In the 1962 appeal there were 5 judges who did not render identical decisions or reasoning, but there was a 4:1 verdict to reject the application and rescind the order nisi to the Minister of the Interior.
The judges were: Chief Justice Silberg, Justice Landau, Justice Mani, Justice Berensohn; Justice Chaim Cohen gave the minority verdict alone.
Below@@ we summarise some of the more salient points of the written verdict, but first - some indications of how each judge saw the case:
Judge Silberg
Quoting extensively from concepts in Jewish law, his main arguments nevertheless centred on the secular and original nature of the Law of Return, the general understanding of the term Jewish and the conclusion that an apostate is not Jewish. He also said that the modern Zionist in Zion does not deny the heritage of his forefathers.
Judge Landau
An apostate has created a barrier between himself and the national life of the people; the Law of Return is part of the link between Diaspora Jewry and Israel and the unity of the Jewish people.
Judge Mani
Very brief, agreed with judges Silberg and Landau.
Judge Berensohn
it is a serious application and the applicant is proud of his Jewish affiliations; but for the people, an apostate has dissociated himself from the religion, the people and the community of Israel. The same person cannot be both Jewish and Christian.
Judge Cohen
History is one thing: continuity is another since it implies evolution. The latest and greatest historic change for the Jewish people - the creation of the State - implies an evolution of the people's values and definitions. The Law of Return itself includes not objective criteria for deciding whom to register as Jewish with all the accompanying rights, so we must assume it intended the criteria to be subjective, namely a declaration in good faith, such as presented by Rufeisen. This is the limit of its mandate; no exclusions can be accepted for they do not exist within the Law itself; religious considerations or affiliations are irrelevant.
TEXTS OF JUDGES' SUMMATION & VERDICT
Point b(1)
"The opinion that even under Religious Law (Halakha) the convert is not fully one of Israel but rather partially ... Jewish is unnacceptable, and this is the proof - he is not considered one of Israel for the purposes of ... constituting a minyan (prayer quorum of 10).
Point b(2)
"Firstly, from a theoretical point of view, Jewishness is a status (sic), and status is indivisible ... the faith of Israel is like any other faith: its very existence is absolute, all-encompassing and exclusive.
Point b(3)
"Secondly, in terms of substance, too, this view* is not acceptable. It would be absurd if a convert, believing in another G-d, could help to form a minyan where the other worshippers are praying to the G-d of Israel.
(*refers to the view that he is still Jewish for purposes of marriage etc.)
Point c(1)
"It is clear that this* is not the Jew referred to in the Law of Return 1950/5710, but the Jew referred to in the Law of Enactment in the Rabbinical Courts (Marriage and Divorce) 1953/5713 (Document No.8). The latter has a religious interpretation as an instruction set down in the Laws of the People of Israel (Dinei Yisrael); the former has a secular interpretation, as a normal instruction in everyday speech and as used by Jewish people.
Point d(1)
"... This is a secular law, a sort of definition of the term ... which we must explain according to their usual meaning, taking into consideration - for the purpose of deviation from the standard - the legislative goal which inspired the legislators' provisions.
Point d(2)
"Insofar as the above-mentioned Law of Return is an Israeli law and not a law in translation, it is common sense to interpret the use of the term Jewish as we, the Jews understand the meaning and substance of the concept Jew.
Point d(3)
"In the light of the usual Jewish significance of the noun Jew, a Jew who has converted to Christianity is not known as Jewish.
Point d(4) "Therefore, the applicant, despite his many qualities and the sincere love he holds for Jews, which he has proved, cannot define himself as Jewish.
Point e(1)
"Israel is not a theocratic state, for religion does not decide its citizens' lives,but the law. And the case in point will prove this, for if we had applied religious classifications of Jewish Law to the applicant, he would indeed have been considered Jewish.
Point e(2)
"The underlying premise that Jewish and Christian are two mutually exclusive definitions is one on which there is a general consensus, both in common parlance and in learned discussion; no-one considers an apostate to belong to the Jewish nation.
Point f(1)
"The applicant, Brother Daniel, is not a member of the Jewish nation, nor the Polish one either, for he renounced the latter before leaving Poland - he is stateless and shall be registered assuch on his Identity card.
Point f(2)
"The space reserved for ethnic group** under section 4(1) of the Population Registration Ordinance 1949/5709 (document no.6) shall remain empty. Nor is there any anomaly in this since not all applicants for an Identity card are able to complete this section, for example, someone who has no religion."
(** referred to as community or ethnic group in the background article from Achievements and Challenges.)
Note: 37 source articles were quoted in the court records and a number of references for further reading.
tr: G.A.
BACKGROUND DOCUMENTS TO THE CASE:
DOCUMENT #1
Oswald Rufeisen vs. the Minister of the Interior
Before the Supreme Court sitting as the High Court of Justice, for an order of mandamus subsequent to an order nisi.
The applicant was born in Poland in 1922 to Jewish parents and educated in Jewish values. In his adolescent years he was an active member of a Zionist youth organisation and spent two years on a hachshara programme to prepare himself for halutzic aliya. With the outbreak of the war between Germany and Russia (June 1941), he was imprisoned by the Gestapo but managed to escape. After procuring a certificate as a German Christian, he became the secretary and translator at the German police station in Mir, the regional capital. During this time in Mir he would inform the Jews of German moves and plans against the Jews. When he heard that the Germans were planning to liquidate the Mir ghetto, he informed the Jews in the town and surrounding areas, and supplied them with arms. As a result of this warning, many of them escaped from the ghetto and joined the partisans; most of these survivors are alive in Israel today. Rufeisen was denounced and interrogated by his superiors; once again he was imprisoned and once again he escaped. For a long while he sheltered in a convent from where he left to join the ranks of the Russian partisans at the first opportunity. The Russians suspected him of being a German spy and condemned him to death but he was reprieved when one of the Mir survivors came to his defence. He was eventually decorated by the Russians for his partisan activities.
In 1942, during the period at the convent, the applicant converted to Christianity and in 1945 took vows, choosing to enter the Carmelite order, aware that this would eventually enable him to move to a Carmelite monastery in Eretz Yisrael. During our War of Independence and on numerous subsequent occasions, the applicant requested permission from his superiors to be allowed to come on aliya to Israel, but this permission was not forthcoming until 1958. In all those requests to the Polish authorities he emphasised that, despite his conversion to Christianity, he had never ceased considering himself to be an ethnic Jew, bound heart and soul to the Jewish people. The travel document issued by the Polish authorities was of the type granted only to Jews leaving Poland permanently for Israel, so from his country of origin's point of view, he did come to Israel as a Jew. His application for an immigrant's certificate (te'udat oleh) and registration as a Jew in his Identity card (te'udat zehut) was rejected by the Minister of the Interior on the basis of the Government Ordinance of 20/7/58, which determines that only a person who declares in good faith that he is Jewish and does not belong to another faith may be registered as Jewish.
DOCUMENT #2
LAW OF RETURN - ISRAEL BASIC LAW 1950 / 5710
1. Every Jew has the right to immigrate to the country.
2. (a) Immigration shall be on the basis of immigration visas.
(b) Immigrant visas shall be issued to any Jew expressing a desire to settle in Israel except if the Minister of Immigration is satisfied that the applicant:
(i) acts against the Jewish nation; or
(ii) may threaten the public health or State security.
3. (a) A Jew who comes to Israel and after his arrival expresses a desire to settle there may, while in Israel, obtain an immigrant certificate.
(b) The exceptions listed in Article 2 (b) shall apply also with respect to the issue of an immigrant certificate, but a person shall not be regarded as a threat to public health as a result of an illness that he contracts after his arrival in Israel.
4. Every Jew who migrated to the country before this law goes into effect, and every Jew who was born in the country either before or after the law is effective enjoys the same status as any person who migrated on the basis of this law.
5. The Minister of Immigration is delegated to enforce this law and he may enact regulations in connexion with the implementation and for the issue of immigrant visas and immigrant certificates.
[The 'Law of Return' was passed unanimously by the Knesset on 5 July 1950 and incorporated into the state legislation.]
DOCUMENT #3
"WHO IS A JEW" - Barbara Weill
DOCUMENT #4
Oswald Rufeisen's Emigration Application to the Polish Authorities: I, the undersigned, Oswald Rufeisen, and in the monastery Brother Daniel, hereby respectfully apply for permission to proceed to Israel for good and to be issued with a passport.
I base my application on my Jewish national association, which I have preserved despite the fact that in 1942 I accepted the Catholic faith, and in 1945 entered a monastery. I have stated this on every occasion on which I have been officially asked about it, including when I received my military papers and identity card.
I chose a monastery which has a base in Israel in consideration of the fact that I would receive the consent of my superiors to proceed to the country for which I have yearned since my childhood as a member of a Zionist youth group. My national association is known to the church authorities. I believe that by my emigration I will be able to serve Poland, which I deeply love, among its sons scattered throughout the world, including the country to which I am going. I attach a confirmation from the Israel Legation to Poland.
tr: Rosenne.
DOCUMENT #5
Israel Bar Yehuda, Minister of the Interior: Reply to Oswald Rufeisen:
... A bona fide declaration of belonging to the Jewish people should be sufficient for the State of Israel for the registration of that person as a Jew, and has nothing to do with his religion, an issue about which the civil authorities are not competent to make decisions.
Everything I have heard and read about you is sufficient in my eyes and beyond all possible doubt for your rights to apply for and be recognised as a member of the Jewish people - and even had I doubts, because of your special situation, as to the possibility of your complete integration into the body of this nation. However, the government has decided otherwise.
tr: Rosenne.
DOCUMENT #6
Registration of Population Ordinance 1949:
...establishes a National Register for inhabitants who shall be registered according to:
"nationality, ethnic group** and religion"
(** ethnic group or community, cf. Background articles)
DOCUMENT #7
Government Ordinance 20/7/58:
"A person who declares in good faith that he is a Jew and he is not a member of some other religious faith, will be registered as a Jew."
tr: Rosenne
DOCUMENT #8
Rabbinical Courts Jurisdiction (Marriage and Divorce) Law 1953 Enactment:
"Matters of marriage and divorce of Jews in Israel, being nationals or residents of Israel, shall be under the exclusive jurisdiction of the Rabbinical Courts and marriages and divorces of Jews shall be performed in Israel in accordance with Jewish Law (Halakha)."
tr: Rosenne
DOCUMENT #9
Notes on Israeli Citizenship:
1. There is only one class of Israeli citizenship - full citizen.
2. Citizenship is granted by birth or descent, to all those normally resident in Israel on the 14th. May 1948 (the day the state was declared).
3. Religion, race or sex are not a bar to Israeli citizenship.
4. Citizenship can be acquired by a five-year naturalization process as in many other countries with a liberal immigration policy.
5. Citizenship can be requested and granted under the Law of Return, at the discretion of the Minister of Immigration (later: of the Minister of the Interior).
Oswald Rufeisen
A Biography
Name: Oswald Rufeisen. Born: Poland, 1922.
Jewish parents; traditional Jewish education.
Joined Akiva Zionist movement with his two brothers. They fled to Vilna (Lithuania) and from there to Kibbutz Akiva in Mandate Palestine after the outbreak of World War II. Oswald also joined the Vilna hachshara programme but did not have the opportunity to leave.
The German invasion of USSR, June 1941 (Operation Barbarossa) meant that Poland, including the Soviet zone, was totally overrun, including Mir. Much of Mir's Jewish population was executed and the remainder segregated first in the ghetto, then in the old fortress. (The connection between Vilna and Mir is that the famous Mir Yeshiva in Poland was transferred to Vilna in 1939 because Lithuania was still independent and remained so until 1941.) Rufeisen was captured by the Gestapo and escaped; he acquired a document certifying him as a German Catholic and worked as translator and secretary for the German Police, having already become active in the armed Jewish resistance. In August 1942, he learnt of a German plan to liquidate the Mir Jewish population on August 13th, so he informed the community. About 200 of the 850 still alive escaped to the forests and joined the Russian partisans - the rest were slaughtered.
Rufeisen, denounced to the Germans, was captured and escaped again, taking refuge in a Catholic convent where he converted to Christianity. He left, joined the partisans and was almost executed by them as a German spy, but was reprieved when a Jew from Mir in the resistance recognised him. After the war, he was decorated by the Russians for his partisan activities.
1945: Rufeisen enters the Carmelite order as Brother Daniel, intending to move to a convent in Eretz Yisrael eventually. He requests permission from the Church to apply for an exit visa from Poland in order to move, but the visa is not granted after numerous applications. He feels very attached to the Jewish people and to Poland, but eventually has to renounce his Polish citizenship in order to receive exit papers of the type given to Jews leaving for Israel.
His subsequent application in Israel for an immigrant certificate as an oleh is refused, although the then Minister of the Interior sympathises. He applies to the Supreme Court for an order nisi to compel the Minister to justify this refusal or grant the status as requested under the terms of paragraph 3(a) of the Law of Return. The case comes to court in 1962, 4 years after his immigration.
Rufeisen has come to court to be treated on an equal footing with other immigrants and because he has never renounced the Jewish people as his own and wishes to join them in their national destiny.