Separation of Powers

HCJ 5492/07

HCJ 7677/07

HCJ 4820/08

 

Petitioner in 5492/07:                     Smadar Boaron

Petitioner in 7677/07:                     Noah Kariv

Petitioners in 4820/08:                                                   1. Malka Stier

                                                                                2. Shulamit Gabay Galoni

                                                                                3. Cheli Juliet

 

v.

National Labour Court

National Insurance Institute       

 

The Supreme Court sitting as the High Court of Justice

[21 July 2009]

 

Before President D. Beinisch, Deputy President E. Rivlin, and Justices A. Procaccia, E. Levy, E. Arbel, E. Hayut, H. Melcer

 

Petitions for an order ¬nisi and for an interim order.

 

Facts: Four widows who had each been receiving either a dependents allowance or a survivors allowance in accordance with the provisions of the National Insurance Law [Consolidated Version], 5755-1995, received notices from the National Insurance Institute indicating that their allowances had been discontinued — as of the time that the Institute had determined that each had begun living together with a new partner in a common-law marriage.  After the relevant regional labour courts ruled in favor of the petitioners, the National Labour Court upheld the discontinuation of the allowances for all of them.

Held: The National Labour Court’s decision involved no substantive legal error requiring the intervention of the High Court of Justice. Sections 255 and 262 of the National Insurance Law refer to the discontinuation of a survivor’s allowance to a widow who has remarried; s. 135 refers to the discontinuation of a dependents allowance to a widow who has remarried. Neither section refers specifically to remarriage in the context of a common-law relationship. However, the statute’s definitional section specifically defines a wife as including a common-law wife, and it is this definition that entitles a woman whose common-law husband has died in either a work accident or of natural causes to receive the relevant type of allowance on the same ground that an “official” widow receives such an allowance. The question to be decided, therefore, is whether the provisions relating to the discontinuation of the allowance upon remarriage, as outlined in the above-mentioned sections, apply to widows or widowers who have entered into common-law relationships as well as to those who have officially remarried.

The statute must be interpreted in light of its purpose and in light of its specific language. The purpose of both allowances is to provide financial support to a person after the death of his or her partner whose income had provided support; this support is discontinued at the time of a remarriage under the assumption that the new couple will be pooling income and sharing expenses and that the support from the National Insurance Institute is no longer necessary. This is also why the allowance is generally renewed if the second marriage ends within a certain period of time. This purpose supports the cancellation of benefits to widows and widowers who have entered into common-law relationships, as they too are benefiting from the financial aspects of a shared household, given that the existence of such a shared household is a prerequisite for a determination that a relationship reaches the level of a common-law marriage.

The petitioners had argued that common-law relationships and official marriages should not be deemed comparable in terms of the level of support provided, due to the relative instability of a common-law relationship which has not been formalized through a wedding ceremony. This argument fails because the statutory provisions regarding the renewal of allowances upon the conclusion of a remarriage would also apply to the termination of a common-law relationship, so that the supposed relative instability of the latter form of relationship is not a relevant consideration.

The statutory language also supports the determination that a common-law wife should lose her entitlement to a survivors or dependents allowance. The definition of a wife in the definitional section expressly refers to a common-law wife, and nothing else in the text of the statute contradicts the inclusion of a common-law relationship within the definition of remarriage. The fact that the provisions pertaining to the cancellation of a right to an allowance refer to specific dates such as the date of a marriage or of the dissolution of a marriage does not conflict with this interpretation; the National Insurance Institute is able to make determinations regarding the beginning and ending of a common-law relationship as well, albeit not as easily as in the case of an official marriage.

Petitions denied.

Legislation cited:

 

Basic Law: Human Dignity and Liberty.

Civil Wrongs Ordinance [New Version], 5728-1968.

Families of Soldiers Killed in Action Law (Pensions and Rehabilitation), 5710-1950.

Income Support Law, 5741-1980.

Inheritance Law, 5725-1965.

Interpretation Law, 5741-1981, s. 2.

Names Law, 5716-1956.

National Insurance Law [Consolidated Version], 5755-1995, ss. 1, 130(b), 135(a)-(c), 238, 255(b)-(d), 262.

National Insurance Regulations (Dependents allowance for Remarried Widows), 5737-1976.

Public Service Law (Pensions) [Consolidated Version], 5730-1970.

Israeli Supreme Court cases cited:

[1] HCJ 6522/06 Kochavi v. the Jerusalem Labour Court (2009) (not yet reported).

[2] HCJ 8929/08 Ben Nun v. National Labour Court (2009) (not yet reported).

[3] HCJ 525/84 Hatib v. National Labour Court [1986] IsrSC 40(1) 673.

[4] HCJ 840/03 Israel Professional Firefighters Union — Firefighters Committee v. Jerusalem Labour Court [2003] IsrSC 57(6) 810.

[5] HCJ 5666/03 Kav LaOved Organization v. National Labour Court (2007) (not yet reported).

[6] MApp 67/84 Hadad v. Paz [1985] IsrSC 39(1) 667.

[7] CA 2000/97 Lindorn v. Kranit Fund for Compensation of Road Accident Victims [1999] IsrSC 55(1) 12.

[8] CA 8569/06 Director of Land Taxation, Haifa Office v. Polity (2008) (not yet reported).

[9] CA 3622/96 Hacham v. Kupat Holim “Maccabi” [1998] IsrSC 52(2) 638.

[10] FH 40/80 Kenig v. Cohen, [1982] IsrSC 36(3) 701.

[11] LCA 3899/04 State of Israel v. Even Zohar (2006) (unreported).

[12] HCJ 6247/04 Gorodetzki v. Minister of Interior [12],(2010) (not yet reported).

[13] AAA 4614/05  State of Israel v. Oren (2006) (unreported).

[14] CA 1966/07 Ariel v. Egged Members Pension Fund Ltd (2010) (unreported).

[15] HCJ 2316/05 A v. National Labour Court (2005) (unreported).

[16] HCJ 4193/04 Gartner-Goldschmidt v. National Labour Court (2010) (not yet reported).

[17] HCJ 953/87 Poraz v. Mayor of Tel Aviv Shlomo Lahat [1988]  IsrSC42(2) 309.

[18] HCJ 6427/02 Movement for Quality Government v. Knesset (2006) (unreported).

[19] HCJ 4124/00 Yekutieli v. Minister of Religion (2010) (not yet reported).

[20] HCJFH 4191/97 Recanat v. National Labour Court [2000] IsrSC 54(5) 330.

[21] CrimA 4341/99 Vidal v. State of Israel [1999] IsrSC 54(3) 329.

[22] CA 2622/01 Director of Land Appreciation Tax v. Levanon [2002] IsrSC 57(5) 309.

[23] CA 165/82 Kibbutz Hatzor v. Rehovot Assessment Officer [1985] IsrSC 39(2) 70.

[24] CA 1186/93 State of Israel, Minister of Justice v. Israel Discount Bank Ltd [1994] IsrSC 48(5) 353.

[25] HCJ 5304/02 Israel Association of Victims of Work Accidents and Widows of Victims of Work Accidents v. State of Israel, Knesset [2004] IsrSC 59(2) 134.

[26] HCJ 8487/03 IDF Disabled Veterans Organization v. Minister of Defense (2006) (unreported).

[27] HCJ 9863/06 Karan - Society of Combat Veteran Quadriplegics v. State of Israel - Minister of Health (2008) (not yet reported).

[28] HCJ 693/91 Efrat v. Director of the Population Registry [1993] IsrSC 47(1) 749.

[29] HCJ 6304/09 Lahav v. Attorney General (2010) (not yet reported).

[30] CA 233/98 Katz v. Keren Makefet [2000] IsrSC 54(5) 493.

 

Labour Court cases cited:

[31] NLC 54/85-0 Ornan v. National Insurance Institute [1994] ILC 27 400.

[32] NIIApp1407/04 NII v. Friman (2006) (not yet reported).

[33] NIIApp 731/07 Kirshner v. NII (2009) (not yet reported).

[34] NIIApp 1212/04 Apter v. NII  [2005] ILC 40 461.

[35] NLC 30/19-0 NII v. Mano [1970] ILC 2 (1) 72.

[36] NLC 52/69-0 Leon v. NII [1992] ILC 24(1) 458.

[37] NLC 53/6-7 Batar v. Central Pension Fund of Histradrut Workers, Ltd [1994] ILC 27(1) 135.

[38] NLC 57/6-2 Central Pension Fund of Histradrut Workers, Ltd v. Kochavi (1997) (unreported).

[39] NIIApp 1169/01 Avital v. NII (2004) (unreported).

[40] NIIApp 779/06 NII v. Wolkowitz (2008) (not yet reported).

[41] NLC 56/255-0 Atar v. NII [1997] ILC 32 385.

 

For the petitioner in HCJ 5492/07 — T. Shilo.

For the petitioner in HCJ 7677/07 — N. Ashar; N. Weinberg-Eyal.

For the petitioners in HCJ 4820/08 — Y. Sirota; O Turner-Sternberg.

For respondent 2 — O. Rosen-Amir; T. Kazari.

 

 

JUDGMENT

Justice E. Hayut

Is a widow, who has not officially remarried but who is living as a common-law wife, to be treated as a widow who has remarried and is therefore no longer entitled to a survivors or a dependents allowance? This is the main question we face in the petitions that have been joined here for the purpose of deliberation.

The petitioners

1.            The petitioner in HCJ 5492/07, Ms. Smadar Boaron (hereinafter: “Boaron”), was widowed on 27 October 1996 and began receiving a dependents allowance from respondent 2 (hereinafter: “the NII” or “the Institute”). In 1998, Boaron began to live with her current partner, Mr. Tzachi Fink (hereinafter: “Fink”), first in a rented apartment and later in an apartment that the two purchased together in Rishon LeZion. Boaron and Fink never married (Boaron has stated that she did not feel confident regarding a marriage to Fink because he is five years younger than she is), but approximately eight years ago, she attached the name Fink to her family name. Two children were born to the couple — a son on 14 July 1999, and a daughter on 21 August 2003. On 16 May 2004, the NII informed Boaron that in light of information it received regarding her case, it considered her to be a “married woman” as of 14 July 1999 (the date on which the couple’s son was born), that her entitlement to a dependents allowance had therefore expired and that she was instead entitled to a one-time grant. After delivering this notice, the NII stopped paying Boaron a dependents allowance, and it deducted, from the one-time grant it paid to her, the amount of the allowances paid to her since the day as of which, as stated, the NII considered her to be a married woman.

2.            The petitioner in HCJ 7677/07, Ms. Noah Kariv (hereinafter: “Kariv”), was widowed on 15 July 1998 and began receiving a survivors allowance from the NII. Kariv lives with her life partner, Mr. Eliezer Lavie (hereinafter: “Lavie”), in his home on Kibbutz Ein Hashofet (hereinafter: “the Kibbutz”). On 1 August 2002, in order to arrange the mutual rights and obligations resulting from Kariv’s residence on the Kibbutz, the couple signed an agreement with the Kibbutz, according to which all of Kariv’s financial affairs would be conducted through Lavie’s personal budget, and he would be responsible to the Kibbutz for all her obligations. In a letter dated 24 February 2005, the NII informed Kariv that her survivors allowance had been revoked retroactively, from 1 August 2002, the date on which the said agreement with the Kibbutz was signed. The letter also informed her that she was entitled to a one-time grant instead of the allowance.

3.            Petitioner 1 in HCJ 4820/08, Ms. Malka Steir (hereinafter: “Steir”), was widowed on 8 March 1981 and began receiving a dependents allowance from the NII. Steir’s husband was killed in a work accident when serving as first mate on the ship Masada, which sank, and their son was born after his death (on 9 November 1981). At some point, Steir began to live with Mr. Eli Tasman, and their daughter was born on 10 April 1989. In March 2004, the NII informed Steir that it would no longer pay her a dependents allowance because it considered her to be a “married woman” as of 18 September 1994 (the date on which the National Labour Court rendered a decision in NLC 54/85-0 Ornan v. National Insurance Institute [31], to which I will refer below).

4.            Petitioner 2 in HCJ 4820/08, Ms. Shulamit Gabay Galoni (hereinafter: “Gabay Galoni”), was widowed in February of 1980 and began receiving a dependents allowance from the NII for herself and for her two daughters. After her daughters grew up, Gabay Galoni continued to receive a dependents allowance for herself only. Gabay Galoni has been living with Mr. Meir Galoni since 1991 and two children have been born to them — a son on 10 September 1991 and a daughter on 1 February 1993. The couple has no agreement between them. In May of 2003, the NII stopped paying the dependents allowance to Gabay Galoni, and a month later they informed her that the payment had been discontinued because the NII considered her to be a “married woman” as of 18 September 1994 (the date on which, as stated, the said decision was rendered in Ornan v. National Insurance Institute [31]).

5.            Petitioner 3 in HCJ 4280/08, Ms. Cheli Juliet (hereinafter: “Juliet”), was widowed in 1991 and began receiving a survivors allowance from the NII. Juliet has lived with Mr. Yigal Erez (hereinafter: “Erez”) since 1998. On 18 October 2004, the NII informed Juliet that her entitlement to a survivors allowance had ended as of 1 February 1998, the date on which she became Erez’ common-law wife. The NII also informed Juliet that because the payment of the allowance had been discontinued, she owed a debt in the amount of NIS 54,231; however, on 28 June 2005 it notified her that this debt had been cancelled. In any event, the NII discontinued its payment of a survivors allowance to Juliet as of 1 March 2004.

In light of the NII’s decision to discontinue its payments of survivors allowances and dependents allowances to these petitioners, they filed claims in the regional labour courts that focused on the question of whether a widow who has not remarried but who lives as a common-law wife is entitled to continue receiving a survivors allowance or a dependents allowance from the NII.

The judgments in the regional labour courts

6.            On 10 October 2005 the Nazareth Regional Labour Court allowed Kariv’s claim, and held that ss. 255 and 262 of the National Insurance Law prescribe the circumstances under which a remarried widow’s entitlement to a dependents allowance ends and those under which a remarried widow’s entitlement is reinstated. The court also held that the legislature had chosen to use “phrases that refer only to the world of marriage, in its original and narrow meaning.” The Nazareth Regional Labour Court also held that the denial of a spouse’s rights was not possible without an express statutory provision and that —

‘… the application of the provisions of s. 255 of the [National Insurance] Law to a “common-law wife/husband” requires additional changes in the section, apart from changing the word “married woman” wherever it appears to “common-law wife”; therefore, and in view of the case-law rule regarding a common-law wife/husband, it cannot be that this obstacle can simply be removed in some way other than a legislative change.’

On 20 May 2007, the Haifa Regional Labour Court joined in this holding and ruled in favor of Juliet. The court held that since the legislature had used clear language, according to which only a remarried widow would lose her entitlement to an allowance —

‘We cannot accept the argument that a widow who has begun a relationship with a new partner without formally marrying him is no longer entitled to a survivors allowance. Since the legislature determined that entitlement to an allowance lapses only upon the widow’s remarriage, only the act of marriage can cancel her right to an allowance, and no other act — including her becoming the common-law wife of another man — can do so.’

The court referred in its judgment to the decision of Vice President Elisheva Barak Ososkin in NIIApp  1407/04 National Insurance Institute  v. Friman [32], and held that “when there is no commitment by way of marriage, a person who has a common-law husband should not lose entitlement to a survivors allowance, because the institution of common-law marriage is not a stable one.”

7.            Regarding s. 135 of the National Insurance Law, the Tel Aviv-Jaffa Regional Labour Court granted Boaron’s claim against the NII, and held that according to the National Insurance Law [Consolidated Version] 5755-1995 (hereinafter: “the National Insurance Law”), entitlement to a dependents allowance expires only upon a widow’s remarriage and that “only the act of marriage will cancel [the widow’s] entitlement to the allowance, and no other act will do this, including her becoming another person’s ‘common-law wife’”. The Regional Labour Court held further that in light of the statutory language, s. 135 of the National Insurance Law cannot be applied to a widow who has become the common-law wife of another man, and noted that the section deals with the “specific dates on which a widow’s entitlement to a dependents allowance lapses or is renewed, and all those dates refer to the date of the marriage”; furthermore,  “regarding a person who is a common-law wife, it is clear that the dates of the beginning of the relationship, as well as its end, are not formal and clear, and therefore they cannot fall within the framework of the said section.” The Regional Labour Court rejected the NII’s claims that the National Labour Court’s holding in Ornan v. National Insurance Institute [31] supports the said interpretation of s. 135 of the National Insurance Law, and held that in the case before it, “the terms that are repeated, and under which the expiration of entitlement to an allowance, and the entitlement to a grant, are tied to specific dates, which are connected to the marriage process — all these lead me to the conclusion that the legislature’s intention regarding this section, given that it used the term “married”, was to refer to official marriage, and not to the institution of “common-law spouses”. In the end, the Regional Labour Court held that the same result will be reached upon a comparison to the Families of Soldiers Killed in Action Law (Pensions and Rehabilitation), 5710-1950 (hereinafter: the “Families of Soldiers Killed in Action Law”).

On 7 February 2006, the Haifa Regional Labour Court granted Gabay Galoni’s claim, referring, inter alia, to the judgment rendered in Boaron’s case. On 10 May 2006, the Tel Aviv-Jaffa Regional Labour Court also adopted this position in granting Steir’s claim against the NII.

The NII appealed all these decisions to the National Labour Court.

The judgments in the National Labour Court

8.            On 28 March 2007, the National Labour Court (President S. Adler, Judge Y. Plitman and S. Tzur, and public representatives Mr. A. Ben Gera and Y. Ben Yehuda) allowed the appeal brought by the NII against the decisions of the Regional Labour Courts in the matters of Boaron and Kariv, and held that the two should be viewed as remarried widows and that the provisions of ss. 135 and 255 of the National Insurance Law should be applied to each of them respectively (hereinafter: the “Boaron case”). The National Labour Court noted that under s. 1 of the National Insurance Law, the term “his wife” is defined as “including his common-law wife who lives with him,” and held that the Law equates the common-law wife to a married woman “and in any event it equates a widow with a common-law widow [sic].” The National Labour Court referred to Judge Plitman’s decision in NII v. Friman [32], in which he held as follows:

‘The question that arises is whether it may be concluded from the use of the expression, “a widow who has remarried” that the intention was to exclude a widow who conducts a full family life with a partner but has not been officially married . . .

[This question] should be answered in the negative for three reasons:

First, because of the reason underlying the objective of the law. The dependents allowance is an allowance which replaces the income brought by the spouse into the household — because the widow runs the household by herself after her husband’s death. Since the widow has now returned to sharing a household and family life with a life partner, she is again receiving support for the household finances, and therefore, in light of the purpose of the payment of the allowance as stated, she is no longer entitled to receive a dependents allowance.

This objective calls for a legal rule that does not distinguish between the law as it is applied to a widow who has officially remarried, and a widow who is a common-law wife. If we were to interpret the statutory language differently, there would be unjustified discrimination against the officially remarried widow whose financial support is discontinued, as opposed to the widow who has established a new family unit without anchoring it through participation in a marriage ceremony, whose allowance does not expire.

Secondly — the non-expiration of entitlement to a dependents allowance for a widow who has established a new home with a common-law husband would create an absurd situation in which, on the one hand, the legislature does not recognize the institution of common-law spouses and a widow therefore does not lose her entitlement to a dependents allowance even if she has reestablished a home with a common-law husband, and on the other hand, it does recognize the concept of a common-law spouse and grants a dependents allowance to a woman whose life partner, the common-law husband, passes away . . .

Thirdly — the absurdity arising from the non-expiration of the entitlement to a dependents allowance for a widow who has established a new home with a common-law husband is exacerbated in the case in which her common-law husband dies as a result of a work accident. In such a case, according to my colleague the Vice President, the widow would enjoy, in theory, a simultaneous double entitlement to two dependents allowances: one due to the death of her [non-common-law] husband and another due to the death of her common-law husband.

The legislature’s objective in establishing entitlement to a dependents allowance for a common-law wife whose life partner died is the same objective as we face here — a perception of the status of the common-law wife as being equal to that of a married woman, at least for the purpose of entitlement to a dependents allowance through which a widow is paid an allowance after the death of her life partner’ (ibid., at paras. 9-12).

The National Labour Court further held that a widow who is a common-law wife should also be viewed as a remarried widow with regard to the conversion of a survivors allowance to a survivors grant, noting that in the same way that a common-law wife is viewed as a married woman, a widow who has become a common-law wife should be considered as having married. The National Labour Court emphasized that this was not only a matter of denial of entitlement to an allowance; it also involved the creation of an equivalence in relation to entitlement to an allowance while providing grants to a remarried widow, and it therefore rejected the argument that there was a violation of the Basic Law: Human Dignity and Liberty. The National Labour Court also held that the date on which a common-law wife was deemed to have married is not determined arbitrarily, and that her entitlement to a grant (and the suspension of her allowance) begins “on the day on which it can be determined that she meets the definition in s. 1 of the National Insurance Law — ‘his common-law wife who lives with him’ — on the basis of an established factual foundation.” For all of the above-mentioned reasons, the National Labour Court held that Boaron and Kariv were to be treated as remarried widows. As the court wrote:

‘What reason is there for distinguishing between these two women whose cases are before us, who have lived with their partners for several years, and who are raising children with them, conducting a joint household, a new family unit, and following a mutual declaration of their relationship in the form of a financial agreement — and those women who have anchored their relationships with their partners through a religious ceremony? Any distinction that is made between the two cases is basically discriminatory and misses the legislative intent to anchor the status of the common-law wife in the definitional section of the National Insurance Law by defining the term “his wife” as “including his common-law wife who lives with him,” thus viewing the status of the common-law wife as being equivalent to that of a married woman’ (para. 14).

Finally, the National Labour Court held that the fact that a couple did not have joint ownership of any assets would not change its ruling, and that the date of expiration of the entitlement to an allowance should be established in each case on the basis of the particular factual circumstances.

9.            On 19 March 2008, the National Labour Court (President S. Adler, Judges J. Plitman and V. Virt-Livne and public representatives S. Habshush and J. Deutsch) also allowed the NII’s appeals of the judgments rendered by the regional labour courts in the suits brought by Gabay Galoni, Juliet and Steir, and held that they should be viewed as remarried widows (hereinafter: the “Gabay Galoni case”). The court repeated its holding that “a narrow interpretation of the term ‘remarried’ whereby it applies only to a widow who has undergone a marriage ceremony and not to a widow who has become a common-law wife leads to an unjustified favoring of the common-law wife over a woman who has been married in a formal ceremony, when the purpose of the law is to create an equivalence between the two.” The National Labour Court further held that the relevant provisions of the National Insurance Law should be interpreted in accordance with the other provisions of that Law, and not in accordance with the interpretation of the Families of Soldiers Killed in Action Law.

The petitions before us relate to these judgments, and following a hearing held in this Court on 3 November 2008, we issued an order nisi on 4 November 2008 ordering the NII to explain why the National Labour Court’s holding, that the meaning of the term “a widow who has remarried” is not limited to widows who have actually remarried but also applies to widows who are living as common-law wives, should not be reversed.

The parties’ arguments

10.          The petitioners argue that this Court must intervene in the National Labour Court’s judgments in the Boaron and Gabay Galoni cases, in view of a substantive legal error made in reaching them. Specifically, the petitioners argue that the National Labour Court’s judgments are inconsistent with the express language of ss. 135, 255(b), (d) and 262 of the National Insurance Law, which relate to a widow who has “remarried”, and that the language does not support an interpretation according to which these provisions relate to widows who are living as common-law wives — women who, by definition, have not remarried but are instead living with a partner. The petitioners argue in this context that the objective that the National Labour Court attributed to ss. 135, 255(b), (d) and 262 of the National Insurance Law — the creation of an equivalence not only in terms of the rights enjoyed by married couples as compared to the rights of couples living together, but also in terms of the obligations that both types of couple bear — deviates from the various possible linguistic interpretations of the section. They emphasize that the provisions establish specific dates on which the widow’s right to a dependents or survivors allowance either expires or is renewed. The petitioners note that the National Insurance Law refers to the concept of common-law marriage, and from this they infer that the legislature chose to apply ss. 135, 255(b), (d) and 262 to widows who have been formally remarried. The petitioners are of the opinion that the National Labour Court’s interpretation of the terms “married” and “date of marriage” will have “sweeping ramifications — without there having been a systemic, comprehensive, in-depth and methodical examination” of the other pieces of legislation dealing with marriage, and that such an examination can and should be carried out by the legislature alone.

As to the purpose of the National Insurance Law, the petitioners argue that it was intended to ensure the social security of Israel’s citizens, and that the level of social security enjoyed by common-law wives is less than that of married women due to the absence of a substantive financial anchor and to the unwillingness of the parties to make a commitment to each other through marriage. On this matter, the petitioners further argue that the ties between individuals who live as common-law spouses are characterized by varying levels of stability, and that clear criteria are therefore required in order to determine when the allowance given to a widow who has become another man’s common-law wife will be discontinued. The petitioners also argue that while the criteria for determining who falls within the definition of a common-law wife for the purpose of granting rights should be lenient, the criteria for making the same determination for the purpose of denying rights should be strict.

The petitioners argue that the National Labour Court has cancelled a right that is granted to a widow by primary legislation, and that in light of the complexity of the subject and its public importance, such a cancellation of rights should be left in the hands of the legislature. They further argue that the National Labour Court’s interpretation of the term “a widow who has remarried” violates the principle of equality with regard to the treatment of widows under the Families of Soldiers Killed in Action Law. In this context, they argue for the rejection of the NII’s position that a justifiable distinction may be made between the two groups of widows. The petitioners argue that the circumstances of a husband’s death are irrelevant, and that the purpose of both laws is to ensure that a widow who has been left without an additional provider can support herself with dignity. The petitioners also argue that the denial of their rights to an allowance due to their having become common-law wives violates their basic property rights; they argue that a statute which deprives citizens of their rights, or which reduces such rights, must be construed literally.

The petitioners further argue that the application of the provisions of ss. 135, 255(b), (d) and 262 of the National Insurance Law to widows who are living as common-law wives involves a degree of arbitrariness in terms of the determination of the date as of which the widow loses her entitlement to an allowance. Finally, the petitioners argue that the widowers have relied on their monthly allowances from the NII for their support and that their partners do not provide them with financial assistance, and do not support them — nor are they obligated to do so.

11.          The NII argues that the National Labour Court was correct in holding that the term a “widow who has remarried” also includes widows who are living as common-law wives, and that the position that the term “married” relates only to women who have had an actual wedding and not to common-law wives was already been rejected in Ornan v. NII [31]. The NII further argues, in this context, that because the term “wife” is defined in s. 1 of the National Insurance Law as including “his common-law wife who lives with him,” the term wife “who has married” applies as well to a woman who has connected her life to a partner as a common-law wife, even if she has not married her partner. According to the NII, a woman who is officially married has no advantage over the woman who is living as a common-law wife, and it is not reasonable that a widow who is the common-law wife of another man should have an advantage over a person who has officially married another person. Regarding this matter, the NII stresses that both a widow who has officially remarried and a widow who is a common-law wife would be entitled to an allowance by virtue of the second “spouse”, if that “spouse” should also pass away.

The NII also argues that the objective of the National Insurance Law is to assist a family unit when it has lost one of the heads of the household who had contributed to its economic maintenance. In accordance with this objective, when the surviving spouse establishes a new relationship, the need for this continued public support becomes irrelevant. The NII therefore believes that the language of the National Insurance Law, its objective, and its structure, as well as the quest for legislative harmony, do not justify any distinction between a widow who has remarried and a widow who is living as a common-law wife. On the contrary: according to the NII, allowing the appeal would mean unfair discrimination between the treatment of two groups of widows when there is no relevant difference between them with regard to entitlement to an allowance. The NII argues for the rejection of the petitioners’ argument that the National Labour Court’s interpretation establishes a primary legislative arrangement and an ultra vires act; it stresses that a court does have the authority to interpret acts of legislation — noting that this Court has in the past recognized the rights of common-law wives who had not been expressly included in relevant legislation. The NII also argues that identical terms appearing in different statutes are to be interpreted in accordance with each statute’s objective, and that the petitioners’ argument — that the National Labour Court’s interpretation will have sweeping consequences, even though there has not been any in-depth or methodical examination of the interpretation’s effect on other pieces of legislation dealing with marriage — should not be accepted.

Regarding the dates prescribed in the provisions of ss. 135, 255(b), (d) and 262 of the National Insurance Law, the NII argues that even if it is difficult to identify the “correct” date, this does not change the legal interpretation regarding the substantive right, and that insofar as implementation of the provisions is the issue, such implementation is a matter for the competent authorities, to be determined on the basis of appropriate proof, and these determinations will be subject to judicial review by the Regional Labour Court.

The NII argues that the proper interpretation of the term a “widow who has remarried” should not be inferred from the rules that apply to widows under the Families of Soldiers Killed in Action Law, due to the different frameworks and to the relevant difference between these two groups of widows. The NII further argues that the petitioners could also seek an amendment of the law (as was done in the case of the Families of Soldiers Killed in Action Law). The NII thus argues that there is no violation of the principle of equality here, and it further argues that the constitutional right to property does not apply to pension rights under the National Insurance Law. Finally, the NII contends that the petitioners’ argument concerning their reliance on their allowances should not be accepted, and that in any event this reliance neither adds nor detracts from the need to decide on the very existence of the right to an allowance. In this context, the NII also argues that neither the survivors allowance nor the dependents allowance is intended to secure basic living conditions: that objective is achieved through the income support allowance.

Deliberation

12.          This Court, sitting as the High Court of Justice, acts with considerable restraint regarding any intervention in the decisions of the National Labour Court (see HCJ 6522/06 Kochavi v. Jerusalem Labour Court [1], at para. 17; HCJ 8929/08 Ben Nun v. National Labour Court [2], at para. 18) and it will intervene in that court’s judgment only in those cases in which two conditions have been met, cumulatively: first, that the judgment is tainted by a substantive legal error; and second, that justice requires its correction. In examining the existence of a “substantive legal error”, this Court will consider whether, inter alia, the subject under discussion is of public importance and to what extent it is a general and widespread issue (see HCJ 525/84 Hatib v. National Labour Court [3], at pp. 693-694; HCJ 840/03 Israel Professional Firefighters Union — Firefighters Committee v. National Labour Court [4], at pp. 814-815; HCJ 5666/03 Kav LaOved Organization v. National Labour Court [5], at para. 28). There is no dispute that the subject before us is an important one. Nevertheless, I will already state that in my view, the National Labour Court’s decisions in the present matter are not tainted by any substantive legal error that would justify our intervention.

13. Section 135 of the National Insurance Law, relating to dependents allowances, and ss. 255(b), (d) and 262 of that Law, relating to survivors allowances, stands at the heart of the discussion and it is therefore appropriate to cite them in full.

Section 135 of the National Insurance Law refers to a widow who receives a dependents allowance pursuant to Chapter E, which deals with work accident victim insurance. It provides as follows:

135. A widow who has remarried

(a)          If a widow remarries, her right to an allowance expires and the Institute will pay her a grant in two installments as follows:

(1) After the date of her remarriage — an amount equal to the dependents allowance, which is calculated on the basis of the amount of the allowance as stated in s. 132(1) (hereinafter: “the allowance amount”) that was paid for the month in which she remarried, multiplied by eighteen;

(2) At the end of two years from the date of her remarriage — an amount equal to the allowance amount as it would have been paid to her, had she not remarried, for the last month of the said two years, multiplied by eighteen;

However, if she is no longer married ten years after the date on which she remarried, or if, within this period, divorce proceedings between her and her spouse have been initiated in a religious or a civil court, she will again be entitled to an allowance beginning on the date she ceased to be married, as stated, and a grant or a first installment thereof, which was paid to her pursuant to this sub-section, will be credited against the allowance, according to the provisions of paras. (1) – (4) of s. 262(a).

(b) If a widow’s husband from her new marriage passes away and she receives a dependents allowance or a survivors allowance because of him, she will receive the second installment of the grant, even if less than two years have passed from the date of her remarriage; the grant will be calculated on the basis of the allowance amount that would have been paid to her for the month in which her husband passed away as stated, had she not remarried.

(c) Notwithstanding the provisions of sub-section (a), the Minister may prescribe certain conditions and situations in which the right of a widow who has remarried to receive an allowance will not expire.

Section 130(b)(1) of the National Insurance Law provides that the provisions that apply to a widow regarding these matters will also apply to a widower.

Sections 255(b), (d) and 262 of the National Insurance Law refer to a widow who receives a survivor’s allowance pursuant to Chapter K, dealing with Old Age Insurance and Survivors Insurance, and they provide as follows:

255. Payment of a grant

. . .

(b)          If a widow who is entitled to a survivors allowance remarries, her right to the survivors allowance will expire and the Institute will pay her a grant in two installments as follows:

(1) After the date of her remarriage — an amount equal to the survivors allowance which is calculated on the basis of the amount of the allowance as described in s. 252(a)(1) (hereinafter: “the allowance amount”) which had been paid for the month in which she had remarried, multiplied by eighteen;

(2) At the end of two years from the date of her remarriage — an amount equal to the allowance amount as it would have been paid to her, had she not remarried, for the last month of the said two years, multiplied by eighteen;

(c) If a widow’s husband from her new marriage passes away and she receives a survivors allowance or a dependents allowance because of him, she will receive the second installment of the grant, even if less than two years have passed from the date of her remarriage; the grant will be calculated on the basis of the allowance amount that would have been paid to her for the month in which her husband passed away as stated.

(d) A widower, for the purpose of this section, will be treated in the same manner as a widow.

262. A widow or widow who has remarried

(b)          A widow who is entitled to a grant pursuant to this Part due to her marriage will lose her entitlement to an allowance; however, if she is no longer married ten years after the date on which she remarried, or if, within this period, divorce proceedings between her and her spouse have been initiated in a religious or a civil court, she will again be entitled to an allowance beginning on the date she ceased to be married, as stated, and a grant or a first installment thereof, which was paid to her pursuant to this sub-section will be credited against the allowance, subject to the following provisions:

(1)          If the widow’s entitlement to an allowance is renewed within 18 months from the date on which her entitlement to an allowance expired pursuant to her marriage, the amount to be credited against her allowance will be one eighteenth of the first installment, multiplied by the number of months for which she is entitled to an allowance during the said eighteen months;

(2)          If the widow’s entitlement to an allowance is renewed later than 18 months from the date on which her entitlement to an allowance expired pursuant to her marriage, the first installment of the grant will not be credited against her allowance;

(3)          If the widow’s entitlement to an allowance is renewed later than two years and earlier than three years after the date on which her entitlement to an allowance expired pursuant to her marriage, the amount to be credited against her allowance will be one eighteenth of the second installment, multiplied by the number of months for which she is entitled to an allowance during the last eighteen months of the said three years;

(4)          If the widow’s entitlement to an allowance is renewed later than three years after the date on which her entitlement to an allowance expired pursuant to her marriage, the second installment of the grant will not be credited against her allowance;

(b)          Notwithstanding the provisions of sub-section (a), the Minister may specify certain situations and conditions in which the right of a widow who has remarried to receive an allowance will not expire.

(c)           The provisions of this section will apply to a widower as well, mutatis mutandis.

14.          The question we face is, as stated, whether the provisions of ss. 135, 255(b) – (d) and 262 of the National Insurance Law are also properly applied to a widow or widower who subsequent to being widowed has become the common-law wife or husband of another partner.

The starting point of any process of statutory interpretation is the statutory language, and that language will set the limits of the interpretation, in the sense that the words of the statute may not be given a meaning that they cannot support (see MApp 67/84 Hadad v. Paz [6], at p. 670; CA 2000/97 Lindorn v. Kranit Fund for Compensation of Road Accident Victims [7], at p. 25; CA 8569/06 Director of Land Taxation, Haifa Office v. Polity [8], at para. 26). This Court has therefore held on several occasions that “the language component is not a sufficient condition for a particular interpretation, but it is a necessary condition” (CA 3622/96 Hacham v. Kupat Holim “Maccabi” [9], at pp. 646-647) and that “the judge may not  . . . realize an objective unless it has some basis — even a weak one — in the statutory language” (FH 40/80 Koenig v. Cohen [10], at p. 715; see also LCA 3899/04 State of Israel v. Even Zohar [11], at para. 14; Director of Land Taxation v. Polity [8], at para. 26; A. Barak, Legal Interpretation (vol. 2, ‘Statutory Interpretation,’ 1993), at pp. 81-84, 97-100).

15.          Can the language in ss. 135, 255(b), (d) and 262 of the National Insurance Law support a legal interpretation that also applies these provisions to a widow or widower who is living as a common-law spouse?

In order to answer this question, we must examine, inter alia, the definitional section of the statute, which is designed to establish the scope of the linguistic significance of the terms that are the subject of each definition (see Director of Land Taxation v. Polity [8], at paras. 29-30; Barak, Legal Interpretation, supra, at pp. 137-138). The definitional section of the National Insurance Law (s. 1) provides as follows: “‘his wife’ — including his common-law wife who lives with him.” The term “including” generally expands the scope of the literal meaning that may be attributed to the defined term (see Barak, Legal Interpretation, supra, at p. 138) and in Ornan v. NII [31], the National Labour Court, in reliance, inter alia, on the definitional section, held  that the term “a married woman” also includes a common-law wife. In that case, the National Labour Court rejected the NII’s argument (the opposite argument to the argument it makes here) that the term “married woman” means only an officially married woman, and held that the term “his wife” in the definitional section “means a ‘married woman’, because were this not the case, why would it have been necessary for the legislature to add at the end, ‘including his common-law wife’?” (Ibid., [31], at p. 407.) The National Labour Court also noted in that case that “there is nothing in that section [which was the subject of the dispute there], either in its substance or in its context, that contradicts the definition of the term ‘his wife’ in s. 1 of the statute, and that the rule applying to a ‘married woman’ [in that section] is the same as that applying to ‘his wife’ in s. 1 of the statute” (ibid., [31], at p. 408). This holding was reached in light of the provision in s. 2 of the Interpretation Law, 5741-1981, under which “a term that is defined in legislation will have the meaning assigned to it by the definition . .  . unless otherwise stated with regard to the particular matter, and provided that nothing in the subject-matter or context is inconsistent with the definition.”

16.          We accept the position that the term “married woman” can, in linguistic terms, support a legal meaning that includes “a woman living as a common-law wife.” But the petitioners claim that the language in the sections under discussion in this case — unlike the section which was the subject of Ornan v. NII [31] — indicates only a narrow range for possible interpretation, one which does not include a widow who is a common-law wife. This is because the provisions of ss. 135, 255(b), (d) and 262 of the National Insurance Law relate to defined dates that are, in their view, relevant only to widows who have remarried officially, particularly the date on which the widow remarried and the date as of which she was no longer remarried.

I cannot accept the petitioners’ argument in this matter.

Indeed, the assumption is that “the legislature is using regular language and the language cannot be interpreted other than according to its plain meaning” (HCJ 6247/04 Gorodetzki v. Minister of Interior [12]); occasionally, however, and to the extent justified by the objective that the statute is intended to achieve, the interpreter may attribute  a unique and unusual meaning to particular words, if that meaning falls within the linguistic range delineated by the statutory language (see Barak, Legal Interpretation, supra, at pp. 117-118). In this case, and as I will describe below, it appears to me that from a linguistic perspective, the dates specified in ss. 135, 255(b), (d) and 262 of the National Insurance Law (the date on which a widow remarried or the date as of which she was no longer married) can be interpreted in a manner that applies them also to the dates on which a widow began or ceased to be a common-law wife, whichever is relevant. Indeed, while it is a simple matter to identify the establishment of a marital connection by virtue of a formal and constitutive act, the identification of a date on which a couple began to live together as common-law spouses or the date on which a couple ceased to live as such is less clear-cut, and requires a factual examination of the nature and circumstances of the relationship. In my view, however, this fact does not rule out an interpretation that applies the provisions to which the petitions before us relate to common-law spouses as well, in view of the standard criteria for determining these matters, according to which a couple will be recognized as common-law spouses if they have a conjugal relationship and a shared household (see AAA 4614/05 State of Israel v. Oren [13]; CA 1966/07 Ariel v. Egged Members Pension Fund Ltd. [14], at para. 25). Similar tests are applied by the NII with regard to the granting of allowances (see, for example, NIIApp 731/07 Kirshner v. NII [33]), and there is nothing to prevent their application where required with respect to the expiration of the right to an allowance. In any event, a party who believes that he or she has been harmed by a decision of the NII regarding this matter is free to initiate the appeal procedures prescribed by law (see and compare: HCJ 2316/05 A v. National Labour Court [15]; NIIApp1212/04 Apter v. NII [34], at p. 469).

Since my conclusion is that the language of the relevant statutory sections does not negate any of the interpretations that the parties wish to give to the provisions of ss. 135, 255(b), (d) and 262 of the National Insurance Law, we must now proceed to determine what is the objective that underlies the legislation that we are required to interpret.

17.          The objective of the National Insurance Law with respect to survivors allowances and work accident victim insurance is “to protect against economic shortages that are liable to follow the curtailing of income as a result of a provider’s work accident, old age or death. Its purpose is not to grant rights to a person by reason of his being the relative of another person, but rather, to prevent a defined group of persons from suffering from financial shortages because they are no longer receiving their own income or the income of their provider” (NLC 30/19-0 NII v. Mano [35], at p. 77; see also: NLC 52/69-0        Leon v. NII [36], at p. 464; NLC 53/6-7 Batar v. Central Pension Fund of Histradrut Workers, Ltd [37], at p. 140; NLC 57/6-2 Central Pension Fund of Histradrut Workers, Ltd v. Kochavi [38], at para. 6; see and compare HCJ 4193/04 Gartner-Goldschmidt v. National Labour Court [16]).Thus, the survivors and dependents allowances that are paid pursuant to the National Insurance Law are intended to compensate for the loss of financial support that a person had been receiving from his or her partner as a dependent of that partner in connection with such support, and to preserve a roughly similar standard of living to that which the survivor enjoyed prior to the provider’s death (see Gorodetzki v. Minister of Interior [12], at para. 23; NIIApp 1169/01 Avital v. NII [39]; Kirshner v. NII [33], at para. 8(e)).

In light of these objectives, the right of a widow or widower to an allowance expires upon remarriage, according to the provisions of ss. 135, 255(b), (d) and 262 of the National Insurance Law. This is due to the assumption that the new familial unit that has been established will be sufficient to replace the loss of income that ensued from the death of the previous partner (see NIIApp 779/06 NII v. Wolkowitz [40], per President S. Adler, at para. 3). At the same time, and in order to enable a widow or widower to adapt to the expiration of the right to an allowance pursuant to the above-mentioned sections, the statute provides that they will be entitled to a grant which is equal to thirty-six months of the allowance. (The two installments of the grant are paid within a period of two years from the date of the remarriage.) The Minister of Labour and Welfare is also authorized, by virtue of ss. 135(c), and 262(d) of the National Insurance Law, to prescribe certain circumstances and conditions under which the right of a remarried widower or widow to an allowance will not expire. The regulations that the Minister enacted pursuant to this authorization (see National Insurance Regulations (Dependents Allowance for Remarried Widows), 5737-1976) provide that a remarried widow’s right to a dependents allowance will not expire if the new husband is unable to support himself or if he is over 60 years old, provided that the new husband’s income does not exceed one twelfth of the amount specified in Item 1 of Table B of the National Insurance Law. Similar regulations have not been enacted with respect to a survivors allowance.

The objective of the provisions that cancel the right to an allowance in the event of an official remarriage, and the above-mentioned rationales which underlie that objective, are also applicable with respect to a widow or widower who has begun to live with a new partner in a common-law marriage. Indeed, a widow or widower who lives as a common-law spouse will benefit from shared income with the new partner and from a shared bearing of expenses — assuming that there is a shared household, which is a condition for the couple being classified as common-law spouses. Under these circumstances, there is no justification for the widow or widower to continue to receive a survivors allowance or a dependents allowance; such allowances are intended to provide protection from the financial shortage that the death of a provider is expected to entail.

18.          Together with the search for the specific objective of the legislation that we wish to interpret, we ought to examine the extent to which the legislation expresses the basic values of the legal system, in light of the accepted principle that these values must find expression in every piece of legislation. One of the basic values of the legal system in Israel, relating directly to the matter under discussion here, is the principle of equality, a value which has been accorded constitutional status (see HCJ 953/87 Poraz v. Mayor of Tel Aviv Shlomo Lahat [17], at pp. 329-332; Lindorn v. Kranit Fund [7], at pp. 29-30; HCJ 6427/02 Movement for Quality Government v. The Knesset [18], (per President Barak, at paras. 36-40); HCJ 4124/00 Yekutieli v. Minister of Religion [19], at para. 35). The significance of this is that when there is no relevant difference between individuals, they are entitled to equal treatment, inter alia in terms of the legal rules that apply to them. A claim of discrimination can therefore arise when a different legal rule is applied to individuals or groups between whom there is no relevant difference (see HCJFH 4191/97 Recanat v. National Labour Court [20], at pp. 343-345). The complexity involved in the implementation of the principle of equality was noted by President Beinisch in Yekutieli v. Minister of Religion [19] as follows:

‘It is not a simple matter to determine whether a particular norm violates the principle of equality. By its very nature, the question calls for a discussion of the characteristics and purposes of the norm, and a determination of the “peer group” relevant to the matter at hand. The peer group is the group of individuals or entities to which the obligation to act in accordance with the principle of equality applies . . . and it is derived, inter alia, from the norm’s purpose and from the scope of its application. Sometimes the legislature determines the peer group as a part of the norm itself, and sometimes the court must define, by means of a number of variables, what the peer group is in each specific case’ (ibid., at para. 36).

Here, the petitioners and the NII do not dispute the fact that there is a difference between the group comprising widows who have remarried by virtue of a wedding ceremony which is recognized by law, and the group comprising widows who are living as common-law wives. The parties’ disagreement relates to the matter of whether, for the purposes of ss. 135, 255(b), (d) and 262 of the National Insurance Law, the difference between these groups is a relevant one. The NII argues that an interpretation of the above-mentioned sections which excludes widowers and widows who are living as common-law spouses from coverage by those sections will create a situation whereby two groups between whom there is no relevant difference are treated differently. This argument, which the National Labour Court accepted, is a strong one, and I also believe that there is no relevant difference between the widowers and widows who have been officially remarried and those who are living as common-law spouses — no difference that justifies the application of a different legal rule to the two groups with regard to the expiration of the right to an allowance. Indeed, the members of both of these groups lost a source of income when their partners passed away, and the members of both groups have established new family units, and in relation to both groups, there is a presumption that the new partners share income and expenses. The petitioners argue in this regard that the relationship between partners who are living in a common-law marriage is less stable than the relationship between partners who were married officially, and that this creates a relevant distinction that justifies different treatment with regard to the expiration of the right to an allowance. This argument cannot be accepted, for even if we presume — in concert with the petitioners — that the relationship between partners who are living in a common-law marriage is indeed less stable than the relationship between partners who are officially married, this does not create a relevant distinction between the two groups with respect to the present matter. This is because the arrangement prescribed in ss. 135, 255(b), (d) and 262 of the National Insurance Law, which cancels the right to an allowance, also foresees the possibility that the new relationship will not last, and ss. 135(b)(2) and 262(a) of the statute therefore include a provision that a widow who remarries will regain her entitlement to an allowance —

‘ . . . if she is no longer married ten years after the date on which she was remarried, or if, within this period, divorce proceedings between her and her spouse have been initiated  . . .’

It is understood, however, that if the provision that cancels the right to an allowance also applies to widows or widowers who are living as common-law spouses, the provision that re-entitles them to an allowance if the new common-law relationship ceases to exist before ten years have elapsed since its inception will also apply to them. Thus, the alleged distinction based on the difference in the level of the stability of the relationship is also insufficient to justify the application of a different legal rule to the petitioners as widows who are now living as common-law wives, on the one hand, and to widows who have been officially remarried, on the other hand.

19. In Ornan v. National Insurance Institute [31], the National Labour Court, in a different context pertaining to the National Insurance Law, noted the implications of a discriminatory rule that involves an improper favoring of common-law wives, stating as follows:

‘We should not attribute to the legislature an intention to grant the common-law wife only benefits, and to spare her the disadvantages. The aim of the Law is to create an equivalence for all purposes — with respect to both the good and the bad — between the common-law wife and the married woman’ (ibid., at p. 408).

I find this approach to be acceptable, and it provides an appropriate response to the contention that the provisions of the National Insurance Law can be extended through interpretation when they grant benefits, but cannot be extended when the extension involves a negation of rights. Indeed, it is hard to imagine that for the purpose of granting a survivors allowance (pursuant to s. 252 of the Law) and a dependents allowance (pursuant to s. 131 of the Law), a common-law wife will be considered a “widow” due to having been the “wife” (under the definition in s. 1 of the Law) of her deceased partner (see: NLC 56/255-0 Atar v. NII [41], at p. 387; Kirshner v. NII [33], at para. 8(a)), but that she will not be considered to be the “wife” of her new partner with whom she is living as a common-law spouse with regard to the expiration of the entitlement to these rights (pursuant to ss. 135, 255(b) and (d) of the Law).

It appears to me that the same question arises regarding both the granting of rights and their expiration, i.e., whether there is a relevant distinction, with respect to either issue, between couples who are officially married and couples who are living together in a common-law marriage (see and compare 4341/99 CrimA Vidal v. State of Israel [21],                 at p. 334; CA 2622/01 Director of Land Appreciation Tax v. Levanon [22], at p. 326).

Professor Shahar Lifshitz’ comments are also pertinent here:

‘When, as the result of the attempt to equate the support given to the institution of common-law marriages and the institution of official marriage, a situation is created that favors the common-law partners, the result is untenable . . . in light of the proclivity to equate the rights of common-law spouses to those of married people, a parallel reform is required that will equate the duties imposed in the two cases . . . ’ (S. Lifshitz, Common-Law Partners From the Perspective of the Civil Theory of Family Law (2005), at pp. 235-236).

The degree to which different treatment of widows and widowers in common-law marriages (as compared to the treatment of widows and widowers who have officially remarried) is liable to create a discriminatory and even absurd situation regarding the expiration of entitlement to survivors allowances or for dependents allowances, was demonstrated in the National Labour Court’s decision, when it noted the following among the reasons for its ruling:

‘The absurdity with respect to the non-expiration of the entitlement to a dependents allowance of a widow who has established a new home with her common-law husband is exacerbated in the case in which her common-law husband dies as a result of a work accident. In such a case, according to my colleague the Vice President (in Friman), the widow will in theory be entitled, simultaneously, to two dependents allowances: one arising from the death of her official husband and one arising from the death of her common-law husband.’

This discriminatory result does indeed reach the level of absurdity and it must be avoided, not only because of the harm done to the principle of equality but also because of the rule that requires us to avoid, to the extent possible, an interpretation of statutory provisions that leads to an absurd result (see and compare, CA 165/82 Kibbutz Hatzor v. Rehovot Tax Assessor [23], at p. 74; CA 1186/93 State of Israel, Minister of Justice v. Israel Discount Bank Ltd [24], at p. 361; Barak, Legal Interpretation, supra, at pp. 280-283).

In light of the above, I believe that with respect to the expiration of entitlement to a survivors or a dependents allowance pursuant to ss. 135, 255(b), (d) or 255(b), (d) and 262 of the National Insurance Law, the widows who are living as common-law wives should be subject to the same rule as widows who have been officially remarried, as the purpose of the legislation justifies this interpretation, and as it is also an interpretation that the statutory language will support.

20.          We must still consider the petitioners’ argument that the adoption of the National Labour Court’s interpretation of the provisions of ss. 135, 255(b), (d) and 262 of the National Insurance Law, i.e., that rights to allowances will expire for widows who are living with their partners as common-law wives, unfairly discriminates against them, as compared to widows who live as common-law wives and who are entitled to pensions pursuant to the Families of Soldiers Killed in Action Law. This argument must also be rejected. First, Amendment 30 of the Families of Soldiers Killed in Action Law changed that Law’s definition of a widow to “a person who was the wife of the decedent at the time of his death, including a woman who prior to the decedent’s death was living with him and who, on the date of his death, was his common-law wife — even if she has married another person” (emphasis added), and s. 12A of that Law, whereby the widow of a decedent who remarried lost her entitlement to a pension pursuant to the Law, was cancelled  (see the Families of Soldiers Killed in Action Law (Amendment 30), 5770-3009, SH 252). In enacting these measures, the legislature demonstrated that with respect to the widows of soldiers who were killed in action, the intention was to continue the payment of a pension even after they remarried, and, in any event, if they were living as the common-law wives of other men. Second, it has been held several times that in enacting a series of laws relating to those who were wounded or who sacrificed their lives for the country, or to their families, the legislature wished to give expression to the moral obligation owed by the state, and that these laws should therefore not be viewed as intended only to provide social security, as the National Insurance Law does. This explains the difference that appears in some contexts between the language in the National Insurance Law and the language in these other laws (see: HCJ 5304/02 Israel Association of Victims of Work Accidents and Widows of Victims of Work Accidents v. State of Israel, Knesset [25], at pp. 141-142; HCJ 8487/03 IDF Disabled Veterans Organization v. Minister of Defense [26], at paras. 21-23; HCJ 9863/06 Karan - Society of Combat Veteran Quadriplegics v. State of Israel - Minister of Health [27], at paras. 11-14).

For all the reasons mentioned above, I propose to my colleagues that the petitions be denied without any order regarding costs.

 

Justice E. E. Levy

I concur.

 

President D. Beinisch

I concur in the decision of my colleague, Justice E. Hayut, and I also agree with her reasoning. Indeed, Israeli legislation and case law have recognized the status of the common-law spouse; this has certainly been the case with respect to social support and rights (see, among others, the Inheritance Law, 5725-1965; Names Law, 5716-1956; Families of Soldiers Killed in Action Law. And see, for example HCJ 693/91 Efrat v. Director of the Population Registry [28]; Lindorn v. Kranit Fund [7]; Director of Land Appreciation Taxation v. Levanon [22]). The professional literature, it is true, contains various views relating to the possibility of applying to common-law couples arrangements that are similar to those applying to married couples. For example, the argument is made that the various arrangements that apply to married couples should not be applied equally to couples living together in common-law relationships, so as not to frustrate the wishes of those who have chosen, knowingly, to refrain from entering into official marriages (see, for example, the arguments made in S. Lifshitz, Common-Law Partners, supra, at pp. 199-216). In any event, this question does not arise in the case before us, since it appears to me that even those who believe that only some of the arrangements that apply to married couples should be applied to common-law couples would agree that the arrangements arising out of social legislation should be applied to common-law couples as well (see, for example, the distinction drawn by Lifshitz between “responsive” rules and “directed” rules, supra, at p. 217).

Although the concept of common-law relationships is not a new one in our system, not all the relevant legislative arrangements have been adjusted to the changes that have occurred in modern times in the structure of the family unit. With respect to certain laws, the legislature has not responded to this issue at all (see, for example, Director of Land Appreciation Taxation v. Levanon [22], per Justice Strassberg-Cohen, at pp. 315-316:  “The laws in relation to which the question arises as to whether or not they grant rights to a common-law wife do not have uniform language. Some of them make express use of the term ‘common-law wife’or a similar term, while defining that term clearly and explicitly. Some of them . . . use the term ‘partner’ without defining it”). In the absence of any express reference by the legislature to the application of a law to common-law partners, there are courts which, in interpreting the relevant legislation, have applied various provisions and arrangements to common-law partners as well. This was the case, for example, in Lindorn v. Kranit Fund [7], in which the court held that for the purpose of paying compensation to dependents pursuant to the Civil Wrongs Ordinance [New Version], 5728-1968, both the linguistic and the legal meanings of the phrase “partner” includes, necessarily, the concept of common-law partners.

Regarding the petition before us, as elucidated in my colleague’s opinion, s. 1 of the National Insurance Law — the definitional section — provides that the term “his wife” will “include his common-law wife who lives with him.” The definitional section applies to the entire statute, and it therefore indicates that the legislature saw the relationship between common-law partners as a framework that is covered by the statute. Furthermore, common-law wives who become widowed are not denied survivors allowances or dependents allowances — the allowances which are the focus of the discussion in this petition — and common-law wives are therefore entitled to such allowances, as are married women who have been widowed. In other words, while the situation of married women and common-law wives are completely identical with regard to entitlement to survivors allowances and dependents allowances if such married women or common-law wives should unfortunately be widowed, the same exact pension would later be cancelled only for those women who have chosen to remarry through an official marriage. This result is especially problematic, as my colleague has noted, in situations in which the widow who becomes a common-law wife is widowed again when her common-law husband passes away. In such a situation, she would be entitled to the original allowance and to another allowance by virtue of the common-law husband. The absence of symmetry between the recognition of an affirmative right and the denial of that right creates, as stated, a distortion which is likely to lead to absurd results.

I therefore agree with the conclusion reached by my colleague, Justice Hayut, that the interpretation of ss. 135, 255 and 262 of the Law necessitates the denial of the allowance to widows who acquire common-law partners, in the same way that the allowance would be denied to widows who have remarried. First, I too believe that the statutory language can support this meaning, especially given the definition of the term “his wife” in the definitional section. As is known, “the main purpose of the definitions is to establish the scope of the (express or implied) meaning of the text of the terms” (Barak, Legal Interpretation, supra, at p. 138). Additionally, the linguistic context of a piece of legislation is interpreted in relation to the statute as a complete unit, which helps determine the legal meaning of a term or section within the statute (ibid., pp. 106-107). Here, the complete unit of the National Insurance Law, in its entirety, indicates that the legislature intended to include common-law partners within the statute’s coverage, and to apply to them all the relevant rights and obligations. Secondly, this conclusion is also supported by a purposive interpretation of the Law, the purpose of which is to provide compensation for the loss of the economic support that a person received from a partner in the past, as long as the person being compensated is not in a new relationship through which such support has been renewed.

I am aware that the practical meaning of this interpretation, in the petition before us, is that the petitioners will lose their entitlement to an allowance; and that when an interpretation leads to a denial of rights, we generally lean towards construing the relevant language narrowly and literally. However, in the case before us, even though according to a purposive interpretation, as my colleague Justice Hayut noted, the widows who have common-law husbands will lose their survivors allowances or dependents allowances, this result is consistent with the purpose of the legislation and promotes the basic right of equality, in a situation in which there is no reason for making a distinction between the two groups. Regarding this matter, I accept that the petitioners have not presented persuasive reasons for recognizing a distinction between them and widows who have remarried. Even if the argument that there is a difference between these groups due to the lack of obligation and stability in the common-law relationships were to be accepted — and I am not persuaded that by itself this is a well-founded argument — it would still be insufficient to justify a different interpretation than that being proposed, since in any event, the provisions of the National Insurance Law foresee the possibility that the relationship between the partners, in either an official or common-law marriage, may come to an end, and the Law provides a solution in the form of a renewal of the allowance. The same applies to the petitioners’ contention with respect to the determination of the date on which the relationship with the common-law partner is to be recognized (and thus, the date on which the allowance is terminated). In actuality, the NII is accustomed to determining such dates for various purposes listed in the National Insurance Law. Therefore, just as it is possible to establish the date on which a relationship begins for the purpose of recognizing rights, it is also possible to determine the date on which the entitlement to an allowance will come to an end.

I also agree with the position that a distinction should be drawn between the right of an IDF widow to receive a survivors allowance, on the one hand, and the rights of other injured parties to whom the legislature wished to provide social security, on the other hand. The distinction, which is anchored in primary legislation, results from the different objectives of the support provided to the different categories of injured parties. This is in no way an expression of a desire to harm injured parties who have experienced general misfortune; the intention is only to recognize the special status of those to whom the state and Israeli society owe a special moral debt. The degree to which a distinction is to be drawn and the expression given to that distinction is a matter to be determined by the legislature.

Needless to say, even though the interpretation of the National Insurance Law does lead to a conclusion that survivors allowances and dependents allowances should be eliminated for widows who have common-law husbands, it may be that the legislature should make express provision  for this in the National Insurance Law, as it has done with respect to other pieces of legislation (see, for example, the amendment to the definition of “spouse” in the Income Support Law, 5741-1980, in which it was established that the term “spouses” will “include a man and women who are a common-law couple and who live together.” The practical significance of the amendment is that common-law partners are not considered to be “singles”, entitled to the allowance paid to singles). It is further noted that we do not, in our decision, take a position regarding the appropriate interpretation with respect to other arrangements established in statutes that are not the subject of this judgment.

This interpretation conforms to the need to recognize the changes that are taking place regarding the family unit model, and displays a willingness to adjust the legal arrangements applying to traditional families to other family structures as well, subject to the changes necessitated by the differences in the relationships among these alternative family structures. Naturally, a just and egalitarian application of these arrangements requires that there be symmetry between rights and obligations, in a manner that fully realizes the purpose of the legislation. Therefore, I too see no grounds, everything considered, for intervening in the decision of the National Labour Court, and in my opinion the petitions should be denied.

 

 

Vice President E. Rivlin

I concur in the decision of my colleague Justice E. Hayut, and in the comments of my colleague President D. Beinisch.

 

 

Justice A. Proccacia

I agree with the decision of my colleague Justice E. Hayut, including with her reasoning and with her conclusions. I also agree with the additional comments made by my colleague, President Beinisch.

Social security in Israel, as reflected in the National Insurance Law, is founded on the concept of solidarity and mutual assistance. The funding for this comes from the payment of mandatory National Insurance contributions, which are collected according to the economic means of those insured, and from government funds; payments from the NII, on the other hand, are intended to provide basic-level assistance to those in need, necessary for life with dignity (see HCJ 6304/09 Lahav v. Attorney General [29], at paras. 42-59). The NII’s resources are, by their nature, limited; the realization of its objectives, in terms of providing assistance for life with dignity for the needy members of society, therefore requires that maximum care be taken so that its resources are allocated only in a manner that serves the true objectives for which they have been designated. The realization of the main objective of the National Insurance therefore requires that a good look be taken at a person’s true needs and at true neediness, and that formats and frameworks that exist only as formalities should be avoided, because they do not necessarily reflect the actual reality. The National Insurance funds are to be directed only at the “have-nots” and not at the “haves”, regardless of the particular name given to the personal status of a particular “have”; and the idea of social security requires that assistance be given to a widow only as long as her actual personal situation has not changed, and only as long as she does not live in a relationship as part of a couple, through which she is able to receive support and security. Once she has returned to a life based on being part of a couple, whether in the framework of an official marriage or in the framework of a relationship known as “common-law marriage”, she is presumed to no longer require the support of the social security system. The allowance to which she was entitled in the past, when she lived by herself and faced the struggle for existence alone, should now be directed towards other social objectives reflecting a real need. The social conception underlying the National Insurance Law strives, therefore, to examine life as it really is, according to a criterion of actuality; it distances itself from formalistic frameworks that do not reflect the true situation. In order to promote the objective of providing social security, the statute, for the most part, avoids the official frameworks of marriage and divorce and examines  the true life of a couple, as it is conducted on a daily basis (compare to the similar purpose of the Public Service Law (Pensions) [Consolidated Version], 5730-1970, and in this context, HCJ 4193/04 Gartner-Goldschmidt v. National Labour Court [31], (per Justice Procaccia, at paras. 20-21)).

The interpretation given by my colleague Justice E. Hayut to the provisions of the National Insurance Law, looking at the reality of human life, as distinguished from an official format that defines personal status, is consistent with the language of the statute, and with its social purpose.

I would further comment that equating the rule applied to a widow who lives with a common-law partner to the rule applied to a widow who remarries, for the purpose of determining entitlement to a survivors allowance or a dependents allowance, may create substantial problems regarding enforcement. What is the test for recognizing the existence of “common-law relationship”; when and how will the competent authority become aware that this type of relationship has come into being; and how will the principle of equality in enforcement be maintained in this area? These questions have not been raised before us, but we can assume that the competent authority is aware of them and is prepared to deal with them.

 

Justice H. Melcer:

I agree with the comprehensive opinion of my colleague Justice E. Hayut, and with the comments of President D. Beinisch. Nevertheless, I wish to add three comments:

(a)          I accept the conclusion that a woman who has not remarried, but who does live with her partner as a common-law wife — is comparable to a widow who has remarried, with respect to the expiration of her entitlement to a survivors allowance or to a dependents allowance which is given to her by virtue of her deceased husband. The linguistic context and a purposive interpretation of the provisions of the National Insurance Law are sufficient to establish this.

Nevertheless, in order to reach the said result, I do not need to rely on the argument that were we to hold otherwise, a widow who became a common-law wife and is now widowed of her common-law husband could be entitled to both the original allowance and to an allowance by virtue of her deceased common-law partner, and that this result borders on the absurd. I do not need such an argument because the concept of a “common-law wife” does occasionally create, by its very nature, problematic situations that may in extreme cases lead to double payments, or to divided payments, or to other complicated solutions. This can happen, for example, if the widow’s common-law partner was married to another person at the time of his death — and I will not elaborate (see ss. 130 and 238 of the National Insurance Law; CA 233/98 Katz v. Keren Makefet [30]; Atar v. NII [41]; and finally, Ariel v. Egged Members Pension Fund Ltd [14]; Lifshitz, Common-Law Partners, supra, at pp. 267-268.)  

(b)          The change in status of a widow who has remarried is usually clear and unequivocal, determined entirely by the validity of the marriage. On the other hand, a change in status that occurs when a widow becomes the common-law wife of the man with whom she lives (as in the definition of s. 1 of the National Insurance Law) is not as unequivocal. It is comprised of two cumulative conditions (see Atar v. NII [41]), and a determination that such a change has taken place will depend on the facts and circumstances (see Ariel v. Egged Members Pension Fund Ltd [14]). It therefore appears to me that prior to terminating the entitlement to an allowance, the NII should grant the person whose said entitlement is to be cancelled a full right to argue against such cancellation, over and above what would in any event be such person’s right to appeal following the decision.

(c)           It would be best if regulations were enacted pursuant to s. 262(b) of the National Insurance Law, which would establish the types of cases and conditions in which the right of a widow who has remarried to receive a survivors allowance would not expire. I have not heard any clear explanation for the fact that no such regulations have been enacted to date, while similar regulations have been enacted pursuant to s. 135(c) of the National Insurance Law regarding the non-expiration of a remarried widow’s right to a dependents allowance in certain situations (see National Insurance Regulations (Dependents allowance for a Remarried Widow), 5737-1976).

 

Justice E. Arbel

I concur in the opinion of my colleague Justice E. Hayut. I agree with her that a widow who becomes a common-law wife should be treated as a widow who has remarried, as that term is properly interpreted in the context of ss. 135, 255(b) and (d) and 262 of the National Insurance Law.

Since such a widow has again established a family life with a life partner and is again living as part of a joint household, her entitlement to continued receipt of a dependents allowance should expire, as the purpose of the payment of the allowance is to secure the dignified support of a widow who has been left without an additional provider (subject to the exceptions listed in the opinion of Justice Hayut, at p. 17). Any different interpretation would create an improper disparity between the treatment of a widow who has officially remarried and the treatment of a widow who has established a family unit with a new partner but without a wedding ceremony. I agree that the legislature’s intent would be subverted if a distinction were to be drawn between the two groups, given that the status of a common-law partner is established in the definitional section of the Law, even though I do not ignore the fact that within this framework, common-law partners may have different levels of commitment. It is indeed reasonable to attribute to the legislature an intention to grant the common-law wife both the good and the bad — meaning that a common-law wife will enjoy the rights of a married woman, but that these rights will expire in the same way as they do for a married woman. I agree with those who argue that it would be preferable if the legislature enacted an express provision establishing the termination of these rights, but as long as the legislature has not responded to the matter, and for the reasons that my colleague has described, the proposed interpretation is to be preferred. I would also add that there can be no doubt regarding the obligation of the state to those who were injured or who sacrificed their lives for the state, or to their families, and that this justifies the distinction that is made with respect to these widows, as explained by my colleague.

 

Decided as per Justice E. Hayut.

 

11Tishrei 5771.

19 September 2010.

 

+

 

THIS DOCUMENT IS A DRAFT, AND IS SUBJECT TO FURTHER REVISION.

 

 

HCJ 6055/95

HCJ 7083/95

Sagi Tzemach

v.

1.            Minister of Defense

2.            Military Chief of Staff

3.            Chief Military Prosecutor

4.            Chief Military Police Officer                         HCJ 6055/95

 

1.            Major Vered Ornstein-Zahavi

2.            Major Moshe Kanobler

3.            Captain Lior Tomshin

4.            Captain Orli Markman

5.            Captain Moshe Levi

 

v.

1.            Chief Military Attorney

2.            Chief of Military Police           HCJ 7083/95

 

 

 

The Supreme Court Sitting as the High Court of Justice

[October 14, 1999]

Before President A. Barak, Deputy President S. Levin, and Justices T. Or, E. Mazza, M. Cheshin, Y. Kedmi, I. Zamir, T. Strasberg-Cohen, D. Dorner, J. Türkel, and D. Beinisch

 

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

 

Petition granted.

 

Facts: The petitioners, Members of Knesset, reserve military officers, and student organizations, challenged a practice in which the Minister of Defense routinely grants deferrals of and exemptions from required military service to ultra-Orthodox Jewish Yeshiva students who engage in full-time religious study. They claimed the exemptions, granted to an ever-growing percentage of enlistment candidates (8% in the year 1997), violate the principle of equality, exceed the zone of reasonableness, and are disproportionate.  They further claimed that the Minister of Defense lacks the authority to regulate the matter and that it must be done so through legislation.

 

Held:  The Knesset, not the executive branch, has the authority to make fundamental decisions on fundamental issues that divide society. The routine granting of exemptions and deferrals to a large group of people is such a decision; it is a primary arrangement that must be addressed through primary legislation, not administrative regulations. Although the Court has upheld the administrative arrangement in the past, relying on a statutory provision authorizing the Defense Minister to grant exemptions “for other reasons,” the growing number of students covered by the exemption has pushed the matter beyond his authority. At a certain point, quantity becomes quality. The Defense Minister's current practice of granting deferrals and exemptions is invalid. The Court's declaration of invalidity will take effect 12 months from the date of the decision, in order to give the Knesset time to address the matter.

 

For the petitioner in HCJ 6055/95—Aryeh Avriel and Yehonatan Ginat

For the petitioners in HCJ 7083/95—Dan Yakir and Moshe Cohen

For the respondents—Malchiel Blass, Deputy State Prosecutor in Charge of High Court Petitions

 

Basic Laws Cited:

Basic Law: Human Dignity and Liberty, ss. 1, 2, 5, 8, 9, 10.

 

Israeli Legislation Cited:

Military Adjudication Law-1955, ss. 1 (the phrases, “tribunal officer,” “petty tribunal officer,” “senior tribunal officer”), 234, 234(a), 235-241, 236, 237, 237A, 237A(a), 237A(b), 237A(c), 237A(d), 239, 241, 243C.

Criminal Procedure Law (Enforcement Authority – Arrests), 1996, ss. 1(c), 29(a), 42, 44.

Military Adjudication Law (Amendment No. 15), 1982.

Military Adjudication Law (Amendment No. 23), 1993.

Military Adjudication Law (Amendment No. 32), 1996, s.8.

Military Adjudication Law (Amendment No. 32) (amended) 1998.

Interpretation Law-1981, ss.1 (the phrase, “day”), 9, 10(a), 10(c), 11.

Criminal Procedure Ordinance (Arrest and Search) [new version], 1969, s.16.

 

Bills Cited:

Military Adjudication Bill-1949.

Military Adjudication Bill (Amendment No. 16)-1982.

Military Adjudication Bill (Amendment No. 32) (amended)-1998.

Criminal Procedure Bill (Enforcement Authority – Detention, Arrest, and Release)-1995.

 

Israeli Supreme Court Cases Cited:

[1] HC 73/85 “Kach” Party v. Speaker of Knesset, IsrSC 39(3) 141.

[2] HC 2581/91 Salchat v. Government of Israel, IsrSC 47(4) 837.

[3] HCJFH 4110/92 Hess v. Minister of Defense, IsrSC 48(2) 811.

[4] HC 2320/98 El-Amla v. Commander of IDF Forces in the Region of Judea and Samaria, IsrSC 52(3) 346.

[5] CrimApp 3513/95 Shargai v. Military Prosecutor, Air Force Prosecutor, IsrSC 51(2) 686.

[6] CA 6821/93 United Mizrachi Bank. v. Migdal Agricultural Cooperative, IsrSC 49(4) 221.

[7] APP 4463/94 Golan v. Prison Services, IsrSC 50(4) 136.

[8] CrimApp 8087/95 Zada v. State of Israel, IsrSC 50(2) 133.

[9] HC 5000/95 Bartala v. Chief Military Prosecutor, IsrSC 49(5) 64

[10] CA 88/53 Kaplan v. Rosenzweig, IsrSC 9 1296.

[11] HC 1715/97 Chamber of Investment Managers in Israel v. Finance Minister, IsrSC 51(4) 367.

[12] HC 405/74 Bar-Ad v. Captain Madar, IsrSC 29(1) 54.

[13] HC 243/80 Madjhinski v. Military Appeals Tribunal, IsrSC 35(1) 67.

[14] HC 118/80 Greenstein v. Chief Military Prosecutor, IsrSC 35(1) 239.

[15] HC 695/88 Adler v. Military Appeals Tribunal, IsrSC 35(1) 67.

[16] CrimFH Ganimat v. State of Israel, IsrSC 49(3) 589.

[17] HC 5304/92 Perach 1992 Aid to Victims of Laws and Ordinances for a Different Israel –Nonprofit v. Justice Minister, IsrSC 47(4) 715.

[18] CrimApp 6654/93 Binkin v. State of Israel, IsrSC 48(1) 290.

[19] HC 4541/94 Miller v. Defense Minister, IsrSC 49(4) 94.

[20] HC 3648/97 Stameka v. Interior Minister, IsrSC 53(2) 728.

 

Israeli Books Cited:

[21] 3 A. Barak, Parshanut Bimishpat [Interpretation in Law], Parshanut Chukatit [Constitutional] (1994).

[22] 3 Y. Kedmi, Al Haraayot [On Evidence] (1999).

 

Israeli Articles Cited:

[23] A. Barak, Hakonstitutzionilazatzia shel Maarechet Hamishpat Biakvut Chukei Hayesod Vihashlachoteha al Hamishpat Haplili [Constitutionalization of the Legal System – Criminal Law], 13 Mechkarei Mishpat 5 (1996-1997).

[24] Y. Carp, Chok Yisod: Kvod Haadam Vicheruto – Biyographia Shel Maavakei Koach [Basic Law – Power Struggles], 1 Mishpat Umimshal 323 (1992-1993).

[25] A. Gazal, Pgiya Bizchuot Hayesod “Bichok” o “Lifi Chok” [Violating Basic Rights “By Law” or “According to Law], 4 Mishpat Umimshal 381 (1997-1998).

[26] A. Bendor, Pigamim Bichakikat Chukei-Hayesod [Flaws in the Passage of the Basic Laws], 2 Mishpat Umimshal  443 (1994-1995).

[27] E. Gross, Hebetim Chukatiim Shel Dinei Hamaatzar Biztava [Military Arrest Laws], 5 Mishpat Umimshal 437(2000).

 

 

JUDGMENT

Justice I. Zamir

 

1. These two petitions raise one primary question: the constitutionality of a provision of the Military Adjudication Law, 1955, governing the period of time in which a soldier may be detained by a military police officer before being brought before a military judge.

 

2. The first petition (HC 6055/95) was brought by a soldier performing mandatory service who was arrested by a military police officer on September 26, 1995 on suspicion of desertion and held in a military jail. After he was detained for five days without being brought before a judge, the petition was brought on his behalf. It alleges that the provisions of the Military Adjudication Law, under which the petitioner was arrested, are null and void because they violate the Basic Law: Human Dignity and Liberty. The petitioner therefore asks the Court to order his release.

 

                Not long after the petition was filed, the petitioner was brought before a military tribunal which decided to extend his detention. An indictment was later issued, the tribunal convicted him, and it sentenced him to two and a half months imprisonment. He served his sentence and was released. He then sought to amend the petition to reflect these developments, and the petition before us asks the Court for a judgment declaring invalid sections 234 and 237A of the Military Adjudication Law, which authorize an adjudication officer to arrest a soldier. That and no more.

 

                The second petition (HC 7083/95) was brought by five military officers who, at the time the petition was brought, served as military defense lawyers (Petitioner 1: the District Military Defense Lawyer; Petitioner 2: Central Command Defense Lawyer; Petitioner 3: General Staff District Defense Lawyer; Petitioner 4: Air Force and Navy Defense Lawyer; Petitioner 5: Southern Command Defense Lawyer) and by the Association for Civil Rights in Israel (Petitioner 6). This petition also asks the Court to declare sections 234 and 237A of the Military Adjudication Law invalid. It also asks the Court to bar the detention of a soldier unless it is necessary for interrogation purposes or to prevent obstruction of justice or flight.

 

                The first petition is directed against the Defense Minister, the Military Chief of Staff, The Chief Military Prosecutor, and the Chief of Military Police; the second petition is directed against the Chief Military Prosecutor and the Chief of Military Police. Henceforth, they will all be referred to as the respondents.

 

                The Court issued an order-nisi in both petitions and, because they raise the same question, decided to consolidate them.

 

A Theoretical Petition

 

                3. Both petitions have a theoretical quality. They are not based on a set of facts, and they do not ask for a remedy for a particular instance, but rather raise a legal question, of a general nature, that is not grounded in the facts of a particular case.

 

                It is true that the first petition, when brought, was indeed concrete. It alleged that the petitioner was arrested under a warrant, by a military police officer, which was issued by force of an invalid law. It therefore requested an order releasing the petitioner. Once the arrest was extended by a military tribunal, however, the petition became moot.

 

                As a general matter, once a petition becomes moot, the Court does not hear it, even if it was at one point concrete. In other words, if the case which is the subject of a petition is resolved, by itself or by judicial decision, the Court declines to consider the legal question it raises. Judicial experience warns against establishing a precedent that would seem to hover in the air. The Court needs a foundation of facts, in a given situation, in order to build a precedent.

 

                The second petition was theoretical from the outset: it raised a general question, not grounded in a specific case. The Court generally refuses to rule on these types of questions, preferring to wait until the question arises in the context of a particular case.

 

                That is the rule, but there are exceptions. There have been instances in which the Court has agreed to consider a theoretical question, of a general nature, even though it was not grounded in a particular case. This has usually happened in cases in which the petition raised an important question, but it became apparent that there was no practical way for the court to rule on it unless it was presented as a general question, unconnected to any particular case. See, e.g., HC 73/85 “Kach” Party v. Speaker of Knesset [1] at 145-46; HC 2581/91 Salhat v. Government of Israel [2] at 841; HCJFH 4110/92 Hess v. Minister of Defense [3].

 

                Such is the case before us. It raises an important question, which implicates principles basic to the rule of law. It is a question of the authority to infringe on personal liberty by arresting and detaining someone without judicial oversight. The question arises every day, year after year, for many soldiers – according to the respondents, close to 10,000 soldiers each year. The question, however, is short-lived: it arises when a soldier is arrested by a military police officer; it is concrete for just a few days, until the soldier is released or brought before a military tribunal to extend his arrest, and then the question dies. If the Court did not agree to consider the constitutionality of the detention, merely because the soldier has been released and the petition has become moot, it would never be able to consider the question. The end result would be to render the decision to detain soldiers immune from judicial review. That would be a harsh result, inconsistent with the rule of law. In order to avoid such a result, the Court must consider the constitutionality of the detention even after the question has become moot. Compare, in the context of administrative detention, HC 2320/98 Al-Amla v. Commander of IDF Forces in Judea and Samaria [4] at 353-54.

 

                We therefore decided to consider the two petitions on the merits.

 

 

The Problems

 

                4. On the merits, the two petitions raise three questions:

 

                a. According to section 234(a) of the Military Adjudication Law, “An adjudication officer may issue an arrest warrant for a soldier ranked lower than him who is suspected or accused of committing an offense, for a period of no longer than seven days.” Does this section violate the Basic Law: Human Dignity and Liberty?

 

                b. According to section 237A(a) of the Military Adjudication Law, “Notwithstanding the provisions of section 234(a), an adjudication officer who is a military police officer may issue an arrest warrant for any soldier, for a period of no longer than 96 hours …” Does this section violate the Basic Law: Human Dignity and Liberty?

 

                c. May an adjudication officer arrest a soldier or hold a soldier in custody, where such detention is not required for interrogation purposes or to prevent obstruction of justice or flight?

 

                5. In effect, the petitioners, and hence the respondents, focused their arguments on the second question, in other words, whether section 237A(a) violates the Basic Law: Human Dignity and Liberty.

 

                The arguments of both sides regarding the first question, whether section 234(a) violates the Basic Law: Human Dignity and Liberty, were insufficiently comprehensive and thorough to serve as the basis for a decision on the constitutionality of the statute. This is especially the case when dealing with a theoretical petition, not based on the facts of a specific case, but rather seeking adjudication of a legal question of a general nature.

 

                As far as can be gleaned from the petitioners’ legal briefs, that first question appears to be of secondary, if not marginal, importance to the petitioners, within the context of this petition.

 

                In any event, because the arguments regarding this question are not as comprehensive and thorough as they need to be, our ability to decide the question is substantively impaired. Substantively, there is a big difference between the power of arrest authorized by section 234 and the power of arrest authorized by section 237A. The arrest power authorized by section 237A is the arrest power of a military police officer. It is primarily intended to facilitate investigations of suspects. In that sense, with the changes appropriate for a military context, it is similar to the arrest power of a civilian police officer. We can therefore draw a comparison between the military and civilian power of arrest, in order to evaluate the authority to infringe on personal liberty in light of the Basic Law: Human Dignity and Liberty. On the other hand, the arrest power in section 234 is unique to the military; clearly disciplinary in nature, it gives a military commander, whether or not he or she is a military police officer, the power to arrest a soldier under his or her command, if the soldier is suspected of committing an offense of a disciplinary or other nature. For example, it authorizes a military commander in any unit to arrest a soldier who disobeys an order, including in a combat situation. There is no civilian parallel to this power. In order to accurately evaluate the essence of the power, to determine its purpose, and to decide if it disproportionately harms the soldier, the Court must know a lot more about the power than is addressed in the legal briefs submitted in this petition. Moreover, according to the respondents, this power is rarely used to arrest soldiers for longer than a day. We therefore decline to rule on the question for now. Of course, the question may return to the Court at another time, when it is ripe for adjudication. On this issue, see paragraph 11, infra.

 

                6. The third question (which arose only in the second petition, HCJ 7083/95) addresses the grounds for arresting soldiers. It essentially asks whether there is room to distinguish the grounds for arresting a soldier under the Military Adjudication Law from the grounds for arresting a civilian under the Criminal Procedure Law (Enforcement Authority – Arrests), 1996. For example, can a soldier be arrested for violating rules of military discipline? The question came before the Court in CrimApp 3513/95 Shargai v. Military Prosecutor, Air Force Prosecutor [5], but the Court declined to rule on it.

 

                In this case, too, we decline to rule on the question. First, the question of which circumstances constitute grounds for arrest in the military should arise in the context of a specific case before a military tribunal, after which it may reach us through an appeal (or petition) of a decision by the appellate military tribunal. The principle of alternative remedies mandates this result. If a soldier wishes to claim that there are no legal grounds to hold him or her in custody, the ordinary and correct way to do so is to raise the claim before the body authorized to approve or extend the arrest. In this case, there is no reason to circumvent this route by leapfrogging to this court via a direct petition. On the contrary: The Court should consider the question on the merits only after the appellate military tribunal has examined it and made a decision. Second, on this question, too, the parties failed to submit the complete and thorough arguments appropriate for such a difficult and important question, particularly in light of the fact that it is submitted as a theoretical question. The arguments submitted before the Court do not constitute a proper foundation on which to build the case law.

 

                7. As noted, the only question comprehensively and thoroughly argued before the Court is the second question: whether section 237A(a) of the Military Adjudication Law, authorizing an adjudication officer who is a military police officer to arrest a soldier for 96 hours, violates the Basic Law: Human Dignity and Liberty.

 

                That is the question we will discuss and answer in this judgment.

 

                In order to respond to this question, we must first present the evolution of section 237A of the Military Adjudication Law into its current form.

 

Section 237A of the Military Adjudication Law

 

                8.  In the original version of the Military Adjudication Law, passed in 1955, only one section, section 234, authorized an “adjudication officer” to arrest a solder “who is suspected or accused of an offense.”

 

                The power of arrest imparted to an adjudication officer, like the parallel power given to a civilian police officer, has always been designed to allow the adjudication officer investigate a suspected offense. See the Explanatory Note to the Military Adjudication Bill, 1949 at 114.

 

                The original version of section 1 of the Military Adjudication Law, like today’s version, defines an adjudication officer as “a junior adjudication officer and a senior adjudication officer.” A junior adjudication officer is “a unit commander ranked no lower than captain who is not a senior adjudication officer, or another officer whom the military chief-of-staff has imparted with the authority of a junior adjudication officer.” A senior adjudication officer is “a unit commander ranked no lower than lieutenant colonel, or another officer whom the military chief-of-staff has imparted with the authority of a senior adjudication officer.”

 

                According to additional sections of the law (sections 235-241), an adjudication officer who issues an arrest warrant must immediately present it to another adjudication officer whose rank is no lower than lieutenant colonel. If the second officer does not approve the warrant, the soldier must be released within 96 hours of the issuance of the warrant. The maximum period of arrest under the warrant is 15 days, but, with the approval of an adjudication officer ranked no lower than lieutenant colonel, it may be extended for additional 10-day periods. Section 241 of the law limited the maximum total period of arrest under an arrest warrant issued by an adjudication officer to two months, “unless the accused is brought before a [legally-trained – trans.] judge of the appellate military tribunal who issues an arrest warrant for an additional period, to be determined at the time of each extension.”

 

                In addressing the power of arrest, the original version of the statute did not distinguish between an adjudication officer who is a military police officer and any other adjudication officer. It also did not then distinguish, and still does not now distinguish, between types of offenses, i.e. between military offenses, including disciplinary violations, and other offenses.

 

                9. For 27 years, these were the provisions of the statute. Only in 1982 did the Military Adjudication Law first draw a distinction between the arrest power of an adjudication officer who is a military police officer and that of another adjudication officer, via the Military Adjudication Law (Amendment No. 15), 1982. The amendment added section 237A. Under this section, which is the focus of the petition, an adjudication officer who is a military police officer (hereinafter – military police officer) may, with the approval of an adjudication officer whose rank is no lower than lieutenant colonel, issue an arrest warrant for a soldier for a period of no more than 15 days and may extend the warrant twice, for a period of 10 days each time, with the advance written approval of a military attorney. The maximum period of detention under an arrest warrant issued by a military police officer is therefore 35 days.

 

                Reducing the maximum period of detention to 35 days under the amended law, as opposed to 60 days under the previous law, was, in the words of then-Defense Minister Ariel Sharon, “… a very important amendment which really corrected a lot of injustices that were allowed to occur under the previous law.” See Knesset Record 92 (5742-1982) at 1058.

 

                Members of Knesset welcomed the proposed reduction of the period of detention, and some even proposed reducing it further, in light of the significantly shorter period of detention (at the time, 48 hours) which may be ordered by a civilian police officer. “Procedure,” quoted Member of Knesset Shevah Weiss, “… is the Magna Carta of the accused.” Id. at 1061.

 

                The amended law from 1982 also reduced the maximum period of arrest for which an adjudication officer who is not a military police officer may issue a warrant. Under the new version of section 237, arrest authorized by such a warrant may be for no longer than seven days, although such period may be extended for eight additional days, with the advance written permission of a military attorney. In other words, no more than 15 days of detention may be authorized by an adjudication officer who is not a military police officer.

 

                Why did the legislature distinguish between a military police officer, who is authorized to arrest a soldier for a maximum period of 35 days, and an adjudication officer who is not a military police officer, who is authorized to arrest a soldier for no longer than 15 days? A look at the Explanatory Note to the Military Adjudication Bill (Amendment No. 16), 1982 provides the answer:

 

In making the new arrangement reducing the period of pre-trial detention, it became clear that it was necessary to distinguish between arrest by the military police, pursuant to investigating an offense, and arrest by a commander, because of a disciplinary violation.

 

Experience shows that the military police requires, on average, up to 35 days to complete an investigation, collect the material, and hand the prosecution a properly prepared case.

 

…

 

A commander who arrests a soldier for an offense of a disciplinary, as opposed to criminal, nature, generally requires much less time to examine the circumstances of the incident and decide whether to hold a disciplinary hearing or turn the matter over to a military attorney to consider a trial before a military tribunal.

 

On the other hand, there are cases in which the commander authorized to judge the soldier for an offense is not nearby at the time (for example: an offense committed at the home base, when the unit is in training or serving outside the base), and it takes a few days or sometimes a week or more for him or her to return, figure out the circumstances surrounding the incident, and decide what to do.

Id. at 65-66.

 

10. It took 11 years for section 237A to be amended by the Military Adjudication Law (Amendment No. 23), 1993. Under the amendment, a military police officer may issue an arrest warrant for no more than ten days, and the warrant may be extended, with advance written permission by a military attorney, for a maximum total period of 25 days. In other words, the amendment reduced the maximum period of detention that could be ordered by a military police officer from 35 to 25 days.

 

The amendment also reduced the maximum period of detention that an adjudication officer who is not a military police officer (under section 234 of the law) could order: before the amendment, the maximum was 15 days; the amendment limited it to no more than seven days.

 

11. Three years later, section 237A was again amended, this time by the Military Adjudication Law (Amendment No. 32), 1996, which limited the maximum detention period under an arrest warrant issued by a military police officer to eight days. Furthermore, the amendment required the approval of a military attorney within 96 hours, in order to continue to hold a soldier through an arrest warrant issued by a military police officer (previously, the law had required the detention to be approved by another adjudication officer at the rank of lieutenant colonel or higher). The military attorney may reduce the period of detention and even release the soldier. If the arrest warrant is not subjected to review by the military attorney, the soldier must be released. Under the amendment (section 237B), if the military attorney decided that it was necessary to extend the detention beyond eight days, he or she could order a military attorney or military police officer to request an extension from a district military tribunal.

 

The amendment also phased in a reduction of the periods of detention within two years of passage. Sec. 8. First, the maximum detention period that was to be ordered through an arrest warrant by a military police officer was to be “four days.” Second, the arrest warrant would need to be reviewed by a military attorney within “forty-eight hours of arrest.” On July 26, 1998, therefore, the maximum period of detention that could be ordered by a military police officer, through an arrest warrant, was supposed to be “four days.”

 

The amendment left unchanged the maximum period of detention via an arrest warrant by an adjudication officer who is not a military police officer: the maximum period of detention was and remains seven days. However, under section 236 of the amendment, the arrest warrant would expire within 96 hours (and within two years of passage, within 48 hours) of issuance, unless it was approved by an adjudication officer ranked at least as high as lieutenant colonel or if no complaint was issued and no investigation was begun.

 

The amendment created an odd state of affairs: prior to the amendments in 1982 and 1993, a military police officer could detain someone through an arrest warrant for much longer than an adjudication officer who is not a military police officer could. The reason is that arrest by a military police officer requires more time, for purposes of investigation, than arrest by another kind of adjudication officer. Nevertheless, currently, under the 1996 amendment, an adjudication officer who is not a police officer may issue an arrest warrant and detain someone for almost twice as long as a military police officer. This odd result warrants an inquiry, and one would hope that such inquiry will be forthcoming, first from the Chief Military Attorney and then from the Defense Minister, who is charged with executing the Military Adjudication Law.

 

                12. Finally, the Military Adjudication Law (Amendment No. 32) (amended), 1998 amended section 237A again, changing the maximum period of detention from “four days” to “96 hours.” The amendment, according to the bill’s Explanatory Note, was designed “to avoid any misunderstanding regarding the precise length of detention.” This was necessary because the Interpretation Law, 1981, defines a “day” as beginning at midnight and ending at midnight the following night. See the Explanatory Note to the Military Adjudication Bill (Amendment No. 32) (amended), 1998, p. 452.

 

                Whatever the goal of the amendment, in practice, “96 hours” is generally shorter than “four days.” See section 10(a) and 10(c) to the Interpretation Law. Therefore, the amendment benefits soldiers who have been arrested.

 

                13. Taking into account all these amendments, section 237A to the Military Adjudication Law, in its current version, reads as follows:

 

(a) Notwithstanding the provisions of section 234(a), an adjudication officer who is a military police officer may issue an arrest warrant for any soldier, for a period of no longer than 96 hours; such adjudication officer, who issued an arrest warrant for less than 96 hours, may extend the arrest for additional periods of time, so long as the maximum period does not exceed 96 hours.

 

(b) If a soldier has been arrested by a warrant as outlined in subsection (a), such arrest shall be brought before a military attorney for review within 48 hours of arrest.

 

(c) A military attorney may approve the detention period in the arrest warrant, reduce it, or order the soldier released.

 

(d) If the provisions of subsection (b) are not implemented, the soldier shall be released from detention.

 

(e) The provisions of this section shall not apply to an arrest

warrant issued by a military police officer exercising his or her authority as an adjudication officer over a soldier in his or her unit and under his or her command, unless the offense for which the solider is arrested has been reviewed by a reviewing officer as delineated in section 252(a)(3).

 

Basic Law: Human Dignity and Liberty

 

14. The petitioners claim that the current version of section 237A of the Military Adjudication Law restricts liberty, in violation of section 5 of the Basic Law: Human Dignity and Liberty, and is therefore null and void. According to section 5 of the Basic Law:

 

There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition, or otherwise.

 

                In principle, it would seem as though the petitioners are right that section 237A, in authorizing the arrest of a person, violates section 5 of the Basic Law: Human Dignity and Liberty. That claim, however, is problematic. Under section 10 (Validity of Laws) of the Basic Law: Human Dignity and Liberty, “This Basic Law shall not affect the validity of any law [din – trans.] in force prior to the commencement of the Basic Law.” Hence, the Basic Law could not invalidate section 237A of the Military Adjudication Law as it was formulated prior to the commencement of the Basic Law, even though that section authorized a military police officer to arrest a soldier for up to 35 days.

 

                The Basic Law: Human Dignity and Liberty may, of course, invalidate a statute passed subsequent to the Basic Law. However, the amendments to section 237A of the Military Adjudication Law, which was passed after the Basic Law entered into force, reduced the maximum period of detention. The version of section 237A in effect at the time the petitions were filed limited the maximum period of detention to 25 days. During the course of the court proceedings, the statute was amended three times, to further reduce the detention period: the first time – to eight days; the second time – to four days; the third time – to 96 hours. Each amendment limited the power to restrict liberty. As a practical matter, therefore, the statute authorizing a military police officer to issue an arrest warrant for 96 days only is a statute that benefits, rather than infringes [on liberty – trans.]. As a legal matter, can we nevertheless say that section 237A, in its current version, restricts liberty, in violation of section 5 of the Basic Law: Human Dignity and Liberty?

 

 

A Beneficial Statute as an Infringing Statute

 

15. Can a statute that benefits – in other words, a statute that limits the infringement on a right protected by the Basic Law: Human Dignity and Liberty – be considered a statute that infringes on such a right, in violation of the Basic Law? The question is, should we evaluate the beneficial statute in light of the previous statute, such that the beneficial statute does not infringe on a right but rather advances it, or should we evaluate the beneficial statute in light of the Basic Law: Human Dignity and Liberty? That is the question in this case. If the Military Adjudication Law (Amendment No. 32) (amended) (hereinafter: “the amending statute”), which reduced the maximum period of arrest to 96 hours, is evaluated in light of the previous statute, or, a fortiori, in light of the statute as it existed prior to the enactment of the Basic Law, then there is no violation. On the contrary: It restricts the infringement on personal liberty. However, if we evaluate the amending statute in light of the Basic Law: Human Dignity and Liberty, then there is some validity to the claim that arresting a soldier for 96 hours, before he or she is brought before a military tribunal, infringes on the right to personal liberty, in violation of the Basic Law. What, then, is the correct evaluation?

 

16. This Court has yet to rule on that question. We considered a similar issue in CA 6821/93 United Bank Mizrachi Ltd. v. Migdal Agricultural Cooperative [6] (hereinafter: Bank Mizrachi [6]), in which the Court held that it has the authority to invalidate a new statute that violates the Basic Law: Human Dignity and Liberty. There, the issue was the constitutionality of a statute amending another statute passed prior to the Basic Law. The claim was that because the amending statute was integrated into the existing statute and became part of it, it enjoyed the protection for existing laws granted by section 10 (“Validity of laws”) of the Basic Law. The court rejected that argument:

 

In terms of its purpose, at the present stage, the Basic Law seeks to preserve the status quo; it does not, however, spread its protective wing over what is to come, because to do so would empty the Basic Law of its content and purpose. If we accepted the rule that the new statute is to be evaluated as if section 10 applied to it, as is the case for statutes enacted prior to the passage of the Basic Law, one would simply have to dress every new statute in the garb of an amendment to an existing law in order to exempt it from the application of the Basic Law …

 

Finally, an amendment to a statute, like any statutory provision, is a separate and new law, to which the non-applicability provision of section 10 of the Basic Law does not apply.

 

Practically, too, we should draw clear dividing lines, rather than allow ourselves to be dragged into foggy distinctions. Attempting to determine the extent to which a statutory amendment innovates and its innovative implications on legislation as a whole would create an endless system of debate and interpretation. Instead, we should draw a simple line, clear and unambiguous, based on the time at which the amendment was passed. The watershed event is the date at which the Basic Law came into force.

Id. at 263 (Shamgar, P.).

 

 

In Bank Mizrachi [6], the Court considered the legality of an amending statute that was not a beneficial statute: the amending statute aggravated the infringement on the right to property. However, the logic of President Shamgar’s holding in that case also applies to a beneficial amending statute, meaning an amending statute that limits the extent to which the prior law infringes on a basic right.

 

When the legislature enacted the amending statute, it was aware of the obligation imposed on it by the Basic Law: Human Dignity and Liberty, namely not to infringe on a basic right in contradiction of the Basic Law. The job of the Court is to evaluate whether the amending statute fulfils that obligation. In other words, the Court must evaluate the amending statute in light of the Basic Law.

 

Furthermore, the distinction between an amending statute which benefits and an amending statute which does not benefit is not easy to draw. Sometimes, an amending statute combines beneficial provisions with ones that infringe. A single provision may benefit in some ways and infringe in others, and the two kinds of results may be inseparable. The difficulties inherent in determining which provisions benefit and which do not may create a substantial and complex debate, undermining the stability and certainty of the law. That is another reason for saying that every amending statute passed after the Basic Law is subject to review under the Basic Law, whether or not the statute benefits.

 

President Barak expressed this view in his book, Parshanut Bimishpat: 

 

The question arises as to whether to establish more lenient requirements – with respect to the clause on proportionality – in reviewing new legislation that amends an old statute. Indeed, if we apply the ordinary requirements of the limitation clause, the new legislation – which advances human rights, compared to the old law – may be constitutionally infirm. The result would then be to return to the old law, whose infringement on human rights is sevenfold worse. What, then, is the point of the amendment? On this line of thought, there should be a special limitation clause for a new statute which amends an old law. The counter-argument is that the Basic Law: Human Dignity and Liberty does not contain two limitation clauses, one for an “ordinary” new statute and one for a new statute which amends an old law. It contains just one limitation clause. Furthermore, the distinction between a “new” new statute and a new statute that amends an old statute is difficult and is likely to constitute a source of uncertainty. Finally – and this is the most important point, in my opinion – the limitation clause should not be diluted. It establishes certain minimum requirements which the legislature must follow, and those requirements should apply to every new piece of legislation to come out of the legislature’s study. Invalidating new legislation that amends an old law, because the new provisions do not fulfill the requirements of the limitation clause, is not a green light for legislative omissions. It should serve as a catalyst for deeper change, consistent with the conditions set forth in the limitation clause.

Parshanut Bimishpat [Interpretation in Law],, Parshanut Chukatit [Constitutional] [21] at 563.

 

See also A. Barak, Hakonstitutzionilazatzia shel Maarechet Hamishpat Biakvut Chukei Hayesod Vihashlachoteha al Hamishpat Haplili [Constitutionalization of the Legal System, Criminal Law], 13 Mechkarei Mishpat 5 (1996-1997) [23] at 16, 25.

 

                It should be noted that even the respondents, in their briefs, do not challenge the authority of the Court to review the legality of an amending statute, even a beneficial statute, in light of the Basic Law: Human Dignity and Liberty. However, they argue that the Court should use restraint in exercising such authority, limiting it to the most extreme cases in which the beneficial law still infringes on a basic right to an intolerable degree.

 

                I am prepared to agree that the Court, in reviewing the legality of a statute in light of the Basic Law: Human Dignity and Liberty, should, where appropriate, accord significance to the fact that we are talking about a beneficial law. However, the fact that the statute benefits does not render it immune from judicial review under the Basic Law.

 

                Having said that, we must now evaluate whether the amending statute, under which a soldier can be held under arrest for up to 96 hours, infringes on personal liberty in a way that contradicts the Basic Law: Human Dignity and Liberty.

 

Personal Liberty

 

                17. Section 5 of the Basic Law: Human Dignity and Liberty constitutionalizes the right to personal liberty. Furthermore, personal liberty is a constitutional right of the utmost importance, and as a practical matter, it is a condition for exercising other basic rights. Violating personal liberty, like throwing a stone into a lake, creates expanding circles of infringements of additional basic rights: not just freedom of movement, but also freedom of expression, the right to privacy, property rights, and others. See APP 4463/94 Golan v. Prison Services, IsrSC 50(4) 136 [7] at 153. Under section 1 of the Basic Law: Human Dignity and Liberty, “Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel.” Only a free person can fully and properly exercise his or her basic rights. And personal liberty, more than any other right, is what makes a person free. For that reason, denying someone personal liberty is a particularly serious infringement. Indeed, denying personal liberty through imprisonment is the harshest punishment that a well-ordered state imposes on criminals.

 

                Detention by an administrative agent, like a police officer, is the most serious infringement on personal liberty. In contrast to imprisonment, such detention is not imposed by a court as the result of a judicial proceeding, as punishment for a crime. It is imposed by an administrative agency, based on suspicion alone, on a person who still enjoys the presumption of innocence. See, e.g., CrimApp 8087/95 Zada v. State of Israel [8] at 144.

 

                In principle, the level of protection accorded to a basic right must be directly proportional to the importance of the right and the degree to which it is infringed upon. Therefore, there may, for example, be a difference between the level of protection accorded to personal liberty and that accorded to the right to property, just as there may be a difference in the protection accorded in cases of complete denial of personal liberty, versus those involving a limited infringement on freedom.

 

                The conclusion: because personal liberty is a constitutional right of special importance, it deserves special protection against infringement via detention at the hands of an administrative agency. This is the kind of infringement that occurs when a military police officer arrests a soldier for 96 hours, under section 237A of the Military Adjudication Law.

 

                Of course, not every infringement on personal liberty violates the Basic Law: Human Dignity and Liberty. Like all basic rights, the right to personal liberty is not absolute. Personal liberty may, and in some cases must, be restricted, in order to protect other rights or to protect the public. The Basic Law recognizes this need and sets conditions for fulfilling it. The limitation clause of the Basic Law establishes these conditions. In any case involving infringement on personal liberty, the question is therefore whether the infringement meets the conditions established in the limitation clause, which serves as the line of defense for basic rights, including the right to personal liberty. The Court comes to protect personal liberty from a statute that infringes on it, only when the statute breaks through the line of defense drawn by the limitation clause.

 

Limitation clause: the General Clause and the Security Clause

 

18. The general limitation clause of section 8 of the Basic Law: Human Dignity and Liberty reads as follows: 

 

There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required or by regulation enacted by virtue of express authorization in such law.

 

However, immediately after the general limitation clause, the law adds a special limitation clause for security forces. Section 9 of the Basic Law contains this clause (under the heading, “Reservation regarding security forces”):

 

There shall be no restriction of rights under this Basic Law held by persons serving in the Israel Defense Forces, the Israel Police, the Prisons Service and other security organizations of the State, nor shall such rights be subject to conditions, except by law, or by regulation enacted by virtue of a law, and to an extent no greater than is required by the nature and character of the service.

 

Because section 237A of the Military Adjudication Law restricts the personal liberty of soldiers, clearly it is also subject to the security limitation clause of section 9 of the Basic Law: Human Dignity and Liberty.

 

19. How does the security limitation clause of section 9 of the Basic Law: Human Dignity and Liberty differ from the general limitation clause of section 8 of the Basic Law?

 

                There is no doubt that the Basic Law: Human Dignity and Liberty makes everyone’s basic rights into constitutional rights.  The security limitation clause was not, by itself, designed to restrict the basic rights of those serving in the security forces. As President Barak said in CrimApp 3513/95 [5] at 688-99:

 

There is no question that the human rights protected in the Basic Law are also the rights of the soldier. The uniform does not divide the soldier from his or her constitutional human rights. Human rights are part of the rights that a soldier enjoys as a human being …

 

20. If so, what is the special purpose of the security limitation clause? On its face, the security limitation clause sets special conditions for infringing on the basic rights of those serving in the security forces. These conditions differ from those established by the general limitation clause for infringing on the basic rights of others. What are these special conditions?

 

First, under the security limitation clause, the basic rights of those serving in security forces may be infringed through enacting regulations such as military orders. How? The original version of section 8 of the Basic Law did not allow basic rights to be violated except “by a law,” until the 1994 amendment to that section also allowed basic rights to be violated “by regulation enacted by virtue of express authorization in such law.” In contrast to section 8, from the outset, section 9 allowed for the infringement on basic rights also “by virtue of a law,” in other words, through administrative regulations. See section 9 of the Interpretation Law, 1981. See also, Y. Carp, Chok Yisod: Kvod Haadam Vicheruto – Biyographia Shel Maavakei Coach [Basic Law – Power Struggles] [24] at 372; A. Gazal, Pgiya Bizchuot Hayesod “Bichok” o “Lifi Chok” [Violating Basic Rights “By Law” or “By Virtue of a Law”] [25] at 401-02.

 

Today, the semantic difference between the way section 8 and section 9 address infringements on basic rights through administrative regulation remains: Section 8 allows such infringement only “by a law or by regulation enacted by virtue of express authorization in such law,” while section 9 allows infringement merely “by virtue of a law.” Is there a substantive difference between the two? The Court has not yet ruled on this question. Nor is there a need to do so in this case, because the statute itself, and not implementing regulations, authorizes the infringement on personal liberty by arresting a soldier.

 

21. There are additional semantic differences between section 8 and section 9 of the Basic Law. The most obvious one is that section 9, as opposed to section 8, does not require, as a condition for violating the right, that the violating law be “befitting the values of the State of Israel,” and that it be “enacted for a proper purpose.” Does that mean that a statute, or regulations enacted “by virtue of a law” that infringes on the basic rights of those serving in the security forces, may not befit the values of the State of Israel or may be enacted for an improper purpose? The language of the statute must be interpreted according to the purpose of the statute. If we take the purpose of the statute into consideration, we must reject this interpretation, because it is likely to frustrate the purpose of the Basic Law, namely, that basic rights are the constitutional rights of every person, including, of course, a person serving in the security forces. It cannot be reconciled with section 1 of the Basic Law, under which the basic rights of a person in Israel – every person – “… will be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel.” Nor can it be reconciled with section 1A of the Basic Law, which states its purpose to be establishing “the values of the State of Israel as a Jewish and a Democratic State.” The purposive interpretation of section 9 of the Basic Law is therefore that a statute cannot infringe on the basic rights of those serving in the security forces unless it befits the values of the State of Israel and is enacted for a proper purpose. The same is true, a fortiori, of administrative regulations. If a statute or administrative regulations infringe on the basic rights of those serving in the security forces in a way that does not befit the values of the State of Israel or for an improper purpose, then we can determine that they violate these rights to an extent “greater than what is required by the nature and character of the service,” contradicting the language of section 9 of the Basic Law. See A. Bendor, Pigamim Bichakikat Chukei-Hayesod [Flaws in the Passage of the Basic Laws [26] at 450.

 

22. The question therefore arises as to whether section 237A of the Military Adjudication Law, which authorizes a military police officer to arrest a soldier for a period of 96 hours before bringing him before a military judge, meets the requirements of consistency with the values of the State of Israel and designation for a proper purpose. The answer is that the arrest of a soldier who has committed an offense is recognized and accepted, in certain instances, as an essential means of protecting public safety. Public safety is one of the basic values of the state, and its protection is a proper purpose. That principle holds true when a civilian police officer arrests a person who is not serving in the security forces as well as when a military police officer arrests a soldier. Arresting a soldier may serve the additional purpose of maintaining the necessary discipline in the military, which is also a proper purpose. Furthermore, we can also say that the amendments made to section 237A after the passage of the Basic Law: Human Dignity and Liberty meet the requirements of values and purpose because they were passed in order to reduce the period of detention, and thus to limit the infringement on personal liberty. We may therefore conclude that, in terms of values and purpose, section 237A of the Military Adjudication Law passes constitutional muster.

 

Indeed, the petitioners do not object to the very authority of a military police officer to arrest a soldier, but rather to the period of detention which can be ordered by a military police officer. The petitioners claim that an arrest warrant authorizing 96 hours of detention, before a soldier must be released or brought before a judge to extend the detention, is disproportionately long. Therefore, they claim, it infringes on the right to personal liberty to an extent greater than is required under section 9 of the Basic Law: Human Dignity and Liberty.

 

23. Semantically, there is a difference between the proportionality test established in section 9 of the Basic Law: Human Dignity and Liberty (security limitation clause) and the proportionality test established in section 8 of the Basic Law (general limitation clause). Section 8 prevents a limiting statute from violating basic rights except “to an extent no greater than is required.”

 

In contrast, section 9 bars the limiting statute from infringing on basic rights except “to an extent no greater than is required by the nature and character of the service.” What are the implications of these different choices of language?

 

The proportionality test is flexible. In every case and for every issue, “the extent required” of an infringement on rights depends on the context of the case and issue, whether it is a context of time or place, status or role, or the like. This is true, for example, of prisoners. The Basic Law: Human Dignity and Liberty does not establish a special test for determining the proportionality of an infringement on prisoners’ rights. The implication is that infringement on a prisoner’s rights is subject to the general proportionality test. Nevertheless, the proportionality of an infringement on prisoners’ rights, like their right to freedom of expression or privacy, clearly is measured in light of the context of prison, primarily the nature and character of the status of prisoner. See, e.g., APP 4463/94 [7]. The principle holds true for a person of another status. It is therefore clear that the proportionality of the harm to a person serving in the security forces is influenced by the nature and character of the service. This means that applying the general proportionality test of section 8 of the Basic Law to those serving in the security forces would have to take into consideration the nature and character of the service, even if section 9 of the Basic Law did not explicitly say so. Thus, section 9 of the Basic Law simply states the obvious. It also, however, serves to clarify and remove any doubt: The proportionality of infringing on the rights of those serving in the security forces depends on the nature and character of the service, and it is therefore likely to be different from the proportionality of infringing on the rights of a person who is not serving in the security forces. Furthermore, the proportionality is likely to vary among types of service even within the security forces. For example, the proportionality of infringing on the rights of a person serving in the military is likely to be different from the proportionality of infringing on the rights of a person in the Prison Services. As President Barak said in CrimApp 3513/95 [5]:

The military context is unique in its own right. This uniqueness justifies recognizing the possibility of a more widespread restriction of the human rights of a soldier, relative to what would be permitted for a non-soldier.

…

The question is whether the infringement on a soldier’s human rights is proportional, considering the nature and character of military service, including its uniqueness in light of the goals of the military. Comparative law from systems which have addressed similar problems will be useful. We should, however, give expression to the special nature of the Israeli military, which is a people’s army, defending the state against real dangers that lurk each and every day.

Id. at 689.

 

See also HC 5000/95 Bartala v. Chief Military Attorney [9] at 73, 75.

                The primary question raised by these petitions, therefore, is whether the authority to arrest a soldier under the Military Adjudication Law withstands the proportionality test, taking into consideration the nature and character of the military service. Is it possible to reduce the period of arrest, without undermining its purpose?

Burden of Proof

24. The answer to the question of proportionality depends, in large part, on the evidence. Has lawful evidence proven to the Court that it is possible to reduce the period of detention, thus limiting the infringement on personal liberty, without undermining the purpose of the arrest? In order to answer that question, we must first clarify who bears the burden of proof in demonstrating proportionality: the petitioners or the respondents.

The Court has yet to rule on the question of burden of proof in demonstrating proportionality, although it has arisen in prior cases. The justices have been divided on the issue. They expressed their disagreement in Bank Mizrachi [6]. Supra para. 16. In the judgment, the justices distinguished between two burdens within the burden of proof: the primary burden, which is the burden of persuasion, and the secondary burden, which is the burden of production. On these burdens, see 3 Y. Kedmi, Al Harayot [On Evidence] [22] beginning on pp. 1217 and 1273. One opinion expressed in Bank Mizrachi [6] is that the burden of persuasion passes from party to party, depending on the stage of argument. At the first stage of argument, the question is whether the statute being reviewed infringes on a constitutional right. At this stage, the statute enjoys a presumption of constitutionality. The burden of persuasion, therefore, is on the party contending that the statute infringes on a right, meaning it is generally on the person or body who is harmed by the statute. At the second stage, the question is whether the infringement on a constitutional right is legal, meaning, in accordance with the limitation clause: by law or by virtue of a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.  At this stage, the burden of persuasion that the infringement is legal falls on the party arguing for the constitutionality of the infringement, meaning it is generally on the administrative agency acting by force of the statute. See Justice Barak’s opinion, Id. at 492-98; Justice D. Levin, Id. at 458-459. An opposing opinion is that at every stage of the argument, every statute enjoys a presumption of constitutionality, and therefore, at both stages, the burden of persuasion is on the party claiming otherwise. See Justice Goldberg’s opinion, Id. at 577; Justice Bach’s opinion, Id. at 586. Another opinion, taking a middle course, divides the burden of proof at the second stage. In other words, the burden of persuasion at the second stage is on the party arguing for the constitutionality of the statute, generally the administrative agency acting by force of the statute. On the question of proportionality, however, the burden of production is on the party claiming that the infringement is not proportional, meaning it must bring evidence showing the existence of alternatives that effect a more moderate infringement on the right. See Justice Shamgar, Id. at 348; Justice Mazza, Id. at 578-79. See also a similar opinion by Justice M. Cheshin, Id. at 570. At the end of the day, however, the disagreement between the justices in Bank Mizrachi [6] remained unresolved.

                Parenthetically, I will note my doubt that case law on the burdens of proof in criminal and civil law has the same application in public law. It is true that in public law, like civil law, the applicable rule is that he who would take from his friend bears the burden of proof.  Therefore, at the first stage of argument in public law, the burden of raising a substantial doubt over constitutionality is on the petitioner claiming the unconstitutionality of a statute, regulation, or administrative decision. However, once the petitioner has raised this doubt (whether or not an order-nisi has been issued), the Court need not make do with the evidence brought by the petitioner. For example, if the petitioner succeeded in raising a substantial doubt over the reasonableness of an administrative decision or the legality of the considerations that went into it but did not produce enough evidence for the Court to definitely determine the legality of the decision, the Court need not reject the petition for lack of evidence.  It may, sua sponte, require the agency to answer certain questions or present additional specified evidence, such as affidavits, documents, and the like. This is one of the differences between an administrative proceeding and a criminal or civil proceeding. First, the difference stems from the nature of an administrative proceeding: it deals with a decision taken by an agency acting in the name of the public and for the sake of the public. In principle, therefore, the public has a right to know the facts and reasons at the basis of the decision. Second, the difference stems from the principle of rule of law; in an administrative proceeding, the Court is not just supposed to adjudicate a dispute between two parties but also to preserve the principle of rule of law. This principle requires that, if substantial doubt has been raised over the legality of an administrative decision, such doubt should be clarified, to avoid leaving an illegal decision in effect. This is also the source of the difference in the burden of proof in an administrative proceeding versus a criminal or civil proceeding. In an administrative proceeding, more than in a criminal or civil proceeding, the Court is likely to initiate actions that may be necessary to strengthen the body of evidence so that it can decide the legality of the administrative decision on the merits. Therefore, once a doubt has been raised about the legality of an administrative decision at the start of an administrative proceeding, the question of burden of proof does not arise again in the proceeding.

That is not always the case. Sometimes, even at the end of the proceeding, the body of evidence vacillates such that the Court cannot use it to make the findings necessary to decide the legality of the administrative decision. In this situation, rather than decide the legality of the administrative decision on the merits, the Court may be forced to do so by ruling on the issue of the burden of proof. However, even a decision on that issue will likely be influenced by the special nature of administrative proceedings. It is likely to be influenced by considerations of rule of law, the presumption of the constitutionality of statutes and legality of administrative decisions, the importance of the right infringed and the severity of the infringement, administrative efficiency, and other public interests. The relative weight given to these considerations may determine whether the petitioner, who seeks something from the agency, bears the burden of proof, or whether it passes to the agency. This may explain, if only partially, the differences of opinion among the justices in Bank Mizrachi [6] over the question of the burden of proof.

In any event, in this case, as in Bank Mizrachi [6], we need not resolve the dispute over burden of proof. I will therefore leave it to be examined at another time. This is possible because, after the order-nisi was issued, and at the Court’s request, the respondents produced all the necessary evidence on the question of proportionality. The evidence produced before the Court is sufficient to allow it to rule on the proportionality of the statutory provision authorizing a military police officer to arrest a soldier for up to 96 hours, without having to rule on the issue of burden of proof. As Justice Sussman held in CA 88/53 Kaplan v. Rosenzweig [10] at 1301, “If the body of evidence allows a judge to make a finding of fact, it matters not at all which party bears the burden of proof.”

In light of the evidence, does the statutory provision authorizing a military police officer to arrest a soldier for a period of 96 hours withstand the proportionality test? As a preliminary question, we must ask: what determines the proportionality test.

The Proportionality Test

                25. In a few decisions in recent years, the Court has answered the question of what determines the proportionality test. It recently repeated the answer in HC 1715/97 Chamber of Investment Managers in Israel v. Finance Minister [11], in which the Court invalidated a certain provision in a new statute because it disproportionally infringed on the right to freedom of occupation. In order to reach its decision, the Court presented the proportionality test. This test, as the Court held, is divided into three secondary tests, as President Barak held:

The first secondary test is the test of suitability or rational connection. A legislative means that infringes on a constitutional human right – in our case, the right to freedom of occupation – is proper if it is suited to achieving the objective. There must be a suitable connection between the ends and the means. The legislative means must rationally lead to achieving the legislative objective … the second secondary test is the test of the least violative means. A legislative means that infringes on a constitutionally protected human right – in our case, the right to freedom of occupation – is proper only if the legislative objective cannot be achieved by another means whose infringement on the human right is less severe … The legislative means is like a ladder on which the legislature climbs in order to achieve the legislative purpose. The legislature must stop at the rung of the ladder which achieves the legislative purpose through a means least violative of the human right. “The legislature must start with the ‘step’ that is least violative, and slowly ascend the stairs, until it reaches the step at which the proper legislative purpose is achieved without infringing on the human right more than is necessary” … “If, under the circumstances of the case, the moderate condition, which causes less damage, is insufficient to achieve the objective, the agency may set a more burdensome condition, in order to achieve the goal” … The third secondary test is the test of the proportionality of the means (in the narrow sense). Even if the means chosen is (rationally) suited to achieving the objective, and even if there is no means more moderate, there must be a proper relationship between the benefit it will create and the scope of the infringement on a constitutionally-protected human right … this is the test that evaluates the result of the legislation, and the effect it has on the constitutional human right. If using a legislative means causes a severe infringement on a human right, and the benefit it is expected to give the public is minimal, the legislation may exceed the extent necessary (in the narrow sense).

Id. at 385.

 

                26. The arguments in this petition focused on the second secondary test: the choice of the least violative means. The petitioners do not claim that a military police officer’s arrest of a soldier for a maximum of 96 hours before the soldier must be released or brought before a judge, fails the first secondary test, namely a suitable means, or the third test, namely a proportional means. However, they contend that a military police officer’s arrest of a soldier for 96 hours cannot be reconciled with the second test, the test of the least violative means. They argue that such detention infringes on personal liberty beyond what is necessary, because it is possible and appropriate to reduce the period of detention without undermining the purpose of the arrest.

The Proportion Applied in Civilian Arrests

                27. What, then, is a proportional period for which a military police officer may detain a soldier? The petitioners claim that the proportional period for a military police officer to detain a soldier is the same period as that for which a civilian police officer may detain any person, regardless of whether he or she is a soldier. At the relevant time, the Criminal Procedure Ordinance (Arrest and Search) [new version], 1969 (hereinafter – Arrest and Search Ordinance) established the period for which a civilian police officer may detain someone. Section 16 of the that ordinance imparted a civilian police officer with the authority to arrest a person for no longer than 48 hours, after which the person must be released from detention or brought before a judge with a request to extend the detention. Such authority had existed for many years, including at the time these petitions were brought before the Court. The petitioners claimed that there was no justification for distinguishing between the arrest authority of a civilian police officer and that of a military police officer, for purposes of determining the maximum period of detention. The nature and character of military service does not justify detention by a military police officer for a longer period of time. When a military police officer arrests a soldier for 48 hours, he or she infringes on the personal liberty of the soldier, but no more than is necessary; detention for a longer period of time infringes on personal liberty to an extent beyond what is necessary. Hence, because it infringes on personal liberty beyond what is necessary, the statute authorizing a military police officer to detain a soldier for longer than 48 hours is null and void.

28. The Criminal Procedure Law (Enforcement Authority – Arrests), 1996 (hereinafter – Enforcement Authority Law) rescinded (in section 42) section 16 of the Arrest and Search Ordinance and reduced the period of detention by a civilian police officer. Under section 29(a) of that law, “a person arrested by an officer appointed under section 27 shall be brought before a judge as soon as possible, and within no more than 24 hours.” The Explanatory Note to the Criminal Procedure Bill (Enforcement Authority – Detention, Arrest, and Release), 1995 offered the following reason for reducing the period of detention: “This is part of a trend to protect human rights, to guarantee that a person is detained only when detention is an essential measure, and to give the court judicial review over the investigatory activities undertaken, until the detainee is brought before it.” Id. at 316. Under section 1(c) of the Enforcement Authority Law, the provisions of the law apply to detention under any law, unless otherwise provided for by law. To remove any doubt, section 44 of the Enforcement Authority Law adds a provision to the Military Adjudication Law (section 243C), under which the provision limiting detention by a civilian police officer to 24 hours does not apply to detention by a military police officer under the Military Adjudication Law.

 

29. The reduction, under the Enforcement Authority Law, of the maximum period for which a civilian police officer may detain someone from 48 hours to 24 hours did not change the position of the petitioner in HC 6055/95. After the Enforcement Authority Law was passed, the petitioner submitted an amended petition (on June 26, 1996) taking the position that the proper period for detaining soldiers, in accordance with the Basic Law: Human Dignity and Liberty, is 48 hours. Subsequently (on March 11, 1998), the petitioner even notified the court that he was not seeking to reduce the period of detention to less than 48 hours. The suggestion is that either the petitioner believed that the nature and character of military service justify arresting a soldier for 48 hours, even though a civilian police officer is not authorized to detain a person for longer than 24 hours, or he believed that the military would require a period of adjustment to prepare for a maximum detention of 24 hours, and he was therefore prepared to make do with a maximum period of 48 hours.

 

30. In contrast, the petitioners in HC 7083/95 submitted an amended petition (on July 2, 1996) in which they asked to limit the detention of soldiers to no more than 24 hours. In response to a brief by the respondents, the petitioners submitted that, “The petitioners again ask the honored Court to hold that detention for longer than 24 hours without a hearing before a judge is unconstitutional. Even if the honored Court decides that the minimal constitutional standard is 48 hours, the principle of equal application of basic rights requires limiting the period of detention to 24 hours.”

 

On this issue, however, the petitioners made a mistake. The principle of equal application of basic rights applies to equal situations. The situation of a soldier’s personal liberty is not equal to the situation of a non-soldier’s personal liberty. This court gave expression to that principle in a few cases. See e.g., HC 405/74 Bar-Ad v. Captain Madar [12] at 56; HC 243/80 Madjhinski v. Military Appeals Tribunal [13] at 72; HC 118/80 Greenstein v. Chief Military Attorney [14] at 243;  HC 695/88 Adler v. Military Appeals Tribunal [15]; HC 5900/95, supra [9] at 72-74. The Basic Law: Human Dignity and Liberty also expressed that difference in section 9 (the security limitation clause), under which the basic rights of those serving in the security forces may be violated to an extent required “by the nature and character of the service.”

 

Therefore, the question that will decide these petitions is not the question of equality in the periods of detention for soldiers and non-soldiers, but rather whether detaining a soldier for 96 hours infringes on personal liberty to an extent greater than is required by the nature and character of military service.

 

The Proper Proportionality in Detaining Soldiers

 

                31. The question of proportionality is the kind of question which has no precise answer. At what point does the infringement on a soldier’s personal liberty exceed the necessary extent? Proportionality cannot be measured. Indeed, how could we measure, in quantitative data, the level of harm caused to a soldier by detention or another infringement on personal liberty? We have no machine or formula that can measure the force or weight of the harm caused by denying personal liberty, via arrest, for one hour or one day. Nor do we have a machine or formula that can measure the profit or benefit of reducing the infringement on personal liberty by reducing the detention by an hour or a day. Similarly, there is generally no precise way to measure the cost, be it economic or social, of reducing the infringement on the right. For example, what is the social and economic cost of shortening detention by a civilian police officer from 48 hours to 24 hours? There would seem to be no way to quote a price, even in terms of money or human resources. There is certainly no way to quote a price in terms of public order and crime prevention.

 

                Indeed, human rights and public interests are not potatoes which can be weighed on a scale, one against the other, to see which side tips the scale. Because we cannot weigh, we must estimate. We must make an effort, in every situation, to correctly estimate the relative weight of human rights, on the one hand, and public interests, on the other. The proper balance between them is what determines proportionality. The greater the importance of the right infringed, and the more serious the infringement, the stronger the public interest must be, in order to justify the infringement. A severe infringement on an important right, designed to protect but a weak public interest, is likely to be considered an infringement beyond the extent required.

 

                We may imagine the relationship between the right and the public interest on one hand, and the proportionality on the other, as an equation. In contrast to a mathematical equation, however, the value of each term of the equation is not precise, and in any event, it cannot be measured. We determine the value by estimating, and an estimate is subject to dispute. Someone may disagree. However, even when the estimation is in dispute, a decision is still necessary. The Court must make a decision. Such is the role and authority of the Court. Such is also its skill. The Court is accustomed to evaluating the relative weight of competing rights and interests in a variety of contexts, based on the body of data and considerations presented, in order to arrive at the proper balance.

 

The Court does this generally, and proportionality is no exception. Making an evaluation based on the relevant data and considerations is the only way to determine whether a particular infringement on a particular right exceeds what is necessary. This is the right way to determine whether the detention of a soldier by a military police officer for 96 hours infringes on personal liberty beyond the extent required by the nature and character of military service.

 

32. The respondents of course recognize the special importance of the personal liberty of a soldier, like that of any person, and they do not dispute the appropriateness of limiting the infringement on such liberty as much as possible, taking into consideration the nature and character of military service. In that spirit, they point to the impressive reduction of the detention period that has taken place gradually, since the original version of the Military Adjudication Law permitted two months of detention by a military police officer. Just a few years ago, when these petitions were submitted to the Court, the amended law still allowed detention by a military police officer for up to 25 days. The respondents viewed even that period as longer than is proportional. Thus, even before the petitions were submitted, the military, on its own initiative, began to examine the possibility of a further reduction in the period of detention. Furthermore, even today, when the maximum period of detention by a military police officer is 96 hours, the respondents believe that it is appropriate and possible to continue to reduce the period. In the concluding paragraph of their written briefs submitted to the Court, the respondents said that:

 

The military authorities are aware of the need to continue trying to reduce the maximum period for which soldiers may be detained prior to being brought before a military judge. The respondents have worked to amend the law gradually, on an experiential basis, as part of a trend toward harmonizing the detention period, as much as possible, with that customary for the detention of civilians.

 

                This trend was expressed during a 1996 debate in the Knesset over a proposed amendment to the Military Adjudication Law that would set the maximum period of detention by a military police officer at eight days, to be reduced to four days within two years. Member of Knesset Moshe Nissim, speaking for the Knesset Committee on Foreign Affairs and Security, said:

 

One may ask, why didn’t we completely equate it with the period accepted in civilian life? I agreed with the military attorney’s office that there is a difference that we are still not equipped to address, other than gradually. In civilian life, when we are dealing with the civilian plane, the police are equipped with a station and authorized people and agreed-upon agencies scattered throughout the country. In the IDF [Israel Defense Forces – trans.], the agreed-upon agencies are not scattered among all the bases. Currently, there is no possibility of immediate communication, as there is among civilian agencies. The Foreign Affairs and Security Committee therefore completely agreed with the military attorney’s office to continue progressing toward the final reduction, but not right now. In other words, before we reach the final step of total equalization between the military agency and the civilian agency, we continue to march forward significantly, but still have not reached absolute equalization …

 

I see this as significant progress, and I believe the attorney’s office, which declared to us – and I want that declaration to be recorded in the “Knesset Record” – that they will initiate, within a short period of time, relatively quickly – it’s impossible to set a deadline – to continue to improve this issue and to achieve nearly complete or complete equality within a reasonable time. I believe they will do it. I saw their initiative, and I believe that the military attorney’s office should be applauded for its attention to this issue.

Knesset Record 155 (1996) 5784.

 

33. If this is the case, why do the respondents oppose the petitions? The respondents offer a few reasons to support their position. We will discuss each of them, one by one, beginning with the lightest and moving to the heaviest.

 

One reason offered by the respondents is that the current situation is essentially better than the situation set forth by the law. The military tries not to hold soldiers in custody for the maximum period allowed, 96 hours, unless there is a need to hold them in custody for the entire period. Similarly, the Chief Military Attorney, through the Chief Military Prosecutor, instructed all military attorneys (on July 14, 1996) “to make every effort to bring the matter of arrested soldiers to a military judge as soon as possible.”

 

Such is indeed the case. But there is nothing remarkable about that. The period of detention established in the statute is the maximum period designed for a particular purpose, primarily to conduct investigatory activities, before releasing the soldier or bringing him or her before a military judge in order to extend the detention. These activities, like any exercise of administrative power, must be done with the proper speed. See section 11 of the Interpretation Law. Once these activities have been completed, and there is no longer any purpose to the detention, the soldier must be released, even if the maximum period of detention has not yet elapsed. And even if there is justification for continuing to detain the soldier, the law requires that he or she be brought before a military judge as soon as possible, in order to extend the detention. Compare section 29(a) of the Enforcement Authority Law. This obligation, however, even if fully fulfilled in practice, still does not justify a statutory provision that establishes a maximum period of detention which is longer than is necessary.

 

Furthermore: we have no data to show how many of the soldiers arrested are held in custody for the maximum allowed period, meaning 96 hours, and whether they are held in custody when necessary or when not necessary. The petitioners assume that it is common practice for soldiers who are arrested to be held in custody until the end of the maximum period. In any event, the answers to these questions have no bearing on the result of the case. Even if we were presented with data showing that relatively very few soldiers are held in custody for the entire maximum period, it would not sufficiently answer the claim that the maximum period of detention is longer than is necessary. Such an answer could not justify a maximum detention period of two months or eight days. Such an answer could not, at the relevant time, have prevented the reduction in the maximum period of detention by a civilian police officer from 48 to 24 hours. The proportionality test for the detention period also relates to the maximum period of detention, meaning the period established by the statute, and not just the period of detention in practice for this or that soldier. If the maximum period infringes on personal liberty beyond what is necessary, that is the case even if it infringes on the liberty of just a few people. Even the personal liberty of a single individual is worthy of protection as though it were the liberty of the entire world.

 

In any event, this claim raised by the respondents appears to have failed to convince even the respondents themselves, because they concede the appropriateness of reducing the period of detention from what is it today.

 

34. The respondents raise an additional claim, in a similar vein, that, de facto, the infringement on personal liberty of a soldier arrested by a military police officer is not so severe. As they said in their briefs to the Court, “In evaluating the proportionality of the provisions for judicial review of the detention of soldiers, one should also consider the provisions which supplement judicial review – the review of arrests which military attorneys and senior adjudication officers exercise, and the right to appeal an arrest warrant.” They point to a number of sections of the Military Adjudication Law which establish a complicated arrangement for internal review of an arrest warrant issued by a military police officer. First, under section 238(a), a soldier who has been arrested may submit an appeal to a military attorney. Second, under sections 237A(b) and 237A(d), even if the soldier does not submit an appeal, the arrest must be brought before a military attorney for approval within 48 hours of the arrest, and if the arrest is not brought for such approval, the soldier is released. Third, under section 237A(c), a military attorney may order a reduction in the period of detention or the release of the soldier. Fourth, if the military attorney decides not to order the soldier’s release, the soldier may, under sections 238(b) and 238(d), submit a request for reconsideration to the military attorney. If the military attorney decides not to grant the request or appeal (under section 238(a)), he or she must bring the matter to the decision of the Chief Military Attorney or his or her deputy. And, under section 239, the Chief Military Attorney may rescind any warrant issued by an adjudication officer.

 

However, according to the petitioners, this complicated and impressive system of internal review of the arrest of soldiers does not sufficiently address the charge of a disproportional infringement on the personal liberty of the soldier arrested. First, the general rule is that arrest by virtue of an arrest warrant issued by a police officer, whether civilian or military, must be reviewed by a judge as soon as possible. True, a military attorney is a senior officer at the rank of lieutenant colonel, with legal training and legal experience, holding a respected position and even enjoying professional independence within the chain of command. However, he or she is not a judge. Review by a military attorney is internal review; review by a judge is external review. Internal review takes place in the office of the military attorney, based on documentary evidence; external review takes place in a courtroom, in the presence of the detainee. There is a substantial difference between the two. Because the arrest severely infringes on the right to liberty, it must be reviewed externally. This rule is important in principle and also in practice: the military attorney’s role, as part of the system of military justice and as a representative of the military prosecution, is likely to influence the way he or she reviews an arrest warrant.

 

Second, the large number of arrests, coupled with the tight schedule of each arrest, creates practical difficulties for a military attorney seeking to exercise review, as the statistics demonstrate. The Court requested and received statistics from the respondents (for the years 1996 and 1997) about soldiers arrested on suspicion of desertion (which account for more than 90%  of arrests by a military police officer) and released prior to the maximum period of detention, pursuant to decisions by military attorneys. The statistics show that only 6% of the soldiers arrested and brought before military attorneys were released prior to the expiration of the maximum period of detention, either because the military attorney rescinded the arrest warrant or because a military attorney failed to approve the arrest warrant within the statutorily required period.

 

It would seem, then, that internal review by a military attorney, important as it is, and as much as it affects the question of proportionality, is not an adequate substitute for external review by a military judge.

 

We thus return to the original question: Does a period of detention of no more than 96 hours infringe on the personal liberty of a soldier, as the respondents claim, to an extent no greater than is required by the nature and character of the military service?

 

35. Both the respondents as well as the petitioners seek to bolster their claims with examples from legal systems in other countries. The parties presented the Court with numerous sources from English, U.S., Canadian, and other case law and legal literature. If truth be told, however, it is difficult to glean any clear message or make effective use of examples from foreign legal systems. Indeed, in each of these systems, commanders have the power to arrest soldiers under certain circumstances, subject to review of the arrest within a short period of time. The review conducted, however, is generally internal, by commanders who do not necessarily have legal training, rather than by judges. The respondents apparently correctly point out that in none of the countries they investigated does the law require review by a military judge within 24 or even 48 hours. In contrast, the German Military Discipline Law of 1972 requires (in section 17) the release of a soldier arrested for a disciplinary violation no later than the end of the day of his or her arrest, unless a judge issues an arrest warrant, and for a criminal violation, there is no difference between the period of detention authorized for soldiers and non-soldiers.

 

In any event, the law in Israel requires us to evaluate the proportionality of the period of detention in light of the nature and character of military service in Israel. The nature and character of military service in Israel differ from those of military service in other countries. Therefore, and particularly because the law regarding review of the arrest of soldiers differs from country to country, comparative law would not appear to be terribly useful to the issue at hand.

 

36. In that case, do the nature and character of military service in Israel require or justify authorizing a military police officer to detain a soldier for 96 hours before bringing him or her before a military judge? During the course of oral arguments (in July of 1997), the Court asked the respondents if they would agree to draft an amendment to the Military Adjudication Law that would, by 1998, reduce the maximum period of detention of a soldier by a military police officer to 48 hours. The respondents notified the Court (on September 30, 1997) that, after holding consultations on that question at the highest levels of the military and with the State Prosecutor and Attorney General, they reached the following conclusion:

 

4. The military authorities in charge of the issue concluded that it would be almost impossible to reduce the initial period of arrest to 48 hours, beginning in July of 1998 … first, the military needs to learn its lessons from the transition to the current legal situation of bringing soldiers before a judge within 96 hours …

 

…

 

6. The military law enforcement system is unprepared to implement the proposed transition to extending the period of arrest within 48 hours, and an attempt to do so risks undermining the military’s system of law enforcement and discipline. The issue is not just the financial significance of expanding human resources to handle the anticipated yearly increase of thousands of arrest procedures and arrest appeals. It is also a question of formulating working rules for the different players within the military system who need to make sure that soldiers who are supposed to remain in custody are not released simply because the system has not yet taken steps to implement the new legislation.

 

7. The military system has a real fear that a transition, within a year, to a requirement that the arrest be extended within 48 hours, before the system has taken steps to properly prepare, will result in a variety of undesirable situations. These include not having enough time to complete essential investigations and collect evidence in cases involving soldiers who desert or go absent without leave. It may become impossible to summon the commanders of these soldiers to adjudicate their cases through disciplinary hearings, and investigatory activities will have to cede to increased attention to procedures involving extensions of arrest. If this happens, more soldiers are likely to absent themselves from military service, undermining military discipline, obstructing investigations, and causing other kinds of damage.

 

8. The position of the IDF should be noted: bringing a soldier for extension of arrest within 48 hours is a desirable goal. However, achieving that goal requires the military to evaluate the practical aspects and the arrangements necessary to implement it. The military has therefore decided to take a year to evaluate the new 96-hour requirement, beginning when the amendment to that effect enters into force in July, 1998. At the end of that year of evaluation, as 2000 draws near, the military will propose another amendment which will reduce the maximum initial period of arrest, before review by a judge, to 48 hours, so long as circumstances do not require an additional, brief delay of the amendment.

 

 

At the Court’s request, the respondents itemized the changes and resources that the military would need in order to prepare to reduce the period of arrest to 48 hours. They said that it would need to reinforce the means of transporting detainees, assign more people to guard detainees being transported, bolster human resources in the legal system (judges, prosecutors, defense lawyers, etc.) speed the process of transmitting legal material (via fax and other means), and the like. They estimate needing another 40 professional soldiers and another 40 drafted soldiers, as well as another 40 vehicles for transporting prisoners, eight buses, communications devices, computer systems, construction, and the like. The respondents did not provide data or explanations to serve as a basis for their estimate.

 

37. These resources would be necessary to reduce the period of arrest primarily because of the current system in place for arresting soldiers, interrogating detainees, extending arrest, and trying soldiers in a disciplinary hearing or criminal procedure. However, it may be possible to change the current procedures (if necessary, via legislation) and improve the current practices in such a way as to reduce substantially the amount of financial and human resources necessary while simultaneously conducting proceedings more quickly. For example, a primary reason for the difficulty in extending the arrest of soldiers is the practice of bringing the soldier to the military tribunal in the judicial district of the unit in which he or she serves. For example, a soldier serving in the Northern Command who commits an offense (such as desertion) and is arrested by a military police officer in southern Israel, will be taken to the Northern Command tribunal which sits in Haifa, rather than to a tribunal close to the place of arrest. We might question whether this is the optimal practice, considering the resources it requires. Perhaps if this practice is changed, and the military improves the means of electronic communication available to legal officials to facilitate the transfer of legal materials relating to detainees, it will be possible to conserve the resources which, according to the respondents, would currently be necessary to reduce the period of detention. For example, after making arrests, couldn’t the military quickly bring detainees to a single military detention center in the center of Israel? Or, perhaps it could bring them to two or three centers, each of which would house the necessary number of military attorneys and judges who could quickly review requests to extend the period of arrest?

 

However, as long as the practices of arrest and extension of arrest do not infringe on the rights of soldiers, they are the concern of the military, and it is for the military to evaluate them and decide what to do. For purposes of our question, namely whether a 96-hour period of detention is required by the nature and character of military service, we will accept the military’s estimate of the resources currently necessary to reduce the period of detention and the possible results of the reduction.

 

38. The petitioners claim that the nature and character of military service poses no special considerations that require a detention period of 96 hours. They further claim that there is nothing in a shorter period to undermine the nature and character of military service.

 

This claim of the petitioners gives an unduly narrow interpretation to the nature and character of military service. The nature and character of military service include maintaining military discipline, cracking down on absenteeism, and the like. That is why the security limitation clause of section 9 of the Basic Law: Human Dignity and Liberty allows a soldier’s rights to be infringed if it is necessary, for example, to maintain military discipline, so long as the infringement is to an extent no greater than required to serve that purpose.

 

This is the very claim of the respondents, that reducing the period of detention, at this stage, is likely to undermine military discipline, exacerbate the phenomenon of absenteeism, and lead to other consequences destructive of the nature and character of military service.

 

39. However, the respondents do not present these negative consequences as inevitable. They acknowledge that they can be prevented. In order to prevent these consequences, they say, they need two things: time and resources. The question is therefore whether at this time, these needs justify not reducing the period of detention.

 

First, we will evaluate the need for resources. Can the need for resources obstruct a reduction in the period of detention? In principle, it is possible that the scope of the resources required can, as a practical matter, prevent a reduction in the period. Indeed, as the saying goes [under the system of assigning a numerical value to the letters in Hebrew words – trans.], the gap between “desirable” and “feasible” equals “money.”

 

The respondents submitted to the Court an itemization of the resources necessary to reduce the period of detention. Para. 36, supra. These resources, while in no way negligible, are not beyond the means of the military. We must compare the scope of the necessary resources (assuming they cannot be reduced) with the scope of the infringement on the soldiers’ rights to personal liberty. Each year, military police officers arrest approximately 10,000 soldiers (mostly for the offense of desertion). What tips the scales? The answer primarily depends on the relative weight of the liberty and the resources. What, then, is that relative weight? That question puts Israeli society to the test: society is judged, among other things, according to the relative weight it accords to personal liberty. That weight should be expressed not just in lofty declarations and not just in law books, but also in the budget ledger. Protecting human rights generally has a cost. Society should be prepared to pay a reasonable price for protecting human rights. As Justice Dorner held in CrimFH Ganimat v. State of Israel [16] at 645, “A basic right, by its very nature, imposes a social cost … preserving basic human rights is not just an individual issue but rather the concern of society as a whole, and it determines the character of society.” See also HC 5304/92 Perach 1992 Aid to Victims of Laws and Ordinances for a Different Israel –Nonprofit v. Justice Minister [17] at 759; CrimApp 6654/93 Binkin v. State of Israel [18] at 295; HC 4541/94 Miller v. Defense Minister [19] at 113, 122; APP 4463, supra [7] at 169-70. See also Barak, supra [21] at 528.

 

Considering the special weight accorded to reducing the infringement on the personal liberty of soldiers, the price that must be paid in human and financial resources to reduce the existing period of detention appears to be reasonable. This would hold, a fortiori, if additional inquiries reveal that it is possible (and this seems only logical) to change the system and practices concerning the arrest of soldiers, such that the price will go down. In any event, this price is an insufficient reason for violating the personal liberty of so many soldiers, beyond the extent required by the nature and character of military service.

 

Indeed, reducing the period of arrest by a civilian police officer from 48 hours to 24 hours required the police to make the appropriate adjustments, including expenditures of financial and human resources. That cost did not stop the legislature from reducing the period of arrest, out of its willingness to pay a price for the protection of individual liberty. See para. 28, supra. Justice Cheshin’s comments in HC 3648/97 Stameka v. Interior Minister [20] at 777 make this point (“our strict insistence on proportionality from the agency is directly proportional to the importance of the right infringed or the severity of the infringement on the right”). See also Justice Dorner’s comments in HC 1715/97 Chamber of Investment Managers in Israel v. Finance Minister [11] at 421-23.

 

It is worth noting that Professor Emmanuel Gross, who served as the President of the Military Tribunal for five years, takes the same position, as he wrote in Hebetim Chukatiim Shel Dinei Hamaatzar Biztava [27]. In his opinion (ch. 7, para. 1), the statutory provision permitting 96 hours of detention does not pass constitutional muster and should therefore be repealed and replaced with a shorter period. On this issue, he says, inter alia, that:

 

The State of Israel is a small state geographically, and therefore there is not and could not be a logistical obstacle, stemming from the character of military service, to bringing a solder before a judge sooner. Nor should we abide any other explanation, such as the excuse that an overworked military adjudication system is not currently prepared to handle the anticipated number of requests stemming from arrests. In my opinion, there is no justification for extending the detention of a soldier or civilian, without a judicial order, simply because the legal system is not prepared to handle it appropriately.

Id. at 459.

 

40. We still must address the military’s need for time in order to make the necessary preparations for reducing the period of detention, without undermining the discipline of the military and without exacerbating the phenomenon of absenteeism.

 

The respondents notified the Court (in September, 1997) that following the then-planned reduction in the maximum period of detention to 96 hours in July, 1998, they would need a year to evaluate the new arrangement. After making the evaluation, as 2000 was to draw near, they would propose an amendment to the statute “which will reduce the maximum initial period of arrest, before review by a judge, to 48 hours, so long as circumstances do not require an additional, brief delay of the amendment.” Para. 36.

 

Because the military itself recognized the desirability and feasibility of reducing the period of arrest, it had substantial time to prepare for reducing the period, throughout the proceedings in these petitions. So far, however, the respondents have not notified us of steps they have taken or are taking to reduce the period of time. In any event, we have not received a draft of a law proposing such reduction, although the end of the year is near, and the year 2000 is approaching. Apparently, the Court must rule on the issue.

 

Conclusion

 

41. The conclusion is that the amending statute setting 96 hours as the maximum period for which a military police officer may detain a soldier no longer meets the proportionality test. As of today, it infringes on a soldier’s personal liberty beyond the extent required by the nature and character of military service.

 

What remedy flows from this conclusion? This Court has repeatedly said that it exercises caution and restraint in declaring that a statutory provision violates the Basic Law: Human Dignity and Liberty and is therefore invalid. In this case, however, even the respondents acknowledge that the amending statute infringes on the personal liberty of soldiers beyond the extent required and desirable and that the statutorily-mandated period should be reduced to no more than 48 hours. The dispute between the petitioners and respondents appears to be over the resources necessary to achieve what they agree is desirable. Indeed, the resources required, according to the respondents’ calculations, are not of an unreasonable scope, and the respondents even agree that it is possible and desirable to invest in those resources. Considering the special significance of personal liberty, and considering that the statute at hand applies to the arrest of approximately 10,000 soldiers each year, the resources necessary are not so extensive as to prevent or even to delay amending the statute to reduce the period of time for which a military police officer can detain a soldier, to the point where the infringement on personal liberty no longer exceeds the extent required.

 

42. We therefore declare that the provision of the amending statute that sets the maximum period of detention at 96 hours infringes on the Basic Law: Human Dignity and Liberty, because it infringes on the right to personal liberty, as set out in section 5 of the Basic Law, to an extent greater than is required by the nature and character of military service. The provision is invalid.

 

43. What statutory provision should replace the invalid provision? In other words, how long can a military police officer detain a soldier, before bringing him to a military judge, without violating the soldier’s personal liberty to an extent greater than is required by the nature and character of the military service? In this case, the Court need not answer the question, because the respondents themselves concluded, in their submission to the Court, that the statute should set a maximum period of 48 hours. Does a period of 48 hours pass the proportionality test? The legislature has the authority to set the period of detention, and it has discretion to decide what period of time is required, so long as that period does not exceed the zone of proportionality. It would seem that if the legislature set a maximum period of 48 hours, as the respondents suggested, as of today, a good argument could be made that such period would not deviate from the zone of proportionality mandated by the Basic Law: Human Dignity and Liberty. At this point, the Court need not give a more binding answer.

 

44. As is well known, the Court’s declaration that a statute or statutory provision is invalid need not immediately take effect. It may be prospective, if circumstances justify it, in order to allow for the appropriate steps to be taken in order to prepare for the invalidity. See e.g. HC 1715/97 [11] at 417. The circumstances of this case warrant our deferring the effective date of the declaration of invalidity, in order to give the respondents enough time to propose the necessary bill to the Knesset, to give the Knesset enough time to debate the bill, and also to give the respondents enough time to prepare the military for the expected legislative changes. Therefore, the declaration of invalidity will not take effect until six months from the date of this decision. The respondents will pay a total of 10,000 NIS in costs to the petitioner in HC 6055/95 and a total of 10,000 NIS in costs to the petitioners in HC 7083/95.

 

President A. Barak

 

I agree.

 

Deputy President S. Levin

 

I agree.

 

Justice T. Or

 

I agree.

 

Justice E. Mazza

 

I agree.

 

Justice M. Cheshin

 

I agree.

 

Justice T. Strasberg-Cohen

 

I agree.

 

Justice D. Dorner

 

I agree.

 

Justice J. Türkel

 

I agree.

 

Justice D. Beinisch

 

I agree.

 

Justice Y. Kedmi

 

1.            Introduction

 

Regretfully, I cannot join the opinion of my colleague, Justice Zamir, even though, in principle, I agree with the theoretical analysis that underlies his decision. The reason for my dissent is, in my opinion, “procedural,” and it is two-fold: First, I see no justification in hearing these two petitions, because they are theoretical. Second, at this stage, I see no justification for intervening in the military’s years-long process of amending a statute, in an effort to equalize, to the extent possible, the period of detention with-no-judicial-order (hereinafter: arrest-without-order) to that adopted in the civilian context.

 

During the arguments in this case, the military made it clear that it is committed to reducing the period of arrest-without-order in the military context, and it even gave the year 2000 as a desirable target date. The amendment requested – and anticipated, once the military finishes preparing for it – will reduce the maximum period of arrest-without-order under section 237A of the Military Adjudication Law to 48 hours. The petitions before us are not only “theoretical,” they also fail to go beyond the period of time to which the military has already agreed. I therefore see no need for us to accelerate the legislative process, which is the practical result of our decision.

 

2.            Theoretical Petitions

 

As my colleague notes in his opinion, the two petitions at hand are theoretical petitions. As a general matter, this court “does not consider petitions … once they become theoretical or moot” because “judicial experience warns against establishing a precedent that would seem to hover in the air.”

 

The practical – the actual – implications of a court decision often serve as a standard or test of whether the decision is “correct” and grounded in reality. It is generally not a good idea to give up on this test of implementation, except under the most exceptional circumstances: an issue of special importance, on which our failure to rule would burden the public, that would justify turning the Court into an “academic” commentator, rather than the adjudicator of an actual dispute.

 

Turning to the case at hand – and acknowledging the special importance of the basic right to individual liberty and freedom of movement which it addresses – I do not think the two petitions submitted meet the exceptional criteria which would justify hearing arguments in the abstract and relinquishing the test of implementation from which we benefit when we resolve an actual problem.

 

I do not think that postponing discussion of the length of arrest-without-order in the military context to an actual case – if such case exists – will create “immunity from judicial review,” as my colleague states. The military authorities have declared that they recognize the need to harmonize these arrests in the military with civilian arrests. As a result, in practice, the system of review established by the Military Adjudication Law will be working on this issue. There is therefore no practical need for a judicial declaration of the invalidity of section 237A of the Law, before the military has completed its efforts on this front. Our intervention at this stage shows a lack of confidence in the military; accelerating legislation without the proper preparation will unnecessarily undermine the performance of the military’s system of law enforcement.

 

3.            Exercising the Authority to Invalidate

 

The Court does not evaluate acts of legislation on their merits, but rather interprets them according to their language. When interpretation of a piece of legislation reveals that it does not meet the criteria set out in a Basic Law, it must be invalidated. Invalidation of this sort stems from the intent of the legislature, which established criteria for the constitutionality of a statute and left the Court with the authority to conduct constitutional review by interpreting the statute.

 

The effort –from different directions – to present the Court as a “superlegislature” was doomed to fail from the outset. Legislative acts are the exclusive province of the legislature. The Court does not step into the shoes of the legislature but rather interprets its statutes. In this respect, the court is the “servant” of the legislature, implementing its instructions. This role does not change, even when judicial interpretation of a piece of legislation leads to its invalidity, because the statute did not meet the constitutional criteria established by the legislature itself. Interpretation of a law, at the end of the day, reflects the purpose for which it was enacted. Where the language of the statute does not properly express the purpose of its enactment and leads to its invalidity because it is “unconstitutional,” the legislature retains the authority to amend the statute and put things back to where they should be. This is generally the situation, including in cases of constitutional interpretation, whose result may lead to a law being invalidated because it is unconstitutional. The Court is the constitutional gatekeeper, while the legislature dictates the rules of gatekeeping.

 

Evaluating whether a piece of legislation withstands the constitutional test of proportionality is not a mechanical task. It requires a thoughtful and delicate balance of interests. Usually, the decision does not delineate a border “line” between “proportional” and “disproportional,” but rather a “zone of proportionality” and steps which exceed that zone. In my opinion, the Court should invalidate a statute solely because it is “disproportional” only when the statute clearly and unequivocally exceeds the zone of proportionality.

 

This court established its authority to invalidate a law in CA 6821/93 (Bank Mizrachi [6]). I see no reason to establish such authority for theoretical petitions. In any event, in my opinion, such authority should not be implemented, as a practical matter, when it is not necessary to solve an actual problem. The authority to invalidate is a unique and special power, stemming from the will of the legislature to ensure objective, external review of its statutes for compliance with the constitutional criteria it creates for itself. It is not a question of invalidating an “ultra vires” administrative decision, and we should resist any attempt to compare the two. The starting point for hearing any claim on the supposed “constitutional infirmity” of a statute is the “presumption of constitutionality”: the presumption that when the legislature passed the statute, it considered the requirements of the Basic Laws and ensured that the statute met them. Therefore, the Court can adopt a different position only if the legislature’s mistakes are clear, unequivocal, and cry out for correction. The less this power is used, the more confidence the legislature will have in the reviewer who wields it, pulling the rug from under table of those who criticize the reviewer and the review it exercises.

 

An amending statute that benefits – like a new statute – enjoys the “presumption of constitutionality,” which is based on the assumption that the legislature examined, evaluated, and concluded that the piece of legislation it creates meets the requirements of the “constitution.” The Court’s intervention in this issue tells the legislature that it erred. I personally doubt that the legislature erred in gradually bringing an old statute into conformity with the requirements of constitutional proportionality which are not required of an old statute. That is the case raised by the two petitions.

 

Because of this character of judicial review based on constitutionality, it should be used only in the most exceptional cases, when intervention is unavoidable. In this case, the military authorities recognized the need to continue amending the statute – to the extent possible, without undermining the performance of the military’s system of law enforcement – to bring it into conformity with the legislation governing civilian arrest-without-order. In this case, intervention is “avoidable.”

 

4.            An Aside

 

I would have chosen to deny the petitions on the grounds they are theoretical and do not, at this stage, justify conducting constitutional review of the latest amending provision of section 237A of the Military Adjudication Law. However, I see fit to briefly address four of the issues that my colleague discussed in his extensive and instructive opinion:

 

a.            Reviewing the Constitutionality of an Amending Statute

 

In my opinion, it is a mistake to exercise constitutional review over provisions of an unquestionably “beneficial” amending statute. Rather, for purposes of constitutional review, it should be treated as part of the original statute which it amends. Doing so will encourage the enactment of beneficial amending statutes. That is especially the case for a beneficial amending law that is part of a process of bringing an old statute into conformity with the constitutional requirements that came into effect only after the statute was enacted. Paving the way for constitutional review of a “beneficial” amending statute will deter the legislature from gradually amending old statutes, freezing them in their current form. In my opinion, it is in the public interest to leave room for “improving” burdensome provisions in an “old” statute, in order to bring it closer to provisions which meet the progressive standards of the Basic Law.

 

As a matter of interpretation, it will often be difficult to characterize an amending statute as “beneficial” or “non-beneficial.” The desire to avoid interpretive difficulties, however, cannot trump the public’s interest in a process of “beneficial revision” – generally, and particularly as a stage in the process of gradually amending “old” laws which the Basic Laws buttressed from constitutional review.

 

However, “exacerbating” infringements of rights protected by the Basic Laws is unacceptable. The same public interest that requires us to protect a “beneficial amendment,” in order to encourage such amendments, mandates “constitutional” intervention in cases of an “amendment-exacerbating-the infringement” of a basic right. Exacerbating the infringement reflects an “innovation,” and it contradicts the Basic Law. On the other hand, moderating the infringement reflects “progress,” is consistent with the Basic Laws, and advances the purpose of their enactment.

 

In the case at hand, the amending statute “benefits” in every possible aspect. In my opinion, that is reason enough to deny the petitions and leave the military authorities to continue their efforts to bring their practices into conformity with the rules for civilian arrests. It is consistent with my objection to subjecting a beneficial amending statute to the requirements of the Basic Laws. It also flows, in my opinion, from the restraint required of the Court on this issue. That would be true even if we accepted the principle that a beneficial statutory amendment – like an “exacerbating” statutory amendment – is subject to the constitutional conditions dictated by the Basic Laws.

 

b.            Limitation Clause: General and Military

 

I accept my colleague’s opinion that section 9 of the Basic Law: Human Dignity and Liberty includes the requirement of section 8, namely that a violating law must “befit … the values of the State of Israel” and be “enacted for a proper purpose,” although section 9 does not explicitly say so.

 

The difference between the two limitation clauses of sections 8 and 9 is the additional, binding requirement of section 9: “by the nature and character of the service.” In our case, it is service in the IDF. As my colleague pointed out in his opinion, “The proportionality of infringing on the rights of those serving in the security forces depends on the nature and character of the service, and it is therefore likely to be different from the proportionality of infringing on the rights of a person who is not serving in the security forces.”

 

In the military, the length of the arrest-without-order – designed to investigate the suspicion underlying the arrest, so that a decision over whether to extend the arrest can be made – is in large part dictated by a series of factors linked to “the nature and character of the service.” Among other factors, two stand out. The first is the interaction between the deployment of the military and the location of its legal institutions, in light of their jurisdiction over the soldier arrested. The military has a special interest in maintaining authority and jurisdiction within the different forces and according to the existing command structure. The second factor is the geographical distances that generally exist between the place of arrest and the location of witnesses who must be questioned as part of a preliminary investigation of the suspicions underlying the soldier’s arrest-without-order.

 

Reducing the period requires preparation and investment in resources. It may also require amendments to related legislation. Considering the nature and character of the service, it may become apparent that the ability to reduce the time period is limited, such that the end result will be different from its civilian counterpart. That is apparently the reason that the petitioner in HC 6055/95 limited his request to reducing the period of arrest-without-order to 48 hours, even though the civilian period had been shortened to 24 hours.

 

Indeed, as my colleague pointed out, a factor in determining the scope of the proportionality requirement is “the feasibility test.” The military declared its aspiration to attain a “reduced period” of 48 hours but requested time to prepare, including time to obtain the required budgetary resources. The military requested an “extension” in order to make the systematic changes that would “allow” it to reduce the period to 48 hours. Naturally, the “feasibility” test can be conducted only after the military has completed its preparations, and there is no claim that the IDF is dragging its heels.

 

c.             The Economic “Cost”: A Consideration of Proportionality

 

I personally think that the “economic cost” should not necessarily be disqualified as a consideration in determining what is proportional. I disagree with the rule that “proper” proportionality – as a conceptual standard – justifies and requires paying any price.

 

                If meeting the objective-conceptual, constitutional demands of proportionality puts a heavy burden on public economic resources, at the expense of other public interests, that “cost” cannot be ignored. It is one of the factors that delineate the zone of proportionality. In my opinion, we cannot rule out a situation in which the “economic cost” significantly influences where to draw the boundaries of the zone of proportionality.

 

                d. The Results of Invalidating a Beneficial Amending Statute

 

As the Bank Mizrachi [6] decision stated, invalidating a beneficial amending statute has the effect of “returning the situation to the status quo.” In other words, the constitutional situation “will worsen,” despite the legislature’s attempt to benefit. We have no real guarantee that, once we invalidate an amending statute that only “partially” benefits, the legislature will complete the “benefit” by bringing the old statute into complete conformity with the requirements of the Basic Laws. Nor can we require the legislature to do so, because provisions of an “old” statute are protected by the Basic Law: Human Dignity and Freedom.

 

                Indeed, from a public interest standpoint, invalidating a provision of a beneficial amending statute will encourage a public movement to press for amending legislation that immediately – not gradually – conforms to the requirements of the Basic Laws. To me, it is clear that invalidating a beneficial amending statute does more harm than good to the public interest. In any event, the Court should take these consequences into consideration before intervening to invalidate beneficial amending legislation.

 

5.            Conclusion

 

In conclusion, if my opinion were to win a majority, we would not intervene to invalidate a beneficial amending provision, in a situation in which the relevant executive authority has declared its intention to continue a gradual path of bringing the statute into compliance with the requirements of the Basic Laws. This is especially true where, as is the case here, the executive authority has thus far been true to its word.

 

                Exercising our authority to invalidate in this case is likely to undermine the “uniqueness” and “specialness” of that authority, which is expressed, in part, by limiting its exercise to rare circumstances when using it is “unavoidable.” It is likely to put that authority on par with the authority to invalidate an ultra vires administrative provision. I personally would avoid that result, as much as possible.

 

Decided by a majority, as per the opinion of Justice Zamir, with Justice Kedmi dissenting.

 

October 14, 1999.

HC 3267/97

HC 715/98

1.  Amnon  Rubinstein       

2.  Chaim Oron

3.  Barak Katz

4.  Yossi Nechushtan

5.  Baruch Olshak

6.  Alon Porat

7.  Ilan Freedman                                                      HC 3267/97   

 

 

1.   Major (Res.) Yehuda Ressler

2.  New Student Association of Tel-Aviv University

3.  15,604 Students of Israeli Institutes of Higher Education

4.  1,100 Students of Israeli High Schools   

5.  Major (Res.) Ehud Peleg                                     HC 715/98     

 

v.

Minister of Defense

The Supreme Court Sitting as the High Court of Justice

[December 9, 1998]

President A. Barak, Deputy President S. Levin, Justices T. Or,
E. Mazza, M. Cheshin, I. Zamir, T. Strasberg-Cohen, D. Dorner, J. Türkel, D. Beinisch, I. Englard

Petition to the Supreme Court Sitting as the High Court of Justice

 

Facts: The petitioners, Members of Knesset, reserve military officers, and student organizations, challenged a practice in which the Minister of Defense routinely grants deferrals of and exemptions from required military service to ultra-Orthodox Jewish Yeshiva students who engage in full-time religious study. They claim the exemptions, granted to an ever-growing percentage of enlistment candidates (8% in the year 1997), violate the principle of equality, exceed the zone of reasonableness, and are disproportionate.  They further claim that the Minister of Defense lacks the authority to regulate the matter, and that it must be done so via legislation.

 

Held:  The Knesset, not the executive branch, has the authority to make fundamental decisions on fundamental issues that divide society. The routine granting of exemptions and deferrals to a large group of people is such a decision; it is a primary arrangement that must be addressed through primary legislation, not administrative regulations. Although the Court has upheld the administrative arrangement in the past, relying on a statutory provision authorizing the Defense Minister to grant exemptions "for other reasons," the growing number of students covered by the exemption has pushed it beyond his authority.. At a certain point, quantity becomes quality. The Defense Minister's current practice of granting deferrals and exemptions is invalid. The Court's declaration of invalidity will take effect 12 months from the date of the decision, in order to give the Knesset time to address the matter.

 

Israeli Supreme Court Cases Cited

  

[1]     HC 910/98 Ressler v. Defense Minister, 42(2) IsrSC 441.

[2]     HC 337/81 Miterani v. Minister of Transportation, 37(3) IsrSC 337.

[3]     HC 266/68 Petach Tikvah Municipality v. Minister of Agriculture, 22(2) IsrSC 824.

[4]     CA 524/88 “Pri Ha’Emek” Cooperative Agricultural Society Ltd. v. Sdeh Ya’akov Workers’ Village of Hapoel Mizrachi, Agricultural Cooperative Settlement, 45(4) IsrSC 529. 

[5]     HC 2740/96 Shansi v. Diamond Comptroller 51(4) IsrSC 491.

[6]     HC 5016/96 Horev v. Minister of Transportation, 51(4) IsrSC 1{[1997] IsrL 149}.

[7]     CrimA 53/54 Eshed, Temporary Transportation Center v. Attorney General, 8 IsrSC 785.

[8]     HC 3806/93 Manning v. Minister of Justice, 47(3) IsrSC 420.

[9]     CA 825/88 Association of Israeli Soccer Players v. Israeli Soccer Association, 45(5) IsrSC 89.

[10]   HC 144/50 Sheave v. Defense Minister, 5 IsrSC 399.

[11]   HC 113/52 Zachs v. Minister of Trade and Industry, 6 IsrSC 696.

[12]   HC 7351/95 Nevuani v. Minister of Religious Affairs, 50(4) IsrSC 89.

[13]   HC 2994/90 Poraz v. Government of Israel, 44 (3) IsrSC317.

[14]   HC 98/54 Lazarovitz v. Food Supervisor of Jerusalem, 10 IsrSC 40.

[15]   HC 3872/93 Mitral Ltd. v. Prime Minister and Minister of Religious Affairs, 47(5) IsrSC 485.

[16]   CA 6821/93 United Bank Hamizrachi Ltd. v. Migdal Cooperative Village, 49(4) IsrSC 221.

[17]   HC 693/91 Efrat v. Director of Population Registrar of the Ministry of the Interior, 47(1) IsrSC 749.

[18]   HC 953/87 Poraz v. Mayor of Tel Aviv-Jaffa, 42(2) IsrSC 309.

[19]   HC 122/54 Aksel v. Mayor, Councilors and Residents of the Municipality of Netanya, 8  IsrSC 1524.

[20]   HC 200/57 Bronstein v. Beit Shemesh Local Council, 12 IsrSC 264. 

[21]   HC 124/70 Shemesh v. Companies Registrar, 25(1) IsrSC 505.

[22]   HC 144/72 Halipi v. Minister of Justice, 27(1) IsrSC 719.

[23]   HC 333/85 Aviel v. Minister of Labor and Welfare, 45(4) IsrSC 581.

[24]   CA 723/74 “Ha’aretz” Newspaper Publishing Co. v. Israel Electric Co., 31(3) IsrSC 281.

[25]   FH 9/77 Israel Electric Co. v. “Ha’aretz” Newspaper Publishing Co., 32(2) IsrSC 337.

[26]   HC 301/63 Streit v. Israeli Chief Rabbinate, 18(1) IsrSC 598.

[27]   HC 249/64 Baruch v. Customs and Duty Supervisor, 19(1) IsrSC 486.

[28]   HC 3914/92 Lev v. Tel-Aviv-Jaffa Regional Rabbinical Court, 48(2) IsrSC 491.

[29]   HC 453/94 Israeli Women’s Network v. Government of Israel, 48(5) IsrSC 501.

[30]   HC 5394/92 Hopert v. “Yad Vashem," Holocaust Memorial Authority, 48(3) IsrSC 353.

[31]   HC 726/94 Klal Insurance Company v. Finance Minister, 48(5) IsrSC 441.

[32]   HC 1255/94 “Bezeq," Israeli Communications Company v. Communications Minister, 49(3) IsrSC 661.

[33]   HC 5319/97 Cogan v. Military Attorney General, 51(5) IsrSC 67.

[34]   HC 1064/94 Computest Rishon LeTzion (1986) Ltd. v. Transport Minister, 49(4) IsrSC 808.

[35]   CA 239/92 “Egged” Transportation Cooperative Society v. Mashiach, 48(2) IsrSC 66.

[36]   HC 4541/94 Miller v. Defense Minister, 49(4) IsrSC 94.

[37]   CrimApp 537/95 Ganimat v. State of Israel, 49 (3) IsrSC 355.

[38]   HC 4562/92 Zandberg v. Broadcasting Authority, 50(2) IsrSC 793.

[39]   HC 7111/95 Center of Local Government v. Speaker of Knesset, 50(3) IsrSC485.

[40]   HC 3434/96 Hopfnung v. Speaker of Knesset, 50(3) IsrSC 57.

[41]   HC 5503/94 Segal v. Speaker of Knesset, 51(4) IsrSC 529.

[42]   HC 450/97 Tenufa Manpower and Maintenance Services, Ltd. v. Minister of Labor and Welfare, 52 (2) IsrSC 433.

[43]   FH 2/82 Ressler v. Defense Minister, 36(1) IsrSC 708.

[44]   HC 98/69 Bergman v. Finance Minister, 23(1) IsrSC 693.

[45]   HC 114/78 Borkan v. Finance Minister, 32(2) IsrSC 800.

[46]   EA 2/88 Ben-Shalom v. Central Elections Committee for the Twelfth Knesset, 43(4) IsrSC 221. 

[47]   HC 153/87 Shakdiel v. Minister of Religious Affairs, 42(2) IsrSC 221.

[48]   HC 355/79 Katalan v. Prison Authority, 34(3) IsrSC 294.

[49]   HC 1715/97 Investment Managers’ Bureau v. Finance Minister, 51(4) 367.

[50]   HC 40/70 Becker v. Defense Minister, 24(1) IsrSC 238.

[51]   HC 448/81 Ressler v. Defense Minister, 36(1) IsrSC 81.

[52]   HC 179/82 Ressler v. Defense Minister, 36(4) IsrSC 421.

[53]   LCrim 1127/93 State of Israel v. Klein, 48(3) IsrSC 485.

American Cases Cited

[54]   Mistretta v. United States, 488 U.S. 361 (1989).

[55]   Industrial Union Dept. v.  American Petrol Inst., 448 U.S. 607 (1980).

[56]   Rapp v. Carey, 44 N.Y. 2d 157 (1976).

[57]   United States v. Robel, 389 U.S. 258 (1967).

[58]   American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490 (1981).

[59]   Myers v. United States, 272 U.S. 52 (1926).

[60]   Kent v. Dulles,  357 U.S. 116 (1958).

[61]   Shuttlesworth v. Birmingham, 394 U.S. 147 (1969).

[62]   Wayman v. Southard, 23 U.S. 1 (1825)..

[63]   Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936).

International Cases Cited

[64]   The Sunday Times  v. The United Kingdom (1979) 2 E.H.R.R. 245.

[65]   Malone v. United Kingdom (1984) 7 E.H.R.R. 14. 

[66]   Leander v. Sweden (1987) 9 E.H.R.R. 433.

German Cases Cited

[67]   8 BVerfGE 274 (1958).

[68]   33 BVerfGE 125 (1972).

[69]   34 BVerfGE 52 (1972).

[70]  49 BVerfGE 39 (1978).

Canadian Cases Cited

[71]   Irwin Toy Ltd. v. Quebec [1989] 1 S.C.R. 927.

Israeli Books Cited

[72]   2 A. Rubinstein, Hamishpat Haconstitutzioni shel Midinat Yisrael [Israeli Constitutional Law] (5th ed. 1996). 

[73]   1 B. Bracha  Mishpat Minhali [Administrative Law] (1987).  

[74]   1 I. Zamir, Hasamchut Haminhalit [Administrative Power] (1996).

[75]   Y. Dotan Hanchayot Minhaliot [Administrative Guidelines] (1996).

[76]   2 A. Barak, Parshanut Bimishpat [Interpretation in Law] (1993).

 [77]  1 B. Aktzin, Torat Hamishtarim [Theories of Government[ (2 ed. 1968).

 

Israeli Articles Cited

[78]   I. Zamir, Chakika Minhalit: Michir Hayieelut [Administrative Legislation: Price of Efficiency], 4 Mishpatim 63 (1973).

[79]   Y.H. Klinghoffer, Shilton Hachok Vichakikat Mishneh [Rule of Law and Administrative Regulations], in Sefer Klinghoffer al Hamishpat Hatzibori 105 (I. Zamir ed., 1993).

[80]   B. Bracha, Chakikat Mishneh [Administrative Regulations], 1 Mishpat U’Mimshal 411 (1993).

[81]   B. Bracha, Likrat Pikuach Parliamentary al Chakikat Mishneh [Parliamentary Supervision of Administrative Regulations], 7 Iyunei Mishpat 390 (1979-1980).

[82]   A. Barak, Pikuah Batei Hamishpat al Tichikat Mishneh [Judicial Supervision Administrative Regulations], 21 Hapraklit  (1965) 463.

[83]   C. Klein, Al Hahagdara Hamishpatit shel Hamishtar Haparliamentary vi’al Haparliamentarism Hayisraeli [Legal Definition of Parliamentary Regime], 5 Mishpatim 308 (1973-1974).

[84]   I. Zamir, Hanchayot Hayoetz Hamishpati Lamemshala – Chakikat Mishneh, Nohel Vihanchaya [Attorney General Guidelines], 11 Iyunei Mishpat 339 (1986-1987).

[85]   A. Barak, “Subordinate Legislation” 16 Scripta Hierosolymitana  (1966) 219.

[86]   F. Raday, Chukatizatzia shel Dinei Haavodah [Constitutionalization of Labor Law], 4 Shnaton Mishpat Haavodah 151 (1994).

[87]   R. Ben-Israel, Hashlachot Chukei Hayesod al Mishpat Haavodah Vimaarechet Yachasei Haavodah [Implications of Basic Laws for Labor Law], 4 Shnaton Mishpat Haavodah 27 (1994). 

[88]   A. Yuran, Hamahapacha Hachukatit Bimisoi Biyisrael [Constitutional Revolution of Tax], 23 Mishpatim 55 (1994).

[89]   A. Barak, Hakonstitutzionilazatzia shel Maarechet Hamishpat Biakvut Chukei Hayesod Vihashlachoteha al Hamishpat Haplili [Constitutionalization of the Legal System – Criminal Law], 13 Mechkarei Mishpat 5 (1996-1997).

Foreign Books Cited

[90]   B. Schwartz, Administrative Law (3rd ed. 1991).

[91]   D.P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2d ed. 1997).

[92]   D. Schoenbrod, Power Without Responsibility (1993).

[93]   L.H. Tribe, American Constitutional Law (2d ed. 1988)

[94]   D.P. Currie, The Constitution of the Federal Republic of Germany (1994).

[95]   P.W. Hogg, Constitutional Law of Canada (3rd ed. 1992).

[96]   A.C. Aman and W.T. Mayton, Administrative Law (1993).

 

Foreign Articles Cited

[97]   U. Kischel, Delegation of Legislative Power to Agencies: A Comparative Analysis of United States and German Law, 46 Admin. L. Rev. 213 (1994).

 

Miscellaneous

[98]   Standing Committee’s Report for Renewed Examination of Enlistment Exemption for Yeshiva Students (1988).

[99]   State Comptroller, 39th Annual Report – 1988 and Accounts for Fiscal Year of 1987 (1989).

[100]    State Comptroller, 48th Annual Report – 1997 and Accounts for Fiscal Year of  1996 (1998).

 

Jewish Law Sources Cited

[a]  Tractate Sabbath, 132:1.

[b]  Jerusalem Talmud, Tractate Yoma, 8:5.

 

 

JUDGMENT

President A. Barak

This court examined the deferral of military service for Yeshiva [religious seminary – ed.] students for whom “Torah is their calling” [who engage in full-time religious study – trans.] in HC 910/86 Ressler v. Minister of Defense (hereinafter- Ressler [1]). According to the statistics presented to the Court in Ressler [1] of those who enlisted in the I.D.F. in 1987, 1,674 Yeshiva students had their military service deferred (constituting 5.4% of the total). The total number of students included in the arrangement for the deferral of military service in that year was 17,017. Against this backdrop Ressler [1] held that the Minister of Defense was authorized to defer the drafting of Yeshiva students and that his exercise of discretion to that effect was within the zone of reasonableness.  In my opinion in that case, I stated:

... ultimately, the number of Yeshiva students who receive deferrals is significant. There is a limit, which no reasonable Minister of Defense is authorized to exceed. Quantity becomes quality.

Id. at 505.

 

Ten years have passed since that case was decided. The number of Yeshiva students included in the deferral of service arrangement has risen constantly.  According to the statistics presented to us, in 1997, about 8% of all the enlistees eligible for service were granted a deferral, based on their being full-time Yeshiva students.  The total number of Yeshiva students included in the arrangement that year was 28,772 (as of August 1997). The arrangement’s social ramifications are of gargantuan proportions. Indeed, increasingly, feelings of inequality are tearing the fabric of Israeli society. Moreover, some of the Yeshiva students being granted deferrals – namely, those who cannot successfully adjust to the full-time study of Torah – find themselves in an untenable predicament; they do not study for they are unsuited for it; they do not work, for fear of exposing their failure to meet the conditions of the arrangement. The result is an ongoing breach of the law, inhibited personal growth and harm to the work force. The issue before us today is whether or not these and other ramifications cross the line beyond which “quantity becomes quality." Does the complex situation in which Israeli society finds itself mean that this entire issue can no longer be regulated via the service deferral granted by the Minister of Defense? Does the situation presented before us today not warrant the conclusion that this entire matter ought to be resolved by Knesset legislation, capable of addressing the problem in all its complexity? These are the painstaking questions with which we are confronted today.  

The Facts

1.    The history of granting deferral of military service to full-time Yeshiva students (students for whom “Torah is their calling”) is in truth the history of the State of Israel itself. We dwelt upon this in Ressler [1] at 449-51. It was the first Defense Minister, Mr. David Ben-Gurion, who ordered that the enlistment of full-time Yeshiva students be deferred.  At the time, there was a fixed quota of Yeshiva students whose service was deferred, not exceeding about four hundred (400) Yeshiva students a year. This was the number of deferrals granted until 1970. From that year onwards the arrangement was altered to remove the limitation on the number of deferrals that could be granted. Hence, the number of Yeshiva students granted deferrals increased. In 1975, a yearly quota of 800 was established for the number of Yeshiva students who would obtain service deferral. Following the coalition agreement of 1977, the quota was abolished altogether, increasing the number of potential service deferrers.  These deferrers came to include the newly penitent, teachers in the independent educational system, and graduates of religious technical schools.  The conditions for authorizing a deferral were similarly relaxed, as were the requirements which the deferrers had to meet. For example, Yeshiva students over the age of thirty were allowed to give lessons in Judaic studies and receive modest scholarships in consideration thereof. It would seem that at that time there was also a change in the rationale underlying the arrangement. The arrangement originated as a result of the destruction of the European Yeshivas during the Holocaust and the desire to avoid having to close Yeshivas in Israel pursuant to the enlistment of their students. Today, this reasoning no longer holds.  Israeli Yeshivas are thriving and there is no real danger that drafting Yeshiva students within any particular framework would lead to the disappearance of these institutions. The arrangement today is, on the one hand, based on the desire to enable Yeshiva students to continue studying, while on the other hand, there is the perception that the effectiveness of these students’ military service is questionable, due to the difficulties they would encounter in adjusting to the Military and the difficulties that the Military would have adjusting to them.

2.    The arrangement introduced by David Ben-Gurion and adopted by all subsequent defense ministers, sparked broad public controversy.  The Knesset debated it on a number of occasions. See Ressler [1] at 450. In effect, numerous efforts were made to petition the Supreme Court with regard to this matter. Id. at 453. These efforts failed, given the Supreme Court’s original view that the petitioners had no legal standing and that the issue itself was non-justiciable. The Supreme Court subsequently changed its position in Ressler [1] noting that the petitioner had standing before the Court and that his petition was in fact justiciable (both normatively and institutionally). Regarding the petition itself, the Court held that the deferral of military service for full-time Yeshiva students was within the Defense Minister’s authority and did not exceed the zone of reasonableness.  Even so, it held that “if the number of those whose service is deferred due to Torah studies continues to increase, to the extent of it comprising a significant portion of candidates for military service, thereby harming Israel’s security, there will definitely come a point at which we will say that the decision to defer enlistment is unreasonable and must be struck down.” Ressler [1] at 512. The Court emphasized that the Defense Minister’s discretion was ongoing, as was the obligation to exercise it. President Shamgar stressed this point, noting:

…this matter cannot be examined exclusively on the basis of its external manifestation, in light of its development since the establishment of the State to the present time; it must equally be examined according to its ongoing nature, its impact and its attendant consequences, year in and year out, for the foreseeable future. This means that our ruling today regarding the arrangement’s legality, after subjecting this arrangement to the relevant judicial review for the first time, does not exempt the Executive Branch from the obligation of periodically examining and reexamining the implications of granting exemptions to growing numbers of men of military age ... thus, we are not speaking of fixed data but rather of facts that change from one year to the next.  This means that the empowered authority is obliged annually to reassess the data and to consider its connection with other background factors.

Id. at 524-25.

 

3.    Public discussion of the issue of deferring the enlistment of full-time Yeshiva students persisted after the Ressler [1] case was decided. Immediately thereafter (August 1988), a report of the Knesset sub-committee of the Foreign Affairs and Security Committee was published.  The committee opined that the arrangement regarding the deferred enlistment of Yeshiva students must be changed by establishing frameworks which combined military service with the study of Torah. Particular attention was given to the model of the “Hesder Yeshivas” [combined religious study and military training – ed.].  It further recommended exempting 200 outstanding students from military service. The other Yeshiva students would be enlisted upon reaching the age of 24. They would undergo a short period of training and a shortened service period of one year. In the sub-committee’s view, the Knesset was obliged to adopt a definite position on the issue of service deferral for Yeshiva students. The sub-committee called upon the Defense Minister to “promptly initiate a bill for regulating the military service of Yeshiva students," in the spirit of the committee’s conclusions and recommendation. Report of the Standing Committee for the Renewed Examination of the Enlistment Exemption for Yeshiva Students [98] at 42.

4.    The State Comptroller’s Annual Report (No. 39) (1988 and Accounts for the 1987 Fiscal Year) [99] addressed the conditions for deferring Yeshiva students’ military service. The examination indicates the lack of adequate supervision as to whether the arrangement’s conditions are properly complied with. Indeed, there is no ongoing, comprehensive, and organized data regarding Yeshiva students who transfer from one Yeshiva to another, nor is there efficient monitoring regarding whether the Yeshiva students benefiting from the arrangement are not in fact engaged in other remunerative work. Furthermore, there is insufficient military enforcement of the students’ obligation to report at specific times for renewal of their service deferral. According to the report, there was no justification for leniency regarding contempt for the requirements of timely reporting for service deferral. Annual Report No. 39 [99] at 908.  The report adopted the view that the subject ought to be re-examined and “debated in the Knesset, in recognition of its immense public importance.” Id. In April of 1991, the Committee on Matters Related to the State Comptroller discussed the Report, criticizing the defects revealed in the Enlistment Board’s supervision of the maintenance of the enlistment deferral arrangement for Yeshiva students. It was the Committee's opinion that, “given the State of Israel’s critical security needs and the heavy burden born by its citizens in the area of military service, there is no justification for a situation in which tens of thousands of citizens receive prolonged deferrals of military service, the practical meaning of which, in most cases, is a total exemption from military service."

5.    On July 24th, 1992 the Defense Minister appointed a committee to examine the deferral of military service for full-time Yeshiva students.  The committee, chaired by the Defense Minister’s assistant and Director General of the Ministry of Defense, Mr. Haim Yisraeli, was asked to examine the procedures, criteria and manner of supervising the arrangement for the enlistment deferral of full-time Yeshiva students. The committee, which submitted recommendations to the Defense Minister in August of 1995, suggested methods for supervising the arrangement’s proper enforcement. Inter alia, the Yisraeli committee suggested shortening the deferral period for Yeshiva students to six months, until they reach the age of 25. This would mean that they would have to report to the enlistment bureau twice a year. It further recommended establishing a permanent formula, according to which the heads of the Yeshivas would report to the I.D.F. twice a year, in addition to a procedure for revoking recognition of those Yeshivas which fail to comply with the conditions of the arrangement. Moreover, the committee suggested improving the enforcement measures by conveying all the relevant data to the police and the State Attorney’s office, who would deal with students who violate the rules of the arrangement.

6.    In the Annual Report (No.48) (State Comptroller - 48th Annual Report for 1997 and Accounts for 1996 Fiscal Year) [100], the State Comptroller once again addressed the arrangements for enlistment deferral of Yeshiva Students into the Defense Service. At that time, the number of Yeshiva students whose enlistment had been deferred was 28,772, which constituted 7.4% of the total number of enlistees in 1996.  The report emphasized that there was no comprehensive and continuous supervision of compliance with the requirements established for full-time Torah students.  According to the State Comptroller, so long as this situation prevailed, it would be impossible to accurately establish whether there were individuals purporting to be full-time students who were in fact not studying at all, and what proportion of the deferrees they constituted. All that could be determined was that, as of March 1997, of all the Yeshiva students whose enlistment had been deferred (28,547), only 2.8% of them enlisted in the I.D.F in 1996. Furthermore, there had not been an attempt to ascertain how many full-time Yeshiva students, barred by the arrangement from working or pursuing any occupation save learning, were in fact not working or earning money.  The Report also emphasized that the Defense establishment had failed to conduct any systematic ongoing discussion regarding the steady increase of eligible enlistees who were full-time Yeshiva Students. Prior to concluding, the Report noted that “in view of the findings of the follow-up report and [Israel’s] present security needs ... the summary of the previous report has not merely retained its validity but has been bolstered ... and these findings strengthen the recommendation to conduct an in-depth inquiry into the subject of enlistment deferral for full-time Yeshiva students.” Id. [100] at 1011.

7.    The Knesset plenary discussed the enlistment deferral for full-time Yeshiva students on a number of occasions. On March 11th, 1992, the Knesset debated eight private bills proposed by members for amending the Defense Service (Amendment) Law [Consolidated Version] 1986. The bills attempted to limit the duration of the deferral that the Defense Minister was empowered to grant, as well as the number of those being granted deferrals.  There was also a bill to adopt a service framework for full-time Yeshiva students, similar to that of the Hesder students. All of these bills were stricken from the agenda. In November of 1993, the Knesset debated a bill to amend the Basic Law: The Knesset. The bill made the right to vote and be elected conditional upon having fulfilled the duty of national service, while restricting to a minimum those Yeshiva students who would be exempted from military service.  This bill, too, was stricken from the agenda.  Eight private bills were submitted before the fourteenth Knesset regarding the issue of granting deferrals to full-time Yeshiva students. The bills attempted to set quotas on the number of those whose service would be deferred, place restrictions on the duration of the deferral, and impose an obligation of full reserve duty for those whose service had been deferred. Three of these bills were stricken from the Knesset’s agenda.

The Current Situation

8.    As it now stands, deferrals of defense service are granted to full-time Yeshiva students (those for whom “Torah is their calling”). Joining this category is contingent on the enlistee having studied continuously in a Yeshiva High School, be it regular or vocational, since the age of 16. This category is also open to those who studied in a religious high school and whose matriculation exams included Talmud at the level of five units. The category of full-time Yeshiva students also includes the newly religious. The deferral is contingent on the following condition: anyone included in the category of “full-time Yeshiva student” cannot be engaged in any form of work or occupation that is ordinarily remunerative. An exception to this rule was recognized for Yeshiva students employed in a formal role as teachers in the schools of the various streams of the Ultra-Orthodox educational system; they are entitled to remuneration. The same applies to Yeshiva students over the age of 29 who teach children through the age of 13 in parochial primary schools.  The final category also includes teachers of at least 29 years of age who teach in Yeshivas for students between the ages of 13 and 17 or in Yeshivas for students 18 years and older. When the service deferral is terminated, the candidate for military duty who is a full-time Yeshiva student receives an exemption if he is at least 35 and has four children, or upon reaching the age of 41. The most recent data indicates that there are presently over 28,000 enlistees from among the service candidates of all of the years whose enlistment is currently being deferred. This data indicates a rise in the extent of the enlistment deferral.  Hence, in 1995, the number of Yeshiva students whose enlistment had been deferred stood at 26,262 - in 1996 (according to the data as of March 31st, 1997) there were 28,547 persons. In 1995 the percentage of those joining the arrangement was about 6.4% out of the entire year of enlistment candidates; in 1996 the percentage was 7.4%; and in 1997 it stood at 8% of the enlistment candidates of that year.

9.    A Yeshiva student registered for military service and included under the category of “full-time Yeshiva student," who no longer qualifies for this particular exemption, whether of his own accord or pursuant to the enlistment officer’s decision, will have the duration of his military service determined in accordance with his age and family situation. Thus, the number of those included in the arrangement is not static. During the entire year there is a constant ebb and flow of those entering and leaving the above category. Out of those born in 1973, for instance, in 1991 (when they reached enlistment age), the percentage of those included in the arrangement stood at 6%. For those born in 1973 and reaching the age of about 21 (in 1994) the number of those included in the arrangement stood at 4.8%.

10.  According to the current arrangement, the enlistment bureau commander approves the granting of full-time Yeshiva student status to those candidates who have, at one time, studied at one of the Yeshivas recognized by the Committee of Yeshivas in Israel. Acceptance is conditional on having completed the enlistment procedures and having declared oneself a “full-time Yeshiva student” who is not engaged in any work or occupation, remunerative or not, save Yeshiva studies. Thus, a candidate for defense service undertakes that if at any time during the period covered by the service deferral, any of the qualifying conditions is not fulfilled, he will immediately report to the enlistment bureau and give notice thereof. He also undertakes to notify the enlistment bureau if ever he transfers to study in another Yeshiva. In addition, the head of the Yeshiva in which the candidate is purporting to study must sign a declaration of his own on the back of the student’s declaration form (which must itself be renewed on a yearly basis) in which he undertakes to notify the secretary of the Committee for Yeshivas in Israel within thirty days if the student in question terminates his studies during the course of the year.  The secretary of the Committee for Yeshivas, for his part, must confirm that the candidate fulfills the requirements for being included in the category of “full-time Yeshiva students” and must further declare that, “if we receive notification that the aforementioned has discontinued his studies in the Yeshiva, during the course of the year, I undertake to immediately inform the commander of the enlistment bureau." The candidate for defense service receives an annual enlistment deferral. On an annual basis, he is required to renew his status and apply for an additional year of deferred service. The candidate is required to produce a valid current certification from both the head of the Yeshiva and the secretary of the Committee of Yeshivas attesting to his continued studies and must once again undertake to comply with all the requisite conditions for full-time Yeshiva students.

The Petitions

11.  Before us are two petitions. The first is the petition submitted by Member of Knesset Amnon Rubinstein, Member of Knesset Chaim Oron, and others (HC 3267/97). The second is that of Major Ressler (Res.) et al. (HC 715/98).  The first petition asks that the Defense Minister to show cause why he should not establish a maximum reasonable quota of Yeshiva students who are granted a deferral of military service. The second petition asks the Minister to show cause why he does not lack the authority to defer Yeshiva students’ enlistment into regular military service. Both petitions describe the situation regarding the deferral of service for full-time Yeshiva students in the present and the past. Both claim that the existing arrangement violates the principle of equality, deviates from the boundaries of reasonableness, and is disproportionate.  Moreover, the second petition claims that the Minister of Defense does not have the authority to regulate the matter through administrative regulations and that the entire issue ought to be regulated through legislation.

12.  In his response, the Defense Minister noted that he had re-examined the legal framework established in Ressler [1] respecting the exercise of his discretion in deferring full-time Yeshiva students’ service. He opined that the considerations that had motivated his predecessors in exercising their discretion were still valid today, highlighting the following considerations, cited in Ressler [1] which formed the basis for the Defense Minister’s response in that case:

a.  The fact that the Yeshiva students lead an ultra-Orthodox lifestyle, which makes induction into the military difficult, causing them serious problems in adapting to a society and culture, which are foreign to them, and creating difficulties in respecting strict observance of religious precepts. Thus, for example, the ultra-Orthodox do not recognize the Chief Rabbinate of Israel’s certification that food is kosher, while they themselves disagree over recognition of a number of special kosher certifications by various rabbis. Similarly, other daily practices of theirs are likely to give rise to many difficulties in the I.D.F.’s ability to integrate them.

 b. The fact that the entire effectiveness of their military service is placed into doubt, given the psychological difficulties they experience as a result of neglecting their religious studies, and given their special education and lifestyle.

 c. No one can foresee whether the enlistment of thousands of Yeshiva students, who view their enlistment in the military as a blow to the foundations of their faith, which holds that the study of Torah takes precedence over the obligation to serve in the military, will add to the I.D.F.’s fighting power or, heaven forbid, impair its ability. It is by no means certain that enlisting these individuals, even if it serves to increase the military’s power numerically, will not have far-reaching implications for the State's internal and external strength. See HC 448/81 Ressler v. Miister of Defense 36(1) IsrSC 81, 86.

 d. Respect for the spiritual and historical commitment of students and teachers engaged in full-time religious studies to uphold the value of studying Torah.

 e. The desire not to violate the stated principle which is transcendent and holy to a segment of the population in Israel and in the Diaspora.

 f.  Recognition of the deep public sensitivity toward the topic which has embroiled the Israeli public in an ideological debate and of the need for a careful balancing  with respect to a dispute of this nature.

Further on in his response, the Defense Minister noted that having considered the entirety of factors and information within the parameters determined in Ressler [1] with military interests constituting the dominant consideration, and having consulted with the Prime Minister, he had concluded that, in view of the aforementioned considerations, the existing situation did not seriously impair Israel’s security needs. In the Defense Minister’s view, absent national consensus, and in the absence of clarity over whether it would benefit national security, as noted above, the military should not take steps which are liable to have harsh consequences both on the private level and on the military’s organization.

13.  In his examination of the issue, the Defense Minister considered the question that had been raised in the first of the two petitions before us (HC 3267/97), namely, whether there should be a yearly quota limiting those permitted to enter this arrangement.  In his view, at this stage, the current arrangement did not substantially impair security needs and therefore did not need to be replaced by a yearly quota. To this effect, the Defense Minister submitted that setting a quota would, inter alia, entail the establishment of criteria for distinguishing between those worthy of being included in the arrangement and those who are not and who would therefore be drafted in the I.D.F via ordinary enlistment. In view of the considerations underlying the arrangement itself, the Minister felt that prescribing criteria of this nature would raise serious legal and social problems. This being the case, he felt that such a step should not be taken at this stage.

14.  In his response, the Minister undertook to adopt and implement the Yisraeli Commission’s recommendations. To this end, he instructed the various bodies in the Ministry of Defense and the military to work towards subjecting the arrangement to proper supervision, in order to ensure that the deferment was not improperly exploited. In this context, the Minister appointed a team for the implementation of recommendations, which would include the incorporation of the main elements of the arrangement into administrative regulations; the regulation of the undertakings of the heads of the Yeshivas to the I.D.F; submission of affidavits by Yeshiva students; establishment of criteria for recognition of Yeshivas and Adult Studies Institutions (Kollel); increasing the number of reporting dates for young students (ages 18-20) to twice a year and increasing the sanctions against those who breached the arrangement, both by indicting those in breach and by establishing a procedure for revoking the recognition of those Yeshivas failing to comply with the conditions set forth by the arrangement. The Defense Minister stated that following the regulations’ actual implementation, their influence on the number of those joining the arrangement would be reviewed. The Minister further added that the security establishment would continue to keep track of the changes in the number of those included in the arrangement and the various implications of the arrangement, thereby permitting the security establishment to weigh the matter’s influence on state security, and the potential need for establishing a maximum annual quota of those who can benefit from the arrangement.

15.  In their oral pleadings, the attorneys for the sides repeated their basic positions respectively. Adv. Fogelman, who pleaded on the Defense Minister’s behalf, emphasized that his client was chiefly concerned with security. It was in the context of outlining this point that counsel indicated how ineffective imposing military service on full-time Yeshiva students would be. This consideration had figured in the rationale originally underlying the arrangement’s institution, and it remained relevant for the newer reasons justifying the arrangement. At this juncture, Mr. Fogelman mentioned that the Prime Minister had asked that a public commission, headed by Supreme Court Justice (Ret.) Tzvi Tal, convene in order to re-examine the arrangement. Due to the reservations of certain segments of the Ultra-Orthodox community, the proposal was not implemented. We asked Mr. Fogelman whether it would have been appropriate for bodies representing the Ultra-Orthodox population to be represented before us. He responded that the Ultra-Orthodox circles, in general, and the Committee of Yeshivas in Israel, were aware that the petitions were being deliberated, and that had they wished to do so, they could have asked to join the proceedings at bar. The Court asked Mr. Fogelman to call their attention to the pending petition and he undertook to do so.

16.  In his pleadings before this Court, Adv. Har-Zahav (who pleaded on the petitioners’ behalf in HC 3267/97) emphasized that no empirical analysis had been conducted to substantiate the claim that the Yeshiva students’ military service would not be effective. He argued that the population included in the arrangement was not homogenous and that there was no reason why many of them could not serve effectively. Adv. Har-Zahav further noted that the Defense Minister’s position highlighted that the present situation did not pose any significant risk to Israel’s security needs. From this, Adv. Har-Zahav inferred that, according to the Defense Minister’s own opinion, the arrangement does harms security needs, in a way that is not significant. Such insignificant harm is sufficient to justify establishing a quota, as the petition requests. This having been said, Adv. Har-Zahav noted the petitioners' position that the current arrangement does indeed significantly jeopardize security needs.

He contends that the feeling of national solidarity is in fact part of the security ethos. This feeling is deeply wounded by the present arrangement’s discriminatory nature.   Adv. Ressler (who pleaded on the appellant’s behalf in HC 715/98), for his part, similarly highlighted the arrangement’s discriminatory character. He argued that the Defense Minister was by no means authorized to grant draft deferrals to full-time Yeshiva students, and that the existence of a quota was immaterial. He also maintained that, the implication of the Defense Minister’s position is the arrangement does infringe on security needs in a way that is not significant. In his opinion, the Defense Minister bears the burden of proving that the arrangement does not impair security needs. Mr. Ressler once again emphasized that, in his opinion, the arrangement as a whole ought to be enshrined in legislation and not by way of exemptions granted by the Defense Minister. He also noted that this had been the recommendation of the sub-committee of the Foreign Affairs and Security Committee.

The Ressler Case

17.  In Ressler [1] the Court, after establishing that the petition was (both normatively and institutionally) justiciable, held that deferring the enlistment of full-time Yeshiva students was legal. This decision was the product of three interim decisions that the Court had rendered. Each of these “interim decisions” was a necessary link in the chain leading to the conclusion that the Defense Minister’s decision was legal. The first “interim decision” provided that, in principle, all of the arrangements (primary and secondary) relating to the deferral of full-time Yeshiva students’ enlistment could be promulgated via administrative regulations. It was therefore not legally necessary to anchor regulation of this matter in legislation, nor was it legally necessary to anchor these primary arrangements in legislation. The second interim decision was that section 36 of the Defense Services Law constituted a legal source for the regulation of the enlistment deferral for Yeshiva Students. The language of section 36 of the Defense Services Law is as follows:

Authority to exempt  or to defer

36. The Minister of Defense may, if he sees fit to do so for reasons related to the size of the regular forces or reserve service forces of the Israel Defense Forces or for reasons related to the requirements of education, security settlement or the national economy or for family or other reasons do the following, by order: (1)  exempt a person of military age from regular service duties or reduce the period of his service; (2)  exempt a person of military age from reserve duties for a specific period or absolutely; (3)   by virtue of an application made by a person of draft age or a person designated for defense service other than a person of draft age, defer by order for a period prescribed therein, the date of reporting prescribed for that person, under this Law or regulations hereunder, for registration, medical examination, defense service or, if he has already begun to serve in the defense service, the continuance thereof.

In the second interim decision, the Court held that the enlistment of Yeshiva students was being deferred for both religious and security related reasons, namely, “for reasons related to the size of the regular forces or reserve forces ... or for reasons related to education requirements ... or other reasons.”  The third and final interim decision examined the Defense Minister’s discretion in exercising his authority.  The Court held that the exercise of the Minister’s discretionary powers was “reasonable” and that the balance between the security interest (the dominant interest) and the religious (external to security) interest was reasonable. Each of these three interim decisions was based on a particular social and security reality, as they were presented to the Court. Indeed, the Court itself repeatedly emphasized that its decision was the product of that reality and that a change in the situation could engender a change in the legal conclusions drawn. In my opinion, I stressed that “at the end of the day, there is significance to the number of Yeshiva students whose service is deferred. There is a limit that no reasonable Defense Minister may exceed. Quantity makes a qualitative difference.” Ressler [1] at 505. We have now been presented with a new reality. As we have seen, there has been a significant increase in the number of Yeshiva students whose service has been deferred by reason of their being full-time students (in 1987 they totaled 17,997 whereas in 1997 they numbered 28,772). The percentage of enlistees who had their service deferred in that year was 5.4%. In 1997, they constituted 8% of the number of enlistees in that year. Opposition to the arrangement has continually increased. There is ever increasing antagonism between the population whose sons serve in the military and those whose sons are granted a deferral which ultimately becomes an exemption from service.  It is against this backdrop that old questions reawaken to be examined anew. Is it possible to continue regulating the enlistment deferrals granted to full-time Yeshiva students by way of primary arrangements, which are not based on legislation? Does the authorization stipulated in section 36 of the Defense Services Law constitute a sufficient legal basis for granting deferrals to Yeshiva students?  In view of today’s reality, is the decision to grant service deferrals to full-time Yeshiva students still a reasonable one? Each of these issues engenders a host of difficult legal questions. In light of the conclusion I have reached in this case regarding the first issue, namely whether the arrangement to defer the enlistment of full-time Yeshiva students must be enshrined in legislation, I may leave the other two questions to be decided at a more opportune time. Having said this, I will now proceed to examine the critical question at bar.

Statutory Enshrinement of Primary Arrangements Regarding Enlistment Deferrals

18.  May the entire arrangement regarding enlistment deferrals granted to full-time Yeshiva students (“for whom Torah is their calling”) be premised on the Defense Minister’s general prerogative, by virtue of the Defense Services Law, without specifying the principles and scope for the regulation of such a deferral in the statute itself? Can the Defense Minister be endowed with the authority to decide this matter, without the Knesset having addressed the issue (beyond the general authorization provided under section 36 of the Defense Services Law to defer service for “other reasons”)? As noted, this issue arose in Ressler [1] where I stated:

…by virtue of the Rule of Law, it is proper that ‘primary arrangements’ be set forth explicitly in legislation and that the administrative agency not be endowed with the general authority independently to determine primary arrangements.

Ressler [1] at 502.

 

To this I added:

…it is desirable, pursuant to the principles of a “true, democratic, parliamentary regime” that the Knesset adopt an explicit position regarding the issue of draft deferrals granted to Yeshiva students, and not satisfy itself with the Defense Minister’s general and sweeping empowerment to grant service deferrals “for other reasons” …

Id.

 

Even so, I averred to the fact that it could not be said “that the Knesset’s abstention from setting forth primary arrangements and from imposing supervision on the Defense Minister’s arrangements invalidates [the Defense Minister’s] general empowerment to this effect…” (Id.). I was confident that “having determined that ‘other reasons’ may serve as grounds for deferral of defense service, the Legislature by this very fact empowered the Defense Minister to determine what those other reasons are” (Id.).  Do these conclusions retain their validity in view of a new reality? In order to answer these questions, consideration must be given to the legal principle regarding the establishment of primary arrangements in legislation. In light of the scope and power of this principle, its application must be examined with respect to the issue of granting draft deferrals to full-time Yeshiva students. We will now proceed to examine each one of these issues.

Establishment of Primary Arrangements in Legislation

19. A basic rule of public law in Israel provides that where governmental action is enshrined in a regulation or an administrative guideline, then the general policies and basic criteria constituting the basis of the action must be established in legislation, pursuant to which the regulation was enacted or the administrative decision adopted. In more “technical language," - under this basic rule, “primary arrangements” that determine general policy and the guiding principles, must be enshrined in statute (Knesset Legislation), whereas regulations or administrative guidelines must only determine “secondary arrangements.” See I. Zamir, Chakika Minhalit: Michir Hayieelut [Administrative Legislation: Price of Efficiency (hereinafter – Zamir, “Administrative Legislation” [78]); 2 A. Rubinstein, Hamishpat Haconstitutzioni shel Midinat Yisrael [Israeli Constitutional Law] (hereinafter - Rubinstein [72]) at 803.  Professor Klinghoffer also made this point:

... every administrative act, whether by force of administrative regulations, or even an individual act, must, as far as its basic contents are concerned, be prescribed by a statutory norm. In this sense, it can be said that in a state governed by the Rule of Law, the authority to set forth primary arrangements rests with the Legislature, whereas the administrative agencies are entitled to prescribe secondary arrangements alone, within the statutory framework.

Y.H. Klinghoffer, Shilton Hachok Vichakikat Mishneh [Rule of Law and Administrative Regulations (hereinafter - Klinghoffer [79]) at 108.

 

Acting President, Justice Shamgar, cited these comments, adding:

In terms of the desired legislative policy for the division between the legislature and the administrative agency, I concur with Prof. H. Klinghoffer’s position ...

HC 337/81 Miterani v. Minister of Transportation (hereinafter - Miterani [2]) at 357.

 

In this spirit, the Courts repeatedly emphasized that primary arrangements must be determined by the Knesset whereas the administrative agency must, for its part, deal with secondary arrangements. See HC 266/68 Municipality of Petach Tikvah v. Minister of Agriculture (hereinafter – Petach Tikvah [3]); CA 524/88 “Pri Ha’Emek” Cooperative Agricultural Society Ltd. v.  Sdeh Ya’akov Workers’ Village of HaPoel Mizrachi, Agricultural Cooperative Settlement (hereinafter – Pri Ha’Emek [4]), at 552. My colleague, Justice Cheshin, similarly noted:

“Primary arrangements” must find their place in statute (Knesset Legislation) ... regulations are not, in principle, designed for anything other than the implementing statutes. This is the pillar of fire, this is the pillar of smoke that illuminate our path by night and by day, and by its lead we shall follow.

 

HC 2740/96 Shansi v. Diamond Comptroller, (hereinafter - Shansi [5]) at 504.

In the same vein, I commented in another case:

[I]t is also appropriate ... that the legislature establish primary arrangements and leave secondary determinations to administrative authorities … this is how a constitutional democracy operates …

HC 5016/96 Horev v. Minister of Transportation (hereinafter - Horev [6]) at 75-76 {[1997] IsrLR 149, 233)}.

 

We will refer to this as the basic rule regarding primary arrangements.

20.  The reasons underlying this basic rule are threefold: the first is enshrined in the doctrine of Separation of Powers. See B. Schwartz Administrative Law (1989) (hereinafter- Schwartz [90]), at 43; Mistretta v. United States [54] at 371.  According to this doctrine, the enactment of statutes is the province of the legislative branch. “There is no legislature other than The legislature, exclusively endowed with the power to legislate” (as per Justice Silberg, CrimA 53/54 Eshed, Temporary Transportation Center v. Attorney General [7] at 819).

In Israel, this principle has found expression in the Basic Law: The Knesset, which provides that “the Knesset is the House of Representatives of the State” (sec. 1). It is “the Legislature” (sec.1 of the Transition Law, 1949) and the “Legislative Branch” (sec.7(a) of the Government and Judiciary Ordinance, 1948). HC 3806/93 Manning v. Minister of Justice [8] at 425.  It is by virtue of this principle that the power to legislate is vested in the Knesset. Indeed, a strict understanding of this principle would necessarily mean that the Knesset cannot delegate any kind of legislative power to the executive branch.  This, in fact, was the United States Supreme Court’s position in the nineteenth century, holding that the legislature had received its mandate to legislate from the people and was therefore not authorized to delegate that mandate to anyone else. Schwartz [90] at 43. This strict approach is no longer accepted in the United States or in Israel, for that matter. Modern reality, particularly that of the welfare state, required broad delegation to the executive authority for the performance of legislative acts. See President Shamgar’s remarks in CA 825/88 Association of Israeli Soccer Players v. Israel Soccer Association [9] at 105. This also fostered flexibility in such arrangements and allowed for the possibility of introducing changes according to the needs of the time and the place. See 1 B. Bracha  Mishpat Minhali [Administrative Law] (hereinafter – Bracha, Administrative Law [73]) at 82.

Thus, Professor Zamir correctly pointed out that “the legislative branch … is incapable of legislating all of the legislation required for implementing the duties that it imposes on the executive branch with the requisite speed and expertise. This is especially true in Israel, where there are exceptional requirements relating to national security, immigrant absorption and building the national economy. The public good necessitates exceptional powers for all of these.” 1 I. Zamir, Hasamchut Haminhalit [Administrative Authority] (hereinafter – Zamir Administrative Authority [74]) at 68. The doctrine of separation of powers is thereby faced with the “dilemma between the desire to restrict the power of the administration and the need to allow it to exercise such power in order to achieve social goals as efficiently as possible.” Y. Dotan, Hanchayot Minhaliot [Administrative Guidelines] [75] at 310. The solution is found in many and varied avenues. Within these, we find the notion that in order to maintain the authority for administrative regulations in the hands of the executive, we must not relate to [this authority] “as to an evil that must be combated, or even as a necessary evil, but rather as a positive phenomenon that helps society advance.” Zamir, “Administrative Legislation” [78] at 65. Some of those measures do not relate to the petitions before us, but rather to the approach that requires Knesset ratification of administrative regulations. See B. Bracha, Chakikat Mishneh [Administrative Regulations] [80] at 413; B. Bracha, Likrat Pikuach Parliamentary al Chakikat Mishneh [Parliamentary Supervision of Administrative Regulations] (hereinafter – Bracha, “Parliamentary Supervision” [81]) at 392. See also, on the broadening of the bases for judicial review of administrative regulations, A. Barak, Pikuah Batei Hamishpat al Tichikat Mishneh [Judicial Supervision Administrative Regulations] [82] at 465. One of the means found to be appropriate for this purpose allows for administrative legislation, while increasing the legislative branch’s supervision by way of its own legislation regarding administrative regulations enacted by the executive branch. It is within this framework that an approach developed by which the vesting of legislative authority in the executive branch is permitted, provided that the legislative branch itself establishes the fundamental parameters within which the executive authority can legislate. This point was made by Justice Rehnquist who stated:

... the most that may be asked under the separation-of-powers doctrine is that Congress lay down the general policy and standards that animate the law, leaving the agency to refine those standards, “fill the blanks” or apply the standards to particular cases.

 

Industrial Union Dept. v. American Petrol. Inst. (1980) [55] at 675.

 

From this derives the rationale – enshrined in the modern understanding of the doctrine of separation of powers – which lies at the heart of the rule according to which legislation empowering the executive branch to perform legislative or administrative acts must establish the primary arrangements by virtue of which the administrative agencies act.  “[I]f the Knesset is indeed the ‘legislative branch’ then empowerment for administrative regulations which implement the basic principles and guidelines (primary arrangements) established in the legislation, is consistent with this principle.” 2 A. Barak, Parshanut Bimishpat [Interpretation in Law] (hereinafter – Barak, Interpretation in Law [76]) at 528. On the other hand, if the legislation empowers the administrative agency to establish primary arrangements without any directives or guidance, the doctrine of separation of powers is violated. “When the Knesset is divested of its legislative cloak and transfers it to the expertise of the public administration, it severely undermines the principle of the separation of powers.” Bracha, “Parliamentary Supervision” [81] at 395. To this effect, the Constitutional Court of Germany expressed itself in a similar vein:

If [a statute] does not adequately define executive powers, then the executive branch will no longer implement the law and act within legislative guidelines, but will substitute its own decisions for those of the legislature. This violates the principle of the separation of powers.

 

8 BverfGE 274 (1958) [67] (trans. D.P. Kommers) in The Constitutional Jurisprudence of the Federal Republic of Germany (hereinafter – Kommers [91]) at 138.

 

21.  The second reason for the basic rule regarding primary arrangements is rooted in the Rule of Law. This principle is a complex one, with many different aspects. See Rubinstein [72] at 227. One of its numerous dictates is that legislation must establish guidelines and principles according to which the executive branch must act. Legislation must establish primary arrangements, and administrative regulations and individual acts must deal with implementation. This point was made by Professor Klinghoffer, who wrote:

We must distinguish between the concept of administrative legality, which is satisfied by formally binding the administration to the law, and the concept of specific legality, necessary for the realization of the Rule of Law. This latter concept signifies the maximum binding of the administration through the law ...

 [T]he Rule of Law ... does not permit the Legislature to waive its power to establish primary arrangements in favor of the administration - in other words to delegate this power.  Any transfer of that power to an administrative authority conflicts with the Rule of Law. Where the Rule of Law reigns, the Legislature is not at liberty to choose between options, in other words to personally bind the administration by establishing primary arrangements or to empower the administration to perform this legislative work in its stead. It is incumbent upon the Legislature to establish these arrangements itself. The Rule of Law dictates that the principle elements of any administrative act be anchored in primary arrangements set forth in the formal statute, and that the determination of those arrangements is within the exclusive authority of the legislature and cannot be transferred to administrative agencies.

Klinghoffer [79] at 108.

 

Prof. Zamir made similar comments:

[T]he Rule of Law requires that the legislature itself establish principles, primary arrangements, whereas the administration is only empowered to legislate the details for implementing the primary arrangements.

Zamir, “Administrative Legislation” [78] at 70.

 

This approach is not restricted to academia. It has been adopted by the case law. Hence, my colleague, Justice Cheshin noted:

The Rule of Law, in its substantive sense, instructs us that primary arrangements must find their place in the laws of the Knesset; regulations are in principle intended for the implementation of the laws only.

Shansi [5] at 504.

 

I too made this point in one of the cases:

“[T]he Rule of Law, in its substantive sense … means, inter alia, that legislative arrangements will ensure an appropriate balance between individual rights and public needs. In the realm of administrative regulations, this justifies the legislation being established by the legislature, not by the secondary legislature ...” Pri Ha’Emek [4] at 553.

This approach is not a new one. It is part of the fabric of Supreme Court rulings since the establishment of the State. Justice Olshan’s famous comments in this respect are well known:

[W]ere we to turn down the petitioner’s request we would become accomplices in rendering the Rule of Law governing the state a dead letter. The fundamental meaning of [the Rule of Law] is that restrictions ... whose imposition on individual freedom is unavoidable as a means of ensuring that individual freedom does not violate the freedom of others or the interests of society ... must be established by the Legislature, in other words, by the society that expresses its views in the statutes enacted by the legislature that represents it, and not by the administrative agency, whose task is limited to the implementation of these restrictions, in accordance with the said statutes.

HC 144/50 Sheave v. Defense Minister [10] at 411.

 

In another case, Justice Olshan emphasized:

[A]ccording to the principle of the ‘Rule of Law,' it is incumbent on the Legislature himself to determine and specify in the law, those cases in which licenses are to be granted or refused, while it is for the executive branch only to ensure the execution of those legal provisions. Accordingly, the legislative task must be discharged so that the citizen can find the answer in the law itself as to what is permitted and what is forbidden, and without being dependent on the discretion of the executive branch. However, as a result of the change of the social order in our generation and state intervention in all areas of life, not only in our state, the legislature is unable to foretell each and every case and to enact provisions in the law for each specific case. Consequently, the legislature satisfies itself with the determination of the general principles (though this is not always done).  The details and the modes of implementation of the general principles in each particular case are transferred to the discretion of the empowered branch; in other words, the Legislature confers the empowered branch with the authority to supplement that which was left out by the Legislature …

 HC 113/52 Zaks v. Minister of Trade and Industry [11] at 702.

 

_{Thus, the Rule of Law signifies that primary arrangements and} standards will be provided by statute, whereas the administration’s role is to implement these primary arrangements by establishing secondary arrangements and methods of implementation. In the words of the New York Supreme Court:

Without such standards, there is no government of law, but only government by men left to set     their own standards, with resultant authoritarian possibilities.

Rapp v. Carey (1976) [56].

 

The Constitutional Court of Germany also made this point, stating:

“The basic tenets of the rule of law require that an empowering statute adequately limit and define executive authorization to issue burdensome administrative orders according to content, subject matter, purpose and scope ... so that official action [will] be comprehensible and to a certain extent predictable for the citizen.”

8 BVergGE 274 (1958) [67] in Kommers [91] at 138.

 

22.  The third reason for the basic rule targeting primary arrangements is rooted in the notion of democracy itself. See D. Schoenbrod Power Without Responsibility [92] at 14. Justice Cheshin wrote that “the democratic principle as such permeates the entire Israeli legal system, becoming part of the genetic code of all of the binding norms in Israel.” HC 7351/95 Nevuani v. Minister of  Religious Affairs (hereinafter- Nevuani [12]) at 121. This reason essentially parallels the first and second reasons, both of which also derive their vitality from the nature of democracy; however, it also emphasizes an additional aspect. This is the aspect of democracy itself. Democracy is a complex concept, based on two central tenets: the will of the people as expressed in the principle of representation and basic values such as the Rule of Law and the Separation of Powers. At the center of these values lies the idea of human rights. Indeed, “democracy is not merely formal democracy ... in which decisions are adopted according to majority will. Democracy is also substantive democracy ... in which the majority cannot suppress human rights.” Horev [6] at 45. The basic rule regarding primary arrangements derives its vitality from both these tenets of democracy. According to the first, democracy signifies the rule of the people. In a representative democracy, the nation chooses its representatives, who act within the context of its parliament. See C. Klein, Al Hahagdara Hamishpatit shel Hamishtar Haparliamentary vi’al Haparliamentarism Hayisraeli [Legal Definition of Parliamentary Regime] [83]. The people’s elected representatives must adopt substantive decisions regarding State policies. This body is elected by the nation to pass its laws, and therefore benefits from social legitimacy when discharging this function. See B. Aktzin, Torat Hamishtarim [Theories of Government[ [77] at 239, 244.  Hence, one of the tenets of democracy is that decisions fundamental to citizens’ lives must be adopted by the legislative body which the people elected to make these decisions.  Society’s policies must be adopted by the legislative body, as echoed by Justices Sussman and Witkon, who wrote:

Administrative regulations regarding principled, cardinal matters, by force of an empowering law, is liable to lead us to a formal democracy only. A real parliamentary democracy requires that legislation be promulgated in the Legislature.

Petach Tikvah [3] at 831.

 

In this vein, Justice Brennan similarly noted:

Formulation of policy is a legislature’s primary responsibility, entrusted to it by the electorate, and to the extent the Congress delegates authority under indefinite standards, this policy-making function is passed on to other agencies, often not answerable or responsive in the same degree to the people.

 

United States v. Robel (1967) [57] at 276.

 

A similar approach was taken by Justice Rehnquist who explained that in the United States, the delegation of legislative power to the executive branch was contingent on the standards being set out in legislation, because this requirement “ensures to the extent consistent with orderly governmental administration that important choices of social policy are made by Congress, the branch of our Government most responsive to the popular will.” Industrial Union Dept. [55] at 685; See also American Textile Mfrs. Inst. v. Donovan (1981) [58] at 543.

Professor Tribe expressed the same idea:

 [B]road delegations are politically objectionable because, by enabling Congress to pass the buck on hard choices, and to leave such choices to administrative or executive processes less open to inputs from affected groups, such delegations may short-circuit the pluralist process of interest accommodation usually structuring legislative decision making.

L.H. Tribe, American Constitutional Law [93] at 365.

 

The Constitutional Court of Germany adopted a similar approach, noting that it is the legislature that must decide which interests justify the violation of individual freedoms. The Court added:

The democratic legislature may not abdicate this responsibility at its pleasure. In a governmental system in which the people exercise their sovereign power most directly through their elected Parliament, it is rather the responsibility of this Parliament above all to resolve the open issues of community life in the process of determining the public will by weighing the various and sometimes conflicting interests.

33 BVerfGE 125 (1972) [68] in D.P. Currie, The Constitution of the Federal Republic of Germany (hereinafter- Currie [94]) at 132.

 

In another case, the Court wrote:

In a free democratic and constitutional system, [P]arliament has the constitutional task of enacting laws. Only Parliament possesses the democratic legitimacy to make fundamental political decisions. To be sure, the Basic Law approves of a 'delegated' legislation by the executive. However, the executive can legislate only within limits that the legislature prescribes. Parliament cannot neglect its responsibility as a legislative body by delegating part of its legislative authority to the executive without beforehand reflecting upon and determining the limitations of those delegated powers. If the legislature does not satisfy this requirement, then [it] will shift unfavorably the balance of powers presupposed by the basic law in the area of legislation.

34 BVerfGE 52 (1972) [69] in Kommers [91] at 145, 147.

Thus, the nature of representative democracy clearly demands that administrative regulations and administrative provisions of the executive branch be rooted, both formally and substantively, in legislation, enacted by the legislature. Indeed, the Legislature cannot transfer fateful and difficult decisions to the executive authority without first guiding its path. Even if elected directly by the people, as is the case here of the Prime Minister, the role of the executive, as indicated by its appellation – is to execute. Prof. Zamir was correct in writing that:

As a matter of principle, it is preferable that, where the circumstances permit, the Legislature set forth the general principles and primary arrangements itself, and not leave this to the enactor of regulations.  The democratic regime, according to its very essence, requires that the general principles that determine the people’s lifestyle be determined as a rule in legislation, by the Parliament and not through administrative regulations enacted by the public administration.

I. Zamir, Hanchayot Hayoetz Hamishpati Lamemshala – Chakikat Mishneh, Nohel Vihanchaya [Attorney General  Guidelines] (hereinafter – Zamir, “The Attorney General’s Guidelines” [84]) at 345.

 

In another place, he writes:

[T]he Knesset is not able and probably should not deal with the details regarding the implementation of general principles, especially when setting forth such details requires special expertise, [when these details may be] subject to frequent changes, or when they must be established with relative speed. However, the Knesset can, and indeed must, discharge its central function, in the absence of which it loses its raison d'etre. This is the role of establishing general principles by way of statute. If the Legislature for any reason abdicates this task, it betrays its duty, undermines its very existence and furthermore, removes the basis for the regime’s democratic character. A regime in which the legislative branch transfers its legislative role in establishing general principles to the public administration remains a democracy in name and image only, and not in practice.

Zamir, “Administrative Legislation” [78] at 70.

 

This is an approach that attempts to preserve the status of the Knesset and the status of the democratic principle of representation upon which it is based. It is not restricted exclusively to the requirement that primary arrangements be determined via legislation. The desire to preserve the elevated status of the Knesset is of general application. “… we are duty-bound to take care not to overstep our bounds and enter the Knesset’s territory. We must take heed that our behavior be commensurate with democratic theory.” See Justice H. Cohn in Petach Tikvah [3] at 833. Hence this Court ruled, per Justice S. Levin, in respect of Emergency Regulations, that “where there is a possibility of regular, prompt legislation by the Knesset, then the legislative authority of the executive branch is usurped, because, as a matter of principle, the authority to enact emergency regulations should be used only where there is no possibility of waiting for the regular legislative procedures of the Knesset.” HC 2994/90 Poraz v. Government of Israel [13] at 322. Similarly, regarding the legality of raising pigs in Israel, Justice Berenson wrote:

Conceivably, attaining this goal is politically and nationally desirable as its advantages, from that perspective, outweigh the purely economic disadvantages presented by the petitioners. However, there are doubtless many who regard the government’s actions as religious coercion, at least indirectly. Either way, it is not for us to express an opinion on the matter. Nor is it the respondent's task to resolve religious national dilemmas using administrative tools conferred upon it for entirely different purposes and goals ... the problem is a national problem and not a local one, the solution to which is in the hands of the Legislature which is empowered, if it deems it necessary, to restrict individual freedom…

HC 98/54 Lazarovitz v. Food Supervisor of Jerusalem [14] at 56.

 

Similarly, it was determined that restrictions or prohibitions on freedom of religion or freedom from religion of citizens of the State must be anchored in legislation. In this matter, my colleague, Justice Or, wrote as follows:

The issue is the possibility of violating rights included in the charter of the most fundamental and sensitive of basic rights, the rights to freedom of religion and conscience. It is therefore proper that the Legislature decide them. The reason for this is that only the Legislature can express the optimal consensus that accommodates the coexistence of people of different religions and different beliefs.

HC 3872/93 Mitral Ltd. v. Prime Minister and  Minister of Religious Affairs (hereinafter – Mitral [15]  at 498.

 

In the same vein, my colleague Justice Cheshin, wrote in that case:

[R]eligious commandments cannot be forced upon those who are not observant and those who are not interested in fulfilling religious commandments; no coercion, either direct or indirect, is possible, except according to statutes enacted by the legislature, the Knesset. The doctrine of separation of religion and state is part and parcel of the legal system. It is only by way of Knesset statute - on the national level, that the fulfillment of religious commandments can be imposed ...

Id. at 507.

 

Although the case at bar is unrelated to emergency regulations and does not regard matters that have been discussed in the judgments cited, the common denominator of all these cases is the understanding that there are certain issues that can be determined by the legislative branch alone. It represents the people, is elected by them for that purpose, and therefore has the power to choose the most appropriate alternative to advance, among the various paths available.

23.  The second tenet on which democracy is based (in the substantive sense) is a regime of values, including the doctrine of Separation of Powers and the Rule of Law, as noted above. There is also a third and central value, namely human rights. These three tenets are closely interrelated. Separation of powers is not a value in its own right, nor is it intended to ensure efficiency. The aim of the separation of powers is to increase freedom and prevent the concentration of power in one sovereign authority in a manner liable to violate individual freedom. To this effect, Justice Brandeis noted:

The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of governmental powers among three departments, to save the people from autocracy.

Myers v. United States (1926) [59] at 293.

 

The same can be said for the Rule of Law. This principle is not only intended to ensure the administration’s legality; it seeks to protect individual liberty, as Prof. Klinghoffer elucidates:

In view of the Rule of Law’s historical development, democracy was not its chief aim, but rather a means of achieving another principle aim - ensuring individual liberty.

Klinghoffer [79] at 107.

 

Hence, human rights form the central tenet of democracy. There can be no democracy without human rights. There is no democracy where the majority illegally deprives the minority of its rights. Obviously, human rights are not absolute. A democracy (in the substantive sense) is entitled to violate human rights in order to attain its objectives, provided that the violation is prescribed by law; promotes the values of the state; is for a worthy purpose and does not exceed that which is necessary. See sec. 8 of the Basic Law: Human Dignity and Liberty); sec.4 of the Basic Law: Freedom of Occupation, and also CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village (hereinafter – United Mizrahi Bank [16]). This sensitivity to human rights leads to the conclusion that the violation of human rights, even when it promotes the values of the state, is for a worthy purpose and does not exceed that which is necessary, must be prescribed by a law specifying the primary arrangements. Indeed, one cannot be satisfied with the formal delegation of legislative authority to the executive branch. Hence, the requirement that primary arrangements be set forth in legislation and administrative regulations, or administrative orders concerning implementation, is anchored in the need to protect individual liberty. Indeed, in a democracy, it happens that the violation of individual rights is [at times] necessary for the realization of the general interest. Even so, the requirement is that this violation, even if justified, must be enshrined in legislation and not delegated to the executive branch itself. See Schwartz [90] at 61. One American case considered a statute that allowed the executive branch to issue or refuse to issue a passport to a citizen. The Court held that this constituted a violation of individual freedom. Such a violation was possible only if the violating statute, and not the executive power, established the basic criteria for exercising that authority. Justice Douglas wrote the following:

The right to travel is a part of the “liberty” of which the citizen cannot be deprived without due process of law under the Fifth Amendment ... If that “liberty” is to be regulated, it must be pursuant to the law-making functions of the Congress ... And if that power is delegated, the standards must be adequate to pass scrutiny by the accepted tests.

Kent v. Dulles (1958) [60] at 125, 129; See also Shuttlesworth v. Birmingham (1969) [61].

 

The Canadian Supreme Court adopted a similar approach. According to the Canadian Charter of Rights and Freedoms, protected human rights may be violated only where the conditions prescribed by the Canadian limitation clause (sec. 1 of the Charter) are met. Among these is the condition that the restriction be “prescribed by law." It was held that the import of this provision is that the fundamental and basic criteria must be set forth by statute. See P.W. Hogg, Constitutional Law of Canada [95] at 862. The upshot is that conferring authority to violate a protected human right is permitted, provided that this is done within the framework of the criteria established in the legislation. To this effect, Justices  Dickson, Lamer, and Wilson wrote the following:

Where there is no intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances, there is no limit “prescribed by law.”

Irwin Toy Ltd. v. Quebec (1989) [71] at 982.

 

A similar approach was taken by the European Court of Human Rights. The Sunday Times v. The United Kingdom (1979) [64] at 270; Malone v. United Kingdom (1984) [65] at 40; Leander v. Sweden (1987) [66]. This was also the path taken by the German Constitutional Court. See Currie [94] at 132. In the Constitutional Court’s own words:

Today it is firmly established by the decisions that, without regard to any requirement of an incursion [into individual freedom] in basic normative areas, and especially when the exercise of basic rights is at stake, the legislature is required ... to make all essential decisions itself.

49 BVerfGE 39 (1978) [70] at 126-127.

 

It is therefore clear that the democratic principle in all of its aspects, both in terms of representation and in terms of values, means that fundamental criteria (the primary arrangements) must be enshrined in legislation. Administrative regulations and the individual acts of an administrative agency (secondary arrangements) must implement the fundamental criteria established in the legislation. What are these primary arrangements and how are they determined? We shall now proceed to examine that question.

Primary Arrangements Defined

24.  The basic rule regarding primary arrangements, as we have seen, is that administrative regulations or individual administrative acts, based upon legislation (secondary arrangements), must set forth the manner in which statutes are to be implemented, whereas general policy and fundamental criteria (primary arrangements) must be prescribed in the principle legislation (statute). The reasons supporting the distinction between primary and secondary arrangements also determine the scope of each. Considerations of the Separation of Powers, the Rule of Law and Democracy (in both the formal, representative sense and the substantive sense), means that it is appropriate that legislation, which delegates the establishment of administrative regulations or administrative orders to the executive authority, determine the general plan, so that administrative regulations and implementing provisions can realize that which was set out in principle in legislation. The guidelines for the resolution of crucial issues, which are fundamental to the life of the individual, must be prescribed by statute. Hence, a primary arrangement exists where, on the basis of the law itself, in accordance with its interpretation by accepted interpretative methods, it is possible to infer the parameters within which the executive branch may act, as well as the direction, principles, or purpose that are supposed to guide the executive authority in its actions. To the extent that the regulation of a particular area requires that fundamental decisions which substantially affect the lives of individuals and society be taken, it is appropriate that such decisions be made within the confines of the statute itself. Hence, a primary arrangement exists where the statute itself sets out the principles or standards on a higher level, which must be brought to fruition at a lower level. The level of abstraction of the primary arrangement will change from issue to issue. As far as, and to the extent that the issue is one in which individual freedom is violated, so too the level of abstraction cannot be too high and an arrangement that establishes the nature of the violation and the extent of the violation of freedom enshrined in the legislation will be required. When the object of the regulation is a complex one, requiring considerable expertise, it is quite often possible to satisfy oneself with a very high level of abstraction. See Currie [94] at 42; U. Kischel, “Delegation of Legislative Power to Agencies: A Comparative Analysis of United States and German Law” (hereinafter – Kischel [97]).

25.  At this juncture, two comments should be made. First, the distinction between primary and secondary arrangements is not a sharp one. There is much ambiguity regarding where to draw the line between the two kinds of arrangements. As far back as 1825, the Chief Justice of the United States Supreme Court at the time, Chief Justice Marshall, wrote:

The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made and power given to those who are to act under such general provisions, to fill up the details.

Wayman v. Southard (1825) [62] at 19.

 

In a similar vein, Prof. Klinghoffer wrote:

[T]he conceptual border distinguishing a primary arragenment from a secondary arrangement cannot be defined in the general, abstract sense. It depends on the nature and specific nature of the topic being regulated. Hence, the determination of whether a specific arrangement is primary or secondary can only be the product of induction, in accordance with common sense and logic.

Klinghoffer [79] at 122.

 

Prof. Zamir also dealt with this issue, stating:

It is difficult to establish the distinction or border between primary and secondary arrangements. To a certain extent, the two realms merge. Being overly strict about the distinction between these two realms is liable to disrupt administrative action and be detrimental to the public welfare.  Hence, in borderline cases, the question must be answered primarily on the basis of the balance between the administrative needs and public welfare and the degree of violation of the Rule of Law.

Zamir, “The Attorney General’s Guidelines” [84] at 354.

 

Thus, the nature of the arrangement, its social implications, and the degree of violation of individual freedom are all factors that influence the scope of the primary arrangement and the degree of specification required thereof.  Furthermore, the dictates of today’s reality necessitate compromising between principles and the imperatives of everyday life. In a modern democratic regime, it is difficult to fully realize the principles enshrined in primary arrangements. Quite often, compromise is required for reasons of administrative efficiency, in order to ensure public welfare. Even so, as a matter of principle, this does not detract from the power and the validity of the basic rule. Practically speaking, too, there are limits to the permissible compromise. In certain extreme cases the basic rule may prevail over considerations of efficiency, and it is appropriate to invalidate secondary arrangements that lack a statutory foundation (primary arrangements).

26.  Second, in determining the fundamental standards and lines of general policy, cognizance must also be had for leaving the legislature wide room to maneuver. As we have observed, the distinction between primary and secondary arrangements cannot be precisely drawn, because it varies from issue to issue. The reality of life often necessitates a compromise between the basic rule and other considerations, primarily considerations of efficiency.  Indeed, the legislature is familiar with the material, as well as with the extent of its capacity to deal with the material within the temporal confines within which it operates. It also understands the need to delegate the establishment of arrangements that require expertise and professionalism to the executive branch.  One cannot be overly strict with the Legislature in this matter. Occasionally, it is sufficient that the Legislature provide instructions at a high level of abstraction, in which the degree of guidance provided is limited. Such instructions, too, are capable of satisfying the requirements of the basic rule. See A.C. Aman and W.T. Mayton, Administrative Law [96] at 9; Schwartz [90] at 42. The basic rule regarding the establishment of primary arrangements is not primarily designed to negate the authority to delegate power to the executive branch due to the failure to comply with requirements to specify primary arrangements in legislation. The main function of the basic rule regarding primary arrangements is to give a limited interpretation to the delegation prescribed by the legislation. See Kischel [97] at 220-23. Thus, the main function of legal systems in recognizing the cardinal rule regarding primary arrangements is interpretative, as a means of narrowing the scope of authority conferred upon the executive branch. The primary rule is therefore of limited applicability as a constitutional rule that can invalidate statutes authorizing the administrative authority to establish primary arrangements.

The Basic Rule’s Legal Status in Israel

27.  What is the legal status of the basic rule regarding primary arrangements in Israeli law? In this respect, a distinction must be drawn between two periods. The first period, until the enactment of the Basic Laws regarding human rights and their interpretation by this Court in United Mizrahi Bank [16] and the second period, subsequent to the enactment of these laws, as the Court interpreted them in that case.

28.  During the first period, the basic rule regarding primary arrangements was one of the rules of Israeli public law. It formed part of the common law, “Israeli style.” It was first and foremost an interpretative rule. Accordingly, there was an interpretative presumption that delegation of power to enact administrative regulations or orders was delegation exclusively for the establishment of secondary arrangements. See Rubinstein [72] at 361. It was in relation to this interpretative presumption that I wrote:

[W]here power to enact administrative regulations has been delegated to the executive branch, we must presume that this power is intended for implementing those arrangements set out in the legislation. There is therefore a presumption that the power to enact administrative regulations is the power to enact implementing regulations (secundum legem). It cannot be assumed that the purpose of delegating authority for administrative regulations was to empower the administration to enact administrative regulations “external to the law” (praeter legem) or administrative regulations that goes “against the law” (contra legem). Thus, if the Knesset is the legislative branch, only a delegation of the power to enact administrative regulations that implements the basic principles and standards (primary arrangements) established in the legislation is consistent with this principle. Thus, the legislature will be presumed to have authorized the administrative agency to establish principles and standards that are prescribed in the legislation (“secondary arrangements”) only. Needless to say, this is a presumption that may be rebutted.

Barak, Interpretation in Law [76] at 528.

 

This having been said, a concrete expression of this presumption can be found in those cases in which the Court interprets the language of the law against the backdrop of the legal system’s basic principles. These principles include, inter alia, the doctrine of the separation of powers, distinguishing between the power of the Knesset as expressed in the Basic Law: The Government, the Rule of Law and democracy (both formal and substantive). All of these form the statute’s “general purpose," which was given interpretative weight by the Court. See HC 693/91 Efrat v. Director of Population Registrar of the Ministry of the Interior [17] at 769. Even so, this general purpose may be overridden when it conflicts with a particular, conflicting purpose. See HC 953/87 Poraz v. Mayor of Tel Aviv-Jaffa (hereinafter- Poraz [18]), at 329. The Knesset was therefore entitled not to take the basic rule into account, and to reject it. It was authorized to grant the executive branch the power to enact primary arrangements. Thus, Prof. Klinghoffer was correct in stating:

 [I]n the absence of a constitution, the Legislature is omnipotent and therefore entitled to delegate the authority to enact administrative regulations to the administration at its own discretion.  Legally speaking, there is no obstacle in the path of formal delegations.  It is sufficient that the law itself specify certain matters, empowering the administration to legally regulate them, without the statute itself taking any pain concerning their regulation. This path is legally acceptable.

Klinghoffer [79] at 117.

 

In fact, together with the basic rule regarding primary arrangements, the Court also ruled that the Knesset was entitled to delegate the power to determine primary arrangements to the administration. See e.g. HC 122/54 Aksel v. Mayor, Councilors and Residents of the Municipality of Netanya (hereinafter – Aksel [19]) at 1531; Petach Tikvah [3] at 831. Deputy President Justice Shamgar discussed this point, writing that:

“…[T]he boundary that is supposed to limit the administrative agency to setting out secondary arrangements alone is not always adhered to by the legislature itself. However, even though this phenomenon is undesirable with respect to the existence of a substantive rule of law, it does not invalidate the administrative regulations in question per se. The standard for ascertaining the validity of the administrative regulations is prescribed by the legislation, which sets out the areas in which the administrative agency may act, by specifically authorizing acts of administrative regulations in defined areas…” Miterani [2] at 357.

Thus, the Legislature is entitled to ignore the basic rule. It is permitted to empower the executive branch to establish primary arrangements in administrative regulations or in administrative orders. Indeed, an examination of the statutes indicates that there are numerous delegations made by the Legislature to the executive branch for the purpose of determining primary arrangements. See Zamir, “Administrative Legislation” [78] at 70; Bracha, Administrative Law [73] at 94. See also A. Barak, “Subordinate Legislation” [85]. As a result, the interpretative presumption is one that may be refuted.  In effect, it was refuted in all those cases in which the interpretation of the empowering law, in light of its special purposes and other interpretative presumptions, led the Court to conclude that the statute’s overall intention was to empower the executive branch to prescribe the primary arrangements. It was during this first period that the legal consultants of the Government were instructed by the Attorney General to word the bills in a manner that would include the primary arrangements so that the executive branch’s power would be limited to the authority to establish arrangements for implementing the relevant statutes. This point was made by the Attorney General at the time (Prof. Zamir) in a guideline that he issued, stating inter alia:

“It is appropriate that the authors of various bills in the government offices be aware, with respect to any bill, of the proper relationship between legislation and administrative regulations. In this context, the guiding principle is that it is appropriate that the statute itself establish primary arrangements, to the extent that it is possible in accordance with the nature of the subject and under the circumstances, whereas the enactor of the regulations is empowered to establish only secondary arrangements via regulations (in other words – regulations for the purpose of implementation.” Zamir, “Attorney General’s Guidelines” [84] at 346.

Even so, these were guidelines from which the Knesset was entitled to deviate.

29.  So, during the first period, the main question that arose was not whether the Legislature was entitled to empower the executive authority to enact primary arrangements. The clear answer to this question was in the affirmative. During that time, the decisive question was whether the legislature had in fact empowered the executive branch to establish primary arrangements. The answer to this question was found by interpreting the empowering statute. In this context, the crux of the matter was the power of the presumption that the legislature had not empowered the subordinate authority to establish primary arrangements. The key question was therefore, in which cases can one rebut the presumption that primary arrangements must be set out by the Knesset.

30.  The case law did not provide a complete answer to this question. A distinction between administrative regulations and administrative orders that do and do not violate human rights emerged. For administrative regulations and orders belonging to the first category, the presumption regarding primary arrangements was quite weak. This, however, was not the case with respect to administrative regulations and orders that do violate human rights. Here, there emerged a clear position in the case law, which held that where a legislative arrangement violates individual liberty, generally speaking, the empowerment in the legislation must be clear, specific, and unequivocal. This point was made by Deputy President Justice Shamgar with respect to legislation that empowered the administrative agency to violate freedom of occupation:

… empowerment in this context means “express empowerment” and my intention here is only to cases in which the Legislature clearly states that it has empowered the administrative agency to enact regulations that set out prohibitions or restrictions on engaging in a particular profession ...

...      

... in the absence of a constitution establishing the legal status of basic civil rights, there is no restriction on the provisions which may be prescribed by statute (ordinary legislation) (with the exception of a few areas. See e.g. sec. 4 of the Basic Law: The Knesset. Administrative regulations on the other hand, derive their validity exclusively from the empowerment conferred by the legislature. Thus, when the issue relates to imposing restrictions on basic rights, the administrative agency has no authority to act, in my opinion, in those areas except if specifically and expressly authorized by the Legislature to act in the said area by way of restriction or prohibition, respectively ...

Miterani [2] at 358-59.

 

This approach is not strictly limited to legislation empowering an administrative agency to violate the freedom of occupation. As was held in the Miterani [2] case, this approach is a general one, applicable to any case in which the empowerment violates basic human rights. See Aksel [19] at 1531; HC 200/57 Bernstein v. Beth Shemesh Local Council [20] at 268;  HC 124/70 Shemesh v. Companies Registrar [21] at 513; HC 144/72 Lipabski- Halipi v. Minister of Justice [22] at 723; HC 333/85 Aviel v. Minister of Labor and Welfare (hereinafter – Aviel [23]), at 600; Pri Ha’Emek [4] at 561.  Thus, the approach that required specific, clear, and unequivocal authorization in order to empower the executive authority to violate individual freedom was also applied to freedom of expression (CA 723/74 “Ha’aretz” Newspaper Publishing Co. v. Israel Electric Co. [24] at 295; FH 9/77 Israel Electric Co. v. “Ha’aretz” Newspaper Publishing Co. [25] p. 359), to the right to equality (HC 301/63 Streit v. Israeli Chief Rabbinate [26] at 639) and to property rights (HC 249/64 Baruch v. Customs and Duty Supervisor [27] at 489; Aviel [23] at 595). This line of case law led to increased protection of individual freedom. The legislature’s empowerment was generally interpreted as permitting the violation of individual freedom only if its expression was specific, clear and unequivocal, i.e. where the legislation determined that the administrative agency was entitled to restrict a particular occupation. This was interpreted as empowerment for administrative regulations that also included the power to establish primary arrangements. See Miterani [2] at 358-59.       

31.  The second period began with the promulgation of the Basic Laws regarding human rights and their interpretation in the United Mizrahi Bank case [16].  In fact, with the enactment of the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation, there was a substantial change in the status of the human rights that were entrenched in these laws.  They received a super-legal constitutional status. United Mizrahi Bank [16]; HC 3914/92 Lev v. Tel-Aviv-Jaffa Regional Rabbinical Court [28] at 503; HC 453/94 Israeli Women’s Network v. Government of Israel [29] at 526; HC 5394/92 Hopert v. “Yad Vashem," Holocaust Memorial Authority [30] at 363; HC 726/94 Klal Insurance Company. v. Finance Minister [31] at 465; HC 1255/94 “Bezeq," Israeli Telecommunications Company, v. Communications Minister [32] at 680; HC 5319/97 Cogan v. Chief Military Attorney [33]; HC 1064/94 Computest Rishon LeTzion (1986) Ltd. v. Minister of Transportation [34] at 814; CA 239/92 “Egged” Transportation Cooperative Society v. Mashiach [35] at 71; HC 4541/94 Miller v. Defense Minister [36] at 110, 131. In fact, following the adoption of the two Basic Laws regarding basic rights and the meaning given to them in United Mizrahi Bank [16] Israeli law was constitutionalized. See F. Raday, Chukatizatzia shel Dinei Haavodah [Constitutionalization of Labor Law] [86]; R. Ben-Israel, Hashlachot Chukei Hayesod al Mishpat Haavodah Vimaarechet Yachasei Haavodah [Implications of Basic Laws for Labor Law] [87]; A Yuran, Hamahapacha Hachukatit Bimisoi Biyisrael [Constitutional Revolution of Tax] [88]; A. Barak, Hakonstitutzionilazatzia shel Maarechet Hamishpat Biakvut Chukei Hayesod Vihashlachoteha al Hamishpat Haplili [Constitutionalization of the Legal System – Criminal Law] [89].  Constitutional rights are reflected (directly or indirectly) in all areas of law. See Lev [28] at 503. In one case, I addressed the meaning of the term “constitutionalization”:

The significance of constitutionalization is that every branch of law and every legal norm is influenced by the constitutional arrangements regarding human rights. The constitutional human rights are reflected in all branches of law and influence every legal norm.

CrimApp 537/95 Ganimat v. State of Israel [37] at 421.

 

And in the United Mizrahi Bank case [16] I stated:

Israeli law has been constitutionalized, and human rights are reflected in all branches of law (public and private) and influence their substance. Whereas in the past human rights were derived from the arrangements extant in the various areas of the law, now the same areas of law are derivatives of the constitutional human rights.

Id. at 447.

 

   These changes affect the legal status of the “basic rule," according to which primary arrangements must be set out in legislation. For the purposes of the case at bar we need not dwell on the entire scope of these changes, for the Defense Minister’s authority at issue is based upon legislation that preceded the constitutional changes, the validity of which is maintained as part of the old law. Hence, we have no need to adopt a position regarding the relationship between the exercise of the Defense Minister’s authority and the rights entrenched in the Basic Laws. Suffice it to note that the constitutional laws respecting human rights fortify the basic rule. This fortification is expressed by an interpretative presumption that the law did not intend to vest the executive branch with additional power to establish primary arrangements. Hence, the statutory power to prescribe primary arrangements in administrative regulations remains in force and its validity is not impaired. New Basic Laws, according to their interpretation in the United Mizrahi Bank case [16] cannot detract from the validity of existing legislation. Even so, in the absence of any contradictory provision, an interpretative effort must be made, where possible, to give this empowerment a restricted interpretation, so that it will be exercised, wherever possible, in a manner consistent with the basic rule governing primary arrangements. In this vein, there are cases in which the executive branch must refrain from making substantive decisions on basic social issues which are the subject of sharp public controversy. It must leave these decisions to the Legislature. For example, the matter of deferring the enlistment of women whose service during a particular year is not required is left to the Defense Minister’s discretion.  The decision will be a pragmatic one, based on the needs of a particular year, as such a decision will not seek to resolve the fundamental issue of the nature of women’s service in the military, which is the subject of a fierce public controversy.  Thus, the Minister is not empowered to adopt a decision by virtue of which women as such, or married women, or women whose religious convictions prevent them from serving in the defense service, are to be exempted from serving in the military.  This is a matter for the Knesset, which must determine, as part of the social resolutions that it is charged with, the State’s position on that matter. Indeed, the Knesset adopted this path regarding the exemption of married women (sec. 39 of the Defense Services Law) and that of women requesting an exemption for reasons of religious convictions (sec. 40).  The same applies to deferral of service for men. Where the considerations [underlying a particular decision] are practical – pragmatic, dynamic – the Defense Minister can make such a decision.  However, when the consideration is one relating to resolving a sharply disputed general social issue, the matter must be dealt with via a primary arrangement in legislation.  More specifically, the position we are adopting does not preclude the executive authority from determining general policies regarding the exercise of its powers. Generally speaking, it is both permissible and desirable that the executive branch set out general guidelines. Our position is simply that there are certain, special issues regarding which the executive authority is not endowed with the power to adopt fundamental decisions on fundamental issues that divide society. There are matters that the Knesset must resolve. Regarding these matters, the executive must be satisfied with determining the policy for implementation. Practically speaking, this means that, in general, the Court will give a limited construction to the powers that the law grants the executive branch. This has been the practice of the Courts in those legal systems in which this basic rule has constitutional status and not just interpretative status. Regarding the approach adopted in the United States, Kischel wrote the following:

 

The question whether a delegation is so broad that its constitutionality becomes doubtful, depends first on an interpretation of the exact scope of the statutorily conferred powers. Here it is of course possible for a court to accept a very broad interpretation, and to then declare even this maximum to be constitutional. Today, however, the Court takes the opposite path. The Court circumvents possible delegation problems by making a narrow interpretation of statutory language, thus using the delegation doctrine as an Ashwander like principle.

Kischel [97] at 222.

 

The Courts in Germany adopted a similar approach. Id. at 232. We, too, have followed this approach, incorporating the law established in Ashwander v. Tennessee Valley Authority (1936) [63]. Accordingly, all legitimate interpretative efforts must be made to avoid a law’s invalidation.  This rule was cited by President Shamgar in United Mizrahi Bank [16] at 350, stating that “when the validity of a law … is being adjudicated, even where there is serious doubt as to its legality, the central guiding rule is that the Court must first examine the possibility of a reasonable interpretation, by which it can avoid having to decide the question."  This Court has practiced this interpretative approach of statutory construction. HC 4562/92 Zandberg v. Broadcasting Authority [38] at 810, 814, 815; HC 7111/95 Center of Local Government v. The Knesset [39] at 496; HC 5503/94 Hofnung v. Speaker of Knesset [40] at 67; HC 5503/94 Segal v. Speaker of Knesset [41]; HC 450/97 Tenufa Manpower and Maintenance Services  Ltd. v. Minister of Labor and Welfare [42].  Needless to say, this approach is possible only where the statute’s language permits such a narrow construction.  The statute’s text cannot be forced, nor can interpretative rules be distorted. However, within the framework of accepted interpretative principles, the interpretative option that is consistent with the basic rule regarding primary arrangements should be selected.

 

From the General to the Specific

The Defense Services Law sets forth the duty of defense service (regular service or reserve service). It establishes the duty’s scope and the modes of fulfilling it. Together with these provisions, it also establishes the Defense Minister’s authority to defer service or grant an exemption. He may do so:

[F]or reasons related to the size of the regular forces or reserve forces of the Israel Defense Forces or for reasons related to the requirements of education, security settlement, or the national economy or for family or other reasons…

Sec. 36 of the Defense Services Law.

 

Is the Defense Minister authorized to exercise his authority and grant a deferral to full-time Yeshiva students of the dimension and scope which such deferrals have reached today? This question turns on the division of powers between the legislative and executive branches.  It goes to the issue of whether establishing principles and criteria respecting the social issue of service deferral for full-time Yeshiva students is the Legislature’s exclusive province, a matter that it alone should determine as part of the primary arrangements that it must establish.

33.  The question is not a new one for us. President Landau dealt with it in the petition concerning service deferral for full-time Yeshiva students preceding the Ressler [1] case. In dealing with a request for a further hearing, President Landau raised the issue of  “whether the matter required … a specific statutory resolution, pursuant to a comprehensive debate in the Knesset, precluding its resolution in an administrative decision of the Defense Minister, or by way of a government decision in its executive capacity as part of implementation of a coalition agreement.” He noted that “this is an argument … that, to my mind, is worthy of being heard.” FH 2/82 Ressler v. Defense Minister [43] at 711-12.  This having been said, he did not rule on the issue, for it had not been discussed in the judgment regarding which the petition for a further hearing had been filed, nor was it included in the petition for a further hearing.

34.  Ressler [1] discussed this question. In my judgment, I mentioned that the Rule of Law dictated that “primary arrangements” ought to be specifically prescribed by statute, and that the executive branch should not be endowed with general empowerment to independently establish primary arrangements. Ressler [1] at 502. I added that:

[I]t is desirable that by force of the principles underlying a “true parliamentary democracy,” the Knesset should adopt a specific position regarding the issue of deferring the enlistment of Yeshiva students, and not be satisfied with the general, across the board, empowerment of the Defense Minister to grant enlistment deferrals “for other reasons” …

Id. at 502.

 

This having been said, I emphasized that “I am not convinced that the Knesset’s failure to establish primary arrangements and its failure to supervise the arrangements established by the Defense Minister means that such general empowerment is invalid.” Id. I noted that the “other reasons” need not necessarily be security-related, and they extend to non-security based considerations, which in my opinion also include religious reasons. Id. at 502-03. In a later judgment, I cited Ressler [1], stating:

Our lives are replete with issues that in the past were anchored in administrative regulations but ought to be regulated by legislation. Suffice it to mention the issue of the Yeshiva students’ enlistment in the military.  It was argued before us that the latter issue, being an important one, ought to be regulated in legislation. Even so, we held that the absence of primary arrangements in legislation does not invalidate the administrative regulations in this matter.

Horev [6] at 76.

 

Thus, there is already a previous ruling in this matter.  The question before us is whether the new circumstances, both factual (relating to the increase of the number of Yeshiva students whose enlistment was deferred and the broadened scope of those entitled to a deferral) and legal (the strengthening of the interpretative power of the basic rule), justify reaching a different conclusion. In Ressler [1], the Court stressed that “quantity becomes quality.” Id. at 505. How do all of these affect the question currently confronting us? I will now proceed to examine this issue.

35. My point of departure is that, following the Ressler [1] case, the power granted to the Defense Minister to defer military service for “other reasons” also included the power to defer full-time Yeshiva students’ defense service.  Admittedly, the Defense Services Law does not set forth any criteria regarding how that power is to be exercised. We are therefore confronted with an extreme case of delegation of power to the executive branch, without the legislation containing guidelines for the Defense Minister with respect to the primary arrangements. In interpreting this provision today, I accept that, as a matter of principle, the Defense Minister is entitled to defer the defense service of full-time Yeshiva students. Even so, the exercise of discretion must be done with cognizance of the basic rule concerning primary arrangements. This is an interpretative principle that affects the considerations to be taken into account by the Defense Minister.  The interpretative conclusion dictated thereby is that the scope of the Defense Minister’s discretion is within the framework of the basic rule. He is authorized to grant a service deferral to full-time Yeshiva students, but this decision must be part of a national decision adopted by the Knesset, relating to the State of Israel’s position regarding the disputed social issue of granting service deferrals to full-time Yeshiva students.  A fundamental decision of this nature must be a parliamentary decision, not just a decision made by the Defense Minister. The Defense Minister’s discretion must be exercised regarding these particular issues, within the context of a fundamental Knesset decision.

The National Decision

36.  Granting enlistment deferrals to full-time Yeshiva students is a subject of controversy in Israel, and there is no national consensus on the matter. The dispute is not just between the observant and the non-observant. Within the religious camp itself there are many and varied views.  I referred to this in Ressler [1]:

There are those who maintain that the State could not exist without deferring their enlistment and those who maintain that the State cannot exist without their enlistment. Some see the deferral of their service as a noble act while others perceive it as vile. There is no social consensus on the matter.

Id. at 505.

 

    Far from being exclusively ideological, the rift in question involves a clash between various human rights. On the one hand, there is the ideal of equality, dictating that all of the members of society must contribute equally to its security. The current situation, in which a significant portion of these individuals of service age do not risk their lives for the security of the State is very discriminatory, engendering deep feelings of exploitation amongst those who serve.  Indeed, equality is “the very soul of our entire constitutional regime.” See Justice Landau’s comments in HC 98/09 Bergman v. Finance Minister [44] at 698. It is a principle “that pervades our legal thinking, forming an integral part thereof.” HC 114/78 Borkan v. Finance Minister [45] at 806 (Justice Shamgar’s opinion).  Thus, Deputy President Elon was correct in stating:

[T]he principle of equal rights and obligations for all of the State of Israel’s citizens is part of the State of Israel’s very essence.

EA 2/88 Ben Shalom v. Central Elections Committee for the Twelfth Knesset [46] at 272; See also his opinion in HC 153/87 Shakdiel v. Minister of Religious Affairs [47].

 

In another case, I noted:

 

[E]quality is a basic value in any democratic society, ‘which the law of any democratic society attempts to realize, for reasons of justice and fairness …’ The individual becomes part of the entire social fabric; he or she shares in building the society, in the knowledge that others, too, are acting as he does. The need to ensure equality is endemic to human beings; it is based on considerations of justice and fairness. A person desiring the recognition of his or her rights must recognize the rights of others to seek similar recognition. The need to maintain equality is critical for society and for the social agreement upon which it is based. Equality protects the government from caprice. In fact, there is no factor more destructive to a society than the feelings of its members that they are being dealt with unfairly. The feeling of inequality is a particularly harsh one. It undermines the unifying forces of the society. It damages the personal identity of a human being.

Poraz [18] at 332.

 

On the other hand, we have the rights relating to freedom of religion. This freedom includes, inter alia, the right to fulfill religious commandments and requirements.  It has been argued that the forced enlistment of full-time Yeshiva students may violate their freedom of religion and is liable to offend their religious feelings, which must also be taken into account. See Horev [6].

37.  The issue of enlisting full-time Yeshiva students is not merely an ideological one, in which human rights clash with each other. In Israel, it has become a major social problem. Full-time Yeshiva students whose enlistment has been deferred are not permitted to work. The material opportunities at their disposal and at their family’s disposal are meager, and poverty is their fate.  They are not absorbed into the work force. Even those who leave the arrangement are not absorbed into the workforce, for fear of being drafted into the military, and idleness is the mother of all sin. This creates an entire population, which is not incorporated into the work force, with the subsequent increase in poverty and reliance upon allocations both from the State and private sources.  A social problem of the first degree has thus arisen.

38.  The enlistment of full-time Yeshiva students also creates a complex social-military problem. This problem regards military considerations relating to the integration of these enlistees. Is it desirable for the military to enlist these Yeshiva students? Is it efficient to enlist them? Would it be efficient to enlist some of them, for example those found fit for military service, or those who do not remain in the Yeshiva framework? If we decide that their enlistment is not efficient, then what weight attaches to that consideration when compared with the other considerations, which we dealt with?  Quite frequently, the military enlists draft candidates despite the fact that the expected effectiveness of enlisting them is low, and even particularly low. It does so for a variety of reasons. Should a similar approach be adopted for the issue at bar? Is there any possibility of increasing the effectiveness of their service by preparing special structures for Yeshiva students? Is that effort worth it, in light of the Yeshiva students’ life style?

39.  The solution to these problems is by no means simple, because they raise fundamental social and military problems.  Our approach is that this sort of penetrating national question must be resolved by the legislative branch, the Knesset. This is the only way of expressing “the optimal national consensus that will facilitate communal life ...” See the comments of my colleague, Justice Or, in Mitral [15] at 498. This is the only way of “… examining the issue in all its aspects, considering the different alternatives.” HC 355/79 Katalan v. Prison Authority [48] at 303. Hence, it follows that the Knesset cannot “pass the buck” to the Defense Minister, so to speak. Instead, it must resolve the issue statutorily. This is how a legal system faithful to the doctrine of separation of powers operates, in which the Rule of Law is maintained and where the democratic principle constitutes part of the “genetic code of all of the binding norms in Israeli Law.” See the comments of my colleague, Justice Cheshin, in Nevuani [12] at 121. Needless to say, we do not adopt any position regarding the substantive questions requiring answers, and the enumeration of the various social options does not constitute the adoption of any position as to their legality. Examination of that would be done in accordance with the constitutional framework within which these social arrangements are established.

40.  Is our approach consistent with the Defense Minister’s power to defer enlistment for “other reasons?” Here, we are confronted with an interpretative problem. We must interpret the Defense Minister’s power against the backdrop of the need to bring to fruition, by way of interpretation, the basic rule regarding primary arrangements. Such interpretation leads us to the conclusion that the Defense Minister’s powers ought to echo the difficult social decisions adopted by the Legislature. It is not for the Defense Minister himself to arrogate the power to make this decision. Indeed, the ideological-social problem regarding the enlistment of full-time Yeshiva students and the various solutions thereof must be resolved through the legislative activities of the branch which, in a democratic system such as ours, deals with such problems. This is not the executive branch.  In Israel, it is the legislature.

41.  Is our conclusion consistent with our decision in Ressler [1]? It seems to me that we may answer this question in the affirmative.  In Ressler [1] we emphasized that “quantity becomes quality.” Id. at 505. Since rendering our decision in Ressler [1], the arrangement’s dimensions have expanded, to the extent of becoming a national problem. It was not presented to us as such back in Ressler [1]. Hence, our attention then was directed primarily at the issues of standing and justiciability. The actual problem of enlisting Yeshiva students was not presented to us as a national problem of urgent importance. Since then, there has been an increase in the number of Yeshiva students whose military service has been deferred, and the trend indicates a continued rise.  There is reason to assume that it will continue to increase in the future. There have also been changes in the kind of enlistees who are granted the service deferral.  Hence, the arrangement has been broadened to include those who did not study in a Yeshiva High School, but rather those who studied in a regular religious high school and whose matriculation examinations included Talmud at the level of five units. The arrangement was also broadened to include the newly penitent.  It was further broadened so as to include not only full-time students, but also those whose professions, which were also their livelihood, is teaching Torah.  There is a point at which the large quantity of those included in broad sections of military candidates becomes a qualitatively different category. Furthermore, since our decision in Ressler [1], there has been a substantive change in our conception of our constitutional structure. The basic rule regarding primary arrangements has been reinforced, which in turn affects the interpretation of the power statutorily conferred on the Defense Minister by the Defense Services Law and the understanding of the case law that interpreted that power. The strength of the basic rule has increased together with the interpretative weight attaching to it when interpreting the Defense Minister’s powers. All of these constitute “new circumstances,” which justify a new interpretation of the old power. In any event, I am convinced that the current situation requires the Legislature to adopt a legislative solution, in view of the increasing numbers of full-time Yeshiva students receiving a military service deferral, which ultimately leads to a full exemption. This is done against the backdrop of the rift in Israeli society over the question of the deferral of military service for full-time Yeshiva students; against the backdrop of the legal problems and the serious social and ideological problems at their base; and in view of the need to provide a comprehensive national solution. All of these necessitate parliamentary intervention in order to provide a solution to this serious problem.

42.  We have concluded that the service deferrals for full-time Yeshiva students as currently granted by the Defense Minister are illegal.  In view of this conclusion, it is unnecessary to adopt a position regarding the manner in which the Defense Minister’s discretion is exercised. Suffice it to say that the Defense Minister’s discretion, as evidenced by the factual foundation presented before us, is problematic: it is unclear whether the security consideration is the dominant one, and there is cause for concern that, due to the massive increase of those receiving service deferrals and the addition of new categories of recipients of service deferrals, the zone of reasonableness has been overstepped, in terms of the quantity making quality (Ressler [1] at 505) and in terms of the weight that ought to have been accorded and which was not accorded to the principle of equality. However, as stated, since we have decided that the Defense Minister is not authorized to make a fundamental decision in this matter, we need not address the question of whether he legally exercised his discretion.

The Remedy

43. Our conclusion is that, in the present situation, the Defense Minister exercises his discretion in granting service deferrals to full-time Yeshiva Students in accordance with a principled decision that should be made by the Knesset. Consequently, the current exercise of power is illegal. Accordingly, decisions adopted by the Defense Minister regarding service deferrals for Yeshiva students were illegally adopted. Even so, there is no pragmatic way, overnight, to alter a situation that has endured for so long. The Defense Minister or the Knesset should be allowed to conduct a serious and organized discussion regarding the entire issue and all of its ramifications. Moreover, if a decision to alter the current situation is made, the necessary framework should be established. It is impossible to adopt an alternate arrangement from one day to the next. In these circumstances, there is no way of immediately ruling that the current arrangement is invalid. We must postpone the impat of our decision. With respect to our authority to do so, we mentioned in another case that:

“Our power to postpone the date upon which the declaration of invalidity goes into effect is well founded ... in comparative law. A similar power is given to a court that declares legislation invalid…

...

A similar law applies in Israel. Needless to say, this court will make use of its power to postpone only in special cases that warrant it.” HC 1715/97 Investment Managers’ Bureau v. Finance Minister [49] at 416.

The case at bar warrants the use of the said power. Having considered the period of the delay, we have reached the conclusion that the appropriate period of postponement is twelve months from the day this judgment is rendered, i.e. until December 9, 1999.

Consequently, the matter is decided as per section 43 of the judgment.

Deputy President S. Levin

I agree.

Justice T. Or

I agree.

Justice E. Mazza

I agree.

Justice I. Zamir

I agree.

 

Justice D. Dorner

I  agree.

Justice J. Türkel

I agree.

Justice D. Beinisch

I agree.

Justice I. Englard

I agree.

Justice M. Cheshin

The phenomenon is as old as the State itself. It is the deferral of and exemption from military service granted to full-time Yeshiva students. This exceptional phenomenon has accompanied us over the years and is a source of dissatisfaction for many people. How is it, they ask, that part of the population bears the yoke for the collective, while another part is exempt from bearing that yoke, yet benefits from the burden that others bear on their shoulders? Is this right and appropriate in a society in which all are supposed to be responsible for each other?  Many have not come to terms with this unique state of affairs, and hence, the issue has reached the High Court of Justice.  The Court has addressed petitions regarding the deferral/exemption of military service for Yeshiva students on at least five occasions, each time dismissing the petitioners empty-handed.

2.    In the beginning, the issue was raised in the High Court of Justice in HC 40/70 Becker v. Defense Minister (hereinafter- Becker [50]). That petition argued that 5,000 Yeshiva students had been released from military service. The petitioner requested that he, too, be released from the period of his military service equivalent to the period that had been added to his service, due to the exemption of 5,000 Yeshiva students. The Court did not even trouble the respondent's lawyer to appear before it to explain why certain things had happened and why other things had not happened. Instead, it decided to reject the petition outright, by reason of the petitioner’s lack of standing and the injusticiability of the subject.

Justice Witkon characterized the petition as a “collective public petition,” and for that reason, he held that that there was no cause for addressing it. Justice Witkon stated, inter alia, that the Court must be careful “…not to be dragged into the general, public debate which is entirely a dispute on its own merits. It is preferable that it be left in the hands of the political elements responsible for it … this clearly being a political issue, there is reason to apply a stricter application of the requirement that the petitioner have standing ….” For his part, Justice Y. Kahn concurred with Justice Witkon’s reasoning, adding that “it is well known that the reason given for granting service deferrals to Yeshiva students is the need to preserve the institutions in which Torah is studied, after the destruction of such learning centers during the Holocaust.” Id. at  249.

I confess that, even when the judgment was rendered, it made no sense to me. The statement that the subject is of “a clearly political nature” and that the Court ought therefore to distance itself from it, was as difficult for me to understand then as it is today.  Is serving in the I.D.F. a political issue? Did the Court think that political agreements as such could exempt the youth from serving in the I.D.F.?  Furthermore, had the issue been one of an exemption for 50,000 Yeshiva students, would the Court have maintained its position? And if, in the latter case, a different answer had been given, then does the “character” of the subject change from political to non-political, purely on the basis of the number of those benefiting from the exemption/deferral?  With respect to the (additional) reasoning of Justice Y. Kahn regarding what is termed the preservation of the burning embers [preservation of tradition – ed.], I say that even if we presume that Justice Kahn was correct in assuming that we are charged with the national task of restoring and rejuvenating the Torah Study centers that were destroyed, are we not still justified in examining the propriety of benefiting so many Yeshiva students, 5,000 specifically, by granting the exemption/deferral? Would it not have been appropriate, at least, to hear the respondent's opinion on the matter? We all know that a judgment of this nature could not be handed down today, and personally, I think that even at that time, the judgment was exceptional and extreme.

3.    The issue of granting exemptions/deferrals to Yeshiva students was once again presented to this Court in HC 448/81 Ressler v. Defense Minister [51], and, once again, the petition was rejected. The Court relied on the Becker [50] decision and decided to dismiss the petition for essentially the same reasons that Becker [50] was dismissed. To quote Deputy President Kahn: “In my opinion, the petitioners have not succeeded in establishing their right of standing, which would justify this Court actually deliberating on the petition, which on its face appears to be non-justiciable.” Id.at 86. He added that “…the petition before us cannot be upheld, for its subject is not amongst the matters that can be adjudicated by a Court. The question of whether or not to enlist full-time Yeshiva students is one on which the Court lacks any legal standards upon which to base a judicial finding. Id. at 88. Deputy President Kahn added:

 …even if the petitioners were to prove with signs and wonders (and as I said, I do not think that such proof can be made) that their reserve duty would decrease as a result of the enlistment of Yeshiva students, I would not see this as providing cause for issuing an order nisi. The issue of whether or not to enlist Yeshiva students is essentially a public problem, the resolution of which must be left to the political elements, whose task it is to decide these issues. The arrangement of deferral of service for Yeshiva students has existed since the establishment of the state, and the respondent has not made any significant change in the matter.

Id.

Deputy President Kahn further said:

 The petition clearly evidences an effort to drag this Court into a public-political debate regarding a sensitive and volatile issue, regarding which there are serious differences of opinion in the public at large.  The petitioners cannot succeed, due to their lack of standing, the fact that the subject is non-justiciable, and the fact that they have shown no cause for this Court’s interference with the exercise of discretion that was conferred on the respondent by the legislature.

Id. at 89.

In this case, too, no one was summoned from the State Attorney’s office to explain what (in my opinion) ought to have been explained.  Today we know (from the information provided by the State Attorney’s office) that at that time there were more than 11,500 Yeshiva students who were benefiting from the exemption/deferral.

I confess that I find this ruling particularly difficult, and I found it difficult at the time it was rendered.  I am prepared to agree that the issue is a public, political one. I am also prepared to agree that the issue is sensitive and explosive. I will further agree that the matter is the subject of serious public controversy.  I agree to all of these, but I still find it difficult to understand why those particular factors have the effect of locking the gates of the Court, at a time when it is claimed that the Defense Minister is making arbitrary use of his power and illegally exempting thousands of Yeshiva students from service. Is the statement that the issue is “political” a magic word that closes gates? Can this statement shelter the Defense Minister, allowing him, albeit indirectly, to systematically and sweepingly breach the law, with none of us, the people of the law, having anything to say?  Is there no real legal aspect to the Defense Minister’s activities? The judgment in HC 448/81 [51] was handed down at the end of December, 1981. We all know that no more than six months later, the Yeshiva students’ contemporaries went to war, some of them never to return.

4. The petitioners in HC 448/81 [51] did not give up and requested a further hearing in FH 2/82 [43]. President Landau’s decision signaled a fresh approach. First of all, the President ruled that the petitioners’ locus standi had been proved, even if only for the reason that an “entire additional division” could be created from the aggregate number of draft candidates who benefited from exemptions and deferrals from military service. Even so, President Landau denied the petition due to it not being justiciable, albeit he did so reluctantly. Finally, President Landau mentioned the claim that had been raised, that the issue of the deferral/exemption “required a specific legislative resolution, following a comprehensive Knesset debate” and that “"it could not be resolved via the Defense Minister’s administrative decision nor by a Government decision in its executive capacity, seeking to implement a coalition agreement.” Id. at 711-712. Referring to this claim, President Landau opined that in his view “it ought to be heard,” but that given that there hadn’t been any ruling in the case that was the subject of the further hearing, it could not serve as the foundation of the further hearing. The claim was dismissed, but the seed was planted. Years would pass until the seed would begin to mature, and now it has sprouted from the ground.

5.    Ressler and his companions were not deterred. About one month after the decision in their petition for a further hearing, they filed a new petition: HC 179/82 Ressler v. Defense Minister [52]. However, this petition, too, was rejected due to the petitioners’ lack of standing.

6.    Thus, we arrived at the next Ressler case, namely HC 910/86 Ressler v. Defense Minister, IsrSC 32(2) 441.  This time, the Court held that the petitioners had standing and that the question of exempting Yeshiva students is one that should be heard on its merits. Having reached this conclusion, the Court reviewed the Minister’s discretion, and decided the two following points:  First, that the Defense Minister had been statutorily endowed with the discretion to grant a deferral/exemption to Yeshiva students. Second, that the Defense Minister had not exceeded the zone of reasonableness. At the time, over 17,000 Yeshiva students benefited from the exemption/deferral. We should recall that sixteen years prior to the Ressler case, there were 5,000 Yeshiva students affected, and five years prior thereto, the number of those receiving the deferrals/exemptions was 11,500.   Nevertheless, the Court opined that the number of those receiving releases from military service did not deviate from the statutory parameters established for the Defense Minister’s discretion. Even so, Justice Barak wrote to add the following:

 In balancing the various considerations forming the basis for the Defense Minister’s discretion under section 36 of the statute [the Defense Services Law [Consolidated Version] 1986] the determining consideration must be that of security. It was for that purpose that the Defense Services Law was enacted and some of the exemptions from military service are formulated in that spirit ¼ at the end of the day, there is significance to the number of Yeshiva students whose enlistment is deferred.  There is a limit that no reasonable Minister of Defense may exceed. Quantity becomes quality. In this matter the petitioners have not discharged their burden of showing that the harm to security is not minor.

Id. at 505.

     And further on (at 506-07):

…if the number of those whose service is deferred by reason of Torah study continues to increase until it includes a very large number of men of military age, to an extent that harms security, the moment will surely arrive when it will be said that the decision to defer enlistment is unreasonable and must be canceled.

President Shamgar added to this (at 525-26):

 ¼what we now determine regarding the legal validity of the arrangement, when it is subjected to substantive judicial review for the first time, does not exempt the Executive from the duty of periodically continuing to examine and reexamine the significance of granting an exemption to increasing numbers of men of military age.

¼ therefore, we are not speaking of static data but rather of facts which change and which are updated on a yearly basis. This means that it is incumbent upon the authorized body to examine the data annually and state its opinion concerning the ramifications of the data, against the background of other considerations.

 When I read the judgment at the time – a judgment that is both brilliant and unique for its addition to the doctrines of standing and justiciability – I had considerable difficulty with it. I asked myself whether an interpretation of the Law, under which the Defense Minister is authorized to exempt over 17,000 youths from military service could be appropriate. Is it appropriate that so much authority be concentrated in the hands of one person, the Defense Minister, even with the Government’s consent, and indeed under its orders?  Is an interpretation of the Law according to which the Defense Minister is endowed with such far-reaching powers consistent with the main principles of a parliamentary democracy, or if you prefer, of a Jewish democratic State?  This question has haunted me, unceasingly, since then, perhaps even from the time of Becker [50].  

Primary Arrangements and the Interpretation of Law

7.    My colleague, the President, rules that, in a social framework governed by the Rule of Law in its substantive sense; in a society in which governmental powers and the power to coerce are divided between the legislative and executive branch; in a society in which human rights are at the pinnacle; in these social-governmental frameworks, first principles unequivocally instruct us that the broad exemption granted to Yeshiva students must be prescribed by statute. I unreservedly concur with the words of my colleague.

            For my part, I will add that this conclusion, which derives from the roots of our society and government, is also mandated by virtue of the Defense Services Law, from the time of its enactment (in 1949 and in its current form, [Consolidated Version] 1986) and from the legal infrastructure upon which it rests. The Defense Services Law [Consolidated Version] rests upon two foundations. The first – the principle that those reaching military age are subject to military service, including both regular and reserve duty.  The second – the principle that the Defense Minister is empowered to grant an exemption from military duty, to reduce the period of service, or to defer service. With respect to all of these, section 36 of the Defense Services Law states:

 

Authority to  exempt   from or to defer

36. The Minister of Defense may, if he sees fit to do so for reasons related to the size of the regular forces or reserve service forces of the Israel Defense Forces or for reasons related to the requirements of education, security settlement or the national economy or for family or other reasons do the following, by order: (1)  exempt a person of military age from regular service duties or reduce the period of his service; (2)  exempt a person of military age from reserve duties for a specific period or totally; (3)   by virtue of an application made by a person of draft age or a person designated for defense service other than a person of draft age, defer by order for a period prescribed therein, the date of reporting prescribed for that person, under this Law or regulations hereunder, for registration, medical examination, defense service or, if he has already begun to serve in the defense service, the continuance thereof.

 

To complete the picture, I will cite section 55 of the Law, under which an order pursuant to section 36 of the law can be “personal or for a particular class,” distinct from orders issued under other provisions of the law which can be general, for a particular class, or personal. 

I will also mention section 54(a) (opening section) of the law under which the Defense Minister may delegate his powers under section 36 of the law to another person. The Defense Minister exercised this power and delegated his authority to exempt men of military service from regular service and to reduce or defer the service period for a long list of positions: Assistant to the Defense Minister, the Chief of the General Staff, Deputy Chief of General Staff [… ed.]. All these positions are specified in the notification of delegation of authority published in the Official Gazette No. 202 (Nov. 4, 1997).

8.    We can all agree that the basic duty of men of military age to serve in the military, in regular or reserve duty, must be prescribed by statute. The duty to serve in the military is like the obligation to pay taxes, and we would never agree, nor would it even occur to anyone, to impose it by force of administrative regulations, irrespective of how lofty the executive power creating the regulations may be (obviously this does not refer to emergency legislation). Thus, when it became clear that there was a lacuna respecting men of military age’s duty to serve, this is to say complete regular service for a period of 36 months, the Knesset responded immediately and amended the Defense Services Law [Consolidated Version] and specified in the Law itself that the period of service was 36 months. See Defense Services Law [Consolidated Version] (Temporary Provision), 1995; Bill for Defense Service Law (Amendment 6) 1994; Defense Services Law [Consolidated Version] (Temporary Provision) (Amendment) 1997; A Rubinstein, The Constitutional Law of the State of Israel [72] at 828-29.

Personally, I have found no operative distinction between the general obligation, in principle, to serve in the military and the general exemption, in principle, from service in the military. If the general obligation, in principle, to serve in the military can only be imposed by statute, then a general exemption, in principle, from military service must also find its place in legislation. An example of this is found in section 40 of the Defense Services Law [Consolidated Version] under which an exemption is granted to a woman of military age who declares in writing that reasons of religious conviction prevent her from serving in the military service and that she observes Jewish dietary laws at home and outside and does not travel on the Sabbath.  The same applies to the case at bar. The authority granted in section 36(1) of the Defense Services Law [Consolidated Version] "to exempt someone of military age from regular service, or to reduce the period of service," is no more than the authority to issue individual orders: to Rueben, to Simon, to Levi, to Yehuda. The Defense Minister was not endowed with the authority to issue a general exemption.

The Knesset signed a sovereign order establishing mandatory military service. In signing that order, in essence, the Knesset gave public notification that the cancellation of that order, either partially or completely, was exclusively within its authority. The one who prohibits is the one who can permit [in Jewish tradition – ed.].

9.    Even so, just as we cannot accept that the Knesset can establish a basic obligation of defense service whereas the Defense Minister – and not the Knesset – is endowed with the authority to abrogate that basic obligation either partially or otherwise, so too, for reasons of efficiency, it is inconceivable that the legislature be charged with issuing individual exemptions from military service. Consequently, the Knesset delegated the power to issue personal exemptions to the Defense Minister.  Then, with the Knesset's approval, the Defense Minister delegated this power to various position-holders. However, a normative exemption, an exemption from service to a very large section of the population, is a power that the Knesset reserved for itself. Any other interpretation given to the law will inevitably lead us to the conclusion that all the Defense Minister’s delegates also have the authority to grant a general exemption from military service. It is clear that the Defense Minister is not authorized to delegate normative power to various position-holders, and this interpretation of the law is unacceptable.

10.  The current Defense Minister, like all his predecessors in successive Israeli Governments since 1977, did not take care to ensure that he acted exclusively within the parameters of his statutorily-determined authority. Instead of granting exemptions to Rueben and Simon, to Levi and Yehuda, or having his agents do so, the Defense Minister took the normative step of granting a general exemption to Yeshiva students. The Defense Minister was not authorized to do so, and neither were the Defense Ministers who preceded him. His actions were ultra vires with respect to his legally conferred powers.

Just as the authority to issue general orders does not include the authority to issue individual orders, so too, the authority to issue individual orders does not include the authority to issue general orders.  In this context we wrote in LCrim. 1127/93 State of Israel v. Klein [53] at 510:

…the power to enact regulations must be distinguished from the power to issue individual orders. An agency’s power to enact regulations, as such, does not include the power to issue individual orders. This is certainly true in the reverse situation, to the extent that the power to issue individual orders does not encompass the power to enact regulations. By its very nature and essence, a regulation is a piece of [administrative – ed.] legislation with independent standing, and it is not equivalent to the sum total of individual orders that could have been legally issued during the same period of time. By its very nature, a statutory order carries more weight than any number of individual orders that may be issued from time to time. Consequently, it should be regarded as a single act, which cannot be divided into parts (i.e. individual orders). For the same reason, because the respective nature of the powers is inherently different, the power to issue statutory orders does not include the power to issue individual orders.

11.  To sum up this point: upon closer examination of the exemption/deferral arrangement currently open to Yeshiva students, there can be only one inescapable conclusion: Yeshiva students are granted an automatic exemption/deferral provided that they are full-time students (we are not concerned here with the faulty supervision over compliance with this condition, which is the necessary and sufficient condition for the exemption/deferral). These exemptions/deferrals have the Defense Minister’s blessing (supposedly) in accordance with section 36 of the Defense Services Law when, in fact, this statute does not endow him with the authority to grant the exemptions that he grants in practice. The Defense Minister has the authority to grant individual exemptions from service, but the situation at hand is one in which the Defense Minister is granting a general exemption to Yeshiva Students.  In doing so, the Defense Minister exceeds his authority and the exemptions/deferrals granted are void.

Just as the Defense Minister would not have the authority to exempt “agriculturists” from regular or reserve duty, so too he does not have the authority to create the exemption – deferral for Yeshiva students – that he purports to do. Furthermore, from the arrangement as presented to us, it is clear that the Defense Minister does not consider individual applications for an exemption-deferral. Instead, the arrangement operates autonomously, without the need for anyone’s assistance to implement it. In so doing, the Defense Minister greatly exceeds the authority with which he was endowed.

12.  My position is therefore that a "universal," normative exemption from military service must have a statutory basis, and the Defense Services Law [Consolidated Version] does not empower the Defense Minister to exempt Yeshiva students from military service exclusively by virtue of their being Yeshiva students.

Quantity and Quality

13.  My colleague, the President, states that quantity becomes quality, and the conclusion is therefore that since the last Ressler [1] case, we have progressed from the quantitative stage to the qualitative stage. Personally, the issue of quantity alone is sufficient for me – a small quantity, a medium quantity, and a large quantity. There are quantities that are de minimus and there are quantities that we cannot ignore. It is not the straw that breaks the camel’s back, but rather the burden already on his back prior to that straw being placed there. It would seem that the deferrals/exemptions granted to 17,000 Yeshiva students, as presented to the Court in the last Ressler [1] case, were already too much. However, even if this was not our view, this is definitely the case today with respect to the 29,000 Yeshiva students receiving exemptions/deferrals.

14.  Let me clarify and explain. I did not say, and I will not say, that studying in a Yeshiva is not an appropriate reason for receiving a service deferral.  This was the ruling in the last Ressler [1] case and I accept that view entirely. This would also be the law if it were decided to grant a service deferral in order to enable computer studies, the study of engineering or any other profession that was deemed important to the military and the State.  Both of these are problematic in the case at bar (both theoretically and substantively-legally). First, there is no limit on the number of deferrals granted, whether a priori or post factum. That is how the quantity grew to its current dimensions. Second, the deferrals became, and are in fact, exemptions.  Hence, for full-time Yeshiva students, a priori, the issue is not one of service deferral but rather of exemption from service. "Torah as a way of life" has come to mean and is coming to mean, de facto and ex ante, not just deferral of service but rather exemption from service. The routine has become ingrained, to the point where it has become an accepted way of life

It has reached the point where the exemption-deferral is regarded as an  inseparable, integral part of the life of the society and state, as if the burden of proof lay with those claiming that the Minister of Defense acted illegally, in an ultra vires manner. In our view, the reverse is true.

In the Future

15.  With respect to the future, administrative regulations cannot, in the normative sense, provide Yeshiva students with an exemption from military service. We all agree on this point.  Personally, I will not reach the issue (which we were not asked to decide) of whether legislation passed by the Knesset could exempt Yeshiva students from military service. There are those who would argue (and I will not elaborate) that even a Knesset statute would not be sufficient. It could further be argued that even a Basic Law would not be sufficient. There are limits to the Knesset’s legislative powers (see my comments in United Bank Hamizrachi  [16]). The saving of a life overrides the prohibition on doing work on the Sabbath. Tractate Shabbat [a]. Some say that even when it is uncertain whether a life is at stake, the prohibition is to be overridden. Jerusalem Talmud, Tractate Yoma [b]. We should remember that we are concerned with no less than saving lives.

Justice T. Strasberg-Cohen

I concur with the judgment of my colleague, President Barak, as well as with the comments of my colleague, Justice Cheshin.

Decision of the Court

The Court  ruled in accordance with the judgment of President Barak.

Decided today, December 9, 1998.

 

H.C.J 910/86

 

1. Major (Res.) Yehuda Ressler, Advocate

2. Captain (Res.) Zeev Kosseen

3. Staff Sergeant (Res.) Rami Dekel

v.

Minister of Defence

 

In the Supreme Court sitting as the High Court of Justice

[June 12, 1988]

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

 

 

Editor's Summary

 

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

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

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

               

                The High Court ruled as follows:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

Israel Supreme Court Cases Cited:

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

American Cases Cited:

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

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

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

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

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

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

 

English Cases Cited:

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

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

 

Canadian Cases Cited:

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

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

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

 

Sources of Jewish Law Cited:

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

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

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

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

 

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

 

Y. Ressler - for the Petitioner;

N. Arad - for the Respondent.

 

 

JUDGMENT

 

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

           

The Facts

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

 

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

 

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

           

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

           

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

           

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

 

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

           

The Legal Framework

 

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

 

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

 

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

 

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

 

(c) that a person...shall be released for a specific period or entirely, from the obligation of reserve service".

 

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

           

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

           

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

 

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

 

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

 

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

 

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

           

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

           

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

 

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

 

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

 

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

 

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

           

Earlier Petitions

 

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

 

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

 

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

 

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

           

The Petition and Submissions Thereunder

 

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

 

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

           

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

 

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

           

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

 

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

           

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

 

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

           

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

 

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

 

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

 

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

 

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

 

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

 

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

           

Legal Standing

 

A. The Point of Departure

 

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

           

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

 

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

           

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

 

B. The Basis of The Problem

 

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

           

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

 

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

           

 C. "The Classical Approach"

 

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

           

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

 

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

 

D. The Conventional "Exceptions"

 

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

           

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

           

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

 

E. Liberalization of The "Exceptions"

 

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

 

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

           

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

 

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

 

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

 

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

 

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

 

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

           

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

 

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

 

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

 

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

 

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

 

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

 

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

           

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

           

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

 

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

           

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

 

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

           

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

 

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

 

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

           

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

           

The Solution: Pragmatic Balancing

 

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

 

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

           

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

           

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

           

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

 

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

           

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

 

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

 

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

           

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

 

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

 

 

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

           

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

           

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

           

G. From The General To The Particular

 

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

 

(1) The Petitioners Have Standing Under The Classic Approach

           

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

           

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

 

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

           

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

 

The affidavit additionally states:

 

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

 

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

           

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

           

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

 

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

 

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

 

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

           

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

 

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

 

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

 

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

           

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

 

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

           

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

 

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

           

Justiciability

 

A. The Parties' Claims

 

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

 

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

           

B. Various Meanings Of The Concept Of Justiciability

 

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

 

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

           

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

 

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

 

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

           

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

 

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

           

C. Normative Justiciability (Or Non-Justiciability)

 

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

 

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

 

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

           

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

 

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

           

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

 

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

           

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

 

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

 

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

 

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

 

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

 

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

 

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

           

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

 

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

           

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

 

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

           

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

 

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

 

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

           

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

 

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

           

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

 

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

 

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

 

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

 

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

 

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

           

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

 

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

 

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

 

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

 

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

 

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

 

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

           

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

 

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

           

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

 

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

 

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

 

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

 

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

 

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

           

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

           

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

 

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

           

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

           

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

 

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

           

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

 

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

 

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

           

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

           

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

           

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

           

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

 

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

 

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

           

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

 

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

           

D. Institutional Justiciability (Or Non-Justiciability)

 

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

           

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

           

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

           

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

           

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

 

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

           

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

           

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

 

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

           

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

           

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

 

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

           

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

 

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

           

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

 

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

           

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

 

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

           

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

 

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

           

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

 

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

 

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

           

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

 

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

           

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

 

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

           

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

 

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

           

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

 

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

           

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

           

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

           

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

 

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

           

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

 

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

           

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

 

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

           

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

 

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

           

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

           

E. From The General To The Particular

 

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

 

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

           

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

 

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

 

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

           

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

           

Jurisdiction Of The Minister Of Defence

 

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

 

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

           

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

           

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

 

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

 

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

           

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

 

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

 

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

           

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

 

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

 

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

 

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

           

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

 

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

           

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

 

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

           

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

 

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

           

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

           

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

           

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

 

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

           

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

           

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

           

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

           

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

 

 Reasonableness Of The Minister Of Defence's Exercise Of Discretion

 

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

           

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

 

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

           

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

 

            Counsel for the Respondent adds that:

 

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

 

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

           

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

 

            In contrast, there are those who think otherwise:

 

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

 

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

           

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

 

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

 

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

           

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

 

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

           

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

           

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

           

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

 

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

           

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

           

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

 

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

           

Additional Submissions

 

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

           

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

 

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

           

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

 

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

 

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

 

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

           

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

 

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

           

CONCLUSION

 

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

           

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

           

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

 

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

 

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

           

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

           

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

           

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

 

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

 

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

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

           

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

 

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

 

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

           

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

           

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

           

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

 

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

           

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

           

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

           

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

 

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

           

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

           

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

 

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

           

PRESIDENT SHAMGAR: Introduction

 

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

           

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

           

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

           

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

           

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

           

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

 

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

           

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

           

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

 

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

           

 Method Of Analysing The Problem

 

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

           

            (A) The Petitioner's right of standing;

           

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

           

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

 

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

           

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

           

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

           

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

 

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

           

The Procedural Stage In Which The Justiciability Question Arises

 

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

 

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

 

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

 

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

           

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

           

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

           

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

           

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

 

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

 

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

 

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

 

Justiciability

 

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

 

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

           

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

           

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

           

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

           

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

 

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

 

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

           

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

           

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

           

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

 

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

           

Separation Of Powers

 

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

           

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

           

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

           

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

 

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

           

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

           

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

 

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

           

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

           

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

 

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

           

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

           

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

 

Application Of The Justiciability Test In Practice

 

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

 

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

 

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

 

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

 

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

           

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

           

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

           

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

           

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

           

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

 

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

 

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

           

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

           

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

           

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

           

            Regretfully, I cannot accept the two courses outlined above.

           

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

           

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

           

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

           

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

           

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

           

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

 

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

           

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

           

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

           

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

 

Deferment Of Service

 

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

           

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

 

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

           

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

 

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

           

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

 

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

 

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

           

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

           

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

           

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

           

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

           

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

           

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

           

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

 

Decision as stated in the judgment of Barak, J.

 

Judgments given on June 12, 1988

HCJ 2838/95

 

Chaim Greenberg and 7 others

v.

1.       The Katzrin Local Council and 3 others

2.       Golan Heights Regional Council

3. Head of the Katzrin Local Council

4.       Head of the Golan Heights Regional Council

5.       Minister of the Interior

6.       Golan Heights Communities Association

 

The Supreme Court Sitting as the High Court of Justice

[May 11, 1997]

Before Deputy President S. Levin, Justices E.Goldberg, D. Dorner

 

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

 

Facts: The Katzrin Local Council and the Golan Heights Regional Council allocated monies, from the fiscal year 1992 and onwards, to the Golan Heights Communities Association. The purpose of the Association was, inter alia, to endeavor towards the establishment of additional communities in the Golan Heights. In furtherance of this purpose, the Association conducted protest and lobbying activities intended to ensure continued Israeli sovereignty over the Golan Heights. Petitioners, residents of Katzrin and the Golan Heights, contested the constitutionality of these allocations, asserting that the local and regional councils could not proceed against the foreign and defense policies of the national government.

 

Held: The Court held that the local and regional councils could not take action regarding issues in the national sphere, which had no connection to local interests. The Court held, however, that the issue of continued Israeli sovereignty over the Golan Heights, aside from its national significance, was also of unique local significance. As such, it was constitutional for the councils to allocate monies to further this goal.

 

Petition denied.

 

Legislation Cited:

Local Councils Ordinance

Local Councils Ordinance-1941

Municipalities Ordinance

The Golan Heights Law-1981

Municipalities Ordinance [New Version]

Local Councils Ordinance [New Version]

Foundations of the Budget Law-1985

 

Israeli Supreme Court Cases Cited:

HCJ 122/54 Axel v. Mayor of Netanya., IsrSC 8 1524.
HCJ 489/94 The Municipality of Kiryat Ata v. Mr. Yitzhak Rabin—Prime Minister and Minister of the Interior, (unreported case)
HCJ 5445/93 Municipality of Ramle v. Minister of the Interior,  IsrSC 50(1)  397.
HCJ 594/89 Arava Regional Council v. National Planning and Building Council, IsrSC 44(1) 558.
HCJ 609/82 Pantomp Overseas (1981) Ltd. v.  Investment Center, IsrSC 38(1) 757.
P.L.A. 265/89 265/89 Ravi v. Elections Clerk for the Local Committee, Jaljoulia, IsrSC 43(4) 437.
HCJ 337/81 Metrani v. Minister of Transportation, IsrSC 37 (3) 337.
HCJ 3716/94, Raz v. Mayor of Jerusalem, (unreported case).
HCJ 757/84 The Association of Daily Newspapers in Israel v. The Minister of Education and Culture, IsrSC 41(4) 337.
HCJ 72/55 Mendelson v. Municipality of Tel-Aviv-Jaffa, IsrSC 10 734.
Cr. App. 217/68 Izramax Ltd. v. State of Israel, IsrSC 22(2) 343.
HCJ 87/60 Kriboshi v. Ramat Gan Municipality, IsrSC 14 1015.
HCJ 155/60  Elazar v. Mayor of Bat Yam, IsrSC 14  1511.
HCJ 161/52 The Refinery Company of the Land of Israel v. The Rishon LeTzion Municipality, IsrSC 7 13.
P.L.A. 5817/95 Rozenberg v. The Ministry of Building and Housing, IsrSC 50(1) 221.
HCJ 287/71 Daabul v. Ramat Gan Municipality, IsrSC 26(2) 821.

 

Israeli District Court Cases Cited:

DC (Jerusalem) 3471/87 The State of Israel v. Kaplan, 1988 IsrDC (2)  265.

 

United States Cases Cited:

United States v. Pink,  315 U.S. 203 (1942).

 

English Cases Cited:

R. v. The Greater London Council, 19 Dec. 1984 (Q.B.) (unreported case)

 

Scottish Cases Cited:

Commission for Local Authority Accounts v. Grampian RC, [1994] Scot. L.T.R. 1120.

 

Israeli Books Cited

N. Ben Elia, Towards Differential Decentralization in Local Government (1995).
Local Government in Israel (D. Eleazar & C. Kalchheim eds., 1987).
2 A. Barak Law and Interpretation: Statutory Interpretation (1993).
E. Winograd,  Laws of Local Government (1988).
1 I. Zamir The Administrative Authority (1996).

 

Foreign Books Cited:

G.W. Jones & J. Stewart,  The Case for Local Government (2nd ed., 1985).
D.M. Hill, Democratic Theory and Local Government (1974).
S. Humes & E. Martin, The Structure of Local Government: A Comparative Survey of 81 Countries (1969).
D.P. Currie, The Constitution of the Federal Republic of Germany (1994).
L.H. Tribe, American Constitutional Law (2nd ed., 1988).

 

Foreign Articles Cited:

L.J. Sharpe, The Growth and Decentralization of the Modern Democratic State, 16 European Journal of Political Research 365 (1988)
G. Jones, Conclusion: Implications for Policy and Institutions, in Between Center and Locality: The Politics of Public Policy (S. Ranson et al eds., 1985).
C. Kalchheim, The Limited Effectiveness of Central Government Control over Local Government, 7 Planning and Administration  76 (1980).

 

Miscellaneous:

National Commission for Matters of Local Government (1981).

 

For respondents nos. 1-4—Avner Menosvitch, Asher Kula

For respondent No. 5—Osnat Mandel

For respondent No.6—Jonathan Bach

 

JUDGMENT

Deputy President S. Levin

1.    On September 22, 1995, this Court decided, by a majority opinion, to reject this petition. The petitioners are residents of the Katzrin Local Council [hereinafter Katzrin] and the Golan Regional Council [hereinafter Golan] situated in the Golan Heights. Respondents 1 through 4 are Katzrin and Golan and their heads. Respondent number 5 is the Minister of the Interior; respondent number 6 is an association whose members are the representatives of thirty-two communities from all ends of the political spectrum. According to its articles, the association has the following two goals:

1.To act legally to maintain Israeli sovereignty over the entire area of the Golan Heights, in accordance with the Golan Heights Law;

2.To seek to influence the agencies of the Israeli Government, the Jewish Agency of the Land of Israel, the World Zionist Federation and the various movements, to establish and develop additional communities in the Golan Heights and to strengthen and expand existing communities.

Within the framework of its activities, respondent number 6 conducted a public campaign, entitled “A Giant Exhibition of the Golan,” nationwide.

At the petitioners’ request an order nisi was issued, subsequently restricted in scope during the course of deliberations, regarding their objections to the financial allocations made by Katzrin and Golan to the association between 1992 and 1994. During this time Katzrin allocated a total sum of 1,870,000 NIS and Golan allocated the sum of 6,500,000 NIS to the association. The allocation of funds made during these years received the approval of the Ministry of the Interior. Although, at the time of the filing of this petition, the 1995 national budget had not yet been approved, it was nonetheless clear at the time that the Ministry did not intend to authorize funding for that year, in light of the Attorney-General’s legal opinion, outlined below.

On September 22, 1995, this Court decided to dismiss the petition by a majority opinion, with Justice Dorner dissenting. According to Justice Dorner, the petition should have been granted and the order nisi made final, beginning from the fiscal year of 1996. The Court did not make any order for costs.

2.   The petitioners claim that Katzrin and Golan acted beyond the scope of their authority by allocating the funds in question to the association. Thus, they argue, the constitutive statutes of Katzrin and Golan empower them to act for the promotion of the economic, social, and cultural welfare of their residents—and nothing more. Accordingly, the petitioners submit that Katzrin and Golan lack the authority to deal with political matters of national significance, such as the question of a potential withdrawal from the Golan Heights, which is the subject of heated public debate, even among the residents of the Golan Heights themselves. The sole issue raised by the petitioners before the Court was the question of authority per se, rather than the question of how this authority was used. The latter question was raised only during oral pleadings. As such, we will address only the former issue at this juncture.

On May 16, 1995, when the petition was still pending, the Attorney-General submitted an opinion, regarding the issue now at bar, to the Minister of the Interior. His report opined that Katzrin was not authorized to allocate funds to the association. In his view, under the current statutory arrangement, the authority to deal with foreign policy and security matters is the exclusive province of the government and the legislature. By contrast, the local authorities are restricted to acting at the municipal, not the national, level. In the Attorney-General’s own words, "the local authority has neither the obligation nor the authority to assist the residents of another local authority, or to support institutions not within its boundaries, which do not directly serve it or its residents." The association’s struggle to promote and preserve Israeli sovereignty over the Golan Heights, said the Attorney-General, is of national, as opposed to local, significance. While it is true that the residents of Katzrin will be directly affected by any decision taken regarding the Golan Heights, “the municipal council is nonetheless not the body that was elected or empowered to deal in foreign and defense matters on behalf of these residents."

In response, Katzrin, Golan, their chairpersons and the association all argue that the allocation of funds to the association was in fact legal. They argue that the aim of developing the Golan, like any other action aimed at maintaining Israeli sovereignty over the Golan, is a legitimate goal, which the council heads were elected to promote. While they agree that the issue of Israeli sovereignty over the Golan is an issue of national significance, they nonetheless point to the unique local aspects of the issue, upon which the fate of the residents of the Golan depends. Furthermore, they claim that this is a matter of self-preservation, which will determine the fate of the Golan residents. As such, Katzrin and Golan are entitled to exercise their inherent authority in order to ensure their continued existence.

3.   The statutory framework relevant to the petition is the following: section 146 of the Local Councils Order (A)-1950 and section 63 of the Local Councils Order (Regional Councils)-1958 [hereinafter Regional Councils Order]. The relevant part of section 146 of the Local Councils Order provides as follows:

The council is empowered, having regard for the Minister’s instructions, and to the extent that no statutory provisions are infringed, to act in any matter concerning the public within the council precincts, including the following powers:

1.To maintain order, good government and security;

2.To ensure the development of its precincts, to promote the economic, social and cultural well-being of all or any of its residents;

3.To serve as trustee or guardian for any public matter;

4.To establish and maintain public structures and to complete public works.

Section 63 of the Regional Councils Order is essentially similar to section 146 and the opening clause of the former is identical to the opening clause of the latter. For the purpose of both of these sections, primary emphasis must be placed upon the authority "to act in any matter concerning the public within the council precincts" (emphasis added).

Both chapter 12 of the Local Councils Order, as well as chapter 12 of the Regional Councils Order, set out provisions for the budget’s preparation, which requires authorization from the Local or Regional Council, respectively, as well as from the Minister of the Interior.

In light of the above, it is incumbent upon us to determine whether the allocation of monies to the association was indeed within the scope of these powers, and, for our purposes, whether it falls within the meaning of the words emphasized above. In fact, as Ms. Mandel accurately asserted, on behalf of respondent 5 and the Attorney-General, the wording of sections 146 and 63 is flexible enough to accommodate both the position of the petitioners and the position of respondents 1 through 4 and the association.

The state does not claim, from a semantic perspective, that it is impossible to bring the position of the petitioner within the scope of the statute's language. Instead, it submits that the test for defining the scope of the powers in question is functional rather than literal. Thus, it claims, the council is authorized to deal only with local matters, not with national political issues, typically dealt with by the national government. This gives rise to the question of which law applies to hybrid issues which involve both national and local aspects. With regard to these, Ms. Mandel proposes that the legal test should look to “the issue at the crux of the matter," as opposed to looking towards the “the issue’s implications for the local residents." The issue at the crux of our discussion relates to the matter of sovereignty over the Golan Heights, which is a national matter.  As such, this precludes the councils from interfering, even when a decision on the issue may be fateful for the residents of Katzrin and the Golan.

4.   I believe that the test proposed by the state is of no assistance in the case at bar. First, applying this test would mean that restrictive clauses should be read into the language of sections 146 and 63, such as clauses that read “provided that the matter is not one of national significance." I see no justification for doing so in this case. Second, the test itself seems to put the cart before the horse. In other words, it simply presumes that dealing with matters of national significance cannot be regarded as “a matter concerning the public in the council precincts." By the same token, the opposite approach could be taken, by which: “a matter concerning the public in the council precincts” is within the council’s power even if “it has implications on the national level." Third, the concrete question, which we must address, is whether the councils are empowered to allocate funds to the association. The issue is restricted to the question of allocating funds for financing various activities and does not extend to the political decision regarding the fate of Katzrin and Golan, which are without any doubt within the exclusive jurisdiction of the national government. The proposed test does not assist us in ruling as to whether the two jurisdictions, local and national, can be concurrent. 

5.   The litigants also acknowledge that the words “to act in any matter concerning the public in the council precincts” do not authorize the council to act in any matter whatsoever. Instead, such actions must serve a local interest. Local or regional councils are not empowered to declare war or conduct diplomatic relations with a foreign state, or to deal with matters of exclusive interest to other local authorities. While this principle is clearly obvious, its concrete application to various practical circumstances nonetheless often seems to raise difficulties. This is particularly true since there is almost no activity in the public sphere that does not involve both local and national interests:

Central and local interests are intertwined and impinge on each other in most of the services of local government…Any attempt to divide services into local or national services would impose artificial categories into which services had to be fitted, leading to a weakening of local government by passing over to the centre services in which there was a significant local interest.

J. Stewart & G.W. Jones, The Case for Local Government 80 (2d ed., 1985) [26].

What are the criteria for delineating the relations between the central government and the local authorities in the State of Israel, and how should these criteria be applied to the concrete issue at hand. Both the petitioners and the state presented a hierarchical model, under which the local authority derives its power from the central authorities. They both assumed that there is a clear dividing line between the local sphere, within which the local authority functions, and the national sphere, which is the exclusive province of the central government.  The councils and the association, on the other hand, presented a more dynamic model of relations, according to which the local authority can also act in matters having national implications, provided that they also directly and specifically affect their residents and, a fortiori, when the matter relates to the very survival of the public within the council’s jurisdiction. It is therefore possible to speak of two poles regarding the desired model of relations between the local and central governments. At one extreme lies the hierarchical, centralizing model, and, at the other extreme, the autonomous, decentralizing model. An intermediate model, would see the two governments as being mutually interdependent.

The last few decades have witnessed a worldwide trend, characterized by a shift from the centralizing model to the decentralizing model. This trend is most prominent in the so-called developed world, even in those countries with a tradition of centralization, such as France. See N. Ben Elia, Towards Decentralization in Local Government 7 (1995) [21]. This phenomenon is rooted in ideological, logistic and fiscal considerations as well as in the urbanization processes that accelerated after the Second World War. See L.J. Sharpe, The Growth and Decentralization of the Modern Democratic State, 16 European Journal of Political Research 365 (1988) [31]. The author presents significant data indicating a decrease in the central government’s relative portion of total governmental expenditure.

6.   A number of reasons can be cited in support of strengthening local government at the central government’s expense. See  D.M. Hill Democratic Theory and Local Government 222-24 (1985) [27]; G. Jones, Conclusion: Implications for Policy and Institutions, in Between Center and Locality: The Politics of Public Policy 311-12 (S. Ranson et al eds., 1985) [32]; Sharpe  supra. [31], at p. 373; Jones & Stewart supra. [26] at 5-7, 116; S. Humes & E. Martin, The Structure of Local Government:  A Comparative Study of 81 Countries 32-33 (1969) [28]; Ben Elia supra. [21], at 22, 29-30.

First, there is the democratic argument, according to which broadening the powers of the local authorities allows citizens to take an active role in the management of their own affairs, which gives them a sense of partnership in the determination of their fate. As local government is more accessible than the central government, each citizen's influence increases correspondingly.

Second, strengthening local government increases the division of powers between the various governing centers.  This, goes the argument, prevents the concentration of power in the hands of the central government and constitutes a safeguard against arbitrary behavior on its part.

Third, conferring power upon local government emphasizes the uniqueness of each particular constituency. This allows for flexible government, which is sensitive to the particular needs of each individual community. From this point of view, it is preferable that each constituency address its own concerns, as opposed to a situation in which these are the product of rigid national planning, uniformly imposed across the country.

Fourth, broadening the powers of the local authorities is said to  increase efficiency by alleviating some of the burden on the central government and encouraging local initiative.

7.   A process of decentralization has also occurred in Israel, though not necessarily as a result of an intentional policy decision. Instead, it seems to have been the product of practical and historical circumstances. During the British Mandate, local government was given much importance, this being the only sphere in which the inhabitants of the Land of Israel could exert any influence over their own lives. On one hand, the British Mandatory Government encouraged this trend, as stregthening local government enabled it to minimize the services it was forced to provide to residents. On the other hand, the Mandatory Government subjected local government to strict scrutiny by way of the Local Councils Ordinance-1921, later replaced by the Local Councils Ordinance-1941 and the Municipalities Ordinance-1934. These statutes were all based on the English principle of ultra vires, according to which local authorities, as creatures of statute, do not enjoy any powers beyond those explicitly conferred upon them by statute. According to this doctrine, they are unable to act beyond the confines of their statutory powers.

When the State of Israel gained its independence, a centralizing model came to characterize the relationship between local and central government. This was primarily the result of immediate circumstances that necessitated concentrating government in the hands of a single body, capable of setting the national agenda. Such an approach was also the fruit of a political culture suspicious of local autonomy. Under this patriarchal approach, local government was perceived as simply the sub-contractor of its central counterpart. In the aftermath of the Six Day War, however, and particularly after the Yom Kippur War, national authority was weakened as public attention and interest began to increasingly focus on local and regional issues. Yet another factor contributing to this process of decentralization was the population expansion in urban centers and the rise of capable and ambitious local leadership. Indeed, during that period, local leadership evolved from being the passive agent of the central government into its strategic partner. Consequently, the tendency today is to view the relationship between the central and local government as complex and multi-dimensional. See Local Government in Israel 10, 22-23 (D. Eleazar & C. Kalchheim eds., 1987) [22]; Ben Elia supra.[21], at 8-10. 

In 1976, the Israeli government decided to establish a National Commission for Matters of Local Government (known as the Zanbar Commission), whose report was submitted in 1981. In its report, the Commission emphasized that the State of Israel had evolved from its various communities, and should not dominate them through an overly centralized national government. Similarly, it pointed out that Jewish political culture had traditionally adopted the principle of division of power between various levels, thereby providing a basis for the “right to local government."  Thus, the Commission determined  that the desirable model for the relationship between local and central government was not the hierarchical model or the center-periphery model, but rather a model based on a tapestry of  interwoven relations, in which the state as well as local authorities coordinate, each deriving its authority from the people. While it is the central government that determines the structure of this tapestry, the local authorities nonetheless remain responsible for carrying out their duties within that framework. In addition, the Commission concluded that the system of governance is composed of both the national and the local government; the goal of the local authorities is to represent their residents and to ensure their physical, cultural and spiritual welfare, in conformity with the objectives of the State of Israel; the local authorities’ status is equal to that of the government in spheres of activity common to both; when supplying public services, the authorities must consider both national interests and the given locality’s specific needs, as well as the wishes of its residents. The proposal that suggested abolishing the ultra vires doctrine was rejected. It was, however, suggested that the local authorities be granted a broader mandate, specifying only general categories of authority within which the local authorities would be empowered to perform any action. National Commission for Matters of Local Government [34], at 13-15, 20. See also Local Government in Israel supra [22] at 23-24, 12, 24, 35-36; C. Kalchheim, The Limited Effectiveness of Central Government Control over Local Government, 7 Planning and Administration 76 (1980) [33].  

Today, the local authority functions as a quasi-political community, assuming a wide variety of functions, reaching beyond the functions traditionally associated with municipalities and local government. The control exercised by the central government in Israel is weaker than is commonly assumed.

8.   Adopting the decentralizing model to define the powers of a local authority still does not provide an answer to the specific issues at bar. Indeed, under this model also, it is conceivable that a particular matter of national importance may not fall under the local government’s powers, despite the specific implications it may have for residents of a given locality. In effect, Israeli case law has yet to provide an unequivocal answer to the question of which law governs those activities of the local authority which are of both local and national significance.

The cases of HCJ 122/54 Axel v. Mayor of Netanya [1], at 1524 and DC (Jerusalem) 3471/87 The State of Israel v. Kaplan [17], involved local bylaws that infringed on the freedom of occupation (by prohibiting the sale of pork) and on the freedom of conscience (by failing to allow places of entertainment to remain open on the Jewish Sabbath). In these instances, the Court held that the local authorities were not competent to legislate on these matters, in light of their national character. Such issues of national significance could only be regulated via legislation based on a comprehensive overview of the public’s general needs. Even so, it should be noted that those cases did not deal with matters of any special, distinct significance to the local residents of the localities concerned. On the other hand, where the issues involved were of national concern, but the local factor was the dominant one, the Court deemed the local authorities competent to regulate the matter. To this effect, see HCJ 489/94 Kiryat Ata v. Yitzhak Rabin—Prime Minister and Minister of the Interior [2]; HCJ 5445/93 Municipality of Ramle v. Minister of the Interior [3] (changing the territorial jurisdiction of the authorities) and HCJ 594/89 Arava Regional Council v. National Planning and Building Council [4] (regarding the establishment of the relay station “Voice of America”).

The only case cited by the association involving an issue similar to the one at bar was in the Scottish case Commission for Local Authority Accounts v. Grampian RC, [1994] Scot. L.T.R. 1120 [20]. The question there was whether a local authority had jurisdiction to fund a campaign in favor of the establishment of a Scottish parliament. The text of the relevant statutory provision in that instance was the following:

A local authority may ... incur expenditure which in their opinion is in the interest of their area or any part of it or all or some of its inhabitants.

The court there held that:

It is enough to open up the subject for consideration by the local authority that the expenditure may be in some way, although not directly or exclusively, in the interests of the area or its inhabitants.

Id,. at 1125. It was decided that the issue of whether or not to establish a Scottish parliament falls within the scope of the local inhabitants’ particular area of interest since:

The way in which the government is carried on generally, and the extent to which that will affect the functions of government to be performed locally within the local authority, may indeed be a matter of legitimate concern to the inhabitants of that area .... The desirability or otherwise of such an assembly or parliament is a matter of political controversy. But that fact itself does not mean that it cannot be in the interests of the area or of its inhabitants… to contribute to the discussion.

Id., at 1126. To my mind, however, the conclusion reached by the Scottish court in that instance is not the appropriate one for our purposes, even though the general approach adopted there may guide us. The issue of whether to establish a separate Scottish parliament was not of special interest to the residents of the particular locality, as distinct from the interest of the residents of other localities across Scotland.

9.   In light of the local councils’ extensive powers under either the decentralized or the intermediate model, it seems to me that the appropriate criteria for assessing whether a local or regional council is authorized to fund an activity with national ramifications, is to ask whether the activity in question is of specific interest to the local residents, beyond the matter’s national ramifications. Clearly, the central government’s scrutiny over the activities of its local counterpart should ensure that national interests are not sacrificed to narrow, local interests. Likewise, central supervision should also guarantee minimum uniform standards in order to prevent social inequality and also ensure that the local authorities function properly. This having been said, when the local authority is functioning properly and complies with the minimum demands set by its national counterpart, it is best for the central government to curb its interference in local matters.  This, of course, is subject to the existence of a local interest in the issue involved, which extends beyond the general national interest. I should also emphasize that my comments relate exclusively to the issue of jurisdiction and not to the substantive manner in which it is exercised. Had that latter issue arisen, it would have been incumbent upon us to examine the intensity of the separate local interest required in a particular case. As noted, however, the issue of the manner in which the local authorities’ exercise their discretion was not raised.

In my opinion, in the case at bar, the local councils in question have successfully shown the existence of a separate local interest, aside from the corresponding national interest, which justifies bringing the matter within their jurisdiction. It will be recalled that one of the two objectives for which the association in question was established was to preserve Israeli sovereignty over the Golan Heights, in accordance with the Golan Heights Law-1981.  The local authorities funded the association’s activities in order to promote the struggle against a withdrawal from the Golan Heights, which would entail withdrawing from the particular areas over which the local councils here have jurisdiction. Such a withdrawal would effectively put an end to the councils’ existence. Simple logic would dictate that these councils be entitled to do their utmost, within the bounds of the law, to preserve their existence. Clearly, no local interest could be more urgent than self-preservation. In other words, while the issue of continued Israeli sovereignty over the Golan Heights involves national policy, in the central government’s province, it nonetheless has inherent and obvious local implications. Clearly, any decision taken with respect to the Golan, whatever it may be, is liable to fundamentally change the lives of the residents of the councils. Let it be noted that this Court is not required to address whether the councils’ decisions are substantively correct. This is for the council’s residents to address, through their elected representatives.

This is all the more true given the association’s additional purpose of promoting new communities in the Golan Heights, as well as expanding and strengthening existing communities. This purpose obviously falls within the jurisdiction of the local authorities. Thus, had we held the allocation of funds to be ultra vires, we would have also been required to address the legality of allocating funds to a corporation with various and diverse goals. In light of the above-said, however, this issue does not arise.

 

The fact that the subject at bar is controversial does not affect our ruling.  The Court is only occupied with the issue of the local authority’s jurisdiction—not how many residents support or oppose the allocation of funds. As the councils who took the decision were democratically elected on the basis of a public platform, there is no need to address the question of whether or not there is consensus among the residents of the Golan Heights regarding the desirability of supporting the association. Having held that the matter of allocating funds is within the councils’ jurisdiction, by reason of it raising issues of special local interest, above and beyond the national interest, provides sufficient grounds for upholding the allocation of funds to the association. The fact that the issue also happens to be at the center of a political storm is not relevant.

For these reasons I am satisfied that the petition should be dismissed.

Justice D. Dorner

1.   A local authority, like any other administrative body, is bound by administrative law and has no power, save those specifically conferred it by statute.

The issue that arises in this petition is whether the local or regional councils are authorized to take actions that do not conform to foreign or defense policies of the central government that jeopardize the interests of the locality's residents. More specifically, our present question is whether the local and regional authorities of the Golan Heights are authorized to fund protest activities and propaganda that seek to guarantee continued Israeli sovereignty over the Golan Heights.

2.   My colleague, the Deputy President, is of the view that the council is authorized to act in such a manner, by virtue of section 146 of the Local Councils Order (A)-1950 and section 63 of the Local Councils Order (Regional Councils)-1958. These sections authorized the Councils, “having regard for the Minister’s instructions, and to the extent that no statutory provisions are infringed, to act in any matter concerning the public within the council precincts."

3.   The Orders were issued under section 2 of the Local Councils Ordinance [New Version], which provides:

The council’s functions, authorities and duties shall be determined in its constituting order.

Section 146 of the Local Councils Order provides as follows:

The council is empowered, having regard for the Minister’s instructions, and to the extent that no statutory provisions are infringed, to act in any matter concerning the public within the council precincts, including the following powers:

1.To maintain order, good government and security;

2.To ensure the development of its precincts, to promote the economic, social and cultural well-being of all or any of its residents;

3.To serve as trustee or guardian for any public matter;

4.To establish and maintain public structures and to complete public works.

5.To establish, maintain and manage institutions that, in the council's opinion, will serve the public interest.

6.To regulate, restrict or prohibit the establishment and the conduct of affairs of any authority, factory or public institution;

7.To regulate, restrict or prohibit the establishment of businesses, trades and industries.

8.To establish procedure¼ in order to ensure public health, order and security;

9.To regulate, restrict or prohibit the farming, maintenance or sale of pork;

10.To regulate¼ peddling..;

11.To regulate irrigation, sheep herding and the prevention of erosion

12.…

13.To adopt all measures necessary for the preparation of the economy for emergencies...."

The wording of section 63 of the Local Councils Order (Regional Councils) is identical to the wording of this section.

4.   To my mind, the provision upon which my colleague bases the council’s authority cannot be so construed. My colleague’s interpretation is inconsistent with the provision’s purpose, as reflected by the legislation as a whole, including the empowering statute and the local council’s status in our system of government.

5.    The local authorities’ various activities are listed in the Municipalities Ordinance [New Version] and the Local Councils Ordinance [New Version]. Both of these ordinances establish relatively limited autonomy for the local authorities, subjecting them, for the most part, to the authority of the central government.

Indeed, the Minister of the Interior wields extensive influence over the local authorities. The Minister is empowered to constitute municipalities and councils. See sections 3, 5 and 6 of the Municipalities Ordinance, section 1 of the Local Councils Ordinance. He is empowered to disband an elected municipal council and order new elections or to appoint a standing committee in the municipal council’s stead. See section 143 of the Municipalities Ordinance and section 38 of the Local Councils Ordinance. The Minister is further authorized to alter the municipal or local boundaries, see sections 8 and 9 of the Municipalities Ordinance and sections 4-7 of the Local Councils Ordinance, and even annul them altogether. See section 11 of the Municipalities Ordinance, section 42 of the Local Councils Ordinance. Moreover, by-laws adopted by the municipality or the council require the Minister’s approval. See section 258 of the Municipalities Ordinance, section 22 of the Local Councils Ordinance.  Similarly, the Ministry of the Interior’s regional appointee has the authority to order the council or the municipality to perform any legal duty incumbent upon it, or to appoint someone to fulfill that duty. See section 41 of the Municipalities Ordinance, section 36 of the Local Councils Ordinance. The local authority’s budget, a significant portion of which is funded by the state, requires the approval of the Minister of the Interior, who is entitled to add or detract from it. See sections 206, 207 of the Municipalities Ordinance, section 27 and 29 of the Local Councils Ordinance.  For its part, the Foundations of the Budget Law, 5755-1995, renders credit requests by the local authority contingent on the Minister of the Interior’s approval. Id., at § 45. Furthermore, the council’s power to impose taxes or surcharges is restricted, Id., at § 31, and a prohibition is imposed on the signing of any wage agreements with employees of a local authority, inconsistent with the standards applied to state employees, Id., at § 29.

6.   The powers set out in the Orders all relate to municipal matters. This local authority is restricted in the exercise of its powers and the Minister of the Interior is authorized to intervene in their exercise. The opening clause of the Orders stipulates that authority is granted the council “having regard for the Minister’s instructions." Section 223 of the Municipalities Ordinance concludes, in relation to municipal powers, that “provided there is no other order issued by the Minister in these matters."

The whole legislative scheme illustrates that the Orders’ purpose is to empower the local authority to provide municipal services to the public within its jurisdiction. Hence, “a matter concerning the public in the precincts of the council” is a municipal matter that the local authority is empowered to deal with.

7.   The municipality, which ranks highest among local authorities, is invested with broader powers than those of the councils. This having been said, the Municipalities Ordinance contains no residual provision similar to the provision in the Orders, upon which my colleague’s interpretation is based. Section 233 of the Municipalities Ordinance stipulates as follows:

The municipality shall, within its precincts, act with respect to the matters specified with regard to the Municipality’s duties in Article B, and any other function that the municipality is held to perform as per this Ordinance, or under any other law, and it is empowered, within the municipal precincts or in the area of the town which encompasses the municipality, to act on the matters dealing with the authorities of the municipality, as set out in Article C. This applies absent any other provisions issued by the Minister in these matters, and subject to the provisions of the Ordinance and of any other Law."

Sections 235-249 A of the Municipalities Ordinance regulate both the powers and the duties of the municipalities, all of which concern municipal matters relating to the municipality’s precincts.

Both the Municipalities Ordinance and the Local Councils Ordinance, including the orders promulgated therefrom, deal with the same material, in pari material, and should therefore be given the same interpretation, wherever possible.  To this effect, see Justice Elon’s opinion in HCJ 609/82 Pantomp Overseas 1981 v. Investment Center [5], at 766:

The interpretation of two statutes dealing in pari materia, with the same subject and same goal, ought to be as uniform as possible.

Two statutes dealing with the same subject are essentially complementary elements of the same legislative structure. The arrangements in both statutes, directed towards achieving the same goal must be interpreted identically. Thus, in PLA 265/89 Ravi v. Elections Clerk for the Local Committee, Jaljoulia [6], it was argued that voting slips for the head of a local council should be invalidated where the name of the candidate was added in handwriting.  The Court rejected that claim. The Court interpreted a provision of the Local Authorities Law (Election and Tenure of Head and Deputy Heads)-1975, in light of an arrangement found in the Local Authorities Law (Elections)-1965.  In this vein, Justice S. Levin wrote:

This interpretation is justified due to the need to preserve harmony between the statutes and to prevent an undesirable situation whereby two slips are placed in the same envelope—one for the election of the council, and the other for the election of its head—with one of the votes considered valid and the other invalid, even though both of them bear handwriting not belonging to the voter.

Id. at 440. See also, 2 A. Barak Law and Interpretation: Statutory Interpretation 327-335, 341-343 (1993)

8.   In the case at bar, the interpretation of the Orders should conform to that of the Municipalities Ordinance, and not the other way around. There are three reasons for this: First, the normative status of the Municipalities Ordinance is superior to that of the Orders. Second, the Municipalities Ordinance precedes the Orders in time. Generally speaking, when dealing with legislation dealing with the same material, the earlier law is interpreted in a manner consistent with the later law. See Barak supra. [23], at 195. Third—and this is the central point—the Municipalities Ordinance offers no textual basis supporting an interpretation in which the necessary powers would be conferred upon the municipality. The Orders can easily be similarly construed.

9.   Orders enacted by way of secondary legislation should be interpreted in accordance with the legislative purpose of the primary legislation upon which they are based. Furthermore, the interpretation limits itself to the confines of the empowering statute. In the words of Deputy President Shamgar, in HCJ 337/81 Metrani v. Minister of Transportation [7], at 358:

Not only must a regulation not contradict the provisions of any statute, but it must also not deviate, substantively or procedurally, from the legislatively determined boundaries.

For our purposes, the purpose of the Local Councils Ordinance, as reflected by the entirety of its provisions, as well as by the Municipalities Ordinance, is to impose executive duties on the local authority, with respect to the municipal areas within its jurisdiction.

10. In effect, the legislation regarding the local authorities is grounded in ordinances that date from the Mandatory period, intended to ensure absolute state hegemony over the local authorities. Granted, today, it is appropriate to interpret statutes in light of the political and social changes that have occurred since the establishment of the State of Israel. This having been said, there is nothing in Israel's democratic regime to support the interpretation suggested by my colleague. Quite the contrary is true.

11. Allocating responsibility to the local authority is based on the understanding that it is preferable that local affairs be conducted in accordance with the conditions and needs of the particular locality. Clearly, the appropriate solution in a particular place is not necessarily appropriate in a different locality. Thus, the local authority has a relative advantage over the central government in dealing with local problems. Furthermore, from a democratic standpoint, it is similarly appropriate that local matters be conducted in accordance with local resident’s desires and aspirations, by their elected representatives. See E. Winograd, Laws of Local Government 1-2 (1988) [24].

This, however, does not give the local authorities concurrent jurisdiction with state authorities in matters of national significance, merely because they happen to also specifically affect a particular place. Even in countries whose constitution confers extremely broad autonomy in the conduct of local affairs, there is no model that grants these authorities any powers in areas under the jurisdiction of the central government, such as foreign affairs, defense, and the determination of borders.

In Germany, for instance, the status of the local authorities is constitutionally guaranteed. However, under section 28(2) of the German Constitution, the authority to alter the judicial boundaries of a locality belongs to the central government, which also has the authority to disperse the authority altogether. See D.P. Currie The Constitution of the Federal Republic of Germany [29].

In England, the Local Government Act (1972) granted the local authorities a large degree of autonomy in the conduct of their municipal affairs. Nonetheless, the court disallowed the decision of the Greater London Council to fund a propaganda campaign against the Government's plan to dissolve the Council, which would have resulted in the firing of 22,000 employees. See R. v. The Greater London Council, 19 Dec. 1984 (Q.B.) (unreported case) [19].

In the United States, the Federal Government’s exclusive power to deal with foreign affairs and defense is constitutionally enshrined. See United States Constitution, art. 1, § 8; art. 2,  § 2. Under these provisions, acts of the states that fail to conform with the foreign policies of the federal government were struck down. See, e.g., United States v. Pink, 315 U.S. 203 (1942) [18]. See also L.H. Tribe, American Constitutional Law 230 (2d ed. 1988) [30].

In Israel too, we must conclude that a local authority is not authorized to take action influencing the determination of the state's borders or other issues of national importance. Indeed, President Shamgar related to this matter in HCJ 3716/94 Raz v. Mayor of Jerusalem [8], concerning a petition challenging the support of the Jerusalem Municipality to those demonstrating against the visit of the Chairman of the Palestinian Authority to the city:

It is generally accepted that, with the exception of humanitarian assistance, provided by the municipality to the strikers legally demonstrating in the public domain (water, light, toilets, etc.), a local authority is not empowered to make donations from public resources for the purpose of supporting activities that are the subject of political controversy.

Similarly, a statutory corporation is not authorized to exploit its status to interfere with matters within the jurisdiction of other authorities. See, e.g., HCJ 757/84 The Association of Daily Newspapers in Israel v. The Minister of Education and Culture [9], at  385-87.

From all of the above, it becomes clear that the councils are not empowered to use their budgetary resources to support an association that acts to prevent Israeli withdrawal from the Golan.

12. On this issue, my colleague, the Deputy President, is of the opinion that a broad approach ought to be adopted, allowing the local authority to exercise its powers in matters that have significant local implications, even if the same issue is basically a national issue.  My colleague’s approach is a novel one for us.  Our case law, for example, has consistently ruled that local authorities are not permitted to exercise their powers for the regulation of religious issues, which are fundamentally national issues. See e.g., HCJ 122/54 supra. [1], at 1532; HCJ 72/55 Mendelson v. Municipality of Tel-Aviv/Jaffa [10], at 752; Crim. App. 217/68 Izramax v. State of Israel [11]; HCJ 87/60 Kriboshi v. Ramat Gan Municipality [12]; HCJ 155/60  Elazar v. Mayor of Bat Yam [13]; DC (Jerusalem) 3471/87 supra. [17]; see also HCJ 161/52 Refinery Company of the Land of Israel, v. The Rishon LeTzion Municipality [14], at 125.

 

Regardless of the law relating to the legitimate considerations that local authorities may employ in matters within their jurisdiction, the Court cannot grant a local authority, or any other authority, power not bestowed on it by statute. Having established that the local authorities cannot deal with foreign and defense matters, including those concerning state borders, the petition must be granted.

13. This too is an appropriate result.

It is not commensurate with good government that local authorities utilize state funds to fund protest activities against the policies of the central government, even when the issue relates to the municipality and its inhabitants. Such financing also leads to the untenable situation in which the entire population of Israel finds itself inadvertently funding protest activities of a given locality, that run counter to the policies of the elected central government. While the ability to protest government policy is critical in a democratic state, it is nonetheless not within the jurisdiction of the local authorities.

14. It is for these reasons that I am of the opinion that the petition should be allowed. Even so, I believe that the order should only be made effective from the beginning of 1996. This is in view of the association’s previous reliance on the funding that was approved by the Ministry of the Interior.

Justice E. Goldberg

1.   The first question to be addressed is whether a local authority, invoking “purely” municipal and public interest considerations, is authorized to finance protest and propaganda activities intended to safeguard its physical existence, given the existential threat posed by a central government decision on the matter.

2.   To the extent that the issue relates to a local authority that is a municipality, section 249(29) of the Municipalities Ordinance [New Version] requires us to answer the above question in the affirmative. This section, titled “General Authority," empowers a municipality, inter alia:

To perform generally any action required to safeguard the municipal precincts.

The term “safeguard the municipal precincts” is vague. "It is unclear and it is not easy to fathom its precise content." See Winograd, supra. [24], at 190, n. 34. Even so, there is nothing to prevent an interpretation according to which the municipality is authorized to engage in activities intended for its physical preservation. Such an interpretation is consistent with “the attachment that a person develops to his place of residence.” PLA 5817/95 Rozenberg v. The Ministry of Building and Housing [15], at  229.

3.   With respect to local councils, section 2 of the Local Councils Ordinance [New Version] specifies that “[t]he constituting order shall regulate the composition of the local council, its tenure, authorities, duties and area of jurisdiction," and section 146 of the Local Councils Ordinance (A)-1950  stipulates:

The council is empowered, having regard for the Minister’s instructions, and to the extent that no statutory provisions are infringed, to act in any matter concerning the public within the council precincts, including the following powers:

3.To serve as a trustee or guardian for any public matter

 

Here too, I have no difficulty in construing these sections so that the existence or dissolution of a local council is a “matter concerning the public in the council precincts.”—on such matters, the local council serves as “a trustee or guardian” for its residents.

4.   This interpretation of section 249(29) of the Municipalities Ordinance; of section 146 of the Local Councils Ordinance (A) and section 63 of the Local Councils Ordinance (Regional Councils), is conducive to consistency with respect to the scope of authority regarding the issues at bar. For “it is difficult to see a logical reason for distinguishing .... As if the residents within the regional council precincts are in greater need of guardianship of the local government than the residents of the municipalities.” HCJ 287/71 Daabul v. Ramat Gan [16], at 824.

5.   The second issue is whether the local authority’s power should be circumscribed with respect to actions intended to dissuade the central government from adopting a policy that jeopardizes its continued existence, when its struggle for survival is also a matter of national significance.

Decision-making power in state matters is not granted to the local authority, which is authorized to function exclusively at the local level, see 1 I. Zamir, The Administrative Authority 373 (1996) [25]. This was also the guiding consideration in HCJ 122/54 Axel v. Mayor of Netanya [1]). Similarly, it was said in a different context that: “the various ideological controversies among sectors of the population, in matters such as religion, nationalism, and economic concerns, are to be conducted in the forum of the Knesset or in other central government institutions, and neither the municipality nor the local council are responsible for their regulation.” HCJ 155/60, supra. [13].

This argument, however, is not applicable to the case at bar. In its quest to encourage public awareness of its position by way of advertising, the local authority is not impinging upon the authority of the Knesset or that of the central government. It is undisputed that the exclusive authority for ultimately deciding the matter rests with the central government.

6.   It could also have been argued that local authority funds cannot be used for adopting a position on a political issue. It is improper to devote the limited resources of the local authority to taking a stand on a political issue, at the expense of providing municipal services to residents.

This claim, however, should not be acceptable. Clearly, when the local authority allocates part of its resources to taking a stand on a “purely” political issue, without any local connection, there are no grounds for assuming that it represents the interests of the local population. By contrast, when the local authority devotes part of its resources to taking a stand on an issue related to local survival, then it is proper to presume that it is in fact representing its residents’ interest in continuing to live in the place that they call home.   

7.   It could also be argued that the general population should not fund the local authority’s acts of protest. In the framework of public decision-making, each and every citizen, including the local authority’s residents, should have an equal opportunity to attempt to sway public opinion. It can therefore by argued that it is not justifiable to put public resources at the disposal of a particular group.

This claim too, however, fails to consider the existential nature of the local authority’s struggle. The enlistment of public support is not an objective in and of itself but rather, part of the struggle for the locality’s very survival.

8.   I am therefore of the opinion that the appropriate legal policy is that which makes the connection between the dangers to the local authority’s continued existence and its authority to confront these dangers.

9.   It seems to me that if the issue had related to the struggle of an agricultural community against a peace agreement, under which most of its agricultural territories would not remain in its possession, all would agree that the financial expense required for the community to engage in the struggle would be a legitimate expense, even though the issue of the determination of state borders is a national one. The only difference between that case and the case at bar is an additional element: the public controversy regarding the future of the Golan Heights in a future peace agreement. But this distinction should not change the legal result. The struggle in which the Katzrin Local Authority and the Golan Heights Regional Council are involved is for the continued existence of the communities in the Golan Heights. The fact that a public debate surrounds the future of the Golan Heights does not, for that matter, affect the councils’ struggle for survival. The struggle for the continued existence of these communities must be considered separately from the said public debate, which is irrelevant for the purposes of our judicial decision.

I was therefore of the opinion that the petition should be dismissed.

 

Petition Denied.

Rendered today, May 11, 1997.

 

 

 

HCJ 9098/01

Yelena Ganis and others

v

1.       Ministry of Building and Housing

2.       Attorney-General

HCJ 10043/01

Raphael Kornitzer and another

v

1.       Ministry of Building and Housing

2.       Minister of Building and Housing

3.       Minister of Finance

4.       Attorney-General

HCJ 401/02

Mordechai Bilitzer and others

v

1.       Government of Israel

2.       Minister of Finance

3.       Minister of Building and Housing

 

The Supreme Court sitting as the High Court of Justice

[22 November 2004]

Before President A. Barak, Vice-President E. Mazza
and Justices M. Cheshin, J. Türkel, D. Beinisch, E. Rivlin, A. Procaccia

 

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

 

Facts: Shortly before the election for Prime Minister in 2001, the Knesset passed a law that gave certain persons an entitlement to grants for the purchase or extension of an apartment in Jerusalem. After the election, some six weeks later, the Knesset suspended the grants, and went so far as to include a provision to the effect that the suspension of the grants was retroactive, from the date on which the grants originally came into effect. The petitioners challenged this retroactive suspension of the grants, on the grounds that they had relied on the grants and undertaken to buy or extend an apartment in Jerusalem during the interim period, and therefore it was unconstitutional for the Knesset to suspend the grants retroactively.

 

Held: The Supreme Court was unanimous in the opinion that the Knesset had acted improperly when it retroactively suspended the grants, since it had not considered the possibility that some persons may have relied on the grants and taken commitments upon themselves as a result. However, the justices differed as to the proper approach that should be adopted to remedy the situation.

The majority opinion was that it was possible to construe the statute narrowly in such a way that the retroactive suspension would only apply to potentially entitled persons who had not relied on the statute during the interim period, but it would not apply to those entitled persons who did rely on the statute during the interim period. Consequently, the right of the latter group of persons to receive the grant was held to remain valid.

The minority opinion was that it was not possible to construe the statute narrowly as aforesaid, and therefore the retroactive suspension ought to be declared void for unconstitutionality.

 

Petition granted, in the manner held by the majority (Justice Cheshin, President A. Barak, and Justices A. Procaccia and D. Beinisch), Vice-President E. Mazza and Justices J. Türkel and E. Rivlin dissenting.

 

Legislation cited:

Adoption of Children Law, 5741-1981, s. 13.

Basic Law: Human Dignity and Liberty, ss. 3, 8.

Broadcasting Authority (Approval of Validity of Radio and Television Fees) Law, 5753-1992, s. 1.

Budget Principles Law, 5745-1985, s. 39A.

Economic Policy for 2004 Fiscal Year (Legislative Amendments) Law, 5764-2004.

Government and Justice Arrangements Ordinance, 5708-1948, s. 10(a).

Housing Loans Law, 5752-1992, ss. 6B, 6C.

Housing Loans Law (Amendment no. 5), 5761-2001.

Income Tax Ordinance [New Version], s. 3(i)(1)(a).

Inheritance Law, 5725-1965, s. 5(a)(1).

Interpretation Law, 5741-1981, s. 22.

Interpretation Ordinance [New Version], s. 17.

State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001, ss. 20, 20(a)(1), 20(b), 20(c).

Torts Ordinance [New Version].

 

Israeli Supreme Court cases cited:

[1]      HCJ 6195/98 Goldstein v. Central District Commander [1999] IsrSC 53(5) 317.

[2]      CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [1995] IsrSC 49(4) 221.

[3]      HCJ 5503/94 Segal v. Knesset Speaker [1997] IsrSC 51(4) 529.

[4]      CA 238/53 Cohen v. Attorney-General [1954] IsrSC 8 4; IsrSJ 2 239.

[5]      PPA 1613/91 Arbiv v. State of Israel [1992] IsrSC 46(2) 765.

[6]      CrimA 4912/91 Talmai v. State of Israel [1994] IsrSC 48(1) 581.

[7]      HCJ 5290/97 Ezra, Israel National Orthodox Youth Movement v. Minister of Religious Affairs [1997] IsrSC 51(5) 410.

[8]      CFH 7325/95 Yediot Aharonot Ltd v. Kraus [1998] IsrSC 52(3) 1.

[9]      HCJ 1149/95 Arco Electric Industries Ltd v. Mayor of Rishon LeZion [2000] IsrSC 54(5) 547.

[10]    CFH 4757/03 Land Appreciation Tax Director v. M.L. Investments and Development Ltd (unreported);

[11]    LCrimA 1127/93 State of Israel v. Klein [1994] IsrSC 48(3) 485.

[12]    HCJ 163/57 Lubin v. Tel-Aviv-Jaffa Municipality [1958] IsrSC 12 1041.

[13]    CA 2000/97 Lindorn v. Karnit, Road Accident Victims Fund [2001] IsrSC 55(1) 12.

[14]    HCJ 1779/99 Brenner-Kadosh v. Minister of Interior [2000] IsrSC 54(2) 368.

[15]    CA 3798/94 A v. B [1996] IsrSC 50(3) 133; [1995-6] IsrLR 243.

[16]    HCJ 6055/95 Tzemah v. Minister of Defence [1999] IsrSC 53(5) 241; [1998-9] IsrLR 635.

[17]    HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [1997] IsrSC 51(4) 367.

[18]    HCJ 4562/92 Zandberg v. Broadcasting Authority [1996] IsrSC 50(2) 793.

[19]    CA 1900/96 Telmaccio v. Custodian-General [1999] IsrSC 53(2) 817.

[20]    MApp 67/84 Hadad v. Paz [1985] IsrSC 39(1) 667.

[21]    LCA 6339/97 Roker v. Salomon [2001] IsrSC 55(1) 199.

[22]    FH 40/80 Koenig v. Cohen [1982] IsrSC 36(3) 701.

[23]    CA 3622/96 Hacham v. Maccabi Health Fund [1998] IsrSC 52(2) 638.

[24]    CA 7034/99 Kefar Saba Assessing Officer v. Dar [2004], IsrSC 58(4) 913.

[25]    EA 2/84 Neiman v. Chairman of Elections Committee for Eleventh Knesset [1985] IsrSC 39(2) 225; IsrSJ 8 83.

[26]    HCJ 79/63 Trudler v. Borstein, Election Official for the Composition of the Agricultural Committee of Ramat HaSharon Local Council [1963] IsrSC 17 2503.

[27]    LCA 176/86 A v. B [1988] IsrSC 40(2) 497.

[28]    HCJ 294/89 National Insurance Institute v. Appeals Committee for Enemy Action Victims Compensation Law [1991] IsrSC 45(5) 445.

[29]    HCJ 188/77 Coptic Orthodox Mutran v. Government of Israel [1979] IsrSC 33(1) 225.

[30]    CA 64/72 General Federation of Workers v. Moav [1973] IsrSC 27(1) 260.

[31]    HCJ 264/77 Katan v. National Insurance Institute [1978] IsrSC 32(1) 678.

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

[33]    CA 165/82 Hatzor Kibbutz v. Rehovot Assessment Officer [1985] IsrSC 39(2) 70.

[34]    CA 10608/02 Hazima v. Department of Customs and VAT [2004] IsrSC 58(3) 663.

[35]    CA 9136/02 Mister Mani Israel Ltd v. Rize [2004] IsrSC 58(3) 934.

[36]    HCJ 4128/02 Man Nature and Law — Israeli Environmental Protection Society v. Prime Minister of Israel [2004] IsrSC 58(3) 503.

[37]    HCJ 4885/03 Israel Poultry Raisers Association v. Government of Israel [2005] IsrSC 59(2) 14; [2004] IsrLR 383.

 

American cases cited:

[38]    Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549 (1947).

[39]    Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936).

[40]    Crowell v. Benson, 285 U.S. 22 (1932).

[41]    Ellis v. Railway Clerks, 466 U.S. 435 (1984).

[42]    Shapiro v. United States, 335 U.S. 1 (1948).

 

Jewish law sources cited:

[43]    I Kings 21, 19.

 

For the petitioners in HCJ 9098/01 — E. Prince, R. Dovrovitzer.

For the petitioners in HCJ 10043/01 — A. Zahar.

For the petitioners in HCJ 401/02 — R. Yarak.

For the respondents — O. Koren, D. Briskman.

 

 

JUDGMENT

 

 

Justice M. Cheshin

The Knesset enacts a law and provides therein that persons who buy an apartment or extend an apartment in Jerusalem are entitled to receive a grant of several tens of thousands of sheqels. The commencement of the law is, as usual, on the date it is published in Reshumot. A short time — approximately six weeks — after the law is published, the Knesset ‘returns to its senses’ and decides — once again in a law — to postpone the commencement of the first law. Until now, all has gone well; there is no clamour or outcry. But the Knesset wishes to give the second law, the law that postpones the commencement of the first law, not only future application — prospective application — but also past application — retrospective application — from the date of the commencement of the first law, the benefit law. In other words, the second law seeks to suspend the application of the first law, the benefit law, retroactively, from the first day on which it came into effect. This leads to the question: what is the law with regard to someone who bought an apartment or extended an apartment in Jerusalem during that interim period of six weeks, between the date on which the first law was published and the date on which the second law was published? Was the Knesset entitled to deny him in the second law — by means of the suspension — what it gave him in the first law? Does the retroactive application of the second law comply with the criteria provided in the Basic Law: Human Dignity and Liberty? This is the question that the petitioners have brought before us, and it is to this question that we are obliged to provide an answer.

Prologue

2.    The Housing Loans Law, 5752-1992, grants ‘entitled’ persons — persons without housing who are entitled to housing assistance pursuant to rules prescribed by the Ministry of Building and Housing in coordination with the Ministry of Finance — certain pecuniary benefits. In the middle of the year 2000, Knesset members promoted a private draft law whose purpose was to give significant pecuniary benefits to whoever would buy apartments or extend their apartments in Jerusalem. The draft law, so the explanatory notes state, was intended to contend with the migration away from Jerusalem by encouraging young couples and additional entitled persons to buy or extend apartments in Jerusalem. After it was approved by the Knesset, the draft came up before the Knesset Finance Committee, and a representative of the Ministry of Finance expressed opposition to the draft, on the grounds that the grant offered would not prevent migration away from Jerusalem but would cause a rise in the prices of apartments in Jerusalem. In the words of Mr S. Yiftah, the representative of the Ministry of Finance:

‘The problem here is a question of supply. The increase in the stock of apartments in Jerusalem, for the present purpose, is less than the natural increase in population, and it is also less than the total increase in population. The increase in the stock of apartments is 2% per annum, and the natural increase of the population in numbers of households, is 2.5% per annum. In such a situation, there is no doubt that whoever does not find his solution in Jerusalem will leave Jerusalem. In the absence of solutions on the supply side, there is no doubt that the draft will not only not help, but it will increase the price unequivocally. When there will be reserves of apartments in Jerusalem, the position will be different.’

(Page 60 of the minutes of the meeting of the Knesset Finance Committee on 11 September 2000, as published on the Knesset web site).

Later at the meeting, MK Meir Porush was asked to vote upon the source of the budget for financing the draft law — as required by the provisions of s. 39A of the Budget Principles Law, 5745-1985 — and his response was that ‘each year approx 1,200 million sheqels remain from loans and from this item — that is [the] budgetary source.’ The representative of the Ministry of Finance replied that this source was totally irrelevant. But the Finance Committee decided to adopt the draft law, and the draft was published on 18 December 2000 as a draft law promoted by it, under the name of the draft Housing Loans Law (Amendment no. 6) (Promoting Jerusalem, the Capital of Israel) 5761-2000 (Draft Laws 5761, 369). The following is what the explanatory notes to the draft law (ibid.) tell us:

‘In view of the migration away from Jerusalem, the capital of Israel, there is great importance in encouraging entitled persons to prefer Jerusalem when they are about to buy or extend an apartment.

The proposed law will encourage many to buy an apartment in Jerusalem and it will thereby strengthen its status as the united and prosperous capital of Israel, a matter on which there is a consensus in the State of Israel.

The estimated cost to the State is 130 million new sheqels.’

The Knesset approved the draft law on its first reading, and when the draft came up for discussion at the Finance Committee, the representative of the Minister of Finance again argued that its enactment would lead to a rise in the prices of apartments in Jerusalem, while it would not prevent the migration away from the city:

‘Assaf Regev [Ministry of Finance]:
The main problem in Jerusalem is not the demand for apartments but the supply of apartments. This law will simply raise the prices of apartments. It will increase the demand for apartments but it will not increase the supply of housing. The problem in Jerusalem is that there are no available planning resources nor are there any resources of land. An initial consequence of this law is that it will lead to an increase in the prices of housing and it will harm precisely those persons whom MK Meir Porush supposedly wishes to help.’

(Page 60 of the minutes of the meeting of the Knesset Finance Committee on 3 January 2001, as published on the Knesset web site).

The Finance Committee approved the draft law with various changes, and the draft was brought before the Knesset once again for the second and third readings. The Knesset adopted the draft law, and on 15 February 2001, the Housing Loans Law (Amendment no. 5), 5761-2001 was published (in Sefer HaHukkim (Book of Laws), 5761, 140). Below we will refer to this law as ‘Amendment 5.’ This law was supposed, as we have said, to grant significant pecuniary benefits to persons suffering from housing distress who bought or extended apartments in Jerusalem.

3.    Amendment 5 was of short duration. This law was adopted at the end of the term of office of Ehud Barak’s government, when the government did not have the confidence of a majority of the Knesset. On 6 February 2001 elections were held for prime minister, and when a new government was formed on 7 March 2001, it was decided to postpone the date of the commencement of Amendment 5, and also to postpone the commencement of additional laws of a similar nature — laws for which there was no allocation in the State budget — that were adopted at the same time. Thus, on 21 March 2001, the draft State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001, was published (in Hatzaot Hok (Draft Laws), 5761, 582). The following was stated in the explanatory notes (ibid., at p. 586):

Introduction

During the last year, the Knesset adopted a series of laws, which were initiated by Knesset members and whose cost, whether through increasing spending or by reducing the income of the State, is estimated at approximately 3,000 million new sheqels per annum. The draft budget for 2001 does not include sources of finance for these laws.

It is proposed therefore to postpone the commencement of most of the aforesaid laws to the next tax year, and to amend or cancel several of them, as set out below, so that the budgetary cost involved in operating them shall not be reflected in the current fiscal year.’

With regard to Amendment 5, the explanatory notes to the draft law said as follows (ibid., at pp. 587-588):

‘The Housing Loans Law (Amendment no. 5), 5761-2001, provides that the Government should give a grant to any entitled person who buys an apartment in Jerusalem or who extends his apartment as a result of housing distress, in an amount of 80 thousand new sheqels, when the apartment is situated on land administered by the Israel Lands Administration, and in an amount of 60 thousand new sheqels, when the apartment is situated on land that is not administered by the Israel Lands Administration.

The direct budgetary cost of the law is approximately 160 million new sheqels per annum, and it involves wide-ranging ramifications whose cost may reach hundreds of millions of additional new sheqels.

…

It is therefore proposed that the validity of the aforesaid laws should be suspended until the end of 2001. In addition, in view of the fact that during the short period when these laws were valid no instructions were given to implement them, it is proposed that it should also be provided that even during the period when the aforesaid laws were valid, it was not possible to acquire rights by virtue thereof.’

The draft law passed a first reading, and when it was sent to the Finance Committee, to be prepared for the second and third readings, we find the following remarks were made by Mr Ohad Marani, the Director of Budgets at the Ministry of Finance, to the members of the committee:

‘A final remark on the private laws — we do not say that the laws are populist, nor do we say that they were passed as an oversight, but we do say that this is a collection of private laws that cost a great deal of money. Each one of these laws costs money — whether they are better or worse is a matter of individual opinion for each draft law — but all these laws cost a great deal of money. We have no budget to finance these laws.

Similarly, in our opinion — irrespective of the quality of each law in itself — these laws do not reflect any clear statement of the government’s priorities, and if you will allow me to say this, I will say that I am not sure whether they even reflect the priorities of the Knesset. In the last two months, when the government did not have a majority in the Knesset, a series of many laws was passed. All of these laws cost approximately 3,000 million sheqels. This is a large amount of money, and we are not able to finance all these laws.’

(Page 5 of the minutes of the meeting of the Knesset Finance Committee on 27 January 2001, as published on the Knesset web site).

After deliberation, the Finance Committee referred the draft law back to the Knesset, and on 4 April 2001, when it was published in Reshumot, the draft became law. Thus the State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001, was enacted (Sefer HaHukkim (Book of Laws), 5761, 236). Below we shall refer to this law as ‘the Arrangements Law.’ Section 20 of the Arrangements Law is the provision relevant to the matter before us; in this, the validity of Amendment 5 was suspended until 31 December 2001 (from then until today the commencement of Amendment 5 has been repeatedly deferred until 31 December 2007: Economic Policy for 2004 Fiscal Year (Legislative Amendments) Law, 5764-2004).

According to s. 20, the commencement of the Arrangements Law was determined to be retrospective, from 15 February 2001, i.e., starting from the date of the commencement of Amendment 5. Thus the legislator of the Arrangements Law sought to uproot Amendment 5 ab initio, and so to postpone its commencement. The reason for this was that Amendment 5, as well as other laws that were enacted at the end of the term of office of the Barak Government, were all adopted — at a total cost of 3,000 million sheqels a year — without there being any sources of financing in the budget, and implementing them would have harmed the budget seriously.

4.    Up to this point we have summarized the tortuous series of events in which Amendment 5 — an amendment that granted benefits to persons suffering housing distress who bought or extended an apartment in Jerusalem — was adopted, and how, approximately six weeks later, the Knesset enacted s. 20 of the Arrangements Law, which sought to uproot these benefits ab initio.

The main pertinent facts and the question in dispute

5.    There are three petitions before us. In HCJ 9098/02 the petitioners are five couples, in HCJ 10043/01 the petitioners are one young couple, and in HCJ 401/02 there are twenty-five petitioners, some of whom are couples and some single. The cases of the petitioners differ from one another — each one has its own unique series of events — but they all focus on the same six weeks between the date on which Amendment 5 was published and the date on which the Arrangements Law was published. The petitioners argue that they complied in full with all the conditions set out in Amendment 5 for receiving the pecuniary benefits: they were recognized as ‘entitled persons’ and they bought apartments or extended apartments in accordance with the provisions of Amendment 5 prior to its suspension; moreover, by buying and extending the apartments they relied on the undertaking of the law to give them pecuniary grants. This leads to the conclusion, so the petitioners argue, that they were entitled in those six weeks to receive the benefits that the law gave them. But then s. 20 of the Arrangements Law befell them, and because of its retroactive application, they were denied a right that they had acquired by virtue of Amendment 5. This denial that was the result of s. 20 — this is the essence of the claim — was an unlawful denial and contrary to the Basic Law: Human Dignity and Liberty, and therefore their petitions ask us to declare the retroactive provision void and to order the State to give them the grants as stated in Amendment 5. The respondents gave their reply to the claims of the petitioners, and we now have the burden of entering into the dispute and deciding between the opposing parties.

Later in our remarks we will consider the legal questions in this matter, but let us first say that in the absence of details and clarifications, we will find it difficult to decide whether the petitioners, or some of them — complied with the preliminary conditions that were provided in s. 6B of the Housing Loans Law. This is the case, for example, with regard to whether the petitioners were ‘entitled persons’ as s. 6B requires. And if this is the case with regard to the conditions set out expressly in s. 6B, certainly we shall be unable to decide the question whether, when they bought or extended an apartment, the petitioners — or some of them — relied on the undertaking of the law in s. 6B. In view of our final decision in the three petitions — and as we shall explain below — there is no longer any need to decide the individual case of each petitioner.

6.    Before we consider the matter in detail, let us set out the pertinent provisions of the law, and below we will discuss the provisions of the law in greater detail.

Amendment 5: Section 6B of the Housing Loans Law — the benefiting provision

7.    The first provision of the law, which sought to benefit persons who purchased or extended apartments in Jerusalem, will be found in s. 6B that was added by Amendment 5 to the Housing Loans Law. The following is the language of s. 6B, as added to the Housing Loans Law:

‘Special grant for purchasing or extending an apartment in Jerusalem

6B. (a) An entitled person, including someone recognized as entitled to a housing distress programme for apartment owners, who bought an apartment in Jerusalem or who extended his apartment in Jerusalem, will receive a grant as set out below:

 

(1) For an apartment on Israel Land as defined in the Basic Law: Israel Land (hereafter — Israel Land) — an amount of 80,000 new sheqels;

 

(2) For an apartment on land that is not Israel Land — an amount of 60,000 new sheqels.

 

(b) What is stated in sub-section (a) shall apply both with regard to a purchase or an extension of an apartment that has not yet begun to be built and also with regard to a built apartment.

 

(c) The amounts of the grants under sub-section (a) will be revised on the first of January each year for the increase in the index as of the fifteenth of December that precedes it; the revised amounts as aforesaid shall be rounded to the nearest new sheqel.

 

(d) The Minister of Building and Housing shall publish a notice concerning the amounts of the grants, as revised under this section.

 

(e) Nothing in the provisions of this section shall derogate from any benefit given under any law.

(We should remark, parenthetically, that later the number of the section was changed, and it is today numbered 6C). We see that the first part of section 6B(a) stipulates preliminary conditions for receiving the benefits — someone who is recognized as an entitled person (as this concept is defined in the law) or someone recognized as entitled to a housing distress programme for apartment owners and who bought an apartment in Jerusalem or extended an apartment in Jerusalem — and then it proceeds to stipulate the benefits that will be given. The interpretation and effect of the provisions of s. 6B are the subject of disagreement between the parties, and we will now discuss these briefly.

8.    The state argues as follows: it is a basic premise in the petitioners’ arguments that the provisions of s. 6B intended to give them, in themselves, a right to the grants as set out in the law. The petitioners’ premise is therefore that by complying with those preliminary conditions prescribed in the first part of s. 6B, they automatically acquired a right to the grants. It is this right, they further go on to claim, that s. 20 of the Arrangements Law purportedly wishes to take away from them. But this basic premise, so the State claims, is founded upon an error. The reason for this is that the right of the petitioners to the grants had not yet crystallized into a mature right during those six weeks when Amendment 5 was valid. Why is this? Because at that time rules had not yet been prescribed for implementing the giving of the grants, including suitable rules for implementation by the commercial banks, and in the absence of rules of implementation the right to the grant did not crystallize. In the language of the respondents:

‘The absence of rules for implementing the grant is not merely a procedural problem, but it is a substantial failure, which prevents the implementation of the law. It is not reasonable to order the payment of a grant without rules that regulate the implementation of the provisions of the law… It should be emphasized that neither party disputes that during the period when the law was valid, it was impossible to receive the grant from the banks, because of the absence of guidelines for implementing the law… In addition it should be noted that it is clear that whoever wished to realize his alleged right to a grant was obliged to apply to a bank, and if he did not do so before buying the apartment, he certainly cannot argue now that he relied on the grant when he bought the apartment.’

Is this really the case?

9.    The question that must be asked is, of course, what right did the petitioners acquire pursuant to the provisions of s. 6B of the Housing Loans Law? Was this a qualified right or a conditional right? And if it was a qualified right or a conditional right — what was the qualification and what was the condition? Indeed, there are cases where a statute makes its implementation conditional upon the enactment of regulations or on the fulfilment of other preliminary conditions; and the question whether this is indeed the case here is a question of interpretation of the statute. As was stated in HCJ 6195/98 Goldstein v. Central District Commander [1] at p. 331:

‘There are cases where a statute makes its implementation conditional upon regulations that will be enacted pursuant to it, and without regulations the statute cannot be implemented… and there are cases where a statute can be implemented even when no regulations for implementation have been enacted pursuant to it. The answer to the question whether a particular statute can or cannot be implemented without regulations for implementation derives first and foremost from the drafting of the statute, whether it makes itself conditional upon the enactment of regulations for implementation or not.’

See also the references mentioned in that judgment.

The question here is therefore a question of interpretation: do the provisions of s. 6B, as added in Amendment 5, in and of themselves, give rise to a right to receive grants — naturally, if the preliminary conditions prescribed in the provisions of s. 6B itself are fulfilled — or perhaps the provisions of s. 6B are merely the infrastructure, and the right to a grant will not be complete and final unless rules are enacted to regulate the methods of receiving the grant? If the latter interpretation is the correct one, then the petitioners did not acquire a right to a grant in those six week, and the application of s. 20 retroactively did not infringe any right since they had not acquired one.

10. A consideration of the provisions of s. 6B of Amendment 5 does not leave us in any doubt; we know that whoever complies with those preliminary conditions prescribed in the first part of s. 6B(a) acquires a clear right ex lege to receive the grants set out in the law. The right is granted directly by the law, and the executive authority did not acquire any power to delay the payment or to make it subject to additional conditions that are not prescribed in the law. The right of the entitled persons is a specific right, a clear and express right that makes itself conditional only on the conditions prescribed in the first part of s. 6B(a): first, that a recipient of the grant is ‘an entitled person, including someone recognized as entitled to a housing distress programme for apartment owners,’ and second, that the person claiming a grant bought an apartment or extended an apartment in Jerusalem. If both of these conditions were fulfilled during the critical six weeks, the applicant is entitled to a grant. Indeed, the executive authority is entitled — perhaps we should say, obliged — to formulate rules, and even strict rules, for proving compliance with those two preliminary conditions that give entitlement to a grant. And we agree that these rules were not determined during those six weeks. However, the failure to enact the rules was insufficient to affect or invalidate the substantive right of the entitled persons to a grant. Their right remained valid, and the failure to enact rules for implementation was incapable of derogating from the existence and validity of the right.

11. The State does not stop here, and it goes on to raise, in the same context, an argument that is a variation on the issue of the preliminary conditions for the validity of the law. According to the State, even if the petitioners acquired a right de jure, they never had any real expectation of realizing it. Consequently everyone agrees that during the lifetime of s. 6B — in those six weeks between the commencement of s. 6B of the Housing Loans Law and the commencement of s. 20 of the Arrangements Law — it was not possible to receive the grant from the banks; moreover there was talk of the Government taking action to cancel s. 6B. It follows from this, the State argues, that ‘there was no basis for the petitioners to have any reasonable expectation of receiving the amount.’ Therefore, prima facie, the petitioners never acquired any real right, a right that ought to be protected. In other words, because the petitioners did not have a reasonable expectation, a real expectation, that they would receive a grant, they ought therefore not to be regarded as having a right to a grant — a right that the law seeks to protect.

But the State’s argument is no argument. From a simple reading of the provisions of s. 6B we can see that whoever fulfils two preliminary conditions set out in the first part of s. 6B(a) is entitled directly and by virtue of the statute itself to receive a grant, and no interpretive acrobatics will succeed in interpreting the provision of the law otherwise. So, whoever fulfilled those two preliminary conditions acquired a right — a right that is unconditional — to receive grants as set out in the law.

12. The State further argues: if we interpret s. 6B, in and of itself, in the absence of rules for implementation of the right to a grant, then a person could have bought an apartment in Jerusalem, received a grant, and the next day sold the apartment to someone else. Is this possible? This is an indication, so the State ends its argument, that it was not possible to implement the law without rules; and once we realize that no rules were made, we will also know that the petitioners did not acquire a real right to receive a grant. This claim has no merit. It has no merit not because it is not a good argument in general; it is a good and proper argument in general. But the law in this case is so clear in its language that the argument has nothing to which to attach itself. We should point out, parenthetically, that a restriction of this kind exists apparently in rules that were prescribed under the Housing Loans Law, in its original form, and a hint of this can be found in the deliberations of the Finance Committee (see: pp. 52-53 of the minutes of the meeting of the Finance Committee on 11 September 2000, as published on the Knesset web site). However, since the rules were not presented to us, we cannot say anything for certain. In any case, even this argument that the application of the provisions of s. 6B should be restricted, has, in our opinion, no foundation either in statute or case law.

13. From all of this we see that the right of those persons listed in the provisions of s. 6B of the Housing Loans Law is a right ex lege, a right that is not conditional upon the fulfilment of additional conditions to those prescribed in that provision.

Section 20 of the Arrangement Law — the repeal provision

14. The second provision of statute in this matter — and this is the main one — is found in s. 20 of the Arrangements Law (which was published in Reshumot on 4 April 2001), which states as follows:

‘Housing Loans Law — Amendment no. 7

20. (a) In the Housing Loans Law, 5752-1992 (in this section — the Housing Loans Law) —

(1) Section 6B, which is entitled “Special grant for purchasing or extending an apartment in Jerusalem” shall be marked “6C,” and it shall not apply in the period from 22 Shevat 5761 (15 February 2001) until 16 Tevet 5762 (31 December 2001);

 

         …

 

(b) The commencement of sub-section (a)(1) is on 22 Shevat 5761 (15 February 2001).

 

(c) Notwithstanding the provisions of section 6B of the Housing Loans Law, which is entitled “Special grant for purchasing or extending an apartment in Jerusalem,” according to its language prior to the commencement of this law, no person shall be entitled to the benefits under the aforesaid section in the period from 22 Shevat 5761 (15 February 2001) until the commencement of this law.’

The provisions of section 20, for our purposes, fall into two parts. One part — which is the main one — is prospective and its purpose is to postpone the application of the provisions of s. 6B of the Housing Loans Law into the future. Another part is retrospective, and its purpose is to make that postponement retroactive, from the date on which the provisions of s. 6B came into effect. We are now concerned with the retroactive part of s. 20, and we will consider the details of this issue in our remarks below.

The order of our deliberations

15. The petitioners argue that s. 6B of the Housing Loans Law gave each one of them a right to receive pecuniary grants as set out in s. 6B; that the retroactive application of the provisions of s. 20 of the Arrangements Law purports to deprive them of their right; that the denial of this right is clearly in conflict with s. 3 of the Basic Law: Human Dignity and Liberty, which commands us that ‘A person’s property shall not be infringed;’ this leads to the conclusion that the retroactive application of s. 20 of the Arrangements Law is void. The argument of the petitioners is therefore simply this, that s. 20 of the Arrangements Law is null and void, in so far as it seeks to apply itself retroactively, in that it conflicts with the protection of property as stated in s. 3 of the Basic Law: Human Dignity and Liberty.

However, as we have repeatedly said, before we consider an argument that a statute is void, we must first interpret the statute according to its language and according to its purpose; to go on to determine the scope of its application; and in the course of this interpretation, we are obliged to do our best to try and reconcile the provisions of the statute with the provisions of the Basic Law. See and cf. CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], at pp. 349-350; HCJ 5503/94 Segal v. Knesset Speaker [3], at pp. 548-550. Let us therefore begin our voyage by interpreting s. 20 of the Arrangements Law. It need not be said that if we reach the conclusion that the provisions of s. 20 do not purport to apply retroactively, or if, alternatively, s. 20 can be applied retroactively only in some cases but not in others, then we will be obliged to derive conclusions from this for the case before us, and it is possible that the consideration of the constitutional issue will thereby become redundant. But let us not jump ahead of ourselves.

Concerning the retroactive application of s. 20 of the Arrangements Law

16. There is a presumption, both in statute and in case law, that a statute is prospective — prospective, but not retrospective. A statute is intended to regulate interpersonal relationships, and it therefore follows that by its very nature it is prospective. See and cf. s. 10(a) of the Government and Justice Arrangements Ordinance, 5708-1948; s. 17 of the Interpretation Ordinance [New Version]; s. 22 of the Interpretation Law, 5741-1982; CA 238/53 Cohen v. Attorney-General [4], at pp. 16, 38 {___, ___}; PPA 1613/91 Arbiv v. State of Israel [5]; CrimA 4912/91 Talmai v. State of Israel [6], at pp. 619 et seq.; HCJ 5290/97 Ezra, Israel National Orthodox Youth Movement v. Minister of Religious Affairs [7], at p. 424; A. Barak, Legal Interpretation (vol. 2, Interpretation of Legislation, 1993), at pp. 609 et seq.. The source of this presumption, inter alia, lies in the recognition that the application of a statute retroactively may cause an injustice, violate rights that have been acquired, undermine stability and certainty in interpersonal relationships and harm just expectations. But this presumption — that a statute is only prospective — like every other presumption is rebuttable in the interpretation of a particular statute; and the question whether a particular statute or regulation operates retroactively or not is a question of interpretation. The question that must be asked is a double one: first, did s. 20 of the Arrangements Law seek to apply itself retroactively? If the answer to the question is yes, then a second question arises, namely: must that retroactive application be complete or is it possible to interpret it as merely partial?

17. The answer to the first question is unambiguous. In at least three places the legislature wished to inform us that s. 20 operates retroactively, from the date of the commencement of Amendment 5, namely from 15 February 2001. The legislature informed us of this the first time in s. 20(a)(1), where it stated that Amendment 5 — or more precisely, s. 6B of the Housing Loans Law as added by Amendment 5 — shall not apply ‘in the period from 22 Shevat 5761 (15 February 2001) until…’. The law states this a second time in s. 20(b), where it says that ‘The commencement of sub-section (a)(1) is on 22 Shevat 5761 (15 February 2001),’ as if we did not know this from what is stated in section 20(a)(1) itself. And in case we fail to understand the express provisions that we have cited, the legislator took pains to notify us a third time of the issue of the retroactive application, by stating in s. 20(c) that, notwithstanding the provision of section 6B that was added in Amendment 5 on the subject of a ‘special grant for purchasing or extending an apartment in Jerusalem,’ nonetheless no person shall be entitled to these benefits ‘in the period from 22 Shevat 5761 (15 February 2001) until the commencement of this law.’ Not once, not twice, but three times! Indeed, the legislature did not give the learned interpreter any credit at all, and its fear of the presumption of non-retroactivity was so great that it saw fit to tell us again and again that its intention was to uproot benefits ab initio, from the date of the commencement of Amendment 5. The interpretation of s. 20 of the Arrangements Law in respect of the retroactivity is an unambiguous interpretation. The legislature succeeded again and again in informing us of its intention that the denial of the benefits was intended to operate retroactively, from the date of the commencement of the law that granted those benefits, and thus the presumption of non-retroactivity was entirely rebutted.

18. Finally we should add that this unambiguous intention is also evident from the deliberations that took place at the Finance Committee. In those deliberations a proposal was made to the effect that the application of the suspending law would be prospective only, but the representative of the Ministry of Finance opposed this vehemently, and consequently the law as we have it was enacted. The following is a part of the discussions at the Finance Committee on 27 March 2001:

Chairman Yisrael Katz: And what will happen to the law in the interim?

Yitzhak Cohen: We must at least agree on the commencement of the law. Is the first of May acceptable?

Ohad Marani [Director of Budgets at the Ministry of Finance]: No…

Yitzhak Cohen: I propose that we agree to suspend it until the first of June…

Yaakov Litzman: The statute was passed and published. People have bought apartments on the basis of the knowledge that there is an increased loan. It is impossible now to say that this will commence later. First there needs to be a declaration of the Ministry of Finance, before we continue, and until that moment — the statute exists…

Chairman Yisrael Katz: What is the position of the Ministry of Finance with regard to the proposals?

Ohad Marani [Director of Budgets at the Ministry of Finance]: Certainly not. That was not the arrangement. We wish to postpone the statute, as was agreed. This is a statute that costs a considerable amount of money, 160 million sheqels. We wish to postpone it as agreed.

(Pages 30-31 of the minutes of the meeting of the Knesset Finance Committee on 27 March 2001, as published on the Knesset web site).

19. The essence of the matter is that s. 20 of the Arrangements Law was intended to apply retroactively. But in saying this we have still answered only the first part of the double question. For even if s. 20 of the Arrangements Law was intended to apply retroactively — from the date of the commencement of s. 6B of the Housing Loans Law as added in Amendment 5 — there still remains the question as to which activities s. 20 is supposed to apply. Is the retroactive application all-embracing, applying to every subject matter and for all intents and purposes, or perhaps it is only a partial application? And if it is a partial application, what is the part to which s. 20 applies and what is the part to which s. 20 does not apply? Let us now confront this question.

20. To which classes of cases in the past was s. 20 of the Arrangements Law intended to apply? In order to remove doubt, we should add that in speaking of the ‘intention’ of s. 20, we are not referring to the subjective intention of all or some of the Members of Knesset, and certainly not to the intention of the Government or its representatives. We are referring to the message and purpose required by s. 20 in and of itself, when combined with existing legislation and case law, and especially when integrated with the basic principles and doctrines that constitute the framework within which the legislature enacts legislation and the judiciary determine case law. As was stated in CFH 7325/95 Yediot Aharonot Ltd v. Kraus [8], at pp. 73-74:

‘It is accepted that the interpretation of a statute begins with the words of the statute. This statement is correct, of course, when we wish to study the words and phrases of the statute. But it is we who do our utmost to interpret it, and we are not a tabula rasa. Before we approach the statute we must ask: who are we, and the answer to this question is that “we” are those proper values, principles, morality and fundamental outlooks. It follows therefore that we begin the voyage of interpretation — whether wittingly or unwittingly — with those values and principles and doctrines — the foundation on which the law is based — and from these our voyage continues. We cannot “understand” a statute unless we analyze it with the analytical tools that we carry about with us, and these analytical tools are what will guide us… Let us know and remember that legal interpretation is — always and forever — a legal creation, an ethical creation, an inseparable part of the culture of a people and country.’

21. Two alternative interpretations of s. 20 offer themselves for our selection, and the question before us is which of the two is preferable. One interpretation proposes that we read s. 20 according to its text and language, combining words and sentences, and deriving the meaning and the dictates of the statute from those combinations of words and sentences. In years past, we called this interpretation — literal interpretation. If we choose this interpretation, we will conclude that the retroactive application of s. 20 is all-embracing; it is retroactive for all intents and purposes, as if s. 20 was enacted on the day when s. 6B was enacted. According to this interpretation, the provisions of s. 20 were intended to suspend the provisions of s. 6B absolutely and in every respect, until it would one day be revived.

An alternative interpretation of s. 20 may be called a purposive interpretation, and this is indeed what it is. It need not be said that this interpretation does not ignore the combinations of words and sentences in the statute, but in order to discover and comprehend the essence and the content, the interpretation will take into account the historical background of the legislation in its time and place, the objective purpose of the legislation, the difficulties that the legislator wished to overcome, the evil that the provision was designed to prevent; the events that have occurred from the time that s. 6B came into existence until the enactment of s. 20; to all of these we will apply our accepted rules of interpretation, the rules that express the values and the basic principles upon which the legal system and the social order are founded. See and cf. Yediot Aharonot Ltd v. Kraus [8], at pp. 71 et seq.; Segal v. Knesset Speaker [3], at 562 et seq., and the references cited therein. This is what we will do with regard to s. 20 and this is what we will do with regard to s. 6B of the Housing Loans Law.

Which of these interpretations should we prefer, and which shall we reject?

22. We are speaking of the interpretation of s. 20 of the Arrangements Law, but since we know that s. 20 only came into existence because of s. 6B of the Housing Loans Law, it is only logical that we should begin the voyage of interpretation precisely with the provisions of s. 6B. As for this provision of statute, we know that originally it was intended by its promoters to prevent migration away from Jerusalem, to encourage persons entitled to housing to prefer Jerusalem when they wanted to buy or extend an apartment, and to strengthen the status of Jerusalem as the capital of Israel. See supra, para. 2. Admittedly, Ministry of Finance representatives thought that these purposes would not be achieved by means of grants as the promoters proposed, but the Knesset thought otherwise, and that is the thinking behind the law. And so, when the Knesset enacted s. 6B, the petitioners hurried off — so they claim, each with regard to himself — and in reliance on the promise of the State in s. 6B they bought apartments or took steps in order to extend their apartments. The petitioners claim, therefore, that they took upon themselves pecuniary undertakings and changed their position in reliance upon an undertaking given by the legislator — the State’s undertaking — that they would be given various grants for the purchase of an apartment that they bought or for the extension of an apartment that they possessed.

In view of all of the aforesaid, we will have difficulty in adopting an interpretation that recommends us to ignore totally the moral and social aspect involved in the breach of the undertaking that the State took upon itself, i.e., a breach of the undertaking to give grants to whoever pursued the path that the legislator outlined in s. 6B. If the State acts in this fashion, what will the individual say and what will the public say? If the leaders of the country — those who sit in the legislature — repudiate the promises that they have made and the undertakings that they took upon themselves, what will members of the public do and say? Indeed, we will find it difficult to accept that the legislator reverses his tracks in this way, repudiates his undertaking to the individual and abandons along the way whoever followed him. The state ought to act honestly and carry out undertakings that it took upon itself, and the state can be presumed to act in this way. These principles of substance translate themselves into the language of interpretation, and it necessarily follows that obviously the retroactive application of s. 20 of the Arrangements Law was not originally intended to apply — we might almost say: is incapable of applying — to someone who relied on the legislator’s promise and clearly changed his position. As Justice Strasberg-Cohen wrote in HCJ 1149/95 Arco Electric Industries Ltd v. Mayor of Rishon LeZion [9], at p. 574, with regard to the factor of reliance as the decisive factor in disqualifying retroactive legislation:

‘An important factor is the existence of harm to the actual reliance on existing legislation and the degree of reliance thereon. Retroactive legislation that harms reliance cannot be compared to retroactive legislation that does not harm it at all or to a significant degree.’

The petitioners before us argue, each with regard to his own case, that they bought and extended apartments in reliance on s. 6B of the Housing Loans Law, and therefore, prima facie, the retroactive application provision passes over them and does not affect them. Being mindful of the basic principles on which the Israeli legal system is founded, we can say that the retroactive application of s. 20 was not originally designed to apply to someone who acted and changed his position in reliance on the provisions of s. 6B. The retroactive application was intended to apply only to someone who did not rely on the State’s promise as stated in s. 6B, i.e., someone who bought or extended an apartment without there being any causal connection between the purchase or extension of the apartment and the State’s promise in s. 6B.

23. Interpreting s. 20 in this way will uphold in its entirety the purpose of s. 6B as its promoters foresaw. Section 6B only came into existence in order to prevent migration away from Jerusalem and to encourage persons entitled to housing to prefer Jerusalem when buying or extending an apartment. So, if someone intended in any case to buy an apartment — or to extend an apartment — in Jerusalem irrespective of the benefits that the legislator wished to grant in s. 6B, then the purpose of s. 6B would not be prejudiced by denying the benefits retroactively.

Indeed, initially the law granted s. 6B benefits to whoever complied with the s. 6B conditions even if they did not rely on the legislator’s undertaking. However, for the purpose of determining the scope of the application of s. 20, and relying on the basic presumption — which adopts the guise of a rule of interpretation — that tells us that the legislator will not act unjustly to an individual nor will he turn his back on persons who followed him and relied on promises and undertakings that he made, we will interpret s. 20 as seeking to apply only to persons who did not rely on the legislator’s promise and not to apply to persons who relied on the legislator’s promise. Justice Barak expressed these ideas well in Arbiv v. State of Israel [5], when he said the following (at pp. 776-777):

‘The presumption is that a statute does not apply retroactively… the basic approach is that “applying a new statute to a transaction that was completed before the statute was published, where those concerned have acted and completed it in reliance on the law in force at that time, may be wrong and unjust”… retroactive or retrospective legislation conflicts with “accepted concepts of justice”… and the presumption against this legislation is required in order to do justice. The principle of the rule of law requires certainty and security in interpersonal relationships. Retroactive legislation harms both of these… it does not allow conduct to be planned in advance, and therefore it also harms the stability of the law…’

24. In saying this we have only said a half of what needs to be said. In relying on the provisions of s. 20 of the Arrangements Law, and in thinking that this provision is capable of denying the rights of the petitioners, the State rejected in limine the demand of the petitioners to receive grants, and in any case it did not consider their requests on the merits. Thus the question whether the preliminary conditions set out in s. 6B of the Housing Loans Law were satisfied or not was not considered, and the question whether the petitioners bought or extended apartments in Jerusalem in reliance on the undertaking in s. 6B, as they claimed, was certainly not examined. All of these questions need to be examined on the merits, and it need not be said that the petitioners have the burden of proving that they are indeed entitled to the grants as they demand. In this regard, the State is competent to determine proper proceedings that will allow the petitioners to prove what they are liable to prove, namely the fulfilment of the conditions prescribed in s. 6C (originally s. 6B) of the Housing Loans Law and a change of their position in reliance on the State’s undertaking, and at the end of these proceedings to decide in respect of the request of each of the petitioners. In order that the proceedings will not be prolonged excessively, we will propose the following timetable: within thirty days from today, the State shall determine the proceedings, and within an additional ninety days — assuming that the petitioners cooperate with the State — decisions shall be made with regard to the petitioners’ requests.

25. Our decision with regard to the method of interpreting s. 20 of the Arrangements Law makes a consideration of the constitutional question (see supra, at para. 15) redundant, and we will therefore not enter into it.

In summary

26. I propose to my colleagues that we make the order absolute as stated in para. 24 supra, and that we further find the State liable to pay the petitioners in each of the three petitions legal fees of NIS 25,000.

Subsequent reflections

27. I have carefully read the opinions of my colleagues Vice-President Mazza, Justice Türkel and Justice Rivlin. My colleagues, each following his own path and his own style, are of the opinion that the retroactive provision in s. 20 of the Arrangements Law is void ab initio, and their main reason for this is that if we say otherwise — as I have, for example — then we have overstepped our authority as a court and we have taken upon ourselves the role of legislator. My interpretation that seeks to distinguish between various classes of persons having rights, while restricting the application of s. 20 merely to those persons who did not rely on Amendment 5 of the Housing Loans Law, does not have, in my colleagues’ opinion, even a ‘minimal foothold in the text,’ and according to them it amounts, ‘in practice, to a change in the language of the statute, and as such it departs from the legitimate boundaries of interpretation’ (Vice-President Mazza, in the first paragraph of his opinion). My colleague Justice Rivlin speaks in similar terms, and whoever reads his remarks will comprehend his meaning.

28. I find this surprising, and I ask myself what is this fear of the legislator that has so suddenly overwhelmed my colleagues, that it may be said of us that we have broken down the barriers and gone ‘beyond the confines of what is possible and what is permitted’ (in the language of my colleague Justice Rivlin in para. 3 of his opinion). Yet we engage in this kind of ‘legislative’ activity from time to time. Moreover, my colleagues’ decision is that the retroactive provision of s. 20 of the Arrangements Law is void ab initio. Is this normative activity of declaring a provision of statute to be void ab initio not ‘legislative activity’? Indeed, the court is supposed to make its decision by virtue of a Basic Law, but this does not lessen the fact that the decision is a legislative decision that voids statute. Moreover, my colleagues’ decision is to suspend for six months the commencement of their judgment. Does this decision to suspend not have an aspect of legislation to it? Indeed, the statement that certain normative activity of the court is a ‘legislative’ activity — i.e., activity that trespasses on the province of the legislature — is a statement that cannot, in and of itself, captivate or intimidate us. We are charged with examining the decisions that we make diligently and painstakingly, and we should determine the character of normative activity on the merits and not by affixing labels that are prefabricated.

29. On the merits, the drafting of s. 20 of the Arrangements Law appears, on the face of it, to apply itself to the past universally, to impose itself on every event that has occurred and to every act that has been done concerning the special grant involved in the purchase or extension of an apartment in Jerusalem, between 15 February and 4 April 2001 (the day on which the Arrangements Law was published). This is the interpretation of the application of s. 20 retroactively from the date of commencement of s. 6B of Amendment 5. From the viewpoint of the legislation, in and of itself — or we might say, from a merely normative viewpoint — there is no difficulty in this. Just one stroke of the pen, and a statute that is enacted today carries itself into the past at the whim of the legislator. Such is the act of legislation. But life — the life of man and his surroundings — is different. No matter how much we wish or yearn to do so, no man can change acts and events in the past, not even a legislator:

‘We are unable to change the past (to the regret of some and to the happiness of others). Acts that were done, were done; omissions that were committed, were committed; events that occurred, occurred; vows that were made, were made; vows that were breached, were breached. All of these are as if they froze on the spot and became stone, and what has been done cannot be undone. We are incapable of doing anything other than describing and recording things that have happened — or that have not happened — but we are unable to change them. The freedom of choice and selection — as choice and selection — are no more’ (Talmai v. State of Israel [6], at p. 619).

Therefore a kind of dichotomy arises: from a historical point of view, we cannot change events in the past, but from a normative point of view, we find legislation that seeks to take control of events in the past that were originally governed by a different law.

This is what happened in the case before us: during the period of the retroactive application of the statute, events occurred that were of legal significance according to the law that prevailed at that time, and no one can change these events. In view of all this, the pertinent question is whether the legislator, and we as interpreters of the statute, are able and permitted to ignore those events as if they did not occur.

30. Let us now examine those events of legal significance that occurred in the period between 15 February 2001 and 4 April 2001, and we will discover that the entitled persons stipulated in the original s. 6B fell into several categories. The following are the main categories: first, entitled persons who relied on the State’s undertaking in Amendment 5 and bought or extended an apartment in Jerusalem; second, entitled persons who bought or extended an apartment in Jerusalem without relying on the State’s undertaking in Amendment 5; third, entitled persons who took various preliminary steps towards the purchase or extension of an apartment in Jerusalem, but did not reach the point of buying or extending an apartment; fourth, entitled persons who did nothing. The fourth category of entitled persons does not concern us here. We are therefore left with the other three categories of entitled persons. Against this background the question arises: there is no doubt that s. 20 of the Arrangements Law, according to its language and at face value, purports to take control of all those events and rights that were acquired, namely to ignore all those events and all the rights that were acquired. But we are experienced interpreters of statute who are continuously called upon for the purposes of interpretation, analyzers of statute equipped with analytical tools and high-powered microscopes; we know how to interpret and analyze even legislation that appears to violate — unfairly — basic rights or rights even if they are not basic rights. Let us therefore proceed to the task.

31. A first principle is that the legislature can and may knead legislation as it wishes, as long as the legislative proceedings are in progress. But when a statute has left the bakery, the baker can no longer put his mark upon it or express an opinion about its quality. The decision concerning the validity, scope of application and interpretation of the statute lies with the court — the court and no other. See and cf. CFH 4757/03 Land Appreciation Tax Director v. M.L. Investments and Development Ltd [10]; LCrimA 1127/93 State of Israel v. Klein [11], at pp. 500-501.

A second principle, which is of inestimable value, is that when approaching the task of interpreting statute, we do not come empty-handed. We come heavily laden with morality, fairness, justice, equity and efficiency. We come with language, interpretation and meaning, social norms, conventions, basic premises, fundamental principles and doctrines. We come with the theory of the separation of powers and the principle of the decentralization of powers. We come with the tools of PaRDeS[1] (Interpretation, Implied Meaning, Homiletic Exegesis and Hidden Meaning). See and cf. Yediot Aharonot Ltd v. Kraus [8], at pp. 71-74. All of these principles and values translate themselves into rules of interpretation that are applied in practice — narrow interpretation, broad interpretation, presumption of administrative regularity, ut res magis valeat quam pereat, etc. — and this is what we do in our everyday work of interpretation.

32. For our purposes we can say that when subjecting the provisions of s. 20 of the Arrangements Law to the filter of values, principles and rules, we are charged with doing our best to uphold the statute, so that the dictates of the legislature are upheld, in so far as possible, even if only partially. Thus, when we put the provisions of s. 20 into the time tunnel, and we send it back into the past to 15 February 2001, we meet on our way those entitled persons who relied on the State’s undertaking and carried out acts that changed their position. Applying the statute literally is likely to cause hardship to those entitled persons, and it is possible that it will even lead them to disaster. In the words of my colleague Justice Rivlin, not allocating the promised funds to those entitled persons will be ‘equivalent in many senses to taking away the apartments in which they live.’ The ‘objective’ interpretation of the statute requires us therefore to interpret it narrowly, i.e., as a statute that does not intend to apply itself to those entitled persons. We make use of this tool of narrow interpretation on a daily basis, and I do not see in what way this case differs from other cases; why in other cases we should give a warm welcome to narrow interpretation, whereas in this case we should reject it utterly.

33. In our opinion, the text can indeed bear the interpretation that we proposed without collapsing under the weight. It follows that we shall not apply the provisions of s. 20 to entitled persons who relied on the Government’s undertaking and changed their position. But the same will not necessarily apply to other categories of entitled persons, such as, for example, entitled persons who bought or extended an apartment in the relevant period without knowing about, and therefore without relying on, the State’s undertaking.

34. My colleagues will certainly not deny the blue pencil principle, namely the principle of separating and distinguishing between the invalid and unhealthy part of a statute, which should be voided, and the valid and healthy part of that statute. See, for example, A. Barak, Legal Interpretation (vol. 3, Constitutional Interpretation, 1994), at pp. 735 et seq. (and as we have seen, invalidating a statute, or a part thereof, is equivalent to an act of legislation). Why therefore should we not apply this principle to this case also? Admittedly, the cases differ from one another. The (usual) blue pencil principle assumes a physical possibility of circling (with a ‘blue pencil’) the defective part of the statute (or of the contract) and to cut it out of the actual text. This is not the case here, since the categories of entitled persons are not listed in the law one after another, but are included in the statute in one category. However, I can see no magic in the ‘physical’ ability of cutting parts out of the statute and throwing them into the bin in order to uphold the other part of the statute. There is nothing in my opinion to prevent an interpretation of s. 20 as if all the categories of entitled persons whom we have mentioned are listed there, one after another (see para. 30; and if I have omitted a category of entitled persons, we can add it to the list), and after a close examination we can cut out and remove what is unhealthy and keep what is healthy. It is also possible to regard the entitled persons as listed in the statute one on top of the other, and we can peel away the statute like peeling the layers of an onion: healthy layers will be left and unhealthy layers will be thrown into the bin. The cutting will not be vertical, like the cutting of the blue pencil, but horizontal, like the peeling of the onion. We were taught this by Justice Silberg in HCJ 163/57 Lubin v. Tel-Aviv-Jaffa Municipality [12], at p. 1074 (on the question of declaring a bylaw void, in whole or in part):

‘… Already at the beginning of the eighteenth century a more liberal spirit prevailed, and a qualification was made to this doctrine. The qualification is: unless there is a way of “dividing” up the statute, and it is possible to distinguish between the invalid part and the valid part thereof. In other words, the partial defect in the bylaw does not lead to its complete disqualification, when the two parts are not dependent on, or in conflict with, one another, and it is possible for the valid part to stand without relying on the other part.

…

It seems to me that the stability and coherence of the remaining permitted part should be examined not merely from the viewpoint of the “syntactical” structure of the language of the statute, but also, and mainly, from the viewpoint of the substantive content thereof. If the bylaw of any public corporation tries to apply itself to two classes of persons, and something is found to be invalid with regard to one of these, it will still be regarded as valid with regard to the other class — even if it will be necessary to delete or add several words — unless the two classes are so bound to one another that it is impossible to separate them’ [emphases in the original].

Indeed, the examination ought to be one of substance and not merely one of form.

We concede that the voyage of examining substance may be full of pitfalls and care must be taken with regard thereto. But I think that in our case we will not encounter any special difficulty, since there is a division and distinction between the different classes of entitled persons, and I have not found any good reason not to hold the State liable where it should be liable, and to exempt it where it should be exempt. In conclusion we can reiterate that we do not see any difference — in the sense of a legal distinction — between the ‘classic’ blue pencil principle and the peeling of layers in our case.

Suspending the validity of the judgment

35. My colleague Vice-President Mazza proposes that the validity of the decision concerning the invalidity of the retroactive provisions of s. 20 of the Arrangements Law should be suspended for six months, and the purpose of the suspension is ‘to allow the legislature to re-enact these provisions, while distinguishing — according to the parameters that will be determined in the statute — between persons who relied on the entitling law and others to whom the entitling law was supposed, in principle, to apply.’ The purpose of this suspension seems to me problematic, since without any great difficulty we can already, in my opinion, reach the same conclusion today. A short path appears to me preferable to a long one.

Voiding a statute and upholding a statute

36. My colleague Vice-President Mazza sees fit to void a provision of statute, whereas I uphold that provision of statute, while interpreting it narrowly. But expressing matters in this way is merely an optical illusion. From an operative point of view, the narrow interpretation that I have adopted is equivalent to a partial voidance of s. 20 of the Arrangements Law. The difference between the interpretation of my colleague and my interpretation is this, that the narrow interpretation which is preferable to me brings finality to those persons who relied on the State’s undertaking and changed their position, whereas my colleague’s interpretation makes it possible for a future statute to create parameters that may perhaps harm the rights of those who relied on the State’s undertakings. So I ask: once my colleague has reached the conclusion that those persons who relied on the State’s undertaking and incurred unnecessary expenses, are entitled to receive their grants, what justification is there for us not entitling them, immediately, to what they seek? The question provides its own answer.

Who is all-powerful and what is all-powerful?

37. My colleague Justice Rivlin writes in his opinion (in paragraph. 3) as follows:

‘Even the statement that even the British Parliament cannot make a man a woman or a woman a man has lost some of its force, since with the assistance of the surgeon’s scalpel Parliament can do even this. It can do this, but we cannot; we do not have this power.’

I would like to make two comments on these remarks, one concerning Parliament and the other concerning the courts.

38. Concerning Parliament, unlike my colleague, my opinion is that Parliament was always able — as it is today — to make a man a woman and a woman a man, even without the surgeon’s scalpel. A.V. Dicey, in Introduction to the Study of the Law of the Constitution (London, eighth edition, 1924), at p. 41, wrote as follows:

‘It is fundamental principle with English lawyers, that Parliament can do everything but make a woman a man, and a man a woman.’

I commented on this statement when I wrote (in United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], at p. 527):

‘This statement is, of course, imprecise. If the author’s intention is that Parliament does not have the power to make a man a woman and a woman a man — taking the words literally — then the remarks are certainly correct. But then they have no significance whatsoever, since in the same way Parliament does not have the power to move a pencil from one side of the table to the other. Parliament — as such — does not concern itself at all with physical actions, and it does not have the power to make physical changes in the world about us directly. Parliament only concerns itself with norms and normative activity, and it is in this field that it has power and authority. If the intention of the author is therefore that Parliament is “unable” — from a normative point of view — to make a woman a man and a man a woman, it is obvious that the statement is incorrect. In the wonderful world of norms — a world that cannot be perceived by the five senses but that rules our lives — the Knesset “can make” a man a woman and a woman a man. It is a separate question whether those persons to whom the norms are supposed to apply will abide by them. That question, it need not be said, falls outside our jurisdiction.’

And so, in the creation of norms in the world of norms, Parliament is all-powerful. Parliament does not have — nor did it ever have — a surgeon’s scalpel that can draw blood. But it had, has and always will have a normative surgeon’s scalpel.

Concerning the courts, it is true that the court is not all-powerful like Parliament, but it too has power. Thus we see that not so many years ago — twenty or twenty-five years — it never occurred to any woman or man that the concept ‘spouse’ in the Torts Ordinance extended also to unmarried partners. But in recent years we have said this: CA 2000/97 Lindorn v. Karnit, Road Accident Victims Fund [13]. See further the remarks of President Barak, ibid., at pp. 32-33. And in former generations, even someone who exercised his imagination could not have conceived that two women would be registered at the Population Registry as the mothers of an infant, since ‘a person only has one mother.’ But in recent years this has happened: HCJ 1779/99 Brenner-Kadosh v. Minister of Interior [14]. It is therefore possible that in suitable circumstances a court will make, in our lifetime or thereafter, additional decisions that our ancestors never imagined.

 

 

Vice-President E. Mazza

Like my colleague, Justice Cheshin, I too think that the interpretation of s. 20 of the Arrangements Law (‘the suspending law’) on the question of its retroactivity is unambiguous. As he says, ‘the legislature did not give the learned interpreter any credit at all, and its fear of the presumption of non-retroactivity was so great that it saw fit to tell us again and again that its intention was to uproot benefits ab initio, from the date of the commencement of Amendment 5.’ But unlike my colleague I am of the opinion that it is not possible to overcome this unambiguous provision by means of interpretation. In my opinion, it is not reasonable to expect the legislature to clarify its intention more decisively that it did in ss. 20(a)(1), 20(b) and 20(c). This is a clear and comprehensive directive and I can see no linguistic possibility of restricting it in a way that will apply only to some of the persons entitled to a grant under Amendment no. 5 of the Housing Loans Law (‘the entitling law’). In any case, it is not possible to interpret the suspending law as applicable only to whoever did not rely on the entitling law. Such an interpretation does not even have a minimal foothold in the text. It constitutes, in practice, a change in the language of the statute, and as such it departs from the legitimate boundaries of interpretation (cf. Justice Cheshin’s criticism of the doctrine of the ‘concealed lacuna’ in a statute: CA 3798/94 A v. B [15], at pp. 177-178 {298-299}. For the distinction between interpretive activity and extra-interpretative activity, which requires a distinct source of authority, see: A. Barak, Purposive Interpretation in Law (2003), at pp. 101 et seq.).

In such circumstances, we are obliged to examine the constitutionality of the retroactive application of the suspending law in accordance with the constitutional criteria set out in the Basic Law: Human Dignity and Liberty. Indeed, I too accept that whenever it is possible to refrain from constitutional intervention in the validity of a statute by giving an interpretation — even if it is a ‘creative’ interpretation — to a provision of a problematic statute, we are obliged to prefer this method. But even interpretation has its linguistic limits. We are not speaking of a choice between ‘literal interpretation’ and ‘purposive interpretation,’ but of a choice between purposive interpretation that is based on the text and purposive interpretation that is divorced from it. In any case, there is no basis for such great fear of the constitutionality test. Even when unconstitutionality is discovered in a statute, this does not necessarily lead to drastic consequences. Constitutional law allows a moderate and precise correlation of the remedy to the nature of the constitutional violation and all the interests involved therein (see: A. Barak, Legal Interpretation, vol. 3, Constitutional Interpretation (1994), at pp. 699-775).

What does the constitutionality test tell us in the case before us? Like my colleague Justice Cheshin, I too am of the opinion that the entitling law gave the persons entitled thereunder a substantive right, and that the legislature was not entitled, when enacting the suspending law, to ignore the reliance of those persons on the entitling law. This substantive right amounts to ‘property,’ within the meaning of s. 3 of the Basic Law (see: United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], at pp. 431-433, and also my comment on p. 578). I am also prepared to accept that the harm to the property of whoever did not adversely change his position in reliance on the entitling law complies with the conditions of the limitation clause in s. 8 of the Basic Law. In other words, in the absence of a legitimate interest of reliance, there is a presumption that the legislature that gave may also take away, and this should not be seen to contain any constitutional defect. But this is not the case with harm to someone who relied on the aforesaid property right and adversely changed his position as a result of the entitling law. Even if we regard this harm as befitting the values of the State of Israel and designed to achieve a proper purpose, it cannot be regarded as proportional harm. Proportional harm to the property of someone who relied on the entitling law must, at the very least, have taken into account various parameters connected with his reliance, such as the degree of legitimacy of the reliance, its strength and the criteria for proving it. The suspending law does not relate to these questions at all, and even from the history of its legislation we do not find that the legislature took any account of them.

It should be noted that in all of the aforesaid I am not adopting any position on the constitutional question of the entitling law itself. The respondents argued that this law was defective ab initio, inter alia because it did not promote the purpose for which it was enacted and because it unlawfully violated the principle of equality governing the whole class of persons lacking housing in Israel. But even if we assume that there is a foundation to those arguments, that in itself will be insufficient to remedy the disproportionate constitutional violation of the suspending law to the property of those persons who relied on the entitling law; they were not responsible for the alleged defects, and it is not fair that they should suffer the consequences thereof.

What then is the appropriate constitutional remedy in this case? One possible path is to declare the suspending law void in its entirety, effective immediately. In the circumstances of this case that would be the most drastic intervention in the validity of the statute and in the work of the legislature (see Barak, Constitutional Interpretation, at pp. 734-735). It significance is a blanket voiding of the constitutional parts of the statute, and consequently, inter alia, significant harm to the State budget. Another possible path is that we take upon ourselves the task of amending the defective statute, for example by means of separating the unconstitutional part from the constitutional parts, or by means of ‘extending the statute’ (ibid., at pp. 735-740, 759-767). Adopting this path admittedly does not harm the constitutional parts of the statute and significantly reduces the harm to the State budget, but adopting it still involves an ‘aggressive’ intervention in constitutional activity. Following this path also places institutional difficulties before the court, in view of its limited ability to formulate primary arrangements and to consider all of the relevant factors instead of the legislature. A third possible path is to declare the violating statute void, in whole or in part, but to suspend the validity of the voidance for a period that will allow the legislature to amend the constitutional defect. We have already followed this path in the past (HCJ 6055/95 Tzemah v. Minister of Defence [16], at p. 284 {687}; HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [17], at pp. 415-416). It seems to me that in our case too this path should be followed, since it is preferable to the other possible paths. The advantages of this path are obvious: it allows the legislature to consider the question of reliance concerning the suspension of the entitling law, a question that it did not consider when it enacted the suspending law; its intervention in the work of the legislature is minimal; and it does not impose on the court a task that is unsuited to its institutional competence. Suspending the validity of the declaration of voidance does not lead to an immediate operative consequence, and it certainly does not cause — at least until the mending of the defect by the legislature or until the end of the suspension period — any harm to the constitutional part of the statute or the State budget. In this way, the legislator, and not the court, is the one that determines the exact timing, manner and scope of the harm to the budget, which itself is unavoidable.

After writing my opinion, I received the opinion of my colleague the President. I have examined it, but I am not convinced that it is possible to overcome the retroactive provision of the suspending law by means of interpretation. The President’s interpretive distinction is based on the phrase ‘no person shall be entitled to the benefits’ in s. 20(c) of the suspending law. In his discussion of this phrase, the President says that even though in the linguistic sphere a person who is entitled to benefits means any person who is entitled to a benefit, whether he is an entitled person who relied on the statute or an entitled person who did not rely on the statute, the court has the power to interpret the words of the legislature in a manner that restricts them to those entitled to benefits who did not rely on the entitling law. I should emphasize that, in my opinion, this proposed path is not at all simple. But in our case, even the President’s proposal concerning the interpretation of the phrase ‘no person shall be entitled to the benefits’ is insufficient for solving the difficulty that the suspending law raises. For in order to clarify its intention with regard to the scope of the application of the suspending law, the legislature did not merely use the aforesaid phrase. In s. 20(a)(1) it took pains to explain that s. 6B of the entitling law would not apply during the period of the suspension of the law’s validity; and in order to make its intention with regard to the retroactive validity of the suspension even clearer, it stipulated in s. 20(b) that the date of commencement of the aforesaid s. 20(a)(1) would be on the date of the commencement of the entitling law. It follows that the legislature made its intention absolutely clear, that it wanted to suspend the validity of the entitling law, retroactively, from its date of commencement; and with all due respect, I do not see any method of interpretation that can determine that s. 6B of the entitling law, whose applicability was expressly cancelled (‘shall not apply’) by the legislature starting from its date of commencement, continues to apply vis-à-vis those persons who relied upon it. With regard to the remarks of the President in para. 16 of his opinion, I would like to point out that even if we assume that the proponents of the suspending law were unaware of the possibility that its retroactive application would harm those persons who have relied on the entitling law, I see no place for doubt that the subjective intention of the legislature, when enacting the suspending law, was to suspend the validity of the entitling law absolutely and retroactively. I even cannot agree with the President’s remarks in para. 17 of his opinion. With all due respect, I am of the opinion that we are obliged to interpret the suspending law against the background of the legal position created when it was enacted, according to which the ‘temporary’ suspension of the entitling law is still valid, and not against the background of a hypothetical legal position according to which suspending its validity has already occurred in the past.

My opinion is, therefore, that we should grant the petitions and make the order absolute, in the sense that we declare the retroactive provisions of s. 20 of the Arrangements Law void. The validity of the declaration shall be suspended for six months from the date of giving the judgment; and the purpose of the suspension is to allow the legislature to re-enact these provisions, while distinguishing — according to the parameters that will be determined in the statute — between persons who relied on the entitling law and others to whom the entitling law was supposed, in principle, to apply.

 

 

President A. Barak

My opinion on the dispute between my colleagues is the same as the opinion of Justice M. Cheshin. I agree with his reasoning. I would like to add several remarks of my own.

Presentation of the problem

1.    The Housing Loans Law (Amendment no. 5), 5761-2001 (hereafter — Amendment 5) provides that ‘an entitled person… who bought an apartment in Jerusalem or who extended his apartment in Jerusalem, will receive a grant…’ (s. 6B(a)). Amendment 5 determined the amount of the grant and the ways of revising it. This provision came into force on 15 February 2001 (when it was published in Reshumot). Not even two months passed and the Knesset enacted the State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001 (hereafter — the Arrangements Law). The Arrangements Law suspended the validity of s. 6B of Amendment 5. This suspension — which came into effect on 4 April 2001 when the Arrangements Law was published in Reshumot, was given retroactive effect from the date of publication of Amendment 5 (s. 20(a)(1), 20(b) and 20(c)) (hereafter — the interim period).

2.    The main purpose of the suspension was prospective. It was intended to save the State treasury a significant expense (approximately sixty million sheqels per annum) and to prevent an increase in housing prices in Jerusalem as a result of an increase in demand. Nonetheless, the suspension also operated retrospectively. In this respect, three provisions were enacted in s. 20 of the Arrangements Law. Two of these stipulated a suspension (ss. 20(a)(1) and 20(b)). The third provision cancelled the actual right in the interim period (s. 20(c)).

3.    Against this background, we all agree that the fact that an entitled person bought an apartment in Jerusalem in the interim period cannot prevent the application of s. 20 of the Arrangements Law to the interim period. Therefore, the right of an entitled person who bought an apartment in Jerusalem during the interim period for his own reasons, without relying at all on the acquisition of the right to a grant that he was granted in Amendment 5 (whom we shall call an entitled person who did not rely on Amendment 5) was suspended and even cancelled. That person does not come before us in these petitions. But what is the law with regard to an entitled person, who did rely on the existence of the grant and, because of the grant that was given in the interim period, sold his other apartment or entered into pecuniary undertakings and bought an apartment in Jerusalem in the interim period? Is also this entitled person (whom we shall call an entitled person who did rely on Amendment 5) caught by the provisions of the suspension and the cancellation? Indeed, it is the case of the entitled person who did rely on Amendment 5 that comes before us in these petitions for our decision.

4.    We all agree that the Arrangements Law should have distinguished — for the purposes of the suspension in the interim period — between the entitled person who did rely on Amendment 5 (whose right, because of his reliance, ought not to be suspended or cancelled in the interim period) and the entitled person who did not rely on Amendment 5 (who for various economic reasons ought to have his right suspended even in the interim period (ss. 20(a)(1) and 20(b) of the Arrangements Law), and even cancelled in its entirety (s. 20(c) of the Arrangements Law)). The dispute between us is whether it is possible to base this distinction between the entitled person who relied on Amendment 5 and the entitled person who did not rely on Amendment 5 in the suspension and cancellation provisions in s. 20 of the Arrangements Law, or whether this distinction has no foothold in the provisions of s. 20 of the Arrangements Law. In this dispute, I am of the opinion — and thus I join with the approach of my colleague Justice M. Cheshin — that it is possible to base this distinction between the entitled person who did rely on Amendment 5 and the entitled person who did not rely on Amendment 5 on the provisions of s. 20 of the Arrangements Law. My colleague the Vice-President, together with Justices Türkel and Rivlin, are of the opinion that this distinction does not have any basis in the provisions of s. 20 of the Arrangements Law. Against the background of their approach — and since they are of the opinion that the distinction between the entitled person who did rely on Amendment 5 and the entitled person who did not rely on Amendment 5 is important and even has constitutional force — they are of the opinion that any provision that suspends or cancels the entitlement in the interim period is unconstitutional and therefore void.

5.    I think that we are all agreed that if it possible to distinguish — within the framework of the possible interpretation of s. 20 of the Arrangements Law — between the entitled person who did rely on Amendment 5 and the entitled person who did not rely on Amendment 5, this path should be chosen. The other path — the one in which we examine the question whether an arrangement that does not distinguish in the interim period between the two classes of entitled persons is a constitutional arrangement or not — becomes available to the judge only if the first path is closed to him. Indeed, we all agree upon the outlook that the proper approach is that the interpreter of the statute should do everything possible in order to give the statute that possible interpretation that is consistent with the constitution (in Israel — with the Basic Law) and does not conflict with it, ‘and between two possible interpretations we should choose the interpretation that is consistent with the constitution’ (HCJ 4562/92 Zandberg v. Broadcasting Authority [18], at p. 810). Thus we give expression to the aspiration of achieving normative harmony in the legal system. This also gives rise to the presumption that the general purpose of every statute is to achieve constitutional values. Notwithstanding, this proper approach assumes, as my colleagues have noted, a possible interpretation of the statute. It acts within the framework of the accepted rules of interpretation. It cannot be said that we must always choose the meaning that achieves consistency between the statute and the constitution (see A. Barak, Legal Interpretation, vol. 3, Constitutional Interpretation, 1994). The presumption of consistency between the constitution and the statute can be rebutted. It is rebutted where the accepted rules of interpretation in the legal system do not allow this consistency to be achieved. It follows that the key to solving the legal question before us lies in providing an answer to the question of interpretation. The question is whether the normal accepted rules of interpretation in Israel allow a distinction between the entitled person who did rely on Amendment 5 and the entitled person who did not rely on Amendment 5. Let us now turn to an examination of this question.

Limits of interpretation

6.    The basic premise is that the ‘limit of interpretation is the limit of language’ (CA 1900/96 Telmaccio v. Custodian-General [19], at p. 827). ‘An activity is interpretation if it gives a meaning to the text that is consistent with one of its (express or implied) senses of the text in its (public or private) language’ (A. Barak, Purposive Interpretation in Law (2003), at p. 55). The interpretation ends where the language ends. ‘It is essential… that the interpretive option that realizes the legislative purpose is capable of sustaining the language of the statute’ (MApp 67/84 Hadad v. Paz [20], at p. 670). This was well expressed by my colleague, Justice M. Cheshin:

‘Every word, every expression in the language can be interpreted narrowly or it can be interpreted broadly, even very broadly, but no matter how much we widen the interpretation, we will reach a point where the elastic reaches it maximum stretching point’ (LCA 6339/97 Roker v. Salomon [21], at p. 253).

I discussed the same idea in another case:

‘The art of interpretation is not limited merely to words, but the words limit the interpretation… It is possible that the language of the statute may be given a broad interpretation or a narrow interpretation, but in general an Archimedean foothold must be found for a word in the language of the statute’ (FH 40/80 Koenig v. Cohen [22], at p. 715).

And in another case I added:

‘Every interpreter must take into account the limits of language. The linguistic significance of the language, which is intended to realize the purpose that underlies it, must be consistent with one of the linguistic senses of the text. Admittedly, the linguistic component is not sufficient for interpretation, but it is essential to it’ (CA 3622/96 Hacham v. Maccabi Health Fund [23], at p. 646).

This approach is derived from constitutional considerations. The role of the judge as an interpreter is to interpret a text that is created by the persons competent to do so (the legislature, the minister, the parties to a contract, the testator). His role as an interpreter does not authorize him to create a new test (see Barak, Purposive Interpretation, ibid., at p. 57).

7.    Section 20 of the Arrangements Law suspends and cancels the right of entitled persons. It states that ‘no person shall be entitled to the benefits’ provided in s. 6B of Amendment 5 (s. 20(c)). Prima facie, from a linguistic viewpoint, ‘no person shall be entitled to the benefits’ refers to every person who is entitled to a benefit, whether he is an entitled person who relied on Amendment 5 or an entitled person who did not rely on Amendment 5. Against the background of this general and broad language arises the interpretive question that is before us, which concerns the legitimate interpretive possibility of narrowing this broad language. The solution to this question will be found in the solution to the general problem of interpretation. Is the interpreter entitled to narrow the broad language of the text in order to achieve the purpose of the text? When the text provides a legal arrangement that applies to ‘every person,’ with regard to ‘every object’ or ‘in all circumstances’, may the interpreter — who wishes to achieve the purpose underlying the text — interpret the text in such a way that it does not apply to a particular class of persons (not ‘every’ person) or such that it does not apply to a particular class of objects (not ‘every’ object) or such that it does not apply in a particular class of circumstances (not ‘all’ circumstances)? The answer given to this question in Israel and in comparative law is yes. I discussed this in Zandberg v. Broadcasting Authority [18], where I said:

‘Where the language of the statute is broad, the judge is entitled and competent to give it a narrower meaning, which extends only to some of the options inherent in the language, provided that by doing so he realizes the purpose of the legislation. This is the case in Israel. This is also the case in comparative law’ (Zandberg v. Broadcasting Authority [18], at p. 811; see also R. Sullivan, Driedger on the Construction of Statutes, third edition, 1994, at p. 94).

Indeed, in order to realize the purpose underlying the statute — whether it is a specific purpose or a general purpose — the interpreter is authorized to give the broad language of the statute a narrower meaning. We will discuss this approach, while distinguishing between giving a narrow interpretation to broad language in order to realize a specific purpose and giving a narrow interpretation to broad language in order to realize a general purpose.

8.    Let us begin with situations of restricting broad language in order to achieve a specific purpose. A purpose is specific when it is unique to the purposes and functions that are unique to a statute or to several statutes. In order to realize this specific purpose — whether a subjective purpose or an objective purpose — the interpreter may give the general language of the statute an interpretation that restricts its application and prevents it from applying to certain situations that fall within the bounds of the general language. The following are two examples of this approach.

9.    Zandberg v. Broadcasting Authority [18] considered the Broadcasting Authority (Approval of Validity of Radio and Television Fees) Law, 5753-1992 (hereafter — the confirmation law). This law provided (in s. 1):

‘In order to remove doubt, it is hereby provided that the fees for possessing a radio or television receiver, which were determined in accordance with the Broadcasting Authority Law, 5725-1965, for the years 1985 to 1992, are valid for all intents and purposes from the date on which they were determined.’

It was held in that case that the general and broad language of the statute, according to which fees were valid ‘for all intents and purposes,’ required the conclusion that the confirmation law allows linkage differentials to be charged on fees that were unpaid. Notwithstanding it was held — and this is what is relevant to our case — that the expression ‘for all intents and purposes’ should be given a narrow interpretation, so that it should not apply to a law determining a fine for arrears. Underlying this approach was the special purpose of the confirmation law that was inconsistent with imposing a fine for arrears for a period in which there was no duty at all to pay the fee itself. In my opinion, I considered the question whether it was possible to limit the expression ‘for all intents and purposes’ in such a way that it would not apply to fines:

‘Is it possible to interpret the broad language of the confirmation law narrowly in such a way that the validity, notwithstanding the all-inclusive language, shall not apply to a fine for arrears? Is it possible, according to our accepted rules of interpretation, to interpret broad language narrowly merely because of a narrower purpose underlying it? In my opinion, the answer is yes. Indeed, the judicial interpreter ought not to sit idle and direct barbs of criticism at the legislature because he, the judge, has been unable to restrict its language that is too broad. The judge may not display apathy to a situation in which the legislative purpose is not realized. He must make an interpretive effort to realize the purpose of the legislation… the judge should not sit idle and watch the legislative purpose fail. He must interpret the statute in accordance with its purpose. Sometimes this interpretation will lead to a result that the language of the statute should be interpreted broadly. Sometimes — and this is the case before us — this interpretation leads to the conclusion that the language of the statute should be interpreted narrowly. The criterion is the criterion of the purpose of the statute. In order to realize it, the interpreter is entitled to restrict the broad (linguistic) meaning of the statute’ (ibid., at p. 811).

10. A second example can be found in the interpretation of s. 3(i)(1)(a) of the Income Tax Ordinance [New Version]. According to this provision, a right that a person received in the past to buy an asset (such as an option that an employee receives from his employer with regard to work relations) is liable for tax when it is realized. This court restricted the broad language of the statute that referred to any right, i.e., to any option, and held that this provision refers only to options that are not negotiable. The court held, relying on Zandberg v. Broadcasting Authority [18], that a court may ‘give a narrow interpretation to broad language of a provision of statute in order to apply it only to those case that are required to realize the purpose underlying the legislation’ (per Justice E. Chayot in CA 7034/99 Kefar Saba Assessing Officer v. Dar [24]).

11. Let us now turn to the second situation — which is mainly the one relevant to our case — in which the judge-interpreter restricts the broad and general language of the statute in order to realize a general purpose (subjective or objective), which is enshrined in the basic values of the legal system. I discussed this possibility in one case, where I said:

‘On more than one occasion our Supreme Court has adopted this method, when it restricted or extended the language of the statute in order to realize the basic principles of our legal system. Indeed, legislation in general and basic provisions of statute in particular are not one-time acts that are divorced from the general experience. The statute derives its flesh and bones within the framework of a given legal system. It constitutes one brick of a whole building, which is built on foundations of a political and legal system that constitute the “basic principles of that society”.’ (EA 2/84 Neiman v. Chairman of Elections Committee for Eleventh Knesset [25], at p. 307 {158}).

In that case, I gave examples of this approach, inter alia, in American case law that interpreted the First Amendment to the Constitution. This Amendment provides that ‘Congress shall make no law… abridging the freedom of speech, or of the press…’. I said that ‘the Supreme Court has not hesitated to hold, in a long line of precedents, that notwithstanding the absolute language, which rules out any discretion on the part of Congress, it has the authority to restrict the freedom of speech and the press in certain cases’ (ibid., at p. 301 {151}). I went on to say:

‘We interpret the language of the general obligation against the background of our constitution and in accordance with the principles of equality, justice, fairness and morality of our legal system. Applying these restricts the general language’ (ibid.).

Let us turn to several cases that exemplify this approach.

12. In a significant number of laws, it is stated that decisions of quasi-judicial bodies are ‘final.’ It is stated in several places that there is ‘no further recourse.’ Notwithstanding this broad language, this court has not hesitated in holding that the expression ‘final’ or ‘no further recourse’ does not prevent an application to the High Court of Justice (see HCJ 79/63 Trudler v. Borstein, Election Official for the Composition of the Agricultural Committee of Ramat HaSharon Local Council [26]; LCA 176/86 A v. B [27]; HCJ 294/89 National Insurance Institute v. Appeals Committee for Enemy Action Victims Compensation Law [28]). This approach was based on ‘narrow interpretation’ (HCJ 188/77 Coptic Orthodox Mutran v. Government of Israel [29], at p. 236), or on ‘precise and narrow interpretation’ (CA 64/72 General Federation of Workers v. Moav [30], at p. 265), or on ‘strict and narrow’ interpretation (HCJ 264/77 Katan v. National Insurance Institute [31], at p. 687). Underlying this was the need to realize the general and important social value of accessibility to the courts.

13. Sometimes a civil servant is obliged to make decisions within the field of public law. An example is a competent authority that is obliged to grant a licence to whoever fulfils the conditions for this. Notwithstanding the general and all-embracing language of the provision, it is accepted that such a civil servant may not make decisions in a position of a conflict of interests. I discussed this in one case, where I said:

‘When a statute provides that someone is obliged to hear every dispute, it is obvious that he is not obliged to hear a dispute in which he has a personal interest’ (Neiman v. Chairman of Elections Committee for Eleventh Knesset [25], at p. 307 {158}).

Underlying this approach is the outlook that the rule concerning the prohibition against a conflict of interests is one of the basic principles of our legal system. It is a part of the general purpose of every piece of legislation. Even when a statute makes use of general language that does not contain any restrictions, restrictions are imposed by virtue of the general principle of the prohibition of a conflict of interests.

14. In comparative law the following example is well-known: an inheritance statute provides that when a person dies, his property passes to his children. That inheritance statute contains no provision — of the kind that we have in Israel (s. 5(a)(1) of the Inheritance Law, 5725-1965) — to the effect that a child who murders his father is disqualified from inheriting from him. Notwithstanding this, it is accepted that the son who murdered his father does not inherit (see H. Hart and A.M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (1944), at p. 68; R. Dworkin, Taking Rights Seriously (1977), at p. 22; S. Shilo, ‘Disqualification from Inheriting: Someone who Deliberately Causes the Death of the Legator,’ Uri Yadin Book — Articles in Memory of Uri Yadin 257, vol. 2 (1990)). Underlying this approach is the outlook that the general language of the inheritance statute concerning heirs in an intestacy should be interpreted against a background of the basic principles of the legal system. One of those basic principles — which is based on principles of equity, justice and morality — is that a person should not be allowed to enjoy the fruits of his misdeeds (‘Have you committed murder and also taken the inheritance?’ (I Kings 21, 19 [43])). The broad language receives a restricted sense in order to realize one of the basic principles of the legal system. In discussing this approach, Vice-President S. Levin said:

‘Statutes are not enacted in a vacuum. They form part of an integral system that includes fundamental principles. They are presumed to have been enacted within the framework of these principles, which they are intended to realize… It is presumed that they operate in order to achieve justice and equality, and their application will prevent outcomes that are inconsistent with public policy. One of the rules of public policy is that the wrongdoer should not benefit from his misdeed’ (CA 3798/94 A v. B [15], at p. 154 {266}).

By virtue of this principle, Vice-President S. Levin held in A v. B [15] that a rule should be read into s. 13 of the Adoption of Children Law, 5741-1981, that a parent may not object to his child being declared adoptable if this is contrary to reasons of public policy concerning the acts that led to the birth of the child.

15. Underlying the approach that an interpreter may restrict the general language of the statute in order to realize the general purpose of the legislation is the approach that ‘a provision of statute is a creature that lives in its environment’ (Justice Sussman in HCJ 58/68 Shalit v. Minister of Interior [32], at p. 513). Language is interpreted in accordance with its context, and the text is understood against the background of the context. The context of every statute includes the basic values of the legal system, which constitute its general purpose. This is the ‘spirit’ that encompasses the ‘body’ (see A. v. B [15], at p. 182 {306}). This is the ‘normative umbrella’ that extends over all statutes (CA 165/82 Hatzor Kibbutz v. Rehovot Assessment Officer [33], at p. 75). An expression of this approach was given by my colleague Justice M. Cheshin, when he said that:

‘When we approach a statute of the Knesset, we do not come empty-handed. We come with a weight of language, linguistic definitions and meanings, social customs and morality, consensuses and first principles, justice and equity, principles and doctrines in our knapsack… all of these — doctrines and values and principles — are located, prima facie, outside the statute, but they serve as a platform for the statute — for every statute — and no statute can be conceived without them. A statute without that platform is like a house without foundations… When we approach the work of interpretation — like a surgeon — we do not come empty-handed. When we read the statute in our judicial capacity, we carry on our bodies an “interpretation kit,” and in this kit are all of those values and principles and doctrines without which we would not be what we are: basic principles of the legal system, morality, fairness, justice’ (Yediot Aharonot Ltd v. Kraus [8], at p. 72. See also Segal v. Knesset Speaker [3], at pp. 563-567; A. v. B [15], at p. 182 {306}).

By virtue of this approach — which constitutes a central component of our theory of interpretation — the interpreter is authorized to consider the general language of the statute and to restrict it merely to those aspects that realize the basic values of the legal system. It is to this that my colleague Justice M. Cheshin refers in his simile that ‘we can peel away the statute like peeling the layers of an onion: healthy layers will be left and unhealthy layers will be thrown into the bin’ (para. 34 of his opinion).

From the general to the specific

16. Does the purpose of s. 20 of the Arrangements Law require a restriction of the scope of the section to an entitled person who did not rely on Amendment 5? Let us begin with the specific purpose underlying s. 20 of the Arrangements Law. For this purpose, I have examined the legislative and parliamentary history. It emerges from this that according to the factual basis that was brought before the Knesset, the assumption was apparently that applying s. 20 of the Arrangements Law retroactively would not harm the entitled persons who bought an apartment in Jerusalem at all. In the explanatory notes to the draft law, it was stated that ‘In addition, in view of the fact that during the short period when these laws were valid no instructions were given to implement them, it is proposed that it should be provided also that even during the period when the aforesaid laws were valid, it was not possible to acquire rights by virtue thereof’ (cited by my colleague, Justice M. Cheshin, in para. 3 of his opinion). It would appear that the question before us — the law concerning the entitled person who relied on Amendment 5 — was not considered by the members of the Knesset. It can therefore certainly not be said that the subjective purpose of s. 20 of the Arrangements Law is to deny the grant even to entitled persons who relied on Amendment 5.

17. Moreover, s. 20 of the Arrangements Law did not merely suspend the right of the entitled persons in the interim period. It expressly stated that the right was cancelled (s. 20(c)). It follows that even if on 31 December 2001 — which was the original date for the end of the suspension — Amendment 5 had become valid once again, this would not have applied to the interim period, and it would have begun only on 4 April 2001 (the date on which s. 20 of the Arrangements Law was published) rather than on 15 February 2001 (the date on which Amendment 5 was published). This approach is natural with regard to entitled persons who did not rely on Amendment 5. It is totally irrational with regard to entitled persons who did rely on Amendment 5. If the Treasury has resources to finance the entitled persons from 4 April 2001, how is it possible to explain the unwillingness to finance precisely those entitled persons who bought an apartment in Jerusalem during the interim period while relying on Amendment 5? It would appear that the correct answer is that the interests of these entitled persons were not even considered by the legislature. The assumption was that all the entitled persons, without exception, bought an apartment in Jerusalem without relying on Amendment 5.

18. What about the general purpose of s. 20 of the Arrangements Law? This general purpose naturally includes the property right and its not being harmed retroactively. Notwithstanding, this right in itself is insufficient, since it would deny the retroactive application of the infringement of the property right of every entitled person — both the entitled person who relied on Amendment 5 and the entitled person who did not rely on Amendment 5. This result, which empties the application of s. 20 of the Arrangements Law of all content in the interim period, cannot be reached by means of interpretation. This requires a constitutional analysis. But the petitioners before us argue that they are entitled persons who did rely on Amendment 5. How is it therefore possible to justify the distinction between an entitled person whose property right was infringed during the interim period and who did rely on Amendment 5 and an entitled person whose property right was infringed in the interim period but who did not rely on Amendment 5? What is the difference between the one and the other from the viewpoint of the basic values of the legal system? The answer is that one of the basic values of our legal system is the interest of the individual’s reliance. Protection of this interest — alongside the general infringement of property — allows the interpreter to restrict the scope of the infringement to an entitled person who bought an apartment in Jerusalem solely to entitled persons who did not rely on Amendment 5. Let us therefore turn to the interest of reliance, its status in our legal system and its operation in the case before us.

19. The interest of reliance is like a golden thread that runs through Israeli law. Significant portions of private law are based on it (see A. Barak, The Agency Law, vol. 1, 1996, at p. 180; D. Friedman and N. Cohen, Contracts, vol. 1, 1991, at p. 151; G. Shalev, The Law of Contracts, second edition, 1995, at p. 161; D. Barak-Erez, ‘The Protection of Reliance in Administrative Law,’ 27 Hebrew Univ. L. Rev. (Mishpatim) 17 (1996), at p. 22). This was the law in the past when the principle of estoppel based on the rules of reliance was employed. It is also the law today, when it is possible to regard the realization of the interest of reliance as a part of the principle of good faith. From private law the interest of reliance passed to public law (see S. Schonberg, Legitimate Expectations in Administrative Law (2000)). Indeed, the public authority is the trustee of the public. Its fiduciary duty to the public leads to its duty to act fairly, equitably and proportionately. From these we derive a duty to take into account the individual’s interest of reliance. On this basis are founded the laws of administrative promise, the laws of tenders, the laws of administrative finality, the laws of administrative instructions and the laws of relative voidance (see Barak-Erez, supra). They are the basis for the need to ensure that legislation (whether primary legislation or subordinate legislation) has transition provisions in order to protect the interests of those persons who relied on the former law. This is certainly the case when a person relies on a right that was given to him (whether in primary legislation, in subordinate legislation or in any other administrative act), and it is taken away from him not only from now onwards (and without any transition provision) but even retroactively. The infringement of the interest of reliance is the most extreme in such a case. Underlying the protection of the interest of reliance are considerations of both morality and efficiency. Of course, the strength of the interest of reliance is not absolute. It is not the only consideration. It needs to be balanced against other interests, which operate in different directions. However, it must always be taken into account and given the proper relative weight (see A. Barak, Legal Interpretation, vol. 2, 1993, at p. 470).

20. In the petition before us, the petitioners claim that they relied on Amendment 5. In buying an apartment in Jerusalem during the interim period, they took into account that they would be given a pecuniary grant, and they planned their actions on the basis of this reliance. We must take this reliance of theirs into account. This is a social interest worthy of protection. Naturally, the existence of the reliance must be proved; even if it exists, it can have various degrees of strength. This public interest does not have decisive weight. However, it justifies the distinction between an entitled person who did rely on Amendment 5 and an entitled person who did not rely on it. Indeed, this distinction is accepted by all of us. My colleagues, Vice-President E. Mazza, and Justices J. Türkel and E. Rivlin, are prepared to regard the absence of this distinction as a ground for declaring s. 20 of the Arrangements Law unconstitutional, in so far as the transition period is concerned. Like my colleague, Justice M. Cheshin, I too propose giving this interest a different role, which concerns the meaning of the statute and not its validity. In view of this approach, I do not need to examine the constitutional aspect in depth, and I will refrain from adopting any position in this respect.

 

 

Justice A. Procaccia

I agree with the opinion of my colleague, Justice M. Cheshin, and with the comments of my colleague, President A. Barak.

 

 

Justice J. Türkel

Like my honourable colleague, Vice-President E. Mazza, and for his reasons, I am also of the opinion that it is not possible to overcome the unambiguous provisions of s. 20 of the State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001, by means of interpretation. Admittedly, in general it is preferable to adopt the path of interpretation and to refrain from a constitutional examination of a statute, but the language of the section does not have any linguistic opening, even as small as the eye of a needle, through which it is possible to inject a different meaning from the one that the legislator intended. It follows that we are compelled to examine the constitutionality of the retroactive application of the section in accordance with the constitutional criteria in the Basic Law: Human Dignity and Liberty. In this regard, I agree also with the comments of my honourable colleague, Justice E. Rivlin.

Therefore I agree with the opinion of the Vice-President and the outcome that he reached.

 

 

Justice E. Rivlin

1.    In the dispute between my colleagues Vice-President E. Mazza and Justice J. Türkel on one side, and President A. Barak, as well as Justices M. Cheshin, D. Beinisch and A. Procaccia on the other, my opinion is like that of the Vice-President, for his reasons. Like him, I am of the opinion that there is no possibility of interpreting the provisions of s. 20 of the State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001 (hereafter: the Arrangements Law), in a manner that restricts its application to such an extent that it can make it unnecessary for us to consider its constitutionality.

2.    In practice, there is no dispute between my colleagues that we cannot accept the outcome that the benefit to which the petitioners are entitled should be cancelled so comprehensively, and retroactively. My colleague Justice M. Cheshin wishes to avoid the constitutional question that arises in the petition by using an alternative tool — the tool of interpretation — in order to resolve the petitioners’ problem. My colleague the President also proposes this. I accept their fundamental position, with which my colleague the Vice-President also agrees, according to which we should turn to constitutional review — which can be described as a ‘judgment day weapon’ — only when we have exhausted all other avenues. This approach is accepted in American constitutional law, where a doctrine sometimes called the doctrine of ‘strict necessity’ is accepted. According to this theory, the court shall not resort to constitutional review unless it is unavoidable. Various techniques are used by the court there as escape routes from constitutional review. In Rescue Army v. Municipal Court of Los Angeles [38], Justice Rutledge listed these techniques and explained the logic that justified using them (it should be noted that some of the techniques are the subject of dispute in the United States, and others, such as the right of standing, are no longer relevant in Israeli law):

‘…this Court has followed a policy of strict necessity in disposing of constitutional issues. The earliest exemplifications… arose in the Court's refusal to render advisory opinions…

… in addition, “the Court (has) developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision” (Ashwander v. Tennessee Valley Authority [39], at p. 346). Thus, as those rules were listed in support of the statement quoted, constitutional issues affecting legislation will not be determined in friendly, nonadversary proceedings; in advance of the necessity of deciding them; in broader terms than are required by the precise facts to which the ruling is to be applied; if the record presents some other ground upon which the case may be disposed of; at the instance of one who fails to show that he is injured by the statute’s operation, or who has availed himself of its benefits; or if a construction of the statute is fairly possible by which the question may be avoided’ (at pp. 568-569).

‘The policy’s ultimate foundations… lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our system’ (at p. 571).

One of the tools listed by Justice Rutledge is the construction of the statute under attack in such a way that it will make constitutional review of its superfluous. With regard to this tool, Justice Brandeis, to whose important remarks in Ashwander v. Tennessee Valley Authority [39], at p. 348, Justice Rutledge refers, cited the following:  

‘When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided’ (Crowell v. Benson [40], at p. 62).

See also the remarks of Justice White, in a similar vein, in Ellis v. Railway Clerks [41], at p. 444.

3.    But care must be taken so that excessive use is not made of this tool. Chief Justice Vinson said in this regard, in Shapiro v. United States [42], at p. 31:

‘The canon of avoidance of constitutional doubts must… give way where its application would produce a futile result, or an unreasonable result “plainly at variance with the policy of the legislation as a whole”.’

Like my colleague Vice-President E. Mazza, I too am of the opinion that the case before us is one of the cases to which Chief Justice Vinson referred. As both the Vice-President and Justice M. Cheshin explain, the language of the provision that is relevant in our case is unambiguous. A provision should not be given an interpretation that is entirely in conflict with its language. The art of interpretation, although it is desirable and essential, has limits, beyond which the interpreter cannot pass; otherwise he will find himself rewriting legislation. In the case before us, the interpretation proposed by the majority justices goes, in my opinion, beyond the confines of what is possible and what is permitted. As my colleague the President says, there are indeed times when the interpreter is authorized to give the broad language of the statute a narrower meaning in order to achieve a broad or specific purpose. But this is not the case where the legislature has made its intention clear in a manner that is unambiguous. Once it has done that, and has ruled out any other intention, there is only one method of interpretation and no other — one interpretation but not its opposite. Indeed, even the statement that even the British Parliament cannot make a man a woman or a woman a man has lost some of its force, since with the assistance of surgeon’s scalpel Parliament can do even this. It can do this, but we cannot; we do not have this power. My colleague Justice Cheshin complains about this remark. He emphasizes that the court does have power and he points to important case law that has strengthened equality between the sexes with a progressive spirit. But the dispute between us, in this case, concerns the method rather than the outcome, for where the interpretive tool fails, constitutional review may remain. Where it is impossible to call a woman a man, it is possible, in the proper circumstances and when the constitutional requirements are fulfilled, to nullify the distinction between them by means of reducing the force of the provision of statute itself. Thus equality is achieved between man and woman even without calling a woman a man. Like my colleague Vice-President E. Mazza, I am of the opinion that where the court reaches an opinion that a particular law, according to the interpretation required in the light of its language and purpose, is not a desirable law, it cannot, by giving an (‘creative’) interpretation to the statute, remedy it on behalf of the legislature. In such cases, the court is obliged to examine the statute constitutionally. This examination does not constitute a ‘fear of the legislator’ that has taken hold of us — in the language of my colleague Justice M. Cheshin. This examination is merely a direct constitutional attack on the statute, of its actual validity, once the more moderate attack — namely the interpretation to which my colleague resorted — was unsuccessful. As my colleague Justice J. Türkel rightly points out, since there is no ‘linguistic opening, even as small as the eye of a needle, through which it is possible to inject a different meaning from the one that the legislator intended… we are compelled to examine the constitutionality of the retroactive application.’

This procedure is the proper procedure in view of the principle of the separation of powers. The power to enact and amend legislation is the sole province of the legislature, whereas the court interprets statutes and examines their constitutionality. An interpretation that is inconsistent with the language of the statute violates the authority given to the legislature far more than a declaration that a statute is void for constitutional reasons. An interpretation that lacks a proper foothold in the language of the statute may breach the delicate balance between the powers. In a certain sense, interpretation that bypasses the language of the statute also involves the court shirking its proper role, namely to denounce in a loud and clear voice any statute that our statute book cannot accept — in view of the basic principles of our legal system, as these are established in the constitutional documents. A clear constitutional declaration is sometimes an essential need that presents the legislature and the public with a constitutional guideline that also looks to the future.

4.    In view of the aforesaid, I am of the opinion that we cannot avoid considering the question of constitutionality that the petition raises. On this question too I agree with the position of my colleague, Vice-President E. Mazza. I will merely add and comment that the question of the scope of the property right enshrined within the framework of s. 3 of the Basic Law: Human Dignity and Liberty is a weighty and multifaceted question. I am not persuaded that there is a basis for regarding reliance on an undertaking or even on a property right — as it is recognized in private law — as property that is worthy of constitutional protection in every case. This has already been said in CA 10608/02 Hazima v. Department of Customs and VAT [34]:

‘The modern State, which is no longer merely a ‘night watchman,’ cannot refrain from intervening in the private market and from causing, in certain circumstances, harm to the right of private property. For this reason, the definition of property, and the definition of harm thereto, for the purposes of constitutional law are not identical to the definitions recognized in private law. The protection to the right of property is also not absolute, and frequently it will have to contend with competing values, until it reaches a proper balance (ibid., at para. 8).

In our case, I am of the opinion that we are able to refrain from considering this major question, on account of the special circumstances of the case. According to the arguments of the petitioners, they had in their possession, in theory if not in practice, money that the State allocated them. The petitioners used this money in order to buy or to extend residential apartments. Taking this money away from them, now, is equivalent in many senses to taking the apartments in which they live away from them, because they will not be able to meet the financial undertakings involved in the purchase or extension of the apartments, to which the petitioners have already committed themselves. The centrality of the home for the ‘personhood’ of the individual and his self-realization (M.J. Radin, ‘Property and Personhood,’ 34 Stan. L. Rev. (1982) 957) requires us to hold that the protection of this is included in the constitutional protection of property (see and cf. CA 9136/02 Mister Mani Israel Ltd v. Rize [35], at para. 8). Therefore the provisions of s. 20 are contrary to the dictates of s. 3 of the Basic Law, and since, as my colleague Vice-President E. Mazza has shown, it does not comply with the terms of the limitations clause, it is void. In the circumstances of the case, the proposal of my colleague, the Vice-President, to make an absolute order in the sense that we declare the retroactive provisions of s. 20 of the Arrangements Law void and that the validity of the aforesaid declaration shall be suspended for six months for the purpose set out in the opinion of the Vice-President seems right to me.

Therefore I agree with the opinion of Vice-President E. Mazza.

 

 

Justice D. Beinisch

1.    All of my colleagues in this case agree that the retroactive application of s. 20 of the State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001 (hereafter: section 20) cannot stand in its entirety. There is no disagreement between us that its application must be restricted, so that the comprehensive retroactive cancellation of the benefit to which the petitioners were entitled under s. 6B (currently s. 6C) of the Housing Loans Law, 5752-1992, is not upheld in a way that does not take into account at all the question whether they relied on the provisions of the statute that granted entitlement to the benefit, and the question whether they changed their position accordingly before the benefit was suspended.

The disagreement is whether the proper outcome of restricting the retroactive application can be achieved by means of interpretation — as Justcie Cheshin, President Barak and Justice Procaccia believe — or whether a constitutional examination of the aforesaid section 20 and a declaration that its retroactive provisions are void are inescapable, which is the position of Vice-President Mazza, Justice Rivlin and Justice Türkel.

Everyone agrees that when the validity of a statute is questioned and a doubt arises as to its constitutionality, the court should first consider whether it is possible to find a reasonable interpretation that will make it unnecessary to decide its constitutionality and will allow the statute to exist in harmony with the basic principles of the constitution and the legal system (see, for example, the opinion of Justice Cheshin in Segal v. Knesset Speaker [3], at pp. 548-550; the opinion of Justice Dorner in HCJ 4128/02 Man Nature and Law — Israeli Environmental Protection Society v. Prime Minister of Israel [36]; HCJ 4885/03 Israel Poultry Raisers Association v. Government of Israel [37], at pp. 74-79 {451-458}). However, this is only the case when the path of interpretation is available to the court. As President Barak discussed in his book Legal Interpretation (vol. 3, Constitutional Interpretation, 1994, at p. 117:

‘The proper approach is that we should choose, of the two possible interpretations from the viewpoint of the language and the purpose, the interpretation that leads to harmony between the statute and the constitution… [but,] the loyalty of the judge-interpreter to the legislation requires him to give the statute an interpretation that its language can sustain and that realizes its purpose. If this interpretation leads to a harmony between the statute and the constitution, it is right and proper; and if this interpretation leads to a conflict between the statute and the constitution, it is unavoidable. It transpires that the desire to achieve harmony between the statute and the constitution operates within the framework of the rules of interpretation, and as an inner-purposive rule of interpretation. It assists in formulating the purpose of the legislation. It cannot bring about a forced harmony between the interpretation of the statute and the constitution.’

None of my colleagues disputes this starting point in principle; the dispute is whether in this case the interpretive option that allows the provisions of s. 20 of the aforesaid law to be upheld and its retroactive application not to be comprehensive is open to us. I have given much consideration to this question, and initially I even was disposed to favour the approach of Vice-President Mazza. But after I read the opinions of my colleagues several times, I have been persuaded that the interpretive path proposed by Justice Cheshin is indeed possible (or, should we say, is not impossible) in this case, and therefore we are obliged to prefer it.

2.    The approach of Justice Cheshin and President Barak admittedly narrows the retroactive application of the aforesaid section 20 by means of an interpretation that adds to the broad language of the section a qualification that is not expressly mentioned in the section. But in appropriate circumstances there are cases where the legislative purpose, as well as the context, the text taken as a whole and the basic principles of the legal system require us to read into a provision of statute a qualification that is not stated in it. This interpretive outcome is possible when a qualification of this kind is consistent with the purpose of that statute and it has a foothold, albeit a weak one, in the language of the statute, or at least when the language of the statute does not conflict with the possibility of reading into it the aforesaid qualification (and for this purpose I accept in principle the approach of the President as set out in paras. 7-15 of his opinion).

3.    In our case, the language of section 20 admittedly is more consistent, on the face of it, with an interpretation that grants this section an all-embracing retroactive application, but I do not think that the language of the section completely rules out the possibility of qualifying the retroactive application as proposed in the opinion of my colleague, Justice Cheshin. Note that the interpretation of Justice Cheshin does not absolutely rule out the retroactive application of section 20, for we all agree that the language of the section cannot sustain such an interpretation; instead, it restricts or qualifies the retroactive application, in a way that the language of the section can sustain. In such circumstances, we should consider whether this interpretation is consistent with the purpose of the statute.

4.    The purpose of the aforesaid Arrangements Law and of section 20 thereof is to postpone the date of commencement of statutes that were enacted without there being sources of finance in the budget, and the implementation of these would have seriously harmed the budget (see para. 3 of the opinion of Justice Cheshin). As can be seen from the language of section 20 and from the deliberations that took place before it was enacted, the legislature was of the opinion that in order to realize the purpose of the statute — preventing serious harm to the State budget — it was not sufficient to suspend the validity of the provision granting entitled persons a grant to buy or extend an apartment in Jerusalem from that time onward, but it was necessary to suspend the validity of that provision retroactively from the date on which it was enacted. However, there is no doubt that the saving achieved for the State budget as a result of denying the benefits to those few entitled persons who, during the six weeks in which the provision granting the benefits was valid, managed to rely upon it and to change their position adversely, is a negligible fraction of the total saving. Certainly, these are not amounts that are capable of frustrating the purpose of the statute — preventing serious harm to the budget. Therefore, the interpretation of Justice Cheshin, which excludes from the retroactive application of section 20 those few persons who relied on the provision of the entitling law, is consistent, or at least does not conflict with, the particular purpose of section 20 — preventing serious harm to the State budget.

5.    Alongside the particular purpose of the aforesaid section 20 is the general purpose of the section. Within the framework of this general purpose are the basic principles of our legal system. Within the framework of the general purpose of the legislation, there is, inter alia, a presumption that a statute is not intended to conflict with the basic laws and to harm the basic rights of the individual. The property right that the State gave to entitled persons under the aforesaid entitling provision was a concrete and restricted benefit that was given for the purpose of housing, and only to entitled persons who fell into the category of persons in need. Retracting the benefit from those persons who relied on that benefit to buy or extend a residential apartment amounts to a real infringement of the basic right to property. Therefore, there is no doubt that the general purpose of the aforesaid section 20 not only is consistent with the interpretation of Justice Cheshin, which seeks to prevent the serious harm to the property right of those entitled persons who relied on it, but it even requires this interpretation.

It should be noted that, in my opinion, in this case we are not required to decide the question of the status of the principle of reliance in Israeli law and the question whether it is included among the basic principles of our legal system (cf. paras. 18-19 of the President’s opinion). This is for the reason that in our case the question whether the principle of reliance in itself can require a narrow interpretation that is consistent with it does not arise. In the case before us, the reliance constitutes a circumstance that makes the harm to property disproportionate (as my colleagues Vice-President Mazza and Justice Rivlin explain), and the property right is the dominant basic principle in view of which the restrictive interpretation in required.

6.    Thus we see that the interpretation proposed by Justice Cheshin, which excludes from the retroactive application of section 20 the entitled persons who relied on the provision of statute that gave entitlement to a grant for the purchase or extension of an apartment in Jerusalem, is possible from the viewpoint of the language of the section, does not conflict with the particular purpose of the section, and is required by the general purpose of the section. In these circumstances, the interpretive path should be preferred to the voidance of the relevant part of the provision of statute.

 

 

Petition granted, in the manner stated in the majority opinion (Justice Cheshin, with President A. Barak and Justices A. Procaccia and D. Beinisch concurring), Vice-President E. Mazza and Justices J. Türkel and E. Rivlin dissenting.

9 Kislev 5765.

22 November 2004.

 

 

[1]   The Hebrew acrostic for the four Rabbinic tools of Biblical interpretation.

 

 

HCJ 164/97

Conterm Ltd.

v.

1.  Finance Ministry, Customs and VAT Division

2.  Customs Officer, Ashdod

3.  Port and Train Authority

 

 

 

The Supreme Court Sitting as the High Court of Justice

[February 4, 1998]

Before President A. Barak and Justices M. Cheshin, I. Zamir

 

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

 

Facts: The petitioner acquired a license from the Customs Authority to operate a licensing warehouse on land in dispute between it and the Port and Train Authority. The Customs Authority asked for proof that the petitioner had a right in the land, as required by the regulations, and in return it received an agreement that did not appear to address such a right. The Customs Authority granted the license anyway. When it became aware of the dispute over the land, it refused to renew the license. The central question is whether the petitioner had a duty to disclose the existence of the dispute to the Customs Authority, and more broadly, whether individuals owe a duty of fairness in their dealings with administrative agencies.

 

Held: All three justices held that the Customs Authority had a right to refuse to renew the license, each on different grounds. Justice Zamir held that not only does the government owe a duty of fairness to citizens, but citizens owe a reciprocal duty of fairness to the government, including a duty to disclose information material to a request for a license. Such duty stems from the social contract, in which citizen and government are partners in the democratic enterprise. The petitioner’s breach of such duty in failing to disclose material information of primary importance justified refusing to renew the license. President Barak held that the individual owes no general duty of fairness to the government. Any duty owed by the individual to the government must be specific to the issue in question and dependent on the proper balance between the interests of society as represented by the government and the rights and freedoms of the individual. The petitioner’s duty of disclosure owed to Respondents 1-2 stems from the fact that a proper exercise of governmental authority requires the individual to make appropriate disclosures to the government concerning material facts which serve as the basis for the governmental decision. Justice Cheshin held that in his or her dealings with the government, the individual bears no duty to disclose information at its own initiative. The government is better situated to know what information is material and to ask for it. The Customs Authority’s decision not to renew the license, however, does not warrant judicial intervention because the petitioner did not meet a material condition set by the Regulations regarding a right in the land.

 

Objection to order-nisi of February 25, 1997. Petition denied. Order-Nisi rescinded.

 

For the petitioner—Yehoshua Wolf and Yaakov Yaniv

For Respondents 1-2 —Dana Briskman, Executive Deputy State Attorney

For Respondent 3 —Yaakov Liraz.

 

Basic Laws Cited:

Basic Law: Human Dignity and Liberty.

Basic Law: Freedom of Occupation.

Basic Law: The Judiciary – s.1(a).

Basic Law: The Government – s.1.

 

Israeli Legislation Cited:

Port and Train Authority Law, 1961.

Contract Law (General Part), 1973 – ss.12, 13, 15, 39, 61(b).

Interpretation Law, 1981 – ss.11, 17(b).

Land Law, 1969 – s. 14.

Legal Capacity and Guardianship Law, 1962.

Mandatory Education Law, 1949.

Penal Law, 1977 – ss.262, 491.

Traffic Ordinance [new version] – s.64a.

Shipping Law (Sailors), 1973 – s.39.

Law of Return, 1950.

Business Licensing Law, 1968 – s.1(a)(1).

Customs Ordinance [new version] – s.70(b).

 

Regulations Cited:

Customs Regulations, 1965 – numbers 12, 14, 14(b), 12-23, ch.7, sixth addendum, part 3.

Traffic Regulations, 1961 – numbers 144, 146.

 

Israeli Supreme Court Cases Cited:

[1] HC 233/53 Alspector v. Mayor of Beit Shean, IsrSC 8 659.

[2] HC 9/49 Bloi v. Interior Minister, IsrSC 2 137.

[3] HC 56/53 Kakanda v. City of Ramla, IsrSC 7 949.

[4] HC 56/76 Berman v. Police Minister, IsrSC 31(2) 687.

[5] HC 799/80 Shallam v. Gun Law, 1949 Licensing Clerk, Oil Administration of Petach Tikvah, Interior Ministry, IsrSC 36(1) 317.

[6] HC 475/81 Deak & Co. Inc. v. Governor of the Bank of Israel, IsrSC 36(1) 803.

[7] CA 433/80 I.B.M. Israel Assets, v. Property Tax Director and Compensation Fund of Tel-Aviv, IsrSC 37(1) 337.

[8] CA 736/87 Yaakobovitch v. Land Appreciation Tax Director of Nazareth, IsrSC 45(3) 365.

[9] CA 1928/93 Securities Authority v. Gabor Savarina Textile Factories., IsrSC 49(3) 177.

[10] CA 338/85 Speigelman v. Chapnik, IsrSC 41(4) 421.

[11] HC 707/80 Ilanot Housing, Building and Development Co. v. Arad Local Council, IsrSC 35(2) 309.

[12] CA 391/80 Mira Lesserson v. Workers Housing Ltd., IsrSC 38(2) 237.

[13] CA 402/76 Azaranikov v. State of Israel, IsrSC 31(1) 270.

[14] HC 640/77 Baranovsky v. Department of Customs and Excise Director, IsrSC 32(2) 75.

[15] HC 566/81 Amrani v. Chief Rabbinical Court, IsrSC 37(2) 1.

[16] HC 221/86 Kanafi v. National Labor Court, IsrSC 41(1) 469.

[17] FH 22/82 Beit Yules Ltd .v. Raviv Moshe & Partners, Ltd., IsrSC 43(1) 441.

[18] HC 376/81 Lugassi v. Communications Minister, IsrSC 36(1) 449.

[19] HC 4422/92 Efran v. Israel Land Administration, IsrSC 47(3) 853.

[20] HC 840/79, Center for Contractors and Builders in Israel v. Government of Israel, IsrSC 34(3) 729.

[21] HC 549/75 Noach Film Company, Ltd. v. Film Review Council, IsrSC 30(1) 757.

[22] HC 135/75 Cy-Tex Corporation Ltd. v. Trade and Industry Minister, IsrSC 30(1) 673.

[23] HC 3/58, Berman v. Interior Minister, IsrSC 12 1493.

[24] HC 335/68 Israeli Consumer Council v. Chair of the Gas Services Investigatory Committee, IsrSC 23(1) 324.

[25] HC 135/71 Fresman v. Traffic Supervisor, IsrSC 25(2) 533.

[26] HC 1930/94 Nathan v. Defense Minister, IsrSC 48(4) 643.

[27] HC 656/80 Abu Romi v. Health Minister, IsrSC 35(3) 185.

[28] HC 337/66 Estate of Kalman Fital v. Assessment Committee, Town of Holon, IsrSC 21(1) 69.

[29] HC 421/86 Ashkenazi v. Transportation Minister, IsrSC41(1) 409.

[30] HC 727/88 Awad v. Religious Affairs Minister, IsrSC 42(4) 487.

[31] HC 2911/94 Baki v. Interior Ministry Director-General, IsrSC 48(5) 291.

[32] HC 2918/03 City of Kiryat Gat v. State of Israel, IsrSC 47(5) 832.

[33] HC 442/71 Lansky v. Interior Minister, IsrSC 26(2) 337.

[34] HC 987/94 Euronet Golden Lines (1992) Ltd. v. Communications Minister, IsrSC 48(5) 412.

[35] HC 1635/90 Zharzhavski v. Prime Minister, IsrSC 45(1) 749.

[36] HC 669/86 Robin v. Berger, IsrSC 41(1) 73.

[37] HC 142/70 Shapira v. Bar Association Jerusalem Regional Council, IsrSC 25(1) 325.

[38] HC 6163/92 Eisenberg v. Housing and Construction Minister, IsrSC 47(2) 229.

[39] CA 6821/93 United Mizrachi Bank. v. Migdal Agricultural Cooperative Village, IsrSC 49(4) 221.

[40] HC 1601/90 Shalit v. Peres, IsrSC 44(3) 353.

[41] CA 148/77 S. Roth v. Yeshufa Construction Ltd., IsrSC 33(1) 617.

[42] CA 207/79 Raviv Moshe & Partners, Ltd. v. Beit Yules Ltd. IsrSC 37(1) 533.

[43] HC 59/80 Be’er Sheva Public Transportation Services Ltd. v. National Labor Court in Jerusalem, IsrSC35(1) 828.

[44] HC 8507/96 Orin v. State of Israel, IsrSC 51(1) 269.

[45] HC 3872/93 Mitral Ltd. v. Prime Minister and Religious Affairs Minister, IsrSC47(5) 485.

[46] CrimA 119/93 Lawrence v. State of Israel, IsrSC 48(4) 1.

[47] HC 1/49 Bazherno v. Police Minister, IsrSC 2 80.

[48] HC 192/61 Kalo v. City of Bat Yam, IsrSC 16 1856.

[49] HC 328/60 Musa v. Interior Minister, IsrSC 17 69.

[50] HC 43/76 Amitar Company, Ltd. v. Tourism Minister, IsrSC 30(3) 554.

[51] HC 208/79 Ineis v. Health Ministry General Director, IsrSC 34(1) 301.

[52] HC 758/88 Kendel v. Interior Minister, IsrSC 46(4) 505.

[53] HC 740/87 Bentali v. Interior Minister, IsrSC 44(1) 443.

[54] CA 186/52 Jerusalem “Eden” Hotel v. Dr. Gerzon, IsrSC 8 1121.

[55] HC 1921/94 Sukar v. Jerusalem District Committee on Construction, Residence, and Industry, IsrSC 48(4) 237.

[56] HC 35/48 M. Breslov & Partners Ltd. v. Trade and Industry Minister, IsrSC 2 330.

[57] HC 132/57 First v. City of Lod, IsrSC 11 1324.

[58] HC 280/60 “Avik” Ltd. v. Voluntary Authority on Importation of Pharmaceutical Preparations , IsrSC 16 1323.

[59] HC 115/61 Yakiri v. City of Ramat Gan, IsrSC 16 1877.

[60] HC 27/62 Alt v. Tel Aviv-Jaffa Local Town Building and Planning Committee, IsrSC 25(1) 225.

[61] HC 278/62 Sarolovitch v. City of Jerusalem, IsrSC 17 508.

[62] HC 329/64 Guri v. Bnei Brak Local Town Building and Planning Committee, IsrSC 19(1) 365.

[63] HC 109/70 Orthodox Coptic Metropolitan in Jerusalem v. Police Minister, IsrSC 25(1) 225.

[64] HC 37/49 Goldstein v. Jaffa Guardian of Abandoned Property, IsrSC 2 716.

[65] HC 143/62 Schlesinger v. Interior Minister, IsrSC 17 225.

[66] HC 58/68 Shalit On His Own Behalf and On Behalf of His Children v. Interior Minister, IsrSC 23(2) 477.

[67] HC 5364/94 Welner v. Chair of Israeli Labor Party, IsrSC49(1) 758.

[68] HC 305/82 Y. Mor v. Central District Regional Planning and Construction Committee, IsrSC 38(1) 141.

[69] HC 107/59 Mei-Dan v. Tel-Aviv-Jaffa Local Planning and Construction Committee, IsrSC 14 800.

 

United States Cases Cited:

[70] Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986).

[71] Thomas v. Union Carbide Agric. Products Co. 473 U.S. 568 (1985).

 

English Cases Cited:

[72] Scruttons v. Midland Silicones [1962] 1 All E.R. 1 (H.L.).

[73] Donoghue v. Stevenson [1932] A.C. 52.

[74] Reg v. Home Secretary, Ex p. Zamir [1980] A.C. 930.

[75] Reg. v. Home Secretary, Ex p. Khawaja [1984] A.C. 74.

 

Israeli Books Cited:

[76] H. Klinghofer, Mishpat Minhali [Administrative Law] (1957).

[77] G. Shalev, Dinei Chozim [Contract Law] (1995).

[78] A. Barak, Shikul Da’at Shiputi [Judicial Discretion] (1987).

[79] 2 I. Zamir, Hasamchut Haminhalit [Administrative Authority] (1996).

[80] M. Mautner, Yiridat Haformalism Vialiyat Haarachim Bamishpat Hayisraeli [Decline of Formalism in Israeli Law] (1993).

[81] 1 B. Aktzin, Torat Hamishpat [Jurisprudence] (2nd ed. 1968).

[82] G. Shalev, Chozei Rishut Biyisrael [Contracts]  (1985).

[83] 1 B. Bracha, Mishpat Minhali [Administrative Law] (1987).

[84] M. Cheshin, Mitaltilin Bidin Hanizikin [Chattel in Torts] (1971).

 

Foreign Books Cited:

[85] L.H. Tribe, Constitutional Choices (1985).

[86] L.H. Tribe, American Constitutional Law (2nd ed. 1988).

 

Jewish Law Sources Cited:

[a] Babylonian Talmud, Order Tractate Shabbat 31:1; 104:2.

[b] Leviticus 19;18; 25;17.

[c] Isaiah 58:7.

[d] Micah 6: 8.

[e] Exodus 21:15, 16.

[f] Babylonian Talmud, Tractate Baba Metzia 59:1.

[g] Mishnah, Tractate Avot, 2:3; 1:10.

[h] Genesis 4:22.

 

 

 

JUDGMENT

Justice I. Zamir

 

            1. The petitioner, Conterm Company Ltd., received a customs license to operate a licensing warehouse.  By law, the license had to be renewed yearly. The Customs Authority refused to renew the license. The petitioner is challenging that refusal; it claims that it has a right to a renewal of the license.

 

            A central question raised in this petitions is the duty of fairness between the administrative agency and the citizen. Usually, that question is directed at the administrative agency: What kind of duty does it owe the citizen? This time, the question is directed at the citizen: Does the citizen owe a duty of fairness (or, in other words, a duty to behave properly) to the administrative agency?

 

The Facts

 

            2. For over 20 years, the petitioner has operated a freight terminal in Ashdod. The terminal operates as a licensing warehouse through a license granted by the customs director, under the seventh chapter (beginning at Regulation 12) of the Customs Regulations, 1965 (hereinafter – the Regulations). The license authorizes the storage of goods for which customs duties apply. The warehouse operates on land which the petitioner owns, in the northern industrial zone of Ashdod, about 50 meters from the railway leading to the Ashdod Port (hereinafter: the main railway).

 

            The petitioner wanted to take advantage of the warehouse’s convenient location by using the railway to make the process of shipping the freight to and from the facility more efficient, minimizing the use of trucks and saving on transportation costs. The petitioner submitted a proposal to the Port and Train Authority, under which it would build, at its expense, an extension of the tracks from the main railway to the warehouse. The extension would allow the petitioner to load freight from the port onto the train, then unload it close to the warehouse and store it there, as well as to load freight from the warehouse onto the train, to send to the port.

 

            The Port and Train Authority, a statutory corporation created by the Port and Train Law, 1961 (hereinafter – the Port Authority), owns and operates the railway. It also owns 44 dunams [4.4 hectares – trans.] of land bordering the main railway on one end, and the warehouse on the other (hereinafter – the land). The petitioner wanted to build the railway extension on the land, which was vacant and unused, so that the railway would reach the warehouse. Toward the end of 1992, it approached the Port Authority with its request.

 

            On June 6, 1994, following extensive negotiations, the petitioner and the Port Authority signed a contract (hereinafter – the contract). Section 2B of the contract declared the following:

 

All lines and systems of the extension will be built on land belonging to the Authority [The Port Authority – I.Z.] and will become its property upon their construction. The company [the petitioner – I.Z.] has no right whatsoever to the Authority’s land in general, and to the land on which the extension is built, in particular.

 

As an appendix to the contract, the parties attached a scheme marking the route of the main railway and the planned extension: The Chief Engineer of Israel Railways signed it on January 3, 1994, and later the petitioner, the Train’s Deputy Director-General for Commerce, Economics, and Finance, and the Train’s Deputy Director-General for Operations signed as well (app. R/7 of the Port Authority’s Statement).

 

            3. Not long after the parties signed the scheme designating the route of the extension (hereinafter – the first scheme), the petitioner approached the Port Authority with a request to change the route of the extension. According to the petitioner, the change was necessary to allow it to set up and operate machinery for loading and unloading bulk seeds. The change would mean that the route of the extension, which, under the first scheme, was to reach the border of the warehouse, would be moved further from the warehouse, close to the main railway. The change would enlarge the open area between the extension and the warehouse.

 

            The Port Authority agreed to the proposed change. The new route of the extension was drawn on a new scheme prepared by the petitioner’s planner, and on May 15, 1995, the Director of the Engineering Department in Israel Railways signed it (hereinafter – the second scheme). The new route was not the only change between the first and second scheme; on the second scheme, the parties labeled the area between the extension and the warehouse as a “storage area.”

 

            4. The appendix to the contract, signed at the same time as the contract itself, gave the petitioner a limited right to use the land (referred to in the appendix as “the plot”). The petitioner was to be allowed to use the land to load and unload freight and to transport it from the train to the warehouse and from the warehouse to the train. According to the appendix:

 

3. The company [the petitioner – I.Z.] may make use of the plot running along the tracks of the train stationed in the extension exclusively for purposes of loading and/or unloading trains which are stationed at the extension for that purpose, so long as they are stationed there.

 

Unloading and/or loading trains include transporting or shipping the freight from the extension to the company’s storage facilities adjacent to the plot and the reverse.

 

4. Any change of any kind to the plot and/or anything attached and/or connected to it requires the advance written approval of the Director-General of Israel Railways.

 

            5. The petitioner, however, had a larger plan: It intended to use the area of the land not just to load and unload freight from the train and onto the train, as the contract provided, but also to store freight. It planned to enlarge the area of the warehouse to include the area of the land, as well. In order to accomplish this, it needed to do two things. First, it needed to do work on the land, in order to prepare it for use as a licensing warehouse, including fencing in the land to prevent freight from being added or removed without undergoing inspection. This task posed a problem with the Port Authority, which owned the land. The second thing the petitioner needed was a license to use the land as a licensing warehouse. That task posed a problem with The Customs Authority, which is authorized to grant such licenses.

 

            6. The petitioner began working on the first task: preparing the land for storing freight. Under the terms of the contract, the petitioner could not make “any change, of any kind” to the land, without “the advance written approval of the Director-General of Israel Railways.” Para. 4, supra. However, the petitioner began work on the land without obtaining such approval. Nor did it obtain permission once the work was completed. Without such approval, the petitioner paved the land with asphalt, erected a fence around the perimeter, installed lighting, and built gates. It finished its preparatory work on March 18, 1996.

 

            7. The petitioner and the Port Authority disagree over when the Port Authority became aware of the work that the petitioner was doing on the land. According to the petitioner, the work was done in the presence of representatives of the Port Authority. The Port Authority, on the other hand, claims that it became aware of the work only by coincidence, in early January, 1996, during a tour that its employees took of the land.

 

            In any event, immediately after the tour, on January 8, 1996, the Deputy Director-General for Commerce, Economics, and Finance at Israel Railways (hereinafter: the Railways Deputy) sent the following letter to the Director-General of the petitioner:

 

Pursuant to my tour of the site and the measurements we conducted, I wish to call your attention to the following points:

 

1.     Our measurements show that Conterm has annexed an area of 38.5 dunams [3.85 hectares – trans.].

2.     That area is being used to store containers, in violation of the contract.

3.     The areas have been fenced in, paved, and marked, and Conterm’s equipment and installations have been placed there.

4.     According to the appendix of the contract, you are permitted to use a strip of land along the length of a train only, for loading and unloading trains exclusively.

5.     Seizure and use of the land constitute a violation of the contract.

6.     Be advised that, according to the appendix, we may give anyone approval to use the land.

7.     You must immediately vacate the areas noted above.

8.     Be advised that you will be charged taxes and rent on the areas seized, for the period of time from the seizure until you vacate, as determined by an assessor.

I would appreciate your taking immediate action to vacate the area and to avoid violating the contract between us.

 

            The petitioner gave no response whatsoever to this letter. On March 10, 1996, the Railways Deputy sent another letter to the petitioner’s Director-General. This letter warned of the petitioner’s violations of the contract in a few ways, including violation related to “use of the areas.” It noted that Israel Railways considers the violations to be severe and added that if they are not corrected, Israel Railways will feel free to take action to preserve its rights. The petitioner’s Director-General responded to this letter on March 19, 1996. Regarding the use of the land, he wrote the following:

 

During our last three meetings, we discussed the above-stated issue, and to the best of my recollection, we agreed to find a way to resolve the issue.

 

At this stage, as you agreed, I am waiting to set a date for another meeting with you.

 

By the way, at this stage, the area is being used exclusively for loading and unloading containers.

 

The dispute, however, remained unresolved. On April 18, 1996, counsel for the Port Authority wrote to the petitioner, alerting it to the encroachment onto the Port Authority’s land and the illegal use of the land, including fencing it in and using it for storage. Counsel demanded that the petitioner vacate the land immediately. The Railways Deputy also wrote the petitioner, again, on April 21, 1996, demanding that it vacate the land immediately. The letters went unanswered.

 

            On May 19, 1996, the petitioner wrote to the Deputy Director-General for Operations at Israel Railways in a letter that made no mention whatsoever of the letters sent by the Port Authority demanding evacuation of the land. The petitioner wrote, in part, that,

 

We intend to begin storing empty containers, before they are transported to the ports, and we ask that you price our requests, addressing the factor of the substantial quantities to be transported.

 

On May 23, 1996, The Railways Deputy Director-General for Operations responded by saying that Israel Railways did not intend to transport containers from the Ashdod Port to the petitioner’s warehouse. He also wrote that:

 

I remind you that the contract is about transporting containers between Ashdod and Haifa, not storing empty containers or vehicles in the terminal station.

 

            The Port Authority and the petitioner continued their correspondence and discussions. The former repeatedly demanded that the latter vacate the land. On June 20, 1996, the Director of the Commerce and Transportation Department of Israel Railways wrote the following to the petitioner:

 

1. Pursuant to the discussion that took place in the office of Israel Railways’ Deputy Director-General for Economics, Finance, and Commerce, it became clear that the Conterm Company seized about 40 dunams [four hectares – trans.] of territory belonging to Israel Railways, in the area of the Conterm Ashdod extension. Conterm fenced it in without permission and even placed hundreds of vehicles belonging to the Universal Motors Company and the Mazda Company in the area.

 

2. In that same discussion mentioned above, we demanded that you vacate the area. Thus far, you have failed to do so and continue to seize the area.

 

3. I wish to advise you that in the coming days, Israel Railways intends to sell the area through a public auction. You are therefore asked to vacate the area immediately, removing every object, person, and thing.

 

The Port Authority sent additional letters containing similar contents on July 21, 1996, October 14, 1996, and November 28, 1996.

 

            Throughout the correspondence between the Port Authority and the petitioner, when the Port Authority claimed that the petitioner was trespassing on its property in violation of the contract, the petitioner did not claim that it had a right to the land as renter or lessee, or that it had permission to fence in the land and use it for storage. Only on June 30, 1996, did the petitioner address its right regarding the land. It wrote:

 

 …

3. There is no doubt that Conterm has rights to the above-mentioned area for purposes of loading and unloading trains that are stationed in the extension.

 

4. As you must know, we invested a substantial amount of money in the extension and in preparing the above-mentioned area for operating the extension.

 

5. In addition, there is no doubt that Conterm has certain rights in the area by virtue of the [written – trans.] agreement and the agreements between the parties.

 

…

 

8. On the other hand, given the current circumstances, we suggest that the parties negotiate in order to find a mutually-agreed upon solution for how the above-mentioned area will be operated.

 

            The Railways Deputy responded to that letter on July 21, 1996:

 

…

2. Conterm has no rights to the above-mentioned area, even if it made investments. Such investments were done without our approval, and there were no agreements over use of the area.

 

3. Areas cannot be allocated except through a bidding process, except in rare circumstances, which do not exist in this case.

 

8. When the parties did not resolve the dispute through negotiation, as the petitioner suggested, the Port Authority brought an action of ejectment against the petitioner in Ashdod Magistrate’s Court. That action is still pending in the Magistrate’s Court.

 

            The Magistrate’s Court will decide the dispute between the Port Authority and the petitioner, and its resolution, whatever it may be, is not the concern of this court. If that is the case, then how is their dispute relevant to the issue before us? That dispute is also the root of the argument between the petitioner and The Customs Authority at the heart of this petition. How?

 

9. The petitioner took the first route – preparing the land for storage of freight – at the same time that it took the second route: On June 8, 1995, a year after the contract was signed and shortly after the second scheme was signed, the petitioner asked the Customs Authority branch in Ashdod for a license to enlarge the area of the warehouse to include the area of the land, as well, meaning the area between the extension and the warehouse. The petitioner and Customs engaged in a process of verification to make sure that the petitioner met the criteria necessary to receive a license to operate a licensing warehouse.

 

            According to Regulation 14 of the Regulations, an application for a license must be submitted to the Customs branch “in the form provided in the Sixth Addendum.” The Sixth Addendum details what must be included in an application, including the following:

 

Below are the details of the warehouse:

 

We declare that we own the warehouse registered in the Land Registry as Block Number … Parcel … we are in possession of it under the terms of a rental contract or lease with … for a period of … years, beginning on …. and ending on … attached is a schematic description of the warehouse and the marked areas of the requested warehouse …

 

According to the addendum, these details must be submitted whether the application is for a new license or “if changes are made in the area or in the size of the warehouse.” The implication is that the Regulations require applicants to declare that they own, rent, or lease the warehouse, as a condition of receiving a license for a new licensing warehouse or of expanding an existing one.

 

            This condition seems appropriate, or at least reasonable. In any event, the petitioner does not challenge the legality of the condition or of any other provision of the Regulations.

 

            10. Pursuant to this regulation, and after the petitioner applied for a license for the land, on December 5, 1995, the Ashdod Customs branch wrote to the petitioner asking for various details and documents, including “a rental or lease contract for the additional area.”

 

            In response, on December 11, 1995, the petitioner sent the Customs branch the June 6, 1994 contract and attached a map prepared by its surveyor on December 7, 1995 (Appendix 7 to the Petition).

 

            The Customs Authority presumed that the petitioner met all the conditions set forth in the Regulations for receiving a license. Among other things, the Customs Authority presumed that the petitioner held rights to the land, as required by the Regulations. It was unaware of the fierce dispute between the Port Authority and the petitioner over the rights to the land, a dispute expressed in a number of ways, including in letters that the Port Authority sent the petitioner on January 8, 1996. Therefore, once the Customs Authority concluded that the land had been properly prepared for use as a licensing warehouse, it decided to grant the petitioner the license it had requested, on July 1, 1996.

 

            11. So long as the petitioner communicated in these two parallel tracks, with the Port Authority on one hand, and the Customs Authority on the other, each agency separate from the other, it seemed as though the petitioner had achieved what it set out to obtain. When the two agencies communicated with each other, however, their relationships with the petitioner hit a snag.

 

            In September 1996, the Customs Authority learned of the dispute between the Port Authority and the petitioner over rights to the land. On September 25, 1996, the Customs Authority wrote to the Port Authority asking for the precise status of the petitioner with respect to the land and “whether, under the contract signed with you, the Conterm Company has a right to store containers in the area.” The Port Authority responded by saying that the petitioner has a right to load and unload the trains stationed at the extension but not to store containers on the land. After receiving this response, the Customs Authority asked the petitioner for an explanation. On November 18, 1996, the petitioner responded by telling the Customs Authority that it had an “understanding” with representatives of the Railway allowing the petitioner to store freight on the land and that, “the arrangement has not been put on paper because of Israel Railways’ limitations.” It attached the second scheme, on which the area of the land was labeled “storage area.” The petitioner added that “this document is irrefutable, decisive evidence of the Authority’s intentions, beyond what is said in the agreement.” The Customs Authority, however, was unconvinced. It decided not to renew the petitioner’s license for the land. On December 26, 1996, the Customs Authority informed the petitioner that it was canceling the authorization it had granted the petitioner to use the land as a licensing warehouse, and that the license granted the petitioner for 1997 would be renewed exclusive of the area of the land. In the same notice, the Customs Authority also demanded that the petitioner remove the freight from the land and put it into a licensing warehouse within 30 days.

 

            12. The petitioner claims that the Customs Authority did not have the right to revoke the license it had granted to use the land as a licensing warehouse. It therefore filed this petition against the Customs Authority, later joining the Port Authority as respondent. The petitioner is asking for an order obligating the Customs Authority to include the area of the land in the license for 1997.

 

            At an early stage of the proceedings, we issued an order-nisi and decided that the license to use the area of the land as a licensing warehouse would remain valid in the interim.

 

            On September 10, 1997, we decided to deny the petition without giving an explanation at the time, and we imposed court costs on the petitioner in the sum of 25,000 NIS to be paid to Respondents 1 and 2 and 25,000 NIS to Respondent 3.

 

            We now explain our decision.

 

The Reasons for Revoking the License

 

13. The Customs Authority gives two reasons for its refusal to include the area of the land in the license granted the petitioner for 1997: the first – substantive; the second – procedural.

 

The first reason: Under the Regulations, the petitioner is not eligible to receive a license for the area of the land. The Regulations stipulate that without rights to the land (through ownership, rental, or lease), there is no right to a license. If it becomes clear that a license was granted to someone who has no right in the land, because of misrepresentation or mistake, that license can be revoked. Therefore, the Customs Authority’s realization that the petitioner had no right in the land is reason enough not to renew the license for the area of the land.

 

This reason, of course, touches on the private law dispute between the petitioner and the Port Authority over rights to the land.

 

The Custom Authority’s second reason is the petitioner’s procedural obligation to disclose all material information regarding its application for a license, including information about rights to the land. By failing to disclose material information on this issue to the Customs Authority, the petitioner violated this obligation. This violation alone is reason enough not to renew the license for the area of the land.

 

This second reason is entirely the province of public law: the claim is that a citizen applying for a license has an obligation to disclose information material to the license to the administrative agency.

 

The petitioner, on the other hand, argues that neither the substantive nor the procedural reason justify the Custom Authority’s decision. First, the petitioner claims that its dispute with the Port Authority over rights to the land is not the concern of the Customs Authority. In any event, the petitioner claims, the dispute does not constitute a reason to revoke a license already granted. Second, the petitioner claims, it fulfilled any disclosure obligation to the Customs Authority that may have existed by submitting the June 6, 1994 contract it signed with the Port Authority regarding the rights to the land.

 

We will examine each of these reasons in order.

 

Rights to the Land

 

14.  The petitioner claims that, “With all due respect, the relations between the petitioner and the PTA [Port and Train Authority – I.Z.] are not the concern of the Customs Authority.” It also argues that, “It is inconceivable that, at a point at which a dispute has yet to be decided, and it could go either way, the Director of Customs should take a stance and adopt the PTA’s version.”

 

Indeed, it is an old precedent that an agency authorized to grant a license must make that decision based on considerations from the field of public law, not private law. HC 233/53 Alspector v. Mayor of Beit Shean (hereinafter – the Alspector case[1]), held that a local council may not condition receipt of a license to operate a business in an apartment on the consent of the apartment owner. As Justice Berinson held (at 665):

 

By opening a store in his apartment without the consent of the apartment owner, the applicant may indeed be violating the terms of his lease. If that is the case, the apartment owner may fight his fight with the applicant. That is not the concern of the municipality, however, and it cannot serve as the basis for refusing to grant the license.

 

See also HC 9/49 Bloi v. Interior Minister [2]; HC 56/53 Kakanda v. City of Ramla [3].

 

            This precedent would seem to construct a high wall between private and public law.  See H. Klinghofer, Mishpat Minhali [76] at 128-30. That is not the case. Today, it is well-known that there is no clear and rigid separation between these two fields. They are separated by a widely-spaced net, easily passed through or jumped over. The two fields are becoming more and more intermingled, and there is nothing wrong with that. In principle, therefore, considerations from the field of private law may influence an administrative agency’s decision. In any event, it depends on the context: the nature of the power, the nature of the agency, and the circumstances in question. For example, is it illegitimate for a municipality to refuse to grant a license to operate a business, or for a planning and building committee to refuse to grant a license to erect a building, when it is clear that the license applicant has no rights to the land of which he or she has taken possession?

 

            The Alspecter case, supra, provided for this possibility. Justice Berinson qualified the rule he stated:

 

If the case involved a construction permit to make changes to the building, which could not be issued without the request or consent of the building owner, then the reason would be valid.

 

The same is true in the case before us. The Regulations require that an applicant for a license declare that he or she has a right in the land. See para.9, supra. It is therefore clear that the question of rights in the land is relevant. The Customs Authority may and even must take it into consideration. It may and even must clarify the answer. Under the Regulations, it should require a license applicant to declare what kind of right he or she has in the land. If a license applicant declares that he or she has no right in the land, the Customs Authority may and even must deny the application for a license. The same is true of a situation in which the applicant declared that it has a right in the land, but an investigation by the Customs Authority reveals the declaration to be false or misleading. In either case, under the Regulations, the Customs Authority need not, and may not even be permitted, to give a license to a trespasser.

 

            If the petitioner does not have a right in the land, the Customs Authority was under no obligation to grant the license. Indeed, the Customs Authority claims that if it had known that the petitioner had no such right, it would not have granted the license.

 

            15. The petitioner, however, argues that even if the Customs Authority could have refused to grant the license from the outset, it may not revoke a license already granted. There is a difference between prospectivity and retrospectivity: the holder of a license purchased a right, and revoking a vested right is different, and more difficult, than refusing to grant the right in the first place. Therefore, not every consideration sufficient to refuse to grant a new license justifies refusing to renew an existing license.

 

            The case law distinguishes between refusing to grant a new license and refusing to renew an existing license. The considerations relevant for renewing a license are not identical to the considerations for granting a license; the weight of the considerations may vary. More so than is the case for granting a new license, in renewing an existing license, the balance tips toward the citizen, in order to protect the right that the license gave him or her.

 

            However, if the agency’s grant of the license stemmed from a substantive error, it generally may revoke the license or refuse to renew it, particularly if the applicant is responsible for the mistake. See e.g. HC 56/76 Berman v. Police Minister [4]. As Justice Barak said in HC 799/80 Shallam v. Gun Law, 1949 Licensing Clerk, Oil Administration of Petach Tikvah, Interior Ministry [5] at 331:

 

 

As is known, the administrative law rule is that an administrative agency may generally review its decision and correct it “for the following reasons: deceit, fraud, mistake, surprise, inadvertence, new evidence that has come to light, changed conditions” …

 

There seems to be no doubt that deceit by the license applicant is generally grounds in itself to justify revoking a license … what happens, however, if the problem is pure mistake, not caused by the applicant, but rather solely the fault of the agency? In a case like that, the license may still be revoked, but the power to do so must be exercised only in special circumstances.

 

Justice Barak continued in HC 475/81 Deak & Co. Inc. v. Governor of the Bank of Israel [6] at 807:

 

 Once a license is granted, its holder may assume that the application was investigated with the required care and that he or she may now invest money and effort into running the business for which a license was granted, without having to worry that the administrative agency will change its mind. At the same time, where the agency has the formal authority to revoke a license, under extraordinary circumstances, it may be justified in exercising it. Such circumstances may involve facts in existence prior to the granting of the license but which became apparent to the administrative agency only afterward … they may also involve new facts which came about after the license was already granted.

 

Deciding whether a set of facts justifies revoking a license or refusing to renew it depends on the balance of interests in each set of circumstances, primarily the balance between the license-holder’s interests and those of the general public, which the administrative agency represents.

 

            In balancing these interests, the ramifications of the mistake in the administrative process are of particular importance. Did the mistake cause the administrative agency to make an ultra vires decision or a decision that violates the law in some other way? Or is the decision, though undesirable from the point of view of the agency, nevertheless legal? In CA 433/80 I.B.M. Israel Assets v. Property Tax Director and Compensation Fund of Tel-Aviv [7] at 351, Justice Bach classified the different kinds of administrative mistakes into three categories:

 

1. A decision that violates the law or is ultra vires in some other way;

2. A decision resulting from a technical bureaucratic mistake, made inadvertently;

3. A decision involving an oversight, meaning that a clerk improperly implemented the agency policy or exercised discretion unreasonably.

 

What is the difference between each kind?

 

Public agencies generally can go back on the first two types of decisions which are mistaken or in other ways contrary to the law and make new decisions in their place;

 

The third kind of decision, involving only some kind of ‘oversight’ in an exercise of discretion, is different. The agency will generally be bound by its decision, especially when the citizen has already begun to take action in accordance with the original decision.

Id. at 351-52 (Bach, J.).

 

See also CA 736/87 Yaakobovitch v. Land Appreciation Tax Director of Nazareth [8] at 372;  CA 1928/93 Securities Authority v. Gabor Savarina Textile Factories [9] at 191-92.

 

            16. Under the case law, then, whether the Customs Authority’s refusal to renew the petitioner’s license was justified depends on the circumstances. If the Customs Authority mistakenly believed that the petitioner had rights in the land, as required by the Regulations, and only after granting the license did it realize the mistake, particularly if the petitioner is to blame for the mistake, then the petitioner holds a license to which it is not entitled under the Regulations, and the balance will tip toward refusing to renew it. Are those the circumstances in this case?

 

            Before discussing whether the circumstances justify the Customs Authority’s refusal to renew the petitioner’s license, I will examine the second reason cited for the refusal to renew. The Customs Authority also claims that the petitioner violated its duty to disclose information material to the license, meaning information material to its rights in the land. Does the petitioner owe such a duty to the Customs Authority?

 

The Citizen’s Duty to the Agency

 

            17. Contract law imposes a duty on contractual parties, regardless of their identities, to disclose information material to the circumstances at hand.  That duty derives from the duty to negotiate a contract formation in good faith and using acceptable forms of behavior, under section 12 of the Contract Law (General Part), 1973. It also derives from the obligation to act in good faith and use acceptable forms of behavior in fulfilling a duty and exercising a right stemming from the contract, under section 39 of the Law. Section 15 governs the consequences of failing to disclose information which must be disclosed under the circumstances. According to Section 15, a party who enters a contract because of a misrepresentation made by the other party has the right to void the contract. What is considered misrepresentation? Under the section, it includes, “nondisclosure of facts which the other party should have disclosed by law, by custom, or under the circumstances.” The rule incorporates the duty of good faith under sections 12 and 39 of the Law, including the duty to disclose facts. See e.g. CA 338/85 Speigelman v. Chapnik at 426 [10]. See also G. Shalev, Dinei Chozim [77] at 55, 223. Contract law imposes a duty to disclose material facts, and non-disclosure of such facts is grounds for voiding the contract.

 

            This duty applies to contracts between the citizen and the administrative agency, obligating the citizen as well as the agency. See, e.g., HC 707/80 Ilanot Housing, Building and Development Co. v. Arad Local Council [11] at 312. See also Shalev, supra [77] at 652.

 

            In public law, however, there is no similar statute imposing a duty to disclose material facts on parties in a power relationship involving a lawful exercise of authority, such as in a citizen’s application for a license. Must we conclude that, in the context of this relationship, both the administrative agency as well as the citizen may conceal material facts from each other?

 

            No properly-functioning society could accept that possibility. If the law forbids people from misleading each other, including concealing material facts, a fortiari it forbids people from misleading an administrative agency, which is the embodiment of the public. A person who misleads an administrative agency misleads the public, even if only indirectly. The result may be that the agency, in the name of the public and sometimes at its expense, grants a benefit to a person who misled the agency and who is not entitled to the benefit. Misleading an administrative agency harms the public as a whole. If contract law forbids a person from misleading another, including by concealing material facts, could public law permit a person to mislead the public? Justice Alon’s comments on good faith are instructive here:

 

Just as the legal system forbids a contractual party from “using the contract to play the scoundrel,” so it also forbids and prohibits the party from using the law or public activity, in any area of law, to play the “scoundrel.”

CA 391/80 Mira Lesserson v. Workers Housing Ltd. [12] at 262.

 

            The legal system cannot allow that possibility to take place. It delineates two ways of preventing misrepresentation, including the concealment of material facts, in public law as well. The first way is to copy the duty to act in good faith, as established by the Contract Law (General Part), from private law into public law. The second way is to establish a special public law rule.

 

            First, we will evaluate whether the duty to act in good faith applies in public law, and whether it applies to a citizen in his or her dealings with an administrative agency.

 

The Duty of Good Faith

 

            18. Although they are designed primarily to apply to contracts, the provisions of the Contract Law (General Part) have other applications as well:

 

Where appropriate and with the necessary changes, the provisions of this law apply to legal actions not involving contracts and to obligations that do not stem from a contract.

Id. at sec. 61(b).

 

Under the simple language of the statute, the provisions of sections 12 and 39, which impose a duty of good faith, can also apply to the actions of an administrative agency, so long as they are “legal actions.” Undoubtedly, an administrative agency, acting by law to grant rights to a citizen or to impose obligations on him or her, engages in legal actions. Such actions may, for example, include granting a license or pension, confiscating land, and assessing taxes. It would therefore seem right to say that the Contract Law (General Part) imposes a duty of good faith on the agency to the citizen and on the citizen to the agency, when they engage in these actions.

 

            Indeed, the case law supports this position. President Sussman addressed the principle established by section 39 of the Contract Law (General Part), imposing a duty of good faith:

 

As an expression of a universal rule of behavior between persons and between a person and an agency, this principle imposes obligations beyond this context, and it also applies in public law.

CA 402/76 Azaranikov v. State of Israel [13] at 274.

 

See also HC 640/77 Baranovsky v. Department of Customs and Excise Director [14] at 78; HC 566/81 Amrani v. Chief Rabbinical Court [15] at 10; HC 221/86 Kanafi v. National Labor Court [16] at 476-77.

 

            True, thus far, the Court’s application of this principle in public law has been limited to imposing a duty on the administrative agency, vis à vis the citizen. The principle, however, as established by the Contract Law (General Part), applies to both parties. It would seem, therefore, that we can use the principle to impose a duty of good faith on the citizen vis à vis the administrative agency.

 

            The duty of good faith requires one party to disclose material information to another. See para. 17, supra. It would therefore seem that a citizen who applies to an administrative agency for a license or other benefit has an obligation to disclose the information material to the application. If the citizen violates this duty, and the agency, as a result, grants the license or other benefit, the agency may void its decision.

 

            19. The public law duty of good faith that we might impose on both parties to the legal actions of an administrative agency is not necessarily the same duty as that imposed on parties to a contract. The duty of good faith varies with the circumstances. Good faith in the relationship between parties to a sales contract is not necessarily the same as the good faith between trustee and beneficiary or principle and agent. See FH 22/82 Beit Yules Ltd .v. Raviv Moshe & Partners, Ltd. [17] at 484. If good faith changes according to the type of contract, it certainly changes according to the field of law. Section 61(b) of the Contract Law (General Part) applies the statutory provisions, including those addressing good faith, to legal actions not involving contracts, only “where appropriate and with the necessary changes.” In translating the duty of good faith into public law, we can therefore adapt it to the special nature of that field. See HC 376/81 Lugassi v. Communications Minister [18] (hereinafter – the Lugassi case) at 465.

 

            It is possible, then, to apply the duty of good faith, with adaptations, into the field of public law and to require the citizen to disclose material information to the agency. Is that what the rule is?

 

            20. The question is not whether it is possible, but rather whether it is desirable, to copy the duty of good faith, with the necessary changes, from private law into public law. Section 61(b) of the Contract Law (General Part) says that the statutory provisions apply to legal actions not involving contracts only “where appropriate.” Is it appropriate to impose a duty of good faith in public law? As noted, some justices have said yes. Para. 18, supra. However, some justices believe that the duty of good faith, as established in private law, is inappropriate for public law.

 

            Justice Shamgar discussed this issue in the Lugassi case [18]. He said that while an administrative agency must act in good faith, that duty does not arise from the Contract Law (General Part). In his words (at 455-56):

 

The intention [of Section 61(b) of this law – I.Z.] was not that a norm from contract law would be adopted as is into administrative law, which, for a long time, has already had a robust, existing rule about good faith, derived from another source. In any event, the condition that the provisions of the statute will be applied ‘where appropriate and with the necessary changes’ means there should not be a simplistic standardization of private law and public law rules. It is preferable not to take things out of the context of their subject matter and primary legal source. In any case, we do not need to look at what is said in section 61(b) in order to evaluate the good faith of an administrative agency, the way it acts, and its fulfillment of its duties …

 

Justice Ben-Porat concurred in that opinion (Id. at 465).

 

            I, too, agree with Justice Shamgar. From the outset, administrative agencies had a duty of proper behavior vis à vis the citizen, irrespective of the duty of good faith established in the Contract Law (General Part). There is no need, and it would not be a good idea, to uproot the agency’s duty of proper behavior, which sprouted long ago in public law soil, and to replace it with a good faith duty that sprouted later, in a different kind of soil, namely that of private law. This is especially true because there is a difference between the two duties. The soil of private law bore one species of the duty of good faith, while the soil of public law bore a different species. The fact that those species bear the same name might blur the distinction. Differentiating the names can help make the difference more pronounced and preserve the distinction in substance, and indeed, today we do use different names: in private law, there is a duty of good faith; in public law, there is a duty of fairness.

 

            To be sure, there is a duty of good faith in public law, as well, but it generally has a different meaning: we say that an administrative agency is not acting in good faith when it knows it is not acting according to the law, such as when it makes a decision based on an irrelevant consideration, knowing the consideration is illegitimate. See e.g. the Lugassi case [18] at 459-60. We should preserve the distinction between the meanings of each phrase: in public law, good faith refers to the mental state of the administrative agency (which can also be called arbitrariness or malice), while fairness refers to the behavior (including omissions) of the administrative agency.

 

            21. What, then, is the difference between the duty of good faith in private law and the duty of fairness in public law? The difference in the nature of the duties reflects a difference in the nature of the relationships. First of all, the relationship between an administrative agency and a citizen is generally a relationship of authority, under the law, while the relationship between citizens is generally one of equality, under an agreement. Moreover, the relationship between an agency and a citizen, as is common in relationships of authority, is one of trusteeship. Professor A. Barak explained that well in his book, Judicial Discretion [78]:

 

In determining the content of an administrative duty of fairness, the judge must compare it to the contractual duty of good faith. The two are not one and the same. The contractual duty of good faith sets a minimum level of fairness based on contractual “rivalry.” Each contractual party seeks to achieve his or her self-interest, and the rules of good faith are designed to guarantee “a fair game,” set by the ethical perspective of enlightened Israeli society. The administrative duty of fairness is different. It is not based on rivalry between the self-interest of the public agency and the interest of the citizen. The public agency takes care of the general interest, including the interest of the citizen. The public agency has no “self” interest of its own. The duty of fairness in administrative law therefore imposes a higher-level duty than the “contractual” duty of good faith. This is not minimal fairness, but rather the fairness imposed on a body charged with achieving the collective interest.

Id. at 487-88. See also Id. at 473-75.

 

Justice Dorner addressed this point as well:

 

The duty of administrative fairness – rooted in the status of the agency as a trustee of the public – is more exacting than the duty of good faith required of an individual.

HC 4422/92 Efran v. Israel Land Administration [19] at 860.

 

            I think these principles lead to an additional conclusion. For administrative agencies, we should distinguish between two areas: actions in the field of private law and actions in the field of public law. When an administrative agency acts in the field of private law, such as by forming a contract, it bears a double duty: the private law duty of good faith and the public law duty of fairness. In practice, however, because the duty of fairness is more exacting, it will generally encompass the duty of good faith. As a practical matter, within the field of private law, the duty of fairness suffices. On the other hand, when the agency acts in the field of public law, such as by considering an application for a license, the duty of good faith does not apply at all. Because the agency bears a similar duty – the duty of fairness – we might say, in the language of section 61(b) of the Contract Law (General Part), that the duty of good faith is not appropriate. See also Shalev, supra [77] at 45. Practically, we can say that the administrative agency is subject to the duty of fairness in all its actions, whether in public or private law, and there is no need to subject it to the duty of good faith.

 

            What, then, is the duty of fairness?

 

Duty of Fairness

 

            22. A cornerstone of public administrative law is that the administrative agency, as the trustee of the public, must behave fairly. See e.g. HC 840/79, Center for Contractors and Builders in Israel v. Government of Israel [20] at 745-46. The administrative agency owes a duty of fairness, first and foremost, to the public. This is the duty of a trustee to a beneficiary. In practice, because the public is composed of people, the duty does not just apply to the public as an abstract body but also to every person.

 

            It is often said that the administrative agency owes a duty of fairness to the citizen. One can say that, but we should bear in mind that, in this context, citizen means person, including a resident who is not a citizen and a collective body such as a corporation.

 

            The duty of fairness that an administrative authority owes the citizen is the conceptual source for various rules governing the relationship between the agency and the citizen. An example of this is the rule requiring the agency to grant the right to be heard to those affected by its decisions. As President Agranat said:

 

The reason for the above-stated rule [the citizen’s right to be heard before the administrative agency – I.Z.] is to guarantee that the administrative agency will address the citizen’s concern with fairness …

HC 549/75 Noach Film Company, Ltd. v. Film Review Council [21] at 767.

 

            The same is true of the rule about fulfilling administrative promises. In Justice Berinson’s words:

 

[If – trans.] a promise is given by an official, within the bounds of his or her authority, with the intention of giving it legal validity, where the other party accepted it as such, then public fairness demands that the promise in fact be fulfilled, even if the citizen did not change his or her position for the worse in reliance on the promise.

HC 135/75 Cy-Tex Corporation Ltd. v. Trade and Industry Minister [22] at 676.

 

23. Such is the duty of fairness imposed on the administrative agency to the citizen. Does just the administrative agency bear the duty of fairness, while the citizen is exempt from the obligation to treat the agency fairly?

 

The answer is that the relationship between the agency and the citizen is, in fact, two-sided. In my opinion, the citizen should therefore owe a duty of fairness to the agency, as the agency owes a duty of fairness to the citizen. This requirement is deeply rooted: it springs from the social contract at the foundation of the state. Under this contract, as it is understood in a democratic state, the agency and the citizen stand not on opposite sides of the barricade but rather side-by-side, as partners in the state. In a democracy, as Justice Silberg said, “the government is part of the very body of the citizen …” HC 3/58, Berman v. Interior Minister [23] at 1511. The government [… – ed.] has a duty to serve the public – to guarantee safety and order; to provide essential services; to protect the dignity and liberty of every citizen; to do social justice. The public administration, however, which has nothing of its own, can only give the public what it receives from the public. It is desirable, indeed, necessary, that the relationship between the administration and the public be a reciprocal relationship of give-and-take. The same is true of the relationship between the public administration and the citizen. As a moral and a practical matter, the citizen cannot assume that he or she may demand and receive from the agency without being obligated to provide anything. A citizen’s right vis à vis the agency is coupled with an obligation vis à vis the agency. This is the essence of the social contract among citizens and between citizens and the public administration. It is also the root of the existence of the state.

 

24. The citizen’s obligations to the state, in essence, to the public, are generally delineated in the statute books: the duty to pay taxes, to go to school until a certain age, to serve in the army, and others. Duties may also, however, arise from judicial case law. That is how the administrative agency’s duty of fairness to the citizen arose. That is also how the citizen’s duty of fairness to the administrative agency arises.

 

If the citizen did not bear a duty of fairness to the administrative agency, we might say that the citizen bears a duty of good faith in his or her relationship with the agency, under section 61(b) of the Contract Law (General Part). See para. 18, supra. The duty of fairness, in this context, however, is preferable to the duty of good faith. First, the duties involved in the relationship between the administrative agency and the citizen should not come from different sources, meaning that the agency bears the duty of fairness, whose source is public law, and the citizen bears the duty of good faith, whose source is private law. The harmony between the citizen and the agency will be enriched if reciprocal duties arise from a single source, namely public law.

 

Second, the relationship between the citizen and the administrative agency, which represents the public, is substantially different from the relationship between citizens. When the agency acts within the field of public law, therefore, we should not copy the duty of good faith from private law and apply it, even with changes, to the relationship between the citizen and the agency. It is better to allow the case law to develop the duty that arises from this relationship in its own way, appropriate to the environment in which the duty lives, namely the environment of public law. I call this duty, arising from public law, the duty of fairness.

 

25. What does the duty of fairness include? There is no comprehensive answer, even within the context of the agency’s duty to the citizen, except to say that this court has long recognized such a duty. Indeed, we would do well not to give a comprehensive answer. The concept of the duty of fairness, by nature, is opaque. It can and should be filled with content from time to time, according to changing needs, rather than delineated into a rigid definition. It should be open-ended, so that new rules can be added and subtracted as necessary.

 

The same is certainly true of the citizen’s duty of fairness to the agency. This duty is a new concept. It must develop gradually, as the common law does, from case to case, until the time is ripe to formulate rules.

 

Having said that, and without pretending to make any final ruling, I would like to suggest guidelines to characterize a citizen’s duty of fairness to the agency:

 

(a) In a well-ordered society, the duty of fairness must express the appropriate relationship between the public administration, which acts as the trustee of the public, and citizens, who are the public. This relationship is a reciprocal relationship between partners in a goal-oriented activity, based on respect, trust, and reliability. The duty of fairness should develop from this foundation, gradually becoming a system of flexible rules by which both citizen and agency must and can abide. Compare this with the nature of the duty of good faith, FH 22/82 [17] at 484-85.

 

(b) As noted, an agency’s duty of fairness to the citizen is different from the citizen’s duty of fairness to another citizen, because of the different nature of the two kinds of relationships. See para. 21, supra. Similarly, the citizen’s duty of fairness to the agency may differ from his or her duty of good faith to a fellow citizen.

 

(c) It would seem that a citizen’s duty of fairness to the agency differs from the agency’s duty of fairness to the citizen, because of the difference between the status of a citizen and the status of an agency. The agency is a trustee of the public, including of the citizen, and the duties stemming from that status differ from the duties owed by a citizen.

 

(d) The citizen’s duty of fairness to the agency, like the agency’s duty of fairness to the citizen, varies with the circumstances of each case. One example is the agency’s duty to hear the citizen, which derives from the duty of fairness. Ordinarily, the agency fulfills that duty by providing an opportunity for the citizen to submit something in writing; in certain circumstances, the duty of fairness may obligate the agency to conduct an oral hearing or even to allow the citizen to examine witnesses. As Justice Sussman said in HC 335/68 Israeli Consumer Council v. Chair of the Gas Services Investigatory Committee [24] at 334:

 

There is no standard rule we can set for the way the agency must proceed on every issue, except to say that it must treat the citizen with fairness. The appropriate level of fairness depends on the circumstances.

 

We can say the same thing about the citizen’s duty of fairness to the agency: the decision about whether, in a particular case, the citizen must behave in a certain way toward the agency depends on the circumstances.

 

            26. While I will not attempt to define the citizen’s duty of fairness to the agency, I will suggest, again, without setting a rigid rule, examples of duties that derive from the duty of fairness.

 

            In my opinion, the duty to act with the speed appropriate to the circumstances derives from the duty of fairness. The agency owes such duty to the citizen. See sec. 11 of the Interpretation Law, 1981. See also HC 135/71 Fresman v. Traffic Supervisor [25] at 540. In my opinion, the citizen owes a similar duty to the administrative agency.

 

            Similarly, the requirement that a citizen not shirk obligations that he or she has undertaken to the agency derives from the duty of fairness. See e.g. HC 1930/94 Nathan v. Defense Minister [26], p. 655 and thereafter.

 

            Elsewhere I noted an additional example:

 

It is a question whether a person who alleges that an agency is acting outside the scope of its authority may suppress that allegation, only to raise it later, if and when it becomes convenient to do so. For example, may a person choose to wait and see how the agency decides: to keep quiet if it decides in his or her favor, not saying a word about authority, but if the agency decides against him or her, to argue that the action was ultra vires from the outset? That question remains open. In my opinion, the right rule is that a person who has allegations against an administrative agency must compile them and present all of them to the agency at the earliest opportunity to do so, rather than suppress part of them until he or she feels like raising them. That rule applies to an allegation of ultra vires actions. Such an allegation means that the agency must remove itself from the case and that perhaps another agency can and must deal with it. It is inappropriate to let the administrative agency continue to take the trouble, and possibly to trouble others, for a pointless discussion.  We might say that alongside the agency’s duty to treat the citizen with fairness, a parallel duty is imposed on the citizen to treat the agency with fairness. The duty of fairness obligates a citizen who claims that an agency acted without authority to raise that claim at the earliest opportunity.

2 I. Zamir, Hasamchut Haminhalit [79] at 696-97.

 

The Duty to Disclose

 

            27. The duty of fairness is the source of the duty to disclose information material to the matter at hand. This duty is owed, first and foremost, by the administrative agency to the citizen. It is expressed in the agency’s obligation to hear the citizen before making a decision that could harm his or her interests. As Justice Barak said in HC 656/80 Abu Romi v. Health Minister [27] at 189:

 

The right to a hearing is not properly observed unless [the agency – trans.] brings information that has been received in the citizen’s case to his or her attention and provides an opportunity to respond to it appropriately.

 

            It is also expressed in the agency’s duty, in certain circumstances, to grant a citizen access to the agency file connected to his or her case. As Justice Witkon said in HC 337/66 Estate of Kalman Fital v. Assessment Committee, Town of Holon [28] at 71-72:

 

A legitimate administration in a free society does not approve of all of this ‘secrecy,’ which erects a barrier between the government and the citizen ....

 

The petitioner’s demand [to see the agency file – I.Z.] is justified, not just because his right to access the documents stems from the provisions of the statute, but – and primarily – because the common sense and elementary fairness in the public relations between government and citizen inexorably lead to this conclusion.

 

The agency’s obligation to disclose information to the citizen has been expressed in additional contexts, in legislation and in case law, and it continues to develop.

 

            28. The citizen also owes a duty to disclose material information. As noted, in private law, a citizen owes a duty of disclosure to other citizens, as part of the duty to act in good faith. Para. 17, supra. A citizen who petitions the court for a remedy against an administrative agency also owes that duty. For example, President Shamgar discussed that duty (which is part of the duty to act with clean hands) in HC 421/86 Ashkenazi v. Transportation Minister [29] at 410:

 

A primary rule that has always guided this court is that someone who petitions the High Court of Justice must disclose all relevant facts to the Court. Someone who conceals facts that bear on the petition does not deserve a remedy from the Court.

 

            The citizen bears a similar duty to the administrative agency, not just in the field of private law, but also in public law. That duty may be imposed by legislation, as a condition of receiving a certain license or benefit. However, even if there is no statutorily-imposed duty, it exists under the common law as an expression of the duty of fairness. Fairness does not tolerate a situation in which a citizen seeks a license or benefit from an administrative agency to which he or she is not entitled or in some other way tries to influence the agency’s decision through misrepresentation, including by concealing information. Disclosure of material, reliable information by a citizen applying to the agency is not just a moral imperative, it is also a practical need. After all, an agency must make its decision based on the relevant considerations. If the citizen conceals material information, it is likely to eliminate relevant factors from the agency’s awareness, obstruct the work of balancing considerations, and distort the agency’s decision. As a result, the agency is likely to make a wrong or perhaps even illegal decision, to the detriment of the public. For example, it may grant a license to someone who is not qualified, or give a money grant from the public treasury to someone who is not eligible. Hence the rule, derived from the duty of fairness, that a citizen must disclose to the agency material and reliable information related to the issue at hand.

 

            29. The Court articulated this rule in HC 727/88 Awad v. Religious Affairs Minister (hereinafter – the Awad case) [30]. There, the Minister of Religious Affairs authorized the appointment of the petitioner as chair of the religious council in Rosh Haayin. The minister later discovered that the petitioner had been convicted of stealing in the course of his job as treasurer of the religious council. The minister rescinded his approval of the appointment, and the petitioner challenged that decision. The Court held that a candidate’s qualifications for a job, including whether he has a criminal past, are relevant considerations that the minister properly took into account in deciding about the appointment. Justice Barak added:

 

In formulating his position on these qualifications, the minister accessed a set of facts that did not comport with reality. The minister knew nothing about the petitioner’s conviction in the past. Moreover, under the circumstances, the petitioner had a duty to inform the local council about his conviction, and both the local council and the petitioner had a duty to inform the minister about the conviction. The duty of good faith and fairness require nothing less …

Id. at 492.

 

            30. What does the citizen’s duty to disclose material information to the agency require? At this stage, the answer is unclear. At this stage, the circumstances of each case will determine what the duty to disclose requires in that particular case. As time goes by, a clearer answer will surely arise from the case law. Even at this stage, however, the following thoughts emerge:

 

            (a) Regarding the scope: The duty does not necessarily apply to every relationship between the citizen and the administrative agency. It primarily applies to cases in which a citizen requests something from the administrative agency, such as a license, appointment, or other benefit, in contrast to cases in which the agency exercises power without being asked to do so by the citizen, particularly if such power harms the citizen. There may definitely, however, be exceptional cases in which the scope of the duty expands or contracts, depending on the special circumstances of each case.

 

            (b) Regarding the substance: The citizen is only obligated to give the agency information that he or she has or can access and that is relevant to the issue at hand. Such a consideration should be taken into account by the agency, and it may affect the content of the decision. In other words, the citizen need not give the agency information about an irrelevant consideration, which the agency, in any event, is barred from taking into account.

 

            (c) The relevant considerations are often numerous and diverse, some of which are primary and some of which are secondary. Generally, as a practical matter, the agency cannot and is not required to take all relevant considerations into account, but rather only the primary ones. There is therefore no need, and it would be impractical, to require the citizen to disclose all relevant considerations to the agency, with no exceptions. It suffices if the citizen discloses the primary considerations that could substantially influence the agency’s decision. The citizen, like the agency, must behave reasonably. In other words, the right test for the level of disclosure is the test of the reasonable citizen, and perhaps more accurately, the test of the reasonable and fair citizen.

 

            (d) The citizen’s duty to disclose does not exempt the administrative agency from its duty to do its own check of the facts that form the basis for its exercise of authority.

 

            31. An additional question of great practical importance is the question of the consequences of the citizen’s breach of this duty. Does a breach of the citizen’s duty to disclose necessarily lead to revoking the agency’s decision? The answer is no. The consequences of breaching the duty depend on every case and its circumstances. In some cases, the breach may justify revoking the decision, whether it’s a decision to give a license, award a pension, make an appointment, or do something else; in other cases, the breach may justify changing an aspect of the decision, declining to renew the license, or another choice that does not rise to the level of revoking the original decision; and sometimes, the circumstances will not justify making a change to the citizen’s detriment.

 

As a matter of principle, on this issue and for others, we should distinguish between breach of a duty and the implications of the breach. That is the case when an administrative agency breaches a duty; not every breach voids the decision. On this issue, I noted:

We should distinguish carefully between a rule obligating an administrative agency and the remedy that the court grants for violating the rule. The rule exists on one plane, and the remedy on another. Ex poste, the considerations that the court weighs may differ from the considerations binding the agency ex ante. Therefore, the agency should fulfill its duty under the case law to grant a hearing, without regard to the anticipated or potential result of breaching the duty.

HC 2911/94 Baki v. Interior Ministry Director-General [31] at 304.

 

            See also HC 2918/03 City of Kiryat Gat v. State of Israel [32] at 848.

            32. The same is true of a citizen’s duty of disclosure owed to the administrative agency – we should distinguish between the duty to disclose and the implications of breaching that duty. The duty of disclosure exists in its own right, and the citizen is not exempt from it, even in circumstances in which breaching the duty would not justify voiding the agency’s decision or taking other steps against the citizen. The set of considerations requiring the citizen to fulfill the duty differs from the set of considerations guiding the agency (or, at the stage of review, the court) in its response to the breach.

            Any response to a citizen’s breach of duty must take into account the need to respect and carry out administrative decisions. The administrative decision may grant a right to a citizen or create an expectation upon which he or she relies, and denying that right, frustrating that expectation, or undermining either of them by voiding or changing the decision should be done only after seriously considering the matter. Which considerations come to bear on the duty of disclosure?

            First, it matters what information the citizen failed to disclose to the agency. Was it of primary or secondary importance for the matter at hand? Was it information that the citizen had, should have had, or should have taken the trouble to obtain? Was it information of which the agency was aware or should have been aware from its own sources, or information that, by its nature, is available to the citizen but not the agency? The important question here is whether the citizen’s disclosure of the information was reasonably likely to have changed the agency’s decision. If the information is a relevant consideration of substantive importance, and the agency did not take it into account before making the decision, then the decision is flawed, irrespective of the citizen’s breach of the duty, and that flaw is sometimes enough to justify voiding the decision.

            An additional consideration of substantial importance concerns the citizen’s intention.  Do the circumstances indicate that the citizen intended to mislead the agency in order to influence its decision, or did the citizen willfully remain blind or act negligently? If so, breach of the duty is very serious, and in some cases may even rise to the level of criminal behavior. In any event, in a case like that, the citizen’s reliance interest becomes so weak as perhaps to disappear entirely. A citizen who knowingly misleads the agency, knowing that the agency’s decision will be based on the misinformation, cannot use his or her reliance interest to prevent the agency from changing or voiding its decision.

            Similarly, it is always relevant to consider the harm to the public interest that is likely to result from the citizen’s breach of the duty, weighed against the damage that the citizen will likely suffer if the agency changes or cancels its decision.

            There may be additional considerations. Consider, for example, HC 135/71, supra [25]. In that case, the Traffic Supervisor decided to revoke a taxi license after finding out that in applying for the license, the license-holder gave misleading information about the period of time in which he had worked as a taxi-driver. Acting President Sussman said:

The petitioner misled the agency about the time in which he had worked as a taxi-driver. That mistake is what led the agency, against the rules, to award him more points than he was entitled to receive. Had the agency known the truth, it would not have awarded him the license. Just as a contracting party who is misled may void the contract, so too, in administrative law, can an agency revoke a license it granted, if it did so because of fraud or misrepresentation …

Id. At 539.

            Nevertheless, the Court held that, under the circumstances of that case, the Traffic Supervisor erred in revoking the license. Why? Primarily “because the respondents failed to act with the required promptness. They delayed the matter too long, for no reasonable purpose.” Id. at 541.

            Whether the administrative agency may revoke the decision, change its terms, refuse to renew a license or take other action against a citizen who violated the duty to disclose depends on the balance of the relevant considerations. It is incumbent upon the administrative agency to exercise caution before taking action against a citizen who violated the duty of disclosure, to make sure it does not shirk the proper execution of its job, does not treat the citizen’s minor violations strictly, as if they were major, and does not cause more harm to the citizen than is warranted by the circumstances.

            What, then do the circumstances warrant in the case before us?

 

The Case at Bar

 

33. The case at bar requires us to examine two claims which, according to the Customs Authority, justify its refusal to renew the petitioner’s license. Supra para. 13. The first claim concerns the petitioner’s rights in the land for which the license was granted: the Customs Authority was justified in refusing to renew the license once it learned that the petitioner had no rights in the land, as required by the Regulations. The second claim concerns the petitioner’s duty of disclosure owed to the Customs Authority: the petitioner breached its duty when, prior to receiving the license, it failed to disclose material information about its rights in the land to the Customs Authority. According to the Customs Authority, the very breach of that duty justifies refusing to renew the license.

 

34. First, regarding the petitioner’s rights in the land: As mentioned, under the Regulations, a license applicant must declare to the Customs Authority that it is the owner, renter, or lessee of the land for which the license is requested. Supra para. 9. That right in the land is, according to the Regulations, a condition of or at least a relevant consideration in applying for the license. Did the petitioner have such a right?

 

When asked by the Customs Authority to produce a rental agreement or lease for the land, the petitioner sent the contract. Supra para. 10. The contract, however, is neither a rental agreement nor a lease, and it does not appear to be one either on its face or upon close scrutiny. Indeed, the petitioner itself does not claim that the contract, by itself, grants a right to rent or lease the land. Paragraph 12 of the petition says that, “the contract itself contains no explicit prohibition against the petitioner storing freight in the area.” Of course, the absence of an explicit prohibition on storage is not the same as the petitioner’s receiving permission to store freight on land that doesn’t belong to it. Does the contract grant that permission? The petitioner fails to point to a single clause of the contract that says that the petitioner was granted a right to lease or rent or even permission to store freight on the land. Moreover, paragraph 13 of the petition says that, “After signing the agreement, the representatives of the P.A. [Port Authority – I.Z.] and the petitioner’s representatives reached an agreement that … among other purposes, the area would be used for storing freight.” In other words, the agreement on storage was reached only after the contract was signed. Paragraph 29 of the petition says that, “The understanding regarding the size of the area, its boundaries, and its designations was reached after the signing.” The petitioner, however, in response to the Customs Authority’s request to produce a rental or lease agreement, produced only the contract, as though it granted it a right to rent or lease the land. It added nothing about an agreement or understanding reached after the contract was signed. In other words, to the Customs Authority, the petitioner produced only the contract, as though it granted it a right of rental or lease, even though the petitioner itself acknowledged that the contract granted no such right, and that is the right that the Regulations require.

 

It is therefore necessary to clarify whether the petitioner was granted such right, as it claims, after the contract was signed. Recall that according to the appendix to the contract, signed along with the contract, the petitioner may use the land “exclusively for the purposes of loading and/or unloading trains” and that, “Any change of any kind to the plot and/or anything attached and/or connected to it requires the advance written approval of the Director-General of Israel Railways.” Supra para. 4. The petitioner, however, does not claim to have any such permission from the Director-General of Israel Railways or from anyone else authorized or pretending to be authorized to write on behalf of the director-general.

 

Moreover, on January 1, 1996, a year and a half after the contract was signed, the Railways Deputy told the petitioner in writing that it was not permitted to use the land for purposes other than loading and unloading, that “[s]eizure and use of the land constitute a violation of the contract,” and that “[y]ou must immediately vacate the areas noted above.” Supra para. 7. One would think that the petitioner, consistent with its version of the story, would rush to tell the Railways Deputy that the agreement reached after the signing of the contract gave it a right to store freight on the land. However, the petitioner failed to respond to the letter entirely. Only two months later, in response to an additional letter sent by the Railways Deputy, did the petitioner address the question of use of the land. In that response, however, it did not claim that there was no basis for the charge of contractual violation or that there was no basis for demanding that it vacate the land, because it was using the area pursuant to an agreement. The Director-General of the petitioner wrote to the Railways Deputy, saying only that, during the course of the last meetings on the subject, “to the best of my recollection, we agreed to find a way to resolve the issue.” Even afterward, in the months during which the Port Authority repeated its demands that the petitioner immediately vacate the land, the petitioner never said that it had a right of rental or lease in the land or that it had a right to fence in the land and use it to store freight. Supra para. 7.

 

During the course of this petition, the petitioner had another chance to produce proof about its right to rent or lease the land. Bear in mind that the petitioner is challenging the Customs Authority’s refusal to renew its license for the land, after the Customs Authority concluded that the petitioner did not and does not have a right in the land. How does the petitioner respond to this stance of the Customs Authority? Its answer is based on two claims, outlined in paragraph 30 of the petition:

 

The scheme clearly contains a notation that the area in question is intended for storage. That document was signed by the Director of the Engineering Department in the P.A./Israel Railways, and the petitioner claims that it is binding in every way. This scheme comes in addition to the oral understandings and agreements reached between the P.A. representatives and the petitioner, and together they constitute the basis for the extensive project and investment undertaken in reliance on the [written – trans.] agreement and the additional agreements and understandings.

 

The petitioner, however, provides no details whatsoever about those agreements and understandings (who agreed or understood, what was agreed or understood, etc.), and it provides no documents to support that claim. It merely makes the claim, which is unsupported by the correspondence between the petitioner and the Port Authority and has no weight as a evidence. We should further recall that, according to the contract, the oral agreements and understandings that the petitioner claims took place are insufficient to authorize transferring a large piece of land to the possession and use of the petitioner, contradicting the contract’s explicit provisions, including the provision requiring “the advance written approval of the Director-General of Israel Railways.”

 

            The sole piece of evidence left for the petitioner is the scheme, that is, the second scheme from May 15, 1995, in which the area of land is marked as “storage area.” Supra para. 3. The petitioner presents the second scheme (signed a year after the contract was signed) as if it were the only scheme. That is not the case. The first scheme was prepared as early as January 3, 1994 (a year and a half before the contract was signed) and signed by the petitioner and two deputies director-general of the Railways, who also signed the contract itself. The first scheme outlines the route of the extension, and it includes no marks designating land use, whether for storage or any other purpose. The second scheme was prepared, as noted above, a year and a half later, by the petitioner’s planner, in order to mark the new extension route proposed by the petitioner. It was signed not by the two deputies director-general who signed the first scheme, but rather only by the Director of the Railways Engineering Department.

 

            The petitioner claims that the second scheme is proof that the Port Authority agreed to let it use the land for storage. The Port Authority counters that in signing the second scheme, the Director of the Israel Railways Engineering Department intended only to approve the new route of the extension from an engineering point of view and not to approve the use of the land, something he was neither involved in nor even authorized to decide. In paragraph 7 of its response affidavit, the Port Authority claims that:

 

According to what he told me, all that Mr. Doron Rubin, Director of the Israel Railways Engineering Department, was asked to do was to sign the back of the scheme from 1995, to indicate approval of the extension route from an engineering point of view. Under these circumstances, claiming that his signature granted rights in the land to the petitioner, just because the petitioner’s planner added the words “storage area” in the margins of the plan, without bothering to call it to Mr. Rubin’s attention, is pure temerity, and it stems from a failure to behave in good faith.

 

            35. Are these claims and evidence enough to rule that the petitioner has no right in the land? Definitely not. Whether the petitioner has a right in the land is an open question, currently pending before the Magistrate’s Court in Ashdod, as part of the action of ejectment brought by the Port Authority against the petitioner. The Magistrate’s Court will rule on that question in light of the arguments and evidence brought before it. Supra para. 8. That, however, is not the question that the Customs Authority faced, and it is not the question before this court. The question before us is whether, in considering whether to renew the license, the Customs Authority had sufficient evidence to decide the issue. As is known, the evidence required to base a decision by an administrative agency differs in substance and in weight from the evidence required to base a judgment by a court. Administrative agencies act according to the test of administrative evidence, not the rules of evidence used in court. Under this test, the administrative agency must have before it sufficient evidence upon which a reasonable person would rely, under the circumstances, in order to make the decision in question. See HC 442/71 Lansky v. Interior Minister [33] at 357; HC 987/94 Euronet Golden Lines (1992) Ltd. v. Communications Minister [34] at 423-24. Such evidence may be sufficient to form the basis for a refusal to renew a license or a revocation of the license. See e.g. HC 475/81, supra [6] at 808.

 

            In my opinion, under the test of administrative evidence, the Customs Authority could have decided at the outset that the petitioner had no right in the land, as required by the Regulations for receipt of a license. The contract itself, which on its face is neither a rental or lease agreement, would have been sufficient evidence for that decision. A fortiari, it would have been sufficient afterward, in view of the Port Authority’s opposition to the petitioner’s seizure and possession of the land. Under the test of administrative evidence, the evidence, which would have been sufficient for a refusal to grant the license at the outset, is also sufficient to determine, for purposes of renewing the license, that the petitioner has no right in the land, as required by the Regulations.

 

            The conclusion is therefore that the Customs Authority granted the license to the petitioner based on a mistake caused by the petitioner’s representation regarding its right in the land. Once the mistake was discovered, and it became clear that, under the Regulations, the petitioner was not entitled to the license, the Customs Authority had the grounds needed under the case law to refuse to renew the license or even to revoke it.

 

            36. Nevertheless, under the facts of this case, I have doubts as to whether these grounds by themselves are sufficient to justify the Customs Authority’s refusal to renew the license for the land. My doubt stems from two sources: First, the Customs Authority is not absolved of responsibility for the mistake that, once discovered, motivated it to decline to renew the petitioner’s license. As noted, when the petitioner applied for the license, the Customs Authority asked it to send a rental or lease agreement for the land, and it sent the contract. The contract, on its face, is neither a rental nor a lease agreement, and that is obvious to a lawyer after a surface reading of it. However, the Customs representative who handled the petitioner’s application did not bother to read the contract at all. The Customs Authority explained that in paragraph 8 of its response affidavit:

 

The Customs Authority representatives who approved the petitioner’s request assumed, based on the relationship of trust that had developed between the two and in light of the assumption that the petitioner was acting in good faith, that the contract submitted by the petitioner indeed granted it storage rights in the area in question and that there was no reason not to approve the request.

 

            This explanation does not absolve the Customs Authority of responsibility. In every case, the Customs Authority, like any administrative agency, must take reasonable steps to clarify whether the conditions set by the statute or regulations for its exercise of authority have been met. This is the administrative agency’s duty owed to the public, which has endowed it with authority, subject to certain conditions. The agency may not exempt itself of the responsibility to investigate those conditions just because it assumes, hopes, or trusts that the citizen will act in good faith.

 

            Furthermore, the citizen can assume that the agency conducts a reasonable investigation of the conditions necessary to exercise its authority, and that if the agency grants the request, the citizen may generally rely on the that decision. As Justice Barak said:

 

A license grantee may assume that the necessary checks were done and that the he or she may begin investments and activities without fear that everything will be re-opened just because of a mistake. There is another reason, and it is connected to proper public administration. Administrative agencies should establish a system of checks and investigations that will allow it to arrive at its stance in advance, before the license is granted. Only under an illegitimate and dangerous system of administration would the agency first grant a license and only afterward investigate.

HC 799/80, supra [5] at 331.

 

The question therefore becomes whether, under the circumstances of this case, the mistake regarding the petitioner’s rights in the land was sufficient to justify the Customs Authority’s refusal to renew the license.

 

The second source of doubt is the fact that the balance of damages seems to tip toward the petitioner. On the one hand, the petitioner invested a lot of money in preparing the land to serve as a licensing warehouse, negotiated with clients, has operated the warehouse for months, and will certainly suffer substantial damage when forced to stop using the land as a licensing warehouse, particularly if it is forced to do so immediately. On the other hand, what damage would result if the petitioner continues to use the land as a licensing warehouse until the civil court rules on the Port Authority’s action to eject the petitioner from the land? From the point of view of the Customs Authority, there is no practical damage, because the land has been properly prepared for use as a licensing warehouse, and only the question of the petitioner’s rights in it remains open. There is therefore no concern that the petitioner will store goods on which customs duties are owed unsafely or unsupervised. What of the damage caused to the Port Authority? Such damage does not appear to be a relevant consideration for the Customs Authority’s decision whether to renew the petitioner’s license. In any event, should the civil court rule that the petitioner has no right in the land and that it is occupying the land as a trespasser, the Port Authority may, should it so desire, sue the petitioner for money damages in the form of the appropriate amount of rent, purging the petitioner of unjust enrichment, or request any other remedy.

 

If that is the case, should the Customs Authority renew the petitioner’s license temporarily, pending the civil court’s ruling on its right in the land? In the final balance, were I required to rule on this case based exclusively on the question of the right in the land, I think that I would rule against the petitioner, despite my doubt. The primary reason is that, based on the administrative evidence, the Customs Authority’s granting of the license was not just an error in judgment but was actually illegal, because it contradicted the Regulations requiring that a license-holder have a right in the land. In principle, an administrative agency is not supposed to accept an illegal situation. Indeed, if it were a question of freezing the current situation for just a brief period, pending a final ruling on the question of the right in the land, it would have been possible to maintain the status quo, out of consideration for the damage that the petitioner would otherwise suffer. In practice, however, years may pass before the courts will give a final ruling, including on any appeals. It would not serve the public interest to allow the petitioner, which apparently received the license in violation of the Regulations, to maintain the license and benefit from it for a long period of time, while the authorized agency is helpless to correct the problem. Therefore, as noted, if I had to rule on this case based on this reason alone, I think that, despite the doubt, I would deny the petition.

 

However, if any doubt remained about whether this reason is sufficient to justify the Customs Authority’s refusal to renew the petitioner’s license for the land, the second reason, namely breach of the duty to disclose, removes any doubt I might have harbored.

 

37. As noted, as part of the petitioner’s duty to disclose owed to the Customs Authority, the petitioner had an obligation to disclose information material to the license requested. Supra text beginning on para. 27. I have no doubt that the petitioner violated that duty.

 

This was the case from the petitioner’s first step in this case. When asked by the Customs Authority to produce a “rental contract or lease” for the land, the petitioner sent the Customs Authority the contract (in December 1995), noting in its cover letter that, “Enclosed is the rental/lease agreement with the Port Authority and the Railways.” However, as noted, that contract is neither a rental agreement nor a lease. Even the petitioner acknowledges in its petition that its claim to a right in the land is based on understandings and agreements made later. Supra para. 34. The petitioner, however, did not tell the Customs Authority that its right in the land derives not from the contract but rather from later understandings and agreements. Had it said that in the letter sent to the Customs Authority, the Customs Authority would likely have sought to clarify what those understandings and agreements are and why they are not included in the appendix to the contract or in another document.

 

Moreover, the petitioner sent the contract to the Customs Authority without attaching the first scheme, which presents the extension route as it was first established. Supra paras. 2-3. Therefore, the picture presented to the Customs Authority was incomplete and inaccurate. Had the petitioner attached the first scheme as well, which left a smaller area between the extension and the warehouse, along with an explanation about the change in the route, the Customs Authority might have investigated and discovered the situation as the Port Authority viewed it.

 

In any event, the petitioner knew very well that the Customs Authority required it to have a right of rental or lease in the land, and that after it submitted the contract, the Customs Authority believed that the petitioner did indeed have such a right.

 

Even if the petitioner believed it had such a right, not long after it submitted the contract to the Customs Authority, it learned that the Port Authority thought otherwise. The letter sent to the petitioner on January 8, 1996 said, in the name of the Port Authority, that the petitioner had seized the land in violation of the contract and that it must immediately vacate the land. The Port Authority repeated that stance over and over for a period of months. Supra para. 7. During that time, the petitioner’s application for a license was pending before the Customs Authority until it decided, on July 1, 1996, to grant the license requested. The petitioner should have known, if it did not in fact know, that this information about the stance of the Port Authority was material to the Customs Authority’s decision on its application for a license. The petitioner itself submitted the contract to the Customs Authority as proof of its rental or lease right in the land. That being the case, during the months in which it engaged in regular communications with the Customs Authority about the license, how could the petitioner have neglected to inform it that the other party to the contract vehemently denied that the contract imparted any such right whatsoever to the petitioner?

 

If the case involved private individuals, we might have said that the petitioner was obligated to disclose that information to the other party as part of its duty to act in good faith during negotiations leading to the formation of a contract, under section 12 of the Contract Law (General Part), and that the other party could consider the failure to disclose as a misrepresentation under section 15 of that law and therefore void the contract. In this case, because we are dealing with an administrative agency and not a private individual, we can say that the petitioner breached its duty owed the Customs Authority to disclose material information.

 

Violation of the duty to disclose may result from a random mistake or from deliberate misrepresentation. It is often difficult to distinguish between the two, and in any event it is difficult to prove that the violation resulted from that latter. Generally, however, there is no need to prove that. It is sufficient that, under the facts of the case, the citizen, as a reasonable and fair person, had a duty to disclose the material information to the agency, and that the citizen’s violation of such duty caused the agency to be misled.

 

38. Misleading an administrative agency by a citizen’s failure to disclose information material to its application for a license or other benefit causes substantial harm, not just to the agency but also to the public. It is clearly in the public interest to avoid such misrepresentation. The public also has an interest in revoking a license or other benefit given by the agency as a result of such misrepresentation. Such misrepresentation, if it is not de minimus, is therefore likely to justify a decision by the administrative agency to revoke the license or other benefit granted, especially if there are grounds to believe that the agency would not have granted the license or benefit, but for the misrepresentation.

 

This is the case before us. The Customs Authority says that, had the petitioner disclosed the full picture of its rights in the land, either at the start of the license application process or at any time before the decision was made, it would not have given the petitioner the license it requested. This claim is persuasive.

 

The consequence is thus that the Customs Authority’s refusal to renew the petitioner’s license for the land was justified.

 

I therefore conclude that the petition should be denied, and the petitioner should pay court costs.

 

Addendum: Person and State

 

39. Finished but not complete. President Barak responds to me: He agrees with the outcome I reach but not with the route I take to reach it. As for the result, he agrees that the petitioner owes the Customs Authority a duty of disclosure, that it violated such duty, and that the petition should therefore be denied. As for the route, he does not agree that the duty of disclosure imposed upon the petitioner derives from a general duty of proper behavior owed by the citizen to the public administration. In his opinion, the duty of disclosure is circumscribed, and it is wrong and perhaps even dangerous to impose a general duty of proper behavior on the citizen, toward the public administration.

 

Because there is no dispute over the outcome, the dispute over the way to get there may seem abstract and marginal. In actuality, however, it is a dispute of principle and importance. It reflects a difference in world views about the nature of the state or, at least, the proper relationship between a person and the state.

 

What is the proper relationship between a person and the state? The point of departure is rooted in the general rule, which is essentially the basic rule of jurisprudence, that every person, including every legal entity, must behave properly in every case, according to the circumstances. That, in my opinion, is the entire body of jurisprudence in a nutshell. As for the rest: go and learn. Indeed, jurisprudence has developed an extensive system of different rules for the proper way to behave in various situations. Beyond those rules, however, and in addition to them, there is a general duty of proper behavior.

 

In private law, which governs relationships between individuals, the general duty is a duty of good faith. That duty applies to contractual relations as well as to other legal acts. It can serve as a conceptual explanation for the existing rules, a legal source from which new rules are derived, and even a duty in itself.

 

In public law, which governs relationships between an individual and the public, the duty is customarily called the duty of fairness. Like the duty of good faith, the duty of fairness requires proper behavior under the circumstances of the case.

 

There is no dispute that the public administration owes a duty of fairness to the citizen. Does the citizen, however, owe a parallel, if not identical, duty to the public administration? The Court has yet to address that question. Now that it has come before us and created a dispute, I see fit to add a few words to explain my position.

 

            40. President Barak does not see a justification for imposing on the citizen a duty of fairness parallel to that owed by the public administration, because the relationship between the citizen and the public administration is asymmetrical. I agree that there is no symmetry. However there is, or at least ought to be, reciprocity.

 

            There is no symmetry because the public administration is the trustee of the public, meaning that of every citizen, while the citizen is not the trustee of the public administration. To clarify: the loyalty owed by the public administration to the citizen is not a legal duty. It is not even a legal relationship. In that way, it differs from the duty of loyalty in private law. In public law, as opposed to private law, loyalty is just a conceptual duty. It expresses the idea that the public administration draws its authority from the public and must exercise that authority for the sake of the public, in the way that public decides. Inter alia, it must exercise its authority with fairness. Various duties owed by the public administration to the citizen arise from fairness, including the duties that the legislature imposes and those that the courts impose.

 

            The citizen, on the other hand, is not the trustee of the public administration but rather the beneficiary. Obviously, then, the citizen’s legal duties owed the public administration cannot be identical to the legal duties owed by the public administration to the citizen. However, it is just as clear that the citizen is not exempt from owing legal duties to the public administration. The citizen is subject to various legal duties imposed by the legislature and by the courts. For example, it is agreed that the citizen must produce a driver’s license to a police officer; may not insult a public servant; and must disclose material information to an agency from which he or she applies for a license to operate a business. These and other duties are not imposed upon the citizen arbitrarily. They are supposed to express the proper way for the citizen to treat the public administration. In that way, they share common ground – a general duty of proper behavior. That duty constitutes a central ingredient in the culture of our lives. It is also necessary for society to function efficiently and legitimately. What, then, is that duty, and how is it distinct from the duty which the public administration owes the citizen?

 

            41. As a conceptual matter, the duty of loyalty owed by the public administration to the citizen is expressed in legal duties which can be roughly divided into three groups: first, authority; second, reasonableness; and third, fairness.

 

            On the issue of authority, every administrative agency has a duty to refrain from exceeding the bounds of its statutorily delineated-power. That is the duty of authority in the broad sense. The duty of authority, in this sense, requires the agency to do only what the statute authorizes it to do, using only the means that the statute authorizes it to use. It includes, for example, the duty to consult with a certain body or to receive authorization from another body, depending on what the statute stipulates. That duty, of course, does not apply to the citizen, who has not been granted authority by the statute.

 

            In addition, the administrative agency has a duty to act, not just within the bounds of authority defined by the statute, but also with reasonableness. That is the duty of reasonableness in the broad sense. The duty of reasonableness, in this sense, tells the agency to exercise its discretion properly. It is composed of two secondary duties: the agency must exercise its authority for a proper purpose; it must consider the relevant considerations and ignore the irrelevant ones; it must give each relevant consideration the proper weight and balance the various considerations (that is the duty of reasonableness in the narrow sense); and it must not harm the citizen to an extent greater than necessary. The citizen also does not owe the duty of reasonableness, because such duty relates to the discretion entailed in authority [which has been delegated – trans.], and the citizen has no such authority.

 

            The duty of fairness relates to the administrative process, meaning the way in which the administrative agency exercises its authority vis à vis the citizen. It is expressed in various duties, like the duty to conduct a reasonable investigation into the circumstances of the case, to lend an ear to the claims of the citizen, to allow the citizen to access documents concerning the matter at hand, and to explain its decision. The common denominator in these duties is the duty to behave properly toward the citizen. It is commonly said that such duty derives from the duty of loyalty that the public administration owes the citizen. That is true, but it is not the only source. The status of the agency as the trustee of the public adds another dimension to this duty, but the duty, at its core, derives from a different source. It derives, first of all, from the basic duty of proper behavior in societal relationships, which includes fairness. Because it derives from this duty, which is not unique to the relationship between the public administration and the citizen, it can apply to the public administration’s duty to the citizen as well as to the citizen’s duty to the public administration.

 

            There may therefore be uncertainty over whether the duty of fairness, as opposed to the duty of authority and the duty of reasonableness, creates a parallel duty which the citizen owes the public administration. President Barak answers that question in the negative. However, his answer gives the duty of fairness a broad meaning. It includes the duty of procedural fairness but also substantive fairness, like, for example, the duty not to discriminate and not to work for an illegitimate goal. In my opinion, the duty of substantive fairness, which concerns administrative discretion, is not part of the duty of fairness but rather part of the duty of reasonableness. That duty is obviously not imposed on the citizen, because the citizen has no authority and therefore cannot be obligated to consider the relevant considerations or fulfill other conditions of exercising authority.

 

            The dispute between President Barak and me is limited to the question of whether the citizen bears a general duty of proper behavior toward the public administration within the field that President Barak refers to as procedural, as opposed to substantive.

 

            42. President Barak objects to imposing a general duty of proper behavior on the citizen vis à vis  the public administration, irrespective of its nature and scope, on two primary grounds: one concerns the reason, and the other concerns the result.

 

            President Barak believes that, first of all, the reason which leads to imposing a duty of proper behavior on the public administration, owed to the citizen, does not lead to imposing a parallel duty on the citizen, owed to the public administration. “A general duty like this,” he says (in paragraph 8), “is inappropriate.” Why? The major reason is this:

 

… The view that the government is the trustee of the public is the basis for imposing a general duty of fairness that government owes to the individual. This view is based on a democratic perspective which puts individual liberty at the basis of the social structure. These reasons for imposing a duty do not exist in a relationship between the individual and the government. The individual is not the trustee of the government … the proper perspective on democracy means that there is no room to impose a duty of fairness that the citizen owes the government. Imposing a general duty of fairness would radically alter the perspective on democracy and the place that the individual occupies within it.

Para. 6.

 

 

            What, however, is the proper perspective on democracy? Obviously, there are many perspectives on democracy – from popular democracy to Western democracy; from formal democracy to substantive democracy; and within substantive democracy, there are different perspectives on what the substance is. There is no dispute that the State of Israel is not just a formal democracy that makes do with choosing representative institutions every few years, primarily the legislative and executive branches. The State of Israel is a substantive democracy, all of whose representative institutions are guided by basic values, at the center of which is human dignity and liberty, in order to serve the human being as a human being. The Court has used that perspective on democracy to establish basic human rights, develop them, and defend them against violation by other institutions. However, even within the context of substantive democracy, with human rights as the consensus, there may still be different perspectives on the proper relationship between the state and the individual.

 

            President Barak believes that, “A democratic regime is based on the recognition of each individual’s human rights … the role of the government is to maintain a society that respects human rights.” Para. 3, infra. Indeed currently, that is the prevalent perspective on the democratic regime here. In my opinion, however, it only captures part of it. A democratic regime is more than recognition and protection of human rights. Human rights are indeed a value of the utmost importance, but they are not the only value. A person is more than a bundle of rights. A person is also a bundle of needs, proclivities, and aspirations. We cannot, therefore, say that the role of the government is to respect human rights – period. That is indeed a role of the utmost importance, but it is only one role among others. In the same breath, we must also say that an additional role is to advance the well-being of people – all people. Another role is to achieve social justice – justice for all. Human rights are not supposed to overshadow personal well-being and social justice. Human rights must not be just for those who have enough. Every person must have enough, so that he or she can enjoy human rights, in actuality and not just by law. This role is integrated, and the government is not the only one who must fill it. It is, first and foremost, the role of society. In other words, each of us must fill that role. Need we fill the role by helping the public administration? Yes. May we shirk the role and impose it on the public administration? No. In fulfilling that role, each of us must take a system of duties upon himself or herself, not just toward other people but also toward society. That, in my opinion, is the proper perspective on a democratic society – rights existing side-by-side with duties. While there is no symmetry in the relationship between the individual and society, there is reciprocity.

 

            That is my view on the social contract. It is not a historical fact whose content is determinable, and it is not even a legal document whose meaning is debatable. The social contract is nothing but an idea that expresses the character that society should have. In my opinion, the desirable character of a society should guarantee not just human rights but also personal well-being and social justice. Toward that end, society does not make do with imparting people with rights; it also imposes duties upon them. That is the soul of democracy.

 

            The State of Israel is a Jewish and democratic state. The Court, as a branch of the state, must be guided by the very democratic values it simultaneously advances. It unquestionably does that and always has. The Court primarily develops and cultivates human rights. However, to be hand-on-heart honest, does it not do so at the expense of other values? The Court devotes it primary efforts and dedicates its first rung on the ladder of priorities to human rights. That is the case in practice, even more so in the rhetoric, and appropriately so: human rights should stand at the top of the ladder of priorities. However, the perspective on democracy as a government which protects human rights is a one-dimensional perspective. Democracy is more complicated and, frankly, better than that. The right perspective on democracy must put personal well-being and social justice together with human rights at the top of the ladder of priorities. The practice and rhetoric of the Court ought to reflect that perspective more clearly.

 

            43. In my opinion, President Barak’s perspective on democracy derives from a feeling of tension or even conflict between the state and the citizen. The state, through this perspective, is a regime that stands against the citizen. Indeed, the government of today is no longer what it was: it is not a totalitarian regime, either monarchical or colonial. Today, in a democracy, the government is the trustee of the people, and it therefore bears a general duty to take care of the public, which includes a duty to protect human rights. That perspective, however, still views the government as a body external to the citizen. It may be a new government, but it has grown from the roots of a totalitarian regime, meaning the roots of paternalism. Even today, the government is like a big brother or beneficent mother whose duty it is to take care of the child, while the child owes obedience and gratitude in return.

 

            This perspective is reflected in the very way we talk about the government. Indeed, the government as trustee. A government, at best, which is legitimate and enlightened. But still a government. It operates externally. And I, as a citizen, am subject to it. Fear its heavy hand. Ask that it leave me alone. Look for ways of restraining it.

 

            It is not the term which is determinative. The perspective is determinative. The term only reveals the perspective. Therefore, even if we find another expression, and replace “government” with “public administration,” nothing will change unless we change the perspective.

 

            44. I reject this perspective. I would like to see the state as a partnership. Of course, not a partnership in the private law sense, and not even a partnership as a legal relationship, but rather a partnership as a conceptual perspective which replaces the perspective of the state as a regime.

 

            According to this perspective, the state is the joint project of all citizens. It includes a division of roles. Those roles dictate the legal relationships. Civil servants play an important role, which entails authority and duties. It gives them control and obligates them as trustees. They are not, however, a regime above me. They are still our partners.

 

            The partnership perspective has implications for the system of rights and duties that apply to both the citizen and the public administration. The partnership is not limited to periodic elections in which the citizen empowers the Knesset and the government to manage national affairs as it sees fit for a few years, until the next elections. Partnership means giving the citizen a real opportunity to participate in the daily running of the country’s national life, and an opportunity, in practice, to act and influence on a daily basis, not just through elections. It requires more publicity and openness of the public administration; additional avenues for early consultation with the relevant bodies outside the public administration; willingness to incorporate those bodies in its regular activities. Administrative regulations stand out as an example. On a regular basis, ministers and other agencies issue a tremendous number of regulations, many of which have the same practical importance as statutes. Unlike the case of statutes, however, the agency authorized to issue regulations does not tend to publish a draft of the regulations and does not hold a public discussion before those regulations enter into force. That process reflects aspects of the government perspective. It is inconsistent with the partnership perspective. The partnership perspective advances democracy to a higher level. It correctly expresses the idea of rule of the people.

 

            The government perspective encourages the citizen to demand personal benefits from the government. It does not encourage the citizen to contribute to society. It tempts the citizen to think: I gave the government power and responsibility, and it should repay me with rights and services. It owes me. This is not a perspective of partnership.

 

            45. The partnership perspective also has implications for the duty that the citizen owes the public administration. The public administration is essentially a public servant. The public servant is flesh of my flesh. He or she works for me and for my benefit. We are partners who have different jobs within the state. According to that perspective, I owe a general duty of proper behavior to the public servant. It is inconceivable that I would owe such a duty such a duty to my employer, my neighbor, as a bus driver or shop salesperson (and it doesn’t matter if we call it good faith or anything else) but not to a public servant, who works for me and for my benefit. Such a duty arises obviously from the partnership relationship between the citizen and the public servant.

 

            I call this duty the duty of fairness. It is a term of convenience. It does not matter very much. We could also call it a duty of good faith. It means a general duty of proper behavior. Proper behavior is an elementary duty. All persons owe it to all other persons. In my opinion, perhaps even a fortiori, the citizen owes it to the public servant.

            The general duty of proper behavior, like the general duty of good faith, does not pretend to be a positive description. In reality, good faith is often lacking in interpersonal relationships. That does not, however, invalidate the duty. The duty is a legal norm, and it exists as such even when breached in practice. The same is true of the duty of fairness that the administrative agency owes the citizen. In reality, the administrative agency may not behave fairly toward the citizen. Nevertheless, and perhaps for that very reason, the duty of fairness is necessary as a legal norm. The norm sends a message, educates, and serves as a tool for adjudicating disputes. For this reason, we also need the norm of a duty of proper behavior owed by the citizen to the administrative agency.

            46. President Barak objects to imposing a general duty of proper behavior on the citizen, to the public administration, not just because he sees no conceptual reason to do so, but also because he is concerned about the practical consequence that will result. In paragraph 13, he says:

The theoretical basis determines how the arrangement develops. The theory determines the practice. In my view, the individual does not owe a general duty of fairness to the government, because such a duty would be inconsistent with the way we view the individual in society ... “Fairness” is a concept that may lead to the creation of duties whose nature is inconsistent with individual liberty in a democratic state.

            Indeed, theoretical perspectives have practical importance. However, the court is responsible for translating the theoretical perspectives into rules of behavior. That principle applies to the theoretical perspective on the duty of fairness owed by the public administration to the citizen. The Court used that perspective to say that various duties that have long been imposed on the public administration, such as the duty to hold a hearing and the duty to disclose, derive from the duty of fairness. The Court, however, has not imposed any additional duties just because they arise from the theoretical perspective on the duty of fairness. The Court will determine that a duty derives from the duty of fairness only after it concludes that the relevant considerations justify imposing such duty on the public administration.

            The same holds true in the opposite direction. In this judgment, the Court holds that, under certain circumstances, the citizen owes a duty of disclosure to the public administration. The Court established that duty by balancing the good of the public against human rights. Having established that duty, I suggest holding that it derives from the duty of fairness. This is the expected course of things. It is also the appropriate course. It may be presumed that if the Court determines that a citizen owes a general duty of fairness to the public administration, the theoretical perspective will not motivate the Court to impose a particular sub-duty on the citizen, unless it concludes that the relevant considerations justify it. It may also be presumed that the Court will only impose additional duties on the citizen through a careful and controlled process, exercising restraint, in order to maintain an appropriate balance in the relationship between the citizen and the public administration.

            47. Clearly, the system of rules derived from the citizen's duty of fairness will differ from the system of rules derived from the public administration's duty of fairness. The name may be the same, but the content is different. In this sense, there is no difference between the duty of fairness and the duty of good faith. For example, the duty of good faith owed by an agent to the principal differs from the duty of good faith owed by the principal to the agent. See para. 25, supra.

            However, in this case, President Barak and I do not dispute the content of the duty of fairness. On that question, I don't think we would disagree. In this case, we agree that, under certain circumstances, the citizen owes a duty of disclosure to the public administration. I expect that there are additional cases in which we would agree that the citizen does or does not owe additional duties. Our disagreement is not over one duty or another, but rather over a prior question which expresses a theoretical perspective: whether the citizen owes the public administration a general duty of fairness, regardless of what the content of that duty may be.

            48. In my opinion, the theoretical perspective that a citizen owes a general duty of fairness to the public administration causes no damage and poses no risk. To the contrary: this perspective adds a helpful theoretical and practical benefit to law and to society. It sends an appropriate message. Fairness is an appropriate message in every human relationship. That is true (in the garb of good faith) of the way people treat each other, and it is true (in the garb of fairness) of the way the public servant treats the citizen. Could it be possible that the way the citizen treats the public servant is the sole exception to this rule? As a person and as a citizen, I willingly assume a duty of fairness to public servants.

 

President A. Barak

            I agree with the result at which my colleague, Justice Zamir arrived: that the petition should be denied. That conclusion is based on the view that the petitioner violated the duty of disclosure owed to Respondent 1. My colleague also recognizes the petitioner's duty of disclosure. The difference in our positions concerns the source of that duty. My colleague sees the duty of disclosure as part of a general duty of fairness which the individual owes the government. I disagree. I will briefly explain my position.

            1. Today, it is universally agreed that the government owes the individual a duty of fairness. This duty is owed by anyone who wields governmental authority. It is owed to any individual, as part of his or her personhood. It applies to every governmental function (legislative, executive, judicial). At first, the legal system recognizes particular duties which the government owed the individual, such as the duty to hear opposing sides, the duty to give reasons, and the duty to behavior reasonably and not arbitrarily. After a while, the system sought and found a general principle at the core of each particular duty. This is the duty of fairness. See HC 840/79, supra [20] at 745. At first, it was just a principle that summarized the particular duties that had already been recognized. Later, it came to be recognized as a super-principal which gives rise to the various duties. The view is that the principle has a life of its own. It is not just a summary of the specific duties recognized in the past. Over the years, new duties that had not been recognized in the past arose from this principle. Indeed, that is – in the Viscount Simonds' words – the "genius" of case law. Scruttons v. Midland Silicones(1962) [72] at 7. It recognizes particular duties that, over time, come to be viewed as an expression of a general principle from which new particular duties arise, which come to be viewed as an expression of a general principle (new or old) from which new particular duties arise, and so on. In the case before us, first the specific duties were recognized, such as the duty to conduct a hearing and avoid a conflict of interests. Later, the legal system derived from them the general principle that, in relationships between the government and the individual, the government must behave fairly toward the individual. Such fairness is both procedural and substantive. Procedural fairness requires the government to establish a procedure that is fair to the individual. For example, the government must hear the individual before making a decision in his or her case, and it may not subject itself to a conflict of interests. Substantive fairness requires the government to consider appropriate considerations (for example, the duty to act reasonably, without discrimination or arbitrariness and not for an inappropriate purpose).  The categories of fairness (procedural and substantive) are never closed or rigid, and they never rest on their lees. HC 1635/90 Zharzhavski v. Prime Minister [35] at 841.

            Why does the government owe a general duty of fairness to the individual? Such duty stems from the view that the governmental authority does not act for itself but rather on behalf of the public. In our legal system, the governmental authority is seen as the trustee of the public who owes the public a duty of fairness. I said as much in one case:

The state, through those who act in its name, is the trustee of the public, put in charge of the collective interest and public assets in order to use them for the collective good …

This special status subjects the state to a duty to behave with reason, integrity, purity of heart, and good faith. The state may not discriminate, act arbitrarily, or in bad faith, or allow itself to be subject to a conflict of interests. It must maintain the rules of natural justice. In short, it must act fairly.

HC 840/79, supra [20] at 745-46.

            Indeed, my view is that the government is the trustee of the collective. My position is that the government is nothing in itself, and anything that it has, it has for the sake of the public. See HC 669/86 Rubin v. Berger [36] at 78. Justice H. Cohen articulated this position:

The individual is different from the public body. The former does as he or she pleases, granting or refusing as he or she wishes, while the latter exists only to serve the collective. It has nothing of its own. All that it has, it holds in trust. On its own, it has no rights or duties beyond, different, or separate from those arising from the trusteeship or granted it or imposed upon it by statutory provisions.

HC 142/70 Shapira v. Bar Association Jerusalem Regional Committee [37] at 331.

My theoretical point of departure is therefore that the government is a trustee, trusteeship requires fairness, and fairness (procedural and substantive) requires behavior based not on self-interest but rather on the need to advance the collective good. See HC 1635/90, supra [36] at 841. See also HC 6163/92 Eisenberg v. Housing and Construction Minister [38] at 258.

            3. Why do I see the government as the public trustee? The reason is that a democratic society is based on the recognition of individual human rights. These rights are natural to people by virtue of their personhood. The government does not grant these rights to people; the rights pre-exist the government. The role of the government is to maintain a society that establishes human rights. Of course, as a matter of daily life in society, human rights sometimes must be infringed. We cannot protect human rights without infringing on human rights. A democratic government is not characterized by the fact that it never violates human rights. Human rights are not a recipe for national destruction. A democratic society is characterized by the fact that an infringement of human rights must be done for a purpose which advances human rights, and the infringement must be to an extent no greater than necessary. A democratic society allows human rights to be infringed upon in order to maintain a social framework that preserves human rights. The right of the individual and its violation derive from a common source. CA 68211/93 United Mizrachi Bank. v. Migdal Agricultural Cooperative Village (hereinafter – the Mizrachi Bank case [39]) at 433. Within the context of this view, the role of the government is to take care of the public. The government in itself has no “private” interest of its own. The government exists for the sake of individuals. The government does not exist for its “own” sake. Those who represent the government have no “self” interest that must be protected. They must act to achieve the collective interest. Indeed, there is a serious concern – a concern which history has repeatedly validated – that representatives of the government will develop their own interests and use the tremendous power granted them for purposes that do not reflect the collective good. The duty of loyalty seeks to prevent that. The duty of loyalty seeks to guarantee that the government takes care of the public and not itself; the general duty of loyalty seeks to guarantee that the government takes care of the public and not itself; the general duty of fairness seeks to guarantee that governmental authority is exercised in a way that serves the collective, and not the government itself.

            4. These reasons, which lie at the core of the general duty of loyalty, determine its content. The general duty of loyalty seeks to guarantee that the government does not achieve “its own self-interest” but rather the collective interest. The duty of loyalty does not set the “rules of the game” between “rivals.” It sets rules of behavior for “friends.” Indeed, like the trustee of a private trust, the government must suppress any “private” or “self” interest. It must exercise its powers for the sake of the public and the collective. Therefore, the government must act with integrity and purity of heart; it must abide by the rules of natural justice; its actions must recognize the equality of persons; it must keep its promises (see HC 135/75, supra [22] at 676); it must provide the public with information (HC 142/70, supra [37]); it must take only relevant considerations into account; it must abide by public ethics in its actions (see HC 1601/90 Shalit v. Peres [40] at 365); it must act in a way that allows it to achieve the public task imposed on it.

            5. Do individuals, in their relationships, bear a general duty of fairness to each other? The answer is no. The law takes as its point of departure that people have rights (in the broad sense) vis à vis each other. The law recognizes the individual's self-interest and the power of the individual to protect that interest and achieve it. The law does not require an individual to suppress his or her self-interest and give priority to the interest of another person (who would also have to suppress his or her own self-interest). The law does not ask for that level of altruism. The law recognizes the self-interest of the individual and his or her will to achieve it. Of course, the individual may not cheat or defraud, but he or she is not asked to ignore his or her personal interest in dealings with others. Our legal system does not recognize that “quality of righteousness” (as Justice Alon called it in CA 148/77 Roth v. Yeshufa Construction Ltd. [41] at 635). However, over the years, our perspective on the proper relationship between individuals has changed. The perspective that has developed is that the “buyer beware” maxim is inappropriate in interpersonal relationships; it would be wrong to allow each individual to achieve his or her desire without considering those with whom he or she comes into contact.  There was a need to raise the threshold for what is considered proper behavior between individuals in their relationships. In private law, emerging principles of social solidarity and social justice set a standard of achieving the reasonable expectations of parties in private law. See M. Mautner, Yiridat Haformalism Vialiyat Haarachim Bamishpat Hayisraeli [80] at 57. Altruistic [in Jewish tradition: “angelic” – trans.] behavior is not required, but it is no longer acceptable for the individual to ignore the interests of others (in Jewish tradition: “wolfish” behavior – trans.]. The accepted view is that individuals must act in good faith in their interpersonal relationships [in Jewish tradition: behave like a person]. See CA 207/79 Raviv Moshe & Partners, Ltd. v. Beit Yules Ltd. (hereinafter – the Raviv case [42]) at 543. The legal system recognizes a general duty of good faith in contractual negotiations and in executing legal actions in private law. Sec. 12, 39, and 61(b) of the Contract Law (General Part). It has also recognized the prohibition on abusing a right. Sec. 14 of the Land Law, 1969. These duties, as important as they are, do not impose a duty of altruism. They do not require the individual to ignore his or her own self-interest. In contracts, the duty of good faith does not require a contractual party to relinquish the self-interest he or she has in the contract and its execution. The duty of good faith imposes a duty on a contractual party to consider the interest that is common to himself or herself and the other party to the contract. The duty of good faith requires the holders of a contract to act to realize their common intent, through dedication to the joint goal that they had in making the contract and consistency in achieving their joint expectations. HC 59/80 Be’er Sheva Public Transportation Services Ltd. v. National Labor Court in Jerusalem [43] at 834. As a rule, for relationships between individuals, the law does not impose the duty of fairness it imposes on the government in its relationships with the individual. The duty of good faith imposed on individuals in their interpersonal relationships is “easier” than the duty of fairness imposed on the government in its dealings with individuals. HC 4422/92 [19] at 860. Good faith starts with the assumption that the individual takes care of his or her own interests. Good faith seeks to guarantee that he or she does so appropriately, taking into consideration the justified expectations of the other party. Good faith does not assume that each party will take care of the interests of the other, at the expense of his or her own interests. Good faith is based on the assumption that each contractual party takes care of his or her own interests, but it seeks to guarantee that he or she exercises integrity in doing so, safeguarding the joint mission of the parties, as befits a civilized society. See FH 22/82, supra [17] at 485. Good faith sets rules for a fair game between “rivals.” In contrast, the duty of fairness sets rules for a fair game between “friends.” The duty of fairness does not view the government and the individual as “rivals.” The government must take care of the collective to which the individual belongs. The government's duty of fairness – like, in some ways, an agent's duty of fairness to the principal, a director's to a company, a guardian's to those with whose care he or she is charged – is a “heavier” duty than the duty of good faith.

            6. Does an individual owe a general duty of fairness to the government? In order to answer that question, we must return to the discussion of the reasons for imposing on the government a general duty of fairness to the individual. As we have seen, the view that the government is the trustee of the public is the basis for imposing a general duty of fairness that government owes to the individual. This view is based on a democratic perspective which puts individual liberty at the basis of the social structure. These reasons for imposing a duty do not exist in a relationship between the individual and the government. The individual is not the trustee of the government. The individual does not seek to advance the liberty of the government. Democracy recognizes the liberty of the individual from the government, but not the liberty of the government from the individual. An individual may do anything that the law does not prohibit. The government may do nothing that the law does not permit. 1 B. Aktzin, Torat Hamishpat [81] at 128. A democratic perspective recognizes the individual's independent will and independent interest. A democratic perspective does not recognize the government's independent will and independent interest, because the government acts for the sake of the public and the collective. In a democratic society, we cannot say that the individual has nothing for himself or herself, and that all that he or she has is for the sake of the collective. These words are true of the government. The proper perspective on democracy means that there is no room to impose a duty of fairness that the citizen owes the government. Imposing a general duty of fairness would radically alter the perspective on democracy and the place that the individual occupies within it. My colleague, Justice Zamir, says that the social contract is the source of the general duty of fairness. I would not draw that conclusion from the social contract. Our accepted view of the social contract is that it establishes a limited government authorized to serve the people and allow them to realize their natural rights. This view gives rise to the government's general duty of fairness to the individual. It does not give rise to a general duty of fairness owed by the individual to the government.

            7. This analysis does not mean that the individual has no duties to the government. Democracy is not just human rights. Democracy is also human duties – duties to other individuals and duties to the government. Indeed, democracy is based on social life and national interests. The government acts for the sake of the public. To facilitate that activity, we must give it rights (in the broad sense), because otherwise it would not be able to achieve the collective interest. Giving rights to the government means imposing duties on the individual, to the government. The purpose of these duties is to make it possible for the government to achieve the objectives imposed upon it in a democratic society. They derive from social life and the need to advance the liberty of every individual. They are based on a view of a social welfare state and social solidarity. They derive from a proper view of the individual as someone who is shaped by society and therefore whose personality necessarily includes a “social aspect” that gives rise to an internal need to take the collective into consideration. These duties also derive from society's demand of the individual, as a member of society, to act for the sake of the collective. They are the product of the balance between the needs of the collective and the needs of the individual. We should recall, however, that the individual's duties to the government and the government's duty to the individual are different. They stem from different sources; they have different scopes. The existence of the government's general duty of fairness to the individual does not entail – as a matter of neither logic nor policy – the existence of a general duty of fairness owed by the citizen to the government.

            8. What duties does the individual owe the government, and how do they differ from the government's duty of fairness to the individual? The individual's duties are based on a view of the individual in a democratic society and the role of the government in a democracy. Their point of departure is individual liberty, on one hand, and the role of the government on the other. There is tension between those two poles, because the government must act for the collective good, and the collective good is likely to conflict with the rights of the individual. That tension is released in various and sundry duties imposed on the individual, to the government. These duties are not based on a general duty imposed on every individual. Creating such a general duty would be inappropriate. By their nature, the duties that the individual owes the government are the product of balancing conflicting values. They are a compromise between the individual's human rights and the collective interest of the public. In this balance, as the infringement on individual rights intensifies and the public interest weakens, the duty owed by the individual will become more moderate. In contrast, as the infringement on individual rights becomes more moderate and the public interest becomes stronger, the duty owed by the individual becomes stronger. Between those extremes lie the hard cases in which the violation of human rights is severe and the public interest is strong. In these situations, each society finds a balance point –which gives rise to the individual's duty – depending on its views about the appropriate relationship between the individual and the collective, between the person and the public.

            9. The complex relationship between the individual and the government is not based on a one general duty owed by the individual to the government. The individual's duties are sporadic, and their content changes according to the circumstances. The individual owes no general duty to the government beyond the duty to obey the law, and he or she certainly owes no general duty of fairness. The individual's duties are “specific.” For some issues, the individual's duties to the government are weaker than the duties of good faith that individuals owe each other in private law, and they may be limited to a duty not to mislead. For other issues, the individual's duties may be identical in scope to the duties of good faith that individuals owe each other. Indeed, in order to facilitate the government's activities in the field of private law, in his or her private law dealings with the government, the individual should bear the same duties of good faith that he or she owes to other individuals. The individual should not be given a break in his or her dealings with the government as it forms contracts or engages in other legal actions in order to fulfill its role. The provisions of sections 12 and 39 of the Contract Law (General Part) therefore apply to every legal action (see section 61(b) of the Contract Law (General Part)) in which the individual engages vis à vis the government. See G. Shalev, Chozei Rishut Biyisrael [82] at 59. For other issues, the individual's duties may be similar in scope to the duties of fairness imposed on the government. Sometimes, the individual may owe even more serious duties.  Indeed, the individual must sometimes sacrifice his or her life in defense of the state. We must, however, keep in mind, that the duties of the individual – unlike the general duty of fairness – are specific in nature and different in character. They result from the balance, at various points, between individual liberty and the collective good. They depend on the special circumstances of each case, entailing an investigation into whether the individual fulfilled his or her duty to the government, the source of the duty, and its scope. I therefore cannot concur with the position of my colleague, Justice Zamir, that the relationship between the agency and the individual is two-sided, such that “the citizen should therefore owe a duty of fairness to the agency, as the agency owes a duty of fairness to the citizen.” No such symmetry exists. The agency's duties to the individual are separate from the individual's duties to the government. The philosophy at the root of each duty differs, as does the scope of each. The relationship between the individual and the government may be two-sided, but they are neither reciprocal nor equal. As my colleague, Justice Zamir, rightfully points out, the proper relationship between the administrative agency and the citizen is “a reciprocal relationship of give-and-take.” Supra para. 23. However, the “give” and the “take” are not identical. The individual gives part of his or her liberty in exchange for a social life that defends his or her liberty. My colleague correctly notes that, “As a moral and a practical matter, the citizen cannot assume that he or she may demand and receive from the agency without being obligated to provide anything.” Id. However, that does not mean that the duty of the individual and the duty of the agency are identical in content. A principal is not entitled to the loyalty of an agent unless he or she fulfills his or her duties to the agent. However, the principal's duty to the agent differs from the agent's duty to the principal. The agent owes a duty of loyalty and fairness. The principal does not. My colleague points out that, parallel to the right that citizen enjoys from the agency, the citizen bears a duty to the agency. That does not mean that the individual's duty to the agency is the same as the agency's duty to the individual. Parallel to the right that the individual enjoys from the agency, the agency bears a duty to the individual. That duty includes the duty of fairness. Parallel to the right that agency enjoys from the individual, the individual owes a duty. The right of the agency is not general, and therefore neither is the duty of the individual (beyond the duty to obey the law). The right of the agency is specific, and it changes according to the issue in question. The individual's duty, derived from that right, is also specific, and it changes according to the issue in question.

            10. Under the circumstances of this case, does the petitioner owe a duty to Respondents 1 and 2? If so, what is the scope of that duty, and what are its sources? My answer is that the petitioner indeed owes a duty of disclosure to Respondents 1 and 2. It must disclose the fact that it has a civil-law relationship with Respondent 3 (The Port Authority). In my opinion, this duty – grounded in the Regulations – includes the duty to disclose its relationship and communications with the Port Authority. Such information is relevant to the execution of a governmental task. It is only natural for the Customs Authority to seek to ensure that it does not give the authority to store goods on which customs duties have yet to be paid to someone whose possession of the land – and therefore, of the goods – is in question. In order for there to be security in protecting goods on which customs duties have yet to be paid, the protector must have stable rights in the land. For that reason, information about the civil-law relationship between the petitioner and Respondent 3 (the Port Authority) – including the information that there is a dispute between them – is material to the decision of Respondents 1 and 2 (Customs). The source of the duty of disclosure is the power of the government to grant a license to the individual (the petitioner). Granting the license must be done for the relevant reasons, based on the proper factual infrastructure. We want the government's decision to be proper and to advance the social interests that justified giving the government the power to make it. That is why the decision must be based on the proper factual infrastructure. Hence, the agency has a duty to collect the factual data, assess them as necessary, and use them to determine – within the rules of administrative evidence – the factual infrastructure relevant to making the governmental decision. While the governmental agency bears the burden of collecting the data and assessing them, the individual must assist the governmental agency in building the factual infrastructure that serves as the basis for the governmental decision of whether or not to grant the license. The harm to the individual in imposing this duty is minimal, while the advancement of the collective interest is substantial. In the final balance, it is therefore appropriate to require the individual – who is applying for the license or permit from the government – to disclose the factual data material to the factual infrastructure which will serve as the basis of the government's exercise of discretion. This is particularly true of information which the applicant knows, but the agency does not. If the individual requests a license or permit from the government, and in order to exercise its discretion, the government needs facts known to the individual, the individual bears the burden of disclosing those facts to the government, unless there is another social interest that weighs against disclosure (such as privacy). The basis for the duty of disclosure is two-fold: First, it is a particular aspect of the principle of good faith, which, through parallel reasoning from private law, applies. If two rivals negotiating a contract bear a duty of disclosure, then it is only natural that such duty applies to negotiations over a governmental license, which is intended for the good of the collective, including the individual. However, the good faith that individuals owe each other is different from the good faith that individuals owe the government. Good faith between individuals is rooted in a conflict of interests. It is good faith between “rivals.” In contrast, the good faith owed the individual to the government is based on the agency's governmental role to act for the collective good, including that of the individual requesting the license. The difference in these basic positions means that good faith differs in these two situations, despite their commonalities concerning the duty to disclose. Second, we can view the basis for the duty as part of a special administrative law that applies to the relationship between the individual and the government, having nothing to do with the principle of good faith. Either way, the duty of disclosure does not derive from a general duty of fairness. Furthermore, there is no recognized general duty of disclosure owed by the individual to the government. The duty of disclosure is always the product of the balance between the right of the individual and the needs of the collective. It exists only where the balance between these values justifies it. It does not always exist. For example, a suspect has the right to remain silent during a criminal proceeding. He or she need not disclose information to the government, if such information may be incriminating. The duty of disclosure I discuss is a duty which is limited to the kinds of issues addressed in this petition.  It applies to licensing governments through which an individual applies for a license. Under those circumstances, I accept that the individual should be required to disclose the facts he or she knows which are relevant to the exercise of governmental discretion. Of course, the duty of disclosure may exist in additional areas. We will address that question when the time comes, by balancing the conflicting values. The duty of disclosure may exist for Issue X, but not for Issue Y.

            11. Of course, we might see a general trend of raising the threshold of what is considered proper behavior of the individual toward the government. We might say that, just as Israeli society raised the threshold of morality in behavior between individuals by requiring them to act in good faith, so should it raise the threshold of morality in behavior of individuals vis à vis the government. We might try to avoid introducing competition into the relationship between the individual and the government, such that the individual could exploit any mistake by the government for his or her personal benefit. However, that trend should be approached with caution. Taken to an extreme, it could turn things topsy-turvy, making the individual the trustee of the government, thereby destroying the democratic nature of the government. We would do well to use the standards of Israeli democracy to evaluate carefully any trend toward stepping up the individual's duty of proper behavior to the government. Such trend must withstand the balance between individual liberty and the collective interest.

            12. One might ask how my approach differs from that of my colleague, Justice Zamir. After all, he also recognizes the individual's duty of disclosure to the government under the circumstances of the present case. Indeed, we do not disagree that, under the circumstances of this case, the individual bears a duty of disclosure. Our dispute concerns the source of that duty. My colleague's position is that the duty derives from a general duty of fairness owed by the individual to the government. In my opinion, there is no such general duty of fairness, because the individual is not the trustee of the government. The source of the duty of disclosure in the present case is the view that a proper exercise of governmental authority requires the individual to make appropriate disclosures to the government concerning material facts which serve as the basis for the governmental decision. In this case, our paths meet. My colleague's general duty of fairness imposes a duty of identical scope as the one I would require, for the special circumstances raised by this petition. Our agreement in this particular zone does not mean we agree on the entire front. Our paths may part ways in other circumstances.

            13. One might argue that the difference in our positions is purely semantic. Isn't the duty of disclosure that I espouse the same as my colleague's duty of fairness? After all, my colleague, Justice Zamir, thinks that the individual's duty of fairness to the government may change with the circumstances of each case. Why not adopt his view, while making sure that a general duty of fairness, of a flexible nature, always leads to the same solutions as I would reach using my approach? There are three reasons not to do so: First, the theoretical basis of a legal arrangement is significant for determining its content and boundaries. The theoretical basis determines how the arrangement develops. The theory determines the practice. In my view, the individual does not owe a general duty of fairness to the government, because such a duty would be inconsistent with the way we view the individual in society. The individual's duty to the government must be specifically defined according to the special circumstances of every case, by balancing the conflicting values. The scope of the duty and its content change according to the circumstance, and the principle of fairness – which derives from the principle of loyalty – is not the common denominator of all these duties. Second, words have a force of their own. They have a life of their own. “Fairness” is a concept that may lead to the creation of duties whose nature is inconsistent with individual liberty in a democratic state. There is some concern that, in the future, if we face the problem of whether the individual owes a particular duty to the government, the question we will ask is whether such a duty flows from the principle of fairness. The law will then try to answer that question, and the duty of fairness will determine how we address the issue. In my opinion, we need to ask a different question. The question is whether the right balance between individual liberty and the collective good allows us to recognize that duty. These two questions are different, and they should not be interchanged. Third, “fairness” – and the duties derived from it – should not be given a double-meaning, sometimes referring to duties arising from a relationship of trusteeship and sometimes referring to duties that have nothing to do with trusteeship. Justice Zamir correctly notes that:

The fact that those species bear the same name might blur the distinction. Differentiating the names can help make the difference more pronounced and preserve the distinction in substance.

Para. 20.

            This approach itself warns against using the term fairness to describe both the duty that the individual owes the government as well as the duty that the government owes the individual. The sources of these duties differ, the scope of each differs, and they develop differently. They may sometimes intersect – as is the case of the duty of disclosure in this petition – but that does not mean we should blur the differences between them.

            14. One might wonder: Can we “really” say that the individual does not owe a duty of fairness to the government? Should we recognize an individual's freedom not to be fair to the government? Of course, if fairness means not to defraud or cheat, then of course the individual owes a duty of fairness to the government (and to other individuals). However, the term fairness is not just the opposite of deception. Fairness is a normative concept. It is an objective concept. It determines standards of behavior. It is a “code” which activates various duties of proper behavior. For the government's dealings with the individual – which derive from the role of the government as a trustee – fairness means the highest standard of proper behavior. It is a standard of behavior that originates in the view that the government has no self-interest, and that it can only aspire to ensure the collective good. Private law imposes a similar (but not identical) duty only on those who owe a duty of loyalty, such as a trustee, agent, director, or guardian. That is the reason we do not say that individuals owe (objective) duties of fairness to each other. The duty of good faith (as stated in the Contract Law (General Part)) applies to relationships between individuals, not the duty of fairness. That is why I believe that the individual owes no general duty of fairness to the government.

            For these reasons, I concur with my colleague's conclusion but disagree with his reasons.

 

Justice M. Cheshin

            1. Not long after the close of the proceedings, we decided that the petition should be denied, and that is how we ultimately ruled. However, from the outset, we knew that we arrived at that conclusion from different places and in different ways. Now is the time for each of us to name those places of origin and to map our routes to our common destination.

            2. My colleagues’ opinions laid out in front of me are comprehensive. They stretch out into a broad, panoramic view of fairness and good faith, of the individual and the government, of the relationships among individuals and between individuals and the government, of friends and not-friends, of the social contract, and of brotherhood. I wish to address two of these: the duty of fairness that the individual owes the government and the status and authority of a public agency to decide disputes between individuals. I will start with the first and end with the second.

Disagreements over the Issue of Fairness

 

            3. My two colleagues, each in his own way, present two different theses that, in some senses even oppose and rip each other. My colleague, Justice Zamir, soars to heights of noble and lofty principles like fairness and good faith – the principles and what lies between and around them – seeking to create a pillar of fire and a pillar of smoke [biblical: guiding light for desert travel – trans.] by which the camp can navigate, mapping the duties of the individual to the government. Truth be told, my colleague presents fairness as a central pillar upon which the entire tent hangs. In our language – the language of jurists – he says that within the context of the reciprocal relationship between the individual and the government, in principle, the individual owes a duty of fairness to the government. My colleague carves out secondary duties from the general duty of fairness: daily duties which are outlined in the case law and in books on administrative law.

            My colleague, the President, opposes this view and, holding buckets of water, throws cold water on the flames of fairness. Unlike my colleague, Justice Zamir, who steers a course between basic principles – primarily fairness –from which he derives the individual’s duties to the government, my colleague, the President, believes that the individual’s duties to the government are “specific” and “sporadic,” and that their content changes, depending on the issue. In the opinion of my colleague, the President, the individual’s duties to the government derive from the balance that is conducted, for every issue, between opposing forces; fairness, as such, is not a primary foundation – if you like, not a necessary foundation – for the creation of these duties.

            4. As for our issue, my two colleagues are of the same mind. Our issue is the case in which the individual applies for a license from the government, and the question is this: what duty does the individual owe the government to disclose – at his or her initiative – factual information relevant to the government’s exercise of discretion? My colleague, Justice Zamir, believes that a secondary duty to disclose that information can be carved out of the duty of fairness owed by the individual to the government. The idea is that the individual’s duty to disclose information to the government is just subsidiary to the parent duty of fairness that the individual owes the government. My colleague, the President, agrees that such a duty of disclosure should be imposed. In his words, “the individual should be required to disclose the facts he or she knows that are relevant to the exercise of governmental discretion.” He also says that, “the individual must assist the governmental agency in building the factual infrastructure that serves as the basis for the governmental decision of whether or not to grant the license.” As for the source of that duty to disclose relevant information, President Barak says, “The source of the duty of disclosure in the present case is the view that a proper exercise of governmental authority requires the individual to make appropriate disclosures to the government concerning material facts which serve as the basis for the governmental decision.”

            5. My colleague, Justice Zamir, concerns himself with basic principles which are supposed to govern the relationship between the individual and the government – meaning, the fairness that the individual, in his opinion, owes the government. On the other hand, President Barak believes that the process of discovering and creating the individual’s duties to the government is the same as the process of discovering and creating any right or duty in law – for our purposes, in administrative law. These processes do not use the duty of fairness, as such, as a generative foundation. For our purposes, President Barak grounds himself in the daily plane of administrative law: the duties that the individual owes the government in the gray area of administrative law and the individual’s duty to supply the government with the information that allows it to exercise discretion properly and decide as we would expect it to decide. In any event, President Barak’s opinion is that the individual does not owe a general duty of fairness to the government.

            6. To sum up: My colleague, Justice Zamir, inserts the foundation of fairness as a primary, generative foundation in founding the duties of the individual to the government. In contrast, my colleague, President Barak, rejects this thesis of fairness. In his opinion, we should predicate the individual’s duties to the government within each system by considering the interests appropriate to each issue and studying their force (“the balancing process”).

            7. The careful reader will understand that my colleague, Justice Zamir, seeks to inject a foundation of content – a foundation of fairness – into the process of creating the individual’s duties to the government. He believes that this foundation of content should influence the development and determination of the extent of these duties. My colleague, President Barak, denies that such foundation of content exists within this context. He applies the balancing formula used throughout our legal system (for our purposes, within the field of public law) to the creation of duties that the individual owes the government.

            My colleagues would appear to take very different positions, such that their paths crossed through happenstance, to bring them to the same place. Just as someone crossing from east to west might meet someone crossing from north to south, after which the two part ways, so did my colleagues meet for a fleeting moment, shake hands in greeting, and then continue on their way, one going west and the other, south. That is how it would appear. I personally am not convinced that that is how it really is. Upon close inspection, it seems to me, that the difference between my colleagues is primarily a difference in rhetoric. That it was not blind fate that brought them to the same destination.

            8. First, I will say that each of my colleagues creates models made of different materials and belonging to different orders. My colleague, Justice Zamir, is concerned with a model of content to determine the individual’s relationship to the government.  He sees fairness as a cornerstone of the relationship between the individual and the government and builds a model for creating the individual’s duties to the government around that principle. My colleague, President Barak, disagrees with the use of fairness as a primary generative foundation for determining the individual’s duties to the government. At the same time, as an alternative model to the model of content, he presents us with a structural model. In his words, “The individual's duty to the government must be specifically defined according to the special circumstances of every case, by balancing the conflicting values. The scope of the duty and its content change according to the circumstance, and the principle of fairness – which derives from the principle of loyalty – is not the common denominator of all these duties.” Para. 13 of his opinion. My colleague, the President, does not determine the content of the individual’s duties to the government, but rather the technique for determining those [duties – trans.]. He therefore does not see himself as rejecting the possibility that a consideration of fairness, even in its broad sense, could sometimes enter the mix of considerations which determine the creation of the individual’s duties to the government. Indeed, in the Awad case, President Barak imposed, in certain cases, a “duty of good faith and fairness” on the individual to the government. Supra [30] at 492. See also para. 28 and subsequent text, infra. My colleagues, then, are not as far apart as they seem upon first glance.

            9. There is more. My colleague, President Barak, objects to the all-encompassing doctrine of fairness of my colleague, Justice Zamir. He even objects to the use of the term “fairness” as such. He therefore says, inter alia, that “words have a force of their own. They have a life of their own. ‘Fairness’ is a concept that may lead to the creation of duties whose nature is inconsistent with individual liberty in a democratic state.” Para. 13 of his opinion. Upon reading these words, I hurry to shake my colleague’s hand firmly and warmly. I have also believed – and still believe – that words can have a magical kind of power, and we should stay as far away from magic as possible.. That is one of the reasons I so strongly objected to using the phrase, “constitutional revolution” to describe the accumulated weight of the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation. In the Mizrachi Bank  case [39], I expressed this opinion about adding the words, “constitutional revolution” (on p. 567, para. 135):

I see the label, “revolution” as problematic. Isn’t it sufficient to say that there has been a ‘change’ in the path of the legal system? I say this because labels can sometimes blind us, leading us to allow our wishes to fulfill themselves. Moreover, even if we said that the Basic Laws have the potential to work very important changes in the Israeli legal system – and we have said that – the term, “constitutional revolution” means a lot more than the term, change. It not only creates over-excitement, but also, by adding force and energy to one side of the equation, it sucks away force and energy from the other side. Is that the right way for us to build a constitution?

            I fear that careless words will create an entity with a force of its own. If that is our concern, however, let us proclaim loudly and clearly that in discussing the duty of fairness that the individual owes the government, we do not intend to create a dynamic, creative, generative doctrine. We seek only to note what is appropriate and desirable in interpersonal relationships. If we take this course, we, along with everyone else, will know that we have only stated the obvious about the proper way for the individual to behave. That is not, however, what my colleague, Justice Zamir, means. He intends to create a real, live, generative principle. We must address that principle, and not something similar.

            10. Generally: My colleague, Justice Zamir, created a general principle of fairness as a principle that binds the individual in his or her dealings with the government. My colleague, President Barak, objects to creating this general principle, but he does not rule it out as a factor in determining the individual’s duties to the government in these and other legal contexts.

On the Duty of Fairness

 

            11. My colleague, Justice Zamir, demands that we impose a general duty of fairness on the individual, to the government. In his opinion, that duty derives from the social contract at the core of the existence of the state, a contract that makes the citizen and the government partners in the same act of creation: “As a moral and a practical matter, the citizen cannot assume that he or she may demand and receive from the agency without being obligated to provide anything. A citizen’s right vis à vis the agency is coupled with an obligation vis à vis the agency. This is the essence of the social contract among citizens and between citizens and the public administration. It is also the root of the existence of the state.” Para. 23 of his opinion.

            Who could disagree with these noble words of my colleague? How could we help but agree? The individual owes a duty of fairness to the government, says my colleague. Can we say that this is not the law? Can we say that the individual may not behave with fairness – or may behave without fairness – to the government? Can a court say such things? Are these the proper norms of behavior to establish for the relationship between the individual and the government? Indeed, the requirement of fairness captures the heart and lifts the spirit. Only someone apathetic to things beautiful would rise up against the duty of fairness suggested to us. We would appear to be in a sort of trap. We have no choice but to agree to my colleague’s words, or risk being thought of as troublemakers upsetting the proper order of things. And still, I find it difficult to agree.

            12. We measure the relationship between the individual and the government and administrative state using the relationship that members of society have with each other as the model. We can build a few models of human relationships to understand the reciprocal relationships among individuals within society. Hillel’s saying is the foundation, the basis: “What is hateful to you, do not do to your neighbor.” Babylonian Talmud, Order Tractate Shabbat 31, 1 [a]. Hillel goes on to say: “That is the whole Torah. The rest is commentary; go and learn.” Of course, that is not the minimum level of conduct we need present to a well-ordered society and for the proper education of the individual. For now, however, we will allow it to suffice. That is one model. We might resort to a higher level, primarily through the use of “Love your neighbor as yourself” (Leviticus 19:18 [b]), which is the second model. This level is higher than the first because, among other reasons, it does not just impose prohibitions on the individual – negative commandments – it imposes positive duties on the individual. An even higher level of conduct – the third model – stems from the principle that, “Is it not to share your bread with the hungry, and bring the homeless poor into your house; when you see the naked, to cover him, and not to hide yourself from your own flesh?” Isaiah 58:7 [c]. That is the highest degree of love of humanity and of kindness. As Micah the Prophet coined in his wonderful saying – wonderful throughout the generations – about human relationships:

He has showed you, O man, what is good;
and what does the Lord require of you
but to do justice, and to love kindness,
and to walk humbly with your God?

Micah 7:8 [d].

            “Do justice” is primarily about “what is hateful to you” and a little about “love”: mostly negative commandments, and a few positive ones. “Love kindness” is the purest form of love of humanity. If you like: love of love. This is not the place to discuss “humbly.”

13. Law’s primary objective is to order the relationships between individuals in society and to make sure that society is organized properly.  A person is a wonderfully complex creature. The relationships between individuals in society are also complex, and in some ways, they are more complex than the complexity of the individual. From among the wealth of relationships between individuals, the law cuts out a part that seems appropriate for organization and definition by the legal system, and it imposes a network of legal norms on that part.

            Among the three models presented, the law is primarily interested in the first model (the minimal model of “don’t do”): Don’t murder, don’t steal, don’t lie, whoever strikes his father or mother shall be put to death (Exodus 21:15, [e]), and whoever curses his father or mother shall be put to death (Id., verse 17). Lord Atkin discussed this point in the well-known case of Donoghue v. Stevenson (1932) [73], saying what has become a classic:

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

Id.at 580.

The law borrows from the second model, as well, but very lightly. Honor your father and mother (a positive commandment whose reach is broader than the negative commandment not to hit or curse). Remember the Sabbath day, to keep it holy (a positive commandment alongside a negative one: don’t do any work, etc.)  The third model is supposed to serve the law primarily as a source of inspiration. It is just an illustration of the statement that the law seeks to impose itself on a certain segment of human relationships while leaving other parts of those relationships alone.

14. Against the backdrop of three alternative – or partially cumulative – models, let us evaluate the duty of fairness that individuals in society may owe each other. A superficial glance shows that the duty of fairness is a duty that knows no boundaries. It exists in each of the three models, differently in each, derived from the fundamental principles at the core of each. Examine, consider, and you will know.  We will thus find, perhaps surprisingly so, that the term “fairness” – as well as the term, duty of fairness – is a kind of “framework-term,” whose content varies with the model constructing it, the world surrounding it, and the world in which it lives. “Fairness” in the first model differs from fairness in the second, and “fairness” in the second model differs from fairness in the third. “Fairness” in the second model, for example, includes the “fairness” of the first model, but the reverse is not the case.

15. To the issue of concern to us: When my colleague, Justice Zamir, said that the individual owes the government a duty of fairness, what kind of fairness did he mean?  My colleague told us only that the duty of fairness can vary from issue to issue, depending on the circumstances. But what is the content of that fairness, and which circumstances will fill the fairness with its content? What functioning order did the duty of fairness join, and which model shall we use? Perhaps it is a different model from the three we mentioned? We can’t do anything until we answer that question, which is the central issue. I said, and I will repeat: The duty of fairness is a duty that knows no boundaries – it lives and exists in law and outside law. For example, it exists in the realm of morality – and we therefore must define things precisely: Which part of that all-inclusive duty of fairness – fairness in the broad sense – is the law supposed to take under its protective wing and establish legal sanctions for violating the duty? Which part of “fairness” will the law adopt, and which part will it leave to other systems of norms?

I will give an example from another context: It is strictly forbidden for a person to shame another in public. If Rueben embarrasses Simon in public, the law will come to Simon’s aid by granting him a right in the form of the law against defamation. The law has taken this part under its protective wing. However, if Gad shames Zevulun in public, the law may not grant Zevulun a legal right, even though Gad’s deed was worse than Rueben’s. Of Gad’s deeds, we might say: “He who publicly puts his neighbor to shame has no portion in the world-to-come.” Babylonian Talmud, Tractate Baba Metzia, 59:1 [f]. We might say that, and no more. Both Rueben and Gad owed a duty of fairness to Simon and Zevulun (respectively); Both Rueben and Gad breached the duty owed; and nevertheless, Rueben is subject to the legal sanction, while Gad is given no sanction (in this world). The question for our purposes is: Which part of the all-inclusive duty of fairness should the law cloak with a legal sanction – by creating a legal duty of fairness – and which part of the all-inclusive legal duty of fairness should the law leave to other systems of norms, like the educational system, the ruling culture, discussions among members of society, and the like.

And perhaps tomorrow I will be asked: Must the individual be fair to other individuals and to the government? Does the individual owe a duty of fairness to other individuals in society and to the government? My answer to that question will be unequivocally: Yes, the individual owes a duty of fairness. That, however, is not the question which currently troubles us. The question currently before us does not just concern the duty of fairness. It concerns the legal duty of fairness that the individual owes the government. We have yet to understand the nature of that duty, its content, and its way.

16. Our discussion so far: To say that the individual owes a (legal) duty of fairness to the government – by itself – is just a label on a jug, a formal legal-conceptual framework. Until we find out the criteria for creating this “duty of loyalty,” which beverage to pour into the jug, what is the formula for creating the beverage, we have as good as said nothing. To be precise: Because we have created the label – the label and not the content – it would not seem appropriate to discuss the existence of a general “duty of fairness.” After all, it is possible that, after determining the formula for creating the duty, we will learn that we have only the tail-end of a duty or the tip of fairness, such that it would be inappropriate and incorrect to talk about a “general duty of fairness.” As such, it would be misleading if, prior to determining the scope of the duty – prior to determining the criteria for outlining its borders – we were to talk about its existence. I therefore deny – with full force – the existence of a general duty of fairness owed by an individual to the government, until we learn what that duty is, what bounds have been set for it, and of what materials it is made.

 

On the Individual, the State, and the Individual’s Duty of Fairness to the State

17. I have been asked to hold that the individual owes a general duty of fairness to the government, and that the content of that duty will be determined periodically by the case law and by analyzing this or that set of facts. According to my colleague, Justice Zamir, the duty of fairness arises from the social contract at the foundation of the state, a contract which holds that the individual and the agency are not rivals but rather partners in a joint enterprise. And just as partners in a project owe each other a general duty of fairness, so do the government and its individuals owe a reciprocal duty of fairness. The general duty of fairness that the state owes its individuals is well-established, and now my colleague suggests that we impose a duty of fairness on the individual toward the government.

18. Section 12 of the Contract Law (General Part) tells us that, “In negotiations to form a contract, a person must behave in an acceptable way and in good faith.” In the Raviv case [42], the Court had to interpret this statutory provision and its applications on private bidding (in other words, bidding not held by a public agency). The question asked was what duty of good faith is imposed on individuals in negotiations between themselves to form a contract, how should the law be interpreted, how will the bounds of that duty be outlined. In short: On which track should we put the relationship between individuals in commercial negotiations they conduct. Using the metaphor that Thomas Hobbes created, my colleague, Justice Barak, held that this relationship would not be one in which “person to person – behaves like a wolf” (Homo Homini Lupus). At the same time, we will not put this relationship on the path of “person to person – behaves like an angel” (Homo Homini Deus (vel Angelus)). My colleague suggested that the relationship between people should move along the lines of “person to person – behaves like a person” (Homo Homini – Homo). We will, of course, agree; how could we not? We will not agree to establish a norm of behavior of person to person – behaves like a wolf (really, person to person, like a wolf to a lamb; we should recall that a wolf has no better friend than his or her fellow wolf who lives together in the same pack). At the same time, it would be inappropriate to establish that person to person – behaves like an angel. Establishing this standard of behavior would not be realistic, and there is no point in setting a norm by which people will not abide. The recommended and appropriate standard of behavior is therefore that person to person – behaves like a person.

I have established, and not just by the process of elimination, the formula for the duty of fairness between people: person to person – behaves like a person. This formula, however, like the formula for fairness, merely presents us with a label on an empty jug. We are now supposed to pour a beverage into the jug, because only then will we know the content of fairness. The question is: what norm will we establish for relationships between people? How should a person behave toward another person? What standard of behavior will we require that people use toward each other? What will be the content of the good faith established by law? We have returned to our starting point, and again, we must continue to grope around in the dark.

19. Before we touch on fairness itself, let us talk a bit about those who share in the duty of fairness, about the individual and about the government. My colleague, Justice Zamir, feels a certain discomfort in holding that the individual owes a duty of fairness to the “government.” The government is always the government, and the term “government” sounds to us like a body that rules us and instructs us what to do and what not to do. The determination that the individual owes a duty of fairness to the “government” grates on my colleague’s ears. Don’t call it the government, he tells us, but rather an agency, an administrative agency, the state. As if changing the name and switching the label will change the content. Of course, I will not object to calling the government an agency or an administrative agency, but I will add that, even after changing the name, we are talking about the government, about the relationship between the individual and the government, and about the duty of fairness that we are asked to impose on the individual toward the government. By the way: the term “agency” [also “authority” – trans.] is, in some ways, harsher than the term government. As the sages teach us: “Be wary of the government [authorities – trans.], for they get friendly with a person only for their own convenience; They look like friends when it is to their benefit, but they do not stand by a person when he is in need.” Mishnah, Avot 2:3 [g]. Pinhas Kehati interprets it to mean, “When dealing with the ruling powers, do not reveal to its agents too much of your affairs, and do not rely on their promises …” See also Mishnah, Avot 1:10 [g]: “Shemaiah says, ‘Love work. Hate authority. Don’t get friendly with the government.’” Is the relevance of this advice of our sages limited to the time at which they wrote it?

            20. We could or could not agree with the statement that people owe each other a duty of fairness. In either event, we understand what is being said to us. However, when we hear that a person owes a duty of fairness to an administrative agency, we struggle to understand the words. For all that concerns a prohibition on doing certain things, we can understand imposing this duty on the individual – whether the prohibition concerns other individuals or an administrative agency. A prohibition imposed on someone, from whatever source, sort of concentrates itself on the person bound by the prohibition, and therefore it can be understood to exist in its own right. The term “fairness” is different, because it is more than just a prohibition against doing certain things. “Fairness” implies – and it should imply – not just a prohibition against doing something but rather an obligation to do something, a positive obligation to do something for another person. The term “fairness” itself implicates the relationships people have with each other. A person may or may not be fair to another person, and he or she will still be a person. In this context, what content shall we pour into the statement that the individual owes a duty of fairness to the agency, if the agency is not a person at all? How can we impose a duty of fairness on a person to someone who is not a person at all?

            21. An administrative agency – every administrative agency, and we can add all the governmental powers, meaning the state itself – is just a term, a concept, the product of our thoughts. Furthermore, an administrative agency – like the state – is not a tool, a device, an instrument, for achieving certain purposes, like the wheel in the hand of a sailor and the axe in the hand of the woodworker. The state, as such, has no life of its own. We can agree that we could not exist without the framework of the state, but that statement of reality cannot make the state into something it is not. That is true of the state, and that is true of the administrative agency.

            An administrative agency charged with giving licenses in a certain field, for example, licenses to operate a business, seems like a machine, like the machines that dispense café au lait or bottles of cold drinks. Like the machine, the administrative agency has licenses to operate a business in its stomach. Press a series of buttons – one after the other in a certain order – pay what you are required to pay (a fee), and you get what you asked for. If you do not press the right buttons, or you press them in the wrong order, you will not get what you asked for: café au lait, a bottle of a cold drink, a license to operate a business. Indeed, in this way, an authorized agency may differ from a machine, because an agency is imparted with discretion, while it is difficult to grant discretion to a machine (is it?). Perhaps we should recall that a machine – unlike an authorized agency – does not operate arbitrarily, discriminatorily, or condescendingly. In any event, just as we would find it difficult to outline a duty of fairness owed a machine, so will we find it difficult to establish a duty of fairness toward an “agency” that is anything more than a legal concept.

            Perhaps you might say: Aren’t the “agency,” the “government,” indeed bodies to which we should owe a duty of fairness? After all, they are no more than virtual creations (although they can hurt an individual). And what about those who work for the agency, who are flesh-and-blood? Why shouldn’t we say that the individual owes a duty of fairness to them? The answer to that question is that those employees of the agency are just the agents of the (conceptual) agency, who do its bidding. They have nothing but what the agency has, because they do not operate for themselves but rather for the agency. And if we found it difficult to hold that the individual should owe a duty of fairness to an “agency,” we may not create something out of nothing by identifying the employees of the agency with the agency.

            22. To remove any doubt, I will quickly clarify that we should not identify state with “homeland” (with “society,” with “people,” or with “nation”). A homeland is the birthplace of a person: it is the land in which he or she grew up and was educated, it is the landscape of his or her childhood, it is the society in which he or she lives. A homeland is our home, a homeland is our family: “Love of the home is the mother of love for the homeland.” Someone who loves the homeland is a patriot. “Homeland” is not “state.” The term homeland is intangible, and therefore we must resort to symbols: the flag, the symbol. In the not-so-distant past, a person of authority called the state flag a stick with a rag stuck to it, and I had this to say about it:

The flag of Israel is not “just an expression of a stick with a blue-and-white rag stuck to it.” The flag of Israel is me and you, he and she, they, we, and our children. Even for those who have left and will not return to us, we, all of us, we are not a rag.

HC 8507/96 Orin v. State of Israel [44] at 277.

The state is a tool and an instrument to achieve certain purposes. It is not like my extended family, the homeland. Licenses to operate a business are given by the state – not the homeland – and we should therefore be careful not to confuse unlike things.

23. I will return to our subject and note – as an opening comment – that conceptually, I find it difficult to recognize the individual’s duty of fairness toward the administrative agency. That is just the beginning of the journey, however. After trampling for a long time through the hallway, the time has come for us to put ourselves into the drawing room and examine our surroundings.

24. Unlike my colleague, Justice Zamir, I do not think that the relationship between the individual and the government is a “friendly” relationship, as though the two were friends, between whom the duty of fairness would naturally arise. On my station of embarkation for the journey – the journey to discover the duties that the individual owes the government – hangs a sign, and on the sign, written in big letters, is the word, “freedom.” My view about the status of the individual in his or her relationship with government agencies and the administration is that the individual may and is entitled to do anything (or to omit doing anything) that he or she is not prohibited from doing (or required to do), unless he or she bears a duty to do it (or not to do it).Most of the duties that the law imposes on the individual are negative duties – don’t murder, don’t steal – and that is the minimal level required for a properly-functioning society. The individual may owe some positive legal duties, but the law explicitly sets out these duties, and they are few. Examples include: the duty to serve in the military; the duty to pay taxes; parents’ duties to their children under the Legal Capacity and Guardianship Law, 1962 and the Mandatory Education Law, 1949; the duty certain people owe protected persons; the duty to prevent a crime (sec. 262 of the Penal Law, 1977), and others.

Beyond those explicit negative and positive duties, the individual owes no legal duty to the government, and in my opinion, it would not be proper to obligate him or her with additional duties. The individual has a right to do as he or she pleases, and he or she acts on his or her own account. The individual has a right, a right of the highest virtue: a right to freedom and permission which has the virtue of law (or the virtue of a basic law). Cf. HC 3872/93 Mitral Ltd. v. Prime Minister and Religious Affairs Minister [45] at 29 and subsequent text. The individual is born free in the law and remains free in the law all the days of his or her life, until it is established that he or she owes some kind of duty. Someone who abstains from prohibited acts and performs the positive duties explicitly imposed on him fulfils his or her duty in law. He or she owes nothing to no one and nothing to the government. He or she is not a saint. He or she is not a righteous person. He or she does what is required of him or her. He or she is an ordinary citizen.

In my opinion, this is the liberal-democratic station of embarkation, and I personally think that we should adopt it and cultivate it. A healthy, appropriate society does not exist without volunteer works, altruism, and assistance to “the poor and the elderly,” but these exist – for the most part – outside the framework of law. Indeed, the law does sometimes adopt a duty that can be characterized as an altruistic duty, such as: the duty to offer assistance to the victim of a traffic accident and duties incident to it (sec. 64A of the Traffic Ordinance [New Version] and Regulations 144 and 146 of the Traffic Regulations, 1961); the duty to save lives at sea (sec. 39 of the Shipping Law (Sailors), 1973); the duty to offer assistance to a public servant under certain circumstances (sec. 491 of the Penal Law). See also, CrimA 119/93 Lawrence v. State of Israel [46] at 29 and subsequent text; A. Barak, Shikul Da’at Shiputi [78] at 463-64. These, however, are exceptions to the rule.

25. That is generally the case in law, and that is the case, in my opinion, of the relationship between the individual and the government. In principle, I am not prepared to recognize the duty of an individual toward the government, whether we call such duty a duty of fairness or something else, unless that duty is explicitly or implicitly required by law. Because of the Basic Laws, once a duty is established by law, that duty is supposed to adjust to the restrictions imposed by the Basic Laws. That is all. My colleague, Justice Zamir, will forgive me, but I am hard-pressed to shake off the impression that, in his opinion, he sketches a Utopian state of fairness, a state in which the majority breathes fairness, a state in which people hurry to inquire into the welfare of each other, a state in which the majority seeks the collective good, all the time. What can we do if we don’t live in a Utopian state of this kind? And since that is the case, in my opinion, it is inappropriate to impose a duty of fairness on the individual to the government, a duty that a Utopian state could impose on its individuals.

Moreover, the individual and the government do not have equal rights. They do not have equal powers, and they are not of equal status. Nor are they friends. The government has most of the power, most of the force, most of the wealth, such that the individual – however much power, force, and wealth he or she may have – is not in the same league. The government has nothing of its own; anything it has, it holds in trust – for the good and benefit of the individual. However, the normative-legal statement that this is the status of the government vis à vis the citizen cannot take away from the phenomenon we witness on a daily, hourly basis: the individual standing in line at the government counter, and the line winds and plods forward, longer and longer. Some call this phenomenon, “bureaucracy,” and others call it something else. Whatever its name, it is all-too-familiar to us all. This is why, in the past, the courts were called to the aid of the individual facing this huge machine – they were called in the past, are called today, and will continue to be called in the future. This is the reason that the courts established the principle of the trust that the government owes the individual. For the same reason, the case law has established a duty of fairness that the government owes the individual. This principle and this duty stem from the agency’s abundant authority, its excess power, and its ability to deprive the individual of a benefit which he or she could have enjoyed, had it not been prohibited.

The duty of fairness owed by the government to the individuals in society derives from the excess power that the government wields, from the tremendous force that the government holds. The duty of fairness is designed to serve, among other means, as a check on the power and a restraint of the force. Can we say the same thing about the individual vis à vis the government? The individual, after all, is Gulliver in the land of the giants: The giants surround the feast, and Gulliver stands on the dining table, the entire tiny length of him, every bone in his body, quivering in terror. He is like a salt shaker to them, like the stub of a carrot. One simple exhalation of breath, and Gulliver is no more. I could understand imposing a “duty of fairness” on the giants, owed to Gulliver. I find it difficult to understand imposing a duty of fairness – a matching duty – on Gulliver. Duties – including the duty of fairness – are intended to restrain power, force, wealth. What power does the individual have, relative to the government?

26. Consider a license required to establish and operate a business. Originally, the individual was permitted and allowed to engage in any business or profession in order to support himself or herself and his or her family. Abel shepherded his sheep without a shepherding license; Cain worked the land without a license to plough and plant; and Tubal-Cain forged instruments of bronze and iron (Genesis, 4:22 [h]), without having obtained a business license. It was their natural right, and “every person has a natural, imparted right to engage in the job or profession he or she chooses, so long as engaging in that job or profession is not prohibited by law.” HC 1/49 Bazherno v. Police Minister [47] at 82 (S.Z. Cheshin, J.). When the legislature forbad some professions unless certain preliminary conditions were met – it made its prohibition, and we must abide by it in letter and in spirit. However, that very prohibition and the exemption from the prohibition are what create the government’s duty to the individual, the duty of fairness and the other duties similar to it in form and character. The individual’s duty to equip himself or herself with a license to engage in a certain business, as well as the government’s ability to provide the individual with that license, are what create the duty of fairness owed by the government to the individual. Despite my searching and poking around, I found no source from which we could hew a duty of fairness owed by the individual to the government. The principle is the principle of individual liberty, and this principle – by itself – does not generate a duty of fairness.

27. A final word on the duty of fairness, a duty which I am not prepared to recognize. Because the proposed duty of fairness is a duty, violating the said duty is supposed to create a legal counter-action, a sanction that will be applied against the violator for violating a duty imposed on him or her. Because the individual’s duty is owed to the government, that would mean that the government could impose a sanction against the individual, if the latter violated his or her duty. It is as though we are being asked to equip the government with a kind of penal authority against an individual who violated a duty of fairness owed the government. For example: by suspending or revoking the license.

Indeed, in addition to other obstacles that this legal structure would create for us – problems entrenched in the principle of legality and the principle of separation of powers – this path would collide with a doctrine well-established in the case law. The doctrine is that an authorized agency may not take into account, as part of its considerations, the consideration that the individual acted with unclean hands. For example, in HC 192/61 Kalo v. City of Bat Yam, the petitioner opened a butcher shop without receiving a license. When he applied for a license, the municipality responded by saying that it would not consider his application because “he opened the butcher shop without a license, taking the law into his own hands.” The Court responded by saying that the doctrine of unclean hands is a consideration that the Court may consider – the Court and not the administrative agency. The Court held that:

The municipality is different from this court.  Section 7 of the Courts Law, 1957 authorizes this court to grant a remedy, at its discretion, while the municipality must consider an application submitted to it and make a decision on the merits, irrespective of the applicant’s behavior. I do not approve of the decision of the municipality’s licensing committee not to consider the applicant’s request because he opened the store without a license. Moreover, the applicant has already been subject to criminal proceedings for that deed, and he has been convicted of violating that ordinance. A local authority must serve as an example for its citizens by stringently abiding by the law, because if it fails to do so, the citizen will follow its example. The licensing committee’s June 25, 1961 decision disregards this duty …

HC 192/61, supra [48] at 1858 (Sussman, J.). See also HC 328/60 Musa v. Interior Minister [49] at 79 (Sussman, J.).

The difference between an act (or omission) that constitutes unclean hands and a breach of the duty of fairness – if you prefer, the difference between the clean-hands requirement and the duty of fairness – is minimal. It would not be difficult for us to locate a violation of the duty of fairness within the bounds of the doctrine of unclean hands. In other words, recognizing the proposed duty of fairness would seriously erode the doctrine well-established in the case law, namely that an agency cannot consider an applicant’s lack of clean hands. This would be done without giving the Kalo [48] doctrine an opportunity to defend itself and justify its continued applicability. And if we were to examine the matter a bit more closely, we would see that the Kalo [48] doctrine clearly and appropriately expresses the principle of separation of powers and the principle of legality. Would it be right for us to give up on this expression of principles lying at the base of the legal system?

            The Individual’s Duty of Fairness to the Government As Derived from the Agency’s Authority

28. My colleague, President Barak, disagrees with my colleague, Justice Zamir, about imposing a general duty of fairness on the individual, owed to the government. In his opinion, there is no appropriate legal source for this duty of fairness, and in any event, the duty has no place in Israeli law. So far, my colleague, the President, and I are traveling in the same carriage, side by side. However, at this point, we will part company, he to travel in his carriage, and I to continue in mine.

29. According to my colleague, the President, the individual does not owe a general duty of fairness to the government, but he or she may, in the balance of rights and duties between him or her and the government, owe certain duties to the government. For our purposes, as my colleague, the President says – meaning, in a system in which an individual requests any sort of license from the government – the individual owes a duty to the government. And what is that duty? The duty is to bring to the agency’s attention the facts that the agency needs in order to appropriately and properly exercise its lawful authority. The governmental decision, my colleague says, “must be based on the proper factual infrastructure. Hence, the agency has a duty to collect the factual data, assess them as necessary, and use them to determine … the factual infrastructure relevant to making the governmental decision.” This is the source from which we learn about the individual’s duty, which is the duty to “assist the governmental agency in building the factual infrastructure that serves as the basis for the governmental decision of whether or not to grant the license.” Therefore, an individual applying for a license or permit from the government bears a duty “to disclose the factual data material to the factual infrastructure which will serve as the basis of the government's exercise of discretion.” In a slightly different formulation, “If the individual requests a license or permit from the government, and in order to exercise its discretion, the government needs facts known to the individual, the individual bears the burden of disclosing those facts to the government …” Again, “The duty of disclosure I discuss … applies to licensing regimes through which an individual applies for a license. Under those circumstances, I accept that the individual should be required to disclose the facts he or she knows which are relevant to the exercise of governmental discretion.”

We therefore find that, instead of the all-encompassing duty that my colleague, Justice Zamir, seeks to impose on the individual vis à vis the government – the general duty of fairness – within a system in which an individual seeks a license from the government, my colleague, President Barak, seeks to impose a duty to disclose “the facts he or she knows which are relevant to the exercise of governmental discretion.” Instead of the duty that my colleague, Justice Zamir establishes – a duty that emanates a whiff of social morality – my colleague, the President, makes do with an ordinary duty belonging to the ranks of day-to-day administrative law. An ordinary duty – but a duty nonetheless.

30. To these ideas, I will add my own contribution: just as I found it difficult to accept the yoke of a general duty of fairness owed by the individual to the government, so do I find it difficult to add my support to a duty to make the appropriate disclosures of facts relevant to exercising discretion. If my opinion were to hold sway, the individual would owe the government neither a general duty of fairness nor a duty to disclose relevant facts. I am not saying that an individual is released from the yoke of any duty owed the government. I do, however, say that the individual’s duties to the government are far more limited than those that my colleagues – each in his own way – seek to impose. I will discuss those duties later. For now, I will try to explain why I find it difficult to concur with President Barak on the issue of a duty to disclose the facts relevant to the exercise of discretion.

31. We read the sign hung on the embarkation point of our journey, and I will remind you that engraved upon it is the word “freedom.” “Freedom” means that the individual owes no duty to the government other than the duties that a provision of law – including of case law – imposes upon him or her, whether it is a positive or negative duty. The penal code, for example, which is filled to the brim with negative duties, constitutes negative duties which are explicitly imposed by law (however they may be formulated), and they are the minimum duties that make a society human. These duties restrict the individual’s freedom, the freedom with which we began our journey. Alongside these negative duties reside positive duties which the law imposes on the individual. Examples of these duties include the duty to serve in the military and the duty to pay taxes. Other examples are the duties that parents owe their children and those that certain individuals owe to protected persons and to helpless persons. It is superfluous to note something which everyone knows – that there are far fewer positive duties than negative duties. That is not for naught. We have decided that, in principle, negative duties burden the individual less than positive duties, meaning that negative duties invade an individual’s area of freedom less than positive duties. In other words, consistent with liberal democracy and individual rights – among other things – it is easier to impose negative duties on the individual than positive duties. We learn from this that before imposing a positive duty on an individual, we must consider and reconsider whether our decision goes too far, whether we have exceeded what is appropriate and permissible under the basic perspective accepted in our society.

Why do I say all this? Because my colleague, President Barak, seeks to impose on a license or permit applicant a positive duty to disclose details relevant to the exercise of the authority imparted to the government. And I say that before imposing this positive duty on the individual, we carefully examine if we have exhausted other ways of achieving the goal we seek to achieve, without imposing a positive duty on the individual.

32. I personally found it difficult to understand where the duty of disclosure that my colleague, President Barak, seeks to impose on a license applicant came from. We all agree, of course, that an authorized agency which has the power to give – or to refuse to give – a license to an individual bears a primary duty to assemble all the relevant information necessary to lay a factual basis for exercising its discretion. However, this duty to assemble information is imposed on the agency, not on the individual seeking to receive a license. The agency is the trustee of the public, and as a faithful trustee, it must rest on its lees until is assembles all the information relevant to the issue, because only on a solid foundation can one build a house that will not collapse. What is the basis for saying, as does my colleague, President Barak, that, “The source of the duty of disclosure in the present case is the view that a proper exercise of governmental authority requires the individual to make appropriate disclosures to the government concerning material facts which serve as the basis for the governmental decision?” What does the duty imposed on the agency tell us about the duty imposed on the individual? Aren’t these two duties, in some ways, contradictory? What is the basis for saying that the duty imposed on the government in itself breeds a duty imposed on the individual?

Another Opinion

            33. I think that just one bridge can bridge the gap between the duty imposed on the agency and the duty that has been said to be imposed on the individual. The bridge is this: in the course of fulfilling its duty to assemble information, the governmental agency may – may, and even must – ask the license applicant to hand over the facts which he or she has (and of which the agency may not know from other sources). This is the case, for example, where the written law itself – the statute or regulations – sets pre-conditions for receiving a license. In our case, the law requires an applicant for a license to operate a licensing warehouse to possess a warehouse it owns, rents, or leases. Regulation 14 and the Sixth Addendum to the Customs Regulations. Once the law sets preconditions for applying for a license, it is elementary that the government agency can require the applicant to provide reliable information regarding the existence of those preconditions (unrelated to any duty of fairness). We should recall the holding that, if the law explicitly sets certain preconditions for granting a license, and the law does not impart the agency with additional discretion, the agency may not add conditions to the ones established. HC 43/76 Amitar Company, Ltd. v. Tourism Minister [50] at 559-60; HC 208/79 Ineis v. Health Ministry General Director [51] at 304; 1 B. Bracha, Mishpat Minhali [Administrative Law] [83], n.52 on p.164. If the agency lacks the authority to add conditions to the conditions, as a matter of course, it lacks the authority to demand information about those conditions which it has no authority to set for a license applicant.

            34. Therefore: where the law explicitly sets preconditions for granting a license, the agency has the authority and may – may and even must – require a license applicant to convince it that those conditions have been met, that it disclose the information necessary to prove that those conditions have been met. Another typical case is where the written law does not explicitly set preconditions for granting a license, but we know the scope of the agency’s discretion – meaning, the authority of the agency to set the conditions that must be met for it to grant the license – through the purpose of the statute. Once we know learn and discover that the agency’s discretion depends on certain considerations, we know for ourselves that the agency is authorized to collect information about those issues in order to fulfill its role. This authority to set conditions includes the secondary authority to require a license applicant to provide the requested information (unless the applicant has a right under the law not to disclose the information, and if that is the claim, the applicant bears the burden of establishing that right), because only if the license applicant fulfills that requirement, can the agency properly perform what the law requires of it. Section 17(b) of the Interpretation Law, under which “authority to do something or to require it to be done – means the secondary authorities necessary thereto, to an acceptable extent.” Authorizing a governmental agency to grant a license – or to refuse to grant a license – includes the secondary authority to demand information from the license applicant. This secondary authority is necessary for the agency “to an acceptable extent,” to allow it to exercise its discretion properly.

            35. This is the bridge that bridges the gap between the duty imposed on a governmental agency to exercise its discretion in the best way possible and the duty imposed on a license applicant to provide information to the agency; if receiving the information from the license applicant is necessary for the government agency to exercise its discretion properly, it has the authority, and it may require the individual – via a law, regulations, or internal regulations, or on a case-by-case basis – to provide information in the area of its exercise of discretion. When asked to provide information, the individual must provide the required information, to the extent it is required and in the way it is required. However, the government bears the burden of initiating the requirement – by setting preconditions normatively or on a case-by-case basis – and the individual bears no duty other than the duty to respond to the demands placed on him or her. I personally would not agree to impose a case-law duty on the individual – as my colleagues propose – whether it is a general duty of fairness, as my colleague, Justice Zamir proposes, or a duty of the individual to provide, at his or her own initiative, information relevant to the agency’s exercise of discretion, as my colleague, President Barak, suggests.

            36. The agency is the one with the experience, as its job is to grant license of the kind discussed: in our case, licenses to operate a licensing facility. In other case: a business license. In yet another situation: a driver’s license. The daily business of a governmental agency allows it to accumulate experience and knowledge about the requirements that it should impose on license applicants including the questions it should ask them. That is how the governmental agency acquires experience – precept upon precept, precept upon precept, line upon line, line upon line [Isaiah 28:10 – trans.] – and when a license applicant approaches it, it can ask him or her questions and demand answers and information. Who are we to impose a duty on the individual – be it a general duty of fairness or a duty to provide relevant information – when the agency, in the course of the proper fulfillment of its role, knows how to ask for the information it desires?

            Moreover, because it is experienced in its field, the governmental agency knows what relevant information it needs to exercise its discretion properly. On the other hand, how will the individual know what information the agency needs – meaning, what information is relevant – if the agency does not explicitly ask him or her to provide it? Doesn’t the individual have a right to assume that information which the agency does not explicitly request is not relevant information? Is it relevant that he was convicted of beating his wife ten years prior to submitting the application? Is it relevant that she has refused to make maintenance payments to dependents? And if the individual has not been explicitly asked to give the agency information about prior convictions, why should we require him or her to volunteer information that is embarrassing to him or her? May he or she not assume that such information is not relevant, because he or she was not asked to provide it to the agency? Furthermore, the duty to disclose information would be imposed on the individual only if the agency omitted something – did not fulfill its duty properly – and did not ask the individual to provide this or that important piece of information. If the agency omitted something by not demanding a certain piece of information from the individual, why should we require the individual to “know” that such information is relevant and to provide it to the agency at his or her initiative?

            37. In our case, a precondition for granting a license to operate a licensing warehouse is that the applicant possess a warehouse that he or she owns, rents, or leases for a particular time, from day X to day Y. Sixth Addendum to the Customs Regulations. The license applicant has a duty to give the agency information about the “warehouse” he or she possesses. The regulations explicitly provide, in detail and in a way that leaves no room for doubt, that the applicant must give the agency information about his or her rights in the warehouse. We have no need for a duty of fairness or any other case-law duty imposed on the individual to provide relevant information to the agency. The license applicant’s duty is explicitly written and established in the law, and we have no need to resort to a duty from any other source.

            To draw a comparison, assume, arguendo, that the Customs Regulations did not explicitly require – as they currently do – that an applicant for a license to operate a licensing warehouse possess a licensing warehouse which he or she owns, rents, or leases. Let us further assume that the agency does not explicitly require the applicant to prove ownership or a rental right in the licensing warehouse. Can we say that the applicant must – at his or her initiative – provide the agency with information about the warehouse or be viewed as someone who violated a duty owed, because the information is relevant information? I wonder.

            38. Here, we should differentiate between the duty of disclosure that the individual owes an agency and the duty of disclosure that the individual owes another individual with whom he or she is supposed to form a contract. Under section 15 of the Contract Law (General Part), someone who forms a contract because of a mistake stemming from the other party’s misrepresentation may void the contract. For this purpose, “misrepresentation” means: “nondisclosure of facts which the other party should have disclosed by law, by custom, or under the circumstances.” We learn about the scope of this duty that the law imposes on those about to enter into a contract from the positions that parties occupy in relation to each other. The two are not just “rivals,” but they are also supposed to have equal power. A priori, one may not require and has no authority to require the other to provide material or relevant information about the contract. This is the source of the duty which the law imposes on the parties – mutually – and the sanction it imposes for failing to fulfill such duty. On the other hand, the relationship between the individual and the government is different from North to South, if only because of the position of power which the government occupies in relation to the individual. When the individual applies for a license or permit from the government, the government has the right and authority to require the individual to provide information material and relevant to the license. Once the government has been granted this power, there is no need to impose a duty on the individual vis à vis the government.

More on the Individual’s Duty of Fairness to the Government

            39. In the Awad case [30], the petitioner was a member of the Rosh Haayin Religious Council and was even chosen to be its chairman. It became clear that the Minister of Religious Affairs agreed to the petitioner’s appointment without knowing that he had previously – in the context of his tenure as the treasurer of the Religious Council – been convinced of crimes of theft. Because of a prior petition submitted to the High Court of Justice, the Minister of Religious Affairs informed the petitioner that this appointment [as chairman – trans.] was terminated, as was his appointment as a member of the Religious Council, because it became clear that approval of the appointment to the Religious Council (the petitioner was the candidate of the local council) “was granted through a mistake and/or misrepresentation, namely concealment of the fact that the petitioner had been convicted of a crime of moral turpitude and therefore is not suited to serve as a member of the Religious Council.” Id at 490. In considering the Awad [30] petition challenging the decision of the Minister of Religious Affairs, the Court held that the prior conviction of a candidate for the Religious Council is an appropriate consideration in the question of whether or not to select him as a member. The Court then considered the next question, whether the minister could “revoke his approval of the petitioner’s candidacy as submitted by the local council, based on the claim that at the time he gave his approval, the minister did not know that the petitioner had committed a crime of moral turpitude?” Id.at 492. The Court held that the minister could revoke his approval. On this issue, Justice Barak wrote:

Personal integrity, the lack of a criminal past, etc. are considerations material to this issue. The minister arrived at his stance regarding these considerations by examining a set of facts that does not comport with reality. The minister knew nothing about the petitioner’s prior conviction. Moreover, under the circumstances, the petitioner had a duty to disclose the fact of his conviction to the local council, and both the local council and the petitioner had a duty to inform the minister of it. The duty of good faith and fairness require this step to be taken. Reg. v. Home Secretary, ex p. Zamir (1980) at 950. Therefore, we are dealing with a material mistake in the minister’s approval, because of a lack of information about facts which were required to be brought to the attention of the minister. The result is that an appointment was made which seriously undermines the integrity and image of the civil service, as well as public faith in it. I think the combined weight of these facts is another reason to allow the minister to revoke his approval. In the proper balance between the public interest in the integrity of the civil service and public faith in the public administration, on the one hand, and the public interest in the uninterrupted activities of the administrative agency and the petitioner’s personal interest in the continued validity of his appointment, on the other hand, the first interest trumps.

Id.

            My colleague, Justice Zamir, uses these words to establish, inter alia, the general duty of fairness which he tries to impose on someone who applies for a license from an agency. Para. 29 of his opinion. I wish to tarry and ponder this a bit.

            40. No one would disagree that a candidate for a Religious Council must be an honest person; the question of a candidate’s integrity – if you like, his criminal past – is a primary consideration in the authorities’ discretion whether or not to choose him as a member of the Religious Council. There is further agreement that – from the public’s perspective – a candidate for the position should disclose – at the beginning of the process – his unsavory past. The question is whether the candidate bears a legal duty to disclose his criminal past to the authorities selecting him; and if such a legal duty does exist, what sanction might the candidate bear if he omits fulfilling the duty imposed on him? It seems to me that the question of the duty – “the duty of good faith and fairness” – was not relevant in the Awad case [30], and to the extent it was relevant, it remained hidden in the margins.

            Justice Barak held that the question of Awad’s criminal conviction constituted an important factor in his appointment, and that the minister’s ignorance of that criminal past constituted a serious deficiency of discretion. As he held, “we are dealing with a material mistake in the minister’s approval … (emphasis added – M.Ch.).” I will, of course, agree. However, if that is the case, of what relevance is the duty of good faith and fairness? Let us assume, for example, that because of an omission or negligence, Awad was not asked about his criminal past, and the subject came up only by coincidence. In that case, wouldn’t the minister’s approval still be tainted by a “material mistake?” And in that case, wouldn’t Awad’s appointment as a member of the Religious Council still be an appointment which, in the words of Justice Barak, “seriously undermines the integrity and image of the civil service, as well as public faith in it?” If so, how is the “duty of good faith and fairness” relevant? Another case: assume, for example, that Awad was asked about his criminal past; that he responded honestly to the questions asked; but that his answers got lost somewhere on the way to the minister. In a case like that, wouldn’t his appointment still seriously undermine the integrity of the civil service and so forth? Wouldn’t the minister’s approval under these circumstances still be tainted by a material mistake? Indeed, in this last case, we might feel personal empathy for Awad, but I doubt it would change the conclusions and results of the court decision.

            41. From this we learn, in my opinion, that the primary question does not concern the duty of fairness that Awad owed the authorities but rather the material mistake they made in exercising their discretion. Once the agency learned that it had made a material mistake in its discretion, it was allowed – in principle – to revoke its decision, even if it doesn’t always have such power. See e.g. the Awad case [30] at 492; see also the citations in para. 15 of Justice Zamir’s opinion. The primary question concerns the substantive aspects of the discretion, as Justice Barak held:

We face the following question: May the Minister of Religious Affairs revoke his approval of the petitioner’s candidacy, as proposed by the local council, with the claim that at the time he gave his approval, the minister did not know that the petitioner had committed a crime of moral turpitude? In my opinion, the answer to that question is in the affirmative.

Id. at 492.

            Indeed, a candidate’s knowing concealment and denial of negative information about his character is likely to work to his disadvantage. It seems to me, however, that the main issue is not the duty of fairness or its violation, but rather the very fact that the authorized agency made a material mistake in exercising its discretion.

            42. The main point: in any case in which an authorized agency’s decision is tainted by a material mistake, the agency may and has the authority – as a matter of principle – to revoke the decision. The question of the duty of fairness that an individual owes (or does not owe) to the government is not relevant, because the agency’s mistake was and remains material, whether or not we say the individual owed a duty of fairness.

            43. In order to ground the duty of fairness owed by an individual to the government, Justice Zamir relies on Justice Barak’s comments in the Awad case [30] (see the citation in para. 39, supra). Justice Barak, for his part – in the Awad case [30] – extrapolated from the comments of Lord Wilberforce in Reg v. Home Secretary, Ex p. Zamir (1980) (hereinafter – the Zamir case [74]). In that case, Zamir, a citizen and resident of Pakistan, applied for an entrance visa to the United Kingdom, in order to join his father, who had been living in the United Kingdom for ten years. This took place in 1972. Zamir completed an application form for a visa and described himself as a bachelor, as he indeed was (at the time, he was 15 years old). His application was granted in 1975. In 1976, while still in Pakistan, Zamir married, and one month later, he traveled to the United Kingdom on the visa he had received. At the time he entered the United Kingdom, he did not disclose to the authorities that he had married, and he was not asked about his marital status. An immigration clerk approved Zamir’s entrance into the United Kingdom for an unlimited period of time. After a while – when Zamir’s wife and son applied to join him – the truth was discovered, and the agencies sought to deport Zamir from the United Kingdom. Zamir petitioned the court, challenging the decision to deport him, and his petition was rejected by two levels of the court system. His case now reached the House of Lords. The House of Lords also rejected Zamir’s petition. In the course of his opinion, Lord Wilberforce said:

It is clear on general principles of law that deception may arise from conduct, or from conduct accompanied by silence as to a material fact. It can be no answer to a claim that such deception has occurred to say that no question was asked... I would, indeed, go further than this – a point so far left open in the Court of Appeal. In my opinion an alien seeking entry to the United Kingdom owes a positive duty of candour on all material facts which denote a change of circumstances since the issue of the entry clearance (emphasis added – M. Ch.).

Id.at 950. 

 

            In other words: Lord Wilberforce recognizes a duty of fairness owed by the individual to the government. “A positive duty of candour” means that the individual owes a duty to disclose information to the agency, even if he or she is not asked about it. My colleague, Justice Zamir, calls it the duty of fairness.

            44. However, this rule – in that formulation – did not last long. It was overruled (with the concurrence of Lord Wilberforce) four years after the Zamir case [74], in the decision made in Reg. v. Home Secretary, Ex p. Khawaja (1984) (hereinafter – the Khawaja case [75]). The facts in the the Khawaja case [75] were similar to the facts of the Zamir case [74], except that this time, the House of Lords rescinded the duty of fairness that Lord Wilberforce established in the Zamir case [74]. In the later case, the House of Lords held that a person applying for an entrance visa to the United Kingdom does not bear a duty to disclose material information (“duty of fairness”). The individual’s only duty is not to engage in fraud or deception. Regarding the Zamir case [74] (which was the law in the the Khawaja case [75]), the House of Lords held that Zamir’s behavior, in fact, rose to the level of deception (because in entering the United Kingdom, he implicitly presented himself as a bachelor, when he was in fact married). Lord Fraser says in his opinion (with which the other judges concurred) that Lord Wilberforce’s comments (cited above) in the Zamir case were dicta. He went on to hold that:

At the time when his [Lord Wilberforce’s – M. Ch.] speech was delivered I agreed with all of it ... but on further reflection, in the light of the arguments in the present appeal, has convinced me that it would be wrong to construe the Immigration Act 1971 as if it imposed on persons applying for leave to enter a duty of candour approximating to uberrima fides. But, of course, deception may arise from silence as to a material fact in some circumstances; for example, the silence of the appellant Khawaja about the fact of his marriage to Mrs. Butt and the fact that she had accompanied him on the flight to Manchester were, in my view, capable of constituting deception, even if he had not told any direct lies to the immigration officer.

Id. at 97.

            Lord Wilberforce himself agreed (Id.at 99) that his comments in the Zamir case [74] were dicta, and that the case in question had been a typical case of deceit (by Zamir). The other judges agreed with Lord Fraser. See Lord Bridge’s opinion at 118-19, 126; Lord Scarman’s opinion at 107, 108. Lord Scarman also expresses reservations about Lord Wilberforce’s comments in the Zamir case [74], and goes on to say the following: All agree that an applicant to enter the United Kingdom bears a duty to answer the questions he or she is asked honestly and to provide the information requested. He or she bears no additional duties. The applicant does not know which facts are material. The immigration clerk is the one who knows which facts are material to his or her decision, and therefore the individual should not bear a duty to provide material facts. Lord Scarman writes:

It is certainly an entrant’s duty to answer truthfully the questions put to him and to provide such information as is required of him... But the Act goes no further. He may, or may not, know what facts are material. The immigration officer does, or ought to, know the matters relevant to the decision he has to make. Immigration control is, no doubt, an important safeguard for our society... To allow officers to rely on an entrant honouring a duty of positive candour, by which is meant a duty to volunteer relevant information, would seem perhaps a disingenuous approach to the administration of control... The Immigration Act does impose a duty not to deceive the immigration officer. It makes no express provision for any higher or more comprehensive duty: nor is it possible, in my view, to imply any such duty. Accordingly I reject the view that there is a duty of positive candour imposed by the immigration laws and that mere non-disclosure by an entrant of material facts in the absence of fraud is a breach of the immigration laws.

Id. at 107-08.

            The English law perspective is clearly that the individual does not owe a “duty of fairness” to the government, and therefore, he or she does not owe a duty to disclose information. This is the case where the individual does not engage in an act of fraud and deceit.

            45. A note: Even though I express reservations about Lord Wilberforce’s comments in the Zamir case [74] regarding the duty the individual owes the government, I liked the comment he made in the Khawaja case [75] regarding his comments in the Zamir case [74]. In his opinion in the Khawaja case [75], Lord Wilberforce said that his comments in the Zamir case [74] about “a positive duty of candour” owed by the individual to the government were not necessary to reach the decision, because that case was “a case of clear deception.” He went on to say that:

I ventured the opinion that a system of consideration of individual cases for the privilege of admission to this country can only work humanely and efficiently on a basis of candour and good faith on the part of those seeking entry. If here I trespassed on to the ground of moral judgment, I am unrepentant.

Id. at 99.

            That is what we said in another place: there is a legal “duty of fairness” and there is a “duty of fairness” belonging to social morality, and the two are not the same. Lord Wilberforce sought to take a “duty of fairness” from the institution of social morality and bring it to the order of law. His intention was good – we all agree – but establishing the norm as he suggested would have the legal system adopt a mode of proper behavior that is best left to other normative orders.

            Lord Wilberforce concludes his comments with a statement the likes of which we are not accustomed to hearing in judgments of the House of Lords (or in judgments of other courts). If, in founding a duty of fairness in the Zamir case [74], he says – the same duty of fairness that the individual owes the government – I trespassed into the area of moral adjudication, I do not regret my words. Lord Wilberforce’s speech is among the noblest of any made in the United Kingdom at that time.

            By the way: There is reason to think that the duty of fairness that Lord Wilberforce discusses in the Zamir case [74] was not presented as an all-encompassing doctrine of law but rather as a duty limited to the subject of immigration. He alludes to that in his comments in the Zamir case [74], in which he presents immigrants as those requesting a privilege, meaning those who have a lower-ranked right. Id. at 950 (In Israel, the law is that someone who is not a citizen or an immigrant under the Law of Return, 1950, does not have a right to enter or remain in Israel except by permission. See e.g. HC 758/88 Kendel v. Interior Minister [52] at 520; HC 740/87 Bentali v. Interior Minister [53]; and citations therein). As a fundamental rule, the state does not owe a duty to foreigners seeking to settle in its territory. And if, in an immigrant’s first step on the territory of the homeland that adopted him or her, he or she tries to trick the authorities, we can understand – if not necessarily justify – the view that in doing so, the applicant forfeits his or her right to immigrate.

            46. My opinion, as noted, is that the individual does not owe a duty of fairness to the government. In other words, for our case, the individual need not disclose, at his or her initiative, material information that the agency needs to exercise its authority. Of course, that does not mean that the individual owes no duty whatsoever to the agency. It means only that such duty is limited to the duty not to deceive, to lie, to cheat, to mislead, to spin a web of lies about the agency. As it is written, “You shall not wrong one another, but you shall fear your God …” Leviticus 25:17 [b]. It goes without saying that I am referring not only to active deceit – such as when the individual gives the agency false information – but also to implied deceit, through silence or behavior. This was the case of the Pakistani citizen, Zamir, who in entering the United Kingdom, implicitly presented himself as single, knowing full well that his entrance was permitted under an entrance visa in which he presented himself as a single.

            The same is true of our case: the petitioner knew full well about the precondition it had to meet, namely that it possess the warehouse for which it sought a license as an owner or through a rental contract. From the outset, it was required to produce certain documents, including “a contract of rental or lease for the additional area.” Despite that requirement, the petitioner sent the Customs Authority documents that did not give it – as it knew – a right to rent or lease. The petitioner knew those documents did not meet the precondition required of it. The fact that the customs agents did not properly check what they were supposed to check and did not demand what they were supposed to demand, cannot absolve the petitioner of responsibility for the serious deed it did. As a matter of fact, the petitioner spun a web of lies about the Customs Authority, breaching the duty it owed the agency. When the agency therefore sought to revoke the license, the petitioner could not deny the act of misrepresentation it committed, and in any event, it could not raise a claim worth hearing. A license issued through an act of deception by the grantee is a license flawed from inception, and the necessary conclusion is that the agency had a right to revoke the license. There are exceptions to the rule, but these would be mandated by the special circumstances of a particular case. See e.g. HC 135/71 [25]. The main point of our case is that the petitioner complicated things for itself not just by failing to disclose information, meaning by breaching the duty of fairness that it allegedly owed the Customs Authority, but also by intentionally misleading it. The Regulations imposed a serious of preconditions which needed to be met before the petitioner could receive a license for a licensing facility; not only did the petitioner fail to meet those conditions, but it intentionally misled the agency about their fulfillment, exacerbating its sin.

            47. Thus far, we have discussed the duty of fairness. I now want to move on to the second issue that I wish to address, and it is the issue of a public agency’s authority to adjudicate a dispute between individuals.

On the Status of an Administrative Agency in a Dispute Between Individuals

            48. What is the status, and what is the authority, of an administrative agency to adjudicate – directly or indirectly – a dispute between individuals? An administrative authority is born and conceived in public law, its formation is a formation of public law, it breathes the air of public law, its gait is the gait of public law. Knowing all this, I will ask: When an administrative authority is called to address an issue within its authority, must it limit its considerations to public law considerations, or can we say, perhaps, that it may consider considerations from the field of private law? And if we take this latter path and say that the administrative agency may consider considerations from the field of private law, does this statement conceal a subsidiary statement that the administrative agency may and has the authority – as a derivative of its exercise of power– to adjudicate disputes between individuals?

            49. My colleague, Justice Zamir, tells us that, “it is an old precedent” that an agency authorized to grant a license is supposed to limit itself to considerations from the field of public law, and to take care not to cross into considerations from the field of private law. At first, I thought that the descriptive “old” refers to a dignified rule, like a fine wine which improves as it ages. However, upon further reading, I realized that my colleague was actually referring to the opposite. “Old” meant obsolete. That realization kept me up at night.

            50. We will never, never change a precedent nor apply a precedent without knowing where it comes from – who were its mother and father, in what environment it was born and grew up – and where it is headed. Know from where you come and to where you go. Let us recall that, if we only knew the force motivating precedent and law, we would know their boundaries and their limitations. Regarding precedent (but not law), we will add: cessante ratione legis cessat lex ipsa. When the reason of the precedent ceases, the precedent itself ceases. What is the precedent in our case, and what is the force urging it along its way? According to my colleague, what was the precedent in our case, and what was the force urging it forward, at the time?

            51. Personally, I have never encountered an all-encompassing rule that an administrative agency many not take into account, as part of its quorum of considerations, considerations from the field of private law. Reuben, a café owner, asks for permission to hire a band that will play and make his guests’ stay more pleasant. Can anyone say that the municipality may not clarify how much the playing will intrude upon the neighbors’ peace and quiet? Would we bar the municipality from considering this factor of the neighbors’ quality of life? Would we tell the municipality – and the neighbors – that the subject of the nuisance is a subject “from the field of private law” which the agency therefore must ignore, referring the irate neighbors to a civil court?  We have never encountered a case-law rule like this, if only because it has never been established. Indeed, a license that a municipality gives to hire a band in a café does not include a license to permit playing that rises to the level of nuisance. CA 186/52 Jerusalem “Eden” Hotel v. Dr. Gerzon [54] at 1132-33. This rule is self-evident, because a municipality does not have the legal authority to permit a nuisance. We would not hold that a municipality, at the outset, may not include, in its quorum of considerations, the possibility that the band’s playing will rise to the level of a nuisance. The case law has not held as such, and in my humble opinion, it should not hold as such. I would not know for what purpose a rule like this – were it established – would be designed, or what social or other objective it would serve. On the contrary: a rule like this, if established, would place the burden on the neighbors, and in the overall social balance, this burden is inappropriate and unjustified. This is true of a license to hire a band in a café, and it is true of any other administrative act. The rule is not – nor was it – that an administrative agency may not include, in its quorum of considerations, considerations from the field of private law simply because they are from the field of private law.

            By the way, “suitable environmental quality and the prevention of nuisances and hazards” is, today, one of the declared purposes of the Business Licensing Law, 1968 (sec. 1(a)(1)). The authorized agency therefore may – indeed, must – consider the issue of nuisance. Even if that were not part of the law – in the absence of an explicit prohibition – the agency may, and even must, consider the issue of a nuisance to the neighbors.  

            52. Similar things have been said about the traditional distinction between private and public law. We are told that times have changed, and that today – unlike in the past – the distinction between private and public law is not so clear and rigid. In the end, we are told, private and public law are one – they frequent the same places, and a natural process of osmosis takes place between them: principles and doctrines from one area penetrate and seep into the other, and on chance occasions, we discover that a rule from one area has made its way into the other. This integration of fields, we hear, breeds “hybrid creatures” – a kind of amphibian – and these creatures, at least some of them, take their orders from private and public law.

            I confess: These statements, and others like them – although I, too, have written them – have troubled me in the past, and they continue to trouble me today. Indeed, regarding the division of jurisdiction between the High Court of Justice and the civil courts, the legislature has forced us to divide the law into two. See e.g. HC 1921/94 Sukar v. Jerusalem District Committee on Construction, Residence, and Industry [55]. Regarding the substantive law, however, I see no difference between our era and bygone days. As a matter of fact, when was there a “clear and rigid” distinction between public and private law? The opposite is true: English common law jurists always took pride in the fact that in Britain, the common law ruled, and that administrative law is just an extension of the common law.

            53. Having said all that we have said, we cannot, of course, ignore the historic legal development, the development which presented us with the legal system as we have it today. The legal system is divided into families, and this division is designed to affect the content of the norms themselves. This is true of the family of contract law, the family of tort law, the family of property law, the family of administrative law, and other legal families. It is superfluous to note that, throughout the years, there have been intermarriages – an inevitable phenomenon within the areas of a single legal system – and “hybrid creatures” have been born. We cannot avoid determining, however, that this historic development has had a prominent effect on the formation of the legal system as we know it today.

            54. The division of the legal system into private and public law is similar – similar but not identical – to the internal division of private law into different branches of law. This is the case, for example, of the division between contract law and tort law. These two kinds of legal classifications, while not identical, bear a resemblance to each other. This is certainly true of the technique of division. I said as much in another context:

Classification imposes order on the primordial rules of law. The legal system's basic principles determine the categories of classification [… ed.] The doctrines applicable to the rules associated into one category (capacity, consideration, mitigating damages, etc.) derive from the classification, and the classification derives from them. At particular points in time, the classification is made based on equality of the doctrines that apply to particular rules of law. Once the classification is made, and once the doctrine has been created and applied to a particular section of law, the doctrine rules over those associated rules of law, because they are located in a single section of law. That is true, making the necessary adjustments, when a specific rule of law is born, which is included in a particular section of law (whether explicitly or via its “interpretation”), because it will then be ruled by that section’s doctrines. This, of course, is merely a presumption (sometimes, it is not the case). The different points of departure of a classification may bring about a change in the legal rule. The point of departure may be chosen, a priori or a postiari, and in the latter case, great importance attaches to the historical events that had a hand in shaping the legal system.

M. Cheshin, Mitaltilin Bidin Hanizikin [Chattel in Torts] [84], n. 2 on p. 161.

In Israeli law, because of the jurisdictional divide between the courts, the distinction between public and private law became particularly sharp. The general view was that the High Court of Justice specializes in public law, while the civil court specializes in private law. If you add a few doctrines that have always governed in the High Court of Justice (clean-hands, delay, taking the law into one’s own hands, a done deed, intervention “for reasons of justice,” etc.), you will understand why the classification between public and private law has been so deeply rooted. However, it is nearly certain that, if public law petitions were brought before the ordinary civil court, the division of law between private and public law would be similar – though not identical – to the division of the law between contract law and torts.

55. Let us return to the matter in question. As I noted above, I know of no doctrine prohibiting an administrative agency from benefiting from private law considerations, simply because they belong to private law. Does that mean that every administrative agency may consider every private law consideration for every issue it addresses? Of course that is not the law. In the Alspector case [1], the local council refused to give the petitioner – a tenant – a license to open a convenience store in his apartment. The reason for the refusal: the landlord did not agree to turn a room in the apartment into a store. The court held that this consideration by the local council was illegitimate, as Justice Berinson’s opinion stated:

We fail to see the validity of that explanation … while in opening a store in his apartment without the landlord’s approval, the applicant may violate his lease, if that is the case, the landlord may come and fight his fight with the applicant. None of that however, is the municipality’s concern, and it cannot serve as the basis for refusing to grant the license.

Id. at 664-65.

How are we to understand Justice Berinson’s comments? In my opinion, Justice Berinson did not intend to establish a doctrine that private law considerations, as such, are illegitimate considerations for an administrative agency to use. For if he intended to make that ruling, we would protest: what is the source of that doctrine, and what is the justification for it? The Court, however, did not make that ruling. The Court’s holding did not concern private law considerations as such, but rather an attempt by the administrative agency to decide a dispute that arose between landlord and tenant by refusing to give the tenant a license. The Court thought in the following way: it would seem as though the petitioner is entitled to a license to open a store, because he fulfilled all the preconditions established by law for opening a store. So? The landlord claims that operating the store would violate the lease he signed with the tenant? The landlord is welcome to come and sue in the court with the proper jurisdiction to hear the complaint. The agency is not authorized to decide the dispute between the parties, and once the petitioner has fulfilled all the preconditions necessary to open a store, it must approve his application.

56. We therefore find the following: at the very least, in the absence of explicit statutory authorization, it seems that an administrative agency may not adjudicate civil disputes between individuals. It would seem as though an administrative agency may not take a dispute between individuals into account as a consideration in its decision over whether or not to approve an application. The consideration of a dispute between the applicant and a third party is external to the agency’s decision-making process. We are not talking about invalidating a consideration because it belongs to private law. The rule is the following: an administrative agency may not take into account considerations which the statute does not permit it to consider, whether they originate in private or public law. And one of the forbidden considerations is that the agency may not adjudicate a dispute that has arisen between the petitioner and another individual.

To be precise: there is no doubt that, once the preconditions necessary to receive a license have been filled, the administrative agency must approve the application submitted. There is nothing remarkable about that, and what we just said falls under the category of idem per idem. The novelty is in the statement that adjudicating disputes between individuals would seem to be outside the administrative agency’s scope of activity, and that the consideration of a dispute of the kind discussed above is a consideration that will be summarily rejected.

            57. This rule – forbidding the administrative agency from deciding – even indirectly – disputes between individuals, has been accepted in the case law as a doctrine, and I have never found a reservation to it. See e.g. HC 9/49 [2]; HC 35/48 M. Breslov & Partners Ltd. v. Trade and Industry Minister [56]; HC 56/53, supra [3]; HC 132/57 First v. City of Lod [57]; HC 280/60 “Avik” Ltd. v. Voluntary Authority on Importation of Pharmaceutical Preparations (the Avik case [58]); HC 115/61 Yakiri v. City of Ramat Gan [59]; HC 27/62 Alt v. Tel Aviv-Jaffa Local Town Building and Planning Committee (the Alt case [60]); HC 278/62 Sarolovitch v. City of Jerusalem (the Sarolovitch case [61]); HC 329/64 Guri v. Bnei Brak Local Town Building and Planning Committee at 370.

 

            58. One extension of this rule is that the police may not eject someone from land on grounds of incursion unless the incursion is "recent." If the incursion is not "recent," the police must refer the complainant to the court authorized to grant a remedy. See e.g. HC 109/70 Orthodox Coptic Metropolitan in Jerusalem v. Police Minister (the Coptic Metropolitan case [63]) at 240-44 (Agranat, J.); HC 37/49 Goldstein v. Jaffa Guardian of Abandoned Property [64] at 726 (Agranat, J.). By the way, the same doctrine governs other areas of law, like a registrar clerk's duty to record the documented information given him or her into the Population Registry (like the fact of marriage), without the authority to investigate the legal validity of that information (for example: whether or not the marriage is valid). See HC 143/62 Schlesinger v. Interior Minister [65]; HC 58/68 Shalit On His Own Behalf and On Behalf of His Children v. Interior Minister [66].

 

            59. What is the logic of the rule? What motivates and maintains it all these years? In my opinion, the answer lies in our legal system's structural need to designate and to allocate the primary functions and areas of activity to each of the three branches of government. To express it in the negative: the structural need of our legal system and system of government – as a matter of principle – to remove the primary powers designated for one branch from the domain of the other two. When we place the three branches side-by-side, we know for certain that the judicial branch is designed to judge. As section 1(a) of the Basic Law: The Judiciary says, "These are the courts given the authority to judge …" The authority of the judiciary is to judge, meaning to decide disputes. See HC 5364/94 Welner v. Chair of Israeli Labor Party [67] at 786 (Barak, Dep. Pres.). Unlike the judiciary, the primary function of the government and the public administration is to execute. As section 1 of the Basic Law: The Government says, "The government is the executive branch of the state." For our purposes, we can say that the structural principle in our system is the need to designate the power to judge – the power to decide disputes – to the judiciary, and to deprive the executive branch of that power. Thus, for example, in the Alspector case [1] and in subsequent related cases, had we recognized the power of the administrative branch to refuse to grant a license to an applicant because a third party claimed – claimed, and may even have proven by documentation – that receipt of the license and operation of the business would lead to his right being violated, we would have augmented the powers of the administrative branch, equipping it with the authority to judge. Because we are bound by the presumption that, in the absence of explicit and unambiguous authorization, the courts – and only the courts – will judge, as a matter of course, we prohibit the administrative branch from making itself judge in a dispute outside its domain.

           

            For those who insist on precision, I will add that I am aware of the phenomenon that the borders separating the powers are not hermetic, and that a system of separation of powers is based on "checks and balances." I will recall, however, that the foundation is the principle of separation, and that those very "checks and balances" are built on that same foundation.

 

            60. I will further note that in the U.S. legal system, a similar question arises concerning Congress's authority to pass legislation imparting the executive branch with judicial powers. The question is whether such grant of authority undermines constitutional principles, according to which the power to judge rests with the court system. The development of the case law on this issue is a fascinating story in itself, but I will not expand on it here. See e.g. L.H. Tribe, Constitutional Choices [85]; L.H. Tribe, American Constitutional Law [86];  Commodity Futures Trading Comm’n v. Schor (1986) [70]; Thomas v. Union Carbide Agric. Products Co.[71].

 

            We negate the authority of administrative and governmental agencies to adjudicate and issue rulings – even temporarily – in a dispute between individuals for the principled reason of separation of powers (using “checks and balances”), and the main point of doing so is to prevent one branch from encroaching on the domain of another. That is the way to preserve the distinct function of the judiciary to judge, guaranteeing the right of litigants to a just trial conducted by an independent body. There is a supplemental reason – a daily reason – and it is that the executive branch lacks the appropriate work tools to issue rulings and adjudicate disputes. Each of the three branches has adapted to its environment and role – it has specialized in its area of activity and created work tools to execute its function to the best of its ability.  Just as the court lacks the appropriate tools to engage in execution, so does the executive branch lack the appropriate tools to judge. The (surviving) plants and animals have adapted to their environments, as have the three branches of government. The best way to adjudicate disputes is the court’s way, and we therefore prevent administrative and governmental agencies from adjudicating disputes. They were not trained for it, and they are not the ones who bear the burden of doing justice for individuals who have quarreled. As Justice Berinson wrote in the Alt case [60], regarding a local planning and construction committee:

 

The local committee – like the regional committee – is not a legal body for determining the rights of conflicting parties. Neither is capable of deciding factual and legal questions concerning the mutual rights and duties of the asset’s owners and the actual or potential harm they would suffer. Their considerations are considerations of town planning and construction, and no more. The possibility that the rights of another will be infringed by construction done pursuant to a license issued by the local committee is not for the respondents to address, unless the opposing party alleging the infringement of rights has direct legal standing in the subject of the hearing …”

Id. at 1334.

 

See also HC 305/82 Y. Mor v. Central District Regional Planning and Construction Committee [68] at 148-49 (Or, J.).

 

            62. My colleague, Justice Zamir, seeks to prove that private law considerations can affect the decision of an administrative agency, and that there is “nothing wrong with that.” Along those lines, he writes:

 

For example, is it illegitimate for a municipality to refuse to grant a license to operate a business, or for a planning and building committee to refuse to grant a license to erect a building, when it is clear that the license applicant has no rights to the land of which he or she has taken possession (emphasis added – M.Ch.)?

 

Later, my colleague addresses the subject of the petitioner, saying that “under the Regulations, the Customs Authority need not, and may not even be permitted, to give a license to a trespasser.”

 

63. Now I will say my opinion. I do not disagree with my colleague that private law considerations may enter into a governmental or administrative agency’s quorum of considerations. That is my position, too. I personally think that statement, to some extent, amounts to bringing apples to an orchard. Not only is there nothing wrong in it, but it may bring about a lot of good. I agree with my colleague concerning the example he cites, namely that where it is unambiguously clear that an applicant’s request is based on an obstruction of justice, the authorized agency may – may, and perhaps even must – reject the application. However, as a matter of methodology, we cannot, from this example, deduce the rule that my colleague seeks to deduce. The reason is simple: the example is an extreme one, and it wouldn’t be right to learn the median from the extreme.

 

Our sages teach us: “Fools cannot serve as an example.” Tractate Shabbat 104:2 [a]. The reason is self-evident: fools act differently than those who are not fools. Their thought processes are not like those of an ordinary person; they do things that ordinary people would not do. We therefore do not deduce examples from either their thought processes or from their acts and omissions, and we do not analogize from their behavior to the general behavior of people. Just as we do not draw generalizations from fools, so do we not draw generalizations from extreme events. An extreme, by nature, has no choice but to carry the mental or emotional baggage characteristic of an extreme. In trying to draw analogies from extreme to median, therefore, we are likely to be led astray by that same baggage which is relevant – perhaps even essential – to the extreme, but nonexistent in the median, because it is the median. The extreme is graced with the qualities of an extreme, its unique value is the value of an extreme, and the qualities of the median are not necessarily the qualities of the extreme. For the matter of our concern, it is interesting to note that the rule about a “recent” incursion (supra para. 58) is explicitly founded the extremity of the case, and the rule is therefore limited to that same extreme case. As Justice Agranat held in the Coptic Metropolitan case [63]:

 

The duty of the police to come to the aid of a person in the above situation and to help him or her extract the asset from the one who has seized it depends on two conditions, both of which must be met: (a) the request for police assistance is made at the time the incursion is still “recent”; (b) it is clear to the police that there is no doubt and no question about the fact of incursion without permission.

Id. at 240.

 

            Only in cases of a disturbance of the peace – as demonstrated by Justice Agranat’s comments – may (and even must) the police intervene in a dispute between individuals. And if the disturbance of the peace is not immediate or the fact of incursion is in doubt, the police may not intervene in a dispute between individuals. Justice Agranat made the same point, with the necessary adjustments, in the Avik case [54], supra, as did Justice Landau in the Sarolovitch case [61], p. 514, and it is applicable here, too.

 

            64. Finally: So far, we have discussed the principle of negating the authority of the governmental and administrative agencies to intervene in a civil dispute between individuals. The substantive authority of the agencies, on the other hand, depends on the law for the issue in question. The law sets the framework for the agency’s authority, which in turn determines the range in which it may operate and exercise discretion. The Alt case [60], for example, made that holding, distinguishing a prior ruling on the same issue (HC 107/59 Mei-Dan v. Tel-Aviv-Jaffa Local Planning and Construction Committee (the Mei-Dan case [69]) at 805). In the Mei-Dan case [69], because the law explicitly granted standing to the owner of the asset, the agency was permitted to include, within its quorum of considerations, “disputes” between the owner of the asset and its possessor. In the Alt case [60], on the other hand, the law, as interpreted by the Court, did not grant standing to the owner of the asset, and the Court therefore held that such disputes were outside the agency’s field.

 

            65. Returning the case at bar: We began our journey with section 70(b) of the Customs Ordinance [new version], according to which, “In the Regulations, the government may establish the conditions under which warehouse licenses will be granted …” I will discuss the broad consensus which the government enjoys to issue regulations concerning licensing warehouses, thus paving the road for understanding how to treat the Regulations. In addressing the Customs Regulations, we find (in Regulation 14(b)) that a license application “will be according to the formulation in the Sixth Addendum,” and the Sixth Addendum in effect establishes the preconditions which a person must fulfill in order to be awarded a license for the warehouse. We are primarily interested in Part 3 of the Sixth Addendum, according to which the license applicant must make, inter alia, the following declarations:

 

We declare that we own the warehouse, and that it is recorded in the Land Registry under the documentation Block number … Parcel … in our possession via a rental or lease contract with … for a period of … years, commencing on … and ending on … Attached is a scheme of the warehouse and markings of the areas of the requested warehouse, approved by Engineer … the address of the warehouse: …

 

            This tells us that the applicant must be the owner, renter, or lessee of the warehouse, and the applicant must prove as much to the Customs Authority. These conditions are reasonable and appropriate. A licensing warehouse is an extension of the Customs Authority itself, in all its dignity, because it stores goods on which customs have not been paid. This is the reason for the requirement of ownership, rental, or lease – a requirement declaring that the applicant possesses the warehouse by right.

 

            Should we understand from this that the Customs Authority can investigate an applicant’s right, as a court would? Indeed, the question of the applicant’s right in the warehouse is a relevant question. It would be wrong to grant a license – more precisely, to interpret the law as though it ordered the granting of a license – to a blatant trespasser or someone whose right in the warehouse is eroded on all sides. However, how deep may the Customs Authority go to clarify the applicant’s right? Do the Regulations mean that the applicant must prove his or her right in the asset beyond a reasonable doubt? By a preponderance of the evidence? Assume, for example, that Gad possesses a warehouse by virtue of a rental contract, but Naftali, the warehouse owner, claims that Gad violated the rental contract; that the contract is therefore terminated; and that Gad must vacate the warehouse immediately. May the agency refuse the application, based on the fact that Gad has not proven his right in the warehouse? Let us further assume that Naftali filed an eviction action against Gad, and that the action is pending at the time the application is submitted to the Authority. May the Authority refuse to grant the application for this reason alone?

 

            66. In our case, there is no dispute that the petitioner possesses and exercises control over the area, as the holder of a right should possess and exercise control over a licensing warehouse. As for the petitioner’s right to possess and exercise control over the area, we cannot say for certain that it is a blatant trespasser. Moreover, for now (even if that was not the case at the outset), the petitioner has, at the very least, preliminary evidence regarding its right to possess the area, in the form of the map that was exchanged between the petitioner[ ] [trans.] and the Port and Train Authority (PTA) marked with the words, “storage area.” Against this background, I will insist and ask: Did the Customs Authority have a right not to renew the petitioner’s license, a license that it itself issued to the petitioner? In other words, I agree that, at the outset, the Customs Authority could have refused to grant the petitioner’s request, because the petitioner did not prove its rights in the licensing warehouse. However, considering what transpired since the petitioner received the license, and considering our holding today, that the question is the renewal of the license, and not the issuance of a new license – couldn’t one claim that, as of today, for purposes of renewing the license, things have changed to the benefit of the petitioner? Furthermore, since we know that the PTA has sued the petitioner to vacate the area, and the suit is pending in the authorized court, doesn’t the Customs Authority’s decision not to renew the petitioner’s license constitute intervention in a dispute between the petitioner and the PTA? Can’t we add that we are witnessing not mere intervention in a civil dispute but rather an adjudication of that dispute (even temporarily)? I will go further: I personally found it difficult to avoid the impression that the Customs Authority was called to the aid of its good friend – the PTA – and that its failure to renew the license was intended to adjudicate, even temporarily, the civil dispute that arose between the petitioner and the PTA.  Indeed, the Customs Authority did not explain to us – it did not even try to explain – which state interests would likely suffer harm if the petitioner’s license were renewed, even just until the court ruled on the eviction action.

 

            6[7 – trans.]. I have explained my serious trepidations – from this angle – in joining the camp of my colleague, Justice Zamir. And if I decided, for now, to drag myself into my colleague’s camp, it is only because I couldn’t say that the Custom Authority’s considerations were flawed – or flawed enough – such that a court should intervene in its decision. Had the issue been a basic right of citizens and residents, I would hold otherwise. I imagine that my colleague, too, would reach a different holding.  However, the issue is not a basic right of citizens and residents but rather a statutory right that a person is requesting. The petitioner is asking to be the trustee of the Customs Authority, to be permitted to hold goods in the warehouse in trust for the Customs Authority. Where a person asks to be recognized as a trustee, asks to be permitted to stop by anytime as an insider in the Customs Authority’s house, I can’t say that it is inappropriate to undertake a meticulous investigation as to whether the preconditions have been met. A similar – but not identical – thing may be said about those immigrants who sought to adopt the United Kingdom as their homeland. Supra para. 45. “Draw me after you – let us make haste” [Song of Solomon 1:4 – trans.]. I was drawn, and I made haste after my colleague.

 

            6[8 – trans.]. The end: At the relevant time, I concurred that the petition should be denied. My concurrence remains as is.

 

 

 

The petition is therefore denied. The petitioner will pay court expenses in the sum of 25,000 NIS to Respondents 1-2 and 25,000 NIS to Respondent 3.

 

 

February 4, 1998.

            Crim.A. 156/63

 

           

ATTORNEY-GENERAL

v.

ZVI OESTREICHER

 

 

            In the Supreme Court sitting as a Court of Criminal  Appeal.

[October 1, 1963]

Before Agranat D.P., Sussman J. and Halevi J.

 

 

 

 

Administrative law - state of emergency - power to make secondary legislation on essential activities - derogation of powers of legislature.

 

            The respondent was charged with an offence against the Commodities and Services (Control) (Transport of Bread) Order, 1960, for transporting bread in open dirty boxes on the roof of an automobile. He admitted the facts but denied liability on the ground that the Order was ultra vires the Minister of Health who had issued it, according to the terms of the enabling Law, which confined the power to make Orders regarding specified essential matters and in a period only during which a state of emergency prevailed. At first instance this plea was rejected and he was convicted and sentenced, but on appeal to the District Court, the plea was accepted and conviction and sentence were overturned. The Attorney-General appealed.

           

Held (1) An activity essential for ensuring orderly daily life in peacetime can well have the same character during a state of emergency.

 

(2) Since, in view of the existing state of emergency in the country, the legislature found it necessary to derogate from its own powers and set up other law-making machinery to ensure that essential activities be effectively and speedily regulated, the measures taken are valid and for that reason alone are unchallengeable.

 

(3) An activity may be essential not only economically but also from a medical or hygienic viewpoint.

 

(4) Obiter, it is desirable that the legislature itself regulate in the normal way those matters which have no direct connection to the dangers stemming from a state of emergency.

 

Israel cases referred to:

 

(1)   H.C. 222/61 - Chemo-Ta'as Haifa v. Minister of Commerce and Industry (1962) 16 P.D. 297.

(2)   H.C. 300/60 - Zvi Gottlieb v. Minister of Commerce and Industry (1960) 14 P.D. 2182.

(3)   H.C. 60/60 - Shmuel Reisky v. Director-General of the Minister of Health (1960) 14 P.D. 1373.

 

G. Bach. Deputy State Attorney. for the appellant.

Y. Weins for the respondent.

 

AGRANAT D.P. The respondent was convicted in the Magistrate's Court, Tel Aviv of an offence under section 39(a)(1) of the Commodities and Services (Control) Law, 1957 (hereinafter called "the Law"), in that he transported bread on the roof of an automobile in violation of paragraph 3 of the Commodities and Services (Control) (Transport of Bread) Order, 1960 (hereinafter called "the Order"), which provides as follows:

 

"A person shall not transport bread save in a closed, dry, and clean case in which sufficient ventilation openings have been installed."

 

            The particulars of the offence, as described in the information, are that on 29 September 1961 in a street in Ramat Gan, the respondent transported "on the roof of automobile No. 00622 open, dirty boxes in which there were hallahs."

           

            At the trial in the Magistrate's Court, counsel for the respondent admitted the truth of these particulars but denied his client's guilt, basing himself on the legal argument that in prescribing the said paragraph 3, the Minister of Health who issued the Order exceeded the authority granted him in the Control Law. In his reasoned judgment, the learned Magistrate dismissed this argument and therefore convicted the respondent of the said offence and fined him IL. 50 or ten days imprisonment in lieu thereof. The respondent appealed from this result to the District Court and there his counsel repeated the argument of ultra vires which had been dismissed by the Magistrate. This time the argument was accepted, and the conviction and sentence were overturned. Now it is incumbent upon us to consider the appeal from this judgment filed by the Attorney-General after receiving leave for the purpose.

           

            It is my opinion that the appeal before us should be allowed.

           

            Before I consider the reasoning which guided the learned judges of the District Court, I should cite the provisions of the Control Law concerning the power of the Minister of Health to enact the said Order which relate to our case.

           

            (1) Section 5(a) of the Law provides that "A Minister may regulate by order - (1) the production, safekeeping, storage, transport, transfer from place to place or from hand to hand, distribution, sale, acquisition, consumption, treatment and use of a particular commodity, including the slaughter of cattle". (See also section 15 as to the auxiliary powers granted the Minister for the purpose of implementing the powers mentioned in the Second Chapter of the Law.)

           

            (2) The term "Minister" is defined in section 1 as "any member of the Government, in so far as the Government has transferred to him the power to implement this Law", and section 47(a) states that "the Government may confer on any of its members the power to implement this Law and to make regulations as to any matter relating to its implementation." Pursuant to the last section, the Government granted the Minister of Health the power to implement the provisions of the Second Chapter of the Law which also included the aforementioned section 5(a)(1) (see the notice of the Government of 4 February 1958, published in Yalkut HaPirsumim, No. 584 of 13 February 1958, p. 566). It should be noted that this power was also granted (inter alia) to the Minister of Agriculture and the Minister of Commerce and Industry (ibid.).

           

            (3) Section 3 restricts the exercise by a Minister of "his powers under this Law" to instances in which "he has reasonable grounds, for believing that it is necessary so to do for the maintenance of an essential activity or the prevention of profiteering". Section 1 defines the term "essential activity" as "any activity which a Minister regards as essential to the defence of the State, public security, the maintenance of regular supplies or regular services, the increase of exports, the intensification of production, the absorption of immigrants, or the rehabilitation of discharged soldiers or war invalids". In interpreting the provisions of the said section 3, this Court has said, per Berinson J., that the question which may arise in connection with this section "is only factual in two senses: first, whether the conditions listed therein actually exist, and second, whether the Minister gave thought to them and was satisfied that they existed before deciding to issue the order" (Chemo-Ta'as v. Minister of Commerce and Industry (1) at 300).

 

            (4) Finally, pursuant to section 2, the Law will apply "only during a period in which a state of emergency exists in the State by virtue of a declaration under section 9(a) of the Law and Administration Ordinance, 1948". No one disputes that such a state exists in the State to this day by virtue of such a declaration made long before the Law was enacted.

           

            The reasoning of the District Court judges by which they found that the Minister of Health exceeded his authority when he enacted the provision of paragraph 3 of the Order is, in summary, as follows:

           

            (a) The power granted the Minister in section 5(a) as above - including the power to regulate the matters mentioned in paragraph (1) - is tied to the state of emergency which prevails in the State and therefore to the fact of "irregular" life characteristic of such a period. The same thus holds true for the considerations which must lie behind his exercise of that power for purpose of maintaining an "essential activity"- that is to say, there must be a connection between them and such state of emergency.

 

            (b) As a result, to the extent that the sole objective of maintaining "an essential activity" is also valid in a period of peace and is necessary for purpose of improving that "regular" daily existence which typifies it, the exercise of the stated power has no place since it has no connection to the state of emergency.

           

            (c) In our case, it is readily apparent that only hygienic-sanitary considerations were behind the enactment of paragraph 3 of the Order. Since these considerations are inherent in an objective which also has its place in a period of peace - the objective of protecting public health - there is again no connection between it and the special state because of which the Minister of Health was granted the power under consideration. It follows that enactment of the said provision constituted a departure from the framework of the Law.

 

            (d) If we do not give the statutory provisions concerned such a limited interpretation, it would detract from the legislative power given to the sovereign legislature: the Knesset. On the other hand, such an interpretation does not empty of meaning the Minister of Health's powers in this area since, to the extent that health matters are bound up with the conditions of a state of emergency, he may take them into consideration when deciding whether the exercise of his power is necessary for maintaining "an essential activity" for which he sees a need.

           

            I will quote a few sections from the District Court judgment which reflect the substance of the above reasoning.

           

"It is true, indeed, that the state of emergency ... can include any period for which the Government finds this name appropriate, i.e., a state of affairs which is still so far from normal conditions of life and society that we are unprepared to recognize that we have already reached the peace and serenity of regular life ... but it is necessary for the Order under consideration ... to have some connection with some irregular state."

 

"The Law under consideration does not speak of health explicitly. It is clear that the matters designated therein, such as security and supply of services and so on, are interrelated. Many health matters can be connected to these, such as health installations for a possible state of emergency. It is no wonder that the Minister of Health received power for secondary legislation under the Law. That is not to say that all matters of daily health became a question of an essential service or of State security. On the other hand, the annulment of the Order does not at all mean that the powers of the Minister of Health under this Law will be void of content."

 

"In the present case the Minister exercised his powers for ordinary legislation against a background of regular life."

 

"The sanitary control of the transport of bread in the manner prescribed by the Order is, from a civilized perception of life, essential to a very regular style of life and without connection to any period of emergency. We need not decide whether this Order could have been issued as secondary legislation under the Public Health Ordinance or by means of licensing conditions under the Trades and Industries Ordinance... Possibly there is a need to amend the Laws under consideration. However, that is a matter to be brought before the Knesset, and the Minister of Health may not use special powers for that purpose."

 

"By a strict construction of the key words in the law, we protect the spirit of Knesset legislation."

 

            In my opinion, the foregoing reasoning suffers from one basic fallacy. I am ready to agree - for the purpose of this appeal - with the view that when the Minister is about to exercise his authority, he must be satisfied that it is necessary for maintaining an activity which is essential not only from the standpoint of one of the purposes mentioned in the definition of the Law (see supra) but also having regard to the state of emergency which prevails in the State. Yet, if these conditions obtain, it is illogical to say that since the activity in question could be regarded as essential for ensuring normal daily life in peacetime as well, it can no longer be so regarded during a state of emergency, and heaven forbid therefore that the Minister exercise the power granted him by law in order to maintain it. As Mr. Bach, Deputy State Attorney, argued, concern for ensuring a regular supply of water is essential to the population at all periods and times; for this reason alone, should not the activity necessary to regulate matters in this area be regarded as essential when such a state prevails? The answer begs itself.

           

            If indeed it is asked why the legislature restricted application of the Law - and, consequently the exercise of the powers mentioned therein - solely to a period of emergency such that when that ends the Minister is no longer authorized to exercise them even for purposes of maintaining activities which meet the "essential" requirement, the answer must be as follows: The Knesset saw need - in view of the existence in fact of a state of emergency in the State - to establish legislative machinery which could ensure that the essential matters with which the Law deals are regulated as far as possible in a manner which is both effective and speedy. Thus, it granted Ministers power of very broad scope to enact secondary legislation in the area concerned - power which it would not have been proper (so must our assumption be) to take from the sovereign legislature during a period of peace. The fact that the Knesset bestowed this legislative power only upon Ministers - as opposed to officials - is a sign that it was cognizant of the broad scope of the power but found it justified by the need to establish - having regard again to the essential objectives of concern to the State during a state of emergency - legislative machinery to serve those objectives in the manner most appropriate to the conditions of this state.

 

            If this explanation for the legislative objective is correct, then it can be understood why the application of the Law was restricted to a state of emergency period. However, the point is that such an explanation tends to deny value to the viewpoint which says that the grant of the legislative power under consideration was intended to ensure maintenance of an activity which is "essential" only during a period as aforesaid and therefore this requirement is not met if the activity is of such a nature also during peacetime.

           

            As will be recalled, under the definition in section 1 of the Law, the Minister may regard as "essential" an activity necessary "for the maintenance of regular supplies". Indeed it is difficult, if not impossible, to imagine an activity more essential than that required to ensure the regular supply of a commodity as important for residents - especially in a state of emergency - as bread. Surely it is clear that this specific objective also embraces the need to regulate that the transport of bread will be carried out under conditions guaranteeing that this commodity will reach residents-consumers in an edible form, and that not only that it should not be wasted but - and this is important - also that it is not injurious to public health. Otherwise, the supply of bread would be deficient and irregular. It follows that the Minister of Health lawfully enacted the provisions of paragraph 3 of the Order and did not then exceed in any manner the authority granted him by section 5(a)(1) of the Law.

           

            I find support for my opinion in the judgment in Gottlieb v. Minister of Commerce and Industry (2), to which our attention was drawn by the Deputy State Attorney. That case dealt with an order issued under section 5 of the Law, which imposed a prohibition on the use of "food colouring" in connection with the manufacture of sausages. One of the grounds for this prohibition was "to prevent the use of food additives which may be injurious to health" (at p.2183). It was argued by counsel for the applicant that this ground was unreasonable. The argument received the following reply from the President of the Court (Olshan J.):

 

'"Regular supply' is a very broad concept; first of all, it means concern for an adequate supply provided without interruptions in an orderly fashion. 'Regular supply' also means unadulterated supply, and this term is so broad that it even includes the grounds which, according to the applicant, brought about publication of the Order" (at p. 2184).

 

"The definition of the term 'regular supply' is very broad, and I have not heard sufficient reason from counsel for the applicant to arouse doubt in me that the Order under consideration exceeds the framework of the Law under which it was issued" (ibid.).

 

            If the ground of prevention of injury to public health was sufficient to allow the said prohibition as an essential activity necessary for maintaining an unadulterated supply of sausages, the same rule applies to the sanitary ground for the provision which is the subject matter of the present case and whose purpose is also to ensure an unadulterated supply of bread.

           

            In this court, Mr. Weins, counsel for the respondent, emphasized that he no longer supports the reasoning of the District Court. Yet, the truth is that most of the arguments raised before us are in the same vein but dressed up differently. I will therefore mention here only one argument which he raised and which possibly does not come within this description. The argument - if I understood Mr. Weins properly - is that in as far as the Minister of Health was granted the powers mentioned in the Second Chapter of the Law, he may exercise them only in respect of those matters which he would deal with by the nature of his function, that the concept "regular supply" implies economic objectives exclusively, such as concern the quality of the commodity in respect of which the arrangement of supply is in effect, regulation of its just distribution, ensuring that a reasonable price is fixed for it and like objectives, but that concern for regular supply (including the manner of transport) of bread - as opposed, for example, to concern for the regular supply of medical commodities - is thus not a matter of regulation for which the Minister of Health was granted the said powers.

 

            I cannot, accept this argument. As to the second part of the argument, it has already been explained above that the term "essential activity" means for us any activity necessary to ensure that the supply of commodities such as foodstuffs - including their manufacture and transport - is carried out in a manner which does not affect public health. If that is the case, then it is logical - and this is the answer, to the first part of the argument - that it is precisely for the Minister of Health to exercise the power granted him in the Second Chapter of the Law in order to achieve the said objective.

           

To avoid misunderstanding, I should add that, in my opinion, no legal importance attaches to the question of which Minister (among the Ministers authorized by the Government) exercises some of the powers of control mentioned in the Second Chapter, provided that his action comes within the framework of one of these powers and that the conditions of which section 3 speaks are met. Indeed, it is very possible that the Government acted as it did in this matter with the intention that the said Ministers share among themselves the exercise of those powers in accordance with the areas with which they are accustomed to deal; it is also not impossible that an arrangement in this spirit was made among them. Nevertheless, that has no significance from the standpoint of the Law and is of no concern to the court. Furthermore, it also cannot be assumed that it is possible to carve out boundaries, as aforesaid, for each and every matter. Thus, behind the prohibition which was the subject of the Order dealt with in Gottlieb (2) stood an economic in addition to the "health" consideration (at p.2183), and that Order was issued by the Minister of Commerce and Industry (Kovetz HaTakanot 5720, No. 994, p. 809). The comments of Cohen J. in Reisky v. Director-General of Ministry of Health (3) (at p. 1379) on which counsel for the appellant relied are irrelevant here. There the statutory provision in issue, granted exemption from import duty for motor vehicles built in such manner as to be "designed for medical rehabilitation" subject to the condition that they "were imported with the prior approval of the ... Director-General of the Ministry of Health". In light of the transparent purpose of this condition, one can with all respect agree with Cohen J. when he says that "the very authorization of the Director of the Ministry of Health in this regard proves that only considerations of health and medicine may be legitimate considerations before him". It is obvious that no analogy can be drawn from these comments to the various areas in respect of which the Ministers may exercise the broad powers granted them under the Law which is the subject of our consideration.

 

            My final conclusion thus is that the appeal should be allowed, the judgment of the District Court set aside, and the judgment (conviction and sentence) of the Magistrate's Court reinstated.

           

            Before concluding, I wish to make the following observation. For the purpose of my reasoning above, I have not taken into account one of the arguments of the Deputy State Attorney, that if it becomes clear that the declaration as to the existence of a state of emergency in the State still remains in effect, this Court should then not review whether a connection exists between this state and the exercise by the Minister of some of the powers concerned. I think, however, that whether or not a basis exists for this argument, it would be well for the Minister possessing the power to consider seriously whether the said state really requires the exercise thereof in this or-another concrete situation. I want to say that from a general standpoint I have a certain sympathy for the approach of the District Court even though I have tried to show that the Law makes it impossible to support it in the instant case. My sympathy stems from the fact that the state of emergency has existed by virtue of the aforesaid declaration for more than fifteen years; and even though far be it from me to give a hand to creating an atmosphere of serenity as to the state of security and the economy of the country at the present time, it is also true that it is difficult over such a long period to have citizens maintain the feeling of "tension" usually inherent in the existence of the aforesaid state as regards each and every matter. Therefore, it is desirable that those matters requiring regulation without any connection to the dangers stemming from the state of emergency should be regulated by ordinary legislation of the Knesset which is not necessarily intended for a state of emergency even if, as to one matter or the other, the sovereign legislature comes to realize that it is better to transfer the power to enact secondary legislation to the executive authority, and then prescribes such a solution by law. It is to these matters that my comments are directed, because in respect thereto it would be well for the Ministers to exercise sparingly the broad and drastic powers granted them in the Control Law. (A violation of the provision of the Order in question - as any violation of a provision prescribed by regulation or order enacted under the Control Law - constitutes a felony carrying a maximum penalty of seven years imprisonment.) In this connection, the words of the learned C.K. Allen (in his book, Law and Orders, second edition, p. 66) are worthy of note, that as regards the exercise in England of comparable powers, the history of the years following the World War are evidence of the phenomenon that -

 

"Government by decree, once made, is extremely difficult to unmake, and that 'emergency', once it has taken hold, is a very tough plant to uproot".

 

And before this, at p. 54:

 

"It is part of the democratic process, even during war, to be vigilant that emergency expedients do not exceed the real necessities of the situation, as, from their very nature, they always tend to do."

 

            It should be noted that my comments are not to be regarded as prescribing any rule, and the conclusion should not be drawn from them that Ministers have in the past been excessive in the exercise of the legislative power under consideration. (Cf. Prof. H. Klinghoffer's comments in similar connection in the Jubilee Book for Pinhas Rozen, p. 118) I have only intended to warn against a possible orientation in the future not to remain faithful to the principle of the rule of law.

           

SUSSMAN J.             I concur.

HALEVI J.                  I concur.

 

            Appeal allowed.

            Judgment given on October 1, 1963.

 

 

 

 

 

Petition denied.

30 Av 5764.

17 August 2004.

H.C.J  5/48

           

LEON & OTHERS

v.

ACTING DISTRICT COMMISSIONER OF TEL AVIV (YEHOSHUA GUBERNIK)

 

 

 

In the Supreme Court sitting as the High Court of Justice

[October 19, 1948]

Before: Smoira P., Olshan. J., and Assaf J.

 

 

 

Mandatory legislation - Enforceability in Israel - Validity of Mandatory Emergency and Defence Regulations - Requisition of flat - Interference by High Court in exercise of discretion by Competent Authority.

 

                The Law and Administration Ordinance 1948, provides that the law which existed in Palestine on May 14, 1948, "shall remain in force... subject to such modifications as may result from the establishment of the State and its authorities".

               

                The Acting District Commissioner of Tel Aviv, as the competent authority under the Defence Regulations of 1939, made pursuant to the (English) Emergency Powers (Defence) Act 1939, requisitioned a flat situated at no. 3, Chen Boulevard, Tel Aviv, by order dated 6 September 1948. The requisition was for the benefit of the Attorney-General who, previously to his then recent appointment to that office, had resided in Haifa, but who upon such appointment found it necessary to reside in Tel Aviv, where he had been unable to find a suitable flat.

 

                Objections to the order were made by the landlord of the flat and an incoming tenant, and were based mainly on the grounds that (a) the Regulations under which the order was made had never been in force in Palestine, or if ever in force, that their validity had expired upon the establishment of the State of Israel, (b) the competent authority was never legally appointed as such; and that in any event he had exceeded his authority and had acted capriciously, in bad faith and without due regard to the principles of reason and justice.

               

                Held, discharging an order nisi previously granted by the court calling upon the competent authority to show cause why the order of requisition should not be set aside,

 

(l)            The Mandatory powers of legislation for Palestine were unrestricted, and unless contrary to the terms of the Mandate such legislation is enforceable in Israel, the "modifications" referred to in the Law and Administration Ordinance 1948 being confined to technical and not to basic modifications.

 

(2)           The regulations were valid, the competent authority had been validly appointed as such, and had acted fairly and reasonably in the circumstances.

 

                General observations on when the High Court will interfere with the exercise of a discretion vested in a Government official.

           

Palestine cases referred to :

(1)   H.C. 18/47 Dinah Kazak v. The District Commissioner, Haifa District: (1947), 14 P.L.R. 87.

(2)   H.C. 118/44 Zeev Poms & others v. The District Commissioner, Lydda District, & Mordechai Gileady: (1944). 11 P.L.R. 574.

 

English case referred to:

(3)        Carltona Ltd. v. Commissioners of Works & others (1943) 2 All E.R. 560.

 

R. Nohimovsky for the Petitioners.

 

H. H. Cohn, State Attorney, and J. Kokia, Deputy State Attorney, for the Respondent.

 

            SMOIRA P. giving the judgment of the court. On September 23, 1948, after Mr. Nohimovsky had submitted his arguments on behalf of Mr. Leon and Mr. Kleiman, an order nisi was issued by this court against the respondent, Mr. Yehoshua Gubernik, the Acting District Commissioner of Tel Aviv (Urban Area), calling upon him to show cause why an Order of Requisition issued by him on September 6, 1948, should not be set aside. In terms of that order, the respondent acquired possession of the flat of Mr. Leon on the second storey of the building situated at No. 2, Chen Boulevard, Tel Aviv, as from the date of its vacation. The flat in question was requisitioned for the benefit of Mr. Ya'acov Shapira, the Attorney General of Israel.

           

            When the parties appeared before us on the return to the order nisi, Mr. Nohimovsky gave notice of an amendment of the Petition since it appeared that his Power of Attorney had been signed by Mr. Kleiman, the owner of the building, alone. He accordingly requested us to delete the name of the first petitioner, Mr. Leon, the tenant of the flat. On the other hand Mr. Nohimovsky asked us to join as a petitioner Dr. Boris Tamshas who, in terms of an agreement of September 8, 1948 with the second petitioner, the owner of the building, had acquired the right to enter the flat after it had been vacated by Mr. Leon.

           

            The State Attorney, Mr. Haim Cohn, who appeared on behalf of the respondent, did not oppose the amendment sought, and it was accordingly decided by the court to delete the name of Mr. Leon as a petitioner, and to join Dr. Tamshas in that capacity.

           

            The result is that on the return there appeared before the court Mr. Kleiman, the owner of the building, and Dr. Tamshas, who wishes to enter the flat in question as a tenant, both represented by Mr. Nohimovsky.

           

            Before entering upon the merits of the case we must deal with the first submission of counsel for the respondent who argued that the court should dismiss the petition in limine. His contention is that the petitioners have not come into court with clean hands in that Mr. Nohimovsky lodged a Power of Attorney purporting to be signed by Mr. Leon and Mr. Kleiman while in fact it was signed by Mr. Kleiman alone. It follows that the petition contains declarations in the name of Mr. Leon which he never made; and since Mr. Kleiman speaks in his affidavit of the "contentions of the petitioners" this declaration is incorrect, since Mr. Leon does not appear as a petitioner nor does he submit any contentions. According to the Advocates Ordinance, the argument proceeds, an advocate is responsible for the signature of his client. He who comes to this court with unclean hands, Counsel submits, cannot receive any relief whatsoever.

 

            It is indeed an important rule that this court will not grant relief to a petitioner who does not approach it with clean hands but we do not think that the rule applies to the present case. True, it is the duty of an advocate to ensure that a Power of Attorney is signed by all those in whose name it purports to be given and for whom he acts. In the present case, however, we assume that the omission was due rather to carelessness and haste than to an intention to mislead, and we have decided therefore to deal with the application on its merits.

           

            While mentioning the duties of advocates we also wish to add that it is the duty of an advocate to set out in his petition the main points of his -argument. An advocate, therefore, who wishes to submit in a petition of this kind that the Order of Requisition has no legal foundation, since the law upon which it purports to be based has been repealed, does not discharge this duty simply by alleging that "the Order of Requisition is illegal, has no force and is of no effect whatsoever". The petition must be framed in such a way as to inform the respondent of the case he has to meet.

           

            The law which requires a reply to an order nisi demands that the Petition be so clear as to leave no room for speculation. The law is directed to every citizen whether he represented by counsel - who may have a genius for guessing - or whether he appears without counsel. The submissions as framed in the petition in this case do not disclose the ground upon which it is said that the Order of Requisition is illegal. The opinion of the petitioner that the requisition is illegal may be inferred by the respondent from the very fact that an application has been brought to this court. The ground for that opinion, however, which was stressed in the petitioner's argument after the respondent had replied, could not have been discovered by the respondent in the petition. This court is not an arena for a duel of surprises between litigants but a forum for the basic clarification of disputes between parties. Such clarification after proper preparation by the parties is only possible if the submissions are properly defined and do not hide more than they disclose.

           

            I pass now to the merits of the case. The full text of the Order of Requisition of September 6, 1948, with which we are concerned, is as follows: -

           

                                                                     "State of Israel

                                                                     Provisional Government.

                                                                     Offices of the Commissioner

                                                                     (Urban Area)

                                                                     Tel Aviv.

           

File No. 1/7/SK.

Mr. Yuval Leon,

2, Chen Boulevard,

Tel-Aviv.                                 (The tenant)

 

Mr. Kleiman,

2, Chen Boulevard,

Tel-Aviv.

 

ORDER OF REQUISITION

 

            Whereas it appears to me, Yehoshua Gubernik, Competent Authority, to be necessary and expedient so to do in the interests of the public safety, the defence of the State, the maintenance of public order and the maintenance of supplies and services essential to the life of the community:

 

2.         I therefore inform you herewith that pursuant to Regulation No. 48 (I) of the Defence Regulations, 1939, (Amendrment No. 2 of 1945),1) I hereby take possession as from the date upon which it will be vacated of the property described below:

 

Description of Property

Flat occupied by Mr. Yuval Leon on the second storey of the building situate at No. 2 Chen Boulevard, Tel Aviv.

September 6, 1948

                                                                                            Y. Gubernik

                                                                                   Competent Authority."

Copy to Chairman

Central Housing Board,

District Engineer's Department,

Tel Aviv,

Mr. Ya'acov Schapira.

 

And these are the main submissions of counsel for the petitioners:

 

            (a) The Defence Regulations of 1939 have never been in force in Palestine and, in any event, have not been in force in Israel since the establishment of the State. These regulations derive their validity from an English statute, namely, The Emergency Powers (Defence) Act, 1939, and it was never legally possible to apply this statute to Palestine. If it has ever been valid, its validity expired with the establishment of the State of Israel.

           

            (b) Even if we assume that the Defence Regulations of 1939 are still in force, regulation 481) - upon which the Order of Requisition is based -has in any case been repealed by regulation 114 of the Defence (Emergency) Regulations, 19451, and for this reason too the Order of Requisition has no legal foundation.

           

            (c) Even if we assume that regulation 48 is still in force, the respondent was never legally appointed as a Competent Authority for the purposes of that regulation.

           

            (d) The respondent abused his office in that he exceeded his authority, infringed the rights of the petitioners, and issued the Requisition Order, not in good faith but capriciously and without paying due regard to the principles of reason and justice.

           

            It should be pointed out that counsel for the petitioners did not raise the first two submissions set out above in his argument before us on the date of the issue of the order nisi, but then confined himself to the third and fourth submissions alone. It is no wonder, therefore, that counsel for the respondent dealt in his reply with the two last-mentioned points only. He contended that Mr. Gubernik had been lawfully appointed as a Competent Authority for the purposes of regulation 48, which is still in force, and had issued the Order of Requisition in good faith and in the reasonable exercise of his discretion. He further submitted that the question whether the requisition was necessary for the maintenance of services essential to the community was one for the discretion of the Competent Authority with which this court would not interfere.

           

            In his detailed argument in support of his first submission. counsel for the petitioners contended that the Defence Regulations of 1939 have been of no effect since May 14, 1948, the date of the establishment of the State of Israel. He contends further that these Regulations were made by the High Commissioner for Palestine on the basis of the Emergency Powers (Defence) Act, 1939, and if there is no longer any legal basis for this English statute in Israel then the foundation of the Defence Regulations of 1939 also falls away.

           

            Counsel for the petitioners bases this argument upon section 11 of the Israel Law and Administration Ordinance, 1948, which provides: -

           

"The law which existed in Palestine on May 14th,1948, shall remain in force, insofar as there is nothing therein repugnant to this Ordinance or to the other laws which may be enacted by or on behalf of the Provisional Council of State, and subject to such modifications as may result from the establishment of the State and its authorities."

           

            His argument is twofold. Firstly, he contends that the words "The law" at the beginning of section 11 do not include a well-known series of statutes which the King of England - and through him the High Commissioner for Palestine - legislated for Palestine, purporting to exercise powers which were at no time his. Secondly, he submits that such statutes have in any case been repealed by the concluding words of the section, namely, "and subject to such modifications as may result from the establishment of the State and its authorities". Counsel wishes us to distinguish between two classes of Statutes and Orders in Council: those which were enacted specifically on the basis of the Mandate or with special reference to Palestine, and those which were enacted by the English legislature (as distinct from the Palestine legislature) or by the King and which have no connection with the Mandate or special reference to Palestine but which were enacted solely under the powers conferred by the Foreign Jurisdiction Act, 18901). The first class mentioned, the argument proceeds, includes The Palestine Order in Council, 1922 (Drayton, Laws of Palestine, Vol. III, p. 2569), The Palestinian Citizenship Order, 1925 (ibid. p. 2640), The Palestine Currency Order, 1927 (ibid. p. 2615) and The Palestine (Western or Wailing Wall) Order in Council, 1931 (ibid. p. 2635). To the second class, counsel contends, belongs the Order in Council of 1939 which applied the Emergency Powers (Defence) Act, 1939, to various parts of the British Empire, including Palestine. This statute, which was passed by the British Parliament, has no connection with the Mandate and no special reference to Palestine, and the relevant Order in Council was made under section 4 of the Statute and under the powers conferred by the Foreign Jurisdiction Act. Since, in any event, this Statute ceased to be in force in Israel after the establishment of the State, the Defence Regulations of 1939 also ceased to be valid. The same applies to the Supplies and Services (Transitional Powers) Act, 1945 (Palestine Gazette, 1946, Supp. 2, p. 229), and the Order in Council of January 10, 1946, which followed in its wake (ibid. p. 234), and to the Emergency Laws (Transitional Provisions) Act, 1946 (ibid. p. 573), and the relevant Order in Council of February 19, 1946 (ibid. p. 591). Counsel for the petitioners submitted that while English statutes which were applied to this country by Orders in Council and which belong to the first class mentioned are still in force, statutes which belong to the second class have ceased to be valid because of the modifications which, as he argues, have resulted from the "establishment of the State and its authorities". When asked to express his opinion on the validity, for example, of the English Copyright Act of 1911 (Drayton, ibid. p. 2475), which was introduced into Palestine by the Order in Council of 1924 (ibid. p. 2499), Counsel at first replied that that Statute was still in force. Later, however, he retracted this opinion and submitted that the Act no longer applied since it is not mentioned in the Palestine Order in Council of 1922. and the Order relating to the Copyright Act does not refer to the Mandate but speaks only of those countries which are under the King's protection. Palestine, he argues, was never under the King's protection and the Order relating to Copyright flows in fact from the powers conferred by the Foreign Jurisdiction Act, 1890.

 

            Counsel for the petitioners further submits that the English statutes referred to which empowered the thigh Commissioner (by Orders in Council) to make Defence and Emergency Regulations possess a dictatorial character - even an anti-Jewish character - to the extent that they were directed towards destroying the National Home and the development of the country by the Jews2), and towards stemming the flow of Jewish immigration into the country. Since the State of Israel is a democratic state and a Jewish state there have come about modifications within the meaning of the words "and subject to such modifications as may result from the establishment of the State and its authorities" - modifications, he submits, which make it impossible for these Statutes to be given validity in Israel.

           

            In summing up his first submission Mr. Nohimovsky asked the court to decide whether the Defence Regulations of 1939 are still in force seeing that their very foundation, namely, the validity in Israel of the English Statutes upon which they are based, has ceased to exist. These are revolutionary times and in the Opinion of counsel it is for the court to accelerate the process of releasing the State of Israel from the binding force of that class of English Statutes to which he referred.

           

            Mr. Nohimovsky asked us not to leave this fundamental question open and decide the case on some other point. We are also of opinion that it is desirable for us to deal with this question, since it is indeed the duty of this court to give its reply to the view - which appears to be widespread - that the Supreme Court is competent to decide upon the validity of certain well known Statutes because they are not in accord with the spirit of the times. There are undoubtedly certain laws objectionable to the Jewish community because of the way in which they were employed in the time of the Mandate. It is true, moreover, that the abuse of these laws was fought both inside and outside the courts, and it was even argued that these laws were invalid because they were inconsistent with both the language and the spirit of the Mandate. It would be wise, therefore, to deal at some length with this problem which has already been raised a number of times since the establishment of the State and will undoubtedly come before us again.

           

            The basis of the reply to this question is in our opinion section 11 of the Law and Administration Ordinance, 1948, the full text of which has already been cited. That section lays down a clear and important rule, namely, that the law which existed in Palestine on May 14, 1948, shall remain in force. The exceptions laid down in section 11 are as follows:

           

        (1)   Laws which are repugnant to the Law and Administration Ordinance itself shall not remain in force.

 

        (2)   Laws which are repugnant to those which may be enacted by or on behalf of the Provisional Council of State shall not remain in force.

 

        (3)   Previously existing laws shall remain in force subject to such modifications us may result from the establishment of the State and its authorities.

 

            This analysis of section 11 requires that we first interpret the rule before we deal with the exceptions, and the question that arises in the present case is whether the Defence Regulations of 1939 were a part of "the law which existed in Palestine on May 14th 1948". If the reply to this question is in the negative there will be no necessity to consider the exceptions laid down in section 11. If, however, the reply is in the affirmative it will be necessary to determine whether the validity of the regulations has ceased in accordance with one of the exceptions referred to.

           

            One of the Ordinances which is undoubtedly still in force is the Interpretation Ordinance of 1945, and the words "The law which existed" in section 11 of the Law and Administration Ordinance must therefore be interpreted in accordance therewith. The Interpretation Ordinance contains a definition of the word "Law" which includes, inter alia, "such Acts or parts of Acts. and such Orders) by His Majesty in Council or parts of such Orders, whether passed or made before or after the commencement of this Ordinance, as are now, or have heretofore been, or may hereafter be, in force in Palestine".

 

            We are to assume, therefore, that the words "The law" in section 11 include Statutes of the Parliament of England which were applied to Palestine by the Order in Council no less than Ordinances made by the High Commissioner for Palestine. Nevertheless, we are not unmindful of the submission of Mr. Nahimovsky that such Statutes include some which were inconsistent with the Mandate and which were therefore invalid. The courts of Palestine during the Mandate were not prepared to accept this submission on the ground that the Mandate was not part of the law of the land, save in so far as it had been introduced by an Order in Council. This court inclines to a different opinion and is prepared to consider whether a law passed in Palestine during the Mandate contradicts the terms of the Mandate. We are unable, however, to accept the contention of counsel for the petitioners that every Imperial Statute which has no direct connection with the Mandate or no special reference to Palestine and which was applied to Palestine by Order in Council is wholly invalid. We find no such limitation in any provision of the Mandate. On the contrary, the first provision of the Mandate lays down that "The Mandatory shall have full powers of legislation and of administration, save as they may be limited by the terms of this mandate". The distinction drawn by counsel for the petitioners between Imperial Statutes based upon the Mandate or having special reference to Palestine and other Statutes applied to Palestine finds no support in the text of the Mandate or in the basic Constitution of Palestine, namely, the Palestine Order in Council, 1922, or in section 11 of the Law and Administration Ordinance of 1948. Such a distinction, moreover, would lead to absurd results as, for example, the invalidity in Israel of the Copyright Act since the Order in Council which applied that Act to Palestine is not expressly based upon the Mandate nor does the Statute contain matters applying specifically to Palestine. The simple answer to counsel's argument is that article I of the Mandate, as I have mentioned, confers full legislative powers and there was no need to make special reference to the Mandate in applying a particular Statute. By virtue of article I of the Mandate laws were made for Palestine in two ways. The usual method was by Ordinances issued by the High Commissioner in Council, and the second method was by the application of an English Statute to Palestine by Order in Council. There is no basis in constitutional law for the argument that the latter method - which we shall call the Imperial method - was any less effective than the former. It follows, therefore, that even without relying upon the Interpretation Ordinance of 1945 we must include Statutes within the expression "The law" in the first part of section 11 of the Law and Administration Ordinance, 1948.

 

            It would appear that all these rationalistic arguments directed towards distinguishing between different classes of legislation are in fact based more upon emotion than upon reason - indeed, counsel was even prepared to sacrifice so innocent a statute as the Copyright Act for the sake of consistency. The real attack, however, is directed against the Defence Regulations and the English Statute from which they derive.

           

            We do not think that the legislature of a democratic state is precluded from passing a law which enables the making of Emergency Regulations. Laws such as these are to be found in the most democratic of Constitutions as, for example, the Constitution of the Weimar Republic of Germany. The example closest to as, however, is to be found in our own Ordinance, the Law and Administration Ordinance, 1948, which includes in section 9 a specific provision relating to Emergency Regulations1). The governing consideration here is not the existence of Emergency Regulations but the manner in which they are employed. There is no room today for the submission that Emergency Regulations made in the time of the Mandate are no longer in force because they were then used for anti-Jewish purposes.

           

            Let us take, for example, from the period of the Mandate, the Lands (Acquisition for Public Purposes) Ordinance, 1943. There is no doubt that according to the test of counsel for the petitioners that Ordinance is still in force. let us assume - purely for the sake of clarifying the matter - that the mandatory authorities used this Ordinance capriciously for the expropriation of the property of Jews alone. The argument is inconceivable that this Ordinance - which, in its terms, contains no discrimination whatsoever - is invalid because it was employed capriciously.

           

            This argument is untenable for yet another reason. It cannot be said - as is often suggested - that the purpose of all these Defence Regulations was dictatorial repression and so forth. The English who, within their own land, are certainly lovers of freedom and jealously guard the rights of the citizen - found it proper to make Emergency Regulations similar to those which exist here and which include, inter alia, provisions for the expropriation of the property of the individual in the interests of the public.

           

 

            Having reached the conclusion that the Defence Regulations of 1939 made under the Emergency Powers (Defence) Act, 1939 are included within the expression "The law" at the beginning of section 11, we must examine whether they fall within one of the three exceptions set forth above in our analysis of that section. Counsel for the petitioners did not argue that these Regulations are repugnant to the Law and Administration Ordinance or to any Law enacted by the Provisional Council of State. He did contend, however, with great emphasis, that we should declare the Regulations invalid by virtue of the words "subject to such modifications as may result from the establishment of the State and its authorities". He submitted that these words empower the court to declare a particular law invalid provided only that this course can be justified by some change brought about by the establishment of the State.

           

            This argument is quite unreasonable. It would require that this court first determine that the establishment of the State has brought about some change and the nature of the change; and then consider whether this change requires that a particular law be invalidated. All this would then have to be embodied in a judgment, declaring that the law in question is no longer in force. It is precisely this, however, which is the duty of the legislature; and it is not to be assumed for a moment that the legislature of Israel, in using the words quoted, intended to delegate part of its duties to the courts.

           

            The legislature would not have concealed within the words "subject to such modifications as may result from the establishment of the State and its authorities" a matter of such importance as the invalidation of a whole series of Defence and Emergency Regulations. In section 13 of the Ordinance the legislature expressly repealed the provisions of the White Paper of 1939, namely, sections 13 to 15 of the Immigration Ordinance, 1941, and Regulations 102 to 107 of the Defence (Emergency) Regulations, 1945, and also the Land Transfer Regulations, 1940. Had it been of opinion that it was also necessary to repeal the Defence Regulations of 1939 or the Defence (Emergency) Regulations of 1945, either wholly or in part, it could have followed the simple course of repealing them expressly as it did in section 13 of the Ordinance in the case of the Regulations there mentioned. But it did not do this. If we read Chapter Four of the Law and Administration Ordinance in its entirety we shall see that the words "subject to such modifications as may result from the establishment of the State and its authorities" were intended to refer to technical modifications without which the law in question could not be applied after the establishment of the State and its new authorities. The word "modifications" was intended by the legislature to refer to such modifications as would necessarily flow from the very fact of the establishment of the State and its authorities. It was not intended to refer to modifications which demand special consideration such as the repeal of one of a series of existing laws. For example, according to an Order by the Director of the Department of Immigration in regard to Places of Entry to Palestine, 1943 (Palestine Gazette, Supplement 2, No. 1249, p. 125), as amended, Allenby Bridge is one of the lawful places of entry into Palestine. Although in terms of section 15(a) of the Law and Administration Ordinance, 1948, the word "Israel" is to be substituted for the word "Palestine" wherever it appears in any law, it is clear without any necessity for special consideration that the establishment of the State and its authorities necessitates the deletion of Allenby Bridge3) from the Order referred to.

 

            This restrictive interpretation of the words referred to may also be derived from section 16 of the Ordinance which empowers the Minister of Justice to issue a new text of any law which existed in Palestine on May 14, 1948, and which is still in force in the State, such text to contain "all the modifications resulting from the establishment of the State and its authorities". It is clear that section 16 was never intended to vest in the Minister of Justice the powers of the legislature to repeal existing laws on the basis of "modifications which may result from the establishment of the State and its authorities". Section 16 can only have been intended to refer to technical modifications. On the general principles of interpretation it cannot be assumed that the same words used in the same chapter of an Ordinance are to be read in different ways and it necessarily follows, therefore, that the words relating to "modifications" mean technical modifications in section 11 as well.

           

            As we are indeed living in a period of change and as we stand upon the threshold of the new State - we desire, in concluding this part of our judgment, to add a few general comments on the duty of a judge when he comes to interpret the law. The doctrine of the division of powers within the State is no longer as rigid and immutable as it was when once formulated by Montesquieu. In the field of jurisprudence the opinion has prevailed that in cases to which neither law nor custom applies it is for the judge to fulfil the function of the legislature rather than to force the facts before him into the narrow confines of the existing law, which in truth contains no provision applicable to them. This conception has found its classic expression in the first section of the Swiss Code which provides expressly that if the judge can find neither law nor custom which applies to the case before him, he is to lay down the law as if he himself were the legislature. But this principle only applies where in fact no law exists. It is a far cry from this to require that judges, in the exercise of their judicial powers, should repeal laws which undoubtedly do exist but which are unacceptable to the public. We are not prepared to follow this course, for in so doing we would infringe upon the rights of the existing legislative authority in the country, the Provisional Council of State. The courts are entitled to decide that a particular law is invalid as exceeding the powers of an inferior legislative body which enacted it. So, for example, if the Council of State were to delegate to a Minister the power of making regulations within certain limits, it would be for the court to examine in a particular case whether a regulation so made exceeded the limits laid down.

 

            This is the well-known doctrine of ultra vires. It is often suggested these days - as has been argued before us by counsel for the petitioners - that the Defence Regulations in general, and those Regulations relating to the requisition of property in particular, were put to improper use during the Mandate against the Jewish community. In addition to what we have already said on this point, it is our opinion that there is no room for this contention when considering the validity of these Regulations in the State of Israel. It cannot be disputed that despite the harshness which the use of these Regulations sometimes involves, an orderly community in a state of emergency cannot exist without emergency regulations which, in their very nature, place the interests of the public above the freedoms of the individual. The question of the extent to which the court may interfere in the discretion of the Competent Authority which applies these regulations will be considered when we deal with the fourth submission of counsel for the petitioners.

           

            Our conclusion on the first point is that the Defence Regulations of 1939 were valid in the time of the Mandate and that they are still in force by virtue of section 11 of the Law and Administration Ordinance, 1948.

           

            The second submission of counsel for the petitioners is that even if we assume that these Regulations are generally still in force, the validity of regulation 48 expired in September, 1945. with the making of the Defence (Emergency) Regulations, 1945. Counsel contends that regulation 48 of the Regulations of 1939 (which was amended on February 23, 1945, Palestine Gazette Supplement 2, No. 1394, page 161 of March 1, 1945) was impliedly repealed by regulation 114 of the Regulations of 1945. We shall quote the text of the two regulations.

           

            Regulation 48, sub-section 1, of the Defence Regulations 1939, as ascended on February 23, 1945, provides: -

           

"A competent authority may, if it appears to that authority to be necessary or expedient so to do in the interests of the public safety, defence, or the efficient prosecution of the war, or of maintaining supplies and services essential to the life of the community, take possession of any land, and may at the same time, or thereafter, give such directions as appear to the competent authority to be necessary or expedient in connection with, or for the purposes of, the taking, retention or recovery of possession of that land".

 

            Regulation 114(1) of the Emergency Regulations of September 22, 1945, provides: -

           

"A District Commissioner may, if it appears to him to be necessary or expedient so to do in the interests of the public safety, the defence of Palestine, the maintenance of public order or the maintenance of supplies and services essential to the life of the community, take possession of any land, or retain possession of any land of which possession was previously taken under regulation 48 of the Defence Regulations, 1939, and may, at the same time or from time to time thereafter, give such directions as appear to him to be necessary or expedient in connection with, or for the purposes of, the taking, retention or recovery of possession of the land."

 

            Counsel for the petitioners contends that these two Regulations deal with the same matter, that is to say, the requisitioning of land for the benefit of the community, and that the earlier regulation, therefore, has been impliedly repealed by the latter. It follows, he submits, that an order of requisition may today only be issued by the District Commissioner under regulation 114 and not by the Competent Authority under regulation 48. He submits further that the High Commissioner could not revive regulation 48 by the Supplies and Services (Transitional Powers) Order, 1946 of February 22, 1946 (Palestine Gazette, Supplement 2, No. 1477, p. 348) since the Order in Council in regard to Supplies and Services (Transitional Powers) (Colonies etc.), 1946, of January 10, 1946, empowers the High Commissioner to extend and give effect only to those regulations which were still in force at the date of the Order (see paragraph (c) of the First Schedule of the Order) (Palestine Gazette, Supplement  2, No. 1473, p. 236). It follows, says counsel, that the High Commissioner could not revive a regulation on February 22, 1946, the validity of which had already expired on September 22, 1945. We shall first examine the question raised by counsel as to the validity of regulation 48 without considering the argument that it has been impliedly repealed.

           

            (1) As we have already mentioned in dealing with the first submission of counsel for the petitioners, the constitutional basis of the Defence Regulations of 1939 is the English Statute (of August 24, 1939) known as the Emergency Powers (Defence) Act.1939. That Act empowers the King of England to make by Order in Council such "Defence Regulations" as appear to him to be necessary or expedient for securing the public safety, the defence of the realm, the maintenance of public order and the efficient prosecution of the war, and for maintaining supplies and services essential to the life of the community. The power of the King to take possession of any property is mentioned expressly in section I(2) of the Act. In terms of section 4(I) (d) of the Act the King is empowered to direct by Order in Council that the provisions of the Act shall extend to any territory in respect of which a mandate on behalf of the League of Nations has been accepted by him and is being exercised by his Government. Section 11 of the Act provides that it shall continue in force for a period of one year from the date upon which it was passed (August 24, 1939), and that it shall then expire, provided that upon the request of Parliament the King may, by Order in Council, extend its validity from time to time for additional periods of one year.

           

            (2) By an Act of May 22, 1940, section 11 of the original Act of 1939 was amended so as to introduce a period of two years instead of one year as the initial period of validity of the statute. The Act was to remain in force, therefore, until August 24, 1941.

           

            (3) In 1939 the King, acting under the powers conferred upon him by section 4(1) of the Act of 1939, directed by Order in Council that the Act apply to Palestine and that the power of making regulations conferred by the original Act upon the King in Council be exercised in colonies and mandated territories by the Governors of such colonies or territories (article 3 of the Order). This constitutes the basis of the power of the High Commissioner to make the regulations which he issued on August 26, 1939, and which are called the Defence Regulations, 1939.

           

            (4) By an Order in Council of June 7, 1940, the King extended the validity of the Act of 1940 to colonies and mandated territories.

           

            The original Act thus acquired validity until August 24, 1941, in Palestine as well.

           

            (5) Thereafter the validity of the original Act, which had also been applied to Palestine, was extended by Orders in Council from year to year for additional periods of one year until August 24, 1945.

           

            (6) On June 15, 1945, a special Act called the Emergency Powers (Defence) Act, 1945, was passed in England to extend the validity of the original Act of 1939 "for periods of less than one year". This Act provided that for section 11(I) of the original Act there shall be substituted a provision which lays down that the original Act shall continue in force until the expiration of the period of six months beginning with August 24, 1945 - that is to say, until February 24, 1946 - and shall then expire. The Act also provided that it could be cited together with the original Act and the Act of 1940 as the Emergency Powers (Defence) Acts, 1939-1945.

           

            (7) On December 10, 1945, an Act was passed in England called the Supplies and Services (Transitional Powers) Act, 1945. This Act was published in Palestine in the Palestine Gazette 1946, Supplement 2, No. 1473, p. 229. In the Long Title of the Act its objects are defined, inter alia, as follows: An Act to provide for the application of certain Defence Regulations for purposes connected with the maintenance, control and regulation of supplies and services, for enabling Defence Regulations to be made for the control of prices and charges, for the continuation of Defence Regulations so applied or made during a limited period notwithstanding the expiry of the Emergency Powers (Defence) Acts, 1939 to 1945. Section 1 of this Act provides that the King in Council way direct that certain Defence Regulations shall continue to have effect whether or not they are for the time being necessary or expedient for the purposes specified in sub-section (1) of section one of the original Act of 1939. Section 5(4) empowers the King to apply the Act to colonies and mandated territories in the same way as the original Act.

           

            (8) In pursuance of the last mentioned provision the King in Council made an Order on January 10, 1946, in which he applied the Act of 1945 to Palestine (Palestine Gazette Supplement 2, No. 1473, p. 234), and conferred the power of making regulations upon the High Commissioner.

           

            (9) Pursuant to the powers conferred upon him as described in the preceding paragraph, the High Commissioner issued an Order on February 22, 1946, called the Supplies and Services (Transitional Powers) Order, 1946, in which he set forth a series of regulations which were to remain in force as above stated, including regulation 48 of the Defence Regulations, 1939.

           

            It follows, therefore, that the High Commissioner issued this Order two days before the original Statute and the Defence Regulations issued thereunder ceased to be valid. He acted, therefore, in accordance with Section C in the First Schedule to the Order in Council of January 19, 1946, which provides that the power to extend the validity of Defence Regulations applies only to such Regulations as are still in force on the date of the issue of the Order, that is to say, January 10, 1946. This then was the position in law.

 

            But we must still deal with the argument of counsel for the petitioners that regulation 48 was impliedly repealed by regulation 114 of the Emergency Regulations of 1945.

           

            Counsel relies upon the well-known principle that Lex posterior derogat legi priori and upon Maxwell, Interpretation of Statutes, 9th Edition, p. 171. The general answer is that there can only be an implied repeal where there exists a logical inconsistency between the first and the second legislative provisions - in which case the first is impliedly repealed by the second - or, if there is no inconsistency between the two provisions, where there is no justification for the continuance of the two.

           

            It cannot be said in the present case that such a logical inconsistency exists. It must be assumed that it was the desire of the legislature to confer the powers in question upon the Competent Authority under the Defence Regulations of 1939, and upon the District Commissioner under regulation 114. It cannot be said, moreover, that these two sets of provisions cannot stand together. There is a reason which explains the existence of two sets of regulations, namely, that the Defence Regulations of 1939, were designed to deal with a situation created by external factors, such as war, while the regulations of 1945 were made to deal with a situation created by internal factors. That this is so is apparent from the position that had existed previously. Before the Emergency Regulations of 1945 there existed the Emergency Regulations of 1936 which were not repealed by the Defence Regulations of 1939. That is to say that even before 1939 there existed two sets of Regulations although up to 1945, during the period of the war, the authorities employed the Defence Regulations of 1939. And as far as the authority of Maxwell is concerned, that writer, under the heading "Consistent Affirmative Acts" seems rather to support the opposite opinion. He says, at page 173: -

           

"But repeal by implication is not favoured. A sufficient Act ought not to be held to be repealed by implication without some strong reason. It is a reasonable presumption that the legislature 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” .

 

            Counsel for the petitioners also pointed to a line of cases which indicate that from the date of the publication of the Emergency Regulations of 1945 the authorities used regulation 114 of those Regulations and not regulation 48 of the Regulations of 1939, since all those cases deal with regulation 114. There is no need to deal at length with the point that this fact cannot constitute the repeal of regulation 48.

           

            The conclusive answer to the contention of Counsel for the petitioners is provided by the Defence (Emergency) Regulations of 1945 themselves. Regulation 5 provides that, subject to the provisions of the Regulations, their provisions, and the powers conferred by them, shall be in addition to and not in derogation of the provisions of, or the powers conferred by, any other law. Moreover, regulation 7 sets forth in detail those regulations which shall be revoked upon the coming into force of the Regulations of 1945, and neither the Defence Regulations of 1939, nor any part of them, are mentioned in regulation 7. We therefore reject the submission of counsel for the petitioners that regulation 48 of the Defence Regulations, 1939, cannot constitute the basis of the Order of Requisition issued by the respondent.

           

            We are also of opinion that Counsel's third submission, namely, that the respondent was not lawfully appointed as a Competent Authority, is without foundation. Regulation 3 of the Defence Regulations, 1939, provides that the Competent Authority shall be the person appointed by the High Commissioner in writing. In a Notice concerning the powers of Ministers pursuant to the Law and Administration Ordinance, 1948, published in Official Gazette, No. 5, page 24, it is notified for public information that the Provisional Government has decided to confer the powers formerly exercised by the High Commissioner as follows: under the Defence Regulations, 1939 - upon the Minister of Defence: under regulation 3 of the Defence Regulations, 1939-upon the Ministers of Finance, Agriculture, Trade and Industry, Labour and Building, and Communications.

           

            Counsel for the petitioners wishes to deduce from the terms of this notice that in the case of the appointment of a Competent Authority under regulation 3 the Minister of Defence must also act together with one of the other Ministers mentioned. In our view this contention is without substance. The true intention is clear. In general the Minister of Defence must be substituted for the High Commissioner throughout the Defence Regulations, but in the case of regulation 3 the other Ministers mentioned must also be added.

           

            The appointment in the present case, a copy of which is annexed to the affidavit of the Respondent, was made in writing by the Minister of Labour and Building on September 3, 1948.

           

            Counsel for the petitioners also argued that the appointment was invalid as it was not published in the Official Gazette. Such publication, so he contended, is rendered necessary by section 20 of the Interpretation Ordinance which provides:

           

"All regulations having legislative effect shall be published in the Gazette and, unless it be otherwise provided, shall take effect and come into operation as law on the date of such publication".

 

            Counsel also drew our attention to the definition of ''regulations" in section 2 of the Ordinance1) and argued that the appointment of a Competent Authority for the requisition of land has legislative effect.

            The reply to this submission is twofold.

           

            (a) The Defence Regulations (Amendment No. 4) of 1945 provide expressly that section 20 of the Interpretation Ordinance shall not apply to the Defence Regulations.

           

            (b) Regulation 3 of the Defence Regulations contains a special provision in regard to the form of the appointment of a Competent Authority, namely, an appointment by the High Commissioner in writing, and there is no mention of the necessity for publication. The fact mentioned by counsel for the petitioners that in recent times such appointments have sometimes been published in the Official Gazette does not alter the legal position. We have no doubt, therefore, that the appointment of Mr. Yehoshua Gubernik as a Competent Authority for the purposes of regulation 48 was valid.

           

            In the result, therefore, we are of opinion that the Defence Regulations of 1939 in general and regulation 48 in particular were constitutionally valid in Palestine and are still so valid in the State of Israel and that the respondent, who exercised the powers conferred by regulation 48, was a Competent Authority. It remains for us, therefore, to give our decision on the fourth submission of counsel for the petitioners, namely, that the respondent exercised his powers not in good faith but capriciously and vexatiously, and without having regard to the principles of reason and justice.

           

            Before considering this argument we must call attention to certain facts in greater detail.

           

            The flat in question was requisitioned for the benefit of the Attorney-General of Israel, who is a married man with three children. It consists of four rooms, an entrance hall, and the usual conveniences, and is not far from the offices of the Government. Mr. Leon, who is referred to in the original petition as the First Petitioner and who lives in the flat at present, leased it from the owner of the building in 1947 and moved into it with his family. According to the statement before us of Mr. Kleiman, the owner of the building, Mr. Leon informed him in July, 1948, that he was about to leave the flat and that Mr. Kleiman was at liberty to let it to whom he wished. In fact, as we mentioned at the beginning of our judgment, Mr. Leon does not appear at all as a petitioner in this case. Dr. Boris Tamshas, who was joined in the proceedings after the issue of the order nisi, entered into contract of lease - through his agent - with Mr. Kleiman on September 3, 1948. Dr. Tamshas is a doctor from Cairo who fled to France following the latest political disturbances in Egypt. When the petition was filed Dr. Tamshas was in Paris and was already about to leave for Israel with his family. In terms of the agreement mentioned, the owner of the building was to hand over the flat to Dr. Tamshas not later than September 25, 1948.

            Dr. Tamshas, his wife and three children, reached Israel on September 23, 1948. He was born in this country and studied medicine overseas. He practiced as a physician in Cairo, but was in Palestine from 1936 to 1940. He then returned to Egypt and resumed his profession. He now wishes to settle in Israel and continue in medical practice.

            The case before us, therefore, is not one in which the Competent Authority Is about to eject a tenant in order to introduce another tenant into the flat, for the present tenant is about to move to Haifa where the flat of Mr. Ya'acov Shapira has been offered to him. The petitioners before us, therefore, who complain that the competent Authority has requisitioned the flat for the Attorney-General, are the owner of the building and a proposed new tenant.

 

            Many arguments were addressed to us in support of this fourth submission of the petitioners, and counsel himself, in the course of his argument, counted twelve points that he had raised. We shall not deal, however, with each point raised, but will consider the matter generally on its merits.

           

            Counsel for the petitioners well appreciates that according to the law as laid down during the Mandate this court will not interfere with the discretion of the Competent Authority if, in effecting the requisition, that Authority has acted within the limits of its powers. The court for its part will not consider whether the making of the requisition was proper or otherwise. The opinion has been expressed that the court will interfere only where it has been shown that the requisition has been effected maliciously or against the principles of reason and justice. Counsel for the petitioners submitted that we are not bound by the tradition established by decisions from the time of the Mandate but that, on the contrary, it is our duty to depart from that tradition.

           

            Counsel for the petitioners contends that the respondent did not exercise his discretion in good faith, but that he acted capriciously and against the principles of reason and justice. He spoke of a conspiracy between the respondent and Mr. Shapira. He relied upon the facts that Mr. Shapira approached Mr. Gubernik at the end of August in connection with the requisitioning of a flat for his use, and that Mr. Gubernik approached - not the Ministry of the Interior of which he is an official - but the Ministry of Justice; and that after a few days, on September 3, he received his appointment as a Competent Authority from the Minister of Labour and Building.

           

            We fail to see in this any suggestion of a conspiracy. It is only natural that an official who is in need of a flat and who, despite persistent efforts on his part (and we have heard that Mr. Shapira has been living since the beginning of July in one room in the Hotel Gat-Rimmon and has been unable to bring his wife and three children from Haifa to Tel Aviv) has been unable to find one, should take legal steps and approach his Government in order to. secure accommodation.

 

            Counsel also leveled strong criticism against Mr. Gubernik for informing Mr. Leon by letter on September 5th, the day before the issue of the Order of Requisition, that his flat was about to be requisitioned for the purposes of the Government and requesting him not to let the flat or transfer it to another authority without his confirmation. This letter, however, has no effect upon the issue and need not detain us now.

           

            When examined on his affidavit by Counsel for the petitioners, Mr. Gubernik stated that he offered a specific sum of money to Mr. Leon in order to facilitate the transfer of his home from Tel Aviv to Haifa, his intention being to recover a similar sum from Mr. Shapira. Counsel attempted to argue before us that in so doing Mr. Gubernik committed a criminal act in contravention of section 109A of the Criminal Code.1) We can only say that this submission has no substance at all.

           

            Counsel for the petitioners also argued that Mr. Gubernik had used an old English form drafted in accordance with regulation 114 of the Regulations of 1945, and that he had simply copied the language of the form out of habit and without consideration.

           

            If we are to understand counsel's argument to mean that the manner in which the Order of Requisition is drafted shows that the respondent did not consider the merits of the matter and therefore did not exercise his discretion in accordance with the rules of Justice and reason, then it cannot be accepted. It has already been decided in England, in the case of Carrtona Ltd. v. Commisioners of Works and Others, (3), that a Notice of Requisition has no constitutional effect. In that case - which was also a case of requisition under regulation 51(1) of the Defence (General) Regulations in England which correspond to our regulation 48 - the Competent Authority did not emplay in the Notice of Requisition the language of the regulation, but said that it was essential to take possession of certain buildings "in the national interest". It was argued that the notice was invalid since it gave a reason for the requisition which did not appear in the regulation. The regulation speaks of the public safety, the defence of the realm or the efficient prosecution of the war or the maintaining of supplies and services essential to the life of the community, while the notice speaks of a requisition effected because it is essential in the national interest. In commenting upon this aspect of the case Lord Greene M.R. said, at page 562:

 

"...in order to exercise the requisitioning powers conferred by the regulation no notice is necessary at all and, therefore, the question of the goodness or badness of a notice does not in truth arise. The giving of notice is not a pre-requisite to the exercise of the powers and, accordingly, the notice must be regarded as nothing more than a notification, which the Commissioners were not bound to give, that they are exercising those powers. The notice is no doubt for what it is worth, evidence of the state of mind of the writer and those by whose authority be wrote, and it is perfectly legitimate to argue that this notice suggests, on the face of it, that those who were directing their minds to this question were directing them to the question whether the action proposed was in the national interest and not to the specified matters mentioned in reg. 51. But the notice is no more than evidence of that, and when an assistant secretary in the Ministry of Works gave evidence it was perfectly clear that he was using that phrase - and this letter was written on his instructions - as a sort of shorthand comprising the various matters in reg. 51 upon which the requisition would have been justified . . . That point appears to me to have no substance at all".

 

            These remarks of Lord Greene contain the answer to the argument of counsel for the petitioners in this case. Mr. Gubernik stated candidly in his evidence that he could have omitted the words "in the interests of the public safety, the defence of the State" in the Order of Requisition and been satisfied with the words "in the interests of the maintenance of services essential to the life of the community" and perhaps also "the maintenance of public order". We therefore reject all the submissions of counsel based upon the manner in which the notice called an "Order of Requisition" was framed.

           

            Counsel for the petitioners also argued that although he greatly values the work of Mr. Ya'acov Shapira, the Attorney-General of Israel, such work is not covered by regulation 48. His contention before us was that the words "maintaining supplies and services essential to the life of the community" must be read in close association with the words "the public safety, defence, or the efficient prosecution of the war" which precede them, and he asked us to interpret the regulation in accordance with the rule of ejusdem generis.

 

            The simple answer is that section 4 of the Interpretation Ordinance lays down the very opposite, namely, that us a general rule the word "or" is not to be interpreted ejusdem generis. We accordingly have no doubt that the work of the Attorney-General may be included within the expression "services essential to the life of the community" within the meaning of regulation 48.

           

            We cannot agree with counsel for the petitioners that the regulation enables the requisitioning of a flat for the purposes of a government department alone - in this case the Ministry of Justice - and not for the purposes of a flat for the private use of the Attorney-General. We are not unmindful of the fact that the requisitioning of a flat by the ejectment of a tenant who is in occupation (which is not the case here) is a cruel and very serious matter which must be weighed thoroughly by the Competent Authority before it exercises its powers. Counsel for the petitioners, however, has overlooked the fact that in terms of regulation 48 the discretion in regard to the requisition of a flat resides in the Competent Authority and in no other person. The condition mentioned in regulation 48 is "if it appears to the Competent Authority" and not simply "if it appears". Were we to accept the submission of counsel for the petitioners we should have to decide that it appears to us that the requisitioning of this flat is not necessary for the maintaining of services essential to the life of the community. In so doing, however, we should be acting contrary to the law which binds us and whose amendment, if desirable at all, is a matter for the legislature.

           

            It would seem that this submission was advanced by counsel only to show that the decision of the Competent Authority in this case had no reasonable basis whatsoever. He did not weigh the matter at all. This court would then be entitled to interfere. Now in the opinion of the Competent Authority an official, in order adequately to discharge his duties to the State, must have a flat of his own and not be separated from his family for a protracted period. The securing for him of a flat, therefore, without which his services to the State are liable to be adversely affected, is a matter which is necessary for the maintaining of services vital to the life of the community. It cannot be said that this opinion is quite unreasonable, even if there may be some people who disagree with it.

           

            Counsel for the petitioners has also complained of the fact that the respondent requisitioned the flat although he knew that it had already been let to Dr. Tamshas. This argument too is unsound. If the Competent Authority is empowered to requisition a flat which is actually occupied by a tenant he must be empowered a fortiori to requisition a flat where he does not thereby affect the rights of a tenant who was in occupation up to that stage. In the present case, the tenant is about to move to another flat, and he will not suffer as a result of the requisitioning. The only person who will suffer is the new tenant who wishes to enter the flat. Here lies the striking difference between this case and the majority of cases of requisitioning, in which the Competent Authority is compelled to harm the tenant who is actually occupying the flat. This is hardly the case, therefore, in which the law. which has previously been laid down in such matters should be completely reversed.

 

                        Counsel for the petitioners urged repeatedly that regulation 48 was employed in the time of the Mandate when the rights of the individual took second place. He cited, in particular, some judgments relating to requisition in which there existed some political element. We agree that in some judgments delivered during that period in connection with requisition the political element undoubtedly prevailed over sound reason and judicial sense. It is sufficient to mention the judgment of the High Court of Justice in Dinah Kazak v. The District Commissioner, Haifa District, (1). There were also judgments, however, given against the individual in favor of the Competent Authority where there was no hint of a political element. It is sufficient to mention here Zeev Poms and others v. District Commissioner, Lydda District. and Mordechai Gileady, (2), in which the facts were very similar to those in the present case. In such matters the Courts of Palestine followed the decisions of the English Courts relating to the same type of requisitioning under the Defence Regulations. These English judgments, in any event, are completely free of any suspicion of political influence. Instead of citing a number of judgments delivered in Palestine we wish to quote here some remarks of Lord Greene from his judgment in the Carltona Case (3) to which we have already referred. Lord Greene said, at page 563:

           

"The last point that was taken was to this effect, that the circumstances were such that, if the requisitioning authorities had brought their minds to bear on the matter, they could not possibly have come to the conclusion to which they did come. That argument is one which, in the absence of an allegation of bad faith - and I may say that there is no such allegation here - is not open in this court. It has been decided as clearly as anything can be decided that, where a regulation of this kind commits to an executive authority the decision of what is necessary or expedient and that authority makes the decision, it is not competent to the courts to investigate the grounds or the reasonableness of the decision in the absence of an allegation of bad faith. If it were not so it would mean that the courts would be made responsible for carrying on the executive government of this country on these important matters. Parliament, which authorises this regulation, commits to the executive the discretion to decide and with that discretion if bona fide exercised no court can interfere. All that the court can do is to see that the power which it is claimed to exercise is one which falls within the four corners of the powers given by the legislature and to see that those powers are exercised in good faith. Apart from that, the courts have no power at all to inquire into the reasonableness, the policy, the sense, or any other aspect of the transaction."

 

            These remarks of Lord Greene also furnish the answer to the argument of Counsel for the petitioners that the housing situation in Tel Aviv and Jaffa did not make it necessary for this requisition to be effected. If there was to be a requisition, it was possible to requisition a flat in a building which had not yet been completed. This is undoubtedly a matter of housing policy in which this court cannot interfere. It is not the function of this court, moreover, to investigate whether the Competent Authority could not have employed the method of billeting in accordance with regulation 72 of the Regulations of 1939. In the result there has not been the slightest proof before us of mala fides or capriciousness on the part of the Competent Authority, so the fourth submission of counsel for the petitioners must also be dismissed.

           

            We desire to point out in conclusion that in spite of the decision which we have reached in regard to the fourth submission of counsel for the petitioners it was essential for us to deal in detail with his first three arguments which could be determined on points of law alone. Had the petitioners been correct on any one of their first three points they would have succeeded in the case for, in such event, the owner of the building could have protested against any interference with his property and demanded that the order nisi be made absolute without any regard to the particular facts of this matter.

           

            As we have dismissed the three legal submissions of the petitioners and, after consideration of the facts, have also rejected their fourth submission, the order nisi will be discharged.

           

            As in this case, for the first time since the establishment of the State of Israel, legal points of general importance to the community have been raised, no order as to costs will be made against the petitioners.

Order Nisi Discharged.

Judgment given on October 19, 1948.