole problem. But does not common sense demand that, in the light of this dissatisfaction, the court should not confirm the 'act of lawlessness' and give it official sanction ?

           

36. In conclusion I wish to make two short observations. In the first place, the appellants are not altogether without remedy. They are entitled even now to submit their application to the Rabbinical Court. That court is competent to deal with their prayer, and we have seen that it has already recognised the sanctification of a member of a priestly family to a divorcee. Moreover, in accordance with what was held in A. v. B. (22),

 

            "Any person interested is entitled to request the Rabbinical Court to define his personal status. The considerations which are taken into account by a civil court are not conclusive in the Rabbinical Court."

           

            My second observation is this. It cannot be said that the present case is an isolated one or the last of its kind, and that the civil courts will not be asked in the future to decide similar matters. We were told in the course of the proceedings that a judgment was given not long ago on the question of the validity of a secret marriage between a member of a priestly family and a divorcee, and that the judges of the District Court were divided in their opinions. It is true that the Marriage and Divorce Law referred to has introduced a radical change in the procedure to be followed in matters of personal status, and that the great majority of these questions will be considered in future by the Rabbinical Court. That law, however, only applies to residents and nationals, and if a declaration were to be given by this court in the present case, a vast number of foreign nationals and residents, in a position similar to that of the appellants, will bring their wives who were previously divorced to this country from overseas, or will marry divorcees in this country secretly, and will then approach the courts of this country for legal confirmation of their acts. The courts of this country will thus be turned into a clearing house to which all doubtful sanctifications and all void sanctifications of the persons described will be brought for confirmation and validation. In my opinion, this must be prevented at all costs.

 

            In view of what I have said, I would dismiss the appeal.

           

            It is therefore decided by a majority to allow the appeal, to set aside the judgment of the court below, and to declare that on December 16, 1962, at Tel Aviv, the first appellant Aharon Cohen, sanctified the second appellant, Bella Bousslik, by a Jewish ceremony of sanctification and that by virtue of that sanctification they are to be regarded as husband and wife as from the above date.

           

            Appeal allowed.

            Judgment given on January 15, 1954.

 

In the Supreme Court

Sitting as the High Court of Justice

       HCJ 466/07

HCJ 544/07

HCJ 830/07

HCJ 5030/07

Before:                                            Her Honor, President D. Beinisch

                                                                   His Honor, Deputy President E. Rivlin

                                                                   His Honor, Justice (ret.) E.E. Levy

                                                                   His Honor, Justice A. Grunis

                                                                        Her Honor, Justice M. Naor

                                                                        Her Honor, Justice E. Arbel

                                                                        His Honor, Justice E. Rubinstein

                                                                        His Honor, Justice S. Joubran

                                                                        Her Honor, Justice E. Hayut

                                                                        His Honor, Justice H. Melcer

                                                                        His Honor, Justice N. Hendel

 

Petitioner in HCJ 466/07:                     M.K. Zehava Gal-On

Petitioner in HCJ 544/07:                     The Association for Civil Rights in Israel

Petitioners in HCJ 830/07:                   1.         Ranin Tawilla

2.       Hattam Tawilla

3.       Assalla Tawilla

          4.         Mahmoud S’bihat

5.       Dima Tawilla

6.       Ulla Tawilla

7.       Ahmed S’bihat

          8.         Mahmad S’bihat

9.    Adalah – Legal Center for Minority Arab Rights in Israel

Petitioner in HJC 5030/07:       Hamoked – Center for the Defense of the Individual, Founded by Dr. Lotta Salzberger (A.R.)

 

                                                            v.

 

Respondents in HCJ 466/07     1.        Attorney General

                                                            2.         Minister of the Interior

                                                            3.         Israel Knesset

Respondents in HCJ 544/07     1.        Minister of the Interior

and HCJ 5030/07                     2.        Commander of the Military Forces in Judea and Samaria

                                                  3.        Head of Southern Command

Respondents in HCJ 830/07     1.        Minister of the Interior

                                                  2.        Attorney General

 

Requesting to Join as                          1.         Fence of Life Movement: For the Construction Respondents                                                                   of a Separation Fence

                                                  2.        Shurat Hadin – Israel Law Center

                                                  3.        Im Tirzu – Building the Zionist Dream

                                                  4.        Movement for Renewed Zionism

 

Petitions for an Order Nisi

 

Date of Sessions:                      Nissan 2, 5767                       (March 21, 2007)

                                                  Heshvan 12, 5768      (October 24, 2007)

                                                  Nissan 30, 5768                     (May 5, 2008)

                                                  Adar 19, 5769                       (March 15, 2009)

                                                  Adar 16, 5770                       (March 2, 2010)

 

On behalf of the Petitioner in HCJ 466/07:	Adv. D. Holz Lechner; Adv. Tali Aviv
On behalf of the Petitioner in HCJ 544/07:	Adv. D. Yakir; Adv. S. Abraham-Weiss; Adv. O. Feller
On behalf of Petitioners in HCJ 830/07:	Adv. H; Joubrin; Adv. S. Zohar
On behalf of the Petitioner in HCJ 5030/07:	Adv. Y. Ben-Hillel; Adv. Y. Wolfson; Adv. L. Bechor
On behalf of Respondents 1 & 2 in HCJ 466/07, and Respondents in HCJ 544/07, HCJ 830/07, and HCJ 5030/07:	Adv. Y. Genessin; Adv. A. Licht; Adv. N. Ben-Or
On behalf of Respondent 3 in HCJ 466/07	Adv. R. Sherman-Lamdan
On behalf of Request to Join no. 1:	Adv. I. Tsion
On behalf of Request to Join no. 2:	Adv. L. Azar; Adv. A. Chen
On behalf of Request to Join no. 3:	Adv . J. Reshef; Adv . A. Baruch
On behalf of Request to Join no. 4:	Adv . K. Neumark

 

Israeli legislation cited:

Citizenship and Entry into Israel Law (Temporary Order), 5763-2003

Basic Law: Human Dignity and Liberty

Foreign legislation cited:

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot) Act, 2001

Israeli Supreme Court cases cited:

[1]        HCJ 7052/03 Adalah – Legal Center for Minority Arab Rights in Israel v. Minister of the Interior [2006] IsrSC 61(2) 202.

[2]        CA 6821/93 Bank Mizrahi Ltd v. Migdal Cooperative Village [1995] IsrSC 49(4) 221.

[3]        HCJ 6427/02 Movement for the Quality Government in Israel v. Knesset [Nevo – 11.05.2006].

[4]        HCJ 2605/05 Human Rights Division v. Minister of Finance [Nevo – 19.11.2009].

[5]        HCJ 6126/94 Szenes v. Matar [1999] IsrSC 53(3) 817.

[6]        EA 2/84 Nayman v. Chairman of the Central Elections Committee for the Eleventh Knesset [1985] IsrSC 39(2) 225.

[7]        CrA 6669/96 Kahana v. State of Israel [1998] IsrSC 52(1) 535.

[8]        HCJ  8276/05 Adalah, Legal Center for Minority Arab Rights in Israel v. Minister of Defense [2006] IsrSC 62(1) 54.

United States cases cited:

 [9]       Hiabayashi v. United States, 320 U.D. 81 (1943)

[10]      Terminiello v. City of Chicago, 337 U.S.I.

[11]      Texas v. United States, 523 U.S. 296, 300 (1998).

[12]      Baker v. Carr, 369 U.S. 186, 217 (1962).

[13]      Clark v. Suarez Martinez, 543 U.S. 371, 386 (2005).

[14]      Fiallo v. Bell, 430 U.S. 787, 792 (1972).

[15]      Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950).

[16]      Zadvydas v. Davis, 522 U.S. 678 (2001).

[17]      Lochner v. New York, 198 U.S. 45 (1905).

[18]      United States v. Carolene Products Co., 304 U.S  144 (1938).

[19]      New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

[20]      Schenck v. United States, 249 U.S. 47 (1919).

Other foreign cases cited:

[21]      Kiyutin v. Russia, no. 2700/10, ECHR (2011) – 111 (European Court of Human Rights).

[22]      Pfizer Animal Health SA v. Council of the European Union, (Case T-13/99) [2002] ECR II-3305 (European Court of Human Rights).

 [23]     Libman v. Attorney General of Quebec [1997] 3 S.C.R. 569 (Canada).

                                                           

 

Judgment (Abstract)

Justice (Ret.) E.E. Levy

 

The State of Israel … will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex (…)

We appeal - in the very midst of the onslaught launched against us now for months - to the Arab inhabitants of the State of Israel to preserve peace and participate in the upbuilding of the State on the basis of full and equal citizenship (from the Declaration of Independence, 14.5.1948).

 

The Background and Pleadings

1.    Exactly 58 years after these words were written, on 14 May 2006, this Court expressed its position on the Citizenship and Entry into Israel Law (Temporary Order) that was enacted by the Knesset in 2003 (hereinafter: the Law). A majority of six of the eleven Justices found the Law to be unconstitutional, ruling that it unlawfully violated the right to equality of Israel’s Arab citizens and the constitutional right to family life (HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [1] (hereinafter: Adalah Case). The Law was not declared void, and the Knesset was given time in which to amend it. That was five years ago. To this day the Law has not been amended as required.

2.    We have before us four petitions to invalidate the Law. It is argued that the Law is unsuited to the democratic paradigm, and does not implement the conclusions of the case law regarding the illegitimacy of the blanket restriction of the aforementioned rights. The Law discriminates between persons on the basis of nationality and ethnic affiliation, and does not reflect a willingness to take the risks that are inherent in the strict maintenance of basic human rights in general, and of the rights of the minority in particular. The respondents, on the other hand, are convinced that the Law comports with the complex reality in which Israeli democracy has been rooted since its very inception, and especially during the past decade –  years of terror that have been tantamount to outright war. In their view, prevention of immigration of enemy subjects into the territory of the State is imperative. The claim is that the security risk cannot be removed by means of individual checking. Instead, the Law which is under scrutiny at present has adopted a system of profiling – a system which is neither arbitrary nor sweeping, but which relies on the characteristics that are shared by terrorists, and which is capable of predicting risks and protecting the lives of Israelis.

Personally, it is unclear whether the line of argument taken by the State in its response – the security line – actually supports its position. Nevertheless, I too will limit this hearing to the parameters of the dispute as delineated in the respondents’ pleadings. Questions not yet ripe for resolution, such as, for example, the question of the composition of the Israeli population or the appropriate nature of an arrangement for immigration to Israel, will be left until their time arrives. I will just say that the character of the Law is reflected in the statements made on behalf of the Government by the Deputy Attorney General in the Knesset Interior Committee: “This provision was accepted by the Government for security reasons and due to an accelerated process of settlement of ten thousands of Palestinians in the State of Israel” (Knesset debate of 14 July 2003, emphasis added).

 

The Citizenship and Entry into Israel Law

3.  The core provision of the Law places limitations on the granting of status in Israel or a permit to remain therein to Palestinians who are inhabitants of the Territories, and to those who come from enemy states.

 

Limitation of citizenship and residence in Israel

During the period in which this Law shall remain in force, notwithstanding any legal provision, including sec. 7 of the Citizenship Law, the Minister of the Interior and the military commander shall not grant [to a Palestinian inhabitant of the Area] or to a citizen or resident of a state specified in the Schedule [Iran, Iraq, Syria and Lebanon] citizenship, nor will they grant him a permit to reside in Israel.

This blanket prohibition, from which Israeli residents of the Territories were excluded (sec. 1 of the Law), included a number of exceptions: Palestinian males over the age of 35 and Palestinian females of at least 25 years of age; minors up till the age of 18; a person who remains in Israel for purposes of work or medical treatment; and a person who identifies with the State or who has contributed to the advancement of its goals. Most of those applying for family reunification are not included in those categories.

The exceptions were included in the Law before it underwent judicial review on the previous occasion, when it was found to be disproportional. In the wake of the judgment, the Law was amended, but the amendment did not resolve the difficulty and in certain respects even aggravated it. A committee was established to consider exceptional humanitarian cases, and it was authorized to make a recommendation to the Minister of the Interior to permit temporary residence or a stay in Israel for special reasons. The Minister was authorized to establish a maximum yearly quota of such permits. The Humanitarian Committee approved only 33 of the more than 600 applications submitted to it, about one percent of an average of 3,000 applications for permits filed in each of the years that preceded the commencement date of the Law. The amended Law further provided that a person was liable to constitute a security threat to the State of Israel not only when there was information about him or a member of his family presenting a specific risk, but even if activity posing a threat to security “was carried out in his state of residence or in the area in which he lives.”

On Foundational Values and their Constitutional Expression

4.    Constitutional review seeks out the fundamental values upon which the political and social framework of the Israel is premised. All of these come together to form a broad conception which provides a common basis for the members of the nation, strives for coherence in sketching out the national story and records its defining features. This conception provides legitimacy for the existence of the nation, conferring upon it unique significance that distinguishes it from other nations. From this conception is derived – for the future as well – the image of the nation, the various developments of which are but a logical and ongoing sequence of chapters of the foundational narrative on which it is based. This idea was eloquently expressed by Dr. Sharon Weintal:

 

Looking backwards, the “foundational narrative” presents [the] historical events that preceded the establishment of the nation in the framework of a state, and provides the background and the justification for this development, such that the entire development is perceived to be a natural, obvious and legitimate one. From the current perspective, the “foundational narrative” presents the identity of the nation, as it was shaped in the process of its establishment, an identity that reveals the preferred way of life, common values, aspirations and purposes of the members of the political community, which are intended to guide those charged with the administration of the political framework. Looking to the future, the “foundational narrative” invites future generations to write their own unique chapters in the common story, without detracting from the logical sequence of the story, to change without becoming detached from the sources of the communal tradition (Sharon Weintal, “Eternal Clauses” in the Constitution: the Strict Normative Standard in Establishing a New Constitutional Order (Ph.D. Thesis, The Hebrew University of Jerusalem, 2005).

 

Identification of the nation’s foundational values is effected on the basis of the core conceptions of its people, its dominant and timeless values, foundational events, documents of special significance, its basic laws, its historical legacy and the consciousness that shapes its image. The foundational values express a broad cross-generational consensus. They reveal themselves from time to time in various scenarios occasioned by the life of the nation. They are written and updated from time to time. Each one of the governmental authorities is a partner, in accordance with its part and role, in their emergence, as well as in influencing their character.

5.    A conception that is concerned with the existence of foundational values raises, almost automatically, a question regarding their constitutional function. Two possibilities come to mind. The first lies in the idea of a material constitution, in the framework of which the foundational values fulfill their function as though they were constitutional norms, even if they are not anchored thus in writing. It is enough to correctly identify those values in order to recognize their normative weight, which is likely to limit the power – even that held by the legislator – to harm them. In this manner the foundational story may serve as an independent source from which constitutional values may spout. The second possibility rejects recognition of the power of any foundational narrative as an independent basis for the creation of constitutional values, but acknowledges the possibility of invoking this narrative in the interpretation of values which are based in constitutional documents. At the same time, the basic values play an important role in demarcating the borders of protection of the constitutional value. According to this approach, the values which the constitution did not seek, either explicitly or by derivation, to include within the scope of its protection will not merit constitutional status even if they are among the constitutive values of the nation.  However, the constitutional values will view the foundational narrative as a significant factor in determining the scope of their application and the determination of the extent of their protection.

These conflicting approaches found expression in CA 6821/93 Bank Mizrahi Ltd v. Migdal Cooperative Village [2] (hereinafter: Bank Mizrahi Case); in the decision concerning the enlistment into the Israeli Defense Forces of ultra-Orthodox Yeshiva students (HCJ 6427/02 Movement for the Quality Government in Israel v. Knesset [3] and especially in the case of the establishment of private prisons in Israel (HCJ 2605/05 Human Rights Division v. Minister of Finance [4]. In my own judgment in the last case, I remarked that “It might have been argued that recognizing the existence of basic values of the legal system as an instrument of quasi-constitutional review is inconsistent with the positive constitutional arrangement, whereby what has not yet been included in the Basic Laws is equivalent to an expression of negation of constitutional protection for those missing values  (ibid). I would now like to further refine these comments, through the prism of the present case.

There is little dispute that the Israeli constitutional project has not yet been completed, and that the Knesset, as the constitutional authority, retains the power to develop it. One may wonder why this development is necessary if one adopts a conception that recognizes the power of “fundamental values of the system” to constitute, as though out of thin air, new constitutional values.  The logical conclusion, which dovetails nicely with our constitutional tradition, is in fact that whereas the foundational values of Israel cannot engender independent protected values, their import lies in the interpretation of constitutional values in light of their purpose, and in the determination of the extent of protection that they warrant.

In these senses, the constitutional mechanism is an immensely important means for safeguarding the existence of the nation’s foundational values. It confers upon the legal system the power to protect the nation against radical changes to its foundational narrative which threaten to disrupt the sequence of building blocks that make up its story. Constitutional discourse protects the members of the minority from changes of this kind that are adopted by majority decision. It may well protect the rights of the majority from themselves. This mechanism helps identify an infringement of those values following a change that rattles the nation. It may sound the alarm. It may try to help repair the infringement. It is able to protect the normative framework from changes that would make such a violation possible.  However its power is not limitless. This point was made by the late Professor Gualtiero Procaccia:

 

… there is a danger that an ideological regression of a society will be accompanied by an ideological regression of its fundamental legal values. The legal system has no defense against this danger. The legal system in its entirety is a simulacrum of society, and if society changes, then so does the legal system, for good or for bad. Basic [legal] values cannot prevent the deterioration of society – this was not the purpose of their creation. Only the internal powers of society can prevent its deterioration. It is only continuous, uncompromising adherence to the eternal moral values of humankind that can prevent the deterioration of the society. Freedom, equality, and justice are the preliminary fundamental concepts of the legal system and they exist above and beyond it. As long as these moral values reside in people’s hearts, they will prevent the deterioration of the society, but if they do not exist, then it is not within the power of the constitution, the laws and the courts to save them (Gualtiero Procaccia, “Comments on the Changing Contents of Basic Values in Law” 15 Tel Aviv Law Review  (5750) 377, 382).

 

The Israeli Narrative – “Jewish and Democratic State”

6.    A distilled expression of the constitutive narrative of Israel is provided by the phrase “Jewish and democratic state”, which constitutes the keystone of our constitutional law.  The Declaration of Independence, from which I quoted at the beginning of my opinion, provides the outline for the character of the foundational infrastructure of the Israeli nation. The late Justice Haim Herman Cohn wrote of this declaration that it had been “raised to the level of the ‘manifesto’ of the state, in other words, a value unsurpassed by any other, values upon which the founding fathers promised to base the state” (Haim Cohn, “The Values of a Jewish and Democratic State”, Selected Writings (2001) 45, 51-52. It was not by chance that two Basic Laws, which together constitute Israel’s written Bill of Rights, provide as follows:

 

1.   Basic Principles	Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel.
1A.   Purpose	The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.

 

In the combination “Jewish and democratic state” lies the key to Israel’s self- determination. It is central to its definition, even for the outside observer. It encapsulates the reason for the establishment of the state, and its special character. It is the source of its justified demand for international recognition. It underlies the feeling of Israelis that this is a state that ought to exist, and that being a citizen of this state is worthwhile. It provides the basis for the conclusion that this can be done, despite significant internal tensions.

Filling a fundamental principle with real content is no easy task. Without exhausting the subject I would say that the basis of the foundation of a state is the need to ensure the safety of its citizens. Many a state has been established as a result of the desire of a national group that founded it to realize its right to self-determination. The concept Jewish relates in a concrete sense to the right of the Jewish people to self-determination, as well as to its ability to defend itself from the outside. The basic concepts of Zionism, history, culture, Jewish tradition, and the Hebrew language, as well as a Jewish majority of the population of the state, are some of the components of the “Jewish” part (of the combination). As a democratic framework, the state is committed to a substantive conception of freedom and of equality, to upholding the basic rights of the individual, including those of minority groups, and to open and accessible mechanisms for dialogue and decision-making.

Each of the terms “state”, “Jewish” and “democratic” is the receptacle of an entire complex of constituent values. Occasionally they contradict and compete with each other. The tasks of harmonizing them into a single coherent story occasionally appears as an attempt to square a triangle, the points of which are these three concepts. However, this is inevitable.  The conflicts that arise, like the attempts to resolve them, are an integral part of the Israeli story. Even though each of these values per se can be described as integral, complete and absolute, this is not necessarily true with respect to the extent to which each is protected. This extremely complex formula, into which the values of the Jewish and democratic state are compacted, cannot allow any one of the values involved to occupy the entire space or to act as though it existed in a vacuum. Absolute protection for any one of the values threatens to destroy the entire equation. A suitable and appropriate balance increases the prospects for its success. This element of balance also serves as a constitutive value in our system.  The story of the Jewish and democratic state is a delicate and complex story of balancing between its different components, and just as it cannot tolerate the absolute foregoing of any of these components, neither can it agree to a sweeping and absolute dominance of any one of them. As such, while there may be situations in which the extremities of aspects of a central value in our legal system may find themselves extending beyond the foundational Israeli tapestry, the essence of that value, the nucleus around which its most salient elements revolve, cannot be missing from our constituent story. Harm done to this core cannot but disrupt the delicate balance upon which the Israeli equation is based. Detracting from elements located in this nucleus of the foundational value cannot coexist with the fundamentals of our system. Abandonment of the fundamental, classical elements cannot be squared with the notion of a Jewish and democratic state.

7.    The foundational values may assume different forms and appear in various ways. Jurisprudence has developed various mechanisms for choosing between competing values, according to their nature and the nature of the conflict between them. In balancing between a foundational value in the form of an important public interest and a constitutional right of the individual, the limitation clause of the Basic Laws comes into play. Competition between these values is settled in light of the principle that permits the breach of a right only for the purpose of realizing an important public principle, provided that the extent of the violation does not exceed that which is required. Deciding between competing values, which is contrary to the notion of the proper purpose and proportionality, is not consistent with the foundational  narrative. The constitutional mechanism must fix this.

Constitutional Review

8.    In its attempts to determine whether a violation of a protected constitutional norm is appropriate, the constitutional mechanism of the limitation clause establishes a hierarchy in the form of a funnel: “by a law, befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.” This graduated structure is comprised of normative filters, which become progressively finer and denser. The test moves from the difficult to the easier. The more blatant the deviation from the constitutional order, the sooner will the norm in question be caught in the constitutional filter. Violations that involve more complex questions of constitutionality will need to continue further along the path of the limitation clause. The advantage of this structure is found in the signal it emits, both to the legislator and to the court, concerning the depth of the violation of the constitutional order, in the indication it provides with respect to the proper way of dealing with this violation. The establishment of the “geographical location” of the violation affords the legislator a better understanding of the nature of the change that it must make to the law in order to render it constitutional. This structure helps the court to select the proper relief, for the graver the violation of the normative order, the more immediate and definitive will be the judicial relief for the protection of the right that was violated.

A law “befitting the values of the State of Israel”

9.  A law that is inconsistent with the Israeli narrative cannot stand. Its violation of our first principles is severe, and it is like an alien element whose existence is intolerable. The impact of the violation is so severe that the constitutional order is designed to block it at a relatively early stage. Case law generally relates to the requirement regarding the values of the state as a test of purpose at a high level of abstraction, the question being whether the law promotes, in terms of its objective, the fundamental values of Israel as these are derived from the need to protect the constitutional right. Our concern here is with the objective in the broad sense, namely, with all of the components that grant the law its unique significance. These include not only the purpose of the law but also the means it adopts and its outcomes.

A law “enacted for a proper purpose”

10.  The criterion of the proper purpose addresses the specific objective of the law.  It examines the law’s combined purpose – that which emerges against the backdrop of the totality of circumstances, the normative environment and the time in which the constitutional review is conducted, and that which expresses the “historical” intention of the legislator. In this context the law must overcome three hurdles in order for its concrete purpose to be regarded as befitting: [a] It must be intended for the achievement of social objectives, i.e., it must serve a concrete public interest. This requirement may be referred to as the test of interest;  [b] The interest must be regarded as sufficiently important to justify the violation of a protected right, having regard to the essence of the right and the severity of the violation. This can be referred to as the test of necessity. In terms of its development in our case law, and unlike other systems of law, this test has a relatively open texture, involving value-based decisions; [c] The law must befit a democratic regime that protects human rights. This is the test of sensitivity to the right.

11. The test of sensitivity to the right has yet to be sufficiently expounded in our case law, and the main thing that has been said of it is that “[a] purpose is deemed proper if it constitutes a social goal in a society sensitive to human rights” (HCJ 6126/94 Szenes v. Matar [5]). According to this conception a law that seeks to further a security interest, i.e., that at base seeks to protect a person’s right to life, is a law that is sensitive to human rights, and this is sufficient for purposes of determining that it is for a proper purpose. However, I am hard put to think of a law that seeks to promote a viable public interest which does not have some import for any of the human rights. Not only is it difficult to assume that had there been such a law, the legislature would have refrained from enacting it, but even had it been enacted, it would not have overcome the hurdle of befitting the values of a Jewish and democratic state. One may therefore wonder as to the utility of placing the hurdle of sensitivity to human rights at this stage of the constitutional examination, in that it is difficult to conceive of any law that would not overcome that hurdle. Therefore, the requirement of a befitting purpose must be understood to mean that a law cannot be befitting if it fails to demonstrate, according to its purpose, sensitivity to the right that is actually violated, as evinced in the circumstances under examination. As such, if in the previous sub-­test – the test of necessity – the appropriateness of the concrete purpose is tested from the perspective of the public interest, this will now be supplemented by the perspective of the right that was violated. In order to be regarded as befitting in terms of its purpose, the law causing the violation must demonstrate that it does not seek to deliver a mortal blow to protected human rights to such an extent that it becomes indifferent to the importance and significance of the violated right. A law that is totally indifferent to the importance of the violated basic rights is a law with an improper purpose. It cannot fit into the framework of a social order in which rights discourse is of the essence. In order to meet the test of sensitivity to the right,­ it must be shown that the law leaves, insofar as possible, real space for the existence of the right – even if only of its nucleus – whether broader or narrow, whether now or in the future, with various limitations, and provided that a reading of the law leads to the conclusion that it does not deny this right. This point was addressed by Dr. Yaacov Ben-Shemesh:

A democratic state that is sensitive to human rights is not free to promote the realization of public objectives in an absolute manner, regardless of their cost, and regardless of the violation of human rights that may be involved. Total objectives lead to totalitarian practices. It is doubtful whether a law intended to realize its objective to the maximum degree is a law intended for a proper purpose even if its  purpose, per se, is a proper purpose. It is conceivable that such a law will not overcome the hurdle of propriety of purpose not because the purpose is not proper but because it seeks to achieve it in a manner that is not proper, having regard to the importance of human rights (Ben Shemesh, supra, p. 59)

“An extent no greater than is required”

12.  We have derived three tests of proportionality from the wisdom and experience of others (Moshe Cohen-Eliya & Iddo Porat, “American Balancing and German Proportionality: The Historical Origins”, 8 Int. J. of Con. L. 263 (2010); R. Oakes [1986] S.C.R 103; L. 263 (2010). Proportionality addresses the means that the law seeks to invoke. This means may totally fail to realize the purpose of the law, in which case its violation of the right is in vain (rational relationship test), or it may realize the purpose but cause damage that was avoidable. The importance of this latter dimension, which attempts to identify the means which is the least intrusive, emerges specifically with the adoption of the notion that the proper purpose of the law must leave some space for the violated right. Once the notion of totality in realizing the public interest is rejected, the path is clear for an examination of whether the means adopted was the only one possible. Finally, it is conceivable that the norm under examination may indeed have realized the proper purpose effectively, but at the same time it harmed other principles and values, such that its damage exceeds its benefit (“narrow” proportionality test).

13.  This last test must be distinguished from the requirement that the law befit the values of a Jewish and democratic state. The test of appropriateness addresses first principles, and the value judgments it involves will reflect a relatively wide consensus. In addition, the three components set boundaries for its implementation. The final test of proportionality, which is paradoxically referred to as “narrow” even though it is quite broad, and even though  it is possible to structure the judicial discretion required in applying it, involves value judgments that may be controversial and are more dependent upon the world view of the observer.  In my view one must be careful to avoid transforming the “narrow” test of proportionality into a dominant one, to the extent of exclusivity, eclipsing the other components of the constitutional examination. The earlier it is possible to conduct this examination, in a non-contrived manner, the better.             

Today there is broad recognition of the similarity between the “narrow” test of proportionality and the ground of “reasonability” which for many years was dominant in our administrative law. The ground of reasonability provided a more powerful demonstration of the doctrinal and practical difficulties inherent in reliance on judicial discretion, in demarcating its borders and in identifying the proper relationship between it and the administrative act. These difficulties become more acute, a fortiori, when our concern is with review of legislative action, and they have been experienced by many of the legal systems that are confronted with defining the position of the various branches of government, particularly the relationship between an elected legislative branch, which operates by virtue of the majoritarian principle, and the judiciary. The transition from reasonability to proportionality is no magic potion. It does not eliminate the dispute between different views regarding the role of the court in a democratic society. As I already mentioned, certain aspects of proportionality may necessitate value judgments which are liable to further exacerbate this dispute. However, proportionality has advantages, the most important of which is that it involves detailed and structured tests, some of them objective, which provide a basis for in-depth argumentation.

The Citizenship Law and the Values of a Jewish and Democratic State

14.  The State of Israel was born into a security situation which was infinitely more difficult than the reality that it has confronted in recent years. Real existential threat hung over its head in the first decades of its existence. Many were consumed by doubt as to whether it was capable of meeting the challenges lain on its doorstep. An insistent question mark floated at times above the notion that it was possible to establish and successfully maintain a true democratic entity in the heart of a hostile region from which democratic ways of thinking were absent. Leaders in the Arab community in Israel as well as outside of it refused to accept the existence of a sovereign Jewish state in any part of the territory of the Land. They embarked on a war to destroy it when it was still in its infancy. After a short while, many of members of that community, as if all at once, became citizens of the state that was established. In this complicated reality, the young State inscribed on its flag the principle, which found expression in the Declaration of Independence, that even when the security situation was dire, and even though the basis for the State was the rebirth of the Jewish people in its homeland, all its citizens would enjoy equality of social and political rights irrespective of their religion, their ethnic origin or the community to which they belong. The historical experience of the Jewish people over the centuries, and one of the foundations in the name of which the State of Israel sought recognition amongst the nations of the world, acted to instill in the emerging image of the State this core component of equality – absence of discrimination due to group affiliation. The views diverge on the extent and the manner in which this would be applied. Even today, there are many allegations – not entirely baseless – of discrimination against and oppression of Arabs in Israel. But efforts were and still are being made, particularly in recent decades, to change the situation. The chapter of equality between Jews and those who are not Jewish has grown broader and it ought to be widened even further, until it is woven with silken thread into the entire fabric of the Israeli story, as an indisputable fact.

The difficult, continuous struggle for the peaceful existence of the Jewish people, too, adds to and comprises the Israeli foundational narrative. We are very far indeed from achieving rest and respite. Even if, albeit for a very short time in historical terms, the specter of the existential threat has been removed from above us, it has been replaced quickly by murderous terror. It has been decreed that we must deal with this. The efforts of our security forces make this possible. The courageous spirit and the determination of the Jewish people are no less important components. But our strength lies also in our existence as a democratic state, which aspires to allow individuals and communities to fulfill themselves, to express what is in their hearts, to move freely from one place to another, to think independently, to respect one another, to give a person the feeling that he is equal to the next person, to allow him to establish a home and a family of his choosing, and all this – without harming others.

15.  The realization of these elements under a single roof is not an easy task. It requires mutual concessions. It requires the taking of risks. It is not amenable to a blanket application. And the principle is as if woven into these things, that each person is an individual, and every man and women – even if he or she belongs to a particular social community – has a separate, individual existence. This is the basis of the idea that every person is responsible for his actions.

16.  The provisions of the Citizenship Law contradict all the above. They accord decisive weight to the element of security, while inflicting a mortal blow on basic rights of the first order. They create a reality, the clear outcome of which is constriction of the rights of Israelis merely because they are Arabs. They grant legitimacy to a notion that is alien to our basic conceptions – oppression of minorities only because they are minorities. By basing themselves on an arrangement of categorical classification, which contains everything except for an individual investigation of the danger presented by a person, they blur the image of the individual as an entire world in himself. They open the door to additional legislative acts which have no place in a democratic conception. They threaten to bring us a step closer to the conception that “preserves the outer skin of democracy, without leaving any traces of the contents” (Menachem Hofnung, Israel – Security Needs vs. the Rule of Law – 1948-1991 (1991) 105). The continued existence of the Law casts a dark shadow over the chances for Israeli democracy to meet the challenges which it faced till now. Whoever thinks that over time, even the majority, by virtue of whose decision this Law came into being, can withstand the damage it does, is wrong. I fear that it will threaten to overtake every Israeli, whoever he be, since it harbors the power to destabilize the foundation upon which we are all standing, shoulder to shoulder. At the end of the day this harm, distant and slow-approaching though it be, state-sponsored as it appears, is no less damaging than the acts of terror against which we are trying to protect ourselves.

17.  All this is wrought by the Citizenship Law at a time when it makes no real contribution to the Jewish aspect of Israel. On the contrary, because this Law has the potential to weaken the democratic foundations of the State, it also detracts from its ability to serve as the furnace in which the Jewish people is forged. This insight is particularly pertinent in view of the insistence of the State on its contention that the purpose of this Law is purely security-related, and nothing else. As declared, of the three arms of the foundational Israeli triangle, the Law purports to assist only in the realization of that relating to “state”, i.e., to the framework of the state that promotes the security of its citizens. It seems to me that this purpose can and should be achieved at a lower cost. Only individual arrangements, which avoid labelling a person according to his ethnic origin, affiliation to an age group, gender, or area of residence – arrangements that are based on acknowledgement of his own actions, evince a willingness to take the risk that is involved in recognition of human rights, and which draws upon our historical experience and our tradition as a people and as a state.

 

The Detailed Purpose

18.  The Citizenship Law serves a concrete public interest, the importance of which cannot be overstated. Protection of the security of the residents of Israel in view of terrorist threats justifies a certain erosion of the protection of the right to equality. It justifies a constriction of the protection of the right to family life. But the failure of the Law to propose a means of detailed examination – in view of the stance of the security forces that they are not able to achieve the same optimal degree of security to which the Law aspires in its present formulation – is such a gross violation of these rights, to the extent that it is no longer possible to say that the Law is sensitive to human rights. The Law does, indeed, prescribe exceptions to the limitation on acquiring a status in Israel. It expresses its position that in certain circumstances, Israelis can become reunited with their Palestinian spouses, as well as with their offspring. But these circumstances are so sparse, and their application so limited, that in practice they leave no room for the main principles of the specified rights. A comprehensive examination is not necessary in order to establish that the majority of Arab-Israeli partners wish to marry men and women belonging to the “prohibited age” under the Citizenship Law. This is the customary age of marriage, and this is attested to by the assessment of the respondents that some two-thirds of those who seek status by virtue of family reunification (an annual average of approx. 2000) are not included in the exceptions specified in the Law. Particularly noticeable are the weakness of the humanitarian exception and the idea, surprising in itself, of setting quotas for permits issued by virtue of it (sec. 13A1(6) of the Law).

Most of the applications for marriage or for reunification with children do not succeed in overcoming the sweeping restriction in the Law. But even those which fall within the bounds of one of the exceptions are not assured a detailed examination. They pass on to the next station – to a test under sec. 3D of the Law; this section, too, entrenches a blanket arrangement. Applications which made it over the various hurdles placed by the Law and have reached this stage are liable to find themselves exposed to a blanket disqualification, which has absolutely nothing to do with detailed information about the individual. This may happen, for example, only because the Palestinian partner resides in an area in which activity is taking place that is liable to endanger the security of the State of Israel or its citizens. Is there no room for allowing him, this foreign partner – and even if the State met its preliminary burden of showing that he presents a security risk – to prove on his part that despite the involvement in terror of his relatives or his neighbors in the area in which he resides, he himself has nothing to do with activity of this type? Examination of a person’s match to a profile of risk of one sort or another, I would stress,  is not a  detailed examination. And not only do two-thirds of the cases of family reunification not cross the threshold of the Law, but the vast majority of the cases that succeeded in accessing the foyer and crossing it successfully gained for their subjects only a permit to remain in Israel, which does not grant the rights enjoyed by Israelis. After all the exceptions, the Law implements an extremely sweeping arrangement, which does not take into account the rights of a sizeable majority of the Israeli partners, most of whom are Arab-Israeli citizens. In this can be seen the severe erosion of the right to family life. In this can be seen the mortal blow to the heart of the right to equality – the prevention of discrimination against a background of group affiliation.

A possible salve might have been found had the temporary order been of limited duration. A true and sincere time limitation may blunt the effect even of a blanket arrangement, and it is possible that this would provide the necessary minimal living space for the violated rights. But what can I do – once again I cannot escape the conclusion that the Citizenship Law is in no way temporary; rather, it was intended to be with us for many years, despite its promising title: “Temporary Order”.

On temporary orders:-

There is no greater eternity

Than a door sign stating: Closed for the day.

Forever it shall be closed.

No one will open. No one will emerge.

Not a cloud in the sky.

Embrace the verdict. Sign.

They will not open. Go home. Dream.

(Yehuda  Amichai, Poems 1948-1962, at p. 352 (2002))

 

19.  Prior to the Knesset passing the Law in the summer of 2003, the Government presented its clear position that the lifetime of the Law would be limited. But since then, the force of the Citizenship Law has been extended thirteen times – twice by the Knesset and another eleven times in governmental decisions that were approved by the Knesset. Even were we to ignore the question which is complex in itself – whether it is appropriate that the force of laws of the Knesset, and particularly a law which has such a significant impact, is extended by a governmental order which the legislature approves in a rapid process, a single vote, which may well not be based on a full picture of the information – I am afraid that again, we cannot be satisfied with the title “Temporary Order”. What was intended to be a temporary order has proved to be, unfortunately, an “Order Enduring Many Years”. Once it became clear that not only from the point of view of its contents but also from the perspective of the duration of its application, the Citizenship Law leaves inadequate room for the violated rights, it could no longer be said to be sensitive to human rights. It cannot be said of its purpose, even its concrete purpose, that it is proper.

20.  This lack of sensitivity to the violated rights becomes more acute in view of the conclusion that the Law has additional purposes, apart from that of security. It permits the entry of Palestinian workers into Israel, and allows for the granting of status to Palestinians who have helped Israel. I find it difficult to accept the State’s argument that the risk presented by temporary Palestinian workers – tens of thousands per year – is less than and substantially different from that presented by inhabitants of the Territories who acquired citizenship in Israel. The principle-based argument is not at all convincing, in my opinion, for access to Israel is possible for “day-trippers” too, just like workers. There is no escaping the conclusion that whenever the State has an interest in the presence of workers who fulfil employment requirements that the economy has trouble supplying, the security consideration is laid aside for the moment, or at least loses its status as a main consideration. This is not only liable to render the security purpose suspicious to some, but in my view, it poses an additional question mark as to the degree of seriousness with which the State relates to the violation of the protected rights of its Arab citizens.

Proportionality

Even an assumption that the Law is not inconsistent with the values of the Jewish and democratic state, and that its particular purpose is proper, will not help it to pass the constitutional test at its final station, that of proportionality. First, I believe that intensifying the violation of equality between Jewish and Arab citizens of Israel will not be of benefit even from the security point of view. The outcome is likely to be a reduction of the security risk from one aspect, but its increase in another aspect, for the feelings of frustration and oppression are liable to be directed into negative channels.

If this leads to the conclusion that the Law lacks a rational connection between its purpose and the means of achieving it, then this conclusion is even more valid from an additional perspective. Even if I assume that the Law seeks, according to its purpose, to leave adequate room for the violated rights, the sweeping means it prescribes are inconsistent with this purpose. The illegitimate blanket application of the Law finds expression in the assessment of the tools it adopted. Arrangements that are not sensitive, in a specific manner, to every application that is submitted to the security forces are not consistent with the intention to recognize the central place of the right to family life and the right to equality. Even on the assumption, which as stated is not at all obvious, that a law under which decisions are made according to sketches of profiles will be more effective in increasing security, there is a serious question mark about its ability to also promote the other part of “proper purpose”, which is showing sensitivity to human rights.

22.  But even if the Law managed to reach the threshold of the second test, that which seeks the means that is less intrusive, blocking it with this fine filter would be justified. At the point of departure, which claims that the Law is not directed at the achievement of absolute security, but it does what it can to limit the security risk presented by inhabitants of the Territories and hostile states, there is no escaping the conclusion that there exists a means which is less intrusive, i.e., the detailed check, the scope and a character of which will be determined in consultation with the experts on the matter, including the security elements, in advance, throughout the process, and if necessary, even thereafter.

23.  The words of the respondents best show that individual security checks are very effective. According to their data, of more than 600 applications that were lodged since September 2005 by virtue of one of the exceptions provided by the Law, and that were rejected for the reason that the applicant had been found to be connected to terrorist activity, more than 270 were from people who had already begun the process of acquiring status or acquiring a temporary permit to remain in Israel and had received temporary Israeli documentation; follow-up checks that had been made revealed that negative security information existed about them. In 66 other cases, this was the situation regarding those who received a permit to remain in Israel not by virtue of family reunification but for other reasons. It seems to me that  even disregarding the fact that these were in any case not disqualified on the basis of the risk profiles in the Law, these statistics indicate the efficacy of the accompanying security check.

24.  Not infrequently, in dealing with the second test of proportionality, the argument arises about the financial cost of the means that have been selected, and about the economic burden that these alternative means are likely to impose on the State. A significant difference in cost is liable to exclude the alternative means from the bounds of the means whose adoption is possible. In my view, it cannot be denied that cost is significant, but this significance decreases as the extent of the violation increases, and particularly when the violation is not in the category of damage to property, nor one that can be remedied by means of financial compensation. The violation of the rights that are the subject of these petitions, the protection of which justifies the investment of public resources, even in substantial amounts, is of this type. Secondly, my mind was put at rest in this matter, too, by the explicit words of counsel for the respondents, whereby the problem did not lie in the cost of the individual checks, but in the “inherent difficulty”, as she said, of adopting these detailed checks, whatever their cost may be.

Ultimately, my opinion is that the Citizenship Law does not overcome the hurdle of the constitutional mechanism; this inevitably calls for granting the appropriate judicial relief. With this I will conclude my words.

The Constitutional Relief

25.  Voidness is a major remedy for a misdeed in relation to the acts of a governmental authority. Its purpose is two-fold: repair of the wrong that is caused to the individual as a result of the act of the authorized body and restoring the authority to the path of constitutionality. In the course of the years, the discourse has moved from an absolute model of voidness, which means voiding the governmental act immediately and in full, to a classification of the relief according to the circumstances, including in light of the nature of the process and the identity of the parties to it. The main thrust of the doctrine of relative voidness is its granting of judicial discretion as to the breadth and depth of the voidness. Deferred voidness means that the court has the power to withhold its constitutional approval from the governmental action, but it postpones the date on which this receives practical expression. The two doctrines are liable to be invoked in examining the constitutionality of a Knesset law.  Judicial discretion in selecting the relief resorts to a complex system of balances and various considerations. An appropriate solution for one set of circumstances may prove to be unsatisfactory for another. Sometimes, declaring immediate voidness of a statutory norm will be an appropriate response to the violation it involves, particularly when this is serious and more marked. On the other hand, there are situations in which despite recognition of the flaw, the benefit of deferring the voidness will exceed the harm caused by the constitutional violation.

Deferral has advantages and disadvantages. On the one hand, it allows the governmental authority the necessary time to rethink and to make the preparations for fixing the existing arrangement. The advantage of this is that it does not exhaust the legal process before the fate of the governmental action is decided, in a way that is certain to lead – even if only after some time – to the removal of the flaw. It allows the governmental authority time for consideration and for the necessary public and political discourse – vital elements in the legislative and administrative enterprise. The advantage lies also in the fact that it reduces the risk of a normative lacuna which is liable to accompany immediate voidness. On the other hand, it has two weaknesses. First, it extends that lifetime of an illegitimate norm; and second, in detracting from the power of the authority under review it is liable to turn the opponents of judicial review against the courts, and in a case in which no alternative arrangement has been proposed, when the time arrives for the voidness to take effect, it may even erode the status of the courts of law.

26.  But the main virtue of deferred voidness is its contribution to constitutional dialogue, that is, to the understanding that protection of the values embodied in the constitution is an endeavor that is common to the three branches of government. This understanding does not undermine the democratic fundamental principles of the separation of powers and checks and balances; rather, it is concerned with furthering the dialogue between the branches of government and the mutual sensitivity between them. It acknowledges that the constitutional enterprise is not the exclusive domain of one authority. The responsibility for it – which is heavy indeed – does not fall upon the shoulders of the court alone, nor on those of the Knesset nor on those of the government only. Protection of constitutional basic values – one of the most important elements of the democratic system – is effected by the three branches together. It is best, therefore, that engagement with constitutional questions should be the outcome of an honest, constant and continuous dialogue between the authorities This will likely be beneficial for the conduct of government in general. It may well be good for human rights. It is able to dispel antagonism, which is frequently connected to the notion of a right and protection of this right. It has the ability to aid in the development of additional constitutional rights. It allows basic rights to share the spotlight with other values, the promotion of which is important to the public. On the positive characteristic of constitutional dialogue, Hogg and Bushell wrote as follows in their well-known article:

[T]he judicial decision causes a public debate in which Charter values play a more prominent role than they would if there had been no judicial decision. The legislative body is in a position to devise a response that is properly respectful of the Charter values that have been identified by the Court, but which accomplishes the social or economic objectives that the judicial decision has impeded… The legislative body would have been forced to give greater weight to the Charter values identified by the Court in devising the means of carrying out the objectives, or the legislative body might have been forced to modify its objectives to some extent to accommodate the Court’s concerns. These are constraints on the democratic process, no doubt, but the final decision is the democratic one… Judicial review is not “a veto over the politics of the nation,” but rather the beginning of a dialogue as to how best to reconcile the individualistic values of the Charter with the accomplishment of social and economic policies for the benefit of the community as a whole (P.W. Hogg and A.A. Bushell, “The Charter Dialogue between Courts and Legislatures — Or Perhaps the Charter of Rights isn’t such a Bad Thing After All”, 35 Osgoode Hall L. J. 75, 79; 80; 105 (1997)).

But constitutional dialogue cannot be fruitless. It cannot serve as a cover for an ongoing violation of human rights It cannot camouflage an approach that does not acknowledge the importance of protecting these rights. It cannot provide a platform on which to make light of their gravity. It cannot obviate the process of judicial review. In the absence of constitutional dialogue, the Law in question cannot be allowed to remain in place until the Knesset deigns to amend it.

Decision and Conclusion

27.  The loss of the democratic image of the State of Israel and the abandonment of basic concepts that it has held from its inception is something the Israeli public cannot accept. Our legal system cannot reconcile itself to this. The Citizenship Law threatens to create more than a crack in the wall, the strength of which has held till now, and which is called “a Jewish and democratic state”. The violation caused by the Law is serious. Its harms resounds. Its enactment is a foundational even in the democratic history of Israel. Even if there are those who would see this as a watershed in the relationship between the branches of government, the court can no longer observe this even from the sidelines. There is no option but to exercise our judicial authority. The severity of the violation and the concern about its additional ramifications make this necessary.

This does not detract from recognition of the gravity of the terror that has struck in our midst. The scenes of the attacks which we have experienced and their horrible results constantly pierce our hearts. Comfort over the worlds that have been destroyed in an instant – young boys and girls, parents, the elderly, entire families with all their children, soldiers, men and women – is hard to find. Outright war must be declared on the murderers, those who send them out, those to do their bidding – even amongst Israeli Arabs. It is the duty of the State to protect its residents, insofar as possible within the framework of the democratic regime. Its role is to aspire to ensure personal security. In times of security threats, the State is permitted to act differently than in times of peace and quiet. Nevertheless, we must not cross lines that must not be crossed. This has happened, even in foreign fields (and see: Hiabayashi v. United States [9]). This is not the way of the Israeli legislator. “Israel is the only state in the twentieth century that has succeeded in maintaining the existence of democratic institutions and a reasonable level of human rights for its citizens, despite the constant external threat” (Hofnung, ibid., at p. 346). I am sure that just as the Knesset succeeded, over the years, in dealing with complex, difficult challenges, this time too it will find a way to fix that which requires fixing.

28.  Based on this position, I propose to my colleagues that we issue an absolute order stating that the Citizenship and Entry into Israel Law (Temporary Order) 5763-2003, is void on grounds of unconstitutionality. The voidness of the Law will come into effect nine months from today.

 

Justice S. Joubran

I concur in the ruling of my colleague Justice E.E. Levy according to which the Law should be struck down, even in its present formulation. However, my reasoning is different.

In HCJ 7052/03 Adalah – Legal Center for Minority Arab Rights in Israel v. Minister of the Interior [1] (hereinafter: Adalah Case), I ruled that the right to establish family life is a constitutional right which is protected in its entirety by Basic Law: Human Dignity and Liberty. I also ruled that the harm caused to this right by the arrangement specified in the Law touched upon the very essence of a person as a free citizen.

The Law and the amendment thereto prevent (almost totally) the possibility of realizing the right to family life with a partner who is an inhabitant or a citizen of the Area. This limitation is relevant only to the group comprised of Arab citizens of the State – it is they who in practice marry spouses from the Area. Accordingly, the provisions of this Law must be viewed as substantially violating the constitutional right to equality.

I will add that the amendment to the Law includes both inhabitants of the Area and inhabitants of states listed in Addendum B, including Syria, Lebanon and Iran. In my view, this generalization is not justified. First, the political situation that exists between Israel and the Palestinian Authority is different from that existing between Israel and the states appearing in the second addendum. Secondly, it is unjustified in view of the social, cultural and special historical situation between the Arab citizens  of the State of Israel and the inhabitants of the Area.

3.  The respondents argue that the provisions do not violate the right to equality, and that they are based on a permitted distinction due to the security threat that is posed by partners from the states specified in the Law. However, the total negation in the Law of the possibility of acquiring a status for a partner who is an inhabitant of the Area, with no indication of danger posed by him, attests in my view to a distinction which is not permitted, one which has ramifications for a defined, specific population group (Arab citizens) and which is not based upon concrete characteristics of those who are seeking the status (inhabitants of the Area).

The State supports its argument with data according to which, of the total number of inhabitants of the Area who acquired status in Israel by virtue of family reunification, several dozen have been involved in terrorist activity. It contends that there is a statistical potential risk posed by every one of the members of the group which justifies the distinction. In my view, attribution to an individual in a group of the negative characteristics that are attributed to the group, in the absence of any specific indication in respect of that particular individual, is illegitimate, and it violates the autonomy of the individual and his dignity. It would have been appropriate for the State to act to obtain maximum information, in order to create a distinction between the different persons seeking status and the degree of risk that they pose.

4.    This, of course, does not decrease the importance of the security need which is behind the enactment of the Law. Every state is obligated to preserve its existence and to protect the security of its citizens. However, it must be recalled that the state exists not only for the purpose of preserving the physical existence of its citizens, but also in order to allow them to realize their humanity and their liberty, through the creation of the rule of law.

5.    The violations of protected constitutional rights perpetrated by the Law are extremely severe, but that is not enough to strike it down. In accordance with the limitation clause in the Basic Laws, a law may violate constitutional rights, since they are not protected in their entirety. My colleague Justice E.E. Levy rules that the Law already fails to meet the second criterion of the limitation clause (the criterion of befitting the values of the State). In my view, my colleague’s approach extends the scope of judicial review within the parameters of the criterion of “befitting the values of the States of Israel” in the limitation clause; this is at a time when the constitutional tools of review – central to which is proportionality – that were broadly developed in international and Israeli law are more suited to the constitutional examination of this Law, in accordance with what my colleague President Barak wrote in the Adalah Case. In my view, in the area of judicial review of the constitutionality of a law, we must proceed cautiously and with restraint. As long as the second criterion of the limitation clause has not been sufficiently developed, it should continue to be invoked as a threshold criterion at a high level of abstraction, and its development should be left pending for the future.

Moreover, recourse to the criterion  of “befitting the values of the State” for the purpose of voiding this Law departs from our analysis in the Adalah Case. Despite the amendments to the Law as described, and the worsening violations, I am not convinced that there is justification for departing from President Barak’s analysis, with which I concurred (see the Adalah Case, p. 485). Care must be taken that similar cases received similar legal treatment, and even if in this case it seems, prima facie, that the path trodden by my colleague Justice E.E. Levy is correct and just, we must maintain strict consistency, unless there is significant reason to deviate from our path.

6.    In the Adalah Case it was ruled that the Law was designed for a proper purpose (pp. 318, 340). On this matter, I will once again stress that an examination of the Law and the arrangements it establishes, even in its present formulation, engenders the concern that security is not the only consideration behind the enactment of the Law, and it raises questions about the policy that the Law seeks to realize. It appears that demographic policy also figures amongst the considerations underlying the Law (see the Adalah Case, pp. 486-487). At the same time, having concurred in President Barak’s ruling in our previous judgment, whereby even the security consideration does not justify such a severe violation of family life and of the right to equality, I see no need to discuss this issue in the present petition as well.

7.    In light of this assumption, let us proceed to the criteria of proportionality. Regarding the first sub-criterion – the rational connection between the means and the end – in my opinion it should be ruled that there is a rational connection between the security purpose of the Law and the means that it prescribes. In the framework of the criterion of the rational connection, a clear question must be asked: do the means that were selected further the aims of the Law? Even if the purpose of the Law is only partially realized, the rational connection exists.

In accordance with the interpretation accorded to this criterion, one is hard-put say that the Citizenship Law fails to meet it. The very fact that the Law is of help in realizing the purpose, i.e., reduction of the security risk (as my colleague Justice E.E. Levy also determines in para. 36 of his opinion) shows that it establishes a rational connection between the end and the means. Other considerations should not be introduced into this criterion – ones which should find expression in the balance in the framework of the third sub-criterion of proportionality.

8.    The criterion of the “least intrusive means” has been interpreted in the case law as an instruction to examine whether the legislator selected, from amongst those means that realize the proper purpose of the law causing the harm with the same degree of intensity, the means that entail the least violation. The only difference there should be if we were to exchange the harmful means with an alternative is a lesser violation of the constitutional rights, with no difference in the other details surrounding the Law and in the extent of realization of the proper purpose (Barak, Proportionality in Law, p. 399). In my view, the question of the extent to which the alternative means must realize the purpose of the Law is likely to arise here: must the realization be full and identical, or can we be satisfied with a high, although not identical, degree of realization? I do not think that this question must be decided, since in my view the Law must be struck down as it does not meet the third sub-criterion, as will be elucidated below.

9.    The third sub-criterion is the very heart of the principle of proportionality, which erects a “moral barrier” and prescribes that there must be an appropriate relationship between the benefit engendered by realization of the purpose of the law and between its violation of constitutional human rights. In relation to this sub-criterion, no amorphous, generalized balance is sought between the benefit and the harm. We must define what the harmful means has added to the purpose that the law sought to promote, and to examine this as against the additional violation of the constitutional right as a result of that same violating means prescribed in the law, and to compare their weights. Moreover, a situation is possible in which the balance can be reduced even beyond this. The starting point of the balancing of what has been added was the assumption that we are comparing the situation prior to the enactment of the harmful means with the situation following its enactment. As will be recalled, a less harmful means may possibly be found, one which does not wholly realize the aims of the Law, and which is not necessarily relevant to the second sub-criterion, but which is relevant in the context of the third sub-criterion. If such a means exists, then it will be the means figuring in the balance.

10.  Thus, the Law in the present case is not the only means to ensure the security of the residents of the State; it is only one of the many means of maintaining security alongside  many other laws, the activity of the security forces etc.. On the other hand, the means adopted by this Law cause a severe violation of the right to family life and the right to equality. In view of the complexity of the said rights and the many violations of them, the realistic path is to examine what the Law adds to security, and what it adds  to violation of the right. This is based on the assumption that security is also realized through many other means, and that the constitutional rights are violated by many other arrangements as well.

11.  The question in the framework of this sub-criterion in the present case is this: “Is the additional security that is obtained in the transition from the strictest detailed check possible according to the law of the foreign partner to a sweeping prohibition on entry into Israel properly proportionate to the additional violation of human dignity of the Israeli spouse that is caused by this transition?” (ibid., at p. 345). The answer to this question is that there is no proper proportion between the added contribution to the purpose of the Law as opposed to the additional violation of constitutional rights. Indeed, assuming that we are talking about a proper security purpose, then the means prescribed by the Law, and principally, the blanket prohibition, contribute to security. But this purpose is obtained at too heavy a price. A democratic state cannot allow itself to pay such a price, even if the purpose is apparently a proper one.

12.  Therefore, I concur in the decision of my colleague E.E. Levy that the order should be made absolute, and that the Citizenship Law should be declared void due to its non-constitutionality. I would add that alongside the legal difficulties that are raised by this Law, and due to which it should be struck down, this Law, like every law, was created in a particular social atmosphere and it affects this atmosphere. I can but rue the existence of this Law, which has the power to continue to make difficulties for the maintenance of the integrity of the delicate fabric of Israeli society, in all its sectors and varieties.

Justice E. Rubinstein

Justice E. Arbel

Justice Arbel joined in the deliberation of the petition in its second incarnation, following in the paths that were paved in the first judgment on the matter of the Citizenship Law; she elucidated her position and her reasoning, stressing the difficulty involved in making a decision.

In the view of Justice Arbel, and as the majority of the bench in the first judgment on the Citizenship Law held, the starting point of the deliberation must be that the purpose of the Law is security-related.  At its heart is the concern about involvement in activity against the security of the State of Israel on the part of foreigners who arrive from states or areas whose hostility to Israel is clear and known, and who wish to settle in Israel in the framework of family reunification with an Israeli partner.

The right to family life is a constitutional right that is derived from the constitutional value of human dignity. The right of a person to connect to a person and to establish a family with that person is intricately woven into the value of human dignity, and lies at its heart. It is one of the fundamental components that define a person’s identity and his ability to achieve self-realization. A person’s right to choose with whom to bind up his life is the ultimate expression of autonomy of the individual will. It expresses a person’s most basic needs for love, for belonging, for partnership and for propagation. As such, it stems from the very basis of human existence. However, the right to family life does not means that the foreign spouse of an Israeli citizen has a right to immigrate to Israel by virtue of the marital bond. As has been mentioned, a state, by virtue of its sovereignty, has the power to limit the entry of foreigners into its territory, and a foreigner has no vested right to enter the country. In principle, the State, due to its security requirements, may decide to prohibit entry into its territory of nationals of a hostile state or of those who arrive from places which are very hostile towards Israel and in which activity against Israel and its security is conducted. This is even more the case when Israel and the state of the foreigner for whom family reunification is sought are engaged in armed struggle, and it is certainly true in relation to a state that is subject to such varied, incessant significant security threats such as Israel. However, even in this situation, the Law must meet the constitutional criteria of legislative review.

In proceeding to examine whether the right to family life is violated by the Law, Justice Arbel was of the opinion, after difficult deliberation, that there is no escaping the conclusion that the right to family life comprises two aspects – the substantive right to marry a foreigner and the right to realize family life in Israel. The separation between the substantive right and the right to realize it is artificial, for without realization of the right, there is no right. The almost blanket limitation imposed by the Law on the possibility of establishing family life together with a foreign partner who is an inhabitant of the Area, or the subject of a state that poses a risk constitutes a violation of a constitutional right not only by its very nature, but also, and mainly, because the implementation of the said limitation is not egalitarian.

Indeed, the Law does not distinguish between the Jewish citizens and the Arab citizens of Israel. It does not distinguish between any citizens. The same rule applies to all. The distinction adopted by the Law is based on a relevant difference between foreign partners who originate from the Area and hostile states – places in which activity against Israel and its security is conducted – and foreign partners from other places which do not, apparently, invoke a presumption of danger of this sort. However, even in these circumstances, the focus of the examination is on the Israeli citizen. For the Arab citizens of Israel, the inhabitants of the Area, who are members of their nation, constitute a potential group with whom to establish family connections. As such, on the basis of the outcome, they are the main victims of the limitation according to the Law. When, according to the outcome, the Arab citizens of Israel are much more severely harmed as a result of the statutory limitation than are other citizens of Israel, such a broad assumption of dangerousness as prescribed by the Law cannot legitimize the violation of the right to family life, to equality, nor can it legitimize the violation of dignity. In practice, the violation of the right to family life occurs in a way that is unequal and discriminatory. Accordingly, it was ruled that the Law violates the right to family life, in its broad sense, and the right to equality.

According to Justice Arbel, the main difficulty posed by the Law in its current formulation focusses on the stage of examining proportionality in its narrow sense, which is a component of the criteria of the limitation clause in sec. 8 of Basic Law: Human Dignity and Liberty.

Justice Arbel believes that it is very doubtful whether from a practical point of view, the detailed security check alone is capable, as the petitioners contend, of achieving the purpose of the Law. Relying on the assessment of the professionals, Justice Arbel concluded that despite the fact that individual scrutiny of partners who wished to enter would cause the least violation, from the point of view of severity, scope and depth, of the right to family life and of equality, it is not capable of realizing the purpose of the Law to the same degree as the broad prohibition under the Citizenship Law. Therefore, it was ruled that the Law stands up to the second sub-criterion of proportionality – the criterion of the means which is least intrusive, for no other less harmful means exists which will realize the purpose of the Law to the same extent as the means that was selected.

On the question of the proper ratio of the security purpose of the Law to the harm it causes to the basic right to family life, Justice Arbel’s opinion was that an examination of the “added value” that the Law provides as opposed to the “added harm” caused by its violation of the right of Israeli citizens to family life reveals that the Law is not proportional. This position is based on two elements. The first is the non-proportionality of the harm from the perspective of time, for recourse has been had to a temporary order whose validity has twice been extended by the Knesset and ten times by governmental decisions. The fact that the violation of basic rights was effected by a temporary order, due to the exigencies of the time, can indeed serve as an indication of the proportionality of the violation. The temporary nature of the violation, stemming from the fact that the legislation appears in the framework of a temporary order, has implications for assessing the magnitude, the depth and the breadth of the violation of the human right. However, since the Law was enacted as a temporary provision, its validity has been extended twelve times. There has been no significant change in the Law. A survey of the changes that were introduced into the Law in the years that elapsed since its enactment raises, at very least, a concern that more than being designed to moderate the severe harm that the Law represents, these changes were designed to provide a basis for it.  A temporary order is naturally suited to a temporary arrangement. Invoking it for purposes that touch on the core of the constitutional rights, such as in our case, gives rise to difficulties, particularly insofar as it entrenches a severe violation of human rights. Hence, the matter ought to have been regulated by statute.

The second base on which the position of Justice Arbel rests is the nature of the violation of basic rights. According to her, the potential added security provided by the restriction under the Law does not equal the additional certain damage in the wake of a real, concrete, profound and severe violation of the right to establish family life, of the right to equality and dignity, as well as a violation of their right to realize these rights in a state in which they are citizens with equal rights. To these is added the severe harm done to the feeling of belonging of the Arab citizens of Israel, which may intensify the feeling of alienation and rejection that is common amongst at least some of this public.

Justice Arbel arrives at this conclusion in light of the existence of a more proportional, even if not optimal, alternative – the detailed examination – which can be improved by combining it with additional means of checking and oversight. Together with this, Justice Arbel mentioned the conditions which could be added to the detailed examinations in order to demonstrate that the voiding of the Law need not necessarily leave the legislator empty-handed. A suitable arrangement could be basically similar to the outline proposed by Justice Levy in the first incarnation of the judgment in the matter of the Citizenship Law, which included three main components: as thorough and detailed an examination as possible in the circumstances; conditioning consideration of the application upon the foreign partner not being in Israel illegally and not being in Israel as long as permission to enter has not been given; similarly, a requirement of declaration of loyalty to the State of Israel and its laws, renouncing loyalty to any other state or political entity. It would also be possible to require longer minimum period of residence in Israel as a threshold condition for acquisition of Israeli citizenship, when the spouse is an inhabitant of the Area or a national of a hostile state. Commission of serious criminal offences will be cause for immediate termination of the process of family reunification. The State is authorized to attach certain conditions to a person’s entry into Israel, the purpose of which is to reduce the security danger he represents, such as a prohibition on visiting his original place of residence or a prohibition on making contact with certain elements if they are involved in activity against the security of the State. Justice Arbel does not rule out the possibility that the arrangement that will be introduced will distinguish between territories in Judea and Samaria and between the Gaza Strip and hostile nations, if the experts on behalf of the respondent think that there is a difference between them with respect to the ability to gather information for the purpose of conducting an individual examination .

Justice Arbel proposed to defer the declaration of voidness for a year from the time of publication of the judgment, mainly because this is a complex subject which is of great public importance. The legislator must weigh the subject in all its aspects, and formulate a proper, balanced arrangement, or alternatively, prepare itself for the reality that will exist once the Law is no longer in force. The legislative arrangement will be shaped and set in place by the legislature, if it sees fit to do so, for that is its role and its expertise.

Justice H. Melcer

Introduction

1.    Let me begin by saying that in my opinion, the order nisi that was issued in this case should be cancelled. This is because the arrangements that were prescribed in the Law that is being challenged are, at this time, the lesser evil, and “better safe than sorry”. In the area with which we are dealing, the principle that reflects the above saying is the precautionary principle. This principle has established itself in recent years in relation to various subjects, and it seems to be applicable to the present matter as well.

The Present Petitions and the Normative Basis

2.    The petitions before us once again raise the question of the constitutionality of the current provisions of the Citizenship and Entry into Israel Law (Temporary Order), 5763-2003 (hereinafter: the Law, and together with the amendments made to it: the amended Law). The previous formulation of the Law was examined in the framework of HCJ 7052/03 Adalah – Legal Center for Minority Arab Rights in Israel v. Minister of the Interior [1] (hereinafter: Adalah Case), and the petitions in that matter were ultimately denied.

After the judgment was handed down in the Adalah Case, the Law was amended, and changes were introduced to it. Against the amended Law the present petitions were lodged, and in the period during which the petition has been pending, the validity of the amended Law has been extended several times by the Government with the approval of the Knesset.

3.    The amended Law provides that the Minister of the Interior will not grant Israeli citizenship or a permit to remain in Israel to a person who is an inhabitant of Judaea and Samaria or of the Gaza Strip (hereinafter: the Area), or a person who is a citizen or resident of Iran, Lebanon, Syria or Iraq. The amended Law also provides that the commanders in the Area will not provide the inhabitants of the Area with a permit to remain in Israel.

Several exceptions were made to this provision, by virtue of which the governing bodies mentioned in the Law were authorized to provide a permit to remain in Israel, or a status in Israel in particular cases.

In the amendment of 2007, several innovations were introduced into the amended Law: the establishment of a committee charged with examining the provision of a permit to remain in Israel for humanitarian reasons; a broadening of the geographical scope of the Law as mentioned above; and an extension of the definition of the security risk to a situation in which activity was taking place in the area of residence of the person that was liable to endanger state security.

Current Data concerning the Amended Law in Light of the Security Situation (according to the Respondents)

4.    The point of departure of the amended Law is that at this time, it is not possible to conduct a detailed diagnosis for the purpose of predicting whether a person is dangerous with respect to the entire body of requests to settle in Israel by virtue of the process of family reunification. Therefore, the amended Law prescribes a model based on risk profiling.

Thus, inter alia, special arrangements were fixed for obtaining a status in Israel, and women and men who were not included in the clear risk groups were excluded. Authority was also given to deviate from these arrangements for special humanitarian reasons.

5.    The respondents declare that from August 2005 until April 2010, the Ministry of the Interior approved the granting of status in Israel to 4118 subjects of the Palestinian Authority on the basis of applications for family reunification. To this data must be added the activity of the Professional-Humanitarian Committee. Up to April 2010, in excess of 600 applications were submitted to the Committee. More than 282 applications were considered by the Committee. 33 applications were handed on with positive recommendations to the Minister of the Interior and approved by him, and the applicants were granted permits to remain in Israel.

From the above it emerges that despite the security risk,  in recent years more than 4,000 Palestinians were granted a status in Israel by virtue of the exceptions prescribed in the amended Law.

The Present Security Situation

6.    From the statistics of the Security Forces, the following facts emerge:

From 2006 until April 2010, some 200 suicide attacks were averted. In addition, in the course of the years 2009-2010, the General Security Services averted dozens of intended suicide and kidnapping attacks at earlier stages of their preparation, We were further informed that the terrorist organizations continue to attempt, constantly, to carry out attacks in Israel, and to recruit activists and arms for perpetrating attacks.

7.    The assessment of the security forces is that radicalization amongst the Palestinian population is on the rise. This applies to the Gaza Strip, and to Judea and Samaria and the Jerusalem area.

8.    From the above we learn that contrary to the impression of relative quiet, attempts are being made to carry out attacks in the heart of the State of Israel. In order to carry out attacks, cooperation with those who are originally “inhabitants of the Area”, who have settled in Israel, is necessary. In almost every such attack to date within the territory of Israel, a person bearing Israeli documentation was involved at some stage or other of the planning, abetting or perpetration of the attack.  

The amended Law is one of the ways of preventing this.

Statistics about the Involvement in Hostile Terrorist Activity of Palestinians who were Originally Inhabitants of the Area, who Reside in Israel After having been Granted Status in the Wake of the Process of Family Reunification

9.    From 2001 until 2010, 54 Palestinian subjects, who acquired or sought to acquire status in Israel in the framework of the process of family reunification, or elements connected to them directly, were involved in terrorist activities that were actually carried out, or that were prevented at the last minute.

In this context it should be explained that according to the approach of the security forces, the very entry of a Palestinian subject into Israel in the framework of the “graduated test” adopted by the Israeli authorities is what makes it “attractive”. Naturally, insofar as the person bears an Israeli identity card or driving license, his “potential contribution” to the causes of terror also grows.

Failures of Individual Screening and the Age Groups in the Profile of Dangerousness for Perpetrating Hostile Terrorist Acts Against the State of Israel in Accordance with the Amended Law

10.  According to the statistics of the Security forces, since September 2005 632 applications to acquire a status in Israel by virtue of family reunification were rejected on grounds of involvement in terrorist activity.

It should be understood that of the 632 applications that were rejected as stated, in 273 cases the obstacle arose after the status was granted or preliminary approval was given in the framework of the “graduated process”. It will be stressed that in relation to these applicants,  the information from which it emerged that they were perpetrators, terrorists or helpers was discovered after the individual screening had not produced any suspicious information in relation to them.

Hence one can discern the inherent difficulty in relying on detailed screening, while ignoring the age-risk profile of the inhabitants of the Palestinian Authority.

The activity of terrorist organizations is based on the recruitment and identification of activists who are not known to the security forces in Israel from the outset as terror activists, in the format of penetration into Israel by means of marriage. For these seekers of status individual screening is in any case not effective, for at the time of submission of the application these people are not involved in terror and therefore there is no information arousing suspicion about them.

Moreover, the failures of individual screening are aggravated with the routinization of the phenomenon known as the “lone attacker”, who acts without affiliation to any terrorist organization.

Reactions of the Petitioners to the Above Statistics

11.  The response of the petitioners in HCJ 830/07 to the above information was a general denial. Furthermore, they and the other petitioners repeated the legal arguments that they raised in the Adalah Case and in the petitions before us.

12.  The petitioners in HCJ 5030/07 asked to discuss the violation of the rights of minors in the provisions of the amended Law, and commented that the respondents had not supplied separate data concerning the involvement of the children of inhabitants who acquired a status or a permit in attacks. Moreover, and according to them, the status of the children who live in East Jerusalem was not accorded separate treatment, as was required according to their approach. They also added that the credibility of the security argument is undermined by the application of the amended Law to children, as well as the willingness to furnish them with CCA (Coordination and Communications Administration) permits alongside the refusal to grant them permanent status and social rights.

Deliberation and Decision

13.  The basis for the allegations of the petitioners is in the fact that the amended Law violates the basic constitutional right to family life.

In my opinion, even though the right to family life is a basic right, the possibility of realizing it in the state of citizenship of the Israeli partner does not have constitutional status, as I shall elucidate below.

Rejection of the Argument that the Right of the Israeli Partner to Bring the Foreign Partner into Israel is a Constitutional Right that is Protected by virtue of Basic Law: Human Dignity and Liberty

Under the provisions of Basic Law: Human Dignity and Liberty, the right to enter Israel is granted only to Israeli citizens (sec. 6(b)). The right to leave the country, on the other hand, is granted to every person (sec. 6(a)). My opinion is that the right to enter Israel is the constitutional right of a citizen, and not one conferred upon every person, as I will explain forthwith.

According to the opinion of the majority of the justices in the Adalah Case, the basic constitutional right to family life is a derived right from the “mother right” to human dignity, or a type of right derived from a derived right (a “grandchild right”) to the right of equality that is included in the “framework right” of human dignity. The question here, therefore, is how far the “rights without a particular name” can be stretched. It would seem that when the extent of the derived right is not consistent with the reach of the particular constitutional “mother right”, the latter must prevail as being lex specialis. That is to say, in the said case the particular “mother right” – the right of entry to Israel, as defined in the Basic Law –  prevails over the derived right – the right to family life in Israel of the Israeli citizen, and its ramifications for the possibilities of the foreign partner and children to enter the State and remain there. 

Contrary to the petitioners’ argument, comparative law has not recognized a constitutional right of the right of a spouse who is a citizen to cause his/her partner to acquire citizenship or another status for remaining in the country of citizenship (of the former). Only recently, this rule was again approved in the European Court of Human Rights, in the case of Kiyutin v. Russia [21].

14.  This leads to the conclusion that the petitions should be denied, even if only on the basis of the fact that in my view, the alleged right on which the petitions are based does not pass the “first stage” of the constitutional examination. At the same time, out of respect for the opposing – reasoned and detailed – views of the majority justices in the Adalah Case, and of some of my colleagues here, I will continue with my analysis and I will discuss the applicability of the terms of the limitation clause to the entire matter.

15.  There would seem to be universal agreement that the requirement of the limitation clause that the violation be “by law or according to law”, i.e., by virtue of explicit authorization, is met here.

16.  It would appear that the majority of the justices on the bench, too, are of the view that it cannot be said that the amended Law, in its present format and its temporary nature, is not in keeping, in the circumstances in which we find ourselves, with the values of the State of Israel.

17.  The next test that the amended Law must pass is that of the “proper purpose”. In the Adalah Case, most of the justices agreed in fact with the view that the Law was designed to ensure Israel’s security. And I, too, think so.

18.  What remains to be examined, therefore, is the proportionality of the Law according to three sub-tests:

(a)   The test of the rational connection.

(b)   The test of the least intrusive means.

(c)   The test of the proportional means senso strictu.

The main dispute in this case turns on the third of the above sub-tests.

At this point I wish to show that the amended Law satisfies the above criterion, in that it represents the precautionary principle, which has been developed in comparative law for situations of predictable uncertainty and catastrophic risks.

The precautionary principle is a relatively new principle in public law, but within a few years it has justifiably become – with the support of liberal jurists and the case law – one of the important principles in a number of areas, such as the environment, the use of nuclear energy and nuclear waste, use of medications, genetic engineering, oversight of food, sources of water and more.

In implementing this principle in the areas in which it was already recognized, the precautionary principle was designed to deal with the difficulty of the gap between the existing knowledge at a given time and the enormous and uncertain  potential harm that was liable to be caused by an activity, if appropriate precautionary measures were not adopted in relation to that activity. From the outset, the principle allows the authority (the legislature or the executive) to adopt measures designed to prevent the catastrophe when a significant threat of irreversible, wide-spread damage exists, even if the probability is low and even when there is no proven scientific certainty that the damage will indeed eventuate.

Many fine scholars have studied the origin of the precautionary principle. Some have held that this principle is simply a matter of pure logic. According to others, it is typical of the modern approach of citizens and governments who are attempting to reduce risks, or to change the emphases of various disciplines and values (science, economics, ethics, philosophy politics and active law – for the protection of the public) that prevail in society. My present analysis follows the path of the research of Professor Funk (Björn M. Funk, “The Precautionary Principle”, in The Earth Charter: Framework for Global Governance 191, 196 (Klaus Bosselmann and J. Ronald Engel eds., 2010), although I believe that it is possible to find echoes of this principle already in the words of Proverbs 28:14: “Happy is the man that feareth always…”. In all events, in modern law the development of this principle is attributed to German jurisprudence, in which it also came to be known as the Vorsorgeprinzip.

The principle first received a universal legal formulation in 1992 in the Rio Declaration on Environment and Development.  Since then, the principle has been modified many times in form and content, and it has had some twenty formulations.

The commonly accepted approach today with respect to its definition is formulated as follows:

Where an activity raises threats of harm to the environment or human health, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically In this context the proponent of an activity, rather than the public bears the burden of proof. (Wingspread Statement on the Precautionary Principle (1998), http://www.gdrc.org/u-gov/precaution-3.html).

 

This approach is more simply and memorably formulated in the English expression, “Better safe than sorry.”

(a)   Dr. Liav Orgad in his article (“Immigration, Terror and Human Rights: Israel’s Immigration Policy in Times of Emergency (Following HCJ 7052/03Adalah v. Minister of the Interior)”, 25(2) Mehkarei Mishpat  (2009), 485) offers a number of reasons why, in the circumstances, the basic constitutional right to family reunification in Israel may be violated, even if the percentage of terrorists among the “family migrants” is small. They are as follows:

(1)   The relevant question, in his opinion, is not how many “marriage migrants” were involved in acts of terror or how many acts of terror occurred due to their immigration, but rather, how many victims there were and how much damage was caused.

(2)   It must be borne in mind that the success of a “quality” terror attack exacts a cost that is far greater than the number of victims: it has far-reaching strategic, political and psychological ramifications. A successful terror attack has ramifications for the state economy, for tourism, for international relations, for the deterrent ability of the state, for its ability to stand up to threats and similar variables that are part, or should be part, of every mathematical equation or formula.

(3)   The question is not only how many acts of terror were committed by “family migrants”, but what percentage do these constitute of total terrorist acts that were committed by Israeli citizens.

(4)   Even if we accept that the state must take risks in order to realize basic constitutional rights of its citizens, we cannot ignore the fact that the risk that the state is required to take in the case of marriage migration of enemy subjects stems not from citizens of the state, but from foreign partners.

(5)   The present version of the Law contains five exceptions, which in any case obligate the state to take risks; these exceptions allow for detailed screening of about thirty percent of the applications.

(6)   From an institutional point of view, value-based decisions of this type ought to be made by the parliament and not by the court, unless there was a flaw in the decision-making process or it was based on alien considerations or it is irrational.

20.  It now remains for us, therefore, to examine the compatibility of the precautionary principle with the test of proportionality. The leading European decision on this subject is Pfizer Animal Health SA v. Council of the European Union [22] of the European Court of Justice, which in effect combined the precautionary principle with the criterion of proportionality and ruled, in our terms, that in cases in which the conditions for the application of the precautionary principle are met, one cannot say that the acts of the authority did not fulfill the requirements of proportionality, for in such situations, preference is accorded to the considerations of the regulatory authority, since it bears the responsibility if the catastrophe eventuates, and it will be required to justify its actions, or its omissions.

Let us now move on to discuss in greater detail the third sub-criterion of proportionality i.e., the “test of relativity”.

21.The criterion of “proportionality senso strictu” requires, as is known, that in order to justify the violation of a constitutional right, there must be a proper and positive relationship between the added benefit ensuing from realization of the legislative purpose and between the added harm that is liable to be caused thereby to the constitutional right. In my humble opinion, when the added benefit that the Law under scrutiny wishes to provide is the prevention of anticipated damage,  and particularly in situations in which the precautionary principle is apt, the relevant legislation will successfully pass this sub-test.

Thus, in the present case, the alleged additional violation of the right to family life, which is of high probability in the wake of the provisions of the amended Law, carries less weight than the anticipated harm.

22.  Moreover, and on the contrary. As is known, the legislator is afforded “legislative room for maneuver”. Within this room, the question with which we are confronted is not whether we would succeed in devising a better arrangement, but whether the arrangement that was selected is constitutional, i.e., whether it falls within the “legislative room for maneuver” within which the legislator is permitted to operate. Indeed, as Dr. Orgad demonstrates in his above article, the legislator not infrequently fixes provisions and prohibitions on the basis of statistical generalizations that are considered reliable, even if most of the individuals who belong to a particular risk group are not dangerous on an individual level, but the level of danger presented by this group as a whole is higher than that presented by other groups. Thus, for example, the generalization whereby young people have dangerous driving habits, and therefore restrictions and special statutory provisions will apply with respect to their driving, does not mean that all youngsters, or even a majority of them, drive in a dangerous manner, and it does not require a cancelling of the restrictions in the law that are applied to the driving of youngsters per se. This is particularly the case in relation to the precautionary principle.

23.  Application of the precautionary principle in the present case is justified, for this is a situation in which the uncertainty is great and even if the alleged anticipated danger is relatively very low, the tragedy that could be caused is absolutely terrible, and there is in fact no alternative for preventing it other than by means of a blanket restriction (with exceptions, as in relation to the amended Law). Moreover, the parameters for comparison between the potential damage and the violation of the right set up different values, which are difficult to present and assess in juxtaposition.

24.  The precautionary principle has another quality that is relevant to our matter, viz., the fact that it requires a permanent, ongoing examination with respect to the parameters defining it. This is consistent with legislation of temporary orders, for limitation of time, per se, contains an element of proportionality.

25.  We learn from comparative law that recourse to temporary legislation is appropriate in four alternative situations (see: Jacob Garsen, “Temporary Legislation”, 74 U. Chi. L. Rev. 247, 273-279 (2007)):

(a)   Constraints due to  urgency or emergency;

(b)   A controlled trial of a new system, or a new policy or as a means of receiving information;

(c)   A response to defects in existing normative situations;

(d)   An attempt to overcome cognitive biases.

Simply put, it appears to me that most of the above situations exist with respect to the reality that gave rise the amended Law and its extensions, and it can only be hoped that the reasons that justify adopting these steps will disappear in future. In the last update submitted to us by the respondents on 21.12.11, they said that an administrative study project is being conducted by the Government with the objective of formulating a comprehensive legal arrangement regarding the policy for entry into and settlement in Israel, as part of the State’s handling of the issue presented by legal and illegal immigration to Israel.

In view of the above – in the framework of the abovementioned administrative study which is at present being carried out, or parallel to it, in deliberations towards extending the validity of the amended Law – emphasis should be placed at least on two subjects:

(a)   A thorough reexamination of the severity of the present risks, while attempting to neutralize the cognitive biases that exist in these fields.

(b)   The provision of appropriate solutions for the problems and the status of minors, the children of the families to which the Law refers. On this matter I concur, fully, in the opinion of my colleague Justice M. Naor.

This last matter brings us to the issue of relief.

Relief

26.  In my view, as stated, the petitions should be denied. However, even those of my colleagues who hold that the Law should be declared void are of the opinion that the decision of voidness should be deferred for a significant period (up to nine months), in order to allow for another statutory arrangement to be devised. In my humble opinion, there are two fallacies in this approach:

(a)   At the time of writing this opinion, the said Law is scheduled to lapse on 31.1.2012, and one cannot know if it will be extended and how. Hence, whoever advocates striking it down is in fact giving the amended Law life, or is suggesting to the authority to extend its force even beyond the period allocated to it. This is problematic in view of the substance and the special nature of such a Temporary Order Law.

(b)   The relief that my colleagues propose proves that even according to them, the amended Law at this stage is essential (even if not necessarily in its present format) and proportional and that it in fact meets the requirements of the limitation clause, for apparently, the deferral provision, too, must conform to constitutional criteria.

 

Justice M. Naor

Justice Naor restated her position in HCJ 7052/03 Adalah – Legal Center for Minority Arab Rights in Israel v. Minister of the Interior [1] (hereinafter: the Adalah Case), according to which the Citizenship and Entry into Israel Law (Temporary Order), 5763-2003 (hereinafter: the Law) should not be voided. Justice Naor noted that with the passage of time, the number of families who married prior to the decision of the Government and the Law and who are not able to realize family reunification has decreased; in her opinion, this alleviates somewhat the harsh consequences of the Law. Justice Naor added that without making light of the hardship caused to families that were established subsequent to the government decision or the Law, the Israeli spouses who chose to establish families after the rules of the game had been changed, with persons whose entry into Israel was prohibited, did so in the knowledge of the legal situation in Israel.

Justice Naor reiterated her position concerning the scope of the constitutional right to family life. She discussed the fact that the right to family life, which is a whole world, has many derivatives, and that the constitutional protection of the right to family life does not provide universal coverage on the constitutional level. Similarly, in her view, no general duty should be imposed on the state to permit family reunification within the territory of the State of Israel. Against this backdrop, Justice Naor determined that the constitutional protection does not apply to the possibility of realizing family life with a foreign spouse in Israel in particular, which is only one of the derivatives of the right to family life. Justice Naor emphasized that in other democratic states as well, the constitutional right of a citizen or a resident to bring a foreign spouse into his country and to choose the country in which family life will be realized has not been recognized.

Justice Naor noted that even on the assumption that the right in question is a constitutional one, it was agreed that there is no obligation to permit the right to be realized at all times under all conditions. Justice Naor cited several examples from the case law of the Supreme Court, which permitted postponement or deferment of the realization of the constitutional right, out of consideration for the public interest. Justice Naor pointed out that in a similar fashion, in the present case, realization of the right to bring a foreign spouse into Israel was deferred for a fixed, known time (as opposed to some unclear, undefined time): until a woman reached the age of 25 years old, and a man – 35 years old. Justice Naor ruled that having regard to this and in view of the special, serious public interest underlying the Law, the Law meets the criteria of proportionality.

Justice Naor added that the provisions of the Law applying to minors allow minors not to be separated from a parent with custody who is entitled to reside in Israel. Justice Naor added that the State explained that minors who received a resident license or permit to remain in Israel, as relevant in accordance with the provisions of the Law, would continue to benefit from the same status even after they reached the age of 14 or 18, as relevant, on condition that they continued to reside permanently in Israel, and in the absence of any criminal or security-related obstacle. In light of the above, Justice Naor ruled that there is no cause for concern that minors, or minors who have reached majority, will be separated from their families; hence, in her opinion, intervention of the Court is not warranted, even in relation to the provisions of the Law that involve minors.

 

President D. Beinisch

1.    The question of the constitutionality of the provisions of the Citizenship and Entry into Israel Law (Temporary Order), 5763-2003 (hereinafter: the Citizenship Law or the Law) has come before us once again for adjudication. The Citizenship Law raises several basic issues that Israeli society must confront; first and foremost amongst these is the constant need to find the correct balance between security requirements and protection of human rights. The sweeping arrangements established in the Law give rise to difficult, complex questions  which are both legal and social in nature. These arrangements demonstrate the almost impossible reality with which the State of Israel is confronted both internally and externally. Israel is not the only state dealing with questions regarding immigration policy but it seems that the situation here is different from everywhere else. Israel is in a constant state of war or  “quasi-war”, and those who seek family reunification in Israel come from areas that are in a state of bitter conflict with Israel. But together with this bitter conflict, there are Arab citizens living in Israel who maintain ties with these people. Some of the ties are family ties. Those Israeli Arab residents and citizens seek to realize their rights, including their right to family life. Because the Arab minority constitutes the absolute majority of those seeking family reunification, any violation of their right to realize their family life is also a violation of equality. However, a certain number of spouses of Israeli citizens, who were permitted to live in Israel for the sake of family reunification, have abused their status and joined terrorist organizations; and ultimately, it was murderous terrorist attacks that spawned the need to legislate the Law and to adopt additional security measures.

In this complex reality, Israel must find an arrangement which, on the one hand, will allow for the maintenance of the security and protection of the State, but on the other hand, will not violate basic rights beyond what is necessary. Finding this balance is not a simple task. Every arrangement must be based on Israel’s social, cultural, ethical and legal background. The security situation with which Israel has been dealing since the day of its establishment must be its backdrop, but it cannot ignore the fact that the problems of security are a permanent fixture, and unfortunately, it is difficult to regard this situation as a temporary one.

2.    It is extremely doubtful whether the changes made to the Citizenship Law since the first judgment limit its application. The point of departure according to President Barak, in whose position I concurred in the first judgment, was a person’s basic right to choose a spouse and to establish a family unit with that partner in his country. This right, so we ruled there, is severely breached by the provision of the Citizenship Law in its establishment of a blanket prohibition against the entry of residents of Israeli-occupied territories, irrespective of whether that spouse poses a security risk. In our judgment we recognized the importance of the security requirements, and even of the need to establish presumptions of risk. At the same time, we pointed out that there cannot be an all-inclusive negation of basic rights, without any concrete investigation of the particular person and situation.

3.    In the framework of the amendments that were introduced after the first judgment, the “presumption” of security risk was not changed, and it was even extended. Under the Law at present, not only is no concrete investigation of the risk posed by the spouse or his/her family members or immediate surroundings required, but a general profile of dangerous activity that is taking place at the spouse’s place of residence is deemed sufficient. The list of the countries from which entry into Israel is prohibited was extended to all the states that are in a state of belligerence with Israel. The Law, in its former version and as formulated at present, does not allow for a concrete check of those seeking family reunification, and it does not have recourse to other means which involve a lesser violation of rights.

4.    We will also mention that not only the changes – the few changes – that were introduced into the Law are the focus of the petitions before us. They are accompanied by the fact that the Citizenship Law, which was enacted as a temporary order, has acquired permanent status on our law books. The Law has been extended twelve times since its enactment in 2003. The significance of this for a constitutional analysis of the Law is huge. The fact that the arrangement established in the Citizenship Law was enacted by way of a temporary order was the factor underlying the opinions of a significant number of judges in the first judgment, who held that in view of its set duration, the temporary arrangement obviates the need for a determination concerning a constitutional infringement and its proportionality. Reality, as we now know, has proved otherwise. The temporary order was extended many times, and even if it is possible that the same security need drove the extension, the question still arises as to whether, by means of the narrow chink through which temporary orders gain entry, the legislator was not attempting to introduce matters that would better have been given serious consideration, and in relation to which their introduction through the front door  should have been examined.

5.    In this situation, I can only repeat the position I expressed at length in the first judgment. The amendments that were introduced into the Law do not ameliorate the violation of the right to family life and the right to equality. I already pointed out in the previous judgment that absolute security does not exist in Israel, nor in any other state. Taking a risk is a necessary element of life in society and in the state, and the question, ultimately, is the degree of calculated risk that Israeli society is able to assume.

6.    In this context I will point out that I do not agree with recourse to the “precautionary principle” proposed by my colleague Justice Melcer. The precautionary principle is designed to deal with catastrophes when there is no scientific basis for their eventuation or for assessing the damage that they will cause. This principle allows for reduction, to the point of absolute obliteration, of the margins of risk that society is prepared to assume. By virtue of this principle it is possible to take far-reaching preventive action even in the absence of sufficient proof that the catastrophe will occur. My approach is that the conception of “preventive precaution” which gives priority to adopting the safe line – even where there is no direct causal connection between the act that is averted and its possible consequences – is an extremely wide one. It poses a significant risk not only of infringement of constitutional rights, but also of infringement of the processes of decision-making. This is because, if it is preferable to be safe in every case, there is no need to investigate the alternatives that reduce the violation. This approach has real potential for creating a slippery slope that is likely to lead to recourse to expansive regulatory means in order to prevent risk. It is not only the danger that was averted following recourse to the precautionary principle that must be considered, but also the risk that this itself creates.

7.    I do not concur in the position taken by some of my colleagues whereby the risk posed from permitting family reunification, subject to detailed checks or adoption of other means of testing is such that it justifies so broad a violation of basic constitutional rights. I am not arguing with the security needs. However, we must ensure that recourse to principles such as the precautionary principle – the goal of which is to impose very broad arrangements in order to prevent potential danger – do not themselves cause real harm. The Citizenship Law in its present formulation entails very significant harm. It impacts our most basic democratic conceptions. It involves a serious violation of the constitutional rights of the Arab citizens of Israel.

8.    My approach, as stated, is that even in its present formulation, the Law cannot be upheld due to its non-proportional violation of the right to family life and the right to equality. I believe that the proper balance was not achieved when the Law was analyzed in the first judgment, and the amendments that were introduced did not bring it to the point at which we could say that the Law is constitutional despite its violation of basic rights. The violation must – and also can – be ameliorated by changing the arrangement, be it by conducting detailed checks of those who seek family reunification; be it by allowing the refutation of the presumption of risk; or be it by broadening the possibility of acquiring status in Israel for humanitarian reasons. All these must find expression in legislation.

9.    Therefore, if my view is accepted, I would propose to my colleagues to order the Law to be invalidated, but to rule that it may be extended in its present format, if necessary, for an additional period not to exceed nine months. I am aware of the fact that in doing so, we will be allowing a law to remain in force despite its non-constitutionality. Nevertheless, in the present case immediate repeal of the Law would change the legal situation that pertained in the last eight years without a transitional period. An immediately-effective change in the reality will lead to a lack of preparedness on the part of the authorities responsible for implementation of the Law, and will increase the danger to which the public is exposed. Secondly – and particularly – this amount of time is required in order to allow the legislator to formulate a statutory arrangement.

 

Justice A. Grunis

The words of President A Barak (EA 2/84 Nayman v. Chairman of the Central Elections Committee for the Eleventh Knesset [6], at 310; CrA 6669/96 Kahana v. State of Israel [7], at 580) are based on the statement of Justice Robert Jackson of the United States Supreme Court in 1949 (Terminiello v. City of Chicago [10]). Justice Jackson, who was in the minority, warned his colleagues, the majority justices, in the following words:

There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact  (ibid., at p. 337; my emphasis – A.G.).

These words of warning are what guided me when I expressed my opinion in the earlier process (Adalah Case), in which we were asked to examine the constitutionality of the Citizenship Law. I believed then, and this is still my opinion today, that the Law meets the criterion of constitutionality.

2.    I am prepared to assume that the Law infringes the constitutional right of the Israeli couple to family life. I stress that this is only an assumption. This emphasis is intended to clarify that in principle, I am not one of those who accord the explicit constitutional rights in Basic Law: Human Dignity and Liberty extremely wide, comprehensive significance. As I said in my opinion in the previous process:

The very broad definition of the constitutional right … leads to a situation in which quite a few laws will be considered as violating constitutional rights … the outcome is liable to be a devaluation of constitutional rights (Adalah Case, at p. 513); and see my opinion in  HCJ  8276/05 Adalah, Legal Center for Minority Arab Rights in Israel v. Minister of Defense [8]).

Nevertheless, in view of the abovementioned assumption, I considered the question of whether the Law met the criteria of the limitation clause. I focused on the third criterion of proportionality, known as proportionality sensu stricto. According to this criterion, we must look at the relationship between the social benefit of the law that is under scrutiny and the damage caused by the constitutional violation. On this matter, I can only mention once again the certain harm that will be caused as a result of the entry into Israel of thousands of Palestinians, who have received the status of permanent residents or citizens as a result of marriage to Israeli citizens. On the basis of past data, there is no doubt that a certain percentage of them will be involved in terrorist acts. Indeed, the percentage of those involved in terror is expected to be very low, even negligible. However, even if the extent of the damage that will be caused cannot be assessed, it is clear that it will occur. There is no need to describe the consequences of terrorist acts.

3.    The relationship between social benefit and harm must be examined also on the assumption of a mistake on the part of the person who would negate the Law, as opposed to a mistake on the part of one who holds the view that the Law meets the constitutional criterion. Disqualification of the Law will lead to the entry of thousands of Palestinians into the State following their marriages to Israeli citizens. If it should emerge in the future that those who would disqualify the Law were mistaken in their low estimate of the risk, it will not be possible to turn back the clock. In other words, if – Heaven forbid – it emerges that there is involvement in terrorist acts, it will definitely not be possible to correct the mistake. It may be possible to revoke the status in Israel of those who turn out to be involved in terrorist activity, but this solution will be available only after the damage – harm to human lives – has already been done. On the other hand, if the Law does meet the constitutional criterion, this will lead to harm to Israeli citizens, who are not able to establish families with Palestinians, or to a familial separation between the Israeli spouse and the Palestinian spouse. I am certainly not belittling this harm, and what is more, from a numerical point of view quite a number of Israeli citizens are effected. Nevertheless, this violation of the right to family life of Israeli citizens has to be weighed up against the certain harm, on the basis of past experience, to the lives and persons of Israeli citizens. We must consider another point – one which I mentioned in my opinion in the previous process. None of the judges who are of the opinion that the Law cannot stand, whether in the previous process or in the present one, provided any example or precedent from any other country for a similar situation of a law being struck down.  Israel has been in a constant battle for decades against states and organizations that wish it ill. Even if the status of residents of the Palestinian Authority is not identical to that of nationals of an enemy state, it is more similar to that latter status than to the status of nationals of a friendly state. To the best of my knowledge, there has not been even a single case in which a state permitted entry into its territory of thousands of  nationals of an enemy, whether for the purpose of marriage or any other, at a time of war or of armed struggle. There is no reason for Israel to be a pioneer in this field.

4.    In the framework of her opinion, my colleague Justice M. Naor discussed the arguments on the subject of minors. I concur in her opinion on that issue.

5.    In summary, I stand firmly by the opinion I expressed in the past: the Law passes the test of constitutionality, and therefore, the petitions should be denied.

 

Justice E. Hayut

In the Adalah Case, I concurred in the opinions of those justices who held that although the Citizenship Law is consistent with the values of the State of Israel and was enacted for a proper purpose, the arrangements it provides are not proportionate, and for this reason they do not pass the constitutional test. Following this judgment the Law was amended on 28.3.2007 (hereinafter: the second amendment), and three central changes were introduced: first, sec. 3A1 was added to the Law, whereby the Minister of Interior is permitted, “for special humanitarian reasons” and on the recommendation of a professional committee that he appointed for that purpose, to grant a license for temporary residence in Israel or to approve an application for a permit for an inhabitant of the area whose relative is in Israel lawfully to remain in the State; second, the Law was applied, in addition to inhabitants of the Area, also to residents of Iran, Lebanon, Syria and Iraq (see the Addendum to the Law); third, the definition of prevention for security reasons appearing in sec. 3D of the Law was broadened. The last two amendments in effect extended the scope of the prohibitions established in the Law, and therefore they cannot provide a response to the lack of proportionality which afflicted the arrangements in the Law in its previous format. As opposed to these, the amending arrangement appearing in sec. 3A1 of the Law allows for a license for temporary residence or a permit to stay in the country to be granted “for special humanitarian reasons”, but this is an exception designed for exceptional circumstances and rare cases only, and it therefore cannot repair the defect of lack of proportionality from which the Citizenship Law suffers.

2.    In the Adalah Case I expressed my position that the enactment of laws that provide a response to security needs is one of the means available to us as a state in order to deal with the security risks to which the Israeli public is exposed. I further pointed out that imposing restrictions on family reunification for security reasons is a necessity, and should not be condemned. This is still my opinion. Nevertheless, it seems that the problem of lack of proportionality that taints the Law has not been resolved. I discussed the core of the problem in this context in the Adalah Case in saying that the Law “does not include any individual criteria for examining the security risk of an inhabitant of the Area”, and I added that given the special, complex security situation of the State of Israel, a presumption of risk in the matter of family reunification is warranted, but this presumption should be rebuttable in the framework of an individual, detailed examination which should be permitted in each and every case.

3.    The Citizenship Law, even in its format after the second amendment, continues to preserve the blanket prohibition prescribed in sec. 2 of the Law concerning the granting of status to an inhabitant of the Area (except for a general criterion of age), and largely blocks the path even of those who meet the age criterion or who comply with the requirement concerning the “special humanitarian reasons”.  This is in view of the broadened criteria that were added in relation to the existence of “security-related prevention”; they now also cover a concern about a security risk that stems, inter alia, from the fact that in the place of residence of an applicant who is an inhabitant of the Area, activity is being conducted that is liable to pose a threat to the security of the State of Israel or its citizens. The second amendment to the Citizenship Law does not, therefore, offer any response to the problems emanating from the collective arrangements that it prescribes, and apart from really exceptional cases, no detailed check is carried out by virtue of this Law in relation to those who seek to reunification with their families, and they are not given any practical opportunity to refute in a positive manner the presumption of presenting a danger that is attributed to them. This constitutes a severe violation of the constitutional right to family life of each of the individuals in the group, and it is exacerbated by the fact that this is not a short-term, targeted violation but a violation with long-term consequences. Moreover, the Law was indeed intended to provide a solution to the security needs of the State of Israel, given the armed struggle that the Palestinian terrorist organizations wage against Israel’s citizens. At the same time, the collective nature of the policy anchored in the Citizenship Law – which in fact has the capacity to negate the particular identity of the individuals who belong to that collective – and the disproportionate violation of equality due the arrangements prescribed in the Law, are liable to create a semblance of illegitimate racial profiling which ought to be avoided. When the collective prevention prescribed by the Law remains in place; when the second amendment broadened the collective criteria blocking family reunification between Israeli Arabs and spouses who are inhabitants of the area; and when the people concerned are not given the chance to prove, on the individual level, that they do not pose a security threat, the constitutional defect of lack of proportionality that impaired the Law remains.

4.    My colleague Justice H. Melcer believes that in this case, the “precautionary principle” ought to be applied. On this matter I prefer the stance of my colleague President D. Beinisch. The clear disadvantage of this principle, or at least in the way that my colleague Justice Melcer wishes to implement it, lies in the fact that it ignores the fact that the all-encompassing means adopted in the face of the danger whose prevention is sought, in itself creates dangers and harms that are liable to be significant for society or at least for certain groups therein. Therefore, the conclusion is unavoidable that application of the precautionary principle in the said manner displays great sensitivity to the dangers of only one certain type, and it is not sensitive to other harms that are liable to be caused by the very fact of its implementation. The totality that its application involves does not leave room for a correct balancing between the interests – however important they be – that we are required to protect, and the harms and the violations that may well occur as a result of the implementation of the means in this manner. Implementation of the precautionary principle has, to a great extent, the capacity to divest the third sub-criterion of the requirement of proportionality – which is one of the foundational components of the rules of constitutional review in the Israeli legal system – of all content.

5.    For all the above reasons, I concur in the conclusion reached by my colleague President D. Beinisch and my colleagues Justices E. Levy, E. Arbel and S. Joubran, whereby the Law should be declared void.

 

Justice N. Hendel

Difficult constitutional decisions bring out the best in the work of the judge, and at the same time they expose the weakness of the judicial task. The reasoning in various opinions is rich and even personal in a positive sense. But decision-making is far from an exact science, and far from a world in which there is one correct, clear answer which has the power to persuade all those dealing with the case. Against this backdrop my position will be presented.

Violation of a Constitutional Right

1.    The preliminary question is whether the Citizenship Law, with its amendments (hereinafter: the amended Law) violates a right under Basic Law: Human Dignity and Liberty. In my opinion, the answer is affirmative due to the combination of infringements of two rights: the right to realization of married life in Israel, and the right to equality.

First, I will comment that there is no constitutional right vested in each citizen to bring a foreigner into the borders of his state, even if he is married to that person. A state is entitled to set immigration law, and the hearts’ desire of its citizens cannot dictate policy in this area. This is so in general, and it is particularly so if the partner is a citizen or inhabitant of an enemy state or entity.

As for equality: when the court examines a violation of equality, it must also examine the practical aspects of the outcome, and whether there is clear, unjustified consequential discrimination. It will be stressed that consequential discrimination is not derived from the intention to discriminate. Take, for example, the present case. I do not believe that the purpose of the amended Law is to discriminate. The purpose is security-related. However, the consequence of the amended Law discriminates between the Jewish and the Arab citizens of the State. This consequence constitutes a constitutional violation. This is the cumulative power of the violation of the right to equality and the right to immigration of a partner for the purpose of marriage. To this is added the fact that the prohibition in the amended Law is sweeping, and it is not conditional upon an individual examination of the foreign partner.

In the overall assessment of the violation of the right of the Israeli partner to bring the foreign partner from the Area and of the lack of practical equality, I found that there is a constitutional violation that necessitates an examination of the amended Law according to the limitation clause.

Limitation Clause – Section 8 of the Basic Law

2.    The permit to violate a constitutional right includes several conditions: (a) by law; (b) befitting the values of the State of Israel; (c) enacted for a proper purpose; (d) and to an extent no greater than is required. The last test, that of proportionality, comprises three sub-tests: (1) the test of the rational connection; (2) the test of the means involving the least violation; (3) the test of proportionality in the strict sense. In my view and that of most of my colleagues, it is not difficult to determine that the first three conditions are met, and also the first two sub-tests of proportionality. The disagreement mainly boils down to the third sub-test.

The Test of Proportionality sensu stricto

In the framework of this test, the harm caused to the constitutional right must be weighed against the benefit to the public interest as a result of the violation. In my view, the constitutional right that is violated must first be positioned on the scale of constitutional rights, and the relevant public interest must be juxtaposed to other interests. Such “prioritization” of the rights and interests can assist the court in carrying out the task of constitutional balancing. This is similar to the approach in the United States, where it is customary to rank the constitutional rights on three levels for the purpose of determining the level of judicial scrutiny.

As I mentioned, the prohibition on bringing in a foreign partner who is an inhabitant of the Area, and establishing a family with this partner in Israel, together with the consequential discrimination against Israeli Arab citizens, entails a violation of a constitutional right. But this right, and its violation, is not ranked high on the scale of rights. As opposed to this, the public interest is state security. This interest is highly placed. It is interesting to note that the right to family life does not appear explicitly in the Basic Law, whereas the Law states expressly that “There shall be no violation of the life, body or dignity of any person as such.” From this one can learn that the protected public interest occupies a very high rank on the scale of values of the State of Israel.

4.    The outcome whereby an Israeli citizen who belongs to a particular national group will be prevented from bringing a foreign spouse into the State, without any detailed check of whether that person is dangerous, is harsh. This is one side of the coin. The other side is that concern about injuries to persons relates to a matter of certainty, or at least one of high probability. From the factual data that was submitted it emerges that the benefit deriving from the Law regarding reduction of the probability of future attacks is very considerable. It will be recalled that a “successful” attack is liable to cost the lives of dozens of Israeli citizens, and also those who are “only” badly or moderately injured pay an unbearable price. To this must be added the moral consideration that is cited in the Mishna in Tractate Sanhedrin (4:5), whereby “if any man has caused a single soul to perish ….[it is] as though he had caused a whole world to perish; and if any man saves alive a single soul … [it is] as though he had saved alive a whole world.”

As for violation of a constitutional right, and the consideration of proportionality, regard must be had to the exceptions in the amending Law. I will mention two of these. One is the exception relating to age: the sweeping prohibition is not applicable to a male inhabitant of the Area over the age of 35 years, and a female inhabitant over the age of 25 years. From the data that was presented in this case, it emerges that the age exception reduces the affected group by some 30%. The second  is connected to the Humanitarian Committee (sec. 3A1 of the amended Law). As I see it, the powers of the Committee and the discretion granted to it should be interpreted more widely than is done today. The two exceptions that I have mentioned – age and the Humanitarian Committee – do not cancel out the constitutional violation, but they blunt its intensity.

5.    Decisions on the narrow proportionality test are not all made of the same stuff. There are cases – and such is the case before us – in which the decision is difficult. The two competitors – the right that is violated and the public interest – tug mightily at each end of the decision rope. In these situations, there is a constitutional domain in which more than one answer is possible (similar to the margin of appreciation in the law of the European Union). Any law falling within this domain will be considered constitutional.

We are faced with a difficult case. The decision is a matter of degree. It is not surprising that this issue has twice been brought to court, and that each time, the outcome was determined by a majority of one justice in a bench of eleven justices. Of course, the existence of disagreements does not dictate a particular outcome. But here, ultimately, the difference in the opinions lies, in my opinion, in preferring to prevent the harm caused by the amended Law as opposed to preferring the marginal benefit of the amended Law. These disagreements, too, lead to the conclusion that this case falls within the parameters of constitutionality.

6.    Through this prism I considered the position of the interest of the defending Israel’s security in the ranking of public interests, and the position on the scale of constitutional rights of the constitutional violation with regard to the Israeli partner. I also examined the magnitude of security risk and its extent, as opposed to the damage caused to the basic rights, bearing in mind the exceptions in the amended Law. All this was executed against the backdrop of the factual web that was presented, with an awareness of the possible constitutional domain in this case. In short, my view is that declaring to law to be void is not warranted.

Summary

The amended Law was enacted as a temporary order, which was extended a dozen times. The passage of time, and the many extensions of the amended Law, do not, in my view, help the position of the State. The harsh climate accompanies us all year long, and has done so for a great many years. When we sit as the High Court of Justice, we are bound, in our judicial review, to watch the clock as well. My view is, as stated, that the Law should not be declared void. At the same time, the State would do well to formulate a law that deals with the subject of immigration in the present context and in general. According to the updated notice of the State counsel, this is being pursued energetically. In the event that no such new law is enacted, from the point of view of constitutional review it is to be expected, at the very least, that discussion of any extension of the amended Law will be comprehensive, thorough and substantive. Similarly, it is to be expected that the legislature will be attentive to the changing reality, in order to examine whether the violation of constitutional rights is still justified.

8.    In the final analysis, my view is that the petitions must be denied.

 

Deputy President E. Rivlin

The Issue in Dispute and the Role of the Court

1.    The petitions raise a question about the protection of human rights. The question concerns the imposition of statutory limitations on the right of non-resident foreigners to acquire citizenship by virtue of their marriage to citizens of a particular state, when such foreigners reside in an area hostile to that state. This question lies at the heart of a public dispute. The issue is complex, and the way in which it has been handled illustrates the way in which the Israeli legal system handles questions that spill over into the public and political debate.

2.    In practice, every legal system deals in its own way with the dilemma posed by a question of the type that was raised here. The way it approaches the question is a function of the political system, or the constitutional and social structure, and of the governmental culture. The core role of the constitutional court is to protect human rights, particularly minority rights or rights of other weak groups. This is not an easy task. In its formal sense, democracy is the rule of the majority. In its substantive sense, it is a regime in which minority rights, too, are protected. In order to fulfill its core function in a free society, i.e., the protection of basic rights,  in all legal systems the court must conserve its limited resources.

The resources available to the court are limited. Over two hundred years ago, Alexander Hamilton noted that the judiciary has no control over the “purse” and over the “sword”, hence its weakness. He attributed the weakness of the judiciary also to the fact that “it has no will of its own” – for it decides only those disputes that others bring before it, and it does not initiate decisions that are not based on a genuine conflict:

The Judiciary … has no influence over either the sword of the purse; no direction either of the strength or of the wealth of the society and can take no active resolution whatever. It may truly be said to have neither force nor will (The Federalist no. 78).

Because the judiciary has neither purse nor sword, nor a will of its own, the principal resource available to it is public trust. Descending into the public battlefield, when unnecessary, is liable to dissipate this precious resource. In the past, I have said that refraining from entering the arena of political dispute and showing deference to the political authorities in the appropriate cases is not intended to increase the power of those authorities, but to conserve the resources of the judiciary. This is the dilemma facing every constitutional court  and every court of administrative affairs. On the one hand there is a need for judicial and constitutional and administrative review – review that stands at the center of the work of the court – and on the other hand, there is a desire to refrain from entering the arena of public controversy, an entrance which is liable to use up resources available to the  court. We will illustrate this in one other constitutional system as well as in our system.

The United States: Doctrine of Non-Justiciability

4.    The Third Chapter of the United States Constitution limits federal jurisdiction to cases and controversies. This limitation, when accompanied by the rules of judicial prudence, has shaped the parameters of the standing of a person who brings a case before an American court; in other words, there must exist a personal interest that is likely to be resolved through litigation. The need for the existence of a personal interest is the outcome of the requirement that there be a harm that is not abstract or hypothetical – harm to the litigant who comes to court, and not someone else. To this are added other filters that together come under the aegis of the doctrine of non-justiciability. Justiciability is absent in cases which are not yet ripe for adjudication, or if the subject-matter is theoretical, and in all those cases that are termed “political questions”. Non-justiciability in some of these cases lies, at base, in the principle of separation of powers. Under the rule of lack of ripeness, the United States court will refrain from adjudicating an argument whose validity depends on a future development, which itself might well not eventuate as expected, or not happen at all (see e.g.: Texas v. United States  [11]). A potential violation of a right does not entitle one to relief. Another barrier is found in the doctrine of the theoretical subject, i.e., mootness, that directs the court not to adjudicate a hypothetical or academic dispute, where the judicial decision will not affect the rights of the parties to the process. There is also a lack of justiciability where the question is essentially a “political question”. Non-justiciability in “political questions” reflects a conception according to which questions which the judiciary has neither the tools nor the criteria to resolve. The United States Supreme Court has drawn up guidelines for examining whether a question is a political one with which the Court should not deal: where there is written constitutional provision assigning the matter to the political authority; where there are no obvious judicial criteria than can be applied in order to resolve the question; where the question in dispute cannot be resolved without deciding in advance on policy that is not within the discretion of the Court; where there is a clear and special need to abide by a political decision that has already been made; and where there is a potential for a multiplicity of conflicting decisions on the part of the various authorities on the very same question (Baker v. Carr [12]). Apart from the “political questions”, the United States Supreme Court defers to the political authorities in other matters that fall within their area of expertise: they do so out of recognition that not all matters were intended to pass beneath the rod of judicial discretion, and that there are matters which are better left to be decided by the elected authorities.

5.    One of these matters is that of immigration and entry into the United States; here, the doctrine of deference in the United states reached the peak of its application. It was decided that as a rule, deference in these matters is absolute, and the political powers are vested with plenary power (Jon Feere, “Plenary Power: Should Judges Control U.S. Immigration Policy”, Center for Immigration Studies, Feb. 2009). Thus, for example, the U.S. Supreme Court noted, in 2005 (Clark v. Suarez Martinez [13]) that Congress had the power to introduce legislation that protected the security of the State borders, in addition to the legislation enacted in 2001 (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot) Act of 2001).

This conception of matters of immigration was, inter alia, the outcome of the doctrine of the “political question”, namely, the refusal to adjudicate cases that involved determining policy that ought to be determined by the body that represents the public interest and which is accountable to the public. The connection between immigration and foreign relations, between immigration and national security, and between immigration and other subjects that involve the determination of policy, has formed the basis of non-intervention on the part of the courts. In addition, the U.S. Supreme Court’s approach was served by considerations of institutional inability to make political decisions in the framework of immigration laws which by their nature are created by the political authorities. “Over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens” said the US Supreme Court (Fiallo v. Bell [14]). When security considerations formed the basis for the decision to expel an alien from the United States, the American court refused to intervene, even though the person involved was married to an American citizen who had served in the United States Army. This was stated emphatically: an alien who wishes to enter this country cannot claim a right of entry. Permitting the entry of aliens into the territory of the United States is a privilege conferred by the sovereign on the United States government. This privilege is granted to an alien only in accordance with the conditions that the United States determines. It must be implemented in accordance with and by virtue of the process that is to be set by the United States (Knauff v. Shaughnessy [15]).

There in the United States too, however, and even on matters of immigration, the court does not entirely refuse to regulate the rules, and one can find cases in which the court abandoned the doctrine of plenary power vested in the authorities in those matters (see, e.g., Zadvydas v. Davis [16]).

6.    Our older sister – the American constitutional law system – experienced historical shifts that rocked the boat of case law this way and that, until it stabilized. American history presents us with a clear picture of the dilemma facing constitutional courts in every free legal system: the need to fulfill the core function – protection of human rights – and the need to recruit the necessary resources in order to overcome the difficulties presented by every political culture to the court that fulfills its core function. American history reflects the harsh consequences of Lochnerism – a case that became a concept in the wake of the decision in Lochner v. New York [17], in which the Supreme Court ruled that a New York State law that set an upper ceiling on the number of working hours of bakers was void in that it was unconstitutional. This was a protective labor law, and the judgment aroused widespread, almost universal, criticism as a symbol of excessive intervention in value-based matters, and in matters concerning the regulation of economic policy – in relation to which the court ought to have deferred to the statutory regulation.

7.    The effects of the Great Depression at the end of the 1920s and the beginning of the 1930s cast a dark shadow over the intervention of the courts in economic regulation of Congress, which sought, on its part, to heal the economy in the framework of the laws of the New Deal. During his second term of office, President Franklin Roosevelt, riding the wave of public criticism of the court, proposed the court packing plan, which was designed to cripple the court. The Lochner era came to an end: the new legislation, beginning in 1937, once again respected the choices of the legislature in the economic field, as long as they were supported by some sort of rational basis. Recognition was once again accorded to the broad power of both the various states and the Federal government to regulate economic matters.

8.    The end of the era of Lochnerist intervention was clearly manifest in the foundational decision in United States v. Carolene Products Co. [18]. However, at the very time that intervention in economic policy was terminated, and in the very same decision, the first signs of the renewed flowering of protection of basic human rights appeared. In a historical footnote included in that judgment (footnote 4), the US Court pointed out, albeit with the caution that was a product of its clipped power, that “it is possible that there would be a greater proclivity on its part” for constitutional judicial review, when at stake was a law that violated human rights, or a law that limited the ability of the political process to block unwanted legislation, or a law that discriminated against a discrete and insular minority. The Court formulated the two sides of the coin that was minted in that tempestuous period – respect for the authorities where this was due, and validating laws as long as they were reasonable and logical on the one hand, and on the other hand, simultaneously, a clear and courageous statement that deference would not apply to laws that violate basic rights or laws that discriminate against vulnerable minorities. The way in which the US court dealt with the dilemma of justiciability was to take one step back followed by a courageous step forward. In the foundational footnote that symbolized the beginning of the revival of the US court, the strong protection of freedom of expression, of liberty and equality, of privacy and of personal autonomy, was fashioned. The US court became a beacon from which the light of liberty shone forth.

Israel: On Governance and Accountability

9.    The various legal systems, we said, struggle with the need to fulfill the core function of the court in the framework of the realities in which they operate – each in its own way. The Israeli legal system adopted a path that was different from that chosen by the United States. The American system adopted a rigid approach with respect to the intervention of the courts in matters that were the subject of public controversy; our system chose a different approach due to the reality in which the Israeli courts operate. This reality is affected by legislative failures and by a lack of governance on the part of the executive authority, resulting in an absence of statutory regulation of essential subjects, or acceptance of partial or temporary legislative regulation – as attested to by the Law with which we are dealing, with all its flaws.

In a parliamentary system of government of the Israeli type, the government (the executive) governs by way of application of the normative rules that are fashioned by the parliament. Normally, it is within the power of the executive authority to initiate legislative processes, and even to influence them by means of the support of the majority it enjoys in the legislature. This is governance. But governance has a price. He who exercises power bears responsibility for his actions. He who has sovereignty in the exercise of his powers by virtue of the law assumes accountability vis-à-vis the public. Refraining from making executive and legislative decisions on substantive questions detracts from governance, and it represents a certain denial of accountability. Moreover, transferring the onus of regulating matters that are the responsibility of the executive and the legislative branches to the judiciary imposes upon the latter the consequences of the weakness of the first two. Contrary to what many think, such a choice in fact weakens the judicial authority.

10.  Civilized countries have a clear, comprehensive policy of immigration and of nationalization. In many states, the establishment of norms that regulate the entry of foreigners was intended to ensure that such entry would not impose an economic and security burden upon the citizens and inhabitants, that it would not be detrimental to their health nor to the welfare of the public and its way of life. This is when times are normal.

In times of war or of armed struggle, the nations of the world limit the entry of enemy nationals into the state. These limitations also apply to immigration for the purpose of marriage, and they are recognized by law. Even where there are no security considerations, states limit immigration for the purpose of marriage. European states are constantly tightening conditions for immigration into their territory for demographic reasons. The European Court of Human Rights gave support to the rights of these states to limit matrimonial immigration into their territory. The rules of International law do not recognize a right of immigration for the purpose of matrimony, and they do not impose an obligation upon states to guarantee family reunification in their territory.

11.  And in Israel: instead of a normative, principled and comprehensive regulation of immigration policy, to this day we have bits of arrangements. Temporary orders, made up of assorted scraps, are not an alternative to a comprehensive normative arrangement. The Temporary Order in the present case, too, changes from one moment to the next. Over the years, exceptions and reservations have been inserted into the preliminary prohibition on granting the right of entry and status to an inhabitant of the Area, or to a citizen or inhabitant of an enemy state specified in the Law, most of which were designed to mitigate the prohibition. The absence of a comprehensive legislative arrangement on matters of immigration has led to a situation in which the questions that required comprehensive resolution have once again been laid piecemeal at our door, and we are required to decide once more the question of whether a “temporary order” will remain in force.

The statutory vacuum in the Israel reality forced the Court to depart from the core judicial function and to touch upon questions that are the subject of a heated public controversy. This distancing, which is the result of constraints placed on the courts in Israel, made it necessary to replace doctrinal non-justiciability, which is familiar to us from other legal systems, with discretionary non-justiciability. The doctrine of justiciability in its classic formulation became more moderate, but the logic on which the doctrine was based did not disappear, and it has always formed the basis of the judgments of the Supreme Court. We do not dismiss out of hand questions that are at a remove from the core judicial function – constitutional or administrative – but we do not ignore the need of the Court to choose, from amongst all the issues that are laid at its doorstep, those issues which call for discussion in the existing social and political reality. The further we draw away from the constitutional core, the more we are liable to be asked to pull the chestnuts out of the fire for the political branches. The Court itself determines the parameters of justiciability, as well as the parameters of intervention in the actions of the political authorities. Where the Court is confronted with the question of whether to delve deeply into political, social and economic questions, it is expected to act in accordance with the best rules of deference. Considerations of non-justiciability, which in Israel, as we have said, are differentiated from an independent doctrine of non-justiciability, due to the constitutional structure and the problem of governance, find expression in the arena of deference. Thus, for example, the arena of reasonability outlines the arena in which the administrative authority is authorized to make decisions, according to its discretion. The arena of reasonability is influenced, on its part, by the arena of deference.

Between Deference and Judicial Review: Conservation of Resources for the Sake of Protection of Human Rights

12.  As stated, the resources available to the court, and primarily, public trust, are precious and limited. The court must store as much of them as it can, and refrain from “wasting them”, where possible and appropriate. There will be a day when it will have need of them, when it is called upon to protect the human rights of Israel’s citizens, and primarily, the citizens who belong to the weaker sectors. It needs them in order to protect unpopular views and the right to express them; it needs them in order to ensure liberty; it needs them to ensure the right to equality. It needs them when it is required to protect the minority, the weak and the poor. It must use its strength and power in order to afford unreserved protection of liberty. Deference towards those subjects that are at the heart of political endeavor is in no way intended to detract from judicial review of the court. “Deference” cannot detract from constitutional review: it is designed to secure the resources  necessary for its existence. “Deference” does not mean denial of responsibility; deference is not the withholding of an opinion. On the contrary: it is a condition of strong constitutional review. Indeed, the Court’s abstention from entertaining and deciding on certain subjects is liable to be perceived as a handicap and a weakness. In reality, in this way the courts defend themselves by means of filtering mechanisms. Through these mechanisms, the courts can refrain from dealing with matters which they ought not to be deciding. This is a privilege accorded to the courts, and it is this that conserves their strength and their resources. Thus their accountability retains its position: in the court of the political authorities.

13.  In its protection of human rights, judicial review must be, in the words of Justice Brennan in another context, “fearless, vigorous and uninhibited” (New York Times Co. v. Sullivan [19]. The arena of deference that we designate for the activities of the other authorities will take into account our fundamental constitutional principles and our conception of the balance between the relevant considerations regarding the exercise of judicial review. The special importance of judicial review in those cases in which fundamental human rights are at issue should be recognized. Here it is important for judicial review to utilize the full extent of its power and ability. It will have this ability if it succeeds in refraining from dispersing its legal and social resources that are nurtured by public trust where the area of deference widens.

The Question in Dispute

14.  The issue to be decided here today is of the kind that lies at the core of the judicial function due to the fact that it gives rise to questions of protection of human rights, but at the same time, due to the legislative omission, it touches upon a sharp public controversy and political debate. Our decision will be made on the basis of the rules of constitutional review, while having regard to the principles of deference.

In the petitions before us the question of protection of human rights arises. The quest for equality provides a backdrop to the petitions. Another basic right also underlies the petitions, i.e., the right to family life. There is no doubt that imposing restrictions on immigration in some way violates these basic rights. True, this violation is not in itself directed at Israeli citizens. It violates the basic rights of Israeli citizens only where the realization of their right is conditional upon granting a right to foreigners who reside in radical enemy states, such as Iran or Syria, or to foreigners who live in areas in which intense terrorist activity, targeted at Israeli citizens, occurs and is based. However, even a violation that is not directed, from the outset, at the basic rights of Israeli citizens, justifies constitutional review as long as it exists. The protection of constitutional basic rights is the very heart and the purpose of the authority to exercise judicial review. That is its function. It is the violation of human rights that justifies the examination of the constitutionality of the contents of the Citizenship Law.

The Constitutional Right

15.  I have already expressed my opinion that the constitutional question cannot be divested of the reality in which it is cloaked. It cannot be placed in a world that does not exist – on another planet. The constitutional question is adjudicated here and now – in a state that is hurting, struggling to maintain its existence on a strip of land that is ablaze, a state which tries to avoid becoming “another planet”.[1] The reality is a comprehensive one, for which it is difficult to set analytical boundaries, just as there is no place to draw an analytical, artificial distinction between the case of an Israeli partner who wishes to marry and that of the foreigner whom s/he wishes to marry. The right of the Israeli partner affects a particular segment of the right – a segment in which the foreign spouse is a partner; we cannot close our eyes to the identity of the foreigner, to the political entity to which he or she belongs, to the identity of the elected leaders of that entity and to the circumstances in which the matter is being adjudicated. Since the hearing in the previous petition, the Hamas Organization has taken control of some of the Territories. This reality is a true one, and it must be taken into consideration when, in the framework of the constitutional balance, we are called upon to decide on the constitutionality of the restrictions that are placed on basic rights.

16.  There is no doubt that the Citizenship Law affects the possibility of full realization of the constitutional right to family life and the constitutional right to equality. It does not negate these rights. It detracts from their full scope. The Law does not prevent the Israeli spouse from marrying a partner from the Area; neither does it prevent the Israeli spouse from realizing the right to family life in the Area, or in any other place outside of Israel. However, it detracts from the right of the Israeli spouse to establish the family unit within the borders of Israel in those cases in which the foreign spouse is an inhabitant of the Area specified in the Law before us, and belongs to one of those groups whose entry from the Area into Israel the Minister of the Interior was empowered to prevent. The result of this is also a violation of equality, in that most of the Israeli spouses who marry inhabitants of this Area are Arab Israelis.

17.  Moreover, the defined range of human rights should not be contracted in times of emergency. Neither should different balancing criteria be adopted in difficult periods. The Basic Laws do not recognize two systems of laws, one of which applies in times of calm and the other, in times of emergency. Israeli constitutional law has a uniform approach to human dignity and liberty both in times of peace and in times of danger. The statement of Justice Holmes in the case of Schenck v. United States([20]), according to which things that are said in times of peace may sometimes not be said in times of war, is not understood as a call to deviate from the constitutional criteria themselves in times of emergency. This applies to freedom of expression, and to other basic rights. The criteria on the basis of which we examine restrictions on human rights are uniform at all times. The criteria are identical. But we should recall that their implementation is affected by the factual situation.

The question which has returned to our doorstep today is, therefore, whether the conditions that permit a violation of the basic rights that we have discussed have been met.

The Conditions for Detracting from a Constitutional Right

18.  The limitation clause of Basic Law: Human Dignity and Liberty sets four conditions for violating a constitutional right: the violation of the basic right must be by law or according to a law; the law must befit the values of the State of Israel; it must be enacted for a proper purpose; and its violation of the right must be to an extent no greater than required. Most agree that the first and second conditions are met here. The dispute turns on the question of whether the third and fourth conditions are met, i.e., if the Law was enacted for a proper purpose and if its violation of constitutional rights is greater than necessary. The first of these conditions deals with the purpose, and the other – with the appropriate means of realizing this purpose.

It seems to me that there can also be no dispute that the Law was enacted for a proper purpose. The purpose of the Law in this case is security-related, and it is to reduce, insofar as possible, the security risk posed by the foreign spouses who enter Israel. At the basis of the legislation lay the security concern about involvement in terrorist activity on the part of the Palestinian spouses, who hold Israeli identity cards by virtue of their marriage to Israeli partners. The concern is about abuse of this status in Israel – a status which allows for free movement between the area of the Palestinian Authority and Israel. History shows that this is not a baseless concern. This purpose is a proper one.

The fourth condition listed in the limitation clause requires that the violation of the right be no greater than is necessary. It is not enough that the purpose is proper: the means that are adopted for its realization must also be proper, i.e., proportional. The words “to an extent no greater than is necessary” have been interpreted in Israeli case law, following foreign case law, as implying three sub-criteria: that of suitability (the rational connection); that of necessity (the means which involves the least violation); and that of proportionality. The first sub-criterion requires the existence of a rational connection between the (proper) purpose and the means selected for its realization. This is the criterion of common sense and of life experience. From amongst the  means that create the rational connection between the proper purpose and the means, the means which involves the least violation should be chosen – that is the second sub-criterion. The third sub-criterion is that of overall balance. It looks at whether the relationship between the benefit derived from achieving the (proper) purpose – prevention of risk – and the damage caused (as a result of the violation of the constitutional rights  achieves a proper balance between the needs of the general population and the harm to the individual.

The third sub-criterion (of the three sub-conditions of the fourth condition – the requirement of proportionality) i.e., the criterion of relativity, imposes the task of striking the balance on the court. This balance is not detached from the examination conducted by the court in the framework of the first two sub-criteria. Moreover, in many cases, once it has been proven that there is a rational connection between the purpose of the law and the means it selected (the first sub-criteria), and once the Court is convinced that the purpose of the law cannot be achieved, as it stands, by recourse to less harmful means (the second sub-criterion), it is a short road to the conclusion that the proper overall balance is achieved as well (the third sub-criterion). However, a positive decision in relation to the first two criteria often led to a rapid decision on the question of the third sub-criterion (see, e.g., R. v. Keegstra [1990] 3 S.C.R. 69; McKinney v. University of Guelph [1990 3 S.C.R. 229). This natural channel led some to the conclusion that the third sub-criterion is in fact a superfluous stage in the constitutional examination.

I believe that there is no room for a sweeping conclusion that if the first two sub-criteria are satisfied, the question of the existence of the condition of proportionality will necessarily be answered affirmatively. Indeed, the third sub-criterion should not be isolated from the other two; the response to each of these has an understandable effect on the others. However, the importance of the last criterion should not be underestimated, just as the importance of each of the sub-criteria in itself should not be inflated. These sub-criteria should be implemented, with sensitivity being shown to the circumstances of each case  (Libman v. Attorney General of Quebec [23]). This is not a matter of guidelines alone. The sub-criteria, as adopted, outline the way in which judicial review should be exercised with respect to the condition of proportionality, and in certain senses, they also set the parameters of the court’s competence. They allow for a uniform, sophisticated examination of the question of whether the condition of proportionality has been met. The Court will, therefore, refrain from applying the proportionality criteria in a mechanical or literal manner when it wishes to declare the law invalid.

The criteria of proportionality come together to examine the relationship between the cost of the harm to the protected right and the expected utility embodied in the proper purpose of the law – prevention of a security risk, or if you will, in the logical formulation coined by Learned Hand: an examination of the relationship between the cost of the legislation (C) and the probability (P) of injury (L) without it. In the present case, even if the probability of damage is low, its magnitude – both physical and spiritual harm – is almost insurmountable.

19.  In the present case, the first two sub-criteria of the fourth condition were met with respect to the condition of proportionality. First, there is a rational connection between the purpose of the Law and the means it selected. The prohibition on the entry of foreign spouses to Israel prevents the risk that they present. The fact that it was allegedly possible to realize the purpose of the Law by using other means that were not adopted does not necessarily indicate that the means that was selected is not rational.

With respect to the second sub-criterion, too, it would seem to be generally agreed that the individual examination causes less harm. However, it is also clear that the individual examination of those who seek to settle in Israel does not realize the purpose of the Law to the same extent as a blanket prohibition on their entry. “In light of the central value of human life that the Law seeks to protect, it is clear that a sweeping prohibition will always be more effective – from the point of view of realization of the purpose of reducing the security risk as much as possible – than the individual examination (President Barak in the first petition).

Still to be decided, therefore, is the question concerning the third sub-criterion of the condition of proportionality – that of relativity, i.e., the question of sensu stricto proportionality: is the relationship between the benefit derived from achieving the proper purpose of the Law and the harm caused by it proportional? This examination should be carried out against the background of the accepted distinction between interest and right.

Interest as opposed to Right

20.  The criterion of balance between the means adopted and the purpose underlying the law is derived from the question of the definition of the value for the sake of which the constitutional right is violated: is it a private right or a public right? The case law, even that which preceded the Basic Law, created a distinction between the criterion of vertical balance (between a right and a public interest) and the criterion of horizontal balance (between rights of equal weight). However this distinction sometimes presents a difficulty, stemming from the artificiality that often lies in the definition of the public interest as distinct from the right of the individual.  [The] public, which has an interest, is comprised of individuals.  And when the public interest is dissected into its components, aggregate individual rights are exposed. Thus, for example, when we are dealing with the security of the public – a public interest in our language – we are talking about nothing other than the right to life and to bodily integrity of each member of the public. This categorization is likely, however, in this case, to have implications for the balance on which the requirement of proportionality is based.

21.  The value of public security normally assumes an abstract form; the tendency is to view it as a non-specific public interest. Often, the nature of the anticipated harm to public security is not tangible. A person’s right to life, on the other hand, is a concrete, tangible right. It is almost an ultimate right; it is the right of people to life – and every one of these people is a world in himself. It is designed to protect people as individuals. As we have said, the distinction between  the two – the interest and the right – is sometimes difficult, as we see from the present case. Apparently, we are dealing with a value in the category of interest – public interest – but in this case, the image of the public become sharper and the danger becomes focused. We are not looking at an abstract public, but at the faces of those who are liable to be hurt in the next terror attack. We can envision the horror of the harm. This is not the abstract concern for public welfare that we have encountered in previous cases. Public security here means the actual right to life, and this is what the Law seeks to protect. The attack that the Law seeks to prevent is directed at certain people, individuals, Moslems, Jews, Christians and Buddhists, who live with us. These people – each and every one of them – have a vested right to life. They have not appeared physically before us today because no one knows what the future holds for him. But their right stands before us here and now.

The Overall Balance

22.  In the framework of the previous petition, there was no dispute concerning the benefit of the disputed legislation, and it was agreed by the majority of my colleagues that “detailed examination of those who belong to those population groups that have a proven potential for posing risks to security and to life, is indeed likely to reduce the harm to the ability to establish family life in Israel, but as opposed to this it will not ensure in an appropriate manner the security of the public.” It has been proven in the past that terrorist organizations will recruit a spouse who is an inhabitant of the Area to their ranks only after that spouse has acquired a permit allowing him/her to enter Israel and to move about freely. In the task of balancing between reducing the carnage and ensuring life on the one hand, and the harm caused to some Israeli citizens who wish to live with foreign spouses in Israel – the benefit [of the Law] exceeds the damage.

The limitation imposed in the Temporary Order does not apply, ab initio, to marriage to Palestinians who live in states which are no longer enemy states – Egypt and Jordan. It applies to those who live in the Area, from which enemy action emerges, or nationals of states that advocate incessantly for the destruction of Israel. In the meantime, additional concessions have been introduced into the Law for those who seek to immigrate to Israel for the purpose of marriage. On our recommendation, a provision was also added to the Law to allow for approving an entry permit in specific cases in which weighty humanitarian reasons justify so doing. The benefit therefore prevails, in the overall balance, over the damage in the legislation. Damage of another type is not that which is found in the existing legislation, but which lies in the lack of a responsible, serious and complete regulation of the matter of immigration to Israel. In the absence of an arrangement, the Temporary Order was returned to us for resolution. In an overall and responsible balance, we cannot void it and leave, in its place, a dangerous legislative vacuum which no-one knows when it will be filled.

My opinion, therefore, is that the petitions must be denied.

 

 

Decided as per the majority opinions of Deputy President E. Rivlin and Justices A. Grunis, M. Naor, E. Rubinstein, H. Melcer and N. Hendel; as against the dissenting opinions of President D. Beinisch and Justices: E.E. Levy, E. Arbel, S. Joubran and E. Hayut, to cancel the order nisi issued by the Court and to deny the petitions, with no order for costs.

 

16 Tevet 5772

January 11, 2012

 

 

                  

 

 

Supreme Court of Israel

HCJ 129/13

 

Before:            The Honorable President A. Grunis

                        The Honorable Vice President M. Naor

                        The Honorable Justice E. Rubinstein

 

Petitioners:      1. Eli Axelrod

2. Moshe Axelrod

v.

Respondents: 1. Government of Israel 

2. Israeli Knesset

3. Ministry of the Interior

 

Petition to grant an order nisi

 

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

 

On behalf of Petitioners:           Adv. Eli Axelrod

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

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

 

Judgment

 

President A. Grunis and Vice President M. Naor:

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

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

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

 

President, Vice President

 

Justice E. Rubinstein:

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

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

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

 

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

 

Justice

 

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

 

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

 

President                             Vice President                             Justice

HCJ 5492/07

HCJ 7677/07

HCJ 4820/08

 

Petitioner in 5492/07:                     Smadar Boaron

Petitioner in 7677/07:                     Noah Kariv

Petitioners in 4820/08:                                                   1. Malka Stier

                                                                                2. Shulamit Gabay Galoni

                                                                                3. Cheli Juliet

 

v.

National Labour Court

National Insurance Institute       

 

The Supreme Court sitting as the High Court of Justice

[21 July 2009]

 

Before President D. Beinisch, Deputy President E. Rivlin, and Justices A. Procaccia, E. Levy, E. Arbel, E. Hayut, H. Melcer

 

Petitions for an order ¬nisi and for an interim order.

 

Facts: Four widows who had each been receiving either a dependents allowance or a survivors allowance in accordance with the provisions of the National Insurance Law [Consolidated Version], 5755-1995, received notices from the National Insurance Institute indicating that their allowances had been discontinued — as of the time that the Institute had determined that each had begun living together with a new partner in a common-law marriage.  After the relevant regional labour courts ruled in favor of the petitioners, the National Labour Court upheld the discontinuation of the allowances for all of them.

Held: The National Labour Court’s decision involved no substantive legal error requiring the intervention of the High Court of Justice. Sections 255 and 262 of the National Insurance Law refer to the discontinuation of a survivor’s allowance to a widow who has remarried; s. 135 refers to the discontinuation of a dependents allowance to a widow who has remarried. Neither section refers specifically to remarriage in the context of a common-law relationship. However, the statute’s definitional section specifically defines a wife as including a common-law wife, and it is this definition that entitles a woman whose common-law husband has died in either a work accident or of natural causes to receive the relevant type of allowance on the same ground that an “official” widow receives such an allowance. The question to be decided, therefore, is whether the provisions relating to the discontinuation of the allowance upon remarriage, as outlined in the above-mentioned sections, apply to widows or widowers who have entered into common-law relationships as well as to those who have officially remarried.

The statute must be interpreted in light of its purpose and in light of its specific language. The purpose of both allowances is to provide financial support to a person after the death of his or her partner whose income had provided support; this support is discontinued at the time of a remarriage under the assumption that the new couple will be pooling income and sharing expenses and that the support from the National Insurance Institute is no longer necessary. This is also why the allowance is generally renewed if the second marriage ends within a certain period of time. This purpose supports the cancellation of benefits to widows and widowers who have entered into common-law relationships, as they too are benefiting from the financial aspects of a shared household, given that the existence of such a shared household is a prerequisite for a determination that a relationship reaches the level of a common-law marriage.

The petitioners had argued that common-law relationships and official marriages should not be deemed comparable in terms of the level of support provided, due to the relative instability of a common-law relationship which has not been formalized through a wedding ceremony. This argument fails because the statutory provisions regarding the renewal of allowances upon the conclusion of a remarriage would also apply to the termination of a common-law relationship, so that the supposed relative instability of the latter form of relationship is not a relevant consideration.

The statutory language also supports the determination that a common-law wife should lose her entitlement to a survivors or dependents allowance. The definition of a wife in the definitional section expressly refers to a common-law wife, and nothing else in the text of the statute contradicts the inclusion of a common-law relationship within the definition of remarriage. The fact that the provisions pertaining to the cancellation of a right to an allowance refer to specific dates such as the date of a marriage or of the dissolution of a marriage does not conflict with this interpretation; the National Insurance Institute is able to make determinations regarding the beginning and ending of a common-law relationship as well, albeit not as easily as in the case of an official marriage.

Petitions denied.

Legislation cited:

 

Basic Law: Human Dignity and Liberty.

Civil Wrongs Ordinance [New Version], 5728-1968.

Families of Soldiers Killed in Action Law (Pensions and Rehabilitation), 5710-1950.

Income Support Law, 5741-1980.

Inheritance Law, 5725-1965.

Interpretation Law, 5741-1981, s. 2.

Names Law, 5716-1956.

National Insurance Law [Consolidated Version], 5755-1995, ss. 1, 130(b), 135(a)-(c), 238, 255(b)-(d), 262.

National Insurance Regulations (Dependents allowance for Remarried Widows), 5737-1976.

Public Service Law (Pensions) [Consolidated Version], 5730-1970.

Israeli Supreme Court cases cited:

[1] HCJ 6522/06 Kochavi v. the Jerusalem Labour Court (2009) (not yet reported).

[2] HCJ 8929/08 Ben Nun v. National Labour Court (2009) (not yet reported).

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

[4] HCJ 840/03 Israel Professional Firefighters Union — Firefighters Committee v. Jerusalem Labour Court [2003] IsrSC 57(6) 810.

[5] HCJ 5666/03 Kav LaOved Organization v. National Labour Court (2007) (not yet reported).

[6] MApp 67/84 Hadad v. Paz [1985] IsrSC 39(1) 667.

[7] CA 2000/97 Lindorn v. Kranit Fund for Compensation of Road Accident Victims [1999] IsrSC 55(1) 12.

[8] CA 8569/06 Director of Land Taxation, Haifa Office v. Polity (2008) (not yet reported).

[9] CA 3622/96 Hacham v. Kupat Holim “Maccabi” [1998] IsrSC 52(2) 638.

[10] FH 40/80 Kenig v. Cohen, [1982] IsrSC 36(3) 701.

[11] LCA 3899/04 State of Israel v. Even Zohar (2006) (unreported).

[12] HCJ 6247/04 Gorodetzki v. Minister of Interior [12],(2010) (not yet reported).

[13] AAA 4614/05  State of Israel v. Oren (2006) (unreported).

[14] CA 1966/07 Ariel v. Egged Members Pension Fund Ltd (2010) (unreported).

[15] HCJ 2316/05 A v. National Labour Court (2005) (unreported).

[16] HCJ 4193/04 Gartner-Goldschmidt v. National Labour Court (2010) (not yet reported).

[17] HCJ 953/87 Poraz v. Mayor of Tel Aviv Shlomo Lahat [1988]  IsrSC42(2) 309.

[18] HCJ 6427/02 Movement for Quality Government v. Knesset (2006) (unreported).

[19] HCJ 4124/00 Yekutieli v. Minister of Religion (2010) (not yet reported).

[20] HCJFH 4191/97 Recanat v. National Labour Court [2000] IsrSC 54(5) 330.

[21] CrimA 4341/99 Vidal v. State of Israel [1999] IsrSC 54(3) 329.

[22] CA 2622/01 Director of Land Appreciation Tax v. Levanon [2002] IsrSC 57(5) 309.

[23] CA 165/82 Kibbutz Hatzor v. Rehovot Assessment Officer [1985] IsrSC 39(2) 70.

[24] CA 1186/93 State of Israel, Minister of Justice v. Israel Discount Bank Ltd [1994] IsrSC 48(5) 353.

[25] HCJ 5304/02 Israel Association of Victims of Work Accidents and Widows of Victims of Work Accidents v. State of Israel, Knesset [2004] IsrSC 59(2) 134.

[26] HCJ 8487/03 IDF Disabled Veterans Organization v. Minister of Defense (2006) (unreported).

[27] HCJ 9863/06 Karan - Society of Combat Veteran Quadriplegics v. State of Israel - Minister of Health (2008) (not yet reported).

[28] HCJ 693/91 Efrat v. Director of the Population Registry [1993] IsrSC 47(1) 749.

[29] HCJ 6304/09 Lahav v. Attorney General (2010) (not yet reported).

[30] CA 233/98 Katz v. Keren Makefet [2000] IsrSC 54(5) 493.

 

Labour Court cases cited:

[31] NLC 54/85-0 Ornan v. National Insurance Institute [1994] ILC 27 400.

[32] NIIApp1407/04 NII v. Friman (2006) (not yet reported).

[33] NIIApp 731/07 Kirshner v. NII (2009) (not yet reported).

[34] NIIApp 1212/04 Apter v. NII  [2005] ILC 40 461.

[35] NLC 30/19-0 NII v. Mano [1970] ILC 2 (1) 72.

[36] NLC 52/69-0 Leon v. NII [1992] ILC 24(1) 458.

[37] NLC 53/6-7 Batar v. Central Pension Fund of Histradrut Workers, Ltd [1994] ILC 27(1) 135.

[38] NLC 57/6-2 Central Pension Fund of Histradrut Workers, Ltd v. Kochavi (1997) (unreported).

[39] NIIApp 1169/01 Avital v. NII (2004) (unreported).

[40] NIIApp 779/06 NII v. Wolkowitz (2008) (not yet reported).

[41] NLC 56/255-0 Atar v. NII [1997] ILC 32 385.

 

For the petitioner in HCJ 5492/07 — T. Shilo.

For the petitioner in HCJ 7677/07 — N. Ashar; N. Weinberg-Eyal.

For the petitioners in HCJ 4820/08 — Y. Sirota; O Turner-Sternberg.

For respondent 2 — O. Rosen-Amir; T. Kazari.

 

 

JUDGMENT

Justice E. Hayut

Is a widow, who has not officially remarried but who is living as a common-law wife, to be treated as a widow who has remarried and is therefore no longer entitled to a survivors or a dependents allowance? This is the main question we face in the petitions that have been joined here for the purpose of deliberation.

The petitioners

1.            The petitioner in HCJ 5492/07, Ms. Smadar Boaron (hereinafter: “Boaron”), was widowed on 27 October 1996 and began receiving a dependents allowance from respondent 2 (hereinafter: “the NII” or “the Institute”). In 1998, Boaron began to live with her current partner, Mr. Tzachi Fink (hereinafter: “Fink”), first in a rented apartment and later in an apartment that the two purchased together in Rishon LeZion. Boaron and Fink never married (Boaron has stated that she did not feel confident regarding a marriage to Fink because he is five years younger than she is), but approximately eight years ago, she attached the name Fink to her family name. Two children were born to the couple — a son on 14 July 1999, and a daughter on 21 August 2003. On 16 May 2004, the NII informed Boaron that in light of information it received regarding her case, it considered her to be a “married woman” as of 14 July 1999 (the date on which the couple’s son was born), that her entitlement to a dependents allowance had therefore expired and that she was instead entitled to a one-time grant. After delivering this notice, the NII stopped paying Boaron a dependents allowance, and it deducted, from the one-time grant it paid to her, the amount of the allowances paid to her since the day as of which, as stated, the NII considered her to be a married woman.

2.            The petitioner in HCJ 7677/07, Ms. Noah Kariv (hereinafter: “Kariv”), was widowed on 15 July 1998 and began receiving a survivors allowance from the NII. Kariv lives with her life partner, Mr. Eliezer Lavie (hereinafter: “Lavie”), in his home on Kibbutz Ein Hashofet (hereinafter: “the Kibbutz”). On 1 August 2002, in order to arrange the mutual rights and obligations resulting from Kariv’s residence on the Kibbutz, the couple signed an agreement with the Kibbutz, according to which all of Kariv’s financial affairs would be conducted through Lavie’s personal budget, and he would be responsible to the Kibbutz for all her obligations. In a letter dated 24 February 2005, the NII informed Kariv that her survivors allowance had been revoked retroactively, from 1 August 2002, the date on which the said agreement with the Kibbutz was signed. The letter also informed her that she was entitled to a one-time grant instead of the allowance.

3.            Petitioner 1 in HCJ 4820/08, Ms. Malka Steir (hereinafter: “Steir”), was widowed on 8 March 1981 and began receiving a dependents allowance from the NII. Steir’s husband was killed in a work accident when serving as first mate on the ship Masada, which sank, and their son was born after his death (on 9 November 1981). At some point, Steir began to live with Mr. Eli Tasman, and their daughter was born on 10 April 1989. In March 2004, the NII informed Steir that it would no longer pay her a dependents allowance because it considered her to be a “married woman” as of 18 September 1994 (the date on which the National Labour Court rendered a decision in NLC 54/85-0 Ornan v. National Insurance Institute [31], to which I will refer below).

4.            Petitioner 2 in HCJ 4820/08, Ms. Shulamit Gabay Galoni (hereinafter: “Gabay Galoni”), was widowed in February of 1980 and began receiving a dependents allowance from the NII for herself and for her two daughters. After her daughters grew up, Gabay Galoni continued to receive a dependents allowance for herself only. Gabay Galoni has been living with Mr. Meir Galoni since 1991 and two children have been born to them — a son on 10 September 1991 and a daughter on 1 February 1993. The couple has no agreement between them. In May of 2003, the NII stopped paying the dependents allowance to Gabay Galoni, and a month later they informed her that the payment had been discontinued because the NII considered her to be a “married woman” as of 18 September 1994 (the date on which, as stated, the said decision was rendered in Ornan v. National Insurance Institute [31]).

5.            Petitioner 3 in HCJ 4280/08, Ms. Cheli Juliet (hereinafter: “Juliet”), was widowed in 1991 and began receiving a survivors allowance from the NII. Juliet has lived with Mr. Yigal Erez (hereinafter: “Erez”) since 1998. On 18 October 2004, the NII informed Juliet that her entitlement to a survivors allowance had ended as of 1 February 1998, the date on which she became Erez’ common-law wife. The NII also informed Juliet that because the payment of the allowance had been discontinued, she owed a debt in the amount of NIS 54,231; however, on 28 June 2005 it notified her that this debt had been cancelled. In any event, the NII discontinued its payment of a survivors allowance to Juliet as of 1 March 2004.

In light of the NII’s decision to discontinue its payments of survivors allowances and dependents allowances to these petitioners, they filed claims in the regional labour courts that focused on the question of whether a widow who has not remarried but who lives as a common-law wife is entitled to continue receiving a survivors allowance or a dependents allowance from the NII.

The judgments in the regional labour courts

6.            On 10 October 2005 the Nazareth Regional Labour Court allowed Kariv’s claim, and held that ss. 255 and 262 of the National Insurance Law prescribe the circumstances under which a remarried widow’s entitlement to a dependents allowance ends and those under which a remarried widow’s entitlement is reinstated. The court also held that the legislature had chosen to use “phrases that refer only to the world of marriage, in its original and narrow meaning.” The Nazareth Regional Labour Court also held that the denial of a spouse’s rights was not possible without an express statutory provision and that —

‘… the application of the provisions of s. 255 of the [National Insurance] Law to a “common-law wife/husband” requires additional changes in the section, apart from changing the word “married woman” wherever it appears to “common-law wife”; therefore, and in view of the case-law rule regarding a common-law wife/husband, it cannot be that this obstacle can simply be removed in some way other than a legislative change.’

On 20 May 2007, the Haifa Regional Labour Court joined in this holding and ruled in favor of Juliet. The court held that since the legislature had used clear language, according to which only a remarried widow would lose her entitlement to an allowance —

‘We cannot accept the argument that a widow who has begun a relationship with a new partner without formally marrying him is no longer entitled to a survivors allowance. Since the legislature determined that entitlement to an allowance lapses only upon the widow’s remarriage, only the act of marriage can cancel her right to an allowance, and no other act — including her becoming the common-law wife of another man — can do so.’

The court referred in its judgment to the decision of Vice President Elisheva Barak Ososkin in NIIApp  1407/04 National Insurance Institute  v. Friman [32], and held that “when there is no commitment by way of marriage, a person who has a common-law husband should not lose entitlement to a survivors allowance, because the institution of common-law marriage is not a stable one.”

7.            Regarding s. 135 of the National Insurance Law, the Tel Aviv-Jaffa Regional Labour Court granted Boaron’s claim against the NII, and held that according to the National Insurance Law [Consolidated Version] 5755-1995 (hereinafter: “the National Insurance Law”), entitlement to a dependents allowance expires only upon a widow’s remarriage and that “only the act of marriage will cancel [the widow’s] entitlement to the allowance, and no other act will do this, including her becoming another person’s ‘common-law wife’”. The Regional Labour Court held further that in light of the statutory language, s. 135 of the National Insurance Law cannot be applied to a widow who has become the common-law wife of another man, and noted that the section deals with the “specific dates on which a widow’s entitlement to a dependents allowance lapses or is renewed, and all those dates refer to the date of the marriage”; furthermore,  “regarding a person who is a common-law wife, it is clear that the dates of the beginning of the relationship, as well as its end, are not formal and clear, and therefore they cannot fall within the framework of the said section.” The Regional Labour Court rejected the NII’s claims that the National Labour Court’s holding in Ornan v. National Insurance Institute [31] supports the said interpretation of s. 135 of the National Insurance Law, and held that in the case before it, “the terms that are repeated, and under which the expiration of entitlement to an allowance, and the entitlement to a grant, are tied to specific dates, which are connected to the marriage process — all these lead me to the conclusion that the legislature’s intention regarding this section, given that it used the term “married”, was to refer to official marriage, and not to the institution of “common-law spouses”. In the end, the Regional Labour Court held that the same result will be reached upon a comparison to the Families of Soldiers Killed in Action Law (Pensions and Rehabilitation), 5710-1950 (hereinafter: the “Families of Soldiers Killed in Action Law”).

On 7 February 2006, the Haifa Regional Labour Court granted Gabay Galoni’s claim, referring, inter alia, to the judgment rendered in Boaron’s case. On 10 May 2006, the Tel Aviv-Jaffa Regional Labour Court also adopted this position in granting Steir’s claim against the NII.

The NII appealed all these decisions to the National Labour Court.

The judgments in the National Labour Court

8.            On 28 March 2007, the National Labour Court (President S. Adler, Judge Y. Plitman and S. Tzur, and public representatives Mr. A. Ben Gera and Y. Ben Yehuda) allowed the appeal brought by the NII against the decisions of the Regional Labour Courts in the matters of Boaron and Kariv, and held that the two should be viewed as remarried widows and that the provisions of ss. 135 and 255 of the National Insurance Law should be applied to each of them respectively (hereinafter: the “Boaron case”). The National Labour Court noted that under s. 1 of the National Insurance Law, the term “his wife” is defined as “including his common-law wife who lives with him,” and held that the Law equates the common-law wife to a married woman “and in any event it equates a widow with a common-law widow [sic].” The National Labour Court referred to Judge Plitman’s decision in NII v. Friman [32], in which he held as follows:

‘The question that arises is whether it may be concluded from the use of the expression, “a widow who has remarried” that the intention was to exclude a widow who conducts a full family life with a partner but has not been officially married . . .

[This question] should be answered in the negative for three reasons:

First, because of the reason underlying the objective of the law. The dependents allowance is an allowance which replaces the income brought by the spouse into the household — because the widow runs the household by herself after her husband’s death. Since the widow has now returned to sharing a household and family life with a life partner, she is again receiving support for the household finances, and therefore, in light of the purpose of the payment of the allowance as stated, she is no longer entitled to receive a dependents allowance.

This objective calls for a legal rule that does not distinguish between the law as it is applied to a widow who has officially remarried, and a widow who is a common-law wife. If we were to interpret the statutory language differently, there would be unjustified discrimination against the officially remarried widow whose financial support is discontinued, as opposed to the widow who has established a new family unit without anchoring it through participation in a marriage ceremony, whose allowance does not expire.

Secondly — the non-expiration of entitlement to a dependents allowance for a widow who has established a new home with a common-law husband would create an absurd situation in which, on the one hand, the legislature does not recognize the institution of common-law spouses and a widow therefore does not lose her entitlement to a dependents allowance even if she has reestablished a home with a common-law husband, and on the other hand, it does recognize the concept of a common-law spouse and grants a dependents allowance to a woman whose life partner, the common-law husband, passes away . . .

Thirdly — the absurdity arising from the non-expiration of the entitlement to a dependents allowance for a widow who has established a new home with a common-law husband is exacerbated in the case in which her common-law husband dies as a result of a work accident. In such a case, according to my colleague the Vice President, the widow would enjoy, in theory, a simultaneous double entitlement to two dependents allowances: one due to the death of her [non-common-law] husband and another due to the death of her common-law husband.

The legislature’s objective in establishing entitlement to a dependents allowance for a common-law wife whose life partner died is the same objective as we face here — a perception of the status of the common-law wife as being equal to that of a married woman, at least for the purpose of entitlement to a dependents allowance through which a widow is paid an allowance after the death of her life partner’ (ibid., at paras. 9-12).

The National Labour Court further held that a widow who is a common-law wife should also be viewed as a remarried widow with regard to the conversion of a survivors allowance to a survivors grant, noting that in the same way that a common-law wife is viewed as a married woman, a widow who has become a common-law wife should be considered as having married. The National Labour Court emphasized that this was not only a matter of denial of entitlement to an allowance; it also involved the creation of an equivalence in relation to entitlement to an allowance while providing grants to a remarried widow, and it therefore rejected the argument that there was a violation of the Basic Law: Human Dignity and Liberty. The National Labour Court also held that the date on which a common-law wife was deemed to have married is not determined arbitrarily, and that her entitlement to a grant (and the suspension of her allowance) begins “on the day on which it can be determined that she meets the definition in s. 1 of the National Insurance Law — ‘his common-law wife who lives with him’ — on the basis of an established factual foundation.” For all of the above-mentioned reasons, the National Labour Court held that Boaron and Kariv were to be treated as remarried widows. As the court wrote:

‘What reason is there for distinguishing between these two women whose cases are before us, who have lived with their partners for several years, and who are raising children with them, conducting a joint household, a new family unit, and following a mutual declaration of their relationship in the form of a financial agreement — and those women who have anchored their relationships with their partners through a religious ceremony? Any distinction that is made between the two cases is basically discriminatory and misses the legislative intent to anchor the status of the common-law wife in the definitional section of the National Insurance Law by defining the term “his wife” as “including his common-law wife who lives with him,” thus viewing the status of the common-law wife as being equivalent to that of a married woman’ (para. 14).

Finally, the National Labour Court held that the fact that a couple did not have joint ownership of any assets would not change its ruling, and that the date of expiration of the entitlement to an allowance should be established in each case on the basis of the particular factual circumstances.

9.            On 19 March 2008, the National Labour Court (President S. Adler, Judges J. Plitman and V. Virt-Livne and public representatives S. Habshush and J. Deutsch) also allowed the NII’s appeals of the judgments rendered by the regional labour courts in the suits brought by Gabay Galoni, Juliet and Steir, and held that they should be viewed as remarried widows (hereinafter: the “Gabay Galoni case”). The court repeated its holding that “a narrow interpretation of the term ‘remarried’ whereby it applies only to a widow who has undergone a marriage ceremony and not to a widow who has become a common-law wife leads to an unjustified favoring of the common-law wife over a woman who has been married in a formal ceremony, when the purpose of the law is to create an equivalence between the two.” The National Labour Court further held that the relevant provisions of the National Insurance Law should be interpreted in accordance with the other provisions of that Law, and not in accordance with the interpretation of the Families of Soldiers Killed in Action Law.

The petitions before us relate to these judgments, and following a hearing held in this Court on 3 November 2008, we issued an order nisi on 4 November 2008 ordering the NII to explain why the National Labour Court’s holding, that the meaning of the term “a widow who has remarried” is not limited to widows who have actually remarried but also applies to widows who are living as common-law wives, should not be reversed.

The parties’ arguments

10.          The petitioners argue that this Court must intervene in the National Labour Court’s judgments in the Boaron and Gabay Galoni cases, in view of a substantive legal error made in reaching them. Specifically, the petitioners argue that the National Labour Court’s judgments are inconsistent with the express language of ss. 135, 255(b), (d) and 262 of the National Insurance Law, which relate to a widow who has “remarried”, and that the language does not support an interpretation according to which these provisions relate to widows who are living as common-law wives — women who, by definition, have not remarried but are instead living with a partner. The petitioners argue in this context that the objective that the National Labour Court attributed to ss. 135, 255(b), (d) and 262 of the National Insurance Law — the creation of an equivalence not only in terms of the rights enjoyed by married couples as compared to the rights of couples living together, but also in terms of the obligations that both types of couple bear — deviates from the various possible linguistic interpretations of the section. They emphasize that the provisions establish specific dates on which the widow’s right to a dependents or survivors allowance either expires or is renewed. The petitioners note that the National Insurance Law refers to the concept of common-law marriage, and from this they infer that the legislature chose to apply ss. 135, 255(b), (d) and 262 to widows who have been formally remarried. The petitioners are of the opinion that the National Labour Court’s interpretation of the terms “married” and “date of marriage” will have “sweeping ramifications — without there having been a systemic, comprehensive, in-depth and methodical examination” of the other pieces of legislation dealing with marriage, and that such an examination can and should be carried out by the legislature alone.

As to the purpose of the National Insurance Law, the petitioners argue that it was intended to ensure the social security of Israel’s citizens, and that the level of social security enjoyed by common-law wives is less than that of married women due to the absence of a substantive financial anchor and to the unwillingness of the parties to make a commitment to each other through marriage. On this matter, the petitioners further argue that the ties between individuals who live as common-law spouses are characterized by varying levels of stability, and that clear criteria are therefore required in order to determine when the allowance given to a widow who has become another man’s common-law wife will be discontinued. The petitioners also argue that while the criteria for determining who falls within the definition of a common-law wife for the purpose of granting rights should be lenient, the criteria for making the same determination for the purpose of denying rights should be strict.

The petitioners argue that the National Labour Court has cancelled a right that is granted to a widow by primary legislation, and that in light of the complexity of the subject and its public importance, such a cancellation of rights should be left in the hands of the legislature. They further argue that the National Labour Court’s interpretation of the term “a widow who has remarried” violates the principle of equality with regard to the treatment of widows under the Families of Soldiers Killed in Action Law. In this context, they argue for the rejection of the NII’s position that a justifiable distinction may be made between the two groups of widows. The petitioners argue that the circumstances of a husband’s death are irrelevant, and that the purpose of both laws is to ensure that a widow who has been left without an additional provider can support herself with dignity. The petitioners also argue that the denial of their rights to an allowance due to their having become common-law wives violates their basic property rights; they argue that a statute which deprives citizens of their rights, or which reduces such rights, must be construed literally.

The petitioners further argue that the application of the provisions of ss. 135, 255(b), (d) and 262 of the National Insurance Law to widows who are living as common-law wives involves a degree of arbitrariness in terms of the determination of the date as of which the widow loses her entitlement to an allowance. Finally, the petitioners argue that the widowers have relied on their monthly allowances from the NII for their support and that their partners do not provide them with financial assistance, and do not support them — nor are they obligated to do so.

11.          The NII argues that the National Labour Court was correct in holding that the term a “widow who has remarried” also includes widows who are living as common-law wives, and that the position that the term “married” relates only to women who have had an actual wedding and not to common-law wives was already been rejected in Ornan v. NII [31]. The NII further argues, in this context, that because the term “wife” is defined in s. 1 of the National Insurance Law as including “his common-law wife who lives with him,” the term wife “who has married” applies as well to a woman who has connected her life to a partner as a common-law wife, even if she has not married her partner. According to the NII, a woman who is officially married has no advantage over the woman who is living as a common-law wife, and it is not reasonable that a widow who is the common-law wife of another man should have an advantage over a person who has officially married another person. Regarding this matter, the NII stresses that both a widow who has officially remarried and a widow who is a common-law wife would be entitled to an allowance by virtue of the second “spouse”, if that “spouse” should also pass away.

The NII also argues that the objective of the National Insurance Law is to assist a family unit when it has lost one of the heads of the household who had contributed to its economic maintenance. In accordance with this objective, when the surviving spouse establishes a new relationship, the need for this continued public support becomes irrelevant. The NII therefore believes that the language of the National Insurance Law, its objective, and its structure, as well as the quest for legislative harmony, do not justify any distinction between a widow who has remarried and a widow who is living as a common-law wife. On the contrary: according to the NII, allowing the appeal would mean unfair discrimination between the treatment of two groups of widows when there is no relevant difference between them with regard to entitlement to an allowance. The NII argues for the rejection of the petitioners’ argument that the National Labour Court’s interpretation establishes a primary legislative arrangement and an ultra vires act; it stresses that a court does have the authority to interpret acts of legislation — noting that this Court has in the past recognized the rights of common-law wives who had not been expressly included in relevant legislation. The NII also argues that identical terms appearing in different statutes are to be interpreted in accordance with each statute’s objective, and that the petitioners’ argument — that the National Labour Court’s interpretation will have sweeping consequences, even though there has not been any in-depth or methodical examination of the interpretation’s effect on other pieces of legislation dealing with marriage — should not be accepted.

Regarding the dates prescribed in the provisions of ss. 135, 255(b), (d) and 262 of the National Insurance Law, the NII argues that even if it is difficult to identify the “correct” date, this does not change the legal interpretation regarding the substantive right, and that insofar as implementation of the provisions is the issue, such implementation is a matter for the competent authorities, to be determined on the basis of appropriate proof, and these determinations will be subject to judicial review by the Regional Labour Court.

The NII argues that the proper interpretation of the term a “widow who has remarried” should not be inferred from the rules that apply to widows under the Families of Soldiers Killed in Action Law, due to the different frameworks and to the relevant difference between these two groups of widows. The NII further argues that the petitioners could also seek an amendment of the law (as was done in the case of the Families of Soldiers Killed in Action Law). The NII thus argues that there is no violation of the principle of equality here, and it further argues that the constitutional right to property does not apply to pension rights under the National Insurance Law. Finally, the NII contends that the petitioners’ argument concerning their reliance on their allowances should not be accepted, and that in any event this reliance neither adds nor detracts from the need to decide on the very existence of the right to an allowance. In this context, the NII also argues that neither the survivors allowance nor the dependents allowance is intended to secure basic living conditions: that objective is achieved through the income support allowance.

Deliberation

12.          This Court, sitting as the High Court of Justice, acts with considerable restraint regarding any intervention in the decisions of the National Labour Court (see HCJ 6522/06 Kochavi v. Jerusalem Labour Court [1], at para. 17; HCJ 8929/08 Ben Nun v. National Labour Court [2], at para. 18) and it will intervene in that court’s judgment only in those cases in which two conditions have been met, cumulatively: first, that the judgment is tainted by a substantive legal error; and second, that justice requires its correction. In examining the existence of a “substantive legal error”, this Court will consider whether, inter alia, the subject under discussion is of public importance and to what extent it is a general and widespread issue (see HCJ 525/84 Hatib v. National Labour Court [3], at pp. 693-694; HCJ 840/03 Israel Professional Firefighters Union — Firefighters Committee v. National Labour Court [4], at pp. 814-815; HCJ 5666/03 Kav LaOved Organization v. National Labour Court [5], at para. 28). There is no dispute that the subject before us is an important one. Nevertheless, I will already state that in my view, the National Labour Court’s decisions in the present matter are not tainted by any substantive legal error that would justify our intervention.

13. Section 135 of the National Insurance Law, relating to dependents allowances, and ss. 255(b), (d) and 262 of that Law, relating to survivors allowances, stands at the heart of the discussion and it is therefore appropriate to cite them in full.

Section 135 of the National Insurance Law refers to a widow who receives a dependents allowance pursuant to Chapter E, which deals with work accident victim insurance. It provides as follows:

135. A widow who has remarried

(a)          If a widow remarries, her right to an allowance expires and the Institute will pay her a grant in two installments as follows:

(1) After the date of her remarriage — an amount equal to the dependents allowance, which is calculated on the basis of the amount of the allowance as stated in s. 132(1) (hereinafter: “the allowance amount”) that was paid for the month in which she remarried, multiplied by eighteen;

(2) At the end of two years from the date of her remarriage — an amount equal to the allowance amount as it would have been paid to her, had she not remarried, for the last month of the said two years, multiplied by eighteen;

However, if she is no longer married ten years after the date on which she remarried, or if, within this period, divorce proceedings between her and her spouse have been initiated in a religious or a civil court, she will again be entitled to an allowance beginning on the date she ceased to be married, as stated, and a grant or a first installment thereof, which was paid to her pursuant to this sub-section, will be credited against the allowance, according to the provisions of paras. (1) – (4) of s. 262(a).

(b) If a widow’s husband from her new marriage passes away and she receives a dependents allowance or a survivors allowance because of him, she will receive the second installment of the grant, even if less than two years have passed from the date of her remarriage; the grant will be calculated on the basis of the allowance amount that would have been paid to her for the month in which her husband passed away as stated, had she not remarried.

(c) Notwithstanding the provisions of sub-section (a), the Minister may prescribe certain conditions and situations in which the right of a widow who has remarried to receive an allowance will not expire.

Section 130(b)(1) of the National Insurance Law provides that the provisions that apply to a widow regarding these matters will also apply to a widower.

Sections 255(b), (d) and 262 of the National Insurance Law refer to a widow who receives a survivor’s allowance pursuant to Chapter K, dealing with Old Age Insurance and Survivors Insurance, and they provide as follows:

255. Payment of a grant

. . .

(b)          If a widow who is entitled to a survivors allowance remarries, her right to the survivors allowance will expire and the Institute will pay her a grant in two installments as follows:

(1) After the date of her remarriage — an amount equal to the survivors allowance which is calculated on the basis of the amount of the allowance as described in s. 252(a)(1) (hereinafter: “the allowance amount”) which had been paid for the month in which she had remarried, multiplied by eighteen;

(2) At the end of two years from the date of her remarriage — an amount equal to the allowance amount as it would have been paid to her, had she not remarried, for the last month of the said two years, multiplied by eighteen;

(c) If a widow’s husband from her new marriage passes away and she receives a survivors allowance or a dependents allowance because of him, she will receive the second installment of the grant, even if less than two years have passed from the date of her remarriage; the grant will be calculated on the basis of the allowance amount that would have been paid to her for the month in which her husband passed away as stated.

(d) A widower, for the purpose of this section, will be treated in the same manner as a widow.

262. A widow or widow who has remarried

(b)          A widow who is entitled to a grant pursuant to this Part due to her marriage will lose her entitlement to an allowance; however, if she is no longer married ten years after the date on which she remarried, or if, within this period, divorce proceedings between her and her spouse have been initiated in a religious or a civil court, she will again be entitled to an allowance beginning on the date she ceased to be married, as stated, and a grant or a first installment thereof, which was paid to her pursuant to this sub-section will be credited against the allowance, subject to the following provisions:

(1)          If the widow’s entitlement to an allowance is renewed within 18 months from the date on which her entitlement to an allowance expired pursuant to her marriage, the amount to be credited against her allowance will be one eighteenth of the first installment, multiplied by the number of months for which she is entitled to an allowance during the said eighteen months;

(2)          If the widow’s entitlement to an allowance is renewed later than 18 months from the date on which her entitlement to an allowance expired pursuant to her marriage, the first installment of the grant will not be credited against her allowance;

(3)          If the widow’s entitlement to an allowance is renewed later than two years and earlier than three years after the date on which her entitlement to an allowance expired pursuant to her marriage, the amount to be credited against her allowance will be one eighteenth of the second installment, multiplied by the number of months for which she is entitled to an allowance during the last eighteen months of the said three years;

(4)          If the widow’s entitlement to an allowance is renewed later than three years after the date on which her entitlement to an allowance expired pursuant to her marriage, the second installment of the grant will not be credited against her allowance;

(b)          Notwithstanding the provisions of sub-section (a), the Minister may specify certain situations and conditions in which the right of a widow who has remarried to receive an allowance will not expire.

(c)           The provisions of this section will apply to a widower as well, mutatis mutandis.

14.          The question we face is, as stated, whether the provisions of ss. 135, 255(b) – (d) and 262 of the National Insurance Law are also properly applied to a widow or widower who subsequent to being widowed has become the common-law wife or husband of another partner.

The starting point of any process of statutory interpretation is the statutory language, and that language will set the limits of the interpretation, in the sense that the words of the statute may not be given a meaning that they cannot support (see MApp 67/84 Hadad v. Paz [6], at p. 670; CA 2000/97 Lindorn v. Kranit Fund for Compensation of Road Accident Victims [7], at p. 25; CA 8569/06 Director of Land Taxation, Haifa Office v. Polity [8], at para. 26). This Court has therefore held on several occasions that “the language component is not a sufficient condition for a particular interpretation, but it is a necessary condition” (CA 3622/96 Hacham v. Kupat Holim “Maccabi” [9], at pp. 646-647) and that “the judge may not  . . . realize an objective unless it has some basis — even a weak one — in the statutory language” (FH 40/80 Koenig v. Cohen [10], at p. 715; see also LCA 3899/04 State of Israel v. Even Zohar [11], at para. 14; Director of Land Taxation v. Polity [8], at para. 26; A. Barak, Legal Interpretation (vol. 2, ‘Statutory Interpretation,’ 1993), at pp. 81-84, 97-100).

15.          Can the language in ss. 135, 255(b), (d) and 262 of the National Insurance Law support a legal interpretation that also applies these provisions to a widow or widower who is living as a common-law spouse?

In order to answer this question, we must examine, inter alia, the definitional section of the statute, which is designed to establish the scope of the linguistic significance of the terms that are the subject of each definition (see Director of Land Taxation v. Polity [8], at paras. 29-30; Barak, Legal Interpretation, supra, at pp. 137-138). The definitional section of the National Insurance Law (s. 1) provides as follows: “‘his wife’ — including his common-law wife who lives with him.” The term “including” generally expands the scope of the literal meaning that may be attributed to the defined term (see Barak, Legal Interpretation, supra, at p. 138) and in Ornan v. NII [31], the National Labour Court, in reliance, inter alia, on the definitional section, held  that the term “a married woman” also includes a common-law wife. In that case, the National Labour Court rejected the NII’s argument (the opposite argument to the argument it makes here) that the term “married woman” means only an officially married woman, and held that the term “his wife” in the definitional section “means a ‘married woman’, because were this not the case, why would it have been necessary for the legislature to add at the end, ‘including his common-law wife’?” (Ibid., [31], at p. 407.) The National Labour Court also noted in that case that “there is nothing in that section [which was the subject of the dispute there], either in its substance or in its context, that contradicts the definition of the term ‘his wife’ in s. 1 of the statute, and that the rule applying to a ‘married woman’ [in that section] is the same as that applying to ‘his wife’ in s. 1 of the statute” (ibid., [31], at p. 408). This holding was reached in light of the provision in s. 2 of the Interpretation Law, 5741-1981, under which “a term that is defined in legislation will have the meaning assigned to it by the definition . .  . unless otherwise stated with regard to the particular matter, and provided that nothing in the subject-matter or context is inconsistent with the definition.”

16.          We accept the position that the term “married woman” can, in linguistic terms, support a legal meaning that includes “a woman living as a common-law wife.” But the petitioners claim that the language in the sections under discussion in this case — unlike the section which was the subject of Ornan v. NII [31] — indicates only a narrow range for possible interpretation, one which does not include a widow who is a common-law wife. This is because the provisions of ss. 135, 255(b), (d) and 262 of the National Insurance Law relate to defined dates that are, in their view, relevant only to widows who have remarried officially, particularly the date on which the widow remarried and the date as of which she was no longer remarried.

I cannot accept the petitioners’ argument in this matter.

Indeed, the assumption is that “the legislature is using regular language and the language cannot be interpreted other than according to its plain meaning” (HCJ 6247/04 Gorodetzki v. Minister of Interior [12]); occasionally, however, and to the extent justified by the objective that the statute is intended to achieve, the interpreter may attribute  a unique and unusual meaning to particular words, if that meaning falls within the linguistic range delineated by the statutory language (see Barak, Legal Interpretation, supra, at pp. 117-118). In this case, and as I will describe below, it appears to me that from a linguistic perspective, the dates specified in ss. 135, 255(b), (d) and 262 of the National Insurance Law (the date on which a widow remarried or the date as of which she was no longer married) can be interpreted in a manner that applies them also to the dates on which a widow began or ceased to be a common-law wife, whichever is relevant. Indeed, while it is a simple matter to identify the establishment of a marital connection by virtue of a formal and constitutive act, the identification of a date on which a couple began to live together as common-law spouses or the date on which a couple ceased to live as such is less clear-cut, and requires a factual examination of the nature and circumstances of the relationship. In my view, however, this fact does not rule out an interpretation that applies the provisions to which the petitions before us relate to common-law spouses as well, in view of the standard criteria for determining these matters, according to which a couple will be recognized as common-law spouses if they have a conjugal relationship and a shared household (see AAA 4614/05 State of Israel v. Oren [13]; CA 1966/07 Ariel v. Egged Members Pension Fund Ltd. [14], at para. 25). Similar tests are applied by the NII with regard to the granting of allowances (see, for example, NIIApp 731/07 Kirshner v. NII [33]), and there is nothing to prevent their application where required with respect to the expiration of the right to an allowance. In any event, a party who believes that he or she has been harmed by a decision of the NII regarding this matter is free to initiate the appeal procedures prescribed by law (see and compare: HCJ 2316/05 A v. National Labour Court [15]; NIIApp1212/04 Apter v. NII [34], at p. 469).

Since my conclusion is that the language of the relevant statutory sections does not negate any of the interpretations that the parties wish to give to the provisions of ss. 135, 255(b), (d) and 262 of the National Insurance Law, we must now proceed to determine what is the objective that underlies the legislation that we are required to interpret.

17.          The objective of the National Insurance Law with respect to survivors allowances and work accident victim insurance is “to protect against economic shortages that are liable to follow the curtailing of income as a result of a provider’s work accident, old age or death. Its purpose is not to grant rights to a person by reason of his being the relative of another person, but rather, to prevent a defined group of persons from suffering from financial shortages because they are no longer receiving their own income or the income of their provider” (NLC 30/19-0 NII v. Mano [35], at p. 77; see also: NLC 52/69-0        Leon v. NII [36], at p. 464; NLC 53/6-7 Batar v. Central Pension Fund of Histradrut Workers, Ltd [37], at p. 140; NLC 57/6-2 Central Pension Fund of Histradrut Workers, Ltd v. Kochavi [38], at para. 6; see and compare HCJ 4193/04 Gartner-Goldschmidt v. National Labour Court [16]).Thus, the survivors and dependents allowances that are paid pursuant to the National Insurance Law are intended to compensate for the loss of financial support that a person had been receiving from his or her partner as a dependent of that partner in connection with such support, and to preserve a roughly similar standard of living to that which the survivor enjoyed prior to the provider’s death (see Gorodetzki v. Minister of Interior [12], at para. 23; NIIApp 1169/01 Avital v. NII [39]; Kirshner v. NII [33], at para. 8(e)).

In light of these objectives, the right of a widow or widower to an allowance expires upon remarriage, according to the provisions of ss. 135, 255(b), (d) and 262 of the National Insurance Law. This is due to the assumption that the new familial unit that has been established will be sufficient to replace the loss of income that ensued from the death of the previous partner (see NIIApp 779/06 NII v. Wolkowitz [40], per President S. Adler, at para. 3). At the same time, and in order to enable a widow or widower to adapt to the expiration of the right to an allowance pursuant to the above-mentioned sections, the statute provides that they will be entitled to a grant which is equal to thirty-six months of the allowance. (The two installments of the grant are paid within a period of two years from the date of the remarriage.) The Minister of Labour and Welfare is also authorized, by virtue of ss. 135(c), and 262(d) of the National Insurance Law, to prescribe certain circumstances and conditions under which the right of a remarried widower or widow to an allowance will not expire. The regulations that the Minister enacted pursuant to this authorization (see National Insurance Regulations (Dependents Allowance for Remarried Widows), 5737-1976) provide that a remarried widow’s right to a dependents allowance will not expire if the new husband is unable to support himself or if he is over 60 years old, provided that the new husband’s income does not exceed one twelfth of the amount specified in Item 1 of Table B of the National Insurance Law. Similar regulations have not been enacted with respect to a survivors allowance.

The objective of the provisions that cancel the right to an allowance in the event of an official remarriage, and the above-mentioned rationales which underlie that objective, are also applicable with respect to a widow or widower who has begun to live with a new partner in a common-law marriage. Indeed, a widow or widower who lives as a common-law spouse will benefit from shared income with the new partner and from a shared bearing of expenses — assuming that there is a shared household, which is a condition for the couple being classified as common-law spouses. Under these circumstances, there is no justification for the widow or widower to continue to receive a survivors allowance or a dependents allowance; such allowances are intended to provide protection from the financial shortage that the death of a provider is expected to entail.

18.          Together with the search for the specific objective of the legislation that we wish to interpret, we ought to examine the extent to which the legislation expresses the basic values of the legal system, in light of the accepted principle that these values must find expression in every piece of legislation. One of the basic values of the legal system in Israel, relating directly to the matter under discussion here, is the principle of equality, a value which has been accorded constitutional status (see HCJ 953/87 Poraz v. Mayor of Tel Aviv Shlomo Lahat [17], at pp. 329-332; Lindorn v. Kranit Fund [7], at pp. 29-30; HCJ 6427/02 Movement for Quality Government v. The Knesset [18], (per President Barak, at paras. 36-40); HCJ 4124/00 Yekutieli v. Minister of Religion [19], at para. 35). The significance of this is that when there is no relevant difference between individuals, they are entitled to equal treatment, inter alia in terms of the legal rules that apply to them. A claim of discrimination can therefore arise when a different legal rule is applied to individuals or groups between whom there is no relevant difference (see HCJFH 4191/97 Recanat v. National Labour Court [20], at pp. 343-345). The complexity involved in the implementation of the principle of equality was noted by President Beinisch in Yekutieli v. Minister of Religion [19] as follows:

‘It is not a simple matter to determine whether a particular norm violates the principle of equality. By its very nature, the question calls for a discussion of the characteristics and purposes of the norm, and a determination of the “peer group” relevant to the matter at hand. The peer group is the group of individuals or entities to which the obligation to act in accordance with the principle of equality applies . . . and it is derived, inter alia, from the norm’s purpose and from the scope of its application. Sometimes the legislature determines the peer group as a part of the norm itself, and sometimes the court must define, by means of a number of variables, what the peer group is in each specific case’ (ibid., at para. 36).

Here, the petitioners and the NII do not dispute the fact that there is a difference between the group comprising widows who have remarried by virtue of a wedding ceremony which is recognized by law, and the group comprising widows who are living as common-law wives. The parties’ disagreement relates to the matter of whether, for the purposes of ss. 135, 255(b), (d) and 262 of the National Insurance Law, the difference between these groups is a relevant one. The NII argues that an interpretation of the above-mentioned sections which excludes widowers and widows who are living as common-law spouses from coverage by those sections will create a situation whereby two groups between whom there is no relevant difference are treated differently. This argument, which the National Labour Court accepted, is a strong one, and I also believe that there is no relevant difference between the widowers and widows who have been officially remarried and those who are living as common-law spouses — no difference that justifies the application of a different legal rule to the two groups with regard to the expiration of the right to an allowance. Indeed, the members of both of these groups lost a source of income when their partners passed away, and the members of both groups have established new family units, and in relation to both groups, there is a presumption that the new partners share income and expenses. The petitioners argue in this regard that the relationship between partners who are living in a common-law marriage is less stable than the relationship between partners who were married officially, and that this creates a relevant distinction that justifies different treatment with regard to the expiration of the right to an allowance. This argument cannot be accepted, for even if we presume — in concert with the petitioners — that the relationship between partners who are living in a common-law marriage is indeed less stable than the relationship between partners who are officially married, this does not create a relevant distinction between the two groups with respect to the present matter. This is because the arrangement prescribed in ss. 135, 255(b), (d) and 262 of the National Insurance Law, which cancels the right to an allowance, also foresees the possibility that the new relationship will not last, and ss. 135(b)(2) and 262(a) of the statute therefore include a provision that a widow who remarries will regain her entitlement to an allowance —

‘ . . . if she is no longer married ten years after the date on which she was remarried, or if, within this period, divorce proceedings between her and her spouse have been initiated  . . .’

It is understood, however, that if the provision that cancels the right to an allowance also applies to widows or widowers who are living as common-law spouses, the provision that re-entitles them to an allowance if the new common-law relationship ceases to exist before ten years have elapsed since its inception will also apply to them. Thus, the alleged distinction based on the difference in the level of the stability of the relationship is also insufficient to justify the application of a different legal rule to the petitioners as widows who are now living as common-law wives, on the one hand, and to widows who have been officially remarried, on the other hand.

19. In Ornan v. National Insurance Institute [31], the National Labour Court, in a different context pertaining to the National Insurance Law, noted the implications of a discriminatory rule that involves an improper favoring of common-law wives, stating as follows:

‘We should not attribute to the legislature an intention to grant the common-law wife only benefits, and to spare her the disadvantages. The aim of the Law is to create an equivalence for all purposes — with respect to both the good and the bad — between the common-law wife and the married woman’ (ibid., at p. 408).

I find this approach to be acceptable, and it provides an appropriate response to the contention that the provisions of the National Insurance Law can be extended through interpretation when they grant benefits, but cannot be extended when the extension involves a negation of rights. Indeed, it is hard to imagine that for the purpose of granting a survivors allowance (pursuant to s. 252 of the Law) and a dependents allowance (pursuant to s. 131 of the Law), a common-law wife will be considered a “widow” due to having been the “wife” (under the definition in s. 1 of the Law) of her deceased partner (see: NLC 56/255-0 Atar v. NII [41], at p. 387; Kirshner v. NII [33], at para. 8(a)), but that she will not be considered to be the “wife” of her new partner with whom she is living as a common-law spouse with regard to the expiration of the entitlement to these rights (pursuant to ss. 135, 255(b) and (d) of the Law).

It appears to me that the same question arises regarding both the granting of rights and their expiration, i.e., whether there is a relevant distinction, with respect to either issue, between couples who are officially married and couples who are living together in a common-law marriage (see and compare 4341/99 CrimA Vidal v. State of Israel [21],                 at p. 334; CA 2622/01 Director of Land Appreciation Tax v. Levanon [22], at p. 326).

Professor Shahar Lifshitz’ comments are also pertinent here:

‘When, as the result of the attempt to equate the support given to the institution of common-law marriages and the institution of official marriage, a situation is created that favors the common-law partners, the result is untenable . . . in light of the proclivity to equate the rights of common-law spouses to those of married people, a parallel reform is required that will equate the duties imposed in the two cases . . . ’ (S. Lifshitz, Common-Law Partners From the Perspective of the Civil Theory of Family Law (2005), at pp. 235-236).

The degree to which different treatment of widows and widowers in common-law marriages (as compared to the treatment of widows and widowers who have officially remarried) is liable to create a discriminatory and even absurd situation regarding the expiration of entitlement to survivors allowances or for dependents allowances, was demonstrated in the National Labour Court’s decision, when it noted the following among the reasons for its ruling:

‘The absurdity with respect to the non-expiration of the entitlement to a dependents allowance of a widow who has established a new home with her common-law husband is exacerbated in the case in which her common-law husband dies as a result of a work accident. In such a case, according to my colleague the Vice President (in Friman), the widow will in theory be entitled, simultaneously, to two dependents allowances: one arising from the death of her official husband and one arising from the death of her common-law husband.’

This discriminatory result does indeed reach the level of absurdity and it must be avoided, not only because of the harm done to the principle of equality but also because of the rule that requires us to avoid, to the extent possible, an interpretation of statutory provisions that leads to an absurd result (see and compare, CA 165/82 Kibbutz Hatzor v. Rehovot Tax Assessor [23], at p. 74; CA 1186/93 State of Israel, Minister of Justice v. Israel Discount Bank Ltd [24], at p. 361; Barak, Legal Interpretation, supra, at pp. 280-283).

In light of the above, I believe that with respect to the expiration of entitlement to a survivors or a dependents allowance pursuant to ss. 135, 255(b), (d) or 255(b), (d) and 262 of the National Insurance Law, the widows who are living as common-law wives should be subject to the same rule as widows who have been officially remarried, as the purpose of the legislation justifies this interpretation, and as it is also an interpretation that the statutory language will support.

20.          We must still consider the petitioners’ argument that the adoption of the National Labour Court’s interpretation of the provisions of ss. 135, 255(b), (d) and 262 of the National Insurance Law, i.e., that rights to allowances will expire for widows who are living with their partners as common-law wives, unfairly discriminates against them, as compared to widows who live as common-law wives and who are entitled to pensions pursuant to the Families of Soldiers Killed in Action Law. This argument must also be rejected. First, Amendment 30 of the Families of Soldiers Killed in Action Law changed that Law’s definition of a widow to “a person who was the wife of the decedent at the time of his death, including a woman who prior to the decedent’s death was living with him and who, on the date of his death, was his common-law wife — even if she has married another person” (emphasis added), and s. 12A of that Law, whereby the widow of a decedent who remarried lost her entitlement to a pension pursuant to the Law, was cancelled  (see the Families of Soldiers Killed in Action Law (Amendment 30), 5770-3009, SH 252). In enacting these measures, the legislature demonstrated that with respect to the widows of soldiers who were killed in action, the intention was to continue the payment of a pension even after they remarried, and, in any event, if they were living as the common-law wives of other men. Second, it has been held several times that in enacting a series of laws relating to those who were wounded or who sacrificed their lives for the country, or to their families, the legislature wished to give expression to the moral obligation owed by the state, and that these laws should therefore not be viewed as intended only to provide social security, as the National Insurance Law does. This explains the difference that appears in some contexts between the language in the National Insurance Law and the language in these other laws (see: HCJ 5304/02 Israel Association of Victims of Work Accidents and Widows of Victims of Work Accidents v. State of Israel, Knesset [25], at pp. 141-142; HCJ 8487/03 IDF Disabled Veterans Organization v. Minister of Defense [26], at paras. 21-23; HCJ 9863/06 Karan - Society of Combat Veteran Quadriplegics v. State of Israel - Minister of Health [27], at paras. 11-14).

For all the reasons mentioned above, I propose to my colleagues that the petitions be denied without any order regarding costs.

 

Justice E. E. Levy

I concur.

 

President D. Beinisch

I concur in the decision of my colleague, Justice E. Hayut, and I also agree with her reasoning. Indeed, Israeli legislation and case law have recognized the status of the common-law spouse; this has certainly been the case with respect to social support and rights (see, among others, the Inheritance Law, 5725-1965; Names Law, 5716-1956; Families of Soldiers Killed in Action Law. And see, for example HCJ 693/91 Efrat v. Director of the Population Registry [28]; Lindorn v. Kranit Fund [7]; Director of Land Appreciation Taxation v. Levanon [22]). The professional literature, it is true, contains various views relating to the possibility of applying to common-law couples arrangements that are similar to those applying to married couples. For example, the argument is made that the various arrangements that apply to married couples should not be applied equally to couples living together in common-law relationships, so as not to frustrate the wishes of those who have chosen, knowingly, to refrain from entering into official marriages (see, for example, the arguments made in S. Lifshitz, Common-Law Partners, supra, at pp. 199-216). In any event, this question does not arise in the case before us, since it appears to me that even those who believe that only some of the arrangements that apply to married couples should be applied to common-law couples would agree that the arrangements arising out of social legislation should be applied to common-law couples as well (see, for example, the distinction drawn by Lifshitz between “responsive” rules and “directed” rules, supra, at p. 217).

Although the concept of common-law relationships is not a new one in our system, not all the relevant legislative arrangements have been adjusted to the changes that have occurred in modern times in the structure of the family unit. With respect to certain laws, the legislature has not responded to this issue at all (see, for example, Director of Land Appreciation Taxation v. Levanon [22], per Justice Strassberg-Cohen, at pp. 315-316:  “The laws in relation to which the question arises as to whether or not they grant rights to a common-law wife do not have uniform language. Some of them make express use of the term ‘common-law wife’or a similar term, while defining that term clearly and explicitly. Some of them . . . use the term ‘partner’ without defining it”). In the absence of any express reference by the legislature to the application of a law to common-law partners, there are courts which, in interpreting the relevant legislation, have applied various provisions and arrangements to common-law partners as well. This was the case, for example, in Lindorn v. Kranit Fund [7], in which the court held that for the purpose of paying compensation to dependents pursuant to the Civil Wrongs Ordinance [New Version], 5728-1968, both the linguistic and the legal meanings of the phrase “partner” includes, necessarily, the concept of common-law partners.

Regarding the petition before us, as elucidated in my colleague’s opinion, s. 1 of the National Insurance Law — the definitional section — provides that the term “his wife” will “include his common-law wife who lives with him.” The definitional section applies to the entire statute, and it therefore indicates that the legislature saw the relationship between common-law partners as a framework that is covered by the statute. Furthermore, common-law wives who become widowed are not denied survivors allowances or dependents allowances — the allowances which are the focus of the discussion in this petition — and common-law wives are therefore entitled to such allowances, as are married women who have been widowed. In other words, while the situation of married women and common-law wives are completely identical with regard to entitlement to survivors allowances and dependents allowances if such married women or common-law wives should unfortunately be widowed, the same exact pension would later be cancelled only for those women who have chosen to remarry through an official marriage. This result is especially problematic, as my colleague has noted, in situations in which the widow who becomes a common-law wife is widowed again when her common-law husband passes away. In such a situation, she would be entitled to the original allowance and to another allowance by virtue of the common-law husband. The absence of symmetry between the recognition of an affirmative right and the denial of that right creates, as stated, a distortion which is likely to lead to absurd results.

I therefore agree with the conclusion reached by my colleague, Justice Hayut, that the interpretation of ss. 135, 255 and 262 of the Law necessitates the denial of the allowance to widows who acquire common-law partners, in the same way that the allowance would be denied to widows who have remarried. First, I too believe that the statutory language can support this meaning, especially given the definition of the term “his wife” in the definitional section. As is known, “the main purpose of the definitions is to establish the scope of the (express or implied) meaning of the text of the terms” (Barak, Legal Interpretation, supra, at p. 138). Additionally, the linguistic context of a piece of legislation is interpreted in relation to the statute as a complete unit, which helps determine the legal meaning of a term or section within the statute (ibid., pp. 106-107). Here, the complete unit of the National Insurance Law, in its entirety, indicates that the legislature intended to include common-law partners within the statute’s coverage, and to apply to them all the relevant rights and obligations. Secondly, this conclusion is also supported by a purposive interpretation of the Law, the purpose of which is to provide compensation for the loss of the economic support that a person received from a partner in the past, as long as the person being compensated is not in a new relationship through which such support has been renewed.

I am aware that the practical meaning of this interpretation, in the petition before us, is that the petitioners will lose their entitlement to an allowance; and that when an interpretation leads to a denial of rights, we generally lean towards construing the relevant language narrowly and literally. However, in the case before us, even though according to a purposive interpretation, as my colleague Justice Hayut noted, the widows who have common-law husbands will lose their survivors allowances or dependents allowances, this result is consistent with the purpose of the legislation and promotes the basic right of equality, in a situation in which there is no reason for making a distinction between the two groups. Regarding this matter, I accept that the petitioners have not presented persuasive reasons for recognizing a distinction between them and widows who have remarried. Even if the argument that there is a difference between these groups due to the lack of obligation and stability in the common-law relationships were to be accepted — and I am not persuaded that by itself this is a well-founded argument — it would still be insufficient to justify a different interpretation than that being proposed, since in any event, the provisions of the National Insurance Law foresee the possibility that the relationship between the partners, in either an official or common-law marriage, may come to an end, and the Law provides a solution in the form of a renewal of the allowance. The same applies to the petitioners’ contention with respect to the determination of the date on which the relationship with the common-law partner is to be recognized (and thus, the date on which the allowance is terminated). In actuality, the NII is accustomed to determining such dates for various purposes listed in the National Insurance Law. Therefore, just as it is possible to establish the date on which a relationship begins for the purpose of recognizing rights, it is also possible to determine the date on which the entitlement to an allowance will come to an end.

I also agree with the position that a distinction should be drawn between the right of an IDF widow to receive a survivors allowance, on the one hand, and the rights of other injured parties to whom the legislature wished to provide social security, on the other hand. The distinction, which is anchored in primary legislation, results from the different objectives of the support provided to the different categories of injured parties. This is in no way an expression of a desire to harm injured parties who have experienced general misfortune; the intention is only to recognize the special status of those to whom the state and Israeli society owe a special moral debt. The degree to which a distinction is to be drawn and the expression given to that distinction is a matter to be determined by the legislature.

Needless to say, even though the interpretation of the National Insurance Law does lead to a conclusion that survivors allowances and dependents allowances should be eliminated for widows who have common-law husbands, it may be that the legislature should make express provision  for this in the National Insurance Law, as it has done with respect to other pieces of legislation (see, for example, the amendment to the definition of “spouse” in the Income Support Law, 5741-1980, in which it was established that the term “spouses” will “include a man and women who are a common-law couple and who live together.” The practical significance of the amendment is that common-law partners are not considered to be “singles”, entitled to the allowance paid to singles). It is further noted that we do not, in our decision, take a position regarding the appropriate interpretation with respect to other arrangements established in statutes that are not the subject of this judgment.

This interpretation conforms to the need to recognize the changes that are taking place regarding the family unit model, and displays a willingness to adjust the legal arrangements applying to traditional families to other family structures as well, subject to the changes necessitated by the differences in the relationships among these alternative family structures. Naturally, a just and egalitarian application of these arrangements requires that there be symmetry between rights and obligations, in a manner that fully realizes the purpose of the legislation. Therefore, I too see no grounds, everything considered, for intervening in the decision of the National Labour Court, and in my opinion the petitions should be denied.

 

 

Vice President E. Rivlin

I concur in the decision of my colleague Justice E. Hayut, and in the comments of my colleague President D. Beinisch.

 

 

Justice A. Proccacia

I agree with the decision of my colleague Justice E. Hayut, including with her reasoning and with her conclusions. I also agree with the additional comments made by my colleague, President Beinisch.

Social security in Israel, as reflected in the National Insurance Law, is founded on the concept of solidarity and mutual assistance. The funding for this comes from the payment of mandatory National Insurance contributions, which are collected according to the economic means of those insured, and from government funds; payments from the NII, on the other hand, are intended to provide basic-level assistance to those in need, necessary for life with dignity (see HCJ 6304/09 Lahav v. Attorney General [29], at paras. 42-59). The NII’s resources are, by their nature, limited; the realization of its objectives, in terms of providing assistance for life with dignity for the needy members of society, therefore requires that maximum care be taken so that its resources are allocated only in a manner that serves the true objectives for which they have been designated. The realization of the main objective of the National Insurance therefore requires that a good look be taken at a person’s true needs and at true neediness, and that formats and frameworks that exist only as formalities should be avoided, because they do not necessarily reflect the actual reality. The National Insurance funds are to be directed only at the “have-nots” and not at the “haves”, regardless of the particular name given to the personal status of a particular “have”; and the idea of social security requires that assistance be given to a widow only as long as her actual personal situation has not changed, and only as long as she does not live in a relationship as part of a couple, through which she is able to receive support and security. Once she has returned to a life based on being part of a couple, whether in the framework of an official marriage or in the framework of a relationship known as “common-law marriage”, she is presumed to no longer require the support of the social security system. The allowance to which she was entitled in the past, when she lived by herself and faced the struggle for existence alone, should now be directed towards other social objectives reflecting a real need. The social conception underlying the National Insurance Law strives, therefore, to examine life as it really is, according to a criterion of actuality; it distances itself from formalistic frameworks that do not reflect the true situation. In order to promote the objective of providing social security, the statute, for the most part, avoids the official frameworks of marriage and divorce and examines  the true life of a couple, as it is conducted on a daily basis (compare to the similar purpose of the Public Service Law (Pensions) [Consolidated Version], 5730-1970, and in this context, HCJ 4193/04 Gartner-Goldschmidt v. National Labour Court [31], (per Justice Procaccia, at paras. 20-21)).

The interpretation given by my colleague Justice E. Hayut to the provisions of the National Insurance Law, looking at the reality of human life, as distinguished from an official format that defines personal status, is consistent with the language of the statute, and with its social purpose.

I would further comment that equating the rule applied to a widow who lives with a common-law partner to the rule applied to a widow who remarries, for the purpose of determining entitlement to a survivors allowance or a dependents allowance, may create substantial problems regarding enforcement. What is the test for recognizing the existence of “common-law relationship”; when and how will the competent authority become aware that this type of relationship has come into being; and how will the principle of equality in enforcement be maintained in this area? These questions have not been raised before us, but we can assume that the competent authority is aware of them and is prepared to deal with them.

 

Justice H. Melcer:

I agree with the comprehensive opinion of my colleague Justice E. Hayut, and with the comments of President D. Beinisch. Nevertheless, I wish to add three comments:

(a)          I accept the conclusion that a woman who has not remarried, but who does live with her partner as a common-law wife — is comparable to a widow who has remarried, with respect to the expiration of her entitlement to a survivors allowance or to a dependents allowance which is given to her by virtue of her deceased husband. The linguistic context and a purposive interpretation of the provisions of the National Insurance Law are sufficient to establish this.

Nevertheless, in order to reach the said result, I do not need to rely on the argument that were we to hold otherwise, a widow who became a common-law wife and is now widowed of her common-law husband could be entitled to both the original allowance and to an allowance by virtue of her deceased common-law partner, and that this result borders on the absurd. I do not need such an argument because the concept of a “common-law wife” does occasionally create, by its very nature, problematic situations that may in extreme cases lead to double payments, or to divided payments, or to other complicated solutions. This can happen, for example, if the widow’s common-law partner was married to another person at the time of his death — and I will not elaborate (see ss. 130 and 238 of the National Insurance Law; CA 233/98 Katz v. Keren Makefet [30]; Atar v. NII [41]; and finally, Ariel v. Egged Members Pension Fund Ltd [14]; Lifshitz, Common-Law Partners, supra, at pp. 267-268.)  

(b)          The change in status of a widow who has remarried is usually clear and unequivocal, determined entirely by the validity of the marriage. On the other hand, a change in status that occurs when a widow becomes the common-law wife of the man with whom she lives (as in the definition of s. 1 of the National Insurance Law) is not as unequivocal. It is comprised of two cumulative conditions (see Atar v. NII [41]), and a determination that such a change has taken place will depend on the facts and circumstances (see Ariel v. Egged Members Pension Fund Ltd [14]). It therefore appears to me that prior to terminating the entitlement to an allowance, the NII should grant the person whose said entitlement is to be cancelled a full right to argue against such cancellation, over and above what would in any event be such person’s right to appeal following the decision.

(c)           It would be best if regulations were enacted pursuant to s. 262(b) of the National Insurance Law, which would establish the types of cases and conditions in which the right of a widow who has remarried to receive a survivors allowance would not expire. I have not heard any clear explanation for the fact that no such regulations have been enacted to date, while similar regulations have been enacted pursuant to s. 135(c) of the National Insurance Law regarding the non-expiration of a remarried widow’s right to a dependents allowance in certain situations (see National Insurance Regulations (Dependents allowance for a Remarried Widow), 5737-1976).

 

Justice E. Arbel

I concur in the opinion of my colleague Justice E. Hayut. I agree with her that a widow who becomes a common-law wife should be treated as a widow who has remarried, as that term is properly interpreted in the context of ss. 135, 255(b) and (d) and 262 of the National Insurance Law.

Since such a widow has again established a family life with a life partner and is again living as part of a joint household, her entitlement to continued receipt of a dependents allowance should expire, as the purpose of the payment of the allowance is to secure the dignified support of a widow who has been left without an additional provider (subject to the exceptions listed in the opinion of Justice Hayut, at p. 17). Any different interpretation would create an improper disparity between the treatment of a widow who has officially remarried and the treatment of a widow who has established a family unit with a new partner but without a wedding ceremony. I agree that the legislature’s intent would be subverted if a distinction were to be drawn between the two groups, given that the status of a common-law partner is established in the definitional section of the Law, even though I do not ignore the fact that within this framework, common-law partners may have different levels of commitment. It is indeed reasonable to attribute to the legislature an intention to grant the common-law wife both the good and the bad — meaning that a common-law wife will enjoy the rights of a married woman, but that these rights will expire in the same way as they do for a married woman. I agree with those who argue that it would be preferable if the legislature enacted an express provision establishing the termination of these rights, but as long as the legislature has not responded to the matter, and for the reasons that my colleague has described, the proposed interpretation is to be preferred. I would also add that there can be no doubt regarding the obligation of the state to those who were injured or who sacrificed their lives for the state, or to their families, and that this justifies the distinction that is made with respect to these widows, as explained by my colleague.

 

Decided as per Justice E. Hayut.

 

11Tishrei 5771.

19 September 2010.

 

Crim. A. 112/50

 

           

GAD BEN-IZHAK YOSIFOF

v.

THE ATTORNEY-GENERAL

 

 

In the Supreme Court sitting as a Court of Criminal Appeal.

[March 29, 1951]

Before: Smoira P., Silberg J., and Landau J.

 

           

Criminal Law - Bigamy committed by Jews contrary to s. 181 of Criminal Code Ordinance, 1936 - Whether section ultra vires on grounds of discrimination - Jewish Law - Freedom of religion and conscience - Prohibition of polygamy not contrary to Jewish Law.

           

                The appellant, an Israel Jew belonging to the Caucasian community, married in the year 1936. He married a second time in the year 1950 while the first marriage still subsisted. He was convicted of bigamy under s. 181 of the Criminal Code Ordinance, 1936 1) and sentenced to imprisonment for one year. On appeal it was argued that s. 181 was ultra vires the powers of the High Commissioner by reason of Article 17(1)(a) 2)2) of the Palestine Order in Council 1922 (as amended) in that the section introduced discrimination between the inhabitants of Palestine, namely, between Moslems and Jews, and in that it restricted freedom of conscience and worship.

               

                Held:      Dismissing the appeal,

          (1) that as the section did not discriminate against men and women of the same community regarded as one unit there was no discrimination within the meaning of Article 17(1)(a) of the Order in Council.

          (2) The question of freedom of worship did not arise in this case.

          (3) As regards freedom of conscience, religious compulsion can only exist where religion either imposes or forbids the doing of a particular act, and the secular legislature compels a breach of the imposition or prohibition. The Jewish religion does not compel polygamy, and accordingly no ground exists for the suggestion that there was any infringement of the right to freedom of conscience.

 

          Per Silberg J. Bigamy was never an institution rooted or permanent or favoured in the life of the Jewish people.

 

Palestine cases referred to :

(1)   Cr. A. 85/38 - The Attorney-General v. Ya'acov Ben Yehiel Melnik (Kimhi) : (1939) 6 P.L.R. 34.

(2)   C.A. 119/39 - Pessia Nuchim Leibovna Shwalboim v. Hirsh (Zvi) Shwalboim : (1940) 7 P.L.R. 20.

(3)   M.A. 18/28 - The Attorney-General v. Abraham Alt shuler: (1920-1933) 1 P.L.R. 283.

(4)   M.A. 9/36 - Sharif Esh-Shanti v. The Attorney-General: (1937) 1 S.C.J. 31.

(5)   H.C. 109/42 - Vaad Adat Ashkenazim, Beit Din Hassidim v. District Commissioner, Jerusalem and others : (1942) 9 P.L.R. 715.

 

Israel cases referred to :

(6)   H.C. 10/48 - Zvi Zeev v. Gubernik, the District Commissioner, Urban District of Tel Aviv and others : (1948) 1 P.D. 85.

(7)   C.A. 376/46 - Aharon Rosenbaum v. Sheine Miriam Rosenbaum : (1949) 2 P.D. 235.

(8)   H.C. 8/48 - Shlomo Gliksberg v. Chief Execution Officer, Tel Aviv and others : (1949) 2 P.D. 168.

 

American cases referred to:

(9)        Quaker City Cab Co. v. Commonwealth of Pennsylvania : 48 S.C.R. 553.

(10)      Lindsley v. National Carbonic Gas Co. : (1911) 31 S.C.R. 338.

 

Wiener for the petitioner.

E. Shimron, State Attorney and E. Hadaya, District Attorney of Jerusalem, for the respondent.

 

            LANDAU J.  The appellant, Gad Ben-Izhak Yosifof, was convicted by the District Court of Jerusalem (Halevy P.) of the felony of bigamy, in contravention of section 181 of the Criminal Code Ordinance, 1936, as amended in 1947, and was sentenced to imprisonment for one year. His appeal in directed both against the conviction and the sentence. Upon the suggestion of Dr. Wiener, counsel for the appellant, and with the consent of the State Attorney, we decided to hear the appeal in two stages - the first stage relating to the conviction, and the second stage (should we reject submission of counsel in regard to the conviction), relating to the sentence.

           

2. The facts are set out in detail and with great clarity in the judgment of the learned President of the District Court, and since they are almost undisputed, there in no need for me to repeat them at any length. The appellant, an Israel Jew belonging to the Caucasian community, married ~ woman in the year 1936, and she has born him five children. His marriage with her in still subsisting. In the year 1950 the appellant married a second wife by religious rites with the consent of the office of the Rabbinate in Jerusalem. He obtained this consent by a false declaration which was supported by two witnesses, in which he concealed the fact of his existing marriage.

 

3. Dr. Wiener's submissions in regard to the conviction were directed solely to the legal basis of the judgment of the District Court. Dr. Wiener in fact denies the validity of section 181 of tile Criminal Code Ordinance, as amended. His arguments are these : that in enacting the section referred to the legislature in the days of the Mandate exceeded the powers conferred upon it by Article 17(1)(a) of the Palestine Order in Council, 1922, as amended in 1923, in that :

 

        (a)    Section 181 of the Criminal Code Ordinance discriminates           between the inhabitants of Palestine;

 

            (b)        the section restricts freedom of conscience and         worship.

           

4. In order to understand these submissions it in necessary for me to deal shortly with the history of these sections. Section 181 of the Criminal Code, in its original form, provides :

 

            "Any person who, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, is guilty of a felony and is liable to imprisonment for five years. Such felony is termed bigamy;"

 

            The section then proceeds to provide for three situations which, if established by the accused, will afford him a good defence. These are:

           

"(a) that the former marriage has been declared void by a court of competent jurisdiction or by a competent ecclesiastical authority; or

 

(b) the continuous absence of the former husband or wife, as the case may be, at the time of the subsequent marriage, for the space of seven years then last passed without knowledge or information that such former husband or wife was alive within that period; or

 

(c) that the law governing the personal status of the husband both at the date of the first and at the date of the subsequent marriage allowed him to have more than one wife."

 

            Special attention should be directed to the opening words of the section which require as one of the elements of the offence that the new marriage shall be void by reason of its having taken place during the lifetime of the husband or the wife of the previous marriage. This is an exceptional requirement, the basis of which was the desire of the legislature to adapt this provision of the Criminal Law to the conceptions of the Moslem religion which permits more than one wife. The second marriage of a Moslem is not void, and the prohibition imposed by section 181, therefore, does not affect him. It was also the purpose of the third defence mentioned in the section referred to, to protect a person whose personal law permits him to have more than one wife.

           

5. The Jewish law of marriage, however, was overlooked by the mandatory legislature from the outset, and the language of the section was not made appropriate for the special position created in Jewish law when a man marries two wives. According to that law, as is well-known, the second marriage remains valid throughout, and may be terminated only by divorce. It follows that the language of the section in its original form imposed no obstacle to polygamy among Jews, as appears from the judgment of the Supreme Court in Attorney-General v. Melnik (1), in which a Jew was acquitted of the offence of bigamy because of the defective drafting of the law.

 

6. Some years passed until the publication in 1947 of the amended section 181, which was drafted with the intention of bringing the provisions of the criminal law in regard to bigamy into conformity with Jewish law. And this is the solution which the legislature found to this problem:

 

(1)       The requirement at the beginning of the section that the new marriage should be void was deleted, and it was provided as to the future that the offence is committed whether the subsequent marriage is valid, or void or voidable. In this way the section was also made applicable to the second marriage of a Jew which is not void. It would appear that as far as Moslems are concerned, it was decided by the legislature that the original language employed at the beginning of the section was not necessary to exclude them from its operation, since they are in any case excluded by "the third defence" provided in the law governing personal status which permits polygamy.

 

(2)       The second and third defences provided for in the original section were restricted. Cases in which the law as to marriage applicable to the wife or husband at the date of the subsequent marriage was Jewish law, were excluded from the second defence, and cases in which the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage was Jewish law, were excluded from the third defence.

 

            In place of these defences which were excluded a new fourth defence was laid down for Jews, namely, the case in which "the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage, was Jewish law and that a final decree of a rabbinical court of the Jewish community ratified by the two Chief Rabbis for Palestine and giving permission for the subsequent marriage, had been obtained prior to the subsequent marriage. ''

           

7. Dr. Wiener's whole argument, as 1 have said, was directed to the point that section 181 is inconsistent with Article 17(1)(a) of the Palestine Order in Council. The provisions of that Article, in so far as they affect the problem before us, are as follows : -

 

            "The High Commissioner shall have full power and authority..... to promulgate such Ordinances as may be necessary for the peace, order, and good government of Palestine, provided that no Ordinance shall be promulgated which shall restrict complete freedom of conscience and the free exercise of all forms of worship, save in so far as is required for the maintenance of public order and morals; or which shall tend to discriminate in any way between the inhabitants of Palestine on the ground of race, religion, or language."

           

            Article 83 of the Order in Council again emphasises that "All persons in Palestine shall enjoy full liberty of worship subject only to the maintenance of public order and morals..." This section is in the general chapter of the Order in Council, and it adds nothing to the provisions of the amended Article 17(1) (a) which deals particularly with matters of legislation. The source of Article 17(1)(a) is Article 15 of the Mandate for Palestine from which it has been copied almost word for word. These conceptions, which were embodied in Article 15 of the Mandate, were not new, but had already found their place in the world of political thought in the French Declaration of the Rights of Man and the Citizen, of the year 1789, and in the days of the first ten amendments of the American Bill of Rights of the year 1791. The principle of non-discrimination reflects the aspiration of the equality of all citizens before the law. Freedom of conscience and worship is one of the liberties of the subject which is guaranteed to him under every enlightened democratic regime. In the declaration of the establishment of the State of Israel it is said:

           

            "The State of Israel... will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race, or sex. It will guarantee freedom of religion, conscience, language, education, and culture..."

           

            Dr. Wiener mentioned these words in His argument, but he drew no legal conclusions from them. In this he was correct, for the court has already held in Zeev v. Gubernik (6), that that declaration "contains no element of constitutional law which determines the validity of various ordinances and laws, or their repeal". Dr. Wiener agreed, therefore, that if the Knesset of the State of Israel were to enact a section such as section 181, he would not have been able to challenge its validity. His submission, therefore, is limited in scope and touches only upon the situation which existed during the time of the Mandate. I am in agreement with him and with the learned President of the District Court that if it should indeed emerge that there existed an inconsistency between section 181 of the Criminal Code Ordinance and Article 17(1)(a) of the Order in Council and that section 181 was void ab initio, then it was not a part of "the existing law" in accordance with section 11 of the Law and Administration Ordinance, 1948, and would therefore be invalid in the State of Israel as well.

 

8. The learned President of the District Court in his judgment rejected the general submission of Dr. Wiener both in regard to discrimination and also in regard to freedom of conscience and worship. He summarised his opinion in paragraphs 21-28 of his judgment, which read as follows :-

 

            "21. The institution of monogamous marriage is regarded among all peoples, in all faiths and in all communities in which it exists as one of the most valuable conceptions of human culture. The establishment of the family and the peace of the community depend upon it. The institution of monogamous marriage deserves and requires the protection of the criminal law in all countries where it exists. In Palestine, where it exists in proximity to the institution of polygamous marriage, it requires stringent protection."

 

            "22. It cannot be conceived for one moment that the Palestine Order in Council wished to prevent the Mandatory legislature from affording monogamous marriage in Palestine effective protection by means of the criminal law. All that was demanded by the Order in Council in this connection was that the law of bigamy should not prejudice that section of the population whose law of personal status recognised polygamy."

 

            "23. Section 181 was designed to protect the institution of monogamous marriage which existed in a certain section of the population of the country and in no sense prejudices the institution of polygamous marriage which exists among another section of the community. In other words, the object of section 181 is to protect those men and women (and their children) whose marriages, in accordance with their law of personal status, are monogamous marriages. Section 181 takes care not to prejudice the law of personal status (religious or national) of any inhabitant. It does not prejudice liberty of religion (which is included in the guarantee "of freedom of conscience and worship") but, on the contrary, it respects that liberty in all its provisions. Were it necessary for me to base my judgment upon this ground, I also would not hesitate to decide that the criminal law defending monogamous marriage is required "for the preservation of public order and morals". As far as discrimination in favour of the Moslems is concerned, it is not section 181 which created the distinction between the law of monogamous and polygamous marriage in Palestine; this distinction exists and is rooted in fact and confirmed by the Order in Council upon which counsel for the accused relies. It is for these reasons that I decide to reject the general submissions of counsel for the accused to the extent that they do not touch upon the special provisions of section 181 in regard to Jews."

 

            In so far as the special provisions of section 181 relating to Jews are concerned, it was held by the President - after a comprehensive survey of the development of Jewish law in this field - that "Jewish law does not permit a person to take a second wife in Palestine, unless he first obtains permission so to do according to law". In support of this opinion the President cited in his judgment a number of authorities on Jewish law which he culled from Rabbinical literary sources. He therefore rejected the idea that there exist in Palestine Jews of the Eastern communities who are permitted by Jewish law to take more than one wife without special permission so to do, and held that section 181 is in full conformity with Jewish law.

           

9. Dr. Wiener strongly attacked the general theories of the learned President. In his opinion there is no room for these propositions in the judgment of a judge whose duty it is to interpret the law and not express opinions on social problems such as the preference of monogamy over polygamy.

 

            I see no substance in these criticisms of Dr. Wiener. The learned President did not just express opinions. He refrained, for example, from expressing generally any preference for the system of monogamy over that of polygamy, but particularised and said (in paragraph 21 of his judgment) that "the institution of monogamous marriage deserves and requires the protection of the criminal law in all countries where it exists." We find nothing wrong in this expression of opinion. It is not the function of a judge simply to interpret the law mechanically. A judge is sometimes required to interpret abstract conceptions such as, in the case before us, "discrimination" and "freedom of conscience". It is of no avail in such circumstances to attempt to confine oneself within the four corners of legal theory. The judge must make a thorough investigation, must weigh the benefit of the community and that of the individual, the degree of justice and equity, and other considerations such as these in order to reach a correct assessment of the intention of the legislature.

 

10. Dr. Wiener argued his submissions in regard to the merits of the case under two headings - the one dealing with discrimination, and the other with freedom of religion and worship. I shall deal with the submissions in that order. Dr. Wiener confined his argument with regard to discrimination to the following points:

 

            (a) The idea that there exists a distinction in principle between monogamy and polygamy has no basis in the law of Palestine. According to the intention of the legislator who drafted the Order in Council marriage is an institution common to all communities, and the Mandatory legislature could not therefore lay down in subsequent legislation on marriage different principles for different communities. The criminal law relating to bigamy falls within this rule.

           

            (b) An argument that the legislature adjusted the section in question to the religious needs of the different communities cannot be justified, since section 181 is not so drafted, and in any event there was no necessity for a High Commissioner to set himself up as a "policeman" for the religious communities.

 

            (c) The test of discrimination is an objective test and we must not, therefore, enquire into the intentions of the legislator. The prohibition against discriminatory laws is absolute without its being reserved to matters of the maintenance of public order and morals, for these are only mentioned in connection with freedom of conscience and worship.

 

11. Mr. Shimron, the State Attorney, argued against this submission upon the question of discrimination. In his submission the prohibition against discrimination does not mean that the legislature must introduce a mathematical equality between all citizens. Discrimination must not be confused with distinction. The prohibition extends only to discrimination to the disadvantage of a particular group of people. The Palestine legislature, however, did not discriminate in favour of one community or against another community. It found itself faced with a varied social and legal state of affairs in the different communities, with each community having its own way of life. It therefore tried to find a legislative solution which would be in conformity - as far as possible - with this existing situation. The solution which it found is a reasonable and not a capricious one. Mr. Shimron, in his submissions, relied upon judgments of the Supreme Court of the United States which, in interpreting the Fourteenth Amendment of the Constitution of the United States in connection with the equal protection of the laws, decided that this amendment does not prevent classification of different groups within the community by the legislature.

 

12. It must be pointed out at the outset that Article 17(1)(a) of the Order in Council does not provide in general terms that all discrimination is forbidden. The article lays down, however, in a consolidated form, three aspects according to which discrimination between inhabitants of the country is forbidden, and these are on the grounds of race, religion, and language. Does section 181 mention religion as a reason for differentiating between the communities? Counsel for the parties did not deal specifically with this question. It seems to me that the matter is open to doubt. In the time of the Mandate the court recognised Jewish law as "the national law" of the Jews of Palestine (see Shwalboim v. Shwalboim (2)). I do not think that, in speaking in section 181 of the person whose law relating to marriage is Jewish law, the mandatory legislature intended to restrict this conception to Jews who were members of the Jewish community as a religious community. It designedly created a special class of people who are distinguished by their law of personal status. This has little effect, however, as far as Article 17(1)(a) of the Order in Council is concerned, for if the dividing line under section 181 is not religion we shall be compelled against our will to reach the conclusion that the differentiation is based on race, or on a conception of religion and race combined.

 

13. It seems to me that the articles of the Order in Council itself destroy the contentions of Dr. Wiener that marriage under the Mandatory law was considered the same institution for all the communities. The legislature allocated jurisdiction in matters of marriage between the different religious communities, and in so doing it was undoubtedly aware of the wide distinction between the various laws of marriage of the main communities in the country. See in this regard the judgment of this court in Rosenbaum v. Rosenbaum (7). It was only in 1989 that the first step was taken to introduce a unified law of marriage for persons who were not members of the recognised religious communities (see Article 65A of the Order in Council). This provision, however, merely provided the additional legislative framework, but this frame was never filled with content. It is clear to me that the law of marriage which existed in the time of the Mandate and which exists in this country today is not a single one, but is varied according to the different systems of personal law.

 

14. What is the correct meaning of the expression "discrimination", which appears in Article 17(1)(a)?  It is true that according to its etymological source this English word means no more than "distinction" and not necessarily a distinction for good or bad. In the social sciences, however, the word has acquired a more restricted connotation.

 

            I quote from the Encyclopaedia of the Social Sciences, New York, 1948, vol. 14 at p. 131 where it is said: -

           

"The term social discrimination may be tentatively defined as unequal treatment of equals, either by the bestowal of favors or the imposition of burdens."

 

and further on the same page :-

 

"Discrimination should not be identified or confused with differentiation or distinction."

 

and on page 182 :-

"Discrimination carries with it the idea of unfairness."

 

            I have already explained that the expressions which I am considering here are not merely legal terms. They are the common heritage of people with a democratic tradition and we do not hesitate therefore to seek assistance from American non-legal sources. The distinguishing feature implicit in the expression "discrimination" is an attitude which is unequal and unfair - for different classes of people. This is also the opinion of the English judges in the time of the Mandate. In the well-known case of Attorney-General v. Altshuler (3), for example, the court asked in its judgment at p. 286 :

           

"Can it be said because the bye-law in question makes a distinction in favour of the minority ...that there is, therefore, not a discrimination against the majority."

 

and it replies :

 

''.. .it is just as much discrimination when the majority suffers as it is when a minority is discriminated against.''

 

            I quote these passages only for the sake of the linguistic interest which they possess, without expressing any opinion as to the correctness of the view of the majority of the judges on the merits. The same expression, as used in the book of Exodus, (8, 18; 11, 7) 1) is used to connote a distinction for good or for evil.

           

15. I have considered the American judgments cited to me by Mr. Shimron, and particularly the judgment of Mr. Justice Brandeis in Quaker City Cab Co. v. Pennsylvania (9), which interprets the "Equal Defence Clause" in the American Constitution (the Fourteenth Amendment). However I cannot derive any assistance from this judgment for the problem before us, for the amendment referred to does not mention the expression "discrimination" and the American court, in interpreting the amendment, proceeded on the assumption that discrimination (that is to say, actual discrimination either in favour or against a particular class of persons) is permitted subject to the condition that it expresses itself in the form of classification on a reasonable basis (ibid., p. 556), while in our case discrimination is forbidden in all circumstances and is not limited by considerations of public order, and other considerations of a like nature.

 

16. Nevertheless, I am of the opinion that in substance Mr. Shimron's submission is correct. I have said that discrimination means a distinction for good or for bad. Article 17(1)(a) does not forbid a different legislative arrangement in respect of different classes of persons, provided that the arrangement involves no discrimination for good or bad. For example, the Language of Courts Rules provide in rule 4 that every summons, every official copy of a judgment and every official document shall be issued in the language of the person to whom it is addressed. This provision involved a distinction between different classes of people by reason of language. Would it ever occur to us to say that this is discrimination because from an objective point of view one law has not been laid down for all? On the contrary, it would appear that here we have a desire to confer equal status upon all the official languages. And so it is in the case of marriage. The Mandatory legislator decided that the time had come to prohibit bigamy by a prohibition in the Criminal Code. Two roads were open to it. It could have imposed a general prohibition upon the members of all communities or find a compromise between the desire to prohibit bigamy, and the social realities of the country. Dr. Wiener admits that a general prohibition would not have been beyond the competence of the Mandatory legislator, but he denies its power to lay down different laws for different communities. I cannot accept this opinion. A legislature does not operate in a vacuum, but is faced with an actually existing social state of affairs with its various manifestations, and must formulate legal forms to meet that situation, and also direct its development in the future. As far as the institution of marriage is concerned, the legislator found himself confronted, as raw material, with a reality consisting of varied outlooks which were fundamentally different. It found that the population of the country was not homogeneous, but that it consisted of different peoples and communities, each with its own laws and customs. Can we say that the Mandatory legislature committed a breach of the principle of non-discrimination because it did not impose its will on the existing situation but to some extent yielded to reality? There is an even more important factor. I am not dealing here only with a difference between actually existing situations, but a difference which was already established in the written law which applied before the Mandatory legislator began to act. Legislatory recognition of the differences between the outlooks of the peoples and communities in the country was already introduced into the Order in Council itself, which did not introduce one law for all people in the country but in matters of personal status handed over such matters - at least in part " to the jurisdiction of the courts of the communities. The draftsman of the Order in Council also added little that was new, and only recognized a legal situation which already existed previously in the time of the Turks. The Mandatory legislature, therefore, was consistent, and in drafting section 181 not in a single form but in a varied form, continued to build upon legal foundations which had already been laid down for some time.

 

            Counsel for the appellant is correct, however, in submitting that in the ultimate result the test must remain objective. It is possible that the intention of the legislature was desirable, but that it failed in its efforts, and that its solution in fact prejudices a particular class of persons, and discriminates against them in favour of others. We are not, therefore, relieved from the task of examining the details of the legislative arrangement which was made in the matter before us. I shall not be influenced by the dotting of i's and the crossing of t's, and should it appear that in essentials no discrimination has been introduced by the legislature, the court will ratify its actions and not invalidate them.

           

17. The object of respecting the provisions of the law of personal status of each person in Palestine is abundantly clear from section 181. We know from the explanatory notes to the proposed amendment that it was drafted after consultation with the Chief Rabbinate and was intended to satisfy its requirements. Rabbi Ya'acov Baruch, the Principal Secretary of the Office of the Rabbinate in Jerusalem, who gave evidence in this case, also confirmed that the Chief Rabbinate had approved this amendment (see also the article of P. Dikstein, "Ha-Praklit" January, 1946, p. 18). There is therefore no doubt as to the good intentions of the legislature towards the Jews. From an objective point of view as well, however, although there is here a difference in the legislative arrangement, there is no discrimination against anyone. Wherein lies the discrimination upon grounds of race or religion in handing the final decision in regard to permission to marry more than one wife - and thereby the exclusion of a person from the general provisions of section 181 - to the competent Rabbis of the Jewish community? I shall deal later with the question to what extent the contents of this section are consistent which Jewish law and I shall assume for the moment that there is no absolute consistency between them - but that does not mean that the provisions of the section are ultra vires, for in my opinion the legislature was entitled to introduce an innovation in the secular law (and a prohibition of bigamy is a matter belonging to the secular law) by transferring an additional duty to the religious courts of the Jewish community whose power to issue binding decisions is itself derived from the secular law. In so doing the Mandatory legislature did not constitute itself as a "policeman" in matters of religion. It remained within the ambit of its powers, and merely used the existing machinery of the religious courts in order to achieve its purpose after giving full consideration to the feelings of the Jewish community.

 

18. And that is not all. Without expressing an opinion as to the social and moral values of monogamy and polygamy it may in any event be laid down with certainty that that outlook which sees an advantage in a number of wives is basically a "masculine" outlook, for a prohibition against a number of wives restricts, as it were, the liberty of the male. The prohibition of bigamy, however, has the important social purpose of protecting the first wife. To release the man from the prohibition against bigamy contained in the criminal law would be to lower the status of the wife. It is for us to decide whether there exists here discrimination against the members of a particular race or religion, and we may not take a one-sided view of the problem. We must ask ourselves whether the men and women of the same community regarded as one unit are discriminated against. The answer to this question cannot be otherwise than in the negative.

 

19. For these reasons I reject these submissions of Dr. Wiener, and in my view section 181 of the Criminal Code Ordinance, 1936, is not repugnant to the provision against discrimination in Article 17(1)(a) of the Order in Council.

 

20.  I shall now pass to consider the second submission relating to freedom of conscience and worship. In my opinion the question of freedom of worship does not arise here at all. The intention of the legislature was directed to forms of worship among the different religions - in regard to matters between man and his God, and not in regard to matters between man and man.

 

            I shall therefore confine the enquiry to freedom of conscience. This is an ethical conception dealing with knowledge of good and evil. A man may derive his opinions on good and evil from a source which is not religious. A religious man, however, is guided in matters of conscience by the commandments of his religion, and we therefore accept the assumption that the complete application of the principle of freedom of conscience also demands freedom of religion.

 

            Dr. Wiener's main submission was that the Mandatory legislature, in laying down rules relating to marriage, trespassed upon the area of religion since, according to the Order in Council. marriage is a religious institution. Freedom of conscience means freedom to live according to the dictates of religion. Jewish law permits polygamy at least among those communities which have not accepted the Ban of Rabbenu Gershom.1) In certain cases polygamy is even almost a religious duty. The test is objective, and it makes no difference if the appellant belongs to one of those communities. And if section 181 is repugnant to the religious customs of any community, then it must be invalidated completely. The section is prejudicial in particular to those Jews who are not members of the Jewish community, for it compels them to approach the courts and the Chief Rabbis whose authority they do not recognise - in order to secure permission to marry. In explaining these submissions, Dr. Wiener readily conceded, as I have said, that had the legislature introduced the prohibition on bigamy generally by imposing a criminal prohibition, it would not thereby have exceeded its powers, for a prohibition such as this would evidence a desire to regulate the question of bigamy purely from the secular angle.

 

            Mr. Shimron's submission on this aspect of the matter was as follows. The question of marriage is secular and not religious, and legislation regulating this matter has no effect upon religious sentiment. Freedom of conscience and freedom of action are not the same thing, for freedom of conscience is confined to the realm of thought alone. Mr. Shimron supported the conclusions of the learned President in the court below that there is no inconsistency between section 181 and Jewish law, and submitted that the fact that a minority do not recognise the rabbinical courts can have no decisive effect on the matter.

           

2l.  I do not think that freedom of conscience is limited to freedom of thought alone. A man who enjoys freedom of conscience must not be deprived of the right to obey the dictates of his conscience by action. The proviso to Article 17(1)(a) in regard to public order and morals is sufficient to prevent harmful acts which some may seek to justify on the ground of freedom of conscience. Even Esh-Shanti v. Attorney-General (4), upon which Mr. Shimron relied, does not go so far as to hold that freedom of conscience is limited to matters in the realm of thought alone.

 

22.  I reject the remaining arguments of Dr. Wiener in regard to freedom of conscience. I think that Dr. Wiener destroyed his own argument by conceding that there may also be a secular approach to the subject of marriage. If, in principle, the secular law relating to marriage may be imposed upon all the inhabitants of the country, why should legislation which seeks to respect the demands of various religions, according to the grasp of the secular authorities after they have consulted the Jewish religious authorities before enacting the law, be forbidden? This is not trespassing upon the field of religion. On the contrary, as T have said, there was a clear desire to follow the golden mean between the religious sphere - as defined by the religious institutions themselves - and the secular sphere.

 

23. I would add here that it is by no means clear that according to Jewish law, the law of marriage belongs to the field of religion It is true that the Order in Council speaks of religious courts, and the draftsman undoubtedly assumed as a matter which was self-evident that religious courts deal with matters before them in accordance with laws of a religious character. But the draftsman had no power to change the essential nature of Jewish law. It is true that that law is based entirely upon a religious foundation since its source is the Law of Moses. There is, for example, no essential distinction between the law of persons and the law of property from the point of view that one is religious and the other secular, for they are all bound up together in one legal system. It would not be right, therefore, to attribute an essentially religious character just to the law of persons, thus distinguishing it from other branches of Jewish law. In other words, from the point of view of Jewish law (and it is with this law that we are dealing at present and not with the point of view of the secular legislature which drafted the Order in Council), the Law of Moses regulates all branches of civil and criminal law, and there is no difference between the intervention of the secular legislature in the field of the law of persons and its intervention in any other field of the law as a whole. No one will contend, for example, that in laying down the secular law of property the legislature was guilty of trespassing upon the field of religion, and the same applies to the intervention of the legislature in the law of marriage.

 

24. This is not all. Religious compulsion can only exist where religion either imposes or forbids the doing of a particular act, and the secular legislature compels a breach of the imposition or prohibition. There can be no question of such compulsion in regard to acts which religion merely permits, without any absolute imposition or prohibition. Dr. Wiener must show, therefore, that there exists an inconsistency between an order of the secular legislature and some absolute directive in Jewish law which compelled polygamy. Dr. Wiener did point, indeed, to a number of instances in which such an inconsistency, as it were, would exist were polygamy obligatory under Jewish law. The President of the District Court, however, has shown convincingly that the legislative regulation of marriage introduced by section 181 is in complete accord with the principles of Jewish law as they have developed throughout the ages, and that custom in Palestine, binding all the communities, generally forbids polygamy. A man is not permitted - and certainly is not obliged - to marry more than one wife, on the strength of his own decision alone. He is required for this purpose to procure a special permit which will only be issued on certain conditions now laid down, inter alia, in the Rules of Procedure of the Chief Rabbinate of Palestine of the year 1943. This ground in itself is sufficient to answer any argument about the infringement on the freedom of religion, though this does not diminish the force of the other considerations which we have already mentioned to contradict this argument.

 

25. In conclusion, the submission relating to that minority which did not recognise the Jewish community also cannot stand the test of analysis. Knesset Yisrael was regarded by the Mandatory authorities as the organisation of the Jewish community, and all efforts to secure legal recognition for other bodies failed (see for example the case of Vaad Adat Ashkenazitm v. District Commissioner (5)). The Mandatory legislature was consistent, therefore, in leaving the final decision relating to the issue of a permit in the hands of the Chief Rabbis of Knesset Israel. I have already rejected the submission relating to an infringement of liberty of conscience in its material aspect. Can the undisputed fact that it is necessary to approach the religious courts of Knesset Israel and the Chief Rabbis in order to secure the necessary permit be regarded as infringing freedom of religion?  This contention cannot be accepted any more than the argument of a person that he cannot recognise the authority of the courts of the State at all because of considerations of conscience. The provision relating to freedom of conscience is subject to the condition relating to the maintenance of public order which demands of every citizen that he accept the authority of the courts established by law. A Jew was not obliged to be a member of Knesset Israel, but it cannot be deduced from this that the legislature was unable to confer jurisdiction upon the courts of the Rabbinate over persons who were not members of Knesset Yisrael. Section 181(d) of the Criminal Code Ordinance, 1936, indicates the existence of such a jurisdiction, for this section gives official recognition to a permit of the rabbinical courts in respect of any person whose personal law is Jewish law, that is to say, also in respect of Palestinian Jews who are not members of Knesset Yisrael. It is difficult to see how the legislature could have provided otherwise since the recognition of the State was accorded only to these courts as the religious courts of the Jewish community.

 

26. For the reasons stated above I am of the opinion that the appeal against the conviction should be dismissed.

 

            SILBERG. J.  I am also of the opinion that the appeal should be dismissed.

           

2. In the submission of counsel for the appellant, section 181 of the Criminal Code Ordinance is invalid for two reasons :

 

            (a) It restricts freedom of conscience.

            (b) It discriminates between one person and another on grounds of religion.

           

            The remaining arguments and contentions of counsel for the appellant are merely branches of his two main submissions as set forth below.

           

3. As far as counsel's first submission is concerned, I should say at once that I entirely disagree with the opinion of the State Attorney that the guarantee of freedom of conscience extends only to the protection of freedom of thought. Thoughts are not punishable nor are they subject to other sanctions, and there is therefore no need to protect them. It follows that the freedom of conscience which enjoys the protection of the legislature must necessarily include a man's acts and deeds, the fruit of the exercise of his conscience, provided always that they do not exceed the bolunds of his purely personal affairs. When they do exceed these limits, they again become subject, like all other activity - to the surveillance of the law.

 

4. The question, therefore, is whether section 181 really restricts a person's freedom of conscience. I could, in fact, limit the question and define it in this way: whether the section referred to restricts the individual freedom of conscience of the appellant in this case, in the particular circumstances of this case. I do not wish, however, to divide the problem in this way, since I have in the result reached a negative conclusion in regard to this question even in its full connotation.

 

5. How is there likely to be a restriction on freedom of conscience in the circumstances of the present case?

 

            There is no doubt that freedom of conscience also includes freedom of religion. In order to show, however, that some prohibitory provision of the law restricts freedom of religion, it is not sufficient to establish that religion does not forbid the act in question. It is necessary to go further and prove that the doing of that act is demanded by religion - that religion commands and obliges the performance of that act. Not everything that is permitted by religion need necessarily be permitted by law. These two areas, therefore, are not identical. The one deals with matters between man and God, and matters between man and man, while the other also deals with matters between man and the State.

 

            In making these observations we need scarcely consider the validity in Palestine of the Ban of Rabbenu Gershom, and whether a Sephardi or Caucasian Jew here in Israel is permitted by law to marry more than one wife. Even if we assume - and I do not imagine that that is so - that the Ban of Rabbenu Gershom has no application to a Jew who comes here from tile regions of the Caucasus, the constitutional validity of section 151 will remain completely unaffected. It is not necessary, therefore, for me to enter into an examination of the interesting theoretical problems in which counsel for the appellant involved himself, namely, whether the Ban of Rabbenu Gershom (or its voluntary continuation after the year 5000 A.M.), is to be determined by the place in which a person is situated - in accordance with the opinion of some commentators - and whether it applies, therefore, to all the inhabitants of that place - even to new immigrants from countries in which the Ban is not acted upon, or whether it is only a personal obligation - in accordance with the opinion of other commentators - and has no application to a person who comes to a place where the Ban is accepted from a place where it is not accepted. (See Shulhan Aruh - Even Ha-ezer - I,9, and commentators ad loci Knesset Hagedola - Even Ha-ezer, Annotations Bet-Yosef, 1,22 (in the name of Rabbi Itzhak Hen); compare, however, Responsa of Nissim, 48; Kol Eliyahu, 2, Responsa on Even Ha-ezer, 12, and Knesset Hagedola, 20, q.v.)

 

6. The correct definition of the question, therefore, to put it shortly and yet accurately, is as follows : whether a man from Israel is obliged, by law, to take more than one wife or not. Counsel for the appellant advanced a novel submission in regard to this question, namely, that since the commandment to be fruitful and multiply is the first commandment in the Bible - first in order and in importance - any provision in the law which restricts the number of wives a man may marry is likely to lead to that commandment's being disobeyed. In support of his argument, counsel relied upon "She-elat Ya'avetz" of Rabbenu Ya'acov Gershom as being calculated to prevent a man fulfilling the commandment to be fruitful and multiply, and as preventing the increase of the seed of Israel. It is possible to go further in the spirit of counsel's submission, and to argue that the prohibition against bigamy is also likely to prevent the fulfilment of the commandment requiring a man to marry the childless wife of his deceased brother - in so far as that commandment is still observed in this country. I mean to refer to those Eastern communities who follow the opinion of Rabbi Izhak Alfasi and Maimonides that it preferable for a man to marry his deceased brother's widow than to give her her release, as is done by the Ashkenazi community in accordance with the opinion of Rabbi Moshe Isserlis. (See the dispute between Abba Shaul and the Rabbis, Yevamoth, 39b; Bechoroth, 13a; Rabbi Itzhak Alfasi, Yevamoth, Chapter "Ha-Holets" (Chapter 4); Maimonides "Yibum Vehalitsa" - 1,2; Annotations Rabbi Moshe Iserlis, Shulhan Aruh, even Ha-ezer - 165,1). I refer to those who are of the opinion that the commandment referred to should be observed even by those who are already married (Pit'hei-Tshuva, Shulhan Aruh - even Ha-ezer, 165, subs. (c), which is opposed to the responsum of Rabbi Itzhak Bar-Sheshet, Title 302 quoted in Bet Yosef and in the interpretation Even Ha-ezer at the beginning of chapter 165).

 

            This submission, however, has no substance whatsoever. Without entering into the question of the meaning of Article 17 of the Order in Council - whether it prohibits legislation which is intended from the outset to prejudice the dictates of religion, or whether it also invalidates any law which is likely, in particular circumstances, to prevent the observance of one of the religious duties - without embarking at all upon an investigation of this problem, there is a very simple answer to the submission of counsel for the appellant in this case. That answer is that this section 181 has already concerned itself from the outset with preventing any possible conflict between the law and religion, and has provided a special method for the resolution of any conflict between them. I refer to the "permission" set out in subsection (d) of the section. It is provided in that sub-section that a person who has more than one wife will be free from guilt ("it is a good defence to a charge under this section") if he proves that the law as to his marriage (both his first and subsequent marriage) is Jewish law, and that "a final decree of o rabbinical court of the Jewish community, ratified by the two Chief Rabbis for Palestine, and giving permission for the subsequent marriage, had been obtained prior to the subsequent marriage". And since the rabbinical court and also the two Chief Rabbis will certainly, no less than any other person, give proper consideration to the observance of religious duties and, if it appears to them correct to do so both from the legal point of view and the facts of the case, will grant the permission requested, there is a sufficient guarantee of "freedom of religion". Where have we grounds for complaint against the Palestine legislature? Was the Mandatory legislature obliged to constitute itself the guardian of matters of religion, and to impose or permit the fulfilment of a commandment which even the religious court is not prepared to permit? I would be very surprised indeed if that were so!

           

7. But counsel for the appellant continued to urge that it was just this very subsection - subsection (d) of section 181 - which constitutes a serious inroad into the freedom of conscience and religion. He submitted that the jurisdiction of both "the rabbinical court of the Jewish community" (which is the court of "Knesset Yisrael"), and that of the two Chief Rabbis, extends to members of "Knesset Yisrael" alone1) (see Gliksberg v. Chief Execution Officer (8), and judgments there cited), and a man who is not a member of Knesset Yisrael can derive no benefit from a "permission to marry" given by a court such as this. It follows that a man who is about to take a second wife will be compelled, against his will, to join the Knesset Yisrael in order to secure the legal validity of the permission referred to. Can there be any greater religious compulsion than this?

 

            There are two replies to this submission which, in my opinion, is without substance.

 

(a) First, I have grave doubts whether the jurisdiction of the rabbinical court is limited here too, in regard to the defence provided for in section 181(d),to members of Knesset Yisrael only. Without expressing any final opinion I am inclined to think - as was said by the learned President of the District Court in paragraph 48 of his judgment - that by virtue of the provisions of rule 6(1) of the Jewish Community Rules, 2)read together with the provisions of Article 9(2) of the Palestine Order in Council (Amendment), 1939,3) section 181 confers a special jurisdiction upon the court of Knesset Yisrael and upon the Chief Rabbis to grant permission to marry also to a person who is not a member of Knesset Yisrael ;

           

b) Secondly, even if we assume that this is not so, and that a man who is very anxious to marry a second wife is compelled, whether he likes it or not, to become a member of Knesset Yisrael - is this something so very shocking? Is this to be treated as "interference with the freedom of religion"? Is the religion of a member of Knesset Yisrael any different from the religion of a person who is not a member of the Knesset ? Religious "compulsion" such as this  means nothing, and it is difficult to submit with any seriousness that the whole legal force of section 181 is to be destroyed because of this feature.

           

8. Before leaving this subject I wish to touch shortly upon another point which also provides a simple and complete solution, in quite another way, to the problem of the freedom of conscience and religion. It is well known that Article 17 of the Order in Council lays down one proviso in respect of the prohibition on the restriction of freedom of conscience, and that is in so far as is required "for the maintenance of public order and morals" (do not read: "and morals" but "or morals"). Dr. Wiener, for his part, has introduced a proviso to the proviso and contends that the word "public" in this context means the whole public and not only a part of the public. I do not know from where this doctrine is derived, nor whether there was any place for it in the conditions of life which prevailed in Mandatory Palestine. It seems to me that in a heterogeneous society, with its many variations and different cultural groups, we can very well imagine that a particular law was necessary for "the maintenance of order" in only one of the different sectors of the population of the country. It can hardly be imagined that the position was otherwise. And the word "order" does not mean only the prevention of disorder. It includes also the maintenance and regulation of particular forms of living and cultural values in which that particular section of the community is interested, and which it holds dear. And if this is so, the amendment to section 181 - which was introduced under pressure from the Jewish community as a whole - is absolutely valid and completely unexceptionable even if the fullest effect be given to the proviso in Article 17.

 

            It would in fact have been possible to solve the whole problem by the process of reasoning set forth above alone. Since in my opinion, however, there was no restriction whatsoever on the freedom of conscience and religion in the circumstances of this case I found it necessary in the preceding portions of my judgment to deal with other aspects of the problem.

 

9. 1 pass now to the second and more serious submission of counsel for the appellant, namely, that of discrimination. This is an argument of substance which demands careful consideration. The conception discussed in the preceding paragraph can in any event have no place in regard to this portion of the enquiry, for the provisions of Article 17 prohibit discrimination in all circumstances - even if it be necessary for the maintenance of public order, since the proviso has been omitted from the concluding portion of the Article.

 

            Article 17, as enacted in Article 3 of the Palestine (Amendment) Order in Council, 1923, provides as follows :

           

".....no Ordinance shall be promulgated.....which shall tend to discriminate in any way between the inhabitants of Palestine on the ground of race, religion or language."

           

            It is Dr. Wiener's submission, stated shortly, that since, in terms of the real and practical application of section 181, bigamy - that is to say, having more than one wife - is permitted for Moslems, but is forbidden to Jews and Christians, the law discriminates between one man and another on grounds of religion.

           

            For the sake of accuracy it must be added that Dr. Wiener does not complain - nor can he complain - that bigamy is permitted for Moslems, and that, as it were, there is discrimination in their favour. It was not this legislative act which permitted them to indulge in bigamy, for they were permitted to take more than one wife before this Act was promulgated. His main argument is that section 181 prohibits bigamy for Jews to a greater extent than for members of any other community, for, differing in this respect from other communities, they are forbidden to contract bigamous marriages even where their religious law permits them to do so (see the language of subsection (c)). It follows that the law has discriminated here, and has discriminated against the members of the Jewish community.

           

10. It is still not clear whether counsel for the appellant complains of discrimination on the grounds of race or on the grounds of religion. It would appear, however, that Dr. Wiener complains of religious discrimination, for he has emphasised before us again and again that section 181 makes the discrimination dependent upon the nature of the law which applies to the marriage of the offender; whether that law is Jewish law, or "some law which is not Jewish law".

 

11. It seems to me that it is just there - in those words and in that definition - that the weakness in counsel's argument appears. The language of the section is as follows : -

 

". . . . . provided that it is a good defence to a charge under this section to prove : -

........................................................................

 

(c) that the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage was a law other than Jewish law and allowed him to have more than one wife, or

 

(d) that the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage was Jewish law and that a final decree of a rabbinical court of the Jewish community, ratified by the two Chief Rabbis for Palestine and giving permission for the subsequent marriage, had been obtained prior to the subsequent marriage.''

 

This language leads to two conclusions:

 

(a) That section 181 makes the conviction and sentence dependent - not on the racial or religious affiliation of the wrongdoer, but upon a third test which is different from both of these, namely, what is the law which is applicable to the marriage of the offender;

 

(b) that the whole difference between the two classes of cases expresses itself, as a matter of fact, in one point alone, and that is that while it is sufficient for a man whose law is not Jewish law to prove, even at the trial itself, that his personal law - that is to say, that law applicable to his marriage - permits him to marry more than one wife, a man who is subject to Jewish law is obliged to prove that before his second marriage was celebrated he had produced a certain certificate laying down that he was permitted, individually, to marry a second wife. In other words, in regard to a man such as this - who falls into the second class - a criminal court will not be satisfied with the evidence of an expert with an abstract legal opinion, but will demand the production of an actual personal certificate issued to him, before he is married to the second wife.

           

12. As I have already indicated, the submission of discrimination as advanced by counsel for the appellant is completely destroyed by these considerations. In order to explain the principle we must deal shortly with the question of the special legal situation of "matters of personal status" and the place which they occupy within the framework of the general civil law of the State.

 

13. As everyone knows, the Palestine legislature divested itself of the power to lay down its own new principles in matters of personal status, and for reasons which are understandable and well-known it generally transferred the regulation of such matters - both from the point of view of procedure and from the point of view of substantive law, to the different religious codes of the various communities. Matters affecting the marriage and divorce of a Palestine citizen, who is a member of one of the recognised communities, are dealt with, even in the civil courts (when the question, for example, arises before them incidentally) in accordance with the religious law of the community in question. That also applies in regard to the duty of maintenance by a Palestinian husband in a claim brought against him in a civil court, and also to other similar types of claim.

 

            The matters which I have so far mentioned are simple, plain and well-known, and there is no reason to discuss them at any length. There arises, however, an interesting question which is not so simple, and that is the explanation of the rule which I have stated. Did the Palestine legislature, from the legislative point of view, leave a vacuum, and in respect of these matters employ foreign legal norms which have no place in its own system of law? Or did the Palestine legislature take over these legal norms, and make them an integral part of its own general system of civil law? This question is not, as we shall see, a merely theoretical one.

           

14. Even if there could have been some hesitation on this question up to the year 1945, the problem was completely settled with the promulgation of the Interpretation Ordinance 1945, and the matter is no longer open to any doubt. Section 2 of that Ordinance provides distinctly that the expression "law" also includes "the religious law (both in writing and verbal). . . . . which is in force, or which will be in force in future in Palestine." These words are crystal clear, and any interpretation of them would he superfluous. The legislature has in this section expressed its opinion in unmistakable language that the religious law, to the extent that it is in force in Palestine, itself constitutes an integral part of the law of the State. That is to say, that if a district court deals, for example, with the obligation of a Jewish husband who is a citizen of Palestine to pay maintenance, and it applies - as it is obliged to do - Jewish law, that part of Jewish law which deals with the question is regarded as if it had been enacted as one of the laws of the State. This, moreover, is the only reasonable and the only possible approach to the matter. Religious law is not "a foreign branch" which is grafted onto the trunk of the tree from without, but, to the extent that it was recognised, is itself inextricably interwoven with the boughs of the tree and forms a portion of its boughs and its branches.

 

15. Let us return to our problem, and examine the influence of this approach on the question before us. The effect is patent and clear : the basic idea which lies at the foundation of section 181 - at the foundation of all the provisions of that section - is to prevent an intrinsic and unreasonable conflict between different portions of the law of the State. For since, in the field of the civil law, there is no single arrangement common to all of the laws of marriage and divorce for all the inhabitants of the country, each community having its own laws, and ifs own forms, so it would be inappropriate to lay down one equal law for all sections of the inhabitants in the field of criminal law. It would be insufferable if there were a contradiction between the civil "permission" to commit bigamy, and the criminal prohibition of bigamy, and if these two conceptions did not coincide. The legislature therefore laid down as a general rule that if the civil law - that is to say, the "religious law" in accordance with which civil questions relating to the marriage of the offender are to be determined - permit him to marry more than one wife, it - the legislature - does not wish to prohibit him from so doing from the point of view of the criminal law. Here, however, the legislature was confronted with a difficulty in respect of members of the Jewish community, or to use the language of the legislature, persons the law of marriage applicable to whom was Jewish law. The difficulty was that Jewish religious law in fact recognises the validity of bigamous marriages - that is to say, having more than one wife - but it does not "permit" such marriages in a general and absolutely unrestricted form. On the contrary its general attitude to them is negative, and it only permits them subject to many reservations and conditions. Hence the legislature found itself confronted with a very complicated situation - a situation complicated from the legal point of view. It could not understand the situation in question nor did it believe that it could itself solve the problem. Who would investigate and who would decide if the particular person who married more than one wife was in fact permitted by Jewish law to marry a second wife? Could such an important and complicated question be decided on the basis of experts who would be heard by the court after the event? What, therefore, did the legislature do? It established special machinery, namely, the rabbinical courts of the Jewish community, together with the two Chief Rabbis of Palestine, and it transferred to them - and to them alone - the power of deciding the question whether a second marriage on the part of the husband could be permitted - resulting naturally in his exemption from punishment - or not.

 

            In short, the legislature did not act here with discrimination and did not discriminate in any way on the basis of religion or race. Also in regard to Jews, the legislator did not depart from the basic principle that no distinction should be introduced between the civil and criminal aspects of bigamy, but it refrained from deciding itself upon the civil aspects of the matter - being mindful of its failure in 1988 - and it transferred the matter to more competent hands, namely, to the religious courts and the Chief Rabbis, who were to decide the matter before the commission of the act. This is not a case, therefore, of racial or religious discrimination, or of discrimination at all. It is a necessary consequence of the legal differences between those portions of the law by which the legislature regulated matters of personal status of the citizen. In the field of the civil law of personal status, however, the legislature was compelled to lay down different legal norms for each community by means of the religious laws. No one has ever questioned the correctness of this course. All that the legislature proceeded to do, in the field of criminal law, was to draw the practical and logical conclusions from this distinction in the civil law.

           

16. And now one word on tile question so ably dealt with by the State Attorney relying on judgments given by the American courts, and in particular on the theory expressed in one case, Lindsley v. National Carbonic Gas Co. (10), by Mr. Justice Deventer of the United States Supreme Court. Not all discrimination is discrimination in the full sense, for in some cases it is nothing more than drawing a distinction. Drawing a distinction in which way? - when there exists a real difference between the two persons between whom discrimination is alleged on any reasonable basis, and the discrimination is not capricious (see p. 340, column g, ibid.). The conception lying behind the prohibition against discrimination is that a man shall not be prejudiced only because of his belonging to a particular race or religion, and there is no discrimination when it is not only on the basis of race or religion that the distinction exists, and where there is no prejudice. The discrimination in section 181 is only in the nature of a distinction. A Jew is not punished for polygamy because he is a Jew; but he is restrained by the threat of punishment from taking more than one wife seeing that the society to which he belongs - the Jewish community - has itself laid down that taking more than one wife is inconsistent with its moral and cultural conceptions - that it can no longer permit that practice. It therefore requested the legislature to prohibit the taking of more than one wife in its own interest, and the legislature acceded to this request. What we have here, therefore, is not a discrimination which is prohibited, but a distinction which is permitted, in no way offending the provisions of Article 17. This conception is in fact similar to that expressed above in paragraphs 14 and 15, expressing indeed two sides of the same coin.

 

17. In conclusion I wish to point out that ~ unreservedly associate myself with the conclusions of the learned President of the District Court in regard to the validity of the Ban of Rabbenu Gershom and the extent of its application in this country. It is a widely-accepted principle that that Ban - or the custom which has remained after the year 5000 A.M. (see Responsa of Hatam Sefer - Even Ha-ezer - s. (d)) - is valid in Israel, and binds everyone who enters this country. The authorities for this proposition were cited fully in the judgment of the learned President. I only wish to add that already in tile period of the Amoraim - some 700 years and more before the Ban of Rabbenu Gershom - there expressed itself - here and there - an inclination against polygamy, from the spiritual point of view. If the Amora Rabbi Ami, who lived in the 4th Century, said, "that I say : everyone who marries a second wife shall divorce his first wife (if she so desires) and pay her the sum of her ketuba" (Yebamot, 65a). Pay particular attention to tile strong introduction "that I say !" - this shows there were even in that far off time, people who were in favour of this idea. And even Raba, who differed from the opinion of Rabbi Ami in connection with this principle, said "A man may marry more than one wife if he is able to support them", also expressed his opinion indirectly elsewhere, and took it for granted that it is in no sense a natural thing that a man should marry more than one wife, and that it is necessary - at least from the moral point of view - to procure the consent of the first wife to such an act (see the reply of Raba to Abayeh - Kiddushin - 7a : "So he said to her at the time of the marriage -  that if I wish to marry another woman, I shall do so"). Any one who knows how to read between the lines will find many such expressions of opinion widely spread throughout our ancient literature, but this is not the place to dwell upon this subject at any length.

 

            In short, bigamy was never an institution which was rooted, or permanent or favoured, in the life of the Jewish people. It was merely 'tolerated', if one may use this expression - and what was laid down by Rabbenu Gershom, the Light of the Exile, at the beginning of the 11th Century, was no more than to put the final touches upon a gradual and deep development throughout the generations.

            It is my opinion, therefore, that the appeal should be dismissed, and the conviction confirmed.

           

            SMOIRA J.  I have read the judgments of my colleagues Silberg J., and Landau J., and I have nothing to add. They have both reached the conclusion that the appeal should be dismissed, and I am in agreement with their opinion.

            We therefore dismiss the appeal against the conviction.

            After hearing counsel for the appellant, the appellant himself, and the District Attorney, we find no ground for imposing a lighter penalty. We also dismiss the appeal against the sentence. We confirm the judgment and sentence of the district court .

           

            The appellant will be imprisoned for a period of one year from today.

           

Appeal dismissed.

Judgment given on March 29, 1951.

C.A. 191/51

       

LEIB SKORNIK

v.

MIRIAM SKORNIK

 

 

In the Supreme Court sitting as a Court of Civil Appeal

[February 19, 1954]

Before Olshan D.P., Agranat J. and Witkon J.

 

 

Family law - Husband and wife - Civil marriage according to law of domicile - No religious ceremony - Validity of marriage - Private International Law - Maintenance - Local law - Jewish law.

 

            The parties were married in Poland on April 2, 1948, according to civil law, without a religious ceremony. They were at that time Polish citizens who were domiciled in Poland, and they remained domiciled in that country after their marriage. They immigrated to Israel in 1950 and thereupon became stateless. Thereafter the husband instituted action against the wife in a District Court for the return of effects or payment of their value, and the wife counterclaimed for maintenance. It was held in the District Court that, in accordance with the principles of international law, the law to be applied in regard to the validity of the marriage was Polish law, and that the law to be applied in regard to the husband's liability for maintenance was Jewish law; that a valid marriage had been contracted; that the claim - based as it was on the Civil Wrongs Ordinance, 1944, - could not be maintained, and that the wife was entitled to maintenance.

           

            The husband appealed.

 

HELD: Per Olshan D.P.

 

(1) That whether the law to be applied regarding the validity of the marriage was Polish law or Jewish law, a valid marriage had been contracted, as the presumption in favour of such a marriage had not been rebutted.

 

(2) Semble, that the District Court had been entitled to apply private international law, and that it had correctly decided that the validity of the marriage was to be determined in accordance with Polish law.

 

Per Agranat J.

 

(l) That the District Court had correctly applied the principles of private international law, and that the validity of the marriage was to be determined in accordance with Polish law.

 

(2) That since the operative facts which constituted the cause of action of the claim all took place in Israel, such claim must be dealt with in accordance with local law, and that having regard to the provisions of the Civil Wrongs Ordinance, 1944, the claim must fail.

 

(3) That the wife's right to maintenance was to be decided in accordance with Polish law but that the amount of maintenance to be payable, being a question of remedy, was to be decided in accordance with local law, namely, Jewish law.

 

Per Witkon J.

 

(1) That the principles of private international law take precedence over all other laws, that the validity of the marriage was to be determined according to Polish law, and that according to that law there had been a valid marriage.

 

(2) That the right to maintenance of a wife married under Jewish law must be applied in favour of a wife whose marriage is based upon foreign law which is recognised by local law, and

 

(3) (dissenting on this point from the opinion of Olshan D.P.) that if the validity of the marriage was to be tested by Jewish law, there was no reason for disturbing the finding of the District Court that that presumption in favour of such a marriage had been successfully rebutted by the husband.

 

Palestine cases referred to:

 

(1)        C.A. 195/43 - Gertrud Freyberger v. Otto Friedman ; (1943), 10 P.L.R. 405.

(2)        C.A. 122/44 - Haim Cohen v. Rachel Ludmirer; (1944), 11 P.L.R. 522.

(3)   C.A. 119/39 - Pessia Nuchim Leibovna Shwalboim v. Hirsh (Zvi) Swalboim; (1940), 7 P.L.R. 20.

(4)   C.A. 234/45 - Ursula Tennenbaum v. Joseph Tennenbaum; (1945), S.D.C. 431; (1946), 13 P.L.R. 201 (on appeal).

(5)   C.A. 158/37 - Leib Neussihin and Others v. Miriam Neussihin; (1937), 4 P.L.R. 373.

(6)        C.A. 11/41 - Eliyahu Bichovski v. Nitsa Lambi-Bichovski; (1941), 8 P.L.R. 241.

(7)        Probate 290/45 - Levin v. Goldberg and Another; (1946), S.D.C. 320.

 

Israel cases referred to:

 

(8)        C.A. 26/51 - Shimon Cotic v. Tsila (Tsipa) Wolfsohn, (1951) 5 P.D. 1341.

(9)   C.A. 238/53 - Aharon Cohen and Bella Bousslik v. Attorney-General; (1954), 8 P.D. 4.

(10)      C.A. 87/49 - Zvi Levin v. Haya Naha Levin; (1951) 5 P.D. 921.

(11)      C.A. 100/49 - Estate of Meir Miller, Deceased v. Rivka Miller; (1951), 5 P.D. 1301.

(12) C.A. 98/47 - Ernst Halo v. Alfreda Yohanna Halo (known as Alfreda Yohanna Lange) and Others; (1948/49), 1 P.E. 195.

(13)      S.T. 1/49 - Aharon Rosenbaum v. Sheina Miriam Rosenbaum; (1953), 7 P.D. 1037.

(14) C.C. M/48/201 - Dr. Gershon Burg v. The Attorney-General;(1919), 2 P.M. 24.

 

English cases referred to:

 

(15) Spivack v. Spivack; (1930), 142 L.T. 492.

(16) Srini Vasan (otherwise Clayton) v. Srini Vasan; [1945] 2 All E.R. 21.

(17) Baindail (otherwise Lawson) v. Baindail; [1946] 1 All E.R. 342.

(18) In re Goodman's Trusts; (1881), 17 Ch.D. 266.

(19) Salvesen or Von Lorang v. Administrator of Austrian Property; [1927] A.C. 641.

(20) Pugh v. Pugh; [1951] 2 All E.R. 680.

(21) Brook v. Brook; (1858), 3 Sm. & G. 481; 65 E.R. 746; affd. H.L., (1861), 9 H.L. Cas. 193; 11 E.R. 703.

(22) In re Paine. In re Williams, Griffith v. Waterhouse; [1940]         Ch. 46.

(23) Conway v. Beazley; (1831), 3 Hag. Ecc. 639; 162 E.R. 1292.

(24) De Reneville v. De Reneville; [1948] P. 100.

(25) In re Luck's Settlement Trusts; (1940) Ch. 864.

(26) J. D' Almeida Araujo LDA. v. Sir Frederick Becker and Co. Ltd.; [1953] 2 All E.R. 288.

(27) Dean v. Dean; [1923] P. 172.

(28) The Colorado; [1923] P. 102.

(29) In re De Wilton; De Wilton v. Montefiori; (1900) 2 Ch. 481.

(30) Lindo v. Belisario; (1795), 1 Hag. Con. 216; 161 E.R. 530.

 

Sheps for the appellant.

Marks for the respondent.

 

OLSHAN D.P. This is an appeal from a judgment of the District Court of Tel Aviv of October 12, 1951, dismissing a claim of the appellant which he had brought against the respondent for the return of effects, or payment of their value to the sum of approximately IL. 404.-, and allowing the counter-claim of the respondent for her maintenance.

 

            Both parties resided permanently in Poland and were nationals of that country. On April 2, 1948, the parties were married in Poland according to civil law, without a religious ceremony. The learned judge held in his judgment that "the couple at first thought of living together in Warsaw, but since Poland had not yet been delivered from the scourge of 'key-money', and since they had already begun to think of leaving that country, they decided that for the time being they would each continue to live in his or her own birthplace - in the case of the appellant, the town of Chekhanov and in the case of the respondent, the town of Gleivitz near Katovitz, and that they would continue to see each other from time to time, which they did."

           

            The couple came to Israel on March 17, 1950, with a view to settling here. It would appear that on reaching Israel they lost their Polish nationality and became stateless. The couple lived at first in an immigrants' camp, but afterwards they left the camp without providing themselves with a permanent place of residence.

           

            According to the respondent, she agreed to leave the immigrants' camp because the appellant promised her to obtain a flat, and because of his argument that so long as they lived in an immigrants' camp he would be unable to find work. Some time after they left the immigrants' camp, quarrels broke out between the parties. According to the respondent, the appellant did find work, but refused to support her or to look for a place in which she could live, and caused her untold suffering. These quarrels brought the parties to court. In August 1950, the appellant lodged his claim and in September, 1950, the respondent filed her defence and counterclaim.

           

            In connection with the claim and counter-claim, the question arose whether a marriage subsisted between the parties. It was submitted by the appellant that since the parties were stateless they were subject to Jewish law and that, in consequence, a marriage which had been celebrated, according to Polish law without "Hupa Ve-Kiddushin"1⁾, could not be recognised in Israel. The appellant also attempted to show that the marriage was not valid in Poland in the light of the facts of the case; but without success. The submission in law of the appellant set out above, became the real dispute between the parties, and is also the main problem in the appeal before us. If the marriage was valid, there was no basis for the appellant's claim - based as it was, in the opinion of the learned judge, on the Civil Wrongs Ordinance, 1944 - and he should be ordered to pay maintenance, while if the marriage was invalid, the claim was well-founded, and the counter-claim should be dismissed.

           

            The question before us is: what law is applicable to determine the validity of the marriage?

           

            The learned judge held, in a carefully reasoned judgment, that the marriage was valid, and that the parties are to be regarded as man and wife. The approach of the learned judge to the problem may be summed up very shortly. In accordance with the principles of private international law, the law to be applied regarding the validity of the marriage is the law under which the marriage was celebrated, that is to say, Polish law; the law to be applied regarding the appellant's liability for maintenance is Jewish law. In other words, it must be assumed that the parties are man and wife, and it must then be determined in accordance with Jewish law if the behaviour of the appellant towards his wife in Israel, which preceded the filing by her of the counter-claim, entitles her to maintenance under that law.

 

            Before reaching the conclusion stated, the learned judge analysed the question of the validity of the marriage from the point of view of Jewish law in the following terms:

           

            "As against this, I agree that the parties never intended that their marriage, which is valid according to the personal law which applied to them during their residence in Poland, should be Kiddushin within the meaning of Jewish law. In the absence of other evidence, it is sufficient for me to quote from the evidence of the plaintiff and of the defendant on this subject. On page 2 of the record the plaintiff said: 'There were rabbis in Poland. I do not believe in God and no religious marriage therefore was celebrated.' And further, on the same page: 'I did not celebrate a religious marriage because such marriages mean nothing to me.' The defendant said on page 20: - 'I requested a Hupa, but he said there was no necessity.' I conclude from the evidence of the parties that there was nothing to prevent the celebration in Poland of a Jewish marriage, although it may have been impossible to dispense with a marriage by Polish law, but I do not believe the defendant, who sought to convince me that she, and to a lesser extent her husband, were in fact religious. In regard to this point I accept the version of the plaintiff without reservation, and I am satisfied that the parties gave no thought whatever to the Jewish religious aspect of their uni on. It was the intention of the parties to achieve the status of marriage in accordance with the provisions of Polish civil law, and of that law alone.

 

            Since the parties at no time intended to be married by Kiddushin according to Jewish law, that law will not regard their union as a marriage. The cohabitation of the plaintiff and the defendant cannot be regarded as cohabitation for the purposes of Kiddushin, though it certainly was cohabitation for the purposes of marriage under Polish civil law.

           

            There is no presumption to assist the defendant in her submission that it must at least be presumed that she has been married by Kiddushin according to Jewish law. From the point of view of Jewish law the parties have never enjoyed the status of a married couple."

           

            In Jewish law there is a presumption, of which a hint is given above, to the effect that "a man does not indulge in sexual intercourse for the purpose of sin", and that there is, therefore, with cohabitation "an intention of marriage." In other words, when a man cohabits the law presumes that he has marriage in mind, and a bill of divorcement is therefore necessary to dissolve the marriage. This subject has been a bone of contention for many centuries between those who argue for a strict interpretation of the law and those who wish to be more lenient regarding the question whether a woman, who has not been married according to Jewish rites, does or does not require a divorce in order to marry some other person. According to those who take a strict view of the law, a divorce is necessary because of the presumed intention to marry by way of cohabitation. On the other hand, according to those who argue for the more lenient view, the woman does not require a divorce if there was no reason to believe that there was any intention to marry. In other words, those who take the strict view demand a divorce in the absence of a clear foundation for the belief that there was no intention of marriage, while those who argue for the more lenient view do not demand a granting of divorce where there is no evidence of an intention to marry. Both these schools of thought, however, recognise the presumption referred to, and the whole dispute relates only to the necessity for the granting of a divorce. Both schools require that a searching enquiry be conducted before giving a decision in any particular case, and it is very doubtful if they would rely on the evidence of a husband who appears before them as a party interested in setting the marriage aside. In the absence of any other evidence, it is doubtful if even those who take the more lenient view would agree to come to a decision purely upon the basis of the evidence of the husband interested in setting aside the marriage, who appears before them saying, "I do not accept the presumption, and you cannot therefore attribute to me any intention of marriage according to Jewish rites." After all, in Jewish law, as is well known, a litigant is not a competent witness. Further, he puts himself in the wrong by denying a presumption which is one recognised by law. If, however, it be said that this is a matter which belongs to the law of evidence, and that in that respect the learned judge was not bound by Jewish law (Cotic v. Wolfsohn (8)), I doubt whether according to secular law also the learned judge would have been able to rely merely upon the evidence of the appellant (the plaintiff) in the absence of any other evidence.

 

            It must not be forgotten that the question whether the absence of a Jewish form of marriage was intentional or due to an oversight, or because of an objection to the expression of a religious intention, is a question of fact, and that in this case additional evidence in support of that of the appellant - an interested party - was required, before the matter could be properly decided.

           

            In speaking of the appellant (before the passage quoted above), the learned judge says: -

           

            "I am surprised to what depths he fell. He had heard from his lawyer that according to Jewish law - if it applies to the personal status of the litigant - his union with the defendant was not within the framework of a marriage at all. He had heard that Jewish law recognises cohabitation as a basis for marriage, and when a man and woman live together for some time and the reputation in the community is that they are husband and wife, there arises a presumption of a valid marriage. Thereupon he so lowered himself as to commit perjury before me and swear that at no time did he regard the defendant as his wife, but as his mistress. I do not, of course, believe one word of this. Let there be no misunderstanding whatsoever. The submissions which a litigant desires to make are a matter for his own conscience - if he has a conscience. The submission of the plaintiff that Jewish law - and Jewish law alone - applies to the personal status of the parties, and that according to that law they never enjoyed the status of a married couple, is a legitimate submission. I am about to deal with it in all seriousness. It is one thing to submit that a marriage which is valid at the place where it was celebrated is not recognised by the law which applies to their personal situation; it is quite another to give evidence which is a tissue of lies and which purports to lay down that from the outset, and from the subjective point of view of the parties or of one of them, there was no intention of a marriage even within the meaning of the law which applied at the place where the marriage was celebrated. I have no doubt that from the point of view of Polish law during the period of their residence in Poland, the parties contracted a valid marriage."

           

            I do not quote the above passage in order to reach the conclusion that the marriage was also valid according to Jewish law, nor do I express any opinion on that point. The question of whether the respondent will or will not require a divorce should she wish to marry another man does not arise for decision in this case, since the respondent's claim is for maintenance. It is sufficient for me to say that whether Polish law applies or whether Jewish law applies there exists in the circumstances a presumption that the parties are man and wife, and in order that the appellant be relieved of his obligation to pay maintenance, it was for him to rebut that presumption, whether he relies upon Jewish law or upon Polish law. Semper praesumitur pro matrimonio. In Spivak v. Spivak (15), a Jewess who came from Poland brought a claim against her husband for maintenance. Her husband had lived apart from her in England for many years, and a question arose as to the validity of the marriage which had been celebrated in Poland. It was held that it is only in cases of bigamy that there is a duty upon the Crown to prove the validity of the first marriage beyond dispute, but that in a civil case, the presumption is sufficient. In quoting another authority, the learned judge said: "Where there is evidence of a ceremony of marriage having been gone through, followed by the cohabitation of the parties, everything necessary for the validity of the marriage will be presumed in the absence of decisive evidence to the contrary..."

           

            It is my opinion that, in view of the presumption referred to that "a man does not indulge in sexual intercourse for the purpose of sin", and the conclusion, that there exists an intention to marry, to be drawn from that presumption, the same rule must be applied where a claim such as a claim for maintenance is brought before a civil court and the matter is governed by Jewish law. It seems to me that where a claim is brought in a civil court, and that claim is one for maintenance, and it is clear from the facts that the parties are husband and wife, the court must apply the presumption relating to the validity of the marriage, unless it be proved by the defendant that according to the personal law which governs the case - be that Jewish law or some other law - the marriage is invalid. Should this not be established by the defendant, it is presumed that the personal law which applies recognises the validity of the marriage, and maintenance will be awarded in accordance with the provisions of the personal law.

 

            It follows that even had the learned judge decided that Jewish law also applied to the "Polish period" during which the marriage was celebrated, he would have had to award maintenance. I wish to emphasize once more that we are dealing here with a claim for maintenance in a civil court, and not with the question whether the defendant will or will not require a divorce. In the case before us the respondent discharged the burden of proof which lay upon her. She proved that, on the facts, she is the wife of the appellant. She proved, with the assistance of the presumption referred to, that she is also his wife from the legal point of view - whether the law which applies is Polish or Jewish law - for the purposes of a claim for maintenance. On the other hand, the appellant did not succeed in rebutting the presumption relating to the marriage of the parties, either according to Polish law or Jewish law.

           

            In giving an affirmative reply to the question whether the parties are man and wife, the learned judge applied Polish law, that is to say the law of the place where the marriage was celebrated, which is also the law of the matrimonial domicil, by virtue of which the parties acquired the status of a married couple.

           

            Without going into detail, I would say the conclusion of the learned judge is correct. The validity of the status which a person has acquired for himself is determined by the law which applied at the time that he acquired that status. He does not lose that status by changing his place of residence or his nationality even though he may then fall within the operation of another law. Any other conclusion would be likely to cause serious injustice. For example, a Jewish couple, married under civil law, lives in one of the countries of the diaspora for many years, emigrates to Israel in order to settle there, and acquires Israel nationality; the husband dies, and his estate is to be divided according to the law of succession to miri1⁾ property, in respect of which a will does not operate. If it be said that the question whether the widow was the wife of the deceased should be decided according to Jewish law, it will follow that she would lose all rights to the inheritance - a situation which the deceased never conceived of during the whole of his life, whether in the diaspora or in Israel. On the other hand, a possible, though rare, situation might arise where a Jewish couple married in the diaspora according to religious rites alone, without fulfilling the civil requirements of the law of the country in which the marriage was celebrated. (Such cases may have occurred during the war in places under Nazi rule.) Suppose that couple emigrated to Israel. If the law to be applied is that of the matrimonial domicil at the time of the marriage, it would have to be held that the marriage was invalid as being contrary to the law of the State in which it was celebrated. It is possible, however, that in such a case other additional considerations would apply, so no hard and fast rule can be laid down to cover such a case.

 

            The principal argument of counsel for the appellant, in attacking the decision of the learned judge relating to the application of Polish law to the question of the validity of the marriage, is that since the claim and the counter-claim were filed at a time when the parties were stateless, Jewish law was applicable regarding all the questions that arose, whether during the "Polish period", when Polish law applied, or the "Israel period", when the parties were stateless. It follows from this submission that if the defendant were, for example, a person who became an English national, then - because of the application of English law and the English rules of private inter­national law which are included in that law - every incident in the life of such a person which created his personal status would not be judged according to domestic or municipal English law, but according to that law (the law of his domicil or the law of his previous nationality) which applied to him at the time of such occurrence. If, however, such a person became an Israel national, the religious law would apply to every such incident which occurred at any place and at any time from the date of his birth, for religious law is universal, and recognises no frontiers or limitations, nor does it include or recognise any private international law. In advancing this submission, counsel for the appellant relied upon a line of decisions from the period of the Mandate in which it was held that, according to Article 47 of the Palestine Order in Council, the personal law of a Palestinian Jew or stateless Jew is Jewish law, that is to say, the religious law. According to this argument, the authorities referred to purported to lay down that it is not the nature of the problem which arises between the litigants which determines the personal law of the defendant to be applied, but it is the nationality of the defendant (or the fact of his being stateless), at the time that he requires the assistance of the court, which determines which law is to be applied to all the problems that arise, without exception, and without consideration of the law which would have applied to the defendant at the time of his acquisition of the status, or of the creation of the cause of action, which is the subject of the matter to be considered by the court. In other words, if the defendant is a Jew who is stateless, and who is subject to Jewish law, and the question arises whether he is married, then if, according to Jewish law, his marriage is not to be regarded as valid, the court is obliged to hold that he is not married. The court should overlook the fact that according to the law which applied to the defendant at the time and place of his marriage, his marriage was valid. Counsel further submitted that since the court had reached the conclusion that, according to Jewish law, the marriage of the appellant was invalid, and since at the time of the bringing of the action Jewish law applied to him, the court could not rely upon Polish law and hold that he was married.

 

            Having examined the precedents from the time of the Mandate, I have reached the conclusion that this submission - even to the extent that it is based upon the authorities referred to - is unsound.

           

            In Freyberger v. Friedman (1). it was held by the Court of Appeal that Jewish law applied to a Jew who was stateless in matters of his personal status. The parties, who were previously Austrian nationals, settled in Palestine, and married at a time when they were stateless. They subsequently became divorced according to Jewish law. In applying the religious law it was held by the court that the divorce was valid, and that the bonds of marriage between the parties had been dissolved. The problem whether Jewish law also applied to the status which had been acquired by the defendant according to foreign law, at a time when such foreign law applied to him, did not arise.

           

            In Cohen v. Ludmirer (2), Jewish law was applied to the defendant, a stateless Jew, in a claim brought against him in respect of the maintenance of a child. The child, however, had been born in Palestine at a time when the defendant was stateless, that is to say, at a time when, and place where, he was subject to religious law. Here, too, the problem with which we are dealing did not arise.

           

            In Shwalboim v. Shwalboim (3), the court dealt with a claim for maintenance brought against a defendant who was a Palestinian national, and it was held that the claim was governed by Jewish law. In that case, too, the question of the effect of the foreign law which would have applied to the defendant before he became a Palestinian national, did not arise.

           

            In Tennenbaum v. Tennenbaum (4), the respondent married his wife in 1937 at a time when he was a Czechoslovakian national. The parties were divorced according to Jewish law on January 19, 1940. Czechoslovakian law did not recognise the validity of the divorce which was effected outside Czechoslovakia. On March 1, 1940, the respondent married the appellant, who was then a German national, by Jewish religious rites. In view of the doubt which arose as to the divorce from his first wife - and also in regard to the validity of his marriage to the appellant - by reason of the foreign laws which applied to the parties, the respondent became naturalised on March 31, 1941, and on May 2, 1941, he again divorced his first wife before a Rabbi. Thereafter the parties appeared at the Rabbinate, and a "marriage of validation" was celebrated. On July 4, 1941, the appellant also became naturalised. Quarrels broke out between the parties, and the wife filed a claim for a declaration that she was not the wife of the respondent. The District Court held that the second marriage was invalid, but that since the law that applied to the parties in this instance was their personal law at the time when the claim was filed, and that was the religious law, the first marriage and divorce were valid, in spite of the fact that according to the foreign law which then applied to the parties, the divorce, and therefore also the first marriage, were invalid. In other words, it was held that Jewish law, which applied to the parties at the time of the filing of the claim, also applied retrospectively to acts performed by the parties at a time when they were subject to the foreign law.

           

            Since the appellant in this case, his counsel submitted before us, was a Jew who was stateless, and was in no different position - from the point of view of the law which applied to him - from that of a Jew who is a Palestinian national, it follows that, by comparing this case with the decision referred to, Jewish law also applies to the Polish marriage, and that marriage is invalid. Since this is so, he further submitted, the learned judge erred in superimposing upon Jewish law the principles of private international law, and he should have held - in accordance with Jewish law - that the appellant was not married to the respondent, and should have dismissed her claim for maintenance. The Court of Appeal, however (in the Tennenbaum case), in confirming the conclusion reached in the judgment cited above, did not accept the opinion of the District Court and held explicitly: -

 

"The next point for decision is, what law is to be applied. There is no question that the law applicable is the law governing the parties at the time of the marriage. In the case of the first marriage, this is either Czechoslovakian or German law. Evidence was led to prove that neither of these laws recognises a religious divorce made abroad, and therefore at the time of the marriage between the parties, the respondent must be considered to have been still married to his first wife. His first marriage to the appellant was therefore a bigamous one and was accordingly invalid... Now, on the same principle governing the first marriage, the law applicable as regards the second marriage certificate is Jewish law, because the husband was at that time a Palestinian subject." (Per Frumkin J., at pp. 204, 5.)

 

This judgment is certainly no authority for the view that the religious law, which applied to the parties at the time of the filing of the action, applies throughout - that is to say, also to what occurred in a period during which the parties were subject to foreign law.

 

In Neussihin v. Neussihin (5), a marriage was celebrated between the parties in Germany by religious rites but not in accordance with German civil law. Such a marriage was invalid in the eyes of German law. After the couple reached Palestine, they appeared by agreement before the Rabbinical Court which declared that they were married by Jewish religious law, and handed them a certificate confirming this fact. A short time thereafter the parties acquired Palestinian nationality. After some years the husband died, and disagreements broke out between the heirs of the deceased and his widow as to the division of his miri property. It was contended by the heirs that the widow had at no time been the legal wife of the deceased, since the marriage was void according to German law at the time of its celebration in Germany. It must be pointed out that when the parties appeared before the Rabbinical Court their marriage was confirmed, but no ceremony of marriage was celebrated not even what was called in Tennenbaum's case (4) a "marriage of validation". it was held by the court that the question whether the widow had been the wife of the deceased must be decided according to Jewish law. But it would be wrong to think, as is submitted by counsel for the appellant, that it follows from this decision that the religious law which applied to the widow at the time of the bringing of the dispute before the Court, applied throughout - that is to say, to the period during which the law which applied to the deceased and his wife was German law. The court merely recognised the declaration of the Rabbinical Court, as to the status of the parties, as a decision given by a competent tribunal, and refused to act as if it were a court of appeal from the Rabbinical Court and set aside its decision because it had disregarded private international law. It also does not follow from the judgment cited that private international law is not to be considered in addition to Jewish law in a claim which is elucidated in a civil court. The following provision from section 23 of the Succession Ordinance, 1923, is quoted in the judgment referred to: -

 

"23. For the determination of any question as to whether any person is a member of a class, or possesses a character or quality, whereby he is entitled to a share in a succession the civil courts shall apply the following rules : -

 

   (a) if the claimant is a Moslem or a member of one of the communities, the Moslem law or the law of the community shall apply;

  

   (b) if such claimant is a foreigner.... ."

           

            Since the widow was a member of the Jewish Community and a Palestinian national at the time that the dispute was brought before the District Court, had the Court of Appeal held that the religious law to which the widow was subject at the time of the hearing of the dispute was also the operative law even in respect of the period during which she was subject to German law - as counsel for the appellant in the present case had submitted - that court would have had no need to rely upon the decision of the Rabbinical Court as to the status of the deceased and the widow. It could itself have decided the case by reference to religious law (which validates a marriage celebrated according to religious rites anywhere), relying upon section 23 of the Succession Ordinance, according to the construction placed on it by the appellant's counsel.

 

            It seems to me that, up to this point, no support for the submission of counsel for the appellant can be found in any of the judgments referred to above. The two last judgments - the first directly and the second indirectly - support the point of view of the learned judge in the court below.

           

            In Levin v. Goldberg (7), the deceased was a Palestinian national and a member of the Jewish Community. His widow, whom he married in Rehovot by Jewish religious rites in 1938, and his son, claimed the estate. The sisters of the deceased opposed this claim on the grounds that the widow had not been the lawful wife of the deceased, and that the son was not their legitimate child. On the facts proved, the widow had been married civilly to a Jew named Rosovsky in Paris in 1931. She had been divorced from Rosovsky in Riga at the beginning of 1938 by a judgment of the District Court of Riga, without having received a Jewish religious divorce. It was submitted by those opposing the claim that since, according to Jewish law, even a marriage by civil rites possesses some of the character of a religious marriage, the widow could not be divorced from Rosovsky save by a Jewish religious divorce. It followed that the widow, at the time of her marriage in Rehovot, was already married, and her marriage to the deceased, therefore, was invalid. The court heard the evidence of Rabbis as to the validity of the marriage in Paris according to Jewish law, and reached the conclusion that no marriage in Paris, valid according to Jewish law, had been celebrated and the widow, therefore, did not require a divorce from Rosovsky before her marriage to the deceased, and that her marriage to the deceased, therefore, was a valid marriage.

           

            From this it may be submitted by counsel for the appellant that if, as is contended against him, the question of the validity of the marriage in Paris and the divorce in Riga is to be determined according to the foreign law which then applied to the widow, the court need not have based its conclusion regarding these matters on the principles of religious law. It follows that the religious law which applied to the widow at the time of the filing of the claim applied throughout, that is to say, also to the period during which she was subject to the foreign law.

 

            It appears from the judgment, however, that the parties at no time raised this question, for in that particular case the result of applying the religious law or the foreign law would have been the same. This question might possibly have arisen had it been proved that according to the religious law the widow would have required a religious divorce before her marriage to the deceased. What is more, no appeal was lodged against the judgment referred to, and it must not be overlooked that that judgment was given after the judgment of the District Court in Tennenbaum's case (4) and apparently before the decision of the Appeal Court was published varying the judgment of the District Court in that case (see Tennenbaum's case (4)). It might also have been necessary to examine whether the Paris marriage was valid from the point of view of the religious law for another reason, namely, in order to determine the validity of the marriage celebrated in Rehovot according to the religious law, without any regard to the foreign law which applied to the widow at that time. Those who opposed the succession did indeed submit that the fact that according to secular law - in view of the principles of private international law - the widow was regarded as a divorced woman, was irrelevant, since, according to their contention, the Rabbi in Rehovot could not have celebrated a valid marriage had he known of the Paris marriage and of the fact that the widow had been divorced according to foreign law without receiving a bill of divorcement from Rosovsky. The marriage in Rehovot was therefore invalid, since it had been celebrated as a result of the non-disclosure of facts. In other words, their submission was that in regard to the religious marriage in Rehovot, one of the conditions required by the religious law, namely, the production of a bill of divorcement from Rosovsky, had not been fulfilled.

 

            It might well be that the marriage in Paris had some of the aspects of a valid marriage from the religious point of view. We will not however, express an opinion here whether a civil court, in dealing with the division of the estate of the deceased, would have invalidated the marriage in Rehovot because of the absence of a divorce from Rosovsky, particularly when we take into account the fact that the widow had been divorced from him in Riga by a civil divorce, in accordance with the foreign law which applied to her at that time.

 

            As I have already said, the learned judge in the present case decided the fate of the case by applying Polish law. He held, first, that a marriage subsisted between the parties, and he overruled the submission that it was necessary to decide this question according to the religious law as well, which began to apply to the parties when they settled in Palestine.

           

            On this question the judgment reads: -

           

"On pages 5, 6 and 7 of Dicey's work (6th edition) the learned authors explain that, for reasons of practical necessity, there is no escape from employing the principles of private international law where the particular transaction reveals one or more foreign elements, for if you close your eyes altogether to the foreign element, you are liable to judge the rights of the parties in such a way as to do injustice. In Vasan v. Vasan (16), Barnard J. said, at p. 23: 'To deny recognition of a Hindu marriage for the purpose in hand would, in my opinion, be to fly in the face of common sense, good manners and ...', and in Baindail v. Baindail (17), Lord Greene M.R. said, at p. 346 : 'The practical question in this case appears to be : Will the courts of this country, in deciding upon the question of the validity of this English marriage, give effect to what was undoubtedly the status possessed by the appellant (that of a married man in India) ? That question we have to decide with due regard to common sense and some attention to reasonable policy.' I do not wish to exaggerate the importance of these remarks. The English courts would certainly not disregard precedent in order to give effect to what appears to them to be reasonable policy."

 

            To these comments I would add that the English courts will not assume the powers of the legislature which have not been given to them, in order to give effect to a policy which appeals to them, even were they to be convinced that they could not otherwise discharge their judicial duty and do justice between the parties.

           

            The learned judge continues :

 

            "I have only quoted these passages in order to emphasize the principles which move the legislature and the Courts in the creation of the rules of private international law and the crystallization of those rules. It seems to me, for considerations of common sense and reasonable policy, that justice would not be done between the par­ties if the foreign element in the relations which gave rise to this case were not recognised, that is to say, if the rules of private international law were not employed."

           

            I share the opinion of the learned judge that it would be impossible to do justice between the parties without having resort to the provisions of private international law. I am also of his opinion that "common sense and a reasonable policy" speak in favour of applying private international law side by side with the religious law, and particularly where there is a danger that by applying the religious law alone, the respondent would be deprived of a personal status which she had once acquired validly and lawfully.

           

            The only problem is whether this "common sense and reasonable policy" find their place in the laws to which the courts of this country are subject.

           

            The learned judge was alive to this problem, and made an attempt to discover this "commonsense and reasonable policy" in Article 47 of the Palestine Order in Council, as interpreted by him.

           

            And this is what he says in his judgment: -

           

            "As is well known, English private international law bases itself upon domicil in matters of personal status, while Article 64 (ii) of the Palestine Order in Council bases itself upon the national law. Save for this distinction - albeit a fundamental distinction - I do not see why Article 47 of the Order in Council referred to need be interpreted as if it were completely detached from the body of principles of English private international law. The contrary is true. I am about to interpret that article as if it were grafted on to the body of English principles, so that as far as possible, and as far as may be required, the word 'domicil' shall connote the opposite of the word 'nationality'. In other words, I am about to apply the personal law, but I shall apply that law within those limits in which it must be applied according to the general principles of private international law, and no further. What is the law of personal status which is to be applied between parties, in accordance with Article 47? My reply is as follows: In regard to what transpired during the Polish period, the Polish law must be applied, and as to what transpired during the Israel period, the Jewish law must be applied. Nor is Jewish law at liberty to re-open transactions already concluded and to criticise a status which was acquired during the Polish period; for private international law in Israel does not consult Jewish law as to the validity of a status which was acquired in Poland."

 

            The learned judge cites the English case of Goodman's Trusts (18). In that case a Polish woman died at a time when she was domiciled in England, and her personalty was to be distributed in accordance with English law. There were no heirs nearer than the descendants of the deceased's brother. According to the law of England of that time, only legal descendants - as distinguished from natural descendants born out of wedlock - were entitled to inherit. A certain woman, a daughter of one of the brothers of the deceased, appeared and claimed a share of the estate. The claimant was born in Amsterdam, Holland, out of wedlock, but after her birth her parents married in Holland at a time when they were domiciled in that country. According to the law of Holland their marriage, celebrated at a later stage, operated to legitimate the daughter born before the marriage, while according to English municipal law, the later marriage could not operate to change the status of the claimant as an illegitimate child. The question therefore arose whether, for the purpose of the distribution of the estate, the claimant was to be regarded as the legal niece of the deceased, in accordance with the law of Holland, or as the illegitimate niece of the deceased, in accordance with the law of England. It was held that in order to determine the status of the claimant for purposes of the distribution of the estate, the law of Holland was to be applied, and not English law.

           

            Cotton, L.J. said, at p. 291 : -

           

            "In support of this decision it was urged that in an English Act of Parliament the nearest of kin must be taken to mean those who by the law of England are recognised as nephews and nieces, that is, as legitimate children of the intestate's deceased brothers. This is doubtless correct... But the question as to legitimacy is one of status, and in my opinion by the law of England questions of status depend on the law of the domicil."

           

And further at p. 292 : -

 

            "If, as in my opinion is the case, the question whether a person is legitimate depends on the law of the place where his parents were domiciled at his birth, that is, on his domicil of origin, I cannot understand on what principle, if he be by that law legitimate, he is not legitimate everywhere.''

           

James, L.J., in the same case, said at p. 296 : -

 

            "According to my view, the question as to what is the English law as to an English child is entirely irrelevant... But the question is: What is the rule which the English law adopts and applies to a non-English child ? This is a question of international comity and international law. According to that law as recognised, and that comity as practised, in all other civilised communities, the status of a person, his legitimacy or illegitimacy, is to be determined everywhere by the law of the country of his origin - the law under which he was born. It appears to me that it would require a great force of argument derived from legal principles, or great weight of authority clear and distinct, to justify us in holding that our country stands in this respect aloof in barbarous insularity from the rest of the civilized world ... the family relation, once duly constituted by the law of any civilised country, should be respected and acknowledged by every other member of the great community of nations. England has been for centuries a country of hospitality and commerce. It has opened its shores to thousands of political refugees and religious exiles, fleeing from their enemies and persecutors. It has opened its ports to merchants of the whole world, and has by wise laws induced and encouraged them to settle in our parts. But would it not be shocking if such a man, seeking a home in this country, with his family of legitimated children, should find that the English hospitality was as bad as the worst form of the persecution from which he had escaped, by destroying his family ties, by declaring that the relation of father and child no longer existed, that his rights and duties and powers as a father had ceased, that the child of his parental affection and fond pride, whom he had taught to love, honour, and obey him, for whom he had toiled and saved, was to be thenceforth, in contemplation of the law of his new country, a fatherless bastard ? Take the case of a foreigner resident abroad, with such a child. If that child were abducted from his guardianship and brought to this country, can anyone doubt that the Courts of this country would recognise his paternal right and guardianship, and order the child to be delivered to any person authorised by him ? But suppose, instead of sending, he were to come himself to this country in person" [and settle there] "would it be possible to hold that he would lose his right to the guardianship of the child in this country... ? Can it be posssible that a Dutch father, stepping on board a steamer at Rotterdam with his dear and lawful child, should on his arrival at the port of London find that the child has become a stranger ... ?"

 

            From the point of view of the facts, the case of Goodman's Trusts (18) merely lays down a principle similar to the provision contained in section 23 of our Succession Ordinance. According to that provision, if the law which governs the distribution of the estate directs that, in the absence of closer relatives, the estate is to be divided between the nephews of the deceased, and the question arises whether a particular claimant is a nephew of the deceased, that question must be answered in accordance with the law of the community to which the claimant belongs. In other words, it is the personal law of the claimant, and not the personal law of the deceased which is to be applied. In the case of Goodman's Trusts it was the Dutch law of the claimant and not the English law which applied to the estate.) The observations of the learned judge which I have cited from the case of Goodman's 'Trusts are merely the grounds which induced them to follow the principle stated. It may be that the provision of section 23 of the Succession Ordinance, according to which the personal law of the claimant is to be applied when we have to decide whether he belongs to a class of persons who are entitled to participate in the distribution of an estate. was enacted for the same reason. But that case in itself provides no solution to the problem before us, namely, whether in every case in which our law refers us to the religious law, we may not apply the principles of private international law - when that course is necessary in order to do justice between the par­ties. Let us assume that an estate, consisting of mulk property, is about to be distributed in accordance with foreign law, and that a nephew of the deceased claims a share of the estate as an heir. According to section 23 of the Succession Ordinance and the principle laid down in the case of Goodman's Trusts (18), the question whether the claimant is a nephew of the deceased must be determined, not in accordance with foreign law which applies to the estate, but according to the law which applies to the claimant. If the law which applies to the claimant is the religious law, then the question will arise whether the religious law must be applied subject or not subject to private international law.

 

            The difficulty here - as is pointed out by the learned judge in his judgment - is the existence of a conflict between secular law and religious law. The former is confined to matters arising within the borders of the State, or to nationals or residents of the State. It is for this reason that secular law recognises and applies other laws which govern the personal status of a man before he settled in the State or became a national of the State. The latter law knows no bounds or limits and applies to a person from his birth until his death in all matters affecting his personal status, without any reference to the place where, or the time in which, an occurrence may have taken place.

           

            The same problem may also arise in a case where the provision in section 23 of the Succession Ordinance is applied. In the case of Goodman's Trusts English private international law referred the court to the law of Holland, while here in this country it cannot be said that the religious law will refer the court to the foreign law under which the marriage which created the status of the plaintiff was celebrated.

           

            The learned judge was therefore correct in attempting to look for a solution in Articles 46 and 47 of the Palestine Order in Council. It has already been said by Grinzweig J. (Prof. Ginossar) in Burg v. Attorney-General (14): -

 

"In this connection it is appropriate to emphasize the word 'further' which appears in the opening portion of Article 47. In any event, Article 47 must not be interpreted as a provision standing alone. It must be read together with the earlier provision which leaves in force the law - including the whole of the Mejelle - as it existed in Palestine on November l, 1914. It seems to me, therefore, that Article 47 was not introduced in order to limit the scope of Article 46."

           

            Articles 46 and 47 of the Palestine Order in Council both deal with the jurisdiction of the civil courts of the country respecting the laws which they are to apply in judicial proceedings. It was laid down by the legislature in Article 46 that the English Common Law and the principles of equity must be applied where no solution can be found in the Ottoman Law - which it left in force - or in ordinances enacted or to be enacted by the Palestine legislature. Private international law contained within English Common Law must also be taken to be included. When the same legislature comes to deal with problems of personal status in Article 47, it refers the court to the personal law. Article 47 is general in its terms. It does not define what is meant by the personal law, and it draws no distinction between foreign nationals and Palestinian nationals or persons who are stateless. In regard to foreigners there is a later supplementary article, Article 64, which contains a specific provision that the personal law is the national law, that is the law of the nationality. The national law means the whole of that law, including private international law.

 

            In regard to litigants who are not foreign nationals, however, Article 47 remains without any supplementary article such as Article 64. It was only during a later period that the court held that the personal law (within the meaning of Article 47) of Palestinian nationals, or of persons who are stateless, was the religious law.

 

            I do not think that this is mere coincidence. When the legislature, in Article 64, applied to foreigners the law of their nationality, it knew that it was thereby also applying the private international law which is included within their national law. When, however, in Article 47, it applied the religious law to Palestinian nationals and persons who are stateless, it must be assumed that it knew that the religious law does not include the principles of private international law. The question that arises, therefore, is this: Did the legislature indeed intend to apply the religious law, and to exclude completely the application of the principles of private international law ? Had this been its intention, it is not clear why it did not choose the simpler and clearer method of laying down an unambiguous provision that in the case of foreign nationals the national law shall apply, and in the case of Palestine citizens or of persons who are stateless, the religious law shall apply.

 

            It seems to me that this was not its intention. In applying the religious law, the legislature did not intend to deny the application of the principles of private international law. The contrary is the case. It would appear from the manner in which Article 47 is drafted that the intention was to leave the door open for the application of English private international law until the problem should be resolved by Ordinances or regulations to be enacted or framed by the Palestine legislature, for this is the language used by the legislature in Article 47:

           

            "The Civil Courts shall further have jurisdiction ...in matters of personal status... Such jurisdiction shall be exercised in conformity with any law, Ordinances or regulations that may hereafter be applied or enacted and subject thereto according to the personal law applicable."

           

            It is interesting that the Article does not say "according to the religious law subject to any Ordinances etc. that may be applied", but says "...in conformity with any law, Ordinances or Regulations... and subject thereto according to the personal law..."

           

            If we remember that Article 47 is not intended to derogate from Article 46, what is the interpretation of the words "in conformity with any law that may hereafter be applied", in addition to the words "in conformity with any law which may hereafter be enacted"? "That may hereafter be applied" means the existing law, or the law the existence of which had already begun. Must it not be said that Article 46, which includes the principles of English private international law, is also a law, as other statutes in the future - "that may hereafter be applied" ? The result is that for so long as the legislature has not regulated, by an ordinance or law as provided in Article 47, the application of the religious law in a matter in which a foreign element exists, resort must be had to Article 46 (which also includes private international law), that may hereafter be applied.

 

I wish to cite here the remarks of Silberg J. in Cohen and Bousslik v. Attorney-General (9), which seem to me indirectly to support my point of view.

 

This is what he said at p. 19: -

 

            ''Yet, it is not only because of the different rules of evidence, but also because of the different approach to the substance of the case that the judgment of the civil court will not always be the same as that of the religious court, though both purport to deal with the matter according to Jewish law. One of the reasons for this is a different attitude towards the accepted principles of private international law, which require the recognition of the validity of legal acts done in the past, outside the territory of the State and under a foreign law, such as the national law of the parties or the law of their place of residence, and similar matters to be taken into consideration. The religious court regards itself as completely free from these "cramping" rules ; it extends the application of the religious law - a priori and unrestrictedly – to acts performed in the past by foreign nationals outside the boundaries of the State, and it is permitted so to do (see Neussihin v. Neussihin (5)); the civil court, on the other hand will, to some extent at least, take those rules into account, even if it deals with the matter, in principle, according to Jewish law."

 

            It seems to me, therefore, that when the learned judge was faced with the problem whether the status of the parties as a married couple continued to exist, or whether it was destroyed by the application of the religious law, he was entitled - relying upon Article 46 - to hold, in accordance with private international law, that the bonds of marriage created according to Polish law continued to exist, at least for the purpose of resolving the dispute before him, since private international law refers the problem in the present case to Polish law.

           

            Neither of the parties disputed the proposition that if the validity of their marriage was not to be determined according to the religious law. English private international law applied the law of the matrimonial domicil. that is to say. Polish law, and I see no reason to continue the argument on this point.

           

            It will no doubt be asked what the position would be were the situation reversed, that is to say, if the parties had celebrated their marriage in the country from which they emigrated by religious rites alone, such marriage being regarded as invalid by the law of that country ? The answer may possibly be that since they chose to be married in accordance with religious law, which is a universal law, a court in this country would not be obliged to invalidate such a marriage, when considering an ancillary claim and the question arose incidentally whether the parties were married. It may be that in order to validate their status, we would have to apply the religious law. The problem is by no means a simple one, but there is no need to decide this point in the present case.

           

            In short, it is my opinion that the appellant has not succeeded in this case in rebutting the presumption standing against him, and there I could have let the matter rest.

           

            Out of respect, however, for the detailed and well-reasoned judgment of the learned judge, and the comprehensive arguments addressed to us by counsel for the appellant, I have thought it proper to deal with the question of the application of the principles of private international law.

           

            Finally, counsel for the appellant submitted that the provisions of Polish law imposing upon the husband the duty of supporting his wife had not been proved.

           

            It seems to me that this submission is unfounded. Even were the religious law to apply to the whole of the case, as counsel submitted, it would be for him to establish those features which would relieve the appellant of the obligation of maintenance, since the respondent has proved that she was deserted by the appellant. If Polish law applies to the question of the validity of the marriage, then the religious law again applies - as was held by the learned judge - to the question whether in the circumstances that were established by the respondent, the appellant is liable for her maintenance. Since the parties settled in this country and became subject to religious law, the question of whether the husband was liable for the maintenance of his wife whom he deserted should be decided by the religious law which applied to him at the time of the desertion.

 

            I am accordingy of the opinion that the appeal must be dismissed, and the judgment of the court below confirmed.

           

AGRANAT J. I agree that the appeal must be dismissed for the reason mentioned in the second part of the judgment read by my colleague Olshan D.P.

 

            The subject of the appeal is a claim by the appellant for the return of certain movable property in the possession of the respondent or payment of damages in the event of the non-return of this property, and a counter-claim by the respondent against the appellant for the payment of maintenance. It is clear that the determination of both these claims depends upon the reply to a preliminary - to use an expression of my colleague Witkon J. - incidental question, namely, the question whether the civil marriage contracted by the parties outside this country is valid. The main facts, as found in the interesting and elaborate judgment of Cohen J. in the court below, are as follows: -

           

a)   The civil marriage of the parties - and no other marriage ceremony was celebrated - was contracted in Poland on April 2, 1948.

 

b)   The parties were at that time Polish citizens, and Poland was at that time their domicil. They also made Poland their domicil after the marriage.

 

c)   The parties immigrated to Israel in 1950.

 

d)  At the time of the filing of the claim and counter-claim the parties were stateless.

 

It must be pointed out that by virtue of section 2 (b) (2) of the Law of Nationality, 1952, which came into force after the judgment of the District Court in the present case had been delivered, the parties should have been regarded at the time of the hearing of the appeal as if they had been Israel citizens at the time when the claim was filed. This submission, however, was not argued before us, and counsel for both parties proceeded upon the assumption that their clients were at that time stateless persons. Since this is so, I shall proceed upon the same assumption, although my final conclusion would have been no different even had I regarded the parties as Israel citizens at the time when the claim was brought.

 

            What law are we to apply in deciding whether the Polish marriage is valid or not ? It is clear that we must first consider the concluding portions of Article 47 of the Palestine Order in Council, which provides that the law to be applied is : ''the personal law applicable". Since, however, the parties were, at all relevant times, foreigners - for a person who has no nationality is considered a foreigner within the meaning of Article 59 of the Order in Council - we are obliged to read the provision I have mentioned together with that contained in Article 64 (ii) of the Order in Council, which provides that "The personal law shall be the law of the nationality of the foreigner concerned unless that law imports the law of his domicil. . .. ." It has, however, been held by our courts that the personal law of stateless Jews is Jewish law (see Freyberger's case (1), Cohen's case (2), and Levin's case (7)). I shall deal later with the question whether the basis of this ruling is that Jewish law is the religious law of stateless Jews - and is therefore their personal law - or whether the basis is that Jewish law is their "national" law.

 

            Since the personal law of the parties at the time that their civil marriage was contracted was Polish law, and their personal law at the time when the claim was filed - as we assume - was Jewish law, the problem before us is confined at this stage to the question which date is to be taken into consideration, in order to decide which of the two laws mentioned above must be applied.

 

            Nothing at all, however, in regard to this point, is mentioned either in the provision contained in Article 64(ii), or in Article 47. Since this is so, we have no option but to seek the reply to our question in Article 46 of the Order in Council, that is to say, in the common law - including the principles of private international law which are part of it. In this respect I differ from the opinion of my colleague Olshan D.P. that it is possible to find assistance in that portion of Article 47 which provides : ''... such jurisdiction shall be exercised in conformity with any law, Ordinances, or Regulations that may hereafter be applied or enacted... ''. That is to say, I do not think that these words - and in particular the expression "be applied" - enable us to apply the principles of the common law by virtue of Article 46. It seems to me that the intention reflected both by the expression "applied" and by the expression "enacted" - particularly in the light of the word "hereafter" which precedes both those expressions - relates to laws to be applied or enacted in the future by the legislature itself, as distinguished from existing laws applied by the court. The two words mentioned give a hint in fact of two different systems of legislation which the English legislature intended to apply to Palestine ; the one - to which the word "enacted" applied - is direct legislation for the purposes of the country ; the other - to which the word "applied" refers - is the application of existing English statutes, such as the application of the Copyright Act, 1911, by means of the Order in Council of 1924 (Drayton - Vol. III, p. 2499) ; also the Emergency Powers Defence Act, 1939, which was applied to Palestine by virtue of the Order in Council, relating to Emergency Powers (Defence of the Colonies), 1939, (Official Gazette 1939, Supplement 2, pp. 649, 652, 656), and laws similar to these.

 

            On one point, however, there was unanimity of opinion among the three judges who sat in Bichovski v. Bichovski (6), that is to say, in regard to the point that until that time no "law, Ordinances or Regulations" relating to marriage, save those provisions contained in the Order in Council itself, had been applied or enacted (pp. 246-9, 251 ibid.). It is true that since the establishment of the State, the Women's Equal Rights Law, 1951, and the Rabbinical Court's Jurisdiction (Marriage and Divorce) Law, 1953, have been enacted, but these two statutes do not deal directly with the problem with which we are concerned. The words "the general law applicable" in Article 47 remain, therefore, the decisive words. As I have intimated, this expression must be interpreted - in order to answer the question what is the critical point of time in regard to the application of the personal law - in accordance with the provisions of Article 46. This is so, however, only because of the well-established principle in our jurisprudence that where there exists a lacuna in the local law, the omission is to be filled by relying upon Article 46, that is to say, by applying the English Common Law. And the English Common Law means that law including the principles of private international law which are a part of it. It is clear that we must apply those principles, for the operative facts constituting the subject-matter of this case include a foreign element, namely, that the parties contracted a civil marriage in Poland, at a time when they were nationals of that country .

 

            As is well known, under the common law matters of personal status are to be determined in England according to the law of the domicil. The law of the domicil, however, is also a man's personal law, no less than his national or religious law. In Salvesen v. Administrator of Austrian Property (19), Lord Phillimore said, at p. 670 : -

           

"I have used the expression 'the law which determines the personal status' because there are countries which would refer to nationality rather than to domicil ; but the principle is the same."

           

            In his article "The Recognition of Polygamous Marriages under English Law" (48 L.Q.R. 341), W. E. Beckett writes, at p. 352 :-

           

"This expression is used as meaning that law which is applied to determine questions of status - it is, under English Private International Law, the law of the person's domicil….".

           

            We are thus able to determine the critical time for deciding as to the personal law which applies in the case before us by comparison with the principle according to which the law of the domicil would be applied to such a case in England. If, according to English pri­vate international law, the law of the domicil at the time of the marriage is to be applied, we too shall apply the personal law which applied to them at that time, and if in England the law of the domicil at the time of the filing of the action is to be applied, we too shall apply the personal law of the parties at that date.

           

            It is true that a distinction is drawn in England between the question whether the marriage is valid from the point of view of its form, and the question of its essential validity. In regard to the first question, the English courts apply the lex loci celebrationis, while the second question is determined by them according to the lex domicilii.

           

            The question before us, namely, whether the civil marriage is valid, is - according to the prevailing view in England - a question of the validity of the marriage from the point of view of its form. In this respect however, we cannot rely upon the English principle which applies the law of the place where the marriage was celebrated, since the notion of the lex loci celebrationis must not be confused with the notion of the personal law - though there will sometimes be no real difference, whichever of these two laws is applied, as far as the final result is concerned. In regard to the distinction between the two conceptions referred to, see the remarks of Martin Wolf in his book on private international law, 11th edition, pp. 325-327). It seems to me, therefore, that I shall not go far wrong if I hold that we should apply those rules of private international law which would be applied by the English courts to the question of the essential validity of the marriage between the parties, or - to be more precise - whether the marriage is valid from the point of view of the capacity of the parties to contract a marriage.

 

            Let me therefore define the question before us in these terms : when the Courts referred to apply the law of the domicile in order to determine whether the marriage is valid from the point of view discussed above, which point of time do they consider before deciding the law of the domicil which applies in the particular case where the parties have since changed their domicil ? Before I reply to this question, I wish to clarify more fully my approach to the problem before us.

           

            I do not wish to be understood as holding that we have to decide whether the marriage is valid - from the point of view of form - according to the law applicable in England ; the question before us is not whether we must choose in this case between the personal law of the parties and the law of the place where the marriage was celebrated, and what English law would lay down in such a situation. The problem which arises is more restricted. It is well recognised that our law directs us to turn to the personal law of the parties in order to decide whether a civil marriage celebrated by the parties is valid - from all points of view. The only question which arises is which personal law is to be preferred and applied - the personal law of the parties at the time of the celebration of the marriage, or their personal law at the date of the filing of the claim. It is only for the purpose of determining the point of time - and for this purpose alone - that we turn, by way of analogy, to English private international law, since that law also refers us to the personal law in matters of status and marriage generally, save that in regard to the question of the validity of a marriage from the point of view of its form, English law, abandoning its general approach, applies the law of the place where the marriage was celebrated. As was said by Lord Greene in Baindail's case (17), at p. 345: -

 

"The proposition would not be disputed that in general the status of a person depends upon his personal law, which is the law of his domicil."

 

            The very basis of the application of the principle of the domicil or nationality of a person is the idea that questions of status are the concern of the country in which his life is centred, or the concern of the people to which he belongs (see Wolf, ibid, p. 103). This was emphasized by Pearce J. in Pugh v. Pugh (20), where he said, at p. 686 : -

           

            "It must be remembered that personal status and capacity to marry are considered to be the concern of the country of domicil."

           

            To sum up, for the purpose of furnishing the reply to the narrow question stated above, we draw, in our case, on the analogy of the general approach of English law in applying the personal law to matters of marriage.

           

            In this regard it is a rule of English private international law that when dealing with the question of the essential validity of a marriage, the law to be applied is the law of the domicil of the parties at the time of the marriage. This rule will at least apply where the domicil of both husband and wife prior to the marriage was the same. There is ample authority on this point, and I would first refer to the authorities collected by Pearce J. in Pugh's case (20), such as:

           

(a) the dictum of Lord Campbell in Brook v. Brook (21) that : -

 

"...The essentials of the contract depend upon the lex domicilii, the law of the country in which the parties are domiciled at the time of the marriage, and in which the matrimonial residence is contemplated" (ibid. at p. 684);

 

(b) the dictum of Lord St. Leonards in the same case that : -

 

    "... a marriage contracted by the subjects of one country, in which they are domiciled, in another country, is not to be held valid, if by contracting it, the laws of their own country are violated" (ibid. at p. 685) ;

 

(c) the dicta of Dr. Lushington in Conway v. Beazley (23) that:-

 

".... . the lex loci contractus as to marriage will not prevail when either of the contracting parties is under a legal incapacity by the law of the domicil ; and therefore a second marriage, had in Scotland on a Scotch divorce..... from an English marriage between parties domiciled in England at the times of such marriages and divorce, is null" (ibid at p. 687).

 

(d) In the same way, in the case of in re Paine (22), Bennett J. quotes with full approval, the same principle as stated in Hailsham, Vol. 6, p. 286, as follows: -

 

".... . the marriage must be a good and legal marriage according to the law of domicil of both contracting parties at the time of the marriage ..." ;

 

(e) and finally, are the dicta of Lord Greene in De Reneville v. De Reneville (24).

 

Applying this principle to our case, I reach the conclusion by analogy that the personal law according to which we must consider the validity of the civil marriage contracted between the parties in 1948 is their personal law at that time, that is to say - in view of what is provided by Article 64 (ii) of the Palestine Order in Council - the law of Poland. Since it is not disputed that according to that law civil marriages are valid from the point of view of their form, it follows that they must be regarded as valid in all places and at all times, for so long as the bond of marriage is not dissolved in a lawful manner or by the death of one of the parties. As was said by Scott J, in the case of Luck's Settlement Trusts (25) :-

 

"Status is in every case the creature of substantive law : it is not created by contract, although it may arise out of contract, as in the case of marriage, where the contract serves as the occasion for the law of the country of the husband's domicil to fix the married status of the parties to the contract. Perhaps the most far-reaching characteristic of status,... is its quality of universality, both in the general jurisprudence of other nations and in Private International Law as applied by English Courts. The general principle of status is that, when created by the law of one country, it is or ought to be judicially recognised as being the case everywhere, all the world over" (ibid, at pp. 890/891),

 

            Importance must also be attached to the remarks of Lord Greene in Baindail's case (17) at p. 345 :-

           

            "By the law of the appellant's domicil at the time of his Hindu marriage he unquestionably acquired the status of a married man according to Hindu law ; he was married for all the purposes of Hindu law, and he had imposed upon him the rights and obligations which that status confers under that law. That status he never lost. Nothing that happened afterwards, save the dissolution of the marriage if it be possible according to Hindu law, could deprive him of the status of a married man which he acquired under Hindu law at the time of his Hindu marriage..."

 

It follows that once the parties acquired the status of married persons in accordance with Polish law in 1948, that status remains in all places and at all times unless it be determined in some lawful manner, or by the death of one of the parties. Since that is so, no change in the personal law of the parties thereafter can deprive them of their status as married persons.

 

Before proceeding to the next question, I must make two comments. My first comment is this. There is room for the opinion - though I make no finding on the point - that the question whether the manner of celebrating the marriage is one of "form" or one of "essential validity" must be decided - since this is a question of "classification" - in accordance with the lex fori, that is to say, in accordance with the personal law of the parties at the time of the filing of the main claim and counter-claim, that is, Jewish law; and that according to that law, the failure to celebrate the marriage in accordance with religious rites is a matter that goes to the root of the marriage and is not merely a matter of form - particularly if the learned judge was correct in his conclusion that there is no basis, in the case before us, on the facts, for applying the presumption that "a man does not indulge in sexual intercourse for the purpose of sin." Martin Wolff shows in his book (ibid. at p. 343), for example, that according to the outlook of the Catholic and Orthodox Churches, the laws of one or other of which constitute the personal law applied in matters of marriage in various countries, the obligation to celebrate a marriage by a religious ceremony is not, in fact, merely a matter of form, but is a matter which goes to the root of the institution of marriage. (See also the example cited by Dicey, 6th edition, p. 69, paragraph (d).)

 

            As I have said, I myself do not hold that our matter is one dealing in fact with a question of "essential validity", and not with a question of form. Even if this case is to be regarded as dealing with a question of "essential validity" - which is a possible view - I am strengthened in my opinion that we should draw on the analogy of the English rule, according to which the validity of a marriage, from the point of view of its essential validity, should be determined by the personal law - that is to say, the law of the domicil of the parties at the time of the marriage; in other words, that in order to determine whether or not the civil marriage contracted by the parties in Poland in 1948 is valid or not, we must decide according to the personal law which applied to them at that time, namely, Polish law. Put differently, after paying due regard to the particular conception of the local law which governs matters of marriage - in this case, the Jewish law, which holds that the form in which persons contract a marriage is a matter affecting the very institution of marriage itself - even then we are directed, in accordance with the rule of private international law referred to, to prefer the provisions of the personal law of the parties at the time of their marriage, that is, the provisions of Polish law.

           

            My second comment is this. The rule according to which the law to be applied to matters of personal status is the personal law of the parties, is concerned with those cases where that law is the national law of the parties, for it is the national law – including the principles of private international law - which is to be applied (see the case of the Miller Estate (11). There is no doubt that in most countries the national law of the parties at the time of the marriage - particularly if the question that arises relates to the validity in form - will refer us to the lex loci celebrationis, and it will then in any case be proper to apply that law to the particular matter. It is not in all countries, however, that the rules of private international law which there apply render it imperative to refer to the lex loci celibrationis when the question referred to arises in the courts. In other words, there is the option in some countries of preferring the internal national law over the lex loci celebrationis for the purpose of validating a marriage contracted between the parties (see Wolf, ibid., pp. 340-341). In our present case - as I shall stress later - this whole problem does not arise, since the lex loci celebrationis and the national law of the parties at the time of the marriage are identical. I deem it proper, however, in order to make my own position clear, to point to the possibility of a divergence in some countries from the binding character of the rule which applies the lex loci celebrationis to the question here discussed, since a case may come before us at a future date in which the two are not the same, and even lead to different consequences in regard to the validity of the marriage.

 

            Having held that the parties were and are married, the next question to be considered is their rights and obligations for the purposes of the claim and counter-claim. It is clear that the reply to this question demands a reply to a prior question, namely, which law governs each of the two claims. To this question there is no one comprehensive reply - it is necessary to consider each of the two claims separately.

           

(1) The main claim. It is clear beyond all doubt that since, according to the statement of claim, the operative facts which constitute the cause of action in this claim all took place in Israel, the claim must be dealt with in accordance with the local law, and after we have replied to the question dealing with the validity of the marriage, no question of private international law will again arise. It was not submitted to us by counsel for the appellant that the provisions of the Mejelle should be applied in this matter, and it is, therefore, the provisions of the Civil Wrongs Ordinance that will apply. That being the case, the provisions of section 9(1) of that Ordinance - as was held by the learned judge - prevent the appellant from succeeding in a claim for damages based upon an act committed by his wife during the period of the marriage. It follows that the judge correctly dismissed the main claim.

 

(2) The counter-claim. What is the law which governs this claim? The reply of the learned judge was that it is Jewish law, and this is what he said in his judgment: -

 

            "As far as the counter-claim is concerned, that is, the claim for maintenance, it is not disputed that the defendant had no cause of action during the Polish period, and that if a cause of action exists it relates to the Israel period alone. Again, it is not disputed that for the purposes of the Israel period it is Jewish law which applies and the question is whether there is any reason why I should not recognise the Polish marriage for the purposes of a claim for maintenance under Jewish law... The award of maintenance to a wife in a proper case - a remedy recognised by Jewish law - is in no sense inappropriate in regard to the marriage contracted by the parties in Poland. I see no reason why Jewish law should not be consulted as to whether it would - according to its own provisions - recognise the remedy of maintenance to this defendant in the circumstances described in the counter-claim. The court need not concern itself with investigating the validity of that marriage, since such validity is postulated by the general law of the land, which determines this as a fact, having regard to Polish law, and by applying private international law. Jewish law is not required to give effect to a contract created by Polish law; what is required of it is to grant one of its remedies - if this be a suitable case - to the holder of a particular personal status. In other words, the only question addressed to Jewish law is this: What would you award to a married woman in such and such circumstances ? There is, therefore, no reason why I should not recognise the marriage between the parties for the purposes of the counter-claim for maintenance."

 

            Mr. Sheps, counsel for the appellant, made a threefold criticism of this part of the judgment: -

           

            (a) If maintenance is to be awarded according to Jewish law, then, in the light of the facts described in the Statement of Claim - including the fact that the parties celebrated their marriage by civil rites alone - the respondent cannot succeed in her counter-claim, since, according to Jewish law, maintenance cannot be awarded unless there exists a marriage celebrated according to religious rites.

 

(b) On the other hand, if the matter is to be determined by Polish law, such law has not been proved - neither its own provisions, nor the rules of its private international law.

 

(c) At the most, resort may be had to the principle of "the presumption of the identity of laws", for the purpose of determining the provisions of Polish law; but if this be so. then it follows that the provisions of Jewish law should be applied, which would not grant the counter-claim in view of the arguments set forth in sub-paragraph (a) above.

 

            If I have understood these criticisms correctly, they are based in the main upon the submission that Jewish law should not be grafted upon Polish law in the circumstances of this case. In other words, when Jewish law is asked which law it would apply to facts such as those alleged in the claim and established, it will unwillingy reply : "One of these facts is that the respondent is not married to the appellant according to religious rites, and to a woman such as this I shall not, therefore, award maintenance whatever the circumstances may be - whether she married the appellant according to civil rites or not, whether Polish Law - which recognises such a marriage - applies in Israel or not." Were this indeed the correct approach to the problem with which we are concerned, I would have thought there was substance in the criticism referred to - presuming that the judge was right in his conclusion that there is no basis in this case for applying the presumption that "a man does not indulge in sexual intercourse for the purpose of sin." In my view, however, that general approach is wrong, and I have therefore reached the same conclusion as was arrived at by the learned judge in regard to the obligation of the appellant to pay the maintenance awarded against him, although I have reached that conclusion by a slightly different route.

           

            My opinion is that it is imperative to distinguish between the question whether the wife has a right to maintenance at all, and the question of the amount of the maintenance to which she is entitled. The first question is one of a substantive right which is claimed by the wife, while the second question is one of the remedy which she seeks.

           

            The right. As far as the first question is concerned, I am of opinion that it too should be decided in accordance with Polish law. It is this law which conferred upon the parties the status of married persons. And as a result of that status, it conferred upon them certain rights and obligations. These rights and obligations continue to exist for so long as the status of marriage is preserved. For this purpose I do no more than repeat what I said in Halo v. Halo (12). at p. 204, that is to say: -

           

            "When we say that a person enjoys a particular status, whether it is the status of a married person, or the status of a citizen of the State, or a member of a religious community, it is understood that, by reason of such status alone, the law confers upon such a person certain rights, or imposes upon him certain obligations; and the good of the community (in the case of marriage) or of the group (in the case of citizenship or membership of a community) requires that the rights and obligations in question, shall remain in force as against the whole world. In other words, they are rights and obligations in rem, and this position remains for so long as that person continues to hold that particular status." (See also the two authorities cited in that judgment (ibid.).)

 

            Perhaps it would not be superfluous to repeat in addition the observations of Lord Greene in Baindail's case (17), which are cited above, that is to say, that when the appellant in that case acquired the status of a married person in accordance with Hindu law: -

           

            "...he had imposed upon the rights and obligations which that status confers under that law. That status" - and I add: with all the rights and obligations which flow from it – "he never lost. Nothing that happened afterwards, save the dissolution of the marriage ...could deprive him of the status of a married man" - and again I add: with all the rights and obligations which flowed from it - "which he acquired under Hindu law at the time of his Hindu marriage...".

           

            And, in conclusion, I rely upon the statements by Cheshire (4th edition, p. 659), which were approved by Pilcher, J. in Araujo v. Becker (26), that: -

           

"Not only the existence, but also the extent, of an obligation, whether it springs from a breach of contract or the commission of a wrong" or - so I would add - from a status acquired by a litigant - "must be determined by the system of law from which it derives its source."

           

            It follows from all I have said that the nature of the rights and obligations which flow from the source of the status of marriage acquired by the parties is to be determined by that law which conferred such status upon them, for were this not so, the expression 'status' would lose all its content. It follows that the right of the respondent to claim maintenance for herself from her husband must be decided according to Polish law, since such right - if it exists - has its source in the status of marriage which was created by that law.

           

            The rule, therefore, that the status of marriage imposes upon the husband the duty of maintaining his wife whom he has deserted, is so universal in our time, that the wife who applies to court and who has acquired her status through her marriage in accordance with a foreign law, should not be required to prove the provisions of that foreign law which confers that right upon her. Even were it not so, however, it is proper to assume, in a case such as this, that the foreign law is the same as local law. In other words, it is proper to assume that Polish law - in the same way as Jewish law - recognises the right of the wife to be maintained by her husband who has deserted her. According to this approach - that is to say, that the substantive right of the wife to maintenance is accorded to her under Polish law - in turning to Jewish law we do not ask that law whether it would, according to its provisions, afford the remedy of maintenance to this respondent in the circumstances set forth in the counter-claim, but we ask it whether, assuming that the parties were married according to Jewish law, it would oblige the husband to maintain his wife, the facts set forth in the counterclaim having been proved. If the reply is in the affirmative, then it follows that we must deduce that Polish law, too, would furnish the same reply. Since it is not disputed that Jewish law does indeed entitle the wife, who lives apart from her husband through no fault of her own, to maintenance, it must be held that Polish law, too, would grant her this right. I must only add that no question arises before us as to the application of the principles of private international law which are applied by the Polish court, and for that reason there is no need to prove those provisions, since at the time that the parties acquired the status of married persons, they were citizens of that country, it was the country of their domicil, and they also designated it as the country of their residence after the marriage.

 

            The amount of maintenance. I have reached the conclusion - though not without some difficulty - that this is a question of "remedy", and not one of "a substantive right", and that for this reason it must be determined in accordance with local law. It seems to me that we are concerned here with the giving of effect to a right to maintenance, and not with the extent of that right. I have not, indeed, found any direct authority laying down the principle as I have expressed it, nor have I found any authority against this proposition. I think, however, that it is possible to resort in this regard, by way of analogy, to the English rule which distinguishes between the right to recover damages for breach of contract - the existence, and also the extent, of which must be determined by the "proper law" under which the right was created - and the measure of damages which must be awarded as a result of such breach - which it is proper to determine in accordance with local law, the law of the country in which the court sits, to which the claim for damages has been brought. (See Cheshire, 4th edition, p. 659, and the judgment in D'Almeida's case (26).) Indeed, the expression "extent of the right or obligation" must not be confused with the expression "measure of damages". The first expression relates to the question of the degree of damage in respect of which compensation must be paid or the circumstances in which the damage must be regarded as being the direct consequence of the breach in question, while the second expression relates to the question of the sum which will constitute full satisfaction for the damage which was caused or the payment of which will be regarded as restitutio in integrum. If we apply this test to the matter with which we are concerned, then the extent of the right to recover - or the duty to pay - the maintenance relates to the question in which circumstances such rights or obligations exist - for example, whether the right or obligation is to be enforced when the reason for the husband's and wife's living apart is due to the wife's fault - while the amount of maintenance which the husband is obliged to pay to his wife relates to the question in which way effect is to be given to such rights or obligations.

 

            I am strengthened in my opinion by the following examples:

           

(a) There was a time in England when it was impossible for a wife, whose husband had deserted her and did not maintain her, to recover maintenance by bringing a monetary claim against him in a civil court. Her remedy was - and this remedy is still available today - to buy her necessaries from a merchant, and to debit her husband's account with that merchant with their price. The merchant, and he alone, was then entitled to sue the husband in a civil court for the price of the goods which he sold to the wife (see Rosenbaum v. Rosenbaum (13), at p. 1050).

 

(b) In the judgment last referred to, I attempted to show that all those remedies which are afforded by English law to a wife whose husband has deserted her and refuses to maintain her, for the implementation of the substantive right to recover maintenance from him, may be classified - where each such remedy relates to that substantive right - into one general category called "alimony". I also pointed out in that case that when a civil court in England awards alimony to a wife, it generally resorts to the practice - which was indeed no more than a practice - according to which the ecclesiastical courts in England used to award alimony, namely, by obliging the husband to pay an "ethical" allowance which did not exceed a third of the husband's income - where the matter related to his obligations to pay such an allowance on a fixed basis - or a fifth of his income - when the matter related to the payment of an ethical allowance for the period during which the main claim was pending, where such claim was based upon a cause of action constituting a matrimonial offence (ibid., pp. 1053, 1055). In resorting, however, to the practice referred to - and I emphasize this point - the civil courts of England merely act in accordance with a statutory provision - which has existed since 1857 - under which it is clearly laid down that the courts shall afford a remedy in accordance with the principles which used to be applied by the ecclesiastical courts in such matters. When, however, that same court, in the same case with which it is dealing, recognises the existence of the actual substantive right of the wife to recover maintenance in the circumstances referred to, it resorts to the principles rooted in the common law which take precedence over the practice referred to. (See the remarks of Duke J. in Dean v. Dean (27), at pp. 174 and 176.)

 

(c) And finally, in Levin's case (10), at p. 936, it was held by this court - after it recognised, relying upon Jewish law, the right of the respondent's wife to recover maintenance from her husband, the appellant - that the question of the amount of maintenance must be considered "in the light of the rule that the decision as to the amount of maintenance is within the discretion of the judge of first instance." In approving this rule the court indeed did no more than follow a previous decision given by the Supreme Court in the time of the Mandate.

 

            These three examples lead me to the clear conclusion that everything relating to the determination of the amount of maintenance is nothing more than a matter of the procedure for giving effect to the substantive right of a married woman to recover maintenance from her husband, and the obligation of the husband to pay such maintenance; in other words, that this is a matter of remedy and nothing more.

           

            If this conclusion is correct, then it is the lex fori which applies in connection with the fixing of the amount of maintenance - as distinguished from the obligation to pay such maintenance - and not Polish law. I shall be content in this connection to cite the dicta of Scrutton L.J., which he made in the case of The Colorado (28), at p. 108: -

           

"The nature of the right may have to be determined by some other law, but the nature of the remedy which enforces the right is a matter for the law of the tribunal which is asked to enforce the right."

           

            In applying the lex fori in order to determine that question of the amount of maintenance - whether the expression quoted relates to Jewish law, or to all those rules applied by the civil courts of this country in fixing the amount of maintenance which it obliges the husband to pay - including the tests laid down in Levin's case (10), and which were applied by the learned judge in the matter before us, I see no grounds - again applying a rule of the lex fori - for interfering with the discretion of the judge in fixing the maintenance in question at the sum which he laid down.

 

            From all this it follows that the appeal - also to the extent that it relates to the counter-claim - is without substance, and that the appeal as a whole, therefore, should be dismissed.

           

            I could have concluded my judgment at this point were it not that I feel bound to consider one basic question presented to us by counsel for the appellant in his attempt to prevent us from deciding that the law which determines the validity of the marriage of the parties is the foreign law which applied to them at the time that they contracted their civil marriage outside the country. Just imagine, says Mr. Sheps, that if that proposition is accepted, parties who celebrated their marriage according to Jewish law outside this country, at a time when they were citizens of a state which required the celebration of a marriage by civil rites alone, will not be regarded by the civil courts of Israel as married persons. And let there be no mistake about it, Mr. Sheps added with emphasis, that there are a large number of cases of Jews who celebrated their marriage by Jewish law alone, before their immigration to Israel, and surely the marriages of these Jews in such cases should be regarded as valid.

           

            In short, as Mr. Sheps argued, that very principle of "a healthy policy" which was stressed by the learned judge in upholding the validity of the civil marriage of the parties, obliges us to lay down a rule other than that which we have accepted, which is calculated to create a serious obstacle for Jews who belong to the category mentioned, and whose number is greater than those who celebrated their marriages by a civil ceremony alone before they came to Israel.

           

            The question raised by counsel for the appellant is undoubtedly a serious question which demands a well thought out reply. It is for this reason that I do not propose to run away from my duty upon the usual ground that when this question comes before us directly, we shall consider it and give our decision. The reply which should be given to this question may also be a factor which should properly be considered in laying down the rule according to which the validity or invalidity of a marriage such as that celebrated between the parties in this case should be determined. On the other hand, since the question referred to only arises indirectly, I do not intend to deal with it at any length, but shall content myself with pointing to the general line of thought which has led me to the conclusion which I have reached.

 

            My conclusion is as follows : I incline to the view that even a civil court in Israel, when faced with the question of the validity of a marriage celebrated between Jews in another country by Jewish law alone, will be found to recognise such marriage, even if the law of that country of which the parties were citizens at the time of such marriage only recognises a marriage celebrated in civil form.

           

            I have already dealt, in another part of my judgment, with the rule - which was already laid down in the time of the Mandate - that the personal law of stateless Jews is Jewish law. It is true that there is no mention of such a rule in the Palestine Order in Council itself, and it is possible indeed to hold another view, namely, that the personal law of such Jews should be deemed to be the law of their last nationality (in regard to this possible approach, see the remarks of Wolff, ibid, p. 103, note l). It is not my intention, however, as I have already said, to depart from the rule referred to, more particularly as in my opinion it is sound. I do wish, however, to express my disagreement with the approach which was the basis at that time for the acceptance of that rule - namely that Jewish law is the religious law of such Jews, and that it is only for this reason that it must be regarded as their personal law (in connection with this view, see Freyberger's case (1)). Such a conception of the matter appears to me to be fundamentally wrong, since it disregards the historical development of the Jewish people throughout the generations, and also because this conception is artificial and unrealistic, since it results in compelling unbelieving Jews - and there are such Jews - to obey Jewish law only because it is their "religious law" as it were - an impossible situation. In my view, the true basis of the rule referred to is that Jewish law is the national law of stateless Jews, no less than it is the national law, in matters of personal status, of Jewish who are citizens of Israel. I go further, however, and say that when a question such as that posed by counsel for the appellant arises before an Israel court, that court will certainly be entitled - for the limited purpose of recognising the validity of a marriage celebrated outside the country by Jewish rites alone - to regard Jewish law as the national law of the parties - that is to say, within the meaning of Article 64 (ii) above - even if the parties, at the time of the marriage, were citizens of a foreign state which does not recognise such marriages. I shall clarify my view.

 

            It is almost superfluous to explain today - what must now be plain to all - that the Jews, even after they were exiled from their country, never became, in their own eyes, a religious sect. According to their own conceptions, they never ceased to be a nation together with the other nations of the world. Their absence from their own country, to which its sons continued to be faithful, was temporary, and carried with it, through all its wanderings, and during all periods of its exile, that most valuable treasure - its culture, its and West Library, p. 69), said that this was:-

           

            During the long period, however, in which the Jews were compelled, in the lands of their dispersion, to confine themselves within the Ghetto walls, Jewish law soon assumed to a growing degree a religious form. But it never ceased, for this reason, to be the national law of the Jews, even after a breach had been made in the walls of the Ghetto and the Jews entered the world outside those walls. And this is also true of those Jews who, having "tasted enlightenment" and having acquired civil and political rights in the countries in which they lived, began to regard some of the provisions of Jewish law, and perhaps many of those provisions, as foreign to their spirit. In speaking of the place of the "Shulhan Aruh" in the life of the Jewish people, Ahad Ha'am, in his essay "Ancestor Worship" (Essays, Ahad Ha-Am, translated and edited by Leon Simon, East and West Library, p. 69), said that this was:-

           

            "The book closest to the spirit of our people having regard to its situation and needs during those generations which accepted it for themselves and their descendants. And if we declare 'that this is not our law', then our declaration will be untrue, for this is indeed our law in the form that it necessarily assumed at the end of the Middle Ages, just as the Talmud was our law in the form that it assumed at the end of an earlier period, and as the Bible was our law in the form that it assumed when the people was still living a national existence in its own country ; these three together are but three different milestones along the road of the development of one entity - the spirit of the Jewish people - in accordance with its position and needs during different periods."

 

And in another essay (The Law from Zion) he wrote :-

 

            "Only by the complete atrophy of his feeling for his people can a Jew be so 'emancipated' as to be able to regard all those things that have been sacred to the people from time immemorial with the indifference and detachment of an entire stranger, who may accept or reject them, may treat them with reverence or contempt, on the strength of a purely intellectual assessment of their objective worth. A Jew who has not yet suffered that kind of atrophy cannot rid himself of his attachment to his national past and all it held sacred, even though he may have become a thoroughgoing sceptic in matters of religion ; and the only difference between him and the religious Jew is that he says 'I feel' where the other says

'I believe.' "1⁾

 

            It is, indeed, a separate question whether, and to what extent, foreign States recognise the application of Jewish law - as part of their municipal law - to Jews who were resident in such places, just as it is a separate question whether - as one must suppose - those states which accorded a measure of recognition to Jewish law, did so upon the basis that that law was the law of a particular religious aspect that dwelt among them. This latter manifestation, in fact, provides reliable testimony as to the vital part played by Jewish law in respect of Jews in various countries. In this regard it is fitting that I should not pass over the observations made in the year 1795 by Lord Stowell, when called upon, sitting as an ecclesiastical court in England in Lindo v. Belisavio (30), to determine the validity of a marriage celebrated according to Jewish law. This is what he said: -

           

            "This is a question of marriage of a very different kind" (that is to say, which was not celebrated in accordance with the provisions of Canon Law) "between persons governed by a peculiar law of their own, and administered, to a certain degree, by a jurisdiction established among themselves - a jurisdiction competent to decide upon questions of this nature with peculiar advantage... If I am to apply the peculiar principles of Jewish law, which I conceive is the obligation imposed upon me, I may run the hazard of mistaking those principles, having a very moderate knowledge of that law."

            (As quoted from the judgment of Stirling J. in De Wilton's case (29)).

           

            As I have said, I do not attribute a great deal of importance - from the point of view of the problem with which we are dealing now - to the question of the extent of the application of Jewish law, as part of the municipal law of foreign states, to their Jewish residents. I do this since the very moment that we admit - as we are obliged to admit - the continued existence of the Jews, in all generations and in all the lands of their dispersion, as a separate people, we must test the nature of Jewish law by the historic relationship of the Jewish people to this law. We shall then conclude - against our will - that the Jewish people really treated Jewish law, throughout their existence and their dispersion, as their special property, as part of the treasure of their culture.

           

            It follows that this law served in the past as the national law of the Jews, and even today possesses this national character in respect of Jews wherever they may be.

           

            If this conclusion, based as it is upon the historical approach which I have mentioned, is correct, we can easily rid ourselves of that artificial conception - with which we have already dealt - which compels obedience to the 'religious' law by persons who in no sense regard themselves as religious. That conclusion, moreover, brings us to a satisfactory solution of the problem raised by counsel for the appellant.

           

            I must now return to interpret the expression "law of his nationality" which is mentioned in Article 64(ii) of the Palestine Order in Council. Generally speaking, it will be proper to assign to this expression its ordinary and accepted meaning, that is to say the law of the country of which the party affected was a citizen or national at all relative times, the lex patriae. However, in regard to the situation assumed by counsel for the appellant in posing the question referred to, we may extend the meaning of the expression referred to in such a way as also to embrace Jewish law, where the parties who were Jews, and foreign citizens, married outside this country ; that is to say, for the restricted purpose of validating such a marriage, it is proper to prefer here, over and above the foreign national law (lex patriae) which governed the parties at the time of their marriage and which only recognises marriages celebrated in particular civil form, the other national law which they possessed then, and which continues to be their national law, that is, Jewish law. If, moreover, we follow this course, and lay down the law in these terms, we shall also remain faithful to the principle - a widely-accepted principle in this branch of the law - that it is the duty of the judge who investigates the question of the validity of a marriage to do his best, so far as the law enables him so to do, to hold a marriage valid, and not invalid.

 

            This latter approach, which prefers the one national law of a person who possesses dual nationality over his other national law, with the object of validating a marriage which is valid according to one of those laws, but not to the other, is not foreign to private international law. In this regard I draw attention to the example furnished by Martin Wolff in his book referred to above, at pp. 130, 131.

           

            To sum up, I myself would incline to regard the marriage of Jews, as presented in the example of counsel for the appellant as valid. Since this is so, the question posed by him has no effect on my conclusion in regard to the correctness of the principle according to which I have held that the 'Polish' marriage of the parties is also valid.

           

            On the basis of what I have said, I agree that both parts of the appeal should be dismissed.

           

WITKON J. I agree that the appeal should be dismissed, though I differ somewhat from the grounds which moved my colleagues Olshan and Agranat JJ. to reach that result. As will appear, I am in general agreement with the learned judge who sat in this case in the court of first instance.

 

            My starting point is the well-known principle that in any case involving a 'foreign' element - foreign nationality, residence outside the country, a contract or act executed or performed in another country and so forth - it is the duty of the court to examine whether it is necessary to resort to the principles of private international law before having recourse to the internal municipal law. The provisions of the municipal law are generally directed to cases in which a foreign element does not arise, unless that law itself lays down a provision specifically directed to such elements. Where a foreign element appears in any case, resort must first be had to the principles of private international law, and it must be ascertained whether those principles refer us to any foreign law or not. The principles of private international law take precedence over any other law which is purely municipal and internal.

 

            There are two principles of private international law which must be considered in this case, when we examine the validity of the marriage between the appellant and the respondent, and both these principles prevent us from examining this problem according to the religious law. And this is the first principle: when a fundamental question falls to be considered - in this case, the question whether the appellant is entitled to claim damages from the respondent, and whether he is liable for maintenance - and when this question is dependant upon the reply to another question (an incidental question) - in this case the question of the validity of the foreign marriage celebrated by the parties in Poland - the court must consider the incidental question according to the law (the municipal or foreign law) which applies to that question and not according to the law (the municipal or foreign law) which applies to the fundamental question. That was decided in the case of Goodman's Trusts (18), and it is in this respect that the importance of that decision lies in connection with the case before us. The second principle is that the question of the validity of the marriage - at least from the point of view of form - must be tested according to the law which applied in the place and at the time of the celebration of the marriage (locus regit actum), and no change in the "personal law" of the parties - resulting from a change in their citizenship, their residence, or any other change - can operate to invalidate that which was valid at the time and in the place where the marriage was celebrated. These two principles refer us to Polish law, which applied to the parties at the time and in the place of their marriage, and there is again no room for the application of any other law in regard to the question of the validity of the marriage.

 

Counsel for the appellant relied on Article 47 of the Palestine Order in Council, and submitted that the matter before us is governed by the religious law, that is to say, Jewish law, and that according to that law the civil marriage celebrated between the parties in Poland is invalid. That law, counsel submitted, is universal in its application, and applies to Jews, who are governed by it in matters of personal faith - that is to say, Jews who are not foreign nationals at the time of the filing of the claim and therefore subject to the law of their nationality in accordance with Article 64 of the Order in Council. This submission disregards the two principles of private international law which I have stated above. It is based, apparently, upon the assumption that to the extent to which Article 47 brings into application, by way of incorporation by reference, Jewish law - which itself is universal in its application to Jews wherever they are, be their nationality or residence whatever it may - there is an indication that the Mandatory legislation intended to exclude the principles of private international law in respect of Jews, who are thus subject to Jewish law. My reply to this submission is that this was not the intention of the Mandatory legislature. The provision in Article 47 is a provision of the municipal internal law, and does not form an exception to the rule which I have stated: that private international law takes precedence in its application over municipal internal law. The provision in Article 47 is also subject to the rules of private international law. And if it be argued that Jewish law is universal, the reply is that every religious law, in its application in this country, flows from an act of the secular legislature, namely, Article 47 of the Order in Council - from the point of view of the basic norm according to the theory of Kelsen - and derives its force from that Article. The secular legislature only conferred legal force upon religious law subject to the principles of private international law. This, in any event, is the proper approach for a civil court in this country. And if it be argued that the position in a religious court is otherwise, as was hinted in Cohen's case (9), (which was cited in a judgment of my colleague Olshan J.), and that there is in this, therefore, evidence that a civil court too should apply religious law in accordance with Article 47 without having regard to the principles of private international law. otherwise there might be different results in the two judicial fora - the civil and the religious. If this result could be brought about in one and the same case by the litigants' choosing which court they will approach, the result could certainly not be one contemplated by the legislator. My opinion, therfore, is that a religious court, too, is obliged to act in accordance with the principles of private international law, once the legislature has conferred upon it jurisdicton in matters of personal status or in any other matter, and that there is no fear of there being different results in the two jurisdictions which exist side by side in this country.

 

            We cannot apply the religious law - in accordance with Article 47 - to a particular matter before we have ascertained whether the principles of private international law refer us to a particular foreign law. In the present case we have found that Polish law applies, in view of the two principles of private international law to which I have referred - the principle relating to decisions of incidental questions, and the principle that a change in citizenship or residence has no effect upon the matter. This being so, Jewish law has no application to this case, in spite of its universal character. It is Polish law which applies, because it is the law which governed the parties at the time and place of their marriage. The provisions in Article 64 of the Order in Council are, in my opinion, irrelevant to this matter, and it is only fortuitous that the 'national' law at the time and place of the marriage is the same law which applies at the place of its celebration. If, for example, private international law had referred us to some other foreign law - not Polish law - we should have applied that law without any reference to Article 64 and without paying any regard to the Polish nationality of the parties in the past. The only source for the application of Polish law is, as I have said, private international law, which applies in this country by virtue of Article 46 of the Order in Council.

           

            My colleague, Agranat J., has asked the question how one can grant relief to the respondent under Jewish law when her status as the wife of the appellant is only recognised by Polish law, and he draws a distinction between the "right" to claim maintenance and the "amount" of the maintenance to which she is entitled. In my opinion there is no necessity to draw such a distinction and for this reason I express no opinion upon it. In my view the institution called "marriage" possesses a universal character, and a marriage under Jewish law is no different from what is accepted in the rest of the civilised world. I have no hesitation, therefore, in applying the right to maintenance of a wife married under Jewish law in favour of a wife whose marriage is based upon foreign law, but is recognised by the law of this country.

           

            In view of what I have said above there is no necessity for me to deal with the question of the validity of the marriage between the respondent and the appellant from the point of view of religious law, namely Jewish law. Since, however, my colleague Olshan J. has dealt at some length with this question, I wish to state in detail the grounds which have impelled me to differ from his opinion.

           

            The learned judge in the court below laid down the principle in the following terms: -

           

            "Since the parties at no time intended to be married under the provisions of Jewish religious law, that law will not regard their union as a marriage. The cohabitation of the plaintiff and the defendant cannot be regarded as cohabitation for the purposes of a religious marriage, though it certainly was cohabitation for the purposes of marriage under Polish civil law.

 

            There is no presumption to assist the defendant in her submission that it must at least be presumed that she has been married according to Jewish religious law. From the point of view of Jewish religious law the parties have never enjoyed the status of a married couple."

           

            I do not wish to raise the question whether this is also the rule under Jewish law, since my colleague Olshan J. also did not do so. While Olshan J. was of opinion that there was nothing in the evidence of the appellant to displace the presumption of Jewish law "that a man does not indulge in sexual intercourse for the purpose of sin," it seems to me that the learned judge, who heard the witnesses and weighed their evidence, was justified in reaching the conclusion that the appellant at least had no intention of marriage. Although the judge did not believe the appellant in regard to other matters on which he testified, he accepted his evidence on this point, and there was also nothing before him to contradict this evidence. On the contrary, even the respondent said (at p. 28 of the record) : "My husband is not orthodox" ; and this was the ground for his refusal to celebrate a religious marriage because, as he said, "It is unnecessary". If, therefore, the principle is as stated by the learned judge, namely, that the presumption in question only applies to Jews who are "orthodox" , and who intend to be sanctified, then there was a sound basis in the evidence for his conclusion, and we are not entitled, in my view, to interfere therewith. My colleague Olshan J. points out that in a case dealing with maintenance there is no need to decide finally and irrevocably as to the validity of the marriage. In my view, this presumption is nothing but a rule of evidence. And in any event, what difference can it make ? If there is no room for the application of the presumption, then the marriage has not been proved and if there is room for the application of the presumption, then the marriage has been proved for all purposes, as long as that evidence has not been contradicted. I see no distinction in this regard between a claim for maintenance and any other claim which gives rise to the question of the validity of the marriage. A distinction such as this creates the impression that there is some distinction between a marriage "de jure" and a marriage "de facto". In my opinion, the public interest demands that we give a clear reply to the question of the validity of the marriage, nor may we leave the parties in a state of doubt as to whether they are married one to the other, or not.

 

            As I have said, my reply to this question is based upon Polish law, which operates in this case by virtue of the principles of private international law, and, as was held by the learned judge, I too answer this question in the affirmative.

           

            Appeal dismissed.

            Judgment given on February 19, 1954.

HCJ 3045/05

HCJ 3046/05

HCJ 10218/05

HCJ 10468/05

HCJ 10597/05

Yossi Ben-Ari

and others

v.

Director of Population Administration, Ministry of Interior

 

 

The Supreme Court sitting as the High Court of Justice

[21 November 2006]

Before President Emeritus A. Barak, President D. Beinisch,
Vice-President E. Rivlin
and Justices A. Procaccia, M. Naor, E. Rubinstein, E. Hayut

 

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

 

Facts: The petitioners are five same-sex couples of Israeli citizens who underwent ceremonies of marriage in Canada in accordance with Canadian law. Upon returning to Israel, they applied to the population registry to be registered as married. Their application was refused. They petitioned the court.

 

Held: (Majority opinion — President Emeritus Barak, President Beinisch, Vice-President Rivlin, Justices Procaccia, Naor, Hayut) Following the rule in Funk-Schlesinger v. Minister of Interior, that the purpose of the registry is merely statistical, the registration official at the population registry is not competent to examine the validity of a marriage. When he is presented with a marriage certificate, he is obliged to register the applicants as married, unless such a registration would be manifestly incorrect. The ‘manifestly incorrect’ exception does not apply in this case.

(Minority opinion — Justice Rubinstein) The rule in Funk-Schlesinger v. Minister of Interior, which held that the registration official is not competent to examine the validity of a civil marriage and should register the applicants as married when presented with a marriage certificate, should not be extended to the case of a same-sex marriage conducted in one of the few countries around the world where such marriages are conducted. Registration at the population registry is not merely statistical; it involves a de facto recognition of same-sex marriages. The question of same-sex marriages differs from that of civil marriages in that civil marriages are almost universally recognized around the world, whereas same-sex marriages are only recognized in a small minority of countries. The registration of same-sex marriages should therefore be left for the Knesset to decide.

 

Petition granted by majority opinion (President Emeritus Barak, President Beinisch, Vice-President Rivlin and Justices Procaccia, Naor and Hayut), Justice Rubinstein dissenting.

 

Legislation cited:

Enforcement of Foreign Judgements Law, 5718-1958.

Evidence Ordinance [New Version], 5731-1971, ss. 3, 29.

Family Court Law, 5755-1995.

Inheritance Law, 5725-1965.

Law of Return, 5710-1950.

National Insurance Law [Consolidated Version], 5755-1995.

Permanent Service in the Israel Defence Forces (Pensions) Law [Consolidated Version], 5745-1985.

Population Registry Law, 5725-1965, ss. 2, 2(a)(5), 2(a)(6), 2(a)(7), 2(a)(8), 3, 15, 16, 17, 19(1), 19(2), 19C.

Prevention of Family Violence Law, 5751-1991.

Residents’ Registry Ordinance, 5709-1949.

 

Israeli Supreme Court cases cited:

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

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

[3]      HCJ 147/70 Steadman v. Minister of Interior [1970] IsrSC 24(1) 766.

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

[5]      HCJ 145/51 Abu-Ras v. IDF Galilee Commander [1951] IsrSC 5 1476.

[6]      HCJ 58/68 Shalit v. Minister of Interior [1969] IsrSC 23(2) 477; IsrSJ SV 35.

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

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

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

[10]    CA 8036/96 Yehud v. Yehud [1998] IsrSC 52(5) 865.

[11]    HCJ 1779/99 Brenner-Kaddish v. Minister of Interior [2000] IsrSC 54(2) 368.

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

[13]    HCJ 6539/03 Goldman v. State of Israel, Ministry of Interior [2005] IsrSC 59(3) 385.

[14]    HCJ 80/63 Gurfinkel v. Minister of Interior [1963] IsrSC 17 2048.

[15]    HCJ 2597/99 Rodriguez-Tushbeim v. Minister of Interior [2005] IsrSC 58(5) 412; [2005] (1) IsrLR 268.

[16]    CA 10280/01 Yaros-Hakak v. Attorney-General [2005] IsrSC 59(5) 64; [2005] (1) IsrLR 1.

[17]    HCJ 721/94 El-Al Israel Airlines Ltd v. Danielowitz [1994] IsrSC 48(5) 749; [1992-4] IsrLR 478.

[18]    HCJ 5398/96 Steiner v. Minister of Defence (unreported).

[19]    CA 373/72 Tapper v. State of Israel [1974] IsrSC 28(2) 7.

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

[21]    HCJ 4058/95 Ben-Menasheh v. Minister of Religious Affairs [1997] IsrSC 51(3) 876.

[22]    CA 191/51 Skornik v. Skornik [1954] IsrSC 8 141; IsrSJ 2 327.

[23]    CA 640/82 Cohen v. Attorney-General [1985] IsrSC 39(1) 673.

[24]    CrimFH 5567/00 Deri v. State of Israel [2000] IsrSC 54(3) 614.

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

[26]    HCJ 3267/97 Rubinstein v. Minister of Defence [1998] IsrSC 52(5) 481; [1998-9] IsrLR 139.

 

Israeli District Court cases cited:

[27]    MA 369/94 Steiner v. IDF (unreported).

[28]    CA (Naz) 3245/03 A.M. v. Custodian-General (unreported).

[29]    CrimC (Hf) 477/02 State of Israel v. Bachrawi (unreported).

 

Israeli Magistrates Court cases cited:

[30]    CrimC (BS) 2190/01 State of Israel v. Moyal (unreported).

 

Israeli Family Court cases cited:

[31]    FC (TA) 48260/01 A v. B (unreported).

[32]    FC (TA) 3140/03 Re R.A. and L.M.P. (unreported).

[33]    FC (TA) 6960/03 K.Z. v. State of Israel, Attorney-General (unreported).

[34]    FC (Hf) 32520/97 A v. B (unreported).

[35]    FC (TA) 16610/04 A v. Attorney-General (unreported).

 

Israeli National Labour Court cases cited:

[36]    NLC 54/3-1712 Even v. Tel-Aviv University (unreported).

 

Israeli Regional Labour Court cases cited:

[37]    LabC (TA) 3816/01 Levy v. Mivtahim (unreported).

[38]    NI (TA) 3536/04 Raz v. National Insurance Institute (unreported).

 

American cases cited:

[39]    Hennefeld v. Township of Montclair, 22 N.J. Tax 166 (2005).

[40]    In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004).

[41]    Lewis v. Harris, 378 N.J. Super. 168 (App. Div. 2005).

[42]    Lewis v. Harris, 2006 N.J. Lexis 1521.

[43]    Samuels v. New York State Dept. of Health, 811 N.Y.S. 2d 136 (2006).

[44]    Seymour v. Holcomb, 790 N.Y.S. 2d 858 (2005).

 

For the petitioners in HCJ 3045/05 and HCJ 3046/05 — D. Yakir, Y. Berman.

For the petitioners in HCJ 10218/05, HCJ 10486/05 and HCJ 10597/05 — O.A. Stock.

For the respondent — Y. Gnessin, D. Marx.

 

 

JUDGMENT

 

 

President Emeritus A. Barak

Two men, who are Israeli citizens and residents, underwent outside Israel a civil marriage ceremony which is recognized in that country. When they returned to Israel they applied to the registration official. They applied to change their registration at the registry from bachelor to married. The registration official refused the application. Was the refusal lawful? That is the question that each of the petitions has presented to us. It should be noted that the question before us is not whether a marriage between persons of the same sex, which took place outside Israel, is valid in Israel. The petitioners are not applying for their marriage outside Israel to be given validity in Israel. The question before us is whether the registration official — whose authority is prescribed in the Population Registry Law, 5725-1965, as interpreted in HCJ 143/62 Funk-Schlesinger v. Minister of Interior [1]) — acted within the scope of his authority when he refused to register the marriage of the two men in the register. The petitions before us address the question of the registration official’s authority and not the question of the validity of the marriage.

A. The petitioners

1.    There are five petitions of five couples before us. Both members of the couple in each of the petitions are men, and they are Israelis citizens and residents. The petitioners in each of the petitions live together in Israel as a couple, and they conduct a family life and maintain a joint household. They married each other in a civil marriage ceremony in Toronto in Canada, which is recognized in accordance with the law in that country. After they returned to Israel, they applied to be registered as married at the Population Registry. They attached to their application documents that authenticated their marriages. Their applications were refused. They were told that ‘marriages of this kind are not legally recognized in the State of Israel, and therefore it is not possible to register them in the register’ (the letter of the director of the Population Administration office in Tel-Aviv dated 24 May 2005). This led to the petitions.

B. The arguments of the parties

The petitioners concentrate their main arguments on the authority of the registry official. According to them, the refusal of the registry official to register their marriages in Toronto is contrary to the rule in Funk-Schlesinger v. Minister of Interior [1], it discriminates against the petitioners in comparison to couples who are not of the same sex and it violates their right to family life. According to them, according to the rule decided in Funk-Schlesinger v. Minister of Interior [1], the registration official acts merely as a statistician. The registration itself is incapable of creating or changing status. The discretion of the registration official, when he is considering an application to register a marriage, is therefore limited. According to the petitioners’ approach, when the registration official is presented with an authenticated marriage certificate, unless there is a suspicion as to its authenticity, he should make a change in the registration and register the applicants as married. The registration official is not competent to examine the question whether the marriage is valid under the laws of the State of Israel, and whether the couple are competent to marry in Israel. These questions are often complex and delicate questions. According to the petitioners, the questions in the petitions before us are difficult ones. The registration official was not given the power to decide them. According to Funk-Schlesinger v. Minister of Interior [1], as long as no judicial decision has been made to the effect that the marriage is not valid, the registration official is obliged to register it in the population registry. The petitioners point out that in Israel there has never been a judicial decision with regard to the validity of a marriage of couples of the same sex in Canada, whether in the Supreme Court or in the lower courts. Therefore no weight should be attributed to the position of the respondent that the marriages are not valid, and he should register them. The petitioners emphasize that this court has repeatedly confirmed the rule in Funk-Schlesinger v. Minister of Interior [1] since it was adopted. It has been applied in matters of personal status both with regard to marriage and also with regard to adoption and parenthood. The rule has also been extended to the registration of the items of religion and ethnicity in the population register. The petitioners’ position is that this case law ruling is desirable, and that it should be applied to their case.

3.    The respondent requests that we deny the petitions. His position is that there is no basis for registering marriages of same-sex couples that took place in a foreign country. This position is based on three main reasons. First, in Israeli law the legal framework of marriage relates only to a marriage between a man and a woman. There is no recognized legal framework of marriage in our law between two persons of the same sex. Funk-Schlesinger v. Minister of Interior [1] is irrelevant to the petitioners’ cases. We should distinguish between registration in the population register of a marriage that took place outside Israel, whatever its validity, as long as it satisfies the existing basic legal framework of marriage in Israel, and registration of a marriage that is inconsistent with the existing legal framework of this concept in Israel. Only the registration of the former marriages is governed by Funk-Schlesinger v. Minister of Interior [1]. Second, the respondent points out that most countries of the world do not recognize marriages of same-sex couples that take place in foreign countries, and they do not register marriages between members of the same sex that took place in foreign countries. Many countries have enacted laws in which it is expressly provided that a marriage can only take place between a man and a woman, and that marriages between members of the same sex that took place in other countries should not be recognized. Therefore, it cannot be said that comparative law requires recognition of these marriages, since it cannot be said that in the few countries that conduct marriage ceremonies between members of the same sex there is an expectation that these marriages will be recognized in other countries. Third, the respondent’s position is that the question of the registration of marriages of same-sex couples is one of those matters that should be regulated in primary legislation of the Knesset. The administrative tool of registration in the population register should not be used to create a new legal framework that is contrary to the intention of the legislature. In enacting the Population Registry Law the legislature did not conceive of making the population registry into a tool for creating new legal frameworks. On the contrary, the legislature’s intention was that the population register should reflect the existing legal frameworks in Israel in matters of status. Creating a new personal status constitutes a primary arrangement that lies within the jurisdiction of the legislature. The proper place for determining the question of recognizing a new personal status of marriage between members of the same sex is the Knesset. This is especially the case in view of the fact that this question concerns controversial public issues with regard to the fabric and values of society.

c.     The proceeding

4.    The petitions were heard before a panel of three justices (President A. Barak and Justices E. Rubinstein and E. Hayut). In the panel’s decision of 16 November 2005, the parties were given the opportunity of supplementing their arguments. It was also held that the justices were considering expanding the panel and that oral argument would be heard. The panel was expanded on 3 March 2006 and oral argument was heard on 28 May 2006. All of the parties told us that they were prepared to regard the case as if an order nisi had been issued in the petitions and the hearing took place accordingly.

d.    The legislative framework

5.    The Population Registry Law, 5725-1965, regulates the activity of the population registry. It provides that items of information concerning residents are registered at the population registry. These items of information are set out in s. 2 of the Population Registry Law:

‘The registry and registration items

2.  (a) The following items concerning a resident and any change to them shall be registered at the population registry:

(1) Family name, personal name and previous names;

 

(2) Parents’ names;

 

(3) Date and place of birth;

 

(4) Sex;

 

(5) Ethnicity;

 

(6) Religion;

 

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

 

(8) Spouse’s name;

 

(9)           Children’s names, dates of birth and sex;

 

(10) Present and former citizenship or citizenships;

 

(11) Address;

 

(11A) Mailing address, according to the meaning thereof in the Address Update Law, 5765-2005, in so far as notice of this was given;

 

(12) Date of entry into Israel;

 

(13) The date on which a person became a resident as stated in section 1(a).

 

(b) A resident who is registered for the first time shall be given for his registration an identity number.’

The Population Registry Law sets out the significance of the registration in section 3 as follows:

‘The registry — prima facie evidence

3.  The registration at the registry, any copy or extract thereof and also any certificate that was given under this law shall constitute prima facie evidence of the correctness of the registration items set out in paragraphs (1) to (4) and (9) to (13) of section 2.’

Paragraphs (5) to (8) were excluded from the rule of ‘prima facie evidence.’ These paragraphs concern ethnicity (para. (5)), religion (para. (6)), personal status (unmarried, married, divorced or widowed) (para. (7)) and name of spouse (para. (8)). The matter before us — personal status (unmarried, married, divorced or widowed) (para. (7)) — was excluded from the framework of prima facie evidence.

6.    Chapter 3 of the Population Registry Law is concerned with the powers of the registration official. It provides that the registration official may require someone who gave notice of registration items to give the official any information or document in his possession concerning the registration items (s. 19(1)). He is also entitled to record a (written or oral) declaration concerning the truthfulness of the information or document given to him (s. 19(2)). The Population Registry Law distinguishes between initial registration and the registration of changes. Initial registration is made in accordance with a ‘public certificate,’ and if there is no such certificate, in accordance with the applicant’s statement. The registration of changes, which is the context of the petitions before us, shall be made in the following manner (s. 19C):

‘Registration of changes

19C. A change in a registration item of a resident shall be recorded in accordance with a document that is produced under sections 15 or 16 or in accordance with a statement under section 17 that is accompanied by a public certificate that testifies to the change; …’

In the petitions before us, no documents were produced in accordance with s. 15 (which concerns official actions in Israel, such as a marriage that is recorded under the Marriage and Divorce (Registration) Ordinance), nor were any actions carried out under s. 16 (judicial decisions).The petitions before us therefore fall within the scope of s. 17 of the Population Registry Law, which provides:

‘Duty to give notice of changes

17. If a change occurred, other than as stated in sections 15 and 16, in the registration details of a resident, he is obliged to give notice of the change to the registration official within thirty days…’.

This notice should be accompanied by a ‘public certificate that testifies to the change.’ A statement of the applicant alone is insufficient (see CA 630/70 Tamarin v. State of Israel [2]; HCJ 147/70 Steadman v. Minister of Interior [3]; HCJ 1031/93 Pesaro (Goldstein) v. Minister of Interior [4], at p. 676). A ‘public certificate,’ for this purpose, is ‘according to the meaning thereof in the Testimony Ordinance’ (which is now the Evidence Ordinance [New Version], 5731-1971). For our purposes, these are the marriage certificates issued by a competent authority under Canadian law in the place where the marriage ceremony was conducted (see the definition of ‘public certificate’ in s. 29 of the Evidence Ordinance [New Version]).

E. The normative status of the registry and the discretion of the registration official

7.    What is the scope of the registration official’s discretion? This question has been considered in a whole host of judgments. The main judgment is Funk-Schlesinger v. Minister of Interior [1]. This decision was made more than forty-two years ago. In that case Mrs Funk-Schlesinger, a Christian resident of Israel, married Mr Schlesinger, a Jewish resident of Israel. The marriage took place in Cyprus. On the basis of the Cypriot marriage certificate, Mrs Funk-Schlesinger applied to be registered as ‘married’ at the population registry. The Minister of the Interior refused the application. His refusal was based on the outlook that under the rules of private international law that apply in Israel, the spouses were not married. By a majority (Justices Y. Sussman, Z. Berinson, A. Witkon and E. Manny, with Justice M. Silberg dissenting) it was decided to order the registration. The opinion of Justice Y. Sussman, which was the main opinion, was based on the outlook that the Residents’ Registry Ordinance, 5709-1949 —

‘… did not give registration in the residents’ registry the force of evidence or proof for any purpose. The purpose of the ordinance is… to collect statistical material. This material may be correct and it may be incorrect, and no one guarantees its correctness’ (ibid. [1], at p. 249, and also HCJ 145/51 Abu-Ras v. IDF Galilee Commander [5]).

Against this background, it was held that ‘the function of the registration official… is merely a function of collecting statistical material for the purpose of maintaining a register of residents, and no judicial power has been given to him’ (ibid. [1], at p. 244). Therefore —

‘When he registers the family status of a resident, it is not part of the job of the registration official to consider the validity of the marriage. The legislature is presumed not to have imposed on a public authority a duty that it is incapable of discharging. The official should be satisfied, for the purpose of carrying out his office and registering the family status, if he is presented with evidence that the resident underwent a marriage ceremony. The question of what is the validity of the ceremony that took place is a multi-faceted one and examining the validity of the marriage falls outside the scope of the residents’ registry’ (ibid. [1], at p. 252).

In a similar vein, Justice Y. Sussman said that when the Supreme Court hears petitions against a refusal of the registration official to register the marriage of a petitioner, it does not make any legal determination with regard to the validity of that marriage. He wrote:

‘It is not superfluous to emphasize that we are not dealing with the question whether the marriage is valid or not. The question before us is… whether there was a justification for the refusal of the residents’ registry official to register the applicant as a married woman’ (ibid. [1], at p. 242).

Justice Y. Sussman recognizes that there may be cases in which the incorrectness of the details that a resident wishes to register in the registry is manifest and is not subject to any reasonable doubt. In such cases the official is not obliged to carry out the registration.

‘The public official is not obliged to exercise his authority in order to be a party to an act of fraud. When a person who clearly appears from his appearance to be an adult comes before him and applies to be registered as a five year old child, what doubt can there be in such a case that the registration is false and that the act of the person is an act of fraud? In such a case the official will be justified when he refuses to register the details, and this court will certainly not exercise its power… in order to compel the official to “forge” the population register’ (ibid. [1], at p. 243).

8.    Since the decision in Funk-Schlesinger v. Minister of Interior [1], this court has followed it consistently. Over the years its strength has grown. The repeal of the Residents’ Registry Ordinance and its replacement by the Population Registry Law did not change its effect. In HCJ 58/68 Shalit v. Minister of Interior [6], in which the law was decided in accordance with the Population Registry Law, Justice Y. Sussman wrote:

‘The registration official was not given judicial powers, and the purpose of the statute for which he is responsible also does not require him to decide any question. It is therefore unsurprising that neither the ordinance nor the law mentioned above gave the registration official the tools that the court uses in order to discover the truth… A citizen who comes to give a notice as required by the law is presumed to tell the truth. It is not desirable that the official should raise suspicions… The registration is not conditional upon the registration official being convinced that the details given to him are correct… The registration is merely a registration of the details as given to the official… Only one exception has been held with regard to this registration… and this is… when one of the details is inherently untrue and this is manifest, such as when an adult appears before the official and asks to be registered as a five year old… in such a case the official shall refuse to register his age, since he is not liable to be a party to the making of a false registration… The Population Registry Law can be seen from its name to be a registry law. Its purpose is the same as the purpose of the ordinance, its predecessor — to collect statistical material’ (Shalit v. Minister of Interior [6], at pp. 506, 507, 508).

This was also determined to be the law in later cases (see, for example, Tamarin v. State of Israel [2], at p. 227; Steadman v. Minister of Interior [3], at p. 770).

9.    Funk-Schlesinger v. Minister of Interior [1] was considered in HCJ 264/87 Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [7]). It was held by the majority (President M. Shamgar and Justices A. Barak, M. Bejski and G. Bach, with Vice-President M. Elon dissenting) that the registration official should register the conversion of a person on the basis of a document that testifies to the conversion in a Jewish community outside Israel. President M. Shamgar wrote:

‘If after receiving details as aforesaid the registration official has a reasonable basis for assuming that the statement is incorrect, he should refuse to register it (s. 19B(b) of the aforesaid law [the Population Registry Law]). A statement that is incorrect means a statement that includes a falsehood (such as when we are dealing with an act of fraud or when there is evidence that the resident is a member of another religion…). It follows from the provisions of the aforesaid law that the registration official does not consider whether a conversion ceremony that took place in a Jewish community abroad and that is confirmed by the document submitted to him is valid or not. From his point of view, a certificate which appears to confirm that a conversion ceremony took place in a Jewish community as aforesaid indicates that such a ceremony requiring registration did indeed take place. This outlook concerning the powers and obligations of the registration official with regard to the registration of religion and ethnicity can also be seen from the approach of this court in the past, as reflected for example in the judgment in HCJ 143/62 Funk-Schlesinger v. Minister of Interior [1]’ (ibid. [7], at p. 732).

Even the minority opinion of Vice-President M. Elon was based on the assumption that ‘the registration official is obliged to register the details given to him in the statement unless he has a reasonable basis for assuming that the statement is not correct (Shalit v. Minister of Interior [6], at p. 507, and following Funk-Schlesinger v. Minister of Interior [1]).’ In that case Vice-President M. Elon was of the opinion that in view of the definition of ‘Jew’ in the Population Registry Law, the official had a reasonable basis for assuming that the statement made by the petitioners with regard to their conversion was incorrect.

10. Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [7] considered the power of the registration official with regard to the registration of the items of ethnicity (item 5) and religion (item 6). Pesaro (Goldstein) v. Minister of Interior [4] also considered, inter alia, this question. President Emeritus M. Shamgar, with the agreement of President A. Barak and Justice E. Mazza, M. Cheshin, T. Strasberg-Cohen and D. Dorner, but with the dissent of Justice Tz. Tal, said that:

‘The Population Registry Law is, as aforesaid, a civil law whose purpose is to collect factual information, including statistics. The minister responsible for implementing the Population Registry Law is the Minister of the Interior. He, and the officials of his office, have the power to make the registration of the registry items in accordance with a statement of the resident, and within the framework of the restrictions on the scope of the discretion that have been laid down in case law… According to Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [7], in so far as initial registration is concerned, the registration official is not competent to examine the validity of the conversion’ (ibid. [4], at p. 688).

11. Pesaro (Goldstein) v. Minister of Interior [4] considered the question of the conversion in Israel of Mrs Elian Chava Pesaro (Goldstein). This question was not decided in that case. All that was decided was that the Religious Community (Conversion) Ordinance did not apply to her conversion in Israel. It was not held that the conversion that she underwent in Israel was valid. Before the petitioner underwent the conversion proceedings and before judgment was given with regard to her conversion, she married Mr Uri Goldstein in a consular marriage at the Brazilian Embassy in Israel. The couple applied to the registration official with an application that he should register them as married. The official refused. His reason was that the consul of a foreign state had no authority to conduct a marriage ceremony in Israel. The court (Vice-President A. Barak and Justices E. Goldberg and E. Mazza) held that according to the rule in Funk-Schlesinger v. Minister of Interior [1] the registration official should register the couple as married (HCJ 2888/92 Goldstein v. Minister of Interior [8]). I said in my opinion that the question whether it was possible to hold a consular marriage in Israel was a difficult one. In these circumstances, the registration official should act, with regard to a change in registration, on the basis of a public certificate that was submitted to him concerning the marriage. In my opinion I said that:

‘Since Funk-Schlesinger v. Minister of Interior [1] the Supreme Court has repeatedly held that “the function of a registration official under the aforesaid ordinance is merely the function of a collector of statistical material for the purpose of managing the register of residents, and he has not been given any judicial power” (ibid. [1], at p. 244, per Justice Sussman). Therefore, “the official is obliged to register what the citizen tells him” (ibid. [1], at p. 249), unless this amounts to “a manifestly incorrect registration, which is not subject to any reasonable doubt” (ibid. [1], at p. 243). It follows that if the couple present to the registry official a certificate that testifies to the conducting of a marriage ceremony before a consul of a foreign country in Israel, the official should register the couple as married, unless it is clear and manifest that the details are incorrect, or there is no doubt that the consul has no power to marry them…

Thus we see that if a non-Jewish woman (a citizen of country A) and a Jewish man (whatever his nationality) apply to the registry official, and present him with a registration certificate of a marriage between the couple that was conducted by the consul of that country A, the registry official should register the couple as married. Admittedly, there is a doubt with regard to the power of the consul to conduct a marriage ceremony in these circumstances, but the registry official is not entitled to decide this doubt. This doubt is inherent in the Israeli legal system, and as long as a competent court has not decided it, the doubt remains inherent in the legal system… Indeed, as long as this doubt exists, the registry official should register the couple as married, since “the question of the validity of the ceremony that took place is sometimes a multi-faceted one, and considering its validity goes beyond the scope of the residents’ registry” (Funk-Schlesinger v. Minister of Interior [1], at p. 252)’ (ibid. [8], at pp. 93, 94).

In this vein Justice M. Cheshin decided in one case that:

‘It is the duty of the registry official to register in the population register information that is given to him and that is supported by a document (such as a marriage), without him being able to examine the validity of the legal validity of that information (such as whether the marriage is valid or not: see Funk-Schlesinger v. Minister of Interior [1]; Shalit v. Minister of Interior [6])’ (HCJ 164/97 Conterm Ltd v. Minister of Finance [9], at p. 387).

Justice J. Türkel referred to this approach in another case, where he said:

‘Registration of the respondents as the children of the legators in their identity card when the family immigrated to Israel has no significance with regard to recognizing the respondents as the adopted children of the legators (on the significance of registration in an identity card and in other official documents under the Population Registry Law, 5725-1965, see the remarks of the honourable Justice Sussman in Funk-Schlesinger v. Minister of Interior [1]; the remarks of the honourable Justice H. Cohn in Shalit v. Minister of Interior [6] and the remarks of Vice-President A. Barak in Pesaro (Goldstein) v. Minister of Interior [4])’ (CA 8036/96 Yehud v. Yehud [10], at p. 872).

12. Funk-Schlesinger v. Minister of Interior [1] was reconsidered in HCJ 1779/99 Brenner-Kaddish v. Minister of Interior [11]. In that case an adoption order was made in the State of California, according to which the son of one member of a lesbian couple was adopted by the other member. The couple returned to Israel. They applied to the registration official to record the adoption in the registry. The registration official refused. His position was that from a biological viewpoint the existence of two parents of the same sex is not possible, and therefore the incorrectness of the registration is manifest. The petition was granted. Justice D. Dorner said that:

‘In consistent case law over many years beginning with Funk-Schlesinger v. Minister of Interior [1], it has been held that a registration official is not competent to determine the validity of the registration that he is required to make, but that he is liable to register what the citizen tells him, unless it is a case of “a manifestly incorrect registration, which is not subject to any reasonable doubt” (ibid., at p. 243)… The registration before us does not change the biological position, merely the legal position’ (Brenner-Kaddish v. Minister of Interior [11], at pp. 374, 375).

Justice D. Beinisch agreed with this approach. She said that the position of the Minister of the Interior relied on the ‘exception’ recognized in Funk-Schlesinger v. Minister of Interior [1] with regard to the power of the registration official not to register something manifestly incorrect, which is not subject to any reasonable doubt. Justice D. Beinisch said that this exception did not apply in the case before her:

‘In the case before us, the respondent cannot point to any manifest “incorrectness” as aforesaid; the requested registration item is not a biological fact but a matter involving a complex legal question… the respondent’s contention… that the incorrectness of the requested registration is “manifest” because there is no possibility of recognizing two mothers for the same child is merely a different form of the argument that we should not recognize an adoption based on a homosexual relationship between the biological parent and the adoptive parent… In the absence of any contention, which is not subject to reasonable doubt, with regard to the validity of the foreign adoption order or with regard to the correctness of the details of the applicants… the registration should register the details of the petitioners on the basis of the adoption order’ (ibid. [11], at pp. 376, 377).

The minority opinion of Justice A. Zu’bi was also based on the decision in Funk-Schlesinger v. Minister of Interior [1]. His conclusion that the adoption should not be registered was based on two reasons: first, Funk-Schlesinger v. Minister of Interior [1] was based on the assumption that a registration of marriage had no probative force, and its whole purpose was to collect statistical material. With regard to adoption, the registration concerns the item of parents’ names (para. (2)). This registration constitutes prima facie evidence of its correctness. Second, in order to give validity to the adoption order, it should be ‘recognized’ in accordance with the provisions of the Enforcement of Foreign Judgements Law, 5718-1958. Without this recognition, it should be ignored. In this way it is different from a marriage certificate, where registration does not necessitate ‘recognizing’ it. It should be noted that a further hearing is taking place with regard to Brenner-Kaddish v. Minister of Interior [11], and this has not yet been decided.

13. The next link in the chain of judgments based on Funk-Schlesinger v. Minister of Interior [1] was our judgment in HCJ 5070/95 Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [12]. The petitioners in that case underwent Reform or Conservative conversions (in Israel or in a Jewish community outside Israel). They sought to be registered in the population register as Jews in the ethnicity and religion items. The registration official refused the application. We decided in Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [12] that the registration official acted unlawfully. Our approach was based on Funk-Schlesinger v. Minister of Interior [1]. The following is what I wrote (with the agreement of Vice-President S. Levin and Justices T. Or, E. Mazza, M. Cheshin, T. Strasberg-Cohen, D. Dorner, E. Rivlin, but with Justices I. Englard and J. Türkel dissenting):

‘The rule in Funk-Schlesinger v. Minister of Interior [1], which was made approximately forty years ago, continues to remain valid. In so far as the registration of the items of ethnicity and religion are concerned, it states that the function of the registration official is “… a function of collecting statistical material for the purpose of maintaining a register of residents…” (ibid. [1], at p. 244). The registration official has no judicial power and he may not decide an “open” question of law. When he is asked to make an initial registration by virtue of a statement of the applicant, he must grant the request, even if its legal validity is uncertain, and there are different views on the subject, provided that the incorrectness of the statement is not manifest. When the registration official is asked to make a change in a registration by virtue of the applicant’s statement, the application should be accompanied by a public certificate testifying to the change’ (ibid. [1], at p. 744).

This approach was repeated in HCJ 6539/03 Goldman v. State of Israel, Ministry of Interior [13]. Justice M. Cheshin wrote:

‘The Population Registry Law is merely a statistical records law, and its purpose is merely to maintain a database of information concerning the residents of Israel, and since the law is such, it should not be given the task of deciding questions that are beyond its capabilities… The value of the registration in the register — in principle — is the value of a merely statistical-technical registration, and that is indeed its value’ (ibid. [13], at pp. 393, 395).

14. Criticism has been levelled against Funk-Schlesinger v. Minister of Interior [1] (see M. Shava, ‘On the Question of the Validity and Registration of Mixed Marriages before a Foreign Consul in Israel,’ 42 HaPraklit (1995) 188). From its infancy, it was said that the statistical nature of the registration does not ‘exhaust the practical importance of the register’ (per Justice M. Landau in HCJ 80/63 Gurfinkel v. Minister of Interior [14], at p. 2071). Justice Tz. Tal emphasized that ‘the approach of a merely “statistical” register ignores the reality’ (Pesaro (Goldstein) v. Minister of Interior [4], at p. 709). Justice J. Türkel added that ‘I fear that today it may imply a kind of naivety or turning a blind eye to reality’ (Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [12], at p. 764). Justice I. Englard said that:

‘… if we are merely dealing with insignificant statistics, why do there continue to be so many struggles with regard to the registration? … The truth is, of course, that the symbolic here is the essence, and without a certain outlook on life there is no decision on the question of registration or statistics’ (Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [12], at p. 757).

Indeed, in Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [12] the state asked us to depart from the rule in Funk-Schlesinger v. Minister of Interior [1]. This request was denied, and we said:

‘The rule in Funk-Schlesinger v. Minister of Interior [1] has laid down roots in case-law, and considerations of great weight are required for us to depart from it. No such considerations have been brought before us. The argument concerning the reliance of state authorities is not at all convincing. State authorities are presumed to act according to the law. Within this framework they should be aware of the limited nature of the registration in the register… Like public authorities — and against the background of awareness of the limited role of the register — the public at large also understands that the registration of the items of religion, ethnicity and personal status in the register “… was only intended for statistical and similar purposes, and it does not give the person registered any special rights” (Justice S.Z. Cheshin in Abu-Ras v. IDF Galilee Commander [5], at p. 1478). Indeed, the registration in the register is “neutral” with regard to the various struggles that have taken place since the founding of the state with regard to matters of ethnicity, religion and marriage, and it ought to remain so. The substantive disagreements on these matters should be conducted by examining the substantive rights, and these lie outside the scope of the register’ (ibid. [12], at p. 745).

Indeed, the rule in Funk-Schlesinger v. Minister of Interior [1] is a proper and good one. It is not proper that without an express provision in the Population Registry Law the registration official — that is to say, the Minister of the Interior — should be given the power to decide fundamental questions of Israeli society. It is not proper that whenever there is a change in the leadership of the Ministry of the Interior there should be a change in policy on key questions of state. These questions ought to be decided by the people through its representatives in the Knesset. As long as the Knesset has not spoken it is proper, in so far as possible, that these ethical decisions should not be made within the framework of the registry. The rule in Funk-Schlesinger v. Minister of Interior [1] gives expression to this approach. Indeed, it is precisely someone who wishes to distance himself from any decision concerning symbols that should support the continuation of the rule in Funk-Schlesinger v. Minister of Interior [1] and its development. This was discussed by Justice M. Cheshin in Goldman v. State of Israel, Ministry of Interior [13]:

‘The Population Registry Law is, in essence, a technical law, and if we place upon its narrow shoulders a heavy burden of fundamental questions it will be unable to support them. The Population Registry Law was not intended in principle to incorporate questions of nationality and ethnicity, of religion and state, of conversion according to Jewish law or not according to Jewish law, of who is a Jew and who is not a Jew. Decisions on these questions and questions similar to them are historic decisions, and as such it is strange — and even absurd — to argue that the registry official should decide them. Decisions of this kind were not delegated to the registry official, nor even to the court when sitting in review of the decisions of the official’ (ibid. [13], at p. 395).

Naturally, Funk-Schlesinger v. Minister of Interior [1] does not prevent a judicial decision on questions of religion, ethnicity and marriage. Notwithstanding, it places the judicial decision in the proper light. Instead of a tangential decision in the technical field of the registry, a decision on the merits of the matter should be made in the proper context. Thus, for example, the question of the validity of non-orthodox conversion should not be made in the artificial context of the powers of the registry official (see Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [7] and Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [12]), but in the substantive context of the Law of Return (see HCJ 2597/99 Rodriguez-Tushbeim v. Minister of Interior [15]). A change in the procedural context places the difficult questions in their proper light, by presenting the complete picture of the values, principles and rights that should be balanced.

15. In the petitions before us we have not been asked by the state to reconsider Funk-Schlesinger v. Minister of Interior [1]. All the parties have relied on Funk-Schlesinger v. Minister of Interior [1]. The petitioners said repeatedly that they are not asking for a decision on the question whether their marriage in Canada is valid in Israel. The state also does not ask us to decide the question of the validity of the marriage. The scope of the dispute between the parties concerns the scope of the rule in Funk-Schlesinger v. Minister of Interior [1]. The petitioners argue that the five cases before us fall within the scope of that rule. The registration official should register the change in the register on the basis of the marriage certificate that they presented to him, without examining the validity of the marriage in Israel. Counsel for the state argues before us that a marriage between persons of the same sex constitutes a legal framework of marriage that is not recognized in Israel, and therefore the rule in Funk-Schlesinger v. Minister of Interior [1] does not apply. Counsel for the state writes:

‘A distinction should be made between the registration in the population register of a marriage that took place outside Israel but satisfies the basic legal framework of marriage that exists in Israel, whatever its validity — whose registration in the population register is governed by the rule in Funk-Schlesinger v. Minister of Interior [1] — and the registration of a marriage that is inconsistent with the existing legal framework in Israel’ (para. 35 of the supplementary arguments of the respondent that are dated 23 March 2006).

Who is right? Let us now turn to examine this question.

F. The rule in Funk-Schlesinger v. Minister of Interior and the ‘legal framework’ argument

16. All the parties agree that the marriage certificates that were submitted to the registration official are lawful under Canadian law; that a marriage ceremony took place in Canada; that the details appearing in the marriage certificate are correct. On this basis we are prima facie drawn to the conclusion that the registration official should register the couple as married. This is the clear language of Justice Y. Sussman in Funk-Schlesinger v. Minister of Interior [1]:

‘When he registers the family status of a resident, it is not part of the duties of the registration official to consider the validity of the marriage… it is sufficient for the official in carrying out his duty and registering the family status that evidence is brought before him that the resident underwent a marriage ceremony’ (ibid. [1], at p. 252).

The state argues that this rule applies to a family status that falls within the scope of a legal framework that is recognized in Israeli law. This framework reflects the outlook of the legislature with regard to the variety of possible family statuses. For our purposes, these frameworks are ‘unmarried, married, divorced and widowed’ (s. 2(a)(7) of the Population Registry Law). The word ‘married’ in this context implies a marriage that is consistent with the basic legal framework in Israeli law concerning ‘marriage.’ This framework only relates to a marriage between a man and a woman. In this regard, the state distinguishes between a ‘social framework,’ a ‘social framework with a certain legal significance’ and a ‘legal framework.’ The social framework reflects family institutions or inter-personal institutions that are recognized by society. Sometimes there are various social ramifications that do not amount to a legal personal status that can be registered. Then it constitutes a ‘social framework with a certain legal significance.’ This framework is different from a legal framework in that it does not constitute a legal status, as compared with the basic legal framework of a legal status. In the state’s opinion, the petitioners’ marriage falls within the scope of a ‘social framework with a certain legal status.’ It does not fall within the scope of a ‘legal framework.’ Is the state correct?

17. I do not accept the state’s position. It is trying to reintroduce the question of the validity of personal status into decisions concerning registration in the register and the judicial review thereof. With a major effort over more than forty years the decision concerning the validity of the personal status has been excluded from the registration proceedings and the judicial review thereof. Along come the words ‘legal framework’ and they try to bring the issue of status back onto centre stage of the proceedings concerning registration in the register. We cannot agree with this. All the arguments that were raised over the years that support Funk-Schlesinger v. Minister of Interior [1] rule out the idea of the legal framework raised by the respondent. The population registry was not intended to decide the question of the existence or absence of legal frameworks; the registration official is not competent to determine whether there is a recognized ‘legal framework’ or merely a ‘social framework with a certain legal significance’; the register provides statistical data with regard to personal events (such as birth, death, marriage and divorce), not legal constructions that have passed the discerning scrutiny of the registration official. It is not right that the legal struggle concerning personal status should take place in the field of registration.

18. This expression of a ‘recognized legal framework’ is a new one. It did not appear in the state’s arguments in the past. In my opinion, it cannot make any contribution to the matter before us. It raises difficult questions with regard to the level of abstraction of the word ‘framework.’ Does a ‘marriage’ in Canada, which is a valid marriage under Canadian law, not fall within the scope of a recognized ‘legal framework’? Does an adoption of a child of a biological mother by her lesbian partner constitute a ‘recognized legal framework’? Adoption is certainly a recognized legal framework. Does the lesbian character of the joint lifestyle of the couple make this framework of adoption unrecognized? What is the criterion according to which an answer to this question is given? In any case, in Brenner-Kaddish v. Minister of Interior [11] it was decided to register this adoption. Was the registration official in that case — which was before we gave our judgment in CA 10280/01 Yaros-Hakak v. Attorney-General [16] — ordered to register a ‘legal framework that is not recognized’ or a ‘social framework with a limited legal significance’? What is the difference between the registration of a lesbian adoption and the registration of a homosexual marriage?

19. The state recognizes the fact that the joint lifestyle of homosexual couples constitutes a ‘social framework with a certain legal significance.’ Counsel for the state writes:

‘The State of Israel recognizes single-sex couples in many contexts. This recognition is given with regard to socio-economic issues, and also in the context of regulating lawful residence in Israel’ (para. 19 of the preliminary response of 13 November 2005).

In this the state is correct. Indeed, in a whole host of judgments it has been held that homosexual couples have rights under specific laws and arrangements. The following is a partial list: (1) rights under collective agreements that are limited to couples (HCJ 721/94 El-Al Israel Airlines Ltd v. Danielowitz [17]); (2) pension rights, such as surviving relatives’ rights (NLC 54/3-1712 Even v. Tel-Aviv University [36]); LabC (TA) 3816/01 Levy v. Mivtahim [37]); (3) pension rights under the Permanent Service in the Israel Defence Forces (Pensions) Law [Consolidated Version], 5745-1985 (MA (TA) 369/94 Steiner v. IDF [27]); (4) memorial rights (HCJ 5398/96 Steiner v. Minister of Defence [18]); (5) recognition as a ‘spouse’ for the purposes of the Prevention of Family Violence Law, 5751-1991 (FC (TA) 48260/01 A v. B [31]); (6) recognition as a ‘spouse’ for the purposes of the Family Court Law, 5755-1995 (FC (TA) 3140/03 Re R.A. and L.M.P. [32]); (7) recognition of a cohabitee for the purposes of rights under the Inheritance Law, 5725-1965 (CA (Naz) 3245/03 A.M. v. Custodian-General [28]); (8) surviving relatives’ pension under the National Insurance Law [Consolidated Version], 5755-1995 (NI (TA) 3536/04 Raz v. National Insurance Institute [38]). Thus we see that the ‘social framework’ of the homosexual partner has a ‘certain legal significance.’ Why does this significance not amount to a ‘legal framework’? The state’s answer is that these social significances are not ‘legal frameworks’ since they do not amount to a personal status. It follows that the concept of status underlies the state’s distinction. It rejects the ‘legal framework’ of homosexual marriage because it lacks status. So in the state’s opinion, the question of registration derives from the question of the ‘legal framework,’ and the question of the ‘legal framework’ derives from the question of status. According to the state’s approach, the registration official should examine the question of status before he determines the existence or absence of the framework. This approach conflicts directly with the rule in Funk-Schlesinger v. Minister of Interior [1], according to which the question of status is not a matter for the registry; a decision on status is not a matter for the registration official; the judicial review of the decision of the registration official should not consider questions of status. The registration official should not and cannot examine whether a given situation goes beyond a ‘social framework with a certain legal significance’ and amounts to a ‘legal framework.’ The court in exercising judicial review of a decision of the registration official should not consider these questions.

20. We asked ourselves whether it cannot be said that what underlies the concept of ‘legal framework’ is the desire of the state to prevent registration of a marriage that takes place outside Israel and is contrary to public policy in Israel. From the state’s written and oral reply it can be seen that it does not raise any arguments of public policy at all. In her written arguments, counsel for the state said:

‘The position with regard to non-registration does not involve adopting an ethical or public position on the question whether it is proper to recognize a marriage between persons of the same sex, but a professional-legal position with regard to the existing legal position’ (para. 94 of the respondent’s preliminary response of 13 November 2005).

In reply to our questions during oral argument, counsel for the state said that she is not raising any arguments concerning ‘public policy.’

21. In her arguments, counsel for the state said that according to the rule in Funk-Schlesinger v. Minister of Interior [1], the registration official should not register something that is manifestly incorrect and is not subject to any reasonable doubt. According to her, the registration of a homosexual couple as married is a registration that is tainted, from a legal viewpoint, with manifest incorrectness, since Israeli law does not recognize this marriage. This argument is fundamentally unsound, for two reasons: first, the incorrectness to which the rule in Funk-Schlesinger v. Minister of Interior [1] refers is factual incorrectness, whereas the state is arguing with regard to legal incorrectness (see Brenner-Kaddish v. Minister of Interior [11], at pp. 375, 377). Justice D. Dorner rightly pointed out in that case (which concerned the registration of an adoption involving a lesbian relationship) that ‘the registration before us does not reflect the biological position, only the legal position’ (ibid. [11], at p. 371). Justice D. Beinisch also said that:

‘The respondent’s contention in this case that the incorrectness of the requested registration is “manifest” because there is no possibility of recognizing two mothers for the same child is merely a different form of the argument that we should not recognize an adoption based on a homosexual relationship between the biological parent and the adoptive parent’ (ibid. [11], at p. 377).

Second, concerning the existence of a ‘manifest mistake,’ the question is not whether homosexual marriage is recognized in Israel. The question is whether Israeli law will recognize a homosexual marriage that is valid where it was contracted. The answer to this question is not at all simple. It requires us to make precise and detailed examinations. In any case, the decision on this issue — according to Funk-Schlesinger v. Minister of Interior [1] — will not be made in registration proceedings and in the judicial review thereof.

22. The state’s arguments are based on the contention that there is no social consensus in Israel on the question of the recognition of marriage between persons of the same sex; that the court should not decide these questions; that recognition of a status of same-sex marriages is an ethical question, which ought to be decided by the legislature. I agree with these arguments, to the extent that they concern the possibility that the court should decide the question whether same-sex couples may marry in civil marriages in Israel itself. An expression of that can be found in several judgments (see CA 373/72 Tapper v. State of Israel [19]; HCJ 693/91 Efrat v. Director of Population Registry, Ministry of Interior [20]; HCJ 4058/95 Ben-Menasheh v. Minister of Religious Affairs [21]; Yaros-Hakak v. Attorney-General [16]). In Ben-Menasheh v. Minister of Religious Affairs [21], the petitioner asked us to order the Minister of Religious Affairs to appoint an official who would conduct civil marriages in special cases. The petition was denied. This is what I wrote in my opinion:

‘The question of conducting civil marriages between couples who do not have a religious community — just like the conducting of civil marriages for couples who belong to different religious communities — is a difficult and complex question. There is no national consensus on this. It concerns the recognition of status, which operates vis-à-vis everyone. In this situation, it appears prima facie that the proper institution for dealing with and regulating the matter is the Knesset and not the court’ (ibid. [21], at p. 878).

Indeed, I accept that the question of conducting civil marriages in Israel, including marriages between persons of the same sex, should be determined first and foremost by the legislature. This is not the question before us. We are not dealing at all with marriage in Israel. Moreover, there is no application before us to recognize a marriage between two persons of the same sex that took place outside Israel. When this question arises, it will be examined in accordance with out accepted rules of private international law. All that is before us, and that Funk-Schlesinger v. Minister of Interior [1] seeks to resolve, is the question of registration — registration, not recognition — of a marriage between persons of the same sex that took place outside Israel. The state’s approach that we should deny the petitions because the marriage that the petitioners contracted is not a ‘legal framework’ recognized in Israel is an approach that seeks to adopt a position on the question of status; it is an approach that asks the court to rule on a social question that is the subject of dispute. The importance of the rule in Funk-Schlesinger v. Minister of Interior [1] is, inter alia, that it does not result in the court making a decision on matters of status. It is precisely the approach of the state with regard to a recognized ‘legal framework’ that makes it necessary to make decisions that the state itself believes ought to be left to the legislature.

23. Before we conclude, let us reemphasize what it is that we are deciding today, and what it is that we are not deciding today. We are deciding that within the context of the status of the population registry as a recorder of statistics, and in view of the role of the registration official as a collector of statistical material for the purpose of managing the registry, the registration official should register in the population register what is implied by the public certificate that is presented to him by the petitioners, according to which the petitioners are married. We are not deciding that marriage between persons of the same sex is recognized in Israel; we are not recognizing a new status of such marriages; we are not adopting any position with regard to recognition in Israel of marriages between persons of the same sex that take place outside Israel (whether between Israeli residents or between persons who are not Israeli residents). The answer to these questions, to which we are giving no answer today, is difficult and complex (see Y. Yonay, ‘The Law on Homosexual Orientation in Israel: Between History and Sociology,’ 4 Mishpat uMimshal 531 (1998); A. Harel, ‘The Courts and Homosexuality — Respect or Tolerance?’ 4 Mishpat uMimshal 785 (1998); M. Tamir (Yitzhaki), ‘The Right of Homosexuals and Lesbians to Equality,’ 45 HaPrakit 94 (2000); A. Harel, ‘The Rise and Fall of the Homosexual Legal Revolution,’ 7 HaMishpat 195 (2002); Y. Marin, ‘Marriage between Same-Sex Couples and the Failure of Alternatives to Legal Regulation of Single-Sex Couples,’ 7 HaMishpat 253 (2002); Y. Biton, ‘The Effect of the Basic Law: Human Dignity and Liberty on the Status of Single-Sex Couples,’ 2 Kiryat HaMishpat 401 (2002); see also E. Heinze, Sexual Orientation: A Human Right (1995); R. Wintemute, Sexual Orientation and Human Rights (1995); R. Wintemute and M. Andenas (eds.), Legal Recognition of Same-Sex Partnerships (2001); D.R. Pinello, Gay Rights and American Law (2003); E. Gerstmann, Same-Sex Marriage and the Constitution (2004)). It is to be hoped that the Knesset can direct its attention to these, or some of them.

The result is that we are making the order nisi absolute. The respondent shall register the petitioners as married in item 2(a)(7) of the population register.

 

 

President D. Beinisch

I agree with the opinion of President Emeritus Barak and with his reasoning. Many years of legal tradition have created and established in our legal system the distinction between the population registry, its function and the limits of its power and the very difficult issues of determining personal status. The fact that, from the viewpoint of the petitioners, the register and the declaration included in it is of importance does not affect the significant distinction that has been created in the case law rulings issuing from this court between the question of the registry and the question of personal status. This approach of our case law created a framework that left undecided those questions that are most complex from a legal viewpoint, and that left the question of social and ethical recognition to the Knesset and the legislature. All of this was discussed and emphasized by my colleague the president in his opinion, and I therefore agree with his position.

 

 

Vice-President E. Rivlin

I agree.

 

 

Justice A. Procaccia

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

 

 

Justice M. Naor

I agree.

 

 

Justice E. Hayut

I agree.

 

 

Justice E. Rubinstein

Introduction

1.    I fear that my opinion differs from that of my colleagues in this case. Forty-three years ago, this court decided by a majority the case of Funk-Schlesinger v. Minister of Interior [1], which held that an official of the population registry should register a couple as married if the couple come before him with prima facie evidence that proves that a marriage ceremony was conducted in another country, and the official should not examine the validity of the marriage. The judgment concerned a Jew and a Christian who were married in a civil marriage in Cyprus. Later this case law ruling became an established principle in the case law of this court in matters subject to dispute, and it was used in Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [7], Pesaro (Goldstein) v. Minister of Interior [4] and Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [12] with regard to the registration of ethnicity, religion and conversion, and in Brenner-Kaddish v. Minister of Interior [11] with regard to lesbian adoption (it is not superfluous to point out that in the last case there is a further hearing — HCJFH 4252/00 Minister of Interior v. Kaddish). Now my colleague the president, and with him most of the panel, also wish to apply this ruling to a marriage between persons of the same sex. My opinion is different. My opinion is that we are really not dealing in this case with a mere statistical registration which was the original nature of the register, a definition that long ago became obsolete, but with a social-public symbol, and that is the true purpose of the petitioners. This is because there are now no economic or ‘practical’ issues that led them to petition the court. I therefore have doubts as to the distinction between registration and recognition in this context that my colleagues make. In a nutshell, my opinion on the issue raised in the petition is that the question of marriage between persons of the same sex — which is a relatively new matter in public debate, certainly from a historical viewpoint, and is not recognized in the vast majority of countries of the world, and which by its nature raises difficulties in various contexts in view of the attitude of parts of the population to it — lies within the jurisdiction of the legislature and not within the creative interpretation of the court.

2.    My colleague the president ‘sanctifies’ the rule in Funk-Schlesinger v. Minister of Interior [1], since he believes that its usefulness increases and becomes more widespread over the years, since it allows — in his words — ‘social quiet’ (along the lines of ‘industrial quiet’) in sensitive areas.

3.    The question in my opinion concerns the scope and limits of the rule in Funk-Schlesinger v. Minister of Interior [1]. I believe that its limits have already been stretched too far, and there is no room to extend them further. The purpose that this rule initially served, when it sought to resolve the registration of civil marriage that exists in most countries but was not consistent with the marriage system in Israel, is different from its continuing expansion into areas that do not fall within this framework. Specifically, in the present case, we are speaking of a matter that is the subject of dispute both all over the world and in Israel. The ordinary person does not distinguish between registration and the recognition of status; were we to go out onto the street and ask people, I believe that no one would question the fact that they are one and the same. In such circumstances, this court should ask the legislature to have its say. This is my approach in a nutshell. I shall now clarify it in greater detail.

On the ruling in Funk-Schlesinger v. Minister of Interior

4.    Mr Schlesinger, a Jew, and Miss Funk, a non-Jew, were married in a civil marriage in Cyprus. When they came to Israel, they applied to be registered as married. The registry official refused and they petitioned the court. The following are the remarks of Justice Sussman, who wrote the majority opinion:

‘It is clear and free of doubt that the function of the registration official, under the aforesaid ordinance [the Residents’ Registry Ordinance, 5709-1949, which was replaced by the Population Registry Law, 5715-1965] is merely a function of collecting statistical material for the purpose of managing the register of residents, and he has not been given any judicial power’ (at p. 244).

These remarks of Justice Sussman rely inter alia on the opinion of the Attorney-General (of 10 March 1958) in which it was stated that ‘the civil administration authorities are neither authorized nor capable, and they therefore are also not entitled, to make rulings and to decide issues of religious prohibitions’ (p. 246; emphasis in the original). Justice Sussman also said that the ordinance ‘… did not give registration in the residents’ registry the force of evidence or proof for any purpose. The purpose of the ordinance is… to collect statistical material. This material may be correct and it may be incorrect, and no one guarantees its correctness…’ (ibid. [1], at p. 249), and he gave examples to show that the registry has no probative value.

5.    The court, in the majority opinion, did not want to enter the minefield of Jewish religious law. Therefore it held fast to the rule in CA 191/51 Skornik v. Skornik [22], by saying that:

‘The State Attorney did not argue before us that the marriage should be void because it was celebrated in a civil ceremony; there was no basis for this contention because this court has already held that the form of the marriage is governed by the law in the place where the ceremony took place (Skornik v. Skornik [22]) and in the absence of any evidence to the contrary, a ceremony that was celebrated in a foreign country is presumed to have been celebrated according to law’ (ibid. [1], at p. 252).

Justice Sussman went on to say:

‘The marriage will be declared invalid… if an Israeli judge, in giving expression to the feelings of the Israeli public, will be obliged to say that the validity of such a marriage is inconsistent with our lifestyle… Something that disqualifies a marriage under religious law will be a very weighty consideration, but it does not need to be the only consideration. The Israeli public is today divided into two camps. One camp that observes the religious precepts or most of them is confronted by another camp that emphasizes the separation between a state governed by civil law and a state governed by Jewish religious law. The outlooks of the members of the two camps are completely opposed to one another. Public order in Israel does not mean that the judge will force the outlook of one camp on the other camp. Life requires an attitude of tolerance to others and respect for different outlooks, and therefore the criterion that guides the judge can only be a balance of all the outlooks prevalent among the public’ (ibid. [1], at p. 256; emphasis supplied).

Therefore the majority opinion reached the conclusion that the marriage ceremony is decisive for the purpose of registering the status, that examining the validity of the marriage is not the concern of the registration official and that prima facie evidence of the ceremony is sufficient in order to oblige him to register the ceremony. It should be noted that Justices Witkon and Berinson left unanswered the question of the recognition of the validity of civil marriage (p. 258), whereas Justice Sussman thought that it should not be held that civil marriage is definitely invalid. We see, however, that the court based its judgment on the doubt concerning the validity of the marriage under Israeli law (something that has no parallel in the case before us), and emphasized the need for a criterion that is ‘a balance of all the outlooks prevalent among the public.’ I cannot refrain from saying with regard to the remarks of Justice Sussman that even from the perspective of that time I doubt whether the polarized divergence that he described between two supposedly opposing camps, the supporters of civil law against the supporters of Jewish religious law, reflected the complex Israeli reality, which is multi-faceted. I will merely say that even among religiously observant Jews there were (and are) many whose attachment to Jewish religious law does not detract at all from their attitude to the state as a state governed by civil law, and who see a conceptual harmony in the combination of the two.

6.    Justice Silberg, in the minority, was of the opinion that the marriage under discussion, between a Jew and a Christian, had no validity under the laws of the state because Jewish law was the personal law of the man (Schlesinger); consequently, if the registration official —

‘… is persuaded that the man is not married, he is prohibited from registering something that, in his opinion, is absolutely false. This is because the registration questionnaire asks about the legal family status of the person being registered, and not about the vague fact of whether he underwent a marriage ceremony or not’ (p. 239; emphasis in the original; see also Dr Silberg’s article of 1941, ‘A Modern Question of the Law of Marriage’ (in his book Coming As One, at p. 225), where he says, following the case law of Mandatory Palestine, that ‘a mixed marriage of a Jew who is a national of Palestine is void…’ (at p. 230)).

Justice Silberg, who did not ignore human and practical needs, also made a practical suggestion for cases such as Funk-Schlesinger, which in his opinion could help in ‘removing the painful aspect of the vast majority of difficult cases’ (at p. 241). This was to add in the law after the word ‘married’ the words ‘in a civil ceremony’ or ‘in a religious ceremony.’ This requires legislation, and the legislature did not accept the recommendation. We have therefore come to where we now stand.

7.    There will be some who ask — even though for practical purposes the question is no longer relevant ­— whether ab initio there was a need for the rule in Funk-Schlesinger v. Minister of Interior [1], and whether Justice Silberg was not correct in his approach that implied that if there was a basis for bridging the gap between a marriage that is not recognized in Israel and the registration of Israelis who married abroad in such marriages, this was a task for the legislature. But it can also be argued in support of the approach of Justice Sussman, in the majority opinion, that it is a fact that for forty-three years now marriage under the personal law, which is recognized in Israel, and the registration of civil marriage have coexisted, and the judgment perhaps prevented public battles that would not have contributed to the welfare of the public. Even those who criticize the rule in Funk-Schlesinger v. Minister of Interior [1] should not minimize the importance of this factor in that context and similar contexts. Moreover, the legislature is not quick to provide solutions, even though there is considerable distress and there are significant problems with regard to issues of marriage, and we will merely mention those persons who are Israeli citizens by virtue of the right of return but are not Jewish, for whom the law does not provide a proper framework; as the number of non-Jews according to Jewish religious law who came to Israel under the Law of Return (the children and grandchildren of Jews and their spouses) increased — especially in recent years, although these problems began to arise already in the first wave of immigration from the former Soviet Union — the question of their marriage possibilities arose. This question is not at all insignificant, and this is why there have been initiatives such as the draft Civil Union Law (see the article of S. Lifshitz, ‘Registration of Relationships,’ in the Menasheh Shava Book (A. Barak, D. Friedman eds., 2006) 361, at p. 419). The legislature has not yet addressed these issues, and the question of how to resolve existing problems in the face of the delicate fabric of religious marriage laws. But are there no limits to the rule in Funk-Schlesinger v. Minister of Interior [1]? We are dealing with a marriage between persons of the same sex, in a legal framework that no one disputes did not exist in the past, and which was created recently as a part of radical cultural changes in certain sectors of society. Is it not the role of the legislature to address this? In my opinion the answer is that this is its function; and if indeed the legislature decides upon a certain outlook, or even if it does not adopt any position at all, the meaning will be that this is what it wanted.

8.    In concluding our analysis of the rule in Funk-Schlesinger v. Minister of Interior [1], I thought it would be appropriate to cite some of the remarks of Justice Türkel in Yaros-Hakak v. Attorney-General [16]:

‘There are cases where, after a legal ruling is handed down, it goes beyond its original scope and spreads to areas that the persons who made it never imagined it would reach. In my opinion, a blatant example of such a situation is the ruling that was made in HCJ 143/62 Funk-Schlesinger v. Minister of Interior…’ (ibid [16], at p. 142 {95}).

See also the remarks of Prof. Shava following the decision in Brenner-Kaddish v. Minister of Interior [11]:

‘The Supreme Court should reconsider the rule in Funk-Schlesinger v. Minister of Interior especially after its extension in the Goldstein case and its implementation out of all proportion… in HCJ 1779/99 (Brenner-Kaddish v. Minister of Interior)’ (M. Shava, ‘Registration and Recognition of a Foreign Adoption Order within the Framework of a Lesbian Family,’ 1 Kiryat HaMishpat 103 (2001), at p. 132).

On the registry

9.    Whether true or not, Funk-Schlesinger v. Minister of Interior [1] has prima facie established in the ‘legal’ consciousness the idea that the population registry is merely a statistical tool. I say once again that this is not the case; the population registry is the ‘entry gate’ into the Israeli legal reality. When confronted by a couple who present an Israeli certificate that declares them to be married, an ordinary person is incapable of making fine distinctions as to whether it is merely a case of registration or a recognition of status. But this is not only true of the ordinary man. This was discussed by Justice Landau a short time after the judgment in Funk-Schlesinger v. Minister of Interior [1] was given:

‘The statement… that “the purpose of the ordinance… is to collect statistical material” is certainly true in itself, but it does not exhaust the practical importance of the registry… Therefore the value of the registration should not be denigrated entirely as if it were merely the addition of another digit to the total statistical account of the registry’ (Gurfinkel v. Minister of Interior [14], at p. 2071; see also Pesaro (Goldstein) v. Minister of Interior [4], at pp. 711-712).

Several years later Justice Landau reiterated this approach:

‘And in truth, how is it possible to denigrate the value of the registration, from a political and social viewpoint, which is no less important than the narrow technical viewpoint… and it is possible to ask: if all of this is a matter of no significance, why is the petitioner fighting in his petition with such stubborn persistence… Is it really true that “all the people are in error” in understanding the importance of the registry?’ (Shalit v. Minister of Interior [6], at p. 526).

This approach was shared by President Agranat:

‘I ought to emphasize that I am in agreement with my colleague Justice Landau when he says that such a registration, when it has been approved, will not merely have technical value, but also has value from a political-social viewpoint, something which is proved both by the great debate conducted by the members of the Knesset… and by the great interest caused by the trial before us among the public at large’ (ibid. [6], at p. 598).

President Agranat also warned about the manner in which what is today called merely technical and statistical is likely to be interpreted in the future: ‘There are grounds for concern that allowing the registration as aforesaid is likely to be interpreted, in the course of time, as a revolution that has ramifications… also on other walks of life’ (ibid. [6]). His remarks are most pertinent. The path outlined by these great jurists was followed later by Vice-President Elon:

‘Indeed, the registration of the ethnicity item as “Jewish” in the population registry does not constitute prima facie evidence for any matter of personal status… and since this is so, it is argued before us that it is of no consequence. But when the legislature decided to register the item of ethnicity… we ought not to denigrate its national-public importance, and we should regard it with the proper respect. Moreover, the petitions before us, and the extensive deliberations and arguments required with regard thereto, prove how important and fundamental is the decision in them to all of the litigants before us’ (Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [7], at pp. 736-737).

This was followed by Justice Tal, who disagreed in Pesaro (Goldstein) v. Minister of Interior [4] with the determination of Justice Sussman in Funk-Schlesinger v. Minister of Interior [1] and presented a long list of practical ramifications of the registration, but also considered the public significance:

‘The approach that registration is merely “statistical” ignores reality… Not only do the organs of state and its citizens rely on the registry, but even the legislature itself has given the registry a status far beyond that of a mere statistical registration…

The question is therefore why these “married persons” should be registered in the population registry… when these marriages, as we have seen, have no local legal validity…

There is also considerable public significance to registration as a Jew in the population registry, far beyond the “statistical” significance. The public does not make the fine distinction between registration for the sake of the registry and registration for the sake of the right of return…’ (Pesaro (Goldstein) v. Minister of Interior [4], at pp. 705-708).

For this reason, Justice Tal held that ‘I cannot agree with the easy solution of registration for registration’s sake’ (ibid.). Justice Englard also continued along this path, when he said bluntly that all the substantial elements inherent in registration constitute a symbol, and it was this — the symbolic nature of the registration — that was under consideration:

‘Indeed, if we are merely dealing with insignificant statistics, why do there continue to be so many battles with regard to the registration? Why are there so many judgments containing dozens of pages in which the justices are divided in their opinions? The truth is, of course, that the symbolic here is the essence, and without a given outlook on life there is no decision on the question of registration or statistics’ (Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [12], at p. 756; emphasis supplied).

Thus we see that the registry is not merely statistical and that it has practical and social ramifications upon the opinions of the public, the authorities and the legislature. It would appear that in recent decades the registry in the legal context has been mainly a battlefield for a struggle over symbols. This was the focus of the petitions mentioned above, and it is also the focus of the petition before us. Should the de facto struggle over symbols be the work of the court? And is it proper that it should be done in a roundabout manner, within the framework of the population registry, by continually extending the rule in Funk-Schlesinger v. Minister of Interior [1]?

10. It might be asked in what way is the marriage of persons of the same sex different from a civil marriage that is also not recognized in Israel but is registered by virtue of the rule in Funk-Schlesinger v. Minister of Interior [1] and is almost unchallenged. The answer in my opinion is not difficult: civil marriage is, as we have said, a recognized institution in many countries, probably in the vast majority of them, and logic dictates that there is no alternative to registering it, even if we do not regard the registration official merely as a recorder of statistics. But this is not the case with same-sex marriages: when the official looks at these, he will immediately know that he is facing a new legal creation, which the state described in this case as a framework ‘that our ancestors did not imagine,’ and which has been recognized only in small minority of countries around the world — apparently in approximately six out of more than one hundred and ninety, which is approximately three per cent. Is this therefore the very area in which the court in Israel, with its special character, should march out in front of the legislature? Is this not a situation in which the reasonable official can argue that in his opinion there is a ‘manifestly incorrect registration, which is not subject to any reasonable doubt’ (Justice Sussman in Funk-Schlesinger v. Minister of Interior [1], at p. 243), and therefore it should be addressed and decided by the legislature? Moreover, is the registration sought in this petition ‘a balance of all the outlooks prevalent among the public’ of which Justice Sussman spoke?

On the petitioners and the court

11. I would like to make a clear distinction between this case and the petitioners’ human dignity, to which they are obviously entitled as human beings, like every other human being, and as a constitutional right under the Basic Law: Human Dignity and Liberty, according to which their private lifestyle is their own concern. As the petitioners and the state both said, during the last decade the mutual economic, social and personal rights of same-sex couples have been regulated in case law and the opinions of government authorities, and indeed my colleague the president listed the main points in this field, which speak for themselves. In this way the courts and the authorities have addressed the dignity and fair economic rights of same-sex couples.

12. This petition does not concern a comparison of the social and economic rights of same-sex couples with the rights of married couples. The thrust of the petition, in my opinion, is not the protection of the rights of the petitioners as citizens, as human beings, who are entitled to dignity and equality. As I have said, in recent years, little by little, in field after field, and not without some hesitation, this court has made decisions towards the equality of rights. Indeed, at the beginning of the 1980s, Justice Barak wrote: ‘It is obvious that if two men or two women come before the court and apply for approval of an agreement between them as a spouses’ property agreement, the court will not approve it, since the applicants are not spouses’ (CA 640/82 Cohen v. Attorney-General [23], at p. 689). Much has happened since then, and the proper recognition of the need to continue to realize the protection of social and economic rights has steadily increased within the framework of the values of equality and dignity.

13. I think that the path began with the judgment of this court in El-Al Israel Airlines Ltd v. Danielowitz [17] (which was, admittedly, decided by a majority), and it continued with the other cases that the president mentioned in his opinion; but the main work has been done in the trial courts that apply on a daily basis the principles determined by this court. As the president said, in 2004 the Family Courts overturned his determination in Cohen v. Attorney-General [23] and recognized two men as ‘spouses’ for the purposes of the Family Court Law (with regard to approving a property agreement, see Re R.A. and L.M.P. [32], per Justice Rish-Rothschild; FC (TA) 6960/03 K.Z. v. State of Israel, Attorney-General [33], per Justice Granit, with regard to protection orders under the Prevention of Family Violence Law, see FC (Hf) 32520/97 A v. B [140], per Justice Globinsky). Fairness requires that we point out that there is conflicting case law — for a detailed survey see FC (TA) 16610/04 A v. Attorney-General [35], per Justice Gefman; but it is clear that what in the past was obvious is today, at the very least, a matter of dispute). Meanwhile, government authorities have also recognized the requirements  of dignity and equality, and I believe that for years there has been a clear trend of granting the applications of same-sex couples (for a detailed survey, see para. 41 of the petition in HCJ 3046/05).

14. In reply to my question, counsel for the petitioners said that there are additional rights that have not been given to the petitioners, and he referred to s. 3 of the Evidence Ordinance [New Version], 5731-1971, which provides that ‘In a criminal trial, one spouse is not competent to testify against the other, nor may one spouse be compelled to testify against a person who is charged together with the other in one indictment.’ Without making any firm determinations on this issue, which is not currently before us, I will point out that the trial courts have given the section a purposive interpretation and extended the exemption also to recognized cohabitees who are not married (see CrimC (BS) 2190/01 State of Israel v. Moyal [30], per Justice Meged; see also CrimC (Hf) 477/02 State of Israel v. Bachrawi [29], per Vice-President Pizam and Justices Razi and Shiff), from which it may be understood that such a determination is not far off. The principle is that each issue should be examined on its merits to see whether any material right is violated, but the desire for registration has a wider purpose than ensuring specific rights; it involves the recognition of a symbol. I am therefore of the opinion that a distinction should and can be made between issues that have a direct ramification on the petitioners as citizens and as human beings that are entitled to dignity and equality and questions of a general public nature, with a symbolic significance that has no major practical ramifications. It should also be remembered that granting rights is mainly dependent upon a recognition of status — a matter of principle that we have not been asked to decide in this petition — rather than registration that does not even constitute prima facie evidence of the correctness of its content (s. 3 of the Population Registry Law).

15. Indeed, my colleagues, following their approach, hold fast to the decision in Funk-Schlesinger v. Minister of Interior [1]; but even according to the supporters of the decision in Funk-Schlesinger v. Minister of Interior [1], do we have before us a case like that in Funk-Schlesinger v. Minister of Interior [1], and is it possible to compare the registration of a civil marriage, which is an accepted arrangement in many countries, with a marriage between persons of the same sex that has been recognized in only a few countries? In my opinion, the answer is no. In my opinion, the state is correct in its position that the judicial system should not decide this matter, and its policy should not be seen, albeit unintentionally, as an attempt to predetermine the issue; the legislature should consider the matter and have its say.

On public confidence

16. In my opinion, this court should also consider the question of to what extent it is distancing itself from the social consensus, since both my colleague the president and the petitioners themselves do not dispute that in this case no such consensus exists and since it is very difficult to speak of ‘a balance of all the outlooks prevalent among the public.’ Public confidence is often mentioned as a fundamental prerequisite for the proper functioning of the court. This means that in matters that are the subject of a major disagreement among the public, the court should consider whether it is essential that it should enter into the dispute; sometimes the answer will be yes, but there are times when it is not. In my opinion, the difference when making the relevant balance lies in the question of the degree to which substantive human rights are really violated in this context of the registry. As I have said, there is no violation in this case beyond the symbolic; the socio-economic rights have been regulated in a reasonable manner, and what remains, if anything, is negligible, and can be regulated in the future, if necessary.

17. Public confidence, according to President Barak in the very important books that he has written, means ‘that the judge does not express his own views but the fundamental outlooks of society’ (The Judge in a Democracy, at p. 50, and see also his remarks in Yaros-Hakak v. Attorney-General [16], at p. 117), that ‘when the judge is obliged to balance values according to their weight, he should aim to do so in accordance with what seem to him the basic outlooks of society’ (Judicial Discretion (1987), at p. 188). Elsewhere the question, together with the answer, are clearly presented by Prof. Barak:

‘Should the judge exercise his discretion in such a way that the legal norm that results from exercising the discretion (whether by way of statutory or case law interpretation or in another way) should also enjoy a social consensus? …

My opinion is that the judge should take into account among his considerations the degree of social consensus for the social values and legal norms that result from them. The judge should aspire to find a solution that is consistent with the social consensus, or at least does not contradict it. In my opinion, it is desirable to avoid choosing an option that directly goes against the basic outlooks of the public… The reason for this approach lies in democratic considerations, considerations of the separation of powers and the need to ensure public confidence… An act that conflicts with the social consensus will, in the long term, harm public confidence in the court system and the ability of the courts to function property’ (Judicial Discretion, at pp. 289-290 (emphases supplied); these remarks were also cited in Ben-Menasheh v. Minister of Religious Affairs [21], at p. 880).

Admittedly, public confidence does not mean —

‘… popularity and following the trends prevailing among the public. Public confidence does not mean bowing to public opinion polls and surveys. Indeed, public confidence means a recognition that “a judge administers justice in accordance with the law” ’ (CrimFH 5567/00 Deri v. State of Israel [24]).

The court is not a slave to opinion polls and it is not guided by them, but it is proper to examine matters, not merely from the perspective of individual justice for the petitioners, but also from the perspective of ‘public justice,’ which means, in my opinion, seeking the broadest common denominator between the different parts of Israel’s divided society and avoiding its extremes. Indeed, it is difficult to please everyone; but even if public confidence does not mean pleasing the public, as President Barak said on one occasion, it is not based on extremes. No one denies that social conditions may change, and this has happened to a considerable degree with regard to homosexual relationships (see The Judge in a Democracy, at pp. 60-61; El-Al Israel Airlines Ltd v. Danielowitz [17], at pp. 781-782). The court has made its contribution to preventing discrimination in socio-economic contexts, as we have said, and these have been regulated to a large degree. Even if this is not completely to the petitioners’ satisfaction, it is very close to it; but is there no point at which the need to act within the framework of public confidence, within the framework of the broadest common denominator, will lead the court to say that it has reached the limits of its role, beyond which the legislature should have its say, on matters that are the subject of great controversy?

The role of the court

19. Indeed, the recognition of economic and social rights is a fundamental aspect of human decency that is not opposed by any real conflicting value. By contrast, the line that is crossed by a registration of marriage indicates to everyone a de facto recognition of status and a conflict of values that ought to be decided by the legislature. It might be argued that, once the economic and social rights have been recognized, it makes no difference whether they are also accompanied by registration. But to tell the truth, once we saw that the registration is not merely for statistical purposes as stated in Funk-Schlesinger v. Minister of Interior [1], even if registration of personal status does not constitute evidence of its correctness (s. 3 of the law), it has great symbolic significance. A people lives by its symbols, and we should reiterate that, were this not the case, both statute and custom in Israel would not attribute much significance to them; moreover, truth be told, I think that the petitioners would not be fighting the battle that they are fighting in this petition. Justice Zu’bi has already said in Brenner-Kaddish v. Minister of Interior [11] that ‘in practice the petitioners are not merely seeking registration, but they are looking for de facto recognition of the adoption.’ I think that Justice Cheshin expressed these judicial feelings well, in a minority opinion in a different context:

‘The real subject of the petition before us is not the introduction of road signs [in Arabic] by the respondent municipalities. The subject is — from start to finish — the cultural and ethnic rights of Arabs in Israel. These rights, to the best of my understanding, go beyond the recognized rights that accompany the status of the individual in Israel… It is the nature of things that the court is not the proper forum to consider this issue and decide it, since the political system — and first and foremost the Knesset — has not recognized the rights of the kind that the petitioners desire’ (HCJ 4112/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Tel-Aviv Municipality [25]), at p. 460; square parentheses supplied).

20. My colleague the president utterly rejects almost the entire legal position of the respondent. With respect, my opinion is different. Like the Attorney-General, I am of the opinion that we are dealing with a matter that should be decided by the legislature. The words of Justice Cheshin in Yaros-Hakak v. Attorney-General [16] are appropriate here: ‘… the court was not intended to march in the vanguard, nor was it charged with testing uncharted waters. The judiciary, in essence, was not given the task of delineating and paving new paths in social matters’ (ibid. [16], at p. 135 {86}). The remarks of my colleague the president in his book, The Judge in a Democracy, are also relevant: ‘The judge should generally not be the standard bearer of a new social consensus. As a rule, judges should reflect values and principles that exist in their society rather than create them’ (The Judge in a Democracy, at p. 47, which is cited in Yaros-Hakak v. Attorney-General [16], at p. 117 {64}). I am personally of the opinion that in so far as the rights of the individual are concerned, it is possible that on occasions the court will continue to march in the vanguard, and the same is true with regard to shaping the norms of public administration; but it should not do so in matters of a collective nature that are the subject of a controversy concerning changes in beliefs and outlooks. In these matters, I find the remarks of Vice-President Mazza in Yaros-Hakak v. Attorney-General [16] apt:

‘… whether it is desirable that this court should establish, in case law, a primary arrangement on this sensitive and controversial issue, which concerns giving a recognized legal status to single-sex couples. In my opinion, the answer to this question is no. The principle of the separation of powers, and the special sensitivity of the issue brought before us, require us to act in this case with caution and restraint’ (ibid. [16], at p. 79 {15-16}; emphases in the original).

21. With regard to the executive authority, President Barak has said:

‘… that there are matters of a unique kind in which the executive authority does not have the power to make fundamental decisions on basic questions that divide Israeli society. There are matters of this kind in which the decisions should be made by the Knesset, whereas the executive authority should restrict itself to the policy for implementing them’ (HCJ 3267/97 Rubinstein v. Minister of Defence [26], at p. 523 {194}).

The president will say: I am only dealing with the registry, whereas the primary arrangement will be made by the legislature. But in my opinion the registry in this regard is a significant step on the way to a comprehensive arrangement, and therefore its place lies in the legislative domain.  

Some remarks on comparative law

22. This court is not the first to contend with the question of the approach to marriages between persons of the same sex that took place in another country. Similar questions are the subject of huge dispute in the various states of the United States, and they are a part of a very vigorous public debate. Admittedly the dispute concerns the question of recognition of the actual marriage, but as we have said the question before us also goes beyond the scope of a mere statistical registration. In the United States the question also arises as to the line separating the work of the court from the work of the legislature. Indeed, in an absolute majority of states in the United States there are legislative arrangements that reject recognition of marriages between persons of the same sex that were contracted outside the state (the Defense of Marriage Act (DOMA)). For a survey of the legislative arrangements by state, see appendix to the article of A. Koppelman, ‘Recognition and Enforcement of Same Sex Marriage,’ 153 U. Pa. L. R. 2143 (2005), at p. 2165. The constitutionality of the provisions of the DOMA laws has been scrutinized in several cases, but no judgment has been given by the Supreme Court of the United States in this regard. However there are states, such as New Jersey, in which there is no legislative regulation and where a similar question to the question before us has arisen, and this also concerned a marriage that was contracted in Canada.

23. In Hennefeld v. Township of Montclair [39], the court of the State of New Jersey refused to recognize a marriage between persons of the same sex that took place in Canada. It held that —

‘… this court finds that the marriage laws of Canada which recognize same-sex marriage are not consistent with those of New Jersey which do not recognize same-sex marriage... Accordingly, the Plaintiffs’ Canadian marriage cannot be afforded comity in New Jersey.’

Canadian marriages have not been recognized in states where there are DOMA laws (see In re Kandu [40]). This case law relied on previous case law according to which the state constitution did not require recognition of marriage between persons of the same sex (Lewis v. Harris [41]). In that case the court addressed its role in recognizing the right of persons of the same sex to marry. With regard to the provisions of the constitution, the court held:

     ‘This constitutional provision does not give a court the license to create a new constitutional right to same-sex marriage simply because its members may feel that the State should grant same-sex couples the same form of recognition as opposite-sex couples who choose to marry… there is no basis for concluding that our society now accepts the view that there is no essential difference between a traditional marriage of a man and woman and a marriage between members of the same sex’ (emphasis supplied).

Even in the State of New Jersey no one disputes that same-sex couples should be given the same rights as heterosexual couples (to this end New Jersey even enacted the Domestic Partnership Act), but the manner, or the ‘framework,’ in which society chooses to confront the issue — such as whether it constitutes marriage, or a civil union, or another approach — is generally regarded as a public question that the legislature, and not the court, should address.

24. After I wrote the aforesaid, the Supreme Court of the State of New Jersey held, by a majority, that same-sex couples have a constitutional right to the same rights and benefits as heterosexual couples, but it was held that the question of the ‘name,’ the framework, by which the relationship will be known is a question for the legislature to decide (Lewis v. Harris [42]). The court held that it was not possible to strip the term ‘marriage’ of its loaded meanings, and therefore it was the legislature that should decide whether to use it with regard to same-sex couples:

     ‘Raised here is the perplexing question — “what’s in a name?” — and is a name itself of constitutional magnitude after the State is required to provide full statutory rights and benefits to same-sex couples? We are mindful that in the cultural clash over same-sex marriage, the word marriage itself — independent of the rights and benefits of marriage — has an evocative and important meaning to both parties. Under our equal protection jurisprudence, however, plaintiffs’ claimed right to the name of marriage is surely not the same now that equal rights and benefits must be conferred on committed same-sex couples… The Legislature is free to break from the historical traditions that have limited the definition of marriage to heterosexual couples or to frame a civil union style structure, as Vermont and Connecticut have done.’

In so far as the question of framework or symbol is concerned, the court therefore was of the opinion that public debate, as expressed in the work of the legislature, should be allowed to have its say. The court said that traditionally, since ancient times, the word ‘marriage’ has been used only for the relationship between a man and a woman, and therefore:

     ‘To alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin. When such change is not compelled by a constitutional imperative, it must come about through civil dialogue and reasoned discourse, and the considered judgment of the people in whom we place ultimate trust in our republican form of government.’

When the court in New Jersey discussed the reasoning for this determination, which requires the referral of the question of the framework or symbol to the legislature, it addressed the same consideration that I addressed above, namely the need to act within the scope of public confidence:

     ‘Some may think that this Court should settle the matter, insulating it from public discussion and the political process. Nevertheless, a court must discern not only the limits of its own authority, but also when to exercise forbearance, recognizing that the legitimacy of its decisions rests on reason, not power.’

All seven justices of the New Jersey court in that case supported the approach that same-sex couples should not be deprived of legal rights and benefits in the law that are given to heterosexual couples. The minority opinion of three justices saw no reason to distinguish between these rights and the right to the ‘title of marriage.’ This minority opinion also considered the question of symbols — the linguistic use of the term ‘marriage’ — and it held that there was no basis for depriving the petitioners in that case of the symbol, so that it would not appear that the commitment in a relationship between persons of the same sex is weaker than that of persons of different sexes, and it also held that labels perpetuate prejudices. Thus we see that a debate took place and the majority referred the question of symbols to the legislature.

25. The Supreme Court of the State of New York, another state where there are no DOMA laws, held that the question of the registration of the marriage of same-sex couples is a matter for the legislature. While relying, inter alia, on the judgment in Hennefeld v. Township of Montclair [39] from the State of New Jersey, the court in the State of New York held:

     ‘The role of the courts is “to recognize rights that are supported by the Constitution and history, but the power to create novel rights is reserved for the people through the democratic and legislative processes”… Deprivation of legislative authority, by judicial fiat, to make important, controversial policy decisions prolongs divisiveness and defers settlement of the issue; it is a miscarriage of the political process involved in considering such a policy change… Judicial intervention is warranted only where the Legislature has placed an unreasonable restriction on access to the legislatively defined right.’

(See also Samuels v. New York State Dept. of Health [43]; Seymour v. Holcomb [44]).

Conclusion

26. The essence of the matter is this: my colleague the president, like the petitioners, is not satisfied by the respondent’s argument that in Israel there is no appropriate legal framework for a marriage of same-sex couples; according to him, the ‘legal framework’ concept is new, it does not contain a proper criterion and there is no difference between the registration of homosexual marriage and the approval of a lesbian adoption, as decided in Brenner-Kaddish v. Minister of Interior [11]. Indeed, my opinion in that case is like the minority opinion of Justice A.R. Zu’bi. Personally, I do not think that giving socio-economic rights to homosexual couples for reasons of human and legal decency is a ‘legal framework’ similar to the registration of marriage. There is a dividing line between them, and crossing this line is a matter that should be addressed by the legislature. The line is the very symbol, the value decision, which calls for the legislature to consider the matter, since registration is ultimately tantamount to an official stamp of approval given by the state for the creation of a family unit that is recognized only in a small minority of countries around the world. Therefore, were my opinion heard, we would not grant the petitions.

 

 

Petition granted by majority opinion (President Emeritus Barak, President Beinisch, Vice-President Rivlin and Justices Procaccia, Naor and Hayut), Justice Rubinstein dissenting.

30 Heshvan 5767.

21 November 2006.

HCJ 2232/03

A

v.

1.         Tel-Aviv-Jaffa Regional Rabbinical Court

2.         Great Rabbinical Court of Appeals

3.         B

 

Joined pursuant to the court’s decision of 13 December 2005:

Attorney-General

 

 

The Supreme Court sitting as the High Court of Justice

[21 November 2006]

Before President Emeritus A. Barak and Justices M. Naor, E. Hayut

 

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

 

Facts: The petitioner and the third respondent are Jews who are Israeli citizens and residents. Although they were competent to marry in accordance with Jewish law, they chose to marry in a civil ceremony in Cyprus. The marriage subsequently broke down and after various proceedings in the rabbinical courts, the rabbinical court dissolved the marriage by means of a divorce decree. The petitioner petitioned the High Court of Justice. In her petition she argued that the rabbinical court acted unlawfully when it dissolved the civil marriage and the grounds for the dissolution of the marriage were improper.

 

Held: Following the decision of the Great Rabbinical Court in this case, civil marriages of Jews contracted outside Israel are recognized by Jewish law as marriages in accordance with the ‘laws of the Children of Noah,’ i.e., those laws which under Jewish law govern the whole of mankind. Such marriages between Jews, while not having any ‘internal’ validity under Jewish law because they do not comply with the requirements of Jewish (religious) law, have ‘external’ validity in that they are recognized internationally and prevent parties who have contracted such a marriage from remarrying until the civil marriage is dissolved. In Israel, the rabbinical courts have sole jurisdiction to make a divorce decree that dissolves civil marriages between Jews. Such a decree need not be based on one of the grounds for divorce under Jewish (religious) law. The proper ground for dissolving such marriages is that the marriage has ended, i.e., that it has broken down irretrievably. The divorce decree does not require the consent of both parties nor does it require the proof of any element of fault on the part of one or other party.

 

Petition denied.

 

Legislation cited:

Palestine Order in Council, 1922, arts. 46, 47.

Penal Law, 5737-1977, s. 177.

Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, ss. 1, 2, 3.

Spouses’ Property Relations Law, 5733-1973.

Women’s Equal Rights Law, 5711-1951.

 

Israeli Supreme Court cases cited:

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

[2]      HCJ 80/63 Garfinkel v. Minister of Interior [1963] IsrSC 17 2048.

[3]      HCJ 58/68 Shalit v. Minister of Interior [1969] IsrSC 23(2) 477; IsrSJ SV 35.

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

[5]      HCJ 51/80 Cohen v. Rehovot Regional Rabbinical Court [1981] IsrSC 35(2) 8.

[6]      HCJ 592/83 Fourer v. Fourer [1984] IsrSC 38(3) 561.

[7]      LCA 8256/99 A v. B [2004] IsrSC 58(2) 213.

[8]      CA 191/51 Skornik v. Skornik [1954] IsrSC 8 141; IsrSJ 2 327.

[9]      CA 373/72 Tapper v. State of Israel [1974] IsrSC 28(2) 7.

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

[11]    HCJ 3/73 Kahanoff v. Tel-Aviv Regional Rabbinical Court [1985] IsrSC 39(1) 449.

[12]    HCJ 148/84 Shemuel v. Tel-Aviv Regional Rabbinical Court [1985] IsrSC 39(4) 393.

[13]    CA 4590/92 Kahana v. Kahana (unreported).

[14]    HCJ 301/63 Streit v. Chief Rabbi [1964] IsrSC 18(1) 598.

[15]    HCJ 6334/96 Eliyahu v. Tel-Aviv Regional Rabbinical Court (unreported).

[16]    HCJ 5679/03 A v. State of Israel (not yet reported).

[17]    LCA 120/69 Shragai v. Shragai [1969] IsrSC 23(2) 171.

[18]    CA 22/70 Ze’ira v. Ze’ira [1970] IsrSC 24(1) 475.

[19]    CA 328/67 Scharfsky v. Scharfsky [1968] IsrSC 22(2) 277.

[20]    CA 5258/98 A v. B [2004] IsrSC 58(6) 209; [2004] IsrLR 327.

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

[22]    HCJ 9476/96 Sargovy v. Jerusalem Regional Rabbinical Court (not yet reported).

[23]    CA 571/69 Kahana v. Kahana [1970] IsrSC 24(2) 549.

[24]    CA 1915/91 Yaakovi v. Yaakovi [1995] IsrSC 49(3) 529.

 

For the petitioner — M. Barshilton, Y. Barshilton.

For the first and second respondents — S. Yaacobi.

For the third respondent — G. Schneider, H. Schneider.

For the Attorney-General — Dr H. Sandberg.

 

 

JUDGMENT

 

 

President Emeritus A. Barak

A Jewish man and woman, Israeli residents and citizens, who are competent to marry according to Jewish religious law, married in a civil ceremony in Cyprus. Subsequently the relationship between the spouses broke down. The question before us is how the civil marriage of the spouses should be dissolved.

A.    Background and proceedings

1.    The petitioner and the third respondent (hereafter — the respondent) are Jews and residents and citizens of Israel. They are competent to marry in accordance with Jewish law. They married in a civil marriage in Cyprus in 1987. When they returned to Israel, on the basis of the Cypriot marriage certificate, they were registered at the Population Registry as married. Later they held in Israel a ‘private wedding ceremony,’ which was conducted by a Reform rabbi. In 1990 a daughter was born. Over the years the marriage foundered. They began proceedings with regard to separation, property matters, financial support and the custody of their daughter before the Family Court. On 20 August 2000 the wife, who is the petitioner, filed a claim for reconciliation in the Tel-Aviv Regional Rabbinical Court. A year later she filed an application to cancel the claim, because of a further deterioration in the breakdown of the relationship between the spouses. Her application was granted and on 25 July 2001 the claim for reconciliation was struck out. Within a short time, on 3 September 2001, the husband, who is the respondent, filed a claim in the Rabbinical Court for a declaratory judgment ‘that the parties are not married according to Jewish law, or alternatively for divorce.’ The Rabbinical Court was also asked to declare that the respondent was not liable to support the petitioner financially under Jewish law. In his claim, the respondent argued that the dispute between the parties continued to deteriorate and that the relationship between them ‘had come to an end.’ He applied to divorce the petitioner. He also stated in the action that the petitioner herself ‘was not prepared to be divorced from the plaintiff but was also not prepared to live with the plaintiff.’

2.    The Regional Rabbinical Court granted the respondent’s claim. In its judgment on 7 April 2002 it held that the spouses had married in a civil marriage with the deliberate intention of not marrying in accordance with Jewish law, and that they not be constrained to do so. In such circumstances, the Rabbinical Court held that there were no grounds for concern that the parties were married under Jewish law, and there was no need for a Get.[1] The ‘private marriage ceremony,’ which did not satisfy the requirements of Jewish law for a marriage ceremony, also led the Rabbinical Court to the conclusion that the parties had not intended to marry in accordance with Jewish law. In view of these conclusions, the Rabbinical Court said:

     ‘The court holds in a declaratory judgment that the parties are not married under Jewish law.’

3.    Subsequently, for the purpose of the proceedings between the spouses in the Family Court, the respondent applied to the Regional Rabbinical Court and asked for a written confirmation that pursuant to the judgment he was entitled to remarry. The following was the decision of the Rabbinical Court:

     ‘In view of the aforesaid judgment, he is entitled to marry as a bachelor in accordance with Jewish law.’

The respondent applied once again to the Rabbinical Court in an application to clarify the judgment also with regard to the petitioner’s status. Once again the Regional Rabbinical Court ruled:

     ‘If the parties are not married to one another in accordance with Jewish law, there is no need for a clarification and the woman may marry as a spinster in the spirit of what was held in the judgment.’

4.         On 30 July 2002 the petitioner appealed these clarifying decisions to the Great Rabbinical Court. In her appeal she argued that the judgment of the Regional Rabbinical Court held only that the spouses were not married in accordance with Jewish law. This ruling did not, in her opinion, address the validity of the civil marriage. Therefore the Rabbinical Regional Court was not entitled to determine that the parties were free to marry, since the civil marriage was still valid. The petitioner further argued in her appeal that in order to bring the civil marriage to and end, a judicial act was required, and this should address whether there were any grounds for divorce and what rights were involved in the divorce. A determination that the parties were not married according to Jewish law was insufficient to dissolve the civil marriage.

5.         The Great Rabbinical Court allowed the petitioner’s appeal. In its judgment on 5 February 2003 it held that the Rabbinical Court was competent to dissolve the marriages of Jewish couples in Israel, whether by means of a Get or, when Jewish law does not require a Get, by means of a divorce decree. For this purpose a positive act of the Rabbinical Court was required to dissolve the marriage. The judgment of the Regional Rabbinical Court did not constitute such an act. The Great Rabbinical Court said:

     ‘In this case, the Rabbinical Court chose to give a declaratory judgment only, without adding to it a decree dissolving the marriage… The Regional Rabbinical Court satisfied itself with the first part of the claim, and gave a declaratory judgment that the parties were not married in accordance with Jewish law. The problem, however, is that from the viewpoint of civil law the parties married in a civil ceremony and they are considered married throughout the world, including in the State of Israel. There is a simple remedy to this. The Regional Rabbinical Court could have added one line to its judgment and said in it that the Rabbinical Court hereby dissolves the marriage. This single line is sufficient to make the parties unmarried even in accordance with civil law. The Regional Rabbinical Court chose to ignore the operative decision to dissolve the marriage and satisfied itself with a declaratory judgment in accordance with Jewish law, which gives rise to an intolerable result. The parties are not considered married under Jewish law, but their civil marriage has not been dissolved. This is the outcome that confronts the parties. Therefore we have no alternative other than to allow the appeal. The way to resolve the matter is to apply once again to the Regional Rabbinical Court in an application to dissolve the parties’ civil marriage.’

6.    When the judgment of the Great Rabbinical Court was brought before it, the Regional Rabbinical Court gave an additional judgment on 12 February 2003. In this judgment the Regional Rabbinical Court did what it needed to do according to the judgment in the appeal, and made the following decision:

     ‘In the appeal to the Great Rabbinical Court the court was required to add to the judgment that the court hereby dissolves the marriage, and therefore the court reiterates the judgment “that the parties did not marry one another in accordance with Jewish law and the court hereby dissolves the marriage and the parties may marry in accordance with Jewish law as unmarried persons.’

7.    Following the additional judgment of the Regional Rabbinical Court, the petitioner filed the petition in this court. In her petition she requested that we order the judgment of the Regional Rabbinical Court of 12 February 2003 to be set aside, and we also set aside the guideline appearing in the judgment of the Great Rabbinical Court according to which adding the missing line was sufficient to dissolve the marriage. The petitioner focused on the argument that without the consent of both parties, the mere fact that a Jewish couple married in a civil marriage that took place outside Israel and did not marry in accordance with Jewish law cannot in itself constitute grounds for dissolving the civil marriage. It follows that the decision to dissolve the marriage without consent, which is based on the actual civil marriage, is unlawful and should be set aside. We heard the petition on 9 July 2003. At the end of the hearing, in accordance with the proposal of Advocate S. Yaacobi, the legal adviser to the Rabbinical Courts, we referred a request to the Great Rabbinical Court to set out in full the reasoning underlying its judgment, before we continued to hear the petition. The following is what we said in our decision:

     ‘Before we continue to hear the petition, and in accordance with the proposal of Advocate S. Yaacobi, we would ask the Great Rabbinical Court to set out in full the reasoning for its judgment in so far as its remarks at the end of the judgment are concerned… according to which “the way to resolve the matter is to apply once again to the Regional Rabbinical Court in an application to dissolve the parties’ civil marriage.” In the course of reading the petition and the reply to it — which were also sent to the Great Rabbinical Court — several questions arose, such as: according to which law was the marriage dissolved? What are the grounds for this? Is the application of one party sufficient? When we receive the supplementary decision of the Great Rabbinical Court we will continue to hear the petition.’

B.    The supplementary judgment of the Great Rabbinical Court

8.    The Great Rabbinical Court (Rabbis S. Dichovsky, S. Ben-Shimon and A. Sherman) responded to our request. On 11 November 2003 it gave a supplementary judgment, per Rabbi S. Dichovsky, in which it addressed our questions (hereafter — the supplementary judgment of the Great Rabbinical Court). The first question addressed was: according to what law was the civil marriage dissolved? In the course of answering this question, the Great Rabbinical Court addressed the question of the validity of a civil marriage between an Israeli Jewish couple. The following is what it said:

     ‘The question of the validity of a civil marriage between an Israeli Jewish couple has, in essence, two aspects. One aspect concerns the reciprocal obligations of the parties. Does the law in the State of Israel recognize this marriage as creating an ordinary set of obligations of “status”? Does an obligation of financial support arise? Does the spouse have a right to inheritance? The other aspect concerns the ramifications of this marriage vis-à-vis third parties: does this marriage prevent the parties from marrying third parties until the marriage is ended, or in our expression “dissolved” (from the expression “to dissolve a union”), according to law? The first aspect, the validity of a civil marriage that took place abroad between Jews who are citizens of Israel vis-à-vis the reciprocal obligations of the parties, was thoroughly, analytically and profoundly considered by the late Prof. Menashe Shava… Prof. Shava’s conclusion is:

     “When the civil court considers the validity of a civil marriage that took place abroad between a Jewish couple who are citizens of Israel, it is required to examine its validity under Jewish law, as the ‘personal law’ of the spouses within the meaning thereof in art. 47 of the Palestine Order in Council, without taking into account the law of the place where the marriage took place.”

     This conclusion has been adopted, inter alia, by the Tel-Aviv District Court… In that case, a claim for financial support that was filed by a wife who marriage her husband in a “Paraguayan marriage” was denied. The court held that at the time of the marriage, the couple were both residents and citizens of the State of Israel, and therefore their personal law at the time of the marriage was Jewish religious (Torah) law. Since they did not marry in accordance with Torah law, it was not possible to recognize the woman as married for the purpose of an obligation of financial support.

     Indeed, we agree with Prof. Shava’s opinion, that it is necessary under Israeli law to examine the validity of the marriage under Jewish law. We also agree with the position of the District Court with regard to the husband not being liable to support the wife financially. In our opinion, the same law ought to apply with regard to the spouse’s statutory right of inheritance, but of course that is not the issue in this appeal’ (p. 3 of the supplementary judgment of the Great Rabbinical Court).

9.    The main issue that was addressed by the Great Rabbinical Court was the ramifications of the marriage on third parties. In this regard, the Great Rabbinical Court held, with regard to the offence of ‘bigamy’ in the Penal Law, the following:

‘… It is sufficient that a civil marriage is valid under the internal law that prevails in the place where it is contracted — in our case, in Cyprus — in order that this should prevent a Jew who is an Israeli citizen, as long as the marriage has not been dissolved, from marrying another person. … In view of the position that was described above, we held that a positive order should be added to the effect that the rabbinical court “dissolves the marriage.” Thereby the rabbinical court terminates in Israel the legal validity of the civil marriage with regard to the criminal aspect of bigamy, and each of the parties may marry another person… Under section [177 of the Penal Law, 5737-1977], a judgment of the competent religious court that cancels or terminates the marriage changes the spouses into unmarried persons, from the time when the judgment is given’ (pp. 4-5 of the supplementary judgment of the Great Rabbinical Court.

10. The Great Rabbinical Court emphasized that the only competent court to dissolve the marriage is the rabbinical court (s. 1 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953). The law that the rabbinical courts will apply is Torah law. Therefore the Great Rabbinical Court was required to examine the position of Jewish religious law with regard to civil marriages and the means of dissolving them. The Great Rabbinical court said that there is a long-standing difference of opinion between the arbiters of Jewish law with regard to the validity of civil marriages under Jewish law. The accepted approach in the Rabbinical Court is that a civil marriage that takes place where there is no alternative is treated strictly from the viewpoint of Jewish religious law. The assumption is that the couple wish to marry lawfully and they are living like a husband and wife in order to conduct a family life in accordance with Jewish law. The significance is that should they wish to continue their marriage, a Jewish religious marriage ceremony should be arranged for them. If one of the parties wishes to end the marriage, it is possible to allow them to separate with some degree of leniency. On rare occasions it is even possible to dissolve the marriage without a Get.

11. By contrast, a civil marriage that is contracted by choice and out of a desire to marry other than in accordance with Jewish religious law is regarded as a marriage that is contrary to Jewish law. Since such a couple reject Jewish law, the marital relations between them are intended to create a family other than in accordance with Jewish law. In such a situation, a husband is not required to give his wife a Get. The marriage may be dissolved by making a divorce decree. The Rabbinical Court clarified that there is a possibility in Jewish law of dissolving a marriage without a Get. It reviewed the Jewish law sources, in which Jewish law recognized the possibility of dissolving a marriage union without a Get. These also mention the custom in the rabbinical courts of dissolving civil marriages by way of a decree. The court said:

     ‘Jewish law requires a Get to dissolve a marriage. As we have said, Jewish law allows a marriage to be dissolved in another way in the case stated above. The rabbinical courts have also added to this list cases of civil marriages that were contracted in a manner that is not according to Jewish law, as stated above. The marriage is dissolved by means of a divorce decree, according to the accepted practice of civil law in many countries. The dissolution of the marriage has the same significance as a divorce in every respect, without a need to use a Get. It is hard to say when the rabbinical courts began to dissolve civil marriages by making divorce decrees, but today this is a widespread practice of the rabbinical courts’ (p. 8 of the supplementary judgment of the Great Rabbinical Court).

The Great Rabbinical Court further said that in such a situation where it is the rabbinical court that dissolves the marriage by means of a decree, the consent of the husband, which is required for a Get, is also not needed:

     ‘These divorces are effected by the rabbinical court by means of a divorce decree. Therefore the rabbinical court is its own master and can dissolve the marriage without consent’ (p. 9 of the supplementary judgment of the Great Rabbinical Court).

12. The Great Rabbinical Court found the basis in Jewish law for giving a divorce judgment in the ‘Noahide laws.’[2] This relies on the approach that even though when the Torah was given special laws of marriage and divorce were imposed on the Jewish people, they were not exempted from the Noahide laws of marriage and divorce. According to Jewish law, the Children of Noah also have their own laws of marriage and divorce. The Children of Noah do not have a law of the sanctity of marriage (kiddushin) but they do have a law of marriage (insulin). The Great Rabbinical Court said:

     ‘The concept of the sanctity of marriage (kiddushin) is unique to the Jewish people, whereas the concept of marriage (insulin) is universal (and see Avudraham’s Prayer Book on the betrothal blessing). The “divorce” of a Jew is associated with the sanctity of marriage (kiddushin), so that anyone who is not subject to the laws of kiddushin that are unique to the Jewish people is not subject to the Jewish laws of divorce. In other words, he is not subject to the special Jewish laws of divorce’ (p. 9 of the supplementary judgment of the Great Rabbinical Court).

The original position of Jewish law was that couples who married in accordance with the Noahide laws could divorce without any grounds whatsoever; it was sufficient for one to leave the other in order that both should be permitted to remarry. But over the years a custom of registering marriage and divorce arose also among the Children of Noah, and with it a requirement for a formal process of divorce. This requirement is recognized today by Jewish law. Thus the Great Rabbinical Court held:

     ‘Over the years all civilized countries have introduced marriage and divorce procedures, which involve a government authority. It can be said that in principle Jewish law also recognizes the binding validity of these procedures. With regard to divorce, the universal custom today is that the competent court in each country is the body that decrees parties to be divorced, and a physical separation between the spouses is insufficient. According to the approach of Maimonides it can therefore be said that divorces of the Children of Noah are today effected, in accordance with the custom of the nations of the world, by means of a decree of the competent religious or secular court that the parties have parted from one another. This custom has binding validity under Jewish law’ (p. 11 of the supplementary judgment of the Great Rabbinical Court).

The Great Rabbinical Court went on to hold that:

     ‘Jewish law admittedly refuses to give full recognition to “civil marriages,” and it requires Jewish couples to complete the relationship between them by means of a marriage in accordance with Jewish law. At the same time, Jewish law recognizes these marriages as Noahide marriages’ (p. 11 of the supplementary judgment of the Great Rabbinical Court).

These civil marriages of Jewish are, according to Jewish law, ‘marriages for the purpose of divorce according to the Noahide law.’ Since Jewish law recognizes civil marriages of Jews as ‘Noahide marriages,’ it should also follow the rules concerning the divorces of such couples. In order for them to divorce, in accordance with the universal custom of the Children of Noah, a decree of the rabbinical court is required:

     ‘According to the original law of the Children of Noah, a physical separation between the couple was sufficient in order that the law should regard them as divorced from one another. Today, in accordance with the universal custom of all the Children of Noah, there is a need for the court to make a decree to this effect. Especially with regard to Jews this is not an insignificant matter. According to the practice of the rabbinical courts, the court examines in each case of a couple who entered into a civil marriage whether the specific couple can be regarded as married in accordance with the Jewish laws of marriage (and not merely as “Children of Noah”). This examination is made in order that couple may not become available to remarry unlawfully, with all of the serious ramifications that this entails under Jewish law. Indeed, once the rabbinical court has arrived at the conclusion that the parties are not married in accordance with Jewish law, the court has not completed its task. Since the parties are prohibited from remarrying until their civil marriage has been cancelled or annulled, the court decrees the “dissolution” of the civil marriage’ (pp. 11-12 of the supplementary judgment of the Great Rabbinical Court).

The Great Rabbinical Court clarified that this decree does not annul the marriage ab initio. The termination of the marriage has prospective effect:

     ‘By doing this, the rabbinical court does not decree that the marriage was void ab initio… These marriages are valid like all marriages of the Children of Noah, and the Jewish people are also a part of the Children of Noah. By decreeing the dissolution of the marriage, the rabbinical court terminates the civil marriage from that moment onward’ (p. 12 of the supplementary judgment of the Great Rabbinical Court).

13. Thus the Great Rabbinical Court arrived at the second question addressed to it, namely the question of the grounds for dissolving the civil marriage. The Great Rabbinical Court held that in a divorce not requiring a Get, there is no need for any Jewish law grounds for compelling a Get. The court need only examine the circumstances and the absence of any chance of a reconciliation between the parties:

     ‘When the court finds that there is no possibility of a reconciliation between the couple, then the court can arrive at the conclusion that they should separate, and the divorce is effected by means of a divorce decree. Even in these marriages[3] the rabbinical court makes efforts to reconcile the parties and to persuade them to marry in accordance with Jewish law’ (p. 12 of the supplementary judgment of the Great Rabbinical Court).

With regard to the third question — whether an application of one party is sufficient in order to dissolve the civil marriage — the Great Rabbinical answers that it is. It holds that the rabbinical court may decree the dissolution of the marriage without consent, when it transpires that there is no possibility of the parties living in harmony, even if there are no grounds for divorce under Jewish law.

14. With regard to the specific case, the Great Rabbinical Court said that the parties deliberately chose not to be bound by Jewish law, and they contracted a civil marriage in Cyprus. It became clear to the court that the couple could not be reconciled. The husband strongly objected to continue the formal state of marriage, and there was no reason why the parties should continue to be related on paper only. The ground for determining that the parties should divorce was ‘the end of the marriage.’ The marriage had ended and their relationship was far from harmonious. In such circumstances, since there was no chance of a reconciliation, the marriage was dissolved by the rabbinical court. The court went on to say that even in a case of a Jewish law marriage, a situation of an absolute separation and the absence of any chance of a change constitutes a ground for ordering a divorce.

15. In summary, the Great Rabbinical Court set out its specific answers to our questions as follows:

‘a. The civil marriage was dissolved in accordance with Jewish (Torah) law, by means of a decree that dissolves the marriage of the parties.

b.  A decree that dissolves a civil marriage will be made when there are substantial reasons why it is not possible for the parties to live harmoniously. The rabbinical court will consider these reasons, and after it reaches a conclusion that there is no hope of a reconciliation and that there is no alternative to terminating the marriage, then a decree will be made to dissolve the marriage.

c.  The rabbinical court will examine the possibility of arranging a Get both from the viewpoint of Jewish law and from a practical viewpoint. Should it not be possible to arrange a Get from these viewpoints, then the marriage will be dissolved by means of a decree.

d.  There is no need for the consent of the two parties to dissolve the marriage; only one of them need apply for divorce, stating the appropriate grounds as aforesaid.’

C.    The positions of the parties

16. At our request, the parties stated their positions with regard to the supplementary judgment of the Great Rabbinical Court. The petitioner remained unchanged in her position that the ruling of the rabbinical court and the divorce decree should be set aside. The supplementary judgment of the Great Rabbinical Court shows, in her opinion, that civil marriage is considered ‘inferior’ by the rabbinical court and it will dissolve it without hesitation, even without any objective reason, as soon as it is asked to do so by one of the parties. The petitioner further argues that the supplementary judgment of the Great Rabbinical Court has no basis in the facts of the case. Before the Great Rabbinical Court and the Regional Rabbinical Court there was no factual basis concerning the nature of the parties’ married life and concerning the ‘end of the marriage.’ No investigation was made, in practice, with regard to any substantial reasons why a reconciliation could not be made between the parties. The Regional Rabbinical Court heard evidence solely on the question of which marriage ceremony the parties originally underwent. It is therefore unclear how the Great Rabbinical Court reached the conclusion that the parties should divorce immediately. The petitioner deduces from this that we are dealing merely with a concealment of the fundamental position of the rabbinical court with regard to civil marriages. From a factual viewpoint, the petitioner claims that recently the parties have actually become closer and the chance of a reconciliation has increased.

17. The petitioner also attacks the legal rulings in the supplementary judgment of the Great Rabbinical Court. She complains that although the rabbinical court regards the marriage as a ‘marriage of the Children of Noah,’ the criteria that are used to dissolve it are not the criteria of the ‘Children of Noah.’ The rabbinical court examines the marriage with Jewish law parameters and has a tendency to dissolve it easily. The petitioner argues that one cannot adopt the criteria of the ‘Children of Noah’ solely for the purpose of separating the spouses. One should adopt the whole legal framework, including the right to financial support after the divorce (alimony). The petitioner raises the possibility that the rabbinical court might apply to the couple the laws of divorce in the place where the marriage took place. Alternatively, Jewish law should be applied to the whole framework of the divorce, including to the question of the existence of a Jewish law ground for divorce. Otherwise any husband who contracts a civil marriage may apply to the rabbinical court in a divorce claim and automatically obtain a decree that divorces the wife and abandons her to the ignominy of starvation, without a proper economic arrangement between the spouses. This constitutes a serious violation of the wife’s dignity, her rights under the Women’s Equal Rights Law and her right to live with dignity.

18. The respondent for his part raises a host of arguments. In the procedural sphere the respondent argues that the proper way to challenge a decision of the Regional Rabbinical Court is to appeal to the Great Rabbinical Court, before applying to the High Court of Justice. The respondent adds that the petitioner has violated the procedural arrangement that was made in the Regional Rabbinical Court, according to which the hearing of the claim would be split into two parts and it was agreed that ‘if the rabbinical court would decide that the parties were not married in accordance with Jewish law, the case would be closed with the consent of both parties.’ The petitioner’s revised position is in fact tantamount to a change of direction in the petition from a petition that argues a lack of jurisdiction to a petition that argues a lack of a sufficient factual basis. On the merits, the respondent says that there is no doubt that the parties’ life together ended a long time ago and there is no chance of a reconciliation. The parties live apart. Their joint apartment was sold within the framework of a receivership that was ordered by the Family Court. The true purpose of the petition is to obligate the respondent to pay financial support for as long a time as possible. In any case, in so far as the petitioner has any arguments against the application of the law to the facts of the case, these should be pleaded in the Great Rabbinical Court in an appeal. Moreover, the factual basis before the Regional Rabbinical Court was that there was no chance of a reconciliation. What was before the rabbinical court was the petitioner’s application to cancel the reconciliation claim, the reconciliation claim itself with its contents and the respondent’s divorce claim, in which it was made clear that he was no longer interested in the marriage. There are also welfare reports (which were filed in the Family Court in the custody proceedings) according to which there was no chance of rehabilitating the relationship and it was important to bring about a quick separation of the couple.

D.    The Attorney-General’s position

19. After we received the supplementary judgment of the Great Rabbinical Court, we were of the opinion that the petition before us prima facie raises important questions with regard to which we ought to hear the Attorney-General’s position. We therefore directed the attention of the Attorney-General to the petition, in order that he might consider whether he wished to attend and address, inter alia, the question of the legal validity of ‘Cypriot marriages’ that are contracted by Jews who are citizens and residents of Israel, and the laws that apply to a divorce claim in such circumstances (our decision of 13 December 2005).

20. The Attorney-General decided to join the proceeding. In his notice (on 20 March 2006) he set out his position on the question of what should be the law that governs the dissolution of a marriage in the rabbinical court with regard to a Jewish couple who are citizens and residents of Israel and contracted a civil marriage in Cyprus. In this matter the Attorney-General supports what is stated in the supplementary judgment of the Great Rabbinical Court, in every respect. The Attorney-General does not accept the petitioner’s argument that because the marriage was valid in the place where it was contracted (Cyprus) and was registered at the Ministry of the Interior in Israel, the rabbinical court should apply to it the strict laws of divorce that apply to parties that married in accordance with Jewish religious law. The Attorney-General did not express any opinion on the question whether the civil marriage in Cyprus is a valid marriage. He merely states the fact that the registration of the marriage (at the Israeli Ministry of the Interior) does not constitute evidence that what is stated in the registration is correct. The Attorney-General focuses on substantive reasons why the approach of the rabbinical court to the dissolution of the marriage on the ground that ‘the marriage has ended’ is a proper one, even in the absence of consent and in the absence of any ground for divorce under Jewish (religious) law. According to him, the approach of the Great Rabbinical Court gives the rabbinical court or the civil court tools to dissolve the marriage and thereby stop one party from ‘imposing a veto’ on the divorce and preventing the other party from remarrying. The ground for divorce used by the rabbinical court — the ground that ‘the marriage has ended’ — is today an accepted and proper ground in many countries where civil divorces are practised. An ‘irreversible breakdown of the relationship’ between the couple is an objective and recognized ground for divorce. The approach of the Great Rabbinical Court is consistent with accepted liberal positions, while adopting a cautious approach to them. The Attorney-General adds, however, that the relative simplicity with which civil marriages that were contracted outside Israel are dissolved does not necessarily mean that the property rights of either of the spouses are violated. It is certainly possible that the parties will be entitled to property rights, usually on the basis of contractual constructions.

E. The questions to be decided

21. What lies at the heart of the petition is the legal question concerning the dissolution of civil marriages between Jews who are Israeli residents and citizens, who, although they were Israeli citizens or residents, married outside Israel, even though they were competent to marry in accordance with Jewish law. In order to arrive at a solution to this question, we need to consider four issues. The first issue concerns the validity of the civil marriage under Israeli law. The question here is whether marriages between Jews who are citizens or residents of Israel, who are competent to marry under Jewish law and who marry outside Israel in a ceremony that is recognized in the country where it took place, are valid in Israel. If it is found that the marriage is valid, a second issue arises; this concerns the jurisdiction to dissolve the civil marriage. The question here is which court (the rabbinical court or the civil court) should try the question of the divorce. The third issue concerns the grounds for dissolving the civil marriage. The question here is on what grounds should a court bring the marriage to an end. A fourth issue concerns the reciprocal rights of the couple that entered into a civil marriage. The question here is whether the spouses have rights against one another, and if so what is their source and content. Let us consider these four issues in order.

F.    The validity of civil marriages

22. The petitioner and the respondent — Jews who are residents and citizens of Israel — married in a civil ceremony outside Israel. They were competent to marry in accordance with Jewish law. They were registered at the Population Registry in Israel as married. The registration of the marriage was made on the basis of the well-established case law ruling that the Ministry of the Interior is obliged to register a marriage that appears to be valid in the absence of any evidence to the contrary (HCJ 143/62 Funk-Schlesinger v. Minister of Interior [1]; HCJ 80/63 Garfinkel v. Minister of Interior [2]; HCJ 58/68 Shalit v. Minister of Interior [3]). Since the decision in Funk-Schlesinger v. Minister of Interior [1], the registration official at the Population Registry registers civil marriages on the basis of a public certificate attesting the marriage that is submitted to him (HCJ 2888/92 Goldstein v. Minister of Interior [4]). The registration does not attest to the substantive validity of the marriage. The registration is for statistical purposes only. The question whether a civil marriage that took place abroad between Jews who are Israeli residents and citizens gives the couple a personal status of being married has arisen from time to time in the case law of this court. Although it has been discussed in several obiter statements, it has not been decided (HCJ 51/80 Cohen v. Rehovot Regional Rabbinical Court [5]; HCJ 592/83 Fourer v. Fourer [6]; LCA 8256/99 A v. B [7]). The question of the validity of the marriage arises once again in the petition before us.

23. ‘Marriages and divorces of Jews shall take place in Israel in accordance with Torah law’ (s. 2 of Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953). But what is the law concerning marriages between Jews that take place outside Israel? It is universally agreed that if the marriage outside Israel is in accordance with Jewish law, it is valid in Israel (CA 191/51 Skornik v. Skornik [8]; A. Levontin, On Marriages and Divorces that are Contracted Outside Israel (1957), at p. 18; M. Silberg, Personal Status in Israel (1965), at p. 251). But what is the law if the marriage that took place outside Israel is not a marriage in accordance with Jewish law? No problem arises, from the viewpoint of civil law and the civil courts, if at the time of the marriage the spouses were not Israeli citizens or residents. In such a case, the validity of the marriage is determined in accordance with the rules of Israeli private international law. According to these, if the personal law of the couple at the time when the marriage was contracted recognizes the validity of the marriage, Israeli civil law also recognizes the marriage (Skornik v. Skornik [8], at pp. 167-168 {360-361}). ‘The law at the time of the act is what determines the validity or the invalidity of the act’ (Silberg, Personal Status in Israel, supra, at p. 222). ‘When the parties have acquired, for example, a status of a married couple under their national law, any change that will occur in their personal law subsequently as a result of a change in their nationality is incapable of denying them the status of a married couple’ (M. Shava, Personal Law in Israel (vol. 1, fourth expanded edition, 2001), at p. 80).

24. But what is the law if at the time of the civil marriage outside Israel both spouses were Israeli citizens or residents? In this matter it was possible in the past to identify two possible approaches. According to one approach, when examining the validity of a marriage that contains a foreign element we should refer to the rules of private international law (Justice Witkon in Skornik v. Skornik [8], at p. 179 {376-377}; cf. the position of Justice Olshan, ibid. [8], at pp. 159-161 {351-353}). The rules of English private international law, which were absorbed into Israeli law by means of art. 46 of the Palestine Order in Council, 1922, distinguish between the formal validity of a marriage, which concerns the propriety of the marriage ceremony, and the essential validity of a marriage, which concerns the competence of the parties to marry. Questions concerning formal validity are governed by the law of the place where the marriage was contracted (lex loci celebrationis). The question of the competence of the parties is governed by the law of their domicile at the time of contracting the marriage (lex domicilii) or the law of the place where the marriage is intended to be realized (Dicey & Morris, Conflict of Laws (thirteenth edition, 2000), at pp. 651, 675). When we are dealing with a civil marriage between Jews who are competent to marry one another, the formal validity of the marriage (the civil ceremony) will be examined in accordance with the law of the place where the marriage was contracted. Assuming that the civil marriage ceremony is a valid form of marriage in the place where the marriage was contracted, the marriage is recognized by Israeli law, since the couple are competent to marry under their personal law. It should be noted that we are speaking of a civil marriage at which the parties are present in person. We are expressing no position with regard to marriage by proxy (such as ‘Paraguayan marriages’ or ‘Mexican marriages’).

25. The second approach to examining a civil marriage rejects the application of the rules of English private international law (with their distinction between content and form) in favour of personal law. With regard to Israeli residents and citizens, the validity of the marriage will be determined by applying their personal laws at the time when the marriage was contracted (Shava, Personal Law in Israel, supra, at p. 554); see also Levontin, On Marriages and Divorces that are Contracted Outside Israel, supra, at p. 17; cf. P. Shifman, Family Law in Israel (vol. 1, second edition, 1995), at p. 352). Those who espouse this approach regard the provisions of art. 47 of the Palestine Order in Council as requiring the civil courts to apply the personal law of the parties. With regard to Israeli citizens, this is their religious law, even if a foreign element is involved in the marriage (Shava, Personal Law in Israel, supra, at p. 131; see also Silberg, Personal Status in Israel, supra, at p. 212). Those who support this approach add that in so far as Jews are concerned, their personal law, which is Jewish religious law, does not distinguish between the content and the form of the marriage, so there is no basis for the distinction that exists in the rules of English private international law (see Levontin, On Marriages and Divorces that are Contracted Outside Israel, supra, at pp. 34-36; Shava, Personal Law in Israel, supra, at p. 558). According to this approach, the validity of the marriage of an Israeli citizen that took place outside Israel will be determined in accordance with the religious law of the Israeli citizen, precisely as if the marriage had taken place in Israel. If the religious law does not recognize the marriage, then it has no validity under Israeli law.

26. Deciding between these two approaches is difficult (see LCA 8256/99 A v. B [7], at p. 230). But we cannot avoid adopting a position on this question. The Great Rabbinical Court adopted a position when it held that:

     ‘… from the viewpoint of civil law the parties married in a civil ceremony and they are considered married throughout the world, including in the State of Israel’ (the decision of 5 February 2003).

I agree with this. The recognition of the validity of the marriage is required under the rules of private international law, which constitute an integral part of Israeli law. They were absorbed in the past from English law. Now they are independent. They develop as Israeli law develops. They therefore constitute an integral part of Israeli common law. According to these rules of private international law, when there is a foreign element in a marriage, it should be taken into account. The provisions of the Palestine Order in Council, which apply religious law as the personal law of a local citizen, are subject to the rules of private international law. Indeed, ‘the rules of private international law take precedence in their application to any law that is merely municipal or internal’ (per Justice Witkon in Skornik v. Skornik [8], at p. 179 {376-377}). Even the provisions of art. 47 of the Palestine Order in Council, which applies religious law as the personal law of a local citizen, is a ‘merely municipal or internal’ law. The provisions of the article are subject to the rules of private international law. It follows that the validity of a marriage that was contracted by a Jewish couple outside Israel, even if the two spouses were at that time residents and citizens of Israel, will be determined while taking into account the rules of the conflict of laws as practised in Israel. According to these, the marriage has formal validity (under the foreign law) and it has essential validity (under Jewish law), and therefore the marriage is valid in Israel (both from the viewpoint of the external aspect and from the viewpoint of the internal aspect). This result is also required in view of the reality of life in Israel. Thousands of Jews who are citizens and residents of Israel wish to marry by means of a civil marriage that takes place outside Israel. This is a social phenomenon that the law should take into account. This was discussed by Justices Sussman and Witkon in the past, when they expressed the opinion in obiter remarks that with regard to the validity of marriages that take place outside Israel between Israeli citizens or residents, it is sufficient that they are valid according to the law of the place where they were contracted, even if the spouses are not competent to marry under their personal law (see Funk-Schlesinger v. Minister of Interior [1], at pp. 253-254; CA 373/72 Tapper v. State of Israel [9], at p. 9). Within the framework of the petition before us, we do not need to make a decision with regard to this position, and we need only adopt the more moderate position that the marriage is valid if the couple are competent to marry under their personal law and the marriage ceremony took place within the framework of a foreign legal system that recognizes it. This conclusion is strengthened by our outlook on the human dignity of each of the spouses. The willingness to recognize the validity of a status acquired by Jews who are Israeli citizens or residents by virtue of a foreign law which is not contrary to public policy in Israel is strengthened in view of the recognition of the status of the right to marry and to have a family life and in view of the duty to respect the family unit. Indeed, ‘One of the most basic elements of human dignity is the ability of a person to shape his family life in accordance with the autonomy of his free will… The family unit is a clear expression of a person’s self-realization’ (HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [10], at para. 32 of my opinion; see also P. Shifman, ‘On Divorce Substitutes Created by the Civil Court,’ Landau Book (vol. 3, 1995) 1607, at p. 1608).

27. The rabbinical court recognized a civil marriage between Jews, who are Israeli citizens or residents, that was contracted outside Israel — a civil marriage that is not in accordance with Jewish law — in its external aspect. The supplementary judgment of the Great Rabbinical Court distinguishes between a ‘marriage in accordance with Jewish law’ and a ‘marriage of the Children of Noah.’ It classifies the civil marriage as a ‘marriage of the Children of Noah.’ It does not deny their validity. Admittedly, the rabbinical court emphasizes that Jewish law does not regard the couple as married in accordance with Jewish law. Notwithstanding, Jewish law recognizes the marriage as a ‘marriage of the Children of Noah.’ The marriage is not null and void ab initio even from the viewpoint of Jewish law. From the viewpoint of status vis-à-vis the whole world, the civil marriage has far-reaching ramifications. The spouses are not considered unmarried. Without a dissolution of the marriage, the couple are not permitted to remarry, and if they remarry, this constitutes bigamy which is prohibited by the law (see p. 4 of the supplementary judgment of the Great Rabbinical Court). This civil marriage between Jews is, according to Jewish law, ‘a marriage for the purpose of divorce according to the law of the Children of Noah.’ Moreover, a dissolution of the marriage also does not annul the marriage ab initio but merely terminates it from that time onward. The Great Rabbinical Court does not deny the existence of the marriage. It considers whether to dissolve it. The marriage exists, in its opinion, in the sense that it has legal ramifications under Jewish law with regard to its external aspect.

28. I agree with this. I regard the supplementary judgment of the Great Rabbinical Court as an important contribution to the development of matrimonial law in Israel. The supplementary judgment reduces the conflict between the two approaches for examining the validity of a civil marriage outside Israel between Jews who are citizens and residents of Israel. According to both approaches, such a marriage is recognized in Israel, and it is necessary for an act of divorce in order to sever the bond of marriage. The difference between the two approaches concerns the internal relations between the spouses. In this matter, the Great Rabbinical Court held that for the purpose of ‘the validity of a civil marriage that took place abroad between Jews who are Israeli citizens with regard to the reciprocal obligations between the parties… it is necessary under the law in Israel to examine the validity of the marriage in accordance with Jewish law’ (p. 3 of the supplementary judgment of the Great Rabbinical Court). This does not rule out the existence of a civil relationship between the parties by virtue of the application of private international law. According to this, the civil marriage that took place outside Israel between a Jewish couple who are Israeli residents or citizens is recognized as creating a status of marriage in Israel.

G.    The jurisdiction to dissolve a civil marriage

29. How does an Israeli couple, who are Jews and citizens or residents of Israel and contracted a civil marriage outside Israel, become divorced? The answer to this question can be found in s. 1 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, which provides that ‘Matters of marriage and divorce of Jews in Israel who are citizens or residents of the state shall be in the sole jurisdiction of rabbinical courts.’ ‘Matters of divorce’ of Jews also includes divorces other than by way of a Get. This was discussed by Rabbi S. Dichovsky in the Great Rabbinical Court, where he said:

     ‘The dissolution of the marriage is effected by way of a decree of divorce, as customary in the civil law of many countries. The significance of the dissolution of the marriage is a divorce in every respect, without any need to use a Get’ (p. 8 of the supplementary judgment of the Great Rabbinical Court).

Indeed —

     ‘When we are speaking of a Jewish couple in Israel who are residents or citizens of Israel, whether they married in Israel or abroad, and whether they married in a religious or civil marriage, the jurisdiction in a divorce claim between them in Israel lies solely with the rabbinical court. This jurisdiction extends to a certain class of litigants, as defined in the law — Jews, citizens or residents of the state, who are present in Israel — and it is not affected by what the couple have done or have not done previously outside Israel’ (per Justice Z. Berinson in HCJ 3/73 Kahanoff v. Tel-Aviv Regional Rabbinical Court [11], at p. 452; see also Cohen v. Rehovot Regional Rabbinical Court [5]; Fourer v. Fourer [6]).

‘There is no dispute on this matter; everyone agrees that wherever the marriage was contracted, the rabbinical court is competent to consider the question of the divorce’ (my opinion in HCJ 148/84 Shemuel v. Tel-Aviv Regional Rabbinical Court [12], at p. 398). In Cohen v. Rehovot Regional Rabbinical Court [5] it was argued that the rabbinical court is not competent to try a divorce claim between Jewish spouses (a kohen[4] and a divorcee) who married outside Israel in a civil marriage, since the rabbinical court does not recognize the civil marriage. President M. Landau rejected this argument because of ‘the possibility that a rabbinical court will decide in such a case that a Get is required as a stringency because the parties might be married… Even a Get required as a stringency is a Get and therefore it is a matter of divorce within the scope of s. 1 of the law’ (ibid. [5], at pp. 11, 12). Does it not follow from this that where a Jewish couple does not need a Get even as a stringency, as in the case before us, the rabbinical court does not have jurisdiction to consider their divorce? In the past, this question was a difficult one. Now, in view of the position of the Great Rabbinical Court that a Jewish couple who married outside Israel, are considered married (from an external viewpoint) under Jewish law, it does not give rise to any difficulty at all. Such couples are admittedly not married in accordance with Jewish law and they do not require a Get. Notwithstanding, they are married under the laws of the Children of Noah, which are a part of Torah law, and they require a divorce decree. A Get and a divorce are not the same. For this reason there is also no basis to the argument that an application to the rabbinical court in a divorce action, which is based on the claim that the civil marriage is null and void under Jewish law is ‘prima facie lacking in good faith and sincerity’ (CA 4590/92 Kahana v. Kahana [13]; see also HCJ 301/63 Streit v. Chief Rabbi [14], at p. 630).

30. It should be noted that recognition of the jurisdiction of the rabbinical court in ‘matters of divorce’ ensures the effectiveness of the dissolution of marriages. The decision on the question of the validity of the marriage and the need for a Get as a stringency depends upon the circumstances of each case. A Get or a divorce decree from the rabbinical court ensures that the Jewish couple ‘… may not become available to remarry unlawfully, with all of the serious ramifications that this entails under Jewish law’ (p. 11 of the supplementary judgment of the Great Rabbinical Court). The decision of the rabbinical court also ensures that the parties can remarry in the future in accordance with Jewish law, if they so wish. The civil court system has no good and effective civil alternative for dissolving a marriage between a Jewish couple. In view of the individual examination that is required in each case with regard to the validity of the civil marriage under Jewish law, giving the rabbinical court sole jurisdiction ensures that as a result of the divorce decree each of the parties will be regarded as single under his personal law.

31. Does the jurisdiction of the rabbinical courts to decide divorce cases of Israeli Jews who married outside Israel in a civil marriage extend also to the property aspects of the divorce? The answer to this question is no. The jurisdiction of the rabbinical courts to decide property matters relating to the divorce claim is set out in s. 3 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law. According to this:

     ‘… the rabbinical court shall have sole jurisdiction with regard to any matter that is included in the divorce claim, including financial support for the wife and the children of the couple.’

In order for an inclusion of an ancillary matter in a divorce claim to exclude the jurisdiction of the civil matter over that included matter, the litigant who relies on the inclusion must satisfy three conditions (HCJ 6334/96 Eliyahu v. Tel-Aviv Regional Rabbinical Court [15]): he must sincerely petition for divorce; he must lawfully include the ancillary matter; and he must sincerely include the ancillary matter. The three tests were intended to prevent an abuse of the inclusion arrangement by one of the spouses. ‘Their purpose is to prevent an abuse of the inclusions section by establishing an artificial impediment to an application to the civil court’ (HCJ 5679/03 A v. State of Israel [16]). It has been held in a whole host of judgments that the inclusion must be ‘sincere’ (see, inter alia, LCA 120/69 Shragai v. Shragai [17]; CA 22/70 Ze’ira v. Ze’ira [18]; CA 328/67 Scharfsky v. Scharfsky [19]). According to the supplementary judgment of the Great Rabbinical Court, the recognition of a marriage under the laws of the Children of Noah refers only to the ‘external aspect’ of the marriage that concerns the ramifications of the marriage on third parties. It does not refer to the ‘internal aspect,’ which concerns the reciprocal obligations between the spouses. In this spirit it was held in the supplementary judgment of the Great Rabbinical Court that the marriage does not create an obligation to provide financial support. In such circumstances, including property matters in a divorce claim is not a ‘sincere inclusion’; it is an inclusion whose whole purpose is merely to negate the existence of a property obligation. A Jewish spouse who chose to marry in a civil ceremony outside Israel and applies to the rabbinical court that does not recognize aspects of the marital status that concern the obligations between the parties does not act ‘sincerely’ if he also seeks to bring the financial and property matters before the rabbinical court. In such circumstances, including property matters involves an abuse of the legal tool of ‘inclusion.’ The spouse who includes property matters cannot sincerely intend to litigate before the rabbinical court on a matter that the rabbinical court does not recognize at all. Compelling the other spouse to litigate in a forum that does not recognize the property aspects of the marital status is contrary to the principles of justice. In such circumstances, an inclusion which has the purpose of giving the rabbinical court sole jurisdiction cannot be considered a ‘sincere’ inclusion. Moreover, since the Great Rabbinical Court limited its recognition of a civil marriage between Jews who are citizens and residents of Israel solely to the external aspect, it should be considered whether the issue of custody of the spouses’ children — which is a purely ‘internal’ matter — should also fall within the jurisdiction of the civil courts, and whether there should be no basis for including them ‘inherently and naturally’ with the divorce, which is only intended to regulate the external aspect of the parties’ relationship.

H.    The grounds for dissolving the marriage

(1) Possible grounds

32. What are the grounds according to which the rabbinical court will decide an action for a divorce or for the dissolution of a civil marriage? There are several possibilities with regard to the grounds for the divorce. One possibility is that the mere fact that the marriage was not contracted in accordance with Jewish law gives rise to a ground to dissolve the marriage. A second possibility is that a Jewish law ground for a Get is required, as if the parties were married in accordance with Jewish law. A third possibility is that the rabbinical court will only decide upon a divorce in accordance with the grounds for divorce that exist in the law of the place where the marriage ceremony took place. According to a fourth approach, the ground for divorce is based on the realities of the actual relationship between the parties. The ground for divorce, according to this last approach, is mainly the fact of an irretrievable breakdown of the relationship between the parties, which has de facto brought the marriage to an end. Let us briefly discuss each of the possibilities.

(2) Civil marriage as a ground for divorce?

33. Does the mere fact that the marriage was not contracted in accordance with Jewish law give rise to a ground to dissolve the marriage? The answer is no. The fact that the marriage is a civil one cannot in itself constitute a ground for divorce. This is inconsistent with the recognition of the validity of the marriage in Israeli law and with respect for the right to family life. The negative attitude of the religious law to civil marriages cannot lead to a dissolution of a marriage that took place under the auspices of civil law. A recognition of such a ground for divorce does not properly take into account the law under whose auspices the civil marriage was contracted. Moreover, a civil marriage should not be regarded, simply because of the manner in which it is contracted, as a framework that gives each of the parties an immediate and automatic right to dissolve it. It would appear that this is also the approach of the rabbinical court. In the supplementary judgment of the Great Rabbinical Court, it is expressly stated that the mere fact that the marriage is a civil one is not a ground for divorce. Indeed, the rabbinical court should make an effort to reconcile the parties. A civil marriage should not be regarded merely as a marriage for the sake of divorce. Therefore the fact that a marriage is a ‘civil’ one and was not contracted in accordance with Jewish law is not a ground for divorce.

(3) Divorce in accordance with Jewish law grounds?

34. The petitioner argues that the divorce decree of the rabbinical court should be based on the grounds for divorce in Jewish religious law, just like the law of divorce that applies to spouses who married in accordance with Jewish law. According to her, reference should be made to the grounds of divorce under Jewish law, on the basis of the assumption that the spouses married in accordance with Jewish law. This position is unacceptable to the rabbinical court. It was emphasized that ‘When according to the rules of Jewish law there is no basis for requiring a Get because of a doubt or as a stringency, it is not right to arrange a Get in accordance with Jewish law in order to dissolve such a marriage… In the case of a divorce not requiring a Get, there is no need for any Jewish law grounds for compelling a Get’ (pp. 8, 12 of the supplementary judgment of the Great Rabbinical Court). I agree with the Great Rabbinical Court. There is no reason why the divorce laws for someone who married in accordance with Jewish law should be imported and applied to someone who of his own free will contracted a civil marriage and is not married in accordance with Jewish law. An argument that Jewish law should be imported in this way sounds strange when it is made by someone who did not want to marry in accordance with Jewish law, even though he could have done so, and it is an argument that is not made in good faith. Moreover, in a marriage in accordance with Jewish law, the rabbinical court is bound by the restrictions of religious law. The grounds for divorce under Jewish law are limited. Sometimes these requirements give rise to great difficulties, create an inequality and cause serious distress to spouses and their children (see A. Rosen-Zvi, Family Law in Israel — Between Holy and Profane (1990), at p. 136 et seq.; S. Lifschitz, ‘I Want a Divorce Now! On the Civil Regulation of Divorce,’ 28 Tel-Aviv University Law Review (Iyyunei Mishpat) (2005) 671, at p. 678). By contrast, dissolving a civil marriage by means of a divorce decree, and not by means of a Get, is done by the rabbinical court itself, which can make a divorce decree — in accordance with its judicial discretion — without finding ‘fault’ and even without the consent of the non-consenting spouse. No-one is required to buy his freedom by waiving property or other rights. Of course, the discretion of the rabbinical court, like any judicial discretion, is never absolute. It is exercised within the framework of the purposes that the law is designed to realize.

(4) Divorce in accordance with the place where the marriage ceremony was held?

35. Another possibility proposed by the petitioner is that the rabbinical court is limited to the grounds for divorce recognized under the law of the place where the civil marriage ceremony took place. I cannot accept this position either. The rules of private international law oblige us to respect a foreign status, but they do not direct us to recognize all the aspects of that status under the foreign law (Shifman, Family Law in Israel, supra, at p. 373). The recognition of the status that the civil marriage creates does not mean that the court is bound by the attitudes of the foreign law with regard to the right to divorce (P. Shifman, ‘On the Right to Convert, on the Right to Divorce and on the Duty to Decide,’ 16 Hebrew Univ. L. Rev. (Mishpatim) (1986) 212, at p. 241). The recognition of the foreign status means, for the purpose of its legal aspects, that it is as if it were a local status (A.V. Levontin, Choice of Law and Conflict of Laws (1976), at pp. 26-27, 31). If the centre of the spouses’ lives is in Israel, there is nothing wrong in their being subjected to the outlooks of Israeli society with regard to the right to divorce and the manner of effecting it in practice.

(5) Divorce because of the breakdown of the marital relationship

36. The supplementary judgment of the Great Rabbinical Court adopts a position whereby the ground for divorce is the ‘end of the marriage.’ This ground is based on the realities of the relationship that exists de facto between the parties. The rabbinical court saw fit to decree the divorce after it realized that there was no possibility of reconciling the spouses and they would not live together in harmony. The supplementary judgment of the Great Rabbinical Court held:

     ‘In a divorce without a Get, there is no need for Jewish law grounds for compelling a Get. The rabbinical court satisfies itself by examining the position, and the absence of any chance for harmony between the parties. When the court finds that there is no possibility of a reconciliation between the couple, then the court can arrive at the conclusion that they should separate, and the divorce is effected by means of a divorce decree. Even in these marriages the rabbinical court makes efforts to reconcile the parties and to persuade them to marry in accordance with Jewish law. The RaMA in the Shulhan Aruch, Even HaEzer (chapter 177, para. 5) holds that it is a meritorious deed to marry a couple who have had sexual relations consensually. When it transpires that there is no possibility of living harmoniously, even if there are no Jewish law grounds for divorce, the religious court is likely to reach the conclusion that there is no reason to keep the parties within a formal civil framework, and the rabbinical court decrees the dissolution of the marriage, even without consent’ (p. 12 of the supplementary judgment of the Great Rabbinical Court).

The ‘ground of divorce’ on which the rabbinical court relied is based on an irretrievable breakdown of the marriage. I agree with this approach. It is consistent with modern approaches with regard to the grounds for divorce, which are not based solely on fault nor are they limited to cases where there is consent (see Shifman, ‘On the Right to Convert, on the Right to Divorce and on the Duty to Decide,’ supra, at p. 225; Shifman, Family Law in Israel, supra, at p. 374; S. Lifschitz, Recognized Cohabitees in Light of the Civil Theory of Matrimonial Law (2005), at pp. 303-313; Lifschitz, ‘I Want a Divorce Now! On the Civil Regulation of Divorce,’ supra, at pp. 680 et seq.). The approach of the Great Rabbinical Court does not make a civil marriage in itself a tool to obtain an immediate and automatic divorce. The breakdown of the marriage is a ‘ground for divorce’ that stands on its own. It does not derive its force from the civil marriage ceremony. It is not the civil character of the marriage that is the ground for the divorce, but the relationship of the spouses that has irretrievably broken down. The ground for the divorce is based on the realities of the spouses’ lives. Indeed, we agree in principle with the outlook that when a relationship between a couple has broken down, the parties should be allowed to escape from the bonds of a failed marriage. A person who has lived for a long time apart from his or her spouse, after the relationship broke down, should be allowed to leave the framework of the marriage. At the same time, a just and fair arrangement should be ensured with regard to the division of property and financial support between the spouses. This was discussed by Prof. Shifman, who said:

     ‘… The actual idea of no-fault divorce, which is conquering the western world more and more, lies in an outlook that gives preference to the realistic side of marriage over the symbolic side of marriage, since according to this approach, when the marriage has irretrievably broken down, it is better to make a divorce decree because the court does not have the power to change the fact that the spouses de facto live apart. The approach that makes a right to divorce conditional upon the existence of an irretrievable breakdown of the marriage irrespective of the relative fault of the parties in the failure of the marriage is therefore characterized by a functional approach that seeks to reduce the gaps between reality and legal norms’ (P. Shifman, ‘On the New Family: Subjects for Discussion,’ 28 Tel-Aviv University Law Review (Iyyunei Mishpat) (2005) 643, at p. 655).

37. The petitioner expresses a concern that this policy will lead to a perfunctory dissolution of the marital relationship. Indeed, a practice whereby the relationship is dissolved immediately, without any examination of the relationship and without trying to reconcile the spouses, is unacceptable. It is not sufficient merely to try and persuade the parties to marry in accordance with Jewish law. We cannot accept the approach that a civil marriage is merely a marriage for the sake of divorce. Every attempt should be made to continue the civil marriage between the parties. The marriage enjoys legal support whose purpose is to protect the stability of the marriage. This is clearly expressed in divorce law. A civil marriage de facto creates a family unit that deserves the support and protection of the legal system. ‘Social interests support stable marriages. The institution of marriage is central to our society’ (CA 5258/98 A v. B [20], at p. 223 {340}; see also HCJ 693/91 Efrat v. Director of Population Registry, Ministry of Interior [21], at p. 783). Indeed, the social and public interest requires protection of the family unit, and this includes a unit that is based on a civil marriage between Jewish spouses. Efforts should also be made in divorce proceedings to restore harmony, reconcile the parties and rehabilitate the family unit. An immediate dissolution of the family unit, without any attempt to effect a reconciliation, is usually inconsistent with the best interests of the children (see HCJ 9476/96 Sargovy v. Jerusalem Regional Rabbinical Court [22], at para. 30).

38. A liberal divorce regime also seeks to prevent perfunctory and hasty divorces (Shifman, Family Law in Israel, supra, at p. 161). The relationship between spouses is a complex and sensitive matter. It is characterized by ups and downs. Passing ill winds may assault it. Crises in family life may lead the spouses to initiate legal proceedings against one another. These do not always indicate a final and absolute breakdown of the marriage. Care should be taken not to exacerbate the crisis. Not every deterioration in a marital relationship leads necessarily to a breakdown of the family unit. It would appear that the need for the participation of the state, through the courts, in the dissolution of a marriage acts as a check or restraint upon hasty and rash decisions. But this is not enough. Dissolving the marriage cannot be done as a matter of course, immediately and automatically. It is the nature of disputes between spouses that they are for the most part hidden and only the surface is visible. The rabbinical court should make an effort to discover the details of the case. It should obtain a full picture of the family relationship. It should examine whether the breakdown between the spouses is indeed irretrievable, to the point where the marriage has come to an end. The seriousness of the crisis should be examined. The parties should not simply be directed towards a dissolution of the marriage. The possibilities of reconciling the spouses should be exhausted, in the manner accepted in divorce claims between spouses who married in accordance with Jewish law. The interim period during which the rabbinical court examines the case may in itself, in certain cases, cool the temper of the spouse seeking a dissolution of the marriage. The interim period may also allow the spouse who opposes the divorce a period to recover and adapt to the new situation.

39. Ultimately, the institution of marriage will not be protected by anchoring spouses to a marriage that in practice has broken down. Justice Kister rightly said that:

     ‘The modern approach is based on the fact that if a marriage of a certain couple has in practice broken down, either of the spouses who so desires should be allowed to remarry lawfully and raise a family. Admittedly, the courts and public institutions should aim to preserve the stability of the family, but when this is impossible, one or both of the spouses should not be anchored to it’ (CA 571/69 Kahana v. Kahana [23], at p. 556).

These remarks, which were made with regard to marriage in accordance with Jewish law, apply also to civil marriage. It is not the civil marriage that leads to the divorce claim but the deterioration in the marital relationship that leads to the divorce claim. Usually a refusal to grant a relief of divorce does not reconcile the spouses. Parties should be allowed to escape relationships that have broken down. An ‘irretrievable breakdown of a marriage’ should be regarded as a situation in which the marriage has de facto come to an end (per Justice T. Strasberg-Cohen in CA 1915/91 Yaakovi v. Yaakovi [24], at p. 628). A divorce at the request of one of the spouses should not be regarded as wrong when the family unit has de facto broken down and the marriage has become an empty shell. This approach properly balances the need to protect the stability of the marriage on the one hand and the freedom of the individual to shape his personal life on the other.

40. The petitioner further argues that the policy of the rabbinical courts with regard to the dissolution of civil marriages results in an infringement of economic rights. Her concern is that a hasty dissolution of the marriage, upon an application of one party and without the consent of the other party, may have serious results. Indeed, often the argument is made that in the prevailing socio-economic climate, the system of ‘no-fault divorces’ that allows divorces without consent may cause serious economic harm to the spouse who is economically weaker, which is usually the wife (see, for example, E. Shochetman, ‘Women’s Status in Matrimonial and Divorce Law,’ Women’s Status in Society and Law (F. Raday, ed., 1995) 380, at p. 434). The argument is that a divorce regime that allows each of the spouses to be released from the marriage unilaterally, without any grounds and without any continuing financial commitment exposes the weaker spouse to abandonment and gives rise to a serious concern of opportunistic conduct (Lifschitz, Publically Recognized Partners in Light of the Civil Theory of Matrimonial Law, supra, at p. 334). Remarks in this vein were also uttered by Prof. Shifman:

     ‘… A civil marriage has a huge advantage. The fact that no marriage was contracted by the parties in accordance with Jewish law gives each of the parties a right to request a divorce without providing special grounds that are founded on the traditional concepts of fault. A person does not need to buy his freedom to remarry by means of financial and other waivers. There is no possibility of obtaining advantages with regard to the terms of the divorce by opposing it. On the other hand, it is precisely this desirable and praiseworthy phenomenon that exposes a serious legal problem which is diminished in divorces that are the result of an agreement between the parties. I am referring to the need to compensate fairly the party who suffers financially as a result of the termination of the marriage that is forced on him and who does not have any say in the terms of the divorce. As we said, this need is more pronounced in those cases in which the property rights that are given to that party are not sufficient to allow him to change over from financial dependence to complete independence’ (Shifman, Family Law in Israel, supra, at p. 381).

Prof. Rosen-Zvi said in this regard:

     ‘In recent years it has been proved that in the no-fault divorce system the bargaining power of a wife who, in the style of years past could be said to be innocent of any fault, has decreased. The husband does not need to make economic concessions in return for his freedom to remarry at will’ (Rosen-Zvi, Family Law in Israel — Between Holy and Profane, supra, at p. 148).

Dr Lifschitz has also addressed this issue:

     ‘… It would appear that even in the modern world the basic weakness at the heart of married life arises: the concern that the party who has invested in the family at the expense of his personal development will be exposes to the abandonment of the other spouse, when his talents are no longer required. The economic analysis in this regard shows therefore that because of the distribution of roles between the parties and its timing, the model of marriage as a contract that can be dissolved immediately, as is customary in modern matrimonial law, gives rise to a serious concern of opportunistic conduct. By contrast, and in accordance with the above analysis, establishing restrictions and determining a price for divorce may contend better with the concern of opportunism’ (Lifschitz, Publically Recognized Partners in Light of the Civil Theory of Matrimonial Law, supra, at p. 334).

41. In so far as ‘no-fault divorce’ laws can be criticized for leaving the ‘weaker’ spouse without economic protection after divorce, this does not necessarily lead to a conclusion that these laws should be rejected. The financial interests of the weaker spouse should be protected in other ways. Protection of the ‘weaker party’ in a marriage does not need to be effected by means of anchoring the spouse to a formal marriage that has broken down de facto. If one spouse has become financially or socially dependent on the other, the solution is not to anchor the ‘strong’ spouse to the marriage. The solution to problems of this kind will be found in the sphere of the financial arrangements between the spouses and not in restricting the actual possibility of divorcing (Shifman, Family Law in Israel, supra, at p. 382; Lifschitz, Publically Recognized Partners in Light of the Civil Theory of Matrimonial Law, supra, at p. 336). Indeed, the rabbinical court’s decree that divorces the parties does not end the relationship between them. What is this relationship?

I.     The reciprocal rights of the spouses

42. The reciprocal rights of the parties — the internal status of the marriage — are decided by the civil court. What is the law according to which the civil court will decide these? The answer to this question is complex. The civil courts will need to develop this civil family law. The problem does not arise in our case. It is sufficient if we say that civil law in Israel has legal tools that can be used to develop this law. The main tool is that of contracts in general, and the principle of good faith in particular. In LCA 8256/99 A v. B [7] I said:

     ‘… where one party needs the support of the other — whether in financial support or in other ways — he is entitled to receive this support. The spouses are not passers-by who were brought together by a road accident. The spouses wanted to live their lives together. The requirements of equity, the considerations of fairness and the sentiments of justice in Israeli society lead to a conclusion that there should be a duty to pay financial support’ (ibid. [7], at pp. 233-234).

The payment of civil financial support will safeguard the lifestyle of the ‘weaker’ spouse and allow his rehabilitation after the divorce. The presumption of joint ownership — in so far as it applies in a marriage in accordance with Jewish law — will also apply, of course, according to its conditions, to someone who contracted a civil marriage, and it, together with the provisions of the Spouses’ Property Relations Law, 5733-1973, will contribute to the protection of the weaker party in the life of the family, promote equality between the spouses and ensure financial independence after the divorce.

J.     From general principles to the specific case

43. The petitioner and the respondent, who are Jews and citizens and residents of Israel, contracted a civil marriage in Cyprus. The husband applied to the rabbinical court after the petitioner cancelled her action for a reconciliation, a claim that was tried in the rabbinical court for approximately a year. He sought to divorce the petitioner since, according to him, the conflict between the parties was becoming worse and the relationship between them had come to an end. The rabbinical court granted the husband’s claim and declared that the parties were not married in accordance with Jewish law. Subsequently, in view of the guidelines of the Great Rabbinical Court, a supplementary decree was made in which the Regional Rabbinical Court dissolved the marriage, notwithstanding the petitioner’s objections. We have seen that the rabbinical court was of the opinion that there remained no hope of a reconciliation between the parties and it arrived at the conclusion that there was no reason to leave the parties within the framework of a civil marriage. In the proceedings that took place before the rabbinical court there is no defect that justifies our intervention. The difficult relationship of the spouses was brought before the rabbinical court. It transpired that the relationship had irretrievably broken down. The life of the family had been undermined irreparably. The petitioner herself had lost hope that the parties would once again have a proper marital relationship. These circumstances of a prolonged separation that was clear to everyone require a legal arrangement that is consistent with the realities of the relationship between the parties — a situation of profound conflict and a breakdown of the family framework. In order to make such a legal arrangement, the rabbinical court acted by way of dissolving the civil marriage. The proceedings in the rabbinical court were limited to the question of the divorce. Against this background, we are of the opinion that the rabbinical court acted within the scope of its jurisdiction and properly exercised its discretion.

Conclusion

44. The recognition in Israel of civil marriages between Jews who are Israeli citizens or residents, which were contracted under the auspices of a foreign law, gives rise to serious problems. A situation in which thousands of Jewish couples who are citizens or residents of the state do not marry in Israel in accordance with Jewish law but contract civil marriages outside Israel creates a reality with which Israeli law is obliged to contend. The matter lies mainly within the province of the legislature. It is without doubt a very heavy burden. Notwithstanding, the supplementary judgment of the Great Rabbinical Court and our judgment, which reflect the prevailing law, can form a normative basis on which the Knesset can establish the proper solution to these civil marriages, which are contracted by Israeli Jews outside Israel. As long as the legislature has not had its say, there is no alternative to a judicial solution of the problems that life presents. I regard the supplementary judgment of the Great Rabbinical Court as a proper premise for formulating judicial law in this sphere. The ‘external’ recognition that the Great Rabbinical Court affords civil marriages between Jews from the viewpoint of Jewish law itself is of great importance. Even though it does not involve a recognition of a full status of civil marriage, it make a contribution to preventing a rift between civil law and religious law; it allows civil law to recognize the jurisdiction of the rabbinical courts to determine the question of divorces of Jewish couples who contracted civil marriages outside Israel; it guarantees that the dissolution of the relationship between Jewish couples who married outside Israel will release each of them, both under Jewish law and under civil law —whether by means of a Get (where a Get is required) or by means of a divorce decree that is not a Get (where a Get is not required) — from the matrimonial relationship where there is a proper justification for doing so. Thereby each of the spouses, the husband and the wife, obtains the possibility of remarrying, if they so wish, without there being any problem that they may not be competent to remarry under Jewish law. But notwithstanding the importance of the supplementary judgment of the Great Rabbinical Court, it cannot be denied that it is limited to the ‘external’ aspect of the marriage. It does not recognize reciprocal obligations and rights of the spouses inter se. The solution to these will be found in the civil court, which recognizes civil marriages that took place outside Israel between Jewish spouses who are Israeli citizens or residents as creating a full status of marriage. This recognition — in so far as it concerns the internal relationship between the spouses — supplements the religious law.

The petition is therefore denied. In the circumstances of the case, there is no order for costs.

 

 

Justice E. Hayut

I agree.

 

 

Justice M. Naor

1.    My colleague President Emeritus A. Barak has presented a wide-ranging analysis, and I agree with his opinion in every respect.

2.    With regard to the couple before us, from the oral hearing it has become clear that the real question in dispute concerns the grounds on which the rabbinical court may dissolve the marriage of the parties. The petitioner and the respondent, for their own reasons, chose to contract a civil marriage. There was nothing to prevent them from marrying in accordance with Jewish law. As my colleague showed, the law respects their choice. The parties’ marriage has broken down. It is not possible, at this stage, to turn back the clock and request that the marriage should be dissolved ‘as if’ it were a marriage in accordance with Jewish law. This request is inconsistent with the joint intentions of the parties when they contracted the marriage. The different ways in which a couple may live together — marriage in accordance with Jewish law, civil marriage, recognized cohabitees — are likely to have different results in the event of a separation. Those who choose to live together in a particular way should reflect upon this.

 

 

Petition denied.

30 Heshvan 5767.

21 November 2006.

 

 

[1]   A Get is a document given by a husband to his wife under Jewish law to effect a divorce.

[2]   The laws which, according to Torah law, govern all the Children of Noah, i.e., all human beings.

[3]   I.e., civil marriages between Jews.

[4]   A kohen, a member of the priestly family descended patrilineally from Aaron, is prohibited under Jewish law from marrying a divorcee (see Leviticus 21, 7).