Standing

 

HCJ 2324/11

1. Shai Gil
2. Nahum Abir
3. Avichai Ratzani (withdrawn)

 

v.

 

1. Minister of Education
2. Judging Committee under the Israel Prize Rules
3. Shimon Mizrahi, Adv.

Requesting to join:  The Yamit Association for Good Governance

 

 

The Supreme Court sitting as High Court of Justice

[11 April 2011]

Before Justices A. Grunis, E. Arbel, and H. Melcer

 

Petition for an order nisi

 

 

 

 

Israeli legislation cited:

Contracts (General Part) Law, 5733 – 1973 s. 33, s. 61.

 

Israeli Supreme Court cases sited:

[1] HCJ 2454/08 Legal Forum for the Land of Israel v. Minister of Education, (not yet unpublished, 17 April 2008)

[2] HCJ 10455/02 Amir v. Israel Bar Association, IsrSC 57(2) 729 (2003)

[3] HCJ 167/06 Weinrauch v. Minister of Education, (unpublished, 23 March 2006))

[4] HCJ 100/64 Mata’ei Emek Ha’arazim v. Jerusalem District Commissioner, IsrSC 18(2) 278 (1964)

[5] HCJ 19/64 Israel Insurance Agents Association v. Insurance Supervisor, IsrSC 18(3) 506 (1964)

[6] HCJ 2205/97 Massala v. Minister of Education and Culture, IsrSC 51(1) 233 (1997)

[7] HCJ 1933/98 Hendel v. Minister of Education and Sport, (unpublished, 25 March 1998)

[8] HCJ 2348/00 National Religious Party Faction v. Minister of Education, (unpublished, 23 April 2000)

[9] HCJ 2769/04 Yahalom v. Minister of Education and Sport, (unpublished, 19 April 2004)

[10] HCJ 3346/09 Legal Forum for the Land of Israel v. Minister of Education, (not yet published, 26 April 2009)

[11] HCJ 3750/03 Gershuni v. Minister of Education, (unpublished, 5 May 2003)

[12] HCJ 2285/93 Nahum v. Mayor of Petach Tikvah, IsrSC 48(5) 630, 642-643 (1994)

[13] HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Elections Committee for the 16th Knesset, IsrSC 57(2) 62, 69 (2003)

[14] HCJ 287/91 Kargal v. Investments Center Administration, IsrSC 46(2) 852 (1992)

[15] HCJ 849/92 Shemen Industries Ltd. v.  Investments Center Administration, IsrSC 47(2) 702 (1993)

[16] AAA 8193/02 Reuven v. Paz Oil Company Ltd., IsrSC 58(2) 153 (2003)

[17] HCJ 4736/03 Alon Oil Company of Israel Ltd. v. Minister of Industry and Trade (unpublished, 15 June 2008)

[18] HCJ 910/86 Ressler v. Minister of Defense, IsrSC 42(2) 441 (1988)

[19] HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Elections Committee, IsrSC 57(2) 62 (2003)

[20] HCJ 962/07 Liran v. Attorney General, (unpublished, 1 April 2007)

 

 

Articles cited:

Daniel Friedman, “Justiciability of Decisions in regard to the Israel Prize,” 5 Hamishpat 181 (2001)

Amnon Rubinstein, “The Standing of a Petitioner before the High Court of Justice seeking to Deny a Third Party’s Right,” 27 HaPraklit 499 (1971)

Dr. Shlomo Levin, “Is there Standing for Standing?” 39 Hapraklit 453 (1990-1991)

 

Facts:

On 9 March 2011, the Minister of Education announced that Advocate Shimon Mizrahi would be awarded the 2011 Israel Prize in the field of sports, upon the recommendation of the Israel Prize Judging Committee. The members of the Judging Committee were Tal Brody, an renowned basketball player who had played for the Maccabee Tel-Aviv basketball team, and who was awarded the Israel Prize in 1979, Gili Lustig, the head of the competitive sports section of the Israel Olympic Committee and a coach of the Israel All-Star volleyball team, and Esther Roth-Shachamorov, a celebrated athlete who had represented Israel at the 1976 Olympic Games, and who was awarded the Israel Prize in 1999. The Petitioners asked that the Court annul the decision, arguing that Brody had acted under a conflict of interests because Advocate Mizrahi had served for many years as the chairman of the Maccabee Tel Aviv basketball team, and he and Brody were professionally and socially acquainted.

Held:

In rejecting the petition, the Court held that the scope of Court’s intervention in decisions concerning the granting of the Israel Prize should be significantly limited, particularly in regard to claims regarding the worthiness of the recipients. Restraint should also be exercised in regard to claims addressing the award procedures. 

The choice of recipients of the Israel Prize is almost entirely non-justiciable, and should be treated, mutatis mutandis, in accordance with the provisions of section 33 of the Contracts (General Part) Law, 5733-1973. The choice of recipients of the Israel Prize involves a significant subjective element. The greater the subjective component of the decision, the narrower the scope of judicial review.

As for conflicts of interest, the members of each judging committee must be people who are well acquainted with the particular field. It is but natural that the members of the committee will be people from that field or related fields. It is hard to imagine that those qualified to serve on the judging committee would not be acquainted with the candidates. If the Court were to adopt a broad approach to conflicts of interest in this regard, it might not be possible to find any person in Israel qualified to serve on an Israel Prize committee. A broad approach in regard to conflicts of interest might also limit the pool of appropriate candidates for the prize, inasmuch as an acquaintance between a member of the committee and a potential candidate would result in the disqualification of the candidate, regardless of his achievements.

Although, the Court should adopt a restricted approach to judicial review of decisions in regard to the Israel Prize, not all such decisions are immune to review. The Court would certainly address issues of corruption or serious flaws in the conduct of the judging committee or the Minister of Education, even if the petitioner had no direct interest in the petition.

The Court was divided on the question of whether petitions such as this justified revisiting the issue of the standing of petitioners who lack a direct interest.

 

 

JUDGMENT

 

Justice A. Grunis:

1. On 9 March 2011, the Minister of Education announced that Advocate Shimon Mizrahi (Respondent 3) would be awarded the 2011 Israel Prize in the field of sports. The Minister announced the award following a decision of the Israel Prize Committee in the Field of Sports which stated as follows:

Advocate Shimon Mizrahi created new management norms in the field of sports. His many years of continuing, voluntary activity led to heightened public awareness of basketball, while ensuring high level, quality management in Israeli sports that resulted in prestigious national and international achievements.

Advocate Mizrahi’s public activity in national and international forums has enhanced the image of Israeli sport in general, and the field of basketball in particular.

 

The petition before the Court, submitted on 23 March 2011, argues that Advocate Mizrahi’s award should be revoked.

 

The Background and Facts

2. The decision to award the prize to Advocate Mizrahi was adopted unanimously by the committee appointed in accordance with the Rules of the Israel Prize. The committee comprised three members: Tal Brody (hereinafter – Brody), who served as chairman of the committee, Gili Lustig and Esther Roth-Shachamorov. Brody was an outstanding basketball player for many years, and played for the Maccabee Tel Aviv team. He was awarded the 1979 Israel Prize for his special contribution to the state and to physical culture. Lustig is the head of the competitive sport section of the Israel Olympic Committee, and a volleyball coach who coached the Israel All-Star team. Roth-Shachamorov was an outstanding athlete who represented Israel at the Olympic Games in 1976. She was the winner of the 1999 Israel Prize in sport and physical culture. Advocate Mizrahi serves as the chairman of the Maccabee Tel Aviv basketball team.

 

3. On 10 March 2011, the day following the announcement that the prize would be awarded to Advocate Mizrahi, the representatives of the Petitioners requested that the Minister of Education rescind the decision to award the prize to Advocate Mizrahi. The request was denied. Therefore, as is has become the accepted practice over the past years, the Petitioners submitted the petition that is before the Court. The Petitioners’ main argument is that the decision is tainted by a conflict of interests and must be revoked in light of the alleged professional and social ties between Brody and Advocate Mizrahi arising from their joint activities in the Maccabee Tel Aviv basketball team. It should be noted that the petition does not question whether “Mr. Mizrahi is actually worthy or unworthy of the Israel Prize”. In their petition, the Petitioners note that they do not cast any personal aspersions upon Brody, and they have no doubt that he acted in good faith. On 6 April 2011, the Petitioners submitted a request to amend the petition (hereinafter – the amendment request). In the amendment request, the Petitioners seek to make a significant change in the petition, and to argue that the decision to grant the prize to Advocate Mizrahi is flawed on the merits, and not just due to a conflict of interests. This claim relies upon a number of past events that, according to the Petitioners, are related to Advocate Mizrahi. Thus they raise a matter from 1988 in regard to the issuing of free Maccabee Tel Aviv game tickets by Advocate Mizrahi. In the amendment request, they also raise new claims in regard to the Israel Prize Rules. Thus, they argue that the procedure for selecting the recipient of the Israel Prize is not properly transparent, and that no minutes of the meeting are recorded. On the day the amendment request was submitted, two additional requests were also submitted: One was a request to remove Petitioner 3, and the other was a request for the Yamit Association for Good Governance to join the petition. In a decision given that day, Justice A. Hayut ordered the removal of Petitioner 3, and that the amendment request and the request to cojoin a petitioner be decided by the panel that would hear the petition.

 

4. Under the circumstances, and in light of the intense interest of the petition and the responses in Advocate Mizrahi and Brody and their relationship, it would be appropriate that we say a few words about the Petitioners and the association that asked to conjoin. The three original Petitioners describe themselves in the petition as “fans of sport in general, and of basketball in particular”. The request to add an additional petitioner was supported by the affidavit of the chairman of the association, Nati Granai. In his response to the petition, Advocate Mizrahi claims that one of the two remaining, original petitioners is a fan of the Hapoel Jerusalem basketball team, and that the second is a business partner of one of the lawyers who signed the petition. As for Nati Granai, the response claims that he is a fan of the Hapoel Tel Aviv basketball team. We do not see any need to address the question of the team preferences of the Petitioners or the association requesting to cojoin. We would further note that we did not see fit to permit the amendment of the petition. The request does not show adequate reason why the new claims were not raised in the original petition. Moreover, the factual claims in the amendment request refer primarily to matters from the distant past. The request to cojoin adds nothing.

 

 

5. As noted, the primary claim raised in the petition is that Brody has a conflict of interest in regard to Advocate Mizrahi, and therefore it was improper that a committee that he chaired awarded the prize to Advocate Mizrahi, especially as it was Brody who suggested that the prize be awarded to Advocate Mizrahi. As noted, Brody played for Maccabee Tel Aviv for several years. Advocate Mizrahi has served as chairman of the team for decades, including during the years in which Brody played for the team. The Petitioners argue that the two enjoyed not only a professional relationship but also a social relationship that continues to this day. The petition further argues, inter alia, that Brody’s name appeared on the list of directors on the Maccabee Tel Aviv Internet site. The petition also relies upon various well-known media publications in regard to Brody’s and Advocate Mizrahi’s relationship. Advocate Mizrahi’s response states that Brody ceased to serve as a director of Maccabee Tel Aviv in 2007. However, according to the response, Brody is invited to board meetings. Advocate Mizrahi’s verified response also states that Brody is not “a personal friend” of Advocate Mizrahi, and that “there is no personal relationship between them beyond professional acquaintance and cooperation”. The response emphasizes that the two are not “close friends”.

 

6. The response of Respondents 1-2, which was very ably drafted by Advocate Dina Zilber of the State Attorney’s Office, argues that the Court’s involvement in decisions to grant prizes, including the Israel Prize, should be as limited as possible. It argues that decisions to award prizes concern matters of respect and prestige and therefore differs from other administrative decisions. Decisions to grant prizes enjoy very wide discretion that, by their nature, involve a subjective element. The Respondents therefore believe that the Court must exercise great restraint in this area. As for conflicts of interest, it is argued that if the Petitioners’ position is accepted, it will be extremely difficult to find judges to serve on the Israel Prize committees, inasmuch as it is but natural that the candidates for the prize will be well-known personalities with whom the judges are professionally acquainted. The Respondents therefore ask that the petition be denied, and of course, that was also Advocate Mizrahi’s request in his response.

 

 

The Israel Prize

7. The Israel Prize has been awarded annually by the state since 1953. The prize is awarded in the fields of Jewish studies, social sciences, humanities, exact sciences, culture, art, communications and sports. In addition to the prizes awarded to outstanding representatives of the above categories, a prize is also awarded for “lifetime achievement – special contribution to society and the state”. The prize is very prestigious, and the winner is also granted a sum of money by the state. The prize is awarded in a special ceremony on Independence Day, in the presence of the President, the Prime Minister, the Chief Justice and the Minister of Education. The legal basis for the prize is cited in the Israel Prize Rules. As of this year, a process has begun for the granting of the prize on the basis of new rules (upon the recommendation of a public committee). The prize is not awarded in all of the categories every year but in accordance with a certain cycle. The candidates for the prize must be Israeli citizens who resided in Israel during the three years prior to their candidacy (except in special cases). The prize is awarded to individuals and not to corporations. A person can receive the prize only once. According to the new rules, each member of a committee may nominate a candidate after receiving the list of candidates. The other judges on the committee do not know the identity of the nominating party, even when that person is a member of the committee.

 

8. The Israel Prize is a state prize intended to recognize people who have excelled in various fields and who have significantly contributed to human knowledge and to Israeli society. In addition to the recognition and honor of those members of society for their important achievements, it is hoped that honoring them will encourage others to excel in the various fields and contribute to society. The prize serves a uniting role on our special holiday. The unique character of the prize can be seen, inter alia, from the fact that is awarded on Independence Day. The prize ceremony has become an ongoing tradition over the decades. Therefore, its uniqueness and status should be assiduously protected. All members of society and, of course, the Court, must take care to avoid taking any action that might detract from its prestige.

 

The Scope of Review of Decisions concerning the Israel Prize

9. In my opinion, the petition should be denied. According to my view, as shall be set forth below, the scope of Court’s intervention in decisions concerning the granting of the prize should be significantly limited. This is particularly so in regard to claims regarding the worthiness of the recipients, that is, in regard to the substantive aspect of the award. But significant restraint should also be exercised in regard to claims addressing the award procedures, i.e., the procedural aspect, especially in regard to claims of conflict of interest.  This narrow approach is grounded on two considerations: First, we are concerned with a subject that is almost entirely non-justiciable. Second, the issue of standing should be reinstituted, if only partially, where the Israel Prize is concerned.

 

10.  As noted, the Israel Prize is awarded in the fields of Jewish studies, social sciences, humanities, exact sciences, culture, art, communications and sports, as well as for “lifetime achievement”. Awarding the prize in each of these fields involves a significant subjective element. Awarding the prize is materially different than winning a sports competition like basketball of athletics. In sports, winning is decided by the result. Once the result is known, the winner is decided as a matter of course. That, of course, is not the case in awarding a prize in a fields like Jewish studies, social sciences or the humanities, as well as for “lifetime achievement”. The greater the subjective component of the decision, the narrower the scope of judicial review. In this regard, we might mention section 33 of the Contracts Law (General Part), 5733 – 1973.

When, under any contract, a mark, a grade, title, prize or the like is to be given according to a decision or evaluation by one of the parties or by a third party, that decision or evaluation will not be the subject of court proceedings.

 

Of course, in this matter we are not concerned with a contract but with unilateral rules adopted by the state. However, the rationale of the section is clear, and applicable even to prizes like the Israel Prize. The decision to award the Israel Prize is an administrative decision, in that it is made by the Minister of Education on the basis of a recommendation of the prize committee. Some might argue that as an administrative decision, it is subject to judicial review like every other administrative decision. I disagree. Due to the special nature of the prize, its subjective component, and the social and ceremonial aspects, the Court should exercise maximal restraint when faced with a petition intended to attack a decision by the prize committee and the Minister of Education (see the opinion of my colleague Justice H. Melcer in HCJ 2454/08 Legal Forum for the Land of Israel v. Minister of Education [1] (hereinafter – the Sternhell case)). It is but natural that in various areas of human endeavor there are different schools of thought or opposing scientific approaches. At times, large ideological gaps arise in the social sciences and the humanities. Similar phenomena are found in various fields of the arts. The Court must not intervene in such debates. Therefore an expansion of judicial review in the area of the Israel Prize must be prevented (see Daniel Friedman, “Justiciability of Decisions in regard to the Israel Prize,” 5 Hamishpat 181 (2001)). Moreover, and perhaps needless to say, the Court lacks the institutional skills to decide disputes in regard to the question of whether a candidate is indeed worthy of the prize that the committee has decided to grant. Indeed, judges lack even the personal skills for deciding whether a candidate is worthy of receiving the prize (except, perhaps, in the case of a prize in the field of law; and cf. HCJ 10455 Amir v. Israel Bar Association [2]).

11.  This petition, and similar petitions submitted in the past in regard to the awarding of the Israel Prize, are characterized by a petitioner or petitioners who do not claim to be worthy of the prize, but rather seek to deny the prize to the person chosen by the judging committee and the Minister of Education. Some might say that it is simply an absence of firgun,[1] while others may go so far as to say that petitioners who seek to strip others of the prize are driven by envy (for an exceptional case in which the petitioner complained that he was not awarded the Israel Prize, see HCJ 167/06 Weinrauch v. Minister of Education [3]). If the Petitioners are, indeed, rivals of Advocate Mizrahi in the field of sports, it would seem that they see his award as a red – or more precisely, a yellow[2] – flag. In the distant past, this Court held that it would not recognize the standing of a person petitioning to deprive another of a benefit (see, HCJ 100/64 Mata’ei Emek Ha’arazim v. Jerusalem District Commissioner [4]; HCJ 19/64 Israel Insurance Agents Association v. Insurance Supervisor [5]). Indeed, since that holding, there has been a dramatic change in regard to standing, and the Court has effectively removed that requirement as a threshold for relief in a petition against an administrative decision. In my opinion, the present case demonstrates the need for reconsidering the matter in view of the socio-cultural price that society may pay for recurring petitions against Israel Prize recipients. The Court must refrain from unintentionally assisting legal proceedings that encourage a lack of firgun and schadenfreude. In my opinion, the Court would do well to adopt rules that would reduce the number of petitions intended to strip a person of a prize, and the Israel Prize in particular.

 

12.  If one were to examine the development of justiciability and standing over the last decades, I believe that one would find a clear correlation between that development and the increase in the number of petitions challenging decisions to award the Israel Prize. Indeed, one might say that just as Independence Day arrives every year on 5 Iyyar, so a petition will be submitted to this Court every year after the Ministry of Education announces the awarding of the prize. It is in interesting to note that this “tradition” of petitions concerning the prize began in 1997, following this Court’s only intervention in a decision to award the prize (in HCJ 2205/97 Massala v. Minister of Education and Culture [6]). Since then, the following petitions have challenged the awarding of the prize to someone: HCJ 1933/98 Hendel v. Minister of Education and Sport [7]; HCJ 2348/00 National Religious Party Faction v. Minister of Education [8]; HCJ 2769/04 Yahalom v. Minister of Education and Sport [9]; the Sternhell case [1]; HCJ 3346/09 Legal Forum for the Land of Israel v. Minister of Education [10]. In a petition of a different nature, the petitioner, who had been chosen to receive the prize for painting, challenged the rule requiring that he personally attend the ceremony in order to receive the prize (HCJ 3750/03 Gershuni v. Minister of Education [11]. It would appear that what we are now witnessing was unforeseeable when the more flexible tests for non-justiciability and standing were instituted. One can also not ignore the additional costs of petitions such as these, even though they are denied. The person chosen to receive the prize by the prize committee finds himself having to defend himself as if he were a criminal defendant. He must, of course, be included as a respondent to the petition, and he must respond to the various allegations often made against him. The respondent may hire a lawyer to represent him in the proceedings. If he is required to pay legal fees, it is unlikely that he will be compensated for his expenses even if the petition is denied.

Those considerations are the basis for my position in regard to the need to significantly limit judicial review of decisions to award the Israel Prize.

13.  We shall now address the traditional justification for rescinding the requirement of standing, according to which, even when a petitioner has no personal interest in the subject of the petition, the Court must intervene in flawed administrative decisions because of its duty to contribute to the rule of law and to ensuring that government agencies act lawfully. Therefore, it is argued, we must ignore the possible motives of the Petitioners in this case, and their lack of personal interest, and focus upon the alleged conflict of interest. As we may recall, this allegation concerns the claimed professional and social relationship between Brody and Advocate Mizrahi. There is no dispute as to the professional relationship. That relationship spanned many years, inasmuch as the former played for Maccabee Tel Aviv while the latter served as chairman of the team. It is also undisputed that the relationship continued after the conclusion of Brody’s career as a player. As for the social relationship, it would appear that the parties disagree. In any case, under the circumstances, and as I shall explain below, there was no flaw that would justify this Court’s intervention, and there is certainly no flaw sufficiently serious as to warrant rescinding the decision. It may have been preferable for Brody to refrain from nominating Advocate Mizrahi. Nevertheless, we should bear in mind that, at the end of the day, the committee’s vote was unanimous – including the two judges against whom no allegations are made – that the prize be awarded to Advocate Mizrahi.

 

14.  The members of each judging committee must be people who are well acquainted with the particular field. If, for example, we are concerned with a prize in the field of Jewish studies, it is but natural that the members of the committee will be people from that field or related fields. In our small country, and not only in it, it is hard to imagine that those qualified to serve on the judging committee would not be acquainted with the candidates. If a member or members of the judging committee are not acquainted with the work of the candidate, one might argue that such a member is not qualified to serve on the committee. A similar issue arose before this Court in regard to the awarding of the 2009 Israel Prize for “Lifetime Achievement – Special Contribution to Society and the State” to the Israel Democracy Institute (HCJ 3346/09 [10]). The Court denied the petition even though there were some relationships among all of the members of the judging committee, as well as between the Minister of Education’s advisor on the Israel Prize and the Democracy Institute. Another case adjudicated before this Court concerned the awarding of the Israel Prize for Political Science to Professor Zeev Sternhell of the Hebrew University of Jerusalem. The chairman of the judging committee was Professor Shlomo Avineri of the Political Science Department of the Hebrew University. Conflict of interest was not argued in that case. Perhaps if we were we to accept the argument of the Petitioners in the instant case, we should also retroactively rescind that award (see the Sternhell case).  If the Court were to adopt a broad approach to conflicts of interest, it might not be possible to find any person in Israel qualified to serve on an Israel Prize committee. Will we have to import judges from abroad for that purpose, as is occasionally done in regard to judges of sports matches?!

 

15. A broad approach in regard to conflicts of interest has an additional, clear disadvantage in that it might necessarily limit the pool of appropriate candidates for consideration by the judging committee. This would be the case as an acquaintance between a member of the committee and a potential candidate would result in the disqualification of the candidate, regardless of his achievements. Let us examine this in regard to the concrete case before us: If Brody is indeed disqualified from serving on a committee examining the candidacy of Advocate Mizrahi, the significance is that Advocate Mizrahi is disqualified as a candidate. The matter can be examined from another angle:  Is it imaginable that this Court would entertain a petition by Advocate Mizrahi against the constitution of the committee because Brody is one of its members? Advocate Mizrahi could raise such a claim as a petitioner, saying that Brody’s appointment to the committee would bar his candidacy from consideration by the committee. It would see that it was the good fortune of several Nobel Prize winners that their awards did not have to pass the tests advanced by the Petitioners in this case and others dealing with the Israel Prize.

 

16.  Although, in my view, the Court should adopt a restricted approach to judicial review of decisions in regard to the Israel Prize, clearly not all decisions in that regard can be said to be completely immune. For example – and hopefully one that  will remain hypothetical – if financial corruption, such as bribery, were discovered in regard to the prize, the Court would certainly intervene even if the petitioner had no direct interest in the petition. We can also say that if a very serious flaw were found in the conduct of the judging committee or the Minister of Education, the Court would certainly address the petition. This approach is comparable to this Court’s approach in regard to ignoring a claim of laches raised by a respondent. As is well known, if a petitioner delays in submitting a petition to the High Court of Justice, the petition may be dismissed for that reason alone (in regard to Administrative Courts, see Regulation 33 of the Administrative Courts Regulations (Procedures), 5761 – 2000). Only a serious flaw in a decision or administrative proceeding will lead to a rejection of a claim of laches, particularly when the petitioner has no personal interest (see, HCJ 2285/93 Nahum v. Mayor of Petach Tikvah [12], at 642-643, per Y. Zamir, J.).

 

17.  Another matter, though marginal, should nevertheless be mentioned. I am referring to the influence of petitions like the one before the Court upon other litigants who turn to the Court, but who must, at times, wait long periods for a hearing. The decision to award the Israel Prize to Advocate Mizrahi was published on 9 March 2011. The petition was submitted on 23 March 2011. The Israel Prizes will, by tradition, be awarded on Independence Day, which this year will be celebrated on 10 May 2011 (6 Iyyar). Of course, this petition must be decided before the date of the award. On 6 April 2011, the duty judge (my colleague Justice E. Hayut) decided that the petition would be heard by the Court no later than 27 April 201. The hearing was held on 11 April 2011. Petitions in regard to the Israel Prize in the past have also been heard shortly after their submission. As a result of the fact that petitions in regard to the prize, and petitions of similar character and urgency are meant to be heard soon after their submission, cases that have already been set for hearing must be delayed or the Court must set aside space in its calendar for urgent petitions. The clear result is that other litigants suffer, although their already pending cases may be more worthy of precedence on the merits.

 

Conclusion

18. We are concerned with a petition to rescind the decision to award the 2011 Israel Prize for sports to Advocate Mizrahi. As I have explained, in my view the Court should adopt a narrow approach in regard to prize decisions. A decision concerning who is to receive the prize need not be addressed by the Court on the merits, except in exceptional cases, such as corruption. A similar, though less strict approach should be adopted in regard to the election process and the decision procedure. We should bear on mind that even petitions that are ultimately denied may, by their sheer number, harm the prize and detract from its prestige. The Court should take care that it not unintentionally encourage a lack of firgun, or envy and schadenfreude. Independence Day is a holiday that unifies the nation, despite the differences and divisions of the rest of the year. The Israel Prize has become an important, traditional feature of the national holiday. It is to be hoped that awarding the prize will cease to be a focus of discord. In the field of sports, the contests should remain sporting, and the appropriate forum should be on the boards or the grass and not the Court.

 

19. The petition is denied. Petitioners 1-2 will pay the legal fees of Respondents 1-2 in the amount NIS 20,000, and the same amount to Advocate Mizrahi.

 

 

 

Justice E. Arbel:

I concur with the judgment of my colleague, Justice A. Grunis, in denying the petition.

In his judgment, my colleague addressed the question of the scope of judicial review of decisions related to the Israel Prize. I agree that, as a rule, the Court should refrain from intervening in the decisions of the committee that decides upon awarding the prize, and that the committee enjoys broad discretion in this regard. In any case, these are not decisions that are meant to be the subject of legal proceedings (sec. 33 of the Contracts (General Part) Law, 5773 – 1973). I also agree that the Court should exercise great restraint in regard to intervening on the basis of claims against the selection process. However, as I have noted in the past, “…that is not to say that the decisions of the prize committee are immune to judicial review. The prize committee, like any administrative body, is subject to judicial review, but where the decision of the prize committee to award the Israel Prize to a certain person has been arrived at in good faith and on the basis of relevant professional considerations, there is no cause for the intervention of this Court in the decision (HCJ 2454/08 Legal Forum for the Land of Israel v. Minister of Education [1]).

However, and although I entirely agree with my colleague on the importance of preserving the Israel Prize as a uniting element on the State of Israel’s national holiday, as an expression of appreciation of a person’s contributions to the state and society, and as reinforcing the appreciation of excellence in Israeli society, I believe that we should show great restraint in limiting standing. Indeed, there are petitions against decisions to grant the prize to someone that are vexatious and seem to be brought out of envy rather than true desire that the prize be awarded only to those deserving it. Indeed, there are petitions in this regard that express a certain lack of understanding of the public nature of the prize, as it is not required that a prizewinner, his opinions and views necessarily represent the public consensus, as if anyone knows what that consensus might be and whether it is good and proper. But the Court’s open gates can also ensure that certain decisions that are appropriate for judicial review due to material flaws will be brought before the Court. My colleague indeed notes that there may be cases – and let us hope that we not witness such occurrences as financial corruption in regard to the prize – in which the Court will open its gates before a petitioner who has no direct interest in the petition. I believe that should surely be the case where there is no potential petitioner with a direct interest in the petition, and that even where there is a specific victim who did not petition the Court, there should remain an exception – not overly restricted – to the approach limiting access to public petitioners that would apply to matters of importance or significance that goes beyond the individual case (see, in this regard, the decision of Justice A. Procaccia in HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Elections Committee for the 16^th Knesset [13]. For these reasons, I would not set rules in stone in regard to the standing issue in the context under discussion. My assumption is that the Court will know how to identify – as it has until now – the exceptional cases that justify extending relief to a petitioner whose standing is unclear, which cases should be addressed even if it would appear that the petitioner lacks any direct interest, and which cases should be dismissed in limine for that reason.

 

                                                                                                                       

Justice H. Melcer:

1. At the end of my opinion in HCJ 2454/08 Legal Forum for the Land of Israel v. Minister of Education Yuli Tamir [1] I wrote:

In conclusion, we can only hope that, in the future, legal proceedings in these matters will become unnecessary, and that the Israel Prize will continue to be what it always has been – the highest accolade of the State of Israel for its finest researchers, scientists and contributors to our society.

 

It would seem that the hint was not taken, as the petition before the Court proves. I therefore agree with the forthright judgment of my colleague, Justice A. Grunis. Nevertheless, I will permit myself two comments:

 

1. In my opinion – as far as recommendations of the judging committee acting in accordance with the Israel Prize Rules are concerned, or the decisions of the Minister of Education to accept or reject those recommendations (to award or not award the prize) – the substantive decision in these matters should not be a subject for legal proceedings. This is what is required by the provisions of section 33 of the Contracts (General Part) Law, 5737 – 1973, which should, in my opinion, be applied to the matter in accordance with section 61 of that law.

 

2.             Like my colleague Justice E. Arbel, I do not think that this case justifies setting rules in stone (once again) in regard to the issue of standing. Moreover, in related situations in the past, two separate areas were distinguished (in regard to which various justifications were given for expanding standing):

 

 

1.       The area concerning the status of a petitioner before the High Court of Justice who petitions to deny the right of another by reason of infringement of freedom of occupation, promoting competition, or preventing discrimination. This status was recognized in overruling the rule in HCJ 100/64 Mata’ei Emek Ha’arazim Ltd. v. Jerusalem District Commissioner [4]. For a critical examination of the issue, see Amnon Rubinstein, “The Standing of a Petitioner before the High Court of Justice seeking to Deny a Third Party’s Right,” 27 HaPraklit 499 (1971). On the change in the rule, see: HCJ 287/91 Kargal v. Investments Center Administration [14] at 856-862; HCJ 849/92 Shemen Industries Ltd. v.  Investments Center Administration [15] at 706-709; AAA 8193/02 Reuven v. Paz Oil Company Ltd. [16]; HCJ 4736/03 Alon Oil Company of Israel Ltd. v. Minister of Industry and Trade [17].

 

2.       The area concerning the status of a public petitioner in constitutional petitions or petitions concerning infringement of the rule of law See: HCJ 910/86 Ressler v. Minister of Defense [18]; HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Elections Committee [19]; HCJ 962/07 Liran v. Attorney General [20]. For criticism of the rule, see Dr. Shlomo Levin, “Is there Standing for Standing?” 39 Hapraklit 453 (1990-1991).

 

2. In my view, the fact that the Petitioners before us sought to deny the Israel Prize to Respondent 3 on the basis of arguments that they believed had some basis in public law does not justify limiting standing in the above two categories, or confusing them. In my opinion, assessing costs in this area of frivolous petitions should be sufficient for the time being to achieve the necessary balance among the relevant competing interests.

 

3. In conclusion I would emphasize that the message should be clear and potential petitioners should be aware of two principles:

1. Sometimes it is appropriate “lefargen”[3] (an expression borrowed from Yiddish, but that has no Hebrew equivalent, and perhaps for a reason).
2. It is about time that we leave the Israel Prize and its recipients alone.

 

Held as per the opinion of Justice A. Grunis.

22 Nissan 5771

26 April 2011

 

 

 

 

 

HCJ 3429/11

 

Petitioners                                             1. Alumni Association of the Arab Orthodox School in Haifa

                                                   2. Radwan Badarneh

                                                                    3. Ayman Miari

                                                                    4. Hazar Hijazi

                                                                    5. Ron Shapira

                                                                    6. Arik Kirshenbaum

                                                                    7. Professor Oren Yiftachel

                                                                    8. Adalah – Legal Center for Arab Minority Rights in Israel

                                                                    9. The Association for Civil Rights in Israel

 

                                                                    v.

 

Respondents                                         1. Minister of Finance

                                                                    2. Knesset

 

                                                         .

The Supreme Court sitting as the High Court of Justice

[5 October 2011]

 

Before President D. Beinisch, Vice President E. Rivlin, Justice M. Naor

 

Petitions for an order ­nisi and for an interim order.

 

Facts: The Budget Elements Law was amended in 2011 to include a new section 3b, which provided that if an entity that receives support or budgeting from the government incurs an expense that falls within any of several listed categories, the Minister of Finance can reduce the entity’s budget or support by an amount no greater than three times the size of the said expense. Of the categories listed, the petitioners focused their challenge on two of them: the first, sub-section 3b(b)(1), referring to an expense which was “in essence” a negation of the values of the State of Israel as a Jewish and democratic state; and the second,  sub-section 3b(b)(4), referring to an expense which was “in essence” a marking of the day of Israel’s establishment as a day of mourning. A decision to reduce the budget in accordance with this section requires that the Minister of Finance first receive an opinion from a professional team composed of representatives from various ministries, the approval of the minister in charge of the budget item through which the entity received funding, and an opinion from the legal adviser to the Ministry of Finance. In addition, he must also grant the relevant entity a hearing on the matter.    

The petitioners are the alumni association of an Arab school in Haifa, which runs various activities that are held at the school, dealing with issues of Arab and Israeli identity; several parents of students in a bilingual Arab-Jewish school, whose goals include education about respect for other cultures and in which activities are held that commemorate both Israeli Independence Day and Nakba events; and an academic who is the proponent of a model/theory that describes Israel as an ethnocracy, rather than as a democracy. All the petitioners argued that they could be harmed by the exercise of the Budget Elements Law’s provisions; the statutory provisions were also challenged on the ground that they effectively constituted a violation of the right to education, collective identity and freedom of expression and of occupation.   

Held: Justice Naor held that the petition should be denied on the basis of the ripeness doctrine and because of the availability of an alternative proceeding and remedy.  Because the statutory provisions had not actually been implemented against any of the petitioners or any other parties at all, and because there was therefore no way of knowing how the law would be implemented, if at all, against the petitioners, the Court could not reach an informed decision regarding the constitutionality of the manner and scope of its hypothetical application.  The uncertainty (and consequently, the absence of sufficient ripeness) was heightened by the fact that the law itself prescribed an extensive process of supervision and review before any decision to reduce funding could be implemented. Justice Naor also found that the petition to the High Court of Justice could be denied because of the availability of an alternative proceeding and remedy; once the Law had been implemented, a petition challenging a reduction in funding could be brought in the Administrative Matters Court. An indirect attack on the constitutionality of the Law would also be permissible in that context.  President Beinisch and Vice President Rivlin concurred, with President Beinisch adding that there was no need to decide the matter of the availability of an alternative proceeding and remedy.

Petition denied.

Legislation cited:

 

Budget Foundations Law (Amendment No. 40) 5771 -2011

Administrative Courts Law, 5760-2000

Disengagement Plan Implementation Law, 5765-2005

Civil Wrongs (State Liability) Ordinance (Amendment No. 7), 5765-2005

Public Education Law, 5713-1953

 

Israeli Supreme Court cases cited:

 

HCJ 7190/05 Lobel v. Government of Israel (unreported, 2006) [1]........................... 10

HCJ 731/86 Micro Daf v. Israel Electric Corp. [1987] IsrSC 41(2) 449 [2].............. 13

HCJ 6163/92 Eisenberg v. Minister of Construction & Housing, [1993] IsrSC 47(2) 229 [3]            13

HCJ 991/91 David Pasternak Ltd. v. Minister of Construction & Housing, [1991] IsrSC 45(25) 50 [4]          13

HCJ 2009/07 Klein v. American Friends of Israel Scouts (unreported, 2007) [5].... 13

HCJ 453/84 Iturit Communications Services Ltd. v. Minister of Communications [1985] IsrSC 38(4) 617 [6]               13

HCJ 217/80 Segal v. Minister of Finance [1980] IsrSC 34(4) 429 [7]....................... 13

HCJ 1842/04 Michai v. Ministry (unreported, 2003) [8]............................................... 14

HCJ 1431/05 Orian v. Minister of Transportation (unreported, 2005) [9]................ 14

HCJ 128/09 Basiso v. Minister of Defense (unreported, 2009) [10]............................ 15

HCJ 6556/11 Glickman v. Major-General Sami Turjeman, Commander of the IDF Land Forces (2011) (unreported) [11]         15

HCJ 8276/05 Adalah – the Legal Center for the Rights of the Arab Minority in Israel v. Minister of Defense (2006) (unreported) [12]  15

HCJ 7052/03 Adalah – the Legal Center for the Rights of the Arab Minority in Israel v. Minister of the Interior (2006) (unreported) [13].................................................................................................................................................. 16

HCJ 3248/09 Sari v. Minister of Justice, (2009) (unreported) [14]............................. 17

HCJ 6972/07 Lakser v. Minister of Finance (2009) (unreported) [15]....................... 17

HCJ 1468/11 Ben Sa’don v. Minister of Religious Affairs (2011) (unreported) [16] 20

HCJ 2208/02 Salameh v. Minister of the Interior, [2002] IsrSC 56(5) 950 [17]....... 21

HCJ 212/03 Herut National Movement v. Chairman of the Central Committee for the Election of the 16^th Knesset [2003] IsrSC 57(1) 750 [18]........................................................................................................................................... 21

HCJ 2426/08 Ben Atar v. State of Israel – Ministry of Transportation (2008) (unreported) [19]       21

HCJ 6715/10 Hina v. State of Israel, Ministry of Defense, Department of Rehabilitation (2010) (unreported) [20]      21

HCJ 2055/02 Sheikh Abed Al Karim Abayet v. Minister of Defense (2002) (unreported) [21]            21

HCJ 1076/07 Maman Eilat Group Ltd. v. Minister of Finance (2009) (unreported) [22]     21

HCJ 6090/08 Berger v. Minister of Justice (2008) (unreported) [23]......................... 21

 

US Supreme Court cases cited

 

Abbot Labs et. al. v. Gardner, 387 U.S 136 (1967) [24]................................................. 15

United Public Workers of America (C.I.O.) et. al. v. Mitchell et. al., 330 U.S. 75 (1947) [25]             18

 

 

 

For the petitioners                             — H. Jabarin, S. Zahar, D. Yakir

 

For respondent 1                              — S. Rotsenker

For respondent 2                              — Dr. G. Blay, E. Yanun

 

 

JUDGMENT

Justice M. Naor

The Budget Foundations Law (Amendment No. 40), 5771 - 2011 authorizes the Minister of Finance to reduce the budget of a supported or financed entity under certain circumstances and after a specific procedure; the reduction may be ordered when it is found that the entity has incurred an expense which is, in its essence: a rejection of the existence of the State of Israel as a Jewish and democratic State, or the marking of Independence Day or the date on which the State of Israel was established as a day of mourning. The procedure to be followed before the reduction can be ordered is that the Minister of Finance must first receive an opinion from specified parties, grant a hearing to the entity and obtain the consent of the minister in charge of the matter. The petition before us is directed against the constitutionality of the provisions of this law.

 

 

 

Background

On 4 January 2009, the Draft Independence Day Law (Amendment – Prohibition of the Marking of Independence Day or the Date of Israel’s Establishment as a Day of Mourning) – 5769-2009 (hereinafter: “the Draft Independence Day Law”) was placed before the Knesset. The amendment sought to anchor the prohibition of any activity or event that refers to Israeli Independence Day as a day of mourning or a day of sorrow. This proposed law was abandoned (passively) and on 6 July 2009 its backers placed before the Knesset the Draft Budget Foundations Law (Amendment – Prohibited Expense) 5769-2009 (hereinafter: “the Draft Budget Foundations Law” or “the Draft Law”). This Draft Law was supported by the Ministers Committee on Legislation, subject to coordination of the legislative processes with the Minister of Justice and the Minister of Finance. Coordination between the various parties led to changes being made in the text of the original Draft Law, after which it passed a first reading in the Knesset. After more changes were introduced in the text in anticipation of the second and third readings, the Knesset, on 23 March 2011, passed the Budget Foundations Law (Amendment No. 40), 5771-2011 (hereinafter: “the Law”). The key issue raised in the petition before us is the constitutionality of the provisions of sections 3b(b)(1) and (4) of the Law. The relevant sections provide as follows, with an emphasis added to those parts whose constitutionality is being challenged:

‘1.  The following will be inserted after s.3a of the Budget Foundations Law, 5745 -1985:

3b.  (a) In this section –

“Entity” – a financed or supported entity, as these are defined in s. 21, and a supported public entity pursuant to s. 3a:

“Expense” – includes a waiver of income.

(b) If the Minister of Finance finds that an entity has incurred an expense which is in its essence one of the items listed below (in this section – “an unsupported expense”), he may, with the consent of the minister in charge of the budget item pursuant to which the entity is financed or supported, and after affording the entity a hearing, reduce the amounts that are to be transferred from the State budget to that entity pursuant to any law:

(1) Rejection of the existence of the State of Israel as a Jewish and democratic state;

(2) Incitement to racism, violence or terror;

(3) Support for an armed struggle or terrorist act, of an enemy state or of a terrorist organization, against the State of Israel;

(4)  Marking of Independence Day or the date of the establishment of the State of Israel as a day of mourning;

(5)  An act of destruction or physical contempt which defiles the State flag or the State symbol;

(c)  No reduction pursuant to sub-section (b) may exceed an amount which is three times the size of the unsupported expense.

(d)     (1) The Minister of Finance may make a decision pursuant to sub-section (b) after obtaining an opinion from the legal adviser to the Ministry of Finance regarding the fulfillment of the provisions of that sub-section, and after he has received the recommendation of a professional team regarding the scope of the unsupported expense; the consequences of the reduction for the entity or for other parties related to it; and the proper amount of the reduction, given all the circumstances of the matter.    

              (2) In this sub-section, the term “professional team” shall mean a team appointed by the Minister of Finance whose members include an employee of the Ministry of Justice, at the recommendation of the Minister of Justice; an employee of the Ministry of Finance; and an employee of the ministry whose minister is in charge of the budget item pursuant to which the entity is financed or supported, at the recommendation of that Minister.

 Arguments raised in the petition

2.    Before responding to the petitioners’ arguments, I wish to briefly present the seven petitioners in this case. Petitioner 1 is a non-profit organization which includes approximately 90 alumni of the Arab Orthodox High School in Haifa (hereinafter: “the School”). Petitioner 1 was incorporated for the purpose of supporting the School and increasing cooperation among its alumni. Each year, Petitioner 1 organizes several activities in various areas, which include discussions of the State’s identity, the status of its Arab citizens and the “Future Vision of the Arabs in Israel” documents. In addition, Petitioner 1 conducts educational activities dealing with Palestinian history and its activities are carried out in the School. Petitioner 1 believes that some of its activities are likely to fall within the framework of those items that constitute grounds for reduction of its budget pursuant to the Law, and that the size of the School’s budget’s will consequently be at risk.

3.    Petitioners 2-6 are parents of students who study in the “Galil” school in the town of Misgav, which is a bi-lingual and bi-national school (hereinafter: “the Bilingual School”) and a formal educational institution that is recognized by the Ministry of Education. It seeks to promote a shared lifestyle as well as education about equality and respect for the cultures of other groups within the society in which the students live. In order to achieve its objectives, the Bilingual School conducts various activities in anticipation of Memorial Day and Independence Day, the purpose of which is to mark both Independence Day and the Nakba events. Petitioners 2-6 fear that the Bilingual School will be forced to restrict its activities and that its abilities to achieve its goals will thus be impaired.  

4.    Petitioner 7 is an academic who developed a model according to which he argues that the Israeli regime is a type of “ethnocracy”. As this model indicates, Petitioner 7 believes that the State of Israel cannot be defined as Jewish and democratic. Petitioner 7 is concerned that the Law will impair the possibility of conducting an academic and public discussion of the model that he has developed, since such a discussion is likely to refer to the negation of the existence of the State of Israel as a Jewish and democratic state. Petitioner 7 is also concerned that the Law will have serious consequences for his writings and publications.   

5.    We now move on to the petitioners’ claims. The petitioners have, as stated, attacked two of the grounds listed in subsection 3b(b). The petitioners argue that the other three grounds set out in the Law for reduction of budgetary support will also create substantial constitutional difficulties in that they restrict freedom of speech. They also see a constitutional difficulty arising from the fact that these sections empower the Minister of Finance to impose measures that are in essence punitive sanctions with respect to actions that are defined as offenses – but without stipulating that a due process proceeding be held in a court to determine that a criminal offense has been committed.  Nevertheless, the petitioners have focused their petition and their constitutional challenge only on the two grounds listed in sections 3b(b)(1) and 3b(b)4.  According to the petitioners, the damage done by these sections is “the most harmful”.

6.    According to the petitioners, the Law harms the historic memory of the Arab minority by allowing the majority to use its power to repress the narrative of the Arab minority with respect to events, facts, feelings and ideologies. According to their argument, there is no difference between the marking of the Nakba, on the one hand, and the non-recognition of the State of Israel or the non-recognition of the self-determination of the Israeli Jews, on the other hand, since the use of the term “Al-Nakba” – which means “the tragedy of all tragedies” – is intended to stress the historic aspect of the tragedy.   They argue that the Law seeks to indirectly deter the occurrence and development of a cultural discussion regarding the concept of “Al-Nakba” and the constitutional definition of the State. According to the petitioners, the scope of the damage is very serious, and the Law “uses vague and unclear terms, which creates considerable uncertainty as to how the Minister of Finance and the courts will interpret its provisions.”

7.    The Petitioners then point to a list of rights that they argue are violated by the Law’s provisions. I will discuss their arguments only briefly, because I see no need to discuss the details more extensively, given my ultimate conclusion regarding the issue raised in the petition. The argument made is that the Law violates the freedom of political, artistic and academic expression. It is argued that the prohibition of political expressions on the basis of their content alone is inconsistent with the “near certainty test” for permitted prohibitions of expression, as established in the case law. They argue further that the Law is likely to violate freedom of artistic expression, which has also been given special broad protection even when real offense is given to the sensitivities of a part of the public, and even when such freedom clashes with official political positions. It is also argued that the violation of freedom of expression is especially sweeping in that a single act which falls within the scope of either of the two challenged grounds for budget reduction, even if only marginal, will be sufficient to justify the imposition of a financial sanction.

8. In addition, the petitioners argue that the Law violates their right to equal treatment because it discriminates on the basis of nationality and on the basis of social or political ideology. According to this argument, there is a serious concern that the Law will prevent Petitioner 1 from carrying out those of its communal and cultural activities that have a cultural-political character – activities that are directed at developing a discussion of the status of Arab citizens and of the historic wrong that has been done to them. In contrast, the Law will have no impact on the alumni organizations of Israeli schools which conduct various activities relating to the identity and Jewish character of the State. The Law will not affect activities directed at commemoration of the Jewish-Zionist narrative, either. It is also argued that the violation of the right of Petitioners 2-6 to equal treatment is reflected in the fact that the bilingual schools such as the school in which these petitioners’ children study will not be able to realize their central and essential objectives – objectives that include the exposure of Jewish and Arab students to the nationalist narratives of groups other than their own. In contrast to this, other special schools will be able to continue their activities that are directed at the achievement of their educational objectives. In addition, it is argued that Petitioner 7 will suffer from discrimination based on his scientific and academic research, and that his position within the academic world is likely to be substantially impaired. In contrast, it is argued, academics who promote undemocratic positions that refer to Israeli Arabs as constituting a demographic threat will continue to maintain their academic status, without any infringement of their work.

9.    The petitioners argue that a budgetary statute that discriminates on the basis of nationality or political ideology through the adoption of a nationalist-ethnic ideology is an unconstitutional discriminatory statute. It is further argued that although the Law is worded in a neutral manner and applies equally to the activities of both Arabs and Jews and to both Arab and Jewish institutions that receive state financing or support, it is clear that the intention is to impact primarily on Arab citizens.

10.  Another argument made is that the Law violates the right to education. The Law will prevent the children of Petitioners 2-6 and others from receiving an education based on the Palestinian nationalist narrative, and is thus in violation of the objective of public education, as such is defined in s. 2(11) of the Public Education Law, 5713-1953. It is also argued that the violation will maintain and even increase the suppression that has developed because of the Ministry of Education’s strict monitoring of the education provided in Arab schools. An additional claim made is that the Law violates the right of the students’ parents to freely choose an educational institution for their children in accordance with their own educational ideology and philosophy.

11.  The petitioners also argue that the Law’s provisions lead to a violation of the right to freedom of occupation for all those who in the framework of their work are involved in a critical examination of the nature of the state as a Jewish state (such as Petitioner 7 and the teachers in the Bilingual School). It is also claimed in this context that Petitioner 7’s right to equal treatment in exercising his freedom of occupation is restricted, as opposed to other academics with political perspectives that conform to the views of the majority.

12.  Finally, the petitioners claim that the Law violates the right of Arab citizens to collective dignity. It is argued that the Palestinian narrative is an integral part of the identity of most Israeli Arabs, and that the attempt embodied in the Law’s provisions to restrict the discussion of this narrative violates a constitutive element of the identity of these Arab citizens. It is also argued that the attempt to prevent opposition and legitimate protest against the values of the state as a Jewish and democratic state violates the collective dignity of the Arab citizens because it prevents them from objecting to the fact of the discrimination to which they are exposed. It is argued that the Law seeks to shape and outline the values and perspectives of the Arab minority, as well as its behavior, by using a tool that is tied to the state budget.

13.  The Petitioners argue that the Law does not comply with the provisions of the limitations clause of the Basic Law: Human Dignity and Liberty. The Law gives the representative of the executive branch broad discretion, in that its provisions do not provide clear criteria that indicate when a budget reduction will be allowed; the Law’s sections are broad, vague, ambiguous and general. It is argued that these statutory provisions do not comply with the tests for primary legislation arrangements as established in this Court’s case law, and that the violation of constitutional rights therefore contravenes the provisions of the Basic Law: Human Dignity and Liberty, which require that any violation either be anchored in a statute or permitted pursuant to a statute. It is also argued that the violation of these constitutional rights does not have an appropriate objective, in that the violation is caused in an arbitrary fashion, it involves political considerations and it penalizes the petitioners in particular and the Arab population in general. It is also argued that the Law has no proper objective because it violates the public interest – an interest which specifically requires protection of the principle of cultural pluralism, freedom of expression, equality, freedom of occupation and dignity. It is further argued that the Law lacks a proper objective because it violates democratic values and indirectly allows the imposition of collective punishment, since the entire group of those benefitting from a particular service may be harmed because of a single act, or because of the act of a single individual. According to the petitioners, in light of the fact that the Law is not a statute as defined in the Basic Law, and because it lacks an appropriate purpose, there is no need to examine the matter of whether it is proportionate, since the Law’s purpose is the starting point for the three-part test for proportionality.

14.  Finally, it is argued that the Law has a “chilling effect” and deters certain activities, because of a concern that such activities will be covered by the Law’s provisions, and will thus lead to the imposition of budgetary sanctions.

The position taken by Respondent 1

15.  Respondent 1 argues that the petition challenges the constitutionality of a law before the manner of its implementation and application has been examined by the authorized parties; Respondent 1 argues further that the petition is based on various extreme scenarios that the petitioners presented, even though the likelihood of their occurrence is completely unknown and it is also unknown whether the Law will in fact apply to them. Respondent 1 therefore argues that it is too early to reach a decision regarding this petition, because as of the current time, the Minister of Finance has not yet been asked to implement the Law in any concrete situation and no interpretative content has yet taken form with respect to his authority pursuant to the Law; and that this petition is thus overly generalized and theoretical. Respondent 1 emphasizes that pursuant to the provisions of the Law, a professional team must be established in order to exercise the granted authority, and the Minister of Finance must receive an opinion from the legal adviser to his Ministry and hold a hearing for the entity regarding which he is considering exercising his authority. In addition, the Law requires that the Minister of Finance obtain the approval of an additional minister (other than himself) – the minister who is in charge of the relevant budgetary item. Regarding this issue, Respondent 1 cites the position that I took in HCJ 7190/05 Lobel v. Government of Israel [1], in which I chose to make use of the “ripeness” doctrine that has been applied in the past in the field of constitutional law. According to this doctrine, a court may refrain from deciding an abstract dispute if there is no clear and complete factual background that has been presented to the court with respect to the issue facing the court.

16.  Respondent 1 offered an additional threshold argument, relating to the legal forum in which the petition should have been brought. The argument is that even if a concrete decision to reduce a budget had been reached pursuant to the Law, the proper forum for the deliberation of the issues raised regarding such a decision would be the Administrative Matters Court, as provided in Item 40 of the First Schedule to the Administrative Courts Law, 5760-2000 (hereinafter: “the Administrative Courts Law”). Respondent 1 argues that this Court cannot take the place of the entity that is authorized pursuant to that law, and issue a forward-looking legal opinion with regard to the manner in which the authority granted in the Law should be exercised.

17.  The argument is also made that the Law, on its face, does not apply to the petitioners, as they do not fall within the Law’s definitions of a “financed entity” or a “supported entity”.

18. In light of the conclusion I have reached, I see no need to respond at length to Respondent 1’s substantive arguments. I will note briefly that Respondent 1 believes that this Court’s intervention would not be justified, as the Law passes the test set out in the limitations clause for a statute’s constitutionality. Respondent 1’s argument is that the Law fits into Israel’s framework of statutes that sustain its existence as a Jewish and democratic state, while preserving the state’s right to protect its basic principles. Respondent 1 also argues that the state has the prerogative to direct the allocation of its budget and not to finance activities the purpose of which is to undermine the basis for its existence. The core principles on which the state is based are a legitimate consideration in terms of the distribution of budgets, and the state may choose not to finance activities that are not consistent with these core principles. In addition, it is argued that the Law establishes a mechanism of restraint, balance and supervision through which decisions about budget reductions are reached. The intention is not to have the Law apply to marginal or minimal activity, but instead only to those activities which in their essence negate the character and existence of the state, including its character as a Jewish and democratic state.

19.  Regarding the petitioners’ claim that there has been a violation of various basic rights, Respondent 1 argues that the Law does not violate freedom of expression. Respondent 1 argues that the supported or budgeted entity retains the right to choose whether or not to carry out those activities that conflict with the grounds for budget reduction that are stipulated in the Law, but the Law allows the Minister of Finance to decide – when dealing with a supported or budgeted entity that engages in such activity – that the state will not finance the entity’s activity that falls within the categories listed in the Law. For this reason, it is also argued that there is no violation of a right to collective dignity. In addition, the Minister of Finance argues that even if there is a violation of freedom of expression, that violation nevertheless complies with the terms of the limitations clause of the Basic Law: Human Dignity and Liberty. Regarding the petitioners’ argument that the Law violates the principle of equality, Respondent 1 argues that the Law applies to any supported or financed entity whose activities are covered by one of the grounds enumerated in the Law. Respondent 1 notes that a claim that the Law may be abused, in that it might be enforced in an arbitrary fashion, is only a theoretical claim. Respondent 1 argues that the claim regarding a violation of the right to education should also be rejected. It is argued in this context that, inter alia, the state may and is entitled to promote those goals that it wishes to emphasize and to budget resources for the purpose of achieving those objectives. In the instant case, the relevant objectives are the goals of public education and the principles underlying the Declaration of Independence. In response to the claim concerning a violation of freedom of occupation, Respondent 1 argues that this is again a remote and theoretical concern – one that is not based on the facts. Respondent 1 argues, at length, that even if there has been a violation of a constitutional right, it is a violation which is permitted pursuant to the conditions set out in the limitations clause.

Response of Respondent 2

20.  Respondent 2 describes at length the reasons that justify a denial of the petition. Some of its claims are similar to those of Respondent 1, and there is therefore no need to repeat them, as they have already been noted above in the discussion of Respondent 1’s claims.

21.  Regarding the right to equality, Respondent 2 argues that this case involves a budget reduction for certain entities, pursuant to the Law, which is carried out on the basis of the relationship between the activities of such entities and the basic principles of the state, and without any connection to the national identities represented by those entities. Respondent 2 also notes that there are Jews who wish to deny the Jewish character of the state, such as Petitioner 7. Respondent 2 argues that the Petitioners’ claim is far-reaching and suggests that any time that the state wishes to promote Zionist or Jewish values, even without discriminating directly against individuals on the basis of their nationalities, it will be seen as discriminating against members of the Arab nationality. Respondent 2 argues further that the state of Israel recognizes its Jewish and Zionist values alongside its democratic values and its constitutional framework. Thus, the granting of a particular position to these values within the framework of the state’s laws is presumptively not an unlawful discriminatory act.

22. Next, Respondent 2 argues that even if the right to education (a right that the petitioners claim is also being violated) is recognized as a constitutional right, this Court has held in the past that the State may determine different levels of financing for educational institutions in accordance with their compliance with the core studies program established by the Ministry of Education; this Court has held that such a determination is neither discriminatory nor a violation of the right to equal education. Accordingly, Respondent 2 argues that even though the petitioners are free to promote a curriculum which is based on the Palestinian national narrative, the State is not required to finance that curriculum.

23. With respect to the claim that there has been a violation of the freedom of employment, Respondent 2 argues that this right is a protective right which is intended to ensure for each individual an area in which he can support himself without interference from others. It is therefore argued that the Law does not violate the right to freedom of employment, as it does not prohibit the employment of teachers or lecturers who wish to promote values that deny the Jewish and democratic nature of the State, and who mark Independence Day as a day of mourning. The Law also does not prevent any individual from teaching content that falls within the definition of such activity. The Law only provides that the State will not participate in the financing of such activities.

Discussion and determination

24.  My position is that at this stage, the petition should be denied without any decision being made regarding the constitutional questions presented to us, and I will suggest to my colleagues that we so hold. I do not deny that the petition before us raises important and fundamental questions and issues. Despite the importance and complexity of these issues, this is not the time to respond to their substance. I will explain myself as follows:  

25. As is known, the power granted to the High Court of Justice pursuant to s. 15(c) and (d) of the Basic Law: The Judiciary is a power that the Court may or may not exercise, in accordance with its own discretion (see: HCJ 731/86 Micro Daf v. Israel Electric Corp. [2], at p. 456; HCJ 6163/92 Eisenberg v. Minister of Construction & Housing, [3], at p. 243; HCJ 991/91 David Pasternak Ltd. v. Minister of Construction & Housing [4], at pp. 58-59; and HCJ 2009/07 Klein v. American Friends of Israel Scouts [5], at para. 11). Over the years, rules have been developed regarding the circumstances in which this discretion may be exercised in the form of the rejection of a petition. These rules do not constitute a numerus clausus, and they can be changed and given new content as needed at a specific time and location (see: HCJ 453/84 Iturit Communications Services Ltd. v. Minister of Communications [6], at p. 620). The rules allow for the rejection of a petition under, inter alia, the following circumstances: when alternative relief is available, when there has been a previous petition or when there may be a theoretical later petition regarding the same matter, when there has been delay or an absence of clean hands on the part of the petitioner, when a petition is overly general, or when the route for legal proceedings has not been fully exhausted, etc. This is not, as stated, a numerus clausus. Justice A. Barak referred to these rules, which qualify as “judicial creations”, in his remarks in HCJ 217/80 Segal v. Minister of Finance [7], at p. 440, in which he noted that they are intended to regulate the pace at which appeals are addressed to the Court.

26.  As noted, the above-mentioned list of grounds for rejecting a petition is not a numerus clausus. In Lobel, the petitioners sought to attack the constitutionality of the Disengagement Plan Implementation Law, 5765-2005 (hereinafter: “the Disengagement Law”) by challenging the section of that law which permitted the imposition of criminal sanctions on parties who were being removed from the Gaza Strip, and who remained in the area after the removal day. An expanded panel of this Court summarily rejected the petition, on the ground that there was an alternate remedy: the constitutional claims could be raised in the framework of a criminal proceeding brought against an individual who had violated the Disengagement Law. Note that in that case, the state, at the end of the day, decided not to prosecute residents who had violated only the provisions of the Disengagement Law. The criminal sanctions were imposed only against those few residents who used violence against the security forces, and who committed additional criminal offenses. The circumstances of that case led me to the conclusion that the petition should be rejected because of the availability of an alternate remedy, and I therefore joined in President Barak’s opinion; however, I also supported a rejection of the petition because the issue it presented was not yet ripe. In my view, there was no reason at that stage to decide an issue of principle in the framework of a direct constitutional attack on the Disengagement Law in the High Court of Justice. And I stress that the ripeness doctrine was not used for the first time in the Lobel opinion cited by the state here. It had already been mentioned in this Court’s earlier case law. Thus, in Segal [7], Justice A. Barak remarked that the grounds established by this Court for a summary dismissal included the ripeness doctrine as well:

‘We may also mention the doctrine relating to an academic or unripe issue, or an issue that is not justiciable. These doctrines attempt to give the court – each from a different perspective – legal mechanisms with which the court can lock its gates when it believes that the particular matter should not be dealt with’ (Segal [7], ibid., at p. 440).

Indeed, from time to time, we encounter petitions that we decide to reject on the grounds that, for various reasons, the questions they present are not ripe for decision. Non-ripeness as a ground for dismissal has been mentioned both in response to petitions relating to administrative cases and, often, in response to petitions relating to constitutional matters. (For examples of petitions that were submitted in connection with administrative cases and were rejected on the grounds that they were not ripe, see the following: in HCJ 1842/04 Michai v. Ministry [8], this Court held that as the competent authority had not yet decided the petitioners’ case, the petition was early and unripe; in HCJ 1431/05 Orian v. Minister of Transportation [9], we rejected a petition that was general and theoretical, and was for that reason held to be unripe for decision; and in HCJ 128/09 Basiso v. Minister of Defense [10], the petitioner asked that she be allowed to return to her home in the Gaza Strip. This Court rejected the petition because we found that the petitioner had just left the country, and that the planned time for her stay abroad had not yet passed; it was therefore held that her petition regarding her ability to return to her home was not ripe for decision. In HCJ 6556/11 Glickman v. Major-General Sami Turjeman, Commander of IDF Land Forces [11], the Court rejected an appeal that was directed, inter alia, at a Chief of Staff Order concerning the service of male and female soldiers together. We held that under the circumstances of that petition, there was no need to study the interpretation of the order or its applications, because a staff team was still working on a study of the subject. In such a situation, it was held, a petition seeking to subject the army’s instructions to judicial review was not yet ripe. For examples in which petitions dealing with constitutional issues have been rejected on the ground that they were not yet ripe, see Lobel [1] and HCJ 8276/05 Adalah – the Legal Center for the Rights of the Arab Minority in Israel v. Minister of Defense [12], (“Adalah I”) discussed below.

27.  The source of the ripeness doctrine is American constitutional law (see Lobel [1], per Justice Naor, at para. 5). The United States Supreme Court faced the issue in Abbott Laboratories, et. al. v. Gardner [24] at pp. 148-149, when it held that the rationale at the basis of the doctrine is the Court’s need to avoid deciding issues before the time is ripe for the Court to do so:

‘Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.’

28. I believe that the circumstances here justify the application of the ripeness doctrine. At this stage, the issue raised by the petition is not yet ripe for a judicial determination, due to the absence of a clear, complete and concrete set of facts – the type of fact pattern that is essential if a judicial determination of the principle of the issue is to be properly made. The importance of a crystallized dispute for the purpose of making a determination regarding a constitutional issue has been discussed by my colleague, Vice President E. Rivlin, in his opinion in HCJ 7052/03 Adalah – the Legal Center for the Rights of the Arab Minority in Israel v. Minister of the Interior  [13] (“Adalah II”), at para. 6:

‘The deliberation is not fruitful when it takes place too early, before the dispute is known, or when it has not yet crystallized.’

The Minister of Finance has not yet, on any occasion, carried out those sections that the petitioners wish to have stricken, and we cannot know whether, when and in what circumstances the Minister will make use of the powers that these sections confer upon him. The mechanism established in the Law provides that before the Minister of Finance decides to impose the financial sanction, the issue must go through several stages of review and approval. The Minister’s decision will only be carried out in coordination with various other parties, and only after their opinions are obtained. Thus, for example, the Law requires that in order for a financial sanction to be imposed, the minister in charge of the budgetary item through which the entity in question is either budgeted or supported must agree to the imposition of that sanction. Additionally, the budgeted or supported entity that will be affected must be given a hearing before the sanction can be imposed. Furthermore, pursuant to sub-section (d) of the Law, the Minister of Finance can only reach a decision to reduce funding after receiving an opinion from the legal adviser to the Ministry of Finance and only after the specially-appointed professional team has made its recommendation. The Law provides that the professional team will be composed of an employee of the Ministry of Justice, an employee of the Ministry of Finance, and an employee of the ministry whose minister is charged with the budget item through which the entity is either budgeted or supported. I note here that the mechanisms established in the Law were the fruit of various discussions held in the Knesset’s Committee on the Constitution, Law and Justice. As may be recalled, the original draft law placed before the Knesset was the Draft Independence Day Law – a draft law which sought to prohibit any activity or event which includes a marking of Independence Day or a reference to the fact of the establishment of the State of Israel as a “day of mourning” or a “day of tragedy”. This prohibition was accompanied by a penal sanction of up to three years imprisonment. This proposal was abandoned, as stated, and the Budget Foundations Law was tabled in its place. However, the Draft Budget Foundations Law also went through many changes before it was enacted in its final form; for example, Respondent 1’s Response indicates that the definition of a “prohibited expense” was narrowed and it was determined that it would apply only to activities which were in their essence the equivalent of one of the grounds listed in the section and not for every expense that “could”  fit within one of those grounds. The Law also provides for a controlled and careful decision-making process, which I have noted above – a process that includes, as stated, professional opinions, a hearing, and the consent of the minister in charge of the relevant budgetary item. The Law also provides that the budget reduction for the supported or budgeted entity may not be of an amount greater than three times the amount of the expense that has led to the imposition of the sanction. (Originally, the amount of the reduction was up to twenty times that amount, which was then reduced to ten times the amount of the expense).

29. Thus, the Law requires that a long road must be travelled before the sanction created by the Law can be imposed. I will not take any position at this stage regarding the mechanism established in the Law or regarding the Law’s constitutionality. However, at this stage, before the Law has been implemented and when the mechanism established therein has also not yet entered into operation, I do not believe that there is any reason to engage in speculations and estimations regarding the manner in which the power granted in the Law will be exercised. As I noted in Lobel [1], a well-informed judicial determination must be tightly connected to concrete facts that are presented in the case before the court, even if a constitutional question has arisen. (See: Lobel [1], at para. 6. See also HCJ 3248/09 Sari v. Minister of Justice [14], at para. 3; HCJ 6972/07 Lakser v. Minister of Finance [15], at para. 26). In this case, there have not yet been any incidents in which a question has arisen regarding the application of the Law, its interpretation or its consequences. The situation was similar in Adalah I [12], in which this Court was asked to decide the issue of the constitutionality of the Civil Wrongs Ordinance (State Liability) (Amendment No. 7), 5765-2005. With regard to the provisions of that law, President (emeritus) A. Barak held, and his colleagues concurred, that s. 5c of the law was invalid. However, it is his discussion of s. 5b of that law that is relevant to our discussion here. Regarding that section, it was held that the issue presented in the petition was not yet ripe. Some of the remarks made in that case are also pertinent here:

‘The question of the constitutionality of s. 5b of Amendment 7 arose before us in a marginal manner only . . . We were not presented with any cases in which the question of its application arose. All this reflects upon the question of the constitutionality of the section. In these circumstances, as long as these questions have not been properly addressed, the time has not come to decide the constitutionality of s. 5b. Much depends on the manner in which it is implemented and the interpretation that is given to the provisions of the section. . . . Naturally, the parties have the right to raise their arguments concerning the constitutionality of s. 5b as it will arise in specific cases. The civil courts are competent, in specific tort cases, to examine arguments concerning the constitutionality of the section. In the circumstances of this case, we see no reason to decide the question of the constitutionality of s. 5b of Amendment 7. (Emphasis in the original – M.N.) (Ibid. [12], at para. 31).  

30. The United States Supreme Court dealt with a similar issue in United Public Workers of America (C.I.O.) et. al. v. Mitchell et. al. [25]. In that case, the plaintiffs, who were all federal employees, challenged a statute that prohibited their participation in political activities. Except for one employee, none of the plaintiffs had actually violated the statute, but they had all declared their intention to become involved in political activity of the type that had been prohibited by the statute. The Court held that other than the issue presented by the single plaintiff who had already violated the statute, there was no legal question that could properly be decided. The Court noted the employees’ concern that if they did violate the law they would lose their jobs, but held that because the employees had not yet violated the statute, this was a purely hypothetical-speculative concern which did not justify a judicial determination or the granting of judicial relief:

‘The power of courts, and ultimately of this Court, to pass upon the constitutionality of acts of Congress arises only when the interests of litigants require the use of this judicial authority for their protection against actual interference. A hypothetical threat is not enough. We can only speculate as to the kinds of political activity the appellants desire to engage in or as to the contents of their proposed public statements or the circumstances of their publication. It would not accord with judicial responsibility to adjudge, in a matter involving constitutionality, between the freedom of the individual and the requirements of public order except when definite rights appear upon the one side and definite prejudicial interferences upon the other’ (ibid. [25], at p.89-90).

Justices Douglas and Black presented the minority view, and wrote that the dispute could be adjudicated. Justice Douglas wrote that the plaintiffs did not need to wait until they actually lost their jobs. To remove doubt: I also believe that there can be cases in which even in the absence of a concrete foundation for a dispute, it would be wrong to postpone the adjudication of a particular petition until a specific factual background – one that can cause substantial harm to the petitioners – has arisen, and in such cases it would be proper to decide a question even if it has not yet become fully ripe. However, even if we agree with the minority view in United Public Workers [25], the outcome in our case would not change. In the instant case, even if the Law’s provisions had been put to use, the impact on the petitioners would not be immediate. As stated, because of the complex decision-making mechanism prescribed by the Law, a multi-staged process separates the initial decision by the Minister of Finance and its actual implementation. In any event, if the Minister does exercise his power pursuant to the Law and such exercise is likely to harm some of the Petitioners, the option of initiating legal proceedings remains open. It should also be noted that one element of the mechanism established in the Law is the holding of a hearing for an entity that is likely to be harmed.

31. As stated, not every petition that lacks a concrete factual foundation should be summarily dismissed on the ground that it is unripe. Each case must be judged on its merits. As noted, the lack of ripeness is a threshold ground for dismissal, and a court may exercise discretion in deciding whether or not to rely on it. It is certainly possible that on some occasions, even in the absence of a concrete factual background, a court should nevertheless address the issue raised in the petition. We can draw an analogy to the fact-pattern of United Public Workers [25], and find that the Court’s intervention at an early stage would be justified if the circumstances are such that if a petitioner is asked to wait for his case to become ripe, he will pay too heavy a price. Thus, for example, if the Draft Independence Day Law had been enacted as law, and if the petitioners had sought to attack its constitutionality, this Court might have responded to the petition even before use had been made of its provisions in a concrete case. This judicial response would have been needed because of the harsh criminal sanction that was contained in Draft Independence Day Law (three years imprisonment).  However, this does not mean that whenever a petition challenges the constitutionality of a law which contains a criminal sanction, this Court must address it despite its lack of ripeness. (Regarding this matter, see Lobel [1], opinion of Justice Naor.) As I have noted, the Court must exercise its judgment in each case, based on the specific circumstances that are presented.

32.  Moreover, the Response submitted by Respondent 1 indicates that we cannot be certain that the Law will apply to the petitioners in this case. In addition, even if the Law does apply to the petitioners, there is still uncertainty regarding the degree to which it will apply to them or to others, and in what circumstances it will apply. The use of the ripeness doctrine does not mean that the courthouse doors are permanently closed before the petitioners or before others, or that the Court will not deliberate the issue in the future. It may be that in the future – if and when the Law’s provisions are put into use and the petitioners or others feel that they have been harmed by that use – the petitioners will be able to address the competent tribunals who will adjudicate their claims. In such a situation, and on the basis of a concrete factual background, the disputed issue will certainly be more coherent, and this will make the deliberation more efficient; the Court will be able to render a wiser decision, based on concrete facts (see HCJ 1468/11 Ben Sa’adon v. Minister of Religious Affairs [16]). Nevertheless, it may also be the case that the passage of time will render a deliberation of a petition irrelevant, as the petitioners’ concerns may never be realized (compare, Lakser [15]) – either because the Minister of Finance may fail to exercise the power conferred upon him by the Law, or because the provisions will be exercised in a manner that does no harm to the petitioners; other factors may allay the petitioners’ original concerns as well. However, in the current situation, the operative significance of the Law is not yet clear and it is not yet the right time for us to respond to the substance of the claims (compare Ben Sa’adon [16]).

33.  I wish to add the following to these remarks: the ripeness doctrine is, as stated, one of the tools that this Court can use to establish the pace at which petitions are brought before it. It allows the Court to regulate, to a certain degree, the flow of matters submitted to it and to refrain from deciding matters when the Court believes that there is no justification at that particular time for determining the issues presented (see Segal [7], supra). The Court has discretion to determine the circumstances in which it will apply the doctrine, in the framework of the power the legislature has conferred upon it in s.15 of the Basic Law: The Judiciary. When it weighs the various considerations for and against the deliberation of a particular petition, the Court must also consider the need to organize its time, given that the time available to us is a finite resource. When this Court is faced with a petition that is particularly urgent, we work night and day to decide the issue that is before us. However, when the submission before us is a petition that is not yet ripe – a petition that does not include a clear, complete and concrete set of facts – the Court must consider whether a theoretical adjudication is justified at that particular stage.

34.  Furthermore, I believe that alongside the above-mentioned threshold ground for dismissal based on a lack of ripeness, the petition here should also be denied because an alternative proceeding and remedy are available. In Lobel, I noted that the ripeness doctrine is sometimes combined with other threshold grounds for dismissal, such as the availability of an alternative proceeding and remedy. This is because the ripeness required for an informed determination concerning the constitutional issues is likely to take shape in the context of the pursuit of an alternative remedy (see ibid., at para. 8). That is the case here. In the framework of the amendment of the Law, the Knesset also amended the Administrative Matters Court Law, such that the list included in First Schedule of that law was expanded to include a new item 40; this item confers on the Administrative Courts the power to adjudicate petitions dealing with the reduction of financial support pursuant to a decision by the Minister of Finance. It is black-letter law that the granting of power to the Administrative Matters Courts does not negate the power of this Court (see HCJ 2208/02 Salameh v. Minister of the Interior [17], at p. 953; HCJ 212/03 Herut National Movement v. Chairman of the Central Committee for the Election of the 16^th Knesset [18], at p. 756). However, the choice to petition the Administrative Matters Court is a choice to take the intended main road. Of course, the petitioners may also raise their claims regarding the constitutionality of the Law in the context of a petition to the Administrative Matters Court. The authority of the High Court of Justice to adjudicate claims regarding unconstitutionality does not prevent a deliberation of such claims in an “ordinary” court (see HCJ 2426/08 Ben Atar v. State of Israel – Ministry of Transportation (2008) (unreported) [19],  per Justice Naor, at para. 3; HCJ 6715/10 Hina v. State of Israel, Ministry of Defense, Department of Rehabilitation [20], at para. 5; HCJ 2055/02 Sheikh Abed Al Karim Abayet v. Minister of Defense [21], at para. 5; HCJ 1076/07 Maman Eilat Group Ltd. v. Minister of Finance [22]; Adalah I, supra). A party who believes that he has been harmed by the implementation of a law may thus turn to the Administrative Matters Court by filing a petition. In the context of such a petition, the party may use an indirect attack to present arguments regarding the constitutionality of the particular law. It has already been held that trial courts can adjudicate a particular litigant’s matter through an indirect attack, even if the litigant can, in principle, submit a petition to the High Court of Justice. This has also been allowed in cases in which the “indirect attack” was brought by the litigant who initiated the proceeding, and did not use it as a defensive claim (see: HCJ 6090/08 Berger v. Minister of Justice [23], at para. 5; Hina, supra; Lakser [15], at para. 29). The ability to present their claims in the form of an “indirect attack” also gives the petitioners the ability to pursue an alternative remedy (see: Hina, supra; Berger [15]; Orian, supra; and see:  Sheikh Abed Al Karim Abayet; and see: Lobel [1], per President A. Barak, at para. 12, and per Justice Naor, at para. 1). And furthermore: in the context of an administrative petition, it will be possible to ask for temporary relief in the form of an order for the non-implementation of the sanction.

35.  The existence of an available alternative proceeding and remedy in this case reinforces the conclusion that this petition is not ripe for decision by this Court. If a petition does need to be filed, it will be filed in the Administrative Matters Court, and to the extent necessary, it will be based on a concrete factual background, and not on hypothetical scenarios, as is the case in the petition which is before us now. The concrete facts will also allow that court to decide whether or not a concrete interpretation of the Law justifies the particular decision reached by the Minister of Finance, or whether the constitutional question needs to be decided.

36.  In conclusion: the petition before us contains complex questions that are of public importance, but at this stage, there is no need to render a judicial decision concerning the claims that have been presented. The petition is not ripe because of the absence of a concrete factual background – and we must have a concrete factual background in order to reach a decision regarding the various issues raised by the petitioners. In addition, if the petitioners or any of them or others are harmed as a result of the Law’s implementation, they have an alternate proceeding and remedy available to them in the Administrative Matters Court, where they will also be able to file an application for an order nisi preventing the implementation of the Law with respect to them.

37.  I propose to my colleagues that the petition be denied without an order regarding expenses.

President D. Beinisch

I agree with my colleague Justice M. Naor that the petition before us raises complex questions which are of public importance. I stress that these questions can, in certain circumstances, reach the core of the problems that currently divide Israeli society. However, I accept my colleague’s position that the petition before us is not ripe for judicial review. At a declarative level, the Law raises, on its face, difficult and complex questions, but the constitutionality of the Law is largely dependent on the interpretive content that is given to its provisions, and the nature of this content will only become clear when the Law is implemented by the relevant authorities.

Before a judicial determination can be made regarding the circumstances to which the Law will apply and the scope of its implementation, the executive needs to be allowed to set the boundaries and procedures for its implementation. The petitioners have painted various scenarios of hypothetical possibilities, and we cannot yet determine the likelihood that any of these scenarios will be realized. We do not know to whom they will apply, whether they will indeed relate to the petitioners, or what event will justify the implementation of the Law. We must therefore leave for a later time a deliberation of the constitutionality of the Law’s provisions – if indeed there is a need for such at the stage when they are put to concrete use, if such a stage is reached, and if the chosen form of implementation passes through the relevant filters established in the Law itself.

As of now, I also do not see a need to decide the question of the availability of an alternative remedy, and whether, when the time comes, a decision reached pursuant to the Law should be deliberated in the Administrative Matters Court or in this Court. That question will also be decided in the future, on the basis of the particular circumstances that arise.

I therefore join in the result reached by my colleague.

 

Vice President E. Rivlin

I join in the judgment of my colleague Justice M. Naor. I believe that under the circumstances, we are far from the concrete stage of the  implementation of the law. This is because according to the law itself, a long way must be travelled between the occurrence of an event mentioned in the Law and the actual imposition of a sanction – and there are many obstacles to overcome over the course of this distance. Furthermore, it is not at all certain that the Law will actually apply to the petitioners. With respect to constitutional judicial review, this natural selection is the result of the absence of factual circumstances which raise the constitutional question. In foreign systems which implement concrete factual examinations, this natural selection precedes constitutional review. Such examination often renders the actual constitutional review redundant.

For these reasons and for the reasons described by my colleague Justice M. Naor and those listed in the judgment written by my colleague President Beinisch, I join in their decisions.

 

Decided as per Justice M. Naor

10^th of Tevet 5772.

15 January 2012.

                                                                                    AAA 3782/12

 

The Appellants	1. Tel-Aviv Jaffa District Commander – Israel Police 2. Central District Commander – Israel Police 3. Israel Police
	v.
The Respondent	The Israel Internet Association
The Formal Respondents	1.      012 Smile Telecom Ltd. (pro forma) 2.      018 Xphone Ltd. (pro forma) 3.      Bezeq International Ltd. (pro forma) 4.      013 Netvision Barak Ltd. (pro forma)

 

In the Supreme Court sitting as the Court of Appeals in Administrative Matters

[24.3.2013]

Before: President A. Grunis, Justices E.Vogelman, N. Sohlberg

 

Appeal against decision of the Tel-Aviv- Jaffa District Court of 2 April 2012 in Case AAF 45505-10-10 handed down by Deputy President Hon. Judge Michal Rubinstein

 

Facts: In August 2010, the Israel Police ordered major Israeli Internet access providers to block access to eight gambling websites operating outside the State of Israel. The orders were based on section 229 of the Penal Law that permits the District Police Commander to order the closure of any illegal gaming, lottery, or gambling place. The access providers complied with the orders and the Israel Internet Association petitioned the Administrative Affairs Court against the District Commander, contesting the closure, in the interests of Israeli web-users and the general public. The Internet access providers did not petition against the closure of access to the gambling websites. On April 2, 2012 the Administrative Affairs Court (per Judge Michal Rubinstein) granted the petition, holding that the police had no authority to order Internet service providers to block access to gambling websites. 

 

In granting the petition, the Administrative Affairs Court ruled that the Israel Internet Association had an independent right of standing, given the important public interest in enforcing constitutional values and maintaing the rule of law, notwithstanding that no petition was filed by access providers themselves. Furthermore, the closure of Internet websites violated freedom of expression. Even if the content curtailed was of little social utility, websites closure can only be done with legal authority. Primarily the provision in the Penal Law allowed the closure of a physical “place” and did not include the closure of an Internet website. In this context no analogy can be drawn from the closure of prohibited physical places to the closure of prohibited websites, notwithstanding their similar purposes, because the potential for violating freedom of expression and freedom of occupation, and because blocking access to the Internet poses technical, political and legal difficulties, including the possibility of blocking legitimate websites and innocent users. Blocks by third parties – the access providers – also raises questions relating to liability, the manner of blocking and its costs. In view of all these factors the petition was granted.

An appeal was filed against the decision in the Supreme Court.

 

Held:

Regarding freedom of expression, the Supreme Court agreed unanimously that the content blocked on the gambling websites is limited in this case and hence the violation of free speech that resulted from blocking lawful content on gambling websites is of limited degree and lawful. Moreover, the primary infringement here relates to the website operators’ freedom of occupation. In this regard, the case law has already held that the infringement of freedom of occupation, the infringement satisfies the constitutional tests.

 

With respect to the concern that protected information on websites would be blocked, the Court noted that website owners can make such information available on alternative websites, or even on the same website while blocking only prohibited gambling.

 

Regarding standing, Justice Vogelman ruled that the Internet Association satisfies the conditions for recognizing a public petitioner, given that it seeks to promote the public interest of Internet users, an interest shared by the general public, or significant parts thereof, rather than protect its own special interest. Given this case presents a first attempt to define the boundaries of the district police commander’s authority under section 229 of the Criminal Law to block access to Internet gambling websites, the question is a fundamental one that justifies hearing through public petition. As to the sufficiency of the factual infrastructure, had the Appellants felt that any issue was not sufficiently clarified, they could have acted to remedy the situation. Moreover, the public petitioner is required to present the factual infrastructure sufficient for the proceeding. In the current case the factual infrastructure was indeed sufficient for purposes of judicial review.

 

The dispute and the result involved two basic issues: first, whether the language of the Penal Law authorizing police to close a “place” can and should be interpreted broadly to include a virtual Internet website, which is not a physical place, without a specific legislative amendment. The second and more important question was whether the police can and should be permitted to exercise their authority of closure with respect to a website by way of a third party, namely the access providers. 

Justice Vogelman (for the majority, with concurrence by President Grunis), wrote that a gambling website may be viewed as a “place,” and its blocking can also be viewed as its “closing” within the meaning of section 229(A)(1). Additionally, an online gambling site may be considered a “prohibited gaming venue,” under a purposive interpretation of the Criminal Law’s relevant provisions and in the context of time and advancing technology, which render section 229 of the Criminal Law applicable in the “virtual” world. Nonetheless, the main obstacle to such interpretation is the lack of express authority to order private third parties – access providers – to assist in implementing the authority to block websites. According to Justice Vogelman, when the law empowers a governmental agency, it is assumed that the legislature intended that agency, and not another, would implement that authority, and that the agency may act only within the boundaries of the authorizing law. Even if the authorization to close a place can be interpreted as authorizing closing websites, it is not identical to authorizing third parties to block access to websites.

 

This is consistent with the principle of administrative legality which only permits an agency to act within legislation that empowers governmental agencies to order third parties to assist in exercising that agency’s authority. Such authority is not even implied in the Penal law’s provision concerning police authority to order the closing of a place.  Absent explicit statutory source, it is impermissible to compel a person or private entity to act for the authorities. Hence the orders to access providers here violated the principle of administrative legality. The current statutory framework is insufficient because it lacks authorization to order a third party to assist enforcement agencies in exercising their powers.

Even though the rule is that the authority is permitted to receive assistance from private persons or entities as far as the technical aspects of fulfilling their task, there is also an interpretative presumption against delegating authority to private entities and in the absence of appropriate legislative framework, enforcement authority cannot be granted to those not part of the enforcement mechanism

Even if the access providers were not required to exercise discretion, and the police only requested help from them in the exercise of its authority – in the technical act of blocking a website identified through its IP address specified on the order – it is still necessary to prove that the access providers agreed to assist the police. Once the police imposed an obligation upon access providers, it can no longer be considered assistance – hence the need for explicit statutory authorization.

 

Justice N. Sohlberg, writing for the minority, found that as a rule the court will not grant a public petition where there is a private victim in the background who chose not to apply to the court for relief, and that in light of the website owners failure to file an appeal, it is doubtful whether the Internet association has standing. Furthermore, granting standing when the relevant party did not file a petition might mean that the required factual infrastructure would not be presented to the Court. Nonetheless under the circumstances, where the Administrative Court recognized the Internet Association’s standing and ruled on the merits, it would be inappropriate to reject the appeal for of lack of standing without examining the matter on the merits.

 

Regarding the substantive issue, though a specific legislative arrangement would be preferable, the law’s existing language provides a satisfactory solution as to the police authority to issue orders, and waiting for legislative authority frustrates appropriate response in law enforcement and service of justice.

Both in terms of language and purpose the word “space” should be interpreted to also mean virtual space, given that terms that serve in virtual space are borrowed from the tangible world. Accordingly there is no deviation from the principle of legality by finding that “place” also includes virtual space. As the damage wrought by gambling on the Internet is immeasurably greater than that which is caused in physical places and that the legislative purpose was to prevent illegal gambling regardless of its location, a purposive interpretation would and should interpret “place” as meaning virtual space. Accordingly, apart from certain, isolated exceptions, the rule should be that the Internet fits the definition of place.

With respect to the difficulty in using third parties for carrying out a criminal proceeding, the law recognizes the possibility to use a third party to present an object necessary for interrogation or trial. Considering the license the State has granted them, access providers bear public responsibility. It is therefore justified to use them to execute orders to restrict access, given that the order requires the technical acts that do not involve any discretion regarding the closing of a site with a particular IP address specified in the order. Regarding the requirement for third party consent, Justice Sohlberg analogized the status of the website owners to receptionist in a physical place whom the police would have been authorized to require to open.

 

Justice Sohlberg also found that failure to petition against blocking access may be viewed as the website’s owner’s consent to to being used to carry out the police order. Justice Sohlberg based this conclusion on the Talmudic rule of "silence is regarded as admission.”

 

Legislation Cited

Administrative Affairs Court Act, 5760-2000, s. 5 (1)

Basic Law: Human Dignity and Liberty

Civil Procedure Regulations, 5744-1984, reg. 3(a)

Criminal Procedure (Arrest and Search) (New Version) Act, 5729-1969, s.20 23

Criminal Procedure (Powers of Enforcement- Communication Data), 5768-2007, s.1, 3 (2)

Interpretation Act 5741-1981, s.17

Penal Law, 5737-1977 s. 224, 228, 229

Police Ordinance [New Version], 5731-1971, s. 3

Prohibition of Discrimination (Products and Services) in Entrance to Places of Entertainment and Public Places, 5761-2001, s.2

Regulation of Sports: Gambling Act, 5727 – 1967

 

Supreme Court Decisions Cited

[1] HCJ 243/62 Israel Films Studios Ltd v. Levi [1962] IsrSC 16 2407.

 

[2] HCJ 651/03 Citizens Right Bureau in Israel v. Chairman of Central Elections to the Sixteenth Knesset [2003] IsrSC 57 (2) 62.

 

[3] AAA 4436/02 Tishim Kadurim Restaurant, Member’ Club v. Haifa Municipality [2004] IsrSC 58 (3) 782.

 

[4] HCJ 8070/98 Citizens Rights Office in Israel v. Ministry of the Interior (10.5.04).

 

[5] LCA 4447/07 Mor v. Barak I.T.T. [1995] Society for the Bezeq International Services Ltd (25.3.10).

 

[6] CA 9183/09 The Football Association Premier League Limited v. Anon (13.5.12).

 

[7]  Cr.A 1439/06 Zaltovski v. State of Israel (28.3.06).

 

[8] CrA. 7430 /10  Anon. State of Israel (5.2.2010).

 

[9] LCrApp 787/79 Mizrahi v. State of Israel [1980] IsrSC 35 (4) 421.

 

[10]  (HCJ 131/85Savizky v. Minster of Finance [1965] IsrSC 19 (2) 369.

 

[11] HCJ 651/03 Citizens Rights Bureau in Israel v. Chairman of the Sixteenth Knesset Central General Elections Committee [2003] IsrSC 57 (2) 62.

 

[12] HCJ 3809/08 Citizens Rights Bureau v. Israel Police (28.5.2012).

 

[13] Association of Renovations Contractors for Restoration v. State of Israel (14.3.2011).

 

[14] HCJ 1/81 Shiran v. Broadcasting Authority [1981], IsrSC 35 (3) 365.

 

[15]  HCJ 910/86 Ressler v. Minister of Defense [1988], IsrSC 42 (2) 441.

 

[16] HCJ 287/91 Kargal Ltd v. Investments Center Council [1992], IsrSc 46 (2) 851,

 

[17] HCJ 962/02 Liran v. Attorney General(1.4.2007).

 

[18] HCJ 4112/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Tel-Aviv Municipality [2002] IsrSC 56(5) 393.

[19] HCJ 80/70 Elizur v. Broadcasting Authority [1970],IsrSC 24 (2) 649.

[20] HCJ 852/86 Aloni v. Minister of Justice  [1987], IsrSC 41 (2) 1.

 

[21] HCJ 606/93 Kiddum Yezumot v. Broadcasting Authority  [1994], IsrSC 48(2) 1.

 

[22] HCJ  2303/90 Philipovitz v. Registrar of Companies [1992], IsrSC 46 (1) 410.

 

[23] (HCJ 2605/05 Academic Center of Law and Business v. Minister of Finance, (19.11.2009).

 

[24]  AAA 6848/10 Erez v. Giva’ataim (30.5.2012).

 

[25] HCJ 5031/10 Amutat Ir Amim v. Israel Nature and Parks Authority (26.3.2012).

 

[26]CA 630/97 Local Committee for Planning and Building Nahariya v. Shir Hatzafon Construction Company Ltd [1998] IsrSC 52 (3) at 399.  

 

[27]  HCJ 5394/92 Hoppert v ‘Yad Vashem’ Holocaust Martyrs and Heroes Memorial Authority [1994] IsrSC 48(3)353.

 

[28] 7368/06 Luxury Apartments Ltd v. Mayor of Yabneh (27.6.2011).

 

[29[ HCJ 6824/07 Mana v  Taxation Authority (20.12.2010).

 

[30]  HCJ 7455/05 Legal Forum for Land of Israel v. Israeli Government [2005] 905.

 

United States Decisions Cited

[[31] Center for Democracy & Technology cy & Technology v. Pappert, 337 F.Supp.2d 606 (E.D Penn. 2004).

 

 

For the Appellants: Advs. Yuval Roitman; Adv.Orli Aharoni

 

For the Respondent: Adv. Haim Ravia, Adv. Dan-Or Hof; Adv. Yossi Markovitz

 

Judgment

 

Justice N. Sohlberg

 

1.         The Israel Police issued orders restricting access to gambling websites on the Internet. The Tel-Aviv-Jaffa District Court, sitting as the Court for Administrative Affairs (Judge Michal Rubinstein) granted the petition by the Israeli Internet Association and ruled that the orders were issued ultra vires and should therefore be voided. The Israel Police appealed and requested the orders be resotred.

Background

2.         Crime is burgeoning and taking new forms. As a result, on 1 January 2006 Government Decision No. 4618 was adopted, establishing a Standing Committee for Direction and Coordination of Activity in the Battle Against Severe Crime and Organized Crime and their Offshoots. The Committee determined that because its far-reaching and grave consequences the phenomenon of Internet gambling would be a central enforcement target combining several tools – criminal, fiscal, and administrative. This is a growing crime-generating phenomenon that is accessible to a broad segment of the population. Within this context, with the knowledge of the Attorney General and the State Attorney, the Committee decided to restrict Israeli users’ access to gambling websites. Internet access providers were issued warning letters and given a list of gambling sites and their IP addresses to be blocked. The access providers and the website operators were also allowed the opportunity to object. In August 2010 the orders were issued. In October 2010 the Israel Internet Association petitioned to the Administrative Affairs Court to revoke the orders, and in April 2012 the petition was granted

The Ruling of the District Court

3.         The principle elements of the Administrative Affairs Court’s ruling are:

(a)        Locus Standi: The direct victims – the access providers and the website operators – chose not to exercise their right to petition against the orders. Nonetheless the court found there were grounds for recognizing the locus standi of the Israel Internet Association, given that it does not represent the interests of the access providers and website operators, which have primarily commercial interests, but rather as the representative of users in Israel and their rights to free expression and access to information. This is a matter of general public importance pertaining enforcing constitutional values and maintaining the rule of law. 

(b)        Restricting access to Internet gambling sites infringes freedom of expression: The Internet is an excellent tool for exercising the right to access information in a practical, efficient, cheap and reliable manner. It is a democratic tool that promotes equality, enables a decentralized and diverse discourse, facilitates economic growth, and is an excellent platform for business ventures. Access to information is a constitutional right and limitations on the use of Internet are therefore rare. yet, the Internet is also subject to abuse, to violation of copyright, publication of slander, pornography, encouragement of violence, drug abuse etc. The desire to minimize the harm caused by damaging uses of the Internet has led the authorities of different countries to adopt various means, including blocking access to websites that function as platforms for illegal activity, or use technological screening measures. The Israeli approach has been that freedom of expression is “all encompassing” and applies even to expressions that encourage illegal activity.  Still, freedom of expression is not an absolute right. When there are interests that justify it, such as security, or social, political and other interests, freedom of expression may be curbed. When applying a proportionality test, the balance may vary according to the type of expression and its inherent social value weighed against the benefit of restriction. The content of illegal gambling sites – for example game instructions, various lists, graphics and other audio-visual aides – are, generally speaking, of little social value. The expressions are of a purely commercial nature, encouraging acts restricted under criminal law. Conceivably, limiting access to such expressions may be justified by legitimate purpose. But the mere fact that an expression may be harm does not exclude it from protection. As such, restrictions on free speech, even on expressions with little social value such as those in illegal gambling sites, must pass constitutional muster and be legally authorized.  

(c )       The Police has no authority to order Internet access providers to restrict access to gambling websites.  The relevant sections of the Police Ordinance [New Version], 5731-1971 (“Police Ordinance”), and the Penal Law, 5737-1977 (“Penal Law”), through their language and purpose, authorize the Israel Police to order the closing of places where gambling is takes place, but these are only physical places, as opposed to preventing access to an Internet website. A website is not a “place” but rather an amalgamation of information and applications installed in a computer that communicates with other computers via the Internet. Information is transferred from the computer to the server. The police is authorized to order the closing of a “place” of prohibited games or a “place” where lotteries or gambling are held, but preventing access to a website is not equivalent to the closing of a place, and is not covered by that authorization, neither explicitly nor implicitly. That the law grants the police the power to shut down physical places cannot, in itself, be understood as legislative intention to broaden the authority to allow “censorship” power to the police, without clear guidelines for its exercise. Even if the purpose of the orders – reducing the prevalence of gambling – is identical to that of the authorizing closing down physical gambling places, blocked access to a website implicates freedom of expression and freedom of occupation differently.  Blocking access to the Internet poses technical, political and legal difficulties: the concern for possibly blocking legitimate websites or innocent users. Executing blocks by a third party – the access providers – raises questions of liability, methods for blocking and costs. The appropriate legal policy would be to wait for explicit regulation of restrictions to free expression on the Internet in primary legislation, following in depth public debate. “Acrobatic” interpretations should not be invoked to authorize the police to violate civil rights. Furthermore, over the past few years the legislature has considered proposals for legislative amendments on this issue, but the legislative initiatives were hindered for being insufficiently balanced. The subjective and concrete legislative intention indicates a desire not to authorize the police to block access to gambling websites at its own discretion.

In short, the orders to restrict access to gambling websites were issued ultra vires and should be voided. This was the ruling of the Tel-Aviv-Jaffa District Court, sitting as the Court for Administrative Affairs.

Principal Arguments of the Parties

4.         Attorneys for the State argue that the Administrative Affairs Court erred in determining that the Israel Internet Association has standing.  The latter is a public petitioner with no personal interest in the orders, and his petition should therefore have been dismissed in limine, especially given the existence of petitioners who could have presented the factual infrastructure required, yet they ultimately refrained from filing a petition. The petition seeks to permit illegal activity, rather than preserve the rule of law, and there was no justification for conducting a judicial hearing for this kind of petition by a public petitioner. Attorneys for the State further argue that the Administrative Affairs Court erred in holding the orders infringe freedom of expression. The websites subject to the orders do not serve as a venue for expression and their entire raison d’etre is conducting prohibited gambling. There is no justification to fully exempt the Internet from rules that apply to other media. Blocking access to gambling is accepted practice all over the world, and is necessary for crime prevention.

5.         The primary claim the State’s attorneys make is that the police is authorized to order blocking access to websites. The Administrative Affairs Court adopted a “rigid” interpretation that failed to fully account for the law’s language and purpose. The Administrative Affairs Court failed to consider a possible alternative in the authorizing statute. In any case the relevant provision can be seen to include Internet space, as well as physical space: a “place of gambling” is also a “virtual place”. The authority to close a place also encompasses orders to block access to virtual space. The attorney for the State argues that when the law was passed it was impossible to anticipate the existence of virtual space, but the purpose is the same: preventing illegal gambling, which causes immense harm to both the individual and the public. Waiting for primary legislation to explicitly grant parallel authority to virtual space means perpetuating Internet gambling, its grave consequences and its harm, while forcing the police to combat it with hands tied behind its back.

6.         On the other hand, the Israel Internet Association discussed the public interest in Internet access, and as a natural outcome, its right of standing in this petition vis-à-vis its activities to promote Internet use in Israel as a technological, research, educational, social, and business resource. The limited economic interest of website owners and access providers is not comparable to the public interest in having unfettered access to the Internet. This is the purpose of granting standing rights to a public petitioner, thus enabling judicial review in a matter of public and constitutional importance that implicates the rule of law. The Israel Internet Association also emphasized the right to know. “A governing authority which claims the right to decide what the citizen ought to know, will eventually decide what the citizen should think; and there is no greater paradox to true democracy, which is not ‘guided’ from above” (HCJ 243/62 Israel Films Studios Ltd v. Levi [1] at p. 2416). A website consists of layers of information, each of these a protected expression, including: the code, the graphic design, games, trailers, data and explanations. The suspicion of a criminal offense does not excuse limits on expression in advance.

7.         The Israel Internet Association further claims that the law does not authorize the Police to order a third party to block access to gambling websites. An Internet website is neither a “place”, nor “premises” but rather a collection of “pages” which contain information collected from files on a service computer that communicates with other computers via the Internet (Abraham Tenenbaum “On Metaphors in Computer and Internet Law”, Sha’arei Mishpat 4 (2), 356, 374 (2006)). The analogy between “site” and “place” is fundamentally flawed. Blocking access to knowledge is distinguishable from closing a physical place, inter alia because of the infringement upon freedom of expression. Physical closing does not implicate the rights of the general public. Blocking access to knowledge does. Internet access providers are not enforcement agents of the police. They serve as a channel for providing information to Internet users, and they have an immensely important role in exercising the right to access information.

8.         The Israel Internet Association requests we uphold the Administrative Affairs Court’s decision regarding standing based also on the fact that the consequences of blocking access to a website differ from the consequences of blocking a physical place. Blocking access to websites involves technical challenges that may block access to innocuous sites. Blocking may be ineffective, as well. It may have implications for international obligations, and raise questions about access providers’ liability. Costs are likely to be “rolled” onto users. As a matter of judicial policy, infringements upon freedom of expression and access to information should only done in explicit primary legislation. The Knesset debates around private bills on the matter reflect substantive reservations against conferring the police with the requested powers. Upholding the appeal would turn the police into investigator and prosecutor, judge and executor, while performing interpretive acrobatics and infringing free expression.

Discussion and Ruling

9.         I divide the discussion into three categories, following the path taken by the Administrative Affairs Court:

(a) Standing; (b) Freedom of Expression; (c) Police Authority.

 (a)       Right of Standing

10.       As mentioned, the orders compelled Internet providers to block access to a number of websites used for illegal gambling. The access providers and the website owners chose not to challenge the orders. Prima facie, as claimed by the attorney for the State, the Israel Internet Association is stepping into a dispute in which it has no part. The Administrative Affairs Court deviated from the rule that “the court will generally not grant a public petition where there is a private victim who chose not to turn to the court for relief ” (HCJ 651/03 Citizens Right Bureau in Israel v. Chairman of Central Elections to the Sixteenth Knesset [2] at p. 68).  Recognition of standing rights for the Israeli Internet Association prompted the petitions’ adjudication without presenting the Administrative Court with the required factual infrastructure. The precise contents of the websites subject to the orders were not presented, nor was a full description of the technical ability to block access. No basis was presented for the argument – which the Administrative Court found acceptable – that blocking access to gambling sites could also be expected to block other sites.

11.  The Israeli Internet Association further argued before the Administrative Affairs Court that the Internet providers’ right to hearing had been violated. It further argued that the decision to block certain sites was discriminatory. The problem however is that these are not arguments that can be raised by a public petitioner. These are arguments that only the website owners and the access providers could have raised, had they so wished to do so.

12.       It seems that a priori the petition should have been dismissed in limine in the absence of standing. However, post factum, once the Administrative Affairs Court recognized the Israel Internet Association had standing, and ruled as it did on the merits, it seems inappropriate at this stage to uphold the appeal merely based on his issue, without ruling on the merits of the appeal itself. It is incumbent upon us to rule on the legality of the orders.

Freedom of Expression

13.       The attorneys for the parties spoke loftily and at length about freedom of expression and the right to access information that derives from it. Indeed, we must make every effort to avoid infringing the free dialogue in the new “town square” and the flow of information on the Internet. Freedom of expression is the air we breathe, and the right to access information – our daily bread. All the same, in its decision, the Administrative Affairs Court stated that illegal gambling on the Internet certainly is not a protected right, and that in such circumstances indeed there is no “discourse of rights” (para. 21). However, the gambling sites also feature additional content: expressions, pictures, texts, explanations, lists and other audio-visual information. According to the Administrative Affairs Court all of these are of social value, concededly of “low value”. Nevertheless, “in the prevention of access to gambling websites the Respondents infringed the freedom of expression of users interested in entering the website and in browsing the information and of the site owners who uploaded the content” (para.23).

14.       This infringement upon free expression was scathingly criticized by the Israel Internet Association, but it appears to me that the alleged infringement is not quite what it was made out to be.  Attorneys for the State dispute this, claiming that the aforementioned gambling websites contain gambling content and nothing else, and that in any event, it is not content of a kind to which access cannot be denied based on freedom of expression. As mentioned, the petition was filed by the Israel Internet Association and not by access providers or website operators, with whom the relevant information is stored. This matter again exemplifies the problematic nature of granting standing to a party meddling in a dispute that is not its own, because the factual infrastructure laid before the court was insufficient and a court may follow it blindly.

15.       Regardless, even had the gambling websites under discussion included legitimate content alongside platforms of illegal gambling, there is nothing to prevent website owners from making the information accessible to users by one of two methods: either on an alternative site, or on the same site, together with blocking possible engagement in prohibited gambling there. The infringement of free expression is therefore quite marginal, if at all.

16.       We should not forget that the closure of a physical gambling place violates the right to property, a basic constitutional right, but is nonetheless permitted and frequently done according to the law. Case law, too, has permitted the closure of a physical gambling place, even when it serves for other legitimate activities (per former Justice Grunis in AAA 4436/02 Tishim Kadurim Restaurant, Members’ Club v. Haifa Municipality [3] at p.798 (hereinafter: Tishim Kadurim). As mentioned above, the Israeli Internet Association argues that not all of the content on the gambling sites at issue is illegal and that these sites serve as platforms for chatting and other legitimate uses. This is a factual claim that requires factual substantiation. But assuming it is correct, we again analogize to a physical gambling place, which may undisputedly be legally closed. In addition to serving for illegal gambling, such a place can also serve as a place for social interaction, where conversations, even on matters of highest importance, may be held. But this would not rise to the level of speech protected by the right to free expression that would prevent closing a physical place of gambling. Visitors would be able to continue to meet, to speak, and to exchange opinions in alternative venues.  Similarly, there is nothing to prevent taking the same action regarding a website where illegal gambling takes place.  Access to the latter would be blocked, and to the extent that other legitimate activities took place on the website, there would be no impediment to continuing those, whether on this site or on another site.

17.       Hence, in terms of practical implementation the concern for violating a fundamental principle has been alleviated. The elevated status of freedom of expression is far beyond dispute. It remains intact and its status is securely enshrined, and access to illegal Internet gambling can be restricted without infringing freedom of expression or the right to access information. I make additional comments on guarding against any infringement of free expression below, in my discussion of discretion in exercising police authority.  

(c)  Police Authority

18.       Law enforcement agencies source their actions in two statutory provisions. Section 3 of the Police Ordinance provides that: “The Israel Police shall work toward prevention and detection of offences, apprehension and prosecution of offenders, safe custody of prisoners, and maintenance of public order and the safety of persons and property”. This is a basic and important provision, but because of its generality is of limited value to us. A more important provision for our purposes is the specific provision of section 229(a)(1) of the Penal Law, which addresses “closure of places”, as follows:

 “A district police commander may order the closing of a place for prohibited games or a place for the conduct of lotteries or gambling.”

19.       There are two, similar alternatives. The first: “a place of prohibited games”, and the second, “a place for the conduct of lotteries or gambling”. The Administrative Affairs Court focused on the first alternative, which is defined in section 224 of the Penal Law:

“‘Place of prohibited games’: premises where prohibited games are held regularly, whether open to the public or only to certain persons, regardless of whether those premises are also used for some other purpose.”

Based on dictionary definitions in both Hebrew and English, the Administrative Affairs Court ruled that the statutory definition refers to a physical, delineated place; such as a house, building, field (para. 36 of the Administrative Affairs Court opinion). The court relied on Y. Kedmi’s book, which interprets premises “in the broad and comprehensive sense of the concept... Immovable property as distinct from movable property.” (Yaakov Kedmi, The Criminal Law (Part IV)  2283 (2006).

20.       Can the term “premises” be said to include the world of Internet? In my opinion “virtual premises” are also “premises” but this question can be left for future decisions. Section 229(a)(1) of the Penal Law, as mentioned above, consists of two alternatives. The second alternative, as worded, does not necessitate reference to the definitions section. The question therefore arises as to whether “place” can be broadly interpreted to mean “virtual space”. The Administrative Court answered this question in the negative, with sound, logical and, at first blush, persuasive reason: 

“Moreover, relating to a website as a ‘place’ is inconsistent with its mode of operation. A website, by definition, is an agglomeration of information and applications, installed on a computer, that connects with many other computers over the Internet. When a user ‘enters a website;, their personal computer contacts another computer (‘the website server’) which is found elsewhere, and requests information. The user’s computer has a unique number (IP address) and the website server has a unique number (a different IP address). The website server transmits the information to the personal computer, which uses a browser to arrange the information for reading. When “actions” take place on the website, the personal computer asks for new information from the website server, receives it, and arranges it on the personal computer. Information is transmitted between the personal computer and the server, but there is no “place” here at all. Justice Tenenbaum described this well in his article: ‘The choice of the Hebrew word “site”, intuitively conjures the notion of a geographical site. Perceiving the site as a “place” induces us to say “enter a site”, “exit a site” and the like… all the sites on the Internet are connected to each other and the vulnerability of one also harms the other… the Internet was created, developed and exists by virtue of all the individuals which support it and maintain its integrity. Correct and appropriate public policy must be based on this and facilitate these efforts… a “website” is not a place. In fact, a “site” is nothing more than a computer that holds software that regularly communicates with many other computers’” (para. 37 of the Administrative Affairs Court opinion).

21.       These comments were repeated and reiterated by the attorney for the Israel Internet Society, and I am prepared to endorse them unreservedly. A website, in essence, is not a “place” according to its technological definition. However, even if this is our point of departure, the necessary conclusion does not specifically exclude virtual space from the scope of section 229(a)(1) of the Penal Law, as will be explained. But prior to doing so a few comments must be made about the Internet, progress and the attempts of law and justice to keep up with the times. 

22.       Humanity in its entirety, laymen and experts, almost all of us are still learning, wondering and marveling at the Internet. Its influence is felt all over the world, but it will certainly take a long while before we can assess its full effect and implications: “We are living at the height of a revolution: Technological development in the computer realm, digital information and digital networks are generating a social, economic and political upheaval (Niva Elkin-Koren and Michael Birnhack, Introduction, in Legal Network: Law and Information Technology (with Niva Elkin-Koren, 2011);

The computer – and with it the Internet – are not merely a mutation of previous life forms that we have known, which we have given a home to in the legal system. They are a new life form, and their movement is not the movement of the life forms with whom we are accustomed to live. They move in the manner of the knight (the horse) in a chess game; its movement is not altogether forward, nor altogether backward or altogether to the side. It is not altogether diagonal. Its movement is a tinkling of this and a tinkling of that, and it exists in its own right. But here is how the new life form differs from the knight: we know in advance how the knight will move and we know, more or less, how to protect ourselves when it attacks us. As for these new life forms of the computer and the Internet – we have yet to fully explore them; we have yet to reach the bottom of the pit. One click in Jerusalem, and you are in Tel-Aviv, a second click and you are in Australia, a third click – and the system rebels and everything is erased as if it never was. We have begun to move at the speed of light whereas our bodies are in the carriage, and our stream of thought moves at the speed of the carriage (Mishael Cheshin, “Introduction” The Computer and the Legal Proceeding: Electronic Evidence and Procedure  (2000).

Some view the Internet as a new universe. “In a short time the Internet has created a new universe of inconceivable dimensions. This universe dominates almost every aspect of civilization, replicates it and corresponds to it” (Rubick Rozental, A Few Comments on the Language of Internet, Legal Network: Law and Information Technology, eds Michael Birnhack and Niva Elkin-Koren, 2011, 61).  The Internet has come to our world, entering into its inner domains, but we still have trouble defining it. It exists all over the world and simultaneously in no place at all. More precisely, there is access to Internet and its activity all over the world, but its existence is “nowhere”.     

23.       As is well known, the law follows sluggishly in the footsteps of innovations, and legislation does not keep up with the pace of scientific progress. Offenders against the law adapt to progress more rapidly than its enforcers. This is axiomatic. The former have no restraints; the latter do. Many years passed between the invention of the computer and the enactment of the Computers Law, (1995). Less than a generation or two passed in terms of computers, and the law is already out of date, because the legislature did not foresee, nor could it have foreseen the innovations in technology. But not only is the legal world perplexed. Psychology too has encountered new phenomena of addiction and psychological injuries, and is attempting to develop updated, “on the go” reponses.  The same is true for sociology, and other disciplines in social sciences, natural sciences and the humanities. Not surprisingly, the world of law too is still unequipped. Some have taken an extreme view, claiming that given the virtual nature of the Internet, it cannot be subjected to the laws of space, time and state (see written references for this approach in the article of Yuval Karniel and Chaim Wismonski, Freedom of Expression, Pornography, and Community in the Internet, Bar Ilan Law Studies 23 (1) 259 (2006); Michal Agmon-Gonen, The Internet as a City of Refuge?! Legal Regulation in Light of the Possibilities of the Technological Bypass Technologies and Globalism of the Net, Legal Network: Law and Information Technology, eds. Michael Birnhack and Niva Elkin-Koren, 2011, 207).

24.       This extraterritorial approach is unacceptable. Concededly, an abundance of legislation that would impair the tremendous benefit inherent in the Internet is undesirable, nor is there any point in legislation which is unenforceable given the characteristics of the network. However, for good or bad, virtual space exerts a tangible influence over the concrete world, and our world will neither consent to nor tolerate the virtual realm’s exemption from the law. Act of pedophilia committed online are still pedophilia, drugs sold via the Internet still have the same addictive and destructive affect as drugs sold on city streets, the terrible harms of Internet gambling are no less damaging than danger from gambling in a physical place. Quite the opposite, the Internet opens new horizons for the world of crime. They should be blocked. The approach of excluding law and justice from virtual space must be kept off bounds.

25.       All the same, undeniably, the legal regulation of activity in virtual space is complex and complicated. Normative claims as to what the law ought to be are difficult to make, nor is it easy to apply the existing law. Not by chance, there are those who have concluded that this is an area best suited for legislation; while others feel that case law is the appropriate method for adjusting the law to the Internet era. Both camps are uncertain about the extent to which Internet users should participate in formulating the rules governing virtual space and their application. (For a comprehensive review of the possible models, see: Iris Yaron Unger Uncovering the Identity of an Anonymous Internet wrongdoer – Comparative Review, The Knesset, Legal Department, Legislation and Legal Research, 2012).  A variety of models in case law and legislation have been adopted by states around the world (Miguel Deutch, Computer Legislation in Israel, Tel-Aviv Law Studies 22 (2) 427, 428 (1999)). The issue is weighty and broad and its influence far-reaching, but I will not elaborate on it beyond what is required for discussing the concrete questions of this appeal: the authority of the police to issue an order restricting access to gambling websites on the Internet.

26.       It seems that a comprehensive statutory regulation of this field, in a precise manner adjusted to the virtual era is preferable.  The question is whether, absent updated and comprehensive legislation, the law as currently worded satisfactorily considers the police’s authority to issue the orders in question. The Administrative Affairs Court decided to defer the legislative process, but to void police powers to order closure of virtual gambling places until the statute is expressly amended to confer such authority. This ruling involves difficulties.

27.       The ‘waiting period’ created restricts, and occasionally frustrates, appropriate responses toward law enforcement and justice.  This approach, coupled with the previously described pace of technological progress, can be expected to lead to a situation where many legislative acts will be neither relevant nor applicable. Even after the legislature has amended the legislation, it is entirely possible that within little time that amendment will no longer be useful. Hence waiting for the legislature to act will not necessarily provide a solution. “The judge interprets the law. Without his interpretation of the law, it cannot be applied. The judge may give a new interpretation. This is a dynamic interpretation that attempts to bridge between the law and changing reality without having to change the law itself. The law remains as it was, but its meaning has changed because the judge gave it a new interpretation that is consistent with society’s new needs. The court ... realizes its judicial role in bridging law and life (Aharon Barak, The Judge in a Democratic Society 57 (2004); and see HCJ 8070/98 Citizens Rights Office in Israel v. Ministry of the Interior [4], para. 12 of former Justice Grunis’ opinion; LCA 4447/07 Mor v. Barak I.T.T. [1995] Society for the Bezeq International Services Ltd (hereinafter: Mor) paras. F-I, of Justice Rubinstein’s opinion; CA 9183/09 The Football Association Premier League Limited v. Anon [6] paras. 4-6 of Justice Melcer’s opinion (hereinafter:  Anon)).

28.       On one hand, Internet crime is becoming increasingly sophisticated. On the other, criminal law develops slowly. The chasm between the two must be bridged. The Knesset achieves this through legislation, while the courts through case law. The reality of life does not allow us to wait for the Penal Law to be amended to determine which offences can escape sanction when committed over the Internet and which cannot.  Nor is it legally necessary to wait until the legislature has reviewed all of the criminal law’s provisions and decided which of them are applicable to the Internet. The court must respond to the specific matter brought before it and rule one way or another. This is not a question of ‘judicial legislation’, but rather of ‘judicial creation’. The same criminal offences proscribed many years ago and committed on city streets, are now committed on a larger scale and with greater force via the Internet. Occasionally, the actus reus is identical, the mens rea is identical, the legislative purpose is identical, and the damage, is quite often more extensive and severe in the virtual realm.  

29.       Needless to say, we are still bound by linguistic restraints and cannot deviate from their boundaries to cast our net over whatever we see as a crime or a tort in the “real world” and possibly appears as such in the virtual domain. All the same, the legislative purpose, generally common to all offences, whether committed here or there, requires an interpretative effort to prevent greatly harmful artificial loopholes in enforcement. The tremendous damage that can be wrought by the Internet was descussed by Justice E. Hayut: “The infringement concerned enlists human progress and technological innovations in computing in the service of crime, thus yielding a new and dangerous form of criminality that cannot be taken lightly. This form of criminality does not involve physical-tangible harm that leaves its marks on the victim’s body. It is committed remotely, with the click of a button, but its damage is extensive and carries different levels of implications, including to, as stated, a victim’s personal security and privacy, his property, his business, and his commercial secrets” (Cr.A 1439/06 Zaltovski v. State of Israel [7]). In the same vein, former Justice Grunis wrote: “The Internet is fertile ground for committing different types and categories of criminal activity, and inter alia, activities directed against state security. That the Internet era has made it significantly easier, technically, to commit offences such as a conspiracy to commit an offence cannot be ignored. Hence, in the case before us it is undisputed that “A” and “S” became acquainted by chance… via the Internet. In other words, conceivably, if not for the chance Internet meeting they would not have met and could not have conspired to commit the acts described in the indictment. Hence, the case before us demonstrates a need to impose punishment that deters from the negative and criminal side-effects that accompany technological developments” (CrA. 7430 /10 Anon v. State of Israel [8]). There are numerous other examples, and we take judicial notice of the Internet being exploited for grave and dangerous harm on a broad scale.

30.       Pedophilia is a pernicious scourge on the Internet. Is pedophilic material in virtual space nothing more than a collection of ‘pixels’ – with no substance – that the law is powerless to reach?  In practice, the courts do not stand idly by, and they ideed apply the Penal Law’s provisions to offences committed over the Internet. Naturally, this is not done reflexively, but rather the required physical and mental elements have been examined, under the circumstances of each case, and the principles of criminal law have been applied. (See Assaf Hardoof, Cybercrime, 17 (2010) who sharply criticizes the approach that the Internet’s characteristics undermine the foundations of criminal law. According to his approach, the mental complexities leading to criminal conduct committed in a physical environment also exist on the Internet.)

31.       We will return to the meaning of a “place… of gambling” in section 229(a)(1) of the Penal Law, which the police is permitted to close. If, according to the Administrative Affairs Court’s decision, it refers to a physical and not virtual place, then logic dictates that this would also be the meaning of a “place… of gambling” immediately above in section 228 of the Penal Law. If so, then not only would the police be prevented from issuing orders restricting access to gambling websites, but it is doubtful it would even be possible to convict a person operating, over the Internet, “a place for prohibited games or a place for the conduct of lotteries or gambling” (section 228 of the Criminal Law). On its face, this would conclusively preclude not only restricting access to illegal gambling websites, but also the enforcing the prohibition of possessing or operating illegal gambling websites. This state of affairs would remain until we are saved by a statutory amendment, which may or may not come soon.

32.       Moreover, in Israeli legislation, the term “place” is used for different offences and in numerous contexts. For example, “public place” is defined in section 34(24) of the Penal Law and is mentioned in numerous other sections concerning offences and punishments; Chapter C of the Preliminary Part of the Penal Law, deals with “Applicability of Penal Laws according to Place Where the Offense Was Committed  (emphasis mine – N.S.). A place in which an Internet website is viewed, or is used is a “place” that establishes judicial jurisdiction. Should we exempt the Internet from the Penal Law going forward because it is excluded from the definition of a “place”? Similarly, would we permit discrimination on the Internet just because it is excluded from the definition of a “public place” in section 2 of the Prohibition of Discrimination (Products and Services) in Entrance to Places of Entertainment and Public Places, 5761-2001? (See e.g. the conviction for supporting a terrorist organization on the Internet, where the internet was found to be a “public place” CrimF (Nazareth) 12641-11-10 State of Israel v. Abu-Salim (Deputy President Yung-Gefer) paras. 47-56 (1.4.12)).

33.       The civil law, too, is frequently required to apply the concept of “place” to the Internet. On more than one occasion courts have held that Internet-based conduct fall within the jurisdiction of courts all over the country. For example, in a breach of copyright and intellectual property case, concerning a website for a virtual shop selling household goods and gifts, the court held that “the picture was presented on the Internet, namely – in each and every place within the area of the State of Israel. It is therefore clear that the place of the omission was in the entire state and by extension in each and every district… the territorial jurisdiction extends to the entire area of the State of Israel” (Comments by Judge Tenenbaum in App. (Magistrates – J-Lem) 8033/06 Steinberg v. Levi (10.4.2007). These remarks, made in his role as judge are inconsistent with his decisive remarks in his role as scholar in the article cited above: that “an Internet site ‘is not a place’, which the Administrative Affairs Court relied upon in the decision appealed here (para. 37)). Even more accurately, all the alternatives stipulated in Regulation 3(a) of the Civil Procedure Regulations, 5744-1984 employ the language of “place” (place of residence, place of business, place of creating obligations, place intended for fulfillment of obligations, place of delivery of asset, place of act or omission).  Is it possible to exclude the Internet from territorial jurisdiction because it does not fall into the category of “place”?

34.       Due to space constraints and in the absence of satisfactory arguments it cannot be responsibly councluded that wherever the term “place” appears in primary or secondary legislation it must be applied to the Internet as well. Conceivably, there could be certain, isolated exceptions, but the rule should be that the Internet fits the definition of “place”. The Israeli Internet Association’s claim, which the Administrative Affairs Court accepted, that both in truth and according to its dictionary definition, virtual space is not a “place” is not sufficiently persuasive. The settled, entrenched and well-accepted law is that “the words of the law are not fortresses, to be conquered with the help of dictionaries, but rather the packaging of a living idea which changes according to circumstances of time and place, in order to realize the basic purpose of the law” (comments by then Justice A. Barak (LCrApp 787/79 Mizrahi v. State of Israel [9] at 427). There, the Court held that the “one who escapes from lawful custody” refers not only to an inmate who literally escapes from prison but also to a prisoner who fails to return from furlough: “it may be argued that our concern is with a criminal provision that should be accorded a narrow construction, by attaching only ‘physical’ meaning to the terms ‘custody’ and ‘escape’. I cannot accept this line of thought. A criminal statute, like any other statute should be interpreted neither narrowly nor broadly but instead by attaching to it the logical and natural meaning that realizes the legislative purpose" (ibid).These statements have retained their vitality and are applicable to our case too, and even a fortiori: in that case the issue concerned a criminal offense, whereas our concern here is with an administrative measure.

35.       As stated, the legal world is still not best prepared to handle the Internet, and this is also true of the world of language.  The terms that serve us in virtual space are borrowed from the tangible world. On the Internet we use a “desk top”; the user “cuts”, “copies”, “pastes” and “deletes”; “writes” “notes”; “stores” in “files”; and “sends” to the “recycling bin” and receives “documents” and “junk mail” into a “mail box”. Given this background, the word “place” is by no means exceptional. It would not be a deviation from the ‘principle of legality’, nor from the rules of interpretation were we to determine that “place” also includes virtual space, and that its meaning also encompasses a website. Since we speak of an Internet “site” in our daily conversations, we should remember its dictionary definition and its Talmudic root (b.Zevahim 7a): a “site” is a “place”.

36.       Therefore, in interpreting section 229(a)(1) of the Penal Law, I see no justification for taking a literal and narrow approach, which interprets the word “place” as a physical place only. In the current modern era, a website is also a type of place. The section’s language also tolerates the classification of virtual space – or perhaps better termed as “computerized space” – as a “place”.

37.       From language to purpose: In the case of Tishim Kadurim [3] then Justice A. Grunis explained the purpose for prohibiting certain games as a value-based goal. Man is born to labor rather than easy enrichment based on luck. Addiction to gambling is a serious scourge that harms the individual, their family and society as a whole. Before the Penal Law there was the Criminal Law Amendment (Prohibited Games, Lotteries and Bets), 5724-1964, and before Justice A. Grunis there was Justice Haim Cohn who made the following remarks about the legislative purpose behind the previous statute:

                        The legislative purpose, as reflected clearly in the nature and the language of the law, is to combat, by criminalization, the scourge of gambling and betting – the scourge of winning money or its equivalent other than by work or other reasonable consideration, but rather by the luck of the draw. Mr. Terlo rightly mentioned the well-known fact that mankind has an evil tendency to try his luck in gambling. One need not have a particularly developed commercial instinct to assess the tremendous prospect for profit in the commercial exploitation of this natural human tendency.  Mr. Terlo said, and I agree with him, that such commercial exploitation, in all of its various forms, produces demoralization. I further add that from my perspective, the wrong that the law seeks to prevent is not only the encouragement of desire for lawful easy enrichment without labor, but also – and perhaps primarily – the placing of an obstacle before the blind, where instead of spending his money on his own sustenance and that of his household, he invests in dubious ventures based on luck (HCJ 131/85 Savizky v. Minster of Finance [10] at 376).

38.  As we can see this plague is nothing new to us. The following is a reliable testimony from two hundred years ago about this phenomenon and the harm it causes, relating to the fate of those who wager on dice: “The number of those involved has multiplied, where their foolish preoccupation is such that they spend nights and days gambling, in their homes, on their roofs and on street corners, until they lose everything. Even if they are wealthy, eventually they lose all and must steal and resort to violence, while their family members starve; their children beg for bread, and there is none to give them, for they do not work to bring food to their families. And one sin leads to another, in that they neglect prayer and fulfillment of the commandments, for when temptation seizes them and they engage in gambling, it is extremely difficult for them to forsake it, as difficult as separating one’s fingernail from one’s flesh. They do not take care of themselves and do not tear away from gambling, even to eat at the time for eating and to sleep at the time for sleeping. One who is addicted to gambling will not leave it even when he is old, for only will-power can separate from it.” (Rabbi Eliezer Papo, Pele Yo’etz, Constantinople, 5584 - 1824).[1] […]

39.   In 1975 the legislature added a provision to the Penal Law Amendment (Prohibited Games, Lotteries and Bets), 5724-1964, which granted the District Commander of the Police the authority to issue an order to close “a place for prohibited games or a place for the conduct of lotteries or gambling” (S.H 5735, No. 779, 222). According to the introduction to the Explanatory Note of the bill, the legislature was dissatisfied with the existing criminal sanction, and sought to close places where prohibited games were conducted, as a preventive measure: “The Law imposes a punishment on the possessor or operator of a place for conducting games with cards, dice, game machines, and the like, But there is no law that prevents the actual existence of such place… The proposed law seeks to establish provisions… by enacting legislation directly designed to address the phenomenon of the crime that thrives in such places, and to confer the authority for the advance prevention of the opening of businesses that are liable to harm public safety and generate crime. It also proposes to stiffen the punishments and to adapt them to any given situation (H.H. 5735-1975).” Incidentally, the Explanatory Note refers to the closing of “a certain place”. In light of our conclusions above, it is not inconceivable that “a certain place” encompasses the Internet, it being a place where anonymity is preserved and where we have no knowledge of a website owner’s or users’ identities, nor do we know what that place is, or where is it located, all of these are considered  “anonymous".

40.       The harm wrought by gambling on the Internet is immeasurably greater than that which is caused in physical place. Gambling websites on the Internet are accessible to all sections of the population, from adult to child, the rich and the poor, the honest and the corrupt, the wise and the legally incompetent. With just a click of a button and press of a key any novice can gamble on the Internet. But not only accessibility is concerning, there is also availability – at  any time and any hour.  Identity can be disguised to enable the use of all features of virtual spaces. All of these come together to exacerbate the phenomenon and its range of harms: addiction, vast loss of funds, money laundering, tax evasion, incidental crime, and more. A large physical gambling venue can hold hundreds, perhaps even thousands of clients, but it pales in comparison to the Internet, which is available to millions of people. With these capacities, the number of victims also rises exponentially, as well as the amounts of funds dubiously invested.

41.       When section 229(a)(1) of the Penal Law was enacted, the legislature did not anticipate the Internet and by extension did not consider the illegal gambling that would be conducted there. However, the legislative purpose evidently was to prevent illegal gambling, regardless of location.  The police pursuit of offenders does not end at virtual space; the Internet cannot become a city of refuge. The material factor is not the platform for illegal gambling but rather the phenomenon itself. “Do not look in the canister, but at what is inside (Mishnah, Avot 4.2)” If it is technically possible to close a gambling place, even if the closure is not an enclosure but rather a prevention of access, the legislative purpose should be realized, to the extent possible, through proper interpretation. And again, if we assume that it refers to a physical place, then illegal gambling need not necessarily be conducted in a closed structure, for example, a vast area in which illegal gambling takes place.  The possibility of ordering its closure exists and can be done by preventing access through the gate. The police would be authorized to close the gate and prevent access to a space used for criminal activity. In the same vein, the Internet too is a space: a computerized space (some have used the expression “global public space”. See Jurgenb Habermas, The Structural Transformation of the Public Sphere, Thomas Burger & Frederick Lawrence translations (1989); Tal Samuel-Azran, Global Public Sphere on the Internet: Potential and Limitations, Legal Net:  Law and Information Technology, 433, 434 (Niva Elkin-Koren and Michael Birnhack eds, 2011)). Entrance into computerized space is also through a “gate” embodied by the access provider and the website operator. Concededly, the entrance is not physical, actually consists of communication between computers, but this is immaterial, because the technological definition is inconclusive as to the interpretative question.

42.       Jewish Law can enlighten us. The Torah was given at Mt. Sinai. In the ancient world, modern technology and the Internet era were unimaginable. Nonetheless, the Torah seeks to adapt to present and future reality by way of interpretation, for otherwise it would become a dead letter instead of a living document. Interpretation must adhere to language in order to fulfill the Divine words and to not deviate from them in any way. It was specifically because of this that the Talmudic Sages saw no difficulty in adapting terms such as ox or donkey or camel, used in those times for labor and transport, to the context of vehicles and planes. This is the present need for otherwise Jewish law will no longer be relevant or valuable. Rabbi Aharon Lichtenstein made remarks pertinent for our purposes, and they should guide us: 

                        In the developing technological reality the ability to cause damage, physical or even virtual continually increases, without incurring any liability under the criteria of Nahmanides or of Rabbi Yitzhack.[2] The harm may be more abstract and the process of causing it may be more indirect than the minimal threshold for liability under garma.[3] Nonetheless, the result is quite severe.

                        Accordingly, a learned and sharp-minded thief would be able to plan and execute the perfect burglary, with the assistance of grama tools for breaking in, without consequences, whether due to direct damage or force of garmi.  Should we persist to grant exemptions in this kind of scenario based on the law of grama in torts?...

                        The request is simple, the authority exists and eyes are raised in anticipation. In the event that leading Jewish authorities succeed in enacting an amendment for this matter it would provide a  remedy for a real concern for society, and at the same time, would  elevate the glory of the Torah (Lessons of Rabbi Aharon Lichtenstein, Dina d'Grami, 200 (5760); See also in the comments of Justice N. Hendel, para. 6 Anon.)

43.       Thus far on the laungauge and the purpose. We now proceed to address some of the difficulties the Administrative Affairs Court considered in the decision appealed here, in terms of applying of the law to the virtual sphere. These difficulties also lead the court to conclude that the solution lies with the legislature and not the court, and that it is appropriate to wait for legislative amendment.

44.       A primary difficulty is that the orders restrict access to the Internet through third parties – the access provider. According to the Administrative Affairs Court, based on the Israeli Internet Association’ claim, the law authorizes closing a place, but does not authorizes ordering a third party to prevent access to an Internet site. The claim is a weighty one. Access providers’ legal responsibility poses questions in different legal contexts. For example, in the Mor [5] case the Court held that the provider is not obligated to disclose the identity of anonymous “talkbackers”, and called upon the legislature to regulate the matter. Similarly, in Anon [8] the Court ruled that a supplier cannot be compelled to reveal the particulars of a site owner who breaches copyright in order to file an action for that breach. This decision was also accompanied by a call for legislation of the matter. At the same time, the Court held that if a certain matter did not find a legislative solution, courts would have to provide solutions in case law, and the legal doctrines required to fill in the lacunae were presented. The matter before us is different. Here, it cannot be said that there is no legislative provision that confers authority. There is no need for primary legislation of the issue. The section’s interpretation leads to the conclusion that the section applies to the virtual realm. Legal issues concerning the access provider may be adequately resolved in the context of how the police may exercise its authority to order restricted access to gambling websites. That such difficulties exist should not be a determinative factor in whether the authority exists.

45.       I also believe that the legal challenges involved in restricting access to gambling websites vis-a-vis the access providers were exaggerated. First, using a third party to execute criminal proceeding is not illegitimate. The law recognizes, for example regarding a summons to present evidence for investigation or a trial (section 43 of the Criminal Procedure (Arrest and Search) (New Version) Act, 5729-1969. Second, given the license they receive from the State, access providers have a public duty. They sit at a central intersection – the “Internet points of control” – and under these circumstances using them to execute orders restricting access is justified.  Third, it appears that had it concerned the closure of a physical place by the police, with third party assistance, there would have been no problem.  The attorneys for the State demonstrated this in another context thus: Illegal gambling is being conducted in an isolated villa. A guard is in charge of the path leading to the villa. Would the police not be authorized to order the policeman to prevent gamblers’ access to the path leading to the villa? Fourth, a police order directed at access providers instructing the to restrict access to illegal gambling websites does not require them to conduct any investigation or inquiry and does not unlawfully breach any of their rights, ordering them only to “execute a technical act that does not involve any discretion of the closing of a site with a particular IP address, explicitly specified in the order” (section 41 of the State’s summations). Case law has stressed that imposing legal responsibility on the supplier raises concerns that should be regulated statutorily (see Rachel Alkalai, Civil Liability of Internet Services Suppliers for Transfer of Harmful Information Hamishpat 6, 151, 154 on the Report by the Knesset Sub-Committee for Communications and Information on the Need for a Legislative Arrangement). However the situation in the case before us differs from the one described there. We do not hold that Internet providers are legally responsible to prevent, on their own initiative, access to websites used for illegal gambling.  Moreover, our ruling does not prevent access providers from petitioning a court in appropriate cases in order to subject it to judicial review. This right is stipulated in section 5(1) of the Administrative Affairs Court Act, 5760-2000 (item no. 7 of the First Schedule). Recall that the access providers did not exercise this right and did not challenge the order.

46. The Israeli Internet Association claims that this is an “unprecedented and exceptional measure” (page 1 of the summations). This is not so. The Administrative Affairs Court recognized that restricting access to Internet websites used for gambling is accepted practice around the world: “The desire to minimize the harm from negative uses has led certain authorities, even in liberal democratic countries, to take various measures against websites that support anti-social activities (see: Betting on the net: An analysis of the Government’s role in addressing Internet gambling, 51 Fed. Comm. L. J. (1999)). One of those measures is blocking access to websites that are breading grounds for illegal activity, by various technological means…” (para. 19 of the opinion) (ed. note: translated form the Hebrew opinion’s translation).  In Australia, a law was enacted in 2001, stipulating that “access providers shall block access to illegal gambling sites should they receive an express demand to do so from the authorities” (ed. note: translated from Hebrew opinion’s translation), subject to the conditions set forth in the Interactive Gambling Bill 2001. In 2006, the United States passed a law prohibiting Internet gambling – the Unlawful Internet Gambling Enforcement Act of 2006, which inter alia allows that under certain circumstances, the court may grant orders to compel internet providers to block access to gambling websites (paras. 54- 55 of the Administrative Affairs Court opinion).

47.       Additional restrictions are common around the world. The Council of Europe’s Convention on Cybercrime deals with the adoption of legislation intended to protect society from crimes committed online (http://conventions.coe.int/Treay/en/Treaties/Html/185.htm). It provides inter alia that all parties to the convention will adopt legislative and other measures as may be necessary to criminalize various acts of child pornography, which is disseminated over computer systems (Article 9). In 1998, Sweden passed a law addressing liability for electronic bulletin boards, including various categories of Internet pages (Act (1998:112) on Responsibility for Electronic Boards).  This statute requires service providers who store information (as distinct from Internet access providers) to make illegal content inaccessible or to remove the content. If further refers to a number of provisions in Sweden’s Penal Law, for example, incitement to racism, or child pornography (http://www.nai.uu.se/forum/about-nai-forum-1/SFS-1998_112-Act_E-boards.pdf.).

48.       Australia established an agency known as Australian Communications and Media, which is charged with, inter alia, regulating Internet content. The agency is authorized to investigate potentially prohibited content on the Internet, and to issue access providers “notice of warning and removal” relating to the contents of Internet websites used for illegal gambling. In Italy, since 2006, Internet gambling has been prohibited, unless on authorized websites.  Internet access providers are required to restrict access to unauthorized websites listed in a “black list” kept by an administrative body: Autonomous Administration of State Monopolies, http: www.aams.gov.it/site.php?id=6560).  As it turns out the restriction of access to websites is an accepted measure, occasionally following an order by an administrative body. The a priori involvement of a judicial body is not always necessary, and there is no need for a criminal investigation to precede the administrative directive. States around the world acknowledge the necessity of restricting prohibited activities on the Internet as well. The State of Israel is not a pioneer in this realm.

Police policy is to exercise this authority with caution. The investigations and intelligence branch prepare the infrastructure required for issuing an order.  Legal counsel to the police examines the material, and so does the State Attorney.  Immediately before issuing the order, the access providers and websites operates are given the right to present their arguments. The decision to issue the order is given at the level of the district commander.  A party who could have been aggrieved may file an application for a second review, and following that, as stated, may also petition the courts. After issuing the order, the police examines it periodically, and at least once a month considers whether to extend it, revoke it or amend it. Against this background, if the police orders, consistent with its authority, a third party to assist it in preventing an offence, and if the latter agrees, why should the court prevent it from doing so? If the same access providers wish to object, the doors of the court are open to them in order to hear their claims.

50.       As we have said, the authority is there; the manner of exercising it is subject to discretion and judicial review. Recall, that the access providers filed no petition to any court, and in this sense, the Internet Association is indeed meddling in a dispute to which it is not a party (HCJ 651/03 Citizens Rights Bureau in Israel v. Chairman of the Sixteenth Knesset Central General Elections Committee PD 57(2), 62.) Regardless, in the absence of appropriate factual infrastructure, there is no practical possibility or legal need to elaborate further on this matter.

51. The Administrative Affairs Court stated that restricting access through the orders in question could incidentally block innocent websites. Attorney for the State responded to this argument, claiming that from a technological perspective this fear was negligible because the IP address can be crossed with the website’s URL address in order to prevent restricted access to innocent sites. Personally, I see no need to rule on this point, given that it was not fleshed out in the Administrative Affairs Court.  The state can consider these claims in light of its discretion to exercise the authority. In preparing the order, the police must ensure that execution by access providers does not harm innocent websites, but only restricts access to the targetted website. Where it is impossible to avoid harm to innocent websites, as a side-effect of blocking access to a gambling website, to the extent that the Israeli Internet Association is correct and such situations indeed occur, the police would not be permitted to order restricting access to the site. Presumably, a provider wishing to avoid harm to innocent websites would present such claims under the right to be heard, in a petition for second review by the police, or in a petition to the court.

52.       The Israeli Internet Association also claimed that restriction of access was ineffective. The attorney for State argued in response that the inefficacy claim directly contradicted the Israel Internet Association’s claim concerning the damage such orders would cause: If the orders are ineffective, then naturally no harm would be caused. In any event, the court has no expertise regarding the efficacy of the orders. The position of the Israel Police – the professional body charged with the matter – is that the orders have a substantial effect and that this is another effective tool against illegal Internet gambling.  The Israel Police is aware of the methods used in an attempt to ’bypass’ the orders (for example, changing the URL website address, or its IP address). But this involves costs and not all end users know how to do it, and the police also has the tools for dealing with ‘bypass’ attempts. Actually, enforcement difficulties are not unique to virtual space and are common in all areas of crime: “For by wise counsel thou shalt make thy war” (Mishlei 24:6).

53.       The Administrative Affairs Court had difficulty not only with “place”, but also with “the closure”. According to the court, “closure is one thing, blocking access is another” (para. 41), and “even a broad interpretation of the law cannot confer the police commander authorities not specified in the law”  (ibid). My opinion is different. If the police is authorized to fully close illegal gambling websites on the Internet, then let alone it should be authorized to block or restrict the access to them. This is a less harmful measure. Section 17(b) of the Interpretation Law 5741-1981 provides that “any authorization to act or compel action implies the auxiliary authorities reasonably required therefore.” Authorization to close (and afortiori if closing is not possible) also means granting powers to block access.

54.       The Israeli Internet Association opposed various claims by the State’s representatives regarding the legislative regulation of the issue. This may be so, and it would have been preferable had they spoken in one voice, but we must remember that the issue raises real doubt. There is nothing to prevent changes in views or thought processes, and in making deliberations more productive. The binding position of the State’s representatives, at the end of the day, is that of the Attorney General, and the arguments were made on his behalf. Without derogating from its claims here, the State also submitted the draft bill to clarify the situation, but one cannot know how the legislative process will develop. The same applies to the four previous draft bills presented to the Knesset. Each one of them attempted to explicitly authorize the police to order access suppliers to block access to gambling websites, but none of them materialized into a legislative act. The Knesset members expressed varying opinions but I do not think it is possible to distill a clear conclusion from their comments regarding the subjective intention of the legislature, as concluded by the Administrative Affairs Court: “The fact that the legislator debated the proposal substantively and decided not to enact it, indicates that its subjective intention was not to apply its principles in fact… the subjective and concrete intention of the legislature in this matter, indicates that it sought not to give the District Commander authority to block access to gambling sites pursuant to his own discretion”  (para. 61). In my view, this conclusion is by no means inevitable. According to the record, some of the Knesset Members felt that a legislative amendment was entirely unnecessary, and that the authority already exists. In view of the differing views, additional possibilities exist. Summing up the debate, the committee chairperson pointed out the difficulties that were raised, but the general position was to conduct another hearing. A small part of the legislative proceedings and a few Knesset members who are members of the Constitution, Law and Justice Committee cannot provide a basis for a generalized legislature’s subjective intention.

Final Word

55.  I do not think that there was any justification to cancel the orders issued by the police, with the State Attorney and the Attorney General’s knowledge, to restrict access to gambling websites. First, it is doubtful whether the Israel Internet Association has locus standi in this petition; second, the alleged infringement of free expression is certainly not as serious as was alleged; third, the main point is that section 229(a)(1) of the Penal Law constitutes an authorization for the police to issue the orders. This is consistent with the section’s language, its logic, the legislative history and the legislative purpose.  I therefore propose to my colleagues to strike down the decision of the Administrative Affairs Court and to order the restoration of the orders to restrict access to gambling websites.

Note

56.       After reading the opinion of my colleague, Justice U. Vogelman, my impression is that he was slightly tough on the State regarding the use of a third party – access providers – for purposes of exercising the authority under section 229 of the Law. I addressed this point in paragraphs 44-45 above. I will add just this: My colleague mentioned the well known distinction between delegating authority which also includes the exercise of discretion, and receiving assistance in technical matters related to exercising that authority. My colleague acknowledges that the access providers were not required to exercise discretion, and the police only requested their help in exercising its own authority – in the technical act of blocking a website identified by its IP address as specified in the order. However, according to my colleague, it is still necessary to show that the access providers agree to assist the police, and once the police imposed an obligation upon the access providers, it can no longer be considered assistance.

My view is different. First, let us assume that the police district commander seeks to order the closure of a room used for gambling. To do so he orders a third party, in possession of the keys to that place, to lock the door, without requesting consent. Is there anything wrong with that?  Had the place of gambling not been an Internet site, but rather a room in a hotel, would the police not be authorized to order a reception clerk to assist it in exercising its authority to close that room or to open it? Would this require a legislative amendment?

Second, as mentioned in para. 49 above, prior to issuing the order the access providers were given the right to present their claims; the access providers are entitled to request a second review of the decision to issue an order, and the access providers are also permitted to petition the Administrative Affairs Court. In fact, the access providers took none of these steps. They may have reconciled themselves to the orders as a token of good citizenship; they may have an interest in preventing access to gambling websites, because in doing so they reduce their exposure to law suits (for example: parents suing them for their damages as a result of their children’s Internet gambling). I will not belabor the point speculating because the facts suffice: The access providers did not institute any legal proceedings to express their objection to the orders. My colleague seeks to be meticulous about the access providers’ rights, and requires that their consent be “explicit”, “sincere and genuine willingness”. Under the circumstances, my view is different. In the Haggadah of Pessach, tomorrow night, with respect to the son who does not know how to ask, we say “you shall open your mouth for him”. By way of analogy, this is how we relate to a mute, who is incapable or does not know how to present claims or to ensure their rights are protected. Access providers do not fall into this category and I see no justification for treating them under the criterion of “you shall open your mouth for him”, when the gates of the court were open to them, and they knowingly refused to enter. More precisely, in the future too, whenever the police seek to issue an order, Internet providers will be able to object and to present their case before the order is issued, after it is issued, and also to file an administrative petition. It therefore seems that we may appropriately apply the Talmudic rule that “silence is regarded as consent” (Bavli, 87b), to infer their agreement, and thus remove the obstacle to the exercise of the police authority to restrict access to gambling websites.

 

Justice U. Vogelman

Is the District Police Commander of the Israel Police authorized to order Internet access providers to restrict Israeli users’ access to gambling sites on the Internet, under their authority under section 229(a)(1) of the Penal Law, 5737-1977 (hereinafter: the Penal Law), to close down gambling places? This is the question before us.

General

1.         The appearance of the Internet has radically changed our world.  It enables easy and convenient communication between people. Some use it for interactive entertainment; others use it for electronic trade. Many use it – occasionally on a daily basis – to send electronic mail and for sending instant messages. A countless number of websites enable video and audio, and others enable telephony, files sharing, and the like (Assaf Hardoof, Hapesha Hamekuvan) [CYBERCRIME], 114, 117 (2010)). The web also enables access to immense quantities of information pooled on the Internet – an ever growing collection of documents created by independent authors and stored in servers’ computers. In that sense, the Internet is the most outstanding feature of the “information era” in which we are living, an era in which advanced technological reality enables the immediate transfer of data on a massive scale compared to the world around us (see HCJ 3809/08 Citizens Rights Bureau v. Israel Police [12] para.1 (hereinafter: the “Big Brother” law). In this way the Internet has and continues to contribute to social, economic, scientific and cultural developments around the world. Alongside these numerous advantages, phenomena of lawbreaking are likewise are not absent from the virtual world. The Internet enables activity that is defined as a criminal offence or civil tort, as well as technologies that enable the commission of torts or offences (Michal Agmon-Gonen, The Internet as a City of Refuge?! Legal Regulation in Light of the Possibilities of the Technological Bypass Technologies and Globalism of the Net, in Legal Network: Law and Information Technology, eds. Michael Birnhack and Niva Elkin-Koren, 2011). Illegal gambling enabled by the Internet is part of the content available on the Internet. Gambling websites offer their services from their locations in countries that permit it, and are accessible from different states around the world, including those in which participation in gambling is prohibited or restricted. Over the past few years these websites have become increasingly ubiquitous, given the high financial incentive for establishing them. Online gambling is one of the most profitable branches of trade on the Internet (Chaim Wismonsky, Sentencing Guidelines for Computer Crimes, Bar-Ilan Law Studies 24(1), 81, 88 (2008)).

2.         There is no need to elaborate on the negative social value involved in gambling. My colleague Justice N. Sohlberg also discussed this at length. This phenomenon has seen plenty of opposition, including the claim that a one’s livelihood should be based on work, a vocation or some other legitimate activity rather than easy enrichment based on luck. Whereas participating in gambling is not creative and undermines one’s work-ethic, a person participating in prohibited games may become addicted to this “occupation”, and the addict could cause extensive losses to themselves and their family and ultimately become a burden upon their family and upon society. As known, there are a few legal arrangements that permit gambling games under state auspices, encompassed in the Regulation of Gambling in Sports Act, 5727-1967 and in section 231(a) of the Penal Law. Mifal HaPayis,[4] for example, operates under such a permit. Notwithstanding that state-sponsored permitted gambling enables quick enrichment based on luck and also poses the danger of addiction, it should be distinguished from illegal gambling. Permitted gambling enables fundraising for public causes; they are not usually accompanied by negative elements such as coming under the control of organized crime, and finally, the state can oversee their mangagement and the distribution of funds (see AAA 4436/02 Tishim Kadurim [3] at p. 804,806; Ofer Grusskopf, Paternalism, Public Policy and the Government Monopoly over the Gambling Market, Hamishpat (7) 9, 28 (2002)).  As an aside, it should be noted that in many states gambling is permitted on a wider scale, but needless to say, our decision at this stage is restricted to Israeli Law and the legislatures’ values-based determinations.

3.         Techonolgically, it is now possible to block access to a particular website (compare:  Rachel Alkalai, Civil Liability of Suppliers of Internet Services for Transfer of Damaging Information, Hamishpat  (6) 151, 159 (2001)). This is the background for the orders subject to this proceeding. The events concerning us unfolded as following. At the end of June 2010 Israel Police district commanders sent warning letters to Internet access providers, notifying them of their intention to order blocking Israeli users’ access to various gambling websites (hereinafter: the warning letters). In the warning letters the district commanders specified the URL addresses and IP addresses of these websites. Notably, the Appellants claimed that the website operators also received a similar warning. The Internet access providers received a 48-hour extension to submit their challenges of the orders, and a further extension was granted to providers who so requested. One provider, Respondent 2, exercised its right to object to the orders. In a letter to the district commanders, Respondent 2 claimed that the orders because were unlawful because the district commander is only authorized to order closure of physical places; and also because the Penal Law does not authorize a district commander to use the providers to prevent users in Israel from having access to gambling websites. In August 2010 the police gave notice that it had rejected these claims and the orders forming the subject of the appeal were subsequently issued.

4.         Our decision in this appeal therefore relates to the legality of these orders. My colleague, Justice N. Sohlberg, found that there is a doubt regarding the locus standi of the Israeli Internet Association in this petition; and that there was no justification to declare the orders invalid because they were issued by the district commander without authority, as per the ruling of the District Court. Having read the comprehensive opinion by my colleague, and having considered the matter, I have concluded I cannot concur with the result that he reached. My conclusion precedes the analysis. As detailed below, in my view, section 229(a)(1) is short of authorizing the police to issue the relevant orders. In the first part of my remarks I will discuss the locus standi of the Israeli Internet Association. Next, I discuss the source for the claimed authority – section 229 of the Penal Law, and examine whether it sufficiently authorizes ordering the Internet providers to block access to gambling websites.

Locus Standi of the Public Petitioner

5.         The Israeli Internet Association is a non-profit organization that works to promote the Internet and its integration in Israel. The Association seeks to further the interests of Internet users. It has no self-interest beyond the interests it shares with the general public, or at least with significant parts thereof, and as such its petition is a “public petition”. As a rule, this Court’s jurisprudence has taken a permissive approach to standing rights of public petitioners (HCJ 5188/09 Association of Renovations Contractors for Restoration v. State of Israel  [13] para. 7.) Our firmly settled rule is that a public petition will be recognized where “the matter raised in the petition is of a public nature, which has a direct effect on advancing the rule of law and establishing policies to ensure its existence in practice” (HCJ 1/81 Shiran v. Broadcasting Authority [14] at p. 374; see also HCJ 910/86 Ressler v. Minister of Defense [15], at 462-463). Who can serve as the public petitioner? It could be any one of many people aggrieved by a certain administrative act (HCJ 287/91 Kargal Ltd v. Investments Center Council [16] at p. 862), including any one who is unable to indicate a personal interest in the matter or harm caused to them personally (HCJ 651/03 Citizens Rights Bureau in Israel v. Chairman of Central Elections Committee for Sixteenth Knesset [11] at p.68)). The judicial policy on this issue was and still is influenced by fundamental value-based concepts about the role of judicial review in protecting the rule of law and supervising appropriate functioning of public administration. As such, the court should refrain from refusing the hear a person who claims that an administrative authority has violated the rule of law for the sole reason that they have no personal interest in the matter, given that this would lead to providing the authority with a stamp of approval to continue violating the rule of law (HCJ 962/02 Liran v. Attorney General [17] para. 14 (hereinafter: “Liran”). Yitzchack Zamir Administrative Power Vol.1 120-121 (2^nd ed. 2010) (hereinafter: Zamir)). Along with broadening of the scope of standing rights, the principle that the court will not generally grant a public petition where there is a particular person or body who has a direct interest in the matter should be preserved, unless they themselves have failed to petition the court for relief in the matter concerning them (see Liran [17]). In the words of former Justice M. Cheshin in HCJ 4112/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Tel-Aviv Municipality [18]: “…in a case of this kind we would tell the public petitioner seeking to claim the right of the individual injured: Why are you meddling in a quarrel which does not involve you? If the victim did not complain about the infringement that he suffered, why have you come to provoke dispute?” (ibid., p. 443).  

6.         My colleague Justice N. Sohlberg felt that the Internet Association was “meddling in a quarrel which does not involve it”. I do not share this position. In the case before us, the Internet Association has raised grave claims about the alleged overstepping of authority in issuing orders to Internet access providers. Our concern is with a first attempt to define the scope of the district commanders’ authorities under section 229 of the Penal Law, in terms of blocking access to Internet gambling websites. This is a fundamental question. It is undisputed that the administrative authority’s activity within the boundaries of its authority are central to maintaining the rule of law. This Court has already held that claims of exceeding of authority are categorized as claims that justify broadening standing rights, for “...a court takes a more lenient attitude to the right of standing of persons not directly and substantially harmed where it concerns exceeding authority of a tribunal or agency, or where it concerns an act committed unlawfully, as distinct from other cases” (per Justice Kister in HCJ 80/70 Elizur v. Broadcasting Authority [19] at p.649; compare HCJ 852/86 Aloni v. Minister of Justice  [20], at p.63).

7.         One of the underlying considerations in Justice N. Sohlberg’s position on the Internet Association’s standing was the concern that conducting a proceeding on the part of the Internet Association might mean that the court would not be presented with the required factual foundation.  While I do not deny this concern, it seems that it need not undermine the Association’s standing.  First, we may assume that had the Appellants who participated in the proceedings in the lower court wished to clarify any factual matter or otherwise, they would have done so. For example, consider the Appellant’s complaint that the trial court was not presented with a full description of the technological ability to order blocking access to the websites. Without making an iron clad determination on the question at this stage, it suffices to say that nothing prevented the Appellants themselves from presenting data on this point, to the extent that they disputed the factual infrastructure in the petition. Second, nothing prevents the public petitioner from presenting the necessary factual foundation. In this case, too, I do not find the legal foundation presented to the Court to have hindered judicial review. Consequently, in my view, there is no ground for us to intervene in the District Court’s ruling that the Internet Association has locus standi in this proceeding.

With this in mind we can proceed to the merits of the matter.

The Question of Authority

8. Section 229(a)(1) of the Penal Law, titled “Closure of Places” provides that “A district police commander of the Israel Police may order the closing of... a place for prohibited games or a place for the conduct of lotteries or gambling”. In section 224 of the Law, a “place of prohibited games” is defined as “premises in which prohibited games are habitually conducted, whether open to the public or only to certain persons; regardless of whether those premises are also used for some other purpose”. In order to determine that the orders directed at the access providers requiring them to block access to gambling websites, are within the authority detailed in section 229 of the Law, three interpretative moves are necessary. First, we must determined that a website fits the definition of “place” as defined by the law; second, that blocking access to the website is the equivalent of “closing” as defined in the Law; and third, that the access providers can be used to exercise such authority.

9.         I am prepared to assume, in line with my colleague Justice N. Sohlberg’s holding that a website could constitute a “place” as defined in different contexts in our legislation, and that an online gambling website may be viewed as a “place of prohibited games” as defined in section 229 of the Penal Law. In this regard, I tend to agree that a purposive interpretation of this legislation, in the spirit of the times and technological progress, may indeed lead us to the conclusion my colleague reached that section 229 of the Penal Law could be also applied to “the virtual world” (compare Assaf Hardoof Criminal Law for Internet Users: The Virtual Actus Reus, HaPraklit (forthcoming) (52) 67, 122-124 (2012) (hereinafter - Hardoof)).

10.       Regarding the infringement of free expression. Internet sites indeed serve for voicing opinions and exchanging ideas, but – as is well known – the law does not treat each and every expression similarly. Even had some of the gambling websites included pictures, explanations concerning the rules of different games, information about gambling relations, chat rooms, and others – this is content located at the periphery of the protected value. As such, even if blocking gambling websites may cause blocking access to lawful content, it must be remembered that the value of the “expression”, which we are asked to protect, is not high and that the extent of protection afforded corresponds to the extent of the interest in question (HCJ 606/93 Kiddum Yezumot v. Broadcasting Authority [21] at p. 28). Moreover, to the extent that it concerns the blocking concrete websites, it seems that the primary infringement relates to the website operators’ freedom of occupation. Our precedents have already held that this is an infringement that passes constitutional tests (Tishim Kadurim [3] at pp.814-815). However, despite this and though I am prepared to assume that the extent of the infringement of freedom of expression is limited, I think it important to note that I share the general approach of the District Court, that when dealing with the sensitive topic of blocking Internet websites, we should particularly scrutinize the concern for infringement of freedom of expression. With respect to gambling websites, and only to them, my opinion, as mentioned above, is that the infringement of free expression that resulted from blocking lawful content on the gambling websites, is of a limited degree, On the other hand, it is certainly possible that other cases will reache us in the future, where there may be reason to significantly broaden the scope of protection afforded to expressions displayed on any particular website. Each site has its own characteristics.

11.       Aadditionally, the sensitivity of the matter – blocking websites – has another aspect , given that the trial court also found that blocking illegal gambling websites could also block access to “innocent” sites which the order did not target.  An unintentional block may occur because a number of websites, not linked to each other, may be located on a server with the same address. Regarding this point, the trial court referred to Center for Democracy & Technology v. Pappert [31] 337, F.Supp.2d 606 (E.D Penn. 2004), in which the United States Federal Court struck down a law that enabled censorship of pedophile websites, among others because of the filtering of “innocent” websites. The Appellants, for their part, challenge this holding. They claim that from a technological perspective, the fear of blocking sites that are unconnected to gambling activity is negligible, because the access providers were requested to block websites based on the combination of the IP address and the website address (the URL). This combination of the IP address and the URL address, allegedly, minimizes any possibility of blocking innocent websites. Apparently, this point was not fully clarified because even after examining of the papers filed with the trial court, it is unclear whether it is technologically possible to block only “targeted” gambling websites, as alleged by the Appellant, or perhaps, technologically, it poses difficulties. If indeed, there is danger of blocking “innocent” websites, then this would clearly constitute a grave infringement of free expression and the right to access information – an infringement that would necessitate explicit statutory authorization as well as compliance with the limitations clause.

12.       Had the question of blocking “innocent” websites been the only difficulty arising from this case, it might have been appropriate to remand to the trial court for an in-depth examination of this issue. However, the central obstacle the Appellants face is fundamental and disconnected to the previous question, namely using a third party to execute an authority, without explicit statutory empowerment to do so. In my view, section 229 cannot be sourced to exercise the authority by giving an order directed at a third party – the Internet access providers. My colleague, Justice N. Sohlberg, found that restricting access to gambling websites through a third party does raise concerns, but in his view these difficulties do not negate the authority to do so. My view is different, and I will clarify my reasons.

13.       Our concern is with a district police commander who issued orders to the Internet access providers to block access to gambling sites. These are “personal orders” – in other words, orders directed at a particular person or entity, imposing a prohibition or a duty upon them. This is an individualized rule of conduct. This kind of order, like any administrative decision, requires a written statutory source (Zamir, at 284).  The question therefore is whether the district police commander is authorized to order the providers – a private body that is not accused of any offence – to perform various actions on behalf of the Israel Police, and to actually serve as its long arm. This authority, arguably, is found in section 229 of the Penal Law, which authorizes the district commander to order the “closure” of places used for gambling.  As mentioned, I accept that had law enforcement authorities been able to affect the closure of websites used for gambling criminalized under Israeli Law (for example by disconnecting the website from its connection to the Internet or by shutting down the server’s activity) there would be no question regarding authority.  However, in this case, the relevant websites were not actually “closed”. Instead, the district police commanders ordered third parties – the Internet access providers – to block access to those websites. The issue then becomes whether the powers granted by by section 229 support doing so.

14.       When a governmental authority is conferred with a power, according to settled case law, the authority must exercise this power itself. When the legislature specifies an authorized office holder, it is presumed the legislature wishes that particular office holder, and that alone, exercise it (HCJ 2303/90 Philipovitz v. Registrar of Companies [22] (hereinafter: Philipovitz), at p. 420; see also Daphne Barak-Erez Administrative Power, 178 -170 (hereinafter: Barak-Erez)). These comments are particularly true for criminal enforcement. In the absence of appropriate legislation, law enforcement authority cannot be given to those not part of the enforcement mechanism. Criminal enforcement authority is one of the classic authorities of the state. This authority enables the state to fulfill its responsibility to enforce criminal law through its own execution. It is the state that exercises the Government’s authority over the individual in the criminal proceeding. Therefore, the state – having established the behavioral norms and having been charged with their enforcement – is the entity directly responsible for caution and restraint required for exercising this power. It is the entity that is accountable to the public for the way it executes its powers (HCJ 2605/05 Academic Center for Law and Business v. Minister of Finance [23], para. 28 of former President D. Beinisch’s opinon and para. 14 of Justice A. Procaccia’s opinion.)

15.       By attempting to source the authority in section 229 of the Penal Law, the State maintains it is exercising the authority by itself, and that enlisting Internet access providers to block gambling websites is merely exercising auxiliary powers that administrative agency must employ in order to exercise its authority (section 17 of the Interpretation Law, 5741-1981). I cannot accept this construction. As well known, there is a distinction between delegating authority that includes exercise discretion regarding a particular authority, and receiving assistance in technical matters related to exercising the authority (Philipovitz [22] at p. 424). Whereas the authority is permitted to receive assistance from private bodies about technical aspects of fulfilling their task, there is also a presumption against delegating authority to private entities (AAA 6848/10 Erez v. Giva’ataim [24] para 18; HCJ 5031/10 Amutat Ir Amim v. Israel Nature and Parks Authority [25] para. 18). Here, the access providers were not required to exercise discretion regarding the websites to which access was to be blocked. As such, it could be argued on its face that the authority did not delegate power but only requested assistance in exercising it, and that such assistance is in principle permitted. However, where assistance is concerned, the first and foremost element to demonstrate is that the person or entity whose assistance is required consents to assisting the authority, regardless of whether consent is motivated by commercial and economic motives (compare to Philipovitz [22] at 415), or by voluntary motives. The most important thing is that the authority may receive assistance only from those seeking to offer assistance based on pure and genuine motives and after securing explicit consent. When the authority imposes a duty on a person or entity to perform any act, one can no longer speak of assistance. In our case, the Appellants claim that the expression “closing of a place for prohibited games” mentioned in the relevant section of the Penal Law, also contains the possibility of ordering closure of access routes to that place using auxiliary authority. This is not so. Our concern is with orders that compel a private body – the Internet access providers – to “assist” the authority. Consequently the argument that the providers are an entity that grants its services voluntarily must fail. This is doubly important when the orders themselves warned, in bold print, that failure to comply with the order could constitute an offence of breaching a statutory provision, an offense of assisting the conduct of prohibited games, and an offence of assisting to maintain a place for prohibited games (sections 287, 225, and 228 of the Penal Law, combined with section 31 thereof).

16.       Additionally, I wish to clarify that were there an explicit statutory authorization it could be possible to “impose a duty” and receive assistance from any person for the purpose of realize various legislative goals. Indeed, different pieces of legislation empower an authority to order a third party to assist it, even in the criminal context. For example, section 20 of the Criminal Procedure (Arrest and Search) Ordinance [New Version], 5729-1969 provides that every person must help a police officer to arrest any person whom they are authorized to arrest. In a matter close to our own, a similar arrangement exists: the Criminal Procedure (Powers of Enforcement-Communication Data), 5768-2007 (also known as the “Big Brother Law”) allows Israeli investigatory authorities to be assisted by “holder[s] of a Bezeq license” (as defined there) in order to receive communications data on Bezeq subscribers for various purposes, such as discovering and preventing offences (section 1 and section 3(2) of this law). The various Internet providers are among the companies that may be required to submit communications data (see in the matter of the “Big Brother” law, para.2). This affirmation however also implies the opposite. Imposing a duty, coupled with a sanction, requires legislative bases. Without explicit legislative authority, it is impossible to charge a private entity with performing actions for the authority (compare: Civ.App. 90868/00 (District-T.A.) Netvision Ltd. v. Israel Defense Force- Military Police, para.9 (22.6.2000); Crim.F. 40206/05 (District-T.A.) State of Israel v. Philosof para. 8 b) (5.2.2007)). We are thus left with the need for explicit lawful authorization. In our case however, the language of section 229 of the Penal Law does not contain so much as the slightest hint of an authorization to impose a duty on a third party. And for good reason. Such authorization involves complex matters of law and policy.  In 2008, when the Knesset deliberated over the legislative amendments that would confer authority to block access to gambling websites, representatives of the Minister of Justice (as well as representatives of the police) expressed reservations about conferring authority as stated, for various reasons which will not be addressed here. Today the position of the authorities – with the support from the Attorney General – is different. Of course, the authorities are not bound by their former position, but the only lawful way to confer the district commander with the authority to order a third party service provider, in my view, is an amendment to primary legislation (an amendment which, needless to say, would have to satisfy the limitations clause in Basic Law: Human Dignity and Liberty). Accordingly, the manner in which the orders were issued here deviated from the principle of administrative legality, which is a fundamental norm of administrative law. “This principle teaches that the power of the public authority flows from the powers conferred upon it by law and nothing else. It is the law that grants the license to act, and defines the boundaries of its scope. This is the ABC of administrative law” (Baruch Beracha, Administrative Law, Vol.1 35 (1987); CA 630/97 Local Committee for Planning and Building Nahariya v. Shir Hatzafon Construction Company Ltd [26], at pp. 403-404; HCJ 5394/92 Hoppert v.'Yad Vashem' Holocaust Martyrs and Heroes Memorial Authority[27] at , 362 (1994);  HCJ 7368/06 Luxury Apartments Ltd v. Mayor of Yabneh [28], para. 33; see also HCJ 6824/07 Mana v  Taxation Authority[29]; HCJ 7455/05 Legal Forum for Land of Israel v. Israeli Government [30] at p. 910; Zamir, at 74-890; Barak-Erez at p. 97 and on). This is especially so in context of a mandatory authority, as anchored in the Penal law (see and compare Hardoof at p. 124).

17.       Could future legislation enable imposing the task of blocking gambling websites upon Internet access providers? An arrangement of this kind might take several forms. The legislature might determine that a court must grant such an order; it might grant the district police commanders – or any other authority – the authority to issue these orders, without petitioning a court (compare with “Big Brother” Law, para. 2). We assume that this legislation would also resolve additional concerns stemming from imposing the duty on access providers, while considering the costs likely involved in ensuring effective blocks, including the definition of access providers’ responsibility towards third parties, such as users and website owners whose access to them is blocked, and the like. In any event, it is clear that in our legal system the legislature is branch competent to consider the appropriate way to handle blocking access (Hardoof, ibid). Therefore we shall not jump the gun. We are not required at this point to pronounce on future legislation that has yet to be enacted and the details of remain unknown (and which, as mentioned, will also have to satisfy the limitations clause).

Other Legal Systems

18.       My colleague, Justice N. Sohlberg, found that restricting access to websites used for gambling is acceptable practice all over the world. Before we consider his comparative analysis, we should again note that the treatment of gambling in some countries is more lenient and as such no conclusive analogy can be drawn from the existing law in those countries to our legal system. On the merits of the matter, while certain countries receive assistance from Internet access providers to block gambling websites, as noted by my colleague, these are generally arrangements explicitly mandated by legislation, rather than acts designed to exercise general administrative powers. I will provide some examples.

19.       In the United States, gambling is regulated primarily at the state level rather than the federal level. There are significant differences between the various states in whether and how they view gambling and how they treat it. Federal legislation is therefore designed to assist states in enforcing local gambling laws where gambling activity extends beyond state-lines. Four primary pieces of federal legislation serve the authorities dealing with the gambling phenomenon: The first is the Federal Wire Act, of 1961 (18 U.S.C. §1084), which targets interstate gambling through linear communication. Though this law was enacted years before the Internet came into common use, and long before the online gambling became prevalent, this is legislation that authorities relied upon in the earlier days of the problem (see e.g. United States v. Cohen 260 F. 3d 68 (2d Cir. 2001)). The second act regulating the issue is the Illegal Gambling Business Act of 1970 (18 U.S.C. §1955) that was passed to battle organized crime that used gambling businesses as a main source of income, and it regulates the criminal responsibility of owners of large gambling businesses. The third is the Travel Act of 1961 (18 U.S.C. §1952), which prohibits the use of mail and interstate travel and travel outside the United States for unlawful purposes, including illegal gambling. The forth piece of legislation is the Unlawful Internet Gambling Enforcement Act (31 U.S.C. §5361-67), which prohibits gambling businesses from knowingly receiving payment linked to one’s participation in online gambling. It is interesting to note that law enforcement authorities occasionally found it difficult to rely on old statutes to receive Internet access providers’ assistance in closing gambling websites. Hence, for example, in April 2009 authorities in Minnesota instructed Internet service providers to block state residents’ access to 200 online gambling sites – an instruction given under the Federal Wire Act. However, this was challenged in court based on the argument that this act is inconsistent with the First Amendment’s protections for freedom of expression, and with the Commerce Clause (Edward Morse, Survey of Significant Developments in Internet Gambling, 65 Bus. Law, 309, 315 (2009)). In response, the Minnesota enforcement authorities withdrew the orders issues to the access providers (Lindo J. Shorey, Anthony R. Holtzman, Survey of Significant Developments in Internet Gambling 66 Bus. Law. 252 (2010)  

20.       In Australia, the Australian Communications and Media Authority’s power to order providers to block access to illegal gambling sites is regulated in detail in the “Interactive Gambling Act 2001 (sections 24-31) and in the regulatory code enacted under it (Interactive Gambling Industry Code (December 2001)). In Italy, a state my colleague referred to in his opinion, authorities’ authorization to order access providers to block illegal gambling sites is also set in legislation. Section 50(1) of Law No. 296 of 27 December 2006 (the Budget Law for 2007) established the authority of AAMS (Amministrazione Autonoma dei Monopoli di Stato), an organ of the Italian Ministry of Finance, to instruct, in an order to the communications bodies, to take measures toward removing illegal gambling websites, while setting an administrative fine of €30,000-80,000 for any breach by the communication providers. Under this law, Administrative Order No. 1034/CGV of 2 January 2007 was issued. It details the manner of exercising the power. According to the AAMS data, as of October 2010, 24000 websites were included in the “black list”. Every month hundreds of websites are added.

21.       Therefore we must conclude that even were there countries around the world that recognize the possibility of assistance from Internet access providers in blocking illegal gambling websites – this possibility is authorized there in explicit legislation. Where the subject was not regulated in explicit legislation, questions s about the power of the authorities to do so were raised in various countries, for reasons similar to those given by the District Court.

Afterword

 22.  Before concluding I would like to respond briefly to my colleague Justice N. Sohlberg’s comment regarding my position (para. 56 of his opinion). I wish to clarify that the thrust of my opinion does not turn on the interest of the access providers and the question of their concrete consent to blocking the websites. The conclusion I reached is based on the rule that an authority can only act within the boundaries of the powers the law conferred upon it, and that when exercising police powers the strict application of this rule is especially important. I would point out that I do not accept, as a given, my colleague’s assumption that a third party can be compelled to become “the long arm” of the police without its consent. Take a situation in which the reception clerk of a hotel (an example my colleague provides) fears a confrontation with criminal elements and has no interest in coming into contact with them. Would it also be possible then to compel the clerk to close the room? In my view this question is not free of doubt, but regardless, this we are required to rule on this question. In our case the totality of the circumstances that I presented and the sensitivity of the material discussed, in my view, lead to the conclusion that the existing authorization lacks the power necessary for exercising the alleged authority. 

Epilogue

I have reached the conclusion that section 229 of the Criminal Law does not authorize a district police chief to issue orders directed at Internet access providers, ordering them to block access to gambling websites. In my view, this requires express statutory authorization and the current arrangement is insufficient, because it does not contain authorization to order a third party to assist the enforcement authorities in exercising the power.

            For this reason, were my opinion to be followed, I would dismiss the appeal against the decision of the Administrative Affairs Court and would order the Appellants to pay the Respondents’ attorneys fee, for the sum of NIS 25,000.

 

                                                                                                Justice

 

President A. Grunis

My colleagues, N. Sohlberg and U. Vogelman are in dispute both about the preliminary issue of the locus standi of the Appellant and about the substantive issue of the district police commander’s authority. Regarding the first matter I see no reason to express a position. My colleague, Justice N. Sohlberg who addressed the position that the Appellant had no locus standi in the Administrative Affairs Court, analyzed the substantive issue, and concluded that it would not be proper to allow the appeal based on the preliminary issue without having considered the legality of the orders issued by the district police commanders. Under these circumstances I agree that it is appropriate to address the issue on its merits. Regarding the substantive issue, I concur with Justice U. Vogelman. That is to say, that I agree that the district commanders of the Israel Police do not currently have the authority to issue orders to Internet access providers to block access to gambling websites. The solution lies with the legislature.

 

                                                                                                            The President

 

It was decided by a majority opinion (President A. Grunis and Justice U. Vogelman) against Justice N. Sohlberg’s dissent, to dismiss the appeal, and to order the Appellants to pay the Respondent’s attorneys fees in the sum of NIS 25,000.

 

Handed down today 13th Nissan 5773 (24 March 2013).

 

 

 

 

.

 

 

HCJ 11243/02

1.  Moshe Faiglin

2.  Hagai Yekutiel

v.

1. Mishael Cheshin, Chairman of the ElectionsCommittee

2.  Naomi Hazan, KM

3.  Ya’akov Stotland

4.  The Likud Movement

 

The Supreme Court Sitting as the High Court of Justice

[May 15, 2003]

Before President A. Barak, Vice-President S. Levin, Justices E. Mazza, T. Strasberg-Cohen, D. Dorner, Y. Turkel, D. Beinisch, E. Englard, A. Rivlin, A. Procaccia, and E. Levi  

 

Petition to the Supreme Court sitting as the High Court of Justice, pursuant to section 6 of the Basic Law: The Knesset.

 

Facts: Petitioner wished to be a candidate in the elections for the sixteenth Knesset. Petitioner included, with his candidacy application, a “Statement of Agreement” pursuant to section 57(i) of the Knesset Elections Law. Petitioner did not add any additional materials to note that he had been convicted of the criminal offense of incitement and sentenced to six months imprisonment, to be served as community service. Additionally, petitioner did not subject a request “to expunge the disgrace” of his conviction to the Chairman of the Central Elections Committee. In light of these circumstances, petitioners asked the Court to hold that petitioner was ineligible to compete for the Knesset elections.

 

Held: The Supreme Court held that petitioner could not compete in the Knesset elections, as he had not fulfilled the technical requirements of the Knesset Elections Law, including the requirement to submit a request to “expunge the disgrace” of his conviction. Justice E. Levi, in a dissenting opinion, asserted that petitioner was eligible to compete in the Knesset elections. The Court split as to the substantive question—whether the offence of which the petitioner was convicted did “involve disgrace.”

 

Basic Laws cited:

Basic Law: The Knesset, §§ 6, 6(a), 7, 7A

 

Legislation cited:

Knesset Elections (Consolidated Version) Law-1969, §§ 56, 56B, 56B(1), 57(i), 142, 143

The Penal Code-1977, §§ 133, 134, 151

 

Israeli Supreme Court cases cited:

[1]HCJ 705/78, The “Chai” Party for the Givaataim Municipal Council v. The Elections Officer, IsrSC 32(3) 608

[2]HCJ 6790/98 Avretz v. The Elections Officer for the Municipality of  Jerusalem, IsrSC 52(5) 323

[3]HCJ 2573/99, Ba-Gad v. The Elections Committee for the Knesset, IsrSC 43(3) 193.

[4]HCJ 5769/93 Hamza v. The Elections Officer for Shahb (unreported case)

[5]EA 2/84 Neiman v. Chairman of the Central Elections Committee, IsrSC 39(2) 225

[6]EA 1/65 Yaakov Yeredor v. Central Elections Committee, IsrSC 19(3) 365

[7]HCJ 753/87 Boronstien v. Minister of Interior, IsrSC 42(4) 462

[8]EA 1/88 Moshe Neiman v. Chairman of the Central Elections Committee for the Eleventh Knesset, IsrSC 42(4)177

[9]C.App. 2316/96 Issacson v. Political Party Registrar, IsrSC 50(2) 529

[10]HCJ 3090/97 Cohen v. Southern District Commissioner, Ministry of Defense IsrSC, 52(2) 721

[11]HCJ 6859/ 98 Ankonina v. Or Akiva Elections Official, IsrSC 52(5) 433

[12]Crim.A. 6696/96 Binyamin Kahane  v. the State of Israel, IsrSC 52(1) 535

[13]HCJ 436/66 Menahem Ben Aharon v. Head of the Pardesia Local Council, IsrSC 21(1) 561

[14]HCJ 251/88 Wajia Oda v. Talel Rabi, IsrSC 42(4) 837

[15]CA 2211/96 Cohen v. Cohen, IsrSC 50(1) 629

[16]HCJ 6163, 6177/92 Eisenberg v. Minister of Building and Housing, IsrSC 47(2) 229

[17]HCJ 103/96 Cohen v. The Attorney-General, IsrSC 50(4) 309

[18]EA 11280/02 The Chairman of the Central Elections Committee v. Ahmed Tibi, IsrSC 57(4) 1

[19]CA 10596/02 Leah Ness v. Likud Movement, IsrSC 57(1) 769

[20]F.Crim.A. 1789/98 State of Israel v. Kahane, IsrSC 54(5) 145

 

Israeli Magistrate Court cases cited:

[21]CC (Jerusalem) 3996/95 State of Israel v. Faiglin

 

United States Supreme Court cases cited:

[22]Brandenburg v. Ohio, 395 U.S. 4442 (1969)

 

Israeli books cited:

[23]11 S.Z. Feller, Foundations of Penal Law (1994)

[24]I. Levi & A. Lederman, Principles of Criminal Liability (1981)

 

Israeli articles cited:

[25]R. Gabizon, A Dishonorable Offense as a Disqualification for Holding Public Office, 1 Mishpatim 176 (1965)

 

Miscellaneous:

[26]Professor M. Kremnitzer & H. Ganaim, Sedition and not Incitement, Incitement in Penal Law: Legi Lata and Legi Fernada (1997)

 

 

For the petitioner— Haim Misgav, Tom Misgav, Yekutiel Hagai

For respondent 1— Dina Zilber

For respondent 2— Dafna Holtz-Lechner

For respondent 3— Ron Dror

For respondent 4— Eitan Haberman

 

 

 

JUDGMENT

Vice-President S. Levin

1.    Elections for the sixteenth Knesset were held on January 28, 2003. Petitioner, Moshe Faiglin, wished to run in the elections as part of the Likud List.  He was number 40 on the list.  The final date for submitting lists of candidates for the Knesset was December 20, 2002.  Faiglin appended a signed Statement of Agreement to the candidate list submitted by the Likud, in which he declared:

 

I have read and understood sections 6 and 7 of the Basic Law: The Knesset, and the provisions of section 56 of the Elections Law (Consolidated Version)-1969… I declare that to the best of my knowledge and understanding, the above sections do not prevent me from running for the Knesset.

 

Faiglin did not add any other documents to the Statement of Agreement. He did not note that he had been convicted of offences for which he was sentenced to six months of community service or that, on the day of the submission of the candidate list, seven years had not yet passed from the day he finished serving that sentence. Nor did he ask the Chairman of the Elections Committee to determine that, under the circumstances, the offences which he was convicted of did not involve “disgrace.” 

 

     On December 14, 2002, Knesset Member and Vice-Chairman of the Knesset Naomi Hazan submitted a petition to the Chairman of the Elections Committee. Ya’akov Stotland also submitted a petition on December 16, 2002. These petitions requested that the Chairman of the Elections Committee declare that Mr. Moshe Faiglin could not be elected to the Knesset, and that he should be removed from the Likud candidate list.  The Chairman of the Committee requested responses from both Faiglin and the Attorney-General.  After these responses were received, and short oral arguments were heard, the Chairman of the Committee decided that Faiglin would be removed from the candidate list. This was a result of his delay in submitting a “request to expunge the disgrace” as well as due to the concealment of facts.  The Chairman of the Elections Committee also determined that the offences of which Faiglin was convicted involved “disgrace.”

 

     On December 30, 2002, Faiglin and others appealed from the decision of the Election Committee. Their petitions were heard, along with other matters, before a panel of eleven justices on January 7, 2003  On January 9, 2003 we handed down our majority decision, against the dissenting opinion of Justice E. Levi, to deny the petition. Our reasoning is set forth below.

 

2.    On February 9, 1997, Faiglin was convicted of incitement and of the publication of inciting materials under sections 133 and 134 of the Penal Code-1977, and of an offence under section 151 of the Code. On November 11, 1997, he was sentenced to 18 months imprisonment, of which he was to effectively serve six months of community service. At the same time, Mr. Faiglin was put on six months probation.  Mr. Faiglin did not appeal the judgment and served his sentence.

The petitioner’s conviction and the sentence which he served are at the heart of the matter at hand.  Their significance becomes clear in light of the provisions of section 6 of the Basic Law: The Knesset and section 56B of the Knesset Elections (Consolidated Version) Law.  Section 6 of the Basic Law sets forth limitations on the right to be elected to the Knesset.  Section 6 (a) of the Basic Law provides:

6(a). Every citizen of Israel who, on the date of the submission of a candidates list containing his name, is twenty-one years of age, shall have the right to be elected to the Knesset, provided that a court of law has not deprived him of that right pursuant to statute, or that he has been sentenced, in a final verdict, to serve more than three months imprisonment, and on the day of the submission of the list seven years have not yet passed from the date upon which he finished serving his sentence, unless the Chairman of the Central Elections Committee determined that, under the circumstances, the offence of which he was convicted does not involve disgrace.

Section 56B, which implements the general provisions of section 6 of the Basic Law, provides:

56B. The following provisions apply to an offence which “involves disgrace” under section 6 of the Basic Law: the Knesset:

(1)(a) A candidate shall submit to the Central Committee, together with his Statement of Agreement to be a candidate as stated in section 57(i), a declaration regarding section 6 of the Basic Law;

(b)A candidate, or anyone who wishes to be a candidate, who has been convicted of an offence as stated in section 6 of the Basic Law, and requests that the Chairman of the Central Committee decide that the offence does not “involve disgrace,” shall submit a request to the Chairman of the Central Committee, together with his indictment, the judgment, and all other relevant material, no later than the day of the submission of the candidate list.

(c) The decision of the Chairman of the Central Elections Committee shall be final and shall be presented to the Central Committee no later than 28 days preceding the election.

From these provisions it is apparent that a candidate who wishes to run for the Knesset must submit a statement regarding section 6 of the Basic Law: The Knesset. If that person has been convicted and sentenced to imprisonment for a term which exceeds three months, he must request that the chairman of the Central Election Committee determine that the offence does not “involve disgrace.”  This must be done no later than the day of the submission of the candidate list to the Central Elections Committee. If he does not do so, the conviction is presumed to be dishonorable.

In his decision, the Chairman of the Elections Committee noted that there is an exception to the right to be elected, and to that exception “there applies another exception—an exception to the exception—which is: where the Chairman of the Central Elections Committee determines… that the offence which the individual was convicted of is not dishonorable under the circumstances.” The Chairman of the Elections Committee also determined that Faiglin had the responsibility to submit a request to “expunge the disgrace” of his actions no later than the time of the submission of the candidate list. Faiglin, however, submitted no such request. Only after Mr. Stotland petitioned for a declaration that Mr. Faiglin could not, by law, be a candidate for the Knesset, did Faiglin request that “the Chairman determine that his actions were not dishonorable.” Faiglin claimed that he was unfamiliar with the law; However, the Chairman of the Elections Committee weighed this claim harshly—in the Statement of Agreement which Faiglin submitted, he explicitly declared that he read the provisions of sections 6 and 7 of the Basic Law and the provisions of section 56 of the Elections Law. As such, the Chairman believed, it should have been clear to Faiglin that, pursuant those sections, imprisonment includes community service. Faiglin also declared that “to the best of my knowledge and understanding, the above sections do not prevent me from running for the Knesset.” The Chairman of the Elections Committee noted in his decision that he did not receive a satisfying explanation from Faiglin.

3. This Court reviews decisions of the Chairman of the Central Elections in its capacity as the High Court of Justice. Faiglin has not convinced us that there is cause to intervene in the Chairman’s conclusions, both with regard to his delay in submitting the request and also with regard to his concealment of the facts. On the contrary—this Court has, in the past, strictly construed the dates and times set forth in elections laws. The legislature sets forth a strict schedule, and the many dates follow one another and are dependent upon each other.  Reality demands that these dates be preserved in order to prevent chaos in the elections.  Compare: HCJ 705/78, The “Chai” Party for the Givaataim Municipal Council v. The Elections Officer [1]; HCJ 6790/98 Avretz v. The Elections Officer for the Municipality of  Jerusalem [2]; HCJ 2573/99, Ba-Gad v. The Elections Committee for the Knesset [3]. See also HCJ 5769/93 Hamza v. The Elections Officer for Shahb [4]This is one of the cases in which the public interest in the uniformity of election law takes precedence over the interest of the candidate to be elected. 

A strict approach to dates and times can also be discerned in sections 142 and 143 of the Elections Law.  Thus, for example, section 142 of the Elections Law provides that “when a certain action shall be completed a certain number of days preceding the elections, the Central Committee, with a two-thirds majority, may extend that date for up to five additional days, if it finds sufficient reason to do so.” Section 143 of the Elections Law, as amended by Amendment 49, provides that “section 142, and any other legislative provision allowing extension of dates, shall not apply to petitions and appeals under this Law.” 

  Faiglin argued that the Chairman of the Central Election Committee granted him an extension to submit a request to “expunge the disgrace.”  Indeed, after the submission of the requests to remove Faiglin from the candidate list, Faiglin submitted a request to extend the period to respond to those requests. The Chairman of the Central Election Committee determined that “ex gratia, I consent that the period for the submission of his response—in fact, his request—shall expire on Friday, December 20 2002, at 2:00pm.” Faiglin’s interpretation of this decision, however, is groundless. The decision only approves the submission of the request; the decision does not approve that the submission of such a request will be considered a request to “expunge the disgrace” which was submitted on time.  Moreover, the Chairman of the Central Elections Committee does not have the authority to extend such dates.

4.    All these suffice to deny the present petition, as we decided on January 9, 2003. As such, we have no need to discuss the other claims submitted by the respondents. Under these circumstances, there is no need to take a position concerning whether Faiglin was convicted of dishonorable offences. 

Justice I. Englard

I agree with the judgment of my colleague, the Deputy President.

Justice E. Levi

1. The right to be elected in enshrined in section 6(a) of the Basic Law: The Knesset, which reads:

6(a). Every citizen of Israel who, on the date of the submission of a candidates list containing his name, is twenty-one years of age or over shall have the right to be elected to the Knesset, provided that a court of law has not deprived him of that right pursuant to statute, or he has been sentenced, in a final verdict, to serve more than three months imprisonment, and on the day of the submission of the list seven years have not yet passed from the date upon which he finished serving his sentence, unless the chairman of the Central Elections Committee determined that, under the circumstances, the offence of which he was convicted does not involve disgrace.

Section 56B, especially sub-section(b) of the Knesset Elections (Consolidated Version) Law-1969, compliments the provisions of section 6:

A candidate, or anyone who wishes to be a candidate, who has been convicted of an offence as stated in section 6 of the Basic Law, and requests that the Chairman of the Central Committee decide that the offence does not “involve disgrace,” shall submit a request to the Chairman of the Central Committee, together with his indictment, the judgment and all other relevant material, no later than the day of the submission of the candidate list.

2.  At the end of 1995, an indictment was submitted against the petitioner in the Magistrate Court of Jerusalem, in light of petitioner’s activities in the “Zu Artzeinu” movement. It was alleged that the petitioner conspired to incite the Israeli public in an attempt to frustrate the decisions of the government and the Knesset, subsequent to the signing of the “Oslo Agreements.” It was also alleged that the petitioner and his colleagues called upon the public to disrupt the operation of the authorities by blocking roads, by protesting before the government offices in Jerusalem, and by erecting new settlement outposts in Judea and Samaria which would be manned by armed persons, while ignoring the military declaration that certain regions be considered “closed military territory.” It was also claimed that the petitioner and his colleagues called for detaining cars which displayed license plates of the Palestinian Authority, and when the time came, the frustration of evacuations of territories in the area of Judea and Samaria. Due to all these activities, petitioner was charged with the offence of incitement under chapter 1 of paragraph 8 of the Penal Code-1977, and the offence of unlawful assembly under section 121 of that law.

Petitioner did not deny his connection to the relevant publications, and the court determined, in its judgment of September 1997, that the petitioner intended to sabotage the implementation of government policy to the extent that it would undermine the stability of the government.  Therefore, it was determined that the petitioner’s actions did not constitute legitimate protest. Petitioner was convicted of the offences of incitement, inciting publications and unlawful assembly, under sections 133, 134 and 151 of the Penal Code-1977. The court sentenced him to 18 months of imprisonment, of which he was to serve six months of community service. He was also sentenced to six months of probation.

The parties did not appeal the judgment of the Magistrate Court.

3.    The petitioner was placed on the 40th spot on the Likud list for elections for the sixteenth Knesset. Pursuant to section 57(i) of the Knesset Elections Law, the petitioner signed a “Statement of Agreement” which included a declaration that he read and understood the provisions of sections 6 and 7 of the Basic Law and section 56 of the Elections Law.  The petitioner also declared that “to the best of my knowledge and understanding, the above sections do not prevent me from running for the Knesset.”

Petitioner had been sentenced to imprisonment.  Seven years have not yet passed since he finished serving his sentence.  Therefore, he is among those included in section 6(a) of the Basic Law, meaning that, in order him to be elected into the Knesset, he must first approach the Chairman of the Elections Committee, so that the latter may determine that the offences of which petitioner was convicted of were not dishonorable.  However, the petitioner did not do so until December 20, 2002, in response to the petitions that called for his disqualification.

Respondent number 1 inferred, from the fact that the petitioner signed the “Statement of Agreement,” that petitioner was aware of his obligations to submit a request as stated in the latter part of section 6(a) of the Basic Law.  Moreover, his signing of the “Statement of Agreement” constituted a declaration that he was not prevented from running in the Knesset elections.  This declaration, according to the Chairman, was inaccurate at best, and perhaps even unfaithful to the truth.

Respondent number 1 also dealt with the question of the “dishonorable” element in the offences of which the petitioner was convicted. Regarding this, the Chairman concluded that they:

undermine society and destroy the foundations upon which government and public administration rest. Indeed, were others to imitate the actions of Mr. Faiglin it could be said: In those days, there was no king in Israel and each person did as he saw fit. See Judges 21:25. The fabric of society would unravel. The offences of which Mr. Faiglin committed are extraordinarily dishonorable; and they are dishonorable even for one who does not wish to be elected for Knesset.

See para. 17 of the Chairman’s decision.

4. The Right to be Elected: A Fundamental Right

All agree that the right to vote and the right to be elected is the soul of democracy—they incorporate the principles of equality, of freedom of expression, and of the freedom of assembly.  See EA 2/84 Neiman v. Chairman of the Central Elections Committee, [5] at 264; EA 1/65 Yaakov Yeredor v. Central Elections Committee, [6] at 382; HCJ 753/87 Boronstien v. Minister of Interior, [7] at 473.  Deprive a person or group of their right to be elected, and you have deprived them of their right to express the political opinion which they have formed and of the right to participate in shaping the government. Indeed, such restrictions are not well-received by those who love democracy. Objections to those restrictions fade, however, when they are directed at a minority group; especially in those cases where the majority believes that the minority’s political positions will undermine the foundations of democracy. As such, and still fully aware of the fundamental importance of these rights, the majority deprives the minority of its right to compete in democratic elections.  There is but a short distance between these actions and forcing the minority to search for other manners of influence and expression, even if they constitute prohibited activity.  In order to prevent this, the legislature must plan with wisdom, so as not to perpetuate the rule of the majority in unlawful ways on the one hand, while preventing the minority from fighting for its opinion, on the other.  In this area, the Court performs a critical function, as it is supposed to review legislation intended to restrict the right to vote and to be elected, in order to ensure that the glory paid to these rights is more than simply lip service.

Indeed, this is the position consistently taken by our caselaw as expressed by President Shamgar in EA 1/88 Moshe Naiman v. Chairman of the Central Elections Committee for the Eleventh Knesset, [8] at 185-86. His opinion remains relevant for us today.

Basic liberties, such as the freedoms of speech and religion, and the insistence on equality in elections, are part and parcel of our government system, and thus also of our judicial system.  The opinions and views of those in society are always different and variegated—in a free society, the differences are overt; in a totalitarian society, the differences are hidden.  The exchange of ideas, the clarification of views, as well as public debate and the desire to know, teach and convince are available to every opinion, every view, and every belief in a free society.  Making exceptions and distinctions between citizens, granting some rights while others not, is opposed to the truth that lies at the base of our liberties. Such inequities, in a democratic society, would present the same internal contradictions inherent in the actions of an individual who preaches against democracy while, at the same time, wielding the very rights that democracy grants.  Even unacceptable opinions and views should be debated, and peaceful ways of persuasion should be taken up against even these. Prohibitions and restrictions are extreme devices which are a last resort.  Our point of departure is that the freedom of speech should be granted even to those whose opinions seem mistaken and even dangerous.

To complete, I will add what is obvious—when you prevent an individual from being elected, you deprive others of their right to elect that candidate. The voters, as this Court noted in EA 2/84, [5] at 263, “wish to elect a candidate according to their preferences, based on their right to equality under the provisions of the Elections Law.  From the perspective of the voter, restricting the right to be elected includes an indirect limitation of the freedom of expression, as this deprives him of his ability to connect with others for the advancement of his views and opinions, as the candidate which he would prefer would have represented them.”

All this must guide us as we decide the petition at hand, and not only in our decision regarding the substantive question—whether there is disgrace in the offence that the petitioner was convicted of—but also the procedural claims—petitioner’s delay in submitting his request to the Chairman of the Elections Committee.  I have chosen to open with the procedural claim since, as the majority has concluded, if the petitioner cannot overcome this first obstacle, there is no reason to examine the second.

5.    As stated, the petitioner submitted his request to the Chairman of the Central Lections Committee on December 12, 2002, and failed to meet the date set by section 56B(b) of the Elections Law. For the purposes of this discussion, I am willing to presume that, absent explicit authorization, the Chairman of the Elections Committee could not extend the period for the submission of the request. Nevertheless, I am of the opinion that, considering the special circumstances of this case, the petitioner could still bring his case before the Chairman of the Elections Committee and request a substantive decision as to the question of whether there was disgrace in his conviction. What the petitioner lacked, was provided in the petitions submitted by respondents numbers two and three, the Vice-Chairman of the Knesset, MK Naomi Hazan and Mr. Stotland. These respondents did not raise the procedural claims which formed part of the basis for the Chairman’s decision—petitioner’s concealment of his conviction from the Election Committee and his delay in submitting his request regarding the “disgrace” of his conviction, a delay which has critical significance due to the tight elections schedule prescribed by the law.  These respondents based their petition upon a different cause—the “disgrace” inherent to petitioner’s conviction. As such, the matter of “disgrace” was open to respondent one, not as an alternate cause for the disqualification of the petitioner, but as the single, sole cause.

I emphasized the significance of the basic right to compete in the elections, since this is what obligates us—even when a candidate neglects a provision, we should aspire to maintain his right to be elected, so long as this is not opposed to the law, and so long as it serves the law’s purpose.  In this regard, and with respect to the status of the basic rights and their relationship to other rights, I find the words of Justice M. Cheshin, in C.App. 2316/96 Issacson v. Political Party Registrar [9], quite appropriate.  There, in my colleague’s decision to allow the “Arab Movement for Change” to register as a political party, he noted:

We are dealing with an individual’s fundamental, basic rights—with the freedom of assembly, the freedom of expression, and the right to vote and be voted for—and we all know that the force of these rights radiates into their surroundings, and that they are powerful in conflicts which may arise between them and other rights.  That blinding light which shines, from the basic rights, out in all directions also expands the areas over which they extend, thus limiting opposing rights.  In other words: we must do our best to expand the boundaries of the basic rights—here, the right to assemble as a political party—while simultaneously limiting the boundaries of those provisions which restrict and limit these rights.

I fully approve of my colleague’s words, especially in this current situation. This in light of an additional rule of construction in our caselaw, which provides that if “two possible interpretations stand before us, one based on the legislation’s language and the other on the legislation’s purpose, we should choose whichever interpretation least violates the basic right.” See HCJ 3090/97 Cohen v. Southern District Commissioner, Ministry of Defense, [10] at 737; HCJ 6859/ 98 Ankonina v. Or Akiva Elections Official, [11] at 454. With regard to the petitioner, he is the one responsible for submitting a petition for a declaration to “expunge the disgrace” under section 56B(b) of the Elections Law. This is only natural, since he himself has the greatest interest in not being disqualified. However, and so I suggest to interpret section 56B(b) of the law, we should not infer from here that there is no possibility that a request to review the disgrace of the offence be brought by someone else. Such other persons would not be limited by the schedule imposed upon the candidate, for would they be so limited, respondents two and three would also be prevented from bringing their petition. As such, we must infer that, if in the context of deciding with regard to a request to disqualify the candidate, the Chairman of the Central Elections Committee determines that his conviction is not dishonorable, it would be unreasonable not to perceive this as a green light for the candidate to run for the Knesset, even if he himself never approached the Chairman of the Elections Committee as specified in section 56B(b) of the law, or if he missed the date set in that section.

Had respondents two and three based their petition solely upon petitioner’s delay in submitting his request, or solely upon the fact that petitioner concealed facts from the committee, it is doubtful whether petitioner could be granted any remedy.  However, as stated, this is not the case, as the question of “disgrace” is the only claim which respondents two and three brought before the Chairman. Since this issue was raised, it demands a substantive decision, not merely a decision which would, in the words of my colleague, Justice M. Cheshin, in paragraph 12 of his decision, “cover all the bases.” 

In light of this, I am of the opinion that the examination of the current petition should not have stopped with the procedural claims, since it became unnecessary to decide these latter claims after the submission of the petition for the disqualification of the petitioner based on a claim of “disgrace.” Therefore, it would have been just to examine the substantive question of the “disgrace” involved in the petitioner’s conviction.  However, my esteemed colleagues are faithful to their view that the petitioner did not meet the procedural conditions and thus see themselves as exempt from discussing the question of “disgrace.” In this situation, and since the decision in this petition has already been made, and my reasoning can no longer affect the petitioner’s situation, at least not with regard to the elections for the sixteenth Knesset, I did not think it right to expand upon my reasoning where they had already decided in advance to base their judgment upon a different claim.  Nevertheless, I will not hide my opinion that I find it difficult to understand how there is dishonor in the offence of incitement of which the petitioner was convicted, an offense which is meant to protect the structure of the regime and not its content, and about which it has been said that “it would be appropriate to consider its invalidation…and replacement with an offence which is more suitable for our system. The wording of the offence is too vague and its boundaries too wide.  It reflects a worldview which is not democratic. It suits a mandatory government, which is not a government of the people. It does not award sufficient weight to freedom of expression.” These are the words of my colleague President Barak in Crim.A. 6696/96 Binyamin Kahane  v. the State of Israel, [12] at 585; see also Professor M. Kremnitzer & H. Ganaim, Sedition and not Incitement, Incitement in Penal Law: Legi Lata and Legi Fernada (1997)

I also wish to draw attention to another matter, which I also commit myself not to expand upon. The language of section 6(a) of the Basic Law provides that the “disgrace” in the actions of the petitioner will be examined “under the circumstances.” As is known, our caselaw does not see “disgrace” as a formal ingredient of the specific offence of which an individual has been convicted, but rather that as that severe moral flaw which accompanies the circumstances of its execution.  See HCJ 436/66 Menahem Ben Aharon v. Head of the Pardesia Local Council IsrSC 21(1) 561, [13] at 564; HCJ 251/88 Wajia Oda v. Talel Rabi IsrSC 42(4) 837, [14] at 839; C.A. 2211/96 Cohen v. Cohen IsrSC 50(1) 629, [15] at 632; HCJ 6163, 6177/92 Eisenberg v. Minister of Building and Housing IsrSC 47(2) 229, [16] at 266; HCJ 103/96 Cohen v. The Attorney-General IsrSC 50(4) 309, [17] at 327. With regard to the “disgrace” involved in the petitioner’s actions, as viewed from the perspective of the “circumstances,” I wish to make several comments:

a. The events which provided the grounds for the petitioner’s conviction took place in 1995, against the background of what was seen, as the Magistrate Court stated in its convicting judgment, as “a feeling of helplessness before the repeated injuries to the Jewish population, at the hands of Palestinian terrorists.”  See para. 8 of the judgment.  The Court determined that “in the relevant period, the accused lived, like many others, with the strong feeling that the government’s policy was mistaken—a mistake that would cost human life and harm national security.”  See pg. 47 of the judgment.  The Court added that the petitioner’s action exceeded the bounds of the freedom of speech, However, it seems that even the Magistrate Court was of the opinion that the petitioner and his colleagues demonstrated “openly that they did not intend to act violently, and restrained themselves before the violence of the police.”  See pg. 10 of the judgment. These reasons explain the lenient punishment imposed upon the petitioner.

b. Petitioner was not the only one, during those long-ago days, who objected to the government’s policies. As the wave of terrorism intensified, opposition to the “Oslo Agreements” formed a central part of the platform of many public figures, and this position played a central role in their campaigns during several Knesset elections. Moreover, many of these public figures have actually been elected to the Knesset, and more than a few have climbed to the highest ranks of the executive branch.  In light of all this we must ask whether we should continue to visit upon the petitioner the sins of his past. Under these circumstances, should we see the petitioner as one who was then, or is now, set upon destroying the foundations of democracy in Israel? Can it be said today of the petitioner—despite the harsh events which have been the fate of the State of Israel since 1995—that he is, in the words of Justice Haim Cohen in HCJ 436/66, [13] at 564, “unfit to enter the congregation of the just…and that he is unfit to be publicly responsible for the decisions and actions which matters of the public and public security depend upon.” It seems that my answer to these questions is clear.  It is all the more clear in light of the fact—a fact which must be emphasized and encouraged— that the petitioner decided to channel his activities into the institutions of public democracy, as any person who wishes to participate in the government and influence its activities should do.

For all these reasons I have abstained from joining the majority. 

 

Justice T. Strasberg- Cohen

 

I agree with the judgment of my colleague, Vice-President S. Levin and with the conclusion that he reached.  Although his reasoning is sufficient to reach his decision here, I would also join the opinion of the Chairman of the Election Committee, who believed that the offences at issue here are dishonorable.

 

Justice A. Procaccia

 

I agree with Vice-President S. Levin’s judgment and reasoning.  I will add, although it is not necessary, that I am of the opinion that the offences of which Faiglin was convicted are dishonorable. As such, even had the procedural claims not sufficed to disqualify Faiglin, his candidacy could still be disqualified based on substantive grounds.   

 

“Disgrace” means a negative element which denotes more than a mere breach of the law.  This is a concept which carries moral weight, and which stems from the value, views, and moral standards of the public.  This is a multi-faceted concept which depends upon the nature of the offence committed and the circumstances under which it was committed, and which must be examined in the specific context in which it is employed.  Thus, the disgrace involved in an offence in the context of disqualification from holding public office or disqualification from being employed in a profession that serves the public, is not the same as the disgrace involved in the context of an individual’s candidacy in public elections.

 

Here, we are concerned with the offences of incitement and inciting publication of which Faiglin was convicted. Faiglin’s actions were directed against the policies of the government, and were directly opposed to the foundations of the democratic structure upon which our government system is based.  Faiglin was convicted of conspiracy to frustrate the execution of government policies in Judea and Samaria. He intended to force the government to change its policies by calling upon the public to carry out unlawful actions in order to impair the operation of the government, hamper the authorities, and break down the obedience to the rule of law in the State.  His actions were a danger to “rule of law, public security and public order, as well as a danger to social stability and the stability of the government, all of which are a product of democratic elections.”  CC (Jerusalem) 3996/95 State of Israel v. Faiglin [21] (judgment of November 11, 19997). These attempts to dictate governmental activities by incitement conflict with the democratic idea, which is built upon the rule of the majority acting within the bounds of the rule of law.  These offences against the democratic public order are not mere breaches of the law—they find their foundation in the rejection of the democratic foundation of society, and the foundation of the structure of the government.  Such offences provide sufficient reason to infringe an individual’s right to be elected into the very institution that he wishes to destroy.

 

 This view of “disgrace” is consistent with section 7A of the Basic Law: The Knesset, which provides that one may not be a candidate for the Knesset if he, as evidenced by his actions, rejects the existence of the State of Israel as a democratic state. See section 7A(a)(1) of the Basic Law. Rejecting the democratic character of the State precisely means the refusal to acknowledge the sovereignty of the people, and the rejection of the rule of law. It means a desire to change the regime and government policy through force or other unlawful means.  If such actions suffice to infringe the right to be elected even where an individual has not been prosecuted or convicted for such actions, a fortiori where the individual has been convicted of offences of this character. As such, there is a connection between the concept of “disgrace” with regard to the disqualification of a candidate who has been convicted of an offence which undermines the foundations of our system, and the disqualification of a candidate whose actions—even where he has not been convicted of them—constitute a rejection of the democratic existence of the State.

 

Section 6(a) of the Basic Law; The Knesset deprives an individual of his right to be elected if that individual has been sentenced to serve more than three months imprisonment, where seven years have not yet passed since the end of his sentence. The presumption is that conviction and sentencing are sufficient to deprive one of the right to be a candidate for election, if insufficient time has passed to “expunge the disgrace” of the individual’s actions. This is the rule, and no element of “disgrace” need be found in order to apply it.  Any person who wishes to deviate from the rule bears the burden of proving that his conviction lacks the element of disgrace.  Only if he succeeds in doing so may that individual become a candidate.

 

Faiglin bears the burden of proving the absence of disgrace.  He has not carried this burden.  The offences which he was convicted of are dishonorable according to the fundamental values of the democratic regime.  This is sufficient to disqualify him from being elected for Knesset, as state in section 6(a) of the Basic Law: The Knesset.

 

President A. Barak

 

I agree with the judgment of my colleague, Vice President S. Levin.  Indeed, none contest the fact that Mr. Faiglin did not meet the provisions of section 56B(1) of the Knesset Elections (Consolidated Version) Law-1969. He did not submit a request to the Chairman of the Elections Committee to the effect that he determine that the offences which he committed were not dishonorable.  Additionally, Mr. Faiglin added a “Statement of Agreement” to the Knesset candidate list, which stated that we was able to compete in the elections. This situation led the Chairman of the Elections Committee to disqualify the petitioners’ candidacy, and I have found no cause for our intervention in this decision.

 

2.    My colleague, Justice E. Levi, elevates the significance of the fundamental rights to vote and be voted for. He emphasizes the judgments of this Court that have concretized these principles. He notes the significance of preserving these principles, especially regarding the freedom of opinion of a minority group, and regarding ensuring the fairness of the rules of the political game.  Needless to say, I agree with all of the above, and these very principles served as the basis for my opinion that it was appropriate to accept the appeal from the decision of the Central Election Committee to disqualify the Balad party list (EA 131/033 [18]), to reject the appeals regarding the Committee’s approval of Mr. Baruch Marzel’s candidacy (EA 55/03 [18] and EA 83/03 [18]), and to reverse the decision of the Central Elections Committee to disqualify MKs Azmi Bishara (EA 50/03 [18]) and Ahmed Tibi (EA 11280/02 [18]) from running in the current elections. See The Chairman of the Central Elections Committee v. Ahmed Tibi [18]

 

3.    Of course, these principles also apply to the case at hand.  However, it is not only the facts that are at issue here; we also consider the relevant statutory provisions. The language and purpose of these provisions are clear. Regarding the language of these provisions:  the law clearly provides a date for the submission of the request to the Chairman of the Central Elections Committee (“no later than the day of the submission of the candidate list”). It also provides who shall submit the request (“anyone who wishes to be a candidate.”) Regarding the purpose of these provisions: it is obvious that realizing the right to vote and be voted for involves, and even depends upon, clear and ordered rules with regard to dates, procedures and rules.  These rules should guarantee a number of interests, including the transparency of the elections, their fairness and regularity, as well as ensuring their equality. See CA 10596/02 Leah Ness v. Likud Movement, [19] at 775-76. It is not the law’s purpose to allow for its own circumvention by allowing for the submission of the request to the Chairman of the Elections Committee after the date specified by the law.  It does not allow its own provisions to be rendered superfluous by allowing requests to be submitted by one who is not supposed to do so. Its object is not to violate the principle of equality by giving an advantage to a person who submitted a request to the Chairman of the Elections Committee via a member of the Committee, while other candidates cannot do so. Thus, I am of the opinion that it is our very adherence to the fundamental principles at issue here that lead to the conclusion that the petitioner was lawfully deprived of his right to run for election.

 

4.    Though it is unnecessary, I will add that even if the interpretation that my colleague, Justice E. Levi, gives to these provisions of the law should be adopted, I find it hard to ignore the “Statement of Agreement” which the petitioner himself submitted—as required by law. Therein he noted that he read and understood the provisions of sections 6 and 7 of the Basic Law: The Knesset and the provisions of section 56 of the Elections Law. He agreed that “to the best of my knowledge and understanding, the above sections do not prevent me from running for the Knesset.” He did this despite the fact that under section 6(a) of the Basic Law it is clear that absent a determination by the Chairman of the Central Elections Committee that the petitioner’s actions were not dishonorable, he could not run, as he had been convicted and sentenced to serve over three months imprisonment and, on the day of the submission of the candidate list, seven years had not yet passed since the completion of his sentence. 

 

5.    With regard to the substantive issue—the disgrace in the petitioner’s actions—I see no reason to decide in the matter. I note, however, that in this case I agree with the position of the Chairman of the Central Elections Committee, Justice M. Cheshin, and with the opinions of my colleagues, Justices T. Strasberg- Cohen and A. Procaccia.

 

Justice E. Mazza

 

I agree with the judgment of my colleague, Vice-President S. Levin, and like him I prefer not to take a position with regard to the question of whether, under the circumstances, the offences which the petitioner was convicted of are dishonorable, as per section 6 of the Basic Law: The Knesset.

 

Justice Y. Turkel

 

Like most of my colleagues, I am also of the opinion that the petition of Moshe Faiglin should be denied. I support the reasoning of my esteemed colleague, Vice-President S. Levin. The main reason for my position is that we should have true equality between the candidates, and this aspiration cannot be realized without strictness and stringency with regard to every jot and title of the election laws. The door of candidacy must be wide open or well-locked, and cannot be only partially open or shut.

 

2.    Therefore, it is not necessary to discuss whether the offences of which Faiglin was convicted of are “dishonorable,” as per section 6 of the Basic Law: The Knesset. Nevertheless, since my esteemed colleague, Justice T. Strasberg- Cohen, commented that “the offences which Faiglin was convicted of are dishonorable,” I will briefly add my own comment.  I am of the opinion that, under the circumstances, the offences of which Faiglin was convicted of were not dishonorable. In this regard, I rely upon the reasoning of my esteemed colleague, Justice E. Levi. The following remarks by Justice H. Cohen, regarding the dishonor of offences, hold true in our case as well:

 

This dishonor means moral turpitude which, when attributed to a person, attests to the fact that that he is unfit to enter the congregation of the just, and this “dishonor” must remain with the person even after his punishment. As the verse states: “his reproach shall not be wiped away.” See Proverbs 6:33.

 

 

HCJ 436/66, [13] at 564. In this regard, Justice (as he was then) A. Barak has said:

 

The expression “offence which…involves disgrace” is vague, since the word “disgrace” is uncertain in its application. Not every offence “involves disgrace,” and there are certainly offences which are not dishonorable. The line between the different offences must be drawn according to a moral standard. In HCJ 184/73 Hudayfee v. Amar IsrSC 27(2) 746, 750 we stated that “we do not look to the formal elements of the offense, but rather to the circumstances under which the offence was committed. It is these circumstances which point to any moral severity implied in the term disgrace.”

See also HCJ 6163/92, [16] at 266; HCJ 103/96, [17] at 327; R. Gabizon, A Dishonorable Offense as a Disqualification for Holding Public Office 1 Mishpatim 176 (1965) [25]; 11 S.Z. Feller, Foundations of Penal Law 30 (1994) [23]; I. Levi & A. Lederman, Principles of Criminal Liability 20-24 (1981) [24]. Regarding the offence of incitement see F.Crim.A. 1789/98 State of Israel v. Kahane [20]; M. Kremnitzer & H. Ganaim, Sedition and not Incitement, Incitement in Penal Law: Legi Lata and Legi Fernada (1997) [18].

 

Indeed, the offences of which Faiglin was convicted are severe.  However, we do not look to whether the offences themselves are severe, but rather to the circumstances under which they were committed.  These circumstances, as they were described in the decision of the Magistrate Court, attest to popular sentiments of “pain,” which were “in response to harsh terrorist attacks,” and the “the opinion of many people, who have come to feel that the government does not consider their opinions or respect their views.” See pp. 8-9 of the judgment.  I find no “unforgivable shame” in such actions and, in my opinion, where a person protests against a public issue which is significant to him, and this protest is done peacefully, as is apparent from pages 9-10 of the judgment, his actions are not even slightly dishonorable. Therefore, had the decision regarding the petition rested solely upon the issue of “disgrace,” I would have granted the petition.

  

Justice B. Beinisch

I agree with the judgment of my colleague, Vice-President S. Levin.  Like him, I am also of the opinion that Mr. Faiglin’s petition should be denied, since he did not meet the demands of section 56B of the Knesset Election (Consolidated Version) Law-1969, in combination with the provisions of section 6 of the Basic Law: The Knesset.  As such, he has not met the procedural conditions for submitting his candidacy.  Nevertheless, since my colleagues have taken a position regarding the substantive matter of “disgrace,” I will not refrain from expressing my own opinion in the matter. I would add my voice to that of the Chairman of the Central Elections Committee, Justice M. Cheshin, and assent to the opinions of my colleagues, the President, Justice Strasberg Cohen and Justice Procaccia.  Like Justice Procaccia, I am also of the opinion that any person, who has been criminally convicted of an offence which is entirely directed at undermining the foundations of our democratic system and government, has been “disgraced” to the extent that he is disqualified from running in the elections. I also agree with her that there is a strong connection between the dishonor of the petitioner due to his criminal conviction, and the separate disqualification cause provided for in section 7A(a)(1) of the Basic Law. 

 

As such, the petition should be denied.

 

Justice D. Dorner

1.    I agree with the judgment and reasoning of my colleague, Vice-President S. Levin, and with the comments of my colleague, President A. Barak, in so far as they regard the denial of the petition due to the petitioner’s failure to fulfill the provisions of section 56(b) of the Knesset Elections (Consolidated Version) Law-1969.

 

The procedural rules for submitting one’s candidacy in the elections are not technical conditions which may be waived if the candidate is otherwise eligible. These are substantive conditions, which were intended to ensure the principle of equality, which is at the heart and soul of our system of election law.

 

2.    As such, there is no need to discuss the question of whether the offences of which the petitioner was convicted are dishonorable.  However, since my colleagues addressed this question, adopting conflicting positions regarding the matter, I shall also express my own opinion.

 

Incitement may, under certain conditions, constitute a dishonorable offence under section 6 of the Basic Law: The Knesset. One of the objects of this provision is to prevent the candidacy of persons who have been convicted of activity which is intended to undermine our democratic regime. At the same time, however, we should note that any activity which takes place outside of the parliament, including entirely legitimate activities such as strikes and protests, not only express the opinions of the participants but, sometimes by disrupting our daily life, are also intended to influence the government and change its policies.

 

In the matter at hand, as is apparent from the judgment of the Magistrate Court, petitioner initiated and organized protests around the country in which thousands of people participated, with the intention of forcing the government to change its policy by disrupting the order of daily life. The legitimacy of the government was denied. In its verdict, the court emphasized that the protests were not violent. Even when confronted with the violence of the police, the petitioner instructed protestors to refrain from violence. The court determined that the petitioner intended to advance views to which he was deeply and faithfully committed, and that he took a position regarding a serious public controversy. In light of these factors, petitioner received a light sentence.

 

Petitioner, as stated in the judgment of the court, exceeded the bounds of legitimate protest, and was therefore convicted. Petitioner’s actions, however, which were expressed through non-violent activities, do not involve that disgrace which disqualifies a candidate from the Knesset.  Similar to the authority to disqualify pursuant to section 7A of the Basic Law: The Knesset, the power to disqualify pursuant to section 6 of the Basic Law should be strictly construed. The offence of unlawful political protest should only be deemed dishonorable in extreme cases—which the petitioner’s case is not.   

 

Justice E. Rivlin

I agree with the judgment of my colleague, Vice-President S. Levin.

 

Section 6a of the Basic Law: The Knesset deprives an Israeli citizen, who has been sentenced to serve over three months of imprisonment, of his right to be elected to the Knesset if, on the day of the submission of the candidate list, seven years have not yet passed from the end of his sentence. The Basic Law provides only one way to remove this obstacle—the determination of the Chairman of the Central Elections Committee that the offence of which the individual was convicted is not, under the circumstances, dishonorable.

 

2.    The petitioner before us was convicted of incitement—including inciting publication and unlawful assembly.  He was sentenced to serve six months imprisonment and twelve months of probation.

 

The petitioner, as he was required, did not submit a request to the Chairman of the Central Elections Committee to determine that the offences of which he was convicted were not dishonorable. Additionally, in the statement which he submitted to the Central Elections Committee, he declared that, to the best of his knowledge and understanding, he was eligible to run for the Knesset. These omissions suffice to deprive the petitioner of his right to present his candidacy. Therefore, it is unnecessary to address the question of whether the petitioner’s conviction was, under the circumstances, dishonorable.

 

3.    With regard to offences of incitement, this Court has already stated that “it would be appropriate to consider its invalidation…and replacement with an offence which is more suitable for our system. The wording of the offence is too vague and its boundaries too wide.  It reflects a worldview which is not democratic. It suits a mandatory government, which is not a government of the people. It does not award sufficient weight to freedom of expression.” Crim.A. 6696/96 Binyamin Kahane v. The State of Israel, [12] at 585 (Barak, P.). See also Professor M. Kremnitzer & H. Ganaim, Sedition and not Incitement, Incitement in Penal Law: Legi Lata and Legi Fernada (1997) [26]. Similarly, in the Unites States, in the first half of the 20th century, there were remnants of colonial incitement laws. See The Smith Act (1940); The Subversive Activities Control Act (1950). The United States Supreme Court discussed the constitutional difficulty of applying those criminal provisions, and of their possible infringement upon the freedom of speech.  The Court clearly distinguished between mere advocacy and incitement to immediate illegal activity—between expressing invalid opinions and actually acting towards their realization. In Brandenburg v. Ohio, 395 U.S. 4442 (1969) [22], the United States Supreme Court required proof that words of incitement were intended to incite immediate illegal action, as well as requiring the probability of the materialization of the danger.

In light of the above, it is doubtful whether our offence of incitement attributes sufficient weight to freedom of speech, see Crim.A. 6696/96 [12], and this may effect the question of “disgrace.” Nevertheless, it is doubtful that this is the case here since, according to the judgment of the Magistrate Court, the petitioner’s behavior exceeded the bounds of legitimate protest.  In any case, for the reasons given by my colleague, Vice-President S. Levin, I concur with his judgment. 

May 15, 2003

 

 

 

 

 

 

 

 

 

 

Translated by:   Leora Dahan

Edited by:             Eli Greenbaum

 

Comments, questions and suggestions are all welcomed, and may be directed towards elig@supreme.court.gov.il