Prisoners’ Rights

featured:

Barzilai v. Government of Israel

Case/docket number:

HCJ 428/86

Date Decided:

Wednesday, August 6, 1986

Decision Type:

Original

Topics:

Constitutional Law

Basic Law: Administration of Justice

Abstract:

The petitions to the court related to the decision of the President of the State to pardon the Head of the General Security Service (G.S.S.) and three of his assistants in respect of all the offences attributed to them connected with the incident known as "bus no. 300". The pardons were granted by the President under sec. 11 (b) of the Basic Law: The President of the State, by which he is empowered "to pardon offenders and to lighten penalties by the reduction or commutation thereof." The principal issue raised in the petitions was whether the President had the power to pardon persons before conviction. The court was also asked to order the competent authorities to investigate the incident referred to.

1. In regard to the interpretation of sec. 11(b) of the Basic Law, the court examined the import of the terms "offence" and "offender," and reviewed the legislative background to the enactment of sec. 11(b) above, in particular Article 16 of the Palestine Order in Council of 1922 and sec. 6 of the Transition Law, 1949. The court also considered the influence on the interpretation of sec. 11(b) of the Basic Law of the Anglo - American Practice in regard to pardon, as well as the place of the Presidential power of pardon in Israel in relation to the powers of other State authorities charged with the administration of criminal justice.

Held, per Shamgar P. (Miriam Ben-Porat D.P. concurring):

Having regard to the legislative purpose in the light of the above considerations, to the need for a "spacious" interpretation in matters of constitutional content, and to the accepted construction of the pardoning power since enacted in its original form, sec. 11(b) was to be interpreted as empowering the State President to pardon offenders both before and after conviction.

Per M. Ben-Porat D.P.:

The grant of a pardon involves a conflict between two very important interests: one - equality before the law, which requires that every offender against the law should answer for his conduct; the other - the safeguarding of a vital public interest. The proper balance between the two is the determining factor and the State President was faced with the same predicament when making his pardoning decision.

Minority opinion in A. v. The Law Council [2] and the decision in Attorney-General v. Matana [3] followed:

Per Barak J., dissenting:

Upon a proper interpretation of sec. l l(b) of the Basic Law: The President of the State, the Israel Legislature cannot be presumed to have favoured Presidential intervention in criminal proceedings before these have run their full course. Under the Israel "constitutional scheme" the Presidential power of pardon must not be construed as a paramount power, or as rivaling the powers of other State authorities, such as the police, the prosecution, the courts. It must be construed as a residual or a "reserve" power to be exercised only after the other authorities concerned have exhausted their own powers, i.e. after conviction of the accused. The pardons granted in the present case therefore are void and of no effect.

2. Held by the court (per Shamgar P.):

(a) The absence of a real personal interest on the part of any of the petitioners, does not justify the immediate dismissal of the petition. The Supreme Court will take a liberal view on this aspect and grant access to petitioners where the question that arises is "of a constitutional character" or of "public interest related directly to the advance of the rule of law". This entails no general recognition of the actio popularis, only a general guideline that enables the court to open its doors in suitable cases of a public-constitutional character.

(b) In granting the pardons, the State President was acting in a matter "connected with his functions and powers" as provided in sec 13 of the Basic law: The President of the State. Hence he is not amenable to the jurisdiction of the courts in connection therewith, including the Supreme Court's powers of direct review - its authority to demand of the president himself an explanation of his decisions. This immunity relates to the direct challenge of any Presidential act, but there is no obstacle to indirect judicial review of the President's discharge of his functions in proper cases and when the proceedings are directed against some other respondent.

Voting Justices:

Shamgar, Meir

Primary Author

majority opinion

Shamgar, Meir

Author

concurrence

Barak, Aharon

Author

dissent

Full text of the opinion:

H.C.J 428/86

H.C.J 429/86

H.C.J 431/86

H.C.J 446/86

H.C.J 448/86

H.C.J 463/86

M.A.A 320/86

Y. BARZILAI, ADV.

1 GOVERNMENT OF ISRAEL

2. ATTORNEY-GENERAL

3-6. A-D H.C.J 428/86

1. Y. SARID, M.K.

2. D. ZUCKER, SECRETARY-GENERAL OF CITIZENS RIGHTS AND PEACE MOVEMENT

3. CITIZENS RIGHTS AND PEACE MOVEMENT

4. S. ALONI, M.K.

5. R. COHEN, M.K.

1. MINISTER OF JUSTICE

2. ATTORNEY GENERAL

3. INSPECTOR-GENERAL OF POLICE

4. DEPUTY PRIME MINISTER ANDMINISTER OF FOREIGN AFFAIRS

5-8. A-D. H.C.J 429/86

1. M. MAROZ, ADV.

2. D. YIFTAH, ADV.

1. MINISTER OF POLICE

2-5.A-D. H.C.J 431/86

A. ZICHRONI, ADV.

1. INSPECTOR-GENERAL OF POLICE

2. ATTORNEY-GENERAL

3. MINISTER OF JUSTICE

4. HEAD OF THE GENERAL SECURITY SERVICE (G.S.S.)

5. ASSISTANT NO. 1 TO HEAD OF G.S.S.

6. ASSISTANT NO. 2 TO HEAD OF G.S.S.

7. ASSISTANT NO. 3 TO HEAD OF G.S.S.

8. DEPUTY PRIME MINISTER AND MINISTER OF FOREIGN AFFAIRS H.C.J 446/86

1. DR. J.M. EDREY

2. DR. H. BEN-MENAHEM

3. DR. B. BRACHA

4. DR. M. GUR-ARIEH

5. DR. K. MANN

6. DR. A. MAOZ

7. DR. C. PASBERG

8. DR. M. KREMNITZER

9. PROF. D. KRETZMER

10. DR. A. ROZEN-ZVI

11. DR. Y. SHACHAR

12. PROF. M. SCHIFMAN

1. INSPECTOR-GENERAL OF POLICE

2. MINISTER OF POLICE

3. HEAD AND THREE OTHER MEMBERS OF THE G.S.S.

H.C.J 448/86

1. M.A. ABU GAM'A

2. S.H. ABU GAM'A

1. GOVERNMENT OF ISRAEL

2. MINISTER OF POLICE

3. ATTORNEY-GENERAL

H.C.J 463/86

A. BARAK

1. Y. SARID

2 .D. ZUCKER, SECRETARY-GENERAL OF CITIZENS RIGHTS AND PEACE MOVEMENT

3. CITIZENS RIGHTS AND PEACE MOVEMENT

4. S. ALONI, M.K.

5. R. COHEN, M.K.

6. MINISTER OF JUSTICE

7. ATTORNEY-GENERAL

8. INSPECTOR-GENERAL OF POLICE

M.A.A 320/86

In the Supreme Court sitting as the High Court of Justice

[6 August 1986]

Before: Justice Meir Shamgar, President

Justice Miriam Ben-Porat, Deputy-President

Justice Aharon Barak.

Constitutional and Administrative Law - Pardon of offenders by President of the State - Presidential power to pardon unconvicted suspects - Basic Law: The President of the State. sec. 11(b) - Interpretation of Statutes -Meaning of the expression "to pardon offenders" - A "spacious interpretation" of constitutional provisions - Attorney-General's power to stay criminal proceedings - Presidential power of pardon and the powers of other State authorities relating to criminal justice -Pardon and Amnesty-High Court of Justice - Locus Standi - Amenability of State President to jurisdiction of the courts - Indirect judicial review of Presidential functions - Rule of Law.

Held, per Shamgar P. (Miriam Ben-Porat D.P. concurring):

Per M. Ben-Porat D.P.:

Minority opinion in A. v. The Law Council [2] and the decision in Attorney-General v. Matana [3] followed:

Per Barak J., dissenting:

2. Held by the court (per Shamgar P.):

Israel cases referred to:

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

[2] H.C. 177/50, A. v. Chairman and Members of the Law Counci15 P.D. 137.

[3] F.H. 13/60, Attorney-General v. Matana 16(1) P.D. 430; S.J., vol. IV, p.112.

[4] H.C. 249/82, Wakhnin v. Military Appeals Tribuna1 37(2) P.D. 393.

[5] Cr. A. 224/85, Alba Pharmacy Ltd. v. State of Israel 39(4) P.D. 798.

[6] H.C. 156/56, Schor v. Attorney-General 11 P.D. 285; 21 P.E. 227.

[7] H.C. 329/81; M.A. 217/82, 376, 670/83, Nof v. Attorney-General 37(4) P.D. 326.

[8] Cr. A. 117/50, Haddad v. Attorney-General 5 P.D. 1413; I P.E. 318.

[9] H.C. 171/69, Filtzer v. Minister of Finance 24(1) P.D. 113.

[10] H.C. 228/84, unpublished.

[11] H.C. 270/85, unpublished.

[12] H.C. 659/85, Bar Yosef (Yoskovitz) v. Minister of Police 40(1) P.D. 785.

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

[14] H.C. 483/77, Barzilai v. Prime Minister of Israel et al. 31(3) P.D. 671.

[15] H.C. 652/81, Y. Sarid M.K. v. Knesset Chairman Savidor 36(2) P.D. 197.

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

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

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

[19] E.A. 23/84, Neiman et al v. Chairman of the Eleventh Knesset Elections Central Committee 39(2) P.D. 225.

[20] H.C. 186/65, Reiner v. Prime Minister of Israel et al. 19(2) P.D. 485.

[21] M.A. 838/84, Livni et al. v. State of Israe1 38(3) P.D. 729.

[22] H.C. 58/68, Shalit v, Minister of the Interior 23(2) P.D. 477; S.J., Spec. Vol. (1962-1969), 35.

[23] H.C. 390/79, Diukat v. Government of Israe134 (1) P.D. 1.

[24] H.C. 561/75, Ashkenazy v. Minister of Defence 30(3) P.D. 309.

[25] Cr.A. 185/59, Matana v. Attorney-General 14 P.D. 970.

[26] H.C. 742/84, Kahana v. Chairman of the Knesset 39(4) P.D. 85

[27] H.C. 94/62, Gold v. Minister of the Interior 16 P.D. 1846; S.J., vol. IV p. 175.

[28] C.A. 165/82, Kibbutz Hatzor v. Rehovot Tax Assessment Officer 39(2) P.D. 70.

[29] C.A. 481/73, Administrator of Estate Late E. Bergman v. Stossel 29(1) P.D. 505.

[30] H.C. 246,260/81, Agudat Derekh Eretz v. Broadcast Authority 35(4) P.D.1.

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

[32] H.C. 547/84, "Of Ha-emek" Registered Agricultural Cooperative Society v. Ramat Yishai Local Council 40(1) P.D. 113.

[33] H.C. 98/69, Bergman v. Minister ofFinance 23(1) P.D. 693.

[34] M.A. 67/84, Haddad v. Paz 39(1) P.D. 667.

[35] H.C. 507/81, Abu Hatzeira M.K. et al. v. Attorney-General 35(4) P.D. 561.

[36] C.A. 507/79, Raundnaf (Korn) v. Hakim 36(2) P.D. 757.

[37] H.C. 73,87/53, "Kol Haam"Co. Ltd. et al. v. Minister of the Interior 7 P.D. 871; 13 P.E. 422; S.J., vol. I, p. 90.

[38] C.A. 150/50, Kaufman v. Margines 6 P.D. 1005; 5 P.E. 526.

[39] C.A. 214/81, State of Israel v. Pahima 39(4) P.D. 821.

[40] H.C. 732/84, Tzaban v. Minister of Religious Affairs 40(4) P.D. 141.

English cases referred to:

[41] Reg. v. Boyes (1861) 9 Cox C.C. 32.

[42] R. v. Foster (1984) 2 All E.R. 678 (C.A.).

[43] McKendrick et al. v. Sinclair (1972) S.L.T. 110 (H.L.).

[44] Jennings v. United States (1982) 3 All E.R. 104 (Q.B.).

[45] Church Wardens & C. of Westham v. Fourth City Mutual Building Society (1892) 28 Q.B. 54.

[46] Thomas v. The Queen (1979) 2 All E.R. 142 (P.C.).

[47] Mistry Amar Singh v. Kulubya (1963) 3 All E.R. 499 (P.C.).

[48] Godden v. Hales (1686) 89 E.R. 1050 (K.B.).

American cases referred to:

[49] Ex parte Grossman (1925) 267 U.S. 87; 45 S.Ct. 332; 69 Law Ed. 527.

[50] M'Culloch v. Maryland (1819) 4 Law Ed. 579; 17 U.S. 316.

[51] Youngstown Sheet and Tube Co. v. Sawyer (1952) 26 A.L.R. 2d. 1378; 343 U.S. 579; 96 Law Ed. 1153.

[52] Ex Parte Garland(1866) 71 U.S. 333.

[53] Burdick v. United States (1915) 236 U.S. 79; 59 Law Ed. 476.

[54] Murphy v. Ford (1975) 390 F. Supp. 1372.

[55] United States v. Wilson (1833) 32 U.S. 149.

[56] Biddle v. Perovich (1927) 274 U.S. 480.

[57] Montgomery v. Cleveland (1923) 32 A.L.R. 1151; 98 So. III.

[58] Schick v. Reed (1974) 419 U.S. 256.

[59] Osborn v. United States Bank (1824) 22 U.S. 738.

[60] New York v. United States (1951) 342 U.S. 882.

[61] Ex Parte Wells (1855) 15 Law Ed. 421; 18 How. 307.

The petitioner in H. C. 428/86 appeared in person; A. Gal- for the petitioners in H.C. 429/86; The petitioners in H.C. 431/86 appeared in person; A. Zichroni and I. Hanin - for the petitioners in H.C. 446/86; M. Soaked - for the petitioners in H.C. 448/86; H Langer- for the petitioners in H.C. 463/86; D. von Wiesel and A. Barak - for the petitioner in M.A. 320/86; Y. Harish, Attorney-General and Y. Ben-Or. Senior Assistant State Attorney and Director of the Criminal Department of the State Attorney's Office - for the respondents; Y. Arnon and D. Weisglas for A-D.

SHAMGAR P.

The Matter in Issue

1.(a) On 25 June 1986 the State President granted the Head of the General Security Service and three members of that Service a pardon in respect of

all the offences connected with the so-called bus no. 300 incident, and committed from the time of the incident on the night between 12 April and 13 April until the date of this Warrant.

The pardon was preceded by certain events which became the subject of debate for a period of several months, both in the Government and among the general public, centering mainly on the proper steps to be taken by the authorities in consequence of the stated offences, which had meanwhile become known collectively as the "bus no. 300 incident".

The President was apprised of the details of the matter in two conversations with the aforementioned Head of the Service, and the decision to grant the pardon followed formal requests to that end. The pardon was granted before any legal proceedings had been instituted in respect of the matters mentioned in the Warrant of Pardon. On the day the pardon was granted, the President made a public statement in which he explained the reasons for his decision, inter alia as follows:

Acting under the power vested in me by law, I have today granted Avraham Shalom, Head of the General Security Service, and three of his assistants, a full pardon in respect of every offence prima facie committed in connection with the "bus number 300 incident". I have so acted with a view to putting a stop to the "devils' dance" raging around the incident and so preventing further grave harm to the General Security Service. In so exercising my power, I have acted upon the recommendation of the Minister of Justice following a cabinet meeting held last night with the participation of the Attorney-General.

My decision was based on the deep conviction that it was for the good of the public and the State that our security be protected and the General Security Service spared the damage it would suffer from a continuation of the controversy surrounding the incident. This Service is charged with waging the difficult war against terrorism, and the remarkable work of its members saves us tens of casualties every month. Last year alone the Service uncovered some 320 terrorist bands who were responsible for 379 outrages and attempted assaults in all parts of the country. So far this year the Service has exposed the perpetrators of 255 terrorist acts, apprehending among them also those who had committed murder. I wish to mention another aspect of the war against terrorism, which relates to the security arrangements for the protection of Israel's diplomatic missions and other agencies abroad. It may be recalled that only recently a murderous assault on an El-Al aircraft was prevented when members of the Service foiled the attempt to smuggle aboard a bomb in a suitcase in London. The public in Israel does not really know what debt we owe to all those anonymous heroes of the General Security Service, and how many lives have been saved thanks to their efforts."

As President of the State, I feel it my duty to rally to the support of members of the Service; knowing as I do the vitally important and arduous task fulfilled by them, devotedly and in secrecy, daily and hourly. I do so in the hope of preventing moral harm to the intelligence organisation and the security network, and to the war against terror.

In the special conditions of the State of Israel we cannot allow ourselves any relaxation of effort, nor permit any damage to be caused to the defence establishment and to those loyal men who guard our people.

The effect of the Attorney-General's unequivocal intimation at the cabinet meeting, that there was no alternative but to open a police investigation into the incident, was to create a situation which requires members of the Service to submit to the investigation without being left any possibility of defending themselves, short of divulging security information of the utmost secrecy. In this situation I saw it as my primary duty to act as I have done in protecting the interests of the public and the security of the State.

(b) Two principal issues have been raised in these petitions. The first concerns the President's power to pardon an offender before his trial and conviction; the second relates to a demand for the holding of an investigation into the events known as the "bus no. 300 incident". Concerning the latter issue, on 15 July 1986 we received the Attorney General's intimation, confirmed by the Inspector General of Police, that the police would investigate the complaints lodged in connection with that incident.

We accordingly have to deal here with the scope of the presidential power of pardon, and shall refer also to two related matters, namely: the reasons for our decision on 30 June 1986 concerning joinder of the President as a respondent in three of the petitions (H.C. 431/86, H.C. 446/86 and H.C. 463/86); and our ruling on the question of locus standi.

2. The President's power of pardon is defined in sec. 11(b) of the Basic Law: The President of the State (1964) (hereinafter "the Basic Law"), thus:

The President of the State shall have power to pardon offenders and to lighten penalties by the reduction or commutation thereof.

This legal provision is formulated to deal with two subjects, i.e. the pardoning of offenders and the lightening of penalties. The latter subject is not in issue in the present matter, so what remains to be decided here is whether the power to pardon offenders extends also to someone who has not yet been convicted.

The Approach in the Case Law

3. (a) For the reasons I shall set out below, it has to be concluded that in the case now before us the State President based the exercise of his power under the above section upon a legal construction in accordance with the accepted approach of this court for the past thirty-five years, which sees the President as empowered to grant a pardon also before conviction. I am not unaware of efforts made over the years by a few distinguished jurists to challenge that interpretative approach. That even they, however, have had to take the view enunciated by this court as the starting point of their analysis, is understandable and clear, for the reason succinctly stated by my learned colleague, Barak J., in "Kach"Faction v. Speaker of the Knesset [1], at p. 152:

In a democratic regime, based on the separation of powers, the authority to construe all legislative enactments - from Basic Laws to regulations and orders - is entrusted to the court.... Inherent in every statutory provision, naturally and axiomatically, is a delegation of the interpretative authority to the court. It is true that every state organ - and in the present context also every individual - will seek to interpret the law in order to plan ahead. In the case of certain organs, it is sometimes customary for the interpretative authority to be entrusted to a particular functionary. Thus, for instance, the Executive's interpretative function is entrusted to the Attorney-General, and his construction binds the Executive internally. But where the question of interpretation arises in court, this authority rests with the court and its construction will bind the parties. And where the construction is that of the Supreme Court, it will bind everyone (by virtue of the doctrine of stare decisis - sec. 20(b) of the Basic Law: The Judicature). In this regard Shamgar J. remarked as follows:

"Every governmental authority must on occasion contend with the interpretation of a legislative enactment, for the application of statutory law frequently (in theory invariably) entails the formulation of an attitude as to its substance and content. But the final and decisive interpretative word respecting the law in force at any given time, rests with the court; and in respect to issues raised for deliberation within the legal system, this last word rests with the supreme judicial tribunal" (H.C. 306/81, at p. 141).

Any other approach would strike at the very heart of the judicial process and completely undermine the doctrine of the separation of powers, and the checks and balances between them. Hence, relations both between the Judiciary and the Executive and between the Judiciary and the Legislature, are governed by the principle that the binding interpretation is that given by the court, no matter what other interpretations may be given.

I might add that the reservations expressed about this court's approach have related, as we shall see presently, to the recognition not only of a pardon before conviction, but also a pardon after serving the punishment and in other cases (see Prof. S.Z. Feller, "Rehabilitation", Mishpatim, 113 [1969], 497, 507). In fact, a complete alternative system of pardon has been prepared, and this proposed legislative revision is deserving of deeper study and deliberation than is possible in the framework of this judgment. (See the proposed Bills in the appendix to Prof. Feller's abovementioned article, which also include a proposed rephrasing of sec. 11(b) of the Basic Law by replacing the words "to pardon offenders" with an expression connoting remission of punishments.) Such further study of the subject would accordingly be important for shaping the desirable law in the future, if indeed it is sought to depart from the existing arrangement.

(b) I shall now review the pronouncements of this court on the subject of pre-conviction pardoning under the prevailing law. The subject was first mentioned in A. v. The Law Council [2]. The petitioner asked for the restoration of his name to the Roll of Advocates following upon a presidential pardon granted him (after having served his sentence of imprisonment) in respect of the offence for which his name had been removed from the Roll. The petition was dismissed by a majority of the Court, for reasons relating both to the powers of the Law Council and to the Supreme Court's modes of exercising its discretion.

Justice Agranat was the only member of the court to address the question of the pardoning power. The statutory provision underlying the President's power of pardon at that time (sec. 6 of the Transition Law, 1949) was phrased, so far as is relevant here, in language identical to that in sec. 11(b) of the Basic Law. It appears from the judgment of Agranat J. (as he then was) that he saw the power of pardon conferred on the President of the State of Israel as generally parallel to that vested in the King of England or in the President of the United States, whether in underlying perception, in nature and scope, or in the consequences of its exercise. In this connection the learned Judge referred, inter alia, to a statement in Halsbury's Laws (2nd. ed., Hailsham, vol. 6, p. 477) that "Pardon may, in general be granted either before or after conviction." Also referred to was the decision of the U.S. Supreme Court in Ex Parte Grossman (1925) [49], where it was held with regard to the Constitutional power to grant pardons for offences, that the Executive could grant a pardon for an offence at any time after its commission. Summing up his opinion on the scope of the power of pardon in Israel, Agranat J. clearly held that the President has the power to pardon offenders either before or after conviction (at p. 751; my italics - M.S.).

It is true, of course, that the question of the power of pardon before conviction was not part of the ratio on which Justice Agranat founded his decision in that case. Nevertheless, the wider question of principle involving the substance and scope of the pardoning power, the matter of its historical roots and its present day construction, on which the decision of Agranat J. was founded, encompassed also this specific aspect of the exercise of the power before conviction. This aspect arose directly out of and became an integral part of the interpretative method adopted. That is to say, inherent in Justice Agranat's adoption of the view that the President's pardoning power was the same as that of the British King or the American President, was the conclusion that the definition of that power likewise derived from the interpretative process on which the learned Judge had founded his decision, as he himself in fact noted.

Justice Agranat's abovementioned opinion has come to be recognized as representing the prevailing and commonly accepted interpretation of this court, whether this be due to the fact that no contrary judicial opinion on the matter has been expressed or whether this be attributed to the Further Hearing in the Matana case, a landmark decision in our constitutional law to which I shall presently return.

(c) This subject arose again in the rehearing in Attorney-General v. Matana [3], representing the leading and most comprehensive decision so far on the power of pardon. Once again the substance of the power was analysed, this time in the court's full consciousness that the decision which had occasioned the rehearing amounted to a rejection of the minority opinion of Agranat J. in A. v. The Law Council, insofar as he had found a parallel between the power of the President of Israel and that of the British Monarch. In his judgment in the Further Hearing, Deputy President Agranat (as he then was) reiterated his view expressed in A. v. The Law Council that the President's power of pardon was exercisable also before conviction. He noted that while there was indeed no room for an equation of the President's power of pardon with that of the High Commissioner of Palestine (under Art.l6 of the Order in Council, 1922), he also had no hesitation in reaffirming his approach in A. v. The Law Council as regards the scope of the President's power and its comparison with that of the Executive under the corresponding Anglo-American constitutional law. The power under sec. 6 of the Transition Law, 1969 (which for our present purpose is the same as that set forth in sec. 11(b) of the Basic Law) was termed by Agranat D.P. an "original" power forming part of a "Constitution in miniature of an independent State." Hence it was not comparable to the pardoning power instituted under the Mandatory legislation, and the model for comparison was the power of the British or the American Head of State.

In this regard the learned Deputy President added, by way of an interpretative guideline, that in view of its constitutional content the statutory provision concerned did not need a restrictive interpretation ( M'Culloch v. Maryland (1819) [50] at p. 602; Youngstown Sheet & Tube Co. v. Sawyer (1952) [51] at 1399, per Frankfurter J.). From the Youngstown case Agranat D.P. cited the statement of Jackson J. that because the American President enjoyed only those powers mentioned in the constitution it "does not mean that the mentioned ones should be narrowed by a niggardly construction."

In short, it emerges from the Deputy President's judgment that while the relevant provision did indeed relate to a new and independent legislative enactment, for the proper understanding of its substance it was nevertheless permissible to refer also to the corresponding powers that existed in the countries looked upon as the principal models for comparison, and which had nourished and shaped our own legislation.

Cohn J. (as he then was) - who together with Silberg J. concurred with Agranat D.P. in forming the majority opinion of the court - wrote a separate opinion stressing certain matters which appear to be particularly relevant in relation to the background of the problem now before the court, inter alia holding as follows (at p. 462):

Under sec. 6 of the Transition Law, 1949, the President of the State is empowered to pardon offenders and to reduce punishments. The Presidents of the State have exercised this power from 1949 until the day on which judgment was delivered in Matana v. Attorney-General (23 June 1960), in the manner laid down for them in the judgment of this court (per Agranat J.) in A. v. The Law Council (at p. 745 et seq.). That is to say, both the President of the State and the Minister of Justice, whose countersignature of the President's decision is required by the Law, and also the wide body of citizens who have had need of the President's grace, have always regarded this power of the President as equal and parallel in nature and scope to the power of pardon and reduction of punishments possessed by the Queen of England, and which was possessed by the High Commissioner of Palestine. It has already been said more than once by this court (both during the Mandate and after the establishment of the State) that the court will hesitate very much to reverse a particular practice which has taken root during the years, and if this was said in respect of matters of practice which did not rest upon the authority of judicial precedent, how much more is it applicable to a matter of practice which rests upon a specific decision of the Supreme Court. As for myself, even if I were inclined to agree with the opinion held by my colleagues Berinson J. and Landau J. that the practice followed by the President of the State year after year is based upon too wide an interpretation of sec. 6 of the Transition Law, 1949, even then I would not venture today to change this practice which has received the seal of the Knesset at least by its silence, and more especially since the practice followed by the President of the State adds the "grace" extended by him to its citizens.

I have no doubt, however, that the said provision in sec. 6 should be given a wide and not a narrow interpretation. But for the principles laid down in A v. The Law Council, which the Deputy President has again adopted in his instructive judgment in this Further Hearing, I would perhaps have gone further and interpreted the said provision even without reference to the powers of the King of England under the common law, which were also given to the High Commissioner of Palestine by virtue of the Order in Council, 1922. For the purposes of the decision in the present case, however, the principles laid down in the judgment referred to are sufficient for me too, and I arrive at the same conclusions as those reached by my colleague, the Deputy President, but without resort to the English and American authorities which he cites in his judgment.

(d) In a dissenting judgment Berinson J. disputed the abovementioned interpretative theses. In essence, however, and notwithstanding the divergence between the minority view (of himself and Landau J.) and the majority view as to the President's power of substituting one sentence for another, even he was expressly of opinion that the President's pardoning power extended also to an act for which the offender had not yet been tried and convicted. In this sense, as Berinson J. expressly pointed out, the President's power was wider than that of the High Commissioner at the time:

Moreover the President's power of pardon is in a certain sense wider than that possessed by the High Commissioner. Whereas the High Commissioner was unable to pardon a crime before the offender was tried and convicted unless he turned King's evidence and led to the conviction of his accomplice (the first part of Article 16 of the Order in Council), the President is not bound by this condition and, so it seems to me, may pardon any offender even before he is brought to trial (ibid. p. 469).

4. Recently Justice Cohn has had further occasion to express his opinion on the subject ("Symposium on Pardon," hereinafter "Symposium," Mishpatim 15/1 [1984], 14). It was decided law, in his view, that it was never intended by the Israel lawgiver - whether in the Transition Law, 1949,or in the Basic Law - to curtail the scope of the pardoning powers vested in the King of England under the constitutional conventions; it followed that the power to pardon offenders before their conviction availed also in Israel.

5. (a) In view of the reference in our decisions to the Anglo-American comparative model, it is fitting that we supplement our above remarks with a brief review of the law of those countries on our present subject. It is consistently asserted in the literature of English constitutional law, that the King is empowered under the common law to grant also a pre-conviction pardon. It is so stated in Blackstone's Commentaries on the Laws of England (San Francisco, 1916; vol. II, p. 400). In Halsbury's Laws (4th ed., vol. VIII, 8, par. 949, p. 606) it is stated:

In general, pardon may be granted either before or after conviction.

S.A. De Smith opines that "a pardon may be granted before conviction" (Constitutional and Administrative Law, 5th ed., Street and Brazier, 1985, p. 150, note 121). He holds that this prerogative power, though not exercised today, has not become abrogated by disuse and, like Sleeping Beauty, "it can be revived in propitious circumstances" (p. 143). In other words, in exceptional circumstances which so justify, the King may conceivably have renewed recourse to this power. A like view is expressed by O. Hood Phillips - "A pardon may generally be granted before or after a conviction" ( Constitutional and Administrative Law, 6th ed., 1978, p. 378). English decisions and treatises on the subject are replete with statements to the same effect and one need not repeat them all here (see Reg. v. Boyes, [41] ).

(b) In the U.S.A. the pre-conviction pardoning power is clearly enunciated in the classical work on the U. S. Constitution prepared by the Research Service and the Library of Congress: The Constitution of the United States of America, Analysis and Interpretation (Washington, 1973), p. 474. In Am. Jur. 59, 2d (Rochester & San Francisco, 1971) par. 25, the presidential power of pre-conviction pardoning is explicitly asserted, and with regard to the separate States it is added:

if the constitution does not expressly prohibit the exercise of the power until after conviction, it may be exercised at any time after the commission of an offense before legal proceedings are taken.

That is to say, the customary interpretation is that any State wishing to preclude the grant of a pre-conviction pardon has to make express constitutional provision to that effect, and a power of pardon mentioned without such a reservation means that it may be exercised also before conviction of the offender. See also W.W. Willoughby, The Constitutional Law of the United States (New York, 2nd ed. 1929), vol. III, at p. 1491; B. Schwartz, A Commentary on the Constitution of the United State (New York, 1963), vol. II at p. 87; B. Schwartz, Constitutional Law (N.Y. and London, 2nd ed. 1979) at p. 198; L.H. Tribe, American Constitutional Law (Mineola, 1978) at p. 191.

In the American precedents the power of pre-conviction pardoning is constantly reiterated. In the celebrated case of Ex Parte Garland (1866) [52], it was held (at p. 380) that the pardoning power

….extends to every offence known to the law and may be exercised at any time after its commission either before legal proceedings are taken, or during their pendency or after conviction and judgment.

See also L.B. Boudin, "The Presidential Pardons of James R. Hoffa and Richard M. Nixon: Have the Limitations on the Pardon Power been Exceeded?" Un. Colo. L. Rev. 48 (1976/77), p. 1.

6. In Attorney-General v. Matana [3] the majority agreed with Agranat D.P. as regards the substance of the pardoning power. In the wake of this decision came a legislative development which also throws some light on the attitude of the authorities at the time to the abovementioned legal questions. When the Bill for the Basic Law: The President of the State came before the Knesset, it was decided to vary the text of the provision concerning pardon in a manner clearly enunciating the President's power to commute sentences, this being a matter on which divided opinions had been expressed in the Matana rehearing. However, no attempt at all was made to vary the existing statutory arrangement so far as its interpretation in the rehearing was concerned - both by Agranat D.P. who expressed the majority opinion and by Berinson J. - as empowering the President also to grant pre-conviction pardons. The amendments pertaining to the commutation of sentences clearly stemmed from the wish to eliminate possible doubt resulting from the divergent interpretations on this point in the Matana case. Thus, for instance, Dov Joseph, Minister of Justice at the time, had this to say in support of the proposed amendment:

As to the presidential power to pardon offenders dealt with in sec. 6 of the Transition Law, the matter is now regulated in sec. 12 of the proposed new Law. The change in relation to the existing Law is that the new provision expresses the commutation of punishments to be, along with their reduction, a presidential power of pardon. This is no fundamental change, for even under the existing Law, which mentions the reduction of punishments but not their commutation, the latter was held to fall within the purview of the pardoning power vested in the President. However, since the Supreme Court arrived at this conclusion after much toil, with a minority of the Justices holding otherwise, we thought it desirable to clarify in the proposed new provision that such was the lawgiver's intention from the start (Minutes of the Knesset, 36 (1963/4), 964).

Also of interest in this connection are the comments made in the same debate by Prof. Y. H. Klinghoffer:

In a decision of the Supreme Court a year ago, it was decided - as already indicated by the Minister of Justice in his opening remarks - that sec. 6 embodied a power of substitution of a lighter punishment for the one imposed, and in particular to commute a sentence of imprisonment to one of conditional imprisonment" ( ibid., p. 966).

A year later (in 1965) Professor Klinghoffer rested on the same foundation his argument that if difficulties were to arise in consequence of the adoption of a certain proposal raised by him for debate, recourse could be had to the pre-conviction pardoning power in order to solve hard personal problems of punishment for which no other solution was available:

Another unconvincing argument advanced is that if a suspect be very ill, it would be an act of cruelty to put him on trial. Unconvincing, because in rare cases of this kind the President of the State would be able to grant a pardon before the trial commenced. The President is empowered to pardon offenders either before or after conviction. That was laid down by Justice Agranat in the case of A. v. The Law Council, H.C. 177/50 ( Minutes of the Knesset, 43(1965), 2319):

Statements made in the course of Knesset debates do not, of course, bind the court when construing the law, let alone the fact that here we are seeking mainly to draw an inference from the non-amendment of the existing statutory arrangement on the subject. We do accept, however, that a particular enactment's legislative history may be a valuable aid in its interpretation (Wakhnin v. Military Appeals Tribunal [4] at p. 424), and we may be so guided here too. An inference may properly be drawn from the fact that at the time when the Knesset debated the implications of the decision in A. v. The Law Council, not a single voice was raised in favour of narrowing the President's power in 'respect of pre-conviction pardoning. Legislatively speaking, it has so far not been seen fit to disturb the wording of the pertinent provision nor, indeed, its manner of interpretation - by Justice Agranat in A. v. The Law Council and by the Justices of the majority as well as the minority opinion in A. G. v. Matana- as empowering the President to pardon offenders also before conviction. The opportune time for having effected an amendment in curtailment of the pardoning power, should anyone have disapproved of its judicial interpretation, was surely at the stage when the Law was amended anyway to clarify operation of the pardoning power in a different respect, as already mentioned. The fact that the power as it stood was left intact in relation to the matter of our present inquiry, is proof that neither the Legislature nor the Executive saw fit to alter the legal situation that emerged from the expansive interpretation given the pardoning power in A.G. v. Matana.

Incidentally, though at the time there may have been room for debating whether or not the provisions of the Transition Law, 1949, including sec. 6, were endowed with any permanent constitutional standing, there could certainly have been no doubt as to the constitutional content and standing of the Basic Law: The President of the State. Yet sec. 11(b) thereof repeats verbatim the part of sec. 6 of the Transition Law that is pertinent to our present inquiry, and which the court construed as it did in the Law Council and Matana cases.

7. The fact that the Knesset did not vary the court's construction of the power "to pardon offenders" as embracing also pre-conviction pardoning, has contributed to a general recognition of the approach in the two precedents cited as the accepted approach on this subject. Prof. A. Rubinstein, for instance, writes as follows ( The Constitutional Law of Israel, 3rd ed., at p. 394; in Hebrew):

(e) Pardoning of offenders before conviction. The Law does not restrict the President's power to pardon offenders, and he may do so even before they have been convicted. English law is the same as regards the prerogative of pardon of the British Crown. The High Commissioner, however, was delegated only a part of the stated royal power and, in terms of Art.16 of the Order in Council, 1922, was able to pardon offenders only upon their conviction. In this respect the President's power is like that of the British Crown. Even Justice Berinson who interpreted the presidential power narrowly in the Matana case, held that "he has power to pardon any offender also before he is brought to trial."

A more restrictive construction of the expression "to pardon offenders" - even if centering more on the meaning of the term "offenders," which point I shall presently discuss in greater detail - was proposed by Prof. Klinghoffer at a symposium on this subject, though with express acknowledgment that his own view differed from the interpretation given by the Supreme Court (see Prof. Y. Klinghoffer, "Pardon's Constitutional Framework," Lectures at the Symposium "Amnesty in Israel", held in Jerusalem on 13-14 May 1968, Publications of the Hebrew University Institute of Criminology, 2, 5; hereinafter "Lectures on Amnesty"). A similar view was expressed by Prof. S.Z. Feller in his abovementioned article, "Rehabilitation" (at p. 507, note 28). Also present at the symposium was the then incumbent Attorney-General, M. Ben-Zeev, who made these observations:

Prof. Klinghoffer's constitutional analysis of the pardoning power is undoubtedly comprehensive and interesting. I feel it necessary, however, to mention one matter on which I disagree with him - if only to ensure that a different opinion also be heard on this important point. Prof. Klinghoffer interpreted the President's power "to pardon offenders" as applying only to convicted offenders and not to unconvicted suspects, a conclusion felt by him to flow from the very expression here used. Since in our law a person is presumed innocent until convicted he cannot be an "offender" until he is convicted; therefore, in Prof. Klinghoffer's opinion, the President has no power to pardon any person before he has been convicted. In this connection I might mention the case of A. v. The Law Council, cited by Prof. Klinghoffer, in which the wording of the relevant provision in the Transition Law was construed - and from which wording there was no departure, in the instant context, in sec. 11(b) of the Basic Law: The President of the State. This identical expression in both the above enactments was interpreted by Justice Agranat, after lengthy analysis in his abovementioned judgment, to mean that the President "has the power to pardon offenders either before or after conviction." This authority accordingly contradicts the approach of Prof. Klinghoffer and I myself, in my capacity as Attorney-General, have relied on this authority in giving my opinion that the President may pardon offenders also before conviction. The term "offender" obviously cannot be understood here to mean someone who has been duly convicted, but rather someone who comes to the President saying: "I have committed an offence and I ask you to pardon me." It is inconceivable that a person should come before the President and say: "I have not in fact committed an offence, but if I have, please grant me a pardon." Such alternative kind of pardon naturally finds no place in our law. But if a person should come and say that he has committed an offence for which he asks to be pardoned, then he is among the offenders whom the President has the power to pardon ( ibid., p. 53).

Another participant in the abovementioned symposium was Dr. Leslie Sebba of the Criminological Institute of the Hebrew University, Jerusalem, who made this comment on the legal situation as portrayed there ("Summary of the Lectures at the Symposium 'Amnesty in Israel' " p.x):

Finally, there was some doubt as to the proper interpretation of the phrase "to pardon offenders." Did this include persons not yet convicted? In the opinion of the Government, which based its view on judicial opinion, such persons could be regarded as offenders for the purpose of the pardon, for the request for a pardon could in itself be regarded as an admission of the offence .

This leads us to Dr. Sebba's illuminating work, On Pardon and Amnesty: Juridical and Penological Aspects (Ph.D. dissertation, Faculty of Law of the Hebrew University, Jerusalem, 1975; hereinafter On Pardon and Amnesty), in which the writer examined the scope of the pardoning power in Israel, inter alia making this comment (at pp. 152-153):

Sometimes pardon before conviction or "advance pardon" is treated as an independent form of pardon. This power, which has a legal foundation in both English and American law (but not in France), is generally attributed also to the State President. This view is challenged, however, by Prof. Klinghoffer on the ground that everyone is presumed innocent until duly convicted: "Hence no person is an 'offender' until a final convicting judgment be given against him."

In our view, the law does indeed enable a pardon to be granted without prior conviction. For certain purposes the Legislature has seen fit to describe an unconvicted suspect as an offender, and the Supreme Court has also held that an unconvicted suspect may be deemed to have a "criminal past" under sec. 2(3) of the Law of Return, 1950 (see H.C. 94/62, Gold v. Min. of Interior, 16 P.D. 1846). Finally, Art. 16 of the Order in Council conferred express power to pardon a person who turned "King's evidence" and whose evidence led to conviction of the principal offender.

The introduction to Article 16 of the Order in Council clearly related to unconvicted suspects who were willing to give evidence for the prosecution. This was envisaged as the main area for application of this provision, which, as in English law for the past centuries, has been the main justification for preserving the power of "advance" or pre-conviction pardon.

8. We have so far described the ruling interpretative thesis. Having regard, however, to the arguments advanced during the hearing, it is necessary to examine the reservations and doubts raised as to the President's power to pardon unconvicted offenders under sec. 11(b) of the Basic Law. We shall pursue this examination, and the formulation of our interpretative standpoint regarding sec. 11(b), along three principal lines of inquiry: first, the linguistic import of the statutory provisions under consideration; second, the contention as to abrogation of the disputed power following the enactment of other, new powers; and third, the juridical-constitutional substance of the power.

The Language of the Section

9. Sec. 11(b) of the Basic Law speaks of the power "to pardon offenders." There is no definition of the term "offender" in either the Basic Law or the Penal Law of 1977. As already mentioned, Prof. Klinghoffer founded his narrow interpretation of the presidential power on the perception that the term "offender" applied only to someone duly tried and convicted (see "Lectures on Amnesty",supra; "Symposium," at p. 5). The like opinion was expressed by H. Zadok, former Minister of Justice (ibid., p. 9) and by Prof. S.Z. Feller (ibid., p. 10; and see also "Rehabilitation," at p. 507). Disagreeing with these views, Justice H. Cohn argued that the existence of a pre-conviction pardoning power was also indicated in the language of the Law. He commented that an enactment aimed at expanding civil rights and benefits called for a spacious and liberal interpretation. For purposes of the President's power, an "offender," in his opinion, was anyone who testified to himself as being such “ Symposium," at p. 14).

I do not think the term "offender" must be understood as referring only to someone who has been tried and convicted. It is accepted in this court that an expression in a particular Law must be interpreted in the light of its legislative context, as was held by my colleague the Deputy President in Alba Pharmacy Ltd. v. State of Israel [5] at p. 802:

Expressions and directives in a Law must be interpreted in the light of the purpose it is intended to achieve. Hence it will sometimes happen that the identical expression appearing in different enactments is differently construed, all in accordance with the inherent purpose and intent of the enactment (C.A. 480/79, Treger v. Customs Collector, at p. 306).

According to its plain meaning, the term "offender" relates to someone who has committed an act defined as an offence, and from the word offence or offender itself one can hardly learn that it has no other legislative application than to someone proved, in final criminal proceedings ending in a conviction, to have committed an offence. Fundamental to our perception of criminal justice is the presumption that a person is innocent until duly proven guilty, but this presumption is an incident of the individual's rights and obligations in confrontation with the judicial process, or with any other authority, or individual. It does not necessarily reflect upon all the possible linguistic nuances of a descriptive term employed in a variety of legislative contexts and conjoined to a variety of eventualities in the penal law and related area. Not infrequently one finds mention in enactments of the term "offence" or "offender," when it is intended to refer simply to a criminal act or omission, or to the person to whom such is attributed, even though not yet convicted in criminal proceedings. And this is so even though the circumspection needed when a person's status may be affected in criminal proceedings, would seem to indicate the use of other expressions such as "a person accused of..." or "charged with..." or "alleged to have committed an offence," or like language. The Penal Law of 1977, for example, makes frequent mention of the term "offence" in a variety of contexts. But when it speaks in sec. 4 of bringing an offender to trial, the reference is clearly to someone charged with, and not already convicted of, the offence. (In like vein see also secs. 7, 8 and 10(d) of the Law.) In this connection Dr. L. Sebba refers ( On Pardon and Amnesty, at p. 153) to the Criminal Procedure (Arrest and Search) Ordinance (New Version), sec. 3(3) of which empowers a police officer to arrest a person without warrant if he "has committed in the police officer's presence, or has recently committed" a certain kind of offence; here too one is clearly dealing with someone suspected of committing the offence rather than someone already convicted thereof.

It is provided in sec. 3 of the Police Ordinance (New Version) that "the Israel Police shall be employed for the prevention and detection of offences, the apprehension and prosecution of offenders." There undoubtedly cannot be any reference here to already convicted offenders. The definition of the term offender in the Interpretation Ordinance (New Version), stresses the element of the sanction but nowhere mentions a finality of legal proceedings. And so one could without difficulty quote many more examples.

We might, for the purpose of our linguistic inquiry, also examine other provisions of law on matters which may be said to be in pari materia. In this respect the wording of sec. 6 of the Transition Law, 1949 sheds no additional light on the meaning of the term "offender" in the Basic Law. However, besides the individual pardon provided for in the Basic Law, two other Laws were enacted dealing with the subject of general amnesty. The first was the General Amnesty Ordinance of 1949, which in see 2 provided that a person who prior to a specified date "committed an offence... shall not be arrested, detained or prosecuted for it, or if he is already being prosecuted... the proceedings shall be discontinued and he shall not be punished." Clearly the words "...committed an offence" extended the benefit of the amnesty also to offenders who had not yet been tried and convicted. The wording of sec. 2 spoke for itself, and a statement to the same effect was made by the then Minister of Justice, Mr. Y.S. Shapiro, when introducing the Bill for the Amnesty Law of 1967 before the Knesset:

This is the second occasion on which a general amnesty is extended by the State directly through the legislature. The first time the general amnesty was granted by the Provisional Council of State in its final session, prior to the convention of the elected assembly - the First Knesset. In the Law passed at the time by the Provisional Council of State, it was laid down that any person who had committed an offence, other than one entailing sentence of death or life imprisonment, should receive a pardon, whether already tried and convicted or not (Minutes of the Knesset, 49, p. 2484).

In sec. 5 of the Amnesty Law of 1967, the second enactment of its kind, mention was again made of a "discontinuance of proceedings" taken in any court for "any offence committed" before a specified date. Thus the amnesty was once more extended in respect of "offences" for which the offender had not yet been tried or the proceedings concerning which had not yet been completed.

The manner of use of the term "offence" in a Knesset enactment dealing with a general amnesty has implications for the construction of the same term in an analogous Knesset enactment dealing with individual pardons.

In sum, it may be learned from a linguistic examination of pertinent statutory provisions, that the terms "offence" and "offender" may, according to the subject matter and context, simply import a criminal act or the person accused or suspected of having committed that act, and not necessarily a conviction, or a convicted offender. By analogy, the same term in sec. 11(b) of the Basic Law was intended to embrace also a person to whom a criminal act, attempt or omission is attributed, and not only someone already convicted of the same.

By way of comparison it may be noted that the same term mentioned in the constitution of the U.S.A., in the context of "pardons for offences" (art. II, sec. 2, clause 1), has also not been interpreted as applying solely to criminal conduct which is followed by trial and conviction.

Parallel Statutory Powers

10. It was a central argument of the petitioners that the power of pardon before conviction was abrogated by the effects of later, as it were, superseding legislation. This argument assumed diverse forms and I propose to deal with its different aspects. Since, for purposes of our present inquiry, it first found expression in a directive of the Attorney-General included in one of the petitions now before us, I shall start therewith.

11. (a) In his capacity as Attorney-General, Prof. Y. Zamir published a directive (no. 21.333) concerning the President's power to pardon offenders before completion of the trial. The learned writer first referred to the opinion of Justice Agranat in the case of A. v. The Law Council, contending that the equation there of the power of the High Commissioner with that of the British Crown was erroneous, as the former was not competent to pardon any person before his conviction. It followed that if the High Commissioner was not so empowered, no power of that nature could possibly have been conferred under sec. 6 of the Transition Law of 1949, when it was enacted.

The above conclusion as to an equality of pardoning power displayed indeed a certain inaccuracy, for the power delegated to a colonial Governor or to the High Commissioner of a Mandated Territory did not coincide with the prerogative power of the King. But this point was clarified in the Matana case and, I might add, the Attorney-General himself fell victim to an inaccuracy when writing that the High Commissioner had no power to pardon unconvicted offenders. For it was expressly provided in the first part of art. 16 of the Order in Council that the High Commissioner might pardon "any accomplice in such crime or offence who shall give such information and evidence as shall lead to the conviction of the principal offender." This empowerment therefore did not relate specifically to already convicted persons, and further proof is to be found in the continuation of art. 16, where express reference is made to convicted offenders in quite a different context.

(b) The stated directive was further predicated on the premise that the abovementioned statements of Justices Agranat and Berinson (on the instant issue) did not amount to binding precedent. I do not accept this reasoning, since it overlooks the connection between the court's overall decision, as already described above, and the specific conclusion concerning the power of pre-conviction pardoning. The existence of this nexus has not only been acknowledged in extra-judicial commentaries, but was also expressly mentioned by Justices Agranat and Berinson in their respective judgments in the Matana case, both clearly having regarded the power of pardon before conviction as flowing integrally from their underlying legal perception of the wider issue before them. The fact that the learned Justices saw fit to recognise the possibility of pre-conviction pardoning, is evidence that such recognition was a natural corollary of a viewpoint shared by the Judges of the majority as well as the minority opinion in the Matana rehearing. Moreover, the fact that the question of a pardon before conviction was directly addressed in the abovementioned decisions, even though the question was not directly in issue on the facts in either of the two cases concerned, is further evidence of a clear and patent connection seen between the essential pardoning power - as interpreted by the court - and the possibility of a pardon granted before conviction. What I am saying is that one has to examine the judgments of the majority opinion in the Matana rehearing according to their essential legal rationale, rather than merely answer the question whether the judgments dealt directly with the power to pardon before conviction. The ratio of the majority opinion in the Matana rehearing is to be found in the conclusion that the presidential power, although original and autonomous by virtue of an Israel enactment, was nevertheless shaped by and for its legislative purpose according to the Anglo-American model. At the same time the court added its conclusion that the Presidential pardoning power in Israel was equal in scope to that of the King of England, or of the President of the U.S.A. The details of the power, also in the pre-conviction contingency, were but a derivative legal consequence. It was the constitutional analogy with the corresponding Executive powers in the above two countries - whose legal systems, far more than others, have inspired and nourished our own legal and constitutional notions and doctrines - that gave birth to the conclusion that is now the subject of our deliberation.

A like opinion was expressed by Prof. C. Klein ("Symposium," at p. 17):

The source of the pardoning power is the royal prerogative. There is a clear connection between the method of pardon in Israel and the corresponding English method, from which one can learn about the scope of the presidential power of pardon in Israel (a divergence of opinion on this matter is echoed in the Matana case).

The power of pardon is not everywhere the same and, as we shall presently see, a variety of methods are followed in other countries. At the time, however, it was not the constitutions of such other countries that served as the models for shaping our own powers of pardon, so that no conclusion whatever can be drawn from any comparison with them, and their situation cannot now reflect on our own, except as an exercise in the desirable.

It would also be wrong to conclude from the analysis of principles in the abovementioned precedents that we are, as it were, held captive by our legal heritage and that we lack the vigour to fashion our own constitutional doctrines. Not so! Our essential constitutional form has throughout been autonomously our own, and remains so today. What is at stake is a historical-interpretative question that is concerned with the legal perspectives adopted at the time, with the constitutional result distilled from and founded on the same, and with the tenor of our precedents - representing, for some considerable time now, the accepted legal interpretation.

Of course, there always remains the possibility that the Legislature may be disposed to replace the existing order with a new arrangement considered more suited to our time. Interesting proposals to this effect have been made, some of them ranging in substance far beyond the limited question of our immediate inquiry. Only in an appropriate manner, however, should we abandon a chosen path of the Knesset and the legislative purpose enshrined in the relevant provisions of the Transition Law and the Basic Law, especially when the powers conferred thereunder are of known scope after lengthy judicial analysis and circumscription. We should take care that any material change contemplated be not impelled by passing events, however stormy their nature, but result from orderly constitutional research and discussion. Any change resolved upon should be effected in a manner showing proper deference to a constitutional norm followed for a comparatively long time, that is to say, it should be done by way of legislative enactment.

12. In his directive the Attorney-General founded his conclusions as to the scope of the presidential pardoning power largely upon its comparison with his own power to issue a nolle prosequi:

A wider use of the power to order a stay of criminal proceedings has always been made in Israel, and in recent years thousands of requests for such a stay have been lodged annually with the Attorney-General. In practice, therefore, the power to pardon accused persons before completion of their trial needs less to be exercised in Israel than in England....

A presidential power to intervene in criminal proceedings pending before the court, in a manner permitting termination of such proceedings at any time, is undesirable in principle. The pardoning power of the President bears no comparison with the Attorney-General's power to intervene in criminal proceedings by way of staying the same. The Attorney-General functions from the start as an integral factor in criminal proceedings, for he is empowered by law to prefer the charge on behalf of the State.... The President, on the other hand, is an extraneous factor in criminal proceedings. In this situation, his grant of a pardon in the course of a trial might be seen as an unwarranted intrusion into the domain of the court....

Any interpretation that would empower the President to pardon also unconvicted suspects, suffers in addition the practical disadvantage of a concurrence between this power and the power of the Attorney-General to stay the proceedings against such suspects.

In this connection it was contended that even in England the prerogative of pardon before conviction was no longer exercised. Accordingly, it was concluded in the directive that the President was competent to pardon only convicted persons, for the reason that his power to pardon unconvicted suspects had been replaced by the Attorney-General's power to order a stay of criminal proceedings.

13. The above argument is complex and involves, as we shall see presently, not only the matter of a nolle prosequi and its effects, but also other legal processes and their ramifications, including problems of interpretation. The full import of the argument is that a whole array of new penal laws enacted over the years have served to abrogate the power of pardon before conviction. It is true that the argument was not presented to us in precisely this form, but this was clearly its substance. It would be helpful, therefore, for us to dissect the argument into its component parts and different legal aspects, and to examine each in turn, namely:

(a) First, what is the nature of the order staying a criminal prosecution, and what are the points of similarity and difference between this step and the power of pardon before conviction?

(b) Second, what ground is there for the contention that the power of pardon before conviction is no longer existent in Anglo-American law?

(c) Third, what other relevant statutory provisions exist on the issue before us, even if not mentioned in the Attorney-General's directive, or in the arguments addressed to us?

(d) Fourth, can a constitutional directive deriving from statute or from the common law (where it exists) be considered to have been implicitly repealed or abrogated by later legislation dealing with the same subject?

(e) Fifth, does the emergence, in practice, of a pragmatic legal substitute for an existing constitutional arrangement, implicitly repeal the latter, and is there any difference for this purpose between a constitutional or legal arrangement deriving from express statutory provision, and one which is solely the creation of judicial interpretation?

14. (a) As regards the issue of a nolle prosequi, it is provided in sec. 231 of the Criminal Procedure Law (Consolidated Version) of 1982, that the Attorney-General may stay the proceedings by reasoned notice to the court at any time after lodging of the information and before judgment; upon such notice the court shall discontinue the proceedings in that trial. The Attorney-General may also delegate to his deputy - either generally or in respect of a particular matter or classes of matters - his power to stay any criminal prosecution except in cases of felony. In a recent Bill for the amendment of the above Law (no. 1703, p. 34) it is further envisaged that the Attorney-General may delegate this power - in charges other than felonies, preferred by a prosecutor who is not an attorney of the State Attorney's Department (e.g. a police prosecutor) - also to the State Attorney or his deputy, to the District Attorney, or to any other attorney of the State Attorney's Department given the power of a District Attorney under see. 242 of the above Law. In the explanatory notes to that Bill, it was stated that the Attorney-General and his deputies were experiencing difficulty in handling the greatly increased number of requests made for a stay, and hence the proposed widening of this delegatory power.

This proliferation of requests is apparently attributable, inter alia, to the proportion of such requests acceded to, and it is clear from the cited passage in the Attorney-General's directive, that thousands of requests are made annually in what seems latterly to have become a regular and widespread practice. I see no need to express any detailed opinion on the question (which is not in issue here) of the proper use of the power to stay a prosecution, and but for it having become interwoven with the argument now before the court, would have preferred not to deal with it at all. I shall merely state my lack of conviction that the wide use of the staying power, as described in the directive, is in accord with the lawgiver's underlying intentions and the character of the staying procedure. Any misgivings one might have with regard to the implications of a pre-trial exercise of the pardoning power, must also to a large extent accompany this phenomenon of a stay of criminal proceedings before the trial has run its course. We appear to be dealing here, not with the rare and exceptional exercise of a given power, but with a rapidly widening process which entails no public deliberation, no participation of any other authority, and which, by its very nature, allows little opportunity for judicial or any other kind of scrutiny (cf. K.C. Davis, Discretionary Justice, Baton Rouge, 1969, pp. 211-212). And, as already indicated, there are proposals afoot for a further, vertical, diffusion of this power.

(b) Sec. 232 of the same Law provides that, following a stay of proceedings under sec. 231, the Attorney-General may upon written notice to the court renew the proceedings, provided no more than a specified period has elapsed from the time of the stay. Upon such notice, the court renews the proceedings and may commence them again from the start or continue from the stage of their discontinuance. Upon a second stay of the same proceedings, they may not again be revived. This means that the first stay does not finally close the matter, for it does not preclude the revival of the proceedings within a specified period, and only thereafter is finality reached.

(c) The power to order a stay of proceedings is not to be seen as an institution of later legislative vintage than the pardoning power. The Attorney-General's power of stay did not first come into being in the Criminal Procedure Law of 1965, but existed before that under the Mandatory Art.16 of the Order in Council 1922. It continued to exist after the establishment of the State when the pardoning power was later re-enacted, first under sec. 6 of the Transition Law of 1949, and then under sec. 11(b) of the Basic Law of 1964 (see sec. 59 of the Criminal Procedure [Trial upon Information] Ordinance of 1924, and sec. 18 of the Magistrates Courts' Jurisdiction Ordinance of 1939). It follows that the theoretical parallel between the power to pardon and the power to order a stay of proceedings was there from the start - i.e. from the very inception of the pardoning power in its new constitutional guise after the establishment of the State - and that the power to stay a prosecution indeed antedated the Knesset's enactments on the power to pardon offenders.

This fact alone should suffice to controvert the proposition that the presidential power of pardon was abrogated or curtailed by a later conferment of power on the Attorney-General to order a stay of criminal proceedings. The latter power coexisted with Art. 16 of the Order in Council 1922, and was still operative when the power to pardon offenders was widened in the Transition Law of 1949 and in sec. 11(b) of the Basic Law. And the construction of the power conferred under these enactments, in Matana and in A. v. The Law Council, did not precede, but followed the creation of the Attorney-General's power of stay.

(d) On the relationship between the two powers, Justice Cohn, for instance, has said:

There is no similarity or parallel between the stated presidential power and the power of the Attorney-General to order a stay of proceedings: the one is a prerogative power, the other purely administrative; the one is subject to revocation and change at the Attorney-General's wish, the other is an act of much solemnity and by its very nature of rare and exceptional exercise ("Symposium," at p. 15).

I myself am not inclined to view the Attorney-General's power as being administrative. It relates to a criminal procedure involving the exercise of a quasi-judicial discretion (see Schor v. Attorney-General [6]; Nof v. Attorney-General [7]). The purpose of the staying function was to reserve for the chief prosecution authority the power to halt criminal proceedings, without this entailing the consequences set forth in sec. 93 of the consolidated version of the Criminal Procedure Law (withdrawal of the charge), but retaining the possibility of resuming the proceedings within a given period. However, I do recognize differences between this power and the power of pardon, which I shall summarise presently.

(e) There can be no full parallel between the power of stay and the power of pardon, since the former comes into play only after the suspect has been charged (sec. 231 of the Criminal Procedure Law [Consol. Version]). An immunity from prosecution promised a state witness who has not yet been charged, cannot be founded on the power of stay under see. 231, but only upon an Executive commitment or, if deemed fit, a pardon.

(f) To sum up, the points of difference between the two powers are the following:

(1) A stay of proceedings is inconclusive until expiry of the statutory prescribed period. A full and unconditional pardon, on the other hand, cannot be withdrawn (see Killinger, Kerper and Cromwell, Probation and Parole in the Criminal Justice System, St. Paul, 1976, p. 318).

(2) A stay of proceedings under sec. 231 is possible only after the suspect has been charged.

(3) A pardon (according to the decision in Matana ) acts to remove the stain of guilt utterly (in contrast, for example, to the prevailing approach in Britain, as expressed in R. v. Foster [42] and holding the pardon to wipe out only the consequences of the conviction; and see, in the U.S.A., Ex Parte Garland [52], and cf. Burdock vs. U.S. [53]; see also Killinger, Kerper and Cromwell, Probation and Parole, p. 322). A stay of proceedings is merely a trial procedure which, under the Criminal Procedure Law (Consolidated Version) of 1982, calls a halt on further activities from the time the stay is ordered, without any retroactive effect.

(4) As a trial procedure acting to halt the proceedings, the stay of a criminal prosecution is not unique, as appears from sec. 93 of the abovementioned Law concerning withdrawal of a charge by the prosecutor.

(5) It is necessary for the Attorney-General to give his reasons for issuing a stay of proceedings, whereas no reasons need be given for the issue of an instrument of pardon.

15. The comparison made with English law and the contended disuse of the pre-conviction pardoning power, as advanced in the Attorney-General's above directive no. 21.333, seems to show a confusion between the continued existence of a power and the frequency of its exercise. The fact of an abrogation of the royal prerogative to grant a pardon at any time after commission of the offence, is nowhere postulated in English legal writings. One view, stated for example by Hood Phillips (Constitutional and Administrative Law, p. 378) and by R.F.V. Heuston ( Essays in Constitutional Law, 2nd ed., London,l964, at p. 69), takes the form of a mere recital of the power as existing and valid, without any comment or reservation. Another view, advocated by De Smith, holds the prerogative power to be valid but slumbering, and capable of reawakening in special circumstances of need (Constitutional and Administrative.Law, at p. 150, n. 121):

It would seem that a pardon may be granted before conviction; but this power is not exercised.

Also (at 143):

In a Scottish appeal to the House of Lords ( McKendrick v. Sinclair [43] at pp. 116, 117 - M.S.), Lord Simon of Glaisdale said that "a rule of the English common law, once clearly established, does not become extinct merely by disuse"; it may "go into a cataleptic trance", but, like Sleeping Beauty, it can be revived "in propitious circumstances."

It is noteworthy that under the heading "Pardon" it is provided in sec. 9 of the English Criminal Law Act of 1967, that "nothing in this Act shall affect her Majesty's royal prerogative of mercy." As formulated, the section makes no distinction between classes of free pardon. It is at all events clear that the exercise of this prerogative power has greatly diminished in England. Already in 1926 Sir Edward Troup wrote ( The Home Office, 2nd. ed., 1926, p. 57) that the prerogative was not exercised before conviction except in rare cases where the pardon would enable an important witness to testify without incriminating himself in respect of a minor offence. There is reason to believe that since then the power has come to be even less frequently exercised. But, as I have already said, the existence of the power and the measure of its use are two separate matters.

The question of the continued existence of the prerogative power of pardon, alongside and notwithstanding the power to order a stay of proceedings, is discussed in an article written by A.T.H. Smith in which he states this conclusion ("The Prerogative of Mercy, the Power of Pardon and Criminal Justice," Pub. L. [Autumn 1983], 416-417):

Whether or not the power continues to exist is a matter of some conjecture, but the better view would seem to be that it does. It has certainly not been abrogated by statute, and although it is true that prerogative powers can be lost or modified merely by disuse, as in the case of the royal power to sit as a judge, the criteria for deciding whether or not a power has become "obsolete" are far from clear. As a general principle, the rules of the common law (of which the prerogative is undoubtedly part) do not lapse through desuetude or obsolescence. Even though the power does not at present seem to serve any identifiable constitutional purpose, the prerogative has proved itself to be a remarkably enduring power, and one that can reappear at unexpected moments, and until the advance pardon is expressly abrogated by statute, the possibility that its use will revive at some future time cannot be discounted.

In other words, the accepted view is that the prerogative power, which in England emanates from the common law and not from statute as does the power of pardon in Israel, has not been abrogated by disuse but continues to exist; moreover, neither in theory nor in practice is there anything to prevent its renewed use in special circumstances, and only an express statutory directive can extinguish its efficacy.

As for the situation in the U.S.A., it will be recalled that the presidential power of pardon was exercised on two recent, well-known occasions. On the first occasion it was exercised in favour of President Nixon (39 Fed. Reg. 32601-02 [1974]). (In this connection see Murphy v. Ford [54] in which the grounds for exercise of the power were discussed; see also Mark P. Zimmett, "The Law of Pardon," Annual Survey of American Law, 1974/5.) On the second occasion, in 1977, the power was exercised by President Carter in favour of evaders of conscription in the Vietnam War, i.e. a form of pardon for a class of persons and a class of offences, bearing the character of a partial "general" amnesty. The pardon was formulated to extend, inter alia, to "all persons who may have committed any offence between August 4, 1964 and March 28, 1973 in violation of the Military Selective Service Act or any rule or regulation promulgated thereunder" (42 Fed. Reg. 4391 [1977]). Bernard Schwarz writes of this pardon of 1977, "the legality [of which] was never questioned" (Constitutional Law, at p. 198). (On this pardon, see also G.S. Buchanan, "The Nature of a Pardon under the U.S. Constitution," Ohio St. L. J. 39 [1978], 36, 61, where the writer comes to the same conclusion.)

The English system, so far as it is of comparative significance, seems accordingly to invite a conclusion that is the opposite of the one we have been asked to draw. If in England a power stemming from the common law has not lapsed or become obsolete notwithstanding the lack of its use, how much less so in our own case involving a statutory power construed by the Supreme Court (in 1960, in the Matana rehearing) as a valid and existing power in the opinion of all.

As in England, so with us, the situation is one of a practical non-exercise of the debated power (see e.g. par. 5a of the Attorney-General's directive no. 62.100), rather than its explicit repeal. That is to say, the power itself has been reserved for use in exceptional cases, and its use knowingly restricted. The legal situation in the U.S.A. reflects a similar sparing use of the power of pardon before conviction, but its validity is clearly accepted there.

16. Our next assignment is to trace such other legal directives as may have a bearing on the aspect of pardon with which we are now concerned. In this regard Prof. Klinghoffer observed ("Lectures on Amnesty," at p. 7):

Showing mercy is not a monopolistic power of the State President. Other authorities too are competent to extend grace and clemency - as does the Attorney-General when issuing a nolle prosequi, or the Minister of Police when authorizing the early release of prisoners, with or without the recommendation of the competent board. The Military Justice Law likewise provides for the functioning of a penalty review board, with power to mitigate or substitute punishments, without derogation from the Presidential power of pardon. Already at the beginning of the lecture it was hinted that the contemporary trend is to permit the courts an increasing measure of mercy along with the doing of justice. Other matters affecting pardon and having constitutional implications, come into play when the quest for a pardon is pursued along the lines of a retrial.

As already indicated, the statutory creation of an alternative legal framework for some of the processes for which the pardoning power is now used - in its various forms, mainly after conviction but also before - was proposed by Prof. Feller in his abovementioned article, "Rehabilitation." His proposal included a draft Rehabilitation Law, a supplemented and expanded rehearing facility, and an express narrowing of the provisions of sec. 11(b) of the Basic Law so as to encompass only respite or remission of punishments not yet served (as distinct from a pardon in respect of the conviction). Prof. Feller proposed a synthesis between new legislation and amendments to existing enactments, aimed at supplementing the existing arrangements on matters such as a stay of proceedings, review of punishment, mitigation of punishment and retrial.

Some years ago the trend embodied in the above proposals gained momentum with the enactment of the Crime Register and Rehabilitation of Offenders Law of 1981, which provides, inter alia, for the automatic deletion from the register in certain cases of a person's previous convictions, for restricting the availability of information concerning the same, and like directives. In other words, we witness here the completion of part of the legislative program designed to establish new legal machinery that will give expression to and aid in the practical attainment of an equality of rehabilitative opportunity and rights.

In sum, we see in existence today a number of statutory provisions to reach many of the same results as are attained through exercise of the power of pardon. Some of these provisions precede the Knesset's enactment of the existing power of pardon and its judicial construction, for instance those concerning the prosecution's discretion as to charging a suspect, or the power to stay criminal proceedings. Other such provisions have sprung up contemporaneously and in coexistence with the statutory directives concerning pardon, such as the provisions relating to retrial and review of punishment, while more recently provision was made, as already mentioned, for expunging a person's criminal record. Thus some of the new provisions apply in the pre-conviction stage of the trial, while others - and these form the bulk - are applicable in the post-conviction stage, i.e. the stage where most of the decisions affecting exercise of the pardoning power are in practice made today.

17. We must now give attention to the fourth of our questions posed above, namely, the nature of the reciprocal tie between existing legislation and new legislation on the same subject or, more specifically: does the emergence of a new statutory arrangement alongside and overlapping an existing provision entail any abrogation of the latter?

The prevailing Anglo-American interpretative approach is to start on the premise that the lawgiver intends no tacit repeal of earlier enactments, particularly not when the enactments are all of modern date (see F.A.R. Bennion, Statutory Interpretation j London, 1984, p. 433, with reference to the decision in Jennings v. United States [44]; the same view is taken by R. Cross, Statutory Interpretation, London, 1976, 3). Incidentally, according to Cross. English law also does not recognize the possibility of abrogation of a law through desuetude, so that a statute will not cease to be valid merely on account of obsolescence. Generally speaking, express legislative direction is required for such invalidation.

It is interesting that a similar approach was advocated by Prof. Klinghoffer, speaking at the time in a Knesset debate (Minutes of the Knesset, 43 (1965), 2319):

It is not the function of the prosecution to determine whether certain provisions of the penal enactments have become a dead letter. As long as they remain inscribed in the statute book they must be observed, and if their further observance be undesirable, it is up to the lawgiver - and not the prosecution - to repeal them.

English law does not regard the mere concurrent existence of earlier and later legislative enactments on the same subject as warranting the inference of an implied repeal. This consequence flows only from contradiction between two enactments (see E.A. Driedger, Construction of Statutes, 2nd ed., Toronto, 1983, p. 226; also W.F. Craies, On Statute Law, 7th ed., London, 1911, p. 366). Cross succinctly states the situation thus ( Statutory Interpretation, p. 13):

The test of whether there has been a repeal by implication by subsequent legislation is this: are the provisions of a later Act so inconsistent with, or repugnant to, the provisions of an earlier Act that the two cannot stand together.

In support the writer quotes the decision in Westham Church Wardens v. Fourth City Mutual Building Society (1892) [45], adding, "The fact that two provisions overlap is therefore not enough."

18. (a) The question of a repeal by implication was deliberated by this court in Haddad v. Attorney-General [8], which involved the relationship between different penal enactments prescribini different measures of punishment for one and the same offence. In a majority decision it was held, inter alia, as follows (at p. 1421):

If the contradictions and inconsistencies between the two Laws cannot be aligned and reconciled with each other, the conclusion cannot be avoided that the earlier enactment has been implicitly repealed by the new one. In keeping with that rule, it has been laid down that even though the new Law deals with an offence that is also dealt with in the earlier Law, both Laws may continue to exist together if the new Law is found to have a different purpose and for that reason prescribes a substantially different penalty for the offence concerned; in such event, the offender may be charged under either Law. If, however, the penalty varies in degree only, that is to say, the one enactment prescribes a heavier or a lighter penalty than does the other, the earlier enactment will be deemed repealed by the subsequent one (see Maxwell, pp. 193-194; also Henderson v. Sherborne [1837].

Reliance upon the interpretative rule concerning repeal by implication, was founded in the above case on the doctrine that an accused person is entitled to be held to account under the less stringent of two penal directives applicable to him. Therefore, the directive of earlier date, which differs from the later one only in the heavier punishment it prescribes for the same criminal act, will be deemed repealed by implication. This interpretative rule operates only in respect of punitive criminal directives which are laid down in two separate enactments, each dealing with the identical act, omission or attempt. In other words, the contradiction finds expression, in the situation described above, in the different measure of punishment prescribed. That situation has little bearing on the problem now before us, and certainly the above rule of interpretation has no application to the situation described in the Attorney-General's directive, namely, a concurrence of the power of staying criminal proceedings and that of pardoning offenders. There is neither a contradiction nor an identity between the two.

(b) The question of the rule to apply when the same power is extended in two overlapping Laws arose directly before this court in Filtzer v. Minister of Finance [9]. The issue was the effect on certain powers conferred under the Land (Acquisition for Public Purposes) Ordinance of 1943, of other powers to achieve the same objective conferred subsequently under the Rehabilitation Zones (Reconstruction and Evacuation) Law of 1965.

For our present purpose, the above case is directly in point, since there too it was contended that the existence of parallel powers of different legislative vintage (in our own case the presidential pardoning power and the Attorney-General's power of stay) implied an abrogation of the earlier power. More specifically, it was argued in Filtzer that the Finance Minister's power of land expropriation under the Land Ordinance had been abrogated by the subsequent conferment of a parallel power on the rehabilitation authority constituted underthe later statute. Landau J. (as he then was) rejected the contention as to an invalidation of the power under the Ordinance of 1943, holding that even if the same purpose could be achieved under two different Laws, that did not preclude application of the earlier Law, though its provisions were less favourable to the citizen than those of the later Law. He noted that the two enactments were of equal status, and the Law of 1965 did not serve to deprive the Minister of his powers under the Ordinance of 1943, merely because the rehabilitation authority could achieve the same objective under the Law of 1965. Yet this conclusion had been said by the petitioners to be self-evident, in reply to which the learned Justice said (at pp. 119, 120):

The gist of the petitioner's argument is that the Law had effected a pro tanto repeal by implication of the earlier Ordinance in respect of all the eventualities covered in the Law of later date. Were it not for such an implicit repeal, it would anyhow be impossible to attribute to the Minister of Finance an abuse of his power under the Ordinance, when the exercise of such power is competent under the Ordinance as it stands. In H.C. 5/48 there arose a similar question in relation to the application of regulation 48 of the Defence Regulations of 1939. It was argued that this regulation had been implicitly repealed by regulation 114 of the Defence (Emergency) Regulations of 1945. This argument was rejected, the learned President (Smoira), quoting the following passage from Maxwell:

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

The reason for such extra caution in declaring a statute implicitly repealed, is clear: to act otherwise is to introduce an undesirable element of uncertainty into the interpretation of laws which derive their validity directly from the will of the Legislature.

Landau J. referred also to the Haddad case [8], mentioning that ground for holding an earlier enactment to be implicitly repealed by later overlapping legislation, existed in the area of penal statutes, with specific reference to differences in the mode of trial or the punishment prescribed in the later legislation. Landau J. then quoted this passage from the judgment of Smoira P. in the above criminal appeal (at p. 1426):

Great importance attaches, in my opinion, to the principle of such an implied repeal specifically in the area of the penal law. One finds the theory as to a possible coexistence between two penal Laws dealing with the same offence, to be accompanied by the routine statement that the public prosecution may choose as it sees fit to prosecute either under the more stringent or the more lenient law. However, this statement has no foundation other than its routine recital, and in my view violates the fundamental penal law rule: nulla poena sine lege. A plurality of penal statutes from among which the public prosecution has a right of selection, is tantamount to a situation of having no defined and certain law.

The abovementioned statements are particularly instructive in the context of our present inquiry, as they show the court frowning in that case on the development of a situation in which the citizen who has committed an offence is dependent upon the prosecution's discretionary choice of the penal provision under which he be charged, whether the more onerous or the more lenient provision. "The penal law can affect the citizen' s freedom and reputation" Landau J. pointed out, adding that there was no like reservation with regard to other legislation in the public field.

These views expressed by Smoira P. and Landau J. have a bearing on the contention that the Attorney-General's power of stay operates as an implied pro tanto repeal or curtailment of the presidential pardoning power. At stake is the repeal or abrogation of a recognized constitutional power, the power of pardon of such scope and substance in our law as fundamentally perceived and construed in the decisions of our courts. Any interpretation that seeks to narrow the hitherto understood scope of this power, would normally require to be unequivocally established, for, as already indicated, the tendency is to give constitutional powers a wide interpretation. It is all the more difficult, therefore, to adopt the perspective that a power entrusted to the prosecution, at the exercise of its sole discretion, should oust a constitutionally endowed presidential power. It would seem difficult enough to accept the proposition advanced even if we were talking about a power of the prosecution that was new, rather than one already in existence when the pardoning power was enacted. I must reiterate what I have already stressed, that the question here is the existence of the power and not the manner of its exercise.

Our inquiry accordingly leads to the conclusion that the rule as to an implied repeal of a statutory provision by later overlapping legislation, is not applicable in the matter now before us. This is so not only for the reasons stated in the Filtzer case [9], but because the question of an implied repeal by later legislation actually fails to arise at all in our present matter, inasmuch as the Attorney-General's power of stay antedated the modern enunciation of the presidential pardoning power.

19. The fifth question we posed was whether the pragmatic development of defined processes in our current legal reality can curtail the operational scope of an existing constitutional arrangement which is essentially the product of statutory interpretation. This question entails here the notion of a pro tanto repeal of the concurrent part of an earlier enactment, a notion which was explained by Justice Landau in the Filtzer case to have no application in circumstances of the kind now before us. The answer to the question is negative.

In the first place, the answer to the question would normally depend upon the substantive nature of the processes at work, as weighed against the degree to which the constitutional arrangement evolved from statutory interpretation, and upon which the stated processes would impinge, has taken root. If this arrangement is the outcome of a wide, basic constitutional perspective, its efficacy will not be diminished by processes which are not contradictory thereto.

Second, we are dealing here with a contention that is in fact predicated upon a change in the rate and frequency of exercise of the power of stay. This change, so the argument runs, should be seen as justification for viewing the presidential power of pardon as having been curtailed. That is tantamount to saying that the Attorney-General, by the number of nolle prosequi's he issues, determines whether or not the presidential power continues to exist. I do not believe that this proposition finds any existing legal foundation. Jurisprudence does not yet recognise a biological process by which, within a complex of existing interrelated statutory provisions, a kind of law of natural selection functions as a mechanism for the abrogation of Laws for which there is abated need because they have, as it were, fallen into disuse.

Third, there will be scant inclination in a democratic regime espousing the rule of law and individual rights, to adopt an interpretation that suffers the whittling down, and even negation, of a power destined mainly to serve the individual, and it matters little that there exist other parallel institutions exercising like powers.

20. We might conveniently summarise our above reasoning as follows:

(1) It is our accepted view that a legislative overlapping or even duplication does not in itself abrogate an existing enactment or power.

(2) The validity of a statutory directive is not annulled by the fact of its disuse or rare use.

(3) An implied repeal of statute law may result either from directives which are contradictory in content or, in the penal field, from the prescription of a lighter punishment in a later enactment. The presence of such contradictory directives was not argued in the matter before us, nor have we perceived it to exist. That the existence of two concurrent competent authorities does not in itself amount to a contradiction is clear from the ruling in Filtzer [9].

(4) The mere fact of an overlapping between the power of stay and the power of pardon before conviction, does not invoke the rule of interpretation that would negate one of the two arrangements. The one is a procedural power, whereas the other is among the powers vested in the person who functions as the formal Head of State. The latter powers were fundamentally, by their very nature, intended to produce similar consequences to those resulting - to one extent or another, whether by legal design or in practice - from the acts of other governmental authorities. The two powers are of different juridical substance and the one does not negate the other.

(5) The crucial question is whether the power of pardon before conviction was ever actually created. Once it transpires that this court has recognised the existence of such a constitutional power, and regarded it as an element of the wider presidential pardoning power, the same can no longer be amenable to an inadvertent or implied repeal. It is proper that the repeal of a constitutional power be effected only after due consideration and in a patent and advertent manner, as befits the subject of the repeal. Moreover, the rule of law is fortified when we show respect for our constitutional directives, inter alia, in the way we set about their amendment or repeal.

21. Were we to hold that the very enactment of new legislation can curtail the scope of an existing statute, or even implicitly repeal an express constitutional provision, then surely even the presidential power to pardon after conviction should be overtaken by the same consequence. A retrial, or the different punishment review boards, or the operation of the abovementioned Law concerning the rehabilitation of offenders, all serve purposes which overlap, partly at least, those of a pardon after conviction. As already indicated, this situation lately assumed added significance with the enactment by the Knesset of the Crime Register and Rehabilitation of Offenders Law of 1981, incorporating the ideas of Professors Klinghoffer and Feller.

The argument as to legislative duplication and overlapping mechanisms, can hardly be confined to comparison of a stay of proceedings with the power of pardon before conviction (and substitution of the one for the other), but should properly embrace all the pertinent parallel mechanisms in the field of the constitutional as well as the penal law. An interesting illustration of the possible co-existence of parallel powers in the post-conviction stage, is provided by the Privy Council decision in Thomas v. The Queen [46], where the power of pardon of the New Zealand Governor-General was not considered invalid in relation to the class of cases in which the law permitted a retrial.

There is no logical basis for a mode of interpretation that would differentiate, for the purpose of determining the scope of validity of the pardoning power, between the various new statutory provisions and their effects, and single out precisely those pertaining to the pre-trial stage. The power of pardon has been interpreted in our law in relation not only to the post-conviction stage, but also the pre-trial as well as the trial stages, and the fact of a gradual evolution of overlapping and parallel mechanisms provides no justification for a selective kind of interpretation.

In fact we have here no implied repeal, nor any other phenomenon of an extinction without trace. When dealing with a constitutional directive such as sec. 11(b) of the Basic Law, we cannot sanction the elimination of any part thereof except by an explicit statutory provision which, after all, is the product of methodical study and preparation and is founded upon tried and tested legal concepts rather than chance eventualities. It is important that objectives of constitutional import be attained in a seemly manner.

In recapitulation, it seems clear that an enacted constitutional power is not repealed except upon express statutory directive, and that the statutory conferment on the prosecution of a power which is similar in content to that exercised by the President, does not act as an implied repeal of the constitutionally bestowed presidential power. It follows that the presidential power as construed in the cases of A. v. The Law Council and Matana, continues to exist and remain valid so long as not repealed by the Knesset.

I would not disparage the view that the power of pardon needs to be reconsidered in a manner leading perhaps to revisory legislation. Any deliberation towards this end should, in the nature of things, encompass also a solution of the problem that arises, not infrequently, from the contradiction between the judicial decision and the pardon that follows it. The search for a proper balance and separation between the different Executive organs, and the coordination of their separate activities, does not come to an abrupt halt at the chance limits set by the legal dispute in a particular matter.

Juridical Substance of the Pardoning Power

22. Our next matter for inquiry, as I have already indicated in paragraph 8 of this judgment, is the juridical substance of the pardoning power.

The power of pardon has ancient roots, and has for thousands of years been so interwoven with the ruler's status, as to induce an opinion that it finds no place in a democracy (see e.g. Blackstone's Commentaries, p. 397). The view that pardon was a feature of autocratic rule also found expression at the time of the French Revolution, when the power was abolished for the first time and left without trace for some years. Beccaria (On Crime and Punishment, New York 1963, pp. 58-59) saw an unbridgeable gap between his own penological perspectives and the power of pardon. Yet the power has survived in an overwhelming majority of world legal systems, although in a rich variety of forms so far as concerns its scope and the authority in whom it is vested (see Dr. L. Sebba, "The Pardoning Power - A World Survey," J. Crim. L. and Criminology 68 [1977], 83). The prevailing constitutional perspective is that the pardoning power now reposes in the people who, by the force of legislation, confer it in turn on a defined authority ( Am. Jur., supra, at p. 10).

As to the variety of constitutional arrangements, I might briefly mention that sometimes the power of pardon vests in the Head of State, i.e. the President or the King; sometimes it entails the functioning of an advisory board representing all or some of the connected governmental authorities, or consultation with the court or a special judicial tribunal, or a judge (see J. Monteil, La grace en droit francais moderne, Paris, 1959, p. 22). In other countries the actual power is wielded by the legislature as such (for instance, in Switzerland and Uruguay), or by the judiciary. Sometimes the power is vested in the Council of State (for instance, in a number of Eastern European countries and in South Korea), or in the Presidium or a council specially constituted for this purpose. In Sweden the power rests with the Government and in the U.S.S.R. with the Supreme Soviet Presidium.

These examples illustrate, without exhausting, the range of pardoning powers, which vary also in their prescribed procedures, such as the manner of lodging the request, of consultation with judicial bodies or other agencies, and of arrival at the decision. In Australia, for instance, an inquiry is conducted in all cases by a Justice of the Peace appointed by the Governor-General or by a Judge of the Supreme Court.

In some countries the power of clemency is confined to the reduction of punishment alone (as in France, but there one finds also the special power of la grace amnistiante, which enables the grant of a full pardon to certain classes of persons; see Monteil, La grace, at p. 207). Pardon before conviction is possible in numerous countries, inter alia, the U.S.A., Britain, New Zealand, Singapore, Malawi, Sri Lanka, Iceland, Czechoslovakia, Lichtenstein, and the State of Queensland in Australia (see Dr. L. Sebba, On Pardon and Amnesty, at p. 291). In many other countries, however, there is pardon after conviction only (for instance in India, where the restriction is statutorily prescribed). The legal consequences of a pardon also vary greatly from country to country.

In some countries the actual decision may be directly or indirectly challenged in the courts, whereas elsewhere, for instance in France, the decision offers no ground for recourse to the courts, whether as to the legality of the decision or as to its substance within the national framework. F. Luchaire and G. Conac phrase the situation thus: tant au niveau de leur legalité qu'au plan de la responsibilité de l'Etat (La constitution de la republique francaise, Paris, 1979, p. 351). The writers rely in this connection on a resolution of the Conseil d'Etat (30.6.1892; Gugel, Dalloz Periodique, 1894, III p. 61; 28.3.1947, Gombert, Sirey, 1947, III p. 89).

Sometimes pardon is granted for political offences alone (for instance in Colombia), and at other times these are specifically excluded as a type of offence for which a pardon may be granted.

Our purpose in sketching the abovementioned varieties and possibilities of pardon, is to illustrate the lack of any uniform model and the fact that virtually every legal system has fashioned its own peculiar perspective on the subject, in harmony with its other governmental institutions. For comparative purposes, it is of no moment that in the U.S.A. the President, in whom the power of pardon is vested, serves to head the executive, whereas in Israel the President fulfills the function of a titular and formal Head of State - much like the arrangement in England, adopted also in many of the European democracies after World War I. There is no uniform tie between the nature and general status of the executive office filled by the holder of the pardoning power, and the power itself, since it is sometimes vested in authorities other than the President or King. When this court made reference in Matana and in A. v. The Law Council to the constitutional situation in Britain or the U.S.A., it did so, not in order to link the Israel arrangement to one or another foreign complex of powers, but to indicate the source and substance of the viewpoints we ourselves adopted. These the court found reflected in what was taken at the time to be the prototype for our own constitutional mould when our initial autonomous directives to this end came to be enacted. Once domestically fashioned, the powers became independent of any influence other than our own perspectives and concepts. Processes in other countries may be of instructive and comparative interest, but cannot deflect us from what is customary and accepted here until such time as we ourselves decide to change the approach, and do so in the appointed manner, having regard to the character of the subject and the substance of the power concerned. For this reason, too, there is little logic in seeking guidance from other systems structured upon essentially different perspectives. If, for instance, French law decrees that grace, in the case of an individual, shall relate only to the punishment and not to the conviction (except in the case of grace amnistiante ), there is little we can learn from it as regards the possibility of pardon before conviction. The French method of grace, incidentally, seems to differ also from our own method of remission of punishment, for instance in relation to a mandatory death sentence. (On the reservations of former French President Giscard d'Estaing in this connection, see Luchaire et Conac, La constitution, at p. 348.) The opposite applies in Belgium, where remission Of a mandatory minimal punishment is possible (see Dr. Sebba's article "The Pardoning Power," at p. 86). In short, the lack of a power of pardon before conviction in France or Germany, for instance, has no bearing on the present situation in our law since the models in those countries played no part in the shaping of our constitutional framework of pardon. Furthermore, for a proper evaluation of standards, we should put the emphasis on the substance of the pardoning power, and not on the functionary who exercises it, or the manner of its exercise. In our law it has been held that the President is invested with the widest form of the power of pardon (as regards offences) and clemency (as regards punishment), being empowered to obliterate even the stain of the offence and not only its consequences. That is our existing legal situation and it is in the light of this conclusion that we have to draw further inferences as to specific aspects of the power. The fact that proposals have been made to change the legal situation - and I certainly am not opposed to the discussion of these ideas, and even the adoption of some of them - does in no way affect the substance of the existing law.

23. It accordingly transpires that in the present case the decision to pardon came within the formal scope of the State President's power. In this regard it should be noted that the lawgiver has made provision for the preliminary ascertainment of this court's views on matters of pardon. Thus sec. 32 (a) of the Courts Law (Consolidated Version) of 1984, provides that upon a request for a pardon or reduction of sentence lodged with the President, any question which arises and in the opinion of the Minister of Justice deserves to be dealt with by the Supreme Court, but which provides no ground for retrial under sec. 31 of the Law, may be referred by the Minister to that Court.

Exercise of the Power

24. Having concluded that the President has a valid power to pardon before conviction, we might now inquire as to the occasion for its exercise. In fact the power has so far remained virtually unused, such a pardon having been granted until now in only a small number of exceptional cases, some of which were brought to our notice in the course of our deliberations here. It is only right that the power be used sparingly, for only the most exceptional circumstances of paramount public interest or personal plight - for which no other reasonable solution can be envisioned - will justify such anticipatory intervention in the normal course of the trial proceedings. It would be wrong, therefore, to attempt to classify in advance the proper cases for the exercise of this power.

The decision to pardon was held by Justice Marshall of America to be generally motivated as an act of grace ( United States v. Wilson [55], at pp. 160-161), but the prevailing American approach is to rest the decision on considerations of the public welfare (see: Biddle v. Perovich [56] at p. 486; and see also C.C. Joyner, "Rethinking the President's Power of Executive Pardon," Federal Probation 43 (1979) 16).

As the general starting point for examining an exercise of the pardoning power, I am disposed to accept the approach enunciated in Montgomery v. Cleveland [57] at p. 1157:

While a pardon is a matter of grace, it is nevertheless the grace of the State, and not the personal favor of the Governor. It is granted out of consideration of public policy, for the benefit of the public as well as of the individual, and is to be exercised as the act of the sovereign state, not of the individual caprice of the occupant of the executive office as an individual. He is supposed to act in accordance with sound principles and upon proper facts presented to him.

Normally, a pardon is not a natural further progression in the course of judicial proceedings, but should properly come into play only in exceptional circumstances which involve a material change in the situation after completion of the trial proceedings, and warrant an alteration of the judicial decision. All the more rarely and exceptionally, therefore, should the power of pardon be exercised before conviction, this being a reserve or residual constitutional power left with the President - something in the nature of a "safety valve."

A theoretical example of circumstances warranting the grant of a pre-conviction pardon, was outlined by Prof. Klinghoffer in his abovementioned statement before the Knesset, the relevant passage from which I shall repeat below for the sake of convenience:

As a further example one might mention that reasons of state, involving arrangements with hostile elements, have been recognized in the past as legitimate grounds for the early release of prisoners from custody, even before completion of the trial and, implicitly at least, as warranting also the grant of a pardon (cf. H.C. 228/84 [10]; H.C. 270/85 [11] and Bar-Yosef v. Min. of Police [12]). Of course, even in the stated circumstances every case would still require to be examined independently and the situation would vary from one concrete set of circumstances to another.

25. Just as it would be inconsistent with the purpose of pardon for it to become converted into a kind of instance of appeal from judicial proceedings, so too pardon before conviction ought not to become a mode of appeal against the decisions (to prosecute) of the public prosecution. This slumbering, residual kind of power has been preserved for sole use in the exceptional situation of a risk of serious harm which the holder of the power may legitimately take into account, which is incapable of being warded off by other means, and thus warrants relaxation of the essential restraint on the exercise of the power.

In concluding my remarks on the instant point, I should like to recall, and endorse with such changes as may be necessary, the recommendation made by Dr. L. Sebba (On Pardon and Amnesty). He proposes that even upon adoption and completion of the comprehensive legislative program proposed by him for the creation of machinery to deal effectively with all matters and foreseeable problems connected with or likely to result from punishment under the criminal law, there should still be left with the President a reserve or residual power, as he put it, to deal with exceptional cases (at p. 267):

However, even if all the proposed solutions be accepted, we do not recommend the complete abolition of this power. Even if the parole arrangement be instituted, even though it embody regulation of the penalty of life imprisonment, and even upon the abolition or qualification of prescribed minimal punishments, there will always remain special cases in which the offender will not find salvation unless the President be empowered to come to his aid. It is true that the flexibility contributed by the pardoning power to the process of meting out the punishment, has largely become redundant in view of the increased freedom allowed the courts over the years in this regard. It is also customary nowadays to enable the Executive to intervene in the more advanced stages of implementation of the punishment, so as to maintain flexibility in these stages as well. But in the end it is still necessary to leave an opening for intervention on the part of some additional authority, in the event that the other two authorities be unable to effect the desired solution. The proper authority for this purpose is indeed the State President, who ranks in status above the other two authorities, and especially since there is sometimes involved a departure from the policy laid down by the third authority, i.e. the Legislature. In these residual cases there remains room, therefore, for entrusting the President with a power that will function as a kind of "safety valve" in the event the customary processes provide no solution.

And now, arising out of the hearing of the instant petitions, there are some additional observations I have to make.

The State and the Rule of Law

26. (a) The rule of law is not an artificial creation. It is to be observed in a concrete day-to-day manner in the maintenance of binding normative arrangements and their actual application to one and all, in the upholding of the basic freedoms, in the insistence upon equality and the creation of an atmosphere of trust and security. The rule of law, the public welfare and the approach of the State to problems are not opposing conceptions but complement and sustain each other.

The court is specially charged with the practical realisation of these expectations, but all of the State organs are committed to the attainment of the stated objectives. One cannot conceive of a sound administration without maintenance of the rule of law, for it is a bulwark against anarchy and ensures the State order. This order is essential for the preservation of political and social frameworks and the safeguarding of human rights, none of which can flourish in an atmosphere of lawlessness. National security also leaned on the rule of law, both in protecting internal policy measures, and in aiding the creation of means to combat hostile elements. There can be no organized activity of any body of persons, or any discipline, without norms based on binding legal provisions.

(b) Sound government requires that the authority concerned be in full possession of the relevant facts before acting. It is not necessary that the information be known to all, and the confinement thereof to a few persons is sometimes not only desirable but also legally imperative. Yet the need for the responsible authority fully to acquaint itself with the facts increases as the subject takes on greater importance. It must be remembered that the "leaking" of classified information does not happen by itself, but by its deliberate or accidental disclosure by some person involved.

(c) Sound government is founded upon the faculty of sound decision making, which there can never be without prior knowledge of the relevant particulars, no matter the subject of the decision. The matter was discussed by this court in Berger v. Minister of the Interior [13], in the context of the Minister's duties with regard to the introduction of summer-time or "daylight saving." In background importance the subject, of course, did not match that which is now under deliberation, but the principle enunciated there is equally applicable elsewhere. In the above case the court formulated rules affecting the manner of ministerial decision making, reiterating the obvious proposition that this should result from and be structured upon knowledge of the factual situation.

Sound administrative procedures will ensure diverse facilities for obtaining information, maintaining constant supervision and overseeing the implementation of directives. The process of gathering information or holding an investigation, when necessary, may also assume different forms. Here one golden rule has to be observed, valid for purposes of administration as well as inquiry, namely: the sooner a matter calling for investigation is examined, the better from all points of view. A particular authority may perhaps confine information departmentally, or otherwise restrict its dissemination and ensure that no harm result from the disclosure or obtaining of information. But there are no circumstances that allow an administrative authority to refrain totally from investigating a matter which may bear upon its capacity, and that of its subordinates, to function properly, and to decide issues within the scope of its immediate responsibility, or perhaps affecting its responsibility to the public at large. There is a world of difference between a decision to hold a controlled and protected investigation, and a decision not to conduct one at all. The latter option would be like trying to cross a busy road with one's eyes shut.

(d) There are different ways to conduct a confined or departmental inquiry or investigation into any subject - including recourse to whatever legal proceedings be considered necessary - without prejudicing the national security. Such problems have been dealt with before, and I shall say no more on the subject on the assumption that the processes mentioned by the Attorney-General in his intimation of 15 July 1986, have been set in motion.

The President as a Respondent

27. On 30 June 1986 we ruled to delete the President's name as a respondent in petitions H.C. 431/86 and H.C. 446/86, and ruled likewise on 20 July 1986 in petition H.C. 463/86. Our reason for so doing is set forth in the Basic Law: The President of the State, sec. 13(a) of which reads as follows:

The President of the State shall not be amenable to any court or tribunal, and shall be immune from any legal act, in respect of anything connected with his functions or powers.

When he granted the instant pardon, the President was acting in a matter "connected with his functions and powers," so that he is not amenable to the jurisdiction of the courts in connection therewith, including this court's powers of direct review - its authority to demand of the President himself an explanation of his decisions. This immunity relates to the direct challenge of any presidential act, but there is no obstacle to indirect judicial review of the President's discharge of his functions - in proper cases and when the proceedings are directed against some other respondent, as happened, for instance, in the case of Bar-Yosef v. Minister of Police [12].

28 (a) The question of the legality of the pardon granted is of wide range, embracing as it does both the power itself and the manner of its discretionary exercise. As regards the power itself, we have dealt extensively with the matter and sought to provide the correct answer above. With regard to the exercise of the presidential discretion, this court has had occasion to comment as follows, in connection with a ministerial recommendation for a pardon referred to the President:

Even if the President was misadvised, or even if he himself erred in the exercise of his discretion, the legal validity of his decision remains unaffected thereby and this court does not sit in appeal from the President's decision" (Barzilai v. The Prime Minister [14] at p. 672).

The matter calls for a measure of clarification and qualification. It is accepted that in exercising judicial review, the court does not assume the role of the functionary whose conduct is under challenge (even if indirect) but examines whether the functionary acted as one in his position should have done ( Nof v. Attorney-General [77] at p. 334). The court does not seek to project and substitute its own decision but intervenes only when convinced that no reasonable authority in a similar situation could have arrived at that same conclusion. The degree of reasonableness required depends upon the status of the authority and the nature of its powers. That is to say, in exercising its jurisdiction the court will also have regard to the identity of the constitutional authority whose conduct is under review. The norms for the judicial review of discretionary power will in any event incorporate reference to the functional character and nature of the authority concerned (cf. Sarid v. Knesset Chairman [15] at pp. 203-4).

(b) The petitioners' criticism of the President's exercise of his discretion extended also to the paucity of the information made available to him prior to his decision, as well as the haste, so it was further contended, with which the different pardons were deliberated and granted, and like contentions. I find none of them to provide any ground for intervention by this court. First, as regards the facts, there is no reason to dispute the declaration before us that the President was fully informed and had also met twice with one of the persons later granted a pardon. The fact that he did not meet with the other three applicants can hardly be regarded as an impropriety, as in fact the President normally deals only with written requests for a pardon and it is exceptional for him to meet with the applicant (see E. Abramovitz and D. Paget, "Executive Clemency in Capital Cases," N.Y.U.L. Rev. 39 [1964], 136, 137; and see Dr. Sebba, On Pardon and Amnesty, at p. 194). Once it is established that there was evidence before the President of the commission of offences as set forth in the pardon applications referred to him, whether verbal or in writing, and also that the applicants admitted having committed the criminal acts for which they asked to be pardoned, then clearly the President had before him sufficient particulars upon which to decide, thus leaving no ground for the court's intervention.

29. A further argument concerning the presidential pardoning power, focused on the distinction between amnesty and individual pardon, was addressed to us by Adv. Michal Shaked, learned counsel for the petitioners in matter H.C. 448/86. She contended that the circumstances of the grant of the pardons indicate them to have been in the nature of an amnesty, whereas the President enjoyed no such power, but the power to grant individual pardons alone. In support of her contention counsel quoted the following statement (extract from The Attorney-General's Survey of Release Procedures, Department of Justice, Washington, 1939 vol. III):

In an attempt to classify the institution of amnesty, we may state that it belongs to the upper concept of pardon. It is a plurality of pardoning acts, and its main feature is that the amnesty determines the conditions and the extent of the pardon by groups of persons or groups of crimes or by certain general attitudes of the individuals concerned. There is a pronounced predilection to lay stress on the motive. Even the exceptions and limitations in an amnesty are generally given by groups, regardless of the merits of the single case.

It indeed appears from the decision in Matana [3] (at p. 445) that the President enjoys the power of individual pardon only (as is the case in England). But that exactly was the power exercised by the President in the instant case. It is true that he issued four different warrants of pardon, but each of them related solely to the individual named in that warrant and to the offence therein stated. The warrants did not define the right to the pardon according to a class of persons, or offences, or qualifying conditions. The fact that a number of pardons are granted simultaneously to several individuals involved in the same act or incident, does not serve to convert each separate warrant, or all of them together, into an amnesty (see Dr. Sebba, On Pardon and Amnesty, at p. 61).

Locus Standi

30. At the commencement of the hearing learned counsel for the respondents asked for dismissal of the petitions in limine, on the ground that the petitioners had no legal standing to contest the validity of the pardons granted. It was argued that these were in the nature of an individual act of the President and of concern to the recipients of the pardon alone. It was contended that the petitioners could not point to any real and direct personal interest in the invalidation of the pardons, as these operated solely for the benefit of the individuals pardoned (certain of the respondents in these proceedings), so that the petitioners, far from seeking any relief for themselves, were motivated merely to deprive others of a benefit (see Becker v. Minister of Defence [16], at p. 147).

The absence of a real personal interest, even if this be true of the petitioners in the present case, does not, however, justify the immediate dismissal of the petition. This court has already held that it would take a liberal view on this aspect and grant access to petitioners where the question that arose was "of a constitutional character" ( Segal v. Minister of the Interior [17] pp. 429, 433), or "of public interest related directly to the advance of the rule of law" ( Shiran v. Broadcast Authority, [18] at 374; see also Dr. Zeev Segal's illuminating book, Standing Before The Supreme Court Sitting as the High Court of Justice, Papyrus Publishing, 1986). Needless to say, there is no general recognition here of the actio popularis, a "public petition" to the court, only a general guideline that enables the court to open its doors in suitable cases of a public-constitutional character.

Guided by the above rule I find the petitions now before us, which centre on the scope of the presidential pardoning power under the Basic Law: The President of the State, to disclose sufficient petitioner interest for recognition of their standing.

The Approach of Justice Barak

31. I have meanwhile had the opportunity of reading the interesting opinion of my learned colleague Barak J., and I am prompted to make several further observations in elucidation of our divergent approaches.

(a) I naturally take no issue with the fundamental doctrine that we must decide according to our best knowledge and understanding of the law, regardless of the surrounding influences of the time and the subject concerned. That standpoint has always been customary with this court, and nothing new has happened in this generation to change the court's perspective.

(b) A perusal of Justice Barak's opinion may lead one to think that our present subject has no acknowledged legal starting point founded in precedent, and that one is being referred (in Matana and in A. v. The Law Council) to nothing more, as it were, than some forgotten obiter dictum raised here from oblivion for the first time and elevated - without legal justification - to the standing of a recognized legal thesis. One might further gain the impression that even Justices Agranat and Berinson intended no differently in the above precedents. I must reject this approach because it does not accord, with all due respect, with the factual situation. The legal proposition that the President is endowed with the power of pardon before conviction, was clearly demonstrated first in the case of A. v. The Law Council and later, even more emphatically, in the Matana majority decision. Incidentally, even Landau J., at the end of his dissenting opinion in Matana. noted his complete agreement with the opinion of Berinson J. (at p. 461), whose remarks on the presidential power to pardon before conviction have already been quoted in full above.

In brief, the ruling in Matana has become known and accepted as faithfully reflecting, for some decades now, the prevailing law on the subject. Confirmation thereof is to be found in the written commentaries and in all academic discussion of the subject. This situation has been so clear to all as to have prompted the two distinguished jurists who advanced a different perspective on the subject (Professors Klinghoffer and Feller), to acknowledge that their view was not in accord with the approach of the Supreme Court - which they interpreted substantially as I have understood and set it out above. One of them, moreover, relied on the very existence of the pre-conviction pardoning power for a proposed solution to other legal problems discussed by him at the time (see Prof. Klinghoffer's abovementioned remarks in the Knesset - Minutes of the Knesset, 43, p. 2319). It will be recalled that one of these jurists (Prof. Klinghoffer) based his approach upon a construction of the language of the pardoning directive, while the other (Prof. Feller) argued on the basis of the working of a complex of new (overlapping) statutory enactments, but I gather from the remarks of Justice Barak that his own viewpoint is founded on neither of the above two perspectives.

There is no escaping the fact that Justices Agranat, Berinson and Cohn (to whose clear statements on the subject Justice Barak has not referred) all unequivocally expressed their opinion on the power of pardon before conviction within the general framework of pardon. That opinion has held sway until now. It was on the strength of an identical opinion that a past Minister of Justice, P. Rosen, acting upon the Attorney-General's advice, referred recommendations to the President for certain pre-conviction pardons which were subsequently granted. Our task here is not to search for the desirable constitutional framework, but rather to ascertain the existing legal situation concerning pardon in Israel, just as it was in fact enunciated by this court many years ago, without so far having undergone any change.

(c) The constitutional development towards the existing situation was clearly traced in the Matana decision, from which one can gather the court's reasons for construing as it did the scope of the pardoning power under sec. 6 of the Transition Law and sec. 11(b) of the Basic Law: The President of the State. It is not possible to ascertain the meaning of an expression in a Law by seeking to unravel the true wishes of Knesset committee members from the surviving summaries of their statements in minutes of proceedings never published. In my recognition, the answer lies in an understanding of the legislative purpose. This is to be derived from the "spacious" interpretation to be given to constitutional provisions; from the construction of expressions according to their manifest purpose; and from factors such as legal background and development, constitutional analogy, the characteristics of our legal system and our own constitutional notions as given expression, inter alia, in the very determination of the presidential office, its object and functions. All these were dealt with in the Matana case and I shall not cover the same ground again.

Justice Barak has sought to point out a divergence between the interpretative approach in Matana, and my own approach. Little substantiation of this has been provided, however. There is no substantial difference between the "historical-interpretative approach" said to have been adopted by me here, and the so-called legal-constitutional approach ascribed to Justice Agranat, and the difference in title is but a semantic one. Substantively speaking, the two approaches are alike: that followed on the one hand by Justices Agranat, Berinson and Cohn and - on the question of pardon before conviction - also adopted without reservation by Justices Silberg and Landau, and on the other hand, my own approach here. My learned colleague has commented thus:

Justice Agranat accordingly did not construe the Transition Law on the basis that its legislative purpose "was fashioned in the Anglo-American mould, which served as its prototype."

In support of this connection he quotes the following observation of Agranat J.:

The result is that the ground of the absence of any similarity or comparison between the status of the President of our country and that of the British thrown (or of the President of the United States) is erroneous.

This observation speaks for itself and, with all due respect, refutes my learned colleague's contention in indicating the opposite conclusion.

(d) The legal situation in France, Germany and Italy was not fully portrayed in the Matana case, and I should like to clarify some additional facets. As far as I am aware, pardon before conviction is known in Italy too, but the pardon only comes into operation if the suspect is later convicted. This arrangement does not preclude putting the suspect on trial, and allows for an acquittal on the merits without recourse to the pardon. Briefly, in Italy and in Germany there has evolved the duality of a judicial pardon side by side with an extra-judicial one justizgebundener Gnadenakt and justizfreier Gnadenakt, see Mario Duni, Il Perdono Giudiziale, Milan, 1957; Richard Drews, Das Deutsche Gnadenrecht, Cologne, 1971; Klaus Huser, Begnadigung und Amnestie als Kriminalpolitisches Instrument, Hamburg, 1973).

Judicial pardon or clemency, I believe, should be seen as a convincing reason for gradual curtailment of the Executive pardon. This process, which is also discussed by Prof. Feller within the wider framework of his proposed legislative program, has acted to shift the focal centre of the pardoning decision from the King, or President, to the judicial tribunal or special statutory bodies created to deal directly with the review of conviction and punishment (retrial, release and parole boards, and the like). The comparison of our system with those applied on the Continent is therefore questionable and premature in the existing state of affairs.

(e) As to the pre-conviction pardoning power in England, concerning which too Barak J. has expressed reservations, I need only reiterate that there is not a single English constitutional text that fails to mention the continued legal validity of this power, though it be reserved for use in exceptional cases. Even the post-conviction pardoning power would seem to be somewhat less frequently exercised in England nowadays.

I must also contest Justice Barak's endeavour to distinguish the American constitutional situation from our own on the basis of the President's status there as Head of the Executive. In fact, the power of pardon was originally conferred on the U.S.A. President as part of the legal continuity adopted there, with the concomitant imitation of the English model of the King's prerogative power (see the majority decision in Schick v. Reed [58], per Burger C.J.). The view that the U.S.A. President holds the pardoning power in his capacity as Executive Head, runs counter to authority:

Our government is established upon the principle that all governmental power is inherent in the people. Hence, crime is an offense against the people, prosecuted in the name of the people, and the people alone can bestow mercy by pardon. As subsequently is noted, the people may confer the pardoning power upon any officer or board that they see fit ( Am. Jur., at p. 10).

The import of the passage is that the U.S.A. President holds his power as representative of the people and it is not his executive capacity, designation or status that determine its scope.

In our own constitutional framework the President stands outside the political arena, and this neutrality should allay at least one of the apprehensions expressed by my learned colleague. Moreover, the conferment and exercise of all power can and should properly be subjected to supervision and review, as was indeed noted by Justice Agranat in Matana (at p. 461):

Nor have I overlooked the fact that to endow the power in question with its "full" content may lead to its excessive use, which in turn involves the danger that the authority of the law in the eyes of the public will be weakened. My reply to this point, however, is that every instrument of pardon by the President requires the countersignature of the Prime Minister or one other Minister (sec. 7 of the Transition Law, 1949). This means that even if the decision to pardon or to reduce a sentence must be the personal decision of the President, it is also conditional upon the recommendation of the Minister concerned. This Minister will ordinarily be the Minister of Justice who has the means of conducting a precise investigation into the circumstances of the case before submitting his recommendation to the President. It is clear that this recommendation, and therefore the decision to pardon as well, are subject to review by the Knesset and it is this possibility which must be regarded as the guarantee laid down by law against the danger referred to.

And Justice Cohn had this to say on that same point (at p. 465):

I have no fear whatsoever of any supposed impairment of the courts power to judge and to punish by the extent that the President of the State is empowered to change or set aside the results of their judicial acts. I could see some slight ground for fear and some small degree of impropriety if the power in question were possessed by the government or one of its organs, or even by the Knesset, for that would perhaps involve some confusion of the boundaries between the judicial on the one hand and the executive or legislative authorities on the other. The President of the State, however, stands above all these three authorities. He embodies in his person the State itself.

So far as I am concerned, the existing Israel form of the pardoning power is not a sine qua non for the maintenance of orderly constitutional government. The variety of arrangements made on this subject in different countries is indicative of more than one solution to a universal problem. Our own arrangement is hardly, therefore, to be seen as the sole possibility. The central feature of the pardoning power wielded is a personal, selective decision which is dependent, inter alia, on the recommendation and countersignature of an authority of a political character, i.e. the Minister. My own inclination is to prefer some new legislative arrangement that will introduce appropriate statutory mechanisms free to function, as regards judicially decided matters, without recourse to the decisions of political organs. At the same time, however, one has to reject the view that the full pardoning power presently prevailing is inconsistent with the rule of law. It should be remembered that we are dealing here with legally valid constitutional arrangements of the kind found today in countries of recognised democratic character, and to say that the existence of an effective rule of law is negated by reason of a pardoning power of full scope, where it exists, is an extreme proposition lacking any real foundation.

I must also refer to the contention that the very overlapping of the presidential power with like administrative powers is inconsistent with the maintenance of good government. I have already pointed out that there is no complete parallel between the two kinds of power. Pardon in all its existing forms represents an institution which by its very nature and working contradicts the rulings of other authorities, just as it does whether it is extended before or after conviction. Such overlapping is therefore an inherent feature of the entire pardoning process and in this respect its exercise before conviction is not exceptional.

It is only right that the abandonment of the existing arrangement in favor of newly devised systems should be preceded by a comprehensive study of the subject - of the kind undertaken by Prof. Feller - and be followed by orderly legislation embracing all aspects of pardon and clemency. But until the fundamental constitutional perspective underlying our recognition of the pardoning power be revised in the appointed way, there is no room for the abrogation - in a sporadic manner, by the method of interpretation - of one of the facets of that power which has been recognised for many years now, and is rooted in the fundamental judicial understanding of the pardoning institution in our legal system. The ad hoc erosion of an existing legal arrangement in answer to the needs of the hour, weakens rather than strengthens the rule of law. This was the kind of situation I had in mind when I remarked thus in Neiman v. Central Knesset Elections Committee [19] (at 260):

When constitutional matters are under review, their import and implications have to be considered in the long term, and proper weight has to be given to their influences on the political and social frameworks within which they operate. If these be subjugated to the needs of the hour and we adopt a casuistic approach in matters of constitutional content, we shall miss the mark and deal less than justly with the subject.

(f) It is, in sum, an inescapable conclusion that the Matana precedent adopts a wide and embracing interpretation of the presidential pardoning power. It was explicitly decided there by Justices Agranat, Berinson and Cohn that it also encompassed pardon before conviction. Though the product of autonomous Israeli legislation, the power cannot be divorced from its repeated comparison and equation, in the Matana case, with the parallel power held in the Anglo-American legal system by the King or President, as the case may be. This equation had a direct bearing on the reach of the constitutional power unfolded in the above precedent. Much as I try, I find no evidence in the Matana decision to support the suggestion of Barak J., that at that time the origin and substance of the power in England and in the U.S.A. had not been properly understood. I also find no evidence that this court had overlooked, as it were, differences of constitutional structure between those countries and Israel or, for that matter, the prosecution's own powers and independence in Israel, or the clash of the presidential power with other overlapping, frequently exercised powers - both before and after conviction. This suggestion is in entire disaccord with the long-accepted Matana ruling.

The constitutional situation is, therefore, that enunciated in Matana, by which precedent we have to be guided - as regards the scope of the pardoning power until the lawgiver sees fit to intervene. We have to contend with the legal and factual circumstances as we find them unfolded before us, rather than with hypothetical or desirable situations, and without circumventing or bypassing the decisions of this court and their consequences. It is our judicial task, in the present context, to give a principled, normative decision, structured upon existing legal foundations. In the pursuit of this objective we should do well to apply Chief Justice Marshall's well-known dictum in Osborn v. United States Bank [59] (at p. 866):

Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect .... to the will of the legislature.

The Investigation

32. We understand from the State's reply, as intimated by the Attorney-General, that the police will conduct an investigation into the events forming the subject of these petitions. This leaves no room, in my opinion, for intervention by this court in connection with the holding of an investigation.

Following the Attorney-General's intimation, the petitioners in file H.C. 431/86 gave notice of withdrawal of their petition, and the petitioner in file H. C. 428/86 advised that he was confining his petition to the sole issue of the legality of the pardons granted.

As to the petition in file M.A. 320/86, I see no reason to question the decision on the investigation as intimated by the Attorney-General, the nature of which I find acceptable in principle.

33. I would accordingly dismiss the petitions and discharge the order nisi.

MIRIAM BEN-PORAT D.P.

1. The divergence of opinion between my learned colleagues, President Shamgar and Barak J., persuaded me to await their written judgments before giving my own decision on the important question under consideration here, namely: is the President of Israel empowered to grant a pardon to a person before trial and conviction? I find my learned colleagues to have unfolded in their judgments a wide and colourful tableau of concepts, precedents and scholarly comment, which have aided me greatly in formulating my own opinion. Their painstaking and comprehensive analyses leave me free to concentrate mainly and briefly on my reasons for concurring in the judgment of the learned President - more particularly, my reasons for agreeing that the pardons granted by the President are legal and valid and, primarily, my reason for holding that the stated presidential power of pardon before conviction effectively exists.

2. In see. 11(b) of the Basic Law: The President of the State, it is provided that the President

shall have power to pardon offences (and to lighten penalties by the reduction or commutation thereof).

I have put the latter part of the directive in parentheses since the first part is the focus of our deliberation here, although I shall of course deal with the whole in substantiation of my viewpoint. As already clarified by my learned colleagues, the power "to pardon offenders" was previously vested in the President under sec. 6 of the Transition Law of 1949, and remained so vested until the repeal of this provision by sec. 26(a) of the above Basic Law. A comparison of the language of the two sections shows only a slight difference in wording, of no material significance. We may accordingly treat anything stated or decided on the basis of sec. 6 of the Transition Law as equally applicable to sec. 11(b) of the Basic Law, with which we are now concerned. For the better understanding of my exposition below, it should be recalled that until the enactment of the Transition Law, the President's power was anchored (pursuant to sec. 14 of the Law and Administration Ordinance of 1948), in Article 16 of the Palestine Order in Council, 1922, which provided as follows:

When any crime or offence has been committed within Palestine, or for which the offender may be tried therein, the High Commissioner may, as he shall see occasion, grant a pardon to any accomplice in such crime or offence who shall give such information and evidence as shall lead to the conviction of the principal offender or of any such offenders if more than one; and further may grant to any offender convicted of any crime or offence in any court.... a pardon either free or subject to lawful conditions, or any remission of the sentence.

I have stressed, in the above passage, the word "offender" and the phrase "a pardon.... subject to lawful conditions," for purposes which I shall presently elucidate. At this stage, however, I merely wish to summarize the President's power at that time (from the transfer to him of the High Commissioner's powers under the above Ordinance) as embracing a pre-conviction pardon granted an accomplice who was willing to give information leading to the conviction of the principal offender or any such offenders, as well as a pardon granted any convicted offender. The pardoning power, as already indicated, was formulated differently in the Transition Law, and this version was later repeated without material change in the Basic Law.

3. Our search for the proper interpretation of the statutory provision in issue here, hardly breaks new ground. Justice Barak is aware of this fact, but attaches little weight to the precedents cited, for two reasons. In the first place, he holds the statements made in these precedents to have been obiter, and secondly, he considers certain passages therein actually to support his own view. Thus he mentions, for instance, that Justice Agranat saw the power conferred under sec. 6 of the Transition Law as an "original" one, and therefore offering no basis for analogy with the corresponding power in English law. Justice Barak also attaches no significance to the practice that has evolved out of those precedents.

I accept Justice Agranat's determination, in the Matana case [3] (at p. 443), that the language of sec. 6 of the Transition Law- and likewise of sec. 11(b) of the Basic Law - was not comparable with that of Art.16 of the Order in Council, since the Transition Law provision represented an "original" Israel power of constitutional content, in contrast to the class of powers delegated by the English King to colonial Governors. The latter were much narrower than the King's own powers, and required a restrictive interpretation.

However, I disagree with Barak J., that in the Matana case Agranat D.P. (as he then was) did not view the presidential power of individual pardon under the Transition Law (as opposed to a general amnesty), as being basically the same as that of the English King or the American President. In other words, Justice Agranat's remarks on the original nature of the power set forth in sec. 6 of the Transition Law, and on the universality of the pardoning concept, were only intended, I believe, to explain why the non-repetition in sec. 6 of the Transition Law of certain parts of Art.16 of the Order in Council, could properly be ignored in construing that section. For the purposes of the issue in Matana, Agranat D. P. was not prepared to regard the non-repetition in sec. 6 of the Transition Law, of the words "pardon.... subject to lawful conditions" (appearing in Art.16 of the Order in Council and stressed by me in the above citation), as being in derogation or restriction of the presidential power. On the contrary, his opinion was that the general language used in sec. 6 was characteristic of a constitutional directive and called for a wide interpretation, and he saw the Anglo-American legal sources as prompting the proper interpretation of our own statutory provisions (see the Matana case [3], at pp. 453, 454). It was his opinion (which became the majority opinion of the court) that notwithstanding the absence of an express empowerment of the President to grant a pardon subject to conditions, the general wording ("the power to pardon offenders") sufficed, by virtue of the wide interpretation, to invest the President with this power as well (i.e. to pardon conditionally).

Any remaining doubt as to Justice Agranat's recognition (in Matana) of the link between Israel and England as regards the power of individual pardon, is surely dispelled upon reading his judgment in the earlier case of A. v. The Law Council [2]. While the learned Justice erred there with regard to the power of colonial Governors (i.e. the High Commissioner of Palestine), an error he subsequently corrected, his basic standpoint has nevertheless prevailed. This standpoint he expressed in the following terms, and in other statements to the same effect in his judgment:

I am of the opinion that the power of pardon of the President of Israel is the same, generally speaking, as the power of pardon of the King in England, in its nature and in respect of the consequences which flow from its exercise" (ibid., p. 750).

Agranat J. (as he then was) was indeed alone in considering the full arguments of counsel as to why the name of A., the petitioner, was to be restored to the Roll of Advocates following upon the full pardon granted him (after he had served his full sentence). Yet the related comments of Agranat J. were not mere obiter dicta - and as is known, these too can carry considerable weight - but were made in the deliberation, on its merits, of what he considered to be the real question underlying the dispute in that case:

The real dispute being waged today between the petitioner and the community, has its origin in the former's argument that the pardon gave him an absolute right to the restoration of his name to the Roll of Advocates.... It is clear that this court alone is competent to adjudicate upon this dispute between the petitioner and the public.... The fact that the petitioner, for the reason of having misconceived the powers of the Law Council, turned to that body for the enforcement of his right, does not negate the possibility that the petitioner's abovementioned argument may be finally disposed of in the present proceedings.... If we find the petitioner's argument to be well founded, and declare him entitled to renew practice as an Advocate, such a declaration will bind everyone, and the petitioner should experience no difficulty in having his name restored to the Roll. If, on the other hand, we decide that the pardon does not bring about the desired result, that ruling will equally resolve this dispute between the citizen and the public. One way or the other, I believe it is required of us to decide this whole question.... which is what I now proceed to do (my italics-M.B.P.).

It seems to me that Justice Agranat's attitude reflected his clear perception that the power of pardon in Israel required to be widely interpreted, as in England and America, as embracing also the pardon of an offender before his conviction. This attitude is to be gathered from his judgments, in A. v. The Law Council and in Matana. It so transpires from his citation and adoption of a statement in Halsbury's Laws of England that "pardon may, in general, be granted either before or after conviction," and especially from his own conclusion (in A. v. the Law Council [2], at p. 751):

from which I learn that the President has the power to pardon offenders both before and after conviction, either unconditionally, or with qualifications.

Justice Agranat gave practical implementation to his above perception by interpreting the consequences of the pardon in issue there in accordance with the customary approach in England and in the U.S.A. (ibid., p. 751).

A perusal of the two precedents reveals that none of the other Justices dissented from the interpretation according to which the President of Israel was competent to pardon offenders also before conviction; indeed, most of the Justices explicitly took the same view. Thus the difference of opinion between Berinson J. and Agranat J. in Matana, as to the comparison of sec. 6 of the Transition Law with Art.16 of the Order in Council (with Berinson J. refusing to recognize a presidential power to grant a pardon subject to conditions, owing to the absence in sec. 6 of such express provision), did not prevent Berinson J. from holding (perhaps on account of the first part of Art. 16) that the presidential power of pardon was exercisable also before conviction ( ibid., at p. 469):

the President's power of pardon is in a certain sense wider than that possessed by the High Commissioner. Whereas the High Commissioner was unable to pardon a crime before the offender was tried and convicted unless he turned King's evidence and led to the conviction of his accomplice (the first part of Article 16 of the Order in Council), the President is not bound by this condition and, so it seems to me, may pardon any offender even before he is brought to trial.

Landau J., at the end of his opinion in Matana, expressed his "complete agreement" with the judgment of Berinson J., from which it follows that he agreed also with the content of the above passage, or at least had no reservations about it.

Justice Cohn fully supported Justice Agranat's interpretative approach, and emphasized his view that the Presidential power was to be widely construed.

The general opinion, therefore, was that there was in Israel an existing, valid presidential power of pre-conviction pardoning. There was, however, a divergence of opinion in Matana on the question of equating the power of the President of Israel with that of the British Monarch.

It may be noted that Justice Agranat's approach has been followed in practice ever since the decision in A. v. The Law Council. This fact is confirmed in the judgment of Cohn J. in Matana (at p. 461):

Under sec: 6 of the Transition Law, 1949, the President of the State is empowered to pardon offenders and to reduce punishments. The Presidents of the State have exercised this power from 1949 until the day on which judgment was delivered in Matana v. Attorney-General (June 23, 1960, in the manner laid down for them in the judgment of this court (per Agranat J) in A. v. The Law Council, at 745 et seq.). That is to say, both the President of the State and the Minister of Justice, whose countersignature of the President's decision is required by the Law, and also the wide body of citizens who have had need of the President's grace, have always regarded this power of the President as equal and parallel in nature and scope to the power of pardon and reduction of punishments possessed by the Queen of England.

This practice (with which few were as familiar as Justice Cohn, who had held office as Attorney-General for a lengthy period) had been followed for some ten years when the decision was given in Matana, and in this context the learned Justice went on to comment as follows (at p. 462):

It has already been said more than once by this court (both during the Mandate and after the establishment of the State) that the court will hesitate very much to reverse a particular practice which has taken root during the years, and if this was said in respect of matters of practice which did not rest upon the authority of judicial precedent, how much more is it applicable to a matter of practice which rests upon a specific decision of the Supreme Court. As for myself, even if I were inclined to agree with the opinion held by my colleagues Berinson J. and Landau J. that the practice followed by the President of the State year after year is based upon too wide an interpretation of sec. 6 of the Transition Law, 1949 [and it will be recalled that the opinions differed there on the question of a pardon subject to conditions, and not as regards a pardon before conviction - M.B.P.], even then I would no venture today to change this practice which has received the seal of the Knesset at least by its silence (my italics - M.B.P.).

We are, therefore, talking about a practice that has now been followed for some decades. Initially the practice was founded on the single opinion of Agranat J, that is, on the ratio of his decision in A. v. The Law Council, and later also on the Matana decision.

That even distinguished jurists treated the decision in A. v. The Law Council as laying down a rule to be accepted, may be gathered from the following extract from a statement made by Prof. Y. H. Klinghoffer in a Knesset debate on 29 June 1965 ( Minutes of the Knesset, 43, p. 2319):

Another unconvincing argument sometimes advanced is that if a suspect be very ill, it would be an act of cruelty to put him on trial. Unconvincing, because in rare cases of this kind the President of the State would be able to grant a pardon before the trial commenced. The President is empowered to pardon offenders either before or after conviction. That was laid down by Justice Agranat in the case of A. v. The Law Council (my italics-M.B.P.).

The above remarks were made with reference to the question whether it were better to render it obligatory for the prosecution to charge a suspect and put him on trial when the evidence so warranted, or to leave the decision to the discretion of the prosecution. Prof. Klinghoffer clearly favoured the former option, reasoning thus:

In expressing my reservations I would recommend we abandon this method in favour of one that obliges the prosecution to put a person on trial when it is in a position to substantiate the charge upon sufficient evidence. When a particular act or omission is defined by statute as a criminal offence, the matter should properly be submitted for judicial determination, and it is not the concern of the prosecution, which is a part of the Executive authority, to relieve the suspect of responsibility for his act or omission by not putting him on trial, and precluding the competent court from judging him according to law. To entrust the prosecution with the option to decide on its own whether or not there be any public interest in holding a particular trial, and accordingly whether or not to institute criminal proceedings against the suspect, is to invite dangers of a political nature. This arrangement would amount to a conferment of power to pardon someone in advance, and convert the prosecution into a kind of pardoning institution, something that is not in keeping with its essential function (my italics - M.B.P.).

We accordingly see that Prof. Klinghoffer drew a clear distinction between an unqualified discretion given the prosecution whether or not to charge a suspect - according to its perception of the public interest in the matter - and the exercise of the pardoning power. The distinguished jurist saw such an option as holding out certain dangers, and undesirably conferring a power of advance pardon, whereas he accepted as a matter of fact the presidential power to grant a pardon, in rare cases, even "before the trial commenced."

In the end the Knesset took the middle path, but I shall come back to this aspect later.

4. Two conclusions may be drawn from what I have said so far:

(a) As regards the scope of the presidential power to pardon offenders before conviction, we are not without guidance, for the existing judicial pronouncements on the subject to the effect that the President does possess such power, cannot be said to be purely obiter;

(b) We are confronted with a practice that has taken root in Israel ever since the decision in A. v. the Law Council, that is to say, for some decades now.

There can be no doubt as to the importance of these two considerations in the determination of our attitude.

(c) Also carrying weight, purely as an interpretative indicator for me (and not as a source of legislation), is the fact of the lawgiver's silence on the instant point when the content of sec. 6 of the Transition Law was reenacted in sec. 11(b) of the Basic Law. This silence was maintained despite the clear trend of the precedents and the practice evolved and based thereon, and it stands out against the express addition in the Basic Law of a presidential power to "commute" sentences, the lack of which had been established in the precedent cited, together with the court's unanimous opinion that the President was empowered to pardon also before conviction. This silence and its implications are fully elucidated in the judgment of Shamgar P.

5. It is true, however, that a later legislative development sometimes does dictate a change in interpretative approach. Attitudes also change with the passage of time, and these changes come to be reflected in the decisions of the courts - in the manner of new wine poured into an old flask - if weighty reasons be found for departing from an existing rule, deeply rooted though it may be. If, for instance, the customary interpretation be found necessarily to misconceive the purpose of the provision concerned, or that it has not even the slightest foundation in the language of the provision, or that its implementation in the exigencies of new reality poses a real threat to the maintenance of good government, then I should be inclined to construe the pardoning power restrictively as being confined to the post-conviction stage alone.

I have come to the conclusion, however, that there are no weighty reasons for disturbing the existing precedents and practice. My reasons for so concluding are the following:

(a) The wide interpretation given the term "offender" finds ample justification in the language of the statutory provision in question. My colleague, Barak J., acknowledges that, linguistically speaking, the term "offender" could embrace also a suspect who has yet to be tried and convicted; hence, in his opinion, the wording of the provision alone does not advance our inquiry one way or the other. Yet the learned Justice suggests at the same time that only someone who has already been convicted is an offender, as appears, for instance, from the following passage in his judgment (par. 25):

Even an admission by the applicant for a pardon that he committed an offence, is of no consequence, for he is presumed innocent until convicted by the court.

I must confess that I find the emphasis given to circumscription of the term "offender" in the context of our instant inquiry, somewhat perplexing. It is common cause that the main (some hold, the only) purpose of a full pardon, is to make amends for a serious miscarriage of justice which has resulted in the conviction of an innocent person. If that be the main (or sole) purpose, then the recipient of the pardon is no "offender" at all, but the victim of an error. If we adopt the arguments of the petitioners, and of certain jurists, that only the court is competent to stamp a person as an "offender" for the purposes of pardon, we shall find that it is precisely that kind of error which the President is unable to repair - a situation that is contrary to all logic. Of what avail is it for the court to find, upon hearing evidence and argument, that the accused indeed committed the crime - and thus branding him an "offender" - if the essence, and main purpose, of a pardon be to proclaim that he is not such? This reasoning alone would warrant the conclusion that an "offender" includes someone to whom the commission of an offence is attributed.

It is pertinent, moreover, to recall that Art. 16 of the Order in Council empowered the High Commissioner to pardon an offender (an accomplice) before conviction, if he was prepared to give information and evidence concerning the principal offender or any such offender. We must bear in mind the proximity in time between the repeal of the said Article 16 and the enactment of sec. 6 of the Transition Law, a proximity which provides further indication that the term "offender," as already pointed out in the judgment of Shamgar P., was intended to refer to someone to whom the commission of an offence "is attributed." The learned President cited many convincing examples of the lawgiver's use of the term "offender," in a variety of contexts, from which too one may learn that this term does not necessarily mean someone who has already been convicted. In other Laws the term may indeed import otherwise, depending upon the legislative context and intent, but the abovementioned examples all relate to the same or closely the same kind of material as our present matter (for instance, general amnesty), and convincingly show that the term "offender" should not be understood only as someone who has been tried and convicted. In addition to the above illustrations, among many other possible ones, I might also mention sec. 6 of the Secret Monitoring Law of 1979, which provides a framework for secret monitoring, inter alia, if necessary "to prevent offences or detect offenders." It is clear from the context that the Law envisages the monitoring and exposure of the conversations of a person involved in a criminal act (whether not yet committed, in the process of commission or after its commission) and all, of course, in the stage preliminary to the trial and, certainly, before conviction of the suspect.

In essence, my learned colleagues and I all agree that linguistically speaking sec. 11(b) of the Basic Law suffices, as it stands, to encompass also the power of pardon before conviction. The requisite interpretative nexus for this purpose is there, and the statutory provision cannot be said to lack a linguistic foundation for such a construction.

(b) We must now, after disposal of the linguistic aspect, deal with the main criterion, namely, the legislative purpose of the pardoning directive.

Justice Barak holds in his judgment that a construction according to which the President of the State may pardon someone before his trial and conviction, is inconsistent with the purpose of the pardoning directive. He states that in order to choose between the possible linguistic options we must turn to the legislative purpose, and he holds the true objects of the pertinent statutory provision to be those enunciated by Justice Agranat in A. v. The Law Council and in Matana, and none other, namely:

The primary purpose... is to redress the wrong done to a person who was convicted while innocent, and the second purpose - the value of which should also not be underestimated - is to reduce the sentence of the offender in circumstances which justify this. It is clear that the exercise of such a power by one of the highest State authorities is essential for the effectiveness of any governmental regime, since in no country whatever has there yet been created a system of justice capable of perfect and unerring operation, and of dispensing justice in every case without fail ( A. v. The Law Council, at p.751).

Justice Barak then goes on to make this comment:

This reasoning naturally only holds true in relation to a convicted offender. It is not at all applicable to someone who has yet to be convicted. How, then, is this reasoning of Justice Agranat to be reconciled with his view that the President has power to pardon before conviction? Such power would necessitate a different rationalisation, of the kind that is not to be found either in A. v. The Law Council or in Matana (my italics - M.B.P.).

This seems a cogent argument in support of the conclusion that, measured by the test of legislative purpose, the presidential power is restricted in its exercise to a pardon after conviction only. It is not so, however. Thus, for instance, in A. v. the Law Council Justice Agranat mentioned additional objects of a pardon, remarking inter alia as follows (at p. 755):

Third, I have not overlooked the possibility that a pardon may also be granted for reasons which do not stem, necessarily, from the innocence of the convicted person.

These remarks link up with what Justice Agranat said later in the Matana decision (at p. 451):

It is quite easy to think of a case in which the need to use this system would arise when the public interest alone, and not that of the prisoner, requires his release from custody. It may, for example, be proper to liberate a prisoner who is a national of an enemy state on condition that he leave Israel territory immediately and permanently, in order to facilitate an international arrangement which will ensure, in return for such a pardon, the immediate release of a "Zionist prisoner" in custody in that state.

The above example happens to relate to a convicted prisoner, yet this underlying purpose is not to reverse an injustice but to prefer the public interest, to which the rule of equality before the law must bow. That is to say, we have here a conflict between two very important interests: one - equality before the law, which requires that every offender against the law should answer for his conduct; the other - the safeguarding of a vital public interest. The proper balance between the two is the determining factor. The President of the State was in the same predicament in relation to the matters raised in the petitions before us. Thus he declared his conclusion that despite finding merit in the opposing viewpoint, he was satisfied at the time that vital security interests of the State were at stake and also that it was necessary to put an end to the "devils' dance," as he described it, and therefore he decided to accede to the requests for a pardon.

The primary purpose of a pardon, at least until the retrial procedure was instituted, has indeed been to correct an injustice resulting from an error in judicial proceedings. But that has not been the only purpose of a full pardon. Thus, as already mentioned, it was possible under Article 16 of the Order in Council to pardon an accomplice (before trial) in order to induce him to give information and evidence against the principal offender or any such offenders. The purpose of such a pardon was not to reward its recipient, but to achieve an object considered by the pardoning authority more important than trying the person pardoned. (A similar approach is also to be discerned in civil law - see Mistry Amar Singh v. Kulubya [47], where the plaintiffs claim, though tainted with illegality, was sustained in order that the purpose of the law should not be defeated.) For the attainment of the same purpose a pardon or clemency may conceivably also be granted to a convicted offender, by way of a reduction of sentence, if the latter, only at that late stage, is prepared to disclose important information against other offenders who committed serious crimes.

Furthermore, such rationalisation - that the public interest sometimes prevails over the interest of bringing the offender to trial or of having the trial run its full course - is to the best of my understanding, contrary to the opinion of Barak J., also to be found in the cases of A. v. The Law Council, and Matana. I base this conclusion in the first instance on the abovementioned remark of Agranat J. in A. v. The Law Council (at p. 755), that a pardon may also be granted for reasons "which do not stem, necessarily, from the innocence of the convicted person," and also on his following statement in the same case (at p. 747) :

lts main purpose - and I do not overlook its other purposes - was and remains to declare before all that the person tried and convicted, and now receiving a pardon, is free of guilt and that his offence has been wiped out (my italics-M.B.P.).

Thus, we seem to find in the two abovementioned precedents precisely such "different rationalisation," according to which a full pardon may also be granted to someone other than a wrongly convicted person who is serving his sentence. This pardoning consideration, provided it is applied correctly and carefully in the proper cases, operates with the same validity and force both before and after the conviction of the offender. In fact, even Justice Barak countenances the possibility that it may be better, in rare cases, to pardon a person before conviction rather than to stay the proceedings against him - for instance when the person is suffering from a malignant disease - save that my learned colleague does not consider such exceptional cases to warrant a wide interpretation of the statutory directive. By the same token I would hold it desirable, in a rare case, for a person to be pardoned before trial and conviction for the sake of protecting a vital public interest. The Attorney-General is indeed the competent party to decide whether a person shall stand trial or not, to which end he may, even must, weigh considerations of a social or security nature. Like Justice Barak, I too find support for my view in the report of the Agranat Commission on the Powers of the Attorney-General (1962), where it was stated, inter alia, that

In certain circumstances a matter of security, political or public interest may dictate that no criminal charge be preferred (p. 6).

The Commission dealt also with the Attorney-General's need to consult with the political authorities when making his decision, reporting thus (p. 13):

The stated duty to consult arises particularly when criminal proceedings are being instituted in relation to a matter of security, political or public interest. In such event it is always incumbent on the Attorney-General to consider whether the act of instituting criminal proceedings (or halting the same) is not more likely to prejudice the interests of the State than refraining from taking such action. This the Attorney-General will only be able to do after having sought information and guidance from those who carry the primary responsibility for safeguarding the State from the security, political and public aspects - that is to say, from those who, so we must presume, are more experienced and knowledgeable in those fields than we are. As already indicated, he will generally need to refer to the Minister of Justice for the required direction and advice; but sometimes, that is in cases which give rise to questions of "high policy," there will be no alternative but to obtain guidance from the Government as a body (my italics - M.B.P.).

I shall come back to these statements later. First, however, I wish to consider the situation that arises when pursuant to sec. 59 of the Criminal Procedure Law (Consolidated Version) of 1982, a police investigation has to be opened upon a complaint of the commission of a felony, and it transpires that the very conduct of the investigation (including the taking of statements from witnesses) may seriously impair the security of the State. Who will then be empowered to decide whether the investigation shall be completed or discontinued?

Mr. Harish, the Attorney-General, has submitted that he lacks the authority to order that a police investigation be discontinued (or not opened after the police learn of the commission of a felony). It is arguable, perhaps, that the police, being an arm of the Attorney-General for criminal investigation purposes ( Reiner v. Prime Minister of Israel [20], pp. 485, 486), is obliged to act as directed by him, thus rendering the Attorney-General competent to order discontinuance of the investigation. The matter, however, is far from clear. For instance, there is the express directive in sec. 60 of the above Law, that upon completion of the investigation of a felony, the police shall transmit the material to the District Attorney; the police, however, may refrain from investigating lesser offences, though only for the reasons set forth in sec. 59 of that Law. A measure of support for this separation of powers is even to be found in the following passage from the judgment of Justice Barak (in paragraph 25, though his remarks were intended for a different purpose):

This conclusion as to a "separation of powers", between the presidential pardon and the powers of other State authorities, is reinforced when regard is had to Israel's general constitutional framework. The other State authorities (the police, the prosecution and the courts) have the means to establish the facts. The police has its investigating facilities and seeks to reach an assessment of the factual situation. The prosecution, to whom the police must transmit the material, will handle and process the same until delivery of the judgment. The courts possess the institutional and normative facilities for elucidating the question of innocence or guilt.

That is to say, each authority has its own field of responsibility. The police, upon receiving a complaint or otherwise learning of the commission of a felony, is obliged to conduct an investigation, and upon its completion to transmit the evidence to the appointed authority, the prosecution, which only then comes into the picture. It is even doubtful whether the police may halt its investigation in cases of felony, even where the police considers the Attorney-General to have good reasons for wishing to do so. On a plain reading of the conclusion to sec. 59 of above Law, the police has such a discretion (on the grounds of there being no public interest involved) only in relation to misdemeanours, and not felonies. And most important, even the Attorney-General's power to intervene in the investigation by directing that it be discontinued is, as already mentioned, a matter of doubt. Thus, there is the express provision (sec. 61 of the Law) that the Attorney-General may direct the police to continue investigating if, after receiving the material, he "considers it necessary for a decision as to prosecution or for the efficient conduct of the trial." This provision would seem to be superfluous if the Attorney-General is indeed competent to decree at will the completion or halting of police investigations.

On the assumption that the police is legally obliged to complete its investigation of a felony, and then to refer the material to the District Attorney, the grant of a pardon would indeed be the only way of halting an investigation if it endangered a vital public interest such as the security of the State. The abovementioned view of the Agranat Commission that the security, political or public interests of the State may in certain circumstances require that no criminal charge be preferred, holds good also as regards the halting of an investigation for similar reasons. It is quite likely that in this situation (in contrast with the stage when the police refer the material of the investigation to the District Attorney) a presidential pardon will be the only way of halting the process.

Again, even assuming the Attorney-General to have power to halt a police investigation, a difference of opinion may yet arise, in a particular case, between the Attorney-General and the State authorities with whom, as the Agranat Commission required, he must consult. While it has to be presumed, according to the Commission, that the security authorities are more experienced and better informed than the Attorney-General, and though they bear primary responsibility for safeguarding the security and other vital interests of the State, the latter nevertheless has to make his own decision on matters within his sphere of responsibility. In this situation, with each party insisting upon its own viewpoint, how will the conflict be resolved? It seems to me that the situation bears comparison with the conflict that arises between the need to withhold privileged evidence and the right of the accused to defend himself against a criminal charge. It is a hallowed principle of penal law, embedded in the structure of a democratic regime, that the accused shall be given every opportunity to avail himself of any evidence in the hands of the prosecution. Yet this right has been qualified in the Evidence Ordinance (New Version) of 1971, sec. 44(a) whereof provides:

A person is not bound to give, and the court shall not admit, evidence regarding which the Prime Minister or the Minister of Defence --- has expressed the opinion that its giving is likely to impair the security of the State --- unless a Judge of the Supreme Court on the petition of a party who desires the disclosure of the evidence finds that the necessity to disclose it for the purpose of doing justice outweighs the interest in its non-disclosure.

If a Supreme Court Justice (not involved in a particular criminal case) should come to the conclusion that the need to disclose certain evidence, in the interests of justice, has to defer to the State interest in keeping such evidence privileged, he will uphold the latter even if the accused's ability to defend himself is affected thereby. If, on the other hand, it is decided that the evidence should be disclosed in the interests of justice, there would still be the possibility that the security authorities, taking a different view as to the measure of harm that may result, would prefer not to disclose the evidence, even if this should lead to the accused's acquittal. The acquittal may represent a more valuable prize to the accused than even a pardon, since he may be guilty and undeserving thereof; yet, in the view of the authorities concerned, the one interest (equality before the law) will have to yield to the other (safeguarding the security or existence of the State).

The above situation was deliberated in the case of Livni v. State of Israel [21], where Justice Barak commented as follows (at p. 736):

Once the court has decided that the evidence should be disclosed, the prosecution is faced with the dilemma of deciding whether or not to continue with the criminal proceedings. If the trial continues, the prosecution will have to disclose the evidence; if the prosecution believes that disclosure of the evidence will endanger the security of the State, it may have to stay the proceedings and sometimes even cause the accused to be acquitted. Thus, whereas initially the conflict was between the need to disclose the evidence in the interest of doing justice, and the need to keep it privileged in the interest of State security, we now find - upon the decision of the court - that the conflict is between the need to proceed with the trial by way of disclosure of the evidence, and the need to keep the evidence privileged by way of the discontinuance of the trial. The former conflict is resolved by the Judge in adoption of the procedure prescribed in sec. 44(a) of the Evidence Ordinance; the latter conflict is resolved by the prosecution within the framework of its general discretion in the conduct and stay of criminal prosecutions.

Equally in point are these remarks of Barak J. in continuation (at p. 735):

On the other hand, there is the consideration that it is sometimes in the public interest to keep the material of the investigation privileged, if its disclosure may prejudice the security of the State. It is an important public interest to protect the security of the State against all harmful subversive acts, which are mostly the product of underground planning and organisation. The struggle against such harm calls for the gathering of intelligence information without its sources becoming known.... This war is being waged by the security services, whose struggle would be gravely prejudiced by the uncovering or identification and public exposure of these sources (Miscellaneous Applications 52/82)............................................ This consideration asserts itself in every country, but does so with particular sharpness in the State of Israel, whose security has been threatened ever since its establishment. We are a "democracy on the defensive"... which has to fight for its survival, not only in large-scale wars but also in the day-to-day campaigns thrust upon it by its enemies. We must not close our eyes to this bitter reality.

It cannot be overlooked that those who discharge a clear security function find it especially difficult to act always within the law. The measure of departure may vary from country to country, but it exists as a fact, also in democratic regimes whose fidelity to civil rights is beyond question. In this regard Prof. B. Akzin has commented as follows ( Elements of International Politics, Akademon, 1984, in Hebrew, p. 332):

It should be added that while the police strives (or, at least, should strive) to act within the frame of the existing law, the intelligence and espionage services, including counter-espionage, are less punctilious about observing the law, and it sometimes happens that they knowingly and seriously violate it. Even in times of peace, let alone in times of war, they engage in acts of violence and sabotage, both in foreign countries and in their own. This reality leads to situations of embarrassment for countries which adhere to the rule of law, and places them in the dilemma of the comparative priority between the principle of legality and intelligence interests. That is no easy dilemma. If we compare the practice of some established democracies in this regard, we shall find that in the United States, for instance, the scope of intelligence operations is often (though not invariably) curtailed by the need to keep within the law, whereas in Britain and France the principle of legality does not restrict intelligence operations to the same extent (my italics - M. B. P.).

Naturally, the smaller the deviation from the legal norm, the easier it would be to reach the optimal degree of harmony between the law and the protection of the State's security. But we, as judges who "dwell among our people," should not harbour any illusions, as the events of the instant case well illustrate. There simply are cases in which those who are at the helm of the State, and bear responsibility for its survival and security, regard certain deviations from the law for the sake of protecting the security of the State, as an unavoidable necessity.

Barak J. has correctly pointed out in the Livni case [21] that when the two interests of a fair trial and the security of the State are competing for primacy, the conflict must be resolved. Both interests are of concern to the public, and the resolution of the conflict takes different forms in different countries, the form sometimes changing within the same country. He added that

this struggle between the conflicting interests is particularly sharp in Israel, since on the one hand we are insistent upon fairness in criminal proceedings and maintaining public confidence in them.... while on the other hand we are subject to considerable security risks, which have beset us for a long period (ibid., p. 735).

It is true that when the issue of privileged information arises in the course of a trial, the conflict between the two interests is resolved by a Supreme Court Justice (who is not hearing that particular case). But even when he rules that the evidence must be disclosed, that is not the end of the matter, for such disclosure may be avoided by a discontinuance of the trial, leading even to the acquittal of the accused.

By analogy it seems to me that a decision by the Attorney-General to refer a complaint to the police - despite the objections of the Executive authorities (in our present context, the inner Cabinet) that so to do would harm security interests - is also not necessarily final. There would be nothing improper in the Attorney-General's attitude that an investigation should be conducted notwithstanding the advice given him to the contrary, but equally there is no ground for questioning a resolution of the dilemma by way of its referral to the President as the Head of State - the symbol of the people whom he represents. I do not hold that the only course open to the Executive in the above circumstances, is for the Government to dismiss the Attorney-General, for his attitude is a legitimate one, and he may properly adhere thereto. Nor, by the same token, is any injury done to the standing of a Supreme Court Judge who has ruled that the evidence in question should be disclosed. The same may also be said of the authorities entrusted with the security and survival of the State, and who bear primary responsibility for this onerous task. In the present case it may be presumed of the President that he properly considered all aspects of the dilemma, and so it indeed appears from his public statement quoted in the judgment of Shamgar P. He mentioned his understanding of the opposing viewpoint, but was convinced that the interests of security should prevail. My respected colleagues and I all agree that if a presidential power to pardon before conviction exists, the considerations weighed by the President at the time of granting the pardons are valid.

At the same time, however, it is necessary to stress the gravity of the offences disclosed before us, the nature and quality of which should alert us to the need for a thorough review of the security establishment, with a view to the determination of just norms and directives as far as this is possible.

Justice Barak concedes the possibility of a valid presidential power of pardon before conviction, for exercise on rare occasions alone, but holds this to be undesirable as likely to increase in frequency and become the norm. He is accordingly deterred from building constitutional norms on what he regards as hope alone. With all due respect, I find no adequate basis for this apprehension. On the contrary, it was shown to us that the pre-conviction power of pardon has been exercised most rarely during the past thirty-five years, since the decision in A. v. the Law Council. That is no small guarantee that this will continue in the future as well, as indeed it should. Moreover, already in the Matana case, the fear of an excessive exercise of this power was allayed by Agranat D. P., in these terms (at p. 454):

Nor have I overlooked the fact that to endow the power in question with its "full" content may lead to its excessive use, which in turn involves the danger that the authority of the law in the eyes of the public will be weakened. My reply to this point, however, is that every instrument of pardon by the President requires the countersignature of the Prime Minister or one other Minister (sec. 7 of the Transition Law, 1949) [now sec. 12 of the Basic Law: The President of the State - M.B.P.]. This means that even if the decision to pardon or to reduce a sentence must be the personal decision of the President, it is also conditional upon the recommendation of the Minister concerned. This Minister will ordinarily be the Minister of Justice who has the means of conducting a precise investigation into the circumstances of the case before submitting his recommendation to the President. It is clear that this recommendation, and therefore the decision to pardon as well, are subject to review by the Knesset and it is this possibility which must be regarded as the guarantee laid down by law against the danger referred to.

There is therefore someone who is answerable to the Knesset (the Prime Minister or some other Minister) and this safeguard is now fortified by the possibility of challenging the pardoning decision indirectly. Another important factor is the special status of the President as representing the people and standing above political or public controversy. The State President presumably weighs all necessary considerations before deciding to exercise his power to grant a full pardon, whether before or after conviction. This is a power which has to be most rarely exercised. The pre-conviction pardon was not designed for the purpose of redressing an injustice done to the person pardoned, for the fact of his guilt is taken for granted and he is assumed to have committed the offence attributed to him (by the police or the prosecution). What has to be weighed, therefore, is the seriousness of the offence against some other interest - humanitarian, security, and the like. In other words, the pre-conviction pardon always entails a conflict between the interest of equality before the law and some other, vital, extraneous interest. This fact acts greatly to restrict the range of cases in which the exercise of this power will be justified.

A constitutional directive gives expression to the will of the people, to its "credo." If under a directive of this kind the power to pardon offenders has been conferred on the President, the latter must be seen as the proper authority for the discharge of this difficult task (with the countersignature of the Minister concerned, who is also answerable to the Knesset, and subject further to indirect judicial review of the President's decision). In those cases where the offender benefits from a pardon, though not for the reason of his innocence of the charge but for the protection of a higher interest - whether before or after conviction - the principle of equality before the law will well be breached, but this will happen also when, for example, an acquittal results from the ruling of a Supreme Court Judge that privileged information be disclosed, in the circumstances outlined above.

My abovementioned remarks as to the President being the ideal authority to grant a pardon, find support in the following statement of an American authority quoted in the judgment of Shamgar P.:

...Crime is an offense against the people, prosecuted in the name of the people, and the people alone can bestow mercy by pardon... the people may confer the pardoning power upon any officer or board that they see fit ( Am. Jur., at p. 10).

Like Justice Shamgar, I believe that the decisive factor is not the rank of the State President within the Executive hierarchy, but the fact that he symbolises the State and represents the people in holding and exercising the power of pardon .

An undesirable exercise of the pardoning power must be avoided at all times, whether it takes the form of an uncontrolled or unjustifiable remission of sentence, or the grant of a full pardon after conviction. A reduction of punishment granted one offender but not another in comparable circumstances (so we assume), amounts naturally to a discrimination between equals. An ill-timed pardon, or one granted on grounds already deliberated by a judicial tribunal, is tantamount to an intervention in the domain of the judicial authority. It has to be borne in mind that the facilities available to the court - rules of procedure and evidence for the greater part determined by legislative means and partly by judicial means - offer the most effective may of establishing the truth and ensuring a fair trial. The reversal by non-judicial means of a judicial decision, particularly in an age when a retrial is possible, is a process the retention of which may well be questioned. But that is a matter for the lawgiver. What concerns us here is that the grant of a pardon for reasons other than the correction of an injustice, and involving a conflict between the principle of equality before the law and some other vital interest, invokes a power which should rarely be exercised, and only after much careful consideration.

(c) From the aspect of the separation of powers, the President must be seen as holding a power termed "residuary" (by Justice Barak) or "reserve" (by Justice Agranat in the cases of A. v. the Law Council and Matana ). It is right that the power remain of such a nature, and that the President refrain from exercising it as long as some other authority is still competent to act in the desired direction. In his judgment (par. 25), Justice Barak cites the example of a pardon granted after conviction but before sentence is passed. I hold, unlike my learned colleague, that in this case the power itself is there, but its exercise (the grant of a full pardon alone is possible at this stage) would entail a gross interference with the judicial function and a possible lowering of its prestige. The same applies when a pardon is granted where the possibility of a retrial exists. Like the President, Justice Shamgar, I would not discount the need for a change in the existing constitutional arrangement on the subject, perhaps along the lines proposed by legal scholars such as Professor Feller.

(d) Justice Barak states that a pardon is given without publicity, whereas a stay of criminal proceedings is manifest and publicly known. I believe this picture should be put into its proper perspective.

(1) The Attorney-General's decision to stay proceedings must be reasoned, and conveyed to the complainant (pursuant to sec. 63 of the Criminal Procedure Law, Consolidated Version). Information concerning the decision must not, however, be disseminated among the general public, but may only be furnished to certain specified authorities consistently with the provisions of the Crime Register and Rehabilitation of Offenders Law, 1981 (see sec. 11(a) thereof). It may be noted that these authorities are mostly public organs (the Attorney-General, the police, the General Security Service, and others).

(2) As regards a pardon, the initiative is usually taken by the Ministry of Justice and the warrant requires to be countersigned by the Prime Minister or another Minister, normally the Minister of Justice. In case of complaint originally lodged with the police, it is clear that the fact of the pardon will also be brought to its notice, if it has to discontinue the investigation. Such discontinuance would also obligate the police to notify the complainant accordingly (sec. 63 of the Criminal Procedure Ordinance, Consolidated Version). There may be some difference in the measure of disclosure occasioned in each of the two cases, but the gap should not be exaggerated.

6. With reference to the petitioners' prayer concerning investigation of the complaint lodged with the police, I concur in the opinion of my learned colleagues that at this stage the court should rest content with the Attorney-General's intimation that the whole incident will be fully investigated. The petition, therefore, should be dismissed in this regard.

It has occurred to me that this result - dismissal of the prayer regarding the investigation - might have the effect of converting an indirect challenge of the pardons into a direct one, which would not be permissible under the existing law. I have not, however, delved too deeply into the question and, having regard to the attitude of my colleagues, have likewise preferred to deal with the question of the inherent validity of the pardons.

7. Having affirmatively answered the question as to the President's power to grant the pardons here deliberated, I must now deal with the second question confronting us, namely: were the requirements for the grant of such pardons satisfied?

I should state that I have found the Warrants of Pardon to provide only a general description and not to be sufficiently particularised, though less so in relation to the Head of the General Security Service. In the latter case it is recorded that the pardon was to extend to all the offences "connected with the incident called 'bus no. 300' and occurring on the night between 12 April and 13 April 1984, whether committed on the day of the incident or subsequently in connection therewith until the date of this Warrant." In the remaining Warrants it was stated that the pardon extended to all the offences "connected with the so called 'bus no. 300 incident,' and committed from the time of the incident on the night between 12 April and 13 April until the date of this Warrant." On its own this would be an inadequate particularisation, but with the declarations we have of the pardoned persons, together with the contents of the pardon applications as well as the subsequent Warrants, we now have sufficient particulars to identify the offences concerned. I need hardly add that the pardon extends solely to those offences and none other.

As to the State President's grounds for granting the pardons, we ruled earlier (on 1 July 1986) that there was no need for any declaration to be lodged concerning his reasons for deciding as he did.

From the material before us it may be learned that the negotiations with the President were commenced some considerable time before the pardons were granted, and only the final, formal stage was completed in haste, on account of the pressure arising from the surrounding circumstances. It has been declared that all the particulars relating to the incident were explained to the President, and I have no reason to doubt the truth thereof.

8. In conclusion, I must emphasise that I, like my respected colleagues, have endeavoured to deal with the central issue - the President's power of pardon before conviction - in isolation from the stormy public controversy aroused by this unfortunate incident. Such detachment is enjoined by our judicial task, which we must fulfil to the best of our understanding. We are obliged to adopt an attitude, even with regard to matters of public controversy and even though part of the public may not approve of that attitude. What is conclusive is the court's decision, as distinct from its views (by way of analogy, see Shalit v. Minister of the Interior [22], at p. 520, per Witkon J.).

9. For the reasons given above I concur in the judgment of the respected President, Justice Shamgar, and in his conclusion.

BARAK J .

I am of the opinion that the pardon granted by the State President to the Head of the General Security Service and three of his assistants is null and void, for lack of a presidential power so to act. It would follow that, as intimated by the Attorney-General, the investigation is to continue.

A. Our Judicial Function

1. After carefully perusing the judgment of my respected colleague, President Shamgar, I find myself agreeing with some of his opinions and not with others. The whole issue is important, lying as it does at the heart of our constitutional life. Interwoven with the immediate problem of the presidential power of pardon and the manner of its exercise, are questions of the rule of law and its supremacy. All these we shall examine from the legal standpoint. The issue has provoked a stormy public reaction, but we have not allowed that to influence our decision. We function in accordance with constitutional criteria and fundamental legal principles which reflect the "credo" of our national life. It is not passing moods that guide our approach, but fundamental national perceptions as to our existence in a democratic state. This guideline was succinctly stated by Shamgar P. , in Neiman v. Chairman of 1lth Knesset Elections Central Committee [19], in these terms (at p. 259):

Judicial decisions in constitutional matters, even in difficult cases, should properly be founded and shaped according to principles rather than considerations of policy structured according to what is viewed as desirable and responsive to the need of the hour or the feeling of the majority.

We are aware of the public controversy that is raging around this matter, and in the dynamics of political life our judgment here may well come to be used as a lever in the struggle between the opposing political forces. That we regret, but we have to fulfil "our function and our duty as Judges," as was pointed out by Landau D.P. in Duikat v. Government of Israel [23], at p.4:

It is still much to be feared that the court may come to be seen as having abandoned its proper place and descended into the arena of public discussion, and that its decision will be enthusiastically welcomed by a section of the public while another section loudly and utterly rejects it. In this sense I see myself - as one whose duty it is to decide in accordance with law any matter brought before the court according to law - constrained to proceed undeterred in the discharge of my task. Even so, I know full well that the wider public will look not to the legal reasoning but to the final conclusion alone, with the attendant risk of damage to the rightful standing of the court as an institution beyond the divisions of public controversy. But what shall we do, if that be our function and our duty as Judges.

We are an arm of government, whose task it is to review the functioning of the other authorities, so as to ensure the government's adherence to the rule of law. These arms of government are of high status, but the law stands above them all. We should be failing in our judicial duty, were we not to pass under review, within the framework of petitions properly lodged, the activities of other State authorities in the circumstances disclosed in the petitions before us. I propose first to examine some of the questions on which I share the opinion of Shamgar P., and then to deal with the State President's power to grant a pardon before conviction. Following that, I shall endeavour to clarify my reasons for dissenting from the judgment of my learned colleague, Shamgar P., and shall conclude with some general remarks pertaining to the functioning of the State authorities in the present case. I regret the length of this judgment, but I did not have enough time to write a shorter one.

B. Locus Standi

2. Like Shamgar P., I hold the petitioners to have due standing to approach the court in the present matter. I do so for various reasons. In the first place, a number of persons lodged complaints with the police relating to offences committed in the "bus no. 300 incident." Under sec. 58 of the Criminal Procedure Ordinance (Consolidated Version), it is open to "any person" to lodge a complaint with the police, and the complainant must be informed of a decision not to investigate the same (sec. 63). He may then lodge an objection with the Attorney-General, whose decision is subject to judicial review and the complainant certainly would have standing in such a petition (Ashkenazy v. Minister of Defence [24], at 371). It is true that not all of the petitioners lodged complaints, but their standing before the court may be recognized on a second ground, which I shall now state.

When there arises before the Supreme Court a legal problem of constitutional import, the court will take a liberal view in matters of legal standing:

in such cases it is desirable to grant access to the court, without examining too carefully the interest at stake, provided this is in furtherance of the rule of law ( Segal v. Minister of the Interior [17], at p. 443).

The rule of law would be so served in the present case, having regard to the allegation that the Head of the General Security Service, and a number of his assistants, committed very serious offences involving loss of life and interference with the processes of investigation and the administration of justice. According to the material before us, these allegations - raised by the Attorney-General, Prof. Zamir - were not being investigated, though such investigation was said to be called for. The petitions accordingly involve basic questions of the rule of law, of equality before the law and of the susbservience of the principal centres of power in the State to the law as it stands. In these circumstances it is fitting that the petitioners be recognized as having sufficient standing to approach the court as they have done.

C. The Petition Concerning the Investigation

3. Some of the petitioners have concerned themselves with instigating a police investigation into the "incident." In a written communication received by us from the Attorney-General (on 15 July 1986), it was intimated as follows:

The attitude of the Attorney-General, communicated here with the confirmation of the Inspector General of Police (the remaining respondents have no standing whatever as regards the investigation), is that the police will investigate the said complaints pursuant to its duty under sec. 59 of the Criminal Procedure Law (Consolidated Version) 1982.

In his oral argument before us, the Attorney-General repeated his above intimation in these terms:

There will be a police investigation. The investigation will be conducted without qualification or reservation, until its conclusion, and will encompass all levels from top to bottom, including the political hierarchy. It is not intended to leave any matter uninvestigated, nor to exclude any person from the investigation.

The Attorney-General further emphasized that the investigation had already commenced, and in that situation, he argued, there was no room for confirmation of the order nisi - as prayed for by some of the petitioners - but the petitions, so far as they related to the investigation, should be dismissed. I agree with Shamgar P. that the Attorney-General's view should be sustained.

D. The State President as a Respondent

4. A number of petitioners joined the State President as a respondent. We ordered that his name as a respondent be deleted. As was pointed out by Shamgar P., this ruling was dictated by sec. 13(a) of the Basic Law: The President of the State, under which "the President of the State shall not be amenable to any court or tribunal... in respect of anything connected with his functions or powers." The President's act of pardon although, in my opinion, ultra vires, was nevertheless "connected with" his functions or powers, so that this court has no jurisdiction to entertain any direct challenge against his conduct. In the criminal appeal in Matana v. Attorney-General [25], Berinson J. noted (at p. 979) that when the President purported to act within the scope of his functions and powers, he would, if he exceeded these, be subject, like everyone else, to the laws of the State, and "amenable to the jurisdiction and authority of the courts." It seems to me, however, that even when the President exceeds his powers, but does so in a matter connected with his functions and powers, in good faith and in furtherance of what he considers to be the discharge of his duties - this court will have no jurisdiction over him. This limitation falls away where it is not sought to render the President answerable directly, but only to challenge indirectly the legal competence of a presidential act. The question arose in Bar Yosef v. Minister of Police [12], where the Supreme Court held as follows:

We accept that the State President has a discretion in the exercise of his power under sec. 11(b) of the Basic Law: The President of the State, and that this discretion - as distinct from the President himself - is, in proper circumstances, subject to indirect judicial review.

This perspective emerged from the approach of the Supreme Court in the abovementioned criminal appeal in Matana v. Attorney-General [25], where Berinson J. commented thus (at p. 786):

If indeed the President lacked authority to act as he did, there would be no need in the present case to disqualify the act itself. It would suffice for us to refrain from granting it validity and from aiding in its implementation, so far as this depends on us.

Elsewhere in the judgment, he added:

this does not mean that the legality of his official conduct and acts which may be prejudicial to the individual, cannot be indirectly reviewed without the President himself appearing as a party.

In the Attorney-General's original reply to the petitions (dated 30 June 1986), he noted that "once a pardon has been granted to all the members of the General Security Service who are mentioned as suspected of having committed the offences attributed to them, there is no longer any ground for investigating this complaint." This approach is challenged by the petitioners, and incidental to this main line of attack (against the Attorney-General), they are also challenging the President's pardoning decision. That they are entitled to do.

Such indirect judicial review is essential, for in its absence the power becomes unlimited in practice. Unlimited powers wielded by government authorities are alien to a democratic regime. Absolute powers, as Justice Douglas has rightly pointed out, are "the beginning of the end of liberty" (see New York v. United States [60], at p. 884, which statement was cited by this court in Kahana v. Speaker of the Knesset [26], at p. 92). The same is true of the pardoning power, which is not publicly exercised, the exercise of which need not be reasoned and which is little known to the public (see M. Gottesman, "Arbitrariness & Sympathy: The Criteria for Granting a Pardon," Mishpatim 1 [1968], 211; R. Gabison, "Arbitrariness & Sympathy: A Further Note," ibid., p. 218; D. Friedman, "Amnesty: Disclosure of Reasons," Hapraklit 25/1 [1969], 118; M. Ben-Ze'ev, "Matters of Amnesty," Hapraklit 25/2 [1970], 368). Such a power, if not subject to judicial review - even if only indirect - poses, upon its improper exercise, danger of the kind most destructive to all orderly government. Bentham has clearly outlined this danger:

From pardon-power unrestricted, comes impunity to delinquency in all shapes; from inpunity to delinquency in all shapes, impunity to maleficence in all shapes; from impunity to. maleficence in all shapes, dissolution of Government; from dissolution of Government, dissolution of political society ( The Works of Jeremy Bentham, ed. Bowring, New York, 1962, vol. 1, p. 530).

These are strong words, perhaps too strong, but they speak eloquently of the need for judicial review. Since the lawgiver left no opening for challenging directly the President's exercise of this power, it is well that we do what is next best, and exercise indirect judicial review.

E. The Pardoning Power

(1) The Matter in Issue

5. I now come to the central issue in the petitions before us. This issue has a twofold aspect: first, does the State President have the power to pardon someone before he has been convicted? second, assuming this power to exist, were the conditions for the grant of a pardon to an unconvicted suspect satisfied in the instant case? I am of the opinion that the State President lacks the power to pardon before conviction, and it is therefore unnecessary for me to deal with the latter question concerning the propriety of the President's exercise of his pardoning power.

As regards the first aspect, i.e. the existence of a presidential power of pre-conviction pardoning, the question is by no means an easy one, and has been the subject of keen controversy. In the circumstances, the proper path to have followed seems to be that appointed by the lawgiver, in see. 32(a) of the Consolidated Version of the Courts Law of 1984, namely:

Where a petition for a pardon or for the reduction of a penalty has been submitted to the President of the State, and a question arises which in the opinion of the Minister of Justice deserves to be dealt with by the Supreme Court, but which cannot provide a ground for a retrial under section 9, the Minister of Justice may refer such question to the Supreme Court.

The circumstances were pressing, however, and the opportunity was missed. We have no option, therefore, but to examine the validity of the power within the framework of a petition to the High Court of Justice.

(2) "To Pardon Offenders"

6. In principle, the starting point for our inquiry is sec. 11(b) of the Basic Law: The President of the State (the "Basic Law"), which reads:

The President shall have power to pardon offenders and to lighten penalties by the reduction or commutation thereof.

To ascertain the meaning of the expression "to pardon offenders," we must, as with any other act of interpretation, start with a linguistic inquiry. I believe the question whether the terms "to pardon" and "offenders" in themselves provide an answer to our inquiry, must be answered in the negative. In Israel legislation the term for pardon* does not have one single meaning only. Thus besides its use in sec. 11(b) of the Basic Law, it is also used in Knesset enactments to designate amnesty (thus the General Amnesty Ordinance of 1949, the Amnesty Law of 1967). There is no disputing that the two kinds of pardon differ from each other. The presidential pardon is an individual act, whereas the Knesset amnesty is a general, all-embracing act. The two pardons differ also in their consequences. Despite these differences between the two forms of pardon, the lawgiver has used the same term to describe both. In fact, the term haninah has not acquired any scientific precision or conceptual clarity in Israel, and the term on its own does not enable us to define its meaning. The reasons for this uncertainty - which is not unique to Israel - are hinted at by Dr. Sebba, in these terms (On Pardon and Amnesty, at p. 140):

The lack of clarity on this matter stems from a number of factors, but mainly from a confusion in the choice of terminology, historical changes in the development of these institutions, and a lack of definition of the functions of pardon in its different forms - both as regards their objectives and their legal consequences.

It is quite clear that the term "to pardon" in the Basic Law, relates only to individual pardon. On the other hand, the "pardon" mentioned in sec. 149(9) of the Consolidated Version of the Criminal Procedure Law of 1982, would seem to embrace both individual pardon and general amnesty, but apparently refers mainly to the latter since diffferent situations of individual pardon (in the context of preliminary pleas in a criminal trial) are already covered in sec. 149(5) of the Law, which mentions "a former acquittal or former conviction."

The term "pardon" (haninah) seems, therefore, to have no uniform meaning in Israel law. We have not yet evolved for ourselves an operative jurisprudence the reflective processes of which would generate "jurisprudential" expressions such as "pardon," having a recognized meaning for the entire legal community. Other countries - among them France, Italy and Germany - are more fortunate in this respect, since their own terms for the concept of a pardon granted by the authority at the head of and symbolizing the State (grace, grazia, Begnadigungsrecht), are all self-understood as relating to (individual) pardon after conviction. We have yet to reach such unanimity in Israel, and here, as already indicated, the term haninah encompasses both pardon and amnesty. As regards the question whether an individual pardon - with which alone sec. 11(b) of the Basic Law deals - has any reference to an unconvicted suspect, our own operative jurisprudence offers no answers. That leaves us no alternative but recourse to judicial interpretation, from which there shall evolve, in the course of time, the kind of operative jurisprudence that is responsive to the existing conceptual need.

(3) "Offenders"

7. We have next to examine whether the term "offender" throws any light on our inquiry. Can an unconvicted suspect be deemed an "offender"? This question was discussed by Prof. Klinghoffer, who wrote as follows" ("Lectures on Amnesty," at p. 5):

The Law mentions the power to "pardon offenders." Now it is a cardinal rule in the constitutional law of Israel that a person suspected or accused of a criminal offence is presumed innocent until duly and finally convicted. That means no person is an "offender" until a final convicting judgment has been given against him.

The same approach was adopted by the then Attorney-General, M. Ben Ze'ev, when the Constitution, Law and Justice Committee of the Knesset was considering the proposed Basic Law: The President of the State. He said:

The designated meaning of the word [offender], in my opinion, is someone who has been convicted in a court of law. For if not so, we shall come into conflict with the cardinal rule in our system that a person is presumed innnocent until duly convicted according to law, and anyone might come to the President and say: "I am under suspicion, grant me a pardon" (quoted in the opinion of the Attorney-General, Prof. Zamir, dated 15 June 1985 and appearing in directive no. 21.333 of the Attorney-General's Directives).

I naturally accept that every convicted person is an offender, but it does not follow that someone who has not yet been convicted cannot for the purpose of some particular enactment likewise be deemed an offender (cf. Gold v. Minister of the Interior [27]). Thus, for example, when sec. 3 of the Police Ordinance (New Version) speaks of the employment of the police in "the apprehension and prosecution of offenders...," it is clear from the context that the term "offenders" specifically excludes convicted persons; someone who has already been convicted of a particular offence may not be "apprehended" by the police or "prosecuted" for that same offence. Yet a convicted person is certainly an "offender" for purposes of the Basic Law. In fact, the lawgiver has made a far from precise use of the term, and has not always distinguished clearly between persons suspected, accused, or convicted of a criminal offence - having sometimes included all three possibilities within the purview of this term.

8. The term "offenders" raises further questions about its meaning. It will be found amenable to more than one meaning in the context of sec. 11(b) of the Basic Law. Besides certainly embracing someone who has been duly tried and convicted, in a final judgment (as distinct from the meaning of the same term in the new version of the Police Ordinance), does it also include someone who has been convicted in a judgment that is not yet final? And what is the situation of a person who has not been convicted but in respect of whom the court has held "the charge proved" and issued a probation order under sec. 1 of the Probation Ordinance (New Version) 1969? And in particular, what is the situation of someone who has not yet been charged at all, or who has been charged but whose trial has not yet reached completion? "Offender" is therefore a vague term, ambiguous and open to different interpretations in different contexts.

(4) The Legislative Purpose

9. It is now clear that a linguistic examination of the term "offender" does not suffice to dispose of our interpretative problem - as indeed it rarely should be expected to do (Kibbutz Hatzor v. Rehovot Assessment Officer [28], at p. 74). Among the different possible meanings we should select that which ensures attainment of the legislative purpose - "the Law is an instrument for the achievement of a legislative purpose, and therefore needs to be construed according to its inherent purpose" (per. Sussman J. in Estate Late E. Bergman v. Stossel [29], at p. 516). This purpose can be ascertained, first and foremost, from the intention of the lawgiver. The legislative history of an enactment is a source from which one may ascertain the legislative purpose.

(5) The Intention o1the Legislature

10. In order to ascertain the intention of the Legislature when investing the State President with the power "to pardon offenders," we must return to the Transition Law. It represented the first Israel Law to deal with the presidential powers. In sec. 6 of the Transition Law the Presidential office had been established, inter alia, with the "power to pardon offenders." The objects of this directive were elucidated by Agranat D.P. (as he then was) in the rehearing in Attorney-General v. Matana [3] (at p. 441). He pointed out that as the basis for its debates at the time, the Constitution Committee of the Provisional Council of State relied on the draft constitution of Dr. L. Kohn and a memorandum submitted by E. Vitta. I have carefully considered all this material, from which it clearly transpires that it was not the pardoning powers of the English Monarch, nor those of the American President, the High Commissioner for Palestine, or the Head of any other State, that were envisioned by the draftsmen of the Transition Law as the model for the powers of our own President. Dr. Kohn did not elaborate on the presidential pardoning power, beyond a bold statement (in sec. 59 of his proposal) that the President be reserved the right to grant a pardon. Vitta changed the wording slightly, proposing that the presidential functions include the grant of pardon and the reduction of punishments. Commenting upon Dr. Kohn's proposal, Vitta opined that the presidential power be restricted to individual cases, with a power of general or even partial amnesty entrusted to the Legislature alone, for implementation by way of a formal statute. In a comprehensive debate on the President's proposed status conducted by the abovementioned Constitution Committee, the presidential powers in France, Czechoslovakia and Switzerland were mentioned, slight reference was made to the King of England, while the American President was only hinted at. With regard to the power of pardon, there is recorded only Z. Warhaftig's opinion that the directive be phrased to empower the President "to pardon and reduce punishments" (Proceedings of the Constitution Committee of the Provisional Council of State, Debate on the Executive Authority). The proposal was adopted. In introducing the Bill for the Transition Law, 1949, before the Knesset, Y. Idelson made only a brief statement, and the subsequent debate on the presidential powers was also short. Neither the English King nor the High Commissioner was mentioned in the context of pardon, while the office of the American President was mentioned only as differing from our own form of presidential office. Our survey accordingly leads to a twofold conclusion: first, we lack full information concerning the extent of the pardoning power which the Knesset sought to confer on the President at that time; second, it is clear that the Knesset did not consider imitating any particular model of the power, and certainly not the power of the English King, the High Commissioner or the American President.

11. The provisions of sec. 6 of the Transition Law were repealed with the enactment of the Basic Law. We have no access to the debates of the Knesset Constitution, Law and Justice Committee, which are closed, but I am prepared to accept the following account thereof given by the Attorney-General, Prof. Zamir, who apparently had the opportunity to peruse the minutes of the relevant proceedings (see his abovementioned opinion):

The Legislature's intention may also be gathered from the preparatory stages of the Law. The question before us was not discussed when the Knesset plenum debated the Bill for the Basic Law: The President of the State, but it did arise in a discussion of the Bill at a meeting of the Constitution, Law and Justice Committee (on 5 February, 1964). It appears from the discussion that all the speakers considered the President empowered to grant a pardon to convicted offenders only. The then Attorney-General, Mr. M. Ben Ze'ev, said at that meeting: "The designated meaning of the word [offender], in my opinion, is someone who has been convicted in a court of law. For if not so, we shall come into conflict with the cardinal rule in our system that a person is presumed innocent until duly convicted according to law, and anyone might come to the President and say: 'I am under suspicion, grant me a pardon.' " And Knesset Member, H. Zadok, remarked at the end of the discussion on this point: "It seems to me we have no difference of opinion on the substance of the matter. We intend to empower the President to pardon persons who have been criminally tried and convicted."

This is further evidence that it was not the pardoning powers of the English Monarch, the High Commissioner, or the American President that served as a basis for the above Committee's discussions. On the contrary, the subjective thought of those who dealt with the question was -"We intend to empower the President to pardon persons who have been criminally tried and convicted".

12. Speaking for myself, I would not attribute too much weight to the factor of the legislator's intention in the instant case. The legislative history of the Transition Law offers us scant details and hardly advances our inquiry. As for the Basic Law, we know the opinions of members of the Knesset Committee who dealt with the Bill, but not what the Knesset itself thought. Actually, as faithful interpreters of the law, it is our task to act by way of "analysis of the law and not psychoanalysis of the lawgiver" (Agudat Derekh Eretz v. Broadcast Authority [30], at p. 17). We must not seek to establish a Knesset Member's attitude towards a particular problem confronting us from the legislative history of an enactment. The solution of such problems is our responsibility, and ours alone (FIatto Sharon v. Knesset Committee [31], at p. 41;"Kach"Faction v. Chairman of the Knesset [1], at p. 141). Elsewhere, I have had occasion to comment thus:

The Judge does not seek a concrete answer to the practical problem he has to decide in the history of a legislative enactment. The court is not interested in the specific pictures and concrete likenesses contemplated by the Legislature. In the legislative history of an enactment we seek its purpose; we seek the interests and objectives from which, after compromise and balance between them, there was distilled the policy underlying the norm which is being construed. What we seek is the fundamental perception rather than the individual application - the abstraction, the principle, the policy and purpose. We are interested in the Legislature's concept as to the purpose of the Law, and not in its conception as to the resolution of the specific dispute before the court ("Of Ha-Emek"v. Ramat Yishai Local Council [32], at pp. 143-144) .

We must accordingly continue our search for the legislative purpose behind the statutory provision concerned.

(6) The Legislative Purpose: a "Spacious View"

13. The proper path to follow was indicated by Agranat D.P. (as he then was) in the Matana rehearing [3]. Referring to the Transition Law, which was then in force, Justice Agranat observed (at p. 444):

The "omission" in which my learned colleague found the expression of the desire of the Israel Legislature to cut down the provisions of Art. 16 of the Order in Council and therefore to restrict the President's power of pardon, is in no sense proof of any such intention. It is more correct to say, as was said by Smoira P. in another context... that the Israel Legislature "neither copied nor omitted, but built its law as an independent structure."

The Transition Law was indeed an independent Israel Law, as is the Basic Law which followed it, and the presidential powers conferred thereunder are autonomous and original. The Israel legislator, far from "copying or omitting" anything, fashioned by its own means the constitutional framework for our national life, producing an "independent structure" which must also, therefore, be construed in the same way.

14. We are in fact dealing with an independent Israel Law of constitutional content. This element is of basic importance in the construction of the Law, as was pointed out by Agranat D.P. ([3], p. 442) with reference to the statement of Justice Frankfurter (in Youngstown Sheet and Tube Co. v. Sawyer [51]), that when a matter touched a document which laid down the framework of the government of the State, the court was to take a "spacious view of the powers herein prescribed." I myself followed this approach in the Neiman case [19], where I made these observations (at p. 306):

Basic provisions must be construed according to a "spacious view"- to use an expression of Justice Frankfurter in Youngstown Sheet and Tube Co. v. Sawyer, quoted by Agranat D.P. in the Matana case - and upon the understanding that we are dealing with a directive which determines the national pattern of life. A basic constitutional directive is not to be construed in the same way as an ordinary legislative provision. It was Chief Justice Marshall of America who, in the early stages of the shaping of the American constitutional perspective, stated that in interpreting the Constitution it had to be remembered that it was no ordinary document -"it is a constitution we are expounding" (M'Culloch v. Maryland). We are concerned here with a human endeavour which has to adapt itself to the changing realities of life. If we have said of an ordinary Law that it is not a fortress to be conquered with the aid of a dictionary, but a frame for a living legislative idea (Cr. A. 881, 787/79, at p. 427), how much more should we be so guided when engaging in the interpretation of directives of a constitutional nature.

Constitutional enactments must indeed be interpreted with the structure of the whole system in mind. A Law is "a creature living within its environment" (per Sussman J. in Shalit v. Minister of the Interior [22], at p. 513), and the "environment" of a constitutional Law is, inter alia, the other constitutional enactments which determine the essential character of the regime. Every constitutional enactment is but a building block in the overall structure, which is erected upon given foundations of government and law. Hence, when construing a constitutional enactment, it is the judge-interpreter's function to bring the same "into harmony with the foundations of the existing constitutional regime in the State" (Justice M. Landau, "Rule and Discretion in the Administration of Justice," Mishpatim 1 (1969), 292). That expresses the real importance of Justice Agranat's perception that a "spacious view" must be taken of a constitutional enactment.

15. To take such a "spacious view" when construing the presidential power "to pardon offenders," means to view the presidential powers as part of the general distribution of powers among the State authorities. The presidential power of pardon must be seen as a component in the complex of governmental powers comprising the "constitutional scheme," as was stated by Justice Holmes in Biddle v. Perovich E56] (at p. 486):

A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme.

The pardoning power forms part of the fabric of our democratic life: it flows from the regime's republican system of power allocation. This aspect was elucidated in the American case of Schick v. Reed [58], where it was held per Marshall J., at p. 276):

The references to English statutes and cases are no more than dictum: as the Court itself admonishes, "the power [of pardon] flows from the Constitution alone"... .Accordingly, the primary resource for analyzing the scope of Art. II is our own republic system of government.

16. What conclusions are to be derived from the above mode of interpretation, according to which the presidential pardoning power must be "spaciously" viewed against the background of our own constitutional structure? Two main conclusions seem to be warranted. First, for the purpose of construing the President's pardoning power, we cannot be guided by the powers of pardon conferred on officeholders in other countries whose status, in the devolution of powers in their respective countries, differs materially from that of our own President. We may, however, by the same token, learn about his pardoning power by comparing it with such powers conferred on like officeholders in other countries of similar constitutional structure. The second conclusion is that whatever the scope of similar powers in other countries, we must in the final analysis construe the State President's own power against the domestic constitutional background, and in the end we can gain but limited interpretative guidance from the situation in other countries.

(7) The Legislative Purpose: Guidance from England?

17. Let us examine the power of pardon of the English Monarch. This power had its origin in the seventh century during the reign of the Anglo-Saxon kings (see L. Radzinowicz, A History of English Criminal Law, London, 1948, vol. 1, pp. 107-137). These kings had the power of life and death:

the power to take life included the power to save it... and the pardon power was identical in scope with the power to punish (Boudin, "The Presidential Pardons", at p. 9).

This basic standpoint prevailed for a long period of time. Thus in 1686, an English court held that the Kings of England were absolute sovereigns, that the laws were the Kings' laws and that the King had the power "to dispense with any of laws of the Government as he saw necessity for it" (Godden v. Hales [48], at p. 1051). A number of attempts to curtail the royal power of pardon were made over the years, but in essence it remained as wide as before. Its ideological foundation was the notion that the King was the "fountain of justice." He was the defender of the public and dispenser of justice; he established courts and executed the law, he prosecuted offenders and granted pardons. As Blackstone has commented (Book 1, at pp. 268-269):

As the public, which is the invisible body, has delegated all its power and rights, with regard to the execution of the laws, to one visible magistrate, all affronts to that power, and breaches of those rights, are immediately offences against him, to whom they are so delegated by the public. He is therefore the proper person to prosecute for all public offences and breaches of the peace, being the person injured in the eye of the law... and hence also arises another branch of the prerogative, that of pardoning offences; for it is reasonable that he only who is injured should have the power of forgiving... of prosecutions and pardons.

With the conversion of the English Crown to a constitutional monarchy, the power of pardon itself underwent no real change, although a change did assert itself as regards the exercise of the power. Thus the royal power of general pardon was recognized, but never came to be exercised in practice. The royal power to pardon before conviction has likewise remained recognized, but has not been exercised since the middle of the nineteenth century. At that time this possibility was limited to an immunity from prosecution given to someone who turned "King's evidence."

Nowadays, however, with the development of police powers as well as the Attorney-General's power to stay criminal proceedings, and with the establishment of the office of the Director of Public Prosecutions, the power of pardon is no longer exercised even in the above exceptional circumstances. An English authority has described the situation thus (see J.L. Edwards, The Attorney-General, Politics and the Public Interest, London, 1984, at p. 414):

During the nineteenth century it was common practice to grant a pardon to an accomplice who was to turn Queen's evidence, but this resort to the machinery of pardons, prior to the registering of a conviction, has long since become obsolete. Where the reluctance of a witness to testify on behalf of the Crown did not stem from his being an accomplice but arose on the ground that he would incriminate himself, it was also known for the Crown to prepare a free pardon in advance, ready to be produced by prosecuting counsel. The last occasion when a free pardon was granted to a witness in these circumstances was in 1891. There is now a general understanding among British constitutional law authorities that the practice of conferring a pardon upon a principal offender before conviction has fallen into disuse.

The English King's historical power of pardon is rooted in the royal prerogative, with the King perceived as the source of justice. That perception provides no guidance so far as concerns the President of Israel, as was pointed out by Berinson J. in Matana v. Attorney-General [25] (at pp. 976-977):

I cannot say that the Israel Legislature in conferring the power of pardon upon the President of the State in the Hebrew language, intended to include therein the full content which the concept of pardon has acquired over the ages in English law, pardon which is wholly in the hands of the Crown without reserve or limit by virtue of the ancient royal prerogative. There is no point of comparison between the status of the President in our country and that of the Crown in England. The President is a creature of statute and his powers are defined by law. Like everyone else in this country, he enjoys no rights or privileges which are not accorded to him by the laws of the State and every official act of his which exceeds the limits of the law is null and void.

Unlike the English Monarch, the President of Israel is not "the fountain of justice," he does not execute the law or prosecute public offences. Accordingly, as regards the presidential power "to pardon offenders," no interpretative guidance is to be derived from the pardoning power enjoyed in principle by the English Monarch. But we could certainly be guided as to the scope of the presidential pardoning power by the practice followed by the English Monarch today. And as we have seen, this practice does not extend to a pardon before conviction, since

such practice is out of harmony with modern views as to the propriety of granting dispensation before the normal process of the criminal law has run its course (Edwards, The Attorney-General, p. 475).

(8) The Legislative Purpose: Guidance from the U.S.A.?

18. In the American case of Schick v. Reed [58] Justice Burger relates that when the American Constitution was under preparation, a short discussion took place on the scope of the pardoning power to be entrusted to the President. The view that it be confined to exercise after conviction only, was rejected for the reason that this would preclude the possibility of using accomplices as prosecution witnesses in conformity with the English practice at the time. The American courts have since then interpreted the President's pardoning power as being similar to that of the English Monarch. This power embraces not only individual pardon but also general amnesty, and results from the perception that the President of the U.S.A. is charged with the execution of the laws:

A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws (United States v. Wilson [55], at p. 160, per Marshall C.J.).

The customary view, which is based on dicta in a number of old cases, is that the existing pardoning power extends also to the grant of a pardon before conviction. There seem to be several reasons, however, why even the American model cannot guide us with regard to the presidential power of pardon in Israel. First, in the U.S.A. the President heads the Executive authority. Like the English King in the past, so the American President today is responsible for execution of the law, so that there is a certain logic in entrusting him with a power not to execute the law in certain cases by way of granting a pardon. That is not the situation of the President of Israel, who holds no powers so far as execution of the law is concerned. Second, the U.S. President is empowered to grant a general amnesty, also to unconvicted suspects. There is a certain logic in the contention that the authority competent to grant an amnesty to unconvicted suspects should also be competent to grant an individual pardon before conviction (see P.B. Kurland, Watergate and The Constitution, Chicago, 1978, p. 145). This argument doesn't hold good in Israel, where the President is not empowered to grant an amnesty, and from this viewpoint there is no logical basis for empowering him to grant a pardon before conviction. A third reason for distinguishing the American situation from our own is that the framers of the American Constitution were mindful of the English experience, which they themselves had shared in the colonial period. This was pointed out by Judge Wayne in Ex Parte Wells (1856) [61]:

At the time of the adoption of the Constitution, American statesmen were conversant with the laws of England, and familiar with the prerogatives exercised by the Crown. Hence, when the words "to grant pardons" were used in the Constitution, they convey to the mind the authority as exercised by the English Crown, or by its representatives in the colonies. At that time both Englishmen and Americans attached the same meaning to the word "pardon."

A different situation has existed in Israel. As we have seen, the draftsmen of the Transition Law did not seek to emulate the experience of the English monarchy, and those who legislated the Basic Law into existence did not consider the presidential pardoning power to be exercisable before conviction.

19. The result is that we cannot be guided by the Anglo-American experience when seeking to construe the scope of the President of Israel's power "to pardon offenders." This does not mean that the constitutional situation in England and the U.S.A. cannot ever provide any interpretative guidance for us. On the contrary: our own interpretative processes, ever since the establishment of the State, have drawn extensively on the Anglo-American constitutional experience, and the outlook in these countries on many subjects, among them human rights, have often inspired our own approach. Yet such nourishment has to be controlled, and the inspiration can only flow from a comparison between institutions, processes and perspectives which have a common basis. Thus we too can learn from the American recognition of the fundamental human rights, since both our countries have democratic regimes committed to the rule of law and the separation of powers. That, however, does not apply to the power of pardon, which in England and the U.S.A. is based on an approach that differs entirely from our own.

(9) The Legislative Purpose: Proper Guidance

20. The absolute French monarchy also wielded a wide power of pardon, both before and after conviction, individual as well as general. Like powers were enjoyed by other absolute monarchies in Europe. A drastic change came with the French Revolution, when the existing form of pardon was abolished in France and replaced by a more restricted form. Since then it has been customary in most of the Continental countries for a limited power of pardon - not exercisable before conviction - to be conferred on the titular, and not executive Head of State, that is to say, the person holding the powers which symbolise the State. This is the situation in modern France (see e.g. sec. 35 of the Constitution of the Fourth Republic, and see also Monteil, La grace); in Italy (see art. 87 of the new Constitution, and see also Manzini, Trattato Di Dirrito Penale Italiano, 1981, p. 510; Bortolloti, "Il principio Constituzionale Della Clemenza," Rivista Trim. Di Dir. Civ. [1978], 1681): in Germany (see sec. 60(2) of the new Constitution) and in many other countries (including Holland and the Phillipines). It is interesting to discern the same trend in the new democracies which became a part of the British Commonwealth of Nations. Thus the King of England and the Governor-General of Canada cannot grant a pardon in that country except after conviction (see. 683 of the Criminal Code of 1970). The same holds true in Australia, except in the context of persons who turn Queen's evidence. Section 72 of the Indian Constitution empowers the President to grant a pardon after conviction only (see Balkrishna, "Presidential Power of Pardon," J. of Indian Law Institute 13 [1971], 103). It might also be noted that in a number of countries (among them France, Italy and Germany) the pardoning power is constitutionally defined in general terms, while their equivalents of the expression "to pardon offenders" have been construed, in judicial decisions and by commentators, as relating solely to pardon after conviction.

21. I may now conveniently summarize my observations on the interpretative guidance to be derived from a review of the pardoning methods in other countries. I have sought to show that in countries where the law of pardon is not laden with historical memories from the era of the absolute monarchy or coloured by other similar influences of a bygone era, and at the head of which stands a King or President who symbolises the State, this authority holds a restricted power of pardon. The most important restriction is the limitation of the power to the stage after conviction. This conclusion does not, however, put an end to our interpretative search, for we have seen that constitutional directives require a "spacious view" in their construction. In our present context, that means we have to construe the pardoning power in the light of the general governmental structure in Israel. This I now proceed to do.

(10) The Legislative Purpose: General Governmental Structure

22. During the era of absolute rule, when the power of pardon was wielded by the sovereign himself, there would have been little point in examining the division of authority among the different governmental organs. The ruler held supreme authority, and was therefore entitled to grant a pardon (individual or general) when so disposed, before or after conviction or the conduct of an investigation. It is different in a democratic constitutional regime. The sovereignty there lies with the people, the ruler is no longer omnipotent, and the rule itself is divided among the different authorities. Each has to function within its own sphere, though in general synchronization with the others and subject to mutual checks and balances. It is not in keeping with the democratic character of the regime that any authority, be it the President himself, should hold a paramount power which enables it to change a decision of any of the other authorities which have acted within their responsibility in the framework of criminal proceedings. Such a power may be fitting for an absolute ruler who wishes to show grace to his subjects, but is alien to a holder of high office who wants to serve his subjects. This contrast is well-illustrated in the American precedents. At first it was held by the Supreme Court that a pardon granted by the President, like one granted by the English King, was an act of grace (see U.S. v. Wilson [55], at p. 160) per Marshall C.J.):

A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws....It is the private, though official, act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court.

This approach, however, fell into disfavour (see Buchanan, "The Nature of a Pardon under the U. S. Constitution,") and was later expressly rejected in Biddle v. Perovich [56], where Justice Holmes observed as follows (at p. 486):

We will not go into history, but we will say a word about the principles of pardons in the law of the United States. A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme.

The power of pardon of the President of Israel is, indeed, a part of the constitutional scheme, within which it has to find its rightful place.

23. What then are the implications for the pardoning power of the need for its coordination with the other State organs and authorities? In the first place, it seems to me that the President's power of pardon must not be construed as placing him in paramount authority over all the other authorities involved in the administration of criminal justice. The pursuit of criminal justice involves different authorities in different stages, from the commission of the offence until the delivery of a final judgment: the police, the prosecution, the courts, and the prison services (for holding suspects in custody). It would be contradictory to this constitutional arrangement to enable the President to intervene in the normal process by exercising his power of pardon concurrently with the powers exercised by the other State authorities. Only an unworthy constitutional arrangement would permit the President a power to halt a police investigation or the prosecution of a criminal charge, or to intervene at any stage in the course of the adjudicatory process. Such a situation was decried by Landau J. in the Matana rehearing in these terms ([3] at p. 461):

I am unable to see any purpose which can justify such confusion in methods of punishment and the division of powers between the authorities of the State.

The proper interpretative approach indeed requires us to focus attention on the division of powers between the different State authorities, the ramifications of which are to be gathered from the "constitutional scheme" underlying our legislation. The proper construction of the pardoning power against this background is that it should be exercised by the President only after the other authorities have discharged their own functions. If in that situation there be need for a pardon, the President will be empowered to grant it. This was the fundamental philosophical approach to the question of pardon in the U.S.A., as was pointed out by Hamilton (Federalist, no. 74):

The Criminal Act of every country partakes so much of necessary severity, that without an easy access to exception in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.

The same idea was expressed by American Chief Justice Taft, in Ex Parte Grossman [49] (at pp. 120-121):

Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments. It is a check entrusted to the Executive for special cases.

That was also the approach of Justice Agranat in A. v. the Law Council [2], where he commented thus (at p. 751):

Here - as in England - the primary purpose... is to redress the wrong done to a person who was convicted while innocent, and the second purpose - the value of which should also not be underestimated -is to reduce the sentence of the offender in circumstances which justify this. It is clear that the exercise of such a power by one of the highest State authorities is essential for the effectiveness of any governmental regime, since in no country whatever has there yet been created a system of justice capable of perfect and unerring operation, and of dispensing justice in every case without fail. I need hardly state that not all the material which may throw light on the matter before the court is invariably produced at the trial, and even the judges, who are but human, may err from time to time. It is essential, therefore, that there be available such a reserve power in order to prevent the harmful consequences of an injustice, and also to enable the reduction of a person's punishment - even when properly convicted - should the circumstances so dictate or warrant .

It accordingly transpires that the power of (individual) pardon is exercisable only upon conviction of the offender in a final judgment. Only then will the different State organs have exhausted their own powers, and only then can there arise the need to correct an injustice. Until that stage, the fate of the suspect is to be determined by the appointed authorities in the ordinary course of the administration of criminal justice. A presidential invasion of the province of any of these authorities is an inconceivable possibility in a democratic-constitutional country.

24. The perception that the presidential power of pardon must not be construed as being in rivalry with the powers of the other State authorities, underlies the interpretative conclusion that the power does not extend to the grant of a general amnesty. The expression "to pardon offenders" - according to its plain meaning, as I have already explained - would seem to embrace also the grant of a general amnesty, since it too effects a pardon for offenders. Yet there is no disputing the view that the President lacks the power to grant a general amnesty, as was in fact held by Agranat D.P. in the Matana rehearing (at p. 455):

It must be understood that when the First Knesset conferred the power of pardon upon the President, its intention was that he should not be empowered to declare a general amnesty, the result of which would be to pardon all offenders, for the intention was to reserve the power of general amnesty to the legislative authority itself.

I believe the rational explanation for the President's lack of the power of amnesty to be the perception that amnesty is a legislative act which is properly the function of the Knesset rather than that of the President. The latter must exercise no powers that impinge on those of the legislative authority or, by analogy, on those of other authorities. The powers of the police to conduct investigations, and of the Attorney-General to prosecute offenders, including their respective powers to discontinue the investigation, or the prosecution, must not be subject to encroachment by the President through exercise of his pardoning power. Neither, indeed, should this power be construed as warranting presidential intervention in the authority of the court to acquit or convict and impose whatever punishment it sees fit. It has to be recognized that the grant of a pardon in the course of the investigation of an offence, or a trial, is an intervention in the exercise of these executive powers just as unwarranted as an intervention by the President in the Knesset's exercise of its legislative powers. The undesirability of construing the pardoning power in a manner permitting such presidential intervention, was stressed by the Attorney-General, Prof. Zamir, in his abovementioned directive, in these terms:

A Presidential power to intervene in criminal proceedings pending before the court, in a manner permitting termination of such proceedings at any time, is undesirable in principle. The pardoning power of the President bears no comparison with the Attorney-General's power to intervene in criminal proceedings by way of staying the same. The Attorney-General functions from the start as an integral factor in criminal court proceedings, for he is empowered by law to prefer the charge on behalf of the State. This power naturally entails also the power to withdraw the charge as well as to stay the criminal proceedings at any stage before final judgment, such decision being founded on a close involvement in and familiarity with the proceedings. The President, on the other hand, is an extraneous factor in criminal proceedings. In this situation, his grant of a pardon in the course of the trial might be seen as an unwarranted intrusion into the domain of the court.

Such an unwarranted intervention would occur if, for instance, the court were to convict the accused and he be pardoned by the President before sentence.

25. This conclusion as to a "separation of powers" between the presidential pardon and the powers of other State authorities, is reinforced when regard is had to Israel's general constitutional framework. The other State authorities (the police, the prosecution and the courts) have the means to establish the facts. The police has its investigating facilities and seeks to reach an assessment of the factual situation. The prosecution, to whom the police must transmit the material, will handle and process it until judgment. The courts possess the institutional and normative facilities for elucidating the question of innocence or guilt. That, however, is not the situation of the President, who has no facilities for ascertaining the truth and testing the facts. It is therefore only natural that in matters of pardon the President be guided by the court's rulings. If it finds the accused not guilty, that is the end of the matter; if it convicts the accused and sentences him, that will be the President's starting point. Before conviction of the accused the President has no factual basis whatever for weighing the justifiability of a pardon. Even an admission by the applicant for a pardon that he committed an offence is of no consequence, for he is presumed innocent until convicted by the court.

26. My approach to the construction of the presidential power of pardon is also dictated by the reality of Israel's own constitutional structure. The President is the "Head of State," and not the head of the executive authority. He is a kind of additional authority to those four already existing (the legislative, executive, judicial and supervisory authorities). In the Israel constitutional context, the President is perceived as symbolizing the State. He is not party to the power struggles in the country, and stands above the day-to-day political strife. It is unreasonable to assume that a President so constituted should be endowed by the lawgiver with a power of intervention in the daily functioning of the remaining governmental authorities. That would be like descending into the "arena," and not fitting for the President. Here, indeed, is a material difference between the President of Israel and the American President. The latter heads the Executive and has to do battle every day. That is why his power of pardon may be construed as extending also to a general amnesty as well as a pardon before conviction of the offender.

27. Moreover, the exercise of power must be subject to judicial review, without which arbitrariness will result, for without the judge there is no law. Hence our constitutional perspective that the activities of each of the governmental authorities are subject to judicial review, consistently with the scope of the powers of that authority. This court has held even the functioning of the Knesset to be subject to limited judicial review (see Bergman v. Minister of Finance [33]; Sarid v. Knesset Chairman [15]; "Kach" Faction v. Knesset Chairman [1]; Kahana v. Knesset Chairman [26]). However, it was seen fit in the Basic Law, see. 13(a), to free the discharge of the presidential function from direct judicial review. There does remain the possibility of indirect review of his decisions, but only in a restricted way. For example, if he pardons a particular person, but refuses to pardon someone else in a similar position, the latter person would have no remedy. It is inconceivable that that same Legislature which freed the presidential functions from judicial review, should have granted him pardoning powers in place of those of other authorities amenable to the jurisdiction of the courts. We should, on the contrary, construe the presidential pardoning power as a residual, or a "reserve" power - as Justice Agranat called it - for use when the powers of the other authorities have reached the limits of their exercise.

28. I have so far assumed that our own "constitutional scheme" requires the pardoning power to be construed as not competing with the powers of other authorities. Hence my conclusion that the President lacks the power to pardon before conviction. It might be argued that the desired result could be achieved by recognizing the President's power to pardon before conviction in the expectation that he would make only a limited use of that power, as is the case in England. There the law has left the constitutional monarch with the pardoning power of the absolute monarch, but ensured that he does not in practice exercise that power except as consistent with the democratic character of the regime. This alternative, attractive as it may seem, is unacceptable to me for a number of reasons .

In the first place, constitutional norms cannot be built on hopes. Basic principles of government are not shaped on the assumption that all will proceed as planned. Quite the contrary. The entire constitutional edifice is testimony to the realization that checks and balances must be provided to prevent, or cope with, situations that are likely to go wrong. If under our "constitutional scheme" the presidential powers must not rival those of other authorities, it would be most undesirable to rest the attainment of this objective on the expectation of presidential restraint, and his refraining from the exercise of his available powers. What if the presidential conduct doesn't come up to expectations? And - should we pursue this approach - why not say that the President has a general power of pardon and amnesty? The fact is that we are dealing here with a matter of constitutional import, impinging as such on our lives within the national framework. When it comes to the shaping of basic principles of government, we have to adopt a clear stand one way or the other. The matter should not be left for resolution on a casuistic basis of distinction between case and case, exceptional or otherwise, that would leave everything exposed to the vagaries of the passing political rivalries. We have been so instructed by my respected colleague, President Shamgar, in Neiman v. Central Knesset Elections Committee [19], where he held as follows (at p. 260):

When constitutional matters are under review, their import and implications must be considered in the long term, and proper weight given to their influences on the political and social frameworks within which they operate. If these be subjugated to the needs of the hour and we adopt a casuistic approach in matters of constitutional content, particularly concerning the freedom and rights of the individual, we shall miss the mark and deal less than justly with the subject.

Were we to resolve the problem by a casuistic determination that the State President has the power, in principle, to pardon before conviction, with everyone left hoping that he will only rarely exercise that power, we should be guilty of doing exactly as admonished not to do.

Secondly, the very existence of a power, albeit slumbering, invariably arouses expectations of its use. The President would be subject to constant individual and public pressure to exercise his power of pardon before conviction, and thrust himself into the centre of public controversy whether he accede to or refuse the request for a pardon. It is precisely the need to regard the President as the symbol of the State and isolate him from political rivalries, that demands a clear and unequivocal determination as to the scope of his pardoning power, and its negation before conviction of the offender in a final judgment.

Thirdly, the indirect - in Israel the only possible - judicial review of the President's discharge of his functions, would be ineffective if he intervened in the activities of the other authorities, for if he acted within his lawful powers, there would be little opportunity for intervention by the court. If we are bent upon a "separation of powers," it is necessary that we keep the powers duly separated.

29. It is accordingly my conclusion that our constitutional framework precludes a construction of the presidential pardoning power as being concurrent with the powers of other State authorities. It demands, in fact, that the power only be exercised after the other authorities have exhausted their own powers. It might be asked whether this approach is not unduly rigid, and whether it may not result in injustice in certain, perhaps exceptional, cases. Can it be said that the other authorities will weigh the same considerations as does the President, and that in a rare case the presidential pardon will not offer the most effective remedy if granted before conviction? These questions are important and must be answered.

Our starting point is that in the overwhelming majority of cases, the different State authorities are sufficiently equipped to deal with the problems with which the power of pre-conviction pardoning is likely to be confronted. True, the mechanisms are not the same, nor is the legal consequence identical, but the main problems are solved. If someone's personal plight (for example, a malignant disease) indicates that he should not be interrogated or prosecuted, a presidential pardon is not the only satisfactory solution. The police and the prosecution may take the suspect's personal circumstances into account and, for example, the Attorney-General may stay the proceedings for lack of public interest in the continuation of the trial on grounds of personal considerations affecting the applicant. Legally speaking, pardon is of course a "stronger" remedy than a stay of proceedings, yet the latter "milder" remedy suffices to solve the problem of the incurably ill suspect, or other problematic cases, by achieving the generally desired effect: The Attorney-General may likewise take into account general social considerations (embracing also matters of security and foreign policy). It was pointed out in the report of the Agranat Jurists' Commission on the Powers of the Attorney-General (1962) that in certain circumstances a situation involving a security, political or public interest may demand that no criminal charge be preferred. In this connection the Commission reported as follows on the Attorney-General's need to consult with the political authorities (at p. 13):

It will be found that most of the problematical cases for which a pre-conviction pardon is sought, can and should properly be handled through the existing mechanisms, which have been structured in advance to deal with that very kind of case. Every person is presumed innocent until convicted, and a suspect's legal status cannot change except upon conviction by the court. The particular problems, for the suspect himself and for the general public, can normally be satisfactorily handled through the authorities charged with the administration of criminal justice. The former situation of the comparatively poor facilities available for the "extinction" of the offender's criminal past, has now been significantly improved with the enactment of the Crime Register and Rehabilitation of Offenders Law of 1981, according to which a presidential pardon - and clearly only a pardon after conviction is envisioned there - is an extinction of the conviction for all intents and purposes (sec. 16(c).

30. I am ready to acknowledge the possibility of very exceptional circumstances in which the power of pardon before conviction would offer the most practical and effective means of dealing with the problem. Even that, however, would not be a decisive consideration, for the reason that the "spacious view" we have to take when construing a provision of constitutional content, which is the case here, otherwise dictates. We must take into account not only the individual's plight, but also the interests of the general public, and the possibility of the abuse of the power. We must also remember the dynamics of a progression in which the rarest exceptions become less rare, and then become the general rule. The Attorney-General's power to stay proceedings offers an illustration of such a progression. We accordingly have to strike a balance between the different interests - between the hypothetical special exception and the need for the determination of clear and sharply defined limits for the exercise of executive powers at the highest level. Since there is no ideal solution, we can only strive at one that promises the least evil by balancing between the clashing interests. In so doing, in these circumstances, there is no need to give any priority to anomalies and exceptions. The best way to deal with the special cases is through the powers of the authorities who deal regularly with the situations concerned, and not through the conferment of exceptional powers on the State President. That has been the experience of many countries with political regimes resembling our own. Thus the Heads of State in France, Italy, Germany, India, Australia, Canada and in numerous other countries, do not enjoy a power of pardon before conviction. This lack has not, so far as I am aware, led to injustice grave enough in exceptional cases to prompt any move towards amendment of the existing law of pardon. The modern trend seems rather to indicate the contrary, and countries which were formerly subject to the English King's power of pardon have acted to restrict exercise of the pardoning power in their own countries to the post-conviction stage. Edwards, for example, states the situation in these terms (The Attorney-General, at 474):

A review of the independence constitutions within the Commonwealth, negotiated with the United Kingdom Government prior to the transfer of sovereignty, provides substantial support for a pre-conviction limitation of the pardoning power.

And the trend in our own country has been towards refinement of the functioning and facilities of the existing authorities, as witness the provisions of the Crime Register and Rehabilitation of Offenders Law of 1981. Even the most anomalous and exceptional circumstances should not, therefore, be allowed to controvert our fundamental constitutional doctrines.

31. Before concluding this part of my opinion, I wish to refer to a problem connected with the President's post-conviction pardoning power. Does the pardoning power avail, after conviction, in situations where other State authorities have their own powers to deal with the problem? For instance, can a presidential pardon be granted someone whose case is under examination in a retrial, or be granted for reasons of "permanent ill-health" when this question is under examination by the Minister of Police in the framework of his powers under sec. 49(d) of the Penal Law of 1977? These questions do not arise in the matter now before us, and must await elucidation at the opportune time. However, I may point out that the situations described raise a question different from that occupying us in the present petitions. Our concern so far has been whether the term "offender" includes also an unconvicted suspect, the term itself being "open" and amenable to different possibilities, so that we are assigned the task of selection in accordance with the legislative purpose. In the above problematical situations (such as retrial) the accused, who has already been convicted, is by any linguistic test an "offender" and the question is whether such a person can be said to fall outside the ambit of sec. 11(b) of the Basic Law. These situations raise interpretative questions of the greatest complexity. Hence, it may happen that the legislative policy, though its trend be clear, will not be given to implementation in respect of a certain class of "offender" concerning whom the language of the law is insufficiently flexible. The answer, whatever it may be, cannot however affect the construction of the term "offender" in those cases where the language of the Law is flexible enough to serve the legislative policy. It would be unreasonable to hold that since the Legislature failed to attain its objective in some of the possible cases, it then becomes desirable to construe its directives generally in a manner thwarting achievement of the legislative purpose. I believe we should take the opposite interpretative approach. As faithful interpreters, we are committed to attainment of the legislative purpose as far as possible, bearing in mind always that while the interpretation is not bound to the words used, the words do limit the interpretation and so restrict our interpretative freedom. We may implement a legislative purpose within the bounds of a maximum-minimum semantic gradation, but we may not implement a legislative purpose which has no foundation at all in the language of the statute. The point was elucidated by this court in Haddad v. Paz [34], in the following terms (at p. 670):

The legislative purpose constitutes an interpretative aid when it serves as a guide in choosing between different, linguistically permissible, interpretations. It is essential, therefore, that the interpretative option which would implement the legislative purpose, find a receptacle in the language of the Law. There has to be a verbal connection, even a minimal one, between the language and the purpose of a Law. It is necessary to find an Archimedean hold for the legislative purpose in the language of the Law. The interpreter may not implement a purpose that finds no linguistic anchorage in the Law.

We have dealt with the legislative purpose. Linguistically speaking it may be achieved in relation to an unconvicted person. He is not in the category of an "offender." It is doubtful whether this purpose is attainable in relation to a convicted person whose case is under retrial, or under examination by the Minister of Police in the context of his powers in situations of permanent ill-health. These are difficult questions awaiting clarification at the proper time.

32. It may possibly be contended that such linguistic "rigidity" is indicative of a basic misconception as to the legislative purpose. It should perhaps be said that because the President has a power of pardon where there is a retrial, he has the like power where no trial has been held at all. My answer to this legitimate question is that the available evidence - factual (the views of the Knesset members concerned) and legal ("the constitutional scheme") - does not support such a conclusion.

(11) Interim Summary

33. The empowerment of the President "to pardon offenders" is couched in "open", equivocal language, offering in itself no answer to the question whether the power of individual pardon is exercisable also before conviction, or the term "offender" includes also an unconvicted suspect. For the purpose of choosing between the possible linguistic options, we must have recourse to the legislative purpose. That purpose was not the equation of the State President's pardoning power with that of the English King, or of the President of the U.S.A., so we cannot be guided by those models. The Basic Law: The President of the State, is indeed an original Israel Law - the Israel Legislature "neither copied nor omitted, but built its law as an independent structure." It must accordingly be construed against the background of our own national experience, with interpretative guidance sought from the countries which have a similar constitutional arrangement. In discharging the interpretative function we must take a "spacious view," having regard to our "constitutional scheme." Against this background, my own approach is not to presume that the lawgiver sought to confer on the State President - who does not head the executive authority but symbolizes the State, and whose functioning is not subject to direct judicial review - executive powers concurrent with those of other State authorities (the police, the prosecution, the courts). The lawgiver cannot be presumed to have favoured presidential intervention in criminal proceedings before these have run their full course. Therefore, I interpret the expression "to pardon offenders" as extending only to persons against whom a final convicting judgment has been given. This approach finds support in the scholarly treatises of two of Israel's most distinguished jurists, Professors Feller and Klinghoffer, in the criminal law and constitutional law fields respectively. In the view of both scholars, each from the angle of his own specialized field, the presidential power of individual pardon extends only to duly convicted persons (see Prof. Feller's article, "Rehabilitation," p. 5). The same approach was also adopted by Landau J. in the Matana rehearing, where he held as follows (at p. 461):

My main ground in opposing the wide interpretation proposed by the Deputy President is that matters of punishment in criminal cases fall within the jurisdiction of the courts. It is clear that side by side with this jurisdiction the special power of pardon is required in order to correct any serious error of the court which cannot otherwise be corrected, and as an act of grace after the offender has served part of his sentence.

The matters of correcting "any serious error of the court," and "an act of grace after the offender has served part of his sentence," have relevance after conviction only. I am conscious of the fact that Deputy President Agranat (as he then was) and Justice Berinson, two of Israel's most distinguished Judges, expressed a different opinion. I shall seek to explain how this occurred when I examine the approach of my respected colleague, President Shamgar, which I now proceed to do.

F. The Approach of Shamgar P.

(1) The Gist of his Approach

34. I shall seek to set out the main points in the judgment of Shamgar P. on which our approaches diverge. My colleague's starting point seems to be that the Anglo-American model was envisaged by the Israel Legislature as the prototype for the presidential pardoning power in Israel at the time when sec. 6 of the Transition Law was enacted. Further, that it was also so held in the case of A. v. the Law Council and in the Matana rehearing. This "historical-interpretative" approach would dictate the conclusion that the presidential pardoning power in Israel is the same as that of the English King or the American President - and different from other models which may be disregarded - and that it embraces also the grant of a pardon before conviction. In the opinion of Shamgar P., this same situation was envisaged by the Israel Legislature when it later enacted the Basic Law: The President of the State. Hence, so far as pertaining to the issue now before the court, the text of the pardoning provision in the Transition Law was re-enacted without change in the form in which it had been interpreted in the precedents - an indication that no need was seen to change the then existing legal situation. Accordingly, it could not be contended that parallel powers held by other authorities (such as the Attorney-General's power to stay criminal proceedings) might affect the presidential pardoning power, without it first being proved that the existence of such parallel or overlapping powers have implicitly repealed the presidential power. In the opinion of Shamgar P., no such implied repeal could be established in the present matter since the existence of the parallel powers created no conflict. The State President was accordingly competent to grant a pre-conviction pardon and, in the view of Shamgar P., this conclusion was also consistent with the interpretative perspective that constitutional powers must be given an expansive interpretation.

35. Shamgar P. also made reference to other matters in his important judgment, but I believe I have sufficiently stated the essence of his approach. With all due respect, 1 am unable to agree with that approach. Lack of time prevents me from elaborating upon many of the points on which 1 am in disagreement with my respected colleague, and I shall confine my remarks to certain matters which seem to me important for the resolution of the problem before us.

(2) The Anglo-American "Mould and Prototype"

36. As I have already indicated, Justice Shamgar took as the starting point for his construction of the presidential pardoning power, the view that it was structured according to the powers of pardon of the English Monarch and the U.S. President. I have sought to show that this view is not in accord with the facts. It was not the latter powers that the lawgiver had in mind when the power of pardon was enacted under the Transition Law. I have examined the relevant legislative history, without finding any hint of factual support for this theory. The powers of pardon of the English Monarch did not serve as the "prototype" for the pardoning power of the President of Israel. Even Justice Agranat did not find as a fact, in A. v. the Law Council [2], that in enacting sec. 6 of the Transition Law the Israel Legislature had in mind the English Monarch's pardoning power as a matter historically established. Justice Agranat's approach was legal and not historical and he assumed, as a matter of law, that the pardoning power of the President of Israel was the same as that of the High Commissioner in the Mandatory period, which in turn he assumed was the same as that of the English Monarch. On this basis he drew the logical conclusion that the pardoning power of the State President was the same as that of the English Monarch, the learned Justice holding as follows (at pp. 750-751):

I am of the opinion that the power of pardon of the President of Israel is the same, generally speaking, as the power of pardon of the King of England, in its nature and in respect of the consequences which flow from its exercise. Before the enactment of the Transition Law of 1949, the High Commissioner was empowered under Art. 16 of the Palestine Order in Council (inter alia) to "grant to any offender convicted of any crime... within Palestine... a pardon either free or subject to lawful conditions, or any remission of the sentence passed on such offender.... " The power of pardon held by the High Commissioner was accordingly the same as the power of pardon held by the King of England.... If the provisions of sec. 6 of the Transition Law of 1949 were enacted in place of Art. 16 of the Order of the King-in-Council, as I believe happened, then the power of pardon held by the President must be deemed the same as the power formerly possessed by the High Commissioner, and later by the Provisional Government. That is to say, this power is parallel, in its nature and in the consequences which flow from its exercise, to the power of pardon exercised by the King of England.

It is generally accepted today that the above parallel drawn by Justice Agranat in A. v. the Law Council contained two errors, as was indeed pointed out in the dissenting opinion of Landau J. in the Matana rehearing. In the first place, it is clear that the State President's pardoning power is not the same as was the power possessed by the High Commissioner. If these were the same, the question now before us might never have arisen, since except with regard to offenders who turned "King's evidence," the High Commissioner had no power of pre-conviction pardoning. This error was later acknowledged and corrected by Justice Agranat in the Matana rehearing, in the following terms ([3] at pp. 443-444) :

resort to a system of comparison between the language of Art. 16 of the Order in Council and that of sec. 6 of the Transition Law, 1949, in order to ascertain the intention of the Israel Legislature in the latter section which it enacted - resort to this mode of interpretation is out of place... The language of Art. 16 of the Order in Council need not prevent the giving of a wide interpretation to the President's power of pardon.

The second error was Justice Agranat's perception of the High Commissioner's pardoning power as equal to that of the King of England. This aspect too was later dealt with by him in the Matana rehearing, where he pointed out that the High Commissioner held a delegated power which was not the full power of the English King:

the power of pardon granted to the High Commissioner under Art. 16 of the Order in Council... is none other than the power delegated to him by the King from that accorded to the latter by virtue of the prerogative... In view of the rule of construction mentioned above which demands a restricted interpretation of the "delegated" powers of one who has the status of the governor of a British colony, it was imperative to define clearly and precisely the power which was delegated in this respect to the High Commissioner, and it is to this that the detailed and exact language of art. 16 must be attributed. The truth of the matter is that the power of pardon of the King of England was never delegated, in its entire scope, to the High Commissioner. This is proved by the fact that whereas we learn from the passage from Halsbury's Laws quoted above that the King is empowered to grant a pardon also " before conviction," it is provided by Art.16 of the Order in Council that the High Commissioner may only exercise this power in respect of "any offender convicted" (ibid., pp. 439-440).

There accordingly appears to be neither a factual nor any legal basis for the "historical-interpretative" premise that at the root of the State President's pardoning power lay the power of pardon of the English Monarch. Nor, I need hardly add, is there any factual-legal basis for attributing such a role to the pardoning power of the U.S. President.

37. I shall now proceed to analyse the judgment of Agranat D.P. in the Matana rehearing. I have endeavoured above to show that he did not found his decision on any "historical-legal" basis of an Anglo-American "prototype" of the pardoning power. The starting point of his approach was the perception of the Transition Law of 1949 as an original Israel enactment. Agranat D.P. relied in this regard on a dictum of Smoira P., that the Israel Legislature "neither copied nor omitted, but built its law as an independent structure", and went on to add as follows ([3] at p. 444):

I have so far tried to show that the language of Art. 16 of the Order in Council need not prevent the giving of a wide interpretation to the President's power of pardon and that the formulation of this power in sec. 6 of the Transition law "suffers" such a construction. Is there any positive justification for this and how far should the line be stretched? To answer this question we must first consider the nature of the various powers of pardon.

The approach of Agranat D. P. is accordingly to be seen as interpretative rather than historical. Reading the text of sec. 6 of the Transition Law, he examines whether the language "suffers" the construction concerned, and among the possibilities "suffered", chooses the meaning for which there is "positive justification" but taking care not to "stretch the line" too far. He takes into account the fact that he is dealing with a constitutional provision which, he holds, need not be given a restrictive interpretation but calls for the taking of a "spacious view" (ibid. p. 442). It was against this background that Agranat D.P. examined the substance of the pardoning power. Making a thorough examination of the pardoning powers held by the King of England and the American President, he was confronted by the judgment of Berinson J. in the criminal appeal in Matana v. Attorney-General [3], where the latter dwelt on the difference between the English King and the President of Israel. Countering this argument, Agranat D.P. held as follows:

My reply to these words of dissent is twofold. Firstly even if the fact that the local provision is drafted in the Hebrew language must not be lightly disregarded, it would also not be right to give it undue weight. Not only do the expressions "pardon" and "reduction of punishments" have a universal meaning, but the power of pardon, in its scope under the common law, is the power which passed to the Provisional Government by virtue of sec. 14 of the Law and Administration Ordinance, 1948, and was known to local jurists at the time when that provision was framed.

Secondly, the importance of the lesson from American precedent arises from the fact that although it was the clear aim of the draftsmen of the Constitution of the United States (and it was this very object which they wished to achieve) to ensure - by means of the provision imposing upon the President the duty of supervising the faithful implementation of all the laws of the State - that no trace should remain of those prerogative powers which served the King as a means of relaxing the bonds of various laws and statutes, nevertheless they left the power of pardon within the realm of criminal law just as it was, and introduced a specific provision conferring such power upon the President of the State.

And in reply to the contention that the status of the President of Israel, as "symbolizing" the State, differed from that of the American President as "conducting its affairs," Agranat D.P. had this to say (ibid., pp. 453-454):

The reply to this argument is that also in France, where at least until 1958 the status of the President was basically similar to that of the President of Israel, it was found necessary to confer upon the President of the Republic the right to grant pardons.... The result is that the ground of the absence of any similarity or comparison between the status of the President of our country and that of the British Crown (or of the President of the United States) is erroneous.

Justice Agranat accordingly did not construe the Transition Law on the basis that its legislative purpose "was fashioned in the Anglo-American mould, which served as its prototype." His approach was to take a pervasive constitutional perspective, to take a "spacious view" in construing the relevant statutory provision. In ascertaining for himself the meaning of "pardon," he availed himself of the English experience as well as the American, the French and the German. He did not distinguish between the legal situations in the different countries, and he was apparently unaware of the fact that in France the term grace mentioned by him, was not interpreted in the same way as the term "pardon" in the U.S. Constitution. He sought to uncover the essence of the matter, seeing the term "pardon" as harbouring a concept of "universal significance." I wish to adopt that same approach in the matter now before us.

.38. It cannot be overlooked that in his judgment in the Matana rehearing, Agranat D.P. also held, specifically, that the State President has the power to pardon before conviction, and so did Berinson J. As for the import of this determination, I believe it is generally recognized as carrying the weight of an obiter dictum. That would entail a twofold consequence. First, from the viewpoint of our legal system, the abovementioned conclusion constitutes no authoritative declaration that Israel law empowers the President to pardon suspects also before their conviction. Hence a District Court Judge, for instance, would still be free to hold that the presidential power of pardon avails after conviction only. For the same formal reason M. Ben-Ze'ev, a former Attorney-General, felt himself free to declare before the Knesset Constitution, Law and Justice Committee - after the decisions in A. v. The Law Council and in the Matana rehearing - that the presidential pardoning power was exercisable after conviction alone. For this reason too legal scholars have expressed the same opinion. In so doing they were not merely reflecting the desirable state of affairs, but what seemed to them to be the existing legal situation. It is true that "the final form in which the Law is shaped, is the form given it by the Judge" (Justice Sussman, "The Courts and the Legislating Authority," Mishpatim 3 [1971], 213). Also, "Once the Supreme Court has construed a legislative enactment as it did, in a dispute before it, this construction becomes part of that enactment" (Justice S. Agranat, "The Contribution of the Judiciary to the Legislative Endeavour," Iyunei Mishpat 10 (1984), 244). But these statements are true only with regard to the ratio decidendi, and do not apply to obiter dicta. The rational explanation for this is that in his passing remarks the judge does not sense the same responsibility as he does when setting forth the reasons for his decision. Knowing that his remarks in passing have no binding force, he may feel greater freedom in expressing them. It seems to me that our instant matter well illustrates the point. Thus Berinson J.'s statement concerning the presidential power to pardon before conviction does not, I believe, accord with his general line of thinking. Seeking to restrict, he in fact widened the interpretation. His own perspective provided little explanation for that result. As for Justice Agranat, he referred not only to Anglo-American law but also to Continental law, without, however, carefully examining the latter. He was therefore unaware of the fact that the Continental countries generally did not recognize the possibility of individual pardon without prior conviction. He would certainly have made a thorough study of the matter had he considered it central to his decision. Moreover, in substantiating the need for the pardoning power, Justice Agranat set forth the following two reasons alone (in A. v. The Law Council and in the Matana rehearing):

The primary purpose... is to redress the wrong done to a person who was convicted while innocent, and the second purpose - the value of which should also not be underestimated -is to reduce the sentence of the offender in circumstances which justify this. It is clear that the exercise of such a power by one of the highest State authorities is essential for the effectiveness of any governmental regime, since in no country whatever has there yet been created a system of justice capable of perfect and unerring operation, and of dispensing justice in every case without fail (A. v. the Law Council [12], at p. 751).

This reasoning naturally only holds true in relation to a convicted offender. It is not at all applicable to someone who has yet to be convicted. How, then, is this reasoning of Justice Agranat to be reconciled with his view that the President has power to pardon before conviction? Such power would necessitate a different rationalization, of the kind that is not to be found either in A. v. The Law Council or in Matana.

The second implication (of holding a judicial statement to be obiter) is that much significance may nevertheless attach to obiter dicta. If these flow directly from a coherent basic perception, they are capable of heralding accurately the reasons for a decision in the future. As a result these dicta create public expectations which are frequently acted upon. The resulting practice may in turn contribute in the course of time to the adoption of a construction that is in keeping with the original dictum, the expectations thus fulfilling themselves. All of this, of course, will fail to be decisive if a later court holds the dictum to be wrong. But it will all be of great importance if the later court should hesitate between two possible constructions. It is true that as between truth and stability, we should prefer truth, yet sometimes when truth and truth vie with each other - stability is to be preferred (see Of Ha-Emek Cooperative Society v. Ramat Yishai Local Council [32]). These considerations do not apply in the case before us for several reasons. First, because the dicta of Justices Agranat and Berinson were not a necessary concomitant of their basic perspective, and with regard to Justice Agranat I have sought to show that he did not perceive the Anglo-American method of pardon as the "prototype" for our own, but that his underlying approach was to give the expression "pardon" its universal meaning. By such universal standards, the dictum that the State President has the power to pardon before conviction certainly cannot be said to have any compelling foundation. A second reason for not following this dictum is that no constitutional practice actually evolved in its wake. In fact, the contrary appears to be the case, for, by internal directive, requests for a pardon have generally not been acceded to before conviction. In argument before us only a very small number of cases of pardon before conviction could be cited. It seems that the dictum created no expectations which could influence our interpretation.

It accordingly transpires that the question of the presidential power to pardon before conviction has remained essentially unanswered, and we are now called upon to resolve it for the first time. So far the question has been the subject of passing judicial statements, legal articles and jurists' opinions. It is now the time for this court to have its say.

39. My colleague, President Shamgar, relying on the statements of Agranat D.P. in the Matana rehearing, holds that constitutional provisions should be given an expansive interpretation. This is an important determination, since Shamgar P. seeks to give the presidential power of pardon a wide construction. I have two comments in this regard.

First, Justice Agranat's starting point (in the Matana rehearing) was that constitutional directives did not necessarily require a restrictive interpretation, but called for a "spacious view" to be taken. I agree with that approach and it also forms the basis of my own judgment here. In my opinion, however, it does not follow that every directive of constitutional content should be expansively construed. That is unfeasible, since constitutional directives deal in the nature of things with the reciprocal relations between the State authorities, and the occasional expansive construction of a particular authority's powers necessarily entails a narrowing of those of some other authority. Furthermore, an expansive interpretation of a governmental power may often entail a narrowing of basic rights, which too is an inconceivable result. In fact, the question whether the construction should be expansive or restrictive does not determine the mode of interpretation, but is itself the interpretative outcome. Thus Justice Agranat himself held that the presidential power of pardon did not extend to a general amnesty, this conclusion being the result of a narrow construction of the pardoning power. The constitutional proposition, in my opinion, is that constitutional directives must be construed in a manner fitting their preferred standing, and in consonance with their capacity to determine the national pattern of life. A basic provision is not intended to perpetuate an existing situation, but to give direction to human experience. Its construction accordingly calls for a pervasive perception, and not a technical approach.

My second comment is that if called upon to choose between an expansive and a restrictive construction of the presidential pardoning power, I should prefer the latter for several reasons: in the first place, in order to avoid the kind of unwelcome rivalry between the different authorities that I have already described; secondly - and this is the main consideration here - because pardon creates an inequality between "offenders," and a statutory provision relating to pardon must accordingly be given a narrow interpretation. The matter was discussed by Landau J. in Bergman v. Minister of Finance [33], in the following terms (at p. 698):

It is accordingly proper, especially in borderline cases, that where a statutory provision is open to two constructions, we should prefer the construction which upholds the equality of all before the law and does not set it at naught.

This principle has been reiterated by the court on a number of occasions (see Abu Hatzeira v. Attorney-General [35]; Raundanaf (Korn) v. Hakim [36]).

40. Before concluding my remarks on the instant problem, I should state that President Shamgar's basic standpoint that Knesset Members contemplated a particular model of the pardoning power when our own version was enacted, raises many questions in my own mind. Supposing it were to be established that the English or the American model indeed served as the "prototype" for the wording of sec. 6 of the Transition Law, would that require us to construe the provision in accordance with the American tradition? I believe not. A Law, as I have already mentioned, is a creature living within its awn "environment," and the environment of an Israel statute differs from that of an English or American statute, even if they be similarly worded. "The law of a people must be studied in the light of its national way of life" per Agranat J. in "Kol Haam" Ltd. v. Minister of the Interior [37] at p. 884). The judicial discretion in the interpretation of a statute, so Justice Landau has guided us, must be exercised "in order to bring it into harmony with the constitutional regime in existence in the State" (see his abovementioned article in Mishpatim, 1[1969], at p. 306). All does not depend, therefore, on the model or prototype contemplated by the lawgiver when the pardoning provision was enacted and, important though this may be, it is not decisive. We must interpret the law in consonance with our national way of life, and this may change with the passage of time. If so, the interpretation of a Law will undergo a corresponding change. "If times have changed," Justice Sussman wrote, "the Law suffers a sufficiently flexible construction to enable its adaptation to the changes" (see his abovementioned article in Mishpatim 3 [1971], at p. 215). In this regard Agranat J. has commented thus (Kaufman v. Margines [38], at p. 1034):

When the Judge is confronted by a factual situation stemming from new conditions of life rather than those which called forth the existing ruling, it will be the Judge's task to re-examine the logical premise on which the ruling formulated against a different background was based, with a view to adaptation of the same to the new conditions.

This adaptative need applies not only when the facts change, but also when the legal context or "environment" changes. The enactment of new Laws creates a new legal context, and these have the capacity to influence the construction of an earlier statute. It is to be observed that the question is not one of a repeal, expressed or implied, of an earlier Law, but of the effect of the very existence of the new and different Laws on the interpretation of the earlier Law. The point was discussed in State of Israel v Pahima [39], where it was held as follows (at p. 828) :

Sometimes a Law, upon its enactment, presents a number of interpretative options, but with the passage of time arid the enactment of additional Laws on the same subject, some of these options fall away, while others take their place. Apposite here is Justice Sussman's statement that "a term in an enactment is a creature living within its environment" (H.C. 58/58, at 513). This environment includes, besides other directives in that enactment, other statutory enactments which throw light on the interpretation of the Law concerned. It must be observed that here the additional enactments bring about no "legislative" change in the Law, only an "interpretative" change. The new enactments have created a new "environment," which by its very existence influences the manner of interpretation of the Law.

Hence the "prototype" contemplated by the lawgiver when the State was established, for all its importance, cannot in itself determine the contemporary interpretation of the Law. A Law is a dynamic creation, adaptable to changing exigencies. This quality was thus elucidated by Justice Agranat in his abovementioned article (Iyunei Mishpat 10 [1984], at p. 239):

Experience teaches that words have a dynamic life of their own. That is to say, with the changes wrought by time in the conditions of life and the concomitant changes in the different social outlooks, words gradually "shed" their original meaning and "assume" a new significance, or come to harbour additional shades of meaning. This factor may well - though it need not always - bring about a construction of the Law the result of which, although falling within the purview of the Law's general purpose, is not the interpretation contemplated by the lawgiver.

It follows that new legislation (such as, for instance, the Crime Register and Rehabilitation of Offenders Law) enacted after the passing of sec. 6 of the Transition Law and sec. 11(b) of the Basic Law, is able to affect the mode of interpretation of the latter provisions.

(3) The Legislative Authority and its "Acquiescence"

41. The expression "to pardon offenders" was repeated in the Basic Law without change, just as it stood in the Transition Law. From this Shamgar P. infers that the Knesset adopted for itself the construction of the majority as well as the minority opinion of the court, on the question of the pre-conviction pardoning power, in the Matana rehearing. This approach is neither factually nor legally acceptable to me.

42. Factually, the above thesis seems in conflict with the views held by members of the Knesset Constitution, Law and Justice Committee when they discussed sec. 11(b) of the Basic Law prior to its enactment. It appears from the views they expressed, as cited by me above (see par. 11), that they considered the presidential pardoning power to be exercisable after conviction alone. They so understood the words "to pardon offenders," and that was the result they desired. I need only repeat the following statement made by Knesset Member H. Zadok towards the end of the Knesset Committee's discussion of the matter:

It seems to me we have no difference of opinion on the substance of the matter. We intend to empower the President to pardon persons who have been criminally tried and convicted.

Against this background, I do not see how it can be said that the Knesset "rested content" with the pre-conviction pardoning situation as interpreted by the court in the Matana rehearing. The Knesset focused its attention on the problems which inspired the ratio decidendi, and clarified the matter by way of a subsequent amendment to the wording of the Law on the troublesome point then in issue. The Knesset did not address itself at all to the obiter dictum on the matter of pardon before conviction.

43. Legally speaking I am equally unable to accept the aforementioned thesis of Shamgar P. My own approach is that the Knesset legislates only when it actually enacts, and not when it refrains from so doing (see A. Shapira, "The Silence of the Legislature: A Canon of Statutory Construction?," Hapraklit, 21, 293; G. Tedeschi, "Recent Trends in the Theory of 'Stare Decisis'," Hapraklit, 22, 320). The proposition was succinctly stated by Berinson J. as follows (in the Matana rehearing [3], at p. 470):

When have we found that the Legislature is able by silence or inaction to put its seal on a particular course of action of one of the State authorities?

Accordingly, the Knesset's mere repetition in the Basic Law of the wording used in the Transition Law, cannot be said to have put the seal of a binding norm on the above dicta in the Matana rehearing.

(4) Implied Repeal

44. My colleague, President Shamgar; has devoted a considerable part of his judgment to the question of a repeal by implication. In my perception, however, this question fails to arise at all. It is not my view that the powers conferred on the different State authorities (the police, the prosecution, the courts) have repealed by implication the presidential power to pardon before conviction. To have thought so, would necessarily have entailed a recognition of the presidential pardoning power also before conviction. In fact, my approach is that the presidential power of pardon does not avail at all before conviction, so that no question of an implied repeal arises here. In my view, the various Laws dealing with the powers of the different authorities form part of the legal context or "environment," within the framework of which the pardoning power must be construed. These Laws have not implicitly repealed the provisions of sec. 11(b) of the Basic Law, but they do constitute a factor in the interpretation of the Basic Law (see State of Israel v. Pahima [39], at p. 828).

G. On the Rule of Law

45. Before concluding my judgment, I might observe that the petitions before us harbour in the background formal, as well as substantive, questions of the rule of law. In its formal sense the rule of law requires that all persons and bodies in the State - individuals, associations and governmental agencies - act in accordance with the law, and that any act in conflict with the law must be confronted by society's organized sanction. In this sense the rule of law has a twofold meaning: lawful rule and supremacy of the law. This embodies a formal principle, since it is not the content of the law that concerns us here, only the need for it. In this sense the rule of law is unconnected with the nature of the regime, but only with the principle of public order. As far as the executive authority is concerned, the rule of law concerns itself with the legality of the administration. The Executive is subject to the law, and its agencies have no rights, powers or immunities, unless conferred by law. It follows that a State functionary as such holds no greater rights, powers or immunities than does any other person in the State, and is therefore equally answerable for his actions. In this connection I may quote the well-known words of A.V. Dicey:

With us every official, from the Prime Minister down to a constable, or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen (The Law of the Constitution, 10th ed., p. 193).

Consequently, if the Attorney-General be of the opinion that the available material provides prima facie justification for the opening of an investigation concerning very serious offences allegedly committed by members of the executive authority, the rule of law will require that the matter be examined and investigated. That is how we should treat anyone else, and State officials should be treated no differently. Security considerations dictate no contrary result, for there is no security without law, and the rule of law is a component of national security. Security needs dictate that the proper investigative machinery be found, or else the General Security Service will be unable to fulfill its task. The strength of the Service lies in the public confidence it enjoys, in the trust placed in it by the court. If security interests become the paramount consideration, the public as well as the court will lose their trust in the Security Service and in the legality of its operations. Without trust, the State authorities cannot function. That is the case with the public trust in the courts (see Tzaban v. Minister of Religious Affairs [40]), and so it is with the public trust in the other governmental organs .

46. The rule of law carries, in addition to its formal attributes, also a substantive significance, namely: rule of the appropriate law, law which displays a balance between individual and the public needs. The primary implication thereof is the equality principle, equality in the application of the law and its use. The rule of law is negated where there is discrimination between equals. The matter was discussed by this court in Neiman v. Knesset Central Elections Committee [19], where Shamgar P. made these observations (at pp. 261-262):

The rule of law finds its main expression in the fact that it is not the rule of persons - according to their own unfettered decisions, considerations and desires - but is founded upon stable normative directives which are equal for all and bind everyone in equal measure. The manner of definition of a right and even its recital in the Law do not in themselves constitute an effective safeguard, for these do not secure full realization of the right. Rights are practically realized when they are respected by applying them equally in practice, without unjust discrimination. The value and potency of a Law which confers rights lie in the facts that the rights thus conferred do not remain in the realm of an abstract idea, however lofty in spirit and trend, that also the letter of the Law comes down to what is concrete and available, that it is applied according to standards of an equality among equals, from which there be no deviation for improper reasons.

The subjection of one person to an investigation, but not another who is in an equal situation, is an impairment of the rule of law, just as it is to grant one person a pardon but not another in equal circumstances, or to afford one person every opportunity of defending himself and stating his version of events whilst withholding the same benefits from someone else with an equal claim thereto.

47. Historians tells us that Chief Justice Coke, when he was unable to dissuade King James I from asserting authority in the judicial sphere, addressed these memorable words to the King:

Quod rex non debet sub homine, sed sub deo et lege (the King is subject not to men, but to God and the law).

So be it.

The petitions concerning the investigation dismissed by unanimous opinion; the petitions concerning the pardons dismissed by majority opinion. The orders discharged.

Judgment given on 6 August 1986.

* In Hebrew - haninah, חנינה-Translator's note

Full opinion:

Barzilai v. Government of Israel.pdf

Attorney General v. Weigel

Case/docket number:

FH 5/63

Date Decided:

Thursday, October 31, 1963

Decision Type:

Original

Topics:

Breach of statutory duty

Abstract:

The respondent was convicted at first instance of being a procurer under section 1(b) of the Penal Law Amendment (Prostitution Offences) Law, 1962, but owing to the special circumstances of the case he was not given a prison sentence but put on probation. An appeal to the Supreme Court having failed, the Attorney-General applied for a Further Hearing* regarding the construction of the said section 10 in the light of section 3 (2) of the Probation of Offenders Ordinance, 1944. The sole issue was whether a person convicted under the Law must be sentenced to imprisonment or may instead be put on probation.

Held by a majority (1) An "offence punishable by imprisonment or fine" to which the Probation Ordinance applies is descriptive of the kind of offence for which probation is available. Such an offence does not cease to be of that kind if the penalty is expressly mandatory. "Punishable" is not restrictive so as to exclude a mandatory penalty.

(2) A section of the Law under which "a penalty of imprisonment shall be imposed" is intended (upon sentencing) to exclude a penalty as the sole penalty which is not imprisonment. Probation as such is not a penalty and therefore falls outside the ambit of the section.

(3) To oust existing sentencing powers and restrict the rights of the individual, particularly in criminal matters, express statutory provision is necessary. Section 10 contains such an express provision as regards conditional imprisonment but not as regards probation.

(4) Probation is a method of treatment alternative to imprisonment, intended to assist in the rehabilitation of offenders. Ever since its introduction it has not conflicted with but complemented imprisonment

(5) The cases of prostitution offences in which the courts will direct probation rather than impose imprisonment are very rare. Indeed it would defeat section 10, if they did so to any appreciable extent.

* Under section 8 of the Courts Law, 1957, a Further Hearing by five or more judges of the Supreme Court will be granted "in view of the importance, difficulty, or novelty" of a ruling of the Supreme Court sitting with three judges.

Voting Justices:

Berinson, Zvi

Primary Author

majority opinion

HaLevy, Binyamin

Author

concurrence

Manny, Eliyahu

majority opinion

Cohn, Haim Herman

Author

dissent

Olshan, Yitzhak

Author

dissent

Full text of the opinion:

F.H. 5/63

ATTORNEY-GENERAL

DANI WEIGEL

In the Supreme Court sitting as a Court of Criminal Appeal

[October 31, 1963]

Before Olshan P., Berinson J., Cohn J., Manny J. and Halevi J.

Construction of statute - prostitution offences - mandatory imprisonment - exclusion of probation - Penal Law Amendment (Prostitution Offences) Law, 1962, sec. 10-Probation of Offenders Ordinance, 1944, sec. 3 (2).

Israel cases referred to:

(1) Cr.A. 69/63-Attorney-General v.Dani Weigel (1963) 17 P.D. 712.

(2) Cr.A. 26/55-Rahel and Yaakov Shakraji v. Attorney-General (1955) 9 P.D. 378.

(3) Cr.A. 44/52-Kassem Hasin Diab v. Attorney-General (1952) 6 P.D. 922.

(4) H. C. 186/62- B. Veider v. Minister of the lnterior and others (1962) 16 P.D. 1547.

(5) Cr.A. 38/61-Moshe ben David Yitzhak v. Attorney-General (1962) 16 P.D. 514.

(6) Cr.A. 155/59-Yaakov Darai v. Attorney-General (1960) 16 P.D. 233.

(7) Cr.A. 24/55-Attorney-General v. Barukh Salmander and others (1954) 8 P.D. 474.

(8) Cr.A. 558/62-Morris Rabo v. Attorney-General (1963) 17 P.D. 162.

(9) Cr.A.-234/53 Tel Aviv-Yafo Attorney-General v. Avraham ben Yitzhak HaGoel (1955) 11 P.M. 84.

English case referred to:

(10) R. v. Parry and others (1952) 2 All E.R. 1179.

Z. Bar-Niv, State Attorney, for the appellant.

B. Shagia for the respondent.

OLSHAN P. The sole issue before us is the construction of section 10 of the Penal Law Amendment (Prostitution Offences) Law, 1962, in the light of section 3 (2) of the Probation of Offenders Ordinance, 1944 (hereinafter referred to as "the Ordinance").

Sections 1 and 3 of the said Law define various prostitution offences and prescribe the penalties therefor by the following formulae:

"Shall be liable to imprisonment for a term of five years" (sections 1, 2 and 5);

"shall be liable to imprisonment for a term of three (five) years"

(section 9);

"shall be liable to imprisonment for a term of seven years" (section 3).

Then comes section 10 which provides:

"Where a person has been convicted of an offence under section 1, 2 or 3 of this Law, a penalty of imprisonment shall be imposed upon him, either as the sole penalty or in conjunction with another penalty, but conditional imprisonment shall not be imposed upon him."

In Attorney-General v Weigel (1), the subject of the present hearing, a majority of the judges were of the opinion that section 10 does not prevent the court from applying section 3 (2) of the Ordinance which generally speaking empowers the court, in the event of a person being punishable with imprisonment or fine, to make a probation order instead of sentencing him. Relying on the phrase "shall be imposed" in section 10, the judge in the minority had no doubt that the section places a duty on the court to impose a sentence of imprisonment, either as a sole penalty or in conjunction with another penalty, and that the court is commanded by the legislature, where a person is convicted under section 1, 2 or 3, to impose a penalty and may not let him go free without any penalty, that is to say, that it is impossible to put him on probation in place of imposing a penalty.

According to the interpretation given by the majority therefore the court must first consider in the light of section 3 (2) of the Ordinance whether or not any penalty is to be imposed and only if it thinks that a penalty should be imposed must it be imprisonment. The minority view was that where a person is convicted of a prostitution offence under section 1, 2 or 3 the court is not free to consider whether or not to impose a penalty but is commanded to impose the penalty of imprisonment.

After hearing counsel representing the parties, I have reached the conclusion that the law is with the minority judge. The submissions of Mr. Bar-Niv, the State Attorney, appeal to me for the following reasons.

(1) The words "shall be imposed" appear to me to be in the imperative mood. A distinction must here be made between "imprisonment shall be imposed" and "shall be liable to imprisonment"; in all the sections of the Criminal Code Ordinance, 1936, the penalty-fixing formula is "is liable to" and only in one section "shall be sentenced" (cf. sections 49, 50, 213 and many others together with section 215 before amendment). Ever since the establishment of the State, whenever the first above formula was intended the legislature employed the words "shall be liable to imprisonment" and whenever the second was intended it used the words "the court shall impose" or "shall be imposed".

Where "is liable to" occurs, the convicted person may be punished with imprisonment and the question of its length will only arise when the court comes to the conclusion that a probation order should not be made in place of imposing a sentence. Were the majority's interpretation of section 10 to be accepted, the legislature would not have needed to use the words "shall be imposed" and it could have adopted the formula "he shall be liable...". Section 10 would also then have been unnecessary.

Having found it proper to use the "shall be imposed" formula in section 10 instead of the "shall be liable" formula in section 1, 2 and 3 of the Law, then - and this is a canon of interpretation - the legislature is not to be assumed to have done so inadvertently. According to the interpretation proposed (by the respondent) we must ignore the words "shall be imposed" and read in place thereof "shall be liable".

(2) According to that interpretation also, the opening words "Where a person has been convicted..." must be read as if they said something like "Where a penalty has been imposed under section 1,2 or 3, the penalty shall be imprisonment... but conditional imprisonment shall not be imposed". But significance attaches to the words "Where a person has been convicted". They instruct the court what to do with the defendant after conviction, that is, after conviction a penalty is to be imposed and he is not to be allowed to go free without penalty. We are not at liberty to ignore the legislature's formula and replace it with another consistent with the said interpretation.

(3) Why the legislature found it right to add the words "but conditional imprisonment shall not be imposed" but not also "no probation order shall be made", the answer, it seems to me, is that the purpose of the section is to prescribe the obligatory nature of the penalty from among the various penalties found in our law, such as fines, conditional imprisonment and others. It was necessary to exclude conditional imprisonment expressly because according to Shakraji v Attorney-General (2) imprisonment by itself includes conditional imprisonment. Had the legislature not excluded conditional imprisonment a court could comply with section 10 by imposing the latter-a course not welcome to the legislature. On the other hand, a probation order is not a penalty; section 3 (2) of the Ordinance says that "the court may, in lieu of sentencing him, make a probation order". Hence, the court being bound to impose the penalty of imprisonment, it was not essential to mention the Ordinance which enables relief from penalty.

(4) Purposively there is no great difference between a probation order after conviction and conditional imprisonment. The object of a probation order was explained in the judgment of my honourable friend, Berinson J., in Weigel (1) at 719, and I have nothing to add. It seems to me that the imposition of conditional imprisonment is also founded on the belief that if the defendant is given the opportunity, he will mend his ways and refrain from his law-breaking. Upon the enactment of the Penal Law Amendment (Modes of Punishment) (Amendment No. 5) Law, 1963, the identity of the two drew even closer (apart from supervision by a probation officer). Section 7 (4) (b) and (5) (b) provide that if a probationer is convicted of another offence during the period of probation the court may sentence him for the offence for which he was placed on probation. That means that exemption from penalty and placing on probation are subject to the possibility of being sentenced for the first offence, if a breach of the probation order occurs or another offence is committed during probation. According to sections 18D and 18F added in 1963, when a further offence is committed, the court is not bound to activate the conditional imprisonment but may extend it for an additional period. In activating the conditional imprisonment, the court may also order that the sentences be concurrent. Conditional imprisonment is thus directed to those instances where there is a belief or expectation that its imposition instead of actual imprisonment will help the defendant to mend his ways. That belief and expectation exist when a probation order is made. I do not however say that this identity of purpose should be decisive in interpreting section 10. If it is clear from this section that the legislature directed the court to impose a term of imprisonment upon an offender convicted under sections 1, 2 and 3, since in spite of its high purpose, the imposition of conditional imprisonment has, on any view, also been forbidden by the legislature.

(5) In association with the opening words "Where a person has been convicted", the marginal heading to section 10, "Mandatory imprisonment", means that once convicted of an offence under sections 1, 2 or 3, an obligation arises to impose imprisonment. In general, where the section of a statute is clear, there is no need to refer to the marginal heading; only those who plead that the meaning is obscure will need to do so. In my judgment no such necessity occurs here, but if it does, it supports the conclusion drawn by the minority judge. The question which arises in connection with this submission is the extent to which the marginal heading is part of the law. In Diab v. Attorney-General (3) Silberg J. indicated (at 926 and 928) the difference that exists in this regard between England and ourselves. It has long been normal in England to embellish a statute with headings and marginal headings after it has been adopted by the legislature. Silberg J. held, after comparing Mandatory legislation, that "there is nothing to prevent us from obtaining 'interpretative inspiration' from the headings". He said

"We see therefore that everything revolves round the cardinal question whether these headings and 'embellishments' have or have not been brought to the attention of and approved by the legislature, whether they have or have not received official approval. The traditional English view is that for Parliament there is only the archaic statutory roll which leads the reader on without name or description, without marginal headings and punctuation, and anything which it does not or need not include is not part of the statute, a kind of incidental nugatory addition by 'irresponsible' people who have no hand in the law-making of the legislature".

The question is therefore what is the situation with regard to Israeli legislation. When a bill is presented to the Knesset, it includes marginal headings. That may be seen from the copies before the Knesset at the second and third readings... . In the bill of the Law so presented, section 10 had the marginal heading "No penalty of a fine alone" and the words "but conditional imprisonment shall not be imposed upon him" did not appear in the body of the section. During the debate the Minister of Justice mentioned that there were lighter penalties as well as probation orders and he proposed that the section be deleted. Others objected to deletion and suggested that the above words should be added and their suggestion was accepted. The Law as adopted and then published contained section 10 in its present form. If the Law in the second and third reading contained marginal headings, it is to be assumed that the value of the heading we are concerned with was the same as that of the others. I do not need to lay down any hard and fast rule as to whether or not the marginal headings are part of the Law since there are decisions on the question in respect of Israeli legislation. In Voider v. Minister of the Interior (4) it was said (at 1551) that

"There is no need to deal with the question whether or not marginal headings are part of the Law, since in any event no authority was cited to show that even if they are not, some bar exists against taking them into account when considering the object of the section in connection with its interpretation."

In Yitzhak v. Attorney-General (5) the court said (at 523) that

"Although possibly sometimes - when the language is not plain enough and ambiguous - headings may help, it is quite a different matter to base on them an additional offence having no connection at all with the clear definition given in the body of the section."

It seems to me that here the marginal heading certainly does not help respondent's counsel in his endeavour to replace "shall be imposed" with "shall be liable", or to introduce before "shall be imposed upon him" the words "upon being sentenced".

In Darai v. Attorney-General (6) the appellant was convicted of an attempt to unlawfully cause the death of a person under section 222 of the Criminal Code Ordinance, 1936. Counsel argued that the prosecution must prove "malice aforethought" as in murder and he relied upon the marginal heading "Attempt to murder". That is, he tried to read into the section the element of "malice aforethought" in view of the word "murder" in the heading. He did not succeed. In the case before us indeed the marginal heading is at one with the provisions of the section and not in conflict. Hence words which do not appear therein are not to be introduced.

(6) The Law relating to assaults on policemen, where a minimum term of imprisonment is also provided, has been cited at length. In Attorney-General v. Salmander (7) this Court decided that that Law is lex specialis and its provisions set aside, implicitly if not expressly, the general provisions contained in the Criminal Code Ordinance, 1936, in as far as the two sets of provisions are inconsistent. (The problem there was whether it is possible to impose on an offender convicted under the said Law a fine according to section 42 (1a) or a recognizance to keep the peace according to section 45 of the Criminal Code Ordinance.) It appears to me that the Probation of Offenders Ordinance, 1944, also contains general provisions whilst the Law concerning prostitution is lex specialis. The former was enacted at a time when there were no laws prescribing "mandatory imprisonment". Accordingly, upon the enactment of a special Law on prostitution, section 3 (2) of the said Ordinance must be read subject to this special Law. If it patently emerges from the wording of section 10, in the context of the other sections, that upon a conviction for prostitution the offender receives mandatorily a prison sentence, it cannot be argued that the section must be treated as containing something which it does not contain, only because the legislature did not expressly exclude the application of section 3 (2) of the Probation Ordinance, particularly when this special Law deals with the imposition of penalties whereas the Ordinance deals with probation which is not a penalty.

In Salmander (7) this Court held that the minimum imprisonment prescribed is a penalty which cannot be reduced, that is, it is mandatory, notwithstanding the use of "shall be liable" (and not "shall be imposed"). The meaning of "shall be liable" in the Law there is that an offender may be punished by imprisonment up to the prescribed maximum but must be punished with the minimum term of imprisonment.

In view of the decision in Salmander we must say, and we may not ignore the fact, that the question whether the offender may be held free of all penalty and be put on probation according to the Ordinance was not raised in this appeal. Relying on Attorney-General v. HaGoel (9) - that the provisions of the Law relating to assaults on policemen do not prevent making a probation order instead of imposing a penalty - one may say that "shall be liable" to a minimum term of imprisonment (as obligatory) becomes operative only after the court takes the view that a probation order is not to be made in place of imposing a penalty, since this Law does not employ the language of section 10 ("Where a person has been convicted... shall be imposed"). There is no need to take up any position on the merits of the argument itself.

(7) Section 1 of the Penal Law Revision (Abolition of the Death Penalty for Murder) Law, 1954, abolishes the death penalty for murder and provides that "Where a person has been convicted of murder, the court shall impose the penalty of imprisonment for life, and only that penalty". Here everyone, other than respondent's counsel who must differ if he is to be consistent, agrees that the possibility of making a probation order instead of imposing the penalty is excluded. The argument here is, however, that that is because of the addition of "and only that penalty". This argument, it seems to me, is groundless. If a probation order is not a penalty, then the words cited do not form a provision excluding probation as an alternative to imposing the penalty. Consistently with the suggested interpretation of section 10, this section would also have to be read as if providing "Where a person has been convicted of murder, and the court is of the opinion that he is not to be exempted from penalty and put on probation, the court shall impose the penalty of imprisonment for life, and only that penalty". That is, if a penalty is imposed it must only be life imprisonment. It follows that there is no connection between the words added and the prohibition against making a probation order. The prohibition stems from the words "Where a person has been convicted... the court shall impose", which is similar to the language used by the legislature in section 10, and not from the words "and only that penalty". If the fact that probation has no place in murder is not disputed, then I see no justification for adopting a different interpretation in section 10.

(8) As I have said, "shall be liable" is generally used by the Israeli legislature in place of the Mandatory "is liable" and "shall be imposed upon him" in place of "shall be sentenced". That there is a difference in meaning between the two phrases used by the Israeli legislature is not to be disputed, and I have not heard of any other meaning attributed to "shall be imposed upon him" to distinguish it from "shall be liable". Prostitution offences were specified in many of the sections of the Criminal Code Ordinance, 1936. In treating some of these offences with particular stringency because they are increasingly plaguing the country, the legislature repealed the sections of the Criminal Code Ordinance, 1936, and replaced them with the Law in question, as lex specialis. In this Law section 10 is devoted to the offences mentioned in sections 1, 2 and 3. Although the penalties for offences under sections 5. 6 and 9 were increased the normal course was followed and words of command or mandate were not employed. With regard to these latter offences nothing was said limiting the discretion of the court in choosing the penalty or even in making a probation order. The intention of the legislature, it seems to me, is thus clear. What is involved is the principle of strict construction in favour of the offender, and this principle is not impaired since any other interpretation of section 10 is artificial and cannot be sustained without introducing words which the section does not contain.

(9) Assuming that after enacting the Probation of Offenders Ordinance the Mandatory legislator had amended section 215 of the Criminal Code Ordinance by providing that "upon conviction shall be sentenced to imprisonment for life", in my judgment there would have been no room for the argument that a probation order could be made instead of life imprisonment. The Probation Ordinance is not a "constitutional" law in the light of which all other law is reviewed. That being so, the two Laws must be reconciled, having their respective legislative intent in mind. Plainly, the 1944 Probation Ordinance does not embrace any intention to give section 3 (2) an entrenched position for the future. Had that been the intention, it would have been wholly invalid from the viewpoint of constitutional law. It is therefore to be understood that as regards the future the intention of the Ordinance was that use of section 3 (2) is subject to every new Law which can expressly repeal it or restrict its thrust with regard to some particular offence by prescribing that when an offender is convicted thereof he is to be sentenced by imposing the penalty of imprisonment. But such an intention would have to be clearly expressed in the new Law. Thus we return to the meaning of section 10 which appears to me to be so clear that we may not say to the legislature that, although the meaning is clear, we will ignore the clear intention simply because it did not expressly state that section 3 (2) of the Probation Ordinance is not to apply. To that the legislature would say that the presumption is that it was aware of section 3 (2) of the Ordinance and the failure to mention the necessary words - rightly or not, and as I have said above I think rightly - is not a ground justifying disregard of the clear meaning of section 10.

The many reasons for rejecting the suggested interpretation of section 10 are not evidence that it is not clear or is ambiguous. The many reasons are the consequence of the many arguments advanced which in themselves do not prove that the intention of the legislature is not plain.

In my judgment the appeal should be granted and imprisonment imposed upon the respondent.

BERINSON J. In the previous hearing of this matter we heard exhaustive arguments from the Deputy State Attorney, Mr. Bach, and the late Mr. Toussia-Cohen on the main issue, the interpretation of section 10 of the Penal Law Amendment (Prostitution Offences) Law, 1962, and its relation to section 3 (2) of the Probation of Offenders Ordinance, 1944. The majority and minority judgments appear to me not to have passed over any point worthy of attention, In this Further Hearing the State Attorney appeared and repeated in fact these arguments but more expansively and with the coherence normally characteristic of him. I have no intention of depreciating the value of his submissions by saying briefly that I have found nothing to move me to change my previous view which I explained at length in the earlier hearing. I shall therefore confine myself to a number of brief observations.

In this Further Hearing the question is whether section 10 of the Prostitution Offences Law can stand alongside section 3 (2) of the Probation of Offenders Ordinance, 1944, so that the provisions of the latter are applicable notwithstanding section 10, or whether section 10 ousts the application of section 3 (2). The question turns on the meaning to be given to "offence punishable with imprisonment" in section 3 (2). The view has been voiced that "punishable" refers only to offences for which the court may impose imprisonment and not to offences for which imprisonment is mandatory. I cannot agree to this interpretation. In my opinion, the phrase involved describes a group of offences in respect of which a probation order may be made instead of imposing a penalty (imprisonment or fine) and it is immaterial how the court comes to impose the penalty on the offender, whether permissively or mandatorily. An "offence punishable with imprisonment" does not cease to be such when the imprisonment is mandatory.

The President says that had it not been the intention of the legislature to direct the court to impose a penalty, and precisely the penalty of imprisonment, for prostitution offences under sections 1- 3 of the Law to deny the possibility of making a probation order in place of imposing a penalty, it would not have adopted the imperative mood in section 10, "shall be imposed", and generally there would have been no need for this special section since it had already prescribed for the specific offences the maximum penalty of imprisonment by the terms "shall be liable to imprisonment". I have another explanation. Section 10 is not superfluous in the least because it is intended to limit the kinds of penalties which a court is empowered to impose for prostitution offences. When it imposes a penalty, it must impose the penalty of imprisonment (whether or not in conjunction with another penalty) but no other penalty can serve as a substitute to imprisonment. That, in my opinion, is the meaning of the mandatory imprisonment in section 10. It does not, however, negative the alternative of putting the offender on probation which is not a penalty and may replace it.

The State Attorney persists in arguing that if section 10 of the Prostitution Offences Law does not entirely exclude the possibility of making a probation order, then the same rule should apply also to murder with regard to which the legislature employs exactly the same terms in directing in section 1 of the Penal Law Revision (Abolition of the Death Penalty for Murder) Law, 1954, that where a person has been convicted of murder the court shall impose life imprisonment and that alone. The terms of this Law indeed make it difficult psychologically to accept the view that I have propounded, although an important difference exists between the two Laws. In the first, the penalty is mandatory imprisonment (with or without some other penalty) but the court is completely free to fix the term of imprisonment /is no other penalty. If, however, it is said that this important difference is not determinative for the question before us, then, there being no option, I would not hold back from saying that both should be treated alike and in both a probation order may be made instead of imposing imprisonment. Until the adoption of the Law abolishing the death penalty for murder no difficulty occurred. When the Probation of Offenders Ordinance was enacted in 1944, it was clear that it did not apply to murder. At that time and until its abolition in 1954, death was the only penalty for murder and the Ordinance did not apply because it only covered offences for which the penalty was imprisonment or fine. When the Knesset abolished the death penalty and replaced it with life imprisonment but did not say anything about probation, murder also became "an offence and punishable with imprisonment" within the meaning of section 3 (2) of the Ordinance. It is difficult to imagine a case in which the court would in fact exercise this power but theoretically it is available as it then was in the case of manslaughter the penalty for which was life imprisonment, and today as well when it is a term of 20 years' imprisonment.

In my earlier judgment I explained the view why it cannot be contemplated that by adopting section 10 of the Prostitution Offences Law the legislature intended to avoid indirectly the possibility of placing a person upon probation instead of sentencing him to imprisonment, and I do not need to go over that again. Had the Knesset so desired it would have needed to say so expressly, as it did regarding the non-imposition of a conditional sentence in place of actual imprisonment.

My view remains as it was and in my judgment the Further Hearing should be dismissed and the majority opinion of the previous hearing upheld.

HALEVI J. The question before us is the relationship between section 10 of the Penal Law Amendment (Prostitution Offences) Law, 1962 (hereinafter referred to as "the Prostitution Offences Law") and section 3 (2) of the Probation of Offenders Ordinance, 1944 (hereinafter called "the Probation Ordinance"). Are these two enactments compatible? And if not, which takes precedence?

Sections 1, 2, 3, 5, 6 and 9 of the Prostitution Offences Law define various offences and prescribe for each the maximum penalty which an offender may receive by the formula "shall be liable". Regarding offences under sections 1-3 the legislature goes on to prescribe by section 10, that "where a person is convicted... a penalty of imprisonment shall be imposed..., either as the sole penalty or in conjunction with another penalty, but conditional imprisonment shall not be imposed". The meaning of this provision - and in this regard I join in the view of the President and Cohn J. without hesitation - is that mandatory imprisonment is laid down for the offences mentioned.

On the other hand section 3 (2) of the Probation Ordinance provides that "where any person is convicted... upon information of an offence punishable with imprisonment or fine, and the court is of the opinion that, having regard to the circumstances, including the character, the antecedents, age, home surroundings, health or mental condition of the offender, the nature of the offence and any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, the court may, in lieu of sentencing him, make a probation order".

In view of these two sections, the question arises of the relationship between section 10, imposing mandatory imprisonment, and section 3, empowering the court to release an offender on probation instead of sentencing him to prison. Can the two sections exist side by side or are they conflicting? And if they are conflicting, which takes precedence? Opinions are divided and each has some foundation.

One view is that neither affects the other since they concern different things - "a penalty" and "probation" which is not a penalty. Section 10 prescribes "mandatory imprisonment" as the penalty for any person convicted of an offence under section 1 or 2 or 3 of the Prostitution Offences Law, thus restricting the judge's discretion in choosing between different penalties - imprisonment, conditional imprisonment or fine - when sentencing the offender. Section 3 (2) on the other hand does not affect the content of the sentence and the kind of penalty which is to be imposed. It allows the judge in given circumstances to refrain from sentencing and instead make a probation order. According to this outlook there is no conflict between the two sections, but if any substantial inconsistency does exist, section 3 (2) of the Probation Ordinance prevails.

Another view urges that section 10 of the Prostitution Offences Law contradicts and sets aside section 3 (2) of the Probation Ordinance. The provision in section 10 that "where a person has been convicted...a penalty of imprisonment shall be imposed" obliges the judge convicting the defendant to impose a penalty and that penalty has to be imprisonment. The judge will not be doing his duty if he exercises his normal power under section 3 (2) of the Probation Ordinance "to release the offender on probation... in lieu of sentencing him". The duty to impose imprisonment upon any one convicted of one of the offences referred to in section 10 deprives the judge of the power to put the offender on probation. Inevitably, according to this view, in the conflict between section 10 of the Prostitution Offences Law and section 3 (2) of the Probation Ordinance section 10 prevails.

The matter is therefore open to debate but upon consideration the first view seems to me to be preferable to the second. My reasons are as follows.

The Prostitution Offences Law is to be read and understood against the background of the Penal Law Revision (Modes of Punishment) Law, 1954. Section 1 of that Law provides that

"A court which has convicted a person of an offence may impose on him any penalty not exceeding the penalty prescribed by law for that offence".

Section 10 provides that

"Where the law prescribes imprisonment and does not prescribe a fine, the court may -

...

(3)...impose imprisonment as prescribed or a fine not exceeding IL 5,000 or both such penalties; provided that where the law makes imprisonment obligatory or prescribes a minimum period of imprisonment, imprisonment shall not be replaced by a fine".

Section 18 before amendment in 1963 provided that

"(a) Where the court may impose a penalty of imprisonment, it may, in lieu thereof, impose conditional imprisonment".

And after amendment, that

"(a) Where the court imposes a penalty of imprisonment, it may, in the sentence, direct that whole or part of such penalty shall be conditional"

Section 25 as amended provides that

"The court which has convicted a person may, in addition to the penalty imposed, order the person sentenced to bind himself by recognizance to abstain from an offence for such period not exceeding three years as the court may prescribe".

These sections taken together prescribe the great rule as to modes of punishment in Israel, that every penalty prescribed by any criminal law is a maximum penalty and that the legislature entrusts to the judge the task to prescribe in his discretion the penalty appropriate to each case both as regards the kind of penalty and as regards its extent, as appears to him to be right and proper. Section 10 of the Prostitution Offences Law makes an exception from this general rule. Apart from this section, a court convicting someone under section 1, 2 or 3 of the Law might, in view of the sections of the Modes of Punishment Law set out above, impose a penalty of imprisonment as prescribed in the section dealing with the offence in question or conditional imprisonment or a fine of up to IL 5,000 or a combination of such penalties with or without recognizance. But then section 10 comes along and provides that

The effect and significance of section 10 is to restrict the judge's freedom of choice as between the kinds of penalties mentioned in the Modes of Punishment Law to imprisonment with or without "another penalty" such as fine or recognizance (and according to Rabo v. Attorney-General (8), also conditional imprisonment). The sole penalty prescribed by section 10 is (unconditional) imprisonment for the offences in question and in this sense the marginal heading that sums up the section, "Mandatory imprisonment", is correct.

As for the wording of section 10 - "Where a person is convicted of an offence... imprisonment shall be imposed upon him" - it is proper to notice the similar wording of section 1 of the Modes of Punishment Law - "A court which has convicted a person of an offence may impose on him any penalty" (Cf. also section 10 of this Law - "Where the law prescribes imprisonment ... the court may impose"). This parallelism to my mind strengthens the view I have taken that section 10 of the Prostitution Offences Law is to be read in the light of sections 1, 10 and 18 of the Modes of Punishment Law. In order to depart from the maximum-penalty rule laid down in the Modes of Punishment Law (sections 1 and 10) section 10 of the Prostitution Offences Law says that "Where a person has been convicted of an offence... a penalty of imprisonment shall be imposed upon him, either as the sole penalty or in conjunction with another penalty". In order to exclude section 18 of the Modes of Punishment Law in its original version, section 10 employs the same terms but adds "but conditional imprisonment shall not be imposed upon him". The phrase "Mandatory imprisonment" in the margin to section 10 repeats also the language of the end part of section 10 of the Modes of Punishment Law, that "where the law makes imprisonment obligatory... imprisonment shall not be replaced by a fine".

It seems to me that the main purpose of section 10 is merely to exclude the offences mentioned therein from the provisions of the Modes of Punishment Law which give the court freedom of choosing between kinds of punishment in its discretion. Section 10 varies the normal "modes of punishment" by prescribing "mandatory imprisonment" for given offences. But it does not deal with or affect the placing of offenders on probation. As my honourable friend, Berinson J., said, probation is an "alternative" to penalty, a point stressed in section 3 (2) by the words "in lieu of sentencing him". According to that section, the judge must before making the probation order explain its meaning to the offender and inter alia that "if he fails... to comply therewith or commits another offence, he will be liable to be sentenced for the original offence". When sentence is pronounced for the original offence (in the event of a breach of the probation order etc.) section 10 of the Prostitution Offences Law will apply and imprisonment will be imposed. Section 10 does not set aside the provisions of the Probation Ordinance nor compel the judge to give a sentence since section 3 (2) of the Ordinance empowers him to abstain from doing so and to put the offender on probation. Section 10 lays down provisions binding as regards the content of the sentence but not as regards to the circumstances in which it is or is not to be given according to an enactment not referred to therein.

Section 3 (2) of the Probation Ordinance applies to every offence "punishable with imprisonment or fine". It cannot be argued that these words are confined to an offence for which just"imprisonment or fine" are prescribed, excluding mandatory imprisonment. The meaning is undoubtedly "an offence punishable by imprisonment or an offence punishable by fine". The word "punishable" also does not restrict one to a penalty which is not "mandatory". Section 3 (2) of the Probation Ordinance was copied with some small variations from section 1 (2) of the (English) Probation of Offenders Act. 1907. which provides inter alia that

"Where any person has been convicted on indictment of any offence punishable with imprisonment. ... the court may, in lieu of imposing a sentence of imprisonment, make an order etc.".

Until the enactment of the Criminal Justice Act, 1948 (which replaced the 1907 Act) there was no general statute in England which enabled all the courts to impose a fine instead of imprisonment for commission of a felony. Section 13 of the Criminal Justice Act provides that

"Any court before which an offender is convicted on indictment of felony (not being a felony the sentence for which is fixed by law) shall have power to fine the offender in lieu of or in addition to dealing with him in any other manner in which the court has power to deal with him".

In R. v. Parry (10) Lord Goddard C.J. (at 1180) explained the history of section 13 as follows.

"The history of that section and the reason for importing it into the Criminal Justice Act, 1948, is well known. There were certain felonies, principally those under the Larceny Act, 1916, in which a court of summary jurisdiction had power to fine. That was because it was considered desirable in the case of petty thefts that a court should be able to fine the offender and not send him to prison, but in cases which came before a court of assize or quarter sessions on indictment there was no power to fine until this Act of 1948, except in the case of manslaughter. The reason for that was that the offence of manslaughter varies enormously in seriousness according to the circumstances in which it is committed. Over and over again judges have had to deal at assizes with an offence which technically was a felony, where they would have been glad to have imposed a fine had there been power to do so. The court was often left in the position that it had either to send a person of hitherto good character to prison for a comparatively small offence or else bind him over, which was to inflict no punishment. That is the reason why Parliament by the Act of 1948 gave to courts trying cases on indictment the same powers as courts of summary jurisdiction formerly had in certain cases and now have in all cases of felony, i.e., the power of imposing a fine instead of sending to prison."

Thus until 1948 the penalty for most felons in England was "mandatory imprisonment" in the sense of the last part of section 10 of the Modes of Punishment Law and section 10 of the Prostitution Offences Law. Nevertheless the English courts were never denied the power to release a person convicted of any offence apart from murder by binding him over, with or without sureties, to come up for judgment, a course which served as an alternative to sentencing him and imposing mandatory imprisonment. (See the judgment of Lord Goddard in the case cited above and Archbold, Pleading, Evidence and Practice in Criminal Cases, 35th ed., paragraph 722.) Another alternative to sentencing was introduced by section 1(2) of the Probation of Offenders Act, 1907 (mentioned above) which empowered the courts to release on probation any person convicted of an offence "punishable with imprisonment", other than those for which the penalty was death. In view of the statutory situation in England until 1948, "punishable with imprisonment" in section 1 (2) of the Probation of Offenders Act, 1907 (which served as the pattern for drafting of section 3 (2) of the 1944 Probation of Offenders Ordinance) included also, and mainly, offences for which imprisonment was mandatory. The intention of the English legislature was to give the courts a new alternative (far more important than the old one of binding over) to imposing mandatory imprisonment on an offender who seemed to merit and be suitable for probation. Throughout the subsistence of the original English Probation Act (from 1907 until 1948) there existed therefore side by side "mandatory imprisonment" and "probation" applicable to the same offences, and not only were they not in conflict but complementary, serving as the legislature had intended, as alternative methods for the courts. There is no reason for attributing a different relationship between mandatory imprisonment under section 10 of the Prostitution Offences Law and probation under section 3 (2) of the Probation Ordinance.

The English Probation Act of 1907 was, as I have said, replaced by the Criminal Justice Act of 1948, section 3 (1) of which provides inter alia that

"Where a court by or before which a person is convicted of an offence (not being an offence the sentence for which is fixed by law) is of opinion etc. ... the court may, instead of sentencing him, make a probation order"

Section 80 of the same Act defines

" 'Offence the sentence for which is fixed by law' means an offence for which the court is required to sentence the offender to death or imprisonment for life or to detention during His Majesty's pleasure".

An offence "for which the court is required to sentence the offender to... imprisonment for life" is non-capital murder under section 9 of the Homicide Act, 1957. Section 3 (1) of the 1948 Act does not directly affect the matter before us and I have only mentioned it in order to show that even under existing English law, a probation order can be made in every criminal offence apart from murder and those for which life imprisonment is prescribed.

I see no need to express an opinion regarding the interpretation of the Penal Law Revision (Abolition of the Death Penalty for Murder) Law, 1954. Even if the legislature did not realise the need for amending the Probation Ordinance as a result of the abolition of the death penalty for murder there is yet a vast difference between life imprisonment as a mandatory penalty (see section 2 of the Modes of Punishment Law) and mandatory imprisonment for one day prescribed by section 10 of the Prostitution Offences Law. Whatever the position regarding mandatory life imprisonment, there is nothing in section 3 (2) of the Probation Ordinance to suggest that mere "mandatory imprisonment" with which we are concerned excludes an offence from the operation of the Ordinance.

The existing legislation regarding the modes of punishment is not of one piece and even if all the difficulties concerning the different enactments in this area have as yet not been resolved, no far-going conclusions in law are to be drawn from that. Accordingly it appears to me that one should not infer from the lack of reasonableness in applying the Probation Ordinance to murder for which the penalty is mandatory life imprisonment, that this Ordinance does not apply to every other offence the penalty for which is mandatory imprisonment.

Since section 3 (2) of the Probation Ordinance does not distinguish between imprisonment which is mandatory and that which is not, the legislature's intention to deny the application of the Probation Ordinance, if it had such intention, should have found expression in section 10 of the Prostitution Offences Law. In order to ascertain the legislature's intention I do not need to rely on the speeches in the Knesset during the debate on the section. According to the usual rules of interpretation, express statutory provision is necessary to negative lawful judicial powers, particularly in criminal matters. The judicial power under section 3 (2) of the Probation Ordinance to release a person convicted on information for an offence punishable by imprisonment and to put him on probation is not negated by any express provision of section 10 of the Prostitution Offences Law. In the judgment of my honourable friend, Cohn J., in Weigel (1) the legislature's intention to deny the existing powers under the Probation Ordinance is implied from the word "Where a person has been convicted... a penalty of imprisonment shall be imposed upon him", which he construes as "Where a person has been convicted... a penalty of imprisonment shall be imposed upon (but he shall not be released on probation) and the penalty shall be imprisonment (and no other penalty)". With all respect, this seems to me mere inference since there is no "automatic penalty". Section 10 does not say that "notwithstanding the provisions of any other enactment" the penalty of imprisonment shall be imposed. In my view, so fundamental a matter as the setting aside in part of the method of probation cannot rest on inference without express statutory provision, since it restricts the powers of the court, the rights of the individual in criminal matters and the functioning of a probation service intended to rehabilitate the offender and turn him into a useful citizen.

Nevertheless I do find myself bound to stress what my honourable friend, Berinson J., said at the end of his judgment in Weigel, that in offences of the kind in question it will be "most rare" for the court actually to exercise its power to place an offender on probation. The Prostitution Offences Law of 1962 was intended to treat procurers of various kinds with severity and it was found fit in the public interest to increase the penalty to five or seven years' imprisonment, to make imprisonment mandatory and to direct that it should not be commuted to conditional imprisonment. Probation officers and judges would make the Law a sham, were they to go on using probation for offenders who come within section 10. I have mentioned probation officers since under section 3 (2) of the Probation Ordinance, as amended, a court is not to make a probation order until it has received the opinion of a probation officer. Moreover, under section 19(a) of the Modes of Punishment Law, the court may, before imposing a penalty, require a written report by a probation officer, and under section 19(b), as amended, the court may not impose a penalty of unconditional imprisonment on an offender who had not reached the age of 21 at the time when the offence was committed until such a report has been received. Section 19(c) provides that "in a report as aforesaid, the probation officer may recommend to the court the type of penalty which, in his opinion, offers prospects of reforming the prisoner". Thus the probation officer plays an important role when the court effectuates probation and in this sense he is "a partner of the judge", although it is the latter who has the last word. It is in general difficult for an appellate court to interfere with the discretion of a judge who decides to place an offender on probation, and the question whether the learned District Court judge in the present case was right does not arise. In any event, apart from exceptional instances, the right place for procurers and those who promote prostitution is prison.

For these reasons I propose to confirm the decision of the majority in Weigel (1) and to dismiss the appeal.

MANNY J. I concur in the judgments of my learned brothers, Berinson J. and Halevi J., and join in the conclusion they have reached.

COHN J. I disagree with the premise of my honourable friend, Halevi J., that section 10 of the Penal Law Amendment (Prostitution Offences) Law is to be read and construed against "the background" of the Penal Law Revision (Modes of Punishment) Law. For me, the opposite is the case: the entire object of section 10 is only to take out the penalties mentioned therein from the rules prescribed in this Law regarding punishment for all other kinds of offences. It is very true that section 10 is not intended to affect the rule of the maximation of penalties and to this extent the general law applies to it, but it is intended expressly and unambiguously to affect the alternation of penalties, and just as it decrees "mandatory imprisonment" excluding fine and conditional imprisonment, it also decrees imprisonment excluding modes of treatment which do not come within the meaning of penalty.

Likewise I do not draw the analogy which my honourable friend, Halevi J., has drawn between "may impose" in the Modes of Punishment Law and "shall be imposed" in the Prostitution Offences Law. I agree wholly with the learned President that the imperative of "shall be imposed" is not to be ignored, in contrast to the permissiveness and discretion of "may impose". Here as well, the opposite is the case: whilst the Modes of Punishment Law gives the judge a discretion as to the severity of the penalty he may impose, the Prostitution Offences Law denies him that discretion since, whatever he may wish to do, imprisonment shall be imposed.

As I suggested in my previous judgment in this matter, it seems to me that the question of interpreting section 3(2) of the Probation of Offenders Ordinance, 1944, does not arise at all. The appellant's fate must, in my opinion, be decided according only to the interpretation of section 10 of the Prostitution Offences Law; and on the correct interpretation of this section there is no place for applying this provision of the Probation Ordinance whatever its interpretation, because section 10 excludes the application of any statutory provision which empowers the court to deal with a person convicted of an offence under the Law in any manner other than by imposing imprisonment alone.

Accordingly I come to the same conclusion as the learned President and adhere to his view.

Further Hearing dismissed by a majority and the majority decision in the previous hearing upheld.

Judgment given on October 31, 1963.

Full opinion:

Attorney General v. Weigel.pdf

Association for Civil Rights in Israel v. Minister of Defense

Case/docket number:

HCJ 5973/92

Date Decided:

Thursday, January 28, 1993

Decision Type:

Original

Topics:

Constitutional Law

Prisoners’ Rights

State of Emergency and National Security

International Law

Occupied territories

Abstract:

Following a number of brutal acts of kidnapping and murder committed by the Hamas and Islamic Jihad terrorist organisations is December, 1992, it was decided by the Government of Israel to empower the military commanders of Judea and Samaria and of the Gaza Strip to issue orders for the temporary deportation of the leaders of these two terrorist organisations who had taken part in organising and supporting acts of terror, for a period not exceeding two years. The two commanders thereupon issued (general) temporary provisions under the Defence (Emergency) Regulations, 1945 (from the time of the British Mandate but still in force in the territories) allowing for individual temporary deportation orders to be carried out immediately after being issued. An appeal committee was also set up, which would, however, hear appeals only after the deportation had already taken place. Altogether, 400 persons were deported to Lebanon under the deportation orders.

The defence authorities (the respondents) submitted that the deportation orders were lawfully carried out even though the deportees were not given an opportunity to bring an appeal and have it heard prior to deportation, since pressing emergency conditions required the deportation to be carried out without any delay. Moreover, they argued, prior hearing could be dispensed with, since the general deportation orders made express legislative provision in that respect. Alternatively, case law of the High Court recognises emergency situations where even an inherent right like the right to hearing will not be enforced.

The petitioners argued that the deportation orders were void, both because the general order itself was void ab initio, in particular owing to lack of sufficient legal basis for denying deportees a prior right of hearing, and also owing to defects in the individual orders. Moreover, they submitted that the deportation was contrary to international law since the 4th Geneva Convention of 1949 relating to Protection of Civilians in Wartime prohibits deportation in general and mass deportation in particular. It was also contrary to Israeli administrative law which grants the right to a hearing prior to deportation.

An additional argument of the petitioners was that an appeal committee was not set up prior to the deportation, and that was an additional reason for invalidating the orders. The argument was rejected outright by the Court, since a committee was indeed in existence prior to the deportation (under regulations l l l and 112 of the Defence (Emergency) Regulations.

In a per curiam opinion, the Supreme Court held as follows:

I. The Defence (Emergency) Regulations, 1945 including Regulation l l 2 dealing with deportation is in force in Judea and Samaria, and in Gaza. Its continued force was derived first from Jordanian law and subsequently from legislation enacted by the Israeli military administration.

2. According to the Defence (Emergency) Regulations, there must be sufficient evidence to support the deportation in each individual case. This requirement has been fulfilled.

3. Regulation 112(8) of the above Regulations provides that the advisory committee set up to hear appeals against administrative detention also has jurisdiction to examine deportation orders if so requested by a deportee. That Regulation does not, however, specify whether the appeal is to be heard before or after the deportation is carried out. A reasonable interpretation would be that the right of appeal under Regulation 112(8) should be exercised prior to deportation. However, denial of a right to a prior hearing does not necessarily lead to invalidation of the deportation orders. The correct remedy would be to allow a hearing to take place after the deportation under the same conditions as would have prevailed if it had taken place prior to the deportation.

4. The High Court of Justice will examine the legality of any act of the military government in accordance with the principles of Israeli administrative law. Those principles require grant of the right of hearing, and as far as possible the hearing, so as to be fair and effective, should be held in the presence of the person concerned (in this case, the deportee). Allowing such person to appear in person, and not just by his representative, may have prevented cases of mistaken identity or other errors of which there were a number in the present matter.

5. In exceptional circumstances, the rule allowing for the right to a prior hearing can be departed from, where security needs justify such departure. However, in the present case, it is not necessary to consider whether such exceptional circumstances exist, since the rule laid down in earlier case law applies here, whereby even where there has been no prior hearing, a hearing should be held subsequent to deportation, and this should afford the deportee the opportunity to put forward his case in detail; in any event, lack of a prior hearing does not invalidate the individual deportation orders.

6. The general temporary provision orders where invalid insofar as they sought in general to replace existing principles of natural justice which require a prior hearing to take place before carrying out deportation orders, without relating to specific exceptional cases.

7. The Court concluded as follows:

a) Lack of prior hearing did not invalidate the individual deportation orders. The Court ordered the right of hearing to be granted following the deportation.

b) The "provisional" (general) deportations order was invalid, for reasons stated, but this did not invalidate the individual orders.

c) Submissions regarding invalidity of individual deportation orders were to be considered by the advisory committee within the scope of the (subsequent) appeals.

Voting Justices:

majority opinion

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Full text of the opinion:

H.C.J 5973/92 H.C.A. 5990/92

H.C.J 5974/92 H.C.A. 6043/92

H.C.J 5975/92 H.C.A. 6047/92

H.C.J 5976/92 H.C.A. 6064/92

H.C.J 6023/92 H.C.A. 6077/92

H.C.J 6114/92 H.C.A. 6089/92

H.C.J 6170/92 H.C.A. 6097/92

H.C.J 6263/92 H.C.A. 6129/92

H.C.J 6289/92 H.C.A. 6167/92

H.C.J 29/93 H.C.A. 6213/92

H.C.J 32/93 H.C.A. 6245/92

H.C.J 97/93 H.C.A. 6247/92

H.C.J 107/93 H.C.A. 217/93

H.C.A. 248/93

H.C.A. 249/93

H.C.A. 266/93

H.C.A. 278/93

H.C.A. 285/93

H.C.A. 454/93

(H.C. 5973/92)

Association for Civil Rights in Israel

Minister of Defence and others

(H.C. 5974/92)

Taher Sheritah & Others

Commander of the IDF

(H.C. 5975/92)

Centre for the Protection of the Individual & Others

Commander of the IDF in the West Bank & Others

(H.C. 5976/92)

Leah Tsemel & Others

Commander of the IDF in the West Bank and Gaza

(H.C. 6023/92)

Abed El Wahab Darawashe, M.K.

Prime Minister and Minister of Defence & the Other

(H.C. 6114/92)

Ahmad Muhammed Nimer Husein and Another

Commander of the IDF in the Gaza Strip

(H.C. 6170/92)

S. Porath

Government of Israel

(H.C. 6263/92)

Naftali Gur Arie

Government of Israel and others

(H.C. 6298/92)

Darawish Nasser and another

The Commander of the Central Command and another.

(H.C. 29/93)

Ibrahim Said Abu Salem and others

Minister of Defence

(H.C. 32/93)

Na'ama Husein Elabori

Minister of Defence and another

(H.C. 97/93)

Majhad Hamed Kadir & Others

Minister of Defence and another

(H.C. 107/93)

Fares Mahmud Abu Muamar

Prime Minister and Minister of Defence and another

In The Supreme Court Sitting as a High Court of Justice

[28 January 1993]

Shamgar P., Elon D.P., Barak, Netanyahu, Goldberg, Or and Mazza JJ.

Editor's Summary

The Supreme Court held as follows:

2. According to the Defence (Emergency) Regulations, there must be sufficient evidence to support the deportation in each individual case. This requirement has been fulfilled.

7. The Court concluded as follows:

a) Lack of prior hearing did not invalidate the individual deportation orders. The Court ordered the right of hearing to be granted following the deportation.

b) The "provisional" (general) deportations order was invalid, for reasons stated, but this did not invalidate the individual orders.

c) Submissions regarding invalidity of individual deportation orders were to be considered by the advisory committee within the scope of the (subsequent) appeals.

Israel Supreme Court Cases Cited:

[1] H.C. 513, 514/85 Nazal v. Commander of IDF in Judea and Samaria, 39(3) P.D. 145.

[2] Elections Appeal 1/65 Yarador v. Chairman of Central Elections Committee, 19(3) P.D. 365.

[3] H.C. 680/88 Schnitzer v. Chief Military Censor, 42(4) P.D. 617.

[4] H.C. 1361, 1378/91 Maslam v. Commander of IDF Gaza Strip; Abu Judian v. Minister of Defence, 45(3) P.D. 444.

[5J H.C. 320/80 Kawasma v. Minister of Defence, 35(3) P.D. 113.

[6] H.C. 672/88 Lavdi v. Commander of IDF West Bank, 43(2) P.D. 227.

[7] H.C. 7/48 Karabutli v. Minister of Defence 2 P.D. 5.

[8] H.C. 25/52 Al Galil v. Minister of interior 6 P.D. 110.

[9] H.C. 240/51 Al Rahman v. Minister of interior 6 P.D. 364.

[10] H.C. 174/52 Abu Dahud v. Governor of Acre Jail, 6 P.D. 897.

[11] 8/52 Badar v. Minister of interior, 7 P.D. 366.

[12] H.C. 3/58 Berman v. Minister of lnterior, 12 P.D. 1493.

[13] H.C. 290/65 Altagar v. Mayor of Ramat Gan, 20(1) P.D. 29.

[14] H.C. 654/78 Gingold v. National Labour Court, 35(2) P.D. 649.

[15] Cr. A. 768/ 80 Shapira and Co. Netanya Contractors Ltd v. State of Israel, 36(1) P.D. 337.

[16] H.C. 4112/90 Israel Association for Civil Rights v. Commander of Southern Command, 44(4) P.D. 529.

[17] Misc. App. H.C. 497/88 (H.C. 765/88) Shachshir v. IDF Commander West Bank, 43(1) P.D. 529.

[18] H.C. 69/81 Abu Ita v. Commander of Judea and Samaria Region; Kanzil v. Customs Commissioner Gaza Region Command, 37(2) P.D. 192.

[19] H.C. 358/88 Israel Association for Civil Rights v. Commander of Central Command, 43(2) P.D. 529.

[20] H.C. 531/79 "Likud" Faction in Petach Tikva Municipality v. Petach Tikvah Municipal Council, 34(2) P.D. 566.

[21] H.C. 549/75 Noah Films Ltd v. Films Censorship Board, 30(1) P.D. 757.

English Case Cited:

[22] R. v. Secretary of State for Home Dept. ex parte Hosen Ball [1977] 1 W.L.R. 766.

Jewish Law Sources Cited:

[A] Genesis Ch. 3, vv. 1-2, Ch. 4, vv. 9-10, Ch. 18, v. 21.

[B] Deuteronomy Ch. l, v. 16.

[C] Response of Harama (Rabbi Moshe Isserles) 108.

On Behalf of the Petitioner in H.C. 5973/92:

Adv. J. Shoffman; Adv. D. Brixman

On Behalf of the Petitioners in H.C. 5974/92; 5975/92;

and Respondents No. 5

Adv. A. Feldman; Adv. E. Rosenthal; Adv. L. Tsemel

in 14C 6263/92

On Behalf of the Petitioners in H.C. 6023/92; 107/93:

Adv. E. Dekoar

On Behalf of the Petitoner in H.C. 6114/92:

Adv. E. Riadh

On Behalf of the Petitioner in H.C. 6298/92, 32, 97/93:

Adv. D. Nassar

On Behalf of the Petitioners in 29/93:

Adv. G. Bolos

On Behalf of Respondents 34 in H.C. 6263/92:

U. Slonim

On Behalf of the Respondents:

Adv. J. Harish, The Attorney-General

Adv. N. Arad, Director of the High Court of Justice Department

The State Athority's Office

In the Supreme Court Sitting as High Court of Justice

JUDGMENT

Introduction

1. (a) These petitions and the applications accompanying them relate to the deportation to Lebanon on 17th December 1992 of 415 residents of Judea, Samaria and the Gaza Strip, in respect of whom, according to governmental authorities, information has been assembled to the effect that they are active in the Hamas or Islamic Jihad organisations.

According to Respondents' reply, only those whose activities reached, or exceeded, the level of responsibility for local administration (including training, operations and incitement) have been deported, and not those who were engaged merely in disturbing the peace, distributing leaflets or writing slogans.

(b) Relatives of the late Nissim Toledano and Iris Azoulai, who were victims of the above organisations, and the Victims of Terror Association joined the proceedings as respondents, requesting that the steps taken by the State remain in Force. The family of the missing soldier Yehuda Katz also joined the proceedings as petitioner and applied for the Government to declare its willingness to include an exchange of Israeli missing in Lebanon for the persons expelled. Adv. Shai Porath also joined the petitions, claiming that the Government was not competent to refuse on 25th December 1992, the request of the International Red Cross to transfer aid and supplies to the deportees at the place they are staying in Lebanon.

We would explain our position in respect of these additional petitions at the outset:

(1) Insofar as relates to the petitions of the Toledano and Azoulay families and the Association of Victims of Terror Association, their positions are the same as that of the State, and therefore everything stated by us in this context below will also apply to those petitions.

(2) As the Attorney-General has declared before us, the application of the Katz family is being considered by the Government and we did not consider that at this stage we can go beyond that.

(3) We were dubious as regards the legal basis of Adv. Porath's petition; however, it has meanwhile become apparent that the question of medical aid for the deportees is in any event amongst those matters which the Government is at present taking up with the International Red Cross, and at this stage, therefore, consideration of the said additional petition has become superfluous.

2. Our statements will be divided into the following sections:

(a) Factual background, including a description of the Hamas organisation and the Islamic Jihad organisation.

(b) The expulsion orders which were made and the legal basis for the expulsion orders according to the Respondents.

(d) Conclusion on the legality of the expulsion.

The Hamas and the Islamic Jihad

3. (a) On 13th December 1992 the Hamas carried out a brutal kidnapping and murder of the late Nissim Toledano. The same week, the said organisation caused another five deaths, the climax of acts of murder which had preceded them. Acts of kidnapping and murder expressed the central and dominant objective of the said organisation, and of the Islamic Jihad organisation and its factions, to bring about the liquidation of the State of Israel through Jihad (a holy war). Those organisations have in recent years been responsible for the murder or wounding, by stabbing, axes, strangulation or shooting, of civilians and soldiers who have fallen in the path of the perpetrators; amongst the victims are a 15 year old girl and old people of 70 years and more. These organisations have also murdered many tens of Arab residents of the occupied territories who, according to them, were suspected of having contact with Israeli entities or of disloyalty to the personal norms of conduct which bound them according to the said organisations' philosophy.

(b) According to an expert's opinion which has been submitted to us, based to a great extent on the manifest publications of these organisations, i.e. statements quoted from them, the Hamas is a secret organisation which combines the most extreme Islamic fundamentalism with absolute opposition to any arrangement with Israel or recognition of it and preaches the destruction of the State of Israel ("Israel will arise and exist until Islam wipes it out, just as it wiped out its predecessors" - quoted from the Hamas Covenant).

The object of the organisation is the reinstatement of an Islamic state in the whole area of Palestine "from the Mediterranean Sea to the Jordan River" ("the Hamas believes that the Land of Palestine in a Muslim trust until the end of time. Neither it nor any part of it can be surrendered... This is the principle of the Islamic Sharia (Islamic law) and holds good as regards any country conquered by force by the Muslims" - quoted from the third chapter of the Hamas Covenant dated 18th August 1988). Holy War (Jihad), in the form of armed struggle, including murder, is the sole and immediate means to achieve the said goal; any accomodation with an Israeli entity amounts to surrender of the principles of the Islamic religion.

In its propaganda the organisation relies on local religious personalities who add religious decisions and interpretations as a conceptual foundation and as religious legitimation for acts of terror. Its adherents include members of the free professions who guide the organisation's activites and arrange for the supply of resources necessary for its activities. The organisation is aided by front organisations which serve as sources for mobilising manpower and for camouflaging covert action (transfer of funds, etc.).

The acts of murder and terror are in a constant process of escalation, and for taitous kidnapping for the purpose of murder, as already mentioned, is outstanding feature of the organisation's activities.

The main objectives of the organisation emerge from its proclamations. In Proclamation 91 of 5th October 1992 it was said, inter alia:

"Hamas calls upon the masses of our Arab and Islamic people to clarify their position: rejection of the device of autonomy and rejection of the normalisation of relations with the Zionist enemy. Hamas demands that the leadership of the PLO and of all Arab countries concerned in the negotiations with the Zionist enemy withdraw from the negotiations and stand alongside the Palestinian people in its Jihad against subjugation.

Hamas congratulates the brave Halal As Eladin Elkassem Brigade for their success in attacks in Gaza and Jerusalem against soldiers of the Zionist occupier and calls for more heroic attacks".

In Proclamation 93 of 5th December 1992, the following passage appears:

"Only iron will rout iron and only the strong will overcome the weak, a firm decision is a firm decision and Jihad is Jihad until Allah proclaims victory.

Your movement, the Hamas, renews its promise to continue the Jihad, despite the surrender of the docile or the violence of the occupiers and calls as follows:

(a) On the foreign level:

Hamas stresses its demand that the Arab countries participating in the negotiating process, withdraw from it and not respond to the demands of the Zionist enemy to halt the economic boycott and normalise relations with it".

The Proclamation of 14th December 1992, following the kidnapping and murder of the Late Nissim Toledano, included the following:

"We emphasise that the Jihad and the death of the martyrs which Hamas has adopted as a method and strategy is the only means for the liberation of Palestine, and it is this alone which will bring about the collapse of our enemy and shatter his arrogance. We have promised Allah to continue our jihad, to escalate it, develop it and constantly surprise the enemy by our sacred military activites. We call upon our brethren in all the Palestinian (Islamic and national) factions to escalate the activities of the Jihad and concentrate all our people's potential in the front which is fighting the enemy and to turn our pillaged land into a volcano which will destroy the conquering invaders by fire.

The capture of the officer is in the context of the state of war between Palestine, our people and our brigades and the Zionist enemy, and it was not the first act, as our people is well aware - and will not be the last - with the help of the Almighty". (Emphasis in the original)

Expression of the spiritual image of the Hamas activists can also be seen from the congratulatory statements about the murder at the end of December of the Lage Haim Nahmani, which were made by the chief spokesman of the deportees, Dr. Elaziz Rantisi, on 4th January 1993.

(c) The Islamic jihad movement, with all its factions, is no different in its character and objects. It emerges from the statements of its leaders and its publications that this movement views the "Zionist Jewish entity" embodied in the State of Israel as a prime enemy and advocates immediate action to liquidate it, this movement too has given expression to its ambitions in dozens of acts of murder and terror.

The Deportation Orders

4. (a) Against the background of increasing Hamas activity in the first weeks of December 1992, the Government, on 16th December 1992, decided as follows:

"456. Security matters

In the Ministerial Committee for National Security Matters, authority is given to make emergency regulations for the issue of immediate deportation orders for the expulsion of persons inciting acts of terror and it is decided (by a majority, one abstention) as follows:

(a) In view of the existence of a state of emergency and in order to safeguard public security - to instruct the Prime Minister and the Minister of Defence to order and empower the military commanders of Judea, Samaria and the Gaza Strip to issue orders in accordance with vital, immediate security needs relating to the temporary deportation, without prior notice, for the purpose of deporting inciters, of those of the residents of the territory who are, by their action, endangering human life or inciting such action, for such period as determined by the military commanders, but not exceeding two years.

(b) Any person departed as aforesaid may, within 60 days, appeal against his deportation to a special committee through a member of this family or his advocate in accordance with rules to be laid down in the orders".

Following the said decision, the Commander of Central Command, who is also Commander of the IDF Forces in Judea and Samaria, and the Commander of Southern Command, who is also Commander of the IDF Forces in the Gaza Strip, published provisional orders relating to the Temporary Deportation (Temporary Provision) (Judea and Samaria Region) (No. 138l) Order, 1992 and the Temporary Deportation (Temporary Production) (Gaza' Strip Region) (No. 1986), 1992. The wording of the order in respect of Judea and Samaria is set out below:

"The Israel Defence Forces

Order for Temporary Deportation (Temporary Provision)

By virtue of my power as Commander of the IDF Forces, having been satisfied due to the special circumstances presently existing in the territory, that decisive security reasons so require, I hereby order, as a temporary provision, as follows:

Definitions

1. In this Order -

'regulations' means the Defence (Emergency) Regulations, 1945;

'temporary deportation order' means an order pursuant to Regulation 112(1) of the Regulations, the force of which is limited to a period not exceeding two years.

Implementation of temporary deportation order

2. A temporary deportation order may be carried out immediately after it is issued.

Appeals committee

3. (a) Notwithstanding the provisions of Regulation 112(8) of the Regulations, appeal committees shall be established for the purpose of this Order whose members shall be appointed by me or by person empowered by me.

(b) A legally qualified judge of a military court shall serve as chairman of an appeal committee.

(c) An appeal committee shall have power to hear an appeal brought before it and may approve the temporary deportation order, revoke it or reduce the period specified therein.

Appeals

4. (a) An appeal against a temporary deportation order may only be made to the appeal committee within 60 days of the temporary deportation order being issued.

(b) The deliberations of the appeal committee shall be conducted in camera.

(c) Where the temporary deportation order has been carried out, the appeal committee shall consider the appeal in the absence of the deportee.

(d) The deportee shall be entitled to be represented before the appeal committee by an advocate or a relative.

5. (a) This Order shall commence on the date of its signature.

(b) This Order shall remain in force until other provision

is made by me.

6. This Order shall be referred to as the Temporary Deportation (Temporary Provision) (Judea and Samaria Region) Order (No. 138 l), 1992.

16th December 1992.

Danny Yatom, Brigadier

Commander of the IDF Forces in Judea and Samaria"

The wording of the order in respect of the Gaza Strip is similar, with some insignificant modifications, to the order published for Judea and Samaria.

(b) The said order relating to temporary expulsion is based on the provision of Regulation 112 of the Defence (Emergency) Regulations, 1945, which were made by the British Mandatory Government and are still part of domestic law in the said territories.

The relevant provisions of Regulation 112 as aforesaid provide as follows:

"Deportation

112. (l) The Commander of the Israel Defense Forces in the territory shall be empowered to make an order under his hand hereinafter referred to in these Regulations as a deportation order) for the deportation of any person from the occupied territory. Any person in respect of whom a deportation order is made shall remain outside the occupied territory so long as the order is in force.

(8) Any advisory committee appointed under the provision of sub-regulation (4) of Regulation 111, if so requested by any person in respect of whom a deportation order is made under these Regulations, is empowered to deliberate and make recommendations to the commander of the territory in connection with the deportation order".

There has been no dispute before us that the Defence (Emergency) Regulations, 1945, including the said Regulation 112, are part of the domestic law in force in each of the said occupied territories (as regards Judea and Samaria, see also the summary of the legislative history in H.C. 513/85 [l] Nazal v. The Commander of the IDF Forces in Judea and Samaria, (hereafter - the Nazal case) [l]. In the Gaza Strip, the British Mandatory law still applies in full, so that Regulation 112 is included therein.

(c) From the above quotation, it emerges that the temporary deportation order referred to the special circumstances which had arisen and to the decisive security reasons, and it provided the following main arrangements:

(1) The force of the temporary deportation is for two years at the most.

(2) The temporary deportation order under Regulation 112 of the said Regulations can be carried out on the spot, namely immediately after its issue.

(3) The right to a hearing would only be available after the deportation is carried out, i.e., it would be possible to submit an appeal for up to 60 days from the date of issue of the order. The 60 day limitation was revoked in an amendment of 13th January 1993.

(4) The appeal committee for the purposes of such an appeal would have power to make a binding decision, not merely a recommendation.

(5) The appeal would be heard in the absence of the deportee, who could be represented by an advocate or relative.

(d) Following on the orders, the commanders actually exercised the power vested in them, as follows:

In Judea and Samaria, 284 deportation orders were issued, of which 39 were for a period of 18 months and the rest for a period of 24 months. In the Gaza Strip, 202 orders were issued, of which 100 were for a period of 18 months and the rest for a period of 24 months. Of the said total number, 78 were subsequently withdrawn, but orders were added, to the effect that altogether 415 persons were expelled.

On 16th December 1992 the deportation began. It was temporarily stayed following on the first petitions, by interim orders of this court, which were set aside on 17th December 1992 together with the issue of the orders nisi.

(e) The criterion applied by the military authority which decided to carry out the deportation was an individual one; namely, the selection was personal, based on the information regarding each of the candidates for deportation. As stated in the State's written reply submitted to us:

"49. Those involved are individuals, some of whom took part in the organisation and support of acts of violence or in the guidance, incitement or preaching of such acts. The others assisted the activites of the said organisations in the sphere of ecomomic or organisational infrastructure, the mobilisation of personnel, the raising and distribution of funds and also in the wording of proclamations and organising their circulation. "

(f) after the deportation, it transpired that the deportees included, in error, six people against whom an order had not been made, another person in respect of whom of identity an error had been made and nine persons under legal process or persons against whom court proceedings were being conducted, whom it was not intended to expel without first exhausting the legal proceedings already being taken.

The Government announced its willingness to return the said persons, and 14 of them who agreed thereto have already been returned.

The Respondents' Position

5. The position of the Respondents is that a deportation order may be duly carried out pursuant to the emergency provisions without allowing an opportunity to submit an appeal prior thereto, pursuant to Regulation 112(8) quoted above, because -

(a) in practical terms there is a necessity, namely there are pressing emergency conditions which required deportation; and

(b) in legal terms, in such circumstances, the prior hearing of an appeal could be dispensed with, because the orders of the commanders laid down an express legislative provision on this issue permitting expulsion without prior hearing; in the alternative, the law of the State of Israel, as expressed in the precedents of this Court, also recognises exceptions which, in extreme security circumstances, permit departure from the observance of an inherent right, including that of a hearing. In this context the Respondents referred inter alia to the judgment of President Agranat and of Judge Sussman in E.A. 1/65 (Yarador v. Chairman of the Sixth Knesset Central Elections Committee, [2] and to the judgment in H.C. 680/88 (Schnitzer v. The Chief Military Censor, [3], at 630, opposite the letter B).

The Petitioners' Arguments

6. (a) The central argument of the Petitioners is that the deportation orders are void for a dual reason, both because the empowering order (namely the Temporary Provisions Order) is void ab initio and because of various defects which occurred in the course of issuing the individual orders.

With regard to the first reason, the Petitioners referred in particular to alleyed absence, of a sufficient legal basis for denying the deportee the right of prior hearing, so as to allow him to raise his objections to the deportation, before it takes place, before a committee operating under Regulation 112(8) of the Defence (Emergency) Regulations, 1945, and if he so desires thereafter also before the High Court of Justice (according to the limits delineated in that respect by this Court in H.C. 1361/1378/91 Mesalem v. The Commander of the IDF Forces in the Gaza Strip, Abu Judian v. Minister of Defence [4] at 453, opposite the letter F).

(b) The act of deportation is contrary to both public international law and to Israeli administrative law, jointly and severally:

(1) Article 49 of the Fourth Geneva Convention relate to the Protection of Civilian Persons in time of War prohibits expulsion generally and mass expulsion in particular.

(2) Israeli law grants the right to a hearing before deportation (H.C. 320/90, Kawasme v. Minister of Defence, H.C. 672/88, (hereafter, the Kawasme case) [5], Lavadi v. Commander of the IDF Forces in the West Bank, [6] at 235,. and H.C.A. 454/88, quoted therein). This right, which is laid down in Israeli law, should not be denied by security legislation in occupied territory.

(c) Following H.C. 7/48 (EI Karbutli v. Minister of Defence, (hereafter, the Karbutli case) [1] it was pleaded by the Petitioners that the deportation orders are void on a further ground, namely that the committees under the Temporary Provisions Order were only set up after the deportation, i.e. they did not exist before the deportation was carried out.

We should point out already at this stage that we cannot accept this last argument. As we shall specify below, the right to apply for a hearing (or appeal) is based on the provisions of Regulation 112 as aforesaid. Sub-regulation (8) thereof, which the Petitioners continue to view as the determining provision as to the appeal, refers to the committees set up under Regulation 111(4), which have been in existence time, including the date that the order was carried out.

The Legal Conclusions

7. The following are the matters requiring examination.

(a) The validity of Regulation 112 of the said Regulations as part of domestic law.

(b) When may Regulation 112 be implemented.

(d) The exceptions to the right of hearing and the validity of the temporary provisions.

(e) The validity of the deportation orders.

(f) The implementation of the right of hearing.

8. Regulation 112 of the Defence (Emergency) Regulations, 1945, which deals with deportation, is a legal provision of law valid in Judea and Samaria and the Gaza Strip, since it is part of the law applicable in the region ("the laws in force in the country", in the words of Regulation 43 in the Aurex to the Hague Convention of 1907 concerning the Laws and Customs of Land Warfare). The continued force of the Regulation, which was made during the British Mandate, originally derived from the provisions of Jordanian law, and since the entry of the IDF Forces it has a similar derived from the Law and Administration Proclamation (No. 2), 1967 and Proclamation of the same year related to the Gaza Strip (see also H.C. 1361-1378/91, [4], at p. 455). The implementation of Regulation 112 as domestic law is, since the entry of the IDF Forces, with the power and authority of the regional commander.

The orders which were made in the present case were based on specific information in respect of each deportee, namely on individual considerations which, according to the Respondents, indicated the existence of a basis in respect of each single one of the deportees. This means that there was no collective order but a set of personal orders, each of which exists independently, and meets the requirements of Regulation 108 of the said Regulations, which is discussed below.

9. The arguments addressed to us did not justify a departure from the legal conclusion that the discretion standing behind the implementation of Regulation 112 was based on considerations contained in Regulation 108 of the said Defence Regulations (as stated therein, "if it is necessary or effectual to grant the order for the security of the public, the defence of the State of Israel, the maintenance of public order or the suppression of uprising, rebellion or riots"), provided that the individual data relating to a deportee, as presented to the Commander of the IDF Forces before making the order, give foundation for such an act. The evidence relating to each deportee should be clear, unequivocal and persuasive, see the Nazal case [1], at 655).

10. (a) Regulation 112(8) lays down as aforesaid that a consultative committee, appointed under Regulation 111(4) for the purposes of hearing appeals against an administrative detention order, is empowered to examine and make recommendations in connection with a deportation order if so requested by a person in respect of whom such an order has been made.

The said Regulation does not specify whether the hearing of the appeal should be held before or after the deportation is carried out. The British Mandatory authorities which made the Regulations believed, as emerges from the way in which the Regulation was implemented, that there is no duty to hear an appeal before the deportation order is carried out, and the then consultative committee heard appeals (when too, in the absence of the deportee) only after the deportation order had been carried out. The committee under Regulation 112(8) was the same committee which acted under Regulation 111(4) and, just as it heard appeals after detention rather than before it, so it also heard appeals against deportation after, rather than before, its implementation.

As can be learnt and inferred from the case law of the early years of the State, then too it was not the practice to grant the right of hearing, in the event of an appeal, prior to eassying out a deportation order (this is for example implied from H.C. 25/52, Jalil v. The Minister of the Interior, [8]; H.C. 240/51, Ta Alrahman v. Minister of the Interior, [9]; H.C. 174/52, Abu-Dahud v. Superintendent of Acre Prison, [10]; H.C. 8/52, Badar v. Minister of the Interior, [11].

However, the developments which have occurred in constitutional and administrative law in recent decades have conferred on the right of hearing as a rule - including the right to appeal to the consultative committee under Regulation 112(8) which takes place in advance - the status of an established rule, and an essential means for the prior examination of the justification for the Commander to make a deportation order. The courts have viewed the prior hearing in the field of administrative law as one of the rules of natural justice (H.C. 3/58, Berman v. Minister of the Interior, [12] at 1503; H.C. 290/65, Eliaar v. Mayor of Ramat Gan, [13] at 33; H.C. 654/78, Gingold v. National Labour Tribunal, [14] at 654; Cr. A. 768/80, Schapira v. State of Israel, [15] at 363); and as regards the right of prior hearing, it was stated in H.C. 4112/90, Association for Civil Rights in Israel v. Commander of the Southern Command, [16] at 638, that -

"The source and foundation [of the right of hearing] is in Jewish tradition, and the sages of Israel ancient saw it the ancient right of humanity" (Genesis, Chapter 3, Verses 11-12; Chapter 4, Verses 9-10 [a] 18, 21; Deuteronomy, Chapter 1, Verse [B] 16); and further on [16] on page 638 it is stated:

As regards the present case, it was stated in H.C.A. 497/88 (H.C. 265/88) (Shakshir v. Commander of IDF Forces in the West Bank, [17] at 537

"In Aware of the grave and far-reaching determent occasioned to the person concerned by reason of an order expelling him from is place of residence, the legislature has laid down a special procedure, which is not known in criminal law, through Regulations 111(4) and 112(8) of the Defence Regulations, according to which a consultative committee, headed by a lawyer, was established, amongst its powers being to examine all the information existing against the deportee 18 including all evidence, whether unrestigated privileged, in the posession of the Defense authorities. This committee gives the deportee an opportunity to submit to it his evidence and arguments and it must also allow him to call other witnesses on his behalf, if those witnesses might affect the result of the hearing. After examining the evidence and hearing the arguments of the parties or their attorneys, the consultative committee makes its recommendation to the Military Commander as regards the outcome of the relevant order... if the Commander decides, after receiving t he opinion of the consultative committee, not to cancel the deportation order and to insist upon its implementation, it is open to the deportee submit a petition to the High Court of Justice".

(c) The legal interpretation according to which Regulation 112(8) grants a right of appeal before implementation of the deportation was considered at length in the Kawasme case [5].

The Kawasme case [5] involved the deportation of the mayors of Hebron and Halhoul and of the Imam of the El Ibrahimi Mosque, Rajahb El-Tamimi, following the murder in Hebron of six Jews who, on 2nd May 1980, were returning from prayers at the Cave of Machpela. Immediately upon the deportation order being made by Brigadier-General Benjamin Ben Eliezer, the three were taken from their homes, supposedly for the purpose of talks with the regional commander. They were then told that they were going to meet the Minister of Defence and instead they were flown by helicopter to the Lebanese border and there expelled over the border. Their spouses petitioned this Court against the validity of the deportation order.

An order nisi was issued pursuant to which the authorities were required to show cause "why the deportation orders should not be set aside... since they (the deportees) had not been given a fair opportunity to state their objections to the deportation orders for consideration by the committee mentioned in Regulation 112(8)... and were not allowed to appear before that committee before the expulsions were implemented.

In the Kawasme case the State Attorney explained in his arguments that those responsible for the deportation knew that the law prescribed with regard to Regulation 112(8), although they had decided, without consultation with legal authorities, to implement the deportation forthwith without service of an order or notice of its contents, because "a situation had arisen which obliged the immediate deportation of the said three leaders in order to prevent a dangerous escalation in the security situation in the region". The State representation also stated in court, after deportation had been carried out, that it would be willing to hold a hearing before an appeal committee.

President Landau held that, according to the rules of natural justice and in view of the wording of Regulation 112(8), the reasonable meaning of the Regulation was that there is a duty to grant an opportunity of applying to the committee immediately after the deportation order is made and before it is carried out. After the deportation has been carried out a new situation arises, when the deportee is already over the border and he is thereby deprived of his ability to object to the order and put his case to the committee.

This was also how the Regulation was understood - as emerged from the Minister of Defence's reply - in another case, being that of the deportation order in respect of Bassam Shaka, the mayor of Nablus. In the words of President Landau, "even if it had been most desirable in the eyes of the respondents, for pressing reasons of security, that the deportation be implemented without any delay, that did not justify their disregard... of the necessity to observe the law" (ibid., p. 119).

Nevertheless, President Landau did not see fit to set aside the deportation order. The consultative committee was already in existence at the time of the deportation and it was therefore not appropriate to conclude that the order was void on the ground that this Court applied in the case of Karbulti (ibid., H.C. 7/48), in which a detention order was revoked because a committee under Regulation 111(4) did not exist at the time the detention was carried out.

In President Landau's opinion, the main point is that denial of the right to apply to the committee prior to deportation require does not retroactive revocation of the order, but the correct remedy for the wrong is reinstatement, namely placing the petitioners in the situation in which they would have been had they not been deprived of the right to apply to the committee. In view of the evidence of open incitement against the State by the Imam El Tamimi, the court did not find it appropriate to extend relief to that deportee, whereas in respect of the other two (Kawasme and Milchem), a majority of the judges (the President and Judge Yitzhak Kahan) decided, as President Landau said, after much soul-searching, that a recommendation should be made to allow those two to appear before the committee after the event. Judge Yitzhak Kahan, as mentioned, agreed with the result which President Landau reached, but added that although Regulation 112(8) does not contain express provision that an appeal to the committee should be allowed before deportation, in his opinion the rule is that generally a person should be allowed to appeal to the consultative committee before the order is implemented. This rule is not founded on statute, but on principles laid down by the courts which oblige every authority to act fairly. Denial of the right to apply to the committee is similar to denying a person's right to a fair hearing. However, according to him, there could be emergency situations in which the right of hearing must bow to a contrary vital interest, which should be given priority. We shall discuss this below.

Judge Haim Cohen, dissenting, believed that the order should be made absolute, since the expulsion orders should be viewed as void in view of the manner in which the deportation had been dealt with.

The court, therefore, by a majority, decided to discharge the order nisi, namely to dismiss the petition, making the following recommendation:

"...that if the committee (namely the consultative committee appointed under Regulation 111(4) of the 945 Regulations) finds that the content of the first and second petitioners' application to it, if made, is prima facie relevant and that it contains a clear position on the part of the petitioners whereby they intend to observe the laws of the military administration in their activities as public personalities and it also contains unequivocal reference to the statements of incitement published in their name in the media - then in the next stage the petitioners should be allowed to appear personally before the committee to allow it to gain an impression of their oral explanations, in the manner which should have been adopted initially" (ibid., pp.124- 125).

The two deported mayors indeed applied to the committee through the Red Cross in affidavits which met the requirements. Following this, they were returned for the hearing via Allenby Bridge and were arrested on the spot. The consultative committee held its hearing by the Bridge. Petitioners' counsel appeared before it and their arguments were heard, and information was submitted on behalf of the Army about their activities. The committee heard the appeal and dismissed it, and the deportation order was upheld. The petitioners applied to this Court with a new petition which too was dismissed. The deportation order was then carried out once again.

11. (a) In the present case, the Respondents have sought to modify the legal infrastructure by enacting the orders regarding the temporary provisions which expressly permit immediate expulsion, and allowing the possibility of applying to the consultative committee after the deportation.

(b) We have explained in the past on more than one occasion that this Court will review the legality of an act of the military administration and the validity thereof in accordance with the principles of Israeli administrative law, in order to decide whether the norms binding an Israeli public officer have been observed (HC 69,493/81,) Abu Ita, v. Judea and Samaria Regional Commander, Kanzil v. Customs Commissioner, Gaza Region Command [18], at 231.

It was stated there:

"So far as this Court is concerned, the officer is not generally regarded as having fulfilled his duty if he has performed that which is necessitated by the norms of international law, since more is required of him, as an Israeli authority, and he should also act in the sphere of military administration in accordance with the rules which delineate fair and proper administrative procedures. For example, the laws of war do not disclose any principle, whether established or at least formulated, according to which there is a duty to observe the right of hearing, but an Israeli authority will not fulfil its duty... if it does not respect that duty in circumstances where the right should be granted in accordance with our norms of administrative law".

Israeli administrative law requires as aforesaid, the grant of a right of hearing, and we have already stated that the more serious and irrevocable the results of the Government decision, the more essential is it that the person affected be allowed to state his objections and give his answer to the allegations against him so as to try to refute them (see H.C. 358/ 88, Association for Civil Rights v. Commander of the Central Command, [19] at 540).

(c) Moreover, hearing arguments from an intermediary rather than from the person concerned is inherently deficient in value and practicality. Statements made by counsel lose some of their force when the person making the statements on behalf of another cannot first meet with the person concerned in order to obtain from him information, guidance and instructions, and continue consulting with him routinely in respect of the factual allegations raised against him which are the basis of the hearing, and in respect of which his reply is sought, as he alone knows his exact case Personal appearance, before the committee of the person in respect of whom the deportation order is made, is the foundation and essence the right to a hearing.

The cases of mistaken identity, and of selection of deportees which have been discovered in the matter before us after the event, have of course made more acute the conclusion as regards the importance of giving an opportunity to put forward a regiments directly before the committee. There is a possibility - if only theoretical - that there are other cases in which it could become apparent that there was a mistake in - or non-justification for - the deportation, if the person concerned appeared before the committee and stated his case.

12. (a) The Respondents have put forward the argument that, according to the principles of administrative law, there are circumstances in which vital interests of state security prevail over the duty to hold a prior hearing, before carrying out the deportation order. In other words, in balancing these competing values, namely the right of hearing versus security needs and when the security circumstances are of special weight, the right to hearing should not be exercised in advance of carrying out the deportation but only subsequently, and the need to exercise the power immediately then constitutes an incontestable constraint. The State's argument was as follows:

"31. Moreover, the opinion of the security authorities was, and still is, that any attempt to carry out the deportation of hundreds of people according to the previous pattern (rather than by way of immediate expulsion), whilst the deportees were still in the territories, was likely to give rise to a very services wave of incitement and violence, aimed inter alia at creating pressure (both domestic and international) on the State of Israel to rescuid the intention to expel them.

32. In this context, it could also be appraised, on the basis of past experience, that such a wave of incitement was also likely to spread beying the Palestinian street into the detention centres and prisons in Israel, in Judea and Samaria and the Gaza Strip".

In order to lay the foundation for his argument of the existence, at times of a right to depart from the major principle of granting the right of prior hearing, the Attorney-General referred inter alia to H.C. 531/79 (The Likud Faction in Petach Tikva Municipality v. The Petach Tikva Municipal Council, [20] at 576), where it is stated:

"Principles of necessity or temporary constraints set aside the application of the rules of natural justice".

Cr.A. 768/80 [15] was also mentioned, where it was held, an p. 365-366 of the report:

"There are cases where an administrative authority makes a decision without hearing the interested party and at the decision can be a valid one. This will happen when the interest which the decision protects in a specific case is of greater weight in the context of interests as a whole than the interest of the right to a hearing. Granted the importance of the principle of the right to a hearing, it should not be forgotten that it is only one of the generality of interests which have to be balanced and respected".

In delineating the bounds of the said exception to the existence of the rule as to a hearing in purely operational matters, in the realm of security, it was said in H.C. 358/88 [19], at 546-561:

"There are indeed operational military circumstances in which judicial review is inconsistent with the place or time or with the nature of the circumstances; for example, when a military unit carries out an operation in the scope of which it must remove an obstacle or overcome opposition or respond on the spot to an attack on military forces or on civilians, and the operation is taking place at the time, or like circumstances in which the competent military authority sees an operational need for immediate action. By the very nature of the matter, in such circumstances there is no room to delay the military operation which must be carried out on the spot".

In H.C. 4112/90 [16], (at p. 640): we went on to say on this issue

"Such circumstances existed in the case before us, where the Military Commander for a lengthy period tried many different measures until it became apparent to him that none of them could prevent an act of murder because of the narrow and winding streets of the location which did not allow the life of the victim to be safeguarded. This grave and uncontrollable situation in which human life is at risk obliges action on the spot to safeguard human life and immediately prevent the recurrence of such cases, as the Military Commander directed in the order. Among a right of argument in such circumstances, before implementing the order, involving a delay in taking action for the period necessary to hold the hearing in this Court, as described and requested in the petition, constitutes a substantial risk to human life and a real concern as to the frustration of the possibility of taking necessary action, as detailed in paragraph 7 of our judgment. In this example the supreme value of preserving human life takes priority over the value of a right to a hearing. This balance between these two values is the supreme value in our legal system".

(b) The existence of the exception was also considered by Judge Yitzhak Kahan in his separate opinion in the Kawasme case [5]. He referred to the statement of Judge Witkon in H.C. 549/75 Noah Film Company v. Cinema Film Review Board, [21], at 760), according to which:

"There are of course situations in which the need to cancel a license or permit granted in error or without due consideration is so great and urgent that even if the rule of audi alteram partem was not complied with the court should hesitate to invalidate the decision for cancellation.

Justice Yitzhak Kahan further stated:

"In the work of the learned author, H.W.R. Wade, Administrative Law, (Oxford, 4th ed., 1977, p. 451), the following was stated in this regard:

'Sometimes urgent action may have to be taken on ground of public health or safety, for example to seize and destroy bad meat exposed for sale or to order the removal to hospital of a person with an infectious disease. In such cases the normal presumption that a hearing must be given is rebutted by the circumstances of the case. So it is also, for obvious reasons, where the police have to act with urgency, e.g. in making arrests'.

An example of a case in which - for reasons of safeguarding public security - the court in England justified infringing the rules of natural justice, can be found in the judgment in R. v. Secretary of State for Home Department, ex parte Honsenbal, (1977) [22]. In that case a deportation order was issued against an American journalist who had resided in England for a substantial period of time, and the Home Secretary refused to disclose all the details of the material in consequence of which the deportation order was made. In the judgment of the Court of Appeal, the petition was dismissed and the Court did not order the Minister to disclose details of the reasons for deportation. I am not sure that we would have adjudicated as the English Court of Appeal did in that case, but this instance does show that even in peaceful England, which does not face the danger of war, the court is willing to prefer a public interest of national security to the principles of natural justice. One may certainly do so when a state of emergency is involved which obliges immediate action. As the learned author J.F. Garner states in Administrative Law (London, 5th ed., 144 ( 1979):

'The full panoply of natural justice does not have to be observed in a case where this would be contrary to national security'.

In the United States too it has been held on more than one occasion that the right to a hearing must give way in certain cases in states of emergency, when immediate action by the authority is necessary in order to safeguard important public interests. See B. Schwartz, Administrative Law (Boston - Toronto, 1976), The learned author states there inter alia the following at pages 210-211.

'In the emergency case, the emergency itself is complete justification for summary action. The right to be heard must give way to the need for immediate protection of the public.

The typical emergency case involves danger to public health or safety. But the emergency exception is not limited to health or safety cases."

(c) In the Kawasme case [5] President Landau observed that if Regulation 112(8) could not be implemented in accordance with the said existing interpretation, thereof, the respondents in that case could have proposed revocation or modification of the Regulation by legislation (ibid., p. 120, opposite the letter E); so too according to Judge H. Cohen (ibid., p. 127, opposite the letter D). Obviously, those observations with regard to the possibility of legislation relate to circumstances in which it is sought to set aside the right of hearing for the purposes of defined exceptional cases, rather than legislation which revokes the right altogether.

Justice Y. Kahan, on the other hand, believed that "the same source that imposes a prohibition may also revoke it", i.e., whoever initiated the right to a hearing as one to be observed ab initio, is also the one who can - by way of precedent rather than legislation - determine in what circumstances exceptions to the rule can be recognised.

(d) The Respondents sought this time to refer in advance to the legislative option, and made the orders which are, as they are eatified, enactea "temporary provisions" permitting temporary deportation immediately after the issue of the order, the right of appeal being ancuitable only after the order is carried out. In our view the temporary provisions in the present case neither add nor subtract anything, whichever way one looks at it. If there is an exception to the right of a prior hearing, action can be taken in accordance with that exception and there is no need for a temporary provision; and if there is no exception to the right of hearing, the temporary provision is in any event invalid. As regards the question whether exceptions exist to the rules relating to the right to a hearing in deportation proceedings, as we have already stated, case law is to the effect that such exceptions do exist, and they are the result of the balance between the needs of security and the right to a hearing.

We have not seen fit here to take a view on the question of whether an exception to the right of hearing existed in the circumstances herein, since we accept - according to the rule in the Kawasme case [5] (per Justice Landau and Y. Kahan) - that if there was no prior hearing, a subsequent hearing should be held, serving the object of giving an opportunity to the person concerned to present his case in detail, and the absence of a prior hearing does not per se invalidate the individual deportation orders.

13. Is amending legislation in the present form valid, or, in other words, can the security legislation of a military commander determine that there was no legal duty to observe the right to a hearing before the deportation order was implemented?

In view of the contents of paragraph 12 above, the question of the validity of the Temporary Provisions Order becomes devoid of practical legal meaning: the power to find that there is an exception in a specific concrete case, in which exigencies demand immediate action before granting the right to a hearing, is in any event inherent in the authority to exercise the power in respect whereof the right to a hearing is sought.

However, so as to complete the picture, we shall also answer the question of the validity of general legislation, such as the Temporary Provision:

If the Order purported to determine a new normative arrangement, without connection to or dependence on special concrete circumstances, the existence whereof must be examined in advance in any event, then it would be ultra vires the powers vested in the Military Commander. Security legislation cannot bring about the modification of general established norms of administrative law, which our legal system views as the fundamentals of natural justice. If the Temporary Provision sought to determine, as a rule, that henceforth any expulsion order can be implemented for a limited period without granting the right to a prior hearing, then does not grant legality to the said new arrangement. Only concrete exceptional circumstances can create a different balance between the conflicting rights and values, and such circumstances were not detailed in the wording of the Temporary Provisions. The Order laid down a general arrangement which will remain in force for so long as the Temporary Provision is in force. In other words, the Order laid down a limitation as regards the duration of the deportation, although it prescribed nothing in connection with defining the exceptional concrete circumstances in which the right of hearing can be restricted. It thereby sweepingly and in an overall way abrogated the right of hearing, and such power is not vested in the Military Commander.

To conclude this point, since the Temporary Provisions sought to convert a valid general norm into another, without restriction or delineation for defined exceptional cases, the Temporary Provisions Order cannot be regarded as valid.

As already explained, that is of no significance as regards the power to make deportation orders. The expulsion orders were expressly made on the basis of the provisions of Regulation 112(1) and in reliance on the powers vested pursuant thereto. The said Order relating to the Temporary Provisions did not create the power to make a deportation order but referred to Regulation 112. For the purpose of the case herein, it merely sought to determine arrangements with regard to the right of hearing; that and nothing more. We have found that the temporary provision is of no avail. The power to refrain from granting the right to a prior hearing is ancillary to the provisions of Regulation 112 in accordance with the explanation in paragraph 12 above, without the need for specific empowering legislation.

We are therefore inherently brought back to the provisions of Regulation 112 in all its parts, including sub-regulation 112(8) thereof. This means that the power to make a deportation order exists and the hearing, by way of an appeal against the deportation order - which will take place after the order is carried out - should be conducted in accordance with Regulation 112(8), as interpreted by case law of this Court.

14. The Petitioners have argued before us that the individual deportation orders are void by reason of defects in obtaining them, apart from the lack of a right of hearing. The Respondents have disputed this.

We believe that in the present case the place for such arguments is before the consultative committee, to which the deportee may address his appeal. So long as the consultative committee has not otherwise decided, each individual order remains in force.

15. The Respondents must now make practical arrangements for implementery the right of appearance before a consultative committee operating under Regulation 112(8) of the said Regulations in respect of anyone who so requests; that is to say, that if a written application is made by a deportee through the International Red Cross or otherwise, according to which the committee is asked to hear his appeal, then the applicant should be allowed to appear personally before the committee to enable it to obtain an impression of his oral explanations and to examine his case and the justification for performing the expulsion order in respect of him. Pending the appearance before the committee, he should also be allowed a personal meeting with counsel who asks to represent the deportee before the committee.

The committee may hold its hearings at any place where the IDF can guarantee that they can properly take place.

For the purpose of all the aforegoing, the Respondents must make practical arrangements, details of which should be decided by the authorities charged therewith. The commencement of such arrangements was described in the States' notice submitted to us on 25th January 1993, although they should be supplemented along the lines stated here.

We have also taken note of the Attorney-General's notice of 25th January 1993, according to which further consideration of the security information concerning every deportee who files an appeal will be given within a reasonable time at the initiative of the Respondents.

16. We shall conclude by referring to what was said by Judge Olshan (as he then was) in the Karbutli case [7], at p. 15:

"Whilst it is correct that the security of the State which necessitates a person's detention is no less important than the need to safeguard the citizen's right, where both objectives can be achieved together, neither one nor the other should be ignored".

17. In conclusion, we have unanimously reached the following conclusions:

(1) We find that as regards the personal expulsion orders, the absence of the right of prior hearing does not invalidate them. We order that the right of hearing should now be given as detailed above.

(2) The order as to temporary deportation is void for the reason detailed in paragraphs 12(d) and 13 above. This conclusion does not invalidate the individual deportation orders.

(3) The arguments against validity of the personal deportation orders, issued by virtue of Regulation 112 of the Defence (Emergency) Regulations, 1945 should, as aforesaid, be submitted to the consultative committee.

Subject as aforesaid, we dismiss the petitions and discharge the orders nisi.

Given this 6th day of Shevat 5753 (28th January 1993).

Full opinion:

Association for Civil Rights in Israel v. Minister of Defense.pdf

Kogen v. Chief Military Prosecutor

Case/docket number:

HCJ 5319/97

HCJ 5706/97

HCJ 5707/97

HCJ 5319/97

Date Decided:

Monday, November 24, 1997

Decision Type:

Original

Topics:

Criminal responsibility

Sentencing

Abstract:

Facts: Petitioners, prisoners in a military prison, participated in a prison uprising allegedly motivated by deficient prison conditions. The military authorities negotiated with the inmates, who demanded improvements in prison conditions and a commitment from the authorities not to prosecute them. The military authorities agreed to this last condition. Despite this agreement, however, the inmates were prosecuted. Petitioners here contest this latter decision.

Held: The Court noted that precedents allow for the government to repudiate an agreement if such a step is dictated by the public interest. Such a decision must take all the relevant interests into account, including the fundamental principles of contracting, as well as the responsibilities and obligations of the government. The Court weighed the various interests, including the interest in maintaining the credibility of the government, the expectation and reliance interests of the petitioners, and the interest in prosecuting criminal offenses. The Court held, after weighing these interests, that the decision of the authorities to repudiate the agreement was reasonable, and that there was no room for intervention by the Court.

Voting Justices:

Or, Theodor

Primary Author

majority opinion

Dorner, Dalia

majority opinion

Turkel, Jacob

Author

concurrence

Full text of the opinion:

HCJ 5319/97

HCJ 5706/97

HCJ 5707/97

HCJ 5319/97

Roman Kogen
Victor Raviv

The Chief Military Prosecutor

HCJ 5706/97

Private Alexei Zamotovski
Private Yaacov Smailov
Alexei Kaisek

The State of Israel
The Chief Military Prosecutor
The General Staff Prosecutor
Chief Military Police Officer
The Military Tribunal, Dep't of the General Staff

HCJ 5707/97

Sergei Kaufman
Golan Kzamal
Vitali Novikov
Alexei Kaisek

Chief Military Prosecutor
General Staff Prosecutor
Deputy Commander of the Military Police
Commander of Prison Facility Number 396
Northern Command Prosecutor, Lieutenant Colonel Anat Ziso
Deputy Commander Shmuel Zoltek, Israeli Police
District Military Tribunal, Dep't of the General Staff

The Supreme Court Sitting as the High Court of Justice

[November 24, 2003]

Before Justices T. Or, D. Dorner, Y. Turkel

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

Facts: Petitioners, prisoners in a military prison, participated in a prison uprising allegedly motivated by deficient prison conditions. The military authorities negotiated with the inmates, who demanded improvements in prison conditions and a commitment from the authorities not to prosecute them. The military authorities agreed to this last condition. Despite this agreement, however, the inmates were prosecuted. Petitioners here contest this latter decision.

Held: The Court noted that precedents allow for the government to repudiate an agreement if such a step is dictated by the public interest. Such a decision must take all the relevant interests into account, including the fundamental principles of contracting, as well as the responsibilities and obligations of the government. The Court weighed the various interests, including the interest in maintaining the credibility of the government, the expectation and reliance interests of the petitioners, and the interest in prosecuting criminal offenses. The Court held, after weighing these interests, that the decision of the authorities to repudiate the agreement was reasonable, and that there was no room for intervention by the Court.

Petition Denied.

Israeli Supreme Court Cases Cited:

[1]HCJ 311/60 Miller, Engineer (Import Co.) Ltd. v. Minister of Transportation, IsrSC 15 1989.

[2]F.H. 20/82 Adres Building Materials Ltd. v. Harlow & Jones G.M.B.E., IsrSC 42(1) 221.

[3]HCJ 1635/90 Zarzevski v. The Prime Minister, IsrSC 45(1) 749.

[4]HCJ 218/85 Arbiv v. Tel-Aviv District Prosecutor, IsrSC 40(2) 393.

[5]CA 64/80 Eretz-Yisrael—Britania Bank v. The State of Israel—Ministry of Housing, IsrSC 38(3) 589.

[6]Crim. App. 2910/94 Yeffet v. The State of Israel, IsrSC 50(2) 221.

[7]HCJ 428/86 Barzilai v. The Government of Israel, IsrSC 40(3) 505.

[8]Motion Crim. App. 537/95 Ganimat v. The Government of Israel, IsrSC 49(3) 355.

[9]HCJ 6781/96 M.K. Olmert v. The Attorney General, IsrSC 50(4) 793.

[10]HCJ 935/89 Ganor v. The Attorney-General, IsrSC 44(2) 485.

[11]HCJ 676/82 The Histadrut General Workers’ Union in Israel v. The Chief of Staff, IsrSC 37(4) 105.

[12]CA 4463/94 Golan v. Prisons Authority, IsrSC 50(4) 136.

[13]HCJ 546/84 Yosef v. Central Prison Warden in Judea and Samaria, IsrSC 40(1) 567.

[14]Motion Crim. App.3734/92 The State of Israel v. Azami, IsrSC 46(5) 72.

[15]HCJ 5133/97 Bitton v. The Chief Military Police Commander (unreported case)

[16]HCJ 5018/91 Gadot Petrochemical Industries Ltd. v. The Government of Israel, IsrSC 47(2) 773.

[17]HCJ 636/86 The Jabotinsky Estate, Workers’ Cooperative v. The Minister of Agriculture, IsrSC 41(2) 701.

[18]HCJ 4330/93 Gans v. The District Committee of the Tel-Aviv Bar Association, 50(4) 221.

[19]HCJ 3477/95 Ben-Attiyah v. The Minister of Education, Culture, and Sport, IsrSC 49(5) 1.

[20]HCJ 1563/96 Katz v. The Attorney General, IsrSC 55(1) 529

District Court Cases Cited:

[21]D.C. 3/57 Military Prosecutor v. Melinki, IsrDC 17 90.

English Cases Cited

[22]R. v. Latif, [1996] 1 All E.R. 353 (H.L.).

[23]R. v. Croydon Justice ex. p. Dean, [1993] 3 All E.R. 129 (Q.B.).

[24]Attorney-General of Trinidad and Tobago v. Phillip, [1995] 1 All E.R. 93 (P.C.).

[25]Bennet v. Horseferry Road Magistrate Court, [1993] 3 All E.R. 138 (H.L.).

Israeli Books Cited:

[26]G. Shalev, Government Contracts in Israel (1985).

[27]D. Barak-Erez, The Contractual Responsibility of Administrative Authorities (1991).

[28]2 I Zamir, The Administrative Authority (1996).

[29]1 D. Friedman & N. Cohen, Contracts (1991).

[30]A. Mudrik, Court Martial (1993).

Israeli Articles Cited:

[31]Y. Karp, The Criminal Law – Forcing Human Rights: Constitutionalization in light of the Basic Law: Human Dignity and Liberty, 42 HaPraklit 64 (1996).

Foreign Books Cited:

[32]Y. Dinstein, The Defense of “Obedience of Superior Orders” in International Law (1965).

Miscellaneous:

[33]Findings of the Commission Examining the Exercise of Judicial Discretion in Sentencing (1998)

[34]Dr. Alkushi, A Wealth of Latin Terms and Expressions (1982)

Jewish Law Sources:

[35]Midrash Mechilta, Beshalach, 15

[36]Babylonian Talmud, Tractate Shabbat 31a

[37]Babylonian Talmud, Tractate Baba Metzia 44a, 48b

For petitioner 1 in HCJ 5319/97—Aryeh Licht

For petitioner 2 in HCJ 5319/97—Avigdor Feldman

For petitioners 1 & 2 in HCJ 5706/97—Avraham Nantal

For petitioner 3 in HCJ 5706/97—Yoav Tzach-Vaks, Beni Shaked

For petitioner 1 & 2 in HCJ 5707/97—Amirah Amiram

For petitioner 1 in HCJ 5707/97—Amit Mor

For respondents—Uzi Fogelman, Office of the State Attorney

JUDGMENT

Justice T. Or:

The Issue

A riot took place in a military prison facility, involving a number of the inmates. The inmates gained control of an area of the facility and blockaded themselves inside. They held several members of the prison staff. The riot involved the commission of various criminal offenses, which, prima facie, infringe the Penal Law-1977 and the Military Jurisdiction Law-1955. Following the takeover of the facility, negotiations ensued between the inmates and military authorities. These negotiations ended with an agreement between the rioting inmates and the authorities, which provided for an end to the rioting in exchange for the authorities’ promise not to prosecute the rioters for the offences allegedly committed during the riot.

Despite this agreement, the rioting inmates were arrested immediately after the uprising had ended and charged with various criminal offenses. Was the prosecution’s decision to lay charges legal? This is the issue before the Court.

The Facts and Proceedings

The events leading up to this petition began on the morning of Saturday, August 9, 1997, in compound three of prison facility number 396 under the command of Military Company C. At the time, the compound in question housed approximately one hundred inmates. At approximately 10:30 am, a group of approximately twenty inmates took over the compound and detained nine members of the prison staff. It is alleged that the riot was violent, that a number of guards were beaten, locked in prison cells, with their arms and legs tied and mouths gagged.

The riot was motivated by several grievances of the inmates, including anger at their treatment. It is alleged that the prison staff subjected the inmates to degrading treatment, including physical abuse and beatings. It is claimed that the prison staff presented false disciplinary complaints against the inmates, resulting in a number of the inmates’ sentences being lengthened. Additionally, it is alleged that the prison drills lasted for many hours, beyond that permitted by the regulations, past work hours, and even after the inmates had showered.

Moreover, petitioners claim that the guards would prevent the inmates from going to the bathroom, to the point of causing them serious discomfort. An inmate who violated these instructions would be denied various rights. Specific arguments were raised concerning the solitary confinement area of Military Company C. These inmates were confined to their cells 23 hours a day. Their cells are not equipped with toilets, and they relieve themselves in a bucket. Petitioners argued that this arrangement is improper, as it causes humiliation and severe discomfort.

The rioting inmates allegedly approached the Base Commander in writing two seeks prior to the riot, asking him to address their complaints. The petitioners claim that this request went unanswered.

After word of the rebellion at the prison spread, various military and police forces began arriving to the prison area. Among them were the Police Special Forces, a police negotiation team and senior army officers. General Gabi Ashkenazi, an assistant in the General Staff, was among these officers. He arrived Saturday evening and supervised the forces operating in the area.

Negotiations were conducted between the representatives of the rioting inmates and the negotiation team. During these negotiations, which lasted until Sunday morning, six of the prison staff members held were released, leaving three guards in the rioters’ hands. The rioters raised the following list of demands during the negotiation process (emphasis added):

First and foremost, we demand that nothing be done to any of the participant. They are not to be investigated, beaten, no sections, no time served.
Soldiers sentenced to lengthy sentences shall not be transferred to civilian prisons (as we were soldiers when we committed the offences in question). This includes all future soldiers.
No days shall be added beyond 385, only onto 630 and with a very justified reason.
Change the "Ascot" cigarettes to a different brand.
Stop beating the soldiers in the division.
Soldiers who have a lengthy sentence to serve should be transferred to rehabilitation or to officer’s custody
We are requesting an in-depth examination of the files of the past two-three months, as it is impossible that a soldier who amassed ten complaints against him during a six month period should be denied parole.
Drills cannot be held after showers or meals.
We demand an on-duty doctor—not a medic—on Saturday.
The drills didn’t stop until someone fainted—why?
Every inmate will have the right to a daily phone-call.
They do not allow us to drink when we need to—the same goes for bathroom access.
A soldier who is not fit for incarceration should not be incarcerated .

The rioting inmates requested that the riot not be investigated and that they not be harmed. They threatened to injure themselves if their demands were not met. Moreover, throughout the negotiation process, the rioting inmates threatened, if their demands went unanswered or if force was used against them, to harm the guards in their custody and the other inmates who did not take part in the riot.

The rioters presented the following document to the authorities during the night hours of Saturday August 9, 1997:

We demand a contract by tomorrow afternoon signed by a person who can accept responsibility. If we receive this paper, we will immediately open all the doors, clean the compound and line up in an orderly fashion as required. If prior to this, someone tries to break into the compound we will commit collective suicide.

We also note that the evidence before us reveals that the prison commanders and army officials were given the impression that the rioting inmates were armed with weapons such as Japanese knives, clubs, hatchets, kitchen knives, fire extinguishers, tear gas, screwdrivers, handcuffs and firebombs.

5. Those conducting the negotiations with the rioting inmates estimated that there was a real danger to the lives of the detained guards, the lives of the other inmates, and the lives of the rioting inmates themselves, in the event of an attempt to take the compound by force. They further believed that the rioting inmates were prepared to take extreme measures, in light of the fact that some of them had prior convictions for violent crimes. The negotiators also feared that, as the rioters grew tired, the likelihood that they would take extreme action would increase. As such, military personnel and police on site concluded that signing an agreement with the rioting inmates was the only way to end the incident without casualties.

6. The agreement which put an end to the riot was signed on Sunday, August 10, 1997, approximately 24 hours after the riot began. The agreement was signed by two inmate representatives, Victor Raviv and Gideon Martin. The agreement was also signed by the Deputy Chief of the Military Police, Colonel Yoram Tzahor, by the head of the Police Negotiation Unit, Deputy Commander Shmuel Zoltek, and by Northern Command Prosecutor, Lieutenant Colonel Anat Ziso. The prison warden also signed the agreement. The agreement provided:

The guards shall be immediately released, unharmed.

The weapons, including the hatchets, knives, and gas canisters shall be immediately turned over to the prison authorities/ security personnel.

The inmates shall return to their cells at once.

An inquiry into the demands raised by the inmates regarding prison conditions shall be conducted.

No harm will come to the inmates and they will not stand trial for the incident.

The inmates shall not be transferred to civilian prison facilities against their will, as punishment for the incident.

This document’s validity is contingent on the release of the guards and the immediate return to prison routine.

7. The signing of the agreement put an end to the riot. The inmates returned to their cells, turned over their weapons to the prison authorities, and all the staff members were released. The investigation of the military police [hereinafter IMP] began a day after the incident. On the same day, the inmates who participated in the riot, including the petitioners, were arrested. The petitioners were detained until September 8, 1997, at which point charges were filed with the District Military Tribunal, Dep't of the General Staff.

Eighteen inmates were indicted on charges related to the riot. All the accused are charged with the offence of rioting, as per section 46 of the Military Jurisdiction Law, in conjunction with article 29 (b) of the Penal Law. They are also charged with blackmail and uttering threats, as per article 428 of the Penal Law, in conjunction with article 29 (b) of the Penal Law. The indictment also charges several inmates with the commission of various crimes against on-duty officers, under article 60 of the Military Jurisdiction Law, and the offence of uttering threats against on-duty officers, under article 63 of the Military Jurisdiction. With the filing of the indictment, the military prosecution requested that the military tribunal instruct that the accused inmates be detained until the end of the proceedings.

The three petitions before us (HCJ 5319/97, HCJ 5706/97 and 5307/97), attack the decision to prosecute the accused inmates despite section five of the agreement, which provided that the inmates would not stand trial for the incident. These petitions were filed with the High Court of Justice following the indictment. In each of the three petitions, orders nisi were issued against the military tribunal, instructing it to refrain from conducting any hearings on the merits of the charges against the petitioners. It was held, however, that the orders nisi would not prevent hearings on the issue of the petitioner's detention.

In its decision of October 1, 1997, the military tribunal granted the prosecution’s request to detain the petitioners until the end of the proceedings. In his decision, the Honourable Judge D. Piles of the tribunal noted that there exists prima facie evidence against the petitioners. The tribunal emphasized that there are grounds for detaining the rioting inmates, in light of the fact that there were serious breaches of military discipline. In its decision, the tribunal explicitly stated that it did not address the agreement concluded between the military authorities and the petitioners, in light of the petitions filed with this Court.

We now turn to the petitions here. In their response briefs, the respondents requested that we uphold the decision to prosecute the petitioners. They argued that it is doubtful whether the parties' agreement can be deemed binding under the circumstances, absent the authorities’ intention to create a legally binding instrument. According to this contention, the agreement was merely “an instrument aimed at putting an end to the incident without casualties….An act to save lives” in a situation where no other alternative to end the incident without casualties existed. Respondents also contend that the agreement should be voided, as it is the product of coercion and force. In this context, respondents note that the agreement was concluded following the threats made by the rioters to harm themselves and the prison staff members if their demands were not met.

The state invokes section 17 of the Contracts Law (General Part)-1973 in support of its submission. That section provides that a contract formed by coercion may be voided. Respondents further argue that the agreement is against public policy and is therefore void under section 30 of the Contracts Law.

These arguments raise complex issues, including the issue of whether, and to what extent, the provisions of the Contracts Law (General Part) apply to the type of agreement at issue here. I see no need to address these issues, however, as I have concluded that, even if the provisions found in section five of the agreement are valid, there is no room for judicial intervention in the decision of the prosecuting authority to repudiate the agreement.

Contracts of Public Authorities

The agreement here was reached between government authorities and a group of individuals. The agreement touches on the exercise of powers—powers in the hands of government authorities—to press criminal charges against those subject to the Military Jurisdiction Law. Under the agreement, the authorities undertook to refrain from exercising these powers. The rule is that agreements of this nature are deemed valid and binding. See HCJ 311/60 Miller, Engineer (Import Agency) Ltd. v. Minister of Transportation [1]. Indeed, it is incumbent upon government authorities to respect the agreements that they enter into. It has already been held that “our lives as a society and as a nation are premised on keeping promises.” FH 20/82 Adres Building Materials. v. Harlow and Jones [2], at 278 (Barak, J.) The authorities’ duty to abide by its obligations is supported by public policy. See G. Shalev, Government Contracts in Israel 101 (1985) [26]. This duty is also derived from the authorities’ general obligation to act fairly and reasonably. “A government authority which denies its obligation is deemed not to have acted fairly and reasonably.” HCJ 1635/90 Zarzevski v. The Prime Minister [3], at 841 (Barak, J.)

Our case law has recognized the validity of agreements dealing with the exercise of the power to initiate legal proceedings. See HCJ 218/85 Arbiv v. Tel-Aviv District Prosecutor [4], at 401-02. This having been said, the issue of what normative arrangement is applicable to such agreements has not yet been decided. This in light of the problems inherent in contractual relations where one of the parties is a government authority and where the agreement touches on the manner in which that authority is to exercise its powers. See Shalev, supra. [26], at 39; D. Barak-Erez, The Contractual Responsibility of Administrative Authorities [27], at 56-57; see also Arbiv [4], at 399-400. Whether the ordinary rules set out in the Contracts Law (General Part)-1973 apply to the agreement here is subject to doubt. Do these ordinary rules apply? Do they apply in conjunction with provisions of administrative law? Perhaps a contract of this nature is subject to a special scheme drawn from administrative law. These issues have not yet been resolved.

There is no need for us to rule on these issues, as all agree that an authority may free itself of the obligations it undertook under certain circumstances. The rule is that, in making that decision, it is incumbent on the authority to pay proper attention to all the considerations touching on the matter, including the basic principle of respect for contractual obligations, on the one hand, and the government authority’s duty to fulfill its mandate and realize the interests and values for which it is legally responsible. See CA 64/80 Bank Eretz Yisrael—Britania v. The State of Israel [5], at 599-600. Indeed, the authorities may deviate from a promise “if the public interest so demands. This interest shall be ascertained by balancing between the various interests struggling for primacy.” See Arbiv supra [4], at 401.

The principle concerning the government’s ability to repudiate obligations it undertook is anchored in these same considerations. In this spirit, it was decided that “the principles of fairness and reasonableness, which lie at the basis of the rule that promises must be kept, also underlie the limits of this rule and the exceptions to it.” Zarzevski supra. [3], at 841 (Barak, J.). Similarly, the government’s status as the public trustee gives rise not only to its duty to act fairly and to keep its promises, but to act effectively in order to promote the public good and realize the social values that it is responsible for. See D. Barak-Erez supra. [27], at 170; 2 I. Zamir, The Administrative Authority [28], at 674-75. These principles give rise to the government’s right—and, indeed, its duty—to repudiate an agreement if the public interest so requires. See 1 D. Friedman & N. Cohen, Contracts 357 (1991) [29].

In the general context of the public interest, what are the interests in the case here? In Arbiv supra. [4], the Court enumerated three interests in determining the legality of the authorities’ decision to repudiate a plea bargain: the integrity of the government authorities, enforcement of the criminal law, and the reliance and expectations of the accused. These interests are also relevant to the case before us, which, like a plea bargain, involves an agreement dealing with the exercise of the government’s power to enforce the criminal law. We shall, therefore, address the respective weight of these interests.

The Public Interest in The Integrity of the Government

As noted in Arbiv supra. [4], at 402-03:

A government that keeps its promises is a credible one. Repudiating its promises is liable to harm the government’s integrity in the public’s eyes, thereby tarnishing the fabric of the state’s public life…. A government that fails to keep its promises in the realm of the criminal law harms the integrity of the system of criminal law. Preserving this integrity constitutes an important public interest … indeed, a government that fails to keep the promises may find it difficult to make promises in the future, as members of the public shall refuse to believe these promises.

See also Crim. App. 2910/94 Yeffet v. The State of Israel [6], at 336.

Aside from this utilitarian perspective, there is additional facet to the public interest in its government’s integrity—the government’s fairness. We are not referring here to the individual’s interest that the government treat him fairly and respect its obligations towards him. That interest shall be addressed below. Here we are dealing with the interest in the legality of the government's actions. This interest demands that the government’s actions in imposing the law and enforcing it correspond to the principle of the rule of law. See HCJ 428/86 Barzilai v. The Government of Israel [7], at 622 (Barak, J.). There is a public interest in not conveying the impression that there are no limits to the government’s power. To this end, in R v. Latif [1996] 1 All. E.R. 353, 361[22], Lord Steyn noted the "public interest in not conveying the impression that the court will adopt the approach that the end justifies any means."

The application of these statements to this case is obvious. The government seeks to be released from an agreement which led to the release of the hostages unharmed and put an end to the riot in the military prison—a riot which may have otherwise deteriorated into a violent confrontation. We cannot ignore the fear that if a similar event was to occur, the authorities would find it most difficult to resolve the incident without casualties, as any promises they would offer not to press criminal charges would be met with distrust. This is liable to deprive the authorities of any practical option, save for the use of force, to put an end to such incidents. Such an option is liable to result in casualties, both injuries and fatalities, as was feared in this instance. As such, there is clearly a weighty public interest in the state keeping its promise under section 5 of its agreement.

A. Additionally, the interest of the individual that contracted with the authorities must be taken into account. This interest concerns the fulfillment of the reasonable expectation interest of the individual that his agreement be respected. At times, the individual has changed his position for the worse, in reasonable reliance on the agreement. Thus, releasing the state from its obligations under the agreement is liable to violate the individual’s expectation and reliance interests. This being the case, it is incumbent upon the authority to consider these interests. This interest was described in Arbiv supra. [4], at 403:

The expectation interest refers to the miscarriage of justice caused an accused who expected that the promises made to him be kept, and the authorities not deny him that promise.

The reliance interest refers to an accused who relied on the authorities’ promise, provided information, admitted to the charges, or otherwise changed his position. This requires that the accused be treated fairly—that his interests be protected. Allowing the authorities to be released from their obligations under the plea bargain agreement is liable to infringe these.

Today, following the enactment of the Basic Law: Human Dignity and Liberty, the degree of protection offered these interests has been heightened. The right to liberty is now constitutional. This directly affects the criminal justice system, which “is so intimately related to an individual’s personal freedom, so that it is only natural that the new balance struck between individual and society—reflected in the constitutional status granted human rights—influence criminal procedure.” Crim. Motion 537/95 Ganimat v. The State of Israel [8], at 421 (Barak, J.). As such, the Court recently recognized its authority to delay proceedings in criminal trials, when the matter contravenes our sense of justice and fairness. See Yeffet supra [6], at 370. The Court recognized its authority in this matter, having concluded that the Basic Law: Human Dignity and Liberty “redraws the boundaries of what is deemed due process, within the system … the human rights enshrined in the Basic Law also serve to influence the provisions of criminal procedure.” Id. at 368-69; see also HCJ 6781/96 M.K. Olmert v. The Attorney General [9], at 811.

Indeed, a decision to press criminal charges against an individual, despite an agreement not to prosecute that person, is liable to constitute a severe infringement of the right to due process, and this Court will exercise its authority to delay proceedings. Such authority has been exercised where a confession was provided in exchange for a promise, even when the promise was made by an agent who lacked the proper authority. R. v. Croydon Justices, ex parte Dean (1993) 3 All. E.R. 129 (Q.B.) [23]. Another case held that breaking a promise or a pardon proposal, made in exchange for the release of hostages held by a religious cult that sought to carry out a coup d’etat, may result in the exercise of this authority, if the promise in question was broken without justification. Attorney-General of Trinidad and Tobago v. Phillip (1995) 1 All. E.R. 93, 108 (P.C.) [24].

Were the interests of the petitioners infringed and, if so, to what extent?

B. All agree that the petitioners’ expectation interest was violated. The petitioners reasonably expected that the agreement would be respected. Releasing the prosecution from its obligations violates this expectation. This having been said, it should be noted that the petitioners were arrested one day after the agreement was reached. During the investigation, a number of the petitioners chose to avail themselves of the right against self-incrimination. This being the case, the circumstances suggest that, in practice, their expectation that the authorities would respect their obligation under section five lasted only briefly.

C. Let us proceed to the reliance interest. Petitioner number three in HCJ 5707/97, Vitali Novikov, argues that the investigation was conducted subsequent to the signing of the agreement but prior to the decision to prosecute. During this period, the authorities “extracted various statements from the inmates and some of them incriminated themselves and others.” The decision to prosecute was allegedly made after securing these confessions. This suggests that some of the inmates relied on the authority's promise to their detriment. In response, respondents maintain that all interrogations were conducted under a warning, and that most of the suspects invoked their right to silence.

This answer is insufficient in light of the fact that the interrogations were conducted under circumstances where the petitioners assumed that the agreement would be respected. This suggests a real possibility that the subjects of the investigation who cooperated were denied the right against self-incrimination, seeing as how the commitment not to prosecute caused them to believe that they had nothing to fear from the investigation. In this situation, it is doubtful that a standard warning—as distinguished from a clear warning that their agreement may not be respected—was sufficient to alert petitioners to the danger that their statements would be used as evidence against them. There is a real danger that these individuals’ right against self-incrimination was violated.

Under the circumstances, it appears that it would have been appropriate for the investigation to have been conducted after a clear decision to repudiate the agreement was made. At the very least, the subjects of the interrogation should have been made aware of the risk of prosecution despite the authorities’ commitment to the contrary. In this manner, it would have been possible to ensure the effectiveness of the right against self-incrimination. It should be noted that the Court handed down a similar ruling in Yeffet supra [6]. There, a police investigation took place after a Commission of Inquiry, under the Commission of Inquiry Law-1968, had investigated the same matter. Section 14 of that statute provides immunity for witnesses testifying before Commissions of Inquiry, so that testimony given before such commissions cannot be used in legal proceedings. In Yeffet [6], the Court held that the subjects of the police investigation should have been informed of their immunity under section 14. The reason was due to doubt whether “a subject who did not invoke his immunity and answered the police’s questions renounced the immunity of his own free will and in good faith.” Id. at 309. Likewise, unawareness of the risk of incrimination is liable to produce a situation where one inadvertently renounces to the right against self-incrimination.

The state’s response does not suggest that those interrogated were informed of the risk of prosecution despite the agreement. Even so, in and of itself, this is insufficient to allow us to conclude that there was a severe infringement on the reliance interest of those who cooperated with the investigation. No facts were supplied to indicate the extent of the damage caused by the absence of warning, and to which charges and petitioners such a claim would relate. Under these circumstances, we lack a basis for a finding of detrimental reliance, which would have required us to conclude that the state’s repudiation of its agreement was illegal.

15 A. These interests are confronted with the interest of pursuing criminal charges. “The public interest in having the accused stand trial is a central one and ordered modern life depends on its realization.” Arbiv [4], at 403; see also Yeffet supra. [6], at 369. As Y. Karp notes in her article The Criminal Law—Janus of Human Rights: Constitutionalization in Light of the Basic Law: Human Dignity and Liberty, 42 HaPraklit 64, 67-68 (1996) [31]:

Criminal law is an essential component of a properly functioning civilized society and its struggle to preserve its values. Criminal law reflects the degree to which a given society is committed and determined to protect its values. These values include the rule of law, public welfare, public order, security and social justice and morality, in addition to the individual’s peaceful existence and his ability to realize his human rights through peaceful means, as these constitute a basic value in a democratic state.

In light of the criminal law’s function in protecting social values and interests, it has been established that, when criminal behavior is involved, there is a presumption in favor of the public interest in prosecution. See HCJ 935, 940, 935/89 Ganor v. Attorney-General [10] at 509 (Barak, J.). Moreover, “the graver the charge, the greater the public interest in the accused standing trial.” Id. at 510. The severity of the crime may be reflected in its elements and in the punishment that the law provides. See Findings of the Commission Examining the Exercise of Judicial Discretion in Sentencing 12 (1998) [33]. At times, the very fact that a particular act or behavior is criminal indicates that its commission involves a severe breach of important social values, whose protection demands a social response in the form of criminal prosecution. The severity of the offence may be expressed in the concrete circumstances of its commission, such as premeditation, the substance of the offence, the intent to obstruct justice and the use of weapons. Id at 22-24. The crime’s severity may also be assessed by “how widespread the criminal behavior is. In addition, the destructive influence of a given act on a society and orderly government also points to the offence’s severity.” Ganor [10], at 510 (Barak, J.)

In light of this, we now discuss the severity of the offences attributed to the petitioners.

B. First, we turn to the normative aspect of the alleged offenses. The indictment attributes serious crimes to the petitioners, involving the breach of army discipline and rioting, the uttering of threats, and the use of violence against superiors. While we do not take the other crimes that the petitioners are charged with lightly, particular importance attaches to the offense of rioting. Few are the offences in the Military Jurisdiction Law that are deemed graver than this offence. The gravity of the offence is reflected in the harsh maximum sentence set out for this offence—fifteen years in prison. Under certain circumstances, when this offence is committed with arms or while uttering threats, the maximum punishment provided is a life sentence. Military Jurisdiction Law, § 46(A).

The elements of the offence also attest to its severity. “Rebellion” is defined under article 46(B)(1) of the Military Jurisdiction Law as a situation in which at least three soldiers armed with weapons, or using force against their superiors, disobey orders. We are dealing with a combination of several elements—the use of force, including potentially deadly force, against a commanding officer, in the context of the commission of an act, which must be coordinated collectively, by a number of individuals. Each of the enumerated elements constitutes an aggravating element, involving a severe breach of military discipline. The combination of these aggravating elements suggests the severity of the crime.

C. The severity of the offences attributed to the petitioners is further amplified by the particularly significant weight attached to the criminal prohibition against the violation of military discipline.

In relation to military service, the term “discipline” is defined as “deep-seated awareness of the authority of the commanding authority and the readiness to obey orders unconditionally—even under difficult and dangerous circumstances.” A. Mudrik, Court Martial 62 (1993) [30]. True, this value is not absolute. Indeed, under particular circumstances—when an order is blatantly illegal—the law sets out a duty not to obey. See Penal Law, § 34(13)(2); see also Military Jurisdiction Law, § 125. Nevertheless, no one disputes the fact that the observance of discipline is crucial to the military, which is judged by its ability to deal with extreme situations, where individuals risk their lives. Y. Dinstein stated the crucial nature of this interest in his book entitled The Defense of "Obedience to Superior Orders" in International Law 5 (1965) [32]:

An army by its very nature is founded on the basis of discipline. Discipline means that every subordinate must obey the orders of his superiors. And, when we deal with army, ordinary discipline is not enough. Military discipline is designed, ultimately, to conduct men to battle, to lead them under fire to victory, and, if and when necessary, to impel them to sacrifice their lives for their country…The success of the military objective, to wit, victory in battle, as well as the lives of many soldiers, and, above all, the security of the nation, seem, therefore, to compel "total and unqualified obedience without any hesitation or doubt" to orders in time of war and emergency, and complementary training and instruction in time of peace.

For similar statements, see the words of Justice B. HaLevy in HCJ 3/57 Military Prosecutor v. Milinky [21], at 213; see also HCJ 676/82 The Histadrut v. The Chief of Staff [11], at 112).

This interest finds expression in the laws governing soldiers serving in the Israel Defense Forces ("IDF"). Thus, article 3 of the Israel Defense Forces Ordinance-1948, provides that it is incumbent on every soldier serving in the IDF to take an oath of allegiance to the State of Israel, to its laws and authorized government. The oath states the following: “I take upon myself, without conditions or qualification, to accept all instructions and directives given by the authorized superiors.”

Alongside the oath, the Military Jurisdiction Law sets out prohibitions, which include sanctions against those breaching army discipline. These include the prohibition against behavior disruptive to military operations, Military Jurisdiction Law, § 45, the prohibition against mutiny, Id., §§ 48-50, and prohibitions against refusing to obey orders and disobeying orders, Id., §§ 122-124. Some of these offences are severe, and are accompanied by long prison terms—in certain circumstances even life imprisonment. It should be noted that the petitioners are subject to these statutory norms since the Military Jurisdiction Law also governs those in military custody, Id., § 8(1), and those deemed to be “soldiers” for the purpose of the law, Id., § 16.

These prohibitions, whose purpose it is to protect army discipline, encompass a broad spectrum of offences, from relatively light offences to those that are grave and severe. The offence of rioting is found at the most severe end of this spectrum. A situation involving a number of soldiers using force against their superior, while collectively disobeying binding orders, is, for the military, intolerable. It reflects the breakdown of all discipline a complete repudiation of the basic values of the military. There is a clear public interest in using the criminal law to punish such an offence—particularly when it is accompanied by violent offences and threats against superiors.

D. One may question whether these values of army discipline apply in full force to military prison facilities, as they do to army units on active duty. One may argue that considerations underlying the duty of discipline, such as a soldier’s ability to deal with life-threatening situations, do not apply to inmates in military prison facilities, some of whom will not continue to serve in the military after serving their sentence. Indeed, the petitions reveal that at least some of the petitioners were discharged from army service and will not return to duty upon completion of their sentence.

This argument may be answered in two ways. First, military prisons are an integral part of the army. It would be artificial and dangerous to try to separate these facilities from the army in general. Sending the message that there are "islands" in the army that are not subject to the basic values of military service is liable to weaken these values. This may lead to repeated attempts to test the boundaries of various military frameworks, including combat units. We cannot draw distinctions between various army units, linking a unit’s “combat capabilities” to the value of discipline in it. The risks of such an approach are difficult to dismiss. As such, no distinctions should be made between military prison facilities and any other army unit for the purpose of imposing discipline.

Second, the value of discipline is important, not only because the petitioners are subject to the Military Jurisdiction Law, but also because we are discussing a prison riot. “Order and discipline are at the foundation of the prison system. In the absence of order and discipline—in the broad sense of these terms—no longer shall prisons be able to exist and the entire system will fall apart.” CA 4463/94 Golan v. Prisons Authority [12], at 173 (Cheshin, J.). In comparing prisons to other organizations in which discipline is a basic value, Justice Cheshin noted:

Prisons are similar to the army or the police, and the demands of order and discipline in a prison are necessarily more restrictive, if only due to of the nature of its population. Prisons house those who have broken the law, including dangerous and hardened criminals, many of whom are embittered and convinced that society has mistreated and wronged them, quarrelsome individuals, with a low threshold for incitement to violence, easily fired-up and lacking any motivation to help and be helped.

Id. See also Id., at 154-61 (Mazza, J.)

This interest finds expression in the special provisions set out in the army disciplinary code, alongside the penal guidelines found in the Military Jurisdiction Law. We are referring to the arrangement set out in the Military Jurisdiction Law (Military Prison Facilities)-1997, by which various punishments may be meted out by prison authorities in the event of a breach of prison discipline. Id, at §§ 59, 60. The regulations set out disciplinary punishments, such as the denial of rights to visits, letters, and cigarettes, solitary confinement, and even restricting parole eligibility by as much as twenty-eight days. It shall be noted that an inmate may also be tried for an offence under article 133 of the Military Jurisdiction Law (Failure to abide by Military Instructions) for certain disciplinary offences, including insulting a staff member or visitor, hitting a fellow inmate, or breaching a prison order or any other breach of instructions given by a superior or other prison staff member.

It therefore follows that the value of preserving discipline also applies in full force to prisons—particularly military prisons.

E. The gravity of the offence in question is further aggravated by the circumstances of the matter. The petitioners are charged with participating in a riot, committed by violent means against superiors. The rioting involved the taking of hostages, some of whom were tied and gagged. The riot was premeditated and coordinated by a large group of participants, using various weapons. All this in a military prison facility.

These serious circumstances serve to heighten the severity of the offence. Moreover, the use of violence and threats against prison staff and military superiors in itself constitutes a severe breach of prison discipline—even aside from the offense of rioting. Consequently, it is difficult to dismiss the severity of the deeds attributed to the petitioners and the public interest in their standing trial.

F. In their petition, the petitioners dwell on the motivating circumstances for their takeover of Company C. Do these offer any justification for their actions, which may serve to weaken or overcome the public interest in bringing the petitioners to trial?

First, I will note that the framework of the hearing before the High Court of Justice makes it rather difficult to make factual findings regarding issues such as this, particularly when the parties do not agree on the facts. Without deciding the matter, it is my opinion that, to the extent that the motivating circumstances of the uprising can provide a defense for the petitioners—and to the extent that they may serve to lighten the punishment—they should be raised and the necessary facts should be presented to the military tribunal hearing the case.

To begin with, it is plain to see that the prison, and particularly Company C, was far more crowded than permitted. On several occasions it housed twice the number of inmates allowed in such a facility. It also appears that such a situation posed a threat to the inmates’ health. All agree that the physical conditions in the prison—an old structure, built during the British mandate—are difficult. On the face of it, this state of affairs is irreconcilable with the inmates’ right to dignity, enshrined in the Basic Law: Human Dignity and Liberty. See HCJ 540-546/84 Yosef v. Central Prison Warden of Judea and Samaria [13], at 573; Motion Crim. App 3734/92 The State of Israel v. Azami [14], at 84-85.

I find it highly doubtful that the minimum standards of prison conditions were indeed met in this instance. The possibility that these conditions contributed to the incidents at issue here should not be denied. At the same time, however, it should not be forgotten that the demands of the petitioners after taking over the facility did not even raise the issue of overcrowding. The rioter's demands touched on other aspects of their lives in prison. Regarding those claims, the IMP found some truth in the claim regarding the drills. It did not, however, find any basis in the other claims.

Furthermore, the evidence before this Court fails to indicate that the petitioners took advantage of the opportunities that the law afforded them to legally raise their grievances, prior to taking extreme measures. The petitioners assert that they sent a written request to the warden two months before the incident. However, even if such a request was in fact made—we note that a copy of the request was not attached to the petition—and even if this request did go unanswered—as the petitioners contend—this does not serve to justify the petitioners’ choice to resort to extreme measures. The petitioners could have turned to the courts, including the High Court of Justice, with their grievances regarding prison conditions. See HCJ 5133/97 Bitton v. The Chief Military Police Commander [15] (dealing with prison conditions in Compound 6, submitted on August 25, 1997, after the rioting). Indeed, all agree that, at the time of the incident, the inmates had access to the free services of the Military Public Defender, free of charge, had they chosen to bring their grievances to the courts.

The petitioners, however, did not pursue this course of action. Instead, they chose to try to advance their cause by breaking all the rules, and through the use of violence. Bearing in mind the circumstances behind the riot—as far as this is possible through the evidence before us—I believe that the magnitude of the public interest in trying the petitioners stands firm.

G. Another factor in deciding whether the authorities can repudiate the agreement would be a change in circumstances after the time of the signing of the agreement. See Arbiv [4], at 403-05. Clearly, such a change may cause an agreement previously seen as serving the public interest to no longer be considered as such. Consequently, such a change may serve as an additional consideration in justifying the authorities’ release from their obligations. This having been said, it is important to emphasize that a change in circumstances does not constitute a decisive ground for releasing the authorities from their obligations. In the final analysis, the issue is the public interest that the authorities are charged with. Even absent a change in circumstance, the decision to repudiate an agreement may be deemed reasonable, when the agreement severely harms a significant public interest. HCJ 5018/91 Gadot Petrochemical Industries. v. The Government of Israel [16], at 784 (Netanyahu, J.). Similarly, it is said that the authorities may repudiate an agreement even if “the contracting was preceded by administrative negligence,” provided that a weighty public interest is at stake. Barak-Erez, supra. [27], at 183; see also HCJ 636/86 Jabotinsky Estate Workers Cooperative v. Minister of Agriculture [17], at 710. Therefore, even in the absence of a change in circumstances, the authorities may still retain the prerogative to repudiate section 5 of the agreement.

To this we should add that, in this instance, a change in circumstances did occur between the time that the agreement was signed and the decision to repudiate it. The evidence before us reveals that at the time that the authorities decided to enter the agreement in question, those conducting the negotiations truly feared for the lives and safety of those besieged in Company C. This fear was based on the fact that the siege was a violent one, accompanied by the use of force and threats, the fact that the rioters were armed with various weapons, the determination they showed, and the fear that their judgment would be affected the longer the incident was drawn out. These circumstances, alongside the desire to prevent injuries and the loss of life, to a significant extent, compelled the army authorities to sign the agreement. These circumstances were no longer in force when they decided to repudiate it.

Given this, I am convinced that the analogy that petitioners sought to draw between this agreement, and between plea bargains and immunity agreements, is inappropriate. We are not dealing with an agreement concluded under circumstances allowing for reflection and consideration of the circumstances. Instead, the negotiation team was forced to make their decisions under severe pressure and concrete threats to human lives and safety. This did not allow for sufficient consideration of the options available to the negotiations team —whether to commit to refrain from pressing charges against the rioters and, if so, whether to qualify this commitment. The position was justifiably premised on the desire to protect the lives and physical integrity of those in the besieged compound.

A substantive change took place after the riot ended. At that stage, it became possible to examine the significance of the provision that provided that the rioting inmates would not be made to stand trial. The evidence before us suggests that such consideration and deliberation did indeed take place. It is therefore my opinion that, under exceptional circumstances the likes of those before us—in which an agreement was signed for fear of the loss of lives—it should be said that, after the moment of truth has passed, the circumstances have changed so as to justify a careful reassessment of the public interest.

H. These statements also answer another contention of the petitioners. Petitioners argue that an agreement with the rioters could have been reached even without a commitment to refrain from pressing charges. From this, petitioners ask the Court to conclude that the authorities committed to this obligation out of their own free will and not under the pressure of the circumstances at the time.

I do not agree. As noted, the circumstances of the incident gave rise to a concrete fear for the lives and safety of both the hostages and the rioters themselves. This is the only way to understand the circumstances and this is the way the military negotiation team understood them. Plainly put, the army authorities had no interest in promising not to prosecute the rioters unless making such a commitment was crucial to prevent the loss of life. As such, this claim of the petitioners does not reflect the concerns and considerations at the time, and should be rejected.

I. To summarize, the offences attributed to the petitioners involve a breach of the basic principles of the military and of prison discipline. Pressing criminal charges in response to such deeds is essential to prevent the dissemination of a dangerous message regarding the weakness of army discipline. The failure to press criminal charges in response to the riot—particularly when these acts involved the use of violence—is liable to encourage similar behavior in other prison facilities.

It shall be noted that there is evidence pointing to the fact that this fear is not negligible. The petitioners’ responses indicate that several serious breaches of discipline, which may be deemed riots, occurred in military prisons this past year. These incidents, organized by groups of inmates, involved violence and the destruction of property. Indeed, respondents make a point of stating that a riot attempt in another military prison occurred shortly after the riot in Compound 6 and was inspired by it. As such, we are dealing with a pattern of criminal behavior, liable to cause severe harm to ordered social life and good government. There is therefore a significant public interest in criminally prosecuting such behavior.

The Ruling

16. We have addressed aspects of the public interest which may justify allowing the authorities to repudiate section 5 of the agreement. We have also addressed the petitioners’ reliance and expectation interests. The issue that must now be decided is whether the authorities’ decision is reasonable. To this end, we are guided by the rule that the Court will not substitute its judgment for that of the authorities. Hence, the issue is not whether, under the circumstances of the incident, the Court would have opted for a different course of action, but rather whether the course of action chosen by the authorities is legal—this is to say whether it is within the parameters of reasonable options available to the authority in question.

To my mind the authorities’ course of action should not be deemed unreasonable—a finding that would require judicial remedy— notwithstanding the fact that a different solution may have been reached to end the riot. On the one hand, the case here involves a significant public interest in the authorities’ credibility, in addition to the interest that the promise made to the petitioners, that they would not be made to stand trial, be kept. On the other hand, there is a significant public interest in releasing the authorities from this commitment, given the severity of the offences attributed to the petitioners and in light of the circumstances surrounding their commission. Attaching the proper relative weight to each of the relevant factors is by no means an easy task. We are dealing with a multi-faceted case, involving complex facts. There are considerations and arguments pointing in opposite directions. The prosecution's difficult deliberations in deciding whether to repudiate the agreement are, as such, quite understandable. We must, however, reiterate and reemphasize that the power to make this decision—and the responsibility of shouldering its consequences—rests with the authorities, and only a decision that lies out of the parameters of reasonableness can justify the Court’s intervention in this matter.

I have considered the totality of the circumstances and concluded that the Court should not interfere with the decision not to respect the fifth provision of the agreement. In so deciding, it is not my intention to deny that the authorities could have very well reached a different decision, which the Court would presumably also not have interfered with. However, the mere existence of another reasonable option does not, in and of itself, constitute cause for interfering with the decision of the authorities which, as noted, also stands the test of reasonableness.

17. I note that my decision stands regardless of the argument raised in HCJ 5319/97, according to which the authorities’ decision fails to meet the tests of proportionality set out in our case law. See HCJ 4330/93 Gans v. The District Committee of the Tel-Aviv Bar Association [18]; HCJ 3477/95 Ben-Attiyah v. Minister of Education, Culture, and Sport [19]. According to this argument, the authorities are allowed to repudiate obligations that touch on violent offences attributed to the petitioners. They cannot, however, be released from their obligations relating to the offence of the takeover itself and the offences of extortion and the making of threats.

In my opinion, such a distinction lacks any basis. I noted above that there is a clear public interest in pressing charges for the offense of rioting, in light of its severity under the circumstances. Indeed, the distinction presented in HCJ 5319/97 is based on the understanding that the riot contained an element of a legitimate “outcry,” given the prison conditions. I dealt with this argument above, noting that the petitioners failed to factually back up this contention.

Fairness

18. Petitioner number 1 in HCJ 5319/97 argues that the failure to keep the promise of section five of the agreement supplies him with the fairness defense under the circumstances. This refers to the Court’s inherent power not to hear particular charges, when it cannot, as per Justice D. Levin in Yeffet supra. [6], at 370:

give the accused a fair trial or when hearing the case would offend our sense of justice and fairness, as the Court understands it. The determining test is the whether the authorities behaved intolerably. This refers to arbitrary behavior, involving persecution, oppression and abuse of the accused.

First, I point out that the place of this argument is in the trial court and not before the High Court of Justice. It has been held that for the High Court of Justice to grant such a petition

requires a clear and unequivocal factual basis revealing an extreme degree of arbitrariness in the exercise of the said power….In general, the "fairness defense" argument shall be considered as a "defense" during the criminal hearing before the court of first instance.

HCJ 1563/96 Katz v. The Attorney General [20], at para. 8. This standard has not been met here.

To this I would add that, according to the evidence before us, the said defense is not available to the petitioners. Indeed, it has been held that this defense applied in a similar matter, in which the authorities breached a promise to give immunity to rioters who took over the Parliament of Trinidad and Tobago. See Phillip supra. [24], at 108. Nevertheless, the case here does not appear to involve the sort of behavior by the army authorities that would make this defense available to the petitioners, under the standard of Yeffet supra. [6]. Indeed, the evidence does not justify a holding that the authorities’ chosen course of action, including the prosecution, was, under the circumstances, illegitimate, so as to taint the criminal proceedings taken against the petitioners and have them deemed a wrongful use of legal proceedings. See Bennet v. Horseferry Road Magistrates’ Court (1993) 3 All. E.R. 138, 151 (H.L.) [25]. Moreover, no evidence points to the fact the petitioners can not receive a fair trial. See Letif supra. [22], at 361.

19. The petitions are rejected. The orders nisi and interim orders issued in connection with these petitions are cancelled. Under the circumstances, an award for costs shall not be made. In order to remove any trace of doubt, we emphasize that this ruling in no way serves to weaken the parties’ arguments made in the criminal proceedings on the matter, before the military tribunal.

Justice D. Dorner

I agree.

Justice Y. Turkel

It is with a heavy heart that I join the opinion of my esteemed colleague, Justice Or.

The requirements set out by our Rabbis regarding conducting negotiations in good faith and concerning ’s the keeping of one's word, see Midrash Mechilta, Beshalach, 15 [35]; Babylonian Talmud, Tractate Shabbat 31a [36]; Babylonian Talmud, Tractate Baba Metzia 44a; 48b [37], were imposed on the individual more as a matter of morals and ethics, rather than as legal obligations. To my mind, these requirements are just as valid today as they were in the past, and apply not only to relationships between individuals but to the authorities and to government officials conducting negotiations with the public. Their foundation is to be found in the province of morals and ethics, in addition to considerations of efficiency. I shall refrain from making a pronouncement on the legal basis of such duties at this juncture, for such a discussion is unnecessary for our purposes.

I will not deny that given the significant weight, which, in my view, attaches to these considerations, I initially leaned towards a different decision. Likewise, I considered whether the authorities’ decision in this instance truly satisfied the test of proportionality. The petitioners’ cries may have reached the heavens, but they nonetheless failed to reach the prison wardens. Such cries should have been heard and should perhaps have been taken into account in deciding whether to press charges.

One way or another, I can only push away my doubts and accept my colleague’s conclusion that there is no room for the Court’s interference in the authorities’ decision not to respect the provisions of section 5 of the agreement. Indeed, while the authorities may have very well reached a different decision in this matter, this, in and of itself, does not justify our intervention here.

Roman law recognized a type of decision known as “Non liquet”. This referred to a judge’s announcing his inability to rule one way or another. See Dr. Alkushi A Wealth of Latin Terms and Expressions [34], at 320 and legal dictionaries. In my view, this term also characterizes our decision to reject this petition. It is best left to stand as such, somewhat nebulous and equivocal, ending in both an exclamation and a question mark.

Decided as per the opinion of Justice Or.

24 November 1997

Full opinion:

Kogen v. Chief Military Prosecutor.pdf

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

http://elyon1.court.gov.il/files/97/190/053/E10/97053190.e10.pdf

Adam v. Knesset (summary)

Case/docket number:

HCJ 7146/12

Date Decided:

Monday, September 16, 2013

Decision Type:

Original

Topics:

Constitutional Law

Basic Law: Administration of Justice

Prisoners’ Rights

Abstract:

In a judgment given on 16 September 2013, an extended panel of nine Justices of the Supreme Court of Israel decided the question of the constitutionality of the arrangement enacted by the Knesset in 2012, in amendment no. 3 of the Prevention of Infiltration Law (Offenses and Adjudication), 5714-1954, which allows holding infiltrators in custody for a period of three years.

All nine Justices of the panel held, unanimously, that the arrangement is unconstitutional because it disproportionately limits the constitutional right to liberty determined in Basic Law: Human Dignity and Liberty.

Regarding the scope of constitutional relief the court held, by a majority of President A. Grunis, Deputy President M. Naor and Justices E. Arbel, S. Joubran, E. Hayut, Y. Danziger, U Vogelman and I. Amit, that all the arrangements determined in the various provisions of section 30a of the Prevention of Infiltration Law must be annulled. Justice N. Hendel dissented, holding that only the provisions of section 30a(c) of the Prevention of Infiltration Law should be annulled. The Court further held that at the time of the annulment of the law, the provisions of the Entry into Israel Law, 5712-1952 will enter effect, such that the custody and deportation orders issued will be seen as if they were given pursuant to it. It was additionally held that the process of individual examination and release of all being held in custody must commence immediately. The process of examination of all those in custody was limited to a period of 90 days from the day of the judgment.

Voting Justices:

Arbel, Edna

Primary Author

majority opinion

Grunis, Asher

Author

concurrence

Naor, Miriam

Author

concurrence

Joubran, Salim

Author

concurrence

Hayut, Esther

Author

concurrence

Danziger, Yoram

Author

concurrence

Vogelman, Uzi

Author

concurrence

Amit, Isaac

Author

concurrence

Full text of the opinion:

The Supreme Court

HCJ 7146/12 Adam v. the Knesset

Regarding the Constitutionality of Amendment no. 3 to the Prevention of Infiltration Law

Summary of the Judgment

The Essence of the Opinion of Justice E. Arbel

Justice E. Arbel, who wrote the central opinion in the case, surveyed the phenomenon of infiltration into Israel in recent years, noting that there are approximately 55,000 infiltrators present in Israel. Justice Arbel discussed that most of the infiltrators originate from the countries of Eritrea and Sudan, and discussed the difficulties that people from those countries experience. She also clarified that regarding citizens of Eritrea, the State of Israel today applies the international principle of non-refoulement, meaning that the state will not send a person to a place where his life or liberty are in danger. Sending people back to the Republic of Sudan is not possible due to the lack of diplomatic ties with Israel. That means that the state is confronted with a significant phenomenon of tens of thousands of infiltrators into its territory, who at this stage cannot be deported from its territory, for practical or normative reasons.

Justice Arbel further discussed the implications of the infiltration phenomenon for society in Israel. Regarding crime committed by infiltrators, she noted that there is disagreement regarding the factual situation, whereas there are studies that show that the level of crime committed by infiltrators is lower than that in society in general. She however emphasized that the distressful feeling of the residents of South Tel Aviv that the level of security in their neighborhoods has decreased considerably, should not be underestimated. Also mentioned were implications for the Israeli labor market, as well as budgetary implications. Justice Arbel noted that as of the end of 2010, the infiltrators constituted only 20% of the non-Israelis working in Israel without a permit, such that the difficulties on that issue stem only partially from the infiltration phenomenon. In conclusion, Justice Arbel noted that the picture is complex and contain hues of grey, in contrast to the black and white with which the parties wish to color it.

Justice Arbel further discussed the normative situation on the eve of the amendment to the Prevention of Infiltration Law, the background behind its legislation, and the amendment's provisions. She noted that the amendment began to be implemented in June 2012, and that at the time of the case approximately 2,000 infiltrators were in custody pursuant to it.

In the framework of the constitutional examination of the amendment, Justice Arbel determined that it limits the right to liberty enshrined in Basic Law: Human Dignity and Liberty. She discussed the importance of this right, which is one of the basic rights of the individual and is based upon the values of the state as a Jewish and democratic state.

At the next stage, Justice Arbel examined whether the limitation of the right to liberty withstands the conditions of the limitations clause in the basic law. It was held that the limitation is made by a statute, and that the point of departure should be that the amendment befits the values of the State of Israel.

As for the condition regarding a proper purpose, Justice Arbel discussed the two purposes of the amendment. One purpose is preventing infiltrators from settling in Israel, and the state's need to deal with the implications of the phenomenon. It was held that this purpose does not raise difficulty. The second purpose, as presented by the state, is to curb the infiltration phenomenon. Justice Arbel clarified that the meaning of this purpose is actually deterrence. In other words, the very placing of infiltrators in custody deters potential infiltrators from coming to Israel. Justice Arbel emphasized that this purpose creates difficulties that are not negligible. A person is taken into custody not because he personally presents any danger; but rather in order to deter others. He is treated not as an end, but rather as a means. That treatment is undoubtedly an additional limitation of his dignity as a person. Justice Arbel discussed the caselaw of the Supreme Court, and the standpoint of international law, which reinforce the doubt whether this purpose is a proper one. However, Justice Arbel was willing to assume that the purpose is proper, noting that in an extreme situation in which this purpose becomes most necessary for the state and the preservation of its most basic interests, it may be possible to justify such a purpose.

Justice Arbel then progressed to the proportionality test. Regarding the first subtest, it was held that theoretically, there is a rational nexus between taking infiltrators into custody and preventing their settling in Israel and the negative implications stemming from their presence in the cities of Israel. However, the way the amendment is actually implied should be considered. According to the data, there are 55,000 infiltrators in Israel. Of them, only 1,750 are in custody, whereas, at the time of the case, that was the maximum volume that could be held. That means that there is great doubt whether that purpose is actually fulfilled.

The picture regarding the rational nexus between the deterrence purpose and the taking of infiltrators into custody is not clear. The difficulty stems, inter alia, from the disagreement whether the infiltrators are mere labor immigrants, or refugees fleeing from atrocities in their countries. Nor does the numerical data, which indicate a drastic reduction in the number of infiltrators reaching Israel since the middle of 2012, lead to a clear conclusion. The main difficulty stems from the fact that taking infiltrators into custody was carried out simultaneously with the completion of the border fence between Israel and Egypt. The simultaneity of these processes creates a lack of clarity regarding the contribution of each factor to the decrease in the number of infiltrators. Justice Arbel thus assumed that this proportionality subtest is satisfied.

Justice Arbel held that the second subtest, regarding choosing the least harmful means, is not satisfied. To the extent that the purpose of the amendment is deterrence, there are considerable chances that the border fence between Israel and Egypt will be sufficient. As for the purpose regarding settling in Israel and the negative implications of the infiltration phenomenon, a variety of alternate means that will fulfill that purpose in a less harmful way can be formulated. Thus, for example, duties to report can be created; area of residence can be limited; infiltrators can be required to stay at a facility at night; some of the foreign workers can be replaced by infiltrators; enforcement against human smugglers can be intensifies; the local authorities can be reimbursed for their expenses in handling the infiltrators; police monitoring can be intensified in areas with high concentrations of infiltrators; labor laws can be more strictly enforced; and more. Such means can be employed alongside means of monitoring and punishment, as well as actions taken in order to allow the deportation of infiltrators from Israel. Justice Arbel also surveyed the way other countries in the world confront similar phenomena via various means, without denying liberty for a long period of time.

In obiter dictum, Justice Arbel also examined the third subtest of proportionality, regarding the existence of a reasonable ratio between the limitation of the constitutional right and the benefit stemming from the limitation. It was held that this subtest is also not satisfied. Imprisoning the infiltrators and denying their liberty for a long period of three years is a critical and disproportionate blow to their rights, their bodies and their souls. The limitation is a most severe one, of high and great intensity. It is uncontroversial that most of the infiltrators arrive from countries in which their living conditions are most difficult, and where the human rights situation is very bad. This fact should also be taken into account when measuring the intensity of the limitation.

On the benefit side of the scales, it was held that in light of the severe limitation of the right to liberty, the state must be prepared to take on the economic burden involved in confronting the infiltrators. Regarding the implications for the local population: they continue to deal with the difficulties now, as most of the infiltrators in Israel are not in custody. Considering that there are many alternative means that the state can employ, and considering the border fence with Egypt and the possibility of improving its efficiency, it cannot be said that the benefit attained by taking infiltrators into custody is greater than the severe limitation of their rights.

Justice Arbel emphasized that an unbearable situation might occur, in which infiltrators continue to swarm into the State of Israel despite all the other means employed, putting the state in danger of severe harm to its vital interests. In such a situation it will be possible to say that the benefit is not less than the damage, and Israeli society cannot endanger itself for the people of other countries. However, in her opinion we are very far from that dark forecast.

Justice Arbel noted, in conclusion, that the result of this judgment will not be easy for the Israeli public, and will be particularly difficult for the residents of South Tel Aviv, whereas the distress reflected in their cry sounds heartfelt, and evokes empathy and understanding regarding the need to assist them in the situation in which they find themselves. She further added: "I want to believe that the state will be able to find the way to deal with the situation that has arisen through means it has at its disposal and to ease their distress. Woven like a thread in this opinion is the attempt to clarify and persuade that it is not correct to choose a solution that, prima facie, seems simple – a long period of custody – as it is a most harmful means toward any person, certainly most harmful to infiltrators held in custody for a long period. I reiterate that one of the most important basic rights of a person, which is at the tip of the pyramid of rights, is the right to liberty. Since ancient times, people always have fought for freedom. Limitation of the right to liberty is one of the most severe limitations that one can think of. Denying the freedom of the infiltrators by imprisoning them for a long period is a critical and disproportionate limitation of their rights, their bodies and their souls. We should not solve one injustice by creating another injustice. We cannot deny fundamental basic rights and at the same time coarsely limit human dignity and liberty in the framework of a solution to a problem that requires a fitting comprehensive political solution. I have noted in the past in another context that 'the needs of one group, important as they may be, cannot be satisfied by limiting the needs and rights of another group in the population" (FH 10007/09 Gluten v. The National Labor Court, par. 29 of my judgment (18 March 2013)). We must not forget our basic principles that flow from the declaration of independence, and our moral duty toward every person, as a person, as they are etched on the basic pattern of the state as a Jewish and democratic state."

The relief granted in the petition is annulment of section 30a(c)(3) of the Prevention of Infiltration Law, that determines the taking into custody of infiltrators for a period up to three years. No separation can be made between the parts of the amendment when its central provision is void. The conclusion is therefore that in actuality, all of section 30a will be annulled, and the existing arrangement in the Entry into Israel law will take its place.

The Essence of the Opinion of Justice U. Vogelman

In his judgment, Justice U. Vogelman concurred in the conclusion of Justice Arbel that the custody arrangement determined in amendment no. 3 of the Prevention of Infiltration Law is unconstitutional, and that it must be annulled. Justice Vogelman held that the amendment was in fact intended to deal with immigrants that the State of Israel does not deport to their countries of origin at the present time: citizens of Eritrea and citizens of North Sudan. The factual picture regarding this group is complex. Although the economic motivations of these immigrants should not be ignored, their claims of international protection, against the backdrop of information regarding their states of origin as well as policy employed regarding them de facto by the State of Israel and the countries of the world, cannot be aloofly brushed aside. In the framework of the constitutional examination, Justice Vogelman concurred in Justice Arbel's determination that the amendment severely limits the infiltrators' right to personal liberty. Similar to Justice Arbel, Justice Vogelman did not wish to rule on the question whether the purpose behind the amendment is a "proper purpose", although that question raises difficulty, because in any case the provisions do not withstand the proportionality tests, as they were outlined in caselaw.

It was held that the critical limitation of the right of those held in custody to personal liberty does not have a proportional relationship to the alleged benefit of the amendment. In addition, the arrangement set out deviates from the accepted principles in immigration law in Israel and the world regarding denying the liberty of persons who are in the country illegally. It was further noted that there are other alternatives (including those employed in the rest of the world) for dealing with a phenomenon of infiltration, which can fulfill the purposes of the amendment – albeit not fully – while limiting the right to personal liberty to a considerably lesser extent. Justice Vogelman wondered whether the state can rely upon the negative implications of the infiltration phenomenon of recent years as a justification for employing harmful means, without making any attempt to confront those implications through alternative means that are less harmful. On the plane of relief, Justice Vogelman opined that there is no choice but to annul the possibility of employing the custody arrangements determined in section 30a of the law entirely, as according to his line of reasoning, annulment of only section 30a(c)(3) of the law would not lead to the desired result. Due to the critical limitation of the infiltrators' right to personal freedom, the declaration of voidness of the amendment provision should not be delayed. As a result of the declaration of voidness, the cases of all of the infiltrators upon which the amendment was employed shall be examined according to the arrangement set out in the Entry into Israel Law. The authorities must examine the cases of those who are in custody immediately, and those who can be released – should be released immediately. The period of ninety days determined for examining the causes for release set out in the Entry into Israel Law and their caveats is the maximum period for examining the cases of all of those in custody, due to their large number. As noted, a person whose examination has been completed and regarding whom there is no cause to prevent release – shall be released without delay.

The end of the judgment states: "the challenge which the State of Israel must confront and has had to confront in light of the unarranged immigration of tens of thousands of people from Africa into its borders is a difficult one. In my judgment, I have laid an extensive framework regarding the societal, economic and other difficulties it entails. No one disputes that the state cannot stand by and do nothing, and that it must confront this complex phenomenon. That is not only a discretionary power granted to the state; it is a duty imposed upon it, toward its citizens and residents. There are no magical solutions. At the center of our discussion is the issue of the constitutionality of the means chosen to do so. In a democratic society, not all means are legitimate. That is also the case regarding the arrangement which has been put forth for our constitutional examination. As difficult as the mission that the State of Israel is required to confront against its will may be, we must remember that those who have already passed through our gates are now among us. They are entitled to the right to liberty and the right to dignity granted in the basic law to any person, as a person. Limitation of these rights is possible only for a proper purpose and to an extent that is not excessive. The means chosen by the state does not withstand that standard, and does not successfully pass constitutional review. The arrangement determined in the amendment, the annulment of which we declare here, limits the right to personal liberty, which is a basic right of every person as a person, in a critical and disproportionate way, deviating from the principles accepted in Israel and in the rest of the civilized world. Thus, the custody arrangement set out in the amendment must be annulled".

The Essence of the Opinion of Deputy President M. Naor

Deputy President M. Naor concurred in the opinions of Justices Arbel and Vogelman, noting that at the time of legislation of the amendment to the law under discussion in the petition, a well rooted principle already existed in the caselaw of the Supreme Court according to which a person cannot be held in detention if he cannot be deported within a certain time. The means of detention for a long period is not a proportionate one.

The Deputy President further noted that there is no doubt that the state has the right to hold the "keys to the house" and determine who enters its gates. Due to its geopolitical situation, the State of Israel found itself dealing with a very large number of infiltrators, well beyond its size in relation to other democratic states. The infiltrators are guests for a time, although that time is becoming longer. The infiltrators are not entitled to make aliya [the right of Jews to return to Israel and receive citizenship]. The state is allowed to find legal ways to deport them; ways that befit the caselaw of the Supreme Court of Israel and accepted international law.

The Deputy President further wrote: "the State faces a reality – forced upon it against its will – which it must confront. That confrontation poses difficulties that entail challenges. Those challenges require creative solutions. This could be the state's finest hour, if, in a reality forced upon it, it is wise enough to find humane solutions, solutions that comport not only with international law, but also with the Jewish worldview. At the same time, this could also be the finest hour of human rights organizations and supporters of human rights. My colleague Justice Arbel referred (in par. 66 of her opinion) to possible cooperation between the agencies of the state and human rights organizations. I wish to concur in that. Human rights organizations can show that beyond the (justified) activity to annul the statutory provision, they also have great ability for constructive activity: to enlist volunteers, to guide and train infiltrators, and to assist them while they are here".

The Essence of the Opinion of Justice I. Amit

Justice I. Amit concurred in the opinions of Justices Arbel and Vogelman, according to which the statutory arrangement under discussion contradicts Basic Law: Human Dignity and Liberty, and must therefore be annulled.

Justice Amit determined that regarding those requesting asylum who have already entered the gates of the country, the state must treat them with open hearts and compassion regarding work, welfare, health and education, particularly in light of the march of tribulations they suffered on their way to Israel.

Justice Amit emphasized that the content of his opinion relates to the situation today, in which the number of infiltrators stands at approximately one percent of the population of Israel, as a fait accompli. At the same time, Justice Amit commented that one wonders about the numerical "red line" of what the state can bear without concern for a real limitation of its sovereignty, its character, its national identity, its cultural-societal character, the makeup of its population and the entirety of its unique characteristics, and without concern for its stability and of "breaking its neck" in terms of crowding, welfare and economy, internal security and public order. Against that backdrop, Justice Amit noted that when balancing between various basic rights or between basic rights and the vital interests of the state, we must be aware of the data, the assessments and the forecasts, as there are situations in which "quantity makes quality".

In any case, Justice Amit clarified that this is not the situation today, but assuming other situations and data, the result might change on the legal plane as well.

The Essence of the Opinion of Justice S. Joubran

Justice S. Joubran is of the opinion that at the stage of examination of the constitutionality of the purpose of the amendment to the law (in our case, curbing the phenomenon of infiltration), the Court must refrain, to the extent possible, from constitutional examination of the means to achieve it (in our case, detention of the infiltrators). In his opinion, the role of the proper purpose test is to provide an answer to the question whether the purpose of the statute provides sufficient justification for the limitation of the constitutional right.

The state's position was that the infiltrators' very awareness of the legal tools for confronting labor immigration influences their decision whether to immigrate into its borders. Justice Joubran was of the opinion that it is conceivable that the normative situation in a given country is a consideration that influences the decision of labor immigrants whether to "infiltrate" into it. In his opinion, there is no principled reason preventing means that constitute a "normative block" against labor immigrants. He is of the opinion that the desire of a country to formulate legislation that does not encourage labor immigration is not illegitimate; it does not deviate from its prerogative to determine who passes through its gates; it comports with its sovereignty, subject, of course, to the limitations clause, and its commitments pursuant to international law. This question becomes more complex regarding persons who are entitled to refugee status. In the current circumstances he is of the opinion that there is no need to decide that question.

The amendment to the statute allows holding infiltrators in custody for three years until their deportation; however, de facto their deportation is not possible, and they are destined to remain in custody. In the opinion of Justice Joubran, that situation limits the infiltrators' right to liberty, which cannot at this time be tolerated. Therefore, he concurs that the amendment must be annulled.

The Essence of the Opinion of Justice Y. Danziger

Justice Y. Danziger was also of the opinion that the arrangement determined in the Prevention of Infiltration Law (Offenses and Adjudication)(Amendment no. 3 and Temporary Provision), 5772-2012 is unconstitutional and must be annulled.

Justice Danziger wished to add that even if it can be assumed that there is an economic element to the choice of thousands of citizens of Sudan and Eritrea to come to the State of Israel, they cannot be categorized as mere illegal labor immigrants. It must be assumed that in some of the cases, they are refugees entitled to political asylum. However, the State of Israel chose not to examine individual asylum applications submitted by some of the Sudanese and Eritrean citizens, but at the same time refrained from deporting them back to their countries, either due to the "temporary non-deportation" policy, or due to other constraints.

The challenge the state is required to confront when dealing with unorganized immigration of a large scope intensifies due to the distress of the residents of the neighborhoods of South Tel Aviv, in which many of the immigrants live. The cry of the residents of the neighborhoods echo in our hearts, and their pain is our pain. However, the solution to that distress is not to be found in holding thousands of people – men, women and children – in custody in prison facilities for an indefinite period of time, without them being accused – needless to say put on trial – for anything, when there is no foreseeable possibility of deporting them. That is an extreme limitation of their basic right to liberty. The state has the duty to confront this complex problem in ways that comport with constitutional norms accepted in Israel and in the countries of the civilized world.

The Essence of the Opinion of Justice E. Hayut

Justice E. Hayut concurred in the judgment of Justice Arbel, and in the judgment of Justice Vogelman. She further commented that the State of Israel remains the only western democracy in the world with no organized immigration policy, and that ad hoc solutions are no substitute for such needed policy. According to Justice Hayut, the legislature responded to the need for a fitting and comprehensive normative arrangement with a very specific act that is problematic and extreme, by adding amendment no. 3 to the Prevention of Infiltration Law. That amendment has two faults. First, it contains no solution for the complex problems created as a result of the arrival of tens of thousands of infiltrators into Israel who have concentrated themselves in large groups in big cities and various communities. Imprisoning the infiltrators who have just arrived, and whose number is relatively small, is in this context a completely ineffective means. Second, she determined that the provisions of the amendment to the statute and the detention arrangement set out in it substantially enlarge and intensify limitation of the constitutional right to liberty of those illegally in the country, and a limitation of such an intensity exceeds the extent necessary in order to complete the process of their deportation. Justice Hayut further emphasized that the conclusion regarding the voidness of the statute does not mean that the legal situation prior to its legislation was satisfactory. The opposite is the case. The immigration policy issue cries out for a comprehensive legislative arrangement and long term thinking that might provide a proper solution for the many challenges it poses for Israeli society.

The Essence of the Opinion of Justice N. Hendel

The position of Justice N. Hendel is that the reality that led to amendment of the statute cannot be ignored: a flood of tens of thousands of illegal infiltrators, which mainly harmed the weaker socio-economic strata of society. That is the ground upon which the amendment to the statute grew, and that should not be forgotten. Of course, one cannot ignore the duty – which also stems from Jewish law – to act compassionately toward any person, as a person, "for the sake of paths of peace". However, alongside that duty there is also an additional duty in Jewish law: "the poor of your city come before the poor of another city". Balancing between both sides of the coin – on the public plane – is delicate, dependent upon the circumstances of reality, and is for the most part the domain of the legislature and the elected government.

When an infiltrator enters the country while clearly violating the law, the authorities may hold him in custody. However, a distinction must be made between the very act of holding him in custody, which is, in and of itself, necessary, and the length of the period of custody. That is the heart of the matter of this petition: does the maximum period of three years' custody withstand constitutional examination. The Court has the duty to examine the issue with strict constitutional review (strict scrutiny), which is familiar to us from American law. The significance of that is mainly that the issue must be examined not only at the time of the legislation of the statute, but also at the present time.

From data relayed by the state it appears that there has been a drastic reduction in the number of infiltrators: from thousands of infiltrators per month, to tens or even a single digit number of infiltrators per month. That decrease "shouts" for itself. There can be no comparison between a situation in which 10 infiltrators enter the country each month and a situation in which 10,000 infiltrators enter the country each month. In addition one must consider the fact that the section under discussion is defined as a temporary provision, which ex definitio responds to a certain reality – a reality which no longer exists. In the new circumstances which have been created, and until a change occurs in them, a more proportional means is sufficient: a maximum period of custody that does not reach, or even approach, 3 years. Comparative law that shows various solutions for the period of custody was presented. That does not obligate or limit Israel, but it may be of assistance to the Israeli legislature.

Thus, section 30a(c)(3) must be annulled. Along with it, the entirety of section 30a(c) must be annulled, as its provisions are derived from the maximum period of 3 years. That annulment is sufficient, and there is no need to annul the entire temporary provision as proposed by the majority in this case. There are two reasons for this. First, the other parts of the statute contain positive components, such as the causes for release, which are not subject to conditions regarding time. Second, that requires the legislature to concentrate upon the main issue – determining a different maximum period for custody, and will allow it to complete the job without deviating from the 90 day deadline which has been determined. Unnecessary pressure, which might not result in any benefit, should not be put on the legislature. The time remaining until the expiration of the temporary provision – 15 months – will grant the legislature time to think and to study the implementation of the temporary provision on the ground, and thus determine a proper alternative.

The Essence of the Opinion of President A. Grunis

President A. Grunis concurred in the opinions of Justice Arbel and Justice Vogelman, according to which the Prevention of Infiltration Law (Offenses and Adjudication)(Amendment no. 3 and Temporary Provision), 5772-2012 (hereinafter – the "Law") contradicts Basic Law: Human Dignity and Liberty, and thus must be annulled. President Grunis based his opinion upon reasons that are different, to a certain extent, from those raised by Justice Arbel. According to his line of reasoning, the law is faulty not because it does not withstand the second subtest of proportionality, but rather because it does not withstand the third subtest, known as "proportionality stricto sensu". In other words, it must be annulled because it does not maintain a reasonable relationship between the period of custody and the advantages stemming from the law. According to his opinion, in the current reality, the arrangement in the law, which allows holding the infiltrators in custody for a period of three years, is constitutionally repugnant, particularly in light of the fact that it is not at this time possible to deport most of those in custody, who are citizens of Eritrea and Sudan.

Nonetheless, the President emphasized that the voidness of the statute is proper at this time, that is, in the existing circumstances. In his opinion, a substantial negative change in the circumstances, e.g. a significant rise in the number of infiltrators crossing into Israel's borders, would justify renewed judicial examination of the issue, should the Knesset again enact a similar statute. Moreover, according to his approach, even in the existing circumstances there is nothing preventing legislation of a new statute that allows holding the infiltrators in custody for a period of time significantly shorter than three years.

Full opinion:

Adam v. Knesset.pdf

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

http://elyon1.court.gov.il/files/12/460/071/b24/12071460.b24.pdf

Dobrin v. Israel Prison Service

Case/docket number:

HCJ 2245/06

Date Decided:

Tuesday, June 13, 2006

Decision Type:

Original

Topics:

Abstract:

Facts: The second respondent (Amir) was convicted of the murder of the late Prime Minister Yitzhak Rabin and was sentenced to life imprisonment. While in prison, he married the third respondent. When the first respondent refused, on security grounds, to allow Amir conjugal visits with his wife, Amir applied to the first respondent to be allowed to provide his wife with a sperm sample for the purposes of artificial insemination. The first respondent granted his request.

The petitioners, two members of the Knesset, consequently filed the petition, arguing that the first respondent did not have any authority in statute to grant the request and its decision was therefore ultra vires. In addition, the petitioners argued that it was immoral to allow the murderer of the prime minister to have children; that he had no right to start a family while in prison, that the parental capacity of the third respondent should have been considered; and that the decision was contrary to the natural rules of justice and unreasonable, in that it gave no weight to the feelings of deep abhorrence felt by most citizens at the despicable acts perpetrated by Amir.

Held: The first respondent’s decision was made intra vires. A prisoner has a constitutional human right to parenthood. This does not cease automatically as a result of the sentence of imprisonment, although it may be restricted for reasons relevant to the imprisonment. The first respondent does not need an authorization in statute to permit a prisoner to realize his rights. The premise on which the petition is based is fundamentally unsound; it effectively turns the law upside down and undermines basic principles of public and constitutional law. When a person has a right, a public authority does not need authority in statute in order to uphold and respect the right. The opposite is true: authority is required in statute in order to restrict or violate the right.

The first respondent does not have a power to add to a prisoner’s punishment that was imposed on him in the sentence handed down by the court. The public’s feelings of abhorrence at Amir’s crime cannot affect the scope of the human rights given to him in prison, and the nature of the restrictions upon them that are permitted.

Petition denied.

Voting Justices:

Procaccia, Ayala

Primary Author

majority opinion

Hayut, Esther

Author

concurrence

Joubran, Salim

Author

concurrence

Full text of the opinion:

HCJ 2245/06

1. MK Neta Dobrin

2. MK Ronen Tzur

1. Israel Prison Service

2. Yigal Amir

3. Dr Larissa Trimbobler

The Supreme Court sitting as the High Court of Justice

[13 June 2006]

Before Justices A. Procaccia, S. Joubran, E. Hayut

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

Petition denied.

Legislation cited:

Basic Law: Human Dignity and Liberty, ss. 1A, 2, 4, 8.

Knesset Elections Law, 5729-1969, s. 116.

Penal Law, 5737-1977, ss. 1, 48.

Prisons Ordinance [New Version], 5732-1971, ss. 25, 56(30), 58, 76.

Release from Imprisonment on Parole Law, 5761-2001, ss. 9, 10.

Israeli Supreme Court cases cited:

[1] LHCJA 3172/99 Amir v. Israel Prison Service (unreported).

[2] LHCJA 5614/04 Amir v. Israel Prison Service (unreported).

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

[4] LFA 377/05 A and B (prospective adoptive parents) v. C and D (biological parents) (unreported).

[5] HCJ 2458/01 New Family Organization v. Surrogacy Agreements Approval Committee [2003] IsrSC 57(1) 419.

[6] CFH 2401/95 Nahmani v. Nahmani [1996] IsrSC 50(4) 661; [1995-6] IsrLR 320.

[7] CA 232/85 A v. Attorney-General [1986] IsrSC 40(1) 1.

[8] LCA 3009/02 A v. B [2002] IsrSC 56(4) 872.

[9] CA 2266/93 A v. B [1995] IsrSC 49(1) 221.

[10] LCA 3145/99 Bank Leumi of Israel Ltd v. Hazan [2003] IsrSC 57(5) 385.

[11] HCJ 355/79 Katlan v. Prisons Service [1980] IsrSC 34(3) 294.

[12] LHCJA 3713/04 A v. State of Israel (not yet reported).

[13] LHCJA 1552/05 Hajazi v. State of Israel (not yet reported).

[14] LHCJA 8866/04 Hammel v. Israel Prison Service (not yet reported).

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

[16] PPA 1076/95 State of Israel v. Kuntar [1996] IsrSC 50(4) 492.

[17] PPA 5537/02 State of Israel v. Sarsawi [2004] IsrSC 58(1) 374.

[18] PPA 4/82 State of Israel v. Tamir [1983] IsrSC 37(3) 201.

[19] HCJ 114/86 Weil v. State of Israel [1987] IsrSC 41(3) 477.

[20] LHCJA 4338/95 Hazan v. Israel Prison Service [1995] IsrSC 49(5) 274.

[21] HCJ 221/80 Darwish v. Prisons Service [1981] IsrSC 35(1) 536.

[22] HCJ 540/84 Yosef v. Governor of the Central Prison in Judaea and Samaria [1986] IsrSC 40(1) 567.

[23] HCJ 89/01 Public Committee Against Torture v. Parole Board [2001] IsrSC 55(2) 838.

[24] LHCJA 6803/04 Angel v. Tel-Aviv-Jaffa District Court [2005] IsrSC 59(2) 176.

[25] LHCJA 9837/03 A v. Parole Board [2004] IsrSC 58(2) 326.

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

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

[28] HCJ 1/49 Bajerno v. Minister of Police [1948] IsrSC 2 80.

[29] HCJ 9/49 Bloi v. Minister of Interior [1948] IsrSC 2 136.

[30] HCJ 144/50 Sheib v. Minister of Defence [1951] IsrSC 5 399; IsrSJ 1 1.

[31] HCJ 122/54 Axel v. Mayor, Council Members and Residents of the Netanya Area [1954] IsrSC 8 1524.

[32] HCJ 112/77 Fogel v. Broadcasting Authority [1977] IsrSC 31(3) 657.

[33] HCJ 935/89 Ganor v. Attorney-General [1990] IsrSC 44(2) 485.

[34] HCJ 5016/96 Horev v. Minister of Transport [1997] IsrSC 51(4) 1; [1997] IsrLR 149.

[35] HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [1988] IsrSC 42(2) 309.

[36] HCJ 217/80 Segal v. Minister of Interior [1980] IsrSC 34(4) 429.

[37] HCJ 6358/05 Vaanunu v. Home Front Commander (not yet reported).

[38] HCJ 4541/94 Miller v. Minister of Defence [1995] IsrSC 49(4) 94; [1995-6] IsrLR 178.

[39] CA 518/82 Zaitsov v. Katz [1986] IsrSC 40(2) 85.

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

[41] BAA 2531/01 Hermon v. Tel-Aviv-Jaffa District Committee, Israel Bar Association [2004] IsrSC 58(4) 55.

[42] HCJ 543/76 Frankel v. Prisons Service [1978] IsrSC 32(2) 207.

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

[44] HCJ 96/80 Almabi v. Israel Prison Service [1980] IsrSC 34(3) 25.

[45] HCJ 144/74 Livneh v. Prisons Service [1974] IsrSC 28(2) 686.

American cases cited:

[46] Turner v. Safley, 482 U.S. 78 (1987).

[47] Overton v. Bazzetta, 539 U.S. 126 (2003).

[48] Hudson v. Palmer, 468 U.S. 517 (1984).

[49] Pell v. Procunier, 417 U.S. 817 (1974).

[50] Washington v. Harper, 494 U.S. 210 (1990).

[51] Skinner v. Oklahoma, 316 U.S. 535 (1942).

[52] Eisenstadt v. Baird, 405 U.S. 438 (1972).

[53] Carey v. Population Services International, 431 U.S. 678 (1977).

[54] Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974).

[55] Stanley v. Illinois, 405 U.S. 645 (1972).

[56] Anderson v. Vasquez, 28 F.3d 104 (9th Cir. 1994).

[57] Hernandez v. Coughlin, 18 F.3d 133 (2nd Cir. 1994).

[58] Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986).

[59] Goodwin v. Turner, 908 F.2d 1395 (8th cir. 1990).

[60] Percy v. State of New Jersey, Department of Corrections, 278 N.J. Super. 543 (App. Div. 1995).

[61] Gerber v. Hickman, 291 F.3d 617 (9th cir. 2002).

English cases cited:

[62] R. v. Secretary of State for the Home Department, Ex Parte Simms [1999] 3 All ER 400.

[63] R. (Mellor) v. Secretary of State for the Home Department [2001] 3 W.L.R. 533.

European Commission of Human Rights cases cited:

[64] X v. UK (1975) 2 D&R 105.

[65] X v. Switzerland (1978) 13 D&R 241.

[66] Hamer v. UK (1979) 4 EHRR 139.

[67] Draper v. UK (1980) 24 D&R 72.

[68] ELH and PBH v. UK (1997) 91A D&R 61.

European Court of Human Rights cases cited:

[69] Dickson v. United Kingdom, no. 22362/04 [2006].

[70] Hirst v. United Kingdom, no. 74025/01 [2005].

[71] Aliev v. Ukraine, no. 41220/98 [2003].

[72] Evans v. United Kingdom, no. 6339/05 [2006].

For the petitioners — S. Ben-Ami.

For the first respondent — I. Amir.

For the second and third respondents — A. Shamay, O. Schwartz.

JUDGMENT

Justice A. Procaccia

1. Yigal Amir, a prisoner serving a life sentence, was convicted of the murder of the late Prime Minister Yitzhak Rabin. He submitted an application to the prison authorities in which he requested permission to send a sperm sample out of the prison in order to enable the artificial insemination of his wife, Larissa Trimbobler. On 5 March 2006, the competent authority at the Israel Prison Service decided to grant the request (hereafter — ‘the decision).

2. The petitioners, who were both members of the last Knesset, filed a petition against the Israel Prison Service and against the prisoner and his wife in order to cancel the decision. Alternatively, they request that the Israel Prison Service establish a special committee composed of professionals who will consider and examine the conditions required for granting a permit to a security prisoner regarding artificial insemination, which should take into account, inter alia, the factor of the best interests of the child that will be born and examine the consent and ability of the wife to take responsibility for raising him, and it should make recommendations in this regard. We were also asked to stay the decision of the Israel Prison Service that is the subject of this petition until the proceedings in the proposed committee are completed. As a third option, the petitioners request that they be allowed to table a draft law in this matter, and that the implementation of the decision should be stayed in the interim.

Background

3. The respondent was convicted of the murder of the late Prime Minister Yitzhak Rabin and of the wounding of his bodyguard in aggravated circumstances. He was sentenced to life imprisonment and to an additional six years imprisonment. He was also convicted in another trial of conspiracy together with his brother, Haggai Amir, and another person, Dror Edni, to murder the prime minister, and of conspiring with them to assault residents of Arab towns and Palestinian police personnel in Judaea and Samaria. For this conviction he was sentenced to an additional eight years imprisonment, to be served consecutively.

4. Because of the nature of the risk presented by Amir, he was classified by the prison authorities as a ‘security prisoner.’ This classification led to the imposition of various restrictions upon him, of which the main ones are that he is held separately from other prisoner, surveillance cameras are installed in his cells and there are visitation restrictions. Various objections by Amir to these restrictions were rejected (LHCJA 3172/99 Amir v. Israel Prison Service [1], PPA (BS) 2077/01, and see also PPA (TA) 2853/05-A). Notwithstanding, Amir’s application to allow him to have meetings with the third respondent, his wife, was approved by the court; this was because, inter alia, no evidence was presented with regard to her activity (PPA (BS) 2077/01).

5. In January 2004, Amir submitted a request to the Israel Prison Service to be allowed to marry Larissa and to have conjugal visits with her. When the response was slow in coming, Amir filed a prisoner’s petition in this matter to the Tel-Aviv District Court. In response to the petition, the Israel Prison Service gave notice that it decided to deny the request for conjugal visits, and that it had not yet formulated a position on the question of marriage. The District Court, in reliance on privileged intelligence information, decided to deny Amir’s petition with regard to conjugal visits. Amir applied for leave to appeal this decision in the Supreme Court, which denied the application (LHCJA 5614/04 Amir v. Israel Prison Service [2]; hereafter — LHCJA 5614/04 Amir v. Israel Prison Service [2] (conjugal visits)). In its decision (per Vice-President M. Cheshin), the court examined the conflict of values between the right of a human being to conjugal visits, and the interest of state security that is likely to conflict with it, and it evaluated their weight in order to balance them. The court found that in the circumstances of the case there was a real concern that allowing conjugal visits between the couple would lead to a security risk. It said that the great risk presented by Amir had not decreased since he committed the offences for which he was serving his sentence, and he remained committed to the terrorist ideology that he espoused in the past. The court also found that Amir was the subject of adulation and a role model in certain circles, there was concern that unsupervised meetings with his wife would be abused in order to transmit messages in the spirit of his extreme views, and that he would thereby influence others to carry out extreme acts of the kind that he committed. The concern regarding security interests was greater, in the opinion of the court, because of information that was submitted, according to which Larissa had independent contacts with extreme activists who identified in their ideologies with Amir’s beliefs. All of this led to the court’s conclusion that the refusal of the competent authority to allow Amir conjugal visits with his wife was reasonable and proper. The question of Amir’s right to marry his wife was not decided in that case, since at that stage the decision of the Israel Prison Service on this matter had not been made. At a later stage Amir and Larissa married by proxy, and on 10 July 2005 the marriage was declared valid by the Rabbinical Court.

6. On 27 July 2005 Amir made a request to the Israel Prison Service to allow him to carry out procedures for the purpose of artificial insemination treatments for his wife, in order to allow them ‘to realize their desire to bring children into the world,’ and he produced a medical certificate in this regard as required by the authority. On 3 January 2006, before a decision was made with regard to the request, Amir filed a prisoner’s petition in which he applied ‘to carry out artificial insemination with his wife, Ms. Larissa Trimbobler.’ On 5 March 2006, after considering the legal position, the Israel Prison Service decided to approve Amir’s request. The following is the language of the decision:

‘1. After the petitioner’s request has been examined [it has been decided] to allow the petitioner to send sperm outside the prison for the purpose of the artificial insemination of Ms. Larissa Trimbobler.

2. The transmission of the sperm sample will be allowed within the framework of a visit by Ms. Larissa or within the framework of a visit by another person who is permitted to visit the petitioner.

3. Nothing in the aforesaid amounts to consent for the prisoner to be allowed outside the prison for the purpose of any fertility treatments or for other fertility treatments to be administered in the prison, something that was not even requested by him.

4. It is also clarified that no change whatsoever will be allowed in the rules governing the terms in which the petitioner is held, including the number of visits to which the petitioner is entitled.

5. If you wish to clarify anything concerning the manner of transmitting the sperm sample, we ask you to refer the matter to us and the matter will be examined by us.’

The petition before us is directed against this decision.

The arguments of the parties

The arguments of the petitioners

7. The petitioners’ arguments are composed of several strata: first, they argue that the Prison Service Commissioner does not have the authority to grant a permit to a security prisoner to transmit a sperm sample for the purpose of insemination within the framework of the powers given to the Commissioner under the Prisons Ordinance, which gives him power to regulate matters of prison administration and discipline. According to the petitioners, a permit for artificial insemination, if at all, should be found in express legislation and not in administrative guidelines, and therefore the decision of the Israel Prison Service concerning Amir should be set aside because it was made ultra vires. Alternatively, even if the decision was made intra vires, it should be set aside on the merits because it is immoral and violates the basic outlooks of an enlightened society. It is not right to allow the murderer of a prime minister, who has not expressed regret for his despicable act, to give life to a new generation of his progeny and to bequeath the heritage of his despicable beliefs through his child. This decision, so it is alleged, departs from the natural rules of justice, runs contrary to administrative reasonableness and is also contrary to the rules of equality between prisoners, since it was made without carrying out a process of properly examining the right of all security prisoners to have children. The petitioners further argue that a prisoner has no inherent right under the law to create a family while he is in prison. Giving permission for artificial insemination by a prisoner constitutes a privilege that requires the discretion of the competent authority in the specific case, and this should be exercised by balancing the wishes of the prisoner to bring children into the world with maintaining discipline in the prison. In this case, no balance was made between these values, and for this reason also the decision is defective. Amir’s special personal circumstances, the seriousness of his actions, his current attitude to his actions and his conduct in the prison were not considered. In giving this kind of permission, the authority should also consider questions of the parental capacity of the mother to raise on her own the child that will be born, as well as the interests of the child, and no weight was given to these matters in the decision of the Israel Prison Service. Finally, the petitioners argue that the unreasonableness of the decision is also reflected in the fact that no weight was given to the serious injury to the feelings of the public that will be caused by granting this permission, in view of the deep abhorrence felt by the citizens of Israel towards Amir for his despicable acts.

The position of the state

8. The state’s position is that there is no basis for intervening in the decision of the Israel Prison Service to allow Amir to send a sperm sample out of the prison for the artificial insemination of his wife. According to case law, a distinction should be made between restrictions on human rights required by the actual imprisonment, such as a restriction on the freedom of movement, and restrictions on other rights that are not inherent to the imprisonment and are not limited by an express provision of statute. A restriction on the ability of the prisoner to provide a sperm sample for artificial insemination is not inherent to the actual imprisonment, and there is no provision of statute that prohibits or restricts it. In the absence of such an express provision of statute, and in the absence of a security reason or any concern of prison discipline that requires such a restriction, there is no basis for denying Amir’s request to give a sperm sample to his wife. In the course of the hearing, the state gave notice that the Israel Prison Service intends in the near future to formulate a general procedure concerning the sending of sperm samples by prisoners to their wives.

The position of the second and third respondents

9. The argument of the second and third respondents, Amir and his wife, is that even if we assume that the offences that Amir committed are despicable offences, there is no legal or moral basis for depriving them of the right to have children. The sentence imposed on Amir is limited to depriving him of his freedom for his whole life; it does not extend to the basic right to have a family and to bring children into the world, nor does it permit these to be restricted without a conflicting consideration of great weight. A prisoner retains his human rights as long as there is no public interest of great weight that justifies depriving him of them, and in this case there is no such interest. The consideration of the best interests of the child, which was raised by the petitioners as a reason for denying Amir his right to hand over a sperm sample, is unfounded, since it is clear that the wife has full parental capacity, and this assumption has not been rebutted.

Decision

10. A prisoner serving a life sentence, who has been convicted of the despicable murder of a prime minister, wishes to realize the right to have children by giving a sperm sample to his wife outside the prison. The Israel Prison Service granted his request, while stipulating certain conditions for it that concern the administrative arrangements of the prison. Were there any defects in this administrative decision that justify the intervention of this court to amend it or set it aside?

In view of the petitioners’ arguments, it is clear that we are required to examine the validity of the commissioner’s decision in two respects: the issue of authority and the issue of administrative discretion. With regard to the issue of authority, the question is whether the commissioner required express authority under the law to grant permission to a prisoner to transfer a sperm sample to his wife outside the prison. With regard to the issue of discretion, the question is whether the decision is reasonable and proportionate; were all the relevant considerations and no others taken into account? Was the balance between the relevant considerations a proper and proportionate one, in view of the fact that we are concerned with a basic right which can only be violated if the tests of the limitations clause in the Basic Law: Human Dignity and Liberty are satisfied?

I will start with my conclusion and say that the commissioner’s decision was made intra vires and it contains no departure from the powers given to him by law; the decision on its merits is founded on relevant considerations, it is reasonable and proportionate and it does not contain any defect that justifies judicial intervention.

The following are my reasons.

The commissioner’s powers — a normative outline

11. Does the commissioner’s decision to allow Amir to hand over a sperm sample fall within the scope of his authority under the law? Is special authorization required in the law in order to give this permission, such that without such authorization the permission falls outside the scope of the authority’s power?

There is currently no express statutory arrangement with regard to the right of a prisoner to give a sperm sample to his wife for the purposes of insemination outside the prison. Notwithstanding, the existence of such a legislative arrangement is not a precondition for permitting this, for the following reason: according to general constitutional principles of law, a person in Israel has constitutional human rights. These are reflected, inter alia, in the Basic Law: Human Dignity and Liberty (hereafter — ‘the Basic Law’), which enshrines some of the human rights and gives them a super-legislative status. These rights include the human right to dignity, from which the right to family and parenthood is derived.

The constitutional outlook that focuses on the protection of human rights is based on the assumption that the constitutional rights of a person are not absolute, and sometimes there is no alternative to allowing a violation of them in order to realize a conflicting essential public interest. In circumstances where tension arises between a human right and a conflicting public purpose, a balance needs to be struck between them for the purpose of finding the balancing point that will reflect the proper relative importance of the conflicting values. The tests in the limitations clause in s. 8 of the Basic Law are what define the criteria for a permitted violation of the Basic Law, and they are an essential tool for properly balancing the right and the public interest, whose realization necessarily involves a violation of the right. A violation of the right will only satisfy the required constitutional test if the act that violates the right is done pursuant to statute, is consistent with the values of the state, is for a proper purpose and satisfies the test of proportionality.

This normative constitutional basis also lies at the heart of the proper approach to the rights of prisoners who have been sentenced to imprisonment, including those serving a life sentence. It is an established rule that a criminal sanction, including imprisonment, does not automatically deprive someone serving a sentence or a prisoner of his human rights, except to the extent that the restriction of those rights is necessarily implied by the imprisonment and is consistent with the nature of the permitted constitutional violation in accordance with the limitations clause.

The Prison Service Commissioner was given his powers under the Prisons Ordinance [New Version], 5732-1971. Beyond the specific powers given to the competent authority in the Ordinance, the Israel Prison Service is responsible for administering the prisons, guarding the prisoners and doing everything required by these duties (s. 76). The prisons and the warders shall be under the command and management of the commissioner, subject to the directives of the minister (s. 80). The authority of the commissioner extends to the organization of the prison service, administrative arrangements, prison management, discipline and ensuring the proper functioning of the service, and he is authorized to issue general orders in this regard. Within the scope of its authority, the Israel Prison Service is subject to the general principles of the constitutional system and to the fundamental constitutional recognition of human rights and the rights of prisoners that derive therefrom. The restrictions that it is authorized to impose on the prisoners derive from the enabling law, which is the Prisons Ordinance, but where these restrictions violate human rights, they must also satisfy the constitutional test of the limitations clause in the Basic Law. When we are speaking of a constitutional human right, which is given by the Basic Law to a person as a human being, we should not look in the enabling law for a right to uphold it, but the opposite: where the authority wishes to restrict it, we should examine whether it has the power to do so and whether the use made of that power amounts to a permitted constitutional violation in accordance with the limitations clause in the Basic Law.

As we shall describe below, the right of a prisoner to be a parent and to have a family is a constitutional human right, which does not automatically cease to exist as a result of the sentence of imprisonment, even though it is likely to be subject to various restrictions as a result of the conditions of the imprisonment. It follows that the Prison Service Commissioner does not need an authorization in the law to permit a prisoner to realize the various aspects of the right to have a family and to be a parent that he has by virtue of recognized basic rights in Israel. It is a refusal to allow a prisoner to realize the right to have children and to be a parent that makes it necessary to satisfy the tests for a permitted constitutional violation. Such a situation will exist where the prisoner’s right to be a parent and to have a family is opposed by a conflicting value of sufficient weight that it justifies denying the right to a proper degree, in view of the relative weight of the conflicting values.

In our case, Amir, like any other prisoner, has a human right to establish a family and to be a parent. He was not deprived of the right to establish a family and to bring children into the world by the actual sentence that was imposed on him, even if the loss of liberty resulting from the imprisonment deprives the prisoner of the ability to realize family life in full. The Prison Service Commissioner therefore does not need an express authorization in order to give practical expression to the realization of this right, which is one of the supreme constitutional human rights in Israel. Had the commissioner denied the basic right, this would have required him to show that there were good reasons that supported the violation, and defining the scope of the violation in accordance with the tests of the limitations clause.

In addition to the scrutiny of the decision from the perspective of the authority to make it, we shall also examine the question of its reasonableness in view of the arguments that were raised. This scrutiny will focus on the question whether the authority addressed the relevant considerations and balanced all the relevant considerations in the case properly. The principles of constitutional scrutiny also apply to the consideration of this question, as we shall make clear below.

Let us examine in greater detail the principles of the normative framework that apply to this case.

Constitutional human rights and the right to family and parenthood

12. The Basic Law: Human Dignity and Liberty enshrines the human rights to dignity and liberty and thereby expresses the values of the State of Israel as a Jewish and democratic state (s. 1A). It provides that the dignity of a person as a human being may not be violated and that every person is entitled to protection of his dignity (ss. 2 and 4); it recognizes the possibility of violating a person’s basic constitutional rights, provided that the violation satisfies the tests of the limitations clause (s. 8). The tests in the limitations clause make the constitutional legitimacy of the violation conditional: it should be done pursuant to statute or by virtue of an express authorization therein; it should be consistent with the values of the state; it should be for a proper purpose and it should not be disproportionate.

Within the scope of the right to human dignity lies the right of a person to have a family and to be a parent (HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [3]). The right to family is one of the most basic elements of human existence. It is derived from the protection of human dignity, from the right to privacy and from the realization of the principle of the autonomy of the will of the individual, which lies at the very essence of the concept of human dignity. The family and parenthood are the realization of the natural desire for continuity and for the self-realization of the individual in society (LFA 377/05 A and B (prospective adoptive parents) v. C and D (biological parents) [4]; HCJ 2458/01 New Family Organization v. Surrogacy Agreements Approval Committee [5], at p. 447; CFH 2401/95 Nahmani v. Nahmani [6], at p. 719 {390}). Within the scope of the human right to dignity, the right to family and parenthood is a constitutional right that is protected by the Basic Law (cf. also CA 232/85 A v. Attorney-General [7], at p. 17; LCA 3009/02 A v. B [8], at p. 894; CA 2266/93 A v. B [9], at p. 235).

On the scale of constitutional human rights, the constitutional protection of the right to parenthood and family comes after the protection of the right to life and to the integrity of the human body. The right to integrity of the human body is intended to protect life; the right to family is what gives life significance and meaning. I discussed this in one case:

‘These are first principles; the right to parenthood and the right of a child to grow up with his natural parents are rights that are interrelated, and together they create the right to the autonomy of the family. These rights are some of the fundamental principles of human existence, and it is difficult to describe human rights that are equal to them in their importance and strength’ (A and B (prospective adoptive parents) v. C and D (biological parents) [4], at para. 6 of my opinion).

This right is therefore very high on the scale of constitutional human rights. It is of greater importance than property rights, the freedom of occupation and even the privacy of the individual. ‘It reflects the essence of the human experience and the concrete realization of an individual’s identity’ (Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [3], at para. 6 of my opinion).

A violation of the right to parenthood and family will be legitimate only if it satisfies the tests in the limitations clause. These tests reflect a balance of the weight of the basic rights against other needs and values that are essential for the existence of proper social life. Basic rights, including the right to family, are not absolute; they derive from the realities of life that make it necessary to give a relative value to human rights and other substantial interests, whether of other individuals or of the public. A harmony between all of these interests is a condition for a proper constitutional system (LCA 3145/99 Bank Leumi of Israel Ltd v. Hazan [10]). In order for a violation of a human right to satisfy the constitutional test, it must fall within the proper margin of balances, which weigh the right against the conflicting value. The more elevated the status of the constitutional right, the greater the weight of the conflicting interest that is required in order to derogate from or counter the right (Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [3], ibid.).

Prisoners’ rights

13. The constitutional outlook that gives human rights a supreme normative status also has ramifications on the human rights of a prisoner, and his ability to realize these rights when he is in prison. The constitutional system in Israel is based on the presumption that a person’s basic rights should not be denied or restricted unless there is a recognized conflicting interest, whether private or public, that is of sufficient weight to justify this. The same presumption also applies to sentences that are handed down to offenders. Its significance is that the protection of human rights is extended to prisoners even after they have been sentenced, and a violation of their rights is possible only where a conflicting public interest of great significance justifies it. Such a violation is recognized only to the extent necessary in order to achieve the conflicting interest, but no more. In this spirit it has been said that:

‘The walls of the prison do not separate the person under arrest from human dignity. Life in the prison inherently requires a violation of many liberties that are enjoyed by a free man… but life in the prison does not necessitate a denial of the right of a person under arrest to bodily integrity and to protection against a violation of his dignity as a human being’ (per Justice Barak in HCJ 355/79 Katlan v. Prisons Service [11], at p. 298).

Restrictions on prisoners’ rights

14. According to the prevailing constitutional system, an offender who is sentenced to imprisonment does not automatically lose all of his human rights. The violation of his rights is limited solely to the degree that it is required in order to achieve the goals of a substantial public interest. These goals include, first and foremost, the purpose of the sentence of imprisonment, which is intended to deprive the prisoner of his personal liberty during the term of imprisonment that was imposed. By being deprived of his personal liberty, a prisoner suffers a violation of a basic right, but the violation is made pursuant to a law that befits the values of the state; it is intended for the proper purpose of isolating the offender from society for a defined period in order to protect the security of the public from the realization of an additional danger that the offender presents, and to rehabilitate him; the assumption is that it is a proportionate sentence relative to the severity of the offence that was committed and the other circumstances that are relevant to the sentence. Restricting the liberty of a prisoner is an inevitable consequence of the sentence that was imposed upon him, and therefore the violation of liberty receives constitutional protection. The restriction upon personal liberty, which is a consequence of the imprisonment, also gives rise to a necessary violation of certain other human rights that cannot be realized because a person is imprisoned. Thus, for example, the prisoner suffers a violation of his right to engage in his occupation, his right to privacy, and to a certain extent also his right of expression, with all the liberties that derive from it. The violation of human rights that accompanies imprisonment as an inherent consequence thereof is limited solely to an essential violation arising necessarily from the loss of personal liberty, but no more than that.

Another purpose that may justify a violation of a human right of a prisoner concerns the need to ensure the proper administration of the prison and to safeguard the welfare of its inmates. The competent authority has the responsibility to impose various restrictions that are required for managing life in prison in an effective manner, and these include maintaining order, security and discipline in the prison, as well as protecting the security of the inmates, the safety of the warders and the safety of the public from the dangers that are presented by the prison inmates (LHCJA 3713/04 A v. State of Israel [12]; LHCJA 1552/05 Hajazi v. State of Israel [13]; LHCJA 8866/04 Hammel v. Israel Prison Service [14]; and PPA 4463/94 Golan v. Prisons Service [15]). For the purpose of achieving the objective concerned with the proper administration of the Israel Prison Service, the Commissioner is competent to give comprehensive orders with regard to all the aspects of prisoners’ lives, and these may in several respects restrict their personal autonomy in various spheres (PPA 1076/95 State of Israel v. Kuntar [16], at p. 299; PPA 5537/02 State of Israel v. Sarsawi [17], at p. 379; Golan v. Prisons Service [15], at pp. 152 {506} and 172-175 {534-539}).

An additional reason for the restrictions on the rights of a prisoner may derive from other needs that involve an important general public interest, which is not directly related to the prison administration, such as, for example, a need that derives from general reasons of state security that are relevant mainly to security prisoners. Considerations of this kind may make it necessary to impose various restrictions on a prison inmate, which may violate his human rights.

When restrictions that are imposed by the public authority violate the human rights of a prisoner and they do not arise inherently from the loss of his liberty as a result of the imprisonment, they should materially satisfy the tests of the limitations clause in order to comply with the constitutional test. They should be consistent with the values of the state, intended for a proper purpose and satisfy the requirement of proper proportionality.

According to the prevailing legal outlook, a sentence that imposes imprisonment on an offender — and this includes a life sentence — is directly intended to deprive him of his personal liberty for the term of the sentence. The restrictions on the other rights, whether they are inherent to the imprisonment or they are intended to achieve other purposes, are not a part of the purpose of the sentence (PPA 4/82 State of Israel v. Tamir [18], at p. 206; HCJ 114/86 Weil v. State of Israel [19], at p. 483; Golan v. Prisons Service [15], at pp. 152-153 {506}; LHCJA 4338/95 Hazan v. Israel Prison Service [20], at pp. 275-276). The constitutional justification for imposing them depends upon the existence of a public purpose of special importance that justifies the violation in accordance with the tests of the limitation clause (Katlan v. Prisons Service [11], at p. 298). The greater the importance of the human right on the scale of human rights, the stronger the reasons required in order to justify a violation of it (Golan v. Prisons Service [15], at para. 13; HCJ 221/80 Darwish v. Prisons Service [21], at p. 546; HCJ 540/84 Yosef v. Governor of the Central Prison in Judaea and Samaria [22], at p. 573).

It should be emphasized that the restrictions on human rights that are imposed by the public authority were not intended to add an additional sanction to the sentence that was handed down. Their inherent purpose is not to increase the severity of the sentence that was handed down to the prisoner. Their purpose is not to punish the prisoner for his crimes, for which he has been sentenced to imprisonment, or to make the conditions of his imprisonment more difficult as recompense for his despicable acts. Where this is the purpose of the restrictions, they are likely to fail the constitutional test, since this is not a proper purpose. A restriction that is not required by the realization of the purposes of imprisonment or that is not required by another legitimate public purpose constitutes, de facto, the imposition of an additional sentence on the prisoner for the offence of which he was convicted. Such a restriction that adds to the sentence imposed on the prisoner falls outside the scope of the power to limit the rights of prisoners that is granted to the Israel Prison Service. It is a departure from the principles of criminal sentencing, and especially from the principle of legality that is enshrined in s. 1 of the Penal Law, 5737-1977, according to which there are no offences or sanctions unless they are prescribed in statute or pursuant thereto. The penal sanction takes the form of the actual loss of freedom of movement in a prison, which is determined by the court that handed down the sentence; in view of this, the Israel Prison Service is not competent to add a punitive measure to the sentence that was handed down (ss. 9 and 10 of the Release from Imprisonment on Parole Law, 5761-2001; HCJ 89/01 Public Committee Against Torture v. Parole Board [23], at p. 869, and also LHCJA 6803/04 Angel v. Tel-Aviv-Jaffa District Court [24], at p. 185; LHCJA 9837/03 A v. Parole Board [25], at p. 333).

The principles of this approach to the rights of a prisoner in Israel have been expressed in case law over the years. In Golan v. Prisons Service [15], at p. 152 {501-502} the court said (per Justice Mazza):

‘It is established law in Israel that basic human rights “survive” even inside the prison and are conferred on a prisoner (as well as a person under arrest) even inside his prison cell. The exceptions to this rule are only the right of the prisoner to freedom of movement, which the prisoner is denied by virtue of his imprisonment, and also restrictions imposed on his ability to realize a part of his other rights — some restrictions necessitated by the loss of his personal freedom and other restrictions based on an express provision of law…

The basic assumption is that the human rights “package” of a prisoner includes all those rights and liberties conferred on every citizen and resident, except for the freedom of movement of which he is deprived as a result of the imprisonment. Notwithstanding, it is clear that the imprisonment also suspends the prisoner’s ability to exercise some of his other liberties. With regard to some of these, where the ability to exercise them depends on the freedom of movement, the suspension of the right is “inherent” to the imprisonment. Other liberties that can be exercised (at least in part) irrespective of freedom of movement and that can be realized even in a prison cell (or from it) continue to be enjoyed by the prisoner even when he is in the prison. If the authorities wish to suspend, or to restrict, his ability to exercise even liberties of this kind, it is required to show that its power to do so is enshrined in a specific provision of law.’

(See also HCJ 337/84 Hukma v. Minister of Interior [26], at p. 832; CrimApp 3734/92 State of Israel v. Azazmi [27], at p. 81).

The right of a prisoner to family life and parenthood

15. The criminal sanction involved in imprisonment was not intended, in itself, to violate the right of the offender to family life and parenthood directly. Notwithstanding, it is clear that a prisoner is de facto deprived of the physical ability to have a regular family life and thereby to realize the right to family as a result of the loss of his personal liberty that is a result of the imprisonment. The violation of the ability to realize a family life in the prison is inherent to the restriction of liberty, and therefore it lies within the margin of the permitted constitutional violation. Isolating the prisoner from society in order to realize the purposes of the sentence also results in a separation from his spouse, children and wider family circle. But even though this restriction is inherent to the imprisonment, the existence of a human right to family and parenthood requires that the scope of the violation is reduced as much as possible, to its essential limits only, such as by way of giving controlled permission for family visits to prisoners, granting furloughs when defined conditions are satisfied, providing facilities that allow conjugal visits between spouses, etc.. This preserves the proportionality of the violation of the human right, which is inherently required by the loss of liberty resulting from imprisonment.

The right to have children is an integral part of the right to family life. It is given to every human being and a prisoner is not deprived of it merely because of the sentence that was imposed on him. The de facto realization of the right to have children given to a prisoner depends on the question whether there is a public-systemic consideration of sufficient weight that justifies preventing a prisoner from realizing it, whether in general or in a specific case. Whereas a prisoner cannot realize a full family life since it is inconsistent with the restriction of liberty resulting from imprisonment, the right to bring children into the world as such may be consistent with the framework of imprisonment, if certain conditions are fulfilled. The realization of this right may be consistent with conjugal visits between spouses, which are ordinarily allowed when certain conditions are fulfilled, in accordance with the procedures of the Israel Prison Service. Because of the need to limit the violation of the prisoner’s human right merely to the most essential cases, where it is not possible to allow conjugal visits because the prerequisites for this are not satisfied, the prisoner may be left to realize his right to be a parent by way of artificial insemination outside the prison, which does not require a conjugal visit. This possibility is consistent with the purpose of the sentence to keep the prisoner isolated from society, and it does not usually involve a disturbance to the Israel Prison Service administration from the viewpoint of the procedures and resources at its disposal. If, however, there is another reason that justifies the realization of the right to be prevented or restricted, it needs to be a substantial reason that can justify a violation of a human right of the greatest importance, to which even a prisoner is entitled.

The right to have children is a human right that is enshrined in the value of human dignity. This value includes the right of a person to personal autonomy and to self-realization in the form of bringing children into the world. The status of the right to have children imposes on the executive authority a duty to uphold it and to give it significant weight in the course of its deliberations, even when the person seeking to realize it is serving a life sentence in prison. The restriction on the right to have children by means of artificial insemination of the wife outside the prison is not necessarily implied by the restriction of the prisoner’s liberty. Notwithstanding, like all human rights, this right too is not absolute, and it may in certain circumstances give way to conflicting interests of great weight. But in view of the strength of the right, reasons of particular importance are required in order to outweigh it and to justify a violation of it, and the principles used to balance them should be consistent with the conditions of the limitations clause, with the elements of the proper purpose and proportionality that are enshrined therein (New Family Organization v. Surrogacy Agreements Approval Committee [5], at pp. 444-445).

It has been held in the past that:

‘We must remember and recall that the human dignity of a prisoner is like the dignity of every person. Imprisonment violates a prisoner’s liberty, but it must not be allowed to violate his human dignity. It is a basic right of a prisoner that his dignity should not be harmed and all the organs of government have a duty of respecting this right and protecting it from violation… Moreover, a violation of a prisoner’s human dignity does not merely harm the prisoner but also the image of society. Humane treatment of prisoners is a part of a moral-humanitarian norm that a democratic State is liable to uphold. A State that violates the dignity of its prisoners breaches the duty that it has to all of its citizens and residents to respect basic human rights’ (per Justice Mazza in Golan v. Prisons Service [15], at p. 156 {506}).

As an enlightened society, we should ensure that the dignity of the prisoner is upheld and that his rights are protected as long as it does not conflict with the true purposes of the imprisonment or is inconsistent with a public interest of great importance that justifies a restriction of his rights. This duty applies to every prisoner as such. It applies to a prisoner who is serving a short sentence and it applies to a prisoner who is serving a long sentence for serious felonies. It is also the case with regard to a prisoner serving a life sentence for murder, whether the murder was committed against a background of gang wars in the criminal underworld or it is the murder of a prime minister. The same is true of a security prisoner. The set of principles is the same for every prisoner as such, even though the specific application to individual prisoners may vary from case to case according to the conditions and the circumstances.

The power of the commissioner to give permission to hand over a sperm sample — conclusions

16. The premise on which the petition is based is that express authority is required in statute for the competent authority to allow a prisoner to undergo a procedure of artificial insemination with his wife; without this, granting such permission goes beyond the powers given to it under the law. This premise is fundamentally unsound, and it effectively turns the law upside down and undermines basic principles of public and constitutional law. The reason for this is that when a person has a right, and certainly when he has a constitutional right, a public authority does not need authority in statute in order to uphold and respect the right. The opposite is true: it requires an authorization in statute in order to restrict or violate the right, and where the violation restricts or denies the realization of a human right, it should satisfy the tests of the limitations clause as a condition for its validity and legitimacy. Already in HCJ 1/49 Bajerno v. Minister of Police [28], at p. 82, it was held (per Justice S.Z. Cheshin) that:

‘Where an applicant complains that a public official prohibits him from doing a certain act, the applicant does not need to prove that there is a statute that imposes a duty on the public official to allow him to do the act. The opposite is true: the public official has the duty of proving that there is a justification for the prohibition that he is imposing’ (see also HCJ 9/49 Bloi v. Minister of Interior [29], at p. 140; HCJ 144/50 Sheib v. Minister of Defence [30], at p. 411 {14}; HCJ 122/54 Axel v. Mayor, Council Members and Residents of the Netanya Area [31], at p. 1532; HCJ 112/77 Fogel v. Broadcasting Authority [32], at pp. 663-664).

It follows that in our case there is no need to ask whether the Israel Prison Service is competent to permit a prisoner to realize his right to parenthood by means of artificial insemination; at most, we may need to ask whether there is a power to restrict this right, and what is the scope of such a possible restriction in the special circumstances of the case. This question does not arise directly in this case, since the competent authority has recognized and respects the right of the prisoner to parenthood, and it has thereby given expression to a recognition of the human right to family and parenthood that the prisoner has, in so far as possible, even within the framework of imprisonment. It has thereby recognized that the protection of human rights is given to a prisoner in so far as possible, including a prisoner serving a life sentence for a despicable murder, and that the ability to restrict the right does not depend on the nature of the offence but, if at all, on public or systemic purposes that are not a part of the purposes of sentencing. In the circumstances of this case, the commissioner acted within the limits of his authority when he did not find any systemic or other reasons that justify a restriction on the prisoner’s right. His decision relies on recognized basic principles of constitutional law and it gives expression to the right of the prisoner when no basis was found for restricting it.

The decision of the public authority according to the test of reasonableness

17. In addition to the petitioners’ argument that the commissioner’s decision to allow Amir to give a sperm sample to his wife outside the prison was made ultra vires, they also argued that this decision does not satisfy the test of reasonableness. According to this argument, the unreasonableness is expressed first and foremost in the fact that the permission given to Amir to realize his right to have children conflicts with public morality and injures the feelings of the public, when it is given to the murderer of a prime minister; it is also argued that granting the permission ignores the interests of the child who will grow up without a father; finally it is argued that in giving the permission the commissioner did not make a comprehensive examination of the significance of the issue for all prisoners, and in the absence of a general procedure in this regard, he acted in a manner that violates the principle of equality between prisoners.

An examination of the reasonableness of a decision of an administrative authority requires, in the first stage, a clarification of whether it considered factors that are relevant and pertinent to the case; second, we consider the question whether, when making its decision, the authority made a proper balance between all the factors that should be taken into account, and whether a proper relative weight was given to each of these. An examination of the reasonableness of an administrative decision is therefore conditional on a proper balance of the relevant considerations (HCJ 935/89 Ganor v. Attorney-General [33]; HCJ 5016/96 Horev v. Minister of Transport [34], at p. 34 {183}; HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [35]; HCJ 217/80 Segal v. Minister of Interior [36]; HCJ 6358/05 Vaanunu v. Home Front Commander [37]).

Where a decision of the public authority violates a human right, an examination of the administrative reasonableness of the decision is conditional upon its satisfying the tests of the limitations clause — proper values, a proper purpose and proper proportionality. The criterion for balancing derives from the limitations clause (Horev v. Minister of Transport [34], at para. 54 of the opinion of President Barak). The elements of the limitations clause are incorporated in the criteria that have been formulated in public law rulings for examining a violation of basic human rights by an administrative authority (HCJ 4541/94 Miller v. Minister of Defence [38], at p. 138 {231}). The court has also held:

‘This connection between the constitutional limitations clause and all the principles of public law — including human rights that are not covered by the Basic Laws… The general purposes are the values of the State of Israel as a Jewish and democratic state. The specific purposes are the “proper purpose” in the limitations clause. The principle of proportionality that is provided in the Basic Law is an additional expression of the principle of reasonableness, according to which we have also been accustomed in the past to interpret legislation. It follows that the transition from the previous law to the limitations clause is “quick” and “clean,” and it involves no difficulty’ (per President Barak in Horev v. Minister of Transport [34], at p. 43 {194-195}).

When an administrative decision violates a constitutional human right, the premise is, first, that the conflicting value whose realization leads to the violation befits the values of the state; second, that this value should be a relevant objective consideration that to a large extent overlaps with the conditions of the ‘proper purpose’ in the limitations clause; and finally, whether in the overall balance proper relative weight was given to the human right, on the one hand, and the conflicting value, on the other, and whether the administrative decision chose a balancing point that properly balances the conflicting values. This is the requirement of proper proportionality in its constitutional sense.

In our case, on one side of the equation is the right of a human being, who is a prisoner serving a life sentence, to realize his right to be a parent by way of fertilizing his wife with a sperm sample that will be sent out of the prison. His application is filed against a background of the refusal of the public authority to allow him conjugal visits with his wife, because of security considerations. The petitioners argue that there are values that conflict with the right of the prisoner to parenthood, which were not given any weight, and therefore the permission that was granted is invalid. These conflicting values are, first and foremost, an outrage to public morals and public feelings that, it is argued, results from permission to have children being given to a criminal who was convicted of murdering a prime minister. Such permission runs contrary to the feeling of natural repulsion that the public feels towards a vile offender of this kind. It seriously injures the feelings of the public, which is repulsed by the despicable offence and the offender who committed it, and which expects that he will spend the rest of his life in prison in absolute isolation, without him being allowed to realize his rights to family and parenthood, or any aspect thereof.

I cannot accept this position. The values that are under discussion, on which the petitioners base their objection to the permission that was given, do not satisfy the test of administrative relevancy or the element of the proper purpose in the limitations clause. The public’s feelings of repulsion towards Yigal Amir for the despicable crime that he committed are, in themselves, understandable and natural, but they are not relevant to the restriction of the right of a prisoner to become a parent by way of artificial insemination. They do not achieve a ‘proper purpose’ that is required as an essential conditional for a violation of a human right.

No one denies that the offence of murder that Amir committed and for which he was sentenced to life imprisonment deserves public condemnation and will be recorded in the history of the state as one of the most terrible offences committed in Israel since its founding. But the seriousness of the offence that was committed, with all of its ramifications, found full and final expression in the criminal sanction that was handed down to Amir. The sentencing considerations that are taken into account within the framework of the sentence lie solely within the sphere of authority of the judiciary, and when the sentence is handed down, the sanctions imposed on the offender are exhausted. The Israel Prison Service does not have jurisdiction to punish the prisoner in addition to the sentence that was imposed on him by restricting human rights that even he has as a prisoner. The argument of showing abhorrence for the base acts of the offence that he committed is insufficient. The public’s feelings of repulsion for an offender who took human life and murdered the state’s leader are also incapable of affecting, in themselves, the scope of the human rights given to him in the prison, and the nature of the permitted restrictions upon them. Basic principles of public morality and the desire for revenge that is felt by a part of the public towards one prisoner or another do not constitute a relevant consideration or a proper purpose for preventing a prisoner from realizing his human right to parenthood, as long as this realization does not amount to a significant administrative disruption in the management of the prison or another relevant violation of a significant public interest that justifies its restriction. The human right is also retained by a prisoner who was convicted of the most terrible offences, and no matter how great the feeling of abhorrence at his acts, it cannot constitute an objective reason for restricting his rights. The strict application of the test for the scope of permitted violations of a human right in accordance with the elements of the limitations clause is what guarantees that the protection of the right does not become neglected; it ensures, especially in difficult cases like the one before us, that the constitutional principles are observed. Since the considerations of public morality, public sentiment and especially the deep abhorrence that most of the public feels towards Yigal Amir for his act are not relevant to a restriction of his right to parenthood and are therefore not a proper purpose, they also cannot serve as an objective conflicting value that may compete with the prisoner’s right to become a parent. Therefore we do not need to consider the question of proportionality, which would have arisen had these considerations constituted a relevant objective reason to restrict Amir’s right and which would have given rise to a need to balance them against his right.

We ought to add in this context that it is precisely because Amir was not given the possibility of conjugal visits by his wife for security reasons that the possibility of realizing his parenthood by being allowed to carry out artificial insemination remains his last resort. These circumstances provide even greater justification for the decision of the Israel Prison Service authorities concerning Amir.

Even the petitioners’ additional argument that Amir should not be given permission because of the damage that can be anticipated to the best interests of the child that will be born to the couple cannot serve as a valid ground for violating the right to parenthood in the circumstances of this case.

The question when the consideration of the best interests of the child may justify preventing his birth is a profound question in the field of ethics and philosophy. The question when the law may intervene in this, and when a public authority has power to intervene in the human right to have a child for reasons of the best interests of the child and for other reasons, is a very difficult and complex one. The right to have a child and the right to be born are concepts that lie to a large extent in the field of morality and ethics that are outside the law. Whether and in what circumstances the Israel Prison Service has a power to restrict the right to have a child against a background of considerations of the best interests of the child is a difficult and loaded question. Thus, for example, a question may arise as to whether the Israel Prison Service may prevent a prisoner’s conjugal visits or the realization of his right to parenthood because of a serious and contagious disease from which he suffers that is likely to infect his wife and child (CA 518/82 Zaitsov v. Katz [39], at pp. 127-128; Nahmani v. Nahmani [6], at pp. 729-30). Is it entitled to restrict the right of women inmates in the prison to have children when they have been sentenced to long terms of imprisonment for the reason that it is not desirable from the viewpoint of the best interests of the child to raise him inside the prison or, alternatively, to condemn him to be placed in a foster home or in an adoption, or to separate him from his mother when he reaches a certain age? Are these considerations that the Israel Prison Service may address and do they fall within the scope of its authority? These questions do not require an answer in this case, since with regard to the best interests of the child it has only been argued that he is expected to be born to a single-parent mother because the father has been sentenced to life imprisonment. This argument has no merit in the specific context. No reasons have been brought before us to show, on the merits, any real grounds why the best interests of a child that will be born from artificial insemination to the Amir couple will be harmed. No basis has been established for the argument that Amir’s wife lacks the capacity to raise a child. Moreover, the raising of a child by a single-parent mother while the father is sentenced to life imprisonment does not in itself indicate that the child’s best interests are harmed, nor does it allow the public authorities to restrict the right of his parents to have children. In the modern world, the single-parent family has become a common and accepted phenomenon, and it does not in itself indicate harm to the interests of the child on such a scale and to such an extent that it justifies the intervention of the public authority in a way that violates the right of individuals to self-realization by bringing children into the world. The mere fact that one of the parents is in prison does not constitute, prima facie, a ground for violating the right of the couple to parenthood and the right of a child to be born, for reasons of his best interests. The remarks of Prof. Shifman in his book Family Law in Israel, vol. 2, at p. 156, are pertinent:

‘… In artificial insemination we are concerned with planning the coming into the world of a child who has not yet been born, in order to realize the expectations of persons to be parents. Is it possible to determine categorically that it would be better for that child not to be born than for him to be born? Will the situation of that child necessarily be so wretched merely because he is born into a single-parent family that for this reason we have a duty ab initio to prevent him from coming into the world?’

In this case, no factual basis was established to show harm to the best interests of the child that may be created as a result of giving the permission to the Amir couple. Therefore the question of balancing the relevant conflicting values to the right to parenthood does not arise, and this argument should be rejected.

18. This leaves the argument that the prison authorities did not conduct a comprehensive examination of the question of prisoners sending sperm samples to their wives, nor did they formulate a general procedure for all prisoners in this regard, nor did they make the proper balances in this regard with regard to the case of Amir, who in their opinion has received better treatment in comparison to other prisoners.

In this matter also the petitioners’ arguments are general and they do not establish a concrete factual basis for the existence of conflicting values to the prisoner’s right, which would justify a restriction or denial thereof. Indeed, the prison authorities have stated that they will take action to prepare general procedures concerning the transfer of sperm samples of prisoners to their wives for the purpose of artificial insemination outside the prison. But their willingness to do this, which is important in itself, has no bearing on the specific decision in Amir’s case, which is reasonable. From the state’s response we see that, first and foremost, it took into account as a relevant factor the right of the prisoner to artificial insemination, and it gave this right the proper weight. There is no real public or administrative need that can be a consideration that conflicts with the prisoner’s right in this case, to the extent that it might justify a violation of the right. The security considerations that were the basis for the refusal of the Israel Prison Service to allow Amir conjugal visits with his wife are not relevant to the transfer of a sperm sample out of the prison, and no other legitimate administrative argument was raised that might justify a violation or restriction of the aforesaid right of the prisoner.

Since there is no important value that conflicts with the prisoner’s right to parenthood, no proportionate balance is required here between relevant conflicting considerations, nor is there a proper reason to violate the prisoner’s human right (see Horev v. Minister of Transport [34], at p. 37 {187}; Ganor v. Attorney-General [33], at pp. 513-514; HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [40], at paras. 40 and 41).

In addition, no concrete information was brought before us to support the petitioners’ claim with regard to a violation of equality between prisoners as a result of granting the permission to Amir. Moreover, the concept of equality in this context is loaded and complex, and it may justify possible distinctions between types of prisoners from the perspective of the possibility to realize the right to have children while in prison. Thus, for example, it is possible that there will be a distinction between the ability of male prisoners to realize parenthood by sending sperm samples to their wives for the purpose of insemination and raising children outside the prison, which does not involve any responsibility on the part of the public authority for the birth and raising of the child and does not require any special institutional and budgetary arrangements, and the ability of the authority to allow pregnancies and childbirths of female prisoners in the prison on a large scale, which gives rise to difficult questions concerning the manner of raising and caring for the child after his birth, as well as questions involving resources and budgets that are required for this purpose. This issue involves difficult moral and practical questions that relate both to the prisoners and to the children who are born to a difficult fate. Logic therefore dictates that in this area of realizing the right to parenthood there may be a legitimate distinction between types of prisoner according to various criteria, which should satisfy the constitutional test.

In view of the aforesaid, there is no merit to the petitioners’ argument that the decision of the commissioner to permit the transfer of Amir’s sperm sample to his wife outside the prison was tainted by a defect of unreasonableness. The Israel Prison Service acted in making its decision in accordance with its responsibility by virtue of general legal principles, which recognize the right of the prisoner to realize his right to parenthood, and it saw fit to allow its implementation by way of giving a sperm sample to his wife outside the prison, in the absence of significant conflicting considerations that justify a restriction of the right.

Comparative law

International conventions and the position of the United Nations

19. The position of Israeli constitutional law on this issue and its ramifications upon the rights of prisoners serving a prison sentence is in essence consistent with the outlook of the international conventions and the position of the United Nations. This is the case with regard to the Universal Declaration of Human Rights of 1948, the International Covenant on Civil and Political Rights of 1966, which was ratified by Israel in 1991, and also with regard to the position of the Human Rights Commission of the United Nations and the basic principles that were determined by its institutions with regard to the treatment of prisoners. According to these sources, the right of a person to have children is considered to be a natural right, and it may only be restricted by statute, in accordance with the purposes of the United Nations Universal Declaration of Human Rights, and on reasonable grounds according to the circumstances of the case. With regard to the rights of prisoners, the principle enshrined in these conventions is that these should only be limited by those restrictions that are required by the actual imprisonment.

The right to found a family

Article 16 of the Universal Declaration of Human Rights establishes the right to marry and found a family.

This is also provided in art. 23 of the International Covenant on Civil and Political Rights:

‘1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.’

In interpreting this article, the United Nations Human Rights Commission has held that the significance of the right to found a family in its fundamental sense is the right to procreate and to live together (General Comment no. 19 (1990)):

‘The right to found a family implies, in principle, the possibility to procreate and live together.’

The right to protection against arbitrary intervention in family life

Article 12 of the Universal Declaration of Human Rights enshrines the right to privacy and protection against arbitrary intervention in family life.

Article 17(1) of the International Covenant on Civil and Political Rights also enshrines the right to privacy and protection against arbitrary intervention in family life:

‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.’

The United Nations Human Rights Commission has commented that this right should only be restricted by law and in accordance with the objectives of the Covenant and should be reasonable in the particular circumstances. It also said that the term ‘family’ should be given a broad interpretation (General Comment no. 16 (1988)).

Prisoners’ rights

Article 5 of the Universal Declaration of Human Rights provides that:

‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’

In addition, article 7 of the International Covenant on Civil and Political Rights provides (inter alia) that no one should be subjected to degrading punishment, and article 10(1) of the Covenant provides that:

‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.’

With regard to this article, the United Nations Human RiOPghts Commission has determined that a person who has been deprived of his liberty should not suffer a violation of additional rights except to the extent that the restrictions are required by the actual imprisonment:

‘3. … Thus, not only may persons deprived of their liberty not be subjected to treatment that is contrary to article 7, including medical or scientific experimentation, but neither may they be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. Persons deprived of their liberty enjoy all the rights set forth in the Covenant, subject to the restrictions that are unavoidable in a closed environment’ (emphasis added).

Similarly the Basic Principles for the Treatment of Prisoners, 1990, that were adopted by the United Nations provide that:

‘5. Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and, where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as such other rights as are set out in other United Nations covenants.’

Human rights and prisoners’ rights under the European Convention on Human Rights

20. The European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, regulates the protection of human rights in the European Community. Article 8 of the convention provides the right to respect for private and family life, and article 12 provides the right to marry and to found a family:

‘Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

…

Article 12 – Right to marry

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.’

The European Prison Rules of the Council of Europe, 1987, (Recommendation no. R (87) 3 of the Committee of Ministers of the Council of Europe) constitute recommendations for standard minimum rules of imprisonment for the countries of Europe, in which the inherent basic outlook is that the deprivation of liberty is itself a punishment, and it should not be aggravated by imposing conditions of imprisonment that are unnecessary:

‘64. Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this.’

(With regard to the centrality of this principle, see the explanatory notes to the rules, para. 64, ibid.). These principles are consistent with the constitutional outlook underlying the legal system in Israel.

In X v. UK [64] an English prisoner applied to be allowed to have a conjugal visit with his wife. The European Commission of Human Rights (hereafter also: ‘the commission’), to which individuals had to apply at that time in order to file a case in the European Court of Human Rights, held that under art. 8(2) of the convention, it was possible to prevent prisoners from having conjugal visits for reasons of public security. In X v. Switzerland [65], a married couple from Switzerland, who were held separately in the same place of arrest for a period of approximately two months, applied to be allowed to have conjugal visits. The commission held that considerations of public security in a prison might justify preventing married persons under arrest from having conjugal visits. It also held that the persons under arrest were married and had already established a family, and it therefore followed that they were entitled to respect for family life under art. 8, and that a violation of the right to family which is justified under art. 8(2) cannot be considered at the same time a breach of art. 12, which addresses the right to marry.

In two additional cases that considered the right to marry, the commission held that the prisons should allow prisoners to realize their right to marry, since marriage does not create any risk to the security of the prison (Hamer v. UK [66]; Draper v. UK [67]). The commission in these cases rejected the argument that the existence of personal liberty was a precondition for realizing this right, and in the absence of personal liberty the right should not be recognized (Hamer v. UK [66]), and also the argument that imprisonment includes a public interest that justifies preventing the marriage of someone serving a life sentence (Draper v. UK [67]). A particularly important decision for our case was ELH and PBH v. UK [68]. In that case a prisoner requested a conjugal visit with his wife, for the purpose of the wife becoming pregnant. It was also requested that the visit would take place shortly after a surgical operation that the wife would undergo, which was expected to increase her chances of fertility for a short period of time only. The commission reiterated the rule that, notwithstanding the fact that preventing conjugal visits violates the right to respect of family life in art. 8 of the convention, preventing them is justified for the purpose of preventing breaches of discipline and the commission of offences under art. 8(2), and that a justified violation under this provision will not be regarded as a violation of the right to marry under art. 12. Notwithstanding, the commission added that it regarded in a favourable light reforms that were being made in several European countries to prepare prisons to facilitate conjugal visits:

‘The commission considers that it is particularly important for prisoners to keep and develop family ties to be able better to cope with life in prison and prepare for their return to the community. It therefore notes with sympathy the reform movements in several European countries to improve prison conditions by facilitating “conjugal visits”’ (p. 64).

More importantly, the commission went on to say that in the circumstances of the specific case, preventing the visit did not constitute a violation of arts. 8 and 12 of the convention since the local law did not prevent the prisoner having the possibility of artificial insemination:

‘The Commission considers that the same conclusions should be reached under articles 8 and 12 of the convention in the present case, despite the exceptional circumstances invoked by the applicants. Thus, although the first applicant requires major surgery to be able to conceive and this surgery can only be performed when the couple are in a position to attempt conception, domestic law, as the applicants themselves accept, does not exclude artificial insemination in the case of prisoners… The Commission, therefore, considers that no appearance of a violation of Articles 8 and 12 of the convention is disclosed…’ (emphasis added).

From these remarks it can be deduced, prima facie, that the position of the European Commission of Human Rights was that the absolute prevention of a prisoner’s possibility of having children is unconstitutional. But an interesting development in this matter occurred in a judgment that was given only recently by the European Court of Human Rights: Dickson v. United Kingdom [69]. A prisoner who was sentenced to life imprisonment for murder applied, together with his wife (a former prisoner, whom he married in prison), for access to facilities for artificial insemination. The couple argued that when the husband would be released from the prison, the wife would be 51 years old, and if their application would not be granted, their chances of having children would be non-existent. The Secretary of State for Home Affairs refused the application, while clarifying his policy with regard to artificial insemination. According to this policy, requests by prisoners for artificial insemination will be considered on an individual basis, and they will be granted only in ‘exceptional circumstances.’ The policy will give special weight to several factors, including: whether artificial insemination is the only possible means of having children; the date of the prisoner’s release (if the release is very close, it is possible that waiting to be released will not cause much hardship to the prisoner, and if the date is particularly distant, it can be assumed that the prisoner will not be able to function as a parent); whether both parents are interested in the procedure and are able to undergo it from a medical viewpoint; whether the relationship between the couple was stable before the imprisonment, so that it can be assumed that it will continue to be good after the imprisonment; the financial resources of the parent who will raise the child; and whether, in view of the prisoner’s criminal past and other relevant facts, there is a public interest in depriving him of the possibility of artificial insemination. The Home Secretary decided that, even though in that case a refusal of the request meant that the couple would lose most of their chances of having a child, on the other hand the considerations of the seriousness of the offence that was committed and the harm to the interests of the child who would be raised for many years without a father prevailed. The majority justices in the European Court of Human Rights adopted the position of the United Kingdom. First they confirmed that according to the case law of the European Court, the prisoners retain all of their rights under the convention (including the right to respect for privacy and the family) apart from the right to liberty (Hirst v. United Kingdom [70], at para. 69). Notwithstanding, the restriction of liberty naturally results in a restriction upon the ability to realize additional rights, and therefore the key question is whether the nature of the restriction and its degree are consistent with the convention. According to the majority justices, within this framework a distinction should be made between an intervention in the right of the prisoner to respect for family and privacy and a violation that takes the form of non-performance of a positive obligation that is imposed on the state with regard to that right. According to them, even though restrictions on family visits and conjugal visits have been recognized in its previous decisions as intervention in the rights of the prisoner (Aliev v. Ukraine [71], at pp. 187-189), the restriction on the possibility of the prisoner carrying out artificial insemination merely constitutes the non-performance of a positive duty that applies to the state. But when determining the scope of the positive duties, the member states of the convention have a broad margin of appreciation. Further on, the majority justices approved the principle that the convention does not permit an automatic denial of prisoners’ rights merely because of adverse public opinion, but notwithstanding this, according to their approach considerations of public confidence in the penal system are legitimate considerations within the framework of determining policy in the prison. They were also of the opinion that a legitimate consideration in this matter is the question of the best interests of the child. According to these principles, the majority justices held that the criteria determined in the policy of the United Kingdom were neither arbitrary nor unreasonable. With regard to the specific case, the majority justices held that according to the broad margin of appreciation, it was possible to give the considerations of public confidence and the best interests of the child greater weight than the harm to the prisoner in losing the possibility of bringing children into the world. Three justices dissented from this approach. The president of the court, Justice Casadevall, and Justice Garlicki emphasized that the right to have children is a constitutional right, which is enshrined in the convention (Evans v. United Kingdom [72], at para. 57). It follows that the access of a prisoner to artificial insemination facilities is a part of the right to respect for family life in art. 8 of the convention, and where the couple are married, it is also enshrined in art. 12. The minority justices said that the premise adopted by the majority justices, according to which the prisoner retains his constitutional rights apart from the right to liberty is correct. But the logical conclusion that follows from this is that a violation of the right to have children is lawful only if it is necessitated by the restriction on liberty. The minority justices also emphasized that the premise adopted by the United Kingdom in its policy was erroneous, since, according to it, access to artificial insemination would be granted only in special circumstances. This is the opposite of the basic philosophy of human rights and the European Convention, according to which the right is the rule, whereas the restriction of the right is the exception. They held that in the specific case, in which refusing access to artificial insemination facilities means the loss of the possibility of having children in its entirety, the refusal of access was disproportionate. The third minority justice dissented from the majority position that took no account of the mother’s right to have children.

It would appear that the minority opinion in that case is more consistent with the approach to the principles of the convention according to the opinion expressed by the majority, and it is consistent with the principles of the constitutional system in Israel.

English law

21. According to the case law of the House of Lords, imprisonment is intended to restrict the rights and liberties of the prisoner. Therefore, it restricts the personal autonomy of the prisoner and his freedom of movement. At the same time, the prisoner retains all of his civil rights, apart from those that have been taken from him, either expressly or as a necessary consequence of the imprisonment:

‘A sentence of imprisonment is intended to restrict the rights and freedoms of a prisoner. Thus, the prisoner’s liberty, personal autonomy, as well as his freedom of movement and association are limited. On the other hand, it is well established that “a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication”: see Raymond v. Honey…; R. v. Secretary of State for the Home Department, Ex parte Leech…’ (R. v. Secretary of State for the Home Department, Ex Parte Simms [62]; emphasis added).

The Human Rights Act 1998, which came into force in 2000, applied the main parts of the European Convention on Human Rights (including the rights under discussion in this case) to English law. Without purporting to exhaust the question of how the new statute affected English law, we can say that the various public authorities, including the prisons, are required to act in accordance with the convention (s. 6 of the law). Similarly the courts have a duty to take into account the case law of the European Court of Human Rights (s. 2 of the law; see also P.B Proctor, ‘Procreating from prison: Evaluating British Prisoners’ Right to Artificially Inseminate Their Wives Under the United Kingdom’s New Human Rights Act and the 2001 Mellor Case,’ 31 Ga. J. Int’l & Copm. L. (2003) 459, at pp. 467-470). It should be noted that even before the new law came into force, prisoners were entitled to apply to the European Commission of Human Rights with regard to prima facie breaches of the convention (after exhausting proceedings in England), and the public authorities in England acted in accordance with its decisions. A detailed consideration of the right to have children by means of artificial insemination was made by the English Court of Appeal in R. (Mellor) v. Secretary of State for the Home Department [63]. The Court of Appeal decided that the right of a prisoner to artificial insemination had not yet been recognized in case law under the European Convention, and that a prisoner should not be allowed artificial insemination in every case where he has not been allowed conjugal visits. The implication of the case law, in its view, was that only in exceptional cases, in which the violation of the right granted in the convention was disproportionate, would it be justified to impose a duty to allow artificial insemination. According to the approach of the Court of Appeal, the judgment of the House of Lords in R. v. Secretary of State for the Home Department, Ex Parte Simms [63] means that it is possible to justify a restriction of a prisoner’s rights even when this is not required for reasons of the proper functioning of the prison, but it is a result of the loss of liberty that is inherent in the penal objective:

‘They recognised that a degree of restriction of the right of expression was a justifiable element in imprisonment, not merely in order to accommodate the orderly running of a prison, but a part of the penal objective of deprivation of liberty.’

Consequently, according to the approach of the Court of Appeal, there may be a justification for restricting the right to artificial insemination for reasons of public interest:

‘A policy which accorded to prisoners in general the right to beget children by artificial insemination would, I believe, raise difficult ethical questions and give rise to legitimate public concern.’

According to the court in England, an additional legitimate consideration for restricting the right is the consideration of the best interests of the child, who will grow up while one of his parents is in prison:

‘By imprisoning the husband, the state creates the situation where, if the wife is to have a child, that child will, until the husband’s release, be brought up in a single parent family. I consider it legitimate, and indeed desirable, that the state should consider the implications of children being brought up in those circumstances when deciding whether or not to have a general policy of facilitating the artificial insemination of the wives of prisoners or of wives who are themselves prisoners.’

The Court of Appeal did not consider in depth the question when a restriction of the right of a prisoner to carry out artificial insemination will be considered disproportionate. Notwithstanding, it said, as a premise, that it must be shown that preventing the possibility of carrying out artificial insemination does not lead only to a delay in realizing the prisoner’s right to establish a family, but to his being completely deprived of it:

‘I would simply observe that it seems to me rational that the normal starting point should be a need to demonstrate that, if facilities for artificial insemination are not provided, the founding of a family may not merely be delayed, but prevented altogether.’

American law

22. The premise in American law is that prisoners retain their constitutional rights inside the prison:

‘Prison walls do not form a barrier separating prison inmates from the protection of the constitution’ (Turner v. Safley [46], at p. 84).

Therefore, the prisoner retains constitutional rights such as the right to equal protection before the law, the right to due process in the Fourteenth Amendment of the United States Constitution, and the right to privacy. At the same time, other constitutional rights that are not consistent with the actual imprisonment are not retained by the prisoner:

‘An inmate does not retain [constitutional] rights inconsistent with proper incarceration’ (Overton v. Bazzetta [47], at p. 132; Turner v. Safley [46], at p. 96).

According to the stricter opinion in the United States Supreme Court, the rights of which prisoners can be deprived are only those that are fundamentally inconsistent with imprisonment (‘we have insisted that prisoners be accorded those rights not fundamentally inconsistent with imprisonment itself…’, Hudson v. Palmer [48], at p. 523). But an opinion has been expressed that the rights that are consistent with the actual imprisonment may also be restricted, if this is done for the purpose of realizing legitimate penal objectives:

‘It is settled that a prison inmate “retains those [constitutional] rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system,” Pell v. Procunier [49], at p. 822’ (Turner v. Safley [46], at p. 95).

In the leading decision in Turner v. Safley [46], it was held that the appropriate standard for scrutinizing a violation of the constitutional rights of prisoners is the lowest level of scrutiny, the rational connection. The reason for this lies in the complexity of the task of administering the prison, and the court not having the proper tools to consider the matter (ibid. [46], at pp. 85, 89). In addition, details were given of four tests for examining the constitutionality of the violation, in accordance with the aforesaid standard. The judgment in Overton v. Bazzetta [47], at p. 132, adopted the tests laid down in Turner v. Safley [46] and summarized them as follows:

‘Whether the regulation [affecting a constitutional right that survives incarceration] has a “valid, rational connection” to a legitimate governmental interest; whether alternative means are open to inmates to exercise the asserted right; what impact an accommodation of the right would have on guards and inmates and prison resources; and whether there are “ready alternatives” to the regulation’ (ibid. [47], at p. 132).

The aforesaid standard of scrutiny also applies when the constitutional right that is violated is a fundamental and basic one and when in other circumstances a stricter test would be applied (Washington v. Harper [50], at p. 223). Notwithstanding, restrictions that are imposed in reliance upon a classification that gives rise to a suspicion of a racist consideration are examined with the constitutional strict scrutiny test (Johnson v. California, 543 U.S. 499 (2005)).

The right to have children is recognized in American law as a constitutional right, which lies at the very heart of the right to personal freedom (see: Skinner v. Oklahoma [51], at p. 541; Eisenstadt v. Baird [52], at p. 453; Carey v. Population Services International [53], at p. 685; Cleveland Board of Education v. LaFleur [54], at p. 639; Stanley v. Illinois [55], at p. 651).

In view of these principles, the United States Supreme Court has held that the right to marry is retained even during imprisonment (Turner v. Safley [46]). Notwithstanding, the Federal courts have consistently refused to recognize a right to conjugal visits and intimacy with a spouse as a constitutional right (Anderson v. Vasquez [56]; Hernandez v. Coughlin [57]; Toussaint v. McCarthy [58]). The question whether allowing a prisoner to provide a sperm sample for the purpose of artificial insemination and realizing his constitutional right to have children is consistent or inconsistent with the actual imprisonment and what are the potential conditions for restricting it has not yet been brought before the United States Supreme Court, but other courts in the United States have approved administrative decisions that restrict the realization of the right. These decisions raise the question of whether they are consistent with constitutional principles and the substantive rules of conventional international law on this issue. In Goodwin v. Turner [59] the Federal Court of Appeals of the Eighth Circuit approved a policy that denied prisoners the possibility of artificial insemination. It was held that even if the right survived imprisonment, there was a rational connection between this policy and the duty of the prison to treat all prisoners equally. The argument was that the prisons would also be required to allow female prisoners to realize the right to have children, and as a result also to care for their needs during pregnancy and for their infants, and that this would lead to imposing substantial costs on the prisons and make it necessary to divert resources from important programs and the security needs of the prison. Therefore, for this reason it was possible not to approve artificial insemination for spouses of male prisoners.

‘According to the Bureau’s artificial insemination policy statement, if the Bureau were forced to allow male prisoners to procreate, whatever the means, it would have to confer a corresponding benefit on its female prisoners. The significant expansion of medical services to the female population and the additional financial burden of added infant care would have a significant impact on the allocation of prison resources generally and would further undercut the Bureau’s limited resources for necessary and important prison programs and security’ (ibid. [59], at p. 1400; the Supreme Court of the State of New Jersey made a similar ruling in Percy v. State of New Jersey, Department of Corrections [60], at pp. 548-549).

The minority justice in that case thought otherwise. According to him, the right to have children, like the right to marry, survives the imprisonment. In addition, in his opinion it is not legitimate to make use of the principle of equality in order to deny the constitutional right of another (ibid. [59], at pp. 1403-1407). Further detailed consideration of this issue can be found in Gerber v. Hickman [61], in an opinion of the Federal Court of Appeals of the Ninth Circuit. In that case a majority (of six judges) held that the right to have children is inconsistent with the nature of imprisonment, since imprisonment naturally separates the prisoner from his family and his children. It was also stated there that restricting the right to have children is consistent with the legitimate objectives of the penal system, including deterrence and retribution:

‘… “these restrictions or retractions also serve… as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction”…’ (ibid. [61], at p. 621).

Following from these remarks it was held that the right to have children is inconsistent with imprisonment, even when it is possible to realize it by means of providing sperm for artificial insemination:

‘Our conclusion that the right to procreate is inconsistent with incarceration is not dependent on the science of artificial insemination, or on how easy or difficult it is to accomplish. Rather, it is a conclusion that stems from consideration of the nature and goals of the correctional system, including isolating prisoners, deterring crime, punishing offenders, and providing rehabilitation’ (ibid. [61], at p. 622).

By contrast, the five minority justices were of the opinion that realizing the right to have children by means of a process that does not require an intimate meeting does not pose a security risk, and therefore it is consistent with the substance of imprisonment and should be respected:

‘… the right to intimate association and the right to privacy — are clearly inconsistent with basic attributes of incarceration because of security concerns. Procreation through artificial insemination, however, implicates none of the restrictions on privacy and association that are necessary attributes of incarceration’ (ibid. [61], at pp. 624-625).

They also emphasized that the majority judges had not shown why the right to have children was inconsistent with the penal objectives, and in so far as their intention was to deny the right to have children as a method of punishment, a determination of this kind should be made by the legislature:

‘The majority identifies correctional goals such as isolating prisoners, deterring crime, punishing offenders, and providing rehabilitation that are supposedly inconsistent with the right to procreate, yet does not explain how the right is inconsistent with any of these goals. If, in fact, the purpose behind prohibiting procreation is to punish offenders, this is a determination that should be made by the legislature, not the Warden’ (ibid. [61], at p. 626).

It would appear that the minority position in this proceeding corresponds in essence to the outlook that has become accepted in the Israeli legal system, whereby human rights are retained by the prisoner in so far as they are not inconsistent with the substance of the imprisonment, and restricting and limiting them is permitted only in so far as this is essential for achieving a very weighty public purpose, such as security and disciplinary arrangements in the prison, or another important public interest. In the absence of such an interest, the remaining rights should be respected, and the prisoner should be allowed to realize them de facto.

Conclusion

23. Yigal Amir was and remains one of the most abhorred criminals in the Israeli national consciousness in recent generations, if not the most abhorred. He was convicted of the murder of a prime minister, and first introduced into the public consciousness the possibility that a terrible event of this kind, in which an ordinary Israeli citizen would murder his leader, could also take place in Israel. Amir has been sentenced by the legal system in so far as the law requires, and his punishment has been exhausted. But his sentence has not reduced the feelings of abhorrence towards him, for the nefarious deed of taking the life of a man who was the symbol of the democratic system of government in the independent State of Israel.

Notwithstanding, from the moment that Amir’s sentence was handed down and he became a prisoner serving a sentence of life imprisonment, his punishment was exhausted. From this stage, like all prisoners, Amir is subject to severe restrictions on his liberty, and additional restrictions on his human rights, that derive inherently and essentially from the loss of his liberty. In addition he is subject to further restrictions that concern the discipline and order that are required by life in the prison. It is also permitted, where necessary, to impose restrictions on him that are derived from the needs of state security or from other essentials needs that are a public interest. But apart from these restrictions he retains, like every prisoner, basic human rights that were not taken from him when he entered the prison (cf. BAA 2531/01 Hermon v. Tel-Aviv-Jaffa District Committee, Israel Bar Association [41], at para. 19). The executive authority is required to respect these rights and to do all that it can in order to allow them to be realized, unless they are confronted by conflicting considerations of public interest whose weight justifies a limitation of the human right. These considerations do not include the consideration of desiring to worsen the conditions of imprisonment of someone who is serving a life sentence because of the severity of his crime, or the consideration of restricting his human rights as revenge for his deeds. These considerations are irrelevant to the issue and they are inadmissible.

The outlook that it is possible to violate the prisoner’s right to parenthood because of the gravity of the offence that he committed, for reasons of deterrence and to show abhorrence towards the offender, is foreign to the basic principles of criminal law and to penal theory. This approach is also clearly inconsistent with the prevailing constitutional approach in the Israeli legal system. It is inconsistent with the ethical principles of the State of Israel as a Jewish and democratic state; it does not reflect a proper purpose nor is it proportionate. This court has already said, in another context:

‘A restriction upon contact with persons outside the prison should not be imposed on security prisoners if it is not required by security considerations or other objective considerations, but merely derives from considerations of retaliation or revenge, or if it harms the prisoner to a degree greater than that required by objective considerations’ (per Justice Zamir in State of Israel v. Kuntar [16], at p. 501, and LHCJA 5614/04 Amir v. Israel Prison Service [2] (conjugal visits), at p. 5).

With regard to the realization of human rights that are retained by a prison inmate, Amir’s status is the same as any other prisoner. In the absence of substantial conflicting considerations of public interest, the human rights that he retains as a prisoner serving a life sentence should be respected and not violated, and the right to parenthood is among the most exalted of these. This is what the competent authority decided in this case, and it was right to do so.

Respect for human rights and the protection of human rights lie at the heart of the constitutional system in Israel. The protection of the human rights of prison inmates is derived from and required by this outlook. Without de facto implementation of this protection, to the extent that it is possible, even for someone who has lawfully been deprived of his liberty, the value of human dignity may be diminished. This is equally true of all prisoners, whether less serious or more serious offenders. It is also true with regard to prisoners serving a life sentence because they have taken human life; society’s recognition of the human rights retained by the prisoner preserves his dignity as an individual. But no less importantly it preserves the dignity of society as a civilized society that does not merely protect the rights of its ordinary citizens, but also those of persons who have committed crimes against it, even if the crime is the worst of all — the murder of a human being — and even where the victim of the murder symbolized in his life and his death the image of Israeli society as a democracy that is built on constitutional values that give precedence to human rights.

‘Moreover, a violation of a prisoner’s human dignity does not merely harm the prisoner but also the image of society. Humane treatment of prisoners is a part of a moral-humanitarian norm that a democratic state is liable to uphold. A state that violates the dignity of its prisoners breaches the duty that it has to all of its citizens and residents to respect basic human rights’ (per Justice Mazza in Golan v. Prisons Service [15], at p. 156 {506}).

We should remember that a civilized country is not merely judged by how it treats its faithful citizens, but also by how it treats the criminals living in it, including the most despicable criminals who wish to undermine its ethical foundations. In a proper constitutional system, the umbrella of human rights extends over every human being, including the criminal sitting in prison, subject to conditions and restrictions that satisfy constitutional criteria. The public authority acted in this case in accordance with the proper constitutional criteria, and its decision was made according to the law.

On the basis of all of the aforesaid, the petition should be denied. The interim order that was made is set aside.

In the circumstances of the case, I propose that no order is made for costs.

Justice E. Hayut

1. I agree with the opinion of my colleague Justice Procaccia and I would like to add several remarks.

This petition concerns a decision of the Prison Service Commission of 5 March 2006 to allow Yigal Amir, who is serving a life sentence, to send sperm outside the prison for the purpose of the artificial insemination of his wife, Mrs Larissa Trimbobler. Like my colleague, I too am of the opinion that the argument of the petitioners that the Prison Service Commissioner is not competent to allow the sperm to be transferred as aforesaid should be rejected. The question in this context is not what is the source of the authority to allow this but by virtue of what authority was the Prison Service Commissioner entitled to refuse the request of this prisoner in this regard. It would appear that in so far as the commissioner’s decision does not restrict the human rights of the prisoner but realizes them, his decision enjoys the presumption of being made with authority and no fault can be found with it in this regard. A completely different question is whether the authority has a duty to exercise its power in this matter and what are the limitations and restrictions that it may determine in this regard. These questions do not arise in the case before us, and therefore we can leave them until they do.

2. With regard to the question of the reasonableness of the decision, the petitioners as public petitioners sought in their petition to give expression to the feeling of abhorrence that the Israeli public feels to the murderer of the late Prime Minister Yitzhak Rabin. According to them, the punishment incorporated in the criminal sanction should also receive expression after the sentence has been imposed, when the murderer is serving his sentence of imprisonment. Therefore, so it is alleged, he should not be allowed to realize his right to parenthood. The petitioners further argue that the decision of the Israel Prison Service to allow the Trimbobler-Amir couple artificial insemination is an improper decision from a moral viewpoint, and according to them ‘a person who commits such a serious crime ought to know that not only will he lose his personal liberty, but also other basic rights may be impaired… someone who takes the life of his fellow-man may discover that that he cannot give life to his progeny.’ The petitioners emphasize, however, that it is not in every case that a prisoner is not entitled to have children, but in their opinion ‘the murder Amir does not have this right.’

3. In his book A Judge in a Democracy (2004), President Barak discussed how a judge ought not to estrange himself from the society in which he lives and functions. In his words:

‘The administration of justice is a form of life that involves a degree of seclusion; it involves distancing oneself from social and political struggles; it involves restrictions on the freedom of expression and response; it involves a considerable degree of solitude and introspection. But this is not a form of life that involves an estrangement from society. A wall should not be built between the judge and the society in which he functions. The judge is a part of his people’ (ibid., at p. 52).

Indeed, as an integral part of Israeli society we ought to be aware and sensitive to the strong feelings that the public has to the terrible act of murder committed by Amir, and these feelings have been well expressed by the petitioners in their petition. But as judges in a democracy, we are enjoined to decide the petition according to the law, by applying the basic principles of our legal system even if our decision is not consistent with these feelings. In his aforementioned book, President Barak outlines the important distinction between the need to maintain the confidence of the public in its judges and being carried away unprofessionally by public opinion and public feelings. He says:

‘The need to ensure public confidence does not imply a need to ensure popularity. Public confidence does not mean following the prevailing trends among the public. Public confidence does not mean making decisions on the basis of public opinion surveys. Public confidence is not pleasing the public. Public confidence does not mean making decisions that are inconsistent with the law or with the conscience in order to reach a result that the public wants. On the contrary, public confidence means making decisions according to the law and in accordance with the judge’s conscience, irrespective of the public’s attitude to the actual decision’ (ibid., at p. 51).

In our case, it is possible to understand the collective feeling of revenge that the petitioners are expressing in view of the national trauma caused by Amir by means of the political murder that he committed. But this feeling cannot dictate an outcome that is inconsistent with the basic principles of our legal system. According to these principles, which my colleague discussed at length in her opinion, the punishment to which Amir was sentenced, according to which he was removed from society and imprisoned behind bars for life, does not inherently deprive him of the right to parenthood. Therefore, we can find no unreasonableness in the decision of the Israel Prison Service to allow the transfer of the sperm (subject to the restrictions stipulated in the decision), in order to give Amir a chance to realize his right to parenthood by means of artificial insemination.

Justice S. Joubran

1. I agree with the opinion of my colleague Justice A. Procaccia and the reasons that appear in her profound and comprehensive opinion. Notwithstanding, in view of the complexity of the question before us, I think it right to add several remarks of my own, if only in order to present the difficulties raised in this case from a different and additional viewpoint.

2. From time to time the court is asked to consider petitions concerning the conditions of imprisonment and the various restrictions that are imposed on prisoners who are serving sentences in the prisons. On a theoretical level, these petitions involve complex questions concerning the purpose of the sanction of imprisonment. In this context, it is possible to identify two main approaches that conflict with one another. According to one approach (hereafter — the first approach), the purpose of imprisonment is limited to depriving the prisoner of his personal liberty, by restricting his freedom of movement when imprisoning him behind bars for the period of imprisonment to which he has been sentenced. According to this approach, restricting any other rights of the prisoner is not a part of the sentencing purpose. In this regard it makes no difference whether we are dealing with rights whose violation is a consequence of the restriction of the liberty because of the fact that the ability to realize them depends upon the freedom of movement, or we are dealing with rights that are being violated in order to achieve other public purposes, including ensuring the proper management of the prison service, security considerations and other legitimate public interests (see para. 14 of the opinion of my colleague Justice A. Procaccia).

3. According to the other approach (hereafter — the second approach), a restriction of additional basic rights of a prisoner, apart from the right to personal liberty, will be possible if this is consistent with the additional legitimate purposes underlying the objective of the sentence, including the removal of the prisoner from society, the suppression of crime, (specific or general) deterrence, a denunciation of the offender and punishment (with regard to these reasons, see the memorandum of the draft Penal (Amendment — Incorporation of Discretion in Sentencing) Law, 5765-2005, which is based on the opinion of the committee chaired by Justice Emeritus E. Goldberg; an expression of the second approach can be found in the majority opinion in the judgment in Gerber v. Hickman [61], which is mentioned on page 33 of my colleague’s opinion). In other words, according to this approach, the purpose of the sentence of imprisonment that is imposed on the prisoner is not limited to sending him to prison in itself, and the restriction of the prisoner’s freedom of movement, together with the other violations of his rights that accompany it, do not express the full sentence that is imposed on him.

4. It is not superfluous to point out that the distinction between the aforesaid two approaches is not merely a matter of semantics but a difference that goes to the heart of the purpose of sentencing. Thus it may be asked most forcefully why sentencing should only take the form of a denial of the prisoner’s liberty and freedom of movement and not a restriction of other rights. It should be emphasized that the distinction between the different approaches has major ramifications on the scope of the protection given to the rights of the prisoner. Thus it is not difficult to see that whereas the first approach results in a restriction of the violation of the prisoner’s basic rights, the second approach actually extends the possibilities of violating them. To a large extent it can be said that the approach that the sanction of imprisonment should realize the various purposes underlying the sanction, including punishment and deterrence, leads to an approach that holds that the mere restriction of the freedom of movement does not exhaust, in every case, the sentence that is imposed on the prisoner. According to this approach, imprisonment should fully reflect the society’s abhorrence at the acts that the prisoner committed and the severity with which society regards them. In this way, not only is the prisoner placed behind bars for his acts, but his imprisonment should reflect, in all its aspects, his isolation and removal from society.

5. The difference between the aforesaid two approaches may easily be clarified by giving several examples: serving a prison sentence within the confines of a prison inherently results in a violation of the prisoner’s right to engage in an occupation, since he is subject to various restrictions that deprive him of the possibility of leaving the prison confines. But consider, for example, a case in which a prisoner, who committed crimes that gave rise to public outrage, wishes to publish, from the prison, a novel that he has written, which is based on the story of his personal life. Assuming that the writing of the book during the prisoner’s free time does not interfere with the proper functioning of the prison and does not affect the maintenance of order and discipline in the prison, according to the first approach the prisoner should not be prevented from publishing the book, by which means he realizes his right to the freedom of expression and the freedom of occupation. In parenthesis I will point out that the need to examine the writings of the prisoner and to ensure that they do not include details that may affect order and discipline in the prison may impose a significant burden on the prison service so that it will be justified in refusing publication of the book (see and cf. Golan v. Prisons Service [15], at pp. 165-166 {524-527}). In any case, it should be noted that according to the second approach it is possible that the publication of the book may be prevented for very different reasons. It may be argued that the purposes underlying the sentence of imprisonment, including punishment, expressing revulsion at the acts of the prisoner and isolating him from society, justify not allowing that prisoner, while he is in prison and before he has finished serving his sentence, to derive an economic benefit from the commission of his despicable acts or achieving public recognition as a result of the publication of the book.

Another interesting example concerns the question of the rights of a prisoner to participate in elections to the Knesset. Whereas according to the first approach there is no basis for restricting the right of a prisoner to vote, as long as this does not harm the proper management of the prison, according to the second approach it is possible to regard the refusal of the right to vote as a measure that reflects the purpose of isolating the prisoner from society, which derives from the idea that there is no reason to allow a prisoner who has been removed from society for a certain period to influence the shaping of its system of government and other aspects of society. This is the place to point out that, in Israel, the arrangement that allows prisoners to realize their right to vote is enshrined in legislation (see s. 116 of the Knesset Elections Law, 5729-1969; HCJ 337/84 Hukma v. Minister of Interior [26]; Golan v. Prisons Service [15], at pp. 158-159 {514-516}).

The same applies to the restrictions imposed on the prisoner’s ability to have contact with members of his family and with additional persons outside the prison, whether by means of visits to the prison or by sending letters or making telephone calls. It may be argued that the aforesaid restrictions were not only imposed because of the need to prevent a disruption to the running of the prison but they were also intended to realize the purpose of removing and isolating the prisoner from society.

6. Several different variables may increase the disparity between the aforesaid two approaches. One of these variables concerns the seriousness of the offence that the prisoner committed. Thus, for example, according to the second approach, the more serious the offence, the greater the degree of revulsion that the public feels towards the acts of the prisoner, and this should be reflected to a more significant degree in his sentence. This can be done, inter alia, by preventing him from benefitting from additional rights that he would have had, were he a free man.

7. It can be said that the petitioners’ arguments are based to a large extent on the second approach. According to what is alleged in the petition, when considering a request of someone who committed such a despicable and serious offence as the second respondent to be allowed to have children, the competent authority should take into account considerations that go beyond the effects of the application on the mere ability to keep him behind bars, and it should also balance the violation of his rights against the principles of punishment and deterrence that underlie his sentence. Thus they request that the administrative authority should also take into account the profound feelings of abhorrence that the citizens of the state feel towards his despicable acts, when it decides whether there are grounds for allowing the artificial insemination of his spouse. It follows from this, the petitioners seek to argue, that someone who committed such a serious act against the Israeli public should not be allowed to realize his right to have a family.

8. But as my colleagues say in their opinions, the path that the petitioners seek to follow is not the path of the Israeli legal system. It is the first approach presented above that has established over the years a firm basis in our case law. The remarks of this court in Golan v. Prisons Service [15], which are cited in the opinion of my colleague Justice A. Procaccia, are pertinent in this regard:

‘The basic assumption is that the human rights “package” of a prisoner includes all those rights and liberties conferred on every citizen and resident, except for the freedom of movement of which he is deprived as a result of the imprisonment. Notwithstanding, it is clear that the imprisonment also suspends the prisoner’s ability to exercise some of his other liberties. With regard to some of these, where the ability to exercise them depends on the freedom of movement, the suspension of the right is “inherent” to the imprisonment. Other liberties that can be exercised (at least in part) irrespective of freedom of movement and that can be realized even in a prison cell (or from it) continue to be enjoyed by the prisoner even when he is in the prison’ (ibid., at p. 152 {502}; see also the references cited there).

Or as my colleague expressed so well in her own words:

‘It should be emphasized that the restrictions on human rights that are imposed by the public authority were not intended to add an additional sanction to the sentence that was handed down. Their purpose is not to increase of the severity of the sentence that was handed down to the prisoner as a goal in itself. Their purpose is not to punish the prisoner for his crimes, for which he has been sentenced to imprisonment, or to make the conditions of his imprisonment more difficult as recompense for his despicable acts’ (para. 14 of the opinion of Justice A. Procaccia).

9. Admittedly it is possible to find instances in Israeli case law in which it appears that a prisoner’s rights were in practice denied as a part of his punishment. In this regard, the following examples can be mentioned: the refusal of a prison governor to allow a prisoner to have use of a ‘sex doll’ in order to release his tensions and as a substitute for having marital relations (LHCJA 4338/95 Hazan v. Israel Prison Service [20]); a refusal to allow a book that was held to contain inflammatory and inciting content into a prison (HCJ 543/76 Frankel v. Prisons Service [42]); a decision not to allow prisoners on a hunger strike salt and milk powder and to remove these products from their cells, where it was held that the right to allow a prisoner to participate in a hunger strike is not one of the rights granted to him when he is in prison (HCJ 7837/04 Borgal v. Israel Prison Service [43]); a prohibition against security prisoners having radio receivers (HCJ 96/80 Almabi v. Israel Prison Service [44]). Naturally it is possible to point to many more examples, but for the sake of brevity I will not mention them. But it is important to note that all of these cases concerned a restriction of the prisoner’s rights that derived from the principle that his punishment was exhausted by his being placed behind bars, and any additional restriction was intended to serve the needs of the imprisonment only. Thus, in all the examples that were mentioned above, the restriction of the additional rights was made in order to ensure the proper running of the prison and the disciplinary and security arrangements in the prison. Notwithstanding, in order that these case law rulings with regard to the importance of preserving the human rights of the prisoner do not become empty words, the court should ensure that the Israel Prisons Service does not make improper use of its power to ensure the proper functioning of the prison as a means of restricting additional rights of prisoners, even where this is not necessary. The remarks of Justice H. Cohn in HCJ 144/74 Livneh v. Prisons Service [45] are pertinent in this regard:

‘Many evils that are a necessary part of prison life are added to the loss of liberty. But we should not add to the necessary evils that cannot be prevented any restrictions and violations for which there is no need or justification. The powers granted to prison governors to maintain order and discipline need to be very broad; but the broader the power, the greater the temptation to use it unnecessarily and without any real justification.’

10. It is proper at this stage to make two additional points. First, it is possible to mention incidents that can perhaps be regarded as expressing the second approach. These are cases where certain aspects of the sentence of imprisonment reflect to some extent purposes that go beyond those concerning the restriction of liberty. Thus, for example, s. 9 of the Release from Imprisonment on Parole Law, 5761-2001, provides that among the considerations that should be taken into account when considering the question of the early release of a prisoner from imprisonment, there are considerations concerning the severity and type of the offence, the circumstances in which it was committed, its scope and consequences, and also considerations relating to the prisoner’s criminal record. Moreover, s. 10 of the same law states that:

‘In cases of special seriousness and circumstances in which the board is of the opinion that the parole of the prisoner will seriously harm the public, the legal system, law enforcement and the deterrence of others, when the severity of the offence, its circumstances and the sentence handed down to the prisoner are unreasonably disproportionate to the term of imprisonment that the prisoner will actually serve if he is released on parole, the board may also take these factors into account in its decision.’

Another example of this can be found in the duty imposed on every prisoner to work in the course of the sentence of imprisonment imposed on him (s. 48 of the Penal Law, 5737-1977, together with s. 25 of the Prisons Ordinance [New Version] (hereafter — the ordinance)). According to what is stated in s. 56(30), if a prisoner refuses to work, this will lead to the sanctions listed in s. 58 of the ordinance. Thus, even though the rationale underlying this provision is a rationale that is intended to rehabilitate the prisoner, it does involve a conflict with his freedom of choice.

Notwithstanding, it is important to point out that in all of these examples and others, the violation of the prisoner’s rights in addition to his actually being held in prison is enshrined in a specific provision of statute (see for example Golan v. Prisons Service [15], at p. 152 {502}). The position is different when the Prison Service Commissioner wishes to violate additional rights that are not inherent to the loss of liberty without such a power being given to him expressly in statute.

11. Second, there is an additional category of cases in which the gravity of the offence or the fact that a prisoner has not expressed regret for his actions would appear to have an effect on the scope of the violation of rights that is not necessarily inherent to the loss of liberty. Even though the circumstances relating to the severity of the offence do not constitute in themselves a justification for violating the rights of the prisoner, they are capable of indicating the risk presented by him, and consequently they are capable of justifying imposing additional restrictions that violate the basic rights given to him. Notwithstanding, it is important to note that this is not a continuation of the sentencing or an additional sentence resulting from these circumstances, but a violation that is incidental to the actual sentence of imprisonment (see and cf. LHCJA 5614/04 Amir v. Israel Prison Service [2]).

12. In conclusion, as I pointed out in my opening remarks, I agree with my colleagues that in the circumstances of the present case there was no reason to prevent the second respondent realizing his right to have children by means of artificial insemination. Notwithstanding, I saw fit to add these remarks, in order to try to focus upon the difficulty in the issue before us and to clarify why even when we are dealing with someone who committed one of the most abhorrent crimes in the history of our state, we are obliged to continue to adhere to the principles that lie at the heart of our legal outlook.

Petition denied.

17 Sivan 5766.

13 June 2006.

Full opinion:

Dobrin v. Israel Prison Service.pdf

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

http://elyon1.court.gov.il/files/06/450/022/R02/06022450.r02.pdf

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Prisoners’ Rights

Barzilai v. Government of Israel

Attorney General v. Weigel

Association for Civil Rights in Israel v. Minister of Defense

Kogen v. Chief Military Prosecutor

The Issue

The Facts and Proceedings

Contracts of Public Authorities

The Ruling

Fairness

Justice D. Dorner

Justice Y. Turkel

Adam v. Knesset (summary)

Dobrin v. Israel Prison Service

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