Attorney General v. National Labour Court

Facts: The second petitioner, the Bezeq Corporation, had a monopoly in the field of providing telephone services in Israel. When the Government decided to allow competition in this field, the General Federation of Labour feared that the restriction of the monopoly would affect the jobs and rights of Bezeq’s employees, and it therefore gave notice of a strike. The petitioners applied to the Regional Labour Court for an injunction against the strike. The injunction was given, but the National Labour Court overturned it on appeal. The petitioners then petitioned the High Court of Justice to set aside the judgment of the National Labour Court. Held: Strikes can be divided into three categories: (1) economic strikes, which oppose an action that clearly and immediately harms employees, and are considered legitimate; (2) political strikes, which oppose a general policy of the Government, and are not considered legitimate; (3) quasi-political strikes, which oppose an act that is not directly connected with terms of employment, but do affect them directly. Quasi-political strikes only justify a short protest. In this case, it was not proved that the restriction of Bezeq’s monopoly would clearly and immediately harm Bezeq’s employees. Therefore at most it could be a quasi-political strike, which justifies a short protest strike. Therefore the Regional Labour Court had been correct in issuing an injunction against the extended strike. Petition granted

Nahmani v. Nahmani

Facts: Ruth and Daniel Nahmani, a married couple, were unable to have a child because of an operation that Ruth underwent. They therefore decided to try in-vitro fertilization of Ruth’s ova with Daniel’s sperm and implanting the fertilized ova in a surrogate mother. Under Israeli law, surrogacy was not permitted and in-vitro fertilization was only permitted for implantation in the mother. Because of the great expense of the in-vitro fertilization procedure in the United States, the couple petitioned the Supreme Court, sitting as the High Court of Justice, to allow the in-vitro fertilization procedure to be conducted in Israel, for the purpose of surrogacy in the United States. In that proceeding (HCJ 1237/91), a consent judgment was given allowing the in-vitro fertilization procedure to be done in Israel. The procedure was carried out at Assuta Hospital. Subsequently, Daniel left Ruth and went to live with another woman, who bore him a child. Ruth applied to Assuta Hospital to release the fertilized ova into her possession for the purpose of the surrogacy procedure in the United States, but Daniel opposed this. Assuta Hospital therefore refused to release the fertilized ova. Ruth applied to the Haifa District Court for an order against the hospital to release the fertilized ova, and in its judgment the District Court gave such an order. Daniel appealed the judgment of the District Court to the Supreme Court. Held: (Majority opinion — Justice T. Strasberg-Cohen, Vice-President Barak, Justice D. Levin, Justice I. Zamir) Although a spouse’s right to be a parent is a basic right, this right does not impose a duty on the other spouse to help realize this right. If a spouse does not perform the customary marital duties, these cannot be enforced and the only remedy is divorce. It is not proper legal policy to force someone to be a parent against his will. The consent of Daniel Nahmani to the in-vitro fertilization procedure created a ‘weak’ agreement that cannot be enforced under the strict laws of contract. In addition, the consent to the procedure did not imply consent to continue the procedure even after a separation. (Minority opinion — Justice Ts. E. Tal) The husband was estopped from opposing the continuation of procedure by promissory estoppel, since he gave his consent, his wife reasonably relied on this consent, and she did so irreversibly, by fertilizing her ova with her husband’s sperm

Programmable On-Chip Artificial Cell Producing Post-Translationally Modified Ubiquitinated Protein.

In nature, intracellular microcompartments have evolved to allow the simultaneous execution of tightly regulated complex processes within a controlled environment. This architecture serves as the blueprint for the construction of a wide array of artificial cells. However, such systems are inadequate in their ability to confine and sequentially control multiple central dogma activities (transcription, translation, and post-translational modifications) resulting in a limited production of complex biomolecules. Here, an artificial cell-on-a-chip comprising hierarchical compartments allowing the processing and transport of products from transcription, translation, and post-translational modifications through connecting channels is designed and fabricated. This platform generates a tightly controlled system, yielding directly a purified modified protein, with the potential to produce proteoform of choice. Using this platform, the full ubiquitinated form of the Parkinson's disease-associated α-synuclein is generated starting from DNA, in a single device. By bringing together all central dogma activities in a single controllable platform, this approach will open up new possibilities for the synthesis of complex targets, will allow to decipher diverse molecular mechanisms in health and disease and to engineer protein-based materials and pharmaceutical agents.This study was supported by the Adelis Foundation. S.Z.T. was supported by the Daniel Turnberg Travel Fellowship

Structural Insight into Regulation of the Proteasome Ub-Receptor Rpn10

Ubiquitylation is a posttranslational modification that determines protein fate. The ubiquitin code is written by enzymatic cascades of E1 and E2 and E3 enzymes. Ubiquitylation can be edited or erased by deubiquitylating enzymes. Ub-receptors are proteins that read and decipher the ubiquitin codes into cellular response. They harbor a ubiquitin-binding domain and a response element. Interestingly, Ub-receptors are also regulated by ubiquitylation and deubiquitylation. However, until recently, the molecular details and the significance of this regulation remained enigmatic. Rpn10 is a Ub-receptor that shuttles ubiquitylated targets to the proteasome for degradation. Here we review recent data on Rpn10, with emphasis on its regulation by ubiquitylation

Horev v. Minister of Transportation

Facts: The Minister of Transportation, assuming the powers of the Traffic Controller, ordered the closure of Bar-Ilan Street in Jerusalem to motor traffic on Sabbaths and Jewish holidays during hours of prayer. Petitioners are secular residents of the area and representatives of the secular population in Jerusalem, who claim that the decision of the Minister infringes their right to freedom of movement. One petitioner—the Association for the Rights of the Religious Community in Israel—counter-petitioned that Bar-Ilan should be closed to motor traffic for all hours on the Sabbath and Jewish holidays. Held: The Court held that the Traffic Controller was to weigh the freedom of movement of those who chose to use Bar-Ilan Street against the possible injury of such traffic to the religious sensibilities and lifestyle of the local residents. The Court noted that the latter consideration was a valid one in a democratic society. The Court held that the Minister of Transportation, in his capacity as the Traffic Controller, did not adequately consider the interests of the local secular residents of Bar-Ilan Street. As such, the Court struck down the Traffic Controller\u27s decision. Several dissenting Justices contended that the Minister had no authority at all the close Bar-Ilan Street to traffic

Theoretical Summary of the HADRON99 conference

The Constituent Quark Model has provided a remarkable description of the experimentally observed hadron spectrum but still has no firm theoretical basis. Attempts to provide a QCD justification discussed at Hadron99 include QCD Sum Rules, instantons, relativistic potential models and the lattice. Phenomenological analyses to clarify outstanding problems like the nature of the scalar and pseudoscalar mesons and the low branching ratio for $\psi' \to \rho-\pi$ were presented. New experimental puzzles include the observation of $\bar p p \to \phi \pi$.Comment: 10 pages, espcrc1.st

Back to the "Gold Standard": How Precise is Hematocrit Detection Today?

Introduction: The commonly used method for hematocrit detection, by visual examination of microcapillary tube, known as "micro-HCT", is subjective but remains one of the key sources for fast hematocrit evaluation. Analytical automation techniques have increased the standardization of RBC index detection; however, indirect hematocrit measurements by blood analyzer, the automated HCT, do not correlate well with "micro-HCT" results in patients with hematological pathologies. We aimed to overcome those disadvantages in "micro-HCT" analysis using "ImageJ" processing software. Methods: 223 blood samples from the "general population" and 19 from sickle cell disease patients were examined in parallel for hematocrit values using the automated HCT, standard "micro-HCT," and "ImageJ" micro-HCT methods. Results: For the "general population" samples, the "ImageJ" values were significantly higher than the corresponding values evaluated by standard "micro-HCT" and automated HCT, except for the 0 to 2 month old newborns, in which the automated HCT results were similar to the "ImageJ" evaluated HCT. Similar to the "general population" cohort, we found significantly higher values measured by "ImageJ" compared to either "micro-HCT" or the automated HCT in SCD patients. Correspondent differences for the MCV and MCHC were also found. Discussion: This study introduces the "micro-HCT" assessment technique using the image-analysis module of "ImageJ" software. This procedure allows overcoming most of the data errors associated with the standard "micro-HCT" evaluation and can replace the use of complicated and expensive automated equipment. The presented results may also be used to develop new standards for calculating hematocrit and associated parameters for routine clinical practice. Keywords: Image analysis; Microcapillary hematocrit; RBC indices

Nafisi v. Nafisi

The Petitioner and the Respondent married in Iran, which was their domicile, in 1944. In 1979, the Respondent visited Israel. In the course of his visit, he purchased a store in Tel Aviv, which was registered in his name. In 1983, the couple immigrated to Israel with their five children. Soon after their immigration to Israel, the Respondent opened two bank accounts in his name, and deposited money that he had brought from Iran, in the amount of $320,000. In 1987, a rift developed in the marriage, following which the Petitioner sought a declaratory judgment stating that the store and the money deposited in the bank were jointly owned. The District Court granted the request. The Supreme Court granted the Respondent’s appeal, which is the basis for the Further Hearing. In granting the petition, the Supreme Court ruled: A. (1) Whatever the choice-of-law rule may be in regard to property relations between spouses married abroad prior to the enactment of the Property Relations Law, it is a dispositive law. It applies in the absence of an agreement between the parties. The parties are at liberty to decide upon a different arrangement, and Israeli law will credit that arrangement – subject to Israeli public policy and other specific Israeli law. (2) The content of the agreement between the parties can be conflictual, that is, it may refer to a legal system that differs from that indicated by the rules of private international law. (3) Anything that the parties can agree to expressly, they can agree to impliedly. (4) The requirements of writing and of confirmation by the court concern a “property agreement” as defined by the Property Relations Law. (5) (Pursuant to CA 2/77 [1]), the term “agreement” in sec. 15 has its general meaning, and need not be in writing – as required under sec. 1 in regard to a property agreement – rather, any agreement whatsoever, whether in writing or parol, whether express or implied, can serve to establish the property relations between the spouses, as long as the agreement is in accordance with the law of their domicile at the time of its making. (6) The community property rule accepted in Israel is one of partnership based upon the idea of an agreement between the parties. It is not a statutory rule imposed upon the parties regardless of their will. The consensual view is a real explanation for a case-law rule that draws its force from the agreement. In the past, this view was founded upon the theory of implied condition. We can now base this view upon the principle of good faith (established under sec. 39 of the Contracts (General Part) Law), which fills the gaps in an agreement between the parties. (7) In accordance with this principle, we can give expression, first and foremost, to the subjective fundamental assumptions at the foundation of the relationship between the spouses, without need for recourse to a fiction concerning their real intentions. Where the fundamental assumptions of the parties are unproductive, we can employ objective criteria to fill in what the parties left out on the basis of the good-faith principle. Inter alia, these criteria draw upon the fundamental principles of Israeli law. One of those fundamental principles is that of equality. In this manner, we achieve a social objective that brings about social justice. (8) We can revisit this matter in the future, and consider whether we might base the community property rule upon the general power of an Israeli judge to develop the law in conjunction with the statutory law, without need for the contract construct. (9) Upon arrival in Israel, spouses married abroad prior to the entry into force of the Property Relations Law who, when in Israel, satisfy the conditions for community property, are deemed as agreeing to maintain a community property regime in Israel. This agreement takes precedence over the application of conflict-of-laws rules, and establishes the regime for the division of their property. That regime applies to property acquired after their marriage but before their arrival in Israel, as well as to property acquired in Israel after the marriage. B. (Per Justices E. Goldberg and D. Dorner): (1) Nothing prevents applying the provisions of sec. 15 of the Spouses (Property Relations) Law to spouses who married before its enactment, as long as their vested rights are not infringed. (2) A choice-of-law principle is categorized as a procedural rule, and this character permits its application to proceedings occurring after its enactment, even if the event itself occurred earlier, as long as vested rights are not infringed as a result. (3) The initial clause of sec. 15 of the Spouses (Property Relations) Law establishes that, as a rule, the law of the domicile of the spouses at the time of the solemnization of the marriage will apply to their property relations. Foreign law is perceived as a fact that must be proved, and a failure to meet the burden of proof works against the party bearing that burden. (4) If the party seeking to rely upon the foreign law shows a “solid evidentiary basis” for the identity of the laws, for example, that the foreign law and the domestic law derive from the same system of laws, then it is possible to apply the presumption of identity. However, it is possible that a petitioner who is unable to rely on the foreign law by establishing a solid basis in regard to the identity of the foreign law and the domestic law, may still enjoy the presumption of identity if he can prove that “the elementary concepts of justice in regard to the subject matter at hand are uniform and acknowledged throughout the world”. The burden of proving this preliminary assumption grounding the presumption of identity – i.e., that we are concerned with a general principle of law – falls to the party seeking to rely upon the provisions of the foreign law. (5) It is doubtful whether the approach that urges the general application of the presumption of identity as long as the content of the foreign law is not proven has gained acceptance in the principles of private international law, which do not support a preference for domestic law, nor is it supported by the law of evidence. After all, if the presumption of identity is not more probable, what is the theoretical justification for shifting the burden of proof? (6) Foundations of Law, 5740-1980, does not present an obstacle before a party seeking to rely upon the presumption of identity in the present sense. Not only does sec. 2(b) of Foundations of Law instruct us that the repeal of art. 46 of the Palestine Order-in-Council, 1922, “shall not derogate from the law which was accepted in Israel before the coming into force of this Law”, but also – and this is the main point – the law indeed sought to unfasten the tether that bound the Israeli legal system to the Common Law, but not to prohibit adopting appropriate legal arrangements from the Common Law. (7) Section 15 of the Spouses (Property Relations) Law does not present an obstacle to implementing the presumption of identity. (8) The legal provisions that establish the character of the property arrangements between spouses reflect a society’s conception of distributive justice, and cultural conceptions regarding equality between the sexes. Therefore, there is no reason to assume that these represent a general legal principle. (9) The presumption cannot be applied when the choice-of-law rule points to the laws of a non-western state. Having rejected the basis for assuming that the social and cultural climate of this state is identical to that of western states, the presumption as to the identity of Iranian and Israeli law in regard to property relations lacks support. (10) Once the assumption of similarity between Iranian and Israeli property-relations law is undermined, there is no justification for deviating from the rule that the burden of proving the foreign law falls upon the party that seeks to rely on it. C. (Per Justices E. Goldberg and D. Dorner): (1) When the spouses were foreign domiciles at the time of their wedding, the law of their domicile at the time of the solemnization of their marriage applies, rather than the Israeli community property arrangement, in accordance with the initial clause of sec. 15. Similarly, the statutory agreement in regard to the application of resource balancing, under sec. 3 of the Law, does not constitute an agreement in accordance with sec. 15 of the Law, as the freedom to make an agreement, granted the spouses under sec. 15 of the Law, is inconsistent with the nature of the statutory agreement. (2) The resource balancing arrangement does not apply to spouses who were foreign domiciles at the time of their marriage. Therefore, when an agreement is made between spouses who were foreign domiciles at the time of the solemnization of their marriage, and who became Israeli domiciles at the time of the making of the agreement, the agreement assumes a different character that changes it from an instrument that removes the spouses from the community property arrangement through balancing to an instrument that creates that arrangement. (3) The purpose for which limitations were placed upon the form of contracts and the freedom of contract does not justify extending those limitations to an agreement between spouses who married while they were foreign domiciles in order to create community property by means of balancing. The proper policy therefore supports limiting the scope of incidence of the provisions of Chapter One, such that they not apply to such spouses. (4) The case law did not preclude adopting the approach that spouses who were foreign domiciles at the time of the solemnization of the marriage need not make an agreement arranging their property relations as defined in sec. 1 of the Law. This is so if they made the agreement after the enactment of the Law, and all the more so if they made it prior to the enactment of the Law. (5) Spouses who married in Israel prior to the enactment of the Law are subject to the community property presumption under which spouses who purchase property through their joint effort and from a common purse intend that ownership will be in common. The right to equality, which led to the community property presumption, is what grounded the Law’s resource balancing arrangement. (6) The difference between the property regime under the community property presumption and the property regime established by the Law, which is expressed in the timing and character of the partnership, does not express a lowering of the status of the principle of equality, but rather reflects the need to balance the principle of equality and the principle of the certainty of ownership. (7) The deep-rootedness of the right to equality in Israeli society, from which the right to shared ownership derives, is what requires that spouses who immigrate to Israel are presumed to seek integration rather than separation from Israeli society, and therefore, they, too, adopt the principle of equality between the sexes and its derivative of shared ownership of property acquired in the course of marriage, in the absence of evidence to the contrary. (8) If the conclusion in regard to an implied agreement derives from the presumption that, at the time of their immigration to Israel, the spouses seek to adopt its lifestyle, it may, also be assumed, absent evidence to the contrary, that the content of the agreement is consistent with the character of the property model that applies to local spouses of similar character. (9) Since we are concerned with an implied agreement between spouses who married before the enactment of the Spouses (Property Relations) Law, the assumption is that they – like local spouses who married prior to the enactment of the Law – intended to establish an immediate community property regime. (10) Under the present circumstances, inasmuch as the bank accounts were opened after the spouses immigrated to Israel, it can be said that the rights of the spouses to the money crystallized when the accounts were opened, at a time when they were already subject to the community property presumption. That is not the case in regard to the store that was purchased prior to the couple’s immigration to Israel. (11) When the rights to property are entirely vested in one of the spouses, evidence of his waiver is required. In order to infer a waiver from a person’s conduct, that conduct must be clear, resolute, and unambiguous. (12) The strength of the presumption that spouses seeking to integrate into local society adopt a community property regime is adequate when the initial division of rights to a property is concerned, but that presumption is undermined when evidence of a waiver of rights to a property that have already vested in one of the spouses is required. D. (Per Justices E. Goldberg and D. Dorner): (1) Israeli statutes that comprise special provisions on the subject of private international law indicate a tendency to grant primacy to the principle of domicile in matters of personal status. The flexibility of the domicile principle expresses the individual’s expectations inhering in the choice to dissociate from a particular social regime and adopt another in its place. (2) The answer to the question whether consideration should be given to the spouses’ intention to settle in another country in the future should be derived, inter alia, from the weight that the statute attaches to their expectations and desires. If the statute respects those, there is no reason for it to close its eyes to the expression of their real intention to leave one social regime and adopt another in its place. (3) The fundamental approach in the matter of personal status grants weight to the desires and expectations of the spouses, and this consideration underpinned the preference for the domicile principle. This approach deserves reinforcement where we are concerned with an agreement that arranges the property relations of spouses. Therefore, in establishing the definition of domicile of the spouses, weight should be given to their intention to tie their fates to another country, and adopt its lifestyle and social principles, as long as this intention is serious and clear. (4) The seriousness of the intention and its decisiveness can be expressed, inter alia, in the period of time that passed until the spouses moved to their intended destination. Thus, it can easily be said that during the period immediately preceding the spouses’ immigration to Israel, while preparing for immigration, Israel can be viewed as their domicile for our purposes, even though they did not yet physically live there. (5) On the basis of the spouses’ concrete intention to immigrate to Israel, there is no reason, in the present case, not to view Israel as their domicile at the time of the purchase of the property, and thus the provisions that recognize the spouses’ competence to stipulate as to property relations apply to the implied agreement to community property in regard to the asset. E. (Per Justice M. Cheshin): (1) The balancing of resources established in the Law will apply only from the day that the Law enters into force. Spouses in Israel are thus divided into two classes: those who married prior to the Law, who are subject to the community property presumption that held before the Law, and those married following the Law, who are subject to the provisions of the Law. So much for the situation of Israeli residents. (2) The Law was never intended to apply to spouses who married abroad and are not Israeli domiciles. (3) As for spouses whose domicile was outside of Israel at the time of their marriage, and who later became Israeli domiciles, these fall into two categories. One category comprises those who became Israeli domiciles before the commencement of the Law: These are governed, in principle, by the Israeli law in force prior to the Law, including the principle protecting vested rights. The second category comprises spouses who were domiciled outside of Israel at the time of their marriage, and who became Israeli domiciles after the Law. As far as these are concerned, we must address ourselves to the provisions of the Law, and firstly, to the provisions of section 15 therein, which treats of private international law. (4) The source and legal nature of the alternative arrangements established by section 15 of the Law are different: whereas the first alternative is one that is imposed upon the spouses by virtue of the law, the second alternative is one that derives from two sources. This alternative is primarily founded upon the agreement of the parties, but this agreement must be valid under the law of the parties’ domicile at the time of its making. The legal preference is rather for the second alternative – the agreement alternative – while the first alternative – that of the law – will only hold subject to the second alternative. (5) The referral by sec. 15 of the Law to the foreign legal system is to the legal system as a whole – including its rules of private international law – and the Israeli court will sit as if it were sitting in the state whose legal system we have turned, and in the very matter currently before the court. (6) The community property rule between spouses does not actually find support in the law of contracts and agreements. It draws its nourishment from the principles of justice, equality and fairness, while contract law was primarily intended only to serve as a legal framework and form for expressing those principles that create rights. (7) By the term “agreement” in sec. 15 of the Law, the legislature is addressing a real agreement – even if an implied agreement – and not a fictitious agreement like that which served in the creation of the community property presumption. (8) The community property presumption in property relations between spouses derives from the same overarching principle of equality between spouses, and it had two spiritual fathers: one, Israeli society’s views on the appropriate norms that should – and do – apply to property relations between spouses, and the other, the courts, as those meant to express society’s views. (9) Inasmuch as the principle is Israeli – it is a principle that arose from the reality of Israeli society – it was intended to apply only to those who are domiciles of Israel. (10) The community property presumption between spouses is an overarching principle in our law in its application to Israeli domiciles, but it does not reach the level of (external) public policy. This overarching principle is a quasi-internal public policy, inasmuch as the overarching principle applies only to Israeli domiciles. (11) Under the circumstances, the community property presumption applies to the Petitioner and to the Respondent, who, from the moment that they immigrated to Israel, became Israeli domiciles. (12) Property relations between spouses can be classified with the family of “floating” rights. At the first stage we will apply – as to other “floating” rights – the lex fori, that is, Israeli law and the principle of community property of spouses, which represents the accepted Israeli idea of justice. If one of the spouses claims that the principle of community property does not apply to him by reason of the law of domicile at the time of the solemnization of the marriage, he will have to bear the burden of proving that law. If we find that that law does not recognize the principle of community property – unfairly discriminating against women – we will reject it as repugnant to an overarching principle that applies in Israel to Israeli domiciles. (13) Where recognition of “vested rights” will infringe an overarching principle that applies to Israeli residents, it should be clear that we will not recognize their existence. F. (Per Justice E. Mazza, dissenting): In the absence of a claim – and all the more so, evidence – of an agreement between the parties determining or varying the property relations between them, they are bound by the law of their domicile at the time of the solemnization of their marriage, as prescribed by the opening clause of sec. 15 of the Spouses (Property Relations) Law. G. (Per Justice Z.E. Tal, dissenting): (1) The community property presumption now stands in its own right on the strength of justice and equality between spouses. Nevertheless, the community property presumption is not a conclusive presumption. The creation of the circumstances for its application must be proven, and it can be rebutted. (2) A couple’s very immigration to Israel is insufficient to be deemed an implied agreement to community property

United Mizrahi Bank v. Migdal Cooperative Village

The Family Agricultural Sector (Arrangements) Law was adopted by the Knesset in 1992, as part of an attempt to rehabilitate Israel’s agricultural sector following a severe economic crises. To that end, the law established a body called the “rehabilitator,” which was granted broad authority to settle, restructure and cancel debts that had been created up to the end of 1987. In 1993, the Knesset found it necessary to intervene again, and amended the law. Among other changes, the Family Agricultural Sector (Arrangements) (Amendment) Law, 5753-1993, redefined the debts subject to the law, and extended the applicable time period so that debts incurred until the end of 1991 also fell within the scope of the law and the authority of the rehabilitator. Following the adoption of the Primary Law, but prior to the adoption of the Amending Law, the Knesset enacted Basic Law: Human Dignity and Liberty. Section 10 of the Basic Law stated that the Basic Law “shall not affect the validity of any Law in force prior to the commencement of the Basic Law. CA 6821/93 concerned a suit brought by the appellant in the District Court against the respondents who had guaranteed the debt of the Cooperative Agricultural Fund Ltd. The respondents requested that the matter be transferred to the jurisdiction of the rehabilitator, in accordance with the Amending Law. The Court granted the request. The appellants argued on appeal that the Amending Law violated their property rights under s. 3 of Basic Law: Human Dignity and Liberty, and was contrary to s. 8 of that Basic Law, which establishes that there shall be no violation of rights under the Basic Law except “by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than required, or by regulation enacted by the virtue of express authorisation of such Law.” LCA 1908/94 concerned debts incurred by the appellants for the rental of agricultural equipment. The District Court held that the provisions of the Amending Law that extended the period of debts were incompatible with s. 8 of the Basic Law and were void. While the Amending Law served a proper purpose, the Court found that it applied selectively to a part of the public and was therefore incompatible with the values of the State of Israel. LCA 3364/94 addressed the District Court’s decision to reject the request of the appellants to transfer their matter to the jurisdiction of the rehabilitator. The Court found that the debt had been incurred in 1988 and thus did not fall within the scope of the Primary Law. The stay of proceedings and the transfer of the debt to the jurisdiction of the rehabilitator were a result of the Amending Law. The Court held that the Amending Law infringed creditors’ rights beyond what was established in the Primary Law. While the Primary Law was immune to review under the provisions of s. 10 of the Basic Law, those provisions did not apply to the Amending Law, which was, therefore, subject to review under s. 8. The three cases represented the first instances in which Israeli courts annulled a law passed by the Knesset on the grounds of unconstitutionality due to a violation of fundamental rights established in a Basic Law. Inasmuch as the three cases raised the same fundamental questions of constitutional law, the appeals were heard together before an expanded bench of nine judges of the Supreme Court. In deciding the appeals, the Supreme Court was called upon to address the questions of whether or not the Knesset possessed constituent authority to frame a constitution and limit its own legislative authority thereby, and whether Basic Laws enacted by the Knesset enjoy supra-legislative status. After establishing the place of Basic Laws in the legislative hierarchy and the ramifications of a conflict between regular legislation and Basic Laws, the Court addressed the specific issue of whether the Amending Law violated rights established under Basic Law: Human Dignity and Liberty and whether the violation was incompatible with s. 8 of that law, and the consequences of such a violation. Each of the nine judges wrote a separate opinion. The primary approach of the Court is set out in the opinion of President Barak. According to President Barak, the Knesset’s authority to frame a constitution derives from the doctrine of constituent authority. The Knesset derives its constituent authority from the First Knesset by means of constitutional continuity. This view of the Knesset’s constituent authority best reflects the national consciousness and legislative history of the State of Israel. The Knesset, therefore, acts in two capacities. It enacts laws as a regular legislature, and it adopts Basic Laws in its capacity as constituent assembly. Basic Laws so enacted enjoy supra-legislative, constitutional status. Judges Bach, Goldberg, Levin, Mazza, Tal, and Zamir concurred in their separate opinions. Former President Shamgar based the Knesset’s authority to frame a constitution upon constituent authority deriving from the Knesset’s unlimited sovereignty. It is the Knesset’s unlimited sovereignty that underlies its authority to frame a supra-legislative constitution that can limit the legislative power of future Knessets. In his dissenting opinion, Justice Cheshin agreed that the First Knesset was granted the power to frame a constitution, but argued that the First Knesset’s constituent authority was not transferable, and it was not transferred to subsequent Knessets. Moreover, According to Cheshin, J., constituent authority must be unequivocal, yet Court precedent and Israel’s legislative history do not reflect such a clear view of the Knesset’s authority, and the legislative history of the Basic Laws does not support a conclusion that the Knesset believed it was adopting legislation of a constitutional nature in enacting them. The Court unanimously held that although the Amending Law violated the property rights of creditors, the provisions of the Amending Law were consistent with the requirements of s. 8 of Basic Law: Human Dignity and Liberty. The appeal in CA 6821/93 was therefore dismissed, and the appeals in CLA 1908/94 and CLA 3363/94 were upheld and the decisions of the District Court were set aside. (Per Shamgar, P.) The Basic Law did not infringe pre-existing laws, but applies only to laws adopted following its entry into force. The Amending Law was adopted following the entry into force of the Basic Law. Two primary theories explain the Knesset’s power to enact legislation of a constitutional nature: The theory of unlimited sovereignty and the theory of constituent authority. Of theses two theories, that of unlimited sovereignty more accurately expresses Israel’s legislative history, its accepted legal concepts, and the case law of the Supreme Court. The Knesset has the power to enact laws of every type and content, and can formally or substantively entrench the fundamental values of the State of Israel, and thereby limit its own power and that of subsequent Knessets. The extent of the Knesset’s power to limit itself is a question of constitutional policy. Both the theory of unlimited sovereignty and that of constituent authority recognize the Knesset’s power to limit itself. In terms of preferred law, a Basic Law should be changed only by another Basic Law. In this regard, a distinction must be drawn between changing a right as opposed to infringing it. An infringement does not change the basic right. (Per Barak, P.) The Knesset’s power to adopt a constitution derives from its constituent power. The source of the Knesset’s constituent power is the sovereign, that is, the people. This approach can be grounded upon three models: 1) constitutional continuity, 2) the recognition rule, 3) the best explanation for the socio-historical and legal history of the system. Regardless of the legal situation that existed following the dissolution of the First Knesset, and even if there never was a Constituent Assembly, Israeli law currently recognizes the power of the Knesset to adopt a constitution. This is supported by the Knesset’s understanding of its role, the platforms of the various political parties, the consensus of opinion of jurists and legal scholars, the decisions of the Supreme Court, and the Knesset’s reaction to those decisions. Due to the fact that a Basic Law is of a higher normative level, it can only be changed by another Basic Law. In wielding its constituent power, the Knesset can limit its authority to change Basic laws, and thus create “rigidity” of constitutional provisions. The Knesset’s power to limit itself and thus entrench the provisions of a Basic Law derives from its authority to adopt a formal constitution. The theory of constituent power addresses the question of the Knesset’s authority to limit its own power when wielding constituent power, but it does not provide an answer to the question of whether the Knesset can limit itself when it employs its normal legislative power. This question can be left for further review. We can also leave for further review the question of whether there is a substantive difference between the entrenchment of a regular law that requires an absolute majority, as opposed to a provision requiring some greater majority. True democracy recognizes the constitutional power to entrench basic human rights against the power of the majority. This limit upon majority rule does not infringe democracy, but rather realizes it. Granting the majority the power to harm the rights of the minority is undemocratic. Protecting the individual, the minority, and the fundamental values of the legal system against the power of the majority is the democratic act. A democracy of the majority alone that is not accompanied by a democracy of values is but a formal, statistical democracy. True democracy limits the power of the majority in order to protect society’s values. The human rights defined in the Basic Laws in absolute terms are relative rights. Human dignity, liberty, property, movement, privacy and freedom of occupation are not absolute rights, but can be infringed in order to preserve the social framework. The constitutionality of the infringement does not diminish the constitutional status of human rights. The constitutionality of an infringement means that a regular law that meets the conditions established by the constitution can infringe a constitutionally protected human right. When the Basic Laws do not state the remedy for the infringement of a constitutional right, legal tradition provides the conclusion that the remedy for an unconstitutional law is abrogation by the courts. A law is presumed to be constitutional, and a party seeking to challenge that presumption bears the burden of proof. As for the constitutionality of an infringement, the burden falls to the party arguing that the infringement is constitutional. This is the appropriate approach, as it places the burden upon the party best suited to bear it, viz. the state. However, inasmuch as the issue does not arise in the case before the Court, it can be left for further review. (Per Cheshin, J.) In addressing the question of whether the Knesset possesses constituent power, a distinction must be drawn between the power to adopt a formal constitution and the power to adopt entrenched laws. The power to adopt entrenched laws does not, in and of itself, imply constituent power. When the Constituent Assembly – the First Knesset – completed its term without adopting a constitution, the Knesset’s right to adopt a constitution in accordance with the Declaration of Independence ceased. The only continuity that was preserved was in regard to legislation, not constitutional issues. The Constituent Assembly’s authority to adopt a constitution was a one-time, non-transferable power. The Knesset does not have constituent authority, nor does it enjoy unlimited sovereignty. The Knesset is the Knesset, and it possesses only legislative authority. Insofar as the Knesset’s power to limit itself, a distinction must be drawn between procedural limitation by requiring a special majority, and substantive limitation. Once the Knesset has established legislative procedures, it must follow those procedures until it expressly repeals them and replaces them with new procedures. The establishing of new procedures must be carried out in accordance with the old procedures. In other words, the Knesset is limited by the procedures that it establishes in regard to legislative procedure. The question of quorum and that of voting are matters of organizational procedure. The voting rules are established in Basic Law: The Knesset, which establishes that the Knesset decides in accordance with the democratic principle of majority and minority, and that the votes of absent and abstaining members are not counted. In the absence of a constitution that establishes otherwise, the Knesset can decide upon any combination of the variables of quorum, absentees and abstainers, and any combination will be legitimate and legal. The one limitation is that of the principle of democracy. The basic democratic principle of “majority” must be preserved. A requirement of an absolute majority of sixty-one votes is not only consistent with the majority principle it is the principle itself. An absolute majority is not a special or privileged majority, but rather it is the true majority derived from the democratic theory of majority. A requirement of an absolute majority is not an instance of self-limitation. Such a requirement limits the possibility of abstention or setting off, but the ability to abstain or to arrange a set off is not one of the elected representative’s rights. In the current legal regime, and in the absence of the power to adopt a constitution, a provision requiring a majority greater than sixty-one votes is manifestly undemocratic. A sixty-one vote majority is the upper limit, and in establishing anything beyond that the Knesset deviates from its authority. The power to abrogate Knesset legislation should be reserved exclusively to the High Court of Justice. The doctrine that applies to secondary legislation is not appropriate to primary legislation. Once it has been shown that a law infringes a basic right, the burden of proof falls to the party claiming that the law is constitutional. The presumption that the law is constitutional applies to the secondary evidentiary burden, as opposed to the burden of proof that must be born by the governmental authorities. (Per D. Levin, J.) The Basic Laws constitute chapters of the Israeli constitution. The framers of Israel’s Declaration of Independence intended that legislation be effected on two parallel levels: A constitution to be adopted by the constituent authority, which would express the fundamental human rights on the basis of the vision of Israel’s prophets, and the regular, day-to-day legislation to be conducted by the legislature. The Declaration of Independence indicates that the source of the Knesset’s authority to adopt a constitution is its constituent power. The fact that there have been delays in the process of adopting a constitution since the election of the Constituent Assembly does not change or influence the source of the legislature’s authority in advancing constitutional legislation. Constituent power continues to exist until the task of adopting a constitution is completed. The party claiming the infringement of a basic right or who challenges the lawfulness of a law due to such infringement bears the burden of showing that a constitutionally protected basic right was infringed. If that burden is met, then the burden of showing that the law meets the justifying conditions passes to the party seeking to uphold the law. (Per Zamir, J.) The Knesset’s power to limit itself, both formally and substantively, derives from its status as a constituent assembly. The theory of constituent power provides an adequate theoretical explanation and a practical tool for the Knesset and the Court to address constitutional issues, and is the preferable theory. (Per Bach, J.) In principle, there is no difference between a requirement of a sixty-one-vote majority to amend or repeal a law and a more extreme requirement. A law is adopted by a regular majority of those participating in the vote. Absence or abstention is the right of every Knesset member. If the Knesset is not empowered to adopt constitutional legislation, and if a subsequent Knesset can repeal any law by the normal means, then it is difficult to understand why a law requiring a sixty-one-vote majority would be an exception. The fear of negative phenomena that may materialize in the future by recognition of the Knesset’s unlimited power to employ Basic Laws to limit the power of subsequent Knessets to change or amend Basic Laws is more theoretical than real. It may be assumed that in a proper democracy, certain things will not occur. The question of who bears the burden of proof is very relevant to the question of whether the Amending Law meets the requirements of s. 8 of Basic Law: Human Dignity and Liberty, and should be addressed. Once established that the law infringes the right to property, it is necessary to ask who must bear the burden of showing that the law meets the requirements of the Basic Law. A law that infringes liberty or property or some other basic right is not presumed, a priori, to be void, and it will not be deemed void unless proven otherwise. The presumption must be that a law has been duly enacted, unless it is shown that it infringes a basic right and does not meet the requirements of s. 8 of the Basic Law. Anyone claiming that a law should be declared void must convince the court of the facts of the infringement and show that the law does not meet the conditions set out in the Basic Law. (Per Tal, J.) The case before the Court does not require that the Court decide upon the fundamental questions regarding the powers of the legislature and its status, and they may be left for the appropriate time. For the purpose of the matter before the Court, it is sufficient to establish the normatively superior status of the Basic Laws by which the Knesset’s regular legislation is reviewed. (Per Goldberg, J.) Harmony amongst the branches of government requires drawing a “red line” between judicial review of legislation and involvement in legislation. The court must be careful not to cross the line. The court is not a substitute for the legislature, and it does not supplant the legislature’s discretion with its own. Therefore, only a finding that the legislature did not meet the conditions of s. 8 of Basic Law: Human Dignity and Liberty requires that a law be declared unconstitutional. Any other intervention by the court would blur the borders required by the separation of powers. In examining the constitutionality of a law, the presumption is that the law is constitutional, and any doubt must weigh in favor of upholding the law rather than voiding it. Therefore, the party arguing against the law must bear the burden of proof that the law is unconstitutional. That party must show that the law extremely deviates from the scope of a reasonable infringement intended for a proper purpose. The burden also includes the secondary evidentiary burden of showing that there is a specific alternative that would realize the proper purpose while inflicting substantially lesser harm to the protected right. (Per Mazza, J.) In terms of the burden of proof, the state bears the burden of convincing the court that the infringement is intended for a proper purpose, and that the means chosen are appropriate to achieving that purpose. The party claiming that the infringement is unconstitutional bears the burden of showing that the government should have chosen a less harmful alternative. However, it is not clear that this must always be the case. It may be that this is the correct approach only in regard to economic harm, whereas the infringement of other basic rights may justify placing the entire burden upon the state

Dynamical evolution of the young stars in the Galactic center: N-body simulations of the S-stars

We use N-body simulations to study the evolution of the orbital eccentricities of stars deposited near (<0.05 pc) the Milky Way massive black hole (MBH), starting from initial conditions motivated by two competing models for their origin: formation in a disk followed by inward migration; and exchange interactions involving a binary star. The first model predicts modest eccentricities, lower than those observed in the S-star cluster, while the second model predicts higher eccentricities than observed. The N-body simulations include a dense cluster of 10 M_sun stellar black holes (SBHs), expected to accumulate near the MBH by mass segregation. Perturbations from the SBHs tend to randomize the stellar orbits, partially erasing the dynamical signatures of their origin. The eccentricities of the initially highly eccentric stars evolve, in 20 Myr (the S-star lifespan), to a distribution that is consistent at the ~95 % level with the observed eccentricity distribution. In contrast, the eccentricities of the initially more circular orbits fail to evolve to the observed values in 20 Myr, arguing against the disk migration scenario. We find that 20 % - 30 % of the S-stars are tidally disrupted by the MBH over their lifetimes, and that the S-stars are not likely to be ejected as hypervelocity stars outside the central 0.05 pc by close encounters with stellar black holes.Comment: 6 pages, 2 figures. Minor corrections, Sumitted to Ap