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Ayala Procaccia

b. 1941

by Galia Eliahou

A Justice on Israel’s Supreme Court since 2001, Ayala Procaccia was born at Kibbutz Ashdot Ya’akov in the Jordan Valley. Her father, Hanan Aynor (1916–1993), was born in Frankfurt, Germany, where he attended elementary and secondary schools before immigrating to Palestine in 1933. He took courses at the Hebrew University but did not attain a degree. After joining the Ministry for Foreign Affairs he served as Israel’s ambassador in various countries, including Ethiopia. In 1939 he married Yaffa Puterman-Efrat (Rodstein) who was born in Poland in 1912, came to Palestine at the age of eight, attended the Levinsky Teachers Seminary and became headmistress of the Har-Nevo School in Tel Aviv. The couple divorced in 1947 and Yaffa died in 2002.

Ayala, who was their only child, attended public schools in Tel Aviv, served in the IDF from 1959 to 1961 and went on to study law at the Hebrew University of Jerusalem. She attained her LL.B. with distinction in 1963 and her master’s degree, also with distinction, in 1969. In 1968 she married Uriel Procaccia (b. 1943), later a professor of law, by whom she had two sons, Oren (b. 1971) and Yuval (b. 1974). The couple divorced in 1991.

Admitted to the Israel Bar in 1965, Procaccia served as legal assistant to Chief Justice Simon Agranat from 1965 to 1969. Upon her return from the United States, where she received a doctoral degree (S.J.D.) at the University of Pennsylvania (1972), she became the legal assistant to the Attorney General and held various other positions in the Ministry of Justice and at the office of the State Prosecutor.

From 1983 to 1984, she was the legal adviser to the Securities and Exchange Commission of Israel and in 1987 was appointed to the judiciary. After serving as a judge in the Jerusalem Magistrates’ Court until 1993 and in the Jerusalem District Court from 1993 to 2001, she was elected to the Supreme Court.

Guided by the law, the principle of equality and constitutional rights, Ayala Procaccia never hesitates to pronounce forthright and decisive rulings on controversial issues. From her first days as a judge in the Jerusalem Magistrates’ Court she aroused the ire of Orthodox Jews by ruling that it was permissible for cinemas to be open on the Sabbath and that the municipal bylaws forbidding their opening were unauthorized and restricted the individual’s basic right to determine his/her preferred form of rest.

As a Justice in the Supreme Court some two decades later, she reiterated this position when she drew a distinction between the public’s right to enjoy cultural and leisure activities, as well as public transport—all of which she held permissible—and commercial activity and employment of Jewish workers on the Sabbath, which should be prohibited in order to maintain the essence of Shabbat as a national day of rest and protect the weaker sectors of society and their right to a day of rest.

In an innovative ruling in 2004 on the issue of refusal to serve in the Israel Defense Force on political grounds, Justice Procaccia restricted selective objection for women in such a way as to exclude refusal on ideological or political grounds. She maintained that granting women exemption on such grounds would create unjustified inequality and discrimination between men and women so far as compulsion to serve was concerned and would have a negative impact on the efforts invested in furthering true gender equality in the IDF in those areas in which there is no relevant difference between the sexes.

Justice Procaccia has ruled upon important issues involving basic individual human rights. In a series of education-related cases, she dealt with the importance of the right to education evolving from the Compulsory Education Law, in the light of principles of true equality and the use of affirmative action as a means of closing economic and social gaps. In 2002, she ruled that, on grounds of equality, the state must provide free education for all children, irrespective of the school of their choice. The financial implication with which the educational system has since attempted to cope is that it is no longer permissible to demand any payment whatsoever from parents, a practice that had, over the years, become universally accepted. A ramification of this decision may be found in a decision of 2004, in which she ruled that the state is not obligated to fund any non-compulsory activities elected by pupils, such as daily prayer in state schools not affiliated with the religious stream. In another case, also in 2004, she ruled that there must be a gradual rectification of the lack of equality in education between Jews and Bedouin in allocation of funds and positions in education, in which the latter are currently discriminated against.

Where family law is concerned, Justice Procaccia’s rulings reflect the attitude of the major international conventions on human rights, according to which the natural blood relationship between parents and their children constitutes a basic right that has constitutional status. Hence one must minimize state intervention in family autonomy, limiting it only to exceptional cases. This stand was widely publicized in the case of the “Disputed Baby,” which caused a public furor. In this case, the social welfare authorities maintained that an infant could be considered legitimately adopted despite fundamental flaws in the procedures of the authorities. These comprised failure to receive the biological father’s agreement to the adoption and also unsuitable procedures on the basis of which the mother gave her consent to give the baby up for adoption close to the birth, something which she regretted soon after. The biological parents invested enormous effort—legal, public and via the media—to reclaim the child. The case ultimately reached the Supreme Court, where a majority ruled, counter to Justice Procaccia’s opinion, that it was for the child’s good to remain with the family that intended to adopt him. In her ruling, Procaccia maintained that the point of departure for the child’s good was the preservation of the blood and family ties to his natural family. Hence, the state should intervene in the adoption procedure, the results of which are irreversible, only when such ties prove unsuccessful and after due diligence which includes, inter alia, ascertaining the stand of the parent, which was lacking in this case.

Justice Procaccia laid down guidelines on everything related to the rights of the authorities and the correctness of their procedures. For example, she ruled that a woman officer in the IDF, whose service was terminated after she had lodged a complaint against her commanding officer, must be reinstated in her post, since her complaint was justified and had been lodged in good faith. She based her judgment on the fact that it is in the interests of the establishment to defend due process and thus, if the complaint were to have a detrimental effect on the woman officer’s promotion, others would be deterred from complaining, for fear of harming themselves.

In another case, Justice Procaccia ruled—on grounds of legislated freedom of expression and creativity—against censorship imposed by the Israel Film and Drama Censorship Board, a government body, on a film that documented the responses of the inhabitants of a Palestinian refugee camp to a wide-ranging “army operation” that resulted in many casualties and much damage and also presented the IDF forces in a negative manner. In another directive ruling, Justice Procaccia limited the authority of the rabbinical court, which sought to prevent the departure from Israel of a citizen of another country who had come on a visit, because he refused to grant his wife a GET and left her an agunah. The rabbinical court was convinced it had the right to do so because the recalcitrant husband was a Jew. Justice Procaccia ruled that the rabbinical courts’ powers were limited to cases in which Jews had a personal or territorial connection to Israel.

In 2005, in the context of public controversy regarding Israel’s disengagement from territories in the Gaza Strip, Procaccia took a firm stand against infringements of the law and disturbances of the peace by opponents to the disengagement, handing down judgments that were remarkable for their stringency. In the first of these, she permitted the detention of a fourteen-year-old girl who had repeatedly disturbed the peace in defiance of the court until her parents offered a suitable alternative to the detention—something they refused to do for ideological reasons. At the same time, she strongly criticized the parents for exploiting their daughter for such ideological reasons and encouraging her in her actions rather than forbidding them. In the second case, she rejected the appeal of an activist who had expressed his protest by damaging public installations, on the grounds that the violence of such actions was anti-democratic.

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How to cite this page

Eliahou, Galia. "Ayala Procaccia." Jewish Women: A Comprehensive Historical Encyclopedia. 1 March 2009. Jewish Women's Archive. (Viewed on December 26, 2014) <http://jwa.org/encyclopedia/article/procaccia-ayala>.

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