Case Number

HCJ 7625/06

Date Decided

3-31-2016

Decision Type

Original

Document Type

Full Opinion

Abstract

The Petitioners arrived in Israel from different places throughout the world, and while in Israel, underwent the conversion in an Orthodox community that did not operate within the framework of the state conversion system. The question that must be decided is whether these petitioners should be recognized as Jews for the purpose of the Law of Return. The Respondents argue that from an interpretative point of view, the Law of Return was not intended to apply to a person who converted while already living in Israel, and that a conversion performed in Israel should not be recognized unless it was conducted within the framework of the state conversion system.

The Supreme Court, sitting as the High Court of Justice, ruled:

President Naor: The question of the application of the Law of Return to converts who were living in Israel prior to their conversion has already been addressed in Rodriguez-Tushbeim v. Minister of the Interior. The fundamental decision in that case still holds: the Law of Return applies to a person who came to Israel, and converted while living lawfully in Israel. There is no justification for departing from that rule.

The Respondents’ approach lacks any support in the language of the Law. In this regard, we cannot accept the argument that the provision of sec. 3(a) of the Law of Return, establishing that “A Jew who has come to Israel and subsequent to his arrival has expressed his desire to settle in Israel may, while still in Israel, receive an oleh's certificate” represents a negative arrangement in regard to a person who comes to Israel when he is not a Jew. The conclusion required by purposive interpretation of the Law of Return is that it is, in fact, a positive arrangement.

The approach of the Respondents is incompatible with the purpose underlying the Law, i.e., immigration and the Ingathering of the Exiles. In addition, this approach has consequences that are not egalitarian, and for this reason, too, it cannot be accepted. As has been held, it would be unlawful discrimination for one person to be considered an oleh because he converted and later settled in Israel, while another person who wished to settle in Israel would not considered an oleh only because his conversion occurred after he settled in Israel. Both converts joined the Jewish people and settled in the State of Israel; they are both children returning to their homeland. The difference in the “timetable” of the conversion and the immigration is irrelevant for the purposes of the Law, and the Law should not be interpreted in such a way as to lead to such unlawful discrimination.

True, the purpose of encouraging immigration is not the only purpose that the Law of Return was designed to realize. Underlying the Law is also an objective purpose that concerns abuse of the right to acquire status by virtue of Return. However, it is doubtful whether the approach of the Respondents realizes this purpose, and in any case, it does not constitute the only or the optimal solution to the problem. First, concern about abuse of the Law does not exist only with respect to those converting in Israel. Second, concern about abuse of the Law can be dealt with by increasing the oversight and supervision of a person who wishes to realize his right to status by virtue of Return, such that conversion that is not sincere will not be recognized. This, however, will not affect the rights of sincere converts.

The requirement that the arrangements in the Law of Return be invoked in good faith and without abuse justifies limiting the application of the Law only to a person who was living in Israel lawfully at the time of his conversion. The Law of Return will not apply to a person who underwent conversion while he was knowingly living in Israel unlawfully. For the purpose of the application of the Law of Return, the type of visa held by the convert is irrelevant. If a person was in Israel lawfully at the time of his conversion – the Law applies to him.

We cannot accept the Respondents’ position that the concept of conversion under the Law of Return refers only to conversion in the framework of the state conversion system. First, this approach has no support in the language of sec. 4B. True, the language of the Law inserts almost no content into the concept of conversion. However, sec. 4B must be interpreted in light of the Law in its entirety. Against the backdrop of the context of the provisions of the Law of Return, it may be said that conversion in the context of this Law is a public-civil act. Hence, a certain degree of oversight of the recognition of conversion is necessary. However, the language of the Law does not specify the nature of that oversight and the conditions under which conversion will be recognized. It certainly does not necessitate that oversight be achieved by means of recognizing only conversion by the state conversion system.

Examination of the purpose of the Law also indicates that the Respondents’ approach must be rejected. The purpose of sec. 4B of the Law is to encourage every Jew to immigrate to Israel and to settle in the country. This is so whether he is a Jew from birth or whether he has chosen to affiliate to the Jewish people through conversion. In this, the provision comports with the general purpose of the Law of Return, which is, as stated, the Ingathering of the Exiles. Let there be no mistake: in addition to encouraging immigration, the Law of Return also reflects the purpose of establishing the unity of the Jewish people in Israel and abroad. The interpretation proposed by the Respondents does not realize these purposes. It significantly limits the right of immigration and does not attribute weight to the variety of Jewish communities that exist, and it therefore cannot be accepted.

Make no mistake: the approach whereby the expression “has become converted” refers to any person whom three Jews have declared to have been converted by them is likewise unacceptable. It is clear from the purpose of the Law that the expression “has become converted” in the Law of Return embraces an objective test of public recognition of the process of the conversion. The criterion that should be adopted is that which was adopted for the purpose of recognition of a conversion conducted abroad: the criterion of the recognized Jewish community. This criterion successfully combines realization of the purpose of encouraging immigration and the unity of the Jewish people on the one hand, and oversight of the public aspect of conversion on the other. It is also in keeping with the general, objective purpose underlying the Law of Return, which is concerned with ensuring egalitarian outcomes.

Therefore, the term “converted” in the Law of Return must be interpreted as conversion under the auspices of a recognized Jewish community, in accordance with its established criteria. As has been ruled, “recognized Jewish community” means an established, active community with a common, known Jewish identity, which has fixed frameworks of communal administration and which belongs to one of the streams recognized by the international Jewish community. The Orthodox communities in which the Petitioners were converted comply with the definition of recognized communities, as they are established and have a common, known Jewish identity.

The state conversion system was established in the framework of the Government’s residual authority. It is a well-known principle that residual authority cannot serve as the basis for violating human rights. Furthermore, residual authority does not include the authority to determine primary arrangements. Recognition of conversion for the purpose of the Law of Return is a primary arrangement. This arrangement should be made by the legislature and not by the administration. For these reasons, it was not found to be within the residual power of the Government to determine that only conversion within the framework of the state conversion system is conversion according to the Law of Return.

Oversight of the sincerity of conversion is not exhausted by the one and only possibility offered by the Respondents, which proposes the recognition of state conversion alone. The Respondents have multiple tools for addressing the concern of abuse, by way of individual, careful examination of the sincerity of the conversion, and by attributing weight to the objective facts surrounding the process of conversion, including the circumstances of the convert’s entry into Israel and the type of visa on which he entered. In any case, the requirement that the conversion be conducted in a recognized Jewish community allays, to a great extent, concern about abuse.

On the said basis, the petition of the Petitioner in HCJ 7625/06 is denied. The other petitions are granted, and the petitioner in HCJ 1594/11 and the petitioner in HCJ 1595/11 were held to be Jews for the purpose of the Law of Return.

Justices Danziger, Vogelman, Joubran and Hayut concurred.

Justice Melcer concurred, adding: In administrative law, abuse of a right on the part of others in the past, or a concern about such abuse in the future, does not justify the withholding of a right from a person seeking it in good faith. Refusal of the authority in such a case is tainted by unreasonableness and non-proportionality. This principle applies even more strongly in constitutional law, when what is involved are fundamental constitutional rights.

The Right of Return is a fundamental constitutional right that derives from the Jewish character of Israel, which is defined as a Jewish and democratic state. As such, this right is granted to every Jew. Just as the Law of Return does not present a monolithic view of every person born of a Jewish mother, so there cannot be a monolithic view of every person who has converted.

Justice Amit tended towards the minority opinion in Rodriguez-Tushbeim, according to which the Law of Return applies to a person who was Jewish before he came to Israel. However, since this extremely important decision was decided by a panel of eleven justices, Justice Amit concedes and does not find cause to deviate from that ruling. He concurs in the conclusion whereby recognition of conversion should not be confined to the state system alone.

Deputy President Rubinstein: The difficulty with the position of the President, at this time, lies in the fact that we are lending a hand to discord on the subject of conversion – an important subject in the Israeli experience as a Jewish and democratic state. Thus, recognition that grants status should come from the state, and it should be done in a manner that is friendly to the convert and as broad-minded as possible so that its outcome will apply to all Jewry. This is not something unattainable. The decision proposed by the President should be accepted with a deferment for 18 months, during which the Knesset will be able to establish by law a state conversion system that is harmonious, appropriate and fair both regarding the halakhah and respecting all sectors of our nation, at some level of centralization or decentralization, for otherwise, the responsibility will be borne by the political system.

Justice Hendel: “Conversion” is at base a religious term. Analysis of a concept with clearly religious roots requires addressing the halakhic position. To be clear, the roots of the institution of conversion are planted in the two-pronged philosophic and halakhic legacy of Jewish law, and at the same time, in a legal process. Interpretation of the term “has become converted” in the Law is required in order to give expression to these elements, while scrupulously preserving the frameworks, including an understanding of our role as the Supreme Court and not as a religious beth din [rabbinical tribunal].

The language and purpose of the Law do not entrench a position that would comprehensively negate the status of conversions conducted by private Orthodox religious tribunals. On the contrary: from the point of view of the purpose of the Law of Return, it would appear to be more correct to expand the possibilities of conversion – while giving expression to different halakhic approaches, and to rabbis with different outlooks who fall within the Orthodox framework. Creating over-centralization and granting an absolute monopoly to the Chief Rabbinate over the institution of conversion contradict the main purpose of the Law of Return, which is to encourage immigration. As such, the term “has become converted” must be interpreted broadly, in a way that includes every Orthodox conversion that was conducted in a beth din composed of rabbinic judges of stature.

This outcome is necessitated not only by the specific purpose of the Law of Return, but also by its general objective purpose, as derived from the basic principles of the system. There are substantive disputes even in the world of halakhah, certainly on the issue of conversion. Preferring a particular halakhic approach, while dismissing other approaches that exist in the halakhic-Orthodox arena is not an outcome that can be defended in the present legal situation. The state was not authorized to make such distinctions. Neither is this consistent with the values of the State of Israel as a Jewish and democratic state. Jewish, because the approach of the halakhah throughout the generations has supported pluralism in conversion proceedings, and democratic, due to the wrong in preferring the positions of one Orthodox group over those of another, in violation of equality and of the rights of those entitled to Return.

Keywords

Constitutional Law -- Law of Return, Jewish Law -- Conversion

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