1 The request was submitted and discussed within the procedural framework laid down in sec. 63 of the Knesset Elections Law (Consolidated Version), 1969, (23 L.S.I. 110) which provides: “A candidates' list duly submitted, or rectified in accordance with the previous section, shall be approved by the Central Committee, which shall notify the representative of the list and his deputy of the approval not later than the 20th day before election day”. Sec. 64(a) of the same law provides: “Where the Central Committee refuses to approve a candidates' list, either wholly or as to the name of one of the candidates or the designation or letter of the list, it shall, not later than the 20th day before election day, notify its refusal to the representative of the list and his deputy, and they may, not later than the 18th day before election day, appeal to the Supreme Court against such refusal”.

2 Unofficial translation. No official translation is yet available of this provision which was inserted into the Basic Law: The Knesset (12 L.S.I. 85) by an amendment in 1985 (Amendment No. 9, S.H., no. 1155, p. 196). Additional elements enumerated in sec. 7A which, if proved, would serve to disqualify a candidates' list from participating in elections, are: the negation of the democratic character of the State, instigation to racism, and the existence of reasonable grounds for believing that the list will serve as a cover for the commission of illegal acts.

3 Neiman v. Chairman of the Central Election Committee for the Eleventh Knesset; Avneri v. Chairman of the Central Election Committee for the Eleventh Knesset (1985) 39(ii) P.D. 225, at 278.

4 Neiman and others v. Chairman of the Central Election Committee for the Twelfth Knesset (1988) 42(iv) P.D. 177.

5 In this context S. Levine J. said that the burden of proof was on the party demanding disqualification and that, given the importance of the right at stake (i.e. the right to participate in elections), any doubt which arose within the body of evidence had to be interpreted as a consideration weighing against disqualification.

6 D. Levine J. further stressed that according to both the Declaration of the Establishment of the State of Israel and fundamental values within the Jewish tradition, the State of the Jewish people was supposed and required to be an enlightened democratic state, “based on freedom, justice and peace as envisaged by the prophets of Israel” and ensuring “complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex”. According to D. Levine J., no contradiction whatsoever existed between such values and Israel's position as the State of the Jewish people as a whole.

7 4 L.S.I. 114. Under this Law all Jews living in the Diaspora are granted the right to immigrate to Israel.

8 Rule 3 states:

Action not involving land, (a) An action not wholly involving land shall be brought before the court in whose area of jurisdiction one of the following is found:

(1) the place of the defendant's residence or business;

(2) the place where the obligation was created;

(3) the place assigned or intended for carrying out the obligation;

(4) the place of delivery of the property;

(5) the place of the act of omission sued for.

9 I. Coronel v. N. Coronel and others (1975) 29(ii) P.D. 259, at 266.

10 13 L.S.I. 73. Secs. 4 and 5 provide:

4. A person is liable for the maintenance of other members of his family, viz. —

(1) his parents and the parents of his spouse;

(2) his children of full age and their spouses;

(3) his grandchildren;

(4) his grandparents and the grandparents of his spouse;

(5) his brothers and sisters and the brothers and sisters of his spouse.

5. A person is not liable to provide maintenance to a family member under section 4, unless and in so far as the following three conditions are fulfilled:

(1) he is able to do so after his own requirements and those of his spouse, his minor children and the minor children of his spouse have been supplied;

(2) the family member is unable, in spite of efforts on his part, to supply his own requirements through work or from his property or from any other source;

(3) the family member is unable to obtain maintenance under section 2 or 3 or from an estate or from a family member who precedes the person in question according to the order established in section 4.

11 Secs. 2 and 3 provide:

2. (a) A person is liable for the maintenance of his spouse in accordance with the provisions of the personal law applying to him, and the provisions of this Law shall not apply to that maintenance.

(b) A person who is not a Jew or a Muslim or a Druze or a member of one of the religious communities specified in the First Schedule to the Succession Ordinance, or to whom a personal law does not apply, is liable for the maintenance of his spouse, and the provisions of this Law shall apply to that maintenance.

3. (a) A person is liable for the maintenance of his minor children and the minor children of his spouse in accordance with the provisions of the personal law applying to him, and the provisions of this Law shall not apply to that maintenance.

(b) A person who is not liable for the maintenance of his minor children or the minor children of his spouse according to the provisions of the personal law applying to him, or to whom a personal law does not apply, is liable for the maintenance of his minor children and the minor children of his wife, and the provisions of this Law shall apply to that maintenance.

12 16 L.S.I. 106.

13 A. Perlmutter v. K. Perlmutter (1976) 30(iii) P.D. 355, at 358.

14 The Hebrew word “aliya” means immigration of Jews, and “oleh” (plural: “olim”) means a Jew immigrating into Israel.

15 Considerable space was devoted in Elon D.P.'s judgment to tracing the origin of this group back to a sect or sects which were active in the first century B.C.

16 Supra n. 7.

17 Law of Return (Amendment No. 2), 1970 (24 L.S.I. 28).

18 6 L.S.I. 50.

19 Supra n. 17.

20 Dorflinger v. Minister of Interior (1979) 33(ii) P.D. 97.

21 Elon D.P. illustrated the latter point by the example of a person born of a Jewish mother and a Moslem father. According to the Moslem religion, which recognizes patrilineal descent, such a person would, for this reason, be considered a Moslem, and so, applying the “theological test”, would fall outside the ambit of the Law.

22 By way of contrast, Elon D.P. pointed out that the position of the other religion in question was of central importance in determining the jurisdiction of its religious court concerning a matter relating to personal status; the religious court clearly would not have jurisdiction, and could not be compelled, to decide on a matter of personal status regarding an individual who, in the view of the religion served by the court, was not to be counted as one of its members.

23 According to Elon D.P., it was an emphasis on this over-simplified notion which lay at the bottom of Vitkon J.'s approach, and caused him to focus on the position of the other religion (since, presumably, from the point of view of Judaism persons like the petitioners were, in any case, Jewish).

24 The word “apostate” is being used here in the sense of a person who freely chooses to abandon his religious faith, vows or principles. The Hebrew word used by Elon D.P. is “mu'mar”, which could also be translated as “convert”. However, to the extent that the latter implies a ceremonial act of conversion it seemed preferable to use the word “apostate”. Elon D.P.'s concern appears to be with the person whose beliefs and practices constitute a rejection of Judaism, regardless of whether or not such person had undergone a formal conversion to another religion.

25 In response, the petitioners argued, alternatively, that even if they were to be considered “members of another religion” for the purposes of sec. 4B of the Law, it did not follow from this conclusion that they had “voluntarily changed their religion” — a term which, according to them — implied a formal, official conversion; hence, as descendents of Jews, who had not undergone an official conversion ceremony, the petitioners fell within the scope of the Law, via sec. 4A(a), cited above. Both Elon D.P. and Barak J. rejected this claim, and the interpretation of sec. 4A(a) upon which it was based, opining that once it had been established that the petitioners were members of another religion, it followed that they had voluntarily changed their religion. Elon D.P. further stressed that the main purpose of sec. 4A(a) was to assist persons who, unlike the petitioners, had not been born of a Jewish mother, and for this reason did not fall within the definition of “Jew” in the Law, but were either descendents of, or married to, Jews.

26 Although Barak J. does not explicitly attribute this view to Elon D.P., it seems clear that he considers Elon D.P.'s judgement to reflect at least a similar view. On this point it should be noted that while Elon D.P. frames his test in wide terms (i.e. “the world of Judaism and Jewish history”) he does appear to place a clear emphasis on religious-halakhic criteria: It is because the Halakha denies legal-social rights to the apostate, and because the petitioners, historically, are to be considered apostates, that they are “members of another religion”, and so not entitled to the rights granted under the Law.

27 The definition was added in Law of Return (Amendment No. 2), 1970, supra n. 17.

28 As noted in n. 25 supra, Barak J., like Elon D.P., and for similar reasons, rejected the petitioners' alternative argument based on sec. 4A(a) of the Law.

29 In addition, the appellant was convicted, inter alia, of the offence of fraud and breach of trust. D. Levine J.'s references to Jewish Law, however, relate only to the bribery offence. For this reason, as well as for lack of space, I focus only on this particular offence. Furthermore, as the importance of this case derives primarily from the general principles enunciated by D. Levine J., rather than from the specific factual background of the case, I focus only on the former.

30 Special Volume, L.S.I., at 79.

31 Ch. XVI:19. D. Levine J. further quoted from the Book of Exodus, ch. XXIII: 8: “And thou shalt take no bribe; for the bribe blindeth the clear-sighted, and perverteth the words of the righteous”.

32 Rashi, Ketubot, 105, side A.

33 As an illustration of this point, D. Levine J. quotes from a passage found in Sefer HaAgada Davir (p. 577, column b, sec. 183). The passage tells of Shmuel's decision to disqualify himself from arbitrating in a dispute merely because one of the disputants had shaken his hand.

34 “Moreover thou hast not brought us into a land flowing with milk and honey, and thou hast not given us inheritance of fields and vineyards: wilt thou bore out the eyes of these men? We will not come up” (Numbers, Ch. XVI:14).

35 Ch. XVI:15.

36 Rashi, Devarim, Ch. XVI:15.

37 Supra n. 30. Sec. 293 provides:

293. In regard to a bribe it is immaterial —

(1) whether it consists in money, money's worth, a service or any other benefit;

(2) whether it is given for doing or not doing, or for delaying, expediting or retarding anything, or for discriminating in favour of or against any person;

(3) whether it is given for a specific act or to obtain preferential treatment generally;

(4) whether it is given for an act of the person taking it or for his influence on the act of another person;

(5) whether it is given personally by the person giving it or through another person; whether it is given directly to the person taking it or to another person for him; whether it is given in advance or ex post facto; or whether it is enjoyed by the person taking it or by another person;

(6) whether the function of the person taking it is one of authority or service, permanent or temporary, general or specific, or whether it is performed with or without remuneration, voluntarily or in discharge of a duty;

(7) whether it is given for a deviation from the line of duty or for an act which the public servant is required to do by virtue of his functions.

38 In this context, an “act” should be understood so as to include “doing or not doing, or … delaying, expediting or retarding anything, or … discriminating in favour of or against any person” (Ibid., sec. 293(2)).

39 As an illustration of this point, D. Levine J. quotes from the Book of Ecclesiastes, ch. XI: 1: “Cast thy bread upon the face of the waters; for after many days wilt thou find it again”.

40 Sec. 293(3) of the Law; for the exact wording see supra n. 37.

41 State of Israel v. Vita (1973) 27(ii) P.D. 610, at 613.

42 Sec. 27(a) of the Contracts (General Part) Law, 1973, provides: “A contract may depend on the fulfilment of a condition (hereinafter referred to as a ‘suspensory’ condition) or may cease upon the fulfilment of a condition (hereinafter referred to as a ‘resolutory condition’)” (27 L.S.I. 117, at 121).

43 27 L.S.I. 313.

44 Sec. 1(a) of the Gift Law provides: “A gift is a transfer of the ownership of property otherwise than for consideration” (22 L.S.I. 113). Although sec. 4 of the same law provides that a gift may be conditional, this appears to be the exception rather than the rule.

45 Sec. 1 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, provides: “Matters of marriage and divorce of Jews in Israel, being nationals or residents of the State, shall be under the exclusive jurisdiction of rabbinical courts” (7 L.S.I. 139).

46 Sec. 17(a) of the Law (supra n. 42, at 120) provides: “A person who has entered into a contract in consequence of duress — by force or threats — applied to him by the other party or a person acting on his behalf may rescind the contract”.

47 Sec. 20 of the Law provides: “Rescission of a contract shall be by notice by one party to the other party given within a reasonable time after becoming aware of the ground for rescission or, in the case of duress, within a reasonable time of becoming aware that the duress has ceased”.

48 “Cooperative house” is defined in see. 52 of the Land Law, 1969, as follows: “Cooperative house' means a house containing two or more dwellings which is registered in the Register of Cooperative Houses” (23 L.S.I. 283, at 291).

49 Sec. 52 of the Land Law defines “common property” as follows: “‘Common Property’ means all the parts of the cooperative house other than the parts registered as dwellings, and includes the land, the roofs, the outer walls, the foundations, the staircases, the lifts and the shelters, as well as the heating, water and other similar installations intended to serve all or most of the owners of the dwellings even if such installations are situated within a particular dwelling” (at 291).

And sec. 58 of the Land Law provides: “The owner of a dwelling shall participate in the expenses necessary for the proper maintenance and management of the common property, and for ensuring the services prescribed by law or customary, according to his share in the common property, unless a different rate of participation is prescribed by the rules” (at 293).

50 Land Law (Amendment No. 10), 1987, S.H. no. 1228, p. 6 which added sec. 59B to the Law.

51 Among the reasons surveyed by Maltz J. was the fact that cheaper, more efficient, alternative heating methods exist today than those usually employed by a CHS. Hence, disconnection from the CHS would enable the interested tenant to adopt the alternative method most suitable for his needs, thereby improving the exploitation of resources. In addition, such alternative methods could often be more easily adjusted to the specific needs of individual tenants concerning desired heating hours. By contrast, a CHS was usually operated at fixed hours regardless of the needs and desires of individual tenants.

52 Supra n. 30, at 58. Sec. 192 provides: “A person who in any manner, with intent to intimidate or annoy another, threatens him with unlawful injury to his body, freedom, property, reputation or livelihood or that of a third person is liable to imprisonment for three years”.

53 I begin my account of the case with the minority opinion because it appears that the two majority judgments were delivered in response to it and not vice versa (although Goldberg J.'s judgment does contain one reference to that of Barak J.'s).

54 Sec. 428(a) provides: “A person who, in writing or by word of mouth, threatens a person with unlawful injury to his or another person's body, freedom, property, reputation or livelihood unless he does some act which he is permitted to do is liable to imprisonment for three years or, if the act is done or omitted because of or at the time of the threat, nine years” (at 108).

On the basis of slightly different facts the appellant was also convicted of the sec. 428 offence. His appeal against the conviction was dismissed by the Court, Goldberg J. delivering the leading judgment.

55 On this point, too, opinions were divided. Goldberg J. maintained that the element of “unlawfulness” was implicit in the concept of a threat, as understood in sec. 192, and so superfluous. Matza J., on the other hand, agreed with Barak J. He added that the word “threat”, literally understood, did not necessarily mean the contemplated performance.of a negative, prohibited act; instead, the word could be understood to imply merely the legitimate causing of intimidation which derived from a positive intention. The former was to be distinguished from the latter precisely by the element of unlawfulness emphasized by Barak J. Matza J. further suggested that it was the element of “unlawfulness” which, in fact, provided the distinguishing mark of Goldberg J.'s “negative intimidation”.

56 2 L.S.I. [N.V.] 5.

57 19 L.S.I. 254, as amended in 21 L.S.I. 132.

58 The maximum penalty laid down under sec. 354(a) was five years imprisonment.

59 4 L.S.I. 154.

60 Sec. 71(a) provides: “A person shall not publish anything concerning a matter pending in any court if the publication is calculated to influence the course or outcome of the trial” (38 L.S.I. 271, at 290).

61 Sec. 64 of the Criminal Procedure Law (Consolidated Version) 1982, provides: “In the case of a decision not to investigate or not to prosecute, whether for lack of public interest or for lack of evidence, the complainant may lodge objection with the Attorney-General, unless the offence is one of those enumerated in the Second Schedule” (36 L.S.I. 35, at 48).

62 Bach J. gave the example of a holocaust survivor, who, during the course of the trial, disturbs the proceedings by angry cries and outbursts against the accused.

63 9 L.S.I. 184, at 209.

64 Supra n. 30, at 88. This was so despite the fact that the fourth respondent had only ordered those under his command to perform the said acts, and had not been directly involved in their actual execution.

65 The need for a court martial was due to the fact that, according to sec. 136(a) of the Military Justice (Amendment No. 3) Law, 1964 (18 L.S.I. 140, at 146) only military offences carrying a maximum three year sentence fell within the jurisdiction of disciplinary proceedings.

66 In addition to the general claim of extreme unreasonableness, the petitioners challenged the CMA's decision on a number of more specific grounds including, inter alia, discrimination. According to the petitioners, the CMA's decision discriminated against other soldiers and senior officers who, during the period in question, had been brought to trial before a court martial for the commission of even lighter offences. Bejski J. held that on the evidence presented before the court this claim appeared well founded. However, Bejski J. also said that the different treatment of apparently similar cases could not always be considered discriminatory. Subject to the demands of relevancy and reasonableness, the CMA was entitled to take a number of different factors into account, including the personal circumstances of each particular offender.

67 Reference was made to Moenssens, A. A., Fingerprint and the Law (Philadelphia, 1969)Google Scholar.

68 All three of the appellant's fingerprints were found in the kitchen of the apartment — apparently the scene of the crime. One of the fingerprints was found on a wall tile above a blood-stained chair. The appellant's only explanation (i.e. that the fingerprints were left during his last visit, eight months earlier) was contradicted by the evidence concerning the age of the fingerprints and undermined by evidence indicating that the appellant had lied when he claimed that since then he had not even seen the victim.

69 It should be noted that Israeli case law has developed several distinct categories or degrees of corroborating evidence. According to the case law, material lies — including an alibi refuted by positive evidence — told by the accused are capable of satisfying the highest degree of corroborating evidence, namely, evidence which itself directly implicates the accused in the actual commission of the offence. Where, as in the present case, the primary evidence (i.e. the fingerprints) is of a kind which can sustain a conviction on its own without requiring this degree of corroboration, the material lie functions simply as an additional piece of circumstantial evidence.

70 This evidence constituted five bite marks found on the victim's back. The teeth which left the marks did not pierce the victim's skin, but left only an impression in the skin itself. Both parties accepted that the bite marks had been left by the murderer in the course of the struggle with the victim. It should be noted that during the entire discussion no practical or material distinction of any kind was drawn between a case involving the suspect's real teeth and a case, like the present one, involving a set of false teeth.

71 In other words, whether, in principle, the identity of the murderer could be established with certainty (from a legal perspective) solely on the basis of the bite marks.

72 P.G. No. 1470, 1946 Supplement No. 2, 163. Regulation 112(1) provides: “The High Commissioner shall have power to make an order under his hand (hereinafter in these regulations referred to as a ‘Deportation Order’) for the deportation of any person from Palestine. A person in respect of whom a Deportation Order has been made shall remain out of Palestine so long as the order remains in force”.

73 P.G. No. 1602, 1947 Supplement No. 2, 1170. Regulation 112(8) provides: “Any advisory committee appointed under the provisions or subregulation (4) of regulation 111 of the principle Regulations may, if so requested to do by any person in respect of whom a deportation order has been made under this regulation, consider and make recommendations to the Government in respect of any such deportation order”.

74 In addition, the petitioners claimed that the deportation of residents from the occupied territories contravened the provisions of Article 49 of the Fourth Geneva Convention of 1949 Relative to the Protection of Civilian Persons in Time of War. They argued that a previous majority decision restricting the application of this article to only mass forcible transfers was mistaken and should be reviewed. (The case in question, known as the “Affu Case”, was surveyed in (1990) 24 Is.L.R. 128Google Scholar, at 137). This claim was rejected by the Court. Bach J. (D. Levine and Goldberg JJ. concurring) held that there was no practical point in a renewed discussion of this question. He reiterated his view that Article 49 was a provision of conventional or contractual (rather than customary) international law, which bound Israel at the international level, but which had not been incorporated by primary legislation into Israeli municipal law and therefore could not, in any case, serve as a basis for a citizen's petition to a court of law.

75 2 L.S.I. [N.V.] 198, at 208. Sec. 44(a) provides: “A person is not bound to give, and the court Bhall not admit, evidence regarding which the Prime Minister or the Minister of Defence, by certificate under his hand, has expressed the opinion that its giving is likely to impair the security of the State … unless a Judge of the Supreme Court, on the petition of a party who desires the disclosure of the evidence, finds that the necessity to disclose it for the purpose of doing justice outweighs the interest in its non-disclosure”.

76 This procedure was discussed in Balal Shachshir v. Commander of I.D.F. Forces in West Bank (1989) 43(i) P.D. 529. For a digest of this case see (1991) 25 Is.L.R. 107, at 130Google Scholar.

77 Sha'ahin v. Commander of I.D.F. Forces in the Gaza Strip (1985) 39(i) P.D. 309, at 327.