IN THE

SUPREME COURT OF THE STATE OF ISRAEL SITTING AS THE

HIGH COURT OF JUSTICE

HCJ 465/89

Before:           Hon. Justice G. Bach

Hon. Justice T. Or Hon. Justice S. Aloni

Petitioner:     Ilana Raskin

v.

Respondents: 1. The Religious Council of Jerusalem

2.Rabbi Yitzhak Kolitz

3.Rabbi Shalom Mesas

Argued:         13 Kislev 5750 (December 11, 1989)

Decided:        3 Sivan 5750 (May 27, 1990)

The Supreme Court sitting as the High Court Of Justice

[December 11, 1989, May 27, 1990]

Before Justices G. Bach, T. Or, S. Aloni

On behalf of the Petitioner: Adv. N. Goldman

On behalf of the Respondents: Adv. D. Kirshenbaum, Adv. M. Dadon

JUDGMENT

Judge T. Or

1. The issue posed by this petition regards the authority and the considerations that may be taken into account when granting a Kosher Certificate under the 5743/1983 Anti Kosher Fraud Act.
2. The Petitioner performs Middle Eastern dances, also known as belly dancing, for a living.

She has performed at life cycle celebrations and other events at, among other places, banquet halls and hotels in Jerusalem. Towards the end of 1988, the Petitioner noted a drop in the amount of bookings she had received to perform. Upon investigating the matter, she discovered that the hotels and banquet halls had refrained from booking her because they were worried that their Kosher Certificate would be withdrawn if they permitted the Petitioner to perform in their banquet halls. They showed her a letter with the letterhead “Chief Rabbinate of the Jerusalem District and the Religious Council of Jerusalem” dated April 28, 1987, signed by Rabbi Binyamin Adler. The letter, which was entitled, “Instructions to Owners of Banquet Halls under the Supervision of the Chief Rabbinate of Jerusalem” stated:

1. It is prohibited to host or permit immodest performances.

2. When renting a banquet hall, the individual or company holding the event must agree, as part of the contract with the tenant, that they will not have any immodest performances [as part of the event]. Failure to comply with these conditions may result in the withdrawal of the banquet hall’s Kosher Certificate.

From the Respondent’s affidavit it is clear that the Jerusalem Rabbinate and Religious Council have since changed the form they use [to contract with establishments under its supervision]. However, even the new form states that banquet hall owners must refrain from permitting immodest performances and anytime the hall is rented out they must ensure that such performances are not held, because this condition is a prerequisite for receiving a Kosher Certificate.

As the Petitioner has already been informed by the owners of the Jerusalem banquet halls, the [banquet hall owners] are worried that their Kosher Certificate will be withdrawn if they allow her to perform in their halls; therefore, they are unwilling to permit event hosts that

are interested in making such performances a part of their event. The Petitioner was explicitly informed by these banquet hall owners, that the kosher supervisors have become quite strict in enforcing the provision against “immodest” performances and, as a result, she has received fewer bookings. According to the Petitioner, as a result [of the policy] she has received less invitations to perform and her income has been reduced as she is now limited to performing in private homes or in a few small restaurants who continue to hire her from time to time.

When the Petitioner realized that the reason for the decline in requests for her services was due to the instructions of the Chief Rabbinate and Religious Council, her attorneys wrote a letter to the Chief Rabbinate of Jerusalem. In this letter it was pointed out that according to the Petitioners and her fellow [dancers], “the instructions which precondition a Kosher Certificate upon the absence of dancers or other similar conditions is illegal and is outside the legal bounds of the Rabbinate’s authority,” and she requested that the condition be nullified. The Rabbinate replied in a letter through its attorney, Adv. Kirshenbaum, according to which its instructions regarding dancers at the banquet halls are “grounded in Jewish law” and adds:

My client is legally charged with the task of ensuring that the banquet hall is kosher. The influence of my client is very important to the general public who relies upon kosher certification. Imposing conditions that are consistent with Jewish law is an appropriate action taken by my client.

3. Therefore, the dispute between the Petitioner and the Respondents is whether the Respondents are permitted to condition a Kosher Certificate, granted under the Anti Kosher Fraud Act to the owner of a food establishment requesting such a certificate, upon the absence of “immodest” performances in the hall in which food and drink are served. [Immodest performances] include eastern style belly dancing which is what the Petitioner does for a living.

The Petitioner claims that such instruction and the refusal to grant a Kosher Certificate under the aforementioned law to anyone who permits belly dancing in their food establishment is either outside the boundary of the law or a misuse of the authority granted to the Respondents, and is thus void.

4. The law under which the Respondents operate is the Anti Kosher Fraud Act (henceforth, “the Act”). Section 2(a) of the Act informs us of who is permitted to grant a Kosher Certificate under the Act, stating that it is the Chief Rabbinate of Israel or any other authorized rabbi including a local Rabbi (as defined by the Act) who serves the community in which either the food establishment, slaughterhouse or food production center is located.

Respondents 2 and 3 are the Rabbis of the City of Jerusalem, and as such, they are the [authorized] local Rabbis under Section 2(a)(2) of the Act. Respondent 1 is authorized to enforce kosher laws in the city under the 5731/1971 Jewish Religious Services Act using the guidelines of Respondents 2 and 3.

The Section of the Act that is relevant to this petition is Section 11 of the Act, which states, “When granting a Kosher Certificate, the [supervising] Rabbi may only take the laws of kashrut into account.” According to the text of this Section it is clear that it is delineating what considerations the [kosher supervisor] may take into account when deciding whether to grant a Kosher Certificate. The question we must now answer is what this guideline includes and what considerations are permitted under this Section.

The Petitioner claims that the Section limits the considerations the kosher supervisor may take into account only to those involving the kosher status of the food itself, and he cannot base his refusal to grant a Kosher Certificate upon events or considerations that are unrelated to the preparation  and  service  of  the  food,  although  related  to  other  [areas]  of  Jewish  law.  The

Respondents claim that when determining whether to grant a Kosher Certificate, they may take into account considerations relating to the status of the place itself and the events that take place there under Jewish law, even if there is no relation between the events held and the preparation and service of the food.

5. The [legal] status of Kosher Certificates is set by a secular law through which Respondents 2 and 3 receive their authority to grant Kosher Certificates. When it comes to granting Kosher Certificates, the [legal] status of Respondents 2 and 3 is the same as any administrative authority that must act within the framework of its authority and take into account relevant considerations in line with the rules all administrative authorities are bound by. If we determine that the Respondents acted outside the bounds of their legal authority or took into account irrelevant considerations that, by law, may not be taken into consideration or used as a guideline, this Court may involve itself and nullify the decision of the Respondents. HCJ 195/64 Southern Company Ltd. v. The Council of the Chief Rabbinate, IsrSC 18(2) 324. As stated in HCJ 195/64, the fact that the Rabbis are authorized to grant Kosher Certificates according to the principles of Jewish law does not inhibit this Court’s ability to determine whether the Rabbis exceeded their authority under law. See HCJ 44/86 Butchers Association of the Jerusalem District v. The Council of the Chief Rabbinate of Jerusalem, IsrSC 40(4) 1, 4 (Shamgar, President).

6.ThetheauthoritytoKoshertoa[Jewish]theoftheChiefatheorawemustthatwedealingwithaseculartheoftheauthoritytothoseauthorizedto KosheristhislawtheofforsecularThesearetofindthe

purpose of the law and its goals, in light of which we can arrive at the proper interpretation.

This is not the first time we have [interpreted a law based on its purpose]. For example, we have stated, “Laws are an instrument by which legislative goals can be implemented; therefore, they must be interpreted in light of their stated goal.” CA 481/73 Administrator of the Estate of Elza Bergman v. Shatsel, IsrSc 29(1) 505, 516 (Sussman, J.). Also, “Laws are part of the normative process and are made to fulfill a social purpose and are an expression of policy. The interpreter must reveal, among the spectrum of possibilities, the meaning that will fulfill the purpose of the law.” FH 40/80 Koenig v. Cohen, IsrSC 36(3) 701, 715.

In our case, we must trace the proper intent and interpretation of Section 11 of the Act. The focus of the dispute between the sides is the question of what is the meaning of [the term] “rules of kashrut,” which is the only consideration the authorized Rabbi may take into account when deciding whether to grant a Kosher Certificate. To interpret this we need to clarify the purpose of the Act in which Section 11 appears and includes the term “rules of kashrut,” and what “rules of kashrut” the Act intends to include in light of its stated purpose of preventing deceit in the kosher [industry].

We have already established more than once that when the legislature uses a term in [Jewish] religious law, which from a religious legal standpoint has more than one meaning, but is used in accordance with the normative meaning of a piece of legislation, the term may be understood differently to how it is usually understood by religious law. For example, in HCJ 58/68 Shalit v. Interior Minister, IsrSC 23(2) 477, Justice Sussman interpreted the term “Jew” as it appears in the 5710/1950 Law of Return differently than how it is understood in the 5714/1953 Rabbinical Court Jurisdiction Act (marriage and divorce), and, while this is quoted often, it is worth quoting again (at 513):

A term in a statute is a creation that dwells among its surroundings. It gets its character from the framework in which it finds itself, which teaches us that it must be interpreted in light of the purpose of the legislation in which it is found and not another which it does not come to serve… When you equate a law that comes to authorize a religious court, which judges according to Jewish law, you have no choice but to define a Jew as someone who the religious court recognizes as a Jew according to the law that it applies. Not only are non-Jews not subject to the jurisdiction of the Jewish religious courts, but people who whose Judaism is questionable are not either… But when you ask whether a person is a Jew for the purposes of the Law of Return, which was enacted in order to establish the status of [Jews wishing to return to their national homeland], the legislative purpose requires the conclusion that someone who has disconnected himself from the Jewish religion can no longer be considered a Jew.

Justice Barak made a similar statement in HCJ 265/87, HCJApp 388, 387, 376, 360, 355, 211/87,

405, 359, 155, 39, 38, 36, 35/88, 381/89 Bradford v. Interior Minister, IsrSC 43(4) 793 when he addressed the issue of the definition of the term “Jew” in the amendment to the Law of Return. When explaining his approach to what the legislature intended when it refers to one who is born to a Jewish mother and “is not the member of another religion,” Justice Barak states (at 843):

In my opinion, the determination of when someone who is born to a Jewish mother is not the member of another religion is made according to secular criteria, which require the interpretation of the Law of Return in light of its purpose.

In our case, there is no dispute as to the fact that [the term] “laws of kashrut” in Section 11 refer to religious laws. The dispute is whether the secular legislature, when referring to “only the laws of kashrut” and when taking into consideration the purpose of the Act, only intended to include

the laws of kashrut as they relate to food production, sale and service, and no other religious laws.

7. In order to determine the purpose of the Act and its instructions, it is appropriate that we first try to derive it from the language of the Act itself. The title of the Act informs us that its purpose is to prevent deceit in the kosher industry. The Act does not intend to delineate the rules of kosher or its obligations. Its only goal is to prevent deceit and protect those who keep a kosher diet. From the language of the Act, we can see that it deals specifically with the kosher status of food. For example, in Section 1, the term “food establishment” is defined as a place in which food or drink is sold or served to the public; regarding hotels, it includes the parts of the hotels in which food or drink is prepared or served. Additionally, other sections of the Act demonstrate that the Act is dealing with deceit as it relates to the kosher status of the food being sold or served to the public.

The attorney for the Respondents asks that we derive from Section 3 of the Act that the Act also refers to the kosher status of the place in which the food establishment is found, regardless of the kosher status of the food sold or served there.

Section 3 states:

1. The owner of a food establishment may not advertise his establishment as kosher, unless he has a Kosher Certificate.

(b)Theownerafood who aCertificate thefoodinisshownintobekoshernotor not to thelaw ofthe in [his establishment].

It does not seem to me that we can use this Section to derive that the existence of a Kosher Certificate at a food establishment attests to the kosher status of the place aside from its kosher

status as a place that sells or serves kosher food, as the attorney for the Respondents asks. The intention of the Section is to prevent misleading the public as to whether the food establishment in question serves kosher food or not. Someone who has not received a Kosher Certificate for the food served by him at his food establishment may not mislead the public by posting something that makes it seem as if he has a Kosher Certificate (paragraph (a)). One who has a Kosher Certificate may not sell food that is not kosher in his [certified] establishment (paragraph (b)). The two parts of the Section are meant to protect the public from eating food that is not kosher, and they both deal with preventing fraud against the public in regards to kosher food served by the food establishment in question.

8. Looking to the 5749/1988 Anti Kosher Fraud Regulations (Kosher Certificates) (henceforth, “the Regulations”) which were enacted in accordance with the Act we see that the author of the Regulations also understood the Act in this manner. When looking at the form titled “Request for Receiving a Kosher Certificate” we see, in addition to the Regulations, that the information that is to be provided by the applicant is all related to the kosher status of the food to be sold or served and not the kosher status of the place. All the questions are with regard to how the food is cooked, the names of the cooks and the supplier of the food, but no question is asked relating to the use of the banquet hall or the like, which has nothing to do with the kosher status of the food itself.

9.Thehistoryoftheustoathe5743/1983AntiwhichtheAct,12wasidentically11ofthe[ofthe7ofthe5726/1966Anticontainedidenticalprovision.referringtoSection7oftheproposed1966M.Eloninhisbook,

STATE  OF  ISRAEL  AND  THE  JURISDICTION  OF  THE  COURTS  AND  THE  RELIGIOUS  COURTS  20

(Kibbutz HaDati, 5728 (1968-69)), that “it seems that the intent of this Section is that the considerations taken into account when deciding whether to grant a kosher [certificate] are only those which directly concern the production and preparation of the [food]. See Shulhan Arukh, Yoreh Deah 119:7.” [Elon] writes that what prevented the proposed legislation from [being brought to a vote] was the opposition of the Council of the Chief Rabbinate to, among other things, the aforementioned Section 7. This means that even the Chief Rabbinate agreed that the instructions of this Section come to limit the considerations that the [Rabbi] granting the kosher certification can take into account to those relating to the production and preparation of food, which they were opposed to.

The intent to limit the Act as referring to the kosher status of the food we see from the comments upended to the proposed 1966 law and the Knesset debates during the course of the proposed legislation. In the explanation to the proposed legislation it was stated (at 119):

The subject of kosher status is different from other features of [food] products because it is not tangible and it is hard to establish the kosher status of an item by conducting a lab test or a similar procedure. Therefore, existing legislation is not enough to fight this unique type of fraud or deceit in [food] items, and there is a need to add the guarantee that will be provided by this proposed law.

From this we see that it is the kosher status of food items and prevention of fraud relating to that kosher status that motivated the proponents of the proposed legislation. Since the kosher status of food items is not visible to the naked eye alone and there is great concern for fraud regarding their kosher status, the need arose for the legislature to legislate a special law regarding the kosher status [of food]. However, the intent of the proposed law was only to deal with the kosher

status of food and did not address the question of whether food establishments must be run in accordance with Jewish law with regards to issues unrelated to the kosher status of the food sold or served in it.

When the proposed measure was brought for a first vote on the Knesset floor (on May 4, 1983), Minister Y. Burg stated:

I want to clearly state… that we are primarily dealing with the kosher status of food, its preparation and treatment, the kosher status of kitchens and the kosher status of cafeterias and nothing else… The intent is to protect the kosher status of food products… We refer to the concept of the kosher status of food products so that there is consistency between the label under which the product is sold and the true content of the product.

See Knesset Hearings (5743/1982-83), at 2091.

Additionally, the words of the Chairman of the Knesset’s Constitution, Law and Judiciary Committee, when bringing the proposed law to the Knesset floor for a second and third reading, made it clear that the purpose of the law relates solely to the kosher status of food. When referring to the goal of the Act, the Chairman stated:

Someone who eats food that is not kosher will suffer no harm if he is fed food that is kosher. However, the damage suffered by someone who wishes to keep kosher, but is given food that is not kosher, cannot be measured.

Knesset Hearings 97 (5743/1982-83), at 3152.

In referring to the difficulty in regulating the issue of kosher status, which is an issue that is religious in character and is based on the laws of the Torah, incorporated into secular law, the Chairman clarifies the parameters of the law:

The law does not go into the considerations taken into account by religious law, and,

therefore, does not tell us who has the right to receive a kosher [certification], it only limits the considerations which a Rabbi may take into account – as stated in Section 11 - when deciding whether to grant a Kosher Certificate to the matter of kosher status alone. The Rabbi may not take any other considerations into account, like, for example, considerations relating to the actions and opinions of the owner of the food establishment in question.

Id.

10. We can see, whether from the interpretation of the [relevant] sections or its legislative history, that the Act’s goal and purpose is to prevent deceit in the kosher status of food and its preparation and service, and is not meant to serve any other interest of religious law regarding issues unrelated to kosher laws as they relate to food. As we have said, this is a secular law that deals with the “laws of the kosher status” of food alone, and the authority provided does not include the authority to impose other religious laws unrelated to those dealing with the kosher status of food. Such use of authority and taking into account considerations that are irrelevant to the kosher status of the food are outside the bounds of the authority granted by the Act for granting a Kosher Certificate. This is a secular law meant to prevent deceit in the kosher certification of food, and when the Act refers to granting kosher certification, its intent is that the certification is for the sole purpose of declaring the kosher status of the food in question. With regard to the place in which the kosher food is served, [the Act] does not authorize the kosher supervisor to impose standards regulating behavior upon the place, even if they are standards that would guarantee compliance with Jewish law, if the standards do not change the kosher status of the food itself. If unlawful use of this authorization is utilized, this Court must involve itself.

11. the presented to us, it the use authorityto

grant Kosher Certificates and the conditions they set for granting them were outside the boundaries of the relevant considerations [they may take into account] because they included [conditions] that cannot be taken into consideration when deciding to withhold a Kosher Certificate.

For example, a letter written by the supervising Rabbi of the Jerusalem District Chief Rabbinate in charge of hotels, dated May 24 1989, warns the owner of the “Laromme” Hotel in Jerusalem that hosting a missionary event in the hotel may affect the kosher certified status of the hotel. Additionally, in a letter dated January 26 1989, the Chief Rabbinate of the Jerusalem District warns a hotel against hosting a Torah completion ceremony being held by women, stating, “We cannot agree to allow an institution which receives a Kosher Certificate from us to host such an event.” In a similar vein, the Chief Rabbinate has also warned against “hosting New Year’s celebrations, Christmas celebrations or any similar holiday. Likewise, [kosher venues] may not put up a Christmas tree.” From a letter dated November 1, 1989, signed by Rabbi Bernstein, supervising Rabbi of the Jerusalem District Chief Rabbinate it is clear that anyone who does not follow these directives is not fulfilling their requirements for maintaining their kosher certified status.

An affidavit, signed by Yonatan Harpaz, the CEO of the Jerusalem Hotels Association, states that the Chief Rabbinate of Jerusalem has informed the hotels in the city that if they permit the operation of microphones during lectures held on the Sabbath outside the hotel cafeteria, host New Year’s parties, put up a Christmas tree in their hotels, employ a Jewish worker at the main concierge desk on the Sabbath or play music on the Sabbath, they may have their Kosher Certificates revoked. (See HCJApp 494/89 (regarding other requirements set by the Jerusalem Chief Rabbinate)).

The responding affidavit filed by the Respondents states, in the opinion of the Respondents, that in addition to the kosher status of the food the supervising Rabbi must also ensure that the venue and its surroundings are supervised as well. As Rabbi Yehoshua Pinsky, the affiant for the Respondents, asks, “Is it possible that the Rabbinate will issue a kosher certification to a place in which the food may be kosher, but ignore the character of the place and the events being held there?!” See paragraph 16(a) of Respondent’s affidavit. He adds and emphasizes that the position of the Respondents is that a hall presented to the public as “Kosher, under the Supervision of the Jerusalem Rabbinate” appears to the public as a certification for the entire venue, not only in the narrow sense as referring exclusively to the food. When referring to the aforementioned [application] form he notes that it does refer to both the kosher status of the food and “immodest events.” See paragraph 25 of the Respondent’s affidavit.

Similarly, the memorandum filed by the second Respondent, attached to the responding affidavit states:

Clearly you cannot require the rabbi to grant a Kosher Certificate to a meal during which an abominable event is taking place, because the rabbi cannot mislead the public or be suspected of granting kosher status to a place that it is forbidden for him to grant such certification as explained above. It makes no difference whether the rabbi cannot grant kosher certification due to [food related] the laws of kashrut or because of any other [religious] prohibition, because it is clear that it is impossible to force the rabbi to transgress any prohibition in order to grant kosher certification, and in such a case, by merely granting the certificate, the rabbi is committing a transgression.

Similarly, in an interview on “Kol Yisrael” the second Respondent stated that a venue in which events hosted by the Conservative movement are held a Kosher Certificate would be withheld.

He states, “Conservative [Judaism] and a Kosher Certificate of the Chief Rabbinate cannot be together.” Likewise, “if the [applicant] is Reform or Conservative, we will grant a kosher [certificate], but if the place is run in a Reform or Conservative manner, we cannot grant a kosher [certificate].” See Appendix D of HCJApp 494/89.

We see that the opinion of the second Respondent is that when the supervising Rabbi comes to grant a Kosher Certificate, in addition to the kosher status of the food, he must also supervise whether the banquet hall hosts or intends to host events that are inconsistent with Jewish law, even if they are not prohibited by kashrut laws, [and if they do] he can withhold a Kosher Certificate from the owner of the establishment. Furthermore, a supervising Rabbi must discern whether other areas of Jewish law are being observed, not only whether kosher laws are being adhered to. In other words, observing the laws of kosher food alone is not enough to receive a Kosher Certificate. This is how the honored Rabbi understands the role of the kosher supervisor, as he clearly states in his memorandum when referring to what the supervising Rabbi must take into account when determining whether to grant a Kosher Certificate:

We are not coming to analyze or interpret the Anti Kosher Fraud Act, but rather to briefly analyze how Jewish religious law treats the issue of granting a Kosher Certificate. What is the obligation of the one granting the kosher [certification], an obligation that must be filled honorably by not deceiving himself and certainly not others?

What we can see from this is that according to the Respondents’ position, once an application has been filled for a Kosher Certificate and submitted to the Rabbis, a Rabbi, wishing to be at peace with himself, may withhold a Kosher Certificate when the food establishment in question hosts events that are inconsistent with Jewish law, even if they keep the laws of kashrut as they relate to food.

12. This approach is inconsistent with the goal of the Act, which provides the authority for granting Kosher Certificates, and its purpose. Whatever the opinion of the [Rabbi] authorized to determine whether to grant a Kosher Certificate to the applicant for a certificate or the food establishment in question, when the [Rabbi] exercises his authority, he must only take into account those considerations which are valid under law, and no other considerations which are irrelevant to the goal and purpose of the Act. A local city Rabbi may express his opinion against activities taking place at food establishments or at hotels when [these activities] are against his religious outlook and against Jewish law. He may also advise that [these activities] be stopped, and that people should not take part in certain events that occur in certain places, if, in his opinion, this is proper according to Jewish law. However, when the law authorizes him to grant Kosher Certificates and delineates what considerations he may take into account when making the decision whether to grant a Kosher Certificate, he may only take these considerations into account. If these conditions are met, he must grant a Kosher Certificate because this is the dictate of the legislature.

Anyone who sees a Kosher Certificate in a hotel or in a food establishment must understand that the certification is not a stamp of approval stating that the establishment as a whole operates according to the rules of Jewish law. The significance of the certificate is solely that the owner of the establishment keeps the rules of kosher in the sense that the food served is kosher and nothing more. Anyone interested in keeping kosher may eat there without having to worry that he is being deceived as to the kosher status of the food. In this way, the goal and purpose of the Act is upheld. Whether a potential patron decides to dine there or not for reasons other [than the kosher status of the food] is a matter left to each person to decide on their own. If the authorized Rabbi or any other Rabbi feels the need to advise his followers that, based on

religious law considerations unrelated to the kosher status of the food, it is proper to avoid the services of a particular hotel or food establishment, he may advise them as such. However, such religious law considerations may not be taken into account when determining whether to grant a Kosher Certificate. So long as the owner of a food establishment upholds the laws of kosher food, he is entitled to receive a Kosher Certificate.

Before the Act was enacted, Rabbis had the authority to determine whether to grant kosher certification to food products or food establishments based on their own discretion [based upon which] they could either grant or deny a kosher [certificate]. Anyone interested in kosher food could choose the kosher food he wanted according to his level of trust in the kosher supervision provided by a particular Rabbi, as each Rabbi would take his own considerations into account without having to provide any explanation. With the enactment of the Act, authorization for granting Kosher Certificates was granted to only those included in the Act. The Act also limits the spectrum of considerations that may be taken into account to those relevant to a Kosher Certificate as described above, and its goal and purpose is to prevent deceit in the kosher status of food. The Act assists with the need to safeguard the laws of kosher food; its production, preparation and service thereof, and ensure that the Kosher Certificate will only be granted to those who observe [all these rules] without taking into account the level of observance the owner has to other rules of Jewish law, whether in the personal life of the applicant or in the way in which he manages his business, so long as the kosher status of the food that he sells or serves is not compromised.

13. In his claim, the attorney for the Respondents is clearly aware of the fact that the Respondents may not take into account considerations unrelated to the kosher status of food when deciding whether to grant a Kosher Certificate. [During the hearing] he made a "tactical

withdrawal" to an extent, (compared to what was stated in the responding affidavit and letters submitted by the Respondents) when he agreed that the laws of modesty are not relevant to the question of whether a [food establishment] is entitled to a Kosher Certificate under the Act. Immodest clothing worn by a woman in a food establishment is not enough, even according to him, to withhold a kosher [certificate] from a food establishment. The same applies to [a venue] in which men and women dance together. However, he emphasized that in this case we are dealing with belly dancing on the part of the Petitioner, which is entirely – according to him – built upon sensual and sexual stimulation. Such a performance, he claims, is forbidden even according to the laws of kosher and justifies withholding a Kosher Certificate from a food establishment which hosts such performances. The attorney for the Respondents lists several reasons for this, and we will address them one by one. But first, it would be appropriate to mention a few things.

First, although the attorney for the Respondents agrees that the laws of modesty are not relevant to granting a Kosher Certificate, we did not hear any clarification as to the distinction between belly dancing and other prohibitions under the laws of modesty from a religious law standpoint, explaining why the former does influence the kosher status of food and the latter does not.

Second, during the hearing the attorney for the Respondents wished to direct us to the religious legal source, if such a thing exists, which, according to him, teaches that a place hosting dances like those of the Petitioner is not fit for a Kosher Certificate for the food served there; however, he never provided such a source in religious law. While we have yet to directly address the claim of the Respondents, what we want to emphasize here is that we were not provided with a source in Jewish religious law that establishes that food loses its kosher status when served in a

place which hosts performances by belly dancers, as opposed to another place which [may not host belly dancing] but does not keep all the religious laws of modesty. The claim of the attorney for the Respondents that a local Rabbi may decide to withdraw the Kosher Certificate of an establishment which hosts such dances so that the absence of such events serves as a precondition for obtaining a Kosher Certificate for the food does not stand. We have already stated that the purpose of the Act is to prevent deceit when it comes to the kosher status of food. Therefore, preconditions and requirements that are unrelated to the kosher status of food are not within the framework of considerations that may be taken into account by those authorized to grant Kosher Certificates. If we were to accept the claim of the attorney for the Respondents, we would effectively render meaningless the main purpose of the Act, and we would grant those authorized to grant Kosher Certificates power beyond that which was intended by the Act.

Third, we asked the attorney for the Respondents whether in other places in Israel local Rabbis condition Kosher Certificates upon the absence of such performances like that of the Petitioner. We did not receive an answer to this question, and we could understand from the words of the Respondents’ attorney that as far as he knows this is unimportant. According to him, even if this is not a precondition for receiving a Kosher Certificate in other places, this does not disqualify the actions of the Respondents. We asked our questions based on the fact that the evidence before us indicated that the demand in question is not universal among all supervising Rabbis and during the time immediately after the Act went into effect, there was no requirement that belly dancing be absent from the venue as a precondition for receiving a Kosher Certificate, even in Jerusalem.

Additionally, a further issue is that the Act is in effect throughout the country, and should thus  be  interpreted  uniformly  throughout  the  country.  If,  for  example,  in  Haifa  a  Kosher

Certificate were granted to a food establishment in which performances such as the Petitioner’s are held, it would be unreasonable if, under the same Act and under similar circumstances, a Kosher Certificate were withheld in Jerusalem. As we said above, the Act establishes what core demands and preconditions may be made of an establishment seeking a Kosher Certificate for its food. These requirements are the same across Israel. Anyone who requires more and is more particular in his observance of all religious laws may rely on what his Rabbis or deciders of religious law hold and refrain from eating at a certain food establishment. However, [refraining from patronizing a particular food establishment in such a case] would not be because the food at the establishment is not kosher as understood by the Act, but rather because of other reasons related to his beliefs and desire to observe other religious laws.

We now turn to the reasons of the Respondents for withholding Kosher Certificates from food establishments because they host belly-dancing performances.

14. The first reason was that granting a Kosher Certificate to an establishment which hosts performances such as that of the Petitioner is forbidden because of the [religious] law of “marit ayin” (literal translation: “what is seen by the eye”). Rabbi Kolitz deals with this issue at length in his memorandum. The importance of this point, as it relates to this case, is that anyone who comes to eat at the food establishment in which the Petitioner performs and sees the Kosher Certificate may be led to believe one of two things: either that such a performance is not prohibited by religious law, a [mistake] that is very serious in the eyes of Rabbi Kolitz because such performances are abhorred and forbidden under religious law, or the diner will conclude that the [supervising] Rabbi is granting such a performance his stamp of approval and is thus untrustworthy and, therefore, a kosher [certification] granted by [this Rabbi] is not valid under religious law even in regards to the kosher status of the food.

With all due respect, this reason is completely unrelated to the kosher status of the food.

It is also built on the thinking that a Kosher Certificate granted by the Act attests to the kosher status of the character of the food establishment and the actions performed there beyond those relating to the kosher status of the food. As we have already mentioned, a Kosher Certificate granted under the Act establishes only that the food in a particular place is served in accordance with all the laws of kashrut. The Kosher Certificate says nothing about the establishment’s adherence to all religious laws. From the memo submitted by Rabbi Kolitz, as quoted above, he refers to a more general type of kosher certification, and not one which only addresses [the kosher status of food]. In such a case, perhaps there would be an issue of marit ayin, but not in the case we are addressing.

15. Another reason provided addresses the fact that when the Petitioner is performing in the banquet hall, the supervising Rabbi cannot be present, because being present is prohibited under religious law. When he is not present, he cannot supervise what is being done at the hall, including supervising the kosher status of the food. This argument does not stand either.

Adequate supervision on the part of kosher supervisors means guaranteeing that only kosher food is brought into the banquet hall, and this can be done even during the course of the 15-20 minute performance when the kosher supervisor is not in the banquet hall itself. There is no precondition for a kosher supervisor to be able to enter every place in which food is served - like room service, for example.

Additionally, when food is served at a mini bar next to a hotel pool, where there are immodestly dressed swimmers in the pool and the kosher supervisor is not present, there is no claim that the Kosher Certificate must be withheld from the hotel because food is  served poolside.

The Respondents, as the sole provider of Kosher Certificates, must take the necessary steps to ensure that there is adequate [kosher] supervision, even when a performance they find distasteful is being held. It seems that with the right amount of effort and by taking the appropriate steps, it will not be difficult for them to ensure this. However, it seems that they are not prepared to do this. Take, for example, the fact that the hotel owners have proposed, even according to the attorneys for the Respondents during the course of the hearing, that Kosher Certificates be granted on the precondition that when performances such as those of the Petitioner are held, during which the kosher supervisor is not present in the hall, no food will be served or that the performances will be held after the meal has ended. It seems that with a little effort, good will, and disregard for considerations not relevant to the kosher status of food it, it will not be difficult to reach a solution in which the kosher status of the food in question will not be compromised even if performances such as that of the Petitioner are held in a hotel or banquet hall which carries a Kosher Certificate. The Respondents’ refusal to reach a solution either as suggested or a similar one raises the suspicion that that they do not exclusively take legal considerations relating to the kosher status of the food into account when refusing to grant a Kosher Certificate to a food establishment which hosts the performances of the Petitioner.

16.reason,providedintheofMesas,isthethatsomeonewhonottolawinsuchthatofthenotreliableittothestatusfood.ThekoshersupervisorbeinthefoodduringhoursofthesoobservingtheofalsouponaoftrustintheofthefoodWhenthe[owner]notobservethelawsofmodestypermitslikethosetheiswith,hecannotbeupontokeeptheofkosher

food.

We cannot accept this claim either, as it is merely a way to impose the observance of all religious law. If because the owner does not observe all religious laws in his place of business, the owner of the food establishment cannot be trusted, according to the same line of thinking only someone who fully observes all religious laws in his place of business may receive a Kosher Certificate. This claim clearly contradicts Section 11 of the Act, as explained above, that [the kosher supervisor] must determine only whether the laws of kashrut are being kept, and not whether other religious laws are being observed, which, if not, will not harm the owner’s ability to receive a Kosher Certificate.

17.ThefortheRespondentsanumberofagainsttheofthetoAmongtheclaimsputforth,twoworthybeing theseare herein brief.

The first claim is that the relief sought in a case where a Kosher Certificate is withheld is covered by Section 12 of the Act, which states, “Someone who has been refused a Kosher Certificate may appeal to the Chief Rabbinate of Israel.” The attorney for the Respondents claims that this is the only way to legally challenge the denial of a Kosher Certificate.

This claim is erroneous. Section 12 provides a remedy for one who has applied for a Kosher Certificate, specifically a food supplier or the owner of a food establishment, and was denied. This is not the case [here]. The Petitioner did not apply for a Kosher Certificate and is not entitled to one either. The Petitioner is someone who is affected by the conditions set by the Respondents that deny a Kosher Certificate to the owner of a food establishment who permits her to perform. Hotel owners and the owners of food establishments that have accepted the conditions of the Respondents are deterred from confronting them for fear of losing business if

their Kosher Certificate is withdrawn. However, the Petitioner, who is harmed by the actions of the Respondents, has a claim against the actions of the Respondents, even if the hotel owners have refrained from bringing a claim. The path open to her is turning to this Court for relief in the form of preventing the Respondents from making unauthorized use of the power granted to them by the Act.

This clarifies the [status] of the second claim made by the attorneys for the Respondents according to which the Petitioner has not proven that she has suffered damage as a result of the Respondent’s polices and conditions for receiving a Kosher Certificate and, thus, should be dismissed. From the affidavit filed by the Petitioner it is clear that her income has been significantly reduced and this claim is supported by documentation attached to her affidavit regarding the cancellation of her performances in light of the Respondents’ position and demand that performances like hers be stopped by those who wish to apply for a Kosher Certificate.

18. On the basis of all that we have said, this order shall be made permanent and it is established that the Respondents may not condition a Kosher Certificate upon the absence of belly dancing or [other] “immodest performances” at the food establishment applying for the certificate, under the terms of the Act.

Also, I would obligate the Respondents to pay the costs of the Petitioner in the amount of NIS 5,000 as of today.

Justice S. Aloni

I join with the decision of Justice Or, and I have nothing more to add.

Justice G. Bach

I agree with the opinion of my esteemed colleague, but I would like to add a few comments:

1. As my colleague mentioned in his opinion, the Respondents must distinguish between religious laws directly associated with the kosher status of food, which may be taken into consideration when exercising their authority pursuant to Section 11 of the Anti Kosher Fraud Act, and other considerations, which may not be taken into account, even if they are based on religious law.

The difficulty in putting this rule into practice arises when a particular area of religious law falls into both categories. The laws of the Sabbath, which were addressed by the attorneys for both sides in their arguments, are an example of this. If the Respondents are convinced that a particular food establishment prepares food in violation of the Sabbath, they may take this consideration into account when deciding whether to grant a Kosher Certificate under Section 11 of the aforementioned Act as it falls into the category of the laws of kosher. I note that counsel for the Petitioner has also agreed to this proposition.

On the other hand, if it is clear to the Respondents that, for example, in order to participate in the event there is transportation being provided for guests in violation of the laws of the Sabbath or music is being played [on the Sabbath] in violation of religious law; this would not be justification for withholding a Kosher Certificate under the Act.

2. Obviously the Respondents are not permitted to take into account aspects that are completely irrelevant to the issue of kosher food such as the membership of the owner of the food establishment in a particular stream of Judaism or the hosting of a ceremony or party that is distasteful to the Respondents.

To the credit of the attorney for the Respondents, there was no effort to justify acts attributed to some rabbinical factors in some of the examples attached to the case by the Petitioner and that were mentioned in the opinion of Justice Or. [Counsel for the Respondents]

noted that the circumstances of those cases, which were not related to this petition, were not fully clarified, and, in fact, no Kosher Certificate has ever been withdrawn from any hotel or food establishment because of the occurrence of any such event. However, if such a thing were to happen, he did not believe that such acts could be defended.

3. As for this specific case, it seems to me that the Respondents should, beyond the legal considerations that guide this decision, reexamine their approach to this issue within the framework of their main goal. They must not forget that there are many groups in society who have adopted certain practices, which they have become accustomed to, for example [attending performances] such as the one in question, which they find of interest. Likewise, they must understand that ideas and understandings have changed over time and an act that may be considered sensual and may have been at one point considered inappropriate or immodest is nowadays not considered to be such by most members of the public, whether they themselves enjoy this type of performance or prefer another type of entertainment.

Another fact is that, many of those wishing to include a performance, such as the one provided by the Petitioner, in a ceremony associated with a family celebration are also interested in ensuring that the food served to them and their guests is in accordance with the demands of kosher laws. I believe that the main purpose of ensuring the distribution and consumption of mehadrin (literal translation: “strict”) kosher food justifies, to a certain extent, an amount of flexibility concerning certain performances and their appropriateness in changing realities.

A good example of this flexible and constructive approach can be found in the responsa of the great deciders of [Jewish] law. The late Rabbi Moshe Feinstein, who lived in the United States, was known as one of the great deciders of Jewish law in our generation. Someone once asked him a question relating to a Jewish sports club whose restaurant sold non-kosher food. The honorable Rabbi

was asked whether in his opinion “[one] can act to ensure that the establishment would be under the supervision of reliable Rabbis and will not prepare food on the Sabbath, but will be permitted to serve milk to whoever wants…including] cold dairy ice cream after a meat meal…”

The Rabbi responded that it is permitted. In his answer he said, among other things, that “[the purpose of] rabbinical kosher supervision is not to ensure that the sellers are righteous people… rather it is for the Rabbis to supervise the establishment and ensure that what is being sold to consumers is kosher, whether dairy or meat products, and that they do not cook on the Sabbath…”

Furthermore, the Rabbi stated, “On the [certificate] provided by the Rabbis [which is] posted [in the restaurant] they cannot write that the sellers are [reliable] people, rather that everything sold in the store is kosher and under rabbinical supervision…” He continues, “This is a great merit for the honor of [God’s] great Torah as [it] is something that will save thousands of souls from eating forbidden foods.” See Responsa Iggrot Moshe, Yoreh Deah 52[a].

An almost identical question was posed in Israel to Rabbi Ovadiah Yosef (See Responsa Yabia Omer vol. 4, Yoreh Deah 7[b]). At the beginning of Section 7[b] it states:

I was asked about a restaurant in which Jews eat, where the owner of the restaurant is willing to accept [kosher] supervision from the local rabbinate, so that the food in the restaurant will be kosher, and obey the directives of the supervisor regarding the kosher status of the food on the condition that the [kosher] supervisor ignore those who wish to eat dairy (ice cream) immediately after [eating] meat or even eat them together [uncooked]. Do we accept such a condition and thereby prevent the consumption of [non- kosher meat] and [the consumption of] actual meat and dairy together, or do we say let the wicked [fall and be punished for their actions]”.

HCJ 953/01

MK Marina Solodkin

v.

1.     Beit Shemesh Municipality

2.     Minister of Interior

HCJ 1355/01

Shinui — the Secular Movement and five others

v.

1.     Minister of Interior

2.     Beit Shemesh Municipality

HCJ 7406/01

MK Marina Solodkin and three others

v.

1.     Carmiel Municipality

2.     Mayor of Carmiel

3.     Minister of Interior

HCJ 2283/02

Manya Delicatessen Meat and Sausage Product Industries Co. Ltd

v.

1.     Mayor of Tiberias

2.     Tiberias Municipal Council

3.     Attorney-General (HCJ 2283/02)

The Supreme Court sitting as the High Court of Justice

[14 June 2004]

Before President A. Barak, Vice-President Emeritus T. Or,
Vice-President E. Mazza and Justices M. Cheshin, J. Türkel, D. Beinisch,
A. Procaccia, E.E. Levy, M. Naor

Petition to the Supreme Court sitting as the High Court of Justice

Facts: An enabling law of the Knesset empowers local authorities to enact bylaws that prohibit or restrict the sale of pig meat and meat products within the municipal boundaries. The respondent municipalities enacted such bylaws, which restricted or prohibited the sale of pig meat and meat products within their respective boundaries. The petitioners challenged these bylaws, arguing that they violated the freedom of occupation of the sellers of pig meat, and the liberty of the consumers to adopt whatever lifestyle they saw fit, without interference amounting to religious coercion.

Held: The purposes underlying the enabling law empower the local authorities to prohibit or restrict the sale of pig meat and meat products, provided that each local authority makes its decision in accordance with the proper criteria, namely a balancing of religious and national sensibilities of those persons who object to the sale of pig meat against the violation of the human rights of those persons who wish to sell or consume pig meat. This balancing must be made in view of the local character of the population in each neighbourhood. The Supreme Court returned the matter to the local authorities to reconsider their decisions on the basis of the criteria set out in the judgment, without expressing any opinion as to the propriety, or otherwise, of the specific bylaws that had been enacted.

Petitions denied.

Legislation cited:

Basic Law: Freedom of Occupation.

Basic Law: Human Dignity and Liberty, ss. 2 and 4.

Beit Shemesh (Pigs and Pig Meat) Bylaw, 5760-2000.

Carmiel (Pig Meat) Bylaw, 5738-1978.

Carmiel (Pig Meat) Bylaw, 5761-2001.

Local Authorities (Special Authorization) Law, 5717-1956, ss. 1, 2, 3, 4, 5, 6.

Municipalities Ordinance [New Version], s. 258.

Prohibition against Raising Pigs Law, 5722-1962.

Tiberias (Pigs and Pig Meat) Bylaw, 5718-1958.

Israeli Supreme Court cases cited:

[1]        HCJ 122/54 Axel v. Mayor, Council Members and Residents of the Netanya Area [1954] IsrSC 8 1524.

[2]        HCJ 155/60 Elazar v. Mayor of Bat-Yam [1960] IsrSC 14 1511.

[3]        HCJ 72/55 Freidi v. Tel-Aviv-Jaffa Municipality [1956] IsrSC 10 734.

[4]        HCJ 163/57 Lubin v. Tel-Aviv-Jaffa Municipality [1958] IsrSC 12 1041.

[5]        HCJ 129/57 Manshi v. Minister of Interior [1958] IsrSC 12 209.

[6]        HCJ 3872/93 Meatreal Ltd v. Prime Minister and Minister of Religious Affairs [1993] IsrSC 47(5) 485.

[7]        HCJ 1/49 Bajerno v. Minister of Police [1948] IsrSC 2 80.

[8]        HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [1997] IsrSC 51(4) 367.

[9]        FH 13/58 Tel-Aviv-Jaffa Municipality v. Lubin [1959] IsrSC 13 118.

[10]     HCJ 806/88 Universal City Studios Inc. v. Film and Play Review Board [1989] IsrSC 43(2) 22; IsrSJ 10 229.

[11]     HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Central Election Committee for Sixteenth Knesset [2003] IsrSC 57(2) 62.

[12]     CA 6024/97 Shavit v. Rishon LeZion Jewish Burial Society [1999] IsrSC 53(3) 600; [1998-9] IsrLR 259.

[13]     HCJ 4541/94 Miller v. Minister of Defence [1995] IsrSC 49(4) 94; [1995-6] IsrLR 178.

[14]     HCJ 5016/96 Horev v. Minister of Transport [1997] IsrSC 51(4) 1; [1997] IsrLR 149.

[15]     HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [1953] IsrSC 7 871; IsrSJ 1 90.

[16]     HCJ 14/86 Laor v. Film and Play Review Board [1987] IsrSC 41(1) 421.

[17]     HCJ 230/73 S.T.M. Ltd v. Mayor of Jerusalem [1974] IsrSC 28(2) 113.

[18]     HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [1995] IsrSC 49(5) 1.

[19]     HCJ 6226/01 Indor v. Mayor of Jerusalem [2003] IsrSC 57(2) 157.

[20]     HCJ 7128/96 Temple Mount Faithful v. Government of Israel [1997] IsrSC 51(2) 509.

[21]     HCJ 4644/00 Jaffora Tabori Ltd v. Second Television and Radio Authority [2000] IsrSC 54(4) 178.

[22]     HCJ 4769/95 Menahem v. Minister of Transport [2003] IsrSC 57(1) 235.

[23]     CrimA 217/68 Isramax Ltd v. State of Israel [1968] IsrSC 22(2) 343.

[24]     CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [1995] IsrSC 49(4) 221.

[25]     CrimA 858/79 Lapid v. State of Israel [1980] IsrSC 34(3) 386.

[26]     HCJ 3791/93 Mishlav v. Minister of Interior [1993] IsrSC 47(4) 126.

[27]     AAA 5042/01 Zid v. Faras [2002] IsrSC 56(3) 865.

Israeli Magistrates Court cases cited:

[28]     CrimC (Net.) 1312/95 State of Israel v. Rubinstein (unreported).

Jewish law sources cited:

[29]     Babylonian Talmud, Menahot 64b.

[30]     Maccabees 2, 7, 1.

For the petitioners in HCJ 953/01, 7406/01 — Z. Farber.

For Beit Shemesh Municipality — M. Berkovitz, O. Gamliel.

For the Ministry of the Interior — A. Licht, Senior Assistant to State Attorney.

For the petitioners in HCJ 1355/01 — G. Koren.

For the petitioner in HCJ 2283/02 — U. Edri, O. Kabiri.

For respondents 1-2 in HCJ 7406/01 — S. Geva.

For respondents 1-2 in HCJ 2283/02 — Y. Karni.

JUDGMENT

President A. Barak

Tiberias Municipality prohibited, in a bylaw, the sale of pig meat and meat products in all areas within the Municipal boundaries. Beit Shemesh Municipality and Carmiel Municipality prohibited, in a bylaw, the sale of pig meat and meat products in some of the areas within the Municipal boundaries, while permitting the sale of pig meat and meat products in other areas. Were these bylaws passed lawfully? That is the question before us.

Background

1.    Since the nineteen-fifties, the question of the sale of pig meat and meat products within the boundaries of local authorities has remained constantly on the political, legal and judicial agenda in Israel (for a survey, see D. Barak-Erez, ‘The Transformation of the Pig Laws: From a National Symbol to a Religious Interest?’ 33 Hebrew Univ. L. Rev. (Mishpatim) 403 (2003)) At first, local authorities made a licence to run a business conditional upon not selling pig meat and meat products within its boundaries. When the legality of this condition was brought before the High Court of Justice, it was held that a local authority does not have the power to made a business licence conditional upon not selling pig meat and meat products. President Olshan said that the sale of pig meat within the boundaries of the local authority ‘is in our opinion a general and national problem, which is not unique to any particular place, and its solution rests with the sole jurisdiction of the national legislature, unless the national legislature has seen fit to delegate this authority to the local authorities’ (HCJ 122/54 Axel v. Mayor, Council Members and Residents of the Netanya Area [1], at p. 1531). The contention that the power of the local authority to prohibit the sale of pig meat derived from its duty to maintain order and security within its boundaries was also rejected. Justice Silberg said that ‘the forum for conducting the various ideological disputes between sections of the public — such as religion, nationality, socialism, etc. — is the Knesset or the central institutions of the Government, and neither the municipality nor the local authority are competent to regulate them or “guilty” of not regulating them…’ (HCJ 155/60 Elazar v. Mayor of Bat-Yam [2], at p. 1512).

2.    In addition to refusing a licence to open a business that sold pig meat and meat products pursuant to general powers, several local authorities adopted a direct measure: they enacted bylaws that expressly prohibited the sale of pig meat within the boundaries of the local authority. The legality of these bylaws came before the Supreme Court in the middle of the nineteen-fifties. It was held that a local authority does not have the power to prohibit the sale of pig meat by means of subordinate legislation. Giving his reasons for this approach, Justice Goitein said ‘… that a body that had the power to enact subordinate legislation of a local nature should not be allowed to regulate religious problems under the cloak of regulating the sale of meat in a certain place. The Knesset, rather than the municipality, should regulate matters of religion’ (HCJ 72/55 Freidi v. Tel-Aviv-Jaffa Municipality [3], at p. 752).

The enabling law

3.    The regulation of the prohibition against the sale of pig meat passed therefore to the Knesset, which enacted the Local Authorities (Special Authorization) Law, 5717-1956. The law contains six sections. It deals with the prohibition of raising pigs and the prohibition of selling pig meat and meat products. The first issue was regulated several years later in the Prohibition against Raising Pigs Law, 5722-1962, and the provisions in this regard were removed from the Local Authorities (Special Authorization) Law, which was limited to the sale of pig meat and meat products only. The first two sections provide as follows:

Additional provisions in the enabling law grant a local authority ancillary powers (s. 3) and state that whoever breaches a provision of the bylaw after the enactment of the enabling law is liable under the criminal law (ss. 4 and 6). A provision was also included with regard to preserving powers (s. 5).

4.    On the basis of the enabling law, many local authorities enacted bylaws restricting the sale of pig meat and meat products. Frequently the bylaw imposed a complete prohibition of the sale of pig meat and meat products within the boundaries of the local authority. Sometimes the prohibition was limited to a certain area within its jurisdiction. Attempts were made in the Knesset to replace the arrangement in the Local Authorities (Special Authorization) Law with a general prohibition (see, for example, the draft Prohibition against Raising Pigs Law (Amendment), 5785-1985). These attempts did not become legislation.

5.    During the nineteen-nineties, the sale of pig meat and meat products became significantly more widespread, notwithstanding the prohibitions contained in the municipal bylaws. It is possible that one of the reasons for this is connected with the large waves of immigration from the former Soviet Union. Some of these immigrants, who were accustomed to consuming pig meat in their countries of origin, brought with them a demand for pig meat and meat products in the places where they were living. Against this background, there was an increase in the number of shops selling pig meat and meat products in cities where large numbers of immigrants from the former Soviet Union were concentrated. In several local authorities, criminal proceedings were filed on account of offences against the bylaws prohibiting the sale of pig meat (see, for example, CrimC (Net.) 1312/95 State of Israel v. Rubinstein [28]). Against this background, the Attorney-General was required to consider the issue of the bylaws prohibiting the sale of pig meat. He directed the prosecutors in the local authorities to examine the reasonableness of the restrictions imposed in the bylaws in accordance with the specific needs and circumstances of the local authorities concerned before filing indictments (see the Guidelines of the Deputy Attorney-General (Advice) to prosecutors in the local authorities dated 19 February 1998). Guidelines to the same effect were given to the legal adviser of the Ministry of the Interior, before approving the enactment of bylaws that prohibit the sale of pig meat (Guidelines of the Deputy Attorney-General to the legal adviser of the Ministry of the Interior dated 9 March 1998).

The petitions

6.    We have before us four petitions concerning bylaws in three local authorities. Two petitions are directed against the Beit Shemesh (Pigs and Pig Meat) Bylaw, 5760-2000 (hereafter — the Beit Shemesh bylaw). The bylaw was enacted by the Municipal Council, and was approved by the Minister of the Interior. It has not yet been published in Reshumot. This bylaw prohibits the sale of pig meat in the areas marked on a map that was attached to the bylaw (ss. 1 and 3). These areas include the whole area of Beit Shemesh, with the exception of the industrial zones, which are situated outside the residential neighbourhoods of the city. MK M. Solodkin filed a petition against the legality of this bylaw (HCJ 953/01). The second petition was filed against the same bylaw by the Shinui movement, four owners of shops in the city of Beit Shemesh that sell pig meat products and a resident who is accustomed to buy these products (HCJ 1335/01). In response to the petitions, an interim order was made prohibiting any actions within the framework of the Beit Shemesh bylaw. As a result, the bylaw was not published.

7.    The third petition, in which MK M. Solodkin is also a petitioner, together with three shop owners who sell pig meat (HCJ 7406/01) concerns two bylaws in the city of Carmiel. The first bylaw (the Carmiel (Pig Meat) Bylaw, 5738-1978) prohibits the sale of pig meat in the whole of Carmiel, apart from the industrial zone. The bylaw was reconsidered by the local council, which enacted the Carmiel (Pig Meat) Bylaw, 5761-2001. This bylaw repealed its predecessor and enlarged the area in which the prohibition against the sale of pig meat did not apply to two commercial areas in the city. The petition is directed against the legality of both the old and the new bylaws. During the hearing of the petition, an interim order was made that postponed the commencement of the new bylaw and prohibited the Carmiel municipality from enforcing the old bylaw, all of which until judgment was given in the petition.

8.    The fourth petition (HCJ 2283/02) is directed against the Tiberias (Pigs and Pig Meat) Bylaw, 5718-1958 (hereafter — the Tiberias bylaw). The bylaw prohibits the sale of pig meat in Tiberias. The petition was filed by a company involved in the manufacture and wholesale and retail marketing of pig meat products, which markets its products, inter alia, to delicatessens in the city of Tiberias. The petition before us was filed as a result of a previous petition that was directed against the Tiberias bylaw (HCJ 9533/00). That petition was struck out after the Tiberias Municipality agreed to the court’s recommendation that it should reconsider the Tiberias bylaw, in accordance with the principles of the Attorney-General’s position. The issue was reconsidered by the Municipal Council, which decided (on 20 November 2001) to leave the Tiberias bylaw unchanged.

9.    When the respondents’ reply was received, a hearing of the four petitions took place on 19 June 2002. The hearing took place before a panel of three justices. It was decided to ask for supplementary details concerning demographic and geographic figures in each local authority and with regard to the location of the shops selling pig meat. Finally it was decided to expand the panel to nine justices. The panel heard the arguments of the parties on 7 December 2003. After the hearing, an interim order was made, at the request of the petitioner in the petition against Tiberias Municipality (HCJ 2283/02), to the effect that the Tiberias bylaw should not be enforced. After the hearing was ended, the Movement for Fairness in Government filed an application to join the petitioners as a ‘friend of the court.’ We see no reason to approve this joinder, both because of the lateness in filing the application and also on the merits. The application is denied.

The petitioners’ contentions

10. The petitioners argued before us that the bylaws that are the subject of the petitions violate the freedom of occupation of the shop owners and marketers. In addition, they prejudice the basic right of the secular public that consumes non-kosher meat to freedom of conscience and freedom from religion. In the opinion of the petitioners, the enabling law should be given a meaning that is consistent with the Basic Law: Human Dignity and Liberty and with the Basic Law: Freedom of Occupation. They argue that the only consideration that may be taken into account is the harm to the feelings of the religious public. According to their position, the real motive for enacting the bylaws that prohibit the sale of pig meat and meat products is a national-religious one. The bylaws seek to compel all the residents of the local authorities to comply with religious laws. The municipalities overstepped their authority in that they did not act within the framework of the purpose of the enabling law, but rather in order to enforce religious laws.

11. The petitioners further argue that the bylaws do not comply with the requirements of administrative proportionality nor are they consistent with the guidelines of the Attorney-General. According to them, the bylaws are disproportionate and unreasonable in the extreme. The degree of harm to the rights of the petitioners and the rights of consumers of pig meat and meat products is excessive. According to the petitioners, it is sufficient to prohibit the sale of pig meat in religious and orthodox residential areas, where the feelings of the religious public may be offended. The municipalities did not examine whether there are areas where pig consumers live. In the three cities there is a significant number of immigrants from the former Soviet Union. The vast majority of the immigrants are not traditional Jews. A large number of them also consume pig meat and meat products. As a rule, even those people who do not do this do not regard the consumption of pig meat and meat products by their neighbours as an injury to their feelings. The bylaws in practice ignore the composition, needs and practices of the population. The Council members did not have all the figures and facts needed to make an informed and proper decision.

12. The petitioners emphasize that the shops that are currently located in prohibited areas are not situated in religious areas and are not adjacent to religious institutions, nor do the shops have a special marking indicating the presence of pig meat, and only by looking at their refrigerators can one discover the kinds of meat being sold. It follows that the mere sale of pig meat in the shops does not injure the feelings of the religious public. The location of the shops and their prosperous activity indicate the large demand for the products. The petitioners warn that enforcing the bylaws will result in serious economic harm to the shop owners to the point of a collapse of their livelihood. In addition, if the consumers of the meat are compelled to travel outside the area where they live, the consumption of the meat may become unfeasible for them from an economic viewpoint.

The position of the Attorney-General

13. In the replies filed by the Minister of the Interior, the position of the Attorney-General was set out in great detail. His fundamental position is that the enabling law has two interconnected purposes: the first purpose is a religious purpose, arising from the Jewish religious prohibition of eating and selling pig meat and meat products. The second purpose is a national purpose, arising from the traumatic events in Jewish history connected with pigs, which have made it a kind of symbol. The national purpose extends the potential scope of injured person, from the viewpoint of an injury to feelings, beyond the religious residents within the boundaries of the authority. In arguments before us, the representative of the Attorney-General emphasized the national aspect of the prohibition of pig. Against this background, he argued that the legality of the bylaws should not be considered according to the standards set out in case law for a conflict between rights and an injury to feelings. The consideration of the legality should give expression to the national purpose that intensifies the harm to public feelings, even though the overall framework is an injury to feelings.

14. The Attorney-General emphasizes that the enabling law refers the decision concerning the determination and territorial scope of the prohibition to the local authority so that each community can make the arrangement that is ideal for it. Nonetheless, the discretion of the local authority is not unlimited. It is limited by the purposes of the enabling law and the principles of constitutional and administrative law. According to the purpose of the law, the authority has the power to determine arrangements that are based on religious and national considerations. It is authorized to restrict the sale of pig meat or meat products or to prohibit it, even if this involves a burden on the persons who wish to consume this meat and on the persons selling it. Notwithstanding, the restrictions must be proportionate and founded upon common sense. The local authority must also take into account, among the factors it considers, the harm to the occupation of the pig meat sellers and the inconvenience or the impossibility of the consumption of this meat by members of the public near their place of residence. The need to balance the interests arises also from the language of the enabling law itself. The law does not speak only of a blanket prohibition but also of a restriction, and it allows a prohibition only in a part of the area within the authority’s boundaries. It follows that the local authority should consider first the restriction of the prohibition to certain areas within its boundaries, by taking into account the needs of the various population groups, on the one hand, and with the purpose of realizing, within the boundaries of the authority, the degradation and disgust occasioned by the sale of pig meat and meat products, on the other hand. After this, it is possible to consider the possibility of a blanket prohibition throughout the jurisdiction of the local authority in the appropriate cases, according to the circumstances. In determining the arrangement, the local authority should act in accordance with the principles of reasonableness and proportionality based on the composition of the population in that authority, the demographic composition in the different parts of that authority, the needs of the residents, their lifestyle and customs.

15. With regard to the degree of intervention of the central government in the enactment of the bylaws, the Attorney-General’s position was that the power to disqualify bylaws that do not deal with issues that affect the central government or that extend beyond the boundaries of that local authority should be exercised in moderation. As a rule, the Minister of the Interior should not replace the discretion of the local authority with his discretion where the authority acted within its power and in a reasonable manner. The Minister of the Interior has no technical ability to consider in depth the considerations that guided the local authority and the factual basis that was used to enact the bylaw, nor is it right that he should do so.

16. It should be noted that the personal positions of the Ministers of the Interior, as they were brought before us in the replies of the State, were diametrically opposed to one another. The personal position of the former Minister of the Interior, Mr Eli Yishai, was that in a Jewish state it was proper that in local authorities where Jewish residents live the sale of pig meat and meat products should be prohibited throughout the area of the authority in order not to injure the feelings of the Jewish residents and in order to express the national and religious content and value of the prohibition against selling pig meat and its products. The personal position of the present Minister of the Interior, Mr Avraham Poraz, is that it is not right that any local authority should enact bylaws that restrict the sale of pig meat, and therefore had the bylaws of Carmiel and Beit Shemesh been submitted to Minister Poraz for approval, he would have disqualified them.

The normative framework

17. The enabling law constitutes a compromise between two conflicting trends: one is the total prohibition of the consumption of pig meat throughout the State of Israel, similar to the prohibition that was applied shortly afterwards (in the Prohibition against Raising Pigs Law, 5722-1962) on the raising of pigs throughout the State of Israel, with the exception of certain places; the other is to refrain from any legislation whose significance — against the background of the rulings of the court in the nineteen-fifties — was the absence of any prohibition on the sale of pig meat and meat products. The compromise arrangement that was determined in the enabling law refrained from imposing a national prohibition (whether total or restricted) on the consumption of pig meat and meat products, but it provided in this regard an arrangement of its own, which authorizes the local authority to determine local arrangements with regard to the sale of pig meat and meat products. Thus the enabling law rejected the approach that wished to leave this matter to the personal decision of each individual. This was discussed by Justice Sussman, who pointed out that in the enabling law the legislature provided a compromise:

‘… did not impose a prohibition on a national scale, but authorized the local authorities, within the area of their jurisdiction, to prohibit… the sale of pig meat and meat products that are intended for consumption’ (HCJ 163/57 Lubin v. Tel-Aviv-Jaffa Municipality [4], at p. 1076).

According to the arrangement that was determined, ‘…a local authority shall be competent to enact a bylaw that will restrict or prohibit the sale of pig meat and meat products that are intended for consumption’ (s. 1 of the enabling law). Such a restriction or prohibition, which a local authority was empowered to make, can apply to ‘…the whole area of its jurisdiction or on a specific part thereof, provided that they shall apply to the whole of the population in that area or in that part’ (s. 2 of the enabling law).

18. The enabling law solved the problems of competency that had arisen in the past. The local authorities were authorized to regulate the issue of the sale of pig meat and meat products. The legal question moved therefore from a question of competency to regulate the sale of pig meat and meat products to the question of the scope of discretion that the local authority has when it wishes to regulate this issue, and mainly to the question of its general or limited application (‘on the whole area of its jurisdiction or on a specific part thereof’) of the subordinate legislation. In the words of President Olshan in the first judgment given after the enactment of the enabling law:

‘… There is no foundation for the argument that the Municipality had no power at all to enact the bylaw under discussion, because the aforesaid enabling law gave the Municipality this power. The enabling law gave the Municipality the power to prohibit the sale of pig meat in its area of jurisdiction, and this is what the Municipality did in the aforesaid bylaw.

Therefore, the complaint of counsel for the petitioner is directed only at the discretion of the Municipality for refusing to exercise its authority that was given to it in s. 2 of the enabling law to exclude the area, where the petitioner’s shop is situated, from the application of the bylaw’ (HCJ 129/57 Manshi v. Minister of Interior [5], at p. 214).

The purposes underlying the enabling law

19. The scope of the local authority’s discretion when it decides upon the enactment of a bylaw in the matter of the sale of pig meat and meat products is determined in accordance with the interpretation given to the enabling clauses in the enabling law. This interpretation, for its part, gives the language of the enabling law the meaning that realizes the purpose that underlies the enabling law — the specific and general purpose, both subjective (‘the intention of the legislator’) and objective (‘the intention of the law’). What is this purpose? Consideration of the facts gives rise to several purposes that should be taken into account.

20. The first purpose that underlies the enabling law concerns the desire to protect the feelings of Jews who regard the pig as the symbol of impurity. This outlook is, of course, religious in origin. ‘The pig has always been considered a symbol of abhorrence, abomination and disgust by the Jewish person’ (Justice Silberg in Lubin v. Tel-Aviv-Jaffa Municipality [4], at p. 1065). A similar approach is accepted also by the Islamic religion. Notwithstanding, the Jewish approach does not merely express the laws of kosher food, which are not restricted merely to pig meat. The prohibition of eating pig includes, in addition to the religious factor and in relation thereto, also a national factor, which goes beyond the religious perspective relating to the laws of kosher food, and which is shared by many who are not religious or traditional. This was discussed by President Olshan when he said that the prohibition of selling pig meat is based on an approach that regards ‘… the prohibition of eating pig meat a matter of holiness, or a matter that is close to the nation’s heart…’ (Axel v. Mayor, Council Members and Residents of the Netanya Area [1], at p. 1531). This is well illustrated by the story of the civil war between Hyrcanus II and Aristobulus, the sons of Yannai (Alexander Jannaeus) and Shelomzion (Alexandra Salome), which preceded the Roman conquest. According to the story, a pig was sent up to the besieged Jews instead of a sheep. ‘… When it reached halfway up the wall, it dug its hooves into the wall, and the land of Israel trembled over an area of four hundred parasangs by four hundred parasangs. At that time it was said: Cursed by he who raises a pig…’ (Babylonian Talmud, Menahot 64b [29]). The pig as a symbol is therefore closely connected with the Roman conquest and the loss of independence. Jewish history is full of heroic stories of Jews who preferred death to eating pig. The story of Hannah and her seven sons who sacrificed their lives rather than eat pig meat is well-known (Maccabees 2, 7, 1 [30]). Prof. Barak-Erez rightly pointed out that ‘engraved in the collective memory of the Jewish people is the consciousness that the enemies of the Jewish people throughout the generations made use of the pig as a part of the persecutions and humiliations of Jews’ (Barak-Erez, ‘The Transformation of the Pig Laws: From a National Symbol to a Religious Interest?’, supra, at p. 413). Indeed, the disgust at the consumption of pig meat is engraved deep in the national consciousness of the Jewish people and the ‘soul of the nation’ (in the language of MK M. Begin, in his remarks in the Knesset during the deliberations on the first reading of the enabling law (Knesset Proceedings, vol. 20 (1956), at p. 2428)). A rigorous statement of this approach was made by MK Raziel-Naor, who said that the prohibition of the pig had:

‘… very deep roots in the national consciousness and thought, not merely in religious law, in Torah law, but also in the national consciousness that is shared by the whole people. For what is national consciousness if not a synopsis of the memories, experiences and impressions that have passed as an inheritance from generation to generation and that have become something that is shared by the whole people?’ (ibid., at p. 2387).

Indeed, the pig has become a symbol of the hatred of Jews, the loss of independence and the degradation of Jews as Jews. The purpose of the enabling law is to protect the feelings of Jews (believers and non-believers) who are seriously injured by the sale of pig meat and meat products.

21. The second purpose that the enabling law was intended to achieve concerns the desire to realize the liberty of the individual. This was the subjective purpose of the enabling law. This is also, like the purpose of every other law in Israel, its objective purpose. This liberty has been enshrined in the abundant case law of this court since the founding of the State. It is today enshrined in the Basic Law: Human Dignity and Liberty (ss. 2 and 4). This liberty includes the liberty of every individual to determine his own lifestyle and consequently the freedom to decide what food he will buy and eat, and what food he will not buy or eat. The prohibition of the sale of pig meat harms this liberty (see Axel v. Mayor, Council Members and Residents of the Netanya Area [1], at p. 1531 (per President Olshan); Manshi v. Minister of Interior [5], at p. 217 (per President Olshan); Lubin v. Tel-Aviv-Jaffa Municipality [4], at p. 1067 (per Justice Silberg)). Because the prohibition is motivated by religious considerations, it also harms freedom of conscience and ‘freedom from religion’ (see Lubin v. Tel-Aviv-Jaffa Municipality [4], at p. 1079 (per Justice Sussman)). Underlying this purpose is the outlook that ‘… there is no justification for the intervention of the State in the liberty of the individual’ (per President Olshan in Lubin v. Tel-Aviv-Jaffa Municipality [4], at p. 1076). Moreover, the seller’s freedom of occupation should be guaranteed. The prohibition of the sale of pig meat and meat products harms this freedom of the seller. Indeed, underlying the enabling law is the outlook that every person in Israel has freedom of conscience and freedom from religious or any other coercion. ‘It is a supreme principle in Israel — originating in the rule of law (in the substantive sense) and the case law made by the court — that the citizen and resident have both freedom of religion and freedom from religion… we do not coerce religion obligations on someone who is not religiously observant and on someone who does not want to observe religious obligations…’ (per Justice M. Cheshin in HCJ 3872/93 Meatreal Ltd v. Prime Minister and Minister of Religious Affairs [6], at pp. 506-507). Alongside these freedoms a person also has ‘… a natural right to engage in the work or profession that he chooses for himself…’ (per Justice S.Z. Cheshin in HCJ 1/49 Bajerno v. Minister of Police [7], at p. 82). This is the freedom of occupation that is enshrined today in the Basic Law: Freedom of Occupation. It is derived from the autonomy of the individual will, and it is an expression of a person’s self-determination (see HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [8], at p. 383).

22. The third purpose, on which the compromise underlying the enabling law is based, concerns empowering the local authority to determine provisions with regard to the sale of pig meat and meat products. Unlike the prohibition of the raising of pigs, with regard to which a national arrangement was adopted, a local arrangement was determined for the prohibition of selling pig meat and meat products. The purpose was therefore that the balance between the conflicting purposes — the considerations concerning the protection of religious and national sensibilities, on the one hand, and the consideration of individual liberty, on the other — would not be made on a national level, according to a principled balancing that the legislator determined. Instead, the purpose was to make a balancing at a local level. In this local balancing, the character of the authority and the changing particulars of each local authority would be taken into account. The result therefore is that the tension between the first two purposes was transferred to the local level. The discretion was given to the local authority. What is the scope of this discretion, and how should it be exercised? Let us now turn to consider these questions.

The discretion of the local authority

23. The discretion of the local authority is not absolute. It may not decide whatever it wants. The discretion of the local authority, like any executive discretion, is always limited. It must exercise its discretion in a manner that realizes the purpose underlying the law that gave it the discretion. In the case before us, it must exercise the discretion in a manner that finds the proper balance between the conflicting purposes against the background of the local particulars. Indeed, in exercising its discretion, the local authority should realize the compromise underlying the enabling law. This was discussed by Justice Sussman in Lubin v. Tel-Aviv-Jaffa Municipality [4]:

‘… When we come to examine the enabling law in order to discover in it the instructions of the legislature, we ought to return for a brief moment to the historical background of the legislation and give attention to the fact that the legislature’s intention was to find a compromise between two outlooks that conflict with one another, and not to reject one in favour of the other. It is well known that part of the population sought to impose a complete prohibition, so that the law of the State would be consistent with tradition, but the legislature was not prepared to ignore that part of the public that regarded this as religious coercion. These two “camps” side with their own outlooks, but the legislature wished to respect both of them, and neither is rejected or overridden entirely by the other. Whoever interprets the law, therefore, should not ignore this fact, so that neither extreme outlook will lead him astray into discovering concealed meanings in the law that simply are not there’ (Lubin v. Tel-Aviv-Jaffa Municipality [4], at p. 1079).

In a similar vein, Justice Landau held in the further hearing of that case:

‘… The enabling law was the result of a compromise between Jewish religious circles that sought to have an absolute prohibition against eating pig, and the “liberals” who regarded such a prohibition as an unjustified intervention in the private sphere. This compromise must guide us in interpreting the collective intention of the Knesset, which was created as a result of the balance of different forces that are represented in it. We will therefore not be justified if we adopt an interpretation that moves the point of compromise to the right or to the left’ (FH 13/58 Tel-Aviv-Jaffa Municipality v. Lubin [9], at p. 123).

This compromise is required by the values of the State of Israel as a Jewish and democratic state. It is reflected in the need to balance, on a local level, the Jewish and national values, on the one hand, against the liberty of the individual in a democracy, on the other. It varies ‘… from matter to matter and from time to time’ (Justice M. Cheshin in Meatreal Ltd v. Prime Minister and Minister of Religious Affairs [6], at p. 508). It reflects the changes that occur in Israeli society as it moves through history.

The balance between the conflicting purposes

24. According to the compromise underlying the enabling law, the local authority should balance the conflicting purposes, all of which against a background of the local characteristics. In this balance, on one pan of the scales lies the consideration of religious and national sensibilities. These jointly reflect, in a broad sense, considerations of public interest (see: HCJ 806/88 Universal City Studios Inc. v. Film and Play Review Board [10], at p. 29 {237}; HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Central Election Committee for Sixteenth Knesset [11], at p. 73). These considerations have great social importance, and they may, in certain conditions, reduce the protection given to human rights. On the other pan lie considerations associated with the liberty of the individual (who wishes to sell or buy pig meat and meat products). They jointly reflect considerations of human rights. The (vertical) balance between them is made in accordance with the tests of proportionality and reasonableness (see CA 6024/97 Shavit v. Rishon LeZion Jewish Burial Society [12]). These tests combine two types of criteria that have been developed over the years by the court. On the one hand, they are based on tests of proportionality. These were developed before the limitation clauses in the Basic Laws dealing with human rights. Now they are influenced by those limitation clauses, and thus create a harmony between old law and new law (see HCJ 4541/94 Miller v. Minister of Defence [13], at p. 138 {231}; HCJ 5016/96 Horev v. Minister of Transport [14], at p. 41 {193}). On the other hand, they are based on accepted balancing formulae that are based on HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [15]; see A. Barak, Interpretation in Law, vol. 2, Statutory Interpretation (Nevo, 1993), at p. 679). The methodology of integrating the proportionality tests in their widest sense (proper purpose, values of the State of Israel, a violation that is not excessive) with the historical balancing formulae that were developed since the founding of the State has not yet been finally decided. Sometimes both tests — the limitation clause, the vertical balance between a right and a public interest — are employed, one after the other. Sometimes they merge with one another (see Miller v. Minister of Defence [13], at p. 138 {231}). I adopted this approach in Horev v. Minister of Transport [14], at p. 41 {193}, where I regarded the balance between religious sensibilities and freedom of movement a part of the requirements of the limitation clause that the violation of the right will befit the values of the State as a Jewish and democratic State. I will also adopt this approach in this case, since there is no need to decide the proper methodology in this judgment.

25. When analyzing these tests, we should consider a hypothetical case of a local authority that contains three villages or three neighbourhoods within its boundaries. The distance between the villages or the neighbourhoods is not great. There is a regular transport link between the villages or the neighbourhoods, and it is possible to go from village to village or from neighbourhood to neighbourhood within a short time. One village or one neighbourhood (village A) is composed of residents whose religious and national sensibilities will be injured if it will be possible to sell pig meat and meat products in their village. This village has several residents that will not be injured by this but they are few in number. The second village or neighbourhood (village B) is composed of residents who all — with the exception of a small number of opposing residents — wish to buy pig meat and meat products or are not opposed to this. Village C or neighbourhood C is composed of residents of both types without it being possible to separate them on a territorial basis. What does the enabling law say with regard to the discretion of the local authority vis-à-vis each of these villages or neighbourhoods? This hypothetical case reflects the problematic nature of the case before us. Indeed, the enabling law did not seek to determine an overall balance for the whole of the country. It regards each local authority as an independent unit, and it allows an internal division of the territory in it. This is expressed in s. 2 of the enabling law, which provides that a local authority may impose a restriction or a prohibition ‘…on the whole area of its jurisdiction or on a specific part thereof, provided that they shall apply to the whole of the population in that area or in that part.’

Village A; all the residents oppose the sale of pig meat

26. Village A is composed of residents, all of whom, apart from a small minority, have feelings that will be injured if the sale of pig meat and meat products is possible in their village. Underlying this injury to their feelings are religious or national reasons. Is the local authority entitled to determine in a bylaw that the sale of pig meat and meat products within the geographical boundaries of village A is prohibited? This bylaw injures the human rights (freedom of occupation) of those people who live outside the village and wish to sell pig meat and meat products in village A. It also injures the freedom of conscience of the residents in the two neighbouring villages and the negligible minority in village A itself, who wish to buy pig meat and meat products in village A, and who are prevented from doing so. Is this violation of human rights lawful? The criterion on the basis of which this question can be answered is derived from the principle of proportionality, which seeks to ensure a proper purpose and a proper means of realizing it. According to this test, the restriction of human rights is lawful if it befits the values of the State of Israel as a Jewish and democratic state, is intended for a proper purpose and violates human rights to an extent that is not excessive. It is obvious that the protection of the feelings of those persons who wish pig meat and meat products not to be sold in their village befits the values of the State of Israel as a Jewish state, both because of the injury to religious sensibilities and because of the injury to national sensibilities associated with the sale of pig meat. The strength of this injury is likely to change from village to village. It is obviously stronger when the religious factor and the national factor unite. It also befits the values of the State of Israel as a democratic state. The reason for this is — and I discussed this in Horev v. Minister of Transport [14] — that a democracy takes into account the feelings of each individual and in certain conditions it is prepared to allow a violation of human rights in order to protect these feelings. Indeed, democracy recognizes, on the one hand, the existence of a ‘level of tolerance’ of injury to feelings, which each member of a democracy takes upon himself as part of the social consensus that forms the basis of society. It recognizes, on the other hand, the need to protect the feelings of the individual if the injury to these is on a high level of probability (a certainty or a near certainty in the case of a violation of freedom of expression and movement inside the country: see Universal City Studios Inc. v. Film and Play Review Board [10] and HCJ 14/86 Laor v. Film and Play Review Board [16]; Horev v. Minister of Transport [14]), and it is real, severe and serious; in other words, it exceeds the ‘level of tolerance’ that can be justified in a democracy. Of course, the ‘level of tolerance’ is not uniform. It varies from right to right, from injury to injury, and it is a affected by the frequency of the occurrence of the injury. In adopting this criterion in the case before us, I will assume that the injury to the religious and national sensibilities of the residents who oppose the sale of pig meat and meat products in their village (or neighbourhood) is a certainty or a near certainty, and that it is beyond the level of tolerance that can be justified in a democracy (cf. HCJ 230/73 S.T.M. Ltd v. Mayor of Jerusalem [17], at p. 121). I will also assume that the injury to the human rights of those who oppose the prohibition is minimal, since the liberty of occupation of the sellers is only injured minimally. Indeed, the vast majority of the residents of village A in any event would not buy pig meat and meat products in village A, and those persons who live outside village A can, as we will see, buy pig meat and meat products without any difficulty in their own village (village B). Those few residents of village A who wish to buy pig meat and meat products can do so without any difficulty in village B. Their liberty is only harmed a little. It seems to me therefore that in so far as village A is concerned, prohibiting the sale of pig meat and meat products befits the values of the State of Israel as a Jewish and democratic state, notwithstanding the violation of the human rights. It is also intended for a proper purpose, which concerns a protection of these feelings. Is the violation excessive (see HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [18])? It is well known that the test of proportionality is composed of three sub-tests (see Y. Zamir, ‘Israeli Administrative Law in comparison with German Administrative Law’, 2 Law and Government 109 (1994); HCJ 6226/01 Indor v. Mayor of Jerusalem [19]). The first of these is the rational connection. The executive measure (prohibition of the sale of pig meat and meat products) must lead, rationally, to the achievement of the purpose (preventing an injury to religious and national sensibilities). The case before us complies with this sub-test. The second sub-test is that the executive measure must violate the right of the individual in the smallest possible degree. The case before us also complies with this sub-test, in view of the possibility of selling pig meat and meat products in the nearby village B. The third sub-test states that the executive measure is improper if its violation of the right of the individual is disproportionate to the benefit that it achieves in realizing the purpose. The case before us also complies with this sub-test.

27. The conclusion is that in village A, which is composed entirely (apart from a negligible minority) of residents who oppose the sale of pig meat and meat products for religious and national reasons, it is permitted to prohibit the sale of pig meat and meat products. The same conclusion will apply if we are concerned with a city that is divided into different neighbourhoods, and in one of the neighbourhoods all the residents (apart from a negligible minority) wish to prohibit the sale of pig meat and meat products because of the injury to their religious and national sensibilities. Indeed, the viewpoint of the enabling law is territorial or local, and it is based on the possibility of dividing the city into neighbourhoods, by considering each neighbourhood as a separate territorial unit for the purpose of exercising discretion under the enabling law.

Village B: all the residents wish to consume pig meat and its products or do not object to the consumption thereof

28. Village B is composed, according to our hypothesis, of residents who wish to consume pig meat and meat products or do not object thereto. It has a small minority of residents whose feelings are injured by the sale of pig meat and meat products. Is it possible to prohibit the sale of pig meat and meat products? This bylaw violates the human rights of the residents of the village. Is this violation lawful? According to the analysis that we discussed (see para. 24 above), the violation of human rights will be lawful if it befits the values of the State of Israel as a Jewish and democratic state, is intended for a proper purpose and the violation of the human rights is not excessive. In the example before us, the violation of the human rights of the residents of village B does not befit the values of the State of Israel as a democratic state. The reason for this is that the injury to the religious and national sensibilities of the residents of village A that results from the sale of pig meat and meat products in village B is albeit a certainty or a near certainty, but the injury does not exceed the ‘tolerance level’ that is acceptable in a democracy. The strength of an injury to religious and national sensibilities that takes place in close geographical proximity to where a person is situated is not the same as the strength of an injury to these feelings that takes place elsewhere. It is true that the feelings of the residents of village A are hurt if close to their village, in village B, pig meat and meat products are sold, but this is an injury that is part of living together in a democracy and the need to maintain tolerance and consideration for others. And what of the feelings of the small minority of persons who wish to prevent the sale of pig meat and meat products and who live in village B? Their feelings are certainly hurt. Notwithstanding, the ‘seriousness of the injury to human feelings, including religious sensibilities and religious lifestyle, is examined, both according to its scope and also according to its depth’ (Horev v. Minister of Transport [14], at p. 50 {203}; see also HCJ 7128/96 Temple Mount Faithful v. Government of Israel [20], at p. 524). In view of the negligible number of residents who wish to prohibit the sale of pig meat and meat products in village B, the protection of their feelings cannot justify the violation of the human rights of the overwhelming majority. Such a violation is disproportionate (the third sub-test), since the violation of the human rights of the vast majority of the residents of village B is completely disproportionate to the injury to the feelings of the negligible minority.

29. The conclusion is therefore that in village B which is entirely composed (with the exception of a small minority) of residents who wish to consume pig meat and meat products or who do not oppose this, it is not possible lawfully to prohibit the sale of pig meat and meat products. This was discussed by Justice Berinson in Manshi v. Minister of Interior [5], at p. 223:

‘From s. 2 of the Local Authorities (Special Authorization) Law, 5717-1957, it is quite clear that the Knesset intended to allow a local authority to exclude from the prohibition or restriction a territorial block. It has not been proved that within the boundaries of the municipality of Tel-Aviv-Jaffa there exists a territorial concentration of persons who are interested in the sale of pig or the consumption of pig meat, and therefore there is no basis for the claim of unreasonableness on account of the total prohibition imposed by the Municipal Council over the whole of the city. This would be even clearer in the case of a whole town, whose residents are not observant with regard to pig consumption, and which is situated within the boundaries of a district authority that includes several separate towns. In such cases, it is possible to say that the Knesset did not intend to grant the power to injure, unnecessarily, the lifestyle and eating habits of the residents who have nothing against the consumption of pig meat.’

The same is true in a city where all the residents of one of its neighbourhoods wish to consume pig meat and meat products or are not opposed thereto.

Village C: some of the residents oppose the sale of pig meat and meat products, and some do not oppose the sale of pig meat and meat products

30. What is the position with regard to the third village (village C)? This is composed of residents from both ‘camps,’ who live alongside each other without any possibility of making a territorial separation. It is possible that half belong to one camp, and half to the other camp; it is possible that two thirds or four fifths belong to one camp, and a third or a fifth belong to the other camp. The residents of both camps live alongside one another, and they are subject to the prohibition provided in the enabling law to distinguish, for the purpose of the law, between types of population ‘…in that area or in that part’ (s. 2). Does the law permit a prohibition of the sale of pig meat and meat products in village C? Naturally, if it is possible to make a territorial separation in village C between the two camps, the law applying to village A or village B will apply. But what is the law if such a separation is impossible? It would appear that the main purpose of the enabling law is to regulate precisely this situation. Indeed, the enabling law does not seek principally to regulate the sale of pig meat and meat products in village A, where all the residents oppose the sale of pig meat and meat products. The reason for this is practical: there are few cases in which people will wish to sell and buy pig meat and meat products in village A. Indeed, we do not need the enabling law in order to regulate the problem of the sale of pig meat and meat products in the religious neighbourhood of Mea Shearim. Likewise, the enabling law does not fulfil an important role in village B, where all the residents oppose a prohibition against the sale of pig meat and meat products. It is inconceivable that the members of the local council will seek to impose a prohibition of the sale of pig meat in a Christian town. Indeed, the main function and purpose of the enabling law is to authorize a local authority to enact a bylaw that will restrict the sale of pig meat and meat products or to prohibit it in local authorities where residents of both camps live alongside one another, without there being any possibility of a territorial separation. What is the scope of the discretion of the local authority according to the power given to it in the enabling law?

31. Here too, as in villages A and B, we resort to the criterion according to which a decision of an executive authority may lawfully violate human rights if the violation is proportionate, namely it befits the values of the State of Israel, is intended for a proper purpose and is not excessive. Are these conditions fulfilled in village C? A prohibition of the sale of pig meat and meat products in village C naturally violates the freedom of occupation and freedom of conscience (‘freedom from religion’) of some of the residents of the village. This violation befits the values of the State of Israel as a Jewish state. Does it befit its values as a democratic state? Is the injury to the feelings of the residents who oppose the sale of pig meat and meat products greater that the ‘level of tolerance’ that every person in a democracy must accept as part of the social consensus on which society is founded? Naturally, the ‘level of tolerance’ is not uniform. It varies from right to right, from violation to violation. This was discussed by Justice Zamir, who said:

‘The level of tolerance of feelings, such that only an injury above this level will justify protection of feelings, is neither fixed nor uniform for every situation. The level depends, inter alia, on the question of what conflicts with the injury to feelings: for example, a fundamental right such as freedom of expression or a material interest such as pecuniary gain. Accordingly, the level of tolerance will vary. It can be very high if the protection of feelings necessitates a violation of freedom of expression; it may be lower if the protection of feelings necessitates an injury to pecuniary gain. The level is determined according to the balance between the conflicting interests in the circumstances of the case, and it reflects the relative weight, i.e., the social importance, of these interests’ (Temple Mount Faithful v. Government of Israel [20], at p. 521).

Indeed, in determining the ‘level of tolerance,’ we must take into account the injured right, the extent of the injury thereto, the extent of the injury to feelings and the likelihood of this injury (see HCJ 4644/00 Jaffora Tabori Ltd v. Second Television and Radio Authority [21]). With regard to the nature of the right, it has been held that not all rights are of equal status. In this respect, we must take into account various additional parameters, including ‘… the subject-matter of the legislation that inflicts the injury (economic, social, security, etc.), the reasons underlying the protected right and its relative social importance, the nature of the injury to the right and its strength in the specific case, the circumstances and context of the injury and also the nature of the conflicting rights or interests’ (per Justice Beinisch in HCJ 4769/95 Menahem v. Minister of Transport [22], at pp. 258-259). With regard to the injury to feelings, we must naturally take into account the strength, scope and depth of the injury. With regard to the likelihood of the injury, this changes from right to right.

32. Does the prohibition of the sale of pig meat and meat products in village C befit the values of the State of Israel as a democratic state? Because of the many variables, the local characteristics must be examined closely. Different towns may reach different answers even if the ratio of residents opposing the sale of pig meat and meat products is similar. By way of a generalization, villages of type C can reach the conclusion that the sale of pig meat inside their village or in the neighbourhood of residents who oppose this for religious and national reasons exceeds the ‘level of tolerance’ that every resident ought to tolerate as a part of his living in that place. We are dealing, as we have seen, with an injury to religious sensibilities and an injury to strong national sensibilities that characterize the opponents of the sale of pig meat and meat products. This was well expressed by Natan Alterman in his poem ‘Free belief and hooves:’

‘In every nation’s heart, this nation most,
Here where it was born —

Memories of disgust, carved by sword and whip,
Engraved by reluctant choice.

So they that care not if hoof uncloven or cloven be,
They too feel

A Jewish nation in Israel, a pig sacred? inviolable?
The generations tremble.

For reasons of pious and secular alike
agree, this time, it seems…

Strange maybe, but not to be ignored,
Here religion,

There ancient geography and some history of many years…
The pig, uneasy, in the middle.’

(The Seventh Column, vol. 2, 1975, at p. 237).

Notwithstanding, in a mixed village, where there is albeit a minority whose liberty is violated if the sale of pig meat and meat products is prohibited, we must ensure that the violation of liberty is proportionate. This condition will be fulfilled is it is ensured that there is a place in the village (even it is in the outskirts) — or in another village (such as village B) of the same local authority — where it will be possible to buy and sell pig meat and meat products. The location of the sales point will vary from place to place. It will reflect the local characteristics with a proper balance between the right and the violation thereof, in the circumstances of the case, and the public interest and the injury thereto in the same circumstances. In all these cases, it must be ascertained that the sales point is accessible, and that it is possible to maintain, de facto, a place for the sale and purchase of pig meat and meat products.

33. This analysis indicates the relationship between the intensity of the injury to religious and national sensibilities of those who wish to prevent the sale of pig meat and meat products and the intensity of the violation of the liberty, freedom of occupation and conscience and freedom from religion of those who oppose the imposition of the prohibition. This relationship naturally varies from place to place, from village to village. On the basis of the assumptions that I have made — including the existence of a regular transport link between village C and village B and a practical possibility of opening in village B or in the outskirts of village C a shop for the sale of pig meat and meat products — it seems to me that it is possible to justify in a democracy the violation of the human rights of those who oppose the prohibition on the sale of pig meat and meat products on account of the religious and national sensibilities of those who wish there to be such a prohibition.

34. Does a bylaw that prohibits the sale of pig meat and meat products in village C violate the rights of the residents of village C, who oppose the prohibition, to an extent that is excessive? Is the requirement of proportionality fulfilled? We have discussed the sub-tests of this test (see para. 26 above). The first sub-test (the ‘rational connection test’) is fulfilled. Just as in village A, in village C too a prohibition against the sale of pig meat and meat products will prevent an injury to religious and national sensibilities. The second sub-test (the ‘smallest violation test’) will be fulfilled only if it is assured that the residents who wish to sell and consume pig meat and meat products can do so in village B or in the outskirts of village C. The third sub-test (the ‘proportionality test,’ in the narrow sense) is fulfilled, since there is a reasonable relationship between the extent of the violation of the human right — considering the various possibilities — and the degree of injury to feelings.

35. My conclusion is, therefore, that if the conditions that I have discussed are fulfilled — of which the main one is proper access to pig meat and meat products in village B or in the outskirts of village C — the local authority that incorporates the three villages may prohibit the sale of pig meat and meat products in village A and village C. Underlying my approach is the serious injury caused to the public interest by the sale of pig meat and meat products. This is an injury to religious and national sensibilities together, where the latter strengthen the former. Nonetheless, these in themselves are insufficient to justify the violation of human rights. Such a violation will be lawful only if it is guaranteed that it is possible to reduce the intensity of the violation of human rights in the matter before us by complying with the conditions that I have discussed. This I regard to be a proper balance between the conflicting purposes (cf. CrimA 217/68 Isramax Ltd v. State of Israel [23], at p. 364). We are not concerned with the coercion of religion on those who oppose it, since the purchase of pig meat and meat products is relatively easy (cf. Meatreal Ltd v. Prime Minister and Minister of Religious Affairs [6], at p. 507).

36. A central element of the compromise that underlies the enabling law is the discretion of the local authority. Naturally, this discretion is not absolute. The local authority is not free to do what it wants. It must act within the framework of the criteria that we have discussed. It must consider, against the background of the local position, the intensity of the injury to feelings, on the one hand, and the intensity of the violation of the right, on the other. It must examine the practical possibilities concerning the sale of pig meat and meat products. Sometimes this examination recommends one legal solution. Sometimes there will be several legal solutions. A ‘zone of legality’ or a ‘zone of proportionality’ is created (see CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [24], at p. 437; Menahem v. Minister of Transport [22], at p. 280). The decision, which must fall within this zone, is for the local authority to make. This gives expression to a central factor on which the compromise underlying the enabling law is based, since the local considerations are of great importance, and there is no-one like the local authority for assessing these. It was rightly said in a similar context that no-one is as capable as the local authority for ‘… taking into account the composition of the population in each place, its habits, its lifestyle and the character of that place’ (per Justice Y. Kahan in CrimA 858/79 Lapid v. State of Israel [25], at p. 391). Moreover, this gives expression not merely to the principle of the separation of powers but also to the special status of the local authority. This status is connected with the ‘principle of autonomy’ (see the remarks of Justice M. Cheshin in HCJ 3791/93 Mishlav v. Minister of Interior [26], at p. 131), and the fact that the local authority is elected in democratic elections like a ‘mini-Knesset’ (see AAA 5042/01 Zid v. Faras [27], at p. 896). Dr Y. Blank rightly pointed out that ‘… the local government is (also) an expression of democracy in that it is elected by the local political community’ (see Y. Blank, ‘The Location of the Local: Local Government Law, Decentralization and Territorial Inequality in Israel,’ 34 Hebrew Univ. L. Rev. (Mishpatim) 197 (2004), at p. 211; see also E. Vinograd, Local Authority Law, vol. 1, at p. 3).

37. It is now possible, against the background of the example that I gave, to discuss the scope of the local authority’s discretion. When the population of a territorial unit (a village within the framework of a district authority; a neighbourhood within a municipal framework) is homogeneous, the solution seems simple. The difficulty arises in ‘mixed’ situations, where each ‘group’ is a significant part of the local population and it is not possible to separate the groups. In such a situation, the local authority should examine the character of the territorial unit. It must check the degree of social consensus in that unit and the degree of willingness for reciprocal tolerance within that unit. Consideration should be given to the various possibilities, and especially the accessibility and proximity of shops in which it is possible to buy pig meat and meat products; the transport routes to those shops and the practicality of using that transport. If this consideration shows that there is a practical alternative, it is possible to prohibit the sale of pig meat and meat products in that territorial unit. This achieves the compromise on which the enabling law is based.

The enabling law — practical application

38. We have interpreted the provisions of the enabling law in accordance with the tripartite purpose that underlies it. This interpretation provides criteria for a balance between the injury to religious and national sensibilities, on the one hand, and the violation of human rights, on the other. This interpretation directly affects the scope of the discretion of the local authority when enacting a bylaw concerning the sale of pig meat and meat products. It affects the scope of the discretion of the Minister of the Interior (in exercising the authority given to him under s. 258 of the Municipalities Ordinance [New Version]). In these circumstances, the proper approach that should be adopted is to return to the municipalities (the respondents) themselves. They enacted the bylaws which are the subject of the petitions before us without having before them the criteria for exercising their jurisdiction under the enabling law. Now they must reconsider, against the background of the criteria that balance the conflicting values, as it emerges from the interpretation of the enabling law. The Minister of the Interior shall also reconsider his position. We ourselves are not expressing any position with regard to the compliance of the bylaws that are the subject of the petitions before us with the criteria required by the enabling law. In order to allow the reconsideration to take place, we are suspending the Tiberias bylaw, the Carmiel (Pig Meat) Bylaw, 5738-1978, and the Carmiel (Pig Meat) Bylaw, 5761-2001, and the Beit Shemesh bylaw. Before each of the new bylaws comes into effect, thirty days’ notice will be given to the petitioners in order that they may plan what steps to take.

39. The reconsideration by the Municipalities (the respondents) must focus on the local characteristics of each municipality. In this respect, the Municipalities must consider, first, the intensity of the injury to the sensibilities of the local residents (both believers and non-believers) from the sale of pig meat and meat products. The intensity of this injury is not uniform, and it varies from place to place and from person to person. Sometimes it goes beyond the level of tolerance of a person in a democracy; sometimes it falls short of it. An examination should be made individually for each municipality. The intensity of the injury is influenced by geographic data, such as the distance between the homes of those residents and the closest place where it is permitted to sell pig meat and meat products. Second, the municipality must consider the degree of the violation of the rights of those persons who wish to sell and buy pig meat and meat products, inter alia, against a background of the position prevailing before enacting the bylaw. It must consider the scope of the de facto violation of the freedom of occupation of each of the sellers of pig meat and meat products within its boundaries against a background of his whole livelihood, its scope and his investments if he is forbidden to sell them. It must consider the practical options available to them and their ability to realize these options. In this regard, special weight must be given to the ‘transition period’ required in order to allow the sellers to relocate their business, if this is the solution that is found to be appropriate. The length of this transition period varies from place to place, and it must be given special consideration. It must also consider the various practical possibilities available to those who wish to buy pig meat and meat products, and the degree of injury to them. Finally, against the background of the intensity of the injury to sensibilities, on the one hand, and against the background of the violation of human rights, on the other, the municipality should consider the question of whether to prohibit the sale of pig meat and meat products, or not, and if it decides upon a prohibition, whether it will be complete (‘the whole area of its jurisdiction’) or partial (‘a specific part thereof’). This decision should reflect the character of the city; its division into the different neighbourhoods, districts and roads; the degree to which residents whose sensibilities will be injured if pig meat and meat products are sold in their midst and those whose rights will be violated if the pig meat and meat products are not sold in their midst live together in the various neighbourhoods; the various practical solutions that can be adopted against a background of the character of the municipality; the distances and journey times between the relevant places; the possibility of designating places for the sale of pig meat and products inside or outside the various neighbourhoods.

40. The decision facing the municipality may be difficult. It will reflect the degree of tolerance for the conflicting opinion to that which characterizes the residents of the municipality. It will give expression to social coherence and the ability of residents with different and conflicting outlooks to live together. Indeed, let us all therefore remember that living together is not a matter of all or nothing; living together is an expression of reciprocal concessions, which reflect coexistence in a multi-faceted society; it is based on consideration for the opinions and sensibilities of others; it is the result of a recognition that in order to live together, we must recognize the uniqueness of each one of us, and that this uniqueness can be recognized only if we are able to live together.

The result is that we return the issues that are the subject of the petitions to the respondent municipalities, in order that they may consider them and make new decisions in the light of the criteria that we have discussed, without us adopting any position on the merits of their decision. Until a further decision, the bylaws are suspended, as stated in our judgment. Subject to the aforesaid, we decide to deny the petitions.

Vice-President Emeritus T. Or

I agree.

Vice-President E. Mazza

I agree.

Justice M. Cheshin

I agree.

Justice J. Türkel

I agree.

Justice D. Beinisch

I agree.

Justice A. Procaccia

I agree.

Justice E.E. Levy

I agree.

Justice M. Naor

I agree.