Case Number

CA 8573/08

Date Decided

10-2-2013

Decision Type

Appellate

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.]

The Appellants – Israeli citizens registered in the Population Registry as members of different nationalities (some registered as Jewish, and some as members of other nationalities: Arab, Druze, Buddhist, Burmese, etc.) – petitioned the Jerusalem District Court for a declaratory order stating that they are members of an Israeli nationality, in hopes that such a decision would serve as official document for modifying the nationality marker on their registration in the Population Registry. The District Court rejected the petition ruling that the petition was a de facto request that the Jerusalem District Court find that a new nationality, common to all its citizens and residents, was formed in the State of Israel – an “Israeli” nationality. This issue, the lower court found, was a national-social issue whose legal aspect is insignificant to its non-legal aspects. Therefore the lower court found held that this issue is not justiciable in the institutional sense (as opposed to the normative sense). Hence this appeal.

The Supreme Court (opinion by Justice Vogelman, with Justice Melcer and President Grunis, concurring) rejected the appeal for the following reasons:

Justice Vogelman discussed the theoretical complexity and institutional sensitivity of examining the existence of an “Israeli nationality,” which involves fundamental questions concerning the State of Israel and the Jewish people. These questions include the relationship between religious identity and national identity; the competing theoretical approaches to the idea of “nationality” and their application here; the connections between the State of Israel and Diaspora Jews; the relationships between different groups of citizens and their national identity. Indeed, this sensitivity warrants restraint in applying judicial discretion. The natural setting for these discussions is not within the walls of the court, but other spaces of public discourse and academic writing. This is what led the lower court to rely on the institutional justiciability doctrine.

That said, Justice Vogelman believes that the lower court’s position on institutional justiciability should not stand. Issues concerning the content of religion and nationality markers in the Population Registry (and specifically the question of “who is Jewish”?) have been brought before this Court even at its earliest days.

In CA 630/70 (“The Tamarin Decision”), which is an early incarnation of this matter, then President Agranat held, first, that in order to grant a declaratory order about one’s membership of a certain nationality, there must be objective evidence about the existence of that nationality. A subjective belief is insufficient for a legal determination that a certain nationality exists for purposes of registering a nationality marker in the Population Registry. Second, President Agranat held that there was no evidence that an “Israeli” nationality was formed in the State of Israel that is separate and distinct from the Jewish nationality.

Though this Court reiterated in the past that the Population Registry is not the appropriate space for determining sensitive matters of religion and nationality, and stated expressly that its rulings on this matters should not be considered a material determination of these questions on their merits. However, the notion that these are not justiciable matters remains that of the minority.

Relying on precedent regarding the technical nature of registration in the registry, the Court did not shy away from extending a helping hand to those who approach the Court, even when the matters involved “sensitive” issues of conversion, Jewish law, religious identity and national identity. More importantly, in the Tamarin Decision, this Court addressed on its merits a similar issue to the one at hand, and ruled that the existence of an “Israeli” nationality was not proven by objective criteria.

The Appellants argue that the Tamarin Decision has become obsolete. The primary target of their claims is the Tamarin Court’s finding that an “Israeli” nationality does not exist as separate and distinct from the Jewish nationality. The Appellants do not dispute that the first holding in Tamarin is yet applicable.

Though institutional consideration should not lead to a determination on an issue’s justiciability, they may have bearing on this Court’s willingness to again pronounce on the same issue. Therefore, if the Appellants are asking that we stray from the holdings in Tamarin, they must meet a significant burden that requires – sadly – presenting arguments that were not examined at the time by this Court and point to a clear need for change. These were not presented and so the Appellants have not met their burden to show that straying from the judicial findings of the Tamarin Decision are justified.

Additionally, Justice Vogelman believes that even without straying from the Tamarin Decision, existing law already provides the Appellant with the means to identify – to themselves and to the world – as Israelis vis-à-vis their Israeli citizenship, which would continue to be registered in the Population Registry, regardless of the nationality marker. This is possible through following the proper process for removing the registration in terms of the nationality marker, according to the Shik decision.

Justice Melcer joined in rejecting the institutional non-justiciability argument as it pertains to this case and in concluding that the Appellants did not meet their burden to show that straying from judicial findings from the Tamarin Decision are justified. However, he presents his approach on issues where he is not fully united with Justice Vogelman.

Among others, Justice Melcer finds that the Appellant failed to demonstrate that in the years since the Tamarin Decision an “Israeli nationality” has developed (factually or legally) in Israel, which – per their argument – includes members of different religions, or those without religion, or those who belong to different ethnic groups.

That said, Justice Melcer opposes Justice Vogelman’s suggestion that the Appellants may proceed to remove the nationality registration. First, as this is not requested by the Appellants in this proceeding, and second, because – as opposed to citizenship or religion, which may be renounced, or changed, and for which there normally is an institution or “ceremony” that facilitates or approves the renunciation or conversion – a nationality is generally very difficult to “renounce” (as a child cannot, in principle, renounce its parents.)

Additionally, Justice Melcer emphasizes that Justice Agranat’s conclusion in his monumental opinion in Tamarin that “the existence of an ‘Israeli nationality’ was not proven in the legal sense and the development of new ‘fractions’ of nationality should not be encouraged” still hold force.

President Grunis joins the conclusion that the Tamarin Decision applies on the matter at hand and that it has not become obsolete. Therefore, he does not see a need to pronounce on whether the District Court was correct in rejecting the Appellants’ petition based on lack of institutional justiciability. The President abstained from expressly addressing Justice Vogelman’s suggestion that the Appellants’ nationality marker in the Population Registration would be removed and remains blank – as the Appellants did not raise this option at all.

Keywords

Constitutional Law -- Law of Return, Constitutional Law -- Nationality, Justiciability

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