Case Number

HCJ 3914/92

Date Decided

2-10-1994

Decision Type

Original

Document Type

Full Opinion

Abstract

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Petitioner 1 and Respondent 3 were in divorce proceedings. In the context of a suit for marital reconciliation filed by Respondent 3, he requested that Respondent 1 prevent Petitioner 1 from leaving the country. His request was granted. Petitioner 1 requested that the order be vacated because her trip was intended as a vacation with her eldest daughter as well as for conducting business enquiries. Respondent 1 denied the request, holding that the planned trip would result in a final rupture between the spouses. Respondent 2 denied the request of Petitioner 1 to appeal the decision of Respondent 1. That denial led to this petition to the High Court of Justice. The Petitioners argued that the decisions of Respondents 1 and 2 deviated from the case law of the civil courts and were repugnant to the provisions of Basic Law: Human Dignity and Liberty.

The High Court of Justice held:

1. (a) The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, establishes the normative framework of the rabbinical courts' jurisdiction. The law establishes the jurisdiction of the rabbinical courts over matters concerning the personal status of Jews. The substantive law under to which the rabbinical courts rule on personal status matters is Jewish Law.

(b) The Rabbinical Courts Jurisdiction Law does not establish any rules of procedure for the rabbinical courts in matters that are in their jurisdiction. The law according to which the rabbinical courts rule in matters of personal status does not empower any authority to establish procedures for the rabbinical courts.

(c) The argument that authority to establish procedures derives from the substantive law cannot be accepted. The authority to establish procedures derives from the nature of the body’s status as a judicial instance and not from the substantive law by which that judicial instance rules.

2. (a) In the absence of statutory authorization in this matter, the power to establish procedures lies with the rabbinical courts themselves. The origin of such authorization is the inherent jurisdiction of each judicial instance to decide its own procedures.

(b) A judicial instance's inherent power to prescribe procedures is of signal importance. Without it, proper judicial activity would be impossible. This power is broad. It encompasses any matter that occurs in or out of the courtroom that is related to the trial. Particularly due to the broad scope of this power, it should be exercised with great caution.

(c) This ancillary power is not unlimited. By its nature, it operates within the boundaries of procedural law and relates to the matter of the proper management of the judicial proceeding and its proper control.

(d) Inherent jurisdiction – as well as express jurisdiction in procedural matters – is, in essence, governmental authority. Therefore, it must be exercised reasonably, and the judge, like any person exercising governmental authority, must act reasonably.

3. (a) Reasonable exercise of judicial authority means its exercise in a manner that strikes a proper balance among the values, principles and interests that must be considered. These values, principles and interests are not essentially different from those that apply when exercising statutory procedural jurisdiction.

(b) These values, principles and interests, which determine the "environment" of the (statutory or inherent) procedural jurisdiction, change from case to case in accordance with the specific procedural issue at hand. However, a number of typical considerations can be identified as a common thread through the procedural process in general and the exercise of inherent jurisdiction in particular.

(c) Procedural justice is a central consideration. This consideration means, inter alia, perceiving the procedural process as intending to realize substantive law, based upon exposing the truth. Procedural justice requires observing the rules of natural justice, which treat of granting each party an opportunity to voice its arguments, prohibiting bias, and the obligation to state reasons. Rules regarding a fair hearing are also derived from procedural justice. In this context we might note knowledge that a hearing is being held, being granted a proper opportunity to present arguments, fair exercise of procedural powers, as well as open and accessible courts. The efficiency, simplicity and finality of proceedings can also be included in this framework. The aspiration for confidence, stability and certainty in procedural arrangements should also be included.

(d) A typical set of values that must be considered in every procedure is that of human rights. Among these it is necessary, inter alia, to consider a person's dignity and personal liberty. A person's right to privacy and confidentiality must also be considered. Any procedural arrangement must treat the litigating parties equally. It must guarantee freedom of expression, occupation and property. It must ensure the freedom of movement that is guaranteed to every person, and in that framework, the right of every person to leave the country.

(e) When there is an internal conflict among the general considerations in which the procedural authority must be exercised, there is no choice other than to strike a proper balance among the conflicting considerations. In the framework of such a balance, significant weight must be given to considerations pertaining to human rights.

4. (a) Like any judicial instance, the rabbinical court is also granted inherent powers to arrange procedures. When exercising these inherent powers, the rabbinical court is subject to all of the limitations that are imposed upon any judicial instance that exercises inherent powers.

(b) In exercising that authority, the rabbinical court must respect human rights, and like every other judicial forum, it must properly balance all of the conflicting values, principles and interests in each and every issue.

(c) This balance is imposed upon the inherent jurisdiction “from without”, by virtue of the entire complex of values of the Israeli legal system. It reflects the substance and principles of the Israeli legal system of which the rabbinical courts are a part.

5. (a) A citizen’s freedom of movement to leave the country derives from being a free person, from the democratic character of the state, and from being part of the international community in which freedom of movement is recognized as a customary human right.

(b) As against the constitutional right of every person to leave the country stands the interest of a litigant to realize the substantive law. Maintaining proper legal proceedings to ensure substantive rights is a legitimate interest deserving protection by all parties. There is also a public interest that legal proceedings be effective, that suits not be frustrated, and that judgments be executed.

(c) In a situation in which these values conflict, the required balance must reflect the relative social importance of the conflicting interests. The balance should properly be an expression of principle that reflects a decisional framework which comprises “a guideline of value”.

6. (a) The proper constitutional standard is as follows: a litigant may be prevented from leaving the country if there is a sincere and well-founded suspicion that the litigant’s leaving the country would frustrate or thwart the judicial proceeding or prevent the execution of the judgment.

(b) This standard is of a constitutional character. By establishing a causal connection between preventing leaving the country as a constitutional right and the negative effect of the absence upon the judicial proceedings, it expresses a constitutional view of the status of the fundamental principles of our legal system.

(c) The causal connection between the danger and its prevention required by this standard is “a sincere and well-founded suspicion”. Not any possible harm, whether severe or insignificant, can serve to prevent a litigant from leaving the country. The harm must be of a special type, of particular severity, i.e., frustrating the lawsuit in advance through the litigants’s fleeing abroad.

(d) Meeting the said standard is a necessary condition for exercising the authority of preventing a litigant form leaving the country, but it is not a sufficient condition. Procedural rules may impose additional demands. Before exercising its discretion, the court must consider whether there are less drastic means for ensuring the interest deserving protection while not infringing freedom of movement.

(e) The court should exercise this procedural authority with great care. Granting the order must not be routine, and it should properly be granted only when justified by the circumstances. The application of the said standard changes in accordance with the substantive right that the judicial proceeding itself is intended to realize.

(f) The said standard is formulated to take account of the fact that we are concerned with interlocutory relief in the course of a pending proceeding. In such a situation, the standard that should be adopted should be one that tends, as far as possible, to protect the rights of the person who will suffer a certain infringement of rights. In so doing, we express the serious weight of an individual’s right to leave the country.

7. (a) In the framework of their inherent power, the rabbinical courts are free to establish procedural rules consistent with their worldview. However, that procedural freedom is not unrestricted. It is subject to the limits – to which all judicial forums are subjected – that derive from the proper balance of values, principles and interests that reflect the values of the state.

(b) Under the circumstances, the decision by Respondent 1 does not maintain the proper balance between the freedom of movement of Petitioner 1 and ensuring the realization of the substantive rights of Respondent 3 by means of the judicial process.

(c) Under the circumstances, the evidentiary groundwork presented before Respondent 1 did not substantiate a “sincere and well-founded suspicion”. It did not meet the requirement that the Petitioner’s absence from the country would frustrate or thwart the judicial proceeding of Respondent 3 for reconciliation.

(d) The suit for marital reconciliation raises serious problems, particularly in the area of interlocutory relief. To the extent that interlocutory orders are granted in the context of marital reconciliation that do not meet the requirements of proper balancing of the values, principles and interests that must be addressed, the rabbinical court is not authorized to issue a writ ne exeat republica merely because the matter interferes with marital reconciliation.

(e) The Rabbinical Court was not authorized to issue a temporary order prohibiting Petitioner 1 from leaving the country. However, it is authorized to make inferences in regard to the substantive law in the matter of reconciliation from the fact that Petitioner 1 left the country, and from her conduct in the country and abroad.

Keywords

Constitutional Law -- Basic Law: Human Dignity and Liberty, Courts, Family Law -- Divorce, Jewish Law -- Rabbinical Courts, Jewish Law -- Family Law

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