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Published online by Cambridge University Press: 04 July 2014
Israel Women's Network v. The Government of Israel (1994) 48(v) P.D. 501
The petitioner, the Israel Women's Network, petitioned the Supreme Court of Justice against the appointment of a new member to the Ports and Railways Council and against the appointment of two new directors on behalf of the State to the board of directors of the State-controlled Oil Refinery. All three of the new appointees were men, such that neither of the two councils included a single woman in their composition. The petitioner disputed the constitutionality of these appointments arguing that in the particular circumstances and in line with sec. 18A of the Government Companies Law, the appointees ought to have been women. By a majority decision the Supreme Court held that the respondent did not fulfill the duty of affirmative action required by sec. 18A of the Law, and that the cancellation of the appointments made was justified.
Doctoral student, Faculty of Law, The Hebrew University of Jerusalem
1 29 L.S.I. 162 as amended in Amendment 6 (1993) S.H. no. 1417, p. 92.
2 S.H. 1992, no. 1391, p. 150, as amended S.H. 1994, no. 1454, p. 90.
3 Before the instant case, the issue of affirmative action for disadvantaged groups was not cleared up by the Court. A single case in 1989, concerning an act of affirmative action extended to Bedouins was the only case that recognised the concept of affirmative action, if implicitly, and paved the way for the recognition of the true doctrine of affirmative action. See Avitan v. The Land Authority (1989) 43(iv) P.D. 297.
4 After the enactment of the Law in 1993, the number of women directors sitting on the boards of government companies rose from 2% to 10%, a fact that in itself reflects the need for the continued institution of such a program of affirmative action.
5 Raday, Frances, “On Affirmative Action”, (1995) 3 Mishpat Umimshal 145, at 171.Google Scholar
6 Ibid., at 15–151.
7 The literal translation of the Hebrew term would be “remedying favouritism”.
8 5 L.S.I. 171.
9 Although they may not be conscripted into combat units directly, according to the Defence Service Law (Consolidated Version), 1986 (40 L.S.I. 112), consonant to their abilities and the circumstances, women are not specifically barred from volunteering to serve in any branch of the military.
10 Firstly, according to the Law, while men must serve for thirty months, women serve for only twenty-four. In addition, the requirement of women to serve reserve duty is greatly reduced: while men must serve until age 54, women are exempt from reserve duty in the event of marriage, pregnancy, or childbirth, or upon reaching the age of 38. It is upon these differences that the respondent bases its argument.
11 According to the dissenting Tal J., the reason that the policy before us may be considered “differentiation” as opposed to “discrimination” is the economic and organisational considerations — limited budget of the Israeli Air Force, and, what he considers to be, logical and reasonable evaluations of the respondent.
12 The reference to the Declaration of Independence did not appear in the original Basic Law and was only added in 1994 when the Basic Law was amended. It appears that many Knesset members were either unaware of this inclusion or were unaware of its significance, hence the opposition of many Supreme Court justices to such a construction. Regarding the term “sex” as opposed to “gender”, see editorial commentary on the Women's Network case, supra.
13 Opposition to this construction rests on the fact that the right to equality was explicitly not included in the Basic Law: Human Dignity and Liberty, for political reasons as explained in the excerpts below. Hence, justices who take this path have often been accused of unwarranted judicial activism.
14 (1951) 5(H) P.D. 1061.
15 Suasmann J.: “In applying the duty of compulsory service to women, the Israeli legislature broadened the contours of enlistment accepted in the world, however, since the woman is not capable of performing every duty of which the male soldier is capable, and also because of the desire to listen to the views of a portion of the population, the woman is not obligated to perform the same service requirements as the man. Herein lies the reason behind the releasing of the married woman from the obligation to serve, as well as other privileges granted to the woman, for example, the obligation to serve terminates for a woman when she reaches age 34, while a man must serve until age 49”.
16 Kedmi J. does, in principle, agree with Mazza J.'s approach that it would be fitting that the Air Force put its assumptions to the test, as much as the security conditions allow for this. However, he holds that the decision of when and how such experimentation be made possible, ought to be left entirely in the hands of the military, without any judicial intervention.
17 Editorial comment: note that the Justice uses the term “childbirth” while the Law itself talks of “motherhood”.
18 Strasberg-Cohen J. goes on to apply a balancing test between the two values: equality and public security. In our case, the higher value (military needs and public security) overwhelms the lesser value (equality), only where there exists near certainty of an actual harm and actual damage to state security. The Air Force policy regarding the enlisting of women does not meet these requirements. Moreover, the policy does not meet the requirements of the less stringent balancing test, namely, reasonable likelihood of actual harm. The difficulties referred to by the respondent under the title of “logistic, organisational considerations”, are partly — in the final analysis — economic, and partly based on speculations regarding the future. The military administration has no previous experience to back up its fears, not regarding the ability of the Air Force to absorb women pilots; not regarding the number of requests to be accepted into the Air Force, nor of their success; and not regarding the expected harm that will ensue if the pilots' course is opened to women. Moreover, in evaluating whether the expected harm justifies the infringement of the human right, it is necessary to compensate for the chance that the damage will not occur at all. “In our case there is a good chance that the damage will not ensue”, (para. 12) Even if a near likelihood of damage had been proved, one must examine possible, less harmful alternatives. The gradual and controlled absorption of a limited number of women into the Air Force, and the continued examination of the effects on the military, will significantly decrease any chance of harm or damage. Instead of blocking the way of all women to pilots' courses, one may — in the first stage — take the less drastic path of “trial and error”, (para. 15) In the instant case, there is no reason to believe that the appellant will not fulfil her undertakings. Nonetheless, ifin the future it happens that for personal reasons she cannot fulfil her obligations, her situation will be like that of a male pilot who for some reason is unable to fulfil his long-term obligations. The military administration must take such possibilities into account when planning.
19 Supra n. 8.
20 18 L.S.I. 165.
21 (1988) S.H. no. 1240, p. 38.
22 MacKinnon, C.T., Toward a Feminist Theory of the State (Mass., 1989) 221.Google Scholar
23 8 L.S.I. 128.
24 5 L.S.I. 125.
25 In applying the criterion of a “proper purpose” to the instant case, Dorner J. mentions that while the protection of women may be considered an important social purpose, it cannot be used as a basis for discrimination against women. Nonetheless, she concedes that budget and planning considerations asserted by the respondent may be considered relevant, or “a proper purpose”.