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The Formal and the Substantive Meanings of Proportionality in the Supreme Court's Decision Regarding the Security Fence

Published online by Cambridge University Press:  04 July 2014

Moshe Cohen-Eliya
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Abstract

In Beit Sourik the Israeli High Court of Justice struck down most of the planned route for the security fence to be established north of Jerusalem. The Court ruled that the military commander did not properly balance the contribution of this route to the security of the State and the extent of the injury to the rights of the Palestinian inhabitants of the area. It was therefore ruled that this route did not comply with the requirement of proportionality in its strict sense. At the same time, the Court rejected the claim of the petitioners that the motive underlying the determination of the fence's route was a desire to establish a border (a political consideration) and not a security consideration.

This article criticizes the Court's line of reasoning. I argue that the Court erred in striking down the planned route of the security fence on the ground of not fulfilling the requirement of proportionality in the strict sense. The vague nature of this requirement may cause judicial decisions to assume a subjective character, thus violating the democratic principle according to which fundamental decisions should be determined by the people's elected representatives. Given the suspicious circumstances that had led to the determination of the fence's route, the Court should have applied a different kind of reasoning. Instead of balancing the State's security issues and the Palestinians rights, the Court should have carefully scrutinized whether the security purpose was authentic. Judicial review, based on these premises, increases governmental transparency and thus better complies with democratic principles.

Type
Research Article
Information
Israel Law Review , Volume 38 , Issue 1-2: Special Double Issue: Domestic and International Judicial Review of the Construction of the Separation Barrier , Spring Winter 2005 , pp. 262 - 291
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2004

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Footnotes

*

Senior Lecturer, Academic College of Law (Ramat-Gan). I would like to thank Iris Canor, Yoav Hammer and Yuval Shany for their important comments. I would also like to thank the Minerva Center for Human Rights for funding this research, and the Max Planck Institutfor Comparative Public Law and International Law for affording me excellent conditions to conduct this reseach in Heidelberg, Germany.

References

1 H.C.J. 2056/04 Beit Sourik Village Council v. The Government of Israel 58(5) P.D. 807. 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 (2005) 38 (1-2) Is.L.R. 83.

2 For a survey see Beatty, David, ed. Constitutional Law in Theory and Practice (Toronto, University of Toronto Press, 1995)CrossRefGoogle Scholar; Beatty, David, ed. Human Rights and Judicial Review: A Comparative Perspective (Leiden, Martinus Nijhoff Publishers 1994)Google Scholar.

3 Sachs, Michael, ed. Grundgesetz GG Kommentar (Warenneulieferung in Kürze, 1996) 95 Google Scholar;; Beatty, David, The Ultimate Rule of Law (Oxford, Oxford University Press, 2004) 63 CrossRefGoogle Scholar.

4 Lowell, Jefferey and Lester, Anthony, “Proportionality: Neither Novel, Nor Dangerous” in Jowell, J.L. and Oliver, D., eds. New Directions in Judicial Review (London, Stevens and Stevens, 1988) 51, 54 Google Scholar.

5 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.”

6 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 Dworkin, Ronald, Taking Rights Seriously (Cambridge, Harvard University Press, 1977) ch. 2, 4Google Scholar; Dworkin, Ronald, Law's Empire (Cambridge, Harvard University Press, 1986) 438 Google Scholar

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10 Ibid., at 70

11 Weber viewed formal rationality as a sort of “twin brother of liberty” since it prevents arbitrary actions by the government. See Weber, Max, Diskussionerede zu dem Vortag von H. Kantorowicz Rechtwissenschaft und Soziologie, Gesammelte Aufsatze zur Soziologie und Sozialpolitik (1924) 477–481 Google Scholar. The translation into English of parts of this article can be found in Jabloner, Arthur and Schlink, Bernhard, eds. Weimar: A Jurisprudence of Crisis (Berkeley and London, University of California Press, 2000) 50, 53 Google Scholar.

12 Tribe, Lawrence, American Constitutional Law (Mineola, NY, The Foundation Press, 2nd ed., 1988) 1451 Google Scholar; Beatty, supra n. 2, at 96.

13 Ely, supra n. 8, at 147-158.

14 The various constraints which are dictated by the public debate, create for the courts what Elster calls the “educative power of hypocrisy”, see Elster, Jon, “Introduction” in Elster, Jon, ed. Deliberative Democracy (Cambridge, Cambridge University Press, 1998) 12 CrossRefGoogle Scholar.

15 Weber, supra n. 8, at 49-58. More about the distinction between different types of rationality in the works of Weber, see Kalberg, Stephen, “Max Weber's Types of Rationality/Rationalization: Cornerstones for the Analysis of Rationalization Processes in History” (1980) American Journal of Sociology 1145, 1151–1159 Google Scholar.

16 Alexy, Robert, A Theory of Constitutional Rights (Oxford, Oxford University Press, 2002) 50–56 Google Scholar.

17 Kommers, Donald, The Constitutional Jurisprudence of the Federal Republic of Germany (North Caroliina, Duke University Press, 2nd ed., 1997) 1 Google Scholar.

For a comprehensive discussion of the theoretical and constitutional meanings of this values regime, see Dreier, Horst, Dimensionen der Grundrecht – Von der Wertordnungsjudicature zu den Objective Rechtlichen Grundrechtsgehalten (Hannover, 1993)Google Scholar. 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” ibid., at 19.

18 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)Google Scholar, para. 5III of the verdict. a translation into English of parts of this decision can be found in Kommers, supra n. 17, at 301-304.

19 See Weber, supra n. 9, who notes that focusing concentration on formal rationality alone is liable to lead to moral distortions. Also see, Mautner, Menachem, The Descent of Formalism and the Ascent of Values (Tel Aviv, Ma'agaley Da'at 1993) 17 [in Hebrew]Google Scholar.

20 Kommers, Donald, “The Randolgh W. Thrower Symposium: Comparative Constitutionalism: German Constitutionalism: A Prolegemenon” (1991) 40 Emory L.J. 837, 861 Google Scholar.

21 Georing, Hermann, “Fundamental Consitutional Rights: Content, Meaning and General Doctrines” in Karpens, Ulrich, ed. The Constitution of the Federal Republic of Germany (Baden-Baden, Nomos, 1988) 50, 58 Google Scholar; Kommers, supra, n. 17, at 39.

22 Denninger, Erhard, Freiheit – Wertordnung – Pflichtordung: Zur Entwicklung der Grundrechtjudicatur des Bundesverfassungsgericht Juristenzeitung 30 (1975) 545 Google Scholar; Georlich, H., Wertordung und Grundgasetz (1973) 140 Google Scholar; Stern, K., Das Staatsrecht der Bundesrepublik Deutchland (1988), Band III/1, 913 Google Scholar.

23 Zeidler, Wolfgang, “Grundrechte und Grundenscheidungen der Verfassung im Widerstreit im Verhandlungen des” (1980) 53 Deutschen Juristentages 133 Google Scholar; and Georlich, ibid., at 1-29

24 Lerke Osterloh, Art. 3 GG, in Grundgesetz, Kommentar, supra n. 3, at n. 22.

25 Schmitt, Carl Die Tyrannei der Werte” Sekularization und Utopia: Ernst Forsthoff zum 65. Geburtstag Deoring und Greve Hrsg., 1967 37, 45 Google Scholar.

26 Emiliou, Nicholas, The Principle of Proportionality in European Law: A Comparative Study (London, Kluwer, 2004) 35 Google Scholar.

27 Hogg, Peter, Constitutional Law of Canada (Toronto, Carswell Legal Publisher, 2003) 816 Google Scholar.

28 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).

29 C.A. 6821/93 Bank HaMizrahi Ltd. v. Migdal 49 (4) P.D. 221, 347.

30 See, the introduction to the book: Elster, Jon and Slagstad, Rune, eds. Constitutionalism and Democracy (Cambridge, Cambridge University Press, 1988)CrossRefGoogle Scholar and the references presented there, ibid., 1-19.

31 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, Gunther, Gerald, “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 Google Scholar. 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: Bork, Robert, The Tempting of America: The Political Seduction of the Law (New York, The Free Press, 1990) 194–199 Google Scholar.

32 Note, , “Less Drastic Means and the First Amendment” (1969) 78 Yale L.J. 464, 468 Google Scholar (“by definition, the less drastic alternative will inhibit less than the policy embodied by the statute before the court”).

33 Davidov, Guy, “Separating Minimal Impairment from Balancing: A Comment on R. v. Sharpe (B.C.C.A.)” (2000) 5 Rev. Const. Stud. 195 Google Scholar.

34 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; and H.C.J. 1715/97 The Investment Managers Office in Israel v. The Minister of Finance 51(4) P.D. 367, 422-423. For a comparative survey see: Dorner, Dalia, “Proportionality” in Barak, Aharon and Berenson, C., eds. Berenson Book, (Jerusalem, Nevo, 2000) vol. 2, 281 [in Hebrew]Google Scholar. 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, Baker, Edwin, “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 Google Scholar.

35 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 Struve, Guy M., “The Less Restrictive Alternative Principle and Economic Due Process” (1967) 80 Harv. L. Rev. 1464, 1463CrossRefGoogle Scholar, Bice, supra n. 7, at 39; A less-drastic-means, supra n. 32, at 467.

36 For an argument from democracy against the application of customary international law in domestic law see Bradley, Curtis A. and Goldsmith, Jack L., “Customary International Law as Federal Law: A Critique of the Modern Position” (1997) 110 Harv. L Rev. 815 CrossRefGoogle Scholar.

37 A reflection in this spirit can be found in Kretzmer, David, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (New York, SUNY, 2002) 187–198 Google Scholar.

38 This is all, of course, under the assumption that the judicial review by the international forums is ineffective.

39 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”). 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).

40 Handyside v. United Kingdom Judgment of 7 Dec. 1976, A.24, p. 22 (Europe); R. v. Edward Books and Art [1986] 2 S.C.R. 713, 772 (Canada); Metro Broadcasting Inc. v. FCC, 497 US 547 (1990) (United States, using the term deference). The doctrine of the margins of appreciation was first applied in Israel in Bank HaMizrahi, supra n. 29, at 439. See also, H.C.J. 4769/95 Menachem v. the Minister of Transport 57 (1) P.D. 235, 285; H.C.J. 3472/92 Brand v. the Minister of Communications 47(3) P.D. 143, 153; H.C.J. 240/98 Adalah v. the Minister for Religious Affairs 52(5) P.D. 167, 189-191.

41 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, Hovious, B. “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 Google Scholar. This consideration is irrelevant in Israeli law.

42 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; Ireland v. United Kingdom, judgment of 18 January 1978, ECtHR, Series A, no. 25. 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.”

43 Davidov, Guy 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 Google Scholar.

44 Korematsu, supra, n. 28. 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”. See for example, Lin, E., “A Case Comment: Korematsu Continued…” (2003) 112 Yale L.J. 1911, 1914 CrossRefGoogle Scholar.

45 For example, H.C.J. 680/88 Schnitzer 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.

46 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. See The Attorney General of Quebec v. Irvin Toy Limited [1989] 1 S.C.R. 927, 993-994, 999.

47 In the case of Dudgeon, ibid., 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. For a discussion see: Yourow, Howard, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (New York, Springer, 1996) 91 Google Scholar; Mahoney, Paul, “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 Google Scholar.

48 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.

49 H.C.J. 4541/94 Miller v. the Minister of Defense 49 (4) P.D. 94, 114; H.C.J. 206/94 Nof v. the Minister of Defense 50 (5) P.D. 449-463; see also Barak, Aharon, Interpretation in Law (Jerusalem, Nevo, 1994) vol. 3, 528 [in Hebrew]Google Scholar.

50 H.C.J. 302/72 Hilu v. the Stale of Israel 27 (2) P.D. 159; H.C.J. 606/79 Ayub v. the Minister of Defense 33 (2) P.D. 113; H.C.J. Jamait Ichsan, supra n. 39.

51 For fierce criticism in this spirit see the comments of Justice Scalia in Edwards v. Aguillard, 482 U.S. 578 (1987).

52 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; H.C.J. 3262/95 Poraz v. The Government of Israel. 49 (3) P.D 153, 158; H.C.J. 428/86 Banilai v. The Government of Israel 40 (3) P.D. 505, 593.

53 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.”

54 H.C.J. 392/72 Berger v. The Regional Committee for Planning and Construction 27 (2) P.D. 764, 773.

55 H.C.J. 390/79 Duikat and others v. the Government of Israel and others 37 (1) P.D. 1 20-21.

56 For example, H.C.J. 104/87 Nevo v. the National Labor Court 44(4) P.D. 749, 760-761; N.L.C. 56/3-129 Sharon Plotkin and others v. Eisenberg Brothers Ltd P.D.A. 23, 481.

57 For example, C.A. 217/68 Isramax v. the State of Israel 22(2) P.D. 343; C.C. 3471/87 The State of Israel v. Kaplan P.D.M. 1988 (B) 265; H.C.J. 3872/93 Meatrael v. the Prime Minister 44(5) P.D. 485.

58 H.C.J. 390/79 Duikat, supra n. 55.

59 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. Ibid., at 7.

60 Attached to the petition was the opinion of Brigadier-Colonel (Res.) Haim Bar-Lev and of Major-General (Res.) Matitiyahu Peled. Ibid., at 7-8.

61 For example, an interview with the Deputy Prime Minister, Ehud Olmert in the supplement to “Haaretz” newspaper. Shavit, A., “Maximum Jews, Minimum Arabs”, Haaretz, 13.11.2003 Google Scholar. The article can be viewed at the newspaper's Internet site; http://www.haaretz.com/hasen/pages/ShArtVty.jhtml?sw=olmert&itemNo=360533.

62 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 Ben, Aluf et al. , “The Fence in the South is Delayed because Sharon Ordered it to be Distanced from the Green Line”, Haaretz, 2.9.04Google Scholar. 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&subContrassID=1&sbSubContrassID=0.

63 In the case of H.C.J. 390/79 Duikat, supra, 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.”

64 Ely, supra n. 8, at 146.

65 Rare are the cases in Canada (Hogg, supra, note 27, at 807) and in the United States (Gunther, supra n. 31) 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. See, for example, Romer v. Evans, 116 S.Ct. 1620 (1996).

66 Davidov et al., supra n. 43, at 78.

67 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. 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, supra, n. 27, at 808-809.

68 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.i 15.htm.

69 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, ibid., 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.)

70 H.C.J. 2056/04 Beit Sourik, supra n. 1, at para. 30 of the verdict.

71 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, supra n. 34; Tsemach, supra, n. 68; This is also the situation in Canada (Hogg, supra n. 27, at 810). Also see, H.C.J. 1661/05 The Municipality of Gaza Shore v. The Israeli Knesset.

72 H.C.J. 2056/04 Beit Sourik, supra, n. 1, at paras. 47, 56.

73 Ibid., at 16-20.

74 See for example, H.C.J. 6055/95 Tsemach, supra n. 68, at 268; the C.A. 6821/93 MizrahiBank, supra, n. 29, at 59. 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, Julianne, 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 Google Scholar.

75 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, supra n. 68. 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.

76 Supra at 19-20.

77 See for example, H.C.J. 6055/95 Tsemach, supra n. 68, at 268; the C.A. 6821/93 MizrahiBank, supra, n. 29, at 59. 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, supra n. 74.

78 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, supra n. 68. 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.

79 In the ruling in the C.A. 6821/93 Mizrahi Bank case, supra n. 29, 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.

80 See on this matter the comments of Justice Vitkon in the case of H.C.J. 390/79 Duikat, supra, 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.”

81 H.C.J. 2056/04 Beit Sourik, supra n. 1, at para. 61 (relating to the implementation of the proportionality test in its strict sense).

82 Ely, (supra, 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. For a discussion see also: Brest, Paul, ed. Processes of Constitutional Decisionmaking: Cases and Materials (Colarado, Aspen Law & Business, 1975) 489 Google Scholar. 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 Google Scholar.

83 H.C.J. 2056/04 Beit Sourik, supra n. 1, 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.”

84 Ibid., at para. 41

85 Ibid., and also at para. 44

86 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?”.

87 Less Drastic Means, supra n. 32, at 468. See also Davidov, supra n. 33.

88 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, supra n. 43. at 81.

89 H.C.J. 2056/04 Beit Sourik, supra n. 1, at para. 67. See also the discussion in paras. 76-80 of this ruling.

90 Ibid., at para. 48.

91 For a discussion of the expertise of jurists in proceedings and in fact-finding see Ely, supra n. 8, at 102-103.

92 The court does, however, mention the “margins of appreciations” doctrine in the normative part of the ruling, (H.C.J. 2056/04 Beit Sourik, supra n. 1, at para. 42), yet consideration of these margins is entirely absent from the implementation part of the ruling.

93 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 Yoaz, Yuval “An Injury to the Paletinian Quality of Life? A strange claim?” Haarelz, 29.8.04 [in Hebrew]Google Scholar, this article is available at: http://www.haaretz.co.il/hasite/pages/ShArtPE.jhtml?itemNo=470454&contrassID=2&subContrassID=2&sbSubContrassID=0.