Court Summations

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.

 

     
     
     
     
     
     
     
     
     
     
       
     
     

     

     

     

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    15 Aug 2005 / 10 Av 5765 0