The formal and the substantive meanings of proportionality in the Supreme Court's decision regarding the security fence

Israel Law Review

Volumn 38, Issue 1-2, 2005, Pages 262-291

  Cohen Eliya, Moshe ^a  

^a Academic College of Law   (Israel)

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EID: 84966679709     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S002122370001270X     Document Type: Article

References (151)

1. H.C.J. 2056/04 Beit Sourik Village Council v. The Government of Israel 58(5) P.D. 807.
2. For an English translation of this case see “H.C.J. 2056/04 Beit Sourik Village Council v. The Government of Israel 58(5) P.D. 807
3. (2005) 38 (1–2) Is.L.R. 83.
4. For a survey see David Beatty, ed. Constitutional Law in Theory and Practice (Toronto, University of Toronto Press, 1995)
5. David Beatty, ed. Human Rights and Judicial Review: A Comparative Perspective (Leiden, Martinus Nijhoff Publishers 1994).
6. Michael Sachs, ed. Grundgesetz GG Kommentar (Warenneulieferung in Kürze, 1996) 95
7. David Beatty, The Ultimate Rule of Law (Oxford, Oxford University Press, 2004) 63.
8. Jefferey Lowell and Anthony Lester, “Proportionality: Neither Novel, Nor Dangerous” in J.L. Jowell and D. Oliver, eds. New Directions in Judicial Review (London, Stevens and Stevens, 1988) 51, 54.
9. This sort of reasoning can be found in the decision of Justice Mazza in H.C.J. 92/03 Mofaz v. The Chairman of the Central Elections Committee 57(3) P.D. 793, 811. In this case the Court dealt with the question whether the limitation clause (which includes the proportionality test) in the Basic Laws on human rights' should also be applied with regard to the provisions in other Basic Laws, which do not specifically refer to the limitation clause. According to Mazza there is nothing “to prevent this from being done. The triple test of the said limitation clause is perceived in our case law as a worthy tool for the examination of the constitutionality of a law. Since it has become one of the basic principles of our legal system, the court is entitled to apply it even in the absence of a limitation clause in the Basic Laws.”
10. Ronald Dworkin presents an argument that the matter of policy-making should be granted to those who are elected, while the judges should be responsible for the maintenance of principles (i.e. rights). See Ronald Dworkin, Taking Rights Seriously (Cambridge, Harvard University Press, 1977) ch. 2, 4
11. Ronald Dworkin, Law's Empire (Cambridge, Harvard University Press, 1986) 438
12. Scott H. Bice, “Rational Analysis in Constitutional Law” (1980) 65(1) Minn.L.Rev. 13–17
13. Beatty, The Ultimate Rule of Law, Minn.L.Rev., at 163
14. John H. Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, Harvard University Press, 1980) 102–103.
15. Max Weber, On Charisma and the Institution Building: Selected Papers (Chicago, Chicago University Press, 1968) 81–125.
16. On Charisma and the Institution Building: Selected Papers, at 70
17. Weber viewed formal rationality as a sort of “twin brother of liberty” since it prevents arbitrary actions by the government. See Max Weber, Diskussionerede zu dem Vortag von H. Kantorowicz Rechtwissenschaft und Soziologie, Gesammelte Aufsatze zur Soziologie und Sozialpolitik (1924) 477–481.
18. The translation into English of parts of this article can be found in Arthur Jabloner and Bernhard Schlink, eds. Weimar: A Jurisprudence of Crisis (Berkeley and London, University of California Press, 2000) 50, 53.
19. Lawrence Tribe, American Constitutional Law (Mineola, NY, The Foundation Press, 2nd ed., 1988) 1451
20. Beatty, American Constitutional Law, at 96.
21. Ely, American Constitutional Law, at 147–158.
22. The various constraints which are dictated by the public debate, create for the courts what Elster calls the “educative power of hypocrisy”, see Jon Elster, “Introduction” in Jon Elster, ed. Deliberative Democracy (Cambridge, Cambridge University Press, 1998) 12.
23. Weber, Deliberative Democracy, at 49–58.
24. More about the distinction between different types of rationality in the works of Weber, see Stephen Kalberg, “Max Weber's Types of Rationality/Rationalization: Cornerstones for the Analysis of Rationalization Processes in History” (1980) American Journal of Sociology 1145, 1151–1159.
25. Robert Alexy, A Theory of Constitutional Rights (Oxford, Oxford University Press, 2002) 50–56.
26. Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (North Caroliina, Duke University Press, 2nd ed., 1997) 1.
27. For a comprehensive discussion of the theoretical and constitutional meanings of this values regime, see Horst Dreier, Dimensionen der Grundrecht - Von der Wertordnungsjudicature zu den Objective Rechtlichen Grundrechtsgehalten (Hannover, 1993).
28. According to Dreier, the values regime determines a closed system, which when applied fills all the legal or social spaces. In Germany it is common to say that the Wertrangordnung is total in the sense that “either it is applied or it is not applied” Dimensionen der Grundrecht - Von der Wertordnungsjudicature zu den Objective Rechtlichen Grundrechtsgehalten, at 19.
29. An example of the way in which the values regime is implemented in Germany, is provided by the “Mephisto” case. In this case the court discussed the constitutional validity of a prohibition on the publication of a book. The book was based on the authentic image of a deceased theatrical actor, who had in the past collaborated with the Nazi regime. The court examined the linkage between the conflicting values of freedom of speech on the one hand and of the actor's reputation on the other and ruled that a person's reputation is closer to the core of human dignity so that this right supercedes freedom of speech, BVerfGE 30 173 (1971), para. 5III of the verdict
30. a translation into English of parts of this decision can be found in Kommers, BVerfGE, at 301–304.
31. See Weber, BVerfGE, who notes that focusing concentration on formal rationality alone is liable to lead to moral distortions.
32. Also see, Menachem Mautner, The Descent of Formalism and the Ascent of Values (Tel Aviv, Ma'agaley Da'at 1993) 17 [in Hebrew].
33. Donald Kommers, “The Randolgh W. Thrower Symposium: Comparative Constitutionalism: German Constitutionalism: A Prolegemenon” (1991) 40 Emory L.J. 837, 861.
34. Hermann Georing, “Fundamental Consitutional Rights: Content, Meaning and General Doctrines” in Ulrich Karpens, ed. The Constitution of the Federal Republic of Germany (Baden-Baden, Nomos, 1988) 50, 58
35. Kommers, The Constitution of the Federal Republic of Germany, at 39.
36. Erhard Denninger, Freiheit - Wertordnung - Pflichtordung: Zur Entwicklung der Grundrechtjudicatur des Bundesverfassungsgericht Juristenzeitung 30 (1975) 545
37. H. Georlich, Wertordung und Grundgasetz (1973) 140
38. K. Stern, Das Staatsrecht der Bundesrepublik Deutchland (1988), Band III/1, 913.
39. Wolfgang Zeidler, “Grundrechte und Grundenscheidungen der Verfassung im Widerstreit im Verhandlungendes”(1980) 53 Deutschen Juristentages 133
40. Georlich, Deutschen Juristentages, at 1–29
41. Lerke Osterloh, Art. 3 GG, in Grundgesetz, Kommentar, Deutschen Juristentages, at n. 22.
42. Carl Schmitt Die Tyrannei der Werte” Sekularization und Utopia: Ernst Forsthqff zum 65. Geburtstag Deoring und Greve Hrsg., 1967 37, 45.
43. Nicholas Emiliou, The Principle of Proportionality in European Law: A Comparative Study (London, Kluwer, 2004) 35.
44. Peter Hogg, Constitutional Law of Canada (Toronto, Carswell Legal Publisher, 2003) 816.
45. With regard to the injury to the most fundamental rights in the American constitutional law, the strict test is applied, according to this test the state must show that it is promoting an essential social goal and that there is a strong linkage between the means used and the goal (including the requirement for the existence of a less drastic means). See, for example, Korematsu v. United States, 323 US 214 (1944).
46. C.A. 6821/93 Bank HaMizrahi Ltd. v. Migdal 49 (4) P.D. 221, 347.
47. See, the introduction to the book: Jon Elster and Rune Slagstad, eds. Constitutionalism and Democracy (Cambridge, Cambridge University Press, 1988)
48. the references presented there, Constitutionalism and Democracy, 1–19.
49. The chances that the government will be able to show that the demands of the strict scrutiny test in the United States were fulfilled are extremely low. Thus Gunther labelled this test as strict in theory and usually fatal in fact. See, Gerald Gunther, “The Supreme Court, 1971 Term - Forward: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection” (1972) 86 Harv. L. Rev. 1, 8.
50. As Bork justifiably observed, judicial review aimed at uncovering and removing hidden motives (while focusing on an examination of the means-ends ties) does not necessarily express judicial restraint, but in fact manifests rigorous activism see: Robert Bork, The Tempting of America: The Political Seduction of the Law (New York, The Free Press, 1990) 194–199.
51. Note, “Less Drastic Means and the First Amendment” (1969) 78 Yale L.J. 464, 468 (“by definition, the less drastic alternative will inhibit less than the policy embodied by the statute before the court”).
52. Guy Davidov, “Separating Minimal Impairment from Balancing: A Comment on R. v. Sharpe (B.C.C.A.)” (2000) 5 Rev. Const. Stud. 195.
53. The distinction between an injury at the core or at the margins of the right, and the distinction between constitutional rights based on their relative importance,are both very prevalent in comparative constitutional law. One can also find some signs of these distinctions in the jurisprudence of Israeli constitutional law. See the opinion of Justice Dorner in H.C.J. 450/97 Tnufa v. The Minister of Labor 52(5) P.D. 433, 452
54. H.C.J. 1715/97 The Investment Managers Office in Israel v. The Minister of Finance 51(4) P.D. 367, 422–423.
55. For a comparative survey see: Dalia Dorner, “Proportionality” in Aharon Barak and C. Berenson, eds. Berenson Book, (Jerusalem, Nevo, 2000) vol. 2, 281 [in Hebrew].
56. It should be noted that in American constitutional law there is an explicit distinction between three levels of scrutiny. When infringements of fundamental rights and suspect discrimination (discrimination on the basis of race, religion, nationality etc.) are at issue, the strict test is applied; In cases of gender discrimination, an intermediate test is applied; and for infringements to rights which are not fundamental (for example, economic rights) and when non-suspect discrimination occurs, the most lenient test is applied to the state (rational basis). See, Edwin Baker, “Limitation on Basic Human Rights - A View from the United States” in De Mestral et al., ed. Limitations on Human Rights in Comparative Constitutional Law (Montreal, Les Editions Yvon Blais, 1986) 76.
57. It appears that in the United States, the courts apply the formal proportionality test when dealing with an infringement of rights which are not fundamental rights (e.g. economic rights). The necessity test in its substantive sense is applied by the American courts for an infringement of fundamental rights, such as freedom of speech and the antidiscimination principle, see Guy M. Struve, “The Less Restrictive Alternative Principle and Economic Due Process” (1967) 80 Harv. L. Rev. 1464, 1463
58. Bice, Harv. L. Rev., at 39
59. A less-drastic-means, Harv. L. Rev., at 467.
60. For an argument from democracy against the application of customary international law in domestic law see Curtis A. Bradley and Jack L. Goldsmith, “Customary International Law as Federal Law: A Critique of the Modern Position” (1997) 110 Harv. L Rev. 815.
61. A reflection in this spirit can be found in David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (New York, SUNY, 2002) 187–198.
62. H.C.J. 393/82 Jamait Ichsan v. The Commander of the Israeli Defense Forces 37(4) P.D. 810, 875 (“Each Israeli soldier carries with him, in his kitbag, the rules of customary public International Law, which deal with the rules of warfare and the basic rules of Israeli Administrative Law”).
63. See also, H.C.J. 7015/02 Ajuri v. IDF Commander 56(6) P.D. 352, 364–365. (English translation available at http://62.90.71.124/eng/verdict/framesetSrch.html).
64. Handyside v. United Kingdom Judgment of 7 Dec. 1976, A.24, p. 22 (Europe)
65. R. v. Edward Books and Art [1986] 2 S.C.R. 713, 772 (Canada)
66. Metro Broadcasting Inc. v. FCC, 497 US 547 (1990) (United States, using the term deference).
67. The doctrine of the margins of appreciation was first applied in Israel in Bank HaMizrahi, US, at 439.
68. See also, H.C.J. 4769/95 Menachem v. the Minister of Transport 57 (1) P.D. 235, 285
69. H.C.J. 3472/92 Brand v. the Minister of Communications 47(3) P.D. 143, 153
70. H.C.J. 240/98 Adalah v. the Minister for Religious Affairs 52(5) P.D. 167, 189–191.
71. In Europe the “margins of appreciation” doctrine is also influenced by the question, whether there is agreement among the various European states regarding the necessity of choosing the means. On this issue see, for example, B. Hovious “The Limitation Clauses of the European Conventionon on Human Rights: AGuide for the Application of Section 1 of the Charter?” (1985) 17 Ottawa L. Rev 213, 257. This consideration is irrelevant in Israeli law.
72. In Europe it is usual practice to grant the states wide margins of appreciation when they infringe rights for the purpose of protecting their citizens' security, see for example, Lawless judgments of 7 April and 1 July 1961, ECtHR, Series A, nos. 2&3
73. Ireland v. United Kingdom, judgment of 18 January 1978, ECtHR, Series A, no. 25.
74. On the subject of the non-interventional policies in Israel with regard to the judgment of the military commander, see for example, H.C.J. 606/78 Ayub v. the Minister of Security 33(2) P.D. 113, 126: “It has already been emphasized, more than once, that the areas of intervention of this court in the military considerations of the Civil Administration or the military authorities are very restricted, and a judge, as an individual, will certainly avoid imposing his own views on matters of politics and security instead of deferring to the decisions of those who are entrusted with the defense of the state and the maintenance of public order in the occupied territory.”
75. Guy Davidov et al., “State or Family? The Law of Citizenship and Entry into Israel (Emergency Order) 5763/2003” (2004) A (2) He-arat Din 61, 77.
76. Korematsu, He-arat Din. Today it is widely-accepted that the decision to incarcerate American citizens of Japanese origin in detention camps was a result of phobia, prejudices and irrational biases with regard to the “other”.
77. See for example, E. Lin, “A Case Comment: Korematsu Continued…” (2003) 112 Yale L.J. 1911, 1914.
78. For example, H.C.J. 680/88 Schnilzer v. The Chief Military Censor 42(4) P.D. 617 (available in English in http://62.90.71.124/eng/verdict/framesetSrch.html) dicussed the striking down of a decision by the military censor not to permit the publication of a journalistic article which dealt with the date of replacement of the head of the Mossad (central Israel intelligence agency) and also included criticism of the functioning of the departing Mossad director. The court determined that publication of the date of replacement of the director of the Mossad does not constitute an injury that meets the standard of “near certainty” necessary to justify a restriction on free speech. One might suspect, in the absence of a connection between the means and the ends, that one of the motives for the non-approval of the article for publication was associated with the desire to silence the criticism regarding the functioning of the director of the Mossad.
79. In Dudgeon v. United Kingdom, judgment of 22 October 1981, ECtHR, Series A, no. 59, para. 48, the European Court for Human Rights notes that the criminal prohibition of consensual homosexual sexual conduct infringes upon the most intimate aspect of private life. It was therefore determined that: “not only the aim of the restriction, but also the nature of the activity involved, will affect the scope of the margins of appreciation”. The High Court of Canada also tends to narrow the margins of appreciation provided to the state when the core of the rights is infringed.
80. See The Attorney General of Quebec v. Irvin Toy Limited [1989] 1 S.C.R. 927, 993–994, 999.
81. In the case of Dudgeon, S.C.R., the goal of the law prohibiting homosexual conduct was moralistic. The European Court for Human Rights tends to grant states wide margins of appreciation when they ask to advance such a goal. On the other hand, in this same case the court noted that the law under examination harms core aspects of the right to privacy. In these circumstances the court granted the state margins of appreciation, however it determined that these margins would be narrow.
82. For a discussion see: Howard Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (New York, Springer, 1996) 91
83. Paul Mahoney, “Judicial Activism and Judicial Self-Restraint in the European Court of Human Rights: Two Sides of the Coin” (1990) 11 Human Rights Law Journal 57, 80.
84. In Canada, the demand for the purpose is required by the drafting to be proportional to the importance of the right. According to R. v. Oakes [1986] 1 S.C.R. 103, 138, a law limiting a constitutional right must pursue an objective that is sufficiently important to justify superceding a constitutional right.
85. H.C.J. 4541/94 Miller v. the Minister of Defense 49 (4) P.D. 94, 114
86. H.C.J. 206/94 Nof v. the Minister of Defense 50 (5) P.D. 449–463
87. see also Aharon Barak, Interpretation in Law (Jerusalem, Nevo, 1994) vol. 3, 528 [in Hebrew].
88. H.C.J. 302/72 Hilu v. the State of Israel 27 (2) P.D. 159
89. H.C.J. 606/79 Ayub v. the Minister of Defense 33 (2) P.D. 113
90. H.C.J. Jamait Ichsan, P.D.
91. For fierce criticism in this spirit see the comments of Justice Scalia in Edwards v. Aguillard, 482 U.S. 578 (1987).
92. This is a frequently heard maxim in the verdicts of the High Court of Justice in Israel. See for example H.C.J. 246/81 “Agudat Derekh Eretz” v. Broadcasting Authority 35 (4) P.D. 1, 17
93. H.C.J. 3262/95 Poraz v. The Government of Israel. 49 (3) P.D 153, 158
94. H.C.J. 428/86 Barzilai v. The Government of Israel 40 (3) P.D. 505, 593.
95. Compare, on this matter,with the words of Justice Cheshin in H.C.J. 606/93, Kidum v. the Broadcasting Authority 48 (2) P.D. 1, 25 in his consideration of the judicial difficulty in distinguishing between a commercial and political speech: “The very fact that in a certain case our work is made difficult, does not, in my opinion, justify the conclusion that we should not attempt to find a distinction in other cases. The question is a question of values: if it is appropriate and correct and desirable to make a distinction - within the boundaries of the freedom of speech - between a commercial advertisement and ways of expression regarding other subjects. We will not decide on this question, of course, when we are required to make technical or mechanical tests, and we will also not be deterred by difficulties along the way.”
96. H.C.J. 392/72 Berger v. The Regional Committee for Planning and Construction 27 (2) P.D. 764, 773.
97. H.C.J. 390/79 Duikat and others v. the Government of Israel and others 37 (1) P.D. 1 20–21.
98. For example, H.C.J. 104/87 Nevo v. the National Labor Court 44(4) P.D. 749, 760–761
99. N.L.C. 56/3–129 Sharon Plotkin and others v. Eisenberg Brothers Ltd P.D.A. 23, 481.
100. For example, C.A. 217/68 Isramax v. the State of Israel 22(2) P.D. 343
101. C.C. 3471/87 The State of Israel v. Kaplan P.D.M. 1988 (B) 265
102. H.C.J. 3872/93 Meatrael v. the Prime Minister 44(5) P.D. 485.
103. H.C.J. 390/79 Duikat, P.D.
104. For example, a comment by the Minister of Defense regarding the lack of a security need for the establishment of the settlement of Elon Moreh. P.D., at 7.
105. Attached to the petition was the opinion of Brigadier-Colonel (Res.) Haim Bar-Lev and of Major-General (Res.) Matitiyahu Peled. P.D., at 7–8.
106. For example, an interview with the Deputy Prime Minister, Ehud Olmert in the supplement to “Haaretz” newspaper. A. Shavit, “Maximum Jews, Minimum Arabs”, Haaretz, 13.11.2003. The article can be viewed at the newspaper's Internet site; http://www.haaretz.com/hasen/pages/ShArtVty.jhtml?sw=olme rt&itemNo=360533.
107. From reports in the Israeli media it appears that political factors pressured the system in order to distance the fence's route from the Green Line. See for example a news item in the “Haaretz” newspaper, by Aluf Ben et al., “The Fence in the South is Delayed because Sharon Ordered it to be Distanced from the Green Line”, Haaretz, 2.9.04. This item can be viewed at the Internet site of the “Haaretz” newspaper: http://www.haaretz.co.il/hasite/pages/ShArtPE.jhtml?itemNo=472538&contrassID=2&subContrasslD= 1 &sbSubContrassID=0.
108. In the case of H.C.J. 390/79 Duikat, Haaretz, n. 55, at 18, Justice Vitkon determined that one of the parameters for the identification of the nature of the motive is related to the question: who initiated the activity. As Vitkon noted “When military needs are at issue, I would have expected the military authorities to initiate the establishment of the settlement actually on the same site, and that the Chief of General Staff would be the one to present the demand of the military for the establishment of the settlement, according to this initiative, before the political authority, in order to approve the establishment of the settlement.”
109. Ely, Haaretz, at 146.
110. Rare are the cases in Canada (Hogg, Haaretz, at 807)
111. in the United States (Gunther, Haaretz) in which the court strikes down policies only on the grounds that they do not comply with the rational connection test. It seems, nevertheless, that in the last few years the American Supreme Court has applied a more rigorous standard of review with regard to those same matters in which it applies the rational connection test, as for example in the cases of discrimination against homosexuals.
112. See, for example, Romer v. Evans, 116 S.Ct. 1620 (1996).
113. Davidov et al., S.Ct., at 78.
114. An illustration of this moderated approach which is usually applied as part of the suitability test can be found in the Canadian case of RJR MacDonald v. Canada [1995] 3 S. C.R. 199.
115. This case discussed the constitutional validity of the prohibition of advertisement of tobacco products. The petitioners presented research studies from which it transpired that advertising tobacco products does not increase the number of smokers but only influences the transfer of tobacco consumers from one product to another. The court rejected the claim that the statutory prohibition of advertisement is not connected rationally to a goal and determined that it was possible to rely on common sense in order to assume that the advertisement of cigarettes would increase the number of new smokers. For a discussion of this see Hogg, S. C.R., n. 27, at 808–809.
116. H.C.J. 6055/95 Sagi Tsemach v. the Minister of Defense 53(5) P.D. 241, 280–281. An English translation of this decision can be found on the Israeli Supreme court website at http://elyonl.court.gov.il/files_eng/95/550/060/i 15/95060550.i15.htm.
117. It appears that the state chose to emphasize the security (disciplinary) purpose and not the logistic purpose, principally because of the earlier ruling of the court according to which considerations of logistics and costs cannot serve as a worthy purpose. However in retrospect it transpired that it had no need to do so. In the Tsemach case the court ruled that the logistic purpose is not an illegitimate purpose by definition, rather its validity is measured by considering the nature of the injured rights and the extent of financial costs involved in the realization of the right. See the words of Justice Zamir in H.C.J. 6055/95 Tsemach, P.D., at 281. (In principle, there should be no negation of the possibility that the extent of resources demanded will, in practice, prevent, the shortening of the period.)
118. H.C.J. 2056/04 Beit Sourik, P.D., at para. 30 of the verdict.
119. In Israel the court has already struck down three laws on the grounds that they did not comply with the necessity test. See The Investment Managers, P.D.
120. Tsemach, P.D., n. 68
121. This is also the situation in Canada (Hogg, P.D., at 810).
122. Also see, H.C.J. 1661/05 The Municipality of Gaza Shore v. The Israeli Knesset.
123. H.C.J. 2056/04 Beit Sourik, H.C.J., n. 1, at paras. 47, 56.
124. H.C.J., at 16–20.
125. See for example, H.C.J. 6055/95 Tsemach, H.C.J., at 268
126. the C.A. 6821/93 MizrahiBank, H.C.J., n. 29, at 59.
127. For the affinitiy between the importance of the infringed right and the rules for the apportionment of the burden of proof in comparative and international law see: Julianne Kokott, The Burden of Proof in Comparative and International Human Rights Law: Civil and Common Law Approach with Special Reference to the American and German Legal System (The Hague, Kluwer Law International, 1998) 22.
128. An outstanding example of a thorough factual scrutiny regarding the question of the effectiveness of the chosen means can be found in the interim ruling dated 16.12.97 which was delivered in Tsemach, The Burden of Proof in Comparative and International Human Rights Law: Civil and Common Law Approach with Special Reference to the American and German Legal System. In this ruling, the court determines that “The data presented to us are insufficient for us. We request, before delivering our decision regarding the petition on the essence of the arguments and summaries which were presented to us, that the respondents present full and complete details to the court, within forty-five days”. Further on in this ruling, ten detailed questions are set out, obliging the military to present full details which are intended for the evaluation of necessity in determining longer periods of detention for soldiers in comparison with civilians.
129. The Burden of Proof in Comparative and International Human Rights Law: Civil and Common Law Approach with Special Reference to the American and German Legal System at 19–20.
130. See for example, H.C.J. 6055/95 Tsemach, The Burden of Proof in Comparative and International Human Rights Law: Civil and Common Law Approach with Special Reference to the American and German Legal System, at 268
131. the C.A. 6821/93 MizrahiBank, The Burden of Proof in Comparative and International Human Rights Law: Civil and Common Law Approach with Special Reference to the American and German Legal System, n. 29, at 59.
132. For the affinitiy between the importance of the infringed right and the rules for the apportionment of the burden of proof in comparative and international law see: Kokott, The Burden of Proof in Comparative and International Human Rights Law: Civil and Common Law Approach with Special Reference to the American and German Legal System.
133. An outstanding example of a thorough factual clarification regarding the question of the effectiveness of the chosen means can be found in the interim ruling dated 16.12.97 which was delivered in H.C.J. 6055/95 Tsemach, The Burden of Proof in Comparative and International Human Rights Law: Civil and Common Law Approach with Special Reference to the American and German Legal System. In this ruling, the court determines that “The data presented to us are insufficient for us. We request, before delivering our decision regarding the petition on the essence of the arguments and summaries which were presented to us, that the respondents present full and complete details to the court, within forty-five days”. Further on in this ruling, ten detailed questions are set out, obliging the military to present full details which are intended for the evaluation of necessity in determining longer periods of detention for soldiers in comparison with civilians.
134. In the ruling in the C.A. 6821/93 Mizrahi Bank case, The Burden of Proof in Comparative and International Human Rights Law: Civil and Common Law Approach with Special Reference to the American and German Legal System, Justices Barak and D. Levine opined that the burden of persuasion and the burden of production of evidence passed to the state after the petitioners had proved the existence of the infringement of right. Justices Shamgar and Cheshin (and as far as can be seen also Justice Mazza) opined that at the stage of proof regarding the existence of the demands of the limitation clauses, the burden of persuasion was upon the state and yet the burden of the production of evidence is on the petitioners. Only Justices Bach and Goldberg were of the opinion that both the burden of persuasion and the burden of production remained with the petitioner.
135. See on this matter the comments of Justice Vitkon in the case of H.C.J. 390/79 Duikat, The Burden of Proof in Comparative and International Human Rights Law: Civil and Common Law Approach with Special Reference to the American and German Legal System, n. 55, at 25–26: “As is known, the courts are often required to decide on questions which require a special expertise - a proficiency which is not usually within the repertoire of knowledge of the judges. We are presented with the opinions of worthy experts, however they completely contradict one another. This often happens in trials which deal with medical problems, and this is also true, for example, in every trial regarding the breach of a patent which raises problems in the area of chemistry, physics and other natural sciences.”
136. H.C.J. 2056/04 Beit Sourik, The Burden of Proof in Comparative and International Human Rights Law: Civil and Common Law Approach with Special Reference to the American and German Legal System, at para. 61 (relating to the implementation of the proportionality test in its strict sense).
137. Ely, (The Burden of Proof in Comparative and International Human Rights Law: Civil and Common Law Approach with Special Reference to the American and German Legal System, n. 8, at 147–148) distinguishes between this example and another example which relates to a policy of segregation which was intended to prevent inter-racial violence breaking out in a prison. Insofar as this concerns segregation in prisons for this purpose, it seems that the contribution of the segregation policy is likely to be significant and therefore it cannot be understood as an attempted rationalization for the racist motive.
138. For a discussion see also: Paul Brest, ed. Processes of Constitutional Decisionmaking: Cases and Materials (Colarado, Aspen Law & Business, 1975) 489.
139. For a different approach, according to which, when there is an absolute fit between the means and the ends, it is impossible to deduce the existence of an improper motive see also Note, “Mental Illness: A Suspect Classifications?” (1974) 83 Yale L. J. 1237, 1251.
140. H.C.J. 2056/04 Beit Sourik, Yale L. J., at para. 61. See also what is said in para. 71: “the security advantage which is attained by the route which was determined by the military commander in comparison to the alternative route cannot be a consideration at all for additional injury to the life of the local inhabitants.”
141. Yale L. J., at para. 41
142. Yale L. J., and also at para. 44
143. To the best of my knowledge, this is first time that courts in Israel or worldwide refer to the proportionality test in the strict sense. It is interesting to note that when the High Court of Justice in a ruling following the ruling regarding the fence, applied the proportionality test in the strict sense it makes no mention at all of what Barak called “the relative manner of proportionality in its strict sense”. See, for example, the ruling H.C.J. 5578/02 Mor and Others v. the Minister of Finance (delivered on 9.9.04 and not yet published), which dealt with the constitutionality of the cut in old-age pensions. In para. 16 of this ruling, Chief Justice Barak presents the proportionality test in its strict sense, but only in its ordinary sense (balancing in absolute values): “was a means chosen whose injury to the individual does not stand in a reasonable relation to the benefit that arises from it?”.
144. Less Drastic Means, H.C.J., at 468.
145. See also Davidov, H.C.J.
146. To the benefit of the court in the case of the fence, it should be said that it acts transparently and more correctly when it admits that judicial_work involves an extent of balancing and hence a certain diminution of the ability of the authorized authority to realize its policies. A judicial stance such as this, is more desirable than a judicial stance that masks a certan amount of substantive balances by means of an application of the necessity test. See Davidov, et al, H.C.J. at 81.
147. H.C.J. 2056/04 Beit Sourik, H.C.J., at para. 67. See also the discussion in paras. 76–80 of this ruling.
148. H.C.J., at para. 48.
149. For a discussion of the expertise of jurists in proceedings and in fact-finding see Ely, H.C.J., at 102–103.
150. The court does, however, mention the “margins of appreciations” doctrine in the normative part of the ruling, (H.C.J. 2056/04 Beit Sourik, H.C.J., at para. 42), yet consideration of these margins is entirely absent from the implementation part of the ruling.
151. A ruling that replaces the judgement and discretion of the military commander is liable to encourage the settlers as well to petition to the High Court of Justice based on the grounds that the fence's route does not ensure their right to life. Legal reasoning, based on balancing thus increases the number of cases when the court will be required to decide on questions of policy, thus leading to a danger of politicization of the Court rulings. On the potential of claims regarding the lack of proportionality of the fence in the manner that it also harms the settlers see Yuval Yoaz “An Injury to the Paletinian Quality of Life? A strange claim?” Haaretz, 29.8.04 [in Hebrew], this article is available at: http://www.haaretz.co.il/hasite/pages/ShArtPE.jhtml?itemNo=470454&contrassID=2&subContrassID=2&sbSubContrassID=0.