Recent Developments in Israeli Law
Recent Developments in Israeli Law
In this issue we present abstracts of four recent cases. While not full translations, the abstracts are presented in some detail in order to provide more than a summary of the basic facts and ratio.
The first case is the Supreme Court’s decision in regard to the intention to demolish the Bedouin settlement Khan Al-Ahmar (HCJ 3287/16). In addition to the considerable media interest in the case, we also note B’tzelem’s exceptionally harsh condemnation of the Supreme Court’s decision, accusing the justices of complicity in the commission of a war crime. The other cases in this issue address whether the estate and heirs of an accident victim can rely upon the doctrine of res ipse loquitur (LCA 7002/17), and whether a corpse constitutes a “person” in regard to sexual assault (CrimA 7128/16). We also summarize a recent decision of the National Labor Court urging the Knesset to amend gender-biased language in the National Insurance Law, and refer to a new article of interest in the Israel Law Review.
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Avinoam Sharon, M.A., Adv.
HCJ 3287/16 Kfar Adumim et al. v. Minister of Justice et al.
Demolition of the Khan Al-Ahmar Bedouin settlement
On May 24, 2018, the Supreme Court handed down its decision on the planned demolition of the Khan Al-Ahmar Bedouin settlement and three buildings serving as a school for local children. The village and the school buildings were built without building permits and in contravention of stop-work orders, on land zoned for the expansion of Highway 1. More than three quarters of the Court’s decision was dedicated to a presentation of the facts and the arguments of the parties. The decision itself, which was quite brief, held that the planned demolition of the illegally erected structures – which had already been held to legal in previous petitions on the matter – could proceed and that the residents could be relocated. An abstract of the decision appears below.
LCA 7002/17 A. v. B.
Onus of Showing of Negligence where the Facts Speak for Themselves
In a decision of May 21, 2018, the Supreme Court addressed the question whether the heirs of a deceased victim can claim a lack of knowledge of the circumstances of the event for the purpose of transferring the burden of persuasion under the doctrine of res ipse loquitur under sec. 41 of the Civil Wrongs Ordinance. An abstract of the decision appears below.
CrimA 7128/16 A. v. State of Israel
In a decision of May 16, 2018, the Supreme Court granted an appeal upon a conviction of performing an indecent act upon a person, holding that a corpse does not constitute a “person” within the meaning of sec. 348 of the Penal Law. An abstract of the decision appears below.
LabA 33292-04-15 National Insurance Institute v. A.
The judgment in this appeal, handed down on June 4, 2018, addressed the issue of whether a woman who was unable to continue working due to a disability should be classified as “disabled” for the purpose of workmen’s compensation, or as a “disabled housewife” entitled to a general disability pension. In handing down its decision, the National Labor Court took the opportunity to call upon the legislature to amend the National Insurance Law and replace the concept of “housewife”, which the Court characterized as a manifestly discriminatory, gender-based concept. An abstract of the case appears below.
This judgment concerned three petitions on the matter of the State’s decision to demolish illegal structures in the Khan Al-Ahmar site, and to move the residents to an alternative site.
In June 2009, construction began on three buildings on the Khan Al-Ahmar site. The site is located between Jerusalem to the Dead Sea, along the route of Highway 1. The buildings, which were intended to serve as a school for children living in the area, were erected without building permits. On June 23 2009, stop-work orders were issued and served. On July 23, 2009, final stop-work and demolition orders were issued.
Two petitions were filed in regard to those orders (HCJ 6288/09 “the Araara case”), one challenging the legality of the orders, and the other asking that the Court order the State to execute the demolition orders. Both petitions were denied. The Court held that the buildings were erected illegally and that, therefore, there were no grounds for stopping the enforcement proceedings against them. The Court also held that, in view of the discretion granted to the authorities in regard to their priorities, there were no grounds for intervening in the decision to refrain from executing the orders for the time being.
Two further petitions were filed in 2011 (HCJ 5665/11), one to prevent the demolition of the school, and the other to implement the demolition orders. The Court again denied both petitions. The Court noted that the first petition was a repetition of the preceding one and that the State agreed with the Petitioners in regard to finding a comprehensive zoning solution for the needs of the Bedouin tribe. The Court also noted that the State had declared that it was considering two alternatives for moving the school to another location “within a year”, and preferably with the consent of the residents. As for the second petition, which argued that the State’s failure to implement the demolition orders had become unreasonable due to the passage of time, the Court held that in view of the ongoing attempt to achieve an agreed solution, and given that the buildings were erected on state land rather than private property, there was no cause to intervene in the State’s priorities for implementation at that time.
A third petition demanding implementation (HCJ 7969/13) was also denied.
The current, fourth petition demanding implementation of the demolition orders (HCJ 3287/16) was filed on April 18, 2016. The State responded that problems had arisen in implementing its original plan, but that subsequent to the filing of the petition, three alternatives were considered. One, “West Jahalin”, located in the Abu Dis area, some 8 kilometers from the Khan Al-Ahmar site, was found to be appropriate for the building of some 70 dwellings for the 52 families, as well as for building the school, which would be erected at the State’s expense. The plan was approved, and it was decided that the matter would be discussed with the residents of the Khan Al-Ahmar site, who would be offered developed building sites at no cost, and would be granted time to present building plans for approval.
On March 10, 2017, the residents of the Khan Al-Ahmar site filed the current petition (HCJ 2242/17) against the demolition and the intention to move the residents and the schools to West Jahalin. Another petition was filed by the parents of pupils studying in the school (HCJ 9249/17) claiming that moving the school would harm the pupils and infringe their right to an education.
The three petitions were heard together.
In denying the petitions, the unanimous Court (per Justice N. Sohlberg, Justices A. Baron and Y. Willner concurring) held:
- The starting point for this decision is the fact that the construction at the Khan Al-Ahmar site – both the school and the dwellings – is illegal. This point is both undisputed and the finding of the Court in several judgments. In the Araara case, the Court held that we are concerned with: “illegal construction, without requesting a permit, and even without submitting a prior request to any of the Respondents, of school buildings on land intended for a highway … we are concerned with buildings erected on the path of a highway intended to improve the safety and transportation needs of the entire population of the area, and in the area abutting the highway […]. Therefore, there is no legal possibility of permitting their construction. Moreover, the presence of a school in the area of the highway in which construction is prohibited would endanger the young children” [emphasis original]. Therefore, the Court has already held (HCJ 5665/11) that it cannot accede to the arguments against the State’s intention to implement the demolition orders. What was held then in regard to the school buildings, holds true for the other buildings at the Khan Al-Ahmar site.
- The legal question before the Court is whether there are grounds for intervention in the manner in which the State has chosen to enforce the law, the date of demolition, and the alternative site offered to the residents. In the previous petitions, the Court addressed the State’s decision to delay implementing the demolition orders in order to arrive at an acceptable solution. The Court found no flaw in that decision. The Court is now asked to review the State’s decision to implement the orders. Does that decision deviate from the margins of reasonableness? The answer is no.
- This matter was also addressed in the previous petitions. Although since 2009 the State has repeatedly declared its intention to remove the school, there is no defect in its desire to achieve a mutually agreed solution. However, the State has found that the process of examining alternatives has been exhausted, and that attempts at negotiation have not succeeded. While the desire for achieving an agreement upon evacuation is legitimate, it is not the only consideration, and it certainly does not obligate the State to refrain from enforcing the law when it believes that further efforts will not bear fruit.
- The Petitioners argue that the West Jahalin alternative does not meet their needs and cannot be implemented. While the plan clearly does not meet with their approval, their arguments do not reveal any unreasonableness in the State’s decision. It should be borne in mind that, first and foremost, the decision concerns executing the demolition orders. The question before the Court is not the whether the relocation plan meets legal requirements, but rather whether executing the demolition orders meets legal requirements. Despite the arguments of the Petitioners, the Court is not of the opinion that the solution proposed by the State is so radically unreasonable as to render the lawfully issued demolition orders illegal. On the contrary, the State has done a great deal, at its own expense, to develop the neighborhood and its infrastructure, as well as in developing the building plots being offered to the Petitioners at no cost. The difficulty involved in leaving an area where the Petitioners have lived for many years, and their reluctance to accept the plan being offered is understandable, but in view of the plan’s details regarding residential plots and the possibility for continuing to pasture flocks, it is not a plan that can be deemed so unreasonable as to render executing the demolition orders so unreasonable as to justify the Court’s intervention.
- While the Court is aware of the difficulty presented by the need to transport the pupils an additional 10 kilometers to school, that does not justify leaving the school where is now illegally situated, and does not render the demolition manifestly unreasonable. This is true a fortiori in view of the fact that the responsibility to provide for the pupils’ educational needs actually lies with the Palestinian Authority and not the State.
Editor’s note: In a surprisingly harsh condemnation of this decision, the B’tselem organization claimed that the demolitions and the transfer of the residents to an alternative site “constitute a war crime for which all those involved in its execution will bear personal liability”. B’tselem further imputed such personal liability to the Supreme Court justices who ruled on the case, concluding: “Yet, as in many other cases, here, too, the justices pitched in and paved the road to the execution of an unlawful policy[…] This ruling is but the latest addition to this list, this time paving the state’s way to committing a war crime. Personal liability for the commission of this crime will be not only that of policy-makers but also of those who paved the juridical route enabling it”.
In this request for leave to appeal the decision of the Haifa District Court on an appeal from the Haifa Magistrates Court, the Supreme Court addressed the following issue: A man falls to his death in a workplace accident, on property belonging to another. It is not possible to determine the circumstances of the fall. His heirs file suit, arguing that the circumstances are subject to the rule of res ipse loquitur, such that the evidentiary burden transfers to the respondents. The decedent, one assumes, could have known the circumstances in which he fell. Can his heirs be deemed as fulfilling the first condition of sec. 41 of the Civil Wrongs [New Version] Ordinance according to which: “the plaintiff had no knowledge or way of knowing the actual circumstances which caused the occurrence which led to the damage”?
The decedent died as the result of a fall while working at a construction site. The Respondents are a subcontractor (hereinafter: the subcontractor) who was the decedent’s employer, a finishing contractor (hereinafter: the contractor), and the project promoter who contracted for the construction work (hereinafter: the promoter). The Appellants are the decedent’s estate and heirs.
The parties disagreed as to the circumstances of the fall. The Appellants argued that the decedent fell from defective scaffolding, while the Respondents argued that he fell while walking along a retaining wall on his way to relieve himself in an adjoining lot. The trial court found that it could not rely on the testimony of either of the witnesses to the event (the decedent’s cousin who also worked at the site, and the subcontractor), and further found that a conclusion as to where the decedent stood when he fell, based upon the placement of the corpse, was a question that could be decided only upon the opinion of an expert, and no such opinion was presented. In view of the inability of either side to establish its argument, the trial court ruled that there was “equal doubt” or an “evidentiary tie”, and that in such a case, the decision will favor the party that is not under the evidentiary burden. Therefore, the court found that the decedent fell from the retaining wall, as argued by the Respondents. The court rejected the claim that res ipse loquitur should apply in view of the factual ambiguity, holding that the Appellants did not meet the first condition of that principle – lack of knowledge – inasmuch as while they had no knowledge of the circumstances, the condition related to the knowledge of the decedent, who surely knew the circumstances of his fall. Nevertheless, the court found that the subcontractor was responsible for 50% of the damages, the promoter was responsible for 20% for not ensuring proper safety precautions and for inadequate supervision, and that the contractor – who employed an unlicensed subcontractor – was responsible for 30%. The finding as to the place of the fall led the court to assign contributory negligence to the decedent in the amount of 25%. On appeal, the majority of the District Court adopted the findings of the trial court. The dissenting judge argued that the contributory negligence should be reduced to 10%.
In seeking leave to appeal, the Appellants argued that the trial court was in error in holding that the first condition of sec. 41 was not met because the decedent himself knew the circumstances of his fall and that that knowledge is deemed to have transferred to the Appellants. The Appellants further argued that the rule established in CA 224/51 Pritzker v. Friedman, IsrSC 7 674 (1953), according to which the “lack of knowledge” condition refers to the victim of the accident himself and not to the party suing for damages is inconsistent with the trend in the ensuing case law and the general principles of tort law, and that the rule should be revisited. They further asked for leave to appeal the degree of contributory negligence. The Respondents objected to granting leave, arguing that the trial court’s decision was based upon established precedent, and that accepting the Appellants’ argument would erode the principle that the plaintiff bears the burden of proving his case, which would result in a clear inequity between plaintiffs and defendants in suits of this type whenever plaintiffs sue on behalf of a victim who cannot testify. Moreover, even if the Appellants’ argument were accepted in principle, they could not benefit from it inasmuch as they could have proven the claim by introducing an expert opinion. Having not done so, they could not claim that this is a situation in which the circumstances are unknown.
The Supreme Court denied the request for leave to appeal in regard to the degree of contributory negligence, inasmuch as the lower courts applied well-entrenched, decided law and therefore the requirements for granting leave were not met. Moreover, it is not the practice of the Court to intervene in regard to contributory negligence, as it is a matter to be evaluated by the trial court. The Court granted leave to appeal the on issue of the interpretation of the first condition of sec. 41 of Civil Wrongs Ordinance, while noting that it was aware that the operative result of the appeal could be of consequence for the matter of contributory negligence.
In denying the appeal on the merits, the Court (per Justice I. Amit, Justices D. Mintz and Y. Willner concurring) held as follows:
1. Although never expressly stated, the Pritzker rule has been abandoned over the years, and the answer to the question before the Court is not dichotomous. It is neither the case that the plaintiffs will always meet the lack-of-knowledge condition in the case of a death in unknown circumstances, nor is it the case that the condition will never be met in a case of death where the decedent could be assumed to have known the circumstances that led to his death.
2. The res ipse loquitur rule was adopted by Israeli law via sec. 54 of the Civil Wrongs Ordinance, 1944. That rule is now comprised by sec. 41 of the Civil Wrongs [New Version] Ordinance, which is a Hebrew translation, with minor changes, of the former sec. 51. Section 41 states:
41. Where a claim brought in respect of any damage in which it is proved that the plaintiff had no knowledge or way of knowing the actual circumstances which caused the occurrence which led to the damage and that the damage was caused by some property of which the defendant had full control, and it appears to the court that the occurrence causing the damage is consistent with the defendant having failed to exercise reasonable care than with his having exercised such care, the onus of showing shall be upon the defendant to show that there was no negligence for which he is liable with regards to the occurrence which led to the damage.
This rule transfers the burden in a situation of factual uncertainty, such that upon the meeting of certain conditions, the rule creates a rebuttable presumption of negligence. The presumption operates in regard to the means for proving the factual event, not to the normative decision as to whether certain conduct constitutes negligence. While seemingly this is an evidentiary rule that should not decide the fate of the suit, transferring the burden can, at times, be decisive. The rule has been the subject of extensive criticism. Some argue that the rule adds nothing to the general rules governing circumstantial evidence. Others have cynically argued that were not expressed in Latin, no one would deem it a rule.
3. Section 41 establishes three cumulative conditions. Each condition examines the event from a different perspective: the first from the perspective of the plaintiff, the second from the perspective of the defendant, and the third from the perspective of the court. The first condition requires the plaintiff’s lack of knowledge of the circumstances and his inability to know them. The second requires that the defendant have full control of the property that caused the harm. The third requires that the event be more consistent with a conclusion that the plaintiff was negligent than with a conclusion that he was reasonably cautious. If all three conditions are met, the burden of persuasion transfers to the defendant, in addition to a secondary burden of production of evidence, as established by the case law.
4. The Pritzker case was one of the few case that treated of the first condition. The ensuing case law on res ipse loquitur almost entirely addressed the second and third conditions. In Pritzker, the Court (per Justice M. Silberg) held that the term “plaintiff” in the Ordinance unquestionably referred to the victim of the accident, and that it would be absurd to say that it could refer to someone suing in the victim’s place, inasmuch as that could grant the plaintiffs a procedural advantage that the victim himself would not have enjoyed. However, a literal interpretation of the language of sec. 41 does not support that view. When the legislature refers to a “plaintiff”, the intention is the procedural plaintiff, and one would require a convincing reason to deviate from that clear, plain meaning that is consistent with the language of the section.
5. The Pritzker rule has been the subject of criticism as inconsistent with the case-law rule that has since developed, and under which a plaintiff can rely upon the rule even if he has demonstrated that he is aware of the circumstances. The view is that the “lack of knowledge” is objective, in the sense that the reason for the accident will be deemed unknown as long as it has not been proven and all that is known is what the court knows. Another development inconsistent with Pritzker regards the relevant time of the lack of knowledge. While originally the case law held that time to be the date of the event, the ensuing case law has held that the proper time for examining the knowledge condition is the date when the plaintiff must prove his claim, and the rule will apply “where the details of the harmful event are unknown at the trial”. Thus, the first condition is now understood as requiring factual ambiguity, and it is not contingent upon the question originally addressed of whether that lack of knowledge is that of the plaintiff or the victim.
If there is factual ambiguity as to the circumstances, the plaintiff must prove the two other cumulative conditions in order to transfer the burden. In the present case, there was no factual ambiguity, from the victim’s perspective, at the time of the event. But inasmuch as there was such ambiguity at the end of the legal proceedings, it is immaterial whether the claim was brought by the victim or on his behalf.
Furthermore, the first condition must be read in the context of the other cumulative conditions. The first condition reflects the plaintiff’s relative disadvantage in presenting evidence, while the second condition, regarding the defendant’s full control of the property, expresses that the defendant enjoys a relative advantage in uncovering the circumstances. The rule is intended to aid the plaintiff in situations in which he suffers a relative evidentiary disadvantage while the defendant enjoys an a priori evidentiary advantage. Such situations, together with the third condition concerning the probability of negligence on the basis of statistical evidence, common sense and experience, can exist even when the plaintiff is not the victim.
In short, when the victim is absent or unable to testify, and there is factual ambiguity as to the circumstances that led to the harm, the applicability of the rule should not be denied simply because the victim himself knew or could have known the circumstances.
6. This approach is the one adopted in the current Draft Civil Code. The res ipse loquitur rule appears in sec. 408 of the bill as follows:
If damage was caused by property over which the defendant had full control, and the circumstances of the event were not sufficiently clarified, but the general circumstances of the event appear more consistent with the conclusion that the damage was caused by the property due to a danger created by the defendant’s negligence than with a conclusion that he was not negligent, the evidentiary burden is upon the defendant to show that he did not cause the damage by his negligence; […]. [emphasis added].
This section does not treat of the first condition in terms of the “plaintiff” or his ability to know, but is rather directed at the court in circumstances in which factual ambiguity remains at the end of the evidentiary process.
7. The argument that this approach to the rule grants the plaintiff an unfair advantage is not entirely correct. Indeed, in a certain sense, an heir suing on behalf of a victim has more than the victim himself would have had, but then one can equally argue that were it not for the victim’s death, there would be no need for recourse to sec. 41, inasmuch as he could have resolved the factual ambiguity.
8. It should further be noted that a plaintiff who is not the victim will not always meet the first condition, inasmuch as there are other ways to uncover the circumstances of a tortious event besides the victim’s personal knowledge. The absence of the victim does not exempt the plaintiff from the initial burden of bringing evidence he has or could obtain in regard to the event. A plaintiff cannot transfer the burden by omission. Res ipse loquitur is not a substitute for an appropriate effort to obtain evidence.
9. It should be borne in mind that the first condition is but the first hurdle, and the remaining two conditions significantly reduce the number of cases in which the burden will be transferred by the rule, and do not broaden its application unreasonably.
10. As for the application of the rule to the case at bar, the Appellants did not clear the first hurdle. They had the means for investigating the circumstances of the fall, and for proving their factual version. As both lower courts noted, in view of the disagreement in regard to whether the decedent fell from the scaffold or the retaining wall, the Appellants should have submitted an expert opinion based upon the place where the corpse was found. Innasmuch as the Appellants did not exhaust the means of obtaining knowledge that were available to them, they did not meet the first condition of sec. 41 in order to transfer the burden to the Respondents.
May 21, 2018
The Appellant was convicted in the Beer Sheva District Court of murder under sec. 300(a)(2) of the Penal Law, 5737-1977, and of performing an indecent act under sec. 348(b), under circumstances of sec. 345(b)(4) of the Law. The relevant sections are as follows:
348 (a). If a person committed an indecent act on a person under one of the circumstances enumerated in section 345(a)(2) to (5), mutatis mutandis, then he is liable to seven years imprisonment.
(b). If a person committed an indecent act on a person under one of the circumstances specified in section 345(b)(1) to (5), mutatis mutandis, then he is liable to ten years imprisonment.
(e) In this Article, "indecent act" – an act for sexual arousal, satisfaction or abasement.
345. (a) If a person had intercourse with a woman –
(1) without her freely given consent;
(2) with the woman's consent, which was obtained by deceit in
respect of the identity of the person or the nature of the act;
(3) when the woman is a minor below age 14, even with her consent;
(4) by exploiting the woman's state of unconsciousness or other condition that prevents her from giving her free consent;
(5) by exploiting the fact that she is mentally ill or deficient, if – because of her illness or mental deficiency – her consent to intercourse did not constitute free consent.
then he committed rape and is liable to sixteen years imprisonment.
(b) Notwithstanding the provisions of subsection (a), a rapist shall be liable to twenty years imprisonment, if the rape was committed under one of the following circumstances:
(4) together with the abuse of the woman before, during or after the act;
According to the information, the Appellant strangled his wife to death. He then rubbed his genitals against the genital area of his dead wife for sexual arousal, satisfaction or abasement. He then cut off his wife’s head, placed it in a plastic bag, and drove to a construction site where he buried the head. He then proceeded to the Beer Sheva prison complex, where he worked as a prison guard.
The Appellant appealed both his conviction for murder and his conviction for an indecent act, as well as the sentence imposed by the court, but subsequently withdrew his appeal on the conviction for murder. The Appellant argued that the word “person” in sec. 448 must be understood as referring only to a living person, and that conviction for an act performed upon a corpse was contrary to the legality principle. He further argued that the court erred in construing the word “person” by analogy to the use of the word in Basic Law: Human Dignity and Liberty, in view of the different purposes of the laws.
In granting the appeal on the conviction for an indecent act, the Court (per Justice U. Vogelman, Justices A. Baron and D. Mintz concurring) held:
- Like any law, a criminal norm will be construed in accordance with its language and purpose. However, when a criminal provision admits of different reasonable interpretations, preference should be given to the one most favorable for the accused, in accordance with sec. 34U of the Penal Law:
34U. If an enactment can be reasonably interpreted in several ways in respect of its purpose, then the matter shall be decided according to the interpretation that is most favorable for whoever is about to bear criminal liability under that enactment.
- In interpreting a criminal norm, the Court must first ascertain the range of possible interpretations that the language of the law tolerates. When there is more than one, preference should be given to that which best achieves the law’s purpose. That purpose is derived from the subjective purpose – the historical legislative intent – and the objective purpose – the values, objectives and principles that the law seeks to realize. Thus, in accordance with sec. 34U, if the scales are balanced at the end of the examination, such that there are a number of equally reasonable alternatives, then and only then is the interpretation most favorable to the accused to be preferred.
- The term “person” is not defined in the Penal Law. It would appear that the word “person” in sec. 348(b) cannot be defined as referring to one who is no longer alive. Such an interpretation would seem contrary to the normal use of the term in Hebrew. Moreover, the legislature chose other terms in referring to the dead in the Penal Law (see, for example: secs. 395, 455, 441, 311 and 172). However, the Respondent argued that this interpretation, although unnatural, can be exceptionally applied where the sexual offense was perpetrated as part of a series of violent criminal acts. In view of the opinion of the District Court, it will be assumed, for the sake of argument, that the language of the section can sustain an interpretation under which “person” can also refer to a dead person.
- The purpose of sec. 348(b) is to prevent infringement of a person’s personal safety, intimacy, privacy and the autonomy of a person’s free will. Committing an indecent act against a person’s will severely infringes that person’s dignity in the most basic sense, and is a flagrant denial of his physical autonomy. The purpose of the section is to prevent subjugating a person to the lusts of another. On the one hand, a person’s awareness is lost upon death. One can no longer experience the severe infringement and abasement of the act, nor can one speak in terms of free will. On the other hand, desecration of a corpse by the commission of an indecent act – and surely following the murder of that person – is an incomparably serious antisocial act that warrants contempt and condemnation, and that clearly violates the dignity of the dead.
- Nothing in the legislative history of the offense reveals the legislative intent in regard to the matter at hand. We must, therefore, turn to the objective purpose.
- The trial court held that the term “person” comprises the corpse of the decedent in view of the constitutional right to dignity of the dead. That right has been recognized by the Court, and on its, the Court has granted protection to various aspects of respect for the dead, including the protection of a corpse. It was on that basis that the trial court interpreted the term “person” as including one no longer living. However, in interpreting a criminal norm in the spirit of the Basic laws, a court must also take account of the right to liberty, which also grounds the principle of legality. The principle of legality should play a decisive role in interpreting the criminal law. That is the reason that sec. 34U requires the preference for the reasonable interpretation most lenient towards a person who may bear criminal responsibility. This consideration was not given sufficient weight by the trial court, and it leads to the conclusion that, under the current language, an indecent act cannot be perpetrated upon one who is not alive. The argument that this should be different in the case of an indecent act perpetrated in the course of the commission of a violent criminal event finds no support in the language of the law, and would also render the actus reus ambiguous and contingent upon the circumstances of each individual case, which would not be consistent with the legality principle.
- While sec. 348(b), as currently worded, cannot serve to criminalize the Appellant’s conduct, the legislature can amend the Penal Law in regard to respect for the dead, including in regard to the aspect raised by this case.
Justice D. Mintz (concurring) provided a brief survey of Jewish law sources demonstrating that a dead person is not deemed a “person”, thus demonstrating that the interpretive approach of Jewish law from antiquity until the present leads to the same conclusion arrived at by Justice Vogelman.
May 16, 2018
The Respondent in this case was a married woman who had been employed as a teacher until she was diagnosed with a mental disorder that led to her hospitalization and subsequent dismissal. The National Insurance Institute granted her a disability pension as a “disabled housewife”. The Respondent appealed the decision to the Haifa District Labor Court, arguing that the Institute had erred in classifying her as a “housewife” in examining her entitlement, inasmuch as her illness was diagnosed when she was employed as a full-time teacher, and that she should therefore be classified as “disabled” rather than be evaluated under the conditions applicable to a “housewife” under sec. 195 of the National Insurance Law. The District Labor Court granted the appeal. The NII appealed the decision to the National Labor Court.
In denying the appeal, the Court (per Judge Sigal Davidow Motola, Judge Roy Poliak and public representatives Haya Shachar (workers) and Diti Sharon (employers) concurring, President (emeritus) Yigal Plitman dissenting) noted that the Law defines a “disabled” person as “an insured person, other than a housewife” who cannot earn a living from work or profession, or whose earning power is limited by the disability. Thus, the status of “disabled” is contingent upon being unable to earn a living, and does not apply to a housewife. As opposed to that, a “housewife” is defined as “a married woman...whose husband is insured under this chapter, who does not work and is not self-employed…”. In such a case, the person’s eligibility will not be examined in accordance with the inability to earn a living, but as a housewife whose eligibility will be examined in accordance with her ability to perform such actions as are usual in a maintaining a normal household. In addition, the two statuses have different minimum requirements as to the scope of the disability, and grant different entitlements.
The Court held that the District Court was correct in finding that the Respondent was not a “housewife”, inasmuch as she was employed when she was diagnosed and when her earning capacity was reduced, and that date – and not the date of filing the claim – was the one relevant to determining her status.
In handing the down the decision, Judge Sigal Davidow Motola took the opportunity to address the legislative use of the term “housewife” and its definition as a “married woman”, by which the legislature created an insurance status based upon sex and family status, whereas an unmarried woman who is not a worker or self-employed, like a man who is not a worker or self-employed, do not fall within the definition even if they actually work in maintaining their household, and their rights (as well as their obligations) will be examined under the general legislative arrangements.
Historically, the rights of a “housewife” were added to the disability arrangement in 1977 in order to grant social insurance to women who worked maintaining the household. It was intended as a benefit, inasmuch as a housewife was exempted from paying social insurance tax. Even if the original purpose for the law was positive, it is now clear that it is based upon a basic conception that views a married woman as financially dependent upon her spouse, and as expected to be responsible for maintaining the household, while the man sees to supporting the family. This is an archaic view that is inappropriate to the present and that is based upon discriminatory gender concepts and preconceptions as to a woman’s dependency upon her husband. This is not to deny the existence and importance of cooperation between spouses and the possibility of relying upon one another, including economically. But the definition of “housewife” is unidirectional (reliance of the woman upon her husband as opposed to cooperation between equals), comprehensive, stereotypical, and therefore discriminatory.
This is a fortiori the case when the rights granted to a “housewife” – merely by virtue of her sex and family status – are different and in some aspects less than those of a man in an identical situation (or an unmarried woman), while materially violating basic rights to equality and dignity. The continued use of the term itself, and the creation of distinctions based upon it, perpetuate inequality in a manner that cries out for change.
While the arrangement cannot be declared unconstitutional inasmuch as it was enacted prior to the enactment of Basic Law: Human Dignity and Liberty [see sec. 10 of the Basic Law regarding “validity of laws” – ed.], its continued use of the concept “housewife”, while distinguishing on the basis of sex and family status and establishing social rights thereunder, perpetuates discriminatory gender concepts that are no longer acceptable, and that may contribute to conduct that stereotypes and demeans women, while frustrating the purpose of achieving gender equality.
In view of the above, there is a real difficulty in the very need for a court that addresses social issues and articulates norms of equality to consider the interpretation of a manifestly discriminatory concept. The Court therefore takes this opportunity to again call upon the legislature to amend the law, examine the issue in all of its ramifications, and establish an alternative arrangement consistent with the values of equality and human dignity.
June 4, 2018
Articles of Note:
Israel Law Review
The legal status of the Gaza Strip following the 2005 Israeli ‘Disengagement’, as well as the applicability of the laws of belligerent occupation with regard to this territory, have sparked, and continue to generate, a lively academic debate, involving states, organisations and legal scholars. Nevertheless, this debate has seldom included an examination of the de facto policy exercised by Israel vis-à-vis Gaza residents themselves.
This article seeks to fill the gap by providing a thorough examination of Israel's legal position towards the residents of Gaza, and a critical analysis of its policy and practice with regard to their movement as well as the movement of goods. This review, based on dozens of policy papers, regulations and procedures, as well as numerous judgments handed down by Israeli courts, reveals that Israel maintains a deliberately deficient and ambiguous legal position with regard to the status of Gaza residents. Under this position, the residents are merely ‘foreign residents’ who have no particular rights in relation to Israel. I argue that this position establishes a major legal vacuum in the protection afforded to Gaza residents and is therefore incompatible with both the reality of Israel's continuous control over Gaza as well as the objects and norms of international humanitarian law.
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