Freedom of Religion

 

 

 

 

 

 

Justice Y. Danziger

I concur in the comprehensive and scholarly opinion of my colleague, Justice E. Rubinstein, and in the operative result proposed by him.

1.    At the outset I will emphasize that in my opinion, our willingness to allow an additional trial period, in which the effect of the “door-opening” arrangement on the coercive application of separation and dress codes will be examined, cannot legitimize coercion as stated; and if it transpires that such coercion persists, this will obviously constitute a very weighty consideration that may lead to the conclusion that this arrangement should be terminated because, in effect, it promotes patently illegal coercion, as stated. I also find it appropriate to emphasize the importance of maintaining a broad, efficient and effective control mechanism to check for the existence of coercion during the trial period. At the end of the day, the respondent’s decision at the conclusion of the trial period will be based on the results of this control mechanism and on reports that will be provided by male and female inspectors on behalf of the respondent (and, hopefully, also on the direct impression of the general public which makes use of the relevant lines). If the trial period is not properly utilized for the compilation of a well-established factual base as aforesaid, it will be truly difficult for the respondent to make a reasonable and proper decision in the matter.

In addition, I believe that the role of respondent 2, together with its managers and its employees, in ensuring the implementation of the arrangement recommended by the Committee should be emphasized. Respondent 2 must not contribute, indirectly or tacitly, to the forcible application of separation or dress codes, and it is subject to the duty — as a company providing a public service — of maintaining absolute compliance with the guidelines laid down by the Committee, to which we have added in this ruling.

I welcome the fact that ultimately, the respondent accepted the conception that structured and enforced separation in the public arena in which public transportation is provided is illegal. This restricted the scope of the dispute to the question of how to implement this conception and to ensure that there are no arrangements that force separation or a certain type of attire on women. Nonetheless, I cannot stop at this point, and I would like once again to briefly emphasize some basic concepts regarding dignity and equality.

2.    Israel’s Declaration of Independence states that the State of Israel “will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex.” Separation of people on the basis of gender (as on the basis of race or religion) violates the principle of equality and constitutes discrimination. In HCJ 4541/94 Miller v. Minister of Defense [1995] IsrSC 49(4) 94, Justice D. Dorner emphasized in her ruling — which some believe is perhaps the most important ruling she ever handed down (see: Mordechai Kremnitzer, Khaled Ghanayim and Alon Harel, “Portrait of Dalia Dorner,” in The Dalia Dorner Volume (Shulamit Almog, Dorit Beinisch and Yaad Rotem, eds., 2009) 418 (Hebrew)) — the humiliation that accompanies gender-based discrimination as a basis for her position that discrimination against that background constitutes a violation of the right to dignity which is anchored in Orsdin. In that ruling, she referred to the ruling of the United States Supreme Court in Brown v. Board of Education 347 U.S. 483 (1954), which rejected the “separate but equal” approach to education that had been generally accepted up to that time. In that context, Justice Dorner stated, inter alia:

‘Such discrimination is based on attributing an inferior status to the victim of discrimination, a status that is a consequence of his supposedly inferior nature. This, of course, entails profound humiliation for the victim of the discrimination’ (ibid., at 132).

The humiliation that accompanies gender-based discrimination was also pointed out by (then) Justice M. Cheshin in HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Social Welfare [1998] IsrSC 52(3) 630 , who stated as follows:

‘Discrimination against a woman — for being a woman — is generic discrimination... Generic discrimination, as  already stated, is discrimination that mortally wounds human dignity’ (pp. 658-659).

3.    This humiliation becomes gross humiliation when violence — verbal or physical — is used to enforce it, or when the state authorities legitimize it, even indirectly and certainly directly. As a man, I suggest that every man ask himself if he would want one of the means of coercion which my colleague described in his opinion (see para. 20 of the opinion) to be used against a woman in his family, and if he would want a woman in his family to be forced to dress in a way that is not in line with her beliefs whenever she seeks to use a public service. Even more importantly, I would suggest that all the men in question ask themselves how they would feel if, merely because they belonged to a certain group, people were to fence off the public area in which they are entitled to be present and to require them to wear a certain type of attire. I would ask those women who support coercive separation to ask themselves the same questions — for example, whether forcing them to dress in a way that is not in line with their beliefs as a prerequisite for using public transportation, would not humiliate them and violate their dignity. In fact, there were periods — dark ages — in which norms such as those that constitute the object of the petition before us were applied throughout the entire world (and, unfortunately, there are places in which they are still applied). Nonetheless, such norms cannot apply to, and cannot be binding upon a public area within the State of Israel, merely because that public area also serves, inter alia, the religious and ultra-Orthodox population.

4.    I cannot refrain from commenting that many generations of Jews lived in societies in which separation of the type that some people are now seeking to enforce was not practiced. Were they less devout in their belief than those who now seek to enforce such separation? Did they have the audacity to enforce separation in the public space that they shared with all those people who did not desire such separation? Are the solutions that were found by the great sages of those generations inferior to the solution of coercive separation? In my view, the answers to these questions are obvious, and the fact that some people are seeking to exploit their power, including their consumer and political power, in order to apply and even to establish the said coercion, gives rise to real discomfort, especially against the background of these circumstances. 

Even without relating to the situation from a historical perspective, in the Jewish and democratic State of Israel, the state authorities cannot support the establishment of the said coercion, and the state must take action — positive action — to uproot it. The coercion in question reflects a violation of human dignity and individual autonomy; it is nothing but the oppression and humiliation of women, for which there is no place in our society, either in the name of multiculturalism or under any other banner. On this matter, the message that must be voiced by the state authorities, in all areas in which the state has influence, must be unequivocal and insistent: there shall be no such coercion. 

5.    I feel bound to conclude by citing a statement of (then) Justice M. Cheshin in Israel Women’s Network v. Minister of Labor and Social Welfare [23]. His words should be recalled by all those who seek to enforce separation and certain types of attire on any man or woman who does not want them:

‘Both the male and the female were created — created together — in the image of God. Woman and man are one: she is a human being; he is a human being; both are human beings.

Thus it was — and was rightly; thus it is — and is rightly; thus it shall be — and shall be rightly. We shall remember and we shall be on guard’ (at p. 663).

 

 

Held as per the opinion of Justice E. Rubinstein.

29 Tevet 5771.

5 January 2011.    

 

 

HCJ 5016/96

HCJ 5025/96

HCJ 5090/96

HCJ 5434/96

HCJ 5016/96

HCJ 5025/96

 

Lior Horev
Member of Knesset Ophir Pines
Member of Knesset Yosef Sarid
Arnon Yakutiali
Aliza Avinezer
Yehuda Gabay
Meretz-Democratic Israel Faction    
The Association for the Rights of the Religious Community in Israel

v.

The Minister of Transportation

 

The Supreme Court of Israel sitting as the High Court of Justice

[April 13,1997]

Before President A. Barak, Deputy President S. Levin, Justices T. Or, E. Mazza, M. Cheshin, Ts. A. Tal, D. Dorner

 

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

 

Facts: The Minister of Transportation, assuming the powers of the Traffic Controller, ordered the closure of Bar-Ilan Street in Jerusalem to motor traffic on Sabbaths and Jewish holidays during hours of prayer. Petitioners are secular residents of the area and representatives of the secular population in Jerusalem, who claim that the decision of the Minister infringes their right to freedom of movement. One petitioner—the Association for the Rights of the Religious Community in Israel—counter-petitioned that Bar-Ilan should be closed to motor traffic for all hours on the Sabbath and Jewish holidays.

 

Held: The Court held that the Traffic Controller was to weigh the freedom of movement of those who chose to use Bar-Ilan Street against the possible injury of such traffic to the religious sensibilities and lifestyle of the local residents. The Court noted that the latter consideration was a valid one in a democratic society. The Court held that the Minister of Transportation, in his capacity as the Traffic Controller, did not adequately consider the interests of the local secular residents of Bar-Ilan Street. As such, the Court struck down the Traffic Controller's decision. Several dissenting Justices contended that the Minister had no authority at all the close Bar-Ilan Street to traffic.

 

Israeli Supreme Court Cases Cited

HCJ 174/62 The League for the Prevention of Religious Coercion v. Jerusalem City Council, IsrSC 16 2665.
HCJ 531/77 Baruch v. The Traffic Comptroller, IsrSC 32(2) 160.
HCJ 390/79 Dawikat v. The Government of Israel, IsrSC 34(1) 1.
HCJ 935/87 Poraz v. Mayor of Tel-Aviv/Jaffa, IsrSC 42(2) 309.
HCJ 98/54 Lazarovitch v. Food Products Comptroller (Jerusalem), IsrSC 10 40.
HCJ 3872/93 Meatrael v. The Prime Minister, IsrSC 47(5) 485.
HCJ 217/80 Segal v. Minister of the Interior, IsrSC 34(4) 429.
HCJ 351/72 Keinan v. The Film and Play Review Board, IsrSC 26(2) 811.
HCJ 806/88 Universal City Studios Inc. v. The Film and Play Review Board, IsrSC 43(2) 22.
HCJ 230/73 S.T.M. v. Mayor of Jerusalem—Mr. Teddy Kolek, IsrSC 28(2) 113. 
HCJ 7128/96 The Temple Mount Faithful v. The Government of Israel, IsrSC 51(2) 509.
Crim. App. 217/68 Izramax. v. The State of Israel, IsrSC 22(2) 343.
HCJ 612/81 Shabbo v. Minister of Finance, IsrSC 36(4) 296.
F. Crim. A2316/95 Ganimat v. The State of Israel, IsrSC 49(4) 589.
CA 506/88 Yael Shefer v. The State of Israel, IsrSC 48(1) 87.
HCJ 935/89 Ganor v. Attorney-General, IsrSC 44(2) 485.
IA 1/65 Yardor v. Chairman of the Central Election Committee, IsrSC 19(3) 365.
IA 2/84 Neiman v. Chairman of the Central Election Committee, IsrSC 39(2) 225.
CA 294/91 Jerusalem Burial Society  v. Kestenbaum, IsrSC 46(2) 464.
CA 105/92 Re’em Engineers and Contractors Ltd. v. Municipality of Upper Nazareth, IsrSC 47(5) 189.
HCJ 73/53 Kol Ha’Am Company Ltd. v. Minister of the Interior, IsrSC 7 871.
HCJ 153/83 Levy v. Southern District Commander of the Israel Police, 38(2)  393.
HCJ 448/85 Dahar v. Minister of the Interior, IsrSC 40(2) 701.
HCJ 148/79 Saar, v. Minister of the Interior and of Police, IsrSC 34(2) 169.
HCJ 399/85 Kahane v. The Broadcasting Authority, IsrSC 41(3) 255.
HCJ 153/87 Shakdiel v. Minister of Religious Affairs, IsrSC 42(2) 221.
HCJ 2481/93 Dayan v. Jerusalem District Commander, IsrSC 48(2) 456.
CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Agricultural Cooperative, IsrSC 49(4) 221.
FH 9/77 Israel Electric Company. v. “Ha’aretz” Newspaper Publications, IsrSC 32(3) 337.
HCJ 389/80 Dapei Zahav  v. The Broadcasting Authority, IsrSC 35(1) 421.
HCJ 376/81 Lugassy v. Minister of Communications, IsrSC 36(2) 449.
HCJ 341/81 Moshav Beit-Oved Ltd. v. Traffic Comptroller, IsrSC 36(3) 349.
HCJ 910/86 Ressler v. Minister of Defense, IsrSC 42(2) 441.
HCJ 953/89 Indoor v. Mayor of Jerusalem, IsrSC 45(4) 683.
HCJ 14/86 Laor v. The Film and Play Review Board, IsrSC 41(1) 421.
HCJ 6163/92 Eizenberg v. Mistster of Construction and Housing, IsrSC 47(2) 229.
HCJ 4541/94 Miller v. Minister of Defense, IsrSC 49(4) 94.
HCJ 693/91 Efrat v. Population Registrar, IsrSC 47(1) 749.
HCJ 257/89 Hoffman v. Appointee over the Western Wall, IsrSC 48(2) 265.
HCJ 549/75 Noah Film Company v. The Film and Play Review Board, IsrSC 30(1) 757.
HCJ 606/93 Kiddum Yezmot (1981) v. The Broadcasting Authority, IsrSC 48(2) 1.
HCJ 111/53 Kaufman v. Minister of the Interior, IsrSC 7 534.
Crim. A 255/68 The State of Israel v. Ben-Moshe, IsrSC 22(2) 427.
HCJ 243/81 Yeki Yosha v. The Film and Play Review Board, IsrSC 35(3) 421.
Crim. A 126/62 Disentzik v. The Attorney General, IsrSC 17 169.
HCJ 680/88 Schnitzer v. Chief Military Censor, IsrSC 42(2) 617.
HCJ 292/83 Temple Mount Faithful Association v. Jerusalem District Police Commander, IsrSC 38(2) 449.
HCJ 2725/93 Salomon v. Jerusalem District Commander, Israel Police, IsrSC 49(5) 366.
HCJ 5510/92 Turgeman v. Minister of Defense, IsrSC 48(1) 217.
HCJ 987/94 Euronet Kavei Zahav (1992) Ltd. v. Minister of Communications, IsrSC 48(5) 412.
HCJ 3477/95 Ben-Attiyah v. Minister of Education, Culture, and Sport, IsrSC 49(5) 1.
HCJ 1064/94 Computext Rishon Le Zion (1986) Ltd. v. Minister of Transportation, IsrSC 49(4) 808.
HCJ 287/69 Miron v. Minister of Labour, IsrSC 24(1) 337.
HCJ 672/87 Atamalla v. Northern Command, IsrSC 42(4) 708.
P.L.A. 6654/93 Binkin v. The State of Israel, IsrSC 48(1) 290.
HCJ 3914/92 Lev v. Tel-Aviv/Jaffa District Rabbinical Court, IsrSC 48(2) 491.
HCJ 297/82 Brenner v. Minister of the Interior, IsrSC 37(3) 29.
HCJ 2911/94 Baki v. Director General of the Ministry of the Interior, IsrSC 48(5) 291.
HCJ 2918/93 Municipality of Kiryat-Gat v. The State of Israel, IsrSC 47(5) 832.
HCJ 161/80 San Tropez Holtel Ltd. v. Israel Lands Authority, IsrSC 34(4) 709.
HCJ 465/93 Tridet v. Local Council for Planning and Building, Herziliya IsrSC 48(2) 622
HCJ 400/89 Levitt v. President of the Military Tribunal, Southern District, IsrSC 43(3) 705.
HCJ 166/71 Halon v. Head of the Local Council of Ousfiah, IsrSC 25(2) 591.
HCJ 155/60 Elazar v. Mayor of Bat-Yam, IsrSC 14 1511.
HCJ 512/81 The Archeological Institute of the Hebrew University, Jeruslaem v. Minister of Education and Culture, 35(4)  533.
HCJ 5277/96 Hod Matechet Ltd. v. Minister of Finance, IsrSC 50(5) 854.
HCJ 398/79 Abdallah v. Mayor of Nazareth, IsrSC 34(1) 522.
HCJ 379/71 Levy v. Municipality of Petach-Tikvah, IsrSC 26(1) 785.
HCJ 112/88 The Local Council for Planning and Building, Ramat-Gan v.  The District Committee for Planning and Building, Tel-Aviv District, (unreported case).
HCJ 1869/95 Gasoline Import Company v. Minister of Transportation, IsrSC 49(5) 559.
HCJ 6111/94 Guardians of the Tradition  v. The Chief Rabbinical Council of Israel, IsrSC 49(5) 94.
P.Cr. A. 6795/93 Aggadi v. The State of Israel, IsrSC 48(1) 705.
HCJ 4267/93 A.M.I.T.I—Citizens for Efficient Government v. The Prime Minister of Israel, IsrSC 47(5) 441.
HCJ 4712/96 Meretz-Democratic Israel Faction v. Jerusalem District Commander, Israel Police, IsrSC 50(2) 822.
HCJ 122/54 Axel v. Mayor  of  Netanya, IsrSC 8 1524.
HCJ 72/55 Mendelson  v. Municipality of Tel-Aviv/Jaffa, IsrSC 10 734.
HCJ 1520/91 Vilensky v. National Labor Court, IsrSC 46(5) 502.
HCJ 150/69 Reich v. Head of the Antiques and Museums Administration, IsrSC 24(1) 204.
HCJ 70/50 Michlin v. Minster of Health, IsrSC 4 319.
HCJ 74/51 The National Center of Contractors Associations v. Minister of Commerce and Industry, IsrSC 5 1544.
HCJ 231/63 Retef Food Supplies. v. Minister of Commerce and Industry, IsrSC 17 2730.
HCJ 392/72 Brenner v. District Committee for Planning and Building, Haifa District, IsrSC 27(2) 764.
HCJ 4676/94 Meatrael Ltd. v. The Knesset, IsrSC 50(5) 15.
HCJ 4769/90 Zidan v. Minister of Labor and Welfare, IsrSC 47(2) 147.

 

United States Cases Cited:

Kent v. Dulles, 357 U.S. 116 (1958).
People v. Grant, 117 N.E. 2d 542 (N.Y. Ct. Appeals 1954).
NYS Public Emp. Fed. v. City of Albany, 527 N.E. 2d 253 (N.Y. Ct. Appeals 1988).

 

English Cases Cited:

Ex parte Lewis (1888) 21 Q.B D. 191.
Vanderplant v. Mayfair Hotel Co. (1930) 1 Ch. 138.

 

German Cases Cited:

 6 BverfGE 32 (1957).

 

Israeli Books Cited:

1-2, I. Zamir, The Administrative Authority (1996).
1 A. Rubinstein, The Constitutional Law of the State of Israel (1997).
2 A. Barak Interpretation in Law: Interpretation of Legislation (1993);
3 A. Barak Interpretation in Law: Constitutional Interpretation (1993);
R. Cohen-Almagor, The Limits of Tolerance and Tolerance—Liberal Theory and the Struggle Against Kahanism (1994).
Y. Weisman, Property Law (1993).
H. Klinghoffer, Administrative Law (1957)
S. Eizenstadt, Roman Law: Its History and Substance (1954)
B. Bracha, Administrative Law (1996).
Y. Dotan, Administrative Guidelines (1996).

 

Israeli Articles Cited

A. Barak, Freedom of Expression and its Limitations, 40 HaPraklit 5 (1991-1993).
Z. Segal, The Grounds for Disproportionality in Administrative Law, 39 HaPraklit 507 (1990-1991).
I. Zamir, Israeli Administrative Law as Compared to the Adminstrative Law of Germany, 2 Mishpat U’Mimshal 109 (1994-1995).
H. Klinghoffer, An Empowered Authority’s Internal Guidelines—Their Validity, 3 Hod Hamishpat 38 (1948)

 

Foreign Books Cited:

R.M. Dworkin, A Matter of Principle (1985).
R.W. League, Roman Private Law (3rd ed. 1961).

 

Foreign Articles Cited:

F. Schauer, Slippery Slopes, 99 Harv. L. Rev. 361 (1986).

 

Miscellaneous:

31 The Jewish Encyclopedia (1979).

 

The Laws of England (4th ed. 1995).

 

Jewish Law Sources Cited:

Babylonian Talmud, Tractate Beitza 16a.
Habbakuk 2:4
Isaiah 36:6
Numbers 22:21-22.
Mishna, Tractate Baba Bathra 6:7.

 

Tractate Baba Bathra, With the Modern Commentary of Shimon Ben-Shemen 92b (1981)
Babylonian Talmud, Tractate Baba Bathra, 99b-100a
Babylonian Talmud, Tractate Nedarim 39a.
Proverbs 3:17.
Exodus 31:16-17.
Jeremiah 17: 24-27.
Ezekiel 20.
Amos 8.
Nehemia 9, 10, 13.
Jerusalem Talmud, Tractate Brachot 1:8.
Babylonian Talmud, Tractate Shabbat 119b.
The Book of Sabbath: The Sabbath Portion, its Value, its Manifestation and Influence in the Lives of the People of Israel in Ancient Times and Until Today (1963).
A.J. Heschel, The Sabbath: Its Meaning for Modern Man (1951).
Midrash Leviticus Rabbah 32A

 

JUDGMENT

President A. Barak

1. In Israeli public discourse, Bar-Ilan Street is no longer simply a street. It has become a social concept reflecting a deep-seated political dispute between the Ultra-Orthodox and the secular populations in this country.  This debate is not limited to the matter of freedom of movement on Bar-Ilan Street on Friday evenings and on the Sabbath. It is, in essence, a difficult debate involving the relationship between religion and state in Israel, which pierces through to Israel’s very character as a Jewish or a democratic state. It is a bitter debate about the character of Jerusalem, which has found its way to the Court’s doorstep.  This being the case, it is incumbent upon us to decide this case irrespective of its political and social ramifications. The dispute before us is a legal one.

Our concern is with the scope of the Central Traffic Authority’s powers under Regulation 17 of the Traffic Regulations-1961. More specifically, the issue at bar involves the scope of the Central Traffic Authority’s discretion to direct its local counterpart in regulating traffic on Bar-Ilan Street, so that the street will be closed to traffic during certain hours during the Sabbath. The answer to these questions must be drawn from the Regulation’s wording and purpose.  Our decision will be made in accordance with legal criteria, as has always been the practice in Israel. For this Court has dealt with similar issues in the past.  Indeed, this Court ruled on the closing of a particular section of King George and Shmuel HaNagid streets in Jerusalem during morning hours of the Sabbath and Jewish festivals, in order to avoid disturbing worshippers at the “Yeshurun” Synagogue over thirty years ago. See HCJ 174/62 The League for Prevention of Religious Coercion v. Municipality of Jerusalem [1]. In a similar vein, twenty years ago, this Court decided to close a certain section of HaShomer Street in Bnei Brak on the Sabbath and Jewish holidays. See HCJ 531/77 Baruch v. Tel-Aviv District Central Traffic Supervisor [2].  And so, this time too, we will decide these matters according to legal criteria. Significantly, our concern is not with the social debate; our considerations are not political. Rather, we are concerned with the legal dispute, with normative considerations. Our concern is not with the relationship between the secular and the religious in Israel; nor is it with the relationship between religion and state in this country. Nor is our concern the character of Jerusalem. We are simply concerned with Bar-Ilan Street, in its literal sense, and with the Central Traffic Authority’s powers and the scope of its discretion. We will examine the balance between the freedom of movement and any resulting injury to religious sensibilities and the observant way of life.

This having been said, I am well aware that many members of the public will not read our decision. Their interest will lie with the social ramifications of our decision, not with the legal reasoning underlying it. They will not examine our normative considerations and will occupy themselves with the political ramifications of our ruling. We are quite conscious that our legal decision will have extra-legal ramifications. This, we cannot prevent. Our judicial role obligates us to rule on the state of the law in accordance with our best understanding. In this context, I need only cite the words of Acting President Landau, who in HCJ 390/79 Dawikat v. The Government of Israel [3], at 4, wrote:

There is still great fear that the Court will appear to have abandoned its proper role and to have descended into the whirlwind of public debate; that its decision will be acclaimed by certain segments of the public, while others will reject it absolutely. It is in this sense that I see myself as obligated to rule in accordance with the law on any matter properly brought before the Court. I am forced to rule in accordance with the law, in complete awareness that the public at large is not interested in the legal reasoning behind our decision, but rather in the final result. Conceivably, the stature of the Court as an institution that stands above the arguments that divide the public will be damaged.  But what can we do, for this is our role and our obligation as judges.

In dealing with the Bar-Ilan case, I cannot help but feel as Justice Landau felt in Dawikat [3], but what can I do? This is my role and this is my obligation.

2. I begin with a description of the factual background, based on the briefs before us and upon an examination of the material before the Public Committee Appointed for the Purpose of Making Recommendations Regarding Sabbath Traffic on Bar-Ilan Street [hereinafter the Tzameret Committee.] Subsequent to the factual description, I shall examine the normative framework. Within the confines of this framework, I will proceed to address the principles in question. Namely, to what extent it is possible to limit human rights, in order to spare human feelings. I will also address the issue of whether it is possible to limit freedom of movement because of the harm caused to religious sensibilities. I shall conclude by applying the general law to the particular instance at bar.

The Facts

3. Bar-Ilan Street is a main traffic artery. Its length (including a segment of Yirmiyahu Street) is approximately 1.2 kilometers. In its southern section, it joins Yirmiyahu Street, reaching the entrance to the city. To the north, it merges with Harel Brigade Street, which becomes Eshkol Boulevard. Bar-Ilan Street connects the city entrance to Jerusalem’s northern neighborhoods, including Ramat-Eshkol, Ma’alot Dafna, Givat Shapira, and Pizgat Ze’ev. Bar-Ilan Street cuts through an Ultra-Orthodox neighborhood. It serves the residents of this neighborhood. It also serves those who, entering the city, wish to reach its northern neighborhoods, or those who, leaving Jerusalem's northern neighborhoods, wish to exit the city. It also serves the residents of those northern neighborhoods who enter the city for services and commerce. The volume of traffic on Bar-Ilan on weekdays is great. The traffic on Sabbaths and holidays is less significant, approximately 21-28 percent of weekday traffic.

4. Up until the Six Day War, Bar-Ilan Street was situated at the periphery of Ultra-Orthodox neighborhoods, which were located to its east. After the Six Day War, two phenomena occurred. First the Ultra-Orthodox neighborhoods exapanded west of Bar-Ilan, transforming it from a peripheral street to one that cuts through the heart of the Ultra-Orthodox areas, which now envelop the street on both its sides. Second, after the Six Day War, the northern neighborhoods were built. Bar-Ilan Street became the main traffic artery that connected the central part of the city to its northern neighborhoods.

5. Since the Israel's establishment, and even before that, there have been clashes between the Ultra-Orthodox and secular populations in Jerusalem over traffic flow on the Sabbath. Demonstrations in Jerusalem around “Sabbath Square” took place at the beginning of the 1950s. Nearing the mid-1950s, these demonstrations spread to Jaffa Street, Beit HaDegel Square (“Dvidka Square”), Herzl Boulevard, and the Etz Haim neighborhood, situated at the entrance to the city. During the early 1960s, the city of Jerusalem discussed a proposal regarding the prevention of some traffic on the Sabbath. Following this proposal, the street near the “Yeshurun” synagogue was closed to traffic on the Sabbath during prayer times. This was done in reliance on a similar precedent in Tel-Aviv and Haifa. The petition challenging this decision was rejected. See League [1].

The tension between the secular and the religious increased during the 1960s and the 1970s. Essentially, these tensions revolved around the opening of swimming pools and the City Stadium. The clashes around the issue of Sabbath traffic were renewed and have persisted since the 1970s. This debate was sparked by a dispute over Ramot road, which connects the Ramot neighborhood to the downtown area. In the midst of these clashes, the Jerusalem municipality closed dozens of streets located in Ultra-Orthodox and other religious neighborhoods to traffic on the Sabbath.

6. The first of the demonstrations by Ultra-Orthodox groups on Bar-Ilan Street occurred in 1988. This struggle escalated following the street’s one-time closure in June of 1991, on the occasion of the Satmar Rebbe’s visit, and in November of 1995, on the occasion of the Vishnitzer Rebbe’s visit. Moreover, the Ultra-Orthodox voters’ increasing political clout gave rise to heightened expectations among the Ultra-Orthodox public that the street be closed to traffic on the Sabbath. In addition, the availability of surrounding streets, paved through the years, which could potentially serve as alternate routes, strengthened the Ultra-Orthodox belief that the secular public should accede to their request and refrain from traveling in their midst on the Sabbath.

Conversely, the request to close Bar-Ilan Street to traffic was perceived by the secular public as the continuation of an ongoing policy to effectively push the non-Ultra-Orthodox population out of Jerusalem. As a result, counter-demonstrations took place, accompanied by violent clashes. Against this backdrop, in August of 1994, the Mayor of Jerusalem, Mr. Ehud Olmert, appointed a committee headed by Mr. Elazar Sturm [hereinafter the Sturm Committee].

7. The Sturm Committee held a significant number of meetings. Dozens of city residents, among them representatives of neighborhoods, parties, and interested bodies, appeared before the Committee. The Committee heard from experts in the fields of transportation, geography, sociology, law and religion. In its report of September 29, 1995, the Committee noted:

The issue of traffic on the Sabbath divides Jerusalem’s populace deeply. Solutions befitting the conflicting interests of the city’s residents must be found. The situation is difficult and complicated. Accordingly, our examination was conducted in the spirit of compromise and in careful analysis of the conflicting needs. The testimony before the Committee, from every shade of the social and political rainbow, religious and secular, reflected agreement and broad understanding. There is general agreement in favor of respecting the request of many religious neighborhoods to foster a public atmosphere befitting their own religious lifestyle, while bearing in mind the needs of others.

Against this backdrop, the Committee recommended closing particular streets, such as Keter Sofer Street, Shmuel HaNavi Street and Brandeis Street. It also recommended closing the neighborhood of Har-Nof to traffic on the Sabbath and Jewish holidays. Having said this, the Committee did note that it recommended leaving access routes open to secular residents and their visitors. Accordingly, it called on secular residents to inform them of their place of residence. Only after the secular residents’ places of residence were mapped out and the relevant roads and accessways clearly marked, would the Committee make its recommendations. Additionally, the Committee decided not to recommend closing other streets, such as Malchei Yisrael Street, Yam-Suf Street, and Michlin Street. With respect to Bar-Ilan Street, it recommended that:

Bar-Ilan Street be closed during prayer times on Sabbaths and Jewish holidays.

More specifically, the Committee recommended that the street be closed on the eve of the Sabbath, from the beginning of the Sabbath (sunset) to an hour and forty-five minutes thereafter; on the Sabbath day the street would be closed from 7:30 a.m. to 11:30 a.m.. Bar-Ilan would also be closed for an hour and forty five minutes prior to the end of the Sabbath. It shall be noted that one of the Committee’s members, Mr. Yitzhak Rubin, opposed closing the street during prayer hours, noting that the street is a main traffic artery.

8. While the Sturm Committee was still at work, the local and national media published articles regarding its recommendations. On the heel of these publications, November 29, 1994, Mr. Langer, the National Traffic Controller, approached the Mayor, Mr. Ehud Olmert, regarding Bar-Ilan Street. In his letter Mr. Langer stated that:

In light of publications in the media and the situation on the street itself, I found it appropriate to apprise you of our position on the matter. The Ministry of Transportation considers Bar-Ilan Street to be a main traffic artery, connecting Jerusalem’s northern neighborhoods to the city’s center and south, every day of the week. It would be unthinkable to close this route to traffic on the Sabbath or on any other day. Arrangements to close streets on the Sabbath are only feasible on local streets, following a careful examination, and certainly not on important, central arteries.

9. Jerusalem’s City Council deliberated the Sturm Committee’s report, and decided to close off a number of streets. In light of Mr. Langer’s letter, and in view of the city’s legal advisor’s position, the Council held: “Jerusalem’s City Council does not have the discretion to close off Bar-Ilan Street to traffic on Sabbaths and Jewish holidays.” The Council added that it will take note of the Sturm Commisttee’s recommendations and forward them to the Minister of Transportation “with a recommendation to consider the plight of the local public.”

10. A number of requests to close off Bar-Ilan Street on the Sabbath reached the Minister of Transportation, Mr. Israel Kaiser. A meeting was held, on January 10, 1996, between the Minister and residents of Bar-Ilan Street—a meeting that Mr. Langer also attended. In concluding the meeting, the Minister asserted that:

the Traffic Controller is the highest professional authority in this area, and I, as Minister of Transportation, must act in accordance with his professional opinion. The Traffic Controller’s professional opinion is that this street is a main traffic artery and therefore cannot be closed on the Sabbath. I will only be able to change this decision if the Traffic Controller is swayed by the data presented here before him, and decides that, on Sabbaths during prayer times, the street may be closed. As I have said, the decision shall be on a professional basis, and if there is room to take a more lenient view—as the House of Hillel did in the times of the Talmud—I shall take that path. If, however, the Traffic Controller does not change his professional opinion, we will only close the street if the government or the Court compels us to do so.

Minister Kaiser concluded his meeting with the Mayor of Jerusalem, on February 13, 1996, on a similar note. During all this time, demonstrations against Sabbath traffic on Bar-Ilan Street grew more violent. The police were forced to intervene and traffic in the area was disrupted.

11. In May of 1996, Rabbi Yitzhak Levi was named the new Minister of Transportation. The National Traffic Controller, Mr. Langer, listened to the position of the new Minister, who noted that he had received many complaints regarding the offense to the sensibilities of the local Ultra-Orthodox public on Bar-Ilan Street. The Minister expressed his opinion that a compromise solution was desirable and notified Mr. Langer that, in light of the issue's ramifications, he planned on meeting with Israel’s President to discuss it.  After meeting with the President, the Minister of Transportation informed Mr. Langer that the President also believed in reaching a compromise regarding Bar-Ilan Street. Mr. Langer consulted with professionals—with the Ministry of Transportation’s Chief Engineer and with its Legal Advisor. He revisited and reconsidered his original stance. After this assessment, Mr. Langer became convinced that he should change his previous decision.

12. On July 10, 1996, Mr. Langer submitted a new decision. According to this decision, Bar-Ilan Street was to be closed to traffic, in both directions, on the Sabbath and Jewish holidays, during prayer times. On Friday evenings and holiday eves the street would be closed from 6:30 p.m. to 9 p.m.; on Saturdays and Jewish holidays from 7:30 a.m. to 11:30 a.m., and from 5 p.m. to 8:30 p.m. This traffic arrangement would be in force for a four month period. Intersections themselves would remain open to traffic. During this period, the impact on traffic in the area would be monitored. The Minister of Transportation informed the Knesset of his decision—a decision which the current petitions challenge.

The Petitions

13. The first petition before us (HCJ5016/96) was filed by Lior Horev, a resident of Jerusalem active in the struggle against the street’s closure.  He claims that the decision was illegal, as it was taken without consulting the Mayor or the residents of the affected secular neighborhoods.  The petitioner further maintains that the decision is patently unreasonable, for it involves the permanent closure of a central traffic artery for a number of hours, as distinguished from a temporary closure for a particular event.  The petitioner claims that the decision is based on political considerations. He also noted the problem with impeding the freedom of movement of emergency and security vehicles.  Indeed, Bar-Ilan Street is used by such vehicles for the purpose of reaching the hospital on Mount Scopus.  Consequently, the petitioner requests that we declare the Minister’s decision invalid and issue a temporary restraining order, until we render a final decision.

14. The second petition (HCJ 5025/96) was filed by Member of Knesset Ophir Pines, a resident of the neighborhood of Ramot. M.K. Pines argues that he is liable to be harmed by the Traffic Controller’s decision. He claims that the Minister forced the Traffic Controller to decide as he did.  The decision, he submits, is patently unreasonable, for it leaves entire neighborhoods in Jerusalem without any reasonable alternative routes. Nor, he claims, did the respondents consult with representatives of the secular public prior to adopting the decision.  He further contends that the placing of traffic signs, such as the ones indicating Bar-Ilan’s closure, is a regulatory act that requires official publication.  There was no such publication and the new traffic regulations were made without proper authorization, when both the Prime Minister and the Mayor were overseas. The petitioner further emphasized that the parallel road, Yechezkel Street, had already been closed to traffic on the Sabbath and holidays in order to meet the religious needs of the Ultra-Orthodox public. Thus, closing Bar-Ilan Street would impose a total detour of about nine kilometers on motorists. The petitioner therefore requests that the Court strike down the Traffic Controller’s decision. He also requests that we issue an interim order, prohibiting the placing of traffic signs, pending a final resolution.

15. Knesset Member Yosef Sarid and others filed the third petition (HCJ 5090/96).  They argue that limiting traffic on Bar-Ilan Street on Sabbaths and festivals is a matter that should be determined by the Knesset, as it impacts basic civil rights. It was further argued that the decision was taken without consulting with the Prime Minister, the Head of the Regional Authority, the Head of the Local Traffic Authority, or with residents who were likely to be harmed by the decision. Petitioners maintain that a better solution would be to build pedestrian walkways over Bar-Ilan Street. 

Petitioner number three is a resident of Tzefania Street, adjacent to Bar-Ilan. She works at Hadassah Ein Karem Hospital. Petitioner number three claims that closing Bar-Ilan Street on Sabbaths and festivals will force her to park her car about a kilometer away from her home and that, if she decides to visit her brother, also a resident of Jerusalem, she will have to walk about five kilometers. Petitioner number four is a disabled Israel Defense Force (IDF) veteran, with restricted mobility. His parents live on David Street, which intersects Bar-Ilan. He visits them every Friday and Sabbath.  Petitioner number four argues that closing the street will prevent him from seeing his parents on Sabbaths and holidays.  Petitioners also submit that the Controller’s decision was made under the pressure of the demonstrations of the local Ultra-Orthodox public. These demonstrations sometimes involved acts of violence, which ended in damage to both persons and property. They argue that the Controller’s decision would give dangerous legitimacy to such violence. We were therefore requested to strike down the Controller’s decision.

Issuing an Order Nisi and an Interim Order

16. The petitions were filed with the Justice on Duty, Justice D. Dorner, and transferred to a panel of justices, who decided that they would hear the petition the following day.  During the hearing, before President A. Barak, Justice E. Mazza and Justice D. Dorner, it was decided to issue an order nisi. The interim order was also granted. Respondent was given fifteen days to file a response. It was decided that, upon receiving respondent’s response, a date would be set for hearing the petition.

17.  After the order nisi was issued, an additional petition was filed (HCJ 5434/96). The petitioner was the Association for the Rights of the Religious Community in Israel. They request that we order the Traffic Controller and the Minister of Transportation to show cause as to why Bar-Ilan Street should not be completely closed on Sabbaths and holidays. They claim that these areas are completely and exclusively religious and Ultra-Orthodox. This being the case, the use of the road for traffic on Sabbaths and festivals injures the sensibilities of the residents of Bar-Ilan Street and its environs.  It also causes ongoing tension between this population and Jerusalem’s secular population.  As a result, there are repeated incidents of violence between these sectors of the public.  Petitioner also claims that traffic on the Sabbath endangers the welfare of the local population, for whom the road serves as a pedestrian promenade on the Sabbath.  It turns the Sabbath into a regular weekday, violating the beliefs by which the local residents abide. The secular population, they argue, has reasonable alternative roads on which to drive on the Sabbath.  The petition was filed with the Justice on Duty, again Justice D. Dorner, and an order nisi was issued as requested. A hearing was set and combined with the hearings of the other three petitions.

18. The continuation of the hearing of the four petitions was scheduled for August 15, 1996. The Traffic Controller’s response to the four petitions was submitted to the Court prior to this hearing.  With respect to the first three petitions, the Controller noted that, in his decision to partially and temporarily close Bar-Ilan Street, he had appropriately balanced between freedom of movement and the sensibilities of the religious residents of Bar-Ilan Street and its vicinity. Employing the information provided by the Sturm Committee, the Controller asserted that the volume of traffic on the Sabbath and festivals is only 12 per cent of the volume of traffic on regular days.  According to the Controller, his decision did not leave motorists without alternate routes. These alternative routes, however, do require longer trips.

19. According to the data submitted by the Traffic Controller, Bar-Ilan’s closure would mean that, instead of travelling 2.2 kilometers along the road, motorists wishing to reach the Sanhedria intersection from the entrance to the city to would have to turn left at the entrance to the city, at Route no. 4 (Mie Naftoach) and then turn right at Golda Meir Boulevard prior to reaching the Sanhedria intersection. The trip would be lengthened by only 1.5 kilometers and the time difference would be only two minutes.  For the residents of Jerusalem’s eastern neighborhoods (Katamon, Talpiot and the German Colony) as well as for residents of the city center, the direct route to the northern suburbs is via Route no. One. For residents of the western neighborhoods (Beth Hakerem, Kiryat Hayovel and Kiryat Menachem) an alternate route to the northern suburbs through Route no. Four is available, which, as stated above, lengthens the trip by only 2.2 kilometers. Residents of Jerusalem’s northern neighborhoods, for their part, can exit the city directly via Route no. Four to Tel-Aviv, as well as via Route no. 443 to Modi'in.

20. In light of this data, the Controller balanced the conflicting interests. He considered the intensity of the harm caused by alternate courses of action. He concluded that the appropriate balance between the relevant factors necessitated a partial closure of Bar-Ilan Street, during those times when a large portion of the religious population was on its way to or from the synagogue. As these times motor traffic along Bar-Ilan presents the greatest affront to religious sensibilities. Even so, the Traffic Controller was of the opinion that the closure ought to be on a temporary basis only.  During the period of the closure, the damage caused motorists using Bar-Ilan and its alternate routes would be examined.  The respondent’s position is that, “at this stage,” closing the road beyond prayer times should not be permitted.

21.   In his response, the Traffic Controller addressed the change in his position. He asserted that his initial response only addressed the strictly traffic-related aspects of the matter and failed to give full attention to the scope of the offense to the Ultra-Orthodox public’s sensibilities. His second decision was adopted following a renewed examination of all the circumstances. As a result, he is now convinced that the appropriate balance of the conflicting interests warrants the temporary, partial closure of Bar-Ilan Street during and around prayer times.

22. Further on in his response, the Traffic Controller discussed the arguments for consulting sections of the secular population.  The Controller contended that he was not under a duty to consult but that, as a matter of fact, he was aware of the positions of both the Ultra-Orthodox and the secular. He had studied the Sturm Report and had been apprised of the Jerusalem City Council’s stance regarding the Sturm Committee’s recommendations. The Traffic Controller also asserted that placing a traffic sign does not require official publication.

23. Regarding the inconvenience caused to petitioners three and four (HCJ 5090/96), the Traffic Controller contended that:

the reasonableness of an administrative decision in a case is assessed subsequent to balancing all the relevant interests. The fact that a particular individual suffers in a more serious way does not affect the reasonableness of the decision as a whole.

24. In his reply, the Traffic Controller specifically related to the petition in HCJ 5434/96, which requests that Bar-Ilan Street be completely closed for the entire Sabbath. He noted that even though the alternate routes only lengthen the commute by about two kilometers, this still constitutes an infringement of the city residents’ interests in general, and the interests of the residents of the northern suburbs in particular. Of course, their rights must be balanced against those of the Ultra-Orthodox population who live along the road, and their interest not to have their religious sensibilities offended on the Sabbath and festivals.   The appropriate balance between these conflicting interests, argues the Controller, warrants the partial closure of the road, during the Sabbath and festivals.  This closure will be temporary. After the trial period, the situation will be reexamined, with consideration for statistics regarding the volume of traffic on the street. Towards the end of his response, the Traffic Controller also raised the possibility of establishing an electric sign, which would advertise the times that the Sabbath and festivals commence and end. This sign would be connected to the traffic lights, and would facilitate the road’s closure at the precise times of prayers.

25. In view of the matter’s significance and at the request that the original panel of judges be broadened, I decided to add Deputy President S. Levin and Justices Or, Cheshin and Tal to the original panel. The hearing began on the August 15, 1996. At the start of the hearing, we ordered the joinder of a number of petitioners (HCJ 5341/96, 5354/96 and 5377/96) as respondents to the first three petitions. These respondents included the Committee of Tel-Arza and Bar-Ilan Street Neighborhoods. The Committee noted the numerous times it had approached the Minister of Transportation, Israel Kaiser, with requests that Bar-Ilan Street be closed.  These requests were appended with the petitions of rabbis, of institutions for Jewish learning and of thousands of residents, including a petition signed by 1,000 children, all of whom requested that the Bar-Ilan Street be closed to traffic on the Sabbath.  According to petitioner, those signing these petitions included “almost all of Bar-Ilan Street’s residents, house after house, religious, traditional and secular.” The Committee asserted that, on the Sabbath, “Bar-Ilan Street serves as a main artery for pedestrian traffic. Residents, together with their families, go to services three times a day, visit their rabbis and the homes of relatives and friends in the neighborhood, attend lessons in Torah, and go to the synagogue for the afternoon meal.  Children, after a week of long days in school, also attend services, and go to lessons, Psalm reciting groups, games and meetings with their friends. The pedestrian traffic on the Sabbath and festivals on Bar-Ilan Street involves thousands of people and is of a far greater scope than the motor traffic, which poses a serious danger to the pedestrians, particularly the children. In addition, according to petitioner, the presence of motor vehicles “disturbs prayers and Torah classes in the synagogues and infringes upon the Sabbath rest enjoyed by the local residents.”

According to the Committee, the proper solution is the absolute closure of Bar-Ilan Street to traffic on the Sabbath.  At minimum, the road should be closed in accordance with the Sturm Committee’s recommendations and the Traffic Controller’s decision. With respect to ambulances or other emergency vehicles, the Committee noted that these would be able to move freely. It asserted that “[w]ho is as well-known as the Ultra-Orthodox public and its volunteers for their commitment to saving lives and helping others?"  The Committee further contended that Bar-Ilan Street was only a vital traffic artery on weekdays. On the Sabbath, traffic is minimal and the road becomes “a traffic artery for pedestrians.”  The Committee also asserted that “almost 100% of the residents living in the vicinity of the Shmuel HaNavi and Jeremiah Streets, as far as Shamgar Street, are all religious or Ultra-Orthodox, and their religious sensibilities, convenience, and way of life should be taken into account.” In addition, it emphasized that the section of the road designated for closure contains over one hundred synagogues and religious institutions.  As for the violence of Ultra-Orthodox groups on Bar-Ilan Street, the Committee deemed these to be fringe groups, who do not reflect the views of the overwhelming majority of local residents. “It is well known that rabbis from all circles and communities have prohibited stone-throwing or any kind of violence at demonstrations, especially on the Sabbath, as such is prohibited by Jewish law.”

With respect to petitioner number three (HCJ 5090/96), the Committee submits that an ambulance would be able to pick her up on the Sabbath.  In addition, she would be able to obtain an ambulance sign for her car through the hospital. Regarding travel to members of her family, she would be able to do so during the hours when the street was open on the Sabbath. The same would apply to petitioner number four.

26. When the Minister of Transportation and the Traffic Controller began their oral arguments, the Court asked for further details from the National Traffic Controller, Mr. Langer. He answered our questions.  He provided us with a detailed explanation of the traffic issues in Jerusalem on the Sabbath, noting the conflict between the desire of the religious and Ultra-Orthodox communities to maintain an observant way of life and between the secular public’s freedom of movement. In the Controller’s view, closing Bar-Ilan Street for a four-month period constituted an attempt to find the proper balance between these conflicting considerations, in order to facilitate finding a more permanent solution.

27. On the basis of his testimony before us, and in the view of the petitions and the responses to them, the Court thought it best to resolve the matter by way of an agreement.  Such an agreement would quite naturally be premised on mutual patience and tolerance and on a long-term understanding regarding the future of Jerusalem. Rather then focusing solely on the issue of whether to close Bar-Ilan Street, it would relate to expected social dynamics and their effect on the secular-religious relations in the coming years. On the basis of such this agreement, it would be possible to find long-term solutions for the various problems that these petitions raised.

28. This lead to our proposal that a public committee be established, whose members would provide a balanced reflection of the spectrum of views and perspectives on secular-religious relations. The committee’s goal would be to strike a social covenant for secular-religious relations. The committee’s recommendations would be considered by the government agencies, which would assist them in determining policy in traffic matters, including the potential closure of Bar-Ilan Street.

 29.            The Court’s proposal was immediately submitted to the Minister of Transportation, who accepted it.  We were informed that the Minister intended to have the Committee set-up immediately so it could begin deliberations without delay.  The other sides also welcomed our proposal. Under the circumstances, we thought it appropriate to postpone the continuation of the hearing for two months, in order to allow the committee to function.

30. In view of this development, the state and the petitioners in HCJ 5434/96 petitioned the Court to strike down the interim order.  Petitioners in HCJ 5016/96, 5025/96 and 5090/96 opposed this motion. We held, with Justice Tal dissenting, that there was no reason to revoke the interim order at that stage. It was our understanding, given the response of the National Traffic Controller and, on the basis of accepted guidelines regarding interim orders, that the interim order should remain valid.  We further noted that the petitions were still pending and that, as long as we lacked exact and verified data regarding an appropriate solution, there were no grounds for changing the status quo that had existed on Bar-Ilan Street prior to the Controller’s decision.  This having been said, we noted that there was nothing to prevent the Controller or one of the other litigants, subsequent to the establishment of the committee, from approaching us at his or her own initiative with a request to strike down or alter the interim order, on the basis of developments in the committee.

31. The Court emphasized its hope that a public committee that would make recommendations, which would be submitted with appropriate haste and which would reflect the social consensus of all walks of Israeli society, would facilitate an eventual solution to the critical problem of religious-secular relations both in Jerusalem and outside of it, based on mutual tolerance. We also expressed our concern that the committee be allowed to do its work in a quiet atmosphere, free from threats or violence.  As noted above, the Controller or any of the litigants would be able to return to us in the future with a request to strike down or alter the interim order.

32. In his dissent, Justice Tal opined that the interim order should be cancelled. In his view, the National Traffic Controller’s decision was temporary, and was intended to allow for assessment of the proposed arrangement. Upon termination of the trial period it would be possible to ascertain whether the proposed arrangement had been an appropriate and reasonable alternative. Justice Tal noted that he saw no reason for this Court to prevent the authority from conducting this experiment. The results of the experiment could also be weighed by the public committee.

The Tzameret Committee

In the wake of our proposal, on August 27, 1996 the Minister of Transportation appointed a public committee charged with making recommendations regarding motor traffic on the Sabbath. The committee was chaired by Dr. T. Tzameret. Its members were Prof. G. Golan, Rabbi T. Weinmann, Mr. U. Chason, Rabbi S. Yakobovitz, Rabbi She'ar Yashuv Cohen, Prof. E. Shweid, Prof. D. Shferber. In its letters of appointment, the Committee was requested to establish

recommendations regarding traffic on the Sabbath on Bar-Ilan Street in Jerusalem, in Jerusalem in general, and its environs. The recommendations are to reflect a social consensus between various segments of the population. This consensus is to be based on patience, tolerance and on a long-term understanding of the population structure of Jerusalem and its environs.

34. The Tzameret Committee deliberated for approximately nine weeks. It heard the testimony of dozens of witnesses, including public servants, experts in geography, economics, urban planning, sociology, political science and public administration, politicians, public figures and ordinary citizens. The Committee also studied the written requests of citizens not summoned to testify before it.

35. The Committee’s recommendations address four matters: the creation of a “social covenant” between the religious and the secular, the economic, demographic, cultural and social development of Jerusalem, the regulation of the street closures nationwide on the Sabbath and holidays, and the closure of Bar-Ilan Street on the Sabbath and holidays.

Regarding the social covenant, seven of the eight Committee members recommended that a council, consisting of twenty-three public figures and spiritual leaders from all walks of life, be established to engage in an ongoing dialogue on religious-secular relations. “All of this with a view to the gradual improvement of religious-secular relations based on mutual respect, understanding and agreement.”

With respect to Jerusalem’s development, seven of the eight Committee members recommended intensifying research regarding Jerusalem, its development and its population, in order to collect data which could serve as a basis for formulating policy. Likewise, the seven members also suggested the restriction of subsidized building in Jerusalem, the building of additional public structures and the planning of new suburbs, with an eye to the lifestyles, character, and needs of the various sectors of the population. The Committee unanimously recommended extending the municipal boundaries of Jerusalem to the west and south, so that suburbs such as Mevasseret Tzion, Motza Elit, Ramat Rachel, Mt. Eitan and the Arazim valley would be included within Jerusalem.  The Committee further recommended encouraging economic, public and spiritual activities within the Jerusalem area. In addition, six of the Committee members proposed “the promotion of cultural activity geared towards various populations, provided that such activities do not involve the public desecration of the Sabbath.” One of the members opposed this recommendation and another abstained.

 36.            As for the matter of closing roads nationwide, the Committee recommended that Israeli roads be classified into six categories:

                    (1)Local streets—streets used exclusively for access to adjacent land and not for thorough traffic;

                    (2)Internal Thorough Streets—streets, mainly serving the needs of local residents, which concentrate and divert traffic from internal streets to collector or arterial thoroughfares;

                    (3)Main Thorough Streets—streets which concentrate traffic from internal thorough streets to main traffic arteries;

                    (4)Arterial Thoroughfare (with direct access to adjacent lands)—streets, used for transit between various neighborhoods, which concentrate traffic from the categories listed above;

                    (5)Arterial Thoroughfare (without direct access to adjacent land users)—street, which are used for through traffic only, which concentrate traffic from the thoroughfares listed above;

                    (6)Intercity Highway.

The Committee recommended that the Municipal Authority, in its capacity as the Traffic Authority, be exclusively authorized to deliberate and decide whether a Main Thorough Street or an Arterial Thoroughfare (with direct access to adjacent land users), should be closed. Such requests would be considered if a large majority of the adult population (75% - 80%) in the area through which the street passes requested such a closure, and if reasonable alternate routes could be found. The Committee further suggested that any decision of the Municipal Authority to close a street should be submitted to the Central Authority, who would examine the decision based on professional considerations. The Committee recommended that only the Central Authority be authorized to close Arterial Thoroughfares (without direct access to adjacent land users) and Intercity Highways, and only then under exceptional circumstances. Moreover, the Committee proposed that an appeals board be established in order to adjudicate objections raised against the Central Authority’s decisions.

37. With respect to Bar-Ilan Street’s closure, five of the Committee members recommended that “in consideration of the needs of the Ultra-Orthodox population, we recommend adopting the Sturm Committee’s decision to close Bar-Ilan Street on the Sabbath and festivals during prayer times, provided that arrangements are made for the secular public in accordance with its needs within the framework of the current status quo.” In a personal letter, which forms part of the report, the Committee’s Chairman noted that the recommendation that the road be closed during prayer times is a conditional one—the condition being that “there be an organized transportation alternative on the Sabbaths in Jerusalem, an arrangement that had existed in Jerusalem for many years.”  Two additional Committee members (Prof. Shweid and Prof. Golan) clarified that they agreed to closing the road with the understanding that transportation arrangements for the secular public would be based on the status quo, under which taxis had been permitted to operate. Prof. Shweber expressed reservations regarding these understandings, and emphasized that his intention was not to permit public transportation on the Sabbath, but rather to continue allowing private transportation. Rabbi Shear Yashuv Cohen, who refrained from voting, claimed that the reference to the status quo was intended to prevent deterioration in the position of the secular population rather than permit the desecration of the Sabbath.

The Decision of the Minister of Transportation

38. The recommendations of the Tzameret Committee were submitted to the Minister of Transportation.  In accordance with section 42 of the Basic Law: The Government, the Minister decided to assume the authority of the Traffic Controller in the matter of Bar-Ilan Street.  On November 7, 1996, the Minister submitted an affidavit to this Court, detailing his stance.

 39. The Minister of Transportation adopted the Tzameret Committee’s recommendations regarding the establishment of a public council. This Council would be responsible for conflict resolution between different sectors of the Jewish population.  The Minister of Transportation brought this proposal to the Prime Minister and requested that he recommend to the President that such a council be established.

With respect to Jerusalem’s development, the Minister of Transportation stated that the committee's recommendations were not within his authority, but suggested to the Prime Minister that these recommendations be submitted to the Minister’s Committee for Jerusalem.

40. In the matter of closing roads nationwide, the Minister of Transportation decided that professionals employed by his Ministry would assess recommendations of this nature. If the professionals suggested that the recommendations be implemented, and if the Minister decided to adopt them, appropriate legislative amendments would be necessary.

41. Regarding Bar-Ilan Street, the Minister of Transportation felt that implementing the Tzameret Committee’s recommendations would essentially entail closing the road. This position took into account its classification as an Arterial Thoroughfare (with direct access to adjacent lands), the existence of reasonable alternatives, and the fact that an overwhelming majority of the population had expressed its desire that the road be closed.  The Minister also expressed his view regarding the condition on which the road closing was to be premised, namely “that arrangements are made for the secular public in accordance with its needs within the framework of the current status quo." The Minister regarded this condition as being “vague and lacking substantial factual basis.”  He noted the various interpretations given by different Committee members. Dr. Tzameret, Prof. Schweid and Prof. Golan felt that this paragraph referred to the implementation of public transportation on the Sabbath. Prof. Shwerber interpreted the paragraph as referring to the individual’s right to violate the Sabbath within the framework of the existing status quo. Consequently, the Minister concluded that the majority of the Committee did not suggest making the street closure contingent on the establishment of alternate transportation routes.

 Regarding the paragraph’s factual basis, the Minister noted that the three Committee members in question could not point to any agreements that would confirm their respective interpretations.  The Minister further noted that the Traffic Controller had informed him that, in the past, licenses had not been distributed for taxis to operate on Sabbaths and festivals.  From this he deduced that, in permitting organized transportation, he would be changing the status quo rather than continuing it. The Minister of Transportation concluded that he had not been presented with a recommendation that reflected a “a social consensus between the various segments of the public regarding Sabbath traffic.”

 The Minister of Transportation also consulted with the Traffic Controller. The Traffic Controller recommended that the Minister adopt the Tzameret Committee’s recommendation that Bar-Ilan Street be closed during prayer times, on the condition that Golda Meir Boulevard and the other entrances to the city remain open during the Sabbath and festivals, as well as that Jaffa Street be open to private vehicles. It was on the basis of these conditions that the Minister of Transport decided that Bar-Ilan Street would be closed to traffic on Sabbaths and festivals during prayer times, as per the Sturm Committee’s recommendations. Closing times would be for one hour and forty-five minutes after the beginning of the Sabbath, one hour and forty-five minutes prior to the end of the Sabbath and between 7.30 and 11.30 a.m. during the Sabbath day. In addition, the Minister of Transportation decided that, for as long as Bar-Ilan Street was closed, Golda Meir Boulevard and the entrances to Jerusalem would remain open. Similarly, the lanes on Jaffa Street normally reserved for public transportation would be opened to private vehicles.

The Continuation of the Hearing

42. Oral arguments resumed upon receipt of the Minister’s response.  The Minister of Transportation emphasized that his decision was not for a trial period, but reflected a final position. The Minister asserted that he had balanced the conflicting interests and decided that, in view of the serious harm to the interests of the Ultra-Orthodox sector on the one hand, and the existence of reasonable transportation alternatives on the other, it was reasonable to partially close Bar-Ilan Street to traffic on the Sabbath and on festivals. However, he noted, should there be any change in the circumstances, the Minister would obviously reconsider his decision. Moreover, the Minister asserted that his decision was influenced by the Sturm and Tzameret Committees’ recommendations and by the opinions of various rabbis, committees and other interested parties. In this context, it was stressed that there were over one hundred synagogues within the ten surrounding neighborhoods immediately adjacent to Bar-Ilan Street.  Indeed, local residents often crossed Bar-Ilan Street when going from one neighborhood to another, both for purposes of prayer and study. This having been said, the Minister was careful to stress that he had not been influenced by the violent demonstrations, though he contended that this violence was proof of the intensity of the feelings of the Ultra-Orthodox community. According to the Minister, violence must be dealt with by the police, and it would not lead him to change his mind. Needless to say, if one of the responsible bodies, such as the municipality or the police, were to approach him, he would be prepared to consult with them in that regard.

The Minister highlighted that he had not been approached by any secular residents who would be harmed by his decision. He reiterated that “so long as Bar-Ilan Street is closed, the adjacent roads … would remain open.”  Furthermore, he clarified that, in deciding these matters, the more important and central the road, the stricter and more exacting would be the standards for its closing.  In any event, the factors to be taken into account were the degree of harm to the feelings of the public, the balance between the various populations living adjacent to the road, and the nature of the alternatives available. In addition, the Minister notified the Court that the establishment of a public body that would function as an appeals board was presently under discussion.  Practically speaking, he asserted, such a body had functioned in the Bar-Ilan case.

The Committee of Tel-Arza and Bar-Ilan Street Neighborhoods reiterated its position that Bar-Ilan Street ought to be completely closed on Sabbaths and festivals. It asserted that that there were no more than fifty secular residents in the neighborhood, making Bar-Ilan Street a uniquely Ultra-Orthodox neighborhood. Similarly, the Association for the Rights of the Religious Community in Israel also asserted that Bar-Ilan Street ought to be absolutely closed to traffic on Sabbaths and festivals. 

43. For their part, petitioners in 5090, 5025, and 5016/96 repeated their position that Bar-Ilan Street’s closure is unreasonable. They emphasized the absence of criteria for closing streets to traffic and argued that a precedent would be set for closing additional arterial roads if the Court was to approve the Minister’s decision to close the Bar Ilan Street. They further emphasized that, in the past, the closure of Yehezkel Street had been justified by the fact that Bar-Ilan Street provided an alternative route. Now, however, there are requests to close Bar-Ilan Street, claiming that other roads can serve as alternatives. In the future, these roads would also be closed. In this context, it was argued that if the feelings of the Ultra-Orthodox warranted the closing of Bar-Ilan Street, why did respecting these feelings not also warrant the closing of alternative roads as well?  The petitioners emphasized that, while the secular petitioners were always ready to compromise, the Ultra-Orthodox were not prepared for any compromise, nor were they ready to renounce any of their past victories.  It was further emphasized that there were many secular citizens who refrained from using Bar-Ilan Street on the Sabbath, due to the Ultra-Orthodox violence on the street.

44. In response to these comments, my colleague, Justice Tal, inquired as to whether the petitioners were prepared for a compromise in which Bar-Ilan Street would be closed to traffic on the Sabbath, as per the Minister of Transportation’s decision and, in exchange, a street that is currently closed on Sabbath would be reopened. Justice Tal made particular reference to Yam Suf Street. The panel joined Justice Tal in this suggestion. The Minister informed us that he would conduct a hearing regarding the proposal with the representatives of the City of Jerusalem.

45. In his response, the Minister informed us that the compromise proposal had been seriously considered and that he had inquired with the Mayor of Jerusalem regarding the possibility of reopening Yam Suf Street to traffic on the Sabbath. After consulting with the representatives of the City Council and with the Director of the Traffic Section and Engineering Services, the Mayor of Jerusalem decided that it is appropriate to preserve the status quo on Yam Suf Street. He reasoned that there is no traffic-related connection between closing Bar-Ilan Street, as per the Sturm Committee’s recommendation, and reopening that particular segment of Yam Suf Street, which had already been closed to traffic on Sabbaths and holidays for a year and three months. Professionals working in the Transportation Ministry agree that there is no significant traffic-related connection between closing Bar-Ilan Street and reopening a segment of Yam Suf Street. The Minister of Transportation also agrees with this position. The Minister of Transportation noted that additional attempts had been made to find a solution acceptable to all sides, but that these efforts had been unsuccessful.

The General Normative Framework

46. Our point of departure is section 70(1) of the Traffic Ordinance [Revised Version], which confers upon the Minister of Transportation the authority to regulate traffic and establish rules regarding the use of the roads. With this authority, the Minister enacted Regulation 17 of the Traffic Regulations-1961:

17. (a) The Central Traffic Authority is permitted to direct the Local Traffic Authority regarding the determination of traffic arrangements, their alteration, termination, and maintenance.

(b)        Where instructions as stated in subsection (a) are given, and the Local Traffic Authority does not comply therewith, the Central Traffic Authority may set out such traffic arrangements, which shall be regarded as if though they had been established, indicated, activated or terminated by the Local Traffic Authority.

The “Central Traffic Authority” is the Traffic Controller or the body upon which the authority of the Controller is conferred. For our purposes, the Central Traffic Authority is the Minister of Transportation, in view of his use of section 42 of the Basic Law: The Government, by which he assumed the Traffic Controller’s authority with respect to Bar-Ilan Street.

47. Regulation 17 of the Traffic Regulations endows the Traffic Controller with the administrative authority to direct the manner in which traffic arrangements are to be set up.  This authority, like any administrative power, must be exercised in accordance with the rules of administrative discretion and procedure.  The rules of administrative discretion, for their part, deal with the factors that the administrative authorities are permitted to take into account and any balancing between them. The rules of administrative procedure determine the methods through which administrative discretion is to be exercised. See 2 I. Zamir, The Administrative Authority [91], at 673. These two sets of rules were developed by the High Court of Justice and are based on the fundamental principles of our legal system. They have been entrenched in our Basic Laws. In accordance with the theory of administrative discretion, the administrative authority is only permitted to take relevant considerations into account. Furthermore, the administrative authority must find the appropriate balance between these relevant considerations. The balance must be reasonable, as must the decision. The exercise of administrative discretion must be based on a principled, fair and systematic examination of the factual foundation underlying the matter in question.  Were the requirements of these two sets of rules satisfied in the case at bar?    

Laws of Administrative Discretion—Relevance

48. According to our administrative law, an administrative authority is only permitted to consider relevant considerations.  Irrelevant or foreign considerations are proscribed. See HCJ 953/87 Poraz v. Mayor of Tel-Aviv/Jaffa Mayor [4], at 324. In the case at bar, the Minister of Transportation considered the affront to the religious sensibilities and observant way of life of the Ultra-Orthodox population living around Bar-Ilan Street. Is this a relevant or a foreign consideration? The question of whether religious considerations and offense to religious sensibilities may be taken into account has been discussed at length in our case law. See 1 A. Rubinstein, The Constitutional Law of the State of Israel 214 (1997) [92]. Sometimes, the answer was in the affirmative and, at other times, it was in the negative. See HCJ 105/54 Lazerovitz v. Food Products Comproller, Jerusalem [5].

Clearly, the determining factor is the language of the law conferring the authority, and the purpose for which the authority is conferred. As a general interpretative guideline, subject to specific legislative provision, it may be said that considerations that take religious sensibilities into account are precluded if religious coercion is the final goal of such considerations. In contrast, religious sensibilities may be taken into account if they are intended to give expression to religious needs. See HCJ 3972/93 Meatrael Ltd v. Prime Minister [6], at 507.  Indeed, religious coercion is said to run contrary to the right to freedom of religion and human dignity. Consideration of religious needs is, however, consistent with freedom of religion and human dignity. Thus, for example, when exercising discretionary powers to institute daylight savings time, it is permitted to take religious needs into account. I discussed this point in HCJ 217/8 Segel v. Minister of the Interior [7], at 439:

Changing the clock touches on and affects the lifestyle of the Israeli population. As such, even times of prayer and the observance of religious commandments are relevant matters. Just as the Minister of the Interior is permitted to take the industrial and agricultural needs of farmers, adults, and youth into account, he is also permitted to consider the interests of the religious and secular populations.

Similarly, in the exercise of discretion to prohibit the performance of a play, the fact that the performance offends the audience’s religious sensibilities may be considered. This was indeed the ruling in HCJ 351/72 Keinan v. Film and Play Review Board for Films [8], at 814, as per Justice Landau:

According to the law of the State of Israel, even a playwright is not exempt from the duty not to grossly offend his fellow’s religious sensibilities. This obligation is a direct product of the duty of mutual tolerance between free citizens with differing views, without which a pluralistic society such as ours could not function. This principle is important to the extent that it can prevail over the basic right of freedom of expression.

In another case, dealing with the Review Board’s authority to prohibit the screening of a film that offended the religious sensibilities of the public, HCJ 806/88 Universal City Studio Inc. v. Film and Play Censorship Board [9], at 37, I wrote:

In a long line of cases, this Court has recognized offense against another's feelings—such as feelings of religion or mourning—as justifying the exercise of the authority of the Review Board for the purpose of restricting the freedom of expression. The public’s feelings are values which the Film and Play Review Board, acting in its capacity to censor films, must take into account. An infringement on such feelings may justify limiting the freedom of expression.

One case, HCJ230/73 S.T.M. v. Mayor of Jerusalem—Mr. Teddy Kollek [10], at 121, discussed whether an administrative authority was entitled to refuse to issue a license that was required by the Licensing of Businesses Law-1968. The reason offered for the refusal was that opening the business in question would offend the local residents’ sensibilities. The Court upheld the refusal to grant the license. Justice Y. Cohen considered injury to the public’s religious feelings as a consideration relating to “public security,” and, as such, to be legitimate:

Even in its narrow sense, this provision justifies the refusal to issue a license for a business, which, by its very nature, offends the feelings of the residents of the area in which the business is to be opened. As such, there is a real danger of a concrete violation of the public peace. If, for example, someone requested to open a night club in the heart of Mea Shearim, or a pub in the center of a religious Muslim neighborhood, the Licensing Authority would be justified in refusing to issue a license.

In yet another case, the Court held that religious feelings may be taken into account when authority is exercised to limit the freedom of worship. See HCJ 7128/96 The Temple Mount Faithful v. Government of Israel [11].  That matter was succinctly summarized by Justice Berenson:

Consideration of religious feelings, close to the hearts of numerous segments of the population, is not an invalid consideration per se, provided that the use of the statutory authority is not a guise for attaining a purely religious objective.  Where it is possible to pursue a course of action in one of two ways—either by ignoring religious considerations, or by taking them into account without imposing a large burden the public—the second route is preferable. In HCJ 98/54, a directive issued by the Food Controller was struck down by reason of it being an attempt—motivated by exclusively religious considerations—to prevent pig farming in Israel, under the guise of food control. This having been said, in the same ruling, it was explained that the directive would not have been defective had the Controller taken into account religious needs in a manner incidental to his authority to regulate food consumption. “Quite the opposite, there would have conceivably been a serious problem in his behavior had he ignored these considerations.” Crim. A 217/58 Izramax Ltd. v. The State of Israel [11], at 362.

Our conclusion is that the consideration of religious feelings, if this does not amount to religious coercion, is deemed to be a legitimate exercise of administrative authority. HCJ 612/81 Shabbo v. Minister of Finance [13], at 301. Taking into account religious considerations may form part of a statute’s general goal. Obviously, aside from this general goal, there may be a more specific goal, under which religious considerations are deemed illegitimate. See HCJ 953/87 supra. [4]. This approach was reinforced by the adoption of the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation.  Both of these Basic Laws stipulate that their purpose is “to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.” See section 1 of the Basic Law: Human Dignity and Liberty and section 2 of the Basic Law: Freedom of Occupation. Consideration of religious feelings was recognized in the past as being commensurate with the values of the State of Israel as a democratic state. The validity of this consideration is now further reinforced by the values of the State of Israel as a Jewish state. Indeed, the Jewish and democratic values of the state are inseparable, as both are endowed with constitutional status. Both serve as tools for the legislative interpretation of laws. See Crim. FH 2316/95 Ganimat v. The State of Israel [14]. Thus, on the interpretative level, every effort must be made to ensure the synthesis and accommodation of these two aspects. See CA 506/88 Yael Shefer  v. The State of Israel [15].    

The Law of Administrative Discretion: Balancing and Reasonableness

49. As we have seen, provided no religious coercion is involved, offense against the religious feelings and lifestyle of an individual or group is a relevant factor in the exercise of administrative authority.  Nonetheless, it cannot be forgotten that considering the religious feelings of a particular individuals is liable to violate the rights and feelings of another person. Thus, whether religious sensibilities are offended is a factor that cannot be considered in isolation. Rather, this must invariably be weighed against other factors, related to both the individual and the public at large. A reasonable balance must be struck between the conflicting considerations. If the balance is appropriate, it leads to the conclusion that the decision is reasonable. See HCJ Ganor v. The Attorney-General, at 513-14 [16]. Indeed, a decision’s reasonableness is assessed by balancing between competing values, according to their respective weight.  This is the balancing doctrine as practiced in our public law. It is employed where an authority considers conflicting values and interests. It has been practiced by this Court in most instances where the exercise of discretionary power infringes the rights of either the individual or society.

 Even so, there are some interests against which there can be no balancing. For example, when the State of Israel’s very existence was placed on the scales, this Court refused to weigh between that interest and competing interests. IA 1/65 Yardor v. Chairman of Central Elections Committee [17]. Indeed, the Court regarded preserving the State of Israel’s existence as a “constitutional given” not to be weighed against the right to elect and be elected.  Nonetheless, this case was clearly exceptional and was even the subject of criticism. See IA 2/84 Neiman v. Chairman of the Central Elections Committee [18], at 304. Thus, this Court refused to extend the scope of this exception to cases other than those involving preserving the democratic nature of the state. Neiman [18]. I am prepared to assume, without ruling on the matter, that there are other values or interests to which the balancing doctrine is not applicable. This having been said, the accepted approach in our public law is the following: where a conflict arises between an individual right and a public right, the Court balances between the two. See Neiman [18], at 308; CA 294/91 Jerusalem Burial Society v. Kastenbaum [19], at 521; CA 105/92 Re’em Engineers v. Municipality of Nazareth-Illith [20], at 207. This case involves balancing between conflicting interests and values. This is a process of “placing competing values on the scale and, having weighed them, deciding which value is to be preferred. See HCJ 73/53 Kol Ha’Am Company v. Minister of the Interior [21], at 879. This was the Court’s approach regarding the conflict between freedom of expression and preserving public peace, HCJ 153/83 Levy v. Southern District Police Commander [22], in the clash between freedom of movement and public security, HCJ 448/85 Dahar v. Minister of the Interior [23], and in the clash between other conflicting values and interests that constitute fundamental values of our legal system. See 2 A. Barak, Interpretation in Law 679 (1993) [93]. Indeed, our constitutional jurisprudential theory is not based on an “all or nothing” approach but rather on a “give and take” approach, involving balancing between different values. HCJ 148/79 Saar v. Minister of the Interior [24], at 178. As I stated in CA 105/92 supra. [20], at  205:  

A social value, such as freedom of expression, does not have "absolute weight." The weight of any social principle is relative. The status of any fundamental principle is always assessed in relation to that of other principles with which it is likely to conflict.

50. This Court adopted a similar approach with regard to the balance between religious feelings and the freedom of expression, see HCJ 351/72 supra. [8]; HCJ 806/88 supra. [9]. It also adopted this approach with regard to the relationship between religious sensibilities related to the observance of the Sabbath and a specific public interest—for example, the regular supply of petrol.  In that latter instance, the Court stated that a solution must be found which “on the one hand, would not ignore the religious sensibilities, sacred to the local residents and, at the same time, which would guarantee the supply of vital services to the public.” Crim. A 217/68 supra. [12], at 364. This Court adopted a similar approach regarding the relationship between religious feelings and the freedom of occupation.  In this context, my colleague Justice Cheshin wrote in Meatrael [6], at 507:

The considerations of man, qua man, are most legitimate. Such is the nature of democracy, in which the individual’s welfare and ability to flourish are of paramount importance. Where various segments of the population battle each other and the interests at stake are intertwined, the matter of setting priorities is self-evident. Weighing the interests inevitably leads to the need to decide between values, each pulling in its own direction. In balancing these interests we shall find it possible—and indeed our duty—to consider individual interests, or those of different sectors of the population, provided that we do not coerce the other into observing religious commandments. Religious commandments, qua religious commandments, shall not be imposed upon those who are not observant of them.

It therefore follows that religious feelings are a public interest to be taken into account. Nonetheless, their weight is not “absolute.” Instead, they must be balanced “horizontally” against other values that also constitute a public interest and balanced “vertically” against other human rights. As Justice Zamir explained, in HCJ 7128/96 supra. [11], at 521:

Religious feelings are not extended absolute protection. There is no law that provides absolute protection to any right or value. All rights and values, be they what they may, are relative. Necessarily, the protection they are allotted is also relative. This equally applies to the protection extended to religious feelings.  

Furthermore, just as consideration of religious sensibilities is not an “absolute,” but rather “relative,” value that must be balanced against other rights, values and interests, so too, the right to freedom of movement is not “absolute.” It too must be balanced against other rights, values and interests. It is common knowledge that there are roads and streets closed to traffic, either partially or totally. Roads are replete with road-signs and symbols that regulate the flow of traffic on the roads and streets. Thus, freedom of movement is a relative right and the law does not protect its full scope. Compare HCJ399/85 Kahane v. The Broadcasting Authority [25], at 283; HCJ 806/88 supra [9], at 33. In fact, the vast majority of human rights are relative, and may be infringed in order to realize interests which society considers worthy. See HCJ 153/87 Shakdiel v. Minister of Religious Affairs [26]; HCJ 2481/93 Dayan v. Jerusalem District Commander [27], at 473. The reason for this is that human rights in general, and the right to freedom of movement in particular, are not the rights of an isolated individual, living on a desert island. Instead, they are the rights of individuals living in society. They deal with the individual in his relationships with others, and presume the existence of a state that must realize social and national goals. Hence, every democratic society, sensitive to human rights, recognizes the need to restrict them in order to preserve its capacity to protect human rights.  For both human rights and the restrictions imposed on them stem from the same source, and reflect the same values. Even so, there are restrictions on the extent to which human rights may be limited. These limitations are based on the need to protect human rights. See CA 6821/93 United Mizrahi Bank v. Migdal [28], at 444.

51. The balancing of conflicting interests and values, including values related to religious feelings and religious lifestyle, ought to be principled, or definitional.  The balancing ought to be based on a generalization that also allows for the resolution of future cases. In the balancing process a “rational principle” ought to be formulated. HCJ 73/53, supra. [21], at 881 (Agranat, P.). The balancing must reflect a “substantive criteria, which is neither paternalistic nor accidental, the nature or direction of which cannot be assessed." See FH 9/77 Israel Electric Company v. “Ha’Aretz” Newspaper Publications [29], at 361. (Shamgar, J.) 

52. As the balancing between conflicting values and interests is not conducted with scientific tools, the weight that must attach to the various interests and values is, by definition, not exact.  Thus, there are certain situations where there are different ways of balancing between the conflicting interests and values, and there is more than one reasonable decision.  A “zone of reasonableness” is created, within which a number of different decisions will be considered reasonable. See HCJ 389/80 Dapei Zahav v. Broadcasting Authority [30]; HCJ Lugassy v. Minister of Communications [31], at 454; HCJ 341/80 Moshav Beit Oved v. Traffic Controller [32], at 354; HCJ 910/86 Ressler v. Minister of Defense [33]. Any alternative within the “zone of reasonableness” is considered reasonable. In such situations, the choice between the various alternatives will be made by the relevant authority.  It is endowed with the authority to select the alternative that appears appropriate, from among the different alternatives. As I mentioned in HCJ 953/89 Indoor  v. Mayor of Jerusalem [34], at 694:

Applying the general normative criterion “near certainty of serious injury” to the circumstances of a concrete case may, quite naturally, give rise to difficult cases.  One mayor may decide that there is near certainty of serious injury. Another mayor, using the same criterion, may decide the injury is not serious or that possibility of its occurrence does not reach “near certainty.” There may be a variety of possibilities, all included within the parameters of reasonableness, which reflect the legal exercise of the said criterion. The choice between these alternatives will be made by the competent authority—not the Court.

And so, when the authority in question is the legislature—the Knesset—the choice between alternatives found within the “parameter of reasonableness” is left to the legislature’s discretion. The choice is in the legislature’s hands and not the Court’s. Similarly, when the authority in question is the executive branch, the choice between the alternatives within the parameters of reasonableness rests with the executive, not the Court. This conclusion is derived from the principle of separation of powers. Indeed, while the Court is responsible for maintaining this separation, it is not charged with selecting the particular legal alternative within the "zone of reasonableness." In consequence, it does not ask itself which of the legal alternatives it would have chosen had it been empowered to do so. To the extent that each of the alternatives is legal, it is irrelevant that the Court may have chosen a different alternative were it vested with the requisite authority. Ressler [33], at 506. A decision made by the executive branch may be declared illegal if it falls outside the zone of reasonableness.  Every decision within the zone, however, is legal and the Court will not strike it down. The area of this zone is to be determined by the Court.   

53. “Balance” is a metaphorical concept.  When a judge balances between conflicting values, he operates on the normative level. The concept of “balancing” is premised on the notion that:

not all principles are of identical significance in society’s eyes. Thus, in the absence of legislative direction, the Court must assess the relative social importance of the different values. Just as there is no person without a shadow, so too, there is no principle without weight. Balance on the basis of weight necessarily implies a social assessment of the relative importance of the different principles.

HCJ 14/86 Laor v. The Film and Play Review Board [35], at 434. Hence, “weight” attaches to social norms, reflecting their relative social importance. The “weighing” process is a normative act, intended to endow the various data with a place within the legal system and establish their social value, within the overall fabric of social values.” HCJ 6163/92 Eizenberg v. Minister of Construction and Housing [36]. To this end, Justice Shamgar was correct, in FH 9/77 supra. [29], at 361, in pointing out that:

The process of placing competing values on the balancing scales describes the interpretative starting point, but does not establish criterion or value weights to assist in performing the interpretative task.

It follows that a standard for balancing between the need to preserve freedom of movement and the need to protect religious sensibilities must be found. 

The Balancing Standard

54. In the wake of the adoption of the Basic Laws regarding human rights, the accepted criteria for balancing is the standard stipulated in the limitation clause of sec.8 of the Basic Law: Human Dignity and Liberty:

There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose and to an extent no greater than that is required.

For our purposes, the relevant question is whether the order issued by the Traffic Controller, by virtue of which Bar-Ilan Street was partially closed to traffic on Sabbath eve and day, is commensurate with the values of the State of Israel, whether it was enacted for a proper purpose and whether the infringement of the freedom of movement does not exceed that which is required. We are permitted to employ this standard even though the order in question was issued under the authority of the Traffic Ordinance [Revised Version]-1961, which is protected by the rule upholding the validity of laws in effect prior to the adoption of the Basic Law. See Basic Law: Human Dignity and Liberty, § 10.  Even so, all statutes must be interpreted in the spirit of the Basic Law, as I noted in FH Cr. 2316/95 supra. [14], at 653:

The Basic Law’s constitutional status is projected on all areas of Israeli law. It does not overlook existing legislation, which is also a part of the law of the State of Israel. The constitutional aura projected by the Basic Law influences all areas of the Israeli Law, necessarily affecting the old law as well. Admittedly, the validity of existing law is retained, as the Basic Law’s aura is projected less intensely on these, as compared to the new law. Thus, while the latter may be struck down if it contradicts a provision of the Basic Law, it cannot be invalidated.  However, while the old law is constitutionally protected from being struck down, it is nonetheless not immune from being interpreted anew. There is no distinction between old and new law with respect to the interpretative influence of the Basic Law. Any administrative discretion conferred by existing law must be exercised in the spirit of the Basic Law.

Justice Dorner elucidated this point, in HCJ 4541/94 Miller v. Minister of Defense [37], at 138, regarding the interpretation of administrative authority: 

The limitation clause applies exclusively to powers grounded in laws adopted subsequent to the Basic Law’s enactment.  However, by implication, it is appropriate to also apply its principles to the authorities’ duties by virtue of section 11 of the Basic Law, which also applies to powers anchored in pre-existing laws.

Ever since the Knesset enacted the Basic Laws, the interpretation of legislation does not depend on whether the relevant legislation precedes or antecedes the Basic Laws. Likewise, whether the violation relates to rights “covered” by the two Basic Laws or not is equally irrelevant.  A natural connection exists between the constitutional limitation clause and all public law, including human rights not literally “covered” by the Basic Laws.  This is because it has always been our position that legislation includes both general and specific purposes. See HCJ 953/87 supra. [4]; HCJ 693/91 Efrat v. Population Registrar [38]. The general purposes are the values of the State of Israel as a Jewish and democratic state; the specific purposes refer to the specific “proper purpose” specified by the limitation clause. The principle of proportionality, as provided for in the Basic Law, is another expression of the reasonableness standard according to which we generally interpret any piece of legislation. Even previous law must—and has always been—interpreted by the standards of the limitation clause.

We shall now consider the general principles mentioned in the limitation clause. We will then proceed to examine their practical application to the order to partially close Bar-Ilan Street, issued by the Minister of Transportation in his capacity as Traffic Controller.

The Values of the State of Israel

55. The values of the State of Israel are its values as a “Jewish and democratic state.” See the Basic Law: Human Dignity and Liberty, §1.  It appears beyond dispute that consideration of religious sensibilities is commensurate with the values of the State of Israel as a Jewish state.   Indeed, a Jewish state is sensitive to the religious feelings of every one of its citizens. This is true, a fortiori, when these feelings are connected to the Sabbath itself. Sabbath observance is a central value in Judaism. The fourth of the Ten Commandments, the Sabbath constitutes an original and significant Jewish contribution to the culture of mankind. See 31 The Jewish Encyclopedia, [107], under The Sabbath, at 422.  It is a cornerstone of the Jewish tradition and a symbol, an expression of the Jewish message and the character of the Jewish people. Deprive Judaism of the Sabbath, and you have deprived it of its soul, for the Sabbath comprises the very essence of the Judaism’s nature. Over the generations, throughout its blood-soaked history, our nation has sacrificed many of its children in the name of the Sabbath.

56. Is it consistent with democratic values to restrict human rights for the purpose of protecting religious feelings?

The answer to this question is quite complex. Taking into account human feelings, including religious feelings, as grounds for restricting human rights is particularly problematic under the democratic conception See R. Cohen-Almagor, Limitations of Tolerance and Freedom—Liberal Theory and the Struggle Against Kahanism (1994). In HCJ 230/73 supra. [10], at 119, Justice Etzioni correctly referred to this matter as “a minefield,” emphasizing that:

The concept of “public feelings” has broad connotations and the subject itself is particularly sensitive.

Thus, democracy finds itself in a dilemma when broaching the issue of whether the desire to protect human feelings can justify infringing on human rights. Indeed, democratic considerations seem to pull in opposite directions. On the one hand, protecting human feelings is natural to the democratic system, for society exists in order to give expression to these. This is the principle of tolerance, a basic tenet of democratic theory, vital to a pluralistic democracy. It therefore “constitutes a social objective in its own right, its realization incumbent upon any democratic society." CA 294/91 [19]. I dwelt on this point in CA 105/92 supra. [20], at 211, stating:

Tolerance is a central value in the public order. A democratic society seeking to fully maximize the wants of each individual will end up unable to satisfy even the minority of those aspirations. Ordered communal life is naturally premised on mutual forbearance and mutual tolerance.

In HCJ 257/89 Hoffman v. Appointee over the Western Wall [39], at 354, President Shamgar adopted a similar view, holding:

The sons and daughters of a free society, in which human dignity is a hallowed value, are all called upon to respect the individual’s personal religious feelings and his human dignity. This must be based on tolerance and the understanding that personal religious feelings and their expression vary from one individual to another.

An enlightened society also respects the beliefs and views of those who devotedly and passionately identify with what may not necessarily be the opinions shared by the average citizen. In that sense, understanding the other is more important than self-understanding. Thus, although the imperative “know thyself,” which is borrowed from a cultural tradition not our own, merits respect, it cannot replace tolerance, as expressed in Hillel's famous maxim in the Talmud: “Do not unto the other that which is hateful unto you." Tolerance is not a mere slogan for the appropriation of rights, but rather a criterion for recognizing the rights of others.

In HCJ 806/88 supra. [9], at 30, President Shamgar, addressing the tension between freedom of expression and offense against the listener’s feelings, wrote:

Tolerance must not give license to offend the religious sensibilities of the other.  It can even be said that a serious violation of religious feelings is the antithesis of tolerance, for the tolerance is intended to nurture and promote freedom of expression, rather than to violate and suppress religious feelings. Mutual tolerance between people with different values and beliefs is a basic cornerstone on which a free democratic society is premised.

Indeed, a democratic society is one which takes into account each and every individual’s feelings. Democratic values give expression to “an individual’s personal-emotional feelings and human dignity." CA 294/91 supra. [19], at 481 (Shamgar, P.). Furthermore, a democratic society is prepared to recognize that rights—such as freedom of expression or worship—must be restricted when allowing them to be fully realized would harm human life or physical integrity. Thus, for instance, we recognize the possibility of limiting the freedom to protest if it is nearly certain that allowing the demonstration to occur threatens physical harm, either to participants or to bystanders. See HCJ 153/83 supra. [22]. A democratic society, which is prepared to restrict rights in order to prevent physical injury, must be equally sensitive to the potential need for restricting rights in order to prevent emotional harm, which, at times, may be even more severe than physical injury. A democratic society seeking to protect life, physical integrity and property, must also strive to protect feelings.

57.  On the other hand, a democratic system prioritizes human rights above all else. Democracy is not merely formal democracy—the “rule book conception,” according to which decisions are left to majority will. Rather, democracy is substantive—the “rights conception," according to which the majority is precluded from infringing on human rights. See R.M. Dworkin, A Matter of Principle 11 (1985) [104]. Thus, substantive democracy’s need to protect and preserve human rights gives rise to a familiar dilemma, namely, whether it is at all possible to infringe on human rights in order to consider human feelings, themselves being harmed by the exercise of particular human rights. Indeed, the exercise of a right, by its very nature, risks offending another’s feelings. However, recognizing offensiveness as grounds for restricting human rights may pave the way for undermining human rights entirely. Consequently, a democratic society must be most careful in recognizing the legitimacy of infringing on human rights for the purpose of protecting feelings. I noted this in, HCJ 953/89 supra, [34], at 690, a case dealing with the possibility of restricting freedom of expression in order to protect the feelings of a segment of the population:

If we were to restrict freedom of expression each time that feelings were hurt, freedom of expression would eventually disappear. Expression, by its very nature, risks offending. This being the case, if every offended feeling were to justify infringing on freedom of expression, in the end the latter would lose all meaning.

Clearly, communal life in a democratic society, by its very nature, requires some openness to offense in order to realize human rights.  The principle of tolerance, by virtue of which consideration for feelings arises, itself gives rise to the requirement that one whose feelings are offended be tolerant. “This is the other side of mutual tolerance, necessary in a pluralistic society." HCJ 549/75 Noah Films v. The Film and Play Review Board at 764 [40] (Vitkon, J.). Indeed, "[t]olerance and patience are not one-way norms, but broad, multi-dimensional imperatives…” Hoffman [39], at 364 (Shamgar, P.). I insisted on this point, with regard to freedom of expression and offensiveness, in HCJ 806/88 supra. [9], at 38, noting:

A democratic society, by virtue of its very nature and substance, is premised on tolerance for differing opinions. A pluralistic, tolerant society is the singular force permitting communal life and co-existence. Hence, each and every member of society accepts the "risk" of their feelings being somewhat offended as a result of the free exchange of ideas. In effect, a society based on social pluralism must allow for the free exchange of ideas even if this risks offending those who may not agree with certain views. The regime’s very foundation, as a democratic regime, requires a certain exposure to the risk that some members of the public may be offended. 

As to the exercise of freedom of expression which infringes upon religious sensibilities, I stated, in HCJ 806/88 supra. [9], at 39:

It is only natural that religious conceptions are intrinsically related to individual consciousness. Indeed, feelings are liable to be hurt since a contradictory religious world-view is not merely an intellectual position with which one happens to disagree. Thus, the atheist is likely to offend the believer. Proponents of opposing religious views are likely to offend one another. This is a fact of life that a democratic society must accept. It is particularly differences of this nature that unite us around what we have in common. As this the only way that proponents of differing religious views can co-exist, suppressing the offensive is not the solution… Nor is suppressing all opposing views the solution. Doing so would only serve to stifle the human spirit.

And so, in a democratic and pluralistic society such as our own, there is no choice but to “absorb” offensiveness. In a democratic society, endeavoring to foster tolerance, there is no substitute for tolerance, even in the face of that which offends, as a means for preserving human rights. "The regime’s very substance, as a democratic regime, requires a certain exposure to the risk that some members of the public may be offended.” HCJ 806/88 supra. [9], at 38. This is the law regarding offensiveness in general, and regarding religious feelings in particular.

58. How can a democratic society escape this dilemma? How do we resolve the complications flowing from the fact that tolerance, which underlies the democratic conception, simultaneously justifies both protecting rights and infringing them? It appears to me that the answer lies in our duty to recognize a certain “threshold of tolerance” regarding hurt feelings, which every member of a democratic society accepts as part of the social contract upon which democracy is predicated.  This being the case, only when an offense exceeds this “threshold of tolerance” will restricting human rights in a democratic society be justified. As I noted in HCJ 953/89 supra. [34], at 690:

A democratic society, striving to protect both freedom of expression and the public’s feelings, must establish a "threshold of tolerance." Only offense that exceeds this threshold can justify infringing the freedom of expression.

This case dealt with the relationship between freedom of expression and offense to the public’s feelings. A similar approach should be adopted with respect to infringements of other human rights. Clearly, the “threshold of tolerance” is not uniform, but rather a function of the right and infringement in question, as Justice Zamir stated in HCJ 7128/96 supra. [11], at 521:

The threshold of tolerance for feelings, is neither set nor identical in every situation. The threshold depends, inter alia, on the identity of the conflicting right. For instance, the threshold may vary depending on whether the right in question is a basic right, such as freedom of expression, or a material, financial interest. Thus, while the threshold can be quite high if protecting feelings requires infringing the freedom of expression, it may be lower regarding infringements on property. In effect, the threshold shall be set in accordance with the balance between clashing interests in the circumstances, reflecting the relative weight, that is to say the social importance, of the interests in question.

And so, it is possible to infringe human rights for the purpose of protecting feelings—particularly religious feelings and lifestyle—in a society with democratic values, provided that the harm exceeds the threshold of tolerance accepted in that society. Quite naturally, the “threshold of tolerance” varies from one democratic society to the next. This being the case, while it is possible to learn from the experiences of other democracies, the utility of such comparisons is rather limited. Thus, for instance, the stricter the separation between religion and state under a given system, and the more that the rights are set out in more “absolute” terms, the more likely that such a system will prefer human rights to human feelings. Conversely, the more permeable the boundaries between religion and state, and the more a legal culture is predicated on a “relative” conception of human rights, the greater significance it will attach to feelings as a proper ground for limiting human rights.

Our society is unique. Consequently, the solutions that we must seek are undoubtedly equally unique, or “Israeli-style,” to use Justice Cheshin’s turn of phrase in Meatrael [6], at 506, regarding the separation between religion and state in Israel. Similarly, addressing the relationship between store closures on the Sabbath, because of offense to religious sensibilities, and the harm to public order that such causes, Justice Berenson wrote in Crim. A 217/68 supra. [12], at 364:

I do not know how these matters are resolved in other countries. It is, however, reasonable to assume that each country seeks a solution suitable to its own needs that, on the one hand, is not estranged from the religious values to which its citizens adhere yet, at the same time, promises to provide the necessary services that the public requires.

And so, in setting the “threshold of tolerance,” it is incumbent upon us to consider the substance of the right being infringed, the degree of offensiveness and the probability of the harm. Let us now turn to these principles.

The Right’s Substance

59. How does the substance of the right influence the possibility of infringing it in order to protect religious feelings? Would it not be accurate to assert that all rights are of equal status? The accepted approach—in Israel and abroad—regarding the protection of human rights is that not all rights are of equal status. Is the right to human dignity not different from the right to property? Even within the confines of a given right, various levels of protection may be allotted. Thus, for instance, the protection offered political expression is superior to that allotted commercial expression. See HCJ 606/93 Kiddum Yezumot (1981) v. Broadcasting Authority [41], at 24.

60. This being the case, our concern is with a complicated matter, best left to evolve according to our own legal system’s experience. For the purposes of this petition, it is sufficient that we establish that freedom of movement—the right being violated—is one of the most basic rights. This is true in Israel and in other legal systems as well.  Discussing the “citizen and foreigner’s freedom of movement,” Justice Silberg stated, in HCJ 111/53 Kaufman v. Minister of the Interior [42], at 536, that this right is:

A natural right, recognized as self-evident in every country boasting a democratic regime.

These words ring especially true with regard to freedom of movement inside the country itself. Indeed, the freedom to travel within the country’s borders is generally understood as being of greater constitutional import than the freedom to travel abroad. See Dahar [23], at 708. Freedom of movement within the country’s borders is usually placed on a constitutional plane similar to that of freedom of expression. Hence, for example, in Dahar [23], Deputy President Ben-Porat perceived freedom of movement and freedom of expression as “rights of equal value and weight.” Id.

The Extent of the Harm to Feelings

61. As we have seen, a democracy recognizes the possibility of restricting human rights to prevent harm to human feelings. This having been said, not every hurt feeling justifies violating rights; such harm must be tantamount to a severe offense to human feelings. What intensity of harm will justify an infringement on rights will vary from one right to another. Thus, only severe, serious, and grave offense to another's feelings can justify the infringement of a basic human right, such as freedom of expression. These cases shall be so exceptional that they shake the foundations of mutual tolerance. See A. Barak, Freedom of Expression and its Limitations, 40 HaPraklit 5, 18 (1991-1993) [100].

This was our approach to infringements on the freedom of artistic expression. See HCJ supra. [8], at 16; HCJ 243/81 Yeki Yosha. v. The Film and Play Review Board [44]; HCJ 14/86 supra. [35]; HCJ 806/88 supra. [9]; HCJ 953/89 supra. [34]. This is the law regarding the tension between the freedom of worship of one faith and between offending members of a different stream of belief. HCJ 7128/96 supra. [11]. I believe this approach should apply to the matter here—the balance between freedom of movement within the state and protecting religious sensibilities. As we have seen, substantively, freedom of movement resembles freedom of expression. These rights may be called “superior;” they are granted a "consecrated a place of honor in the temple of basic human rights.” See HCJ 153/83 supra. [22], at 398). Freedom of expression may be infringed to prevent severe, grave and serious harm to human feelings, including religious sensibilities; similarly, it is possible to restrict freedom of movement under such conditions. “The nature of the harm” in question in both instances must be identical. Restricting freedom of movement is only possible when the harm to religious feelings and lifestyle is severe, grave and serious.

62. The severity of the affront to religious feelings is measured by its scope and its depth, as Justice Zamir said in HCJ 7128/96 supra. [11], at 524-25:

The severity of the offensiveness is measured on two levels: its scope and its depth. First, the harm must be broad. It is therefore insufficient that one person or a small group with minority extreme opinions is offended.

Likewise, negligible harm, even if it continues over many years, is insufficient. Both conditions need to be fulfilled: only harm to the religious feelings of a given group that is both broad and deep shall be said to exceed the threshold of tolerance in a manner that may justify restricting another group’s freedom of religious worship.

The Probability of the Harm

63. At times, the severe, grave and serious harm to feelings has already occurred; other times, it is a risk that has yet to materialize. When the latter is the case, does the risk always justify infringing a protected human right? The answer is no. The central status that democracy extends to human rights leads us to conclude that only a very high probability that feelings will be offended will justify infringing on a right. At times, it is held that there must be a “reasonable probability” of the risk materializing. See Crim. A 126/62 Disentzik v. Attorney-General [45]; Neiman [18], at 311.  In other cases, the risk must be “real and serious.” See Dahar [23]. The requisite degree of probability varies from right to right, from case to case, as I noted in HCJ 153/83 supra. [22], at 401-02:

The variety of potential situations necessitates a multi-shaded balancing approach. We must refrain from adopting a single standard for all matters. The reason for this is that conflicting interests are not always of identical normative import and the problems that arise from the different clashes themselves, vary.

In Neiman [18], at 311, I further noted:

In determining which standard of probability should be adopted, an inclusive and universal measure is inappropriate. The matter depends on the magnitude of the various conflicting rights in a given context. The question is always whether the harm’s significance, together with the probability of it materializing, justifies infringing on a citizen’s right.

With respect to anything relating to freedom of expression, our approach is that a mere possibility, or even a reasonable possibility, for that matter, is insufficient for the purpose of violating the public interest. The probability of the harm materializing must be nearly certain or proximately certain. See see HCJ 73/53 supra. [21]; HCJ14/86 supra. [35]; HCJ 806/88 supra. [9]; HCJ 680/88 Schnitzer v. Chief Military Censor [46]. The probability test resembles the standard adopted by this Court regarding violations of freedom of worship and freedom of conscience. See HCJ 292/83 Temple Mount Faithful Association v. Jerusalem District Commander [47], at 456; HCJ 2725/93 Salomon v. Jerusalem District Commander [48]; HCJ 7128/96 supra. [11]. In light of the close link between freedom of movement within the country and freedom of expression and worship, it seems to me that this probability requirement must also apply to infringements on freedom of movement within the state. It shall be noted that the “actual and serious suspicion” standard was adopted with regards to violations of freedom of movement outside the country’s borders. Dahar [23], at 708. This having been said, in that same case, Deputy President Ben-Porat emphasized the difference between freedom of movement inside and outside the state’s borders, and narrowed the “actual and serious suspicion” test so that it applied exclusively to traffic crossing the state's borders. “Internal” traffic should be subject to the near certainty test. 

A “Proper Purpose”  

64. As we have seen, human rights are not to be infringed, save restrictions that are prescribed by statute and enacted for a proper purpose, as per article 8 of the Basic Law: Human Dignity and Liberty. The issue of whether a given purpose is deemed to be proper is ascertained on two levels: the first examines the purpose’s content; the second examines its necessity. On the first level, a given purpose is deemed to be proper if it reflects a social objective, which is sensitive to human rights. Likewise, a purpose is said to be proper if it is intended to fulfill general social goals, such as a broad social policy or preserving the public interest. See Bank Mizrahi [28], at 434. On the second plane, a purpose is deemed reasonable if the need to fulfill it is important to society and to the state’s values. The degree of importance is likely to vary according to the substance of the right that is violated. Thus, for instance, American law distinguishes between three levels of rights. To this effect, freedom of speech, voting rights, freedom of movement and the right to equality are found at the highest level. As these rights are deemed fundamental, only a purpose endeavoring to fulfill a compelling state interest, pressing public necessity, or substantial state interest shall properly infringe them. A lower standard is required with respect to other rights. See 3 A. Barak Interpretation in Law: Constitutional Interpretation [93], at 522. For its part, Canadian law requires that the highest standard be applied to all matters involving human rights. We need not take a stance regarding whether Israeli law should distinguish between different levels of scrutiny. Suffice it to say that, as in foreign law, infringements on freedom of movement—a freedom at the pinnacle of human rights in Israel—requires the highest of standards.

The “Least Restrictive Means”

65. Human rights may be infringed only if the means used do not exceed the necessary. While the “proper purpose” test examines the objective, the “least restrictive means” standard examines the means employed for achieving the purpose. It is a proportionality test, employed in Israel for examining administrative and constitutional discretion. See HCJ 5510/92 Turkeman v. Minister of Defense [49]; HCJ 987/94 Euronet Kavie Zahav (1992) Ltd. v. Minister of Communications [50]; HCJ 3477/95 Ben-Attiyah v. Minister of Education, Culture, and Sport [51]; See also Z. Segal, Grounds for Disproportionality in Administrative Law, 39 HaPraklit 507 (1990-91) [101]; I. Zamir, Israeli Administrative Law as Compared to Germany's, 2 Mishpat U'Memshal 109 (1994-95) [102]. In HCJ 3477/95 supra. [51], at 11-12, I noted that the issue raised by the “proportionality” test is:

Whether the means employed correspond to the objective they seek to realize. Proportionality implies that the means need to befit the goal that is pursued. The principle of proportionality comes to protect the individual from the regime and to prevent excessive infringements on individual freedom. As such, the means that the regime employs must be carefully selected in order to bring about the purpose’s realization.

66. In Israel as in foreign law, the proportionality test is three- pronged. See HCJ 3477/95 supra. [51], at 12; Bank Mizrahi supra. [28], at 436. The first prong requires a rational connection between the means and objective. Thus, the means employed must be precisely “cut out” to fulfill the desired goal and rationally lead to its fulfillment—“the rational connection test.” The second prong prescribes that the means in question infringe on the individual as little as possible. This is to say that the means are said to be proper only if it is not possible to achieve the objective in a different fashion, whereby the infringement would be minimized—“the least restrictive means test." The third prong provides that the means selected are inappropriate if the infringement on individual rights is not related to the benefits said to flow from the desired objective—the “restricted proportionality test." As Professor Zamir, see Zamir supra. [102], at 131, explained:

The third prong refers to the proportionality itself. According to this prong, it is insufficient that the authority select appropriate and moderate means. Instead, the authority must weigh the public benefits of achieving the goal against the harm caused the citizen by the means’ application. The relationship between the benefit and the harm, and indeed between the means and objective, must be proportional.

67. Considering the feelings of one segment of the population may harm other segments. For our purposes, considering the religious sensibilities of Ultra-Orthodox Jews living in the neighborhood of Bar-Ilan Street infringes the freedom of movement of others. The proportionality test provides that infringements on the rights and interests of citizens seeking to travel on Bar-Ilan Street on the Sabbath must be proportional. In other words, the rights of these individuals are not to be infringed beyond what is necessary to safeguard the religious feelings of other individuals. The question of determining the appropriate means—and when infringing on human rights surpasses the necessary means—is examined according to the three-pronged test.

Summarizing the Normative Framework

68. To summarize: consideration of feelings, including religious sensibilities, as proper grounds for infringing on human rights is most problematic from the point of view of a democracy. Democracy finds itself trapped in an internal conflict, which it must naturally address with great care. The Israeli solution is the following: considering feelings as grounds for restricting human rights is only permissible when the following three conditions are met. First, taking feelings into account conforms to the specific objective underlying the legislation. Second, it is permitted to take religious feelings into account only if doing so does not involve any religious coercion. Third, religious feelings may only be considered when the harm to these is so severe that it is said to exceed the proper threshold of tolerance. This threshold shall vary from right to right. Freedom of movement, specifically, can be restricted if such harm surpasses the threshold of tolerance. Several conditions must be met for this to be true. First, the harm to religious feelings and the observant lifestyle must be severe, grave and serious; second, the probability that the harm will materialize must be nearly certain; third, a substantial social interest must underlie the protection of religious feelings; fourth, the extent of the harm to freedom of movement must not exceed the necessary. This is to say that the least restrictive means are to be selected from amongst the available options.

Having set out this general normative framework, let us now examine the specific case at bar.

From the General to the Particular

69. Bar-Ilan Street’s partial closure is based on three pieces of legislation. The basic authority to regulate traffic is set out in section 70(1) of the Traffic Ordinance [Revised Version], which empowers the Minister of Transportation to enact regulations for:

Traffic arrangements, and rules for the use of roads by vehicles, pedestrians and others

The Traffic Regulations were enacted by virtue of this authorization. Regulation 17(a) provides:

The Central Traffic Authority is permitted to direct the Local Traffic Authority regarding the determination of traffic arrangements, their alteration, termination, and maintenance.

As we have seen, the Minister of Transportation, under section 42 of the Basic Law: The Government, assumed the powers of the Traffic Controller. The Minister’s powers cannot exceed those of the Traffic Controller. In his capacity as Traffic Controller, the Minister of Transportation instructed the Local Traffic Authority to close parts of Bar-Ilan Street to traffic on Sabbaths and Jewish holidays during prayer times in order to safeguard the religious sensibilities of the Ultra-Orthodox residents in the area. The order in question was handed down subsequent to the Minister of Transportation’s determination that there is an alternate road to Bar-Ilan Street.   

The Issue of Authority

70. Our starting point is that the Traffic Controller is, in principle, empowered to order that a street be closed to traffic on Sabbaths and Jewish holidays. With respect to local streets situated in Ultra-Orthodox neighborhoods this is undisputed. In principle, the Traffic Ordinance [Revised Version] does not distinguish between various sorts of streets, roads or drives, in all that concerns the Traffic Controller’s authority to regulate traffic therein. As such, the type of road does not affect the authority to order its closure per se, it only influences the exercise of discretion regarding its potential closure.

The Issue of Discretion

71. Did the Minister of Transportation in his capacity as Traffic Controller properly exercise his authority? Our analysis begins with the fact that the Traffic Controller must take into account traffic considerations. It is incumbent on the Controller to ensure that residents be able to reach their homes and be able to travel from point A to point B in a given neighborhood. Moreover, he must ensure that inter-city roads and city entrances remain open to traffic. Were it to become clear that no proper alternate route to Bar-Ilan Street is available, it would not be possible to close it off to traffic on Sabbaths and Jewish holidays, regardless of the harm caused to religious feelings and lifestyle.

72. However, rather than weighing traffic considerations, the Minister of Transportation, in his capacity as Traffic Controller, considered the residents’ religious feelings.  Was he permitted to do so? Clearly, religious matters cannot be the dominant consideration for, as we have seen, the dominant considerations must be traffic-related. However, in view of my assumption that the alternate route is reasonable from a traffic perspective, does it then become possible to take into account secondary considerations, such as those related to safeguarding religious feelings and lifestyle? The answer is in the affirmative. Although traffic related considerations are central, they are not absolute. To this effect, the Court has held that free competition, for instance, was a secondary consideration that could properly be taken into account. See HCJ 1064/94 Computest Rishon Le Tzion (1986) v. Minister of Transportation [52]. Thus, the issue boils down to the following questions: is the religious factor a relevant secondary consideration? If so, what is its weight? Can it exceed the inconvenience associated with rerouting traffic and the two extra minutes that doing so requires? Is this factor sufficiently weighty so as to outweigh the traffic difficulties caused the secular residents in the area, whose freedom to travel is restricted? The answer, needless to say, is far from simple. It is incumbent on us to examine the rights and interests struggling for primacy. Subsequently, we shall proceed to examine whether, under the circumstances, the Minister is authorized to weigh all these rights and interests. Finally, we shall examine whether the weight that the Minister attached to them was appropriate and whether his decision is within the zone of reasonableness.

The Interests and Values Struggling for Primacy

73. Which interests and values clash in the case at bar? On the one hand, we have society's interest in preventing offense to the sensibilities of the local religious population. The population in question, residing immediately around Bar-Ilan Street, is Ultra-Orthodox. Seven synagogues are found along Bar-Ilan Street.  The area boasts over one hundred synagogues and institutions for Torah study. On the Sabbath, the neighborhood residents customarily attend synagogue, Torah lessons, visit rabbis, family and friends who live in the adjacent Ultra-Orthodox neighborhoods. To these residents, the desecration of the Sabbath on Bar-Ilan Street is offensive and infringes their observant lifestyle. Indeed, from their perspective, the offense is both bitter and severe. This is the interest in question on one side of the issue. This having been said, let it be emphasized that I am not convinced that Sabbath traffic on Bar-Ilan Street  infringes the freedom of religion of the residents. These residents are free to observe the religious commandments. Sabbath traffic does not serve to deny them this freedom. Compare HCJ 287/69 Miron v. Minister of Labour [53], at 349. Even so, traffic on the Sabbath does harm the residents’ religious feelings and their observant lifestyle. 

74. On the other hand, we have freedom of movement, to which each citizen is entitled. Freedom of movement is a basic right, guaranteed to each and every Israeli. See Dahar [23], at 708; HCJ 72/87 Atamalla v. Northern Command [54]; Crim. Motion 6654/93 Binkin v. The State of Israel [55]. It is entrenched in the Basic Law: Human Dignity and Liberty. It is derived from the principle of human dignity, which is enshrined in our constitution. Compare Elfassy 6 BferGE (1957) [90]. The individual’s freedom to travel "flows from man’s intrinsic freedom as such, and from the state’s democratic character.” HCJ 3914/92 Lev v. The Tel-Aviv/Jaffa District Rabbinical Court [56], at 506. Each individual in Israel is granted the constitutional right to travel freely. “This constitutional right is self-sufficient, and can even be implied from human dignity and liberty.” HCJ 2481/93 supra.[27], at 472. The significance of freedom of movement is the freedom to travel freely on streets and roads. HCJ 148/79 supra. [24]. It is the freedom to “come and go”—“la liberté d’aller et de venire.” And so, closing Bar-Ilan Street to traffic on the Sabbath—either a full or partial closure—infringes the public’s constitutional right to freedom of movement. Moreover, preventing the free-flow of traffic on city streets injures the public interest in the free-flow of traffic. As Justice Berenson noted in Crim. A 217/68 supra. [12], at 363:

 

The use of private vehicles is increasingly indispensable to the economy and to satisfying collective and individual social and cultural needs. This is particularly true on the Sabbath and holidays, when public transportation is generally unavailable.

Beyond this, closing Bar-Ilan Street to traffic on the Sabbath both inconveniences and financially harms those members of the public wishing to travel along Bar-Ilan Street on the Sabbath. It harms secular Israelis seeking to use Bar-Ilan Street as a traffic artery connecting various Jerusalem neighborhoods. It particularly harms the secular residents residing in Ultra-Orthodox neighborhoods surrounding Bar-Ilan Street. For them, Bar-Ilan Street serves as a traffic artery permitting them to access their lands directly. Closing Bar-Ilan will compel these members of the public to walk from one end of Bar-Ilan Street to the other—a distance of one kilometer and two-hundred meters—in order to reach their homes. Their family and guests will be forced to do the same. Surely, in the end, part of the secular public will revolt against what they perceive as religious coercion. Truth be told, in the League [1] case, Deputy President Agranat pointed out that the order to close a segment of a street to traffic on the Sabbath "in no way…constitutes religious coercion whatsoever, as the order did not compel petitioner number two to act in a way that runs counter to his views regarding religion.” Id., at 2668; Baruch [2], at 165. To my mind, however, this matter is far from simple. Be that as it may, see 1 Rubinstein supra. [92], at 177, note 14, the subjective sensation that one is being religiously coerced is clearly discernable among some members of the public who are prevented from circulating on Bar-Ilan Street during the hours that it is closed to traffic.

75. Employing legal concepts, how are we to characterize the clashing interests here? We have already seen that freedom of movement on the Sabbath is a constitutional right, which is infringed by street closures on that day. How is the interest infringing on this right to be characterized? It does not have the status of a human right. As noted, the offense to religious sensibilities and the observant lifestyle caused by motor traffic on the Sabbath does not infringe the freedom of religion of the observant public. We are not dealing with a horizontal clash between two conflicting human rights. However, the interests of the observant residents in safeguarding their sensibilities and way of life forms part of the public interest in preserving the public peace and public order. See HCJ 230/73 supra. [10], at 121.

In CA 105/92 supra. [20], at 205, I highlighted this public interest:

The public interest, with which the various human rights often clash, is varied. The expression "public interest" encompasses and includes a rainbow of public interests, with which organized society is concerned. As such, public security and welfare are both included, as is the public trust in public authorities. Similarly, the public interest in the recognition of individual rights and the preservation and promotion of tolerance, among citizens and the authorities and the citizens, is included. The rule of law, the independence of the judiciary and the separation of powers are all clearly public interests.

Likewise, in HCJ 14/86 supra. [35], at 430, regarding the need to balance between freedom of expression and public order, I noted:

Public order is a broad concept that is not easily defined, and whose meaning varies depending on the context. In this context, threats to the state’s existence, its democratic regime, as well as public welfare, morality, religious sensibilities, a person’s right to reputation, and the need to guarantee fair legal proceedings are all included under the rubric of public order.

It appears, therefore, that taking into account religious sensibilities and the observant lifestyle forms part of both the public interest and public order. See also HCJ 806/88 supra. [9[], at 29. At the same time, however, the need to preserve the free flow of traffic on Sabbaths and to allow members of the public—whether the public at large or local residents—to travel freely constitutes part of the public interest and of the public order. As such, both clashing interests can be described as falling under the rubric of the "public interest."

The Relevance of the Clashing Interests

76. Is the Minister of Transportation authorized to weigh all clashing interests and values? More specifically, is the religious factor—as part of the public interest—a relevant consideration in the context of the Traffic Controller’s exercise of discretion? As we have seen, offending feelings in general, and religious sensibilities in particular, is a relevant consideration, provided that it does not constitute religious coercion. This is generally the case. Is this consideration relevant with regard to the Traffic Controller’s authority? In my view, the answer is in the affirmative. The approach which perceives the religious factor as a “general consideration” which may be taken into account is equally applicable with regard to the Traffic Controller’s authority to close Bar-Ilan Street. In exercising this authority, the Traffic Controller must consider the interests of all those who use the street, and who are affected by its closure. This includes the religious interests of those affected by regulations respecting Bar-Ilan Street.

In the League [1] case, which dealt with a street closure for the purpose of preventing disturbances to prayers in a nearby synagogue, Acting President Agranat wrote:

There can be no doubt that the respondent was taking into account a religious interest in considering the fact that motor traffic on the streets, on festivals and Sabbaths, disturbs the concentration of the worshippers of the Yeshurun synagogue, preventing them from praying comfortably. There is no fault in that—just as there is no fault in considering cultural, commercial, or health interests, provided that they affect a significant part of the public.

Id.. at 2668. In a similar vein, in Baruch [2], at 163-65, Acting President Landau noted:

The petitioners’ submission that the respondent exceeded his authority, as per the Traffic Ordinance and Traffic Regulations, by taking into account the religious public’s sensibilities is not convincing…

Ensuring the Sabbath rest, in accordance with the lifestyle of the interested public, is within the Traffic Controller’s authority to regulate road-traffic

For our purposes, just as motor traffic along Jerusalem’s King George Street disrupts prayers at the Yeshurun synagogue, vehicles on the segment of HaShomer street, in the heart of Bnei’ Brak, also disturb the Sabbath rest of the local residents in that clearly Ultra-Orthodox area. Safeguarding this interest is not tantamount to religious coercion. Instead, it is merely extending protection to the observant lifestyle.

Hence, the Traffic Controller—for our purposes, the Minister of Transportation—was authorized to take into account the offense to religious sensibilities and the observant lifestyle of the local residents, living around Bar-Ilan Street, as a relevant consideration in exercising his discretion with respect to the partial closing of that street to traffic on Sabbaths and holidays. The key question, however, is how to balance between the relevant religious consideration and the other conflicting considerations. It is to this issue that we now turn.

The Balance Between the Relevant Considerations

77. The key issue in the petition at bar relates to the balance between the freedom of movement and the religious consideration, as well as all other relevant considerations. It is incumbent on the Minister of Transportation to balance safeguarding the religious sensibilities of the local residents against the right of each member of the public to travel on Bar-Ilan Street every day of the week, as well as the public interest in keeping the street open year-round. Acting President Agranat emphasized this point in League [1] at 2668, noting:

The legislature’s objective was to empower the Central Traffic Authority to regulate traffic on city streets…to this end, the vehicles’ proprietors’ and pedestrians’ interest in using public roads for their various needs as well as the legitimate needs of other segments of the public, particularly those residing in the houses adjacent to public roads and those using them were considered. As the District Attorney has argued, the problem to which the Central Traffic Authority must consider in such circumstances is the need to strike a proper balance between these interests.

The Central Traffic Authority is under a duty to address every concrete case in light of the particular circumstances, taking into account all the interests that the street’s closure may affect.  In the end, the problem is one of measure and degree.

In a similar vein, Acting President Landau emphasized the need to balance between conflicting interests in Baruch [2], at 165:

It is necessary to strike a balance between the conflicting interests; this is a matter of measure and degree. It is but one manifestation of the endless problem of how to reconcile two “camps”—the secular and the Ultra-Orthodox—so that they live in peace in mutual respect, so that neither seeks to "conquer" the other or "triumph" at the other’s expense.

Our case also presents the same balancing conundrum, which arises between conflicting values and interests. No one has so argued that the public interest in preventing traffic from circulating on Bar-Ilan Street on the Sabbath is “existential,” and that other interests cannot be weighed against it. Similarly, the view that the public interest in the free-flow of traffic on Bar-Ilan Street on Sabbaths is “existential” and cannot be balanced must equally be rejected.

78. As noted, the proper balance is arrived at through examination of the limitation clause of the Basic Law: Human Dignity and Liberty. The State of Israel’s values as a Jewish state require us to consider religious sensibilities, and indeed attach significant weight to this factor. The essence of the problem is in the State of Israel’s values as a democratic state. We have seen that, in this context, it is proper to take into account the religious feelings of the religious public residing around Bar-Ilan Street, if the Sabbath traffic arrangements aimed at safeguarding these constitute a substantial social need, if allowing traffic to travel on the Sabbath and festivals offends religious feelings in a manner that is severe, grave and serious, and if the probability of this harm materializing is nearly certain. Then and only then does it become possible to say that the harm to religious sensibilities and the observant lifestyle of the Ultra-Orthodox residing around Bar-Ilan Street exceeds the threshold of tolerance which is acceptable in a democratic society.  Is this the case here?

79. To my mind, the harm to the Ultra-Orthodox public’s religious feelings ensuing from the free-flow of traffic on the Sabbath in the heart of their neighborhood is severe, grave and serious. Indeed, to the religious Jew, the Sabbath is not merely a list of the permitted and the forbidden. Rather, the observant Jew perceives the Sabbath as a normative framework, intended to create a particular atmosphere. Our Rabbis, of blessed memory, described this special atmosphere as the additional soul which man is granted upon the entrance of the Sabbath, which leaves him as it exits. Babylonian Talmud, Tractate Beitza 16a, [110]. This rest is intended to bring the routine of daily life to a halt, and relieve man of daily worries. This rest seeks to permit a person to fully dedicate himself to his family and to his most cherished values. Moreover, rather than merely a private or family affair, the Sabbath is a community matter. Thus, an observant community’s expectation is that the Sabbath rest is not restricted to the private domain of its members, but that it will envelop the public realm as well. With the coming of the Sabbath comes rest, not only to one’s backyard but throughout the neighborhood. The hustle and bustle of daily life is replaced by prayer, family walks and the like. A crowded street that traverses the heart of the neighborhood, with the sounds of honking and engines, stands in stark contrast to the Sabbath atmosphere, as the majority of the local residents understand it. In effect, severe, grave and serious harm to a religious Jew observing the Sabbath ensues upon encountering traffic on one’s way to synagogue or to a Torah institute. As usual, the burden of proving the severity of the harm is on the person claiming to have been injured. In the case at bar, this has not been the subject of dispute and was proven in the various affidavits submitted to the Court.

80. It should be emphasized that the excessive harm to religious feelings here is a result of the fact that Bar-Ilan Street is situated in the heart of the Ultra-Orthodox neighborhoods. Prior the Six Day War, Bar-Ilan Street was found at the periphery of the religious neighborhoods. Traffic on the Sabbath traveled along the neighborhood's periphery, so that even if religious feelings happened to be offended once in a while, the offense was negligible. The uniqueness of our case is a function of Bar-Ilan’s location in the heart of the Ultra-Orthodox neighborhoods, so that traffic on Sabbaths causes severe harm to religious feelings. This is also the difference between Bar-Ilan Street and other surrounding streets. While these other streets are also situated next to religious neighborhoods, their location is peripheral and they will therefore remain open to traffic on Sabbaths. The Ultra-Orthodox are offended on those streets also. However that harm cannot be said to surpass the threshold of tolerance expected in a democratic society.

81. The near certainty test is met in this case. Indeed, the severe, grave and serious harm to the religious feelings of the local residents caused by the Sabbath traffic is not a question of probability. It is proven fact. In dealing with the probability of religious feelings being offended as a result of a certain film being screened, in HCJ 806/88 supra. [9], at 41, Justice Goldberg wrote:

The clash between two basic values requires an estimation of the "relative social importance of the various principles" an examination of the probability, force, extent and scope of the harm that one principle causes the other.

The probability test, which ascertains the likelihood of harm, is outside the scope of examination in this instance. There is a need to consider to the probability of the harm as long as we are incapable of establishing the facts. In such cases, it is incumbent on us to estimate the risk of the harm. As such, we accept the "near certainty" test as the proper test respecting the Film and Play Review Board’s authority. In such circumstances, we must estimate the risk that a particular film will endanger the public welfare and whether the level of risk is one of "near certainty."

However, when we can determine ourselves whether a given film offends religious sensibilities or denigrates a person’s reputation, it is not necessary to estimate the likelihood of harm. In such instances, our eyes are capable of seeing and our ears of hearing whether harm of this nature is in fact present.

This is the law in this matter. Beyond "near certainty," absolute certainty was unequivocally proven. It was proven that the religious feelings and lifestyle of the local Ultra-Orthodox residents are in fact severely, gravely, and seriously offended by reason of traffic going through their neighborhood on Sabbaths and festivals.

82. Freedom of movement is not to be restricted absent a “proper purpose.” A purpose is said to be proper if its content and the need it addresses are proper. In my opinion, in terms of content, safeguarding religious feelings and the observant lifestyle constitutes a proper purpose. That conclusion is dictated by the State of Israel’s values as a Jewish and democratic state. It is also prescribed by the special purpose underlying the Traffic Controller’s authority—the religious factor—which although not the sole, or even dominant, objective, is a proper secondary purpose. The most difficult question is whether the need to realize this secondary objective is a “significant social matter.” Mr. Langer, the Acting National Traffic Controller, was initially convinced that the social need to close Bar-Ilan Street on the Sabbath was not significant. It seems to me that, according to an objective standard, the case is borderline. Under these circumstances, there is no basis for interference with the assessment of the Traffic Controller. In effect, had Mr. Langer not changed his original position, there would be no reason to question his decision. Neither is his change of heart, in my view, to be deemed erroneous. Thus, both decisions—whether forbidding traffic along Bar-Ilan Street on Sabbaths or then allowing it—appear to me to be within the zone of reasonableness regarding the need to close the street.

83. Freedom of movement—the right infringed by Bar-Ilan’s closure on Sabbaths—must not be restricted beyond what is strictly necessary. Is this condition met in this instance? This matter is difficult to resolve. This having been said, it appears to me that Bar-Ilan Street’s absolute closure throughout the Sabbath, from beginning to end, is excessive. As the harm to religious feelings and lifestyle is inflicted during prayer times, closing the street beyond those times would infringe the freedom of movement more than is necessary. Indeed, it is incumbent on the authorities to opt for the least restrictive means at their disposal. For our purposes, the least restrictive means would be a partial closure, during prayer times, at which time religious feelings are most offended, rather than imposing an absolute closure. This is undoubtedly the case from the perspective of the secular residents, who would be unable to reach their homes throughout the Sabbath, were an absolute closure to be imposed.

 This having been said, is closing the street to traffic only during prayer hours excessive? To this end, we must distinguish between harm to the interests and values of those secular individuals residing outside the Ultra-Orthodox neighborhoods crossed by Bar-Ilan Street, and the harm caused the interests and values of their counterparts, residing within these neighborhoods. This distinction is vital in light of Bar-Ilan Street’s role as a traffic artery connecting neighborhoods and its providing access to the property of the local residents. 

84. The harm caused to the secular members of the public, residing outside the Ultra-Orthodox neighborhoods serviced by Bar-Ilan Street, who seek to exercise their freedom of movement and right to travel from one end of the city to the other, is not excessive. As pointed out, all that is required of them is a detour, taking no more than two extra minutes. While this is an infringement on their freedom of movement, it is not excessive due to the three following conditions. First, the alternative routes are open to traffic on Sabbaths. Second, Bar-Ilan Street itself is open to traffic on Sabbath, save prayer times. If, in practice, it will not be possible to travel on Bar-Ilan Street at times other than during prayers, the harm to the secular public shall be deemed excessive. Consequently, if the violence on Bar-Ilan Street on Sabbaths will continue during the times that traffic is permitted, this will excessively burden the secular residents’ freedom of movement. Third, Bar-Ilan Street is open to security and emergency vehicles even during the hours that it is closed to traffic. Bar-Ilan Street serves as a traffic artery leading to Hadassa Hospital, located on Mount Scopus. The two extra minutes it takes to arrive through the alternate route are crucial when it comes to saving human lives. The same applies to security vehicles, endeavoring to preserve the public peace. Such vehicles may freely travel along Bar-Ilan Street at all hours.

85. The matter is quite different with regard to the area’s secular residents of Bar-Ilan Street, or those secular members of the public looking to visit family or religious friends living in Ultra-Orthodox neighborhoods. The partial closure of Bar-Ilan Street severely infringes their freedom of movement. The harm is grave as, prior to the closure, secular members of the public, as well as their family and guests, living in the Ultra-Orthodox neighborhoods were able to park their vehicles on Bar-Ilan Street and reach their residences on foot from there. This closure, however, will compel secular residents to park at the northern or southern end of Bar-Ilan Street, and to walk the length of Bar-Ilan. This walk, which is by no means short, does not constitute a reasonable alternative. The alternate routes of Route no. One and Route no. Four are intended to allow traffic to flow from one end of the city to the other. What, however, will become of the secular residing in the Ultra-Orthodox neighborhoods themselves?

86. This question is by no means simple. Closing Bar-Ilan Street to traffic on the Sabbath causes severe harm to the secular residents living in neighborhoods around Bar-Ilan Street. They were also harmed in the past, when the neighborhood's inner streets were closed off, and now, unable to reach their homes, they suffer additional harm. This having been said, the harm in question is narrow in scope as they are perfectly able to travel along Bar-Ilan Street at all hours, save prayer times when the street is closed, including Fridays the Sabbath and holidays.

Is this infringement lawful? Can it not be said that the infringement on the secular residents’ freedom of movement is excessive? Every effort should be made in order to minimize injury to these secular residents. Consequently, it is only appropriate to consider the possibility of granting special permission to the secular residents to use Bar-Ilan Street even when it is closed. Just as security and emergency vehicles are permitted to use the street on the Sabbath, the same possibility should be extended to local secular residents. Undoubtedly, this is the case regarding the physically challenged, see HCJ 5090/96, or those residents whose occupation requires it, such as petitioner number three.

87. In practice, to what degree would the secular residents living in Ultra-Orthodox neighborhoods around Bar-Ilan Street be harmed were the street to be partially closed? How many secular residents live in these neighborhoods and how will the street’s partial closure harm them? The evidence before us does not provide a satisfactory answer to any of these questions. Mr. Langer did not examine this matter in drafting his order to partially close the street to traffic. Instead, he relied on the data collected by the Sturm Committee. While the report is in the Court’s possession, we do not have the protocols of the Committee's discussions, nor is there any information regarding the local secular residents—if such information was ever presented to the Sturm Committee. In his decision, the Minister of Transportation relied on the Tzameret Committee’s report, which also does not contain data regarding the secular residents. Responding to our inquiries on the matter, the state informed us that no data respecting the secular residents was in possession of the Minister of Transportation. It emphasized that at no time was the Minister approached by secular residents opposing Bar-Ilan’s closure. The assumption, therefore, was that most local residents were Ultra-Orthodox. Regarding this issue, the petitions before us contradict each other. One petitioner stated before the Court that “there are still numerous secular residents living in the area, such as non-observant elderly couples who are regularly visited by their children on Sabbaths and holidays.” See supra para. 15. In contrast, the petition of the Committee of Tel-Arza and Bar-Ilan Street Neighborhoods stated that “nearly one hundred percent” of the those living around Bar-Ilan Street keep the Sabbath, and that there are less than fifty secular residents in the area.

The Law of Administrative Procedure: Gathering Data and Related Flaws

88. Case law provides that a government decision must be based on and supported by relevant facts. To this end, the authority must gather the relevant data and verify the fruits of its search with extreme care, as noted in HCJ 297/82 Brenner v. Minister of the Interior [57], at 48-49, by Acting President Shamgar:

The decision must always be the product of serious, fair and systematic research…

The decision-making process by the authority must be composed of a number of crucial basic stages. These include the gathering and summarizing of data, verifying the data’s significance—which, in the event of alternative thesis, includes verifying the propositions and ramification of the conflicting thesis—and, finally, summarizing the reasoned decision. This process ensures that the relevant considerations are taken into account, that the arguments submitted are fairly examined, and that the resulting decision will withstand a legal and public critique.

89. What are the ramifications of the government authority’s failure to perform a proper verification? The consequences are a function of the circumstances. Thus, not every violation of proper administrative procedure will result in the administrative decision being struck down. In HCJ 2911/94 Baki v. Director General of the Ministry of the Interior [58], at 304, Justice Zamir wrote:

We must draw a clear distinction between the rule binding the administrative authority and the remedy granted by the Court when that rule is transgressed. The rule is found on one plane and the remedy in another. After the fact, the Court will weigh different considerations than the factors the authority should have weighed.

In a similar vein, in HCJ 2918/93 Municipality of Kiryat-Gat v. The State of Israel [59], at 848, Justice Dorner pointed out:

It is necessary to distinguish between primary rules, guiding the administration’s actions, and secondary rules, regulating the legal results of violating these primary rules and the remedies for such violations.

Indeed, not every flaw causes an administrative decision to be struck down. Generally, only a substantive violation leads to such a result. See HCJ 161/80 San Tropez Hotel Ltd. v. Israel Lands Authority [60], at 711; HCJ 465/93 Tridet v. Local Council for Planning and Building, Herzliah [61], at 635. The effect of a procedural flaw depends on two factors. First, we must ascertain whether the violation of administrative procedure influenced the decision’s content. Second, we must assess what effect striking down the decision will have on individuals and society. See HCJ 400/89 Levitt v. President of the Military Trubunal, Southern District [62], at 711. Thus, Professor Zamir was correct to point out that:

Only a substantive violation of administrative procedure, infringing a legal principle or a human right, is enough to justify the decision’s reversal.

The issue of whether the violation is substantive, which would justify the decision’s reversal, is in every case determined by two considerations. First, whether the violation is likely to have influenced the decision, or, in other words, whether the decision would have been different in its absence. Second, what are the benefits to the parties and society if the decision is struck down.

II Zamir supra.[91], at  683-84.

90. As we have seen, the Minister of Transportation did not make an appropriate factual assessment of the impact of the closure on the secular residents living in the Bar-Ilan Street area. Instead, the Minister related to Bar-Ilan Street as a main traffic artery that did not provide direct access to adjacent land owners, whereas the street also provides direct access to adjacent lands. As a result, the concerns of secular residents living in Ultra-Orthdox neighborhoods who would be harmed by the street’s closure on the Sabbath were not addressed. Let it be noted that the Sturm Committee encountered a similar problem regarding Sabbath and festival street closures in the Har-Nof neighborhood. From an administrative procedural perspective, the Committee acted properly. It called on the secular residents to provide information on their place of residence and mapped out their location. It also marked the roads and access-ways to remain open to the secular residents and their guests. The Minister of Transportation, for his part, did none of these things. Is this flaw substantive? From the perspective of the first consideration—namely, the flaw’s influence on the decision’s content—the flaw in question can surely be said to be substantive. As we have seen, the data regarding the secular residents living in the Ultra-Orthodox neighborhoods around Bar-Ilan Street is completely absent. The flaw is equally substantial from the perspective of the second consideration—the effect of striking down the decision, both generally and specifically. Indeed, striking down the Minister’s decision will preclude the street’s immediate closure. As a result, the severe, grave, and serious harm to the Ultra-Orthodox residents’ religious sensibilities will persist. This however, is inevitable when the freedom of movement is at play, prior to determining an appropriate and factually grounded balance between this right and between harm to religious feelings and lifestyle. 

Additional Arguments

91. Various arguments were raised in written and oral submissions made before the Court. To the extent I have not addressed these arguments in my decision, they are rejected. These arguments do not affect the legal structure of this decision, and they failed to sway my opinion on the matter. 

Conclusion

92. In all that relates to the use of Bar-Ilan Street as a main artery, serving to connect various Jerusalem neighborhoods, the Minister’s decision is within the zone of reasonableness. In contrast, the Minister’s decision is flawed in its failure to address the plight of the secular residents living in Ultra-Orthodox neighborhoods and, as such, must be struck down. There is no alternative save to declare the Minister’s decision ordering the street’s partial closure null and void. It will be incumbent on the Minister to reconsider his policy respecting Bar-Ilan Street’s partial closure, bearing in mind that it is a traffic artery, providing direct access to the adjacent lands.

Additional Comments

The Tzameret Committee

 93. While I did not address the Tzameret Committee’s recommendations in my judgment, this in itself no way reflects my opinion regarding their importance. Indeed, the Committee’s recommendations are most important, and my hope is that they will be seriously considered. The Tzameret Committee was set up as per the Court’s suggestion, based on our understanding that the Sabbath traffic issues in Ultra-Orthodox neighborhoods can only be resolved by way of agreement and compromise.  The problem is both sensitive and grave. It relates to the larger problem of Sabbath traffic in Jerusalem and to religious-secular relations in these matters. These problems, by their very nature, best lend themselves to a social rather than legal solution. Social consensus, based on compromise, is by far preferable to an imposed judicial decision, as President Shamgar noted in Hoffman [39], at 354-55, which dealt with prayer at the Western Wall:

All this leads us down the treacherous road of balancing between conflicting persuasions, convictions and opinions. In this context, it is far better to recall that the exclusive focus on the "miracle cures" that our generation expects to be handed down in Court, is not necessarily the appropriate solution or the desired cure for all our ills. These solutions are imposed and judicially ordered, rather than agreed upon in instances where experience seems to suggest that understanding and discussion between proponents of opposing viewpoints, although at first glance appearing more difficult, is far more fruitful.

While the Tzameret Committee operated precisely in this spirit, a compromise was not reached and a social covenant was not struck. Thus, we rule on the matter for lack of choice. This having been said, the Court cannot adopt the Tzameret Committee’s views in our judicial decision. Our concern is with Bar-Ilan Street’s closure to traffic on the Sabbath. Thus, while permitting public transportation on the Sabbath in a different place is likely to constitute a proper social balance, it is nonetheless irrelevant to reaching a judicial decision. Indeed, not all that is relevant in the social or political sphere is equally relevant in the legal sphere. For instance, the Court itself proposed that the problem of closing Bar-Ilan Street be resolved by opening Yam Suf Street, as a basis for agreement and compromise. While this suggestion may be an appropriate social compromise, it has no any bearing on a judicial ruling. As a social compromise was not successfully reached, our judicial ruling is inevitable. Such a ruling is anchored in relevant considerations exclusively. To this end, the Tzameret Committee’s recommendations are merely of secondary import.

“The Slippery Slope”

94. The following argument was made before the Court: if Bar-Ilan Street is closed to traffic on Sabbaths, even partially, the domino effect will be powerful. Additional traffic arteries will be closed, as will main roads. The entrance to Jerusalem will soon follow suit, as will streets across Israel.

As a judge, it is not for me to provide a political response to these concerns. My response can only be legal, and it is the following: any decision to close a street, road, or city entrance to traffic will have to be analyzed on a case by case basis. Thus, the legality of a particular closure does not imply that a different street’s closure is legal. We judges are quite capable of distinguishing between different streets, between one closure and the next. In this vein, in HCJ 606/93 supra. [41], at 26, Justice Cheshin correctly noted:

One of our roles as judges—and a difficult one at that—is  knowing how to distinguish between essence and periphery, between one case and another, between various nuances. The fact that a particular case is difficult does not justify that we refrain from attempting to distinguish it from other cases.

This is the law for our purposes. We are addressing the matter of Bar-Ilan Street, and that matter alone. I have concluded that there are reasonable alternatives to Bar-Ilan Street with regards to its use as a traffic route connecting various parts of the city—as opposed to its use as an access way to the homes of local secular residents.

What then will be the law when the issue of Sabbath traffic on a different traffic artery arises? Such a case shall be evaluated according to the same measure employed in the case at bar, no more and no less. I am not prepared to change the legal measure for future fears that have yet to materialize. Such fears are based on speculation. The “slippery slope” argument is a difficult one, which we must always address with a certain degree of skepticism. See F. Schauer, Slippery Slopes, 99 Harv. L. Rev. 361 (1986) [107]. Thus, while it may very well be that the slippery slope is indeed quite perilous, the slippery slope argument is by far more dangerous.

The Lack of a Legal Standard

95. It has been argued that, because the Minister of Transportation failed to set forth a framework of criteria for the exercise of his discretion, that his decision is flawed. Indeed, it is unfortunate that he did not set out such criteria. It is appropriate that the government authorities set out criteria for the exercise of their discretion. See 2 Zamir supra. [91], at 780. These would provide the administrative authority with the opportunity to set proper policy in a conscious and carefully planned manner. Such criteria help prevent discrimination, allow for long-term planning, and subject the exercise of discretion to review. This having been said, I am not convinced that the lack of independent guidelines here is sufficient to invalidate the Minister’s decision. The closure of main traffic arteries is by no means a routine matter. Each case is evaluated individually, on its own merits. Even so, it is appropriate that the Minister of Transportation to set guidelines in these matters.

96. The lack of independent guidelines was felt was in relation to the choice of alternatives to the closed route. Here, the Court was informed that there were alternate routes to Bar-Ilan Street, one of these being through Route no. Four, the other being Route no. One. Both these roads pass Ultra-Orthodox neighborhoods. We heard arguments asserting that that there is no basis for preferring Bar-Ilan’s Ultra-Orthodox residents’ religious feelings and the observant lifestyle over those of their counterparts residing around Route no. One and Route no. Four. According to which criteria did the Minister exercise his discretion in this instance? Moreover, what will become of Bar-Ilan Street’s closure in the event that demands to close these two alternate roads on the Sabbath will arise? According to which criteria will the Minister of Transportation act under such circumstances? These are important questions indeed. In my view, the answer to them is to be found in the material before the Court. As to the first question, we emphasized the difference between streets that go through the heart of an Ultra-Orthodox neighborhood—where  thousands of Ultra-Orthodox individuals reside on both sides of such streets—and roads that are found at the neighborhood’s periphery.

With respect to the second question, it is clear that, as soon as we consider the possibility of closing the alternate route, the issue of the original route’s closure resurfaces. Our concern is with complementary solutions. It is possible to partially close Bar-Ilan Street provided that an alternate route remains open to traffic on the Sabbath. However, the moment that the alternate route is closed to traffic on Sabbath, Bar-Ilan Street must be opened. This position is shared by the Minister of Transportation who noted:

For as long as the road in closed...Golda Meir Boulevard (Ramot Road) shall remain open, as will the entrances to the city.

See para. 25 of the Minister’s response brief. Let us add Route no. One to this statement. Clearly, it is best that the Minister prescribe a general formula for these purposes, which relates to all alternate routes. It is our hope that, in the future, this will be done.

97. Related to the issue of the proper legal standard is the question of how requests to close streets for religious reasons are to be dealt with. To this effect, the Tzameret Committee distinguished between various categories of roads. The Committee recommended that the authorized local and central bodies decide the matter. It also discussed when a reasonable alternate route is required and when it is not. In addition, it proposed that an appeals board be set up, which would enable decisions about street closures to be appealed. In this regard, the Minister’s decision was:

It is incumbent on the relevant actors to examine these recommendations in detail. If, subsequent to an examination of this nature, these professionals recommend that the recommendations be implemented, and in the event that I see fit to accept them, it will be necessary to change the law accordingly.

The matter, however, is left to the discretion of the Minister of Transportation. It is appropriate that these suggestions be positively weighed. Particularly important is the appeals board, which, if set up, will enable interested citizens to appeal decisions. Indeed, were such an appeals board in existence today, we would have perhaps learned the number of secular residents living in Ultra-Orthodox neighborhoods around Bar-Ilan. It is our hope that these issues will be decided speedily, allowing the Traffic Controller to decide afresh with respect to Sabbath street closures while also granting the right to appeal these decisions. Even so, it is clear that—from an administrative procedural perspective—the lack of this appeals mechanism will not influence the validity of the decisions.

98. It has been argued before the Court that the matter of Sabbath street closures must be regulated by statute. This approach is indeed proper. The subject matter is important and it is appropriate that it be enshrined in legislation. Moreover, it is also appropriate that the legislature prescribe primary arrangements and leave secondary determinations to administrative authorities.

While this is how a constitutional democracy operates, this is not the question placed before us. Our question is whether the existing legal regime, which endows the Traffic Controller with the authority to determine primary arrangements respecting the flow of traffic—such as the matter of Sabbath street closures—is illegal because the primary arrangements are not enshrined in legislation. This question is to be answered in the negative. We are not to substitute the desired law for the existing law. Many are the matters in our lives, which in the past were regulated by secondary legislation but were in fact worthy of being anchored in primary legislation. Suffice it to cite the matter of recruiting Yeshiva students to the army. It has been argued that this last issue is an important one which would best be anchored in primary legislation. With this the Court agreed. Nevertheless, we held that the lack of primary arrangements prescribed by statute does not invalidate the secondary legislation in this respect. See Ressler [33], at 501. This too is the law in the case at bar. While this is not desirable, it is nonetheless legal.

Violence

99. For a considerable amount of time now, Ultra-Orthodox factions have engaged in violent activities on Bar-Ilan Street. Stones were thrown at passing cars, and police intervention was required, Sabbath after Sabbath. There are those who believe that this violence has succeeded in bringing about a new perspective regarding freedom of movement on Bar-Ilan Street. This is to say that the street’s partial closure will, to a certain extent, be tantamount to rewarding this violence, as Justice Landau so accurately described in Baruch, at 165 [2]:

In a law-abiding country such as ours, the physical pressure of illegal demonstrations and violent protests must never be allowed to impose solutions. Violence breeds violence and a country that allows such violence to succeed will destroy itself from within. I am fearful that this issue can serve as an obvious example of such destruction, for it gives the impression that the riots and demonstrations which took place pressured the government into searching for a new solution to the problem.

This having been said, the fact that it was the violence that pushed the matter to the fore, and that precipitated the matter’s review, does not, in and of itself, provide sufficient reason to strike down the decision—provided that its content was not influenced by the violence. Justice Landau insisted on this point in Baruch, at 165 [2], holding:

How shall the Court, in hindsight, deal with the unfortunate fact that the administrative arrangement in question was reached only after violence? Certainly, no court would validate an invalid arrangement for fear that voiding it will result in renewed violence. Nor will it, on the other hand, strike down an arrangement, which appears both valid and appropriate, only because it was motivated by an attempt to find a deal with violence. The proper response to illegal activities is an appropriate police reaction, and the enforcement of the penal law.

Indeed, we must distinguish between this violence and the administrative authority exercised in its wake. All legal means must be employed to fight the violence, see HCJ 153/83 supra. [22], at 406, and every person’s freedom of movement must be protected. “Maintaining an arrangement does not imply surrender to those threatening to violate it. Rather, it is extending shelter and protection to the victims of such violence-mongers.” HCJ 166/71 Halon v.Head of the Local Council  of Ousfiah [63], at 594. (Berenson, J.) Freedom of movement in Israel must not be allowed to fall prey to violence.

100. As for the exercise of administrative discretion, such discretion is deemed flawed when it is influenced by the violence on the street. Compare HCJ 549/75 supra. [40], at 764. The balances between the various relevant considerations must be struck on the basis of their respective weight. The violence on the street must not influence this weight. A government authority whose path is influenced by violence on the street is destined to falter. In this respect, Justice Silberg, in HCJ 155/60 Elazar v. Mayor of Bat-Yam [64], at 1512, correctly pointed out:

Today, there may be demonstrations and protests by various religious factions; tomorrow, the anti-religious sectors may be the ones accused of running amok and disturbing the peace… this phenomenon is a Sword of Damocles dangerously dangling over us, leading to the surrender of public institutions to the terror on the streets.

Justice Landau, in HCJ 512/81 The Archeological Institute of Hebrew University, Jerusalem v. Minister of Education and Culture [65], at 543, spoke in a similar spirit:

Tolerance and patience are indeed necessary, as is considering the feelings of the other side. This by no means implies that one should surrender to the pressure from illegal demonstrations and the violent behavior of extremist groups, seeking to impose their views and will on government authorities, whose authority they do not recognize.

This having been said, the proper exercise of discretion is not to be invalidated merely because violence raised an awareness of the problem. Such is the case here. I am convinced that the decision of the Minister of Transportation was taken with a proper understanding of freedom of movement and its influence on the Ultra-Orthodox public’s religious sensibilities. As such, his decision was not influenced by the violence, except for the fact that it was the violence which brought the matter to the Minister’s attention.

101.  The Minister’s decision was to partially close Bar-Ilan Street on Sabbaths. We have seen that this decision strikes a proper balance between the conflicting considerations regarding the flow of traffic within the city. As noted, the full closure of the street would excessively infringe the freedom of movement. This being the case, the decision to close the street to traffic during certain hours is premised on the fact that it will be open for the remainder of the day. If the violence will continue, however, and if it will affect the free-flow of traffic during the hours when vehicles are permitted to travel, then secular residents will likely refrain from driving on Bar-Ilan for fear of being attacked. If this scenario materializes, the delicate balance struck shall be undermined. Under such circumstances, there will be no choice but to fully reopen Bar-Ilan to traffic on the Sabbath, with the police strictly enforcing the law.

Tolerance

102. Tolerance is among Israel’s values as a democratic state. It is by virtue of tolerance that rights may at times be infringed on in order to protect feelings, including religious sensibilities. Tolerance is also one of the State of Israel’s values as a Jewish state, as noted by Justice Elon, in Neiman [18], at 296:

This is the doctrine of government in our Jewish heritage—tolerance for all, of each and every group, to each opinion and each world-view. Tolerance and mutual understanding ensure that each individual and every group has a right to express its views.

Hence, tolerance serves as a measure for striking the proper balance between various clashing values, as I noted in CA 294/91 supra. [19], at 521:

Tolerance constitutes both an end and a means. It is in itself a social end, which every democratic society must aspire to fulfill. It equally serves as means, as a tool for balancing between social goals, and allowing for their reconciliation when they clash with each other.

How is one to be tolerant towards those who are not?  In the petitions before us, we repeatedly heard the argument that the Ultra-Orthodox residents are not tolerant of their secular counterparts. They are not prepared for any compromise whatsoever, as tolerance would dictate. An example of their unwillingness to compromise is the fact that they rejected the Court’s proposal regarding the closure of Yam-Suf Street. It was argued that they view tolerance as a one-way street—to serve their interests, absent any compromise on their part.

103. It cannot be denied that these contentions do have a certain basis in the facts presented. The Ultra-Orthodox’s refusal to compromise regarding Yam-Suf Street was a difficult blow. In truth, tolerance should be mutual, as President Shamgar wrote in Hoffman [39], at 354:

Tolerance and patience are not one-way norms, but broad, multi-dimensional imperatives…tolerance is not to be invoked only to collect rights, but rather, as a measure for recognizing one’s fellow’s entitlements…tolerance must be mutual. Shows of strength that surface from violent groups are not worthy of such tolerance.

What then is the law when certain groups in society are intolerant? Are they then unworthy of tolerance? To my mind, it is incumbent upon us to be consistent in our understanding of democracy. According to the democratic perspective, the tolerance that guides society’s members is tolerance of everyone—even towards intolerance, as I wrote in HCJ 399/85 supra. [25], at pp. 276-277:

The democratic regime is based on tolerance…tolerance of our fellows’ deeds and views. This includes tolerance of those who are themselves intolerant. Tolerance is the force that unites us and permits co-existence in a pluralistic society such as ours.

It is incumbent upon us to be tolerant even of those who are intolerant of us, due to the fact that we cannot afford to be otherwise. Because if we are not tolerant of the intolerant we shall undermine the very basis of our collective existence, premised on a variety of opinions and views, including those that we disagree with, and including the view that tolerance is not mutual.

 

 

Judicial Review

104. The Minister of Transportation was faced with a difficult situation, which can legally be dealt with several ways. Thus, he would have been authorized to decide to continue with the status quo. In other words, Bar-Ilan Street would have remained open to traffic. This would have been a proper decision, striking an appropriate balance between the various considerations to be taken into account. This, however, was not the Minister’s decision. Instead, he opted for a partial closure of the street on Sabbaths. He was authorized to do so in all that regards the use of Bar-Ilan as a traffic artery without direct access to adjacent land users. His decision to this effect is within the zone of reasonableness. Under these circumstances, there isn’t any place for the High Court’s intervention. In fact, the question is not how the Court would act, if it were in the Traffic Controller’s place, but rather if the latter acted as a reasonable Traffic Controller would have. My answer to this question is in the affirmative. This, however, is not the case with respect to the use of Bar-Ilan Street as a traffic artery which also provides access to adjacent land users. In this respect, the administrative process was flawed and the decision adopted deviated from the realm of reasonableness. In this regard, the Court has no choice but to intervene.

 A Final Word

105. Long have I traveled down the treacherous road that is Bar-Ilan. The case before us is by no means simple. From a legal perspective, it is most difficult. A constitutional democracy will hesitate before it infringes human rights in order to safeguard feelings. A delicate balance between conflicting considerations is required, and this balance is not in the least bit simple. The case before us is difficult from a social perspective. Attempts to reach an agreement and to strike a compromise have all failed. This being the case, the solution must be found in a judicial ruling, which is quite unfortunate. Nevertheless, in President Landau’s words in Dawikat [3], at 4 “as judges, this is our role and our duty.”

The Result

106. The final result is as follows: a reasonable alternative to Bar-Ilan Street was found in all that concerns travel arrangements from one end of the city to the other. Under these circumstances, the partial closure of the street during prayer times on the Sabbath, as per the Minister’s decision, strikes an appropriate balance between freedom of movement and the Ultra-Orthodox local residents’ religious sensibilities and observant lifestyle.

 

Consequently, I would have rejected the petition and revoked the order nisi had the matter of the local secular residents and their families not arisen. Clearly, this presumes that three conditions are met. First, the alternative routes must be open on the Sabbath. Second, Bar-Ilan Street must remain open to traffic on the Sabbath during the hours when traffic is permitted, and the free-flow of traffic must not be hampered by violence. Third, Bar-Ilan Street should remain open to emergency and security vehicles even during prayer times.

The factual situation, however, is quite different. There is a problem with the traffic arrangements regarding the local secular residents, living around Bar-Ilan Street—they, their family and loved-ones, and all secular residents who visit their religious friends on the Sabbath. The interests of these individuals were not taken into account. Nor was a proper factual basis prepared. In this respect, the Minister of Transportation’s decision was made in violation of proper administrative procedure, as it failed to distinguish between the different sectors of the population residing in the areas in question. Thus, Bar-Ilan Street was partially closed to all traffic on the Sabbath. Under these circumstances, I suggest that the Court reject the petition in HCJ 5434/96 and make the orders nisi in HCJ 5016/96, 5025/96 and 5090/96 absolute, so as to strike down the Minister’s decision to partially close Bar-Ilan Street and return the matter to him. In his new decision, the Minister will take into account the interests of the local secular residents and their guests, as this judgment instructs. These

 

interests will be considered in accordance with an appropriate factual basis, according to the conditions set out in this judgment.

Under the circumstances, no order for costs shall be made. 

Justice T. Or

The Minister of Transportation decided to close a section of Jerusalem’s Bar-Ilan Street, measuring 1.2 km., to motor traffic during prayer times on Sabbaths and Jewish holidays. Was this decision lawful? This is the issue in the petitions before us.

Opening Comments

1.   My judgment was written prior to having had the opportunity to examine the judgment of my colleague, the President. As the President elaborated on the relevant facts and procedures, I will not revisit them. Initially, I only addressed those facts that were relevant to my position. However, after reading the President’s judgment, I felt it necessary to add three additional brief comments for the purpose of clarifying my position.

2.   To be quite frank, I would have preferred it had the various parties in the case at bar come to an arrangement, one that could have spared the involvement of this Court. This was the reason for our recommendation that a committee be set up in order to help the parties strike a compromise. To my dismay, there efforts were fruitless. As such, we must deal with a matter which is the subject of fierce public controversy.  Whichever way we decide, there will be those who will not be satisfied, and who will regard our decision as harmful.  No verdict is capable of satisfying everyone.  To the extent that we discharge our judicial duty to review the Minister of Transportation’s decision in accordance with the legal criteria used for assessing the legality of administrative decisions, criticism is to be expected from one side or the other.  As has become the norm, the criticism will be of the result reached by the Court, or by any one of the presiding judges. With the exception of a precious few, not many will be particularly interested in the legal reasoning underlying any of the opinions. We have grown accustomed to the fact that the rulings of this Court have sensitive political or social ramifications.

Even so, despite our awareness of these implications, we are not at liberty to refrain from deciding matters that demand the attention of this Court. As difficult as the task before us may be, and despite the criticism of those whose claims will be rejected, we have no alternative but to discharge our duty and rule according to the law applicable to the facts of the case, each judge according to his ability, understanding and conscience.

This having been said, let us proceed to the matter at bar.

Bar-Ilan Street

 

3. Bar-Ilan Street’s importance as a traffic artery is at the heart of our deliberations and is the key to resolving the matter. The road passing through Bar-Ilan Street connects the northeastern section of Jerusalem to the city's western section and with the entrance to the city. As is indicated in the brief submitted by the Traffic Controller, Bar-Ilan Street “begins at the entrance to the city, passes through the Ultra-Orthodox neighborhoods and ends in the neighborhoods located in the northern part of the city.” The road in question is wide, with two lanes in each direction. In certain sections, the road boasts three lanes.

The fact that the road in question is one of Jerusalem’s most central is undisputed. It serves both those entering Jerusalem and those living in the city’s western neighborhoods, such as Bet HaKerem, Kiryat Hayovel and Kiryat Menachem, allowing them to reach the northeastern part of the city.  The road also serves those in the northeast who wish to reach the western par of the city, or who wish to exit the city.

We do not have exact statistics regarding the percentage of the population served by this road. Even so, all agree that the neighborhoods served by it are large. These neighborhoods house tens of thousands of residents, if not more.

4.   Due to both its size and the significant population that it serves, the volume of traffic on the road is substantial. Mr. Michael Nackman, the manager of the City of Jerusalem’s traffic departments and engineering service, submitted specific numerical data relating to the flow of traffic. From his report, dated October 6, 1996, submitted to the Tzameret Committee, it emerges that on Sabbaths—from sunset on Friday to a little after sundown on Saturday—a significant number of vehicles use the road. The engineer’s data indicate that, between January 1, 1996 and March 30, 1996, the road was used by 13,216 vehicles on the Sabbath. This constitutes 27.1% of the average traffic during weekdays of the same period.  The statistics for the next three months are similar. During that period, the average number of vehicles driving on the road on the Sabbath was 13,714, which constituted 28% of the average number of cars driving on the road during that week.

I must further mention that surveys conducted over another period, between July 1, 1996 and July 27, 1996, showed an increase in the volume of traffic on weekdays, while the volume of traffic on the Sabbaths decreased. I do not think that this decrease in the volume of Sabbath traffic should be taken into account. As indicated by the Traffic Controller, Mr Langer, in his testimony before the Court on the August 15, 1996, “today, after a period of extended violence, there are many people who are afraid to use the road and in fact avoid using it…thus, the data of the last few Sabbaths is not relevant, since it is the product of pressures that do not reflect the regular traffic volume." To this I add that, for a number of years, serious controversy has surrounded Bar-Ilan Street and there are many people who avoid traveling on it on Sabbaths.  As a result, even the surveys conducted during the first half of 1996 do not accurately reflect the real potential volume of travel on the Sabbath. 

5. Thus, Bar-Ilan Street is a central traffic artery—a fact which equally holds true on the Sabbath. The road’s centrality as a traffic artery is also evidenced the letter the Central Traffic Controller, Mr. Langer, to the Mayor of Jerusalem. This letter will be cited below. Moreover, in his testimony before this Court, Mr. Langer also referred to Bar-Ilan Street as a central traffic artery, which connects important parts of Jerusalem and serves significant portions of the population, a large part of which uses the road on the Sabbath as well.

6.   We emphasized that Bar-Ilan Street is a central traffic artery. The road segment under discussion is surrounded by residential buildings on both sides.  For quite a few years now, these buildings house primarily religious and Ultra-Orthodox residents. This being the case, inner streets in the areas along Bar-Ilan Street are closed to traffic on the Sabbath and Jewish festivals.  Even so, and despite the local population, no restriction was ever imposed on Sabbath and holiday traffic on Bar-Ilan Street itself. The Minister of Transportation, however, recently decided to close the road to traffic on Sabbaths and festivals, during “prayer times.” The three petitions here attack this decision.

7.   Having described Bar-Ilan Street, we can now proceed to dealing with the petitions themselves. First, we will outline the normative framework within which the Minister adopted his decision. Then we shall decide whether the Minister’s decision was reasonable in accordance with the proper balance to be struck between the relevant considerations.

The Normative Framework—The Competent Authority

8. The legally competent authority in our case is the Traffic Controller. The Traffic Regulations-1961 identify the authority who has the jurisdiction to prescribe arrangements of the nature before us. Regulation 16 authorizes the Traffic Controller to determine the placement of traffic signs and road arrangements. Under the Regulation, the Traffic Controller is authorized:

              (1)   To determine the design of traffic signs, their types, sizes, colors, forms, meanings, manner of placement and signals;

(2) To determine traffic arrangements or to exempt from their use generally or in a particular case.

Moreover, under the Traffic Regulations, the Traffic Controller also serves as the Central Traffic Authority. In this regard, Regulation 1 provides:

Central Traffic Authority—The Traffic Controller appointed for any area in the State, or a person vested with the authority of the Central Traffic Authority, for the whole area of the state or a part thereof.

Regulation 17 enumerates the Central Traffic Authority’s powers. Under this regulation, the Central Traffic Authority is permitted to allocate powers to the Local Traffic Authority to determine traffic arrangements. If these regulations are not complied with, the Central Traffic Authority is empowered to implement them itself.  The following is language of the Regulation:

17. (a) The Central Traffic Authority is permitted to direct the Local Traffic Authority regarding the determination of traffic arrangements, their alteration, termination, and maintenance.

(b)        Where instructions as stated in subsection (a) are given, and the Local Traffic Authority does not comply therewith, the Central Traffic Authority may set out such traffic arrangements, which shall be regarded as if though they had been established, indicated, activated or terminated by the Local Traffic Authority.

Who is the said Local Traffic Authority? The notice regarding the appointment of traffic authorities (Y.P. 5730-2281) provides that the head of the Municipal Authority will function as the Local Traffic Authority. The bounds of the Local Traffic Authority’s powers are set out in Regulation 18 of the Traffic Regulations, and includes posting traffic signs and indicators. As indicated in section 18(b), there are certain arrangements that the Local Traffic Authority is only empowered to determine “when set out, in writing, by the Central Traffic Authority.”

 In accordance with the Traffic Controller’s order, the Central Traffic Authority determined that its local counterpart would be permitted to determine traffic arrangements under section 18(b) in the Jerusalem area, with the exception of “main thoroughfares and the city center.” As it is undisputed that Bar-Ilan Street corresponds to the definition of a “main thoroughfare,” the authority to determine the traffic arrangements in the location is vested in the Traffic Controller.

The Normative Framework—The Minister of Transportation in his Capacity as Traffic Controller

9.   As we have seen, the Traffic Controller is the statutory authority charged with making decisions regarding Bar-Ilan Street. These petitions here were directed against the Controller’s decision to close Bar-Ilan Street during certain hours on Sabbaths and Jewish festivals, for a four month trial period.

After the hearings of the petitions began and the orders nisi and interim orders against the Traffic Controller were issued, the Minister of Transportation decided to exercise the powers vested in him under section 42 of the Basic Law: The Government, and to assume the Traffic Controller’s powers regarding the issues under discussion here. The Minister explained his decision in section 10 of his additional affidavit. In the Minister’s own words:

In light of the Court’s decision, which linked the closure of Bar-Ilan Street to the setting of comprehensive policy regarding Sabbath traffic in Jerusalem and across the country—policy predicated on a social covenant between the various sectors of the population—and bearing in mind that in accordance with that decision I established a public committee, that made recommendations to me regarding the broad issues involved, I have seen it fit to make a linkage between the various aspects relating to road closures. It is for this reason only, and until the entire issue is resolved, that I have decided to arrogate the Traffic Controller’s authority in all matters relating to the decision to close Bar-Ilan Street, under Regulations 16 and 17 of the Traffic Regulations. 

In exercising this authority, the Minister decided that: 

Bar-Ilan Street will be closed to traffic on the Sabbath and Jewish festivals during prayer times, in accordance with the Sturm Committee’s recommendation.  For as long as the road is closed, Golda Meir Boulevard (The Ramot Road) shall remain open, as will the entrances to the city.  A lane for private vehicles shall also remain open on Jaffa St, on Sabbaths and Jewish festivals.

The closing times shall be from one and three quarter hours before the entry of the Sabbath, from one and three quarter hours prior to the termination of the Sabbath and between the hours 07.30 - 11.30 during the Sabbath day”.

The terms “Bar-Ilan Street” refer to both Bar-Ilan and Yeremiyahu roads, including the section stretching from the Shamgar intersection to the Shmuel HaNavi intersection.

10. While the personal identity of the empowered individual changed when the Minister assumed the powers of the Traffic Controller, the nature of the authority and its scope remained the same.  Clearly, there is a difference between the Minister and the Traffic Controller. His experience is different and his perspectives are also liable to be different. This, however, does not change the powers that the Minister assumed from the Controller. Indeed, the normative context relevant to the exercise of these powers remains unaffected, as does the purpose for which the authority was initially bestowed.  Similarly, the framework of considerations relating to the exercise of the authority remain unchanged. See HCJ 5277/96 Hod Matechet Ltd. v. Minister of Finance [66], at 867. The only thing that changes is the personal identity of the entity in whom the authority is vested.

So notes Professor Zamir in his book, 2 The Administrative Authority 586-87 [91], when discussing an example of the Minister of Transportation appropriating the Traffic Controller’s authority.  On this subject, Professor Zamir writes:

In my opinion, it is preferable, both academically and practically, to say that the assumption of authority, as well as its delegation, does not transfer authority from one organ to another. Instead, it merely adds another organ to the administrative authority. The Traffic Controller is the natural locus where these powers vest. It is there that the authority in question is surrounded by all of the pertinent considerations, related to the essence of the Traffic Controller’s function and to special provisions relating to the Controller’s relationships with other authorities. Consequently, there is no justification for uprooting the authority from its natural locus and transferring it to the "foreign environment" of a different authority...

Likewise, difficult problems are liable to arise between the two authorities involved were the assumption of authority to have the effect of transferring powers from one authority to the other.  For instance, is the assuming authority...entitled to strike down or alter a decision made by the original authority? This question arises because, generally, a decision may only be struck down or altered by the same authority that adopted it.

Prof. Zamir further notes that this difficulty may be resolved by presuming that a Minister who assumes the powers of an administrative authority embodies that statutory authority. Thus, “when the Minister of Transportation assumes and exercises the Traffic Controller’s authority, he is regarded as the Traffic Controller. The Minister is permitted to do anything that the Controller is empowered to do, and he is under the same duties as the Controller.” Id. I fully concur with these words which, in my opinion, are appropriate for the issue before us. They suggest that, in order to ascertain the legality of the Minister’s decision’s here, we must examine the framework of considerations that the Traffic Controller, as a statutory authority, was permitted to consider.

11. Another point must be made. Our concern is with the Minister of Transportation’s decision, in his capacity as Traffic Controller. The Minister is a religious person. He was elected to serve as a Member of Knesset on behalf of a party whose goals are religious. Naturally, this fact is liable to influence the policy that the Minister adopts.

Nevertheless, this fact must not be allowed to alter our assessment of his decision’s legal validity. The issue before the Court is whether the Minister made reasonable use of the authority which he appropriated from the Traffic Controller. Issues regarding the exercise of statutory authority are not decided by reference to the person who holds the position. Rather, any assessment of reasonableness is normative, and focuses on whether an act is an act that a reasonable authority, responsible for that particular matter, would be permitted to take. The issue here is whether the decision reasonably balances between the values at stake.  The substance of these values and their relative weight are not affected by the personal identity of the individual exercising the authority. As Justice Barak stated in HCJ 389/80 supra. [30], at 439-40:

Unreasonableness is measured in accordance with the standard of the reasonable person. This is an objective test. The question is not what the authority actually did, but rather that which it ought to have done.  In this context, the reasonable person is the reasonable civil servant, in the place and position of the civil servant who actually made the decision at issue.  The question is, therefore, whether a reasonable civil servant, in the situation of the civil servant who adopted a particular decision, would have likely adopted the decision in question, under the circumstances....

The administrative authority is obviously not identical to the actual clerk whose decision is being reviewed, despite the significant degree of “subjectification” of the “objective” authority, which does not operate in a vacuum, but rather under concrete circumstances.

Justice Barak revisited this point in Ganor [16]:

Reasonableness is not a personal matter, but a substantive one. It is not the reasonableness of he who actually adopted the decision that renders the decision reasonable, but rather the reasonableness of the decision itself that allows the person adopting it to be deemed reasonable.

This being the case, the Minister’s own worldview should not influence our judicial review. The judicial review is, first and foremost, forged from the considerations that the Traffic Controller ought to have taken into account in exercising his authority in the matter before us. With these preliminary remarks, I shall now proceed to the examination of these considerations.

The Normative Framework—The Traffic Controller's Discretion

12. In this case, we are dealing with the Traffic Controller’s authority in his capacity as the Central Traffic Authority. This authority relates to the proper regulation of road traffic, indicated by the specific definition of the term “signpost,” as it appears in the Traffic Regulations. The term is defined as “any indication, sign or signs, including a traffic light, as determined by the Central Traffic Authority, which was positioned or posted with the Traffic Authority’s authorization or consent in order to regulate road traffic or in order to warn or guide pedestrians.”

The basic purpose that these signs are intended to serve is the regulation of road traffic. The regulation of traffic requires extensive technical expertise. See HCJ 398/79 Abdalla v. Mayor of Nazareth [67], at 526. First and foremost, it involves the ability to make professional decisions which will create a well organized, balanced transportation system, one that guarantees the optimal levels of efficient, speedy and safe traffic movement.  The central consideration here must be ensuring safe and efficient transportation. This is the central consideration that the Traffic Authority must take into account when exercising its powers. 

This Court pointed this out in Abdalla, supra. [67]. There, in deliberating the legality of a decision of the Traffic Authority, the Court held, Id. at 525, that “in positioning signs, the Authority must be guided exclusively by transportation considerations.” The Court clarified the matter of transportation considerations:

The matter of signs, including their posting and their removal, are not static issues. Rather, their change is a function of what is required in order to fulfill the objectives which the Traffic Ordinance is designed to regulate. Thus, what may have been suitable yesterday in terms of the requirements of traffic arrangements in a particular area may no longer be appropriate in light of the prevailing circumstances, and may be even less suited to tomorrow’s needs, given the changes in the numbers of cars, the character of the area, population density and other such changes, occurring on a daily basis.

See also HCJ 379/71 Levy v. The Municipality of Petach-Tikva [68], at 788; HCJ  112/88  The Local Committee for Planning and  Building,  Ramat-Gan v. The  District  Committee  for  Planning  and Building,   Tel-Aviv District [69]

Indeed, the Minister of Transportation himself spoke similarly in a Knesset debate (session number ten, of 10.7.1996, at 433), stating:

The considerations guiding the Traffic Controller in deciding to close a given street must, first and foremost, be professional, traffic-related considerations.

13. This Court has emphasized that the central considerations of the Traffic Authority’s powers must be professional and traffic-related. This does not, however, imply that the Authority is precluded from taking more general considerations, which touch on the influence of road-traffic on other interests, into account. Indeed, the broad administrative legal rule remains that “the fact that the executive branch takes general public considerations into account, even when these stray from the specific area it is charged with, does not invalidate the decision.” See HCJ 612/81 supra. [13], at 301. This broad principle is equally applicable to the Traffic Controller. Thus, the Court held that, in approving bus lines, the Controller need not limit his considerations to transportation factors—he may also take into account the public interest in the efficient use of public funds. In another case, HCJ 1869/95 Gasoline Import Company v. Minister of Transportation [70],     the Court held that in prescribing regulations for the transport of petrol, the Controller may also consider factors related to free competition. Id. at 569-70.

This general principle also relates to the feelings of the religious public, which are legitimate considerations for the Traffic Controller to take into account. Thus, for instance, the League [1] case dealt with the Traffic Authority’s decision to close part of the road adjacent to the “Yeshurun” Synagogue on Sabbaths and Jewish holiday, since the worshippers were disturbed by traffic. In its decision, the Court ruled, Id. at 2668, that it was permitted to take religious feelings into account:

There can be no doubt that the respondent was taking into account a religious interest in considering the fact that motor traffic on the streets, on festivals and Sabbaths, disturbs the concentration of the worshippers of the Yeshurun synagogue, preventing them from praying comfortably. There is no fault in that—just as there is no fault in considering cultural, commercial, or health interests, provided that they affect a significant part of the public.

A similar approach was taken in Baruch [2], a case dealing with the Traffic Authority’s decision to close part of Hashomer street in Bnei Brak to motor traffic on Sabbaths and holidays. In that instance, Acting President Landau ruled that the Traffic Controller was permitted to take the feelings of the local population into account and further held that “ensuring the Sabbath rest, in accordance with the lifestyle of the interested public, is within the Traffic Controller’s authority to regulate road-traffic.” Id.

I will revisit these two judgments and discuss them at length below.

14. In this context, we should mention that, although religious considerations and the matter of religious sensitivities are legitimate factors, they cannot become the central element in the Traffic Controller’s decision. The Controller should, above all, consider transportation-related and professional factors. Other, more general factors, including consideration of the observant public’s religious sensibilities, are peripheral and cannot prevail over transportation considerations. The “religious” consideration, being peripheral, cannot become the central factor in the Controller’s decisions regarding the regulation of traffic. Thus, as more importance is accorded to transportation-related considerations pulling in one direction, proportionately less weight will be accorded to religious sensitivities pulling in the opposite direction.

This Court adopted this line of thought as far back as Lazerovitz [5]. In Lazerovitz [5], the Court held that it was within the Food Controller’s authority to “weigh many factors, including economic, financial, sanitary, psychological and, in certain cases, even religious factors.” Id. at p.55. The Court, however, qualified these comments, stating that these factors must be limited to cases where the actions of the Food Controller were “seriously and faithfully geared towards fulfilling his legitimate functions as a Food Controller regulating food consumption, in which case there was no fault in incidentally taking religious considerations into account." Id. at 55-56.

From this it is clear that professional considerations must be the primary considerations guiding the Traffic Controller. General considerations of religious needs are peripheral and cannot overshadow the specific considerations central to the powers of an administrative authority. We rendered a similar ruling in HCJ 1064/94 supra,.[52]. The issue there concerned Regulation 273 of the Traffic Regulations. That regulation dealt with the certification of licensing centers, that were to check vehicles for their mandatory annual license test.  In that context, the Court said, Id. at 817:

We may identify two central factors which the respondents should have considered. The first is road safety—the maintenance of vehicles in proper working order. The second involves encouraging free enterprise.

In weighing these factors, the Court granted greater weight to the purpose underlying the regulation. There, this purpose was guaranteeing the safety of motor vehicles. This was the central consideration, forming the very kernel of the grant of authority. Considerations relating to free enterprise were permitted, but only as incidental to the central consideration. In the event of a conflict between the two considerations, the specific consideration would prevail over the general desire to encourage free enterprise.

This is also the rule here. In other words, while the Traffic Controller was permitted to take the religious sensitivities of the observant community into account, this consideration cannot form the basis of his decision. Instead, the Controller’s considerations must be primarily based on transportation considerations.

15. We have examined the framework in which the Controller must exercise his discretion. We have seen that the Controller is not limited to transportation considerations, and may consider general values which are affected by his decisions. For our purposes, three central values demand our attention—the freedom of movement, the freedom from religion of those who wish to freely travel on the Sabbath, and the right of the religious public not to have their religious sensibilities offended. I will briefly relate to each of these values.

Freedom from Religion

16. “Every person in Israel enjoys freedom of conscience, belief, religion and worship. This freedom is guaranteed to every individual in an enlightened democratic society, and is therefore guaranteed to every person in Israel. This constitutes one of the basic principles upon which the State of Israel was founded.” HCJ 292/83 [47], at 454. The public’s right to freedom from religion is also included within the ambit of the freedom of religion and conscience. “It is a supreme principle in Israel, based on both the rule of law and this Court’s rulings, that Israel’s citizens and its residents are guaranteed freedom of religion and freedom from religion.” HCJ 3872/93 Meatrael [6], at 506 (Cheshin, J.) I noted, in same case, that “the notion of freedom of religion, on the one hand, and freedom of conscience, including freedom from religion, on the other, is expressed by the phrase “each man shall live by his faith.” Cf. Habbakuk 2:4 [111] See Meatrael [6], at 197. Justice Berenson made reference to this same principle in HCJ 287/69 supra. [53], at 364:

It is true that people must respect each other’s feelings, including religious sensibilities and beliefs and, wherever possible, refrain from infringing them. This is a supreme moral imperative, in the absence of which organized community life would not be possible. But this imperative applies to all. Just as Reuben must respect Simon’s religious feelings, so too must Simon respect Reuben’s free way of life, and refrain from attempting to force his ideas and beliefs on his neighbor.

In a similar vein, I wrote in Meatrael [6], at 501:

It seems to me that in striking the delicate balance between freedom of religion and freedom from religion, it must be properly remembered that the mere fact that a certain segment of the population holds particular beliefs and opinions and has different behavioral patterns does not warrant preventing them from continuing to think, believe and behave in accordance with those different beliefs, patterns and customs, even if they offend another section of the public.

Closing a road to traffic on the Sabbath is, to a certain extent, religious coercion of the secular population, who is not observant of the Sabbath. A road closure prevents motorists from using the road of their choice. It may prevent them from reaching the home of a local resident or bar them access to the road’s speed and convenience. Justice Vitkon emphasized this point in Baruch [2], at 166:

I am distressed by the trouble caused to the public that does not observe religious commandments or does not see the use of vehicles as transgressing the sanctity of the Sabbath. I am convinced that closing the road constitutes religious coercion with respect to that population.

Obviously, I agree that freedom from religion is neither the single nor the exclusive interest at stake. Indeed, freedom from religion is not absolute and must be balanced against other values, with which it may conflict. To this effect, my colleague, Justice Barak, stated in Ressler  [33], at 501, that  “the need to guarantee freedom of religion and prevent religious coercion does not preclude us from considering the needs of the religious population.” In a similar vein, in HCJ 6111/94 Guardians of the Tradition v. Committee of Chief Rabbis [71], at 105-06, I noted that:

A person's right to freedom of conscience, including freedom from religion, is not absolute and, at times, may be overridden by other considerations…

Quite often, a conflict may arise between those wishing to live a secular lifestyle and others desirous of maintaining a religious way of life. 

As such, we must examine other interests which bear on the dispute here.

Freedom of Movement

17. In Israel, freedom of movement is guaranteed as a basic right. See HCJ 672/87 supra. [54], at 709 (Barak, J.) It includes each and every person’s right to exit the State. See Cr. Motion 6654/93 supra. [55], at  293. It also encompasses a person’s freedom to move freely throughout and across the State of Israel. See HCJ 153/83 supra.[22], at 401. As such, this freedom also includes every individual’s freedom to travel “freely in areas intended primarily or exclusively for traffic and transit.” PL. Cr. A 6795/93 Aggadi v. The State of Israel [72], at 701. This right is essential to individual self actualization. It has not lost any of its significance in modern times.  Of late, we have been witness to the development of electronic modes of communication that “shorten” the distance between places and allow people to perform tasks from their homes, for which, in the past, they had to leave their place of residence. This includes both work and academic studies. As the Chief Justice of the American Supreme Court noted, freedom of movement “may be as close to the heart of the individual as the choice of what he eats, or wears, or reads.” See Kent v. Dulles, 357 U.S. 116, 126 (1958) [85].

Justice Berenson, addressing the matter of motor traffic on Sabbaths and festivals in CA 217/68 supra. [12], at 363, also insisted on the fundamental nature of freedom of movement:

The use of private vehicles is becoming increasingly indispensable for maintaining the economy and meeting the social and cultural needs of both individuals and society, particularly in light of the lack of public transportation on Sabbaths and holidays.  

Bar-Ilan Street’s closure to traffic constitutes an infringement of this basic freedom, as Acting President Landau pointed out in Baruch [2] supra., at 163:

Halting traffic because of the wishes of the Ultra-Orthodox infringes the freedom of movement of those interested in using their vehicle as they wish on Sabbaths and holidays.

 This having been said, this right, like freedom from religion, is not absolute. For example, it may retreat in the face of the freedom to demonstrate, as Justice Barak clarified in HCJ 148/79 supra. [24], at 177-78.

Harm to the Sensibilities of the Religious Public 

18. The harm caused to the feelings of the religious public residing on and around to Bar-Ilan Street, must also be taken into account. Of course, “only the Knesset can impose the observance of religious commandments. Not only must this authority to coerce be prescribed by primary legislation, it must also be specific and explicit.” Meatrael, supra [6] at 507 (Cheshin, J.). This having been said, "The observant are entitled to and worthy of protection, as is any other group in Israel, and freedom of religion gives rise to the need for such protection.” Id. As a result, religious feelings are also entitled to protection. Our jurisprudence recognizes the need to safeguard these feelings as part of the public order, in its broad sense, as held by President Barak in HCJ 14/86 supra. [35], at 430:

"Public order" is a broad concept, which is difficult to define, and whose definition varies depending on the context in which it is defined. In the context at bar, public order includes threatening the state’s existence, harming the democratic regime, public peace, morals, religious sensibilities, a person’s reputation, and fair judicial proceedings, as well as other matters that touch on the issue of public order.

This consideration also served as a basis for the Court’s decision in Baruch, supra. [2], dealing with the decision to close Hashomer street on Sabbaths and Jewish holidays. It therefore follows that religious feelings are a factor that an administrative authority may take into account. Nevertheless, our case law remains apprehensive of this element. See HCJ 230/73 supra. [10], at 119 (Eztioni, J.).

The Ultra-Orthodox residents living in close proximity to Bar-Ilan Street argue that motor traffic on that street on the Sabbath and festivals offends their religious sensibilities. I do not dispute that these individuals are in fact offended as a result of the stark contrast between their Ultra-Orthodox lifestyle and traffic on the Sabbath. It reflects the local residents’ profound belief in the sanctity of the Sabbath and their commitment to this idea. We must not forget that “religious perspectives are deeply intertwined with each individual’s conscience.” HCJ 806/88 supra. [9], at 39. Similarly, the harm caused to the Ultra-Orthodox public reflects the fact that members of that population residing on Bar-Ilan Street are a “captive audience” of sorts, compelled to witness the desecration of the Sabbath against their will. As a result, in principle, the right of the Ultra-Orthodox public not to be offended is worthy of consideration.

Understandably, the protection extended to religious feelings is not a value that developed in a vacuum. Nor is it an absolute value. The protection accorded this value must take into account the existence of other circumstances. In the final analysis, it is a question of balance, the subject to which we now turn.

Balance 

19. Balancing between different values is often difficult, given the difficulty involved in identifying the proper weight that must attach to each individual value. At this juncture, we shall recall that, in striking the appropriate balance, it is incumbent upon us to consider the fact that “to a certain extent, a democratic society recognizes harm to religious feelings as an injury. Only in this manner will it be possible for different religious viewpoints to coexist. ” See HCJ 806/88 supra. [9] (Barak, J.)

The question is therefore whether the Minister’s decision reflects a reasonable balance between the relevant considerations. We shall recall that “reasonableness refers to weighing all the relevant considerations and attaching the proper weight.” Ganor supra. [16], at 513. This and more: “the very fact that the administrative authority took all the relevant considerations, and only those, into account is not sufficient to ensure the decision’s reasonableness. Even a decision that took all the relevant considerations into account shall be deemed unreasonable if it failed to attach the proper weight to the various factors.” HCJ 4267/93 A.M.I.T.I- Citizens for Efficient Government v. The Prime Minister [73], at 464.

From these statements, as well as from our analysis above, we see that, in reviewing the Minister’s decision, the Court must examine whether the solution chosen confers the appropriate weight on the central factor of transportation, which constitutes the fundamental normative consideration relevant to the arrangement before us.

In addition, it is incumbent upon us to evaluate whether the chosen solution is the product of a proper balance between the interests at stake. In so doing, we must examine whether the solution is a balanced one, capable of preventing infringements on certain interests, while ensuring that this does not come at the expense of interests lying on the other side of the debate. Thus, it is necessary to examine whether the solution adopted both prevents such inequality as would result from preferring one interest over the other, as “considering the feelings of A, at B’s expense, is tantamount to inequality: A will continue living the lifestyle of his choice, while B will be compelled to live in a manner that goes against his beliefs, in other words, he will be forced to endure religious coercion.” Meatrael supra. [6], at 501. In the final analysis, we must recall that “the matter is one that involves balancing legitimate interests related to closing or opening the street in question.” Baruch supra. [2], at 166-67 (Vitkon, J.).

The issue to which I will now turn is whether the Minister’s decision strikes the requisite balance.

20. In evaluating the solution for which the Minister opted, I feel that three fundamental matters regarding the reasonableness of the Minister’s decision must be emphasized. The first is the character and importance of Bar-Ilan Street as a main traffic route. Second, we must examine the harm to the local secular residents and to the rest of the public served by Bar-Ilan Street on the Sabbath. Third, we must examine the lack of any change in the objective data that would justify a change in a long-standing arrangement.

To my mind, these factors were not given the weight that they deserve. I shall now address them.

21. The road’s character and importance. Above, we dwelt at great length on the nature of Bar-Ilan Street. We saw that the street is public property, which remains at the public’s disposal. It is a road accommodating a significant amount of vehicles, including on Sabbaths, despite recent violent incidents disrupting the free-flow of traffic in the area. We have also seen that this road serves the population inhabiting Jerusalem’s largest neighborhoods. In effect, the street is the principal link between these neighborhoods. As such, the road is the main road for all those entering the city from outside, whose destination is one of Jerusalem’s northeastern neighborhoods. For some of these people, the Sabbath is the only day of the week when it is possible to visit Israel’s capital. It is a main road, constituting a chief traffic artery, not a local inner street. As the Traffic Controller suggested in his letter to the Minister of Transportation, “the Ministry of Transportation considers Bar-Ilan Street to be a main traffic artery, connecting Jerusalem’s northern neighborhoods to the city’s center and south, every day of the week.”

22. This fact is of utmost importance. In balancing, significant weight attaches to the issue of whether we are dealing with the private or public domain:

The interests of the observant population’s are quite weighty, perhaps even determinative, within the privacy of their own homes.  However, the further one travels from his home, and the closer one is to touching the public domain—or on  another’s private domain—or when one’s request involves his fellows’ rights, so too will the strength of one’s interests be weakened, as it will be balanced against the rights of his neighbor, in the latter’s public or private realm.

Meatrael supra. [6] at 508 (Cheshin, J.). Justice Cheshin clarified that “protection may be extended to the observant individual’s ‘extended’ household.” Id. However, as far as we broaden the scope of the “private domain,” it would still not include a public road like Bar-Ilan. For our purposes, we are not dealing with an inner street, connecting other local neighborhood streets. Instead, we are dealing with a main street, serving a very large population and a significant number of vehicles daily, including on the Sabbath. A road such as this cannot be considered the “private” domain of the community residing in its vicinity, nor can this community dictate its use. It belongs to the public at large. As such, it cannot be expropriated from the public, either in whole or in part.

23. This was the policy adopted by the Ministry of Transportation. We have already seen that the Ministry has decided that traffic arrangements on Bar-Ilan Street and similar streets shall be determined by the Traffic Controller, not the Local Council. This teaches us that roads such as these are not considered to be part of the private domain, even broadly defined. Rather, they are deemed to be public property. Consequently, a national traffic authority, rather then a local one, was appointed to preside over it.

Moreover, from the outset, the Ministry’s policy regarding traffic arrangements reflected this distinction between the private and public realm, as implied from the Traffic Controller’s statements at the meeting held on August 15, 1996. On that occasion, the Controller addressed the policy of Sabbath street closures, asserting: “to the best of my knowledge, no other traffic arteries are closed…as a rule, traffic arteries must remain open. The act of closing a traffic artery is most drastic.” See page 12 of the meeting’s protocol.

I am convinced that this policy is appropriate. In my opinion, it reflects the proper balance between the needs of all communities. The neighborhood's inner or side streets, situated alongside Bar-Ilan, are closed to traffic on Sabbaths and holidays throughout the day. This is appropriate. The population residing in the vicinity of these streets is essentially Ultra-Orthodox. Under these circumstances, the value of preventing offensive to religious feelings prevails. In this manner, the religious community’s needs, its sensibilities and lifestyle are to be taken into account. Closing these side streets, while allowing the main street—on which many wish to travel on Sabbaths—to remain open, is a compromise between the needs of Jerusalem’s secular community, including the needs of those coming to visit the capital from every corner of the country, and the needs of Bar-Ilan’s Ultra-Orthodox public. We must not forget that “in a society that includes those of different faiths, as well as those with no faith at all, it is only appropriate that mutual understanding reign. A pluralistic society such as ours requires mutual tolerance. A compromise is necessary.” HCJ 6111/94 supra. [71], at 105. The emphasis is on the mutuality of the tolerance. With all the consideration that the religious feelings of the local residents warrant, this factor is not the only one to be taken into account; a compromise is necessary. It is also necessary that there be understanding and tolerance on the part of the Ultra-Orthodox for the needs of those who does not observe the Sabbath and for whom the use of Bar-Ilan Street is essential.

Such a compromise reflects the fact that consideration of the needs of the Ultra-Orthodox community has its limits. These limits are premised on the imperative to also consider the needs of another community, one which shares Jerusalem with the Ultra-Orthodox. Consideration of these needs demands that main streets, like Bar-Ilan, remain open. In this manner, the wishes of the observant community are properly recognized, while the nature of the road in question—an important traffic artery—is also taken into account.

To my mind, and in this I disagree with my colleague, the President, this balance in no way deviates from the “threshold of tolerance” required of the Ultra-Orthodox population in a pluralistic and democratic society such as ours. With no disrespect intended towards the genuineness of the latter’s feelings, the proper balance between the interests does not allow the harm to these feelings to outweigh traffic considerations and the interest in keeping Bar-Ilan Street open to the public at large. This and more: harm to religious feelings cannot prevail over every individual’s basic freedom to travel freely in the public realm, in accordance with his wishes, where the place in question was intended for public use.

24. In order to highlight the street’s importance, it is appropriate to revisit the Traffic Controller’s statements in his letter to the Mayor of Jerusalem, Mr. Olmert, dated November 29, 1994. The letter in question, as noted, was written on the heels of “media publications and incidents on the street,” with the intention that discussions regarding the proposed closure of Bar-Ilan Street to traffic on Sabbaths take place. The Controller was aware of the Ultra-Orthodox demands to close the street to traffic on Sabbaths. In this context, the Controller suspected that Jerusalem’s City Council would decide to close the street, which would require his approval. The Controller decided to pre-empt such an attempt and apprise Mr. Olmert of his position. The following are the contents of the Controller’s letter:

The Ministry of Transportation considers Bar-Ilan Street to be a main traffic artery, connecting Jerusalem’s northern neighborhoods to the city’s center and south, every day of the week. It would be unthinkable to close this route to traffic on the Sabbath or on any other day. Arrangements to close streets on the Sabbath are only feasible on local streets, following a careful examination, and certainly not on important, central arteries.

This is a clear position, premised on the importance of Bar-Ilan Street.

After the Traffic Controller wrote to the Mayor and received a response, he revisited the matter in a second letter to the Mayor dated January, 3 1995. In this second letter, he highlighted the need to secure the Central Traffic Authority’s consent to Bar-Ilan Street’s closure:

The following is a response to your letter attached herein.

In July of 1992, in accordance with regulation 18(b) of the Traffic Regulations-1961, the Central Traffic Authority determined the areas that fell within the jurisdiction of the City of Jerusalem, including the authority of the Local Traffic Authority to prescribe traffic arrangements.

A map marking the roads that were removed from the Local Traffic Authority’s jurisdiction, by virtue of the same Regulation, is attached to this notice. Bar-Ilan Street is among those roads removed from the Local Authority’s jurisdiction.

As such, Bar-Ilan Street is subject to the provisions of Regulation 18(c) of the Traffic Regulations-1961. Any traffic arrangement touching on Bar-Ilan, particularly one envisioning its closure, must be approved by the Central Traffic Authority.

As I have already stated in my letter dated November 29, 1994, I will not agree to Bar-Ilan Street’s closure on Sabbaths and holidays, or on any other day.

These two letters set forth a clear and unequivocal position, according to which the Traffic Controller would not consent to the closure, as required by Regulation 18(c) of the Traffic Regulations. 

During oral arguments August 15, 1996, the Traffic Controller was questioned regarding the change in his position, after having decided to close Bar-Ilan Street at certain hours on Sabbaths and Jewish holidays. He did not reiterate Bar-Ilan’s importance. Rather, he stated that, following a conversation with the Minister of Transportation, it became clear to him that his original position failed to give proper weight to the harm that Sabbath traffic on Bar-Ilan Street caused the local residents. I will not expand on the impression that the Controller’s words made on this Court. Suffice it to say that his statements were not convincing. Indeed, his views regarding Bar-Ilan’s importance on Sabbaths and festivals—in terms of transportation—did not change. As noted in his letter dated November 29, 1994, the Controller was already well aware of the harm caused to the religious sensibilities of the local Ultra-Orthodox residents. It seems that the only factor that precipitated the Controller’s sudden decision to consent to Bar-Ilan’s partial closure on Sabbaths was his willingness to conform to the opinion of his supervisor, the Minister of Transportation. There was no change in the relevant considerations that would justify such a change in position.

25. The Local Secular Population. No one disagrees that the majority of residents living on and around Bar-Ilan Street are religious. Likewise, all agree that a local secular population does exist, whereas detailed data as to its precise size has not been set forth. Nevertheless, it is clear that its size is not negligible.

Petition HCJ 5090/96, brought in part by local secular residents, argues that “numerous secular residents still live in the area, including many non-observant elderly couples who, on Sabbaths and festivals, are visited by their children,” see para. 15 of the brief. Furthermore, this petition submitted, see para. 26, that “many of the local residents, being elderly, are not able to walk long distances and will therefore prefer to stay home [if Bar-Ilan is closed-off]. This would be tantamount to de facto house arrest for all those who do not believe that using one’s vehicle on the Sabbath constitutes a desecration of the Sabbath."

For our purposes, it is sufficient to presume that closing Bar-Ilan Street on Sabbaths and Jewish holidays will not only cut off traffic from one end of the city to the other, but will also block passage to those who, residing on and around Bar-Ilan Street, use the road to reach their homes and those of their loved ones.

26. Petition 5090/96 describes the distress experienced by two of the secular residents living in the area. Petitioner number three, Mrs. Avinezer, resides on Tzefania Street, a street adjacent to Bar-Ilan, and works at Hadassa-Ein Karem Hospital. Her work requires her to be on standby in case of a terrorist attack. As most of Tzefania Street's residents are Ultra-Orthodox, the street is closed on Sabbath, and petitioner number three, on weekends, is compelled to park her vehicle approximately three hundred meters from her home. Closing Bar-Ilan Street as well would force petitioner to park her vehicle over a kilometer away from her house.

Petitioner contends that her work sometimes requires her to reach the hospital as soon as possible. Thus, the petitioner fears that compelling her to park at a significant distance from her home “will prevent her from continuing in her position as terrorist attack standby personnel, while reducing the hospital’s willingness to employ her for this important position.”

Moreover, the petitioner fears that, in addition to interfering with her work, Bar-Ilan’s closure will disrupt her personal life as well. The petitioner is a single woman who eats her Friday night dinner and Sabbath lunch at her brother’s family’s home in Jerusalem.  Were she compelled to park her car about a kilometer away from her residence, as per the Minister’s proposed plan, she argues that she would have to “march over five kilometers on Sabbaths in order to continue with her regular routine…this would be particularly difficult in seasons where the weather would render this even more difficult.”

27. Let us proceed to the case of petitioner number four in HCJ 5090/96, Mr. Gabay. Mr. Gabay is a disabled IDF veteran, who has difficulty walking. His parents live on David Street, which crosses Bar-Ilan Street, in the heart of the area closed to traffic. He and his family customarily visit them, at times on Fridays and other time on the Sabbath, during the hours that the Minister decided to close the street to traffic. Petitioner argues that enforcing this arrangement will prevent him “from seeing his parents on Sabbaths and holidays, or, in the alternative, will make it quite difficult for them to meet, causing severe physical and emotional suffering.” See para. 24 of the petition.

28. As noted, the Court was not presented with any detailed information regarding the number of additional secular residents living in the area, and the manner in which the Minister’s decision is liable to affect them and their families. It was argued that a significant number of the secular residents were afraid to voice their opinions. These examples here, in and of themselves, point to the concrete possibility that harm will come to these residents. They point to a serious threat to their quality of life, to their ability to properly lead their lives and perhaps even to their occupations. It would not be inaccurate to say that the above harm is made particularly severe by the fact that these petitioners have not been given the option to be heard. According to the material before the Court, the Minister failed to turn his attention to their plight.

29. It seems to me that this failure to address the issues pertaining to the secular residents constitutes a defect in the Minister’s decision. Indeed, the positions of petitioners three and four, both as individuals and as members of the relevant group to which they belong, were not given any weight.

  I am therefore convinced that proper weight, and indeed, to my mind, significant weight, should have been given to the issues raised by the secular residents living on and around Bar-Ilan Street. This, however, was not done. There is no mention of the magnitude of this problem in either of the respondents’ briefs.

The only response found in these briefs is that the relevant balance is to be struck between two communities. I do not find this response convincing. It implies that Bar-Ilan’s secular residents form part of a more or less homogenous group, whose needs were taken into account by the Minister. This however is not the case. In his decision, the Minister considered the situation of the secular members of the public who use Bar-Ilan Street in order to get from one end of Jerusalem to the other and the alternatives available to them. He did not, however, distinguish between the secular public generally and the local secular residents, living on and around Bar-Ilan Street. The latter have additional, specific needs. Moreover, the harm to these residents is intensified in light of the fact that, due to the closure of most of the streets adjacent to it, Bar-Ilan is the only road open to traffic on Sabbaths and holidays, in the area in question.

Nevertheless, the fact that the street will be closed only partially, and only during particular hours that are specified in advance, can be seen as a mitigating factor. This is to say that local residents, and those wishing to reach them, have but to plan in advance. This however does not solve the problems associated with unanticipated trips, which are at times necessary. Nor does it solve the problem of the complications to the Sabbath routines of the local secular residents, and it fails to mitigate the fact that their freedom of movement is severely infringed as a result of the Minister’s decision.

30. The Absence of Any Change in the Original Conditions. Acting President, Justice Landau pointed out in Baruch supra., [2] at 166, that “we are dealing with interests of various segments of the population, whose characteristics may change. We will not do justice by weighing interests that no longer reflect the current situation.” A change in circumstances is likely to justify altering the existing arrangements, even with respect to matters touching on freedom of religion and worship.

This having been said, we must bear in mind that “extending protection to the feelings of one part of the population is liable to infringe on the feelings of another part.” Meatrael supra. [6], at 500. Indeed, the fact that we are dealing with the subject of a sharp public controversy cannot be ignored. Moreover, we must remember that deciding such cases involves determining the character of the area and the city and, at times, even the character of the country. The case here has potential ramifications on the character of Israel’s capital, Jerusalem, whose character is important to each and every Israeli citizen.

Furthermore, we must also recall that the decision to be rendered does not deal with a minor change. Instead, at issue is a sharp and drastic change to Sabbath traffic arrangements. Let us remember that, according to the Traffic Controller’s statements, the policy of the Ministry of Transportation is that roads of this nature should remain open on Sabbaths. See p. 12 of the meeting protocol dated August 15, 1996. The Minister’s decision, however, seems to indicate that this policy has been abandoned. To a certain extent, his decision has the effect of creating a new norm to balance the interests of the various communities involved.

Absent social consensus on these issues, any deviation from the existing arrangement involves harming one of the sides to this public debate. At times, harm of this sort may be justified under the circumstances. However, a decision to depart from the existing arrangements must be anchored in particularly well-grounded considerations. It must express a basic and substantive transformation in the facts on the ground. 

31. Did a substantive change occur in the area in the last few years? The material before us suggests that the answer is in the negative. Indeed, the composition of the local population has not changed of late. For years, the great majority of the street’s residents have been Ultra-Orthodox.  For years, the street’s character was what it is today. For years, alternative routes to Bar-Ilan have existed.

Even the Traffic Controller, who serves as the supreme professional authority for these purposes, cannot identify any change in the facts which could have sparked a change in his position. He attributes his drastic change to the fact that “when I asserted that the street was not to be closed I failed to give the proper weight to the depth of harm that motor traffic on Sabbath on Bar-Ilan Street causes the local Ultra-Orthodox residents.” See para. 12 of the Controller’s affidavit dated 12.7.1996. I have already addressed the change in the Controller’s position. I merely wish to emphasize that, even according to the Controller himself, there has been no change in the facts on the ground.

It is not the existence of alternate routes that sparked the authority’s change in position. We have seen that in November of 1994 the Traffic Controller was convinced that it would be improper, from a professional, traffic-related perspective, to close Bar-Ilan on Sabbaths and holidays, despite the existence of alternate roads. It would not be excessive to repeat his statements to this effect, according to which:

The Ministry of Transportation considers Bar-Ilan Street to be a main traffic artery, connecting Jerusalem’s northern neighborhoods to the city’s center and south, every day of the week. It would be unthinkable to close this route to traffic on the Sabbath or on any other day. Arrangements to close streets on the Sabbath are only feasible on local streets, following a careful examination, and certainly not on important, central arteries.

This position, as the Traffic Controller noted in his affidavit of July 29, 1996, is anchored in “clear traffic-related considerations.” Nothing has changed from this point of view. If so, what occurred that would justify a change in the authorities’ position? What caused the Traffic Controller, who staunchly opposed the idea of closing Bar-Ilan in November of 1994, to support the closure less than two years later? What caused the Minister of Transportation, Mr. Levy, to adopt a decision so different from that of his predecessor, Minister Yisrael Keisar, who only in July of 1996 determined that “the Traffic Controller’s professional opinion is that the road is a main traffic artery not to be closed on the Sabbath” and that “the decision will be made on a professional basis?” See appendix 8 of the response brief of respondents 3-6 in HCJ 5016/96, summarizing the meeting between the Minister and the residents of Bar-Ilan Street on January 10, 1996. 

32. The Tzameret Committee, which addressed the developments in the area, noted in page 33 of its report:

After the Six-Day War, Bar-Ilan Street evolved from a peripheral street at the northwestern part of the city, to a road connecting Jerusalem’s newly built Jewish neighborhoods.… The area has become the heart of the Ultra-Orthodox concentration on both sides of Bar-Ilan Street. Although demonstrations by Ultra-Orthodox groups on Bar-Ilan Street, all the way back to 1988, can be considered a turning point in the debate, the street's one-time closure in honor of the Satmar Rebbe’s visit in 1994 is what led to increased efforts among Ultra-Orthodox factions to close the street to traffic.

The municipal elections of 1993, which granted the Ultra-Orthodox community decisive influence, gave rise to expectations in that community that the street would in fact be closed to traffic on the Sabbath. Moreover, the existence of alternate routes further strengthened the feeling that the secular public should give in to the demands of the local Ultra-Orthodox residents and refrain from traveling in their midst.

The Traffic Controller explained his change of heart in terms of the magnitude of the harm caused the Ultra-Orthodox residents. However, there is no reasonable basis for presuming that any change has occurred in the intensity of this harm over the years. The desecration of the Sabbath involved in travel has always existed. The Ultra-Orthodox residents' position regarding the desecration of the Sabbath is well-known, and has not changed over the years. Nor was there a change in the size of the local Ultra-Orthodox community. As such, it is difficult to suppose that the Traffic Controller was not aware that the Sabbath traffic gravely offends the local residents’ sensibilities and lifestyle. Indeed, it is no secret that streets in different parts of the country, particularly those adjacent to Bar-Ilan, are closed for precisely this reason.

33. Hence, the change must be found somewhere else. It is indeed quite difficult to ignore the impression that the true change lies in the Ultra-Orthodox community's unwillingness to accept genuine mutual compromise. In addition, a clear escalation is apparent in the tactics used by quite a few members of the Ultra-Orthodox community in order to force a change in the situation, including the use of threats and violence. Moreover, there has also been a change in the extent of this community's political power, both locally in Jerusalem and nationally.

Violence does not constitute a proper consideration worthy of being attached any weight, and this has been repeatedly confirmed by our jurisprudence. See, for instance, President Landau's statements in HCJ 512/81 supra, [65], at 543, insisting that it is “absolutely forbidden” to take violence into account. From this perspective, the case at bar is not dissimilar to HCJ 549/75 supra. [40], which involved the Film and Play Review Board's decision to sanction the screening of the film “Night Watcher” in theatres. The Board revoked this permission after a second deliberation, and the film was barred. In his opinion, Justice Vitkon addressed the decision to abandon the original decision, stating, at 764:

In my opinion, it is improper to deviate from the original conclusions simply because of the inability of certain factions to reconcile themselves with the Board's decision. Is the Board not aware that with every sensitive issue—whether sexuality, nudity, violence or offense to religious sensibilities—there will always be a minority, or perhaps even a majority, who will prefer that such a film not be publicly screened? However, he who believes that such a film should nonetheless be presented, is by the same token convinced that these objections, although sincere, should not be taken into account. This is the "other side" of mutual tolerance required in pluralist societies. If these objections give rise to the possibility of violent outbursts, this is a matter for the police to deal with in order to protect the public and preserve law and order. It is not, however, a consideration that should in any way influence a Board member to censor a film which, in his original opinion, was worthy of being screened.

To this, I will also add that developments regarding the Ultra-Orthodox community's standing in Jerusalem and its political clout cannot be allowed to influence the proper balance here. The proper balance must consider the facts on the ground and the local population's composition. It must take into account the road's size and importance. It cannot be influenced by the political clout of those who do not live adjacent to Bar-Ilan Street.

34. I summarize: none of the data presented before us can possibly justify deviating from the arrangement customary on Bar-Ilan Street for years now. No relevant change in the situation on the ground was pointed out. No consideration liable to prevail over considerations of transportation was shown. Moreover, I reiterate: the fact that the Minister is a religious, observant man is not a factor or reason that can justify closing Bar-Ilan Street on the Sabbath.

35(a). We have described the essence of the debate. We have examined the Minister’s decision and the applicable standards. We have surveyed the defects in the Minister’s exercise of discretion. We conclude that, according to the proper standards, the Minister’s decision does not reflect a reasonable exercise of the authority vested in him. Indeed, the Minister failed to take into account all the relevant considerations and did not give the proper weight to all factors.

(b) It seems to me that the Minister did not give proper weight to Bar-Ilan Street’s nature and character. His decision suggests that it is not clear whether he considered all the relevant data regarding the scope of traffic on that street. In any event, this data is not set out in the Minister’s brief. One way or the other, the Minister did not consider the fact that he is dealing with a main traffic artery, which cannot be viewed as a “private domain,” belonging to the Ultra-Orthodox community living alongside it. As such, the Minister did not give proper weight to positions of professionals charged with the matter—professionals who originally claimed that, from a traffic perspective, Bar-Ilan must necessarily remain open on Sabbaths and Jewish holidays.

(c) The Minister took into account data indicating that those seeking to reach Jerusalem’s northern neighborhoods from the entrance to the city will be able to reach the northeastern neighborhoods even subsequent to Bar-Ilan’s closure. According to this data, closing the street will lengthen the travel time between the city’s entrance to the Sanhedria Intersection by 1.5 km, or two minutes, via Route no. Four. The residents of western neighborhoods, such as Beit HaKarem and Yiryat Yovel would also have access to Route no. 4. The Traffic Controller further notes that the northern neighborhoods’ residents have the option of directly exiting the city via Route no. Four to Tel-Aviv or via the Modi’in Road (Route no. 443). As for the additional time such a detour would take, the Tzameret Report suggests that it is similar to the extra time it would take to reach the city’s northwest. See the Tzameret Committee Report, at 166.

I believe it is difficult to see these facts as changing the balance in the matter before us.

First, this description is no solution for those seeking to reach the Bar-Ilan Street area on Sabbaths, neither for those who live there nor for those who wish to visit the local residents.

Second, I am not convinced that the extra travel-time is negligible. Thus, in Baruch [2], a detour of two and a half additional kilometers was understood by Acting President, Justice Landau as a factor acting against allowing the Traffic Controller’s decision in that matter to stand. This was also Justice Vitkon’s view. Nevertheless, both these judges upheld the decision, essentially because the resulting harm was limited to no more than fifty vehicles. Id. at 166. Needless to say, the matter before us is dramatically different. As noted, the road in question in central to Israel’s capital, serving not only Jerusalem’s residents but all those visiting the city. In light of the above, I do not believe that the availability of Route no. Four renders the Minister’s solution of choice palatable from a traffic perspective. We recall that, despite the existence of Route no. Four, the Controller’s professional opinion, from the end of 1994 to March of 1996, was that Bar-Ilan should not be closed.

Third, in HCJ 5090/96, the petitioners contend that the detour, Route no. Four, “passes through Shuafat Ridge, a recently built Ultra-Orthodox neighborhood, and adjacent to the Ramot neighborhood, itself containing a significant number of Ultra-Orthodox residents. It is no secret that the Ultra-Orthodox residents of Shuafat Ridge and Ramot also desire this street’s closure.” See para. 19 of the petition. To this we should add that the area where Route no. Four connects with the Shmuel HaNavi Intersection is also populated by Ultra-Orthodox residents. With this in mind, it is difficult to see the detour via Route no. Four as offering a reasonable alternative to Bar-Ilan’s users.

Indeed, it would appear that rerouting traffic to Route no. Four merely redirects the harm from one street's (Bar-Ilan) Ultra-Orthodox community to that of another, the alternate route, which is equally Ultra-Orthodox. Moreover, rerouting Sabbath traffic to the alternate route intensifies the desecration of the Sabbath, by increasing the requisite travel time.

(d) The Minister decided that Bar-Ilan Street would be closed during certain hours on Sabbaths and Jewish holidays. He imposed an intermittent closure of the street to traffic on those days or, in the colorful words of Justice Cheshin, a “zebra” like closure. Thus, for part of the Sabbath, the street would remain open, while it would be closed for the other. Part white, part black, with every person deciding what they feel is which. At first glance, this approach seems to consider the needs of those who wish to use the road on the Sabbath. Upon closer examination, however, it becomes apparent that this arrangement is riddled with difficulties. Knowing that the road will be closed during certain hours, motorists will fear not being able to reach it in time, which will undoubtedly deter many of them from arriving in the first place. Furthermore, the Minister decided that the road will be closed for a period following the entrance of the Sabbath and for a period prior to its end. These times, however, vary with the calendar, and not all are familiar with them. As such, a partial closure is liable to become quasi-absolute.

Beyond this, there is an additional practical difficulty. The material submitted to us suggests that the road will turn into a pedestrian walkway of sorts for the Ultra-Orthodox during the hours that it is closed to traffic. In light of the members of the local Ultra-Orthodox community’s sworn testimony, detailing their staunch belief that the street should remain closed throughout the Sabbath, it is quite difficult to see how the road can be safely cleared of pedestrian traffic so as to allow motorists to use it during the times reserved for such use. This fact too is liable to effectively turn the Minister’s decision to one that brings Sabbath motor traffic on Bar-Ilan Street to an absolute halt.

(e) And so, I believe that as things stand, the Minister’s decision to close the street, even partially, in order to spare the religious sensibilities of the Ultra-Orthodox public, fails to reflect a reasonable balance between the relevant considerations. In truth, the harm to the religious public’s sensibilities is beyond question. However it seems to me that, under the circumstances, and in light of other factors, this harm does not justify the Minister’s decision to close the street. To my mind, the Minister’s decision fails to strike a reasonable compromise between the various interests. This being the case, I am convinced that the decision is unreasonable and must be struck down.

36. My conclusion is not altered by the recommendations of the committees that addressed the matter of Sabbath traffic on Bar-Ilan Street, nor by our case law on similar issues. I will now turn to briefly examine both these issues.

The Committees

37. The first committee to broach the matter was headed by Mr. Elazar Sturm. This committee was set up by the Mayor of Jerusalem in December of 1994 to examine traffic arrangements in Jerusalem. The Committee’s recommendations were published in 1995, and touched on a number of Jerusalem streets, including Bar-Ilan. The Committee recommended that Bar-Ilan be closed to traffic on days of rest during prayer times only—105 minutes on the Sabbath eve, four hours on Sabbath morning, and 105 minutes before the end of the Sabbath.

In retrospect, it became clear that this Committee was misled by inaccurate data regarding the volume of traffic on the road. Thus, appendix 9 to the respondents’ response in HCJ 5016/96, which summarizes the meeting that took place on February 13, 1996 at the Minister’s office, with the participation of the Mayor of Jerusalem and Mr. Sturm, indicates that the latter believed that there is a decrease in the volume of traffic on the Sabbath—from 15,000 vehicles to only 3,500. Moreover, he was under the impression that only 700 vehicles would be affected by the street’s closure during prayer times. In addition, the Traffic Controller’s affidavit of July 29, 1996 indicates that the Sturm Committee felt that traffic on Bar-Ilan Street on Sabbaths amounted to only 12% of weekday traffic.

38. Comparing this data with the data that surfaced following a subsequent professional examination reveals that the original data was erroneous. It appears that the volume of traffic weekdays stands at about 50,000 vehicles—over three times the data presented before the Sturm Committee. On Sabbaths, traffic on Bar-Ilan stands at over 13,000 vehicles, once again three times the figure presented to the Committee. That figure constitutes 28% of weekday traffic, not 12% as the Sturm Committee believed. Over 5,000 vehicles pass through Bar-Ilan Street during prayer times on the Sabbath—over seven times more than the Sturm Committee had estimated! As such, the Sturm Committee’s conclusions cannot be seen as carrying any weight for our purposes. These conclusions are based on faulty and unreliable data.

39. The second committee to deal with the issues at bar was the committee chaired by Dr. Tzvi Tzameret (“the Tzameret Committee”). This committee was set up on August 27, 1996, on the heels of the hearings of these petitions. The committee report stated that:

Taking into account the needs of the Ultra-Orthodox community, we hereby recommend adopting the Sturm Committee’s decision to close Bar-Ilan Street to traffic on Sabbath and holidays during prayer times, provided arrangements are made to ensure the mobility of the secular public in accordance with its needs, within the framework of the existing status quo.

This decision was adopted by a majority of five Committee members, with one abstaining and two opposing. A short time thereafter, however, it became clear that the parties were substantially divided as to the proper interpretation of the recommendation. Three of the members who supported the decision, Professor Eliezer Schweid, Professor Galia Golan and Dr. Tzvi Tzameret, stated that they had supported the proposal based on the understanding that it was intended to make way for the institution of public transportation in Jerusalem on Sabbaths. In contrast, one of the proposal’s other supporters, Professor Daniel Shperber, rejected this interpretation, saying that the expression “status quo” was meant to recognize every secular person’s right to desecrate the Sabbath, but to not recommend instituting public transportation on that day.

40. As such, the committee's recommendations cannot be perceived as truly reflecting the views of the actual majority of Committee members.  In effect, no consensus had crystallized among the members as to the possibility of closing Bar-Ilan on Sabbaths. As such, the Minister cannot rely on this Committee report, and it would appear that of this he is aware. In his brief, the Minister stated that, in light of the statements of three of the Committee members, the recommendation does not reflect “a social consensus between the various segments of the public regarding Sabbath traffic.” See paragraph 22. In a similar vein, the Minister made the following statements in the Knesset (on November 6, 1996, sitting 35) (appendix 2 to the additional affidavit from November 13, 1996 in HCJ 5025/96) “I do not wish to rely on the Tzameret Committee’s report at this juncture as its members each have their own interpretation."

To this I will add that the committee's recommendations are not based on a normative solution to the problem of Bar-Ilan Street. Rather, it is a social compromise, the fruit of negotiations conducted among the committee members. Moreover, the other matter discussed by the committee—the issue of public transportation on the Sabbath—is unrelated to the question of Bar-Ilan Street’s closure, except according to three of the Committee members. It gives rise to problems of a completely different character. Thus, the committee's recommendations cannot be seen as a normative source to support the reasonableness of the Minister’s decision.

Case Law

41. My conclusions remain unaltered even in view of this Court’s previous rulings in which it refrained from interfering with the authority’s decision to close other roads.

         (1)   The League [1] case dealt with the Traffic Controller’s decision to close segments of Jerusalem’s King George Street and Shmuel Hanagid Street, adjacent to the Yeshurun Synagogue, to traffic on Sabbaths and Jewish holidays. The road segments were closed during the morning hours because “motor traffic on the streets, on festivals and Sabbaths, disturbs the concentration of the worshippers of the Yeshurun synagogue, preventing them from praying comfortably.” Id. at 2667. To this end, it was taken into account that “the Yeshurun Synagogue is a large, central synagogue in Jerusalem, serving a significant community of worshippers. Moreover, the alternative to motorists would only require them to travel an additional 300 meters.” Id. 

The Court held that the Traffic Controller was authorized to take these considerations into account, despite the fact that the factor in question was of a religious character. In its judgment, the Court considered the significant disturbance caused to the large community of worshippers and the fact that motorists would only have to travel an additional 300 meters. In that situation, the Court held that an appropriate balance between the conflicting interests had been struck.

I do not feel that that decision has any influence on the result to be reached here. The street in that instance was not a central traffic artery like Bar-Ilan. Nor did that matter deal with the harm to the residents living in the segments to be closed. We will recall that the balance in the case before us must be struck in accordance with the concrete circumstances of the matter, as this Court has held, Id. at 2668:

The Central Traffic Authority is under a duty to examine each concrete case according to its special circumstances, taking into account each interest likely to be affected by the street closure, for better or worse. In the end, the problem is one of degree and extent.

Having found that the circumstances here are substantively different from the League [1] case, it is clear that the conclusion reached by the Court there is not binding here. To this I will add that, in contrast to the League [1] case, the matter of synagogues was not a central consideration in this instance. Advocate Mandel, learned counsel for the Minister and Traffic Controller, submitted that her client, the Minister, did not attach any significant weight to those synagogues along Bar-Ilan Street:

While there may also be a few synagogues along Bar-Ilan Street, priority was given to allowing the religious population to live an observant lifestyle. (protocol of the hearing of January 12, 1996, at 5).

(B) The Baruch [2] case involved the Traffic Controller’s decision to close a 300 meter segment of HaShomer street in Bnei Brak to traffic on Sabbaths and Jewish holidays. The road in question was “within an Ultra-Orthodox community, on both sides.” Id., at 161. One of the two Ultra-Orthodox neighborhoods adjacent to the road had been only recently built. The road forming the subject of controversy connected two main roads—Geha Road and Jabotinsky Drive. Getting around the closed segment involved traveling 2.5 additional kilometers.

The Court upheld that decision, with the majority of justices emphasizing that very few members of the secular public were likely to be harmed. Acting President Landau pointed out that, while the decision restricted motor traffic on Sabbath around the clock, and required motorists to travel an additional 2.5 kilometers, the closure involved “discomfort to only a very limited segment of the public, the owners of only about fifty private vehicles…this as measured against disturbing the Sabbath rest of a large population in what is the heart of the of the Ultra-Orthodox community." Id. at 165. In a similar vein, Justice Vitkon pointed out that “the number of local residents wishing to see the street closed on Sabbaths and festivals far outweighs the few interested in protecting their freedom of movement, and even these will not be denied that freedom but only have it minimally restricted.” Id. at 167. Justice Etzioni there limited himself to a general comment, and stated that  the Court is not to interfere with the Traffic Controller’s decision, as the latter “issued the order only after seriously weighing several factors, taking into account all the interests and data respecting the locals, particularly in light of the recommendations of the public committee” Id.

This description clearly reveals that the central factor in the Court’s decision was the negligible size of the secular public whose freedom of movement was affected. Under the circumstances, the Court upheld the decision to close the street to traffic on the Sabbath. As described above, the situation before us is not at all similar to the situation there. We are dealing with a main road, which connects entire parts of Jerusalem to each other. How can a main road such as Bar-Ilan be seriously compared to a road serving a mere fifty people? As we have seen, the number of motorists affected is a crucial issue in the case here.

42. In light of the two decisions cited above, the position of the Minister of Transportation here represents a dramatic change. Upholding the Minister’s decision in this case would be tantamount to setting a new norm, according to which it will be possible to close main traffic arteries, of significant importance, whenever the feelings of the local religious community are offended. As a result, the secular public will have no choice but to become accustomed to routine travel along detour routes on the Sabbath.

Truth be told, this matter requires us to weigh the circumstances pertaining to it, and it alone, as I have done in my judgment. Nonetheless, balancing the interests and considerations relevant to the dispute also sets a precedent for the future. This precedent will be relied on in other cases. The word of the Court is heard from afar. Thus, in proceeding to rule in this case, it is incumbent on us to take a holistic, contextual approach, aware of the road our that decisions pave. If in the past, we were asked to rely on the League [1] and Baruch [2] cases—cases where special circumstances justified Sabbath street closures—our decision in this instance will undoubtedly be cited in the future. If we uphold the position of the Minister in this instance, we will be adopting a new approach, according to which offense to religious feelings is primary and takes precedence over other factors. Thus, the tolerance and compromise required of Sabbath observers shall disappear and traveling along detours shall, by the same token, become routine. So it will be, even when the street to be closed on the Sabbath is a central traffic artery.  For obvious reasons, I shall bring no specific examples, but I do foresee the imminent closure of additional main roads in Jerusalem on the Sabbath, simply because the particulars relating to those roads are no different from the circumstances at bar.

Certainly, these statements are not meant as a warning against a “slippery slope,” not that that argument should be minimized. Rather, my fear is that the application of this new norm will have practical ramifications, today and certainly in the future, on Sabbath street closures in Jerusalem.

43. I feel it necessary to make an additional comment with regard to this matter. Among the conditions cited in the Minister’s decision was the condition that the entrance to Jerusalem remain open. The need for setting out a condition such as this, intended to calm those wishing to reach Jerusalem by car on Sabbaths and holidays, is in itself worrisome. Did anyone even fathom that the entrance to the city would actually be closed to traffic on Sabbaths? It is unthinkable that the entrance to Israel’s capital would be closed to the nation’s citizens, wishing to visit it on Sabbaths and holidays. The Minister’s decision seems to suggest that the entrance remaining open is somehow contingent on Bar-Ilan Street’s partial closure. I will not deny that I fear the dynamic likely to ensue in the wake of this decision.

44. I will now summarize my opinion. I have concluded that the Minister’s solution is unreasonable, and that this Court’s intervention is required. This conclusion is based on data specifically pertaining to Bar-Ilan Street, which shows that the road in question is central, and serves a large number of secular motorists on the Sabbath. As such, the harm to the sensibilities of the local Ultra-Orthodox residents must give way to the motorists’ freedom of movement.  

The Ministry of Transportation’s professional experts also based their opinions on the road’s centrality. I have deemed the Minister’s decision unreasonable by virtue of his failure to raise any concrete reason that could serve as a basis for his decision to deviate from his own professionals’ unequivocal opinion. Nor did he offer any basis supporting the substantial change in the previous long-standing arrangement. As such, I believe that no significant weight should attach to the argument that alternate routes are available, particularly since these professionals were well aware of this and, nonetheless, unequivocally opposed the closure.

My conclusion is also based on the fact that the harm caused to those members of the public wishing to reach the Bar-Ilan Street area on Sabbaths and holidays was not considered. Nor was proper weight attached to the harm caused the local secular residents, living on and around Bar-Ilan Street.

Based on these grounds, I have concluded that the Minister’s decision deviates from the parameters of reasonableness, and that this Court’s intervention is required.

Epilogue

45. It is no secret, and indeed self-evident from the material before us—especially from the report of the Tzameret Committee—that, prior to the adoption of the arrangement prescribed by the Traffic Controller on July 10,1996, serious disturbances occurred on Bar-Ilan Street. This problem was raised in an earlier petition. See HCJ/ 4712/96 Meretz-Democratic Israel Faction v. Commander of the Jerusalem District, Israel Police [74], which discussed the police decision not to permit a secular march in the area. There, Id. at 82, we cited the opinion of the Jerusalem District Police Commander:

In this last year, the police have been faced with attempts by Ultra-Orthodox elements to disturb the peace on the Sabbath on a weekly basis. Every Sabbath, hundreds of Ultra-Orthodox individuals gather to block the road. They call out, screaming at passing vehicles. At times, there are attempts to throw stones at passing vehicles, or to place roadblocks.

I revisit these statements, bearing in mind the respondents’ claims in support of the street’s closure. The response affidavit submitted by respondents numbers 7-16 in HCJ 5016/96, who are also respondents 8-17 in HCJ 5025/96 and respondents 6-15 in HCJ 5090/96, cites our decision in Baruch [2]. There, we stated that the Court will not strike down an otherwise proper arrangement merely because violence was used prior to its adoption. In the same breath, however, the respondents proceed to argue that the violence in the area must be “a determinative consideration regarding Bar-Ilan’s closure on Sabbaths and holidays.”

Likewise, respondents numbers 11-20 in HCJ 5016/96, who are also respondents in HCJ 12-21 HCJ 5025/96 and respondents 10-19 in HCJ 5090/96, argue that there is a serious fear that a failure to close Bar-Ilan “is liable to result in serious violent confrontations between extremists on both sides, thereby fanning the flames and dragging all of Jerusalem into an unending cycle of violence.” These respondents then turn to the “stormy demonstrations which occurred on Bar-Ilan Street in July-August of 1996, during which many police offices and protesters were injured.” Respondents submit that these events demand a rule in which freedom of movement takes a backseat in order to prevent near certain harm to the public order. 

It appears that these respondents are unfamiliar with the entirety of our statements in Baruch [2]. There, Id. at 165, we stated that, even though an otherwise proper arrangement will not be struck down because attempts to achieve this arrangement employed violence, a country of law and order simply cannot allow itself to be subject to violent pressure tactics:

In a law-abiding country such as ours, the physical pressure of illegal demonstrations and violent protests must never be allowed to impose solutions. Violence breeds violence and a country that allows such violence to succeed will destroy itself from within…

How should the Court, in retrospect, relate to the unfortunate fact that that the administrative arrangement in question was reached following violent outbursts? Clearly, no court would uphold an illegal arrangement for fear that striking it down will lead to renewed violence. On the other hand, nor would it strike down an otherwise proper and suitable arrangement merely because of the violent incidents that preceded it.

We are not dealing with a near certain probability of harm to the public order. Instead, our concern is with an overt threat to use violent tactics to disturb the public peace, the likes of which have already been employed, if the respondents’ demands regarding Bar-Ilan Street are not met.  Contrary to some of the respondents’ submissions, not only is this factor not a decisive factor in whether we should uphold the Minister’s decision, it is not even a proper one. It is no coincidence that the Minister failed to advance this particular argument in his briefs. As we noted in Baruch [2], this line of reasoning is an invitation to street violence to overwhelm the decision-making process. It is tantamount to placing a gun against the authorities’ forehead. It encourages anarchy to replace the rule of law. As such, this consideration may not be taken into account by a democratic regime.

46. This line of reasoning, advanced by respondents, brings me back to the statements cited by my colleague, Justice Turkel, in Meretz supra. [74], at 835. The statements were written by Professor David Hed, in The Limitations to Tolerance and Freedom: The Liberal Theory and the Struggle Against Kahanism, regarding tolerance:

Tolerance contains a paradox, as it requires that violence not be used against views and behavior that are considered unjustified. Why must we tolerate views and speech that seem completely erroneous and indeed loathsome?

In general, the answer to this question is that this is the only way to maintain a pluralistic society, in the absence of consensus regarding political, religious or moral values.

These statements are equally applicable here. In effect, mutual tolerance and compromise are the recipe for maintaining communal life in a society of many shades such as Israeli society, particularly in a place as complex as Jerusalem. The duty to be tolerant, however, is not a one-way street, to which only the secular community is subject. This duty also binds the Ultra-Orthodox community, who demand that their religious sensibilities and lifestyle be respected. Tolerance is equally required of this public, in the face of activities which may not be to their liking. Only by way of mutual tolerance will it be possible to attain true coexistence, which reflects an authentic compromise. To this effect, President Shamgar wrote in Hoffman supra. [39], at 354:

Tolerance and patience are not one-way norms, but broad, multi-dimensional imperatives…tolerance is not to be invoked only to collect rights, but rather, as a measure for recognizing one’s fellow’s entitlements…tolerance must be mutual. Shows of strength that surface from violent groups are not worthy of such tolerance.

In a similar vein, in CA 105/92 supra. [20], at 211, Justice Barak stated:

Tolerance is a central value in the public order. A democratic society seeking to fully maximize the wants of each individual will end up unable to satisfy even the minority of those aspirations. Ordered communal life is naturally premised on mutual forbearance and mutual tolerance.

An arrangement attained by force is no compromise. Nor does it reflect tolerance. Instead, it demonstrates power, and converts the decision-making process into a pattern of surrender to the use of violence. Justice Silberg highlighted the dangers of such a pattern in HCJ 155/60 supra. [64], at 1512:

Today, it is argued before us that the religious sector is likely to engage in demonstrations and protests; tomorrow, it will be argued that anti-religious sectors will run wild, disrupting the peace if the city gives in to their religious counterpart’s demands. This line of argument is a sharp and very dangerous sword, liable to result in the surrender of public institutions to the terror on the street.

To my dismay, it seems that the Minister’s decision here constitutes a very dangerous development. Prior to the decision, the objective facts in the Bar-Ilan Street area remained unchanged. The professional opinion of the authority charged with the matter was clearly and unequivocally against the closure. The only change was an increase in violent activity by the Ultra-Orthodox in the area; they have employed violent tactics, which have become routine and systematic.  It is against this backdrop that the Traffic Controller made his new decision.

Therein lies the danger. Numerous points of contention exist in the area of secular-religious relations, including the problem of traffic on Sabbaths and Jewish holidays. Thus, the fact that the decision here was the product of the violent pressure may signal that disturbing the peace is likely to pay off. As I noted in Meretz supra. [74], at 830 “surrendering to those threatening violence shows weakness and encourages additional threats and violence, until it becomes difficult to foresee when and under what circumstances such violence will cease.” It is incumbent on the authorities to break this vicious cycle, before it is too late. It must send a clear message that violence does not pay off.

47. My colleague, the President, believes that the violence on Bar-Ilan Street did not influence the Minister’s decision. My colleague distinguishes between cases in which violence actually caused the change in policy, and between cases where the violence served “only” to raise the matter, and bring it to the authority’s attention.

For me, this distinction is a difficult one. It is problematic in terms of the lesson that must be sent to those who believe that violence can help them achieve that which they could not obtain under ordinary circumstances.

To this end, it is important to emphasize exactly what occurred in the case before us. The Traffic Controller’s original position was that Bar-Ilan Street should not be closed, even partially. This was a reasonable position, which would not have required the Court’s intervention. This is also the view of my colleague, the President, see para. 104 of his opinion, who, in discussing the various options which the Minister was authorized to select, noted:

[h]e would have been authorized to decide to continue with the status quo. In other words, Bar-Ilan Street would have remained open to traffic. This would have been a proper

 

decision, striking an appropriate balance between the various considerations to be taken into account.

 

What happened in the case before us? Although the state of affairs on Bar-Ilan Street prior to the Minister’s decision was both reasonable and appropriate, and though all the relevant data remained unchanged, the surge of violence caused the issue to be “reconsidered.” Even if it could be said that the violence did no more than lead to the matter being reconsidered, this is sufficient for those who employed it. I fear that this violence will have far-reaching implications.

This being the case, if my opinion were to be accepted, the petitions in HCJ 5016/96, HCJ 5025/96 and HCJ 5090/96 would be upheld, and the orders nisi made absolute, and the Minister’s decision to partially close Bar-Ilan Street to traffic on Sabbaths and holidays would be declared null and void. I would reject the petition in 5434/96 which requested that Bar-Ilan Street be closed at all hours of the Sabbath and Jewish holidays.

 

I would not make any order for costs under the circumstances.

Justice M. Cheshin

Before me are the opinions of my colleagues, President Barak and Justice Or. Both are well-reasoned. Both are beautiful legal tapestries. In my heart I always knew which opinion I would prefer. Now, in my own words, I shall attempt to explain the reasons for my choice. 

The Minister’s Decision and the Sturm Committee Report

2. On one of the first days of November 1996, the Minister of Transportation, Rabbi Yitzhak Levy, decided to close Jerusalem’s Bar-Ilan Street to motor traffic on Sabbaths and Jewish holidays during specific hours, essentially prayer times. In the Minister’s own words:

Bar-Ilan Street will be closed to traffic on the Sabbath and Jewish festivals during prayer times, in accordance with the Sturm Committee’s recommendation.  For as long as the road is closed, Golda Meir Boulevard (The Ramot Road) shall remain open, as will the entrances to the city.  A lane for private vehicles shall also remain open on Jaffa St, on Sabbaths and Jewish festivals.

The closing times shall be from one and three quarter hours before the entry of the Sabbath, from one and three quarter hours prior to the termination of the Sabbath and between the hours 07.30 - 11.30 during the Sabbath day.

The Minister made this decision in his capacity as Traffic Controller, after assuming the Controller’s powers as per section 42 of the Basic Law: The Government. This decision is before the Court for review. The result turns on the effect of this decision, which we know was the Minister’s. In other words, while we know that the hand signing at the bottom of the decision was the Minister’s, the voice and authority behind it are the Traffic Controller’s. Indeed, the Traffic Controller remains Traffic Controller even if the Minister temporarily fills his shoes.  Needless to say, we are reviewing the Traffic Controller’s decision, the issue being whether the Traffic Controller was authorized to close a street to traffic for a significant period of time, every Sabbath, for what are essentially religious reasons.

3. The decision in question speaks for itself. The Minister of Transportation informed us that he decided to close Bar-Ilan Street to traffic “in accordance with the Sturm Committee’s recommendations.” The Minister decided to adopt the Sturm Committee’s recommendations as is, including the committee’s reasoning. Otherwise, why would he even raise the Sturm Committee’s name to begin with? The question we should be asking is what prompted the Minister to adopt the committee’s recommendations and why did he see fit to do so?

4. First and foremost, the Sturm Committee was not established by the Minister of Transportation, nor did it report to him. Rather, the committee was established by and reported to Mr. Ehud Olmert, the Mayor of Jerusalem. Its report was also presented before Jerusalem’s City Council, which served as a basis for the Council’s decision of October 30, 1995. What then prompted the Minister to pull out the Sturm Committee’s recommendations from the archives, dust them off and revive them? I have searched long and hard but failed to find a clear reason for this course of action.

Second, anyone reading the Sturm Committee’s report will learn that it can speak in vague generalities. For instance: “the Committee believes that the problem of Sabbath Traffic deeply divides Jerusalem’s population and that appropriate solutions must be found.” The Committee also stated that:

Testimony before the Committee reflected broad agreement and understanding among individuals of all social and political colors, religious and secular. There was agreement and understanding regarding requests to foster an atmosphere which conforms to the sensibilities of religious neighborhoods, while bearing in mind the needs of others

These statements are accurate and well known. However, to conclude from this that it is proper to close Bar-Ilan Street—as per the Sturm Committee’s recommendation and the Minister’s decision—is quite far-fetched. In effect, the Committee’s report bears no trace of any in-depth analysis dealing with Bar-Ilan Street’s closure, and the Committee’s majority failed to supply a proper response to Ya’acov Rubin’s minority opinion, which staunchly opposed Bar-Ilan Street’s closure. Rubin, himself a religious man, carefully reasoned his reservations regarding the majority’s recommendation, and I have yet to see or hear a worthy response to his dissent. 

Third, the Tzameret Committee’s report, unlike the Sturm Committee’s report, presents us with an in-depth and detailed analysis of Bar-Ilan Street’s closure. How is it that the Minister failed to consider the Tzameret Committee’s observations regarding Bar-Ilan Street?  While the Minister was authorized not to agree with the Tzameret Report, he was not permitted to ignore the findings of a committee that he himself appointed. How could he possibly have ignored these thought-out statements and go directly to the Sturm Committee’s report? Let us also recall that the Sturm Committee’s report was submitted two years prior to the Minister’s decision.

Fourth, as my colleague, Justice Or, noted in paragraphs 37 and 38 of his opinion, the Sturm Committee relied on erroneous data as to the volume of traffic on Bar-Ilan Street. While it would not be accurate to say that faulty data necessarily leads to erroneous conclusions, it is clearly improper to adopt the committee's findings without verifying the impact of the faulty data. To the best of our knowledge, no such verification was conducted.

Fifth, when the Sturm Committee’s report was submitted, the Traffic Controller opined that “it would be unthinkable to close Bar-Ilan to traffic on Sabbaths or on any other day.” It would stand to reason that the Minister, acting as Traffic Controller, would attempt to explain the statements made by the Traffic Controller two years prior. Unfortunately, no such explanation was offered.

5. Finally, while the Sturm Committee did recommend that particular streets be closed to traffic on the Sabbath and holidays, it further recommended that other streets not be closed. Indeed, the Committee proposed that Yam Suf Street remain open for “it serves a significant number of motorists from the Ramot Eshkol and Givat HaMivtar neighborhoods.”

These recommendations were presented to Jerusalem’s City Council on October 30, 1995. In its decision regarding Bar-Ilan Street, the Council held that it lacked the authority to order Bar-Ilan’s closure—“The Jerusalem City Council cannot close Bar-Ilan Street to traffic on Sabbaths and Jewish holidays.” As for Yam Suf Street, the City Council decided to close it partially, without explaining why it saw fit to stray from the Sturm Committee’s recommendations. From that very day, Yam Suf Street has remained partially closed to traffic on Sabbaths and holidays, in accordance with the decision of the Mayor and the City Council and contrary to the Sturm Committee’s recommendation. Both the Mayor of Jerusalem and the City Council sharply deviated from the Sturm Committee’s recommendations, a deviation for which we have found no explanation.

The Minister of Transportation has decided to adopt the Sturm Committee’s recommendation regarding Bar-Ilan Street’s closure. If so, than why did he not further add and instruct that Yam Suf Street be opened, in accordance with the Sturm Committee’s recommendation? For the recommendation to close Bar-Ilan Street was made simultaneously with the recommendation not to close Yam Suf Street. These recommendations are connected. If the Minister saw fit to adopt the one, why did he fail to adopt the other? The reasons for this are unclear and have not been presented to this Court.

6. During the hearings, it was proposed that Bar-Ilan Street be closed, in accordance with the Sturm Committee’s recommendations, provided that Yam Suf Street be opened. In other words, the Court suggested that the Sturm Committee’s recommendations be fully implemented—with regard to both Bar-Ilan Street and Yam Suf Street.  Petitioners accepted this proposal, while the Minister requested additional time to examine it. Later, the Minister informed us of his refusal to accept the proposal, stating that “there is no significant traffic connection between closing Bar-Ilan Street and reopening a segment of Yam Suf Street. Yam Suf is not an alternate route to Bar-Ilan.”

I admit that I do not understand this answer. First of all, no one suggested that reopening Yam Suf Street was intended to ease Bar-Ilan Street’s closure. Not even the Sturm Committee argued this point. Rather, all that the Committee said was that this street “serves a significant number of motorists from the Ramot Eshkol and Givat HaMivtar neighborhoods." These words remain uncontradicted.  Second, it was clear to all that this quid pro quo—closing one street and reopening another—was intended to form the basis for mutual concessions and mutual tolerance. Did the petitioners not share the Mayor of Jerusalem’s awareness of the fact that Yam Suf Street was not meant to serve as an alternate route to Bar-Ilan Street? Anyone who reads the Mayor’s letter to the Minister of Transportation will learn and understand—a street that has been closed will not be reopened.

A final word: putting aside the Mayor of Jerusalem’s position, we have yet to hear a proper answer from the Minister as to why he decided to adopt only the restrictive parts of the Sturm Committee’s recommendations, while rejecting other parts. For my part, it is my belief that the burden of explaining and clarifying this lies with the Minister. No explanation, however, was either seen or heard.

The Tzameret Committee

7. In his brief of November 6, 1996, the Minister of Transportation discussed the Tzameret report and its recommendations at length. To the best of my understanding, the Minister decided not to make use of the Committee’s recommendations due to the differences of opinion which arose among its members regarding Sabbath traffic arrangements.  Later on, he decided to rely on the same part of the Committee’s recommendations directing Bar-Ilan Street’s closure on Sabbaths and holidays during prayer times. This left me confused: did the Minister make use of the Tzameret Commission’s report or did he not?

8. The following was the Tzameret Committee’s recommendation, submitted by a majority of five members, with two members dissenting and one abstaining:

Taking into account the needs of the Ultra-Orthodox community, we hereby recommend adopting the Sturm Committee’s decision to close Bar-Ilan Street to traffic on Sabbath and holidays during prayer times, provided arrangements are made to ensure the mobility of the secular public in accordance with its needs, within the framework of the existing status quo.

Anyone reading this recommendation will see that it is divided into two parts. The first part orders that Bar-Ilan Street be closed on Sabbaths and holidays during prayer times. The second part is contingent on the first—Bar-Ilan may be closed “provided arrangements are made to ensure the mobility of the secular public in accordance with its needs, within the framework of the existing status quo.”

This second part served as a sharp point of contention among the Committee members, shattering the consensus respecting Bar-Ilan Street’s closure expressed in the first part. As soon as the ink on the report was dry, everyone began to offer their own view as to what was included in the report. After the dust settled, we were left with two opposing camps, each denying the other’s point of view. Some Committee members believed that Bar-Ilan Street should not be closed unless public transportation was instituted on Sabbaths. Other Committee members interpreted the report as precluding public transportation from being introduced. I presume that each and every Committee member argued in perfectly good faith—how could I presume otherwise? Even so, we do not have an unequivocal recommendation made by the Committee.

9. Had the Minister informed us that he did not see any need to consider the Tzameret Committee’s recommendations, as they were not unequivocal, I would have been silent. However, in his brief, the Minister found it appropriate to contest the second part of the recommendation, a course of action which prompts me to speak out. Regarding this second part, the Minister had the following to say:

The Committee’s recommendation regarding Bar-Ilan Street’s closure is two-fold: the first part is clear; the second is ambiguous and subject to multiple interpretations. 

And further on:

The said condition…is more opaque than transparent.

In conclusion, the Minister stated:

In light of the data presented, no one among the committee believed that the closure of Bar-Ilan Street on Sabbaths and holidays was completely inappropriate.

Five remaining members recommended that, taking into account the needs of the Ultra-Orthodox population, Bar-Ilan Street should be closed on Sabbaths and Jewish holidays during prayer times. Two Committee members believed that Bar-Ilan Street should be closed to traffic throughout the Sabbath and holidays. One member abstained.

Moreover, the Minister stated:

And so it is that, to my understanding, the majority of the Tzameret Committee members believed that an appropriate balance between the freedom of movement and  the lifestyle of the Ultra-Orthodox community residing around Bar-Ilan Street justifies adopting the Sturm Committee’s recommendation, according to which Bar-Ilan Street shall be closed during prayer times on the Sabbaths and Jewish holidays.

And more:

From the above it appears that, were I to adopt the Committee’s recommendations regarding street closures throughout the country, and effect the proper statutory changes, nothing would prevent a decision to close Bar-Ilan Street to traffic on Sabbaths and Jewish holidays.

Furthermore:

The above suggests that the majority’s recommendations are not contingent on instituting public transportation.

Under these circumstances, the recommendation before me cannot be said to reflect a social consensus between the various segments of the public regarding Sabbath traffic.

The following is my own interpretation of the Minister’s statements: the recommendation to close Bar-Ilan Street is unequivocal and clear, whereas the subsequent condition is ambiguous and opaque. Therefore, says the Minister, I have decided to adopt the clear and ignore the ambiguous. Furthermore, seeing as how the majority of the Committee members supported Bar-Ilan’s closure, I shall adopt their statements to this effect and order that the street be closed.

10. This interpretation of the Committee’s recommendations is erroneous. Suffice it to say that a reading of the Tzameret Committee’s report and its appendices—which stretch out over dozens of pages—clearly reveals the strong bond between the first and second part of its recommendations. There is no need to delve any further in order to see that the first part of the recommendation cannot survive without the second. The two are as one. Both are like limbs of the same body; amputating any part is tantamount to killing the whole. The Tzameret Committee’s recommendations constitute one whole, as Professor Galia Golan explained in her letter to the Minister dated November 3, 1996, which I cite below:

While I was prepared to sign the Committee’s report, this step was quite difficult for me, due to the decision to close Bar-Ilan Street during prayer times which, in practice, means the street’s complete closure on Sabbath. Nevertheless, as stated, I was prepared to sign by virtue of the “package deal”—the secular public would approach the Ultra-Orthodox in the spirit of compromise provided the latter would approach the secular in the same spirit. The street would be closed provided that arrangements would be made for public transportation in Jerusalem on Sabbaths in accordance with the public need and the status quo. It was also understood that certain cultural activities that do not involve the public desecration of the Sabbath, such as the supervised opening of the Jerusalem Theatre, be allowed.

Since the publication of the Committee’s report, it became clear to me that there was no—nor will there be—any “package deal.” No changes to public transportation or cultural activities on the Sabbath will be made. The Committee’s findings only lead to Bar-Ilan Street’s closure and will not bring about any additional changes.

I cannot shut my eyes and ears and convince both myself and others that the Committee’s conclusions are to my liking when I know that, in practice, they will not be implemented in their entirety. The secular public is once again making concessions, for the umpteenth time, without obtaining anything in return, despite the conditions spelled out by the Committee, which forms the basis of its conclusions. If this condition is not brought to fruition, the entire structure that the Committee attempted to construct, based on mutual consideration and tolerance, crumbles.

As such, so long as I am not in any position to enforce this condition and implement the Committee’s recommendations in their entirety and simultaneously, I will refrain from signing the report. I will be prepared to sign if and when it will become unequivocally clear to me that the decision to close Bar-Ilan Street during prayer times will only be implemented together with the rest of the Committee’s conclusions.

The Minister was entitled to say that the Tzameret Committee’s recommendations were not to his liking, due to Professor Golan’s statements and those of other Committee members, such as Dr. Tzvi Tzameret and Professor Eliezer Schweid, and that he therefore decided to ignore the committee report. However, I would think that the Minister was not permitted to assert that the conditions set out by the Committee are opaque and can be ignored, while also concluding that the majority of Committee members recommended Bar-Ilan’s closure. It is clear to all that some Committee members believe that the recommendation to close Bar-Ilan was contingent on the existence of public transportation on the Sabbath. Without the support of the condition the whole edifice collapses. How then can the Minister claim that his decision to close Bar-Ilan is based on the Committee's recommendation?

11. Furthermore, the Minister of Transportation discusses the Tzameret Committee's “majority” and “minority” opinions, in an attempt to prove that most Committee members supported the closure. In addition to the Minister’s statements cited above, he also asserted:

The majority’s recommendation regarding the closure of Bar-Ilan Street during prayer times on Sabbaths and Jewish holidays is conditional, the condition being that the closure is contingent on "arrangements being made to ensure the mobility of the secular public in accordance with its needs in the framework of the status quo."  

The said condition…is more opaque than transparent.

Three of the majority Committee members set out the condition in a manner lacking any factual basis whatsoever.

I for my part fail to understand the Minister’s preoccupation with the issue of majority and minority views. Indeed, while the matter of majority and minority may well arise with respect to bodies composed on a democratic or representative basis it has no place in a body assembled according to neither of these methods. The Tzameret Committee was not composed on a democratic or representative basis. The Minister of Transportation informed us that the Committee’s composition reflects a balance of opinions and views in the matter of religious-secular relations. Thus, the Minister writes that half of the Committee is “composed of religious individuals: two representatives of the Ultra-Orthodox community, two other religious representatives and four others defined as "not religious." Needless to say, this composition is not "democratic." If the committee is supposed to represent the interests of Bar-Ilan Street’s residents, the committee should have included a greater number of Ultra-Orthodox members. Conversely, if the starting premise was that the Committee should reflect the composition of Israel’s population, then it should have included a greater number of non-observant individuals.

In recommending that the Committee be set-up, we meant a committee capable of reaching a “social consensus between various communities.” We further added:

Such an agreement would quite naturally be premised on mutual patience and tolerance and on a long-term understanding regarding the future of Jerusalem. Rather then focusing solely on the issue of whether to close Bar-Ilan Street, it would relate to expected social dynamics and their effect on the secular-religious relations in the coming years. On the basis of this agreement, it would be possible to find long-term solutions for the various problems that these petitions raised.

See supra, para. 27 of Justice Barak’s opinion. And further on:

This lead to our proposal that a public committee be established, whose members would provide a balanced reflection of the spectrum of views and perspectives on secular-religious relations. The committee’s goal would be to strike a social covenant for secular-religious relations. The committee’s recommendations would be considered by government agencies, which would assist them in determining policy in traffic matters, including the potential closure of Bar-Ilan Street.

Id., at para. 28. While it may only take one side to torpedo an understanding or covenant, it takes two to create such a covenant. Here, one of the sides involved—the non-observant side—will only agree to such a covenant on the condition that public transportation on the Sabbath be made available. The other side does not agree to this. What then is the point of discussing majorities and minorities? Indeed, only a unanimous agreement or, in the alternative, an agreement reached by a clear and overwhelming majority, can lead to a social covenant. Clearly, unanimous agreement was not to be found, nor was there a clear and overwhelming majority. In the absence of agreement, calculating majorities and minorities is rather pointless.

12. It would appear, however, that for the Minister to base his decision on the Tzameret Committee’s report was tantamount to relying on a broken reed. Cf  Isaiah 36:6 [112] The Minister's efforts to rely on the committee's recommendations trapped him in a web of errors.

Interim Summary

13. Essentially, neither the Sturm Committee’s report nor the Tzameret Committee’s report and their respective recommendations can legitimize the Minister’s decision to close the street. In light of the Minister’s choice to base his decision on such a faulty foundation, the decision must be struck down.

14.  With these remarks in mind, let us further examine the Minister’s decision on its merits, this time ignoring both committees’ recommendations and limiting ourselves to the substantive considerations raised by the Minister in his capacity as Traffic Controller. We shall present the factors weighed by the Minister in reaching his decision and subsequently proceed to interpret, explain, and analyze.

The Decision on its Merits

15.  I have read the Minister’s brief dated November 6, 1996 very carefully. I have further read the brief of the Traffic Controller, Mr. Alex Langer, dated July 29, 1996. For all intents and purposes, the Minister’s brief is a continuation of Mr. Langer’s submissions, and both may be read as one. A reading of both these briefs teaches, without a shadow of a doubt, that the main consideration guiding the Minister in his decision was the threat that the local observant population’s feelings would be offended. In the Minister’s own words, as stated in his brief:

I have examined the Tzameret Committee’s report and the briefs submitted to this Court, as well as the Traffic Controller’s recommendations. The problem related to offending the religious population living on and around Bar-Ilan Street is both complex and most familiar—a matter which I have discussed repeatedly with the Traffic Controller, in the wake of his decision of July 10, 1996.

The additional material presented to the committee does not reveal any traffic-related reason that changes the balance between the harm to the religious lifestyle and between the infringement of the secular public's freedom of movement.

The Minister refers to the Traffic Controller’s decision of July 10, 1996—in other words, Mr. Langer’s brief of July 29, 1996—and clearly and unequivocally expresses the need to prevent any harm from coming to the feelings of the observant residents. Let us now read a few lines from Mr. Langer’s brief:

I have balanced between the freedom of movement of those asking to use this street on Sabbaths and holidays and the interest in safeguarding the feelings of the religious residents living on Bar-Ilan/Yirmiyahu Street and in its vicinity. In exercising my powers as Central Traffic Authority, I am authorized to take interests of a religious character into account when they affect a significant segment of the population.

The dilemma before me raises a conflict between legitimate interests. On the one side is the respect owed the Sabbath, as understood by a significant proportion of the local residents, living in the neighborhoods along the road. On the other side are the rights of all the city’s residents, in general, and the residents of the northern neighborhoods in particular, to use the existing and convenient road for their purposes.

The former demand that the road be completely closed to traffic on Sabbaths while the latter request that it remain open on Sabbath, as on any other day of the week.

On the one hand, there is harm to the religious sensibilities of a large population, for whom Sabbath traffic on its streets is extremely offensive. On the other hand, a significant number of people are inconvenienced by having to refrain from traveling along this road on Sabbaths and holidays. As noted, the additional travel time resulting from the street closure is a mere few extra minutes. It should be emphasized that we are not dealing with interference with the freedom to reach one’s destination. Rather, the restriction concerns the right to get from point A to point B a particular way. To employ a metaphor, a one-way street, or a dead end restricts the right to travel along it freely but does not constitute an infringement on freedom of movement since alternate routes permit motorists to reach their destination of choice.

In light of this, I believe that, at this stage, Bar-Ilan Street should be closed to traffic when the majority of the religious public is on its way to and from synagogue, times when the offensiveness of passing traffic is amplified.

To my mind, there is no need to elaborate: the Sabbath is what prompted the Minister of Transportation to decide as he did.

16. We have quoted the Minister and the Traffic Controller at length, and for good reason. We do so because the briefs of other respondents—this is the case regarding the petitioners in HCJ 5434/96—repeatedly raise arguments as to the pressing need to close Bar-Ilan Street on Sabbaths and holidays. The Court’s concern, however, is with the reasoning underlying the Minister’s decision. Thus, before jumping into the legal deep, we insisted on clarifying in which direction we were headed and what we were searching to find.      

17. The question before us is two-pronged. First, was the Minister (in his capacity as Traffic Controller) authorized to take into account the Sabbath observance factor and the local residents' religious feelings in making his decision to close Bar-Ilan Street? Second, if the Minister was in fact authorized to take these factors into account as he did, was he permitted to attach determinative weight to this consideration as he did? Is the Sabbath factor capable of outweighing all the other considerations that point to the need to leave Bar-Ilan Street open to traffic all week long, including on Sabbaths and holidays (with the exception of Yom Kippur, of course)?

Prior to turning our minds to this question, let us make the following general comment regarding the Minister’s decision, on its merits.

18. It would appear that the Minister’s decision is one that attempts to reconcile the irreconcilable. In deciding to close Bar-Ilan Street to vehicular traffic during specific hours and not others, the Minister carved the Sabbath to pieces or strips. An analogy may be drawn to one driving down a tree-laden road with the sun peering between the trees and leaves, intermittently lighting his way, alternating with the shade from the trees. A moment of sunshine, followed by a moment of shade, and again. In no time, the driver will become dizzy and in the future will want to drive down a different road in order to avoid this dizzying experience.

The manner in which the Minister has chosen to close Bar-Ilan Street—in pieces and strips—will prompt motorists to prefer alternate routes throughout the Sabbath. This is all the more true as the opening and closing hours of the street are a function of the entrance and exit of the Sabbath—times that, as we all know, change on a weekly basis. In fact, those asking that the street be closed throughout the Sabbath may be justified in arguing the Sabbath cannot be divided. Whatever the case may be with regard to that argument, it appears that the Minister’s decision will effectively result in the street’s closure throughout the Sabbath, at all hours. In effect, the street closure is a clear and certain prescription, leading to a single conclusion—Bar-Ilan Street will be closed to motorists and will appear closed throughout the Sabbath, from a little before sundown on Friday to the appearance of the first stars on Saturday night. This is how the Minister’s decision must be understood and as such it shall be examined.

19. At this juncture, we may turn our attention to the merits of the Minister's decision, bearing in mind that, from his perspective, the Sabbath factor was the determining consideration. In our opinion, the Minister exceeded the proper boundaries of reasonableness or, if you will, he exceeded his authority in deciding to close Bar-Ilan Street on Sabbaths and holidays. First, he attached excessive weight to the religious consideration. Second, he subjected the public domain to an improper arrangement. Third, he expropriated property that belongs to the public and turned it into private property. Let us now analyze these points, one by one, in order.

The Religious Consideration in an Authority’s Exercise of its Discretion      

20. In Meatrael [6], both Justice Or and I dwelled on the role of discretion in the decision of a government authority. I have but to repeat that which was said in that instance: Israel is a democracy under the rule of law. The fact that religious commandments are not the law in Israel, unless passed into law, is a supra-principle enshrined in our law. Even when a religious commandment is passed into law it is only binding by virtue of its statutory status. Our law also provides for freedom of religion and freedom from religion. An individual’s right to observe religious commandments is fully protected provided, of course, that he does not, in so doing, disrupt public order or violate the country’s laws. At the same time, an individual is entitled not to have religious commandments coerced on him against his will. Only a Knesset statute can order otherwise. After the enactment of the Basic Law: Human Dignity and Liberty even a Knesset statute is subject to the permanent restrictions prescribed by the Basic Law.

Our law is separate from religion and religious commandments are not binding unless enshrined in statute: “the principle of the separation between religion and state will guide and direct our laws. Only in accordance with a statute passed by the Knesset can a religious commandment be enforced. It may only be enforced in a manner that is both explicit and specific, in addition to being set out in primary legislation.” Meatrael [6], at 507. In other words: “considerations that have their source in religious commandments are not to be taken into account by government authorities unless the Knesset provides otherwise.” Id. For this reason, a city is precluded from forbidding the sale of non-Kosher meat or pork by virtue of the powers conferred on it by the Municipal Ordinance [Revised Version]. See HCJ 122/54 Axel v. Mayor of Netanya [75]; HCJ 72/55 Mendelson v. Municipality of Tel-Aviv/Jaffa [76]. Similarly, the Food Controller’s authority to forbid pig-farming was not recognized in Lazerovitch [5]. See also 1 A. Rubenstein, The Constitutional Law of the State of Israel (1997) [92]

This basic principle is found in the separation between religion and state. Of course, this is “an ‘Israeli-style’ separation: a separation involving a unification of sorts.” See Meatrael [6], at 506. The significance of the principle of separation of religion and state is that religion will not be imposed on the citizen and resident unless enshrined in statute. The religious system does not form the country’s law—its commandments are not the binding law of the state unless infused with the power of statute by the Knesset.

21. The aforementioned suggests that religious considerations cannot properly take center-stage or prevail over other legitimate considerations. In other words, taking into account religious considerations is deemed improper when these attempt to take center-stage among the considerations being weighed by a government authority. This was the case in Axel [75], Mendelson [76] and Lazerovitch [5]. See also Crim. A 217/68 supra. [12]. This is not the case when religious considerations merely play a secondary role, with all that that implies regarding the authority’s exercise of its discretion. While at times it may be difficult to distinguish between primary and secondary considerations, in general, we are capable of distinguishing between what is central and what is peripheral. Thus, for example, we will not hesitate to rule that the main objective of the Import-Export Ordinance [Revised Version]-1979 is economic, see Meatrael [6]; that the central goals of the Municipalities Ordinance [Revised Version] are general municipal objectives, rather than religious ones, see Mendelson [76] and Axel [75]; and that the Traffic Ordinance’s [Revised Version] primary objectives are traffic and transportation oriented goals.

Following this approach, it is possible to explain and interpret the rules set out in the Yeshurun Synagogue case, HCJ 174/62 [1] and the Baruch [2] case. In Yeshurun [1], the Court held that “motor traffic on the streets, on festivals and Sabbaths, disturbs the concentration of the worshippers of the Yeshurun synagogue, preventing them from praying comfortably.” Yeshurun [1], at 2677; that the “Yeshurun Synagogue is Jerusalem’s largest and most central synagogue, housing a large community of worshippers on Jewish holidays and Sabbaths,” Id., and that the inconvenience caused motorists due to the prohibition to drive near the synagogue is minimal. For these reasons, the Court agreed to close the streets near the synagogue on Sabbaths and Jewish holidays during the morning hours. The differences between the case at bar and that particular case are many. I will stress the following three differences. First of all, regarding motor traffic, King George Street and Shmuel HaNagid Street (the streets closed to traffic in the Yeshurun Synagogue [1] case) pale in comparison to Bar-Ilan Street. We were unaware of the exact number of vehicles passing through King George Street during prayer hours when the Yeshurun Synagogue [1] case was decided; we do know, however, that thousands of vehicles pass through Bar-Ilan Street.

Second, in the Yeshurun Synagogue [1] case, the city requested that the streets neighboring the synagogue be closed to traffic during the morning hours alone—not on Friday evening, on Sabbath morning, or at the end of the Sabbath, which, in practice, is tantamount to closing the street to traffic throughout the Sabbath. Thus, our case involves a full closure, rather than one during the morning hours. Third, the plight of the local residents was not at issue in Yeshurun [1]; here we know that closing Bar-Ilan would burden these residents. Above all, let us recall the following: the Yeshurun [1] case was decided in 1962 and, if we will try to look back, we will certainly remember what Jerusalem was like in those days, prior to the Six-Day War, and the number of vehicles to be found on Israel’s streets back then. Thus, in comparing the year 1962 to the year 1997, the differences between these two cases become clear.

Let us now turn to the rule in Baruch [2], the Bnei Brak case. While the case involved the closure of a road throughout the Sabbath, a careful examination of the reasoning underlying the decision reveals that the Court failed to comment on the closure’s effect on through traffic. The Court turned its attention exclusively to the plight of the local residents—both the Ultra-Orthodox and the non-observant. The Court addressed the harm caused the first group if the road would remain open to motor traffic and the harm caused the second group if it were in fact closed. In the words of Acting President Landau, Id. at 165:

In this case, we are dealing with the discomfort caused a limited number of residents, possessing about a mere fifty private vehicles…against the harm to the Sabbath rest of a significant population concentrated in the heart of the Ultra-Orthodox community.

Justice Vitkon’s statements, Id. at 167, were similar:

From the perspective of the number of local residents, those interested in the street’s closure on Sabbaths and holidays by far exceeds the number of those interested in freedom of movement, bearing in mind that the latter’s freedom of movement is not negated but merely restricted in a manner which does not pose any significant burden. This being the case, I am in favor of granting the petitioner’s request.

The case at bar, however, is quite different, if only for the fact that there are thousands of vehicles passing through Bar-Ilan Street. Baruch [2] by no means dealt with the same volume of through traffic. In truth, while the road closed in that instance was referred to as a “traffic artery,” the Court did not go any further to address the nature of the road in question or the effect that closing it would have on passing traffic. To this let us add and recall that the authorities made no effort to inquire into the number of those non-observant residents living on and around Bar-Ilan Street whom the closure would potentially harm. How can we then learn from the Baruch [2] case in this instance?

22. In Meatrael [6], the Court distinguished between the exercise of discretion regarding religious considerations and those involving human welfare, stating, at 507:

Considerations regarding the observance of religious commandments per se are not appropriate administrative matters unless prescribed by law. The considerations of man, qua man, however, are most legitimate. Such is the nature of democracy, in which the individual’s welfare and ability to flourish are of paramount importance. Where various segments of the population battle each other and the interests at stake are intertwined, the matter of setting priorities is self-evident. Weighing the interests inevitably leads to the need to decide between values, each pulling in its own direction. In balancing these interests we shall find it possible—and indeed our duty—to consider individual interests, or those of different sectors of the population, provided that we do not coerce the other into observing religious commandments. Religious commandments, qua religious commandments, shall not be imposed upon those who are not observant of them.

The Yeshurun [1] and the Baruch cases illustrate human welfare considerations being taken into account, following the Court’s finding that "the authority’s actions aimed at preventing harm to the religious sector will not cause significant harm to the secular segment of the public.” Meatrael [6], at 500. The same cannot be said in our case, where we are dealing with thousands of motorists served by Bar-Ilan Street.       

23. On the subject of freedom of religion and freedom from religion: the history of mankind presents countless instances of religious coercion, which directly infringe the freedom of religion. This was the case with orders to bow down to various images, to forcefully convert from Judaism to Christianity or Islam, to eat a certain proscribed food item. Freedom from religion, however, is quite different. An example of infringing one's freedom from religion is imposing a duty to pray against one’s will. Generally, however, infringements on freedom from religion are indirect and therefore often difficult to identify. It is therefore included in the general rights vested in the individual. Indeed, because of the difficulty in pinpointing an infringement of this sort, religious considerations may at times prevail over other conflicting considerations.  A case in point: Baruch [2], where a street closure forced motorists to take a longer road, and raised the question of whether the motorist's freedom from religion had been infringed. In Justice Vitkon’s opinion, Id. at 166:

The street closure constitutes religious coercion against this secular public, seeing as how the closure is not limited to prayer times at the local synagogue…the closure is imposed throughout the day.

By contrast, Justice Etzioni opined, Id. at 167:

I would not go so far as to say that the fact that some of the residents are precluded from using a segment of the road amounts to a certain degree of religious coercion, as my honorable colleague, Justice Vitkon, suggests. This is not a case of religious coercion as there is no absolute prohibition on travel on the Sabbath. Rather, we are dealing with a limited restriction, which does not harm the secular public’s sensibilities or its conscience, but merely inconveniences it.

In Yeshurun [1] the Court agreed with Justice Etzioni’s opinion, Id. at  2668, stating that the ban on traffic in the synagogue’s vicinity does not in any way constitute “religious coercion whatsoever, as the order in no way compels the petitioner to act against his conscience or views regarding religion.”

I, for my part, tend to agree with this last statement. To say that compelling a motorist to lengthen his road-time infringes his freedom from religion is, to my mind, stretching both language and substance. An observant Jew can be said to be devout, but it is difficult to say of one who is not observant that he is “devout” in his non-observance. In other words: the fact that individuals are barred from traveling in the synagogue’s vicinity during prayer times, which indirectly lengthens travel-time, constitutes coercion and infringes on the individual’s freedom to drive next to the synagogue whenever his heart desires. Even so, it would be difficult to deem this arrangement as infringing freedom from religion. An infringement of freedom—yes; an infringement of the freedom from religion—rather doubtful.

In light of these difficulties, freedom from religion is often “swallowed up,” so to speak, by an individual’s general right to freedom. It is for this reason that we prefer to speak of the authority’s power and the boundaries of the considerations that it is entitled to take into account. In other words, freedom from religion lays hidden under the doctrines of the authorities’ discretion and under an individual’s general right to freedom, as guaranteed by our country’s laws. This is the source of the aforementioned rules, according to which an administrative authority is precluded from taking into account religious factors as a principal consideration unless explicitly permitted or instructed by the legislature.

24. In Israel, every individual is entitled to the constitutional rights of both freedom of religion and freedom from religion. Subject to the Basic Law: Human Dignity and Liberty, or the Basic Law: Freedom of Occupation, an authority can only take religious considerations into account—as a primary consideration—by virtue of a statute. An administrative authority must be empowered by a statute—not by a regulation—if its wishes to take religious considerations into account. Neither may religious considerations be made primary considerations with regard to the enforcement of laws. See HCJ 1520/91 Vilensky v. National Labor Court [77], at 513. The Traffic Ordinance [Revised Version] was intended to regulate traffic and transportation arrangements. It was not meant to advance religious issues or matters of faith. Thus, if the Traffic Controller believes that traffic on Bar-Ilan Street on the Sabbath offends the religious sensibilities of the local observant residents, and decides to close the road to traffic throughout the Sabbath in order to avoid causing this offense, it is incumbent upon him to ask the Knesset to enact a statute authorizing him to do what he feels is necessary. The arrangement must take statutory form and only an explicit Knesset statute is empowered to authorize the Traffic Controller to act as he wishes. The individual’s right to freedom of religion and freedom from religion are protected in both the private and public realm. If society seeks to limit this freedom, it can only do so by Knesset legislation.

The Private Realm Belongs to the Individual and the Public Realm to the Public

25. As a general rule, the private realm belongs to the individual and the public realm to the public. A person’s home is his and his family’s; city streets belong to the entire community. This is also the case in relations between religion and state. Every person has the right to freedom of religion and freedom from religion in the private domain. The state and its emissaries must safeguard and protect this freedom using all means available to them. This is the case respecting the private domain and it is equally the case regarding the public domain. In both these realms the state will protect the individual’s right to freedom of religion and freedom from religion. By definition, this right signifies that no one will be religiously coerced.

26. Our concern is with these two sets of pairs: individuals and the community, in the private realm and in the public domain. Both these pairs relate to each other in certain ways. We can be sure of the following, subject to statute and constitution: neither an individual nor the community can impose on another in the latter's private domain. Similarly, in the public domain, an individual will not be allowed to impose his will on another or on the community. Our case raises a question with regard to the connection between the individual and the community in the public domain. Is the public entitled to force its religious customs on the individual who finds himself in the public realm, in their midst, and thus negate that individual’s right to freedom in the public domain? The Court touched on this issue in Meatrael [6], at 508, stating:   

The interests of the observant population’s are quite weighty, perhaps even determinative, within the privacy of their own homes.  However, the further one travels from his home, and the closer one is to touching the public domain—or on another’s private domain—or when one’s request involves his fellows’ rights, so too will the strength of one’s interests be weakened, as it will be balanced against the rights of his neighbor, in the latter’s public or private realm.

All this is to say that a heavy burden lies on the community whenever it seeks to deny the freedom of an individual situated in the public realm.

27. What is the private domain and what is the public domain in regard to freedom of religion and freedom from religion? All agree that a person’s home forms part of the private domain. Nevertheless, I believe that it is possible—and indeed proper—to expand that which is considered the private domain even beyond the four walls of one’s house and yard—though with great care. Take, for example, an observant neighborhood of alleys and narrow side streets upon which no stranger ever treads. It will not be an exaggeration to say that, with regard to the public desecration of the Sabbath, even those alleys between houses should be deemed to be the observant residents’ private domain.

Let us emphasize: at present, we are dealing with the expansion of the private domain only with regard to the public desecration of the Sabbath. We shall not, however, consider expanding the private realm in respect to any other matter involving the imposition of religious customs in the public domain. Thus, in regard to any other matter, the public domain remains public and the observant residents living in the area have the same rights as anyone else—no more. The same would apply to opening a pub in the center of a Muslim village or a movie theatre on the Sabbath in the heart of an observant neighborhood. See Meatrael [6], at 508.

All these matters may be examined from the perspective of the relevant administrative authority. We ask ourselves whether the authority acted within the confines of its jurisdiction and within the boundaries of reasonableness when it chose to expand the private domain with regard to the public desecration of the Sabbath, or when it forbade opening a pub or a movie theatre in a certain neighborhood. We, however, prefer to peer underneath the exercise of discretion and examine the relevant conflicting interests. The central issue is whether there is authority to coerce an individual to do—or refrain from doing—a certain act in the public domain, when the reason for coercion is rooted in religion.

28. The matter at bar does not involve the ordinary exercise of administrative discretion. Had we been dealing with placing a no-entry signpost for purely traffic-related considerations or with closing a certain roadway for construction purposes, we would be examining the Traffic Controller’s exercise of his discretion through the prism of administrative law. This, however, is not the case when the Traffic Controller turns to “extra-traffic” considerations, such as religious matters. In this instance, a constitutional consideration of the first rank comes into play. A constitutional consideration requires constitutional analysis and the ordinary rules of administrative law are not fit for the challenge. Whether we like it or not, we are within the realm of constitutional law and the Traffic Controller’s discretion is not the same as it would be understood by administrative law. Of course, constitutional considerations constitute the foundation of our entire legal system—they permeate it through and through. See 1 I. Zamir supra. [91], at 103. But, in our case, the constitutional aspects of the case at bar are prominent. As an aside: seeing as how we are dealing with a constitutional struggle, the fact that the Traffic Controller changed his mind becomes peripheral.

29. The individual’s “extended” home may be said to include his home’s surroundings. Do these surroundings include a street the likes of Bar-Ilan? To this end, the statements of the Traffic Controller, Mr. Alex Langer, in his letter of November 29, 1994, addressed to the Mayor of Jerusalem, are most pertinent:

In light of publications in the media and the situation on the street itself, I found it appropriate to apprise you of our position on the matter. The Ministry of Transportation considers Bar-Ilan Street to be a main traffic artery, connecting Jerusalem’s northern neighborhoods to the city’s center and south, every day of the week. It would be unthinkable to close this route to traffic on the Sabbath or on any other day. Arrangements to close streets on the Sabbath are only feasible on local streets, following a careful examination, and certainly not on important, central arteries.

Let us be well aware of the fact that Bar-Ilan Street is a “main traffic artery” and therefore “[i]t would be unthinkable to close this route to traffic on the Sabbath or on any other day.” So it was when the Traffic Controller spoke according to his conscience, employing sharp language such as “unthinkable” to illustrate his view. Let us offer our own view on this matter: the Traffic Controller spoke as he did without even being asked his opinion. His statements revealed that he had heard or read of the Sturm Committee’s intention to recommend that Bar-Ilan Street be closed on Sabbaths and holidays, which outraged him, prompting him to write to the Mayor as he did. When a person speaks frankly he exposes the contents of his heart.

The Traffic Controller felt the need to reiterate his position, and followed up his first letter with another, just a few months later, expressing his point of view unequivocally. He wrote the following to the Mayor of Jerusalem on November 3, 1995:

As I have already stated in my letter dated November 29, 1994, I will not agree to Bar-Ilan Street’s closure on Sabbaths and holidays, or on any other day.

The Traffic Controller took a similar stance on March 27, 1996, in a meeting between the Minister and Bar-Ilan’s residents. In summarizing the meeting, it was announced—in the Traffic Controller’s professional opinion, that Bar-Ilan Street is a central traffic artery which must not be closed on the Sabbath.

Later on, the Traffic Controller announced that he had changed his mind, a matter on which we have yet to comment. Nevertheless, the clear words spoken by him cannot be retracted, namely, that Bar-Ilan Street is a “main traffic artery” and that it would be “unthinkable” to have it closed on Sabbaths and holidays. These words are not mine—they are the Traffic Controller’s own. Moreover, these statements are quite significant seeing as how our case involves a constitutional matter of first rank. We are not dealing with the ordinary exercise of discretion as a routine administrative issue—such as a decision to reroute traffic to the right or left—but with a matter involving relations between religion and state. As we have seen, a matter such as this demands both constitutional and statutory attention.  The instant that matters of religion—of either religious freedom or coercion—are involved, we follow and live by statute and the constitution, not by the Traffic Controller’s instructions. For this very reason, as noted, the fact that the latter changed his mind will only be given minimal weight.

30. From the Traffic Controller’s statements we learn that Bar-Ilan Street is a “main traffic artery” that should not be closed—neither on the Sabbath nor on any other day. Applying these words to our own case, Bar-Ilan Street is the public domain, and not in the formal sense alone. For even those alleys between the houses are part of the public realm. But Bar-Ilan Street is the core of the public domain—in both name and substance. Bar-Ilan Street is by no means the private domain; it is public domain, in the truest sense of the concept. Each and every individual has an equal right in it: those living in its vicinity and those who do not. Bar-Ilan Street is the main road, the King’s Highway along which the King and his people shall travel. The Traffic Controller is not permitted to compel the individual not to use a road such as this.

31. In describing Bar-Ilan, the Traffic Controller did not use the phrase “main traffic artery” in vain. An artery is a blood vessel infusing man with life. Bar-Ilan Street is a main traffic artery. Thus, in deciding to close the street to traffic, the Minister infringed a constitutional principle. This principle provides that a government and administrative authority is precluded from restricting an individual’s freedom in the public realm for religious reasons. And so, government authorities renounce the freedom to take religious considerations into account unless specifically authorized, at which time these factors are to remain peripheral. For our purposes, the Minister of Transportation deviated from that which is permissible by attaching determinative weight to religious considerations and by imposing religious commandments on the public domain—on a central traffic artery belonging to the public.

Perhaps there will be those who will inquire what became of the rule in Yeshurun [1] or in Baruch [2]. To them I provide the following answer: at a certain point quantity becomes quality. At times, a little difference can mean a lot; a straw may break the camel’s back. The two precedents above dealt with a “small quantity.” By contrast, the case at bar, stated in these terms, involves a very large quantity. The Court in Baruch [2] stated that a mere fifty private vehicle owners were liable to be negatively affected by the closure—those fifty as compared to hundreds of thousands here.

On Expropriation and Individual Rights

32. The private realm is the individual’s. Neither an individual nor the public can infringe the individual’s right to his private domain unless explicitly empowered to do so by statute or by the Constitution. And what of the rights of the public and the individual in the public realm? They have the right to walk through the public domain, to drive through places intended for that purpose, to travel on roads and through fields—a right generally known as the liberty or freedom of movement. Nevertheless, the public domain is the public’s home, and each member of the public can use it provided that he or she behaves as one does in public—respecting their fellow’s right to do the same, while refraining from causing the public realm any harm. The liberty of movement in the public realm is subject to these rules.

How then does a person travel in the public domain? There was a time when people traveled on foot or rode on animals:

And Bilam arose in the morning and saddled his ass and rode with the princes of Moab. And God’s anger was kindled because he went: And the angel of the Lord stood in the way for an adversary against him. Now he was riding upon his ass, and his two servants were with him.

Numbers, 22:21-22 [113]. So it was in the days of old. Today, the car has replaced the donkey. Freedom of movement, however, remains the freedom to walk in the public realm, to ride donkeys or to drive cars. See Crim. A 217/68 supra. [12].

The value attaching to freedom of expression is of the highest order. Deputy President Ben-Porat stated that freedom of movement was equal in weight to freedom of speech, Dahar [23], at 708, and of course it is unnecessary to elaborate on the value attaching to the latter freedom. Moreover, freedom of movement is a descendant of freedom—freedom, as we all know, being of primal importance:

The right to life and to all things upon which life depends—the right to breathe, to drink, to eat—is the source of all rights. Second in rank is freedom.

HCJ 606/93 supra. [41], at 25. Such is freedom of movement and this is its place in the hierarchy of individual rights in the public realm.

My colleague, Justice Or, elaborates on the subject of freedom of movement, concluding that in our case, in the internal struggle between clashing interests, freedom of movement prevails. While I do agree with him, my agreement is accompanied by a certain feeling of discomfort. Why? Freedom of movement, like other recognized individual freedoms, is not crafted of one clay. Instead, under the umbrella of each and every freedom, we find a plethora of freedoms. Take, for example, freedom of expression; an accepted position is that commercial expression is not afforded the same degree of protection as political expression, which is more closely guarded. See HCJ 606/93 supra. [41]. This is also the case for freedom of movement. In other words, not every matter that may claim to fall under that heading is worthy of the same degree of reverence and protection. Freedom of movement, first and foremost, implies the individual’s primary personal freedom. As per section 5 of the Basic Law: Human Dignity and Liberty, “[t]here shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise” except in accordance with the limitations set out under section 8 of this Basic Law.

Alongside personal freedom we find freedom of movement, as it is commonly understood—the individual’s liberty to roam throughout the land, from top to bottom, from left to right, from one end to the other of the public realm. This is freedom of movement in all its wonder, in all its glory. In this context, let us, for instance, recall the provisions found in Regulations 109,110 and 125 of the Defense [Emergency] Regulations-1945, authorizing the Military Commander to restrict the individual’s rights in the public sphere.

Is this the freedom of movement at issue here? I would find it difficult to agree. First of all, the intended prohibition only applies to motoring on Bar-Ilan Street. It is permitted to enter Bar-Ilan Street provided one is traveling on foot. Secondly, the time it takes to travel down the alternate routes is not much longer than the time it would take to go down Bar-Ilan Street. In conjunction, these two factors render make the following conclusion practically inescapable: the issues raised in this case are at best peripheral to freedom of movement: far from its core, possessing no greater strength than any other peripheral right.

The matter, however, does not end here. The reason being that, in our opinion, there is no need to project the case as fitting exclusively within the doctrine of freedom of movement in the public realm. The matter should be understood more broadly, namely in the context of the individual’s rights in the public sphere, with freedom of movement being only one of its manifestations. Each and every individual in society has a vested interest in the “public domain”—a public property interest of sorts—which implies that society is prohibited from expropriating this interest unless expressly authorized by statute or by the Constitution.

A parable: a man owns a large ranch. In order to facilitate getting around his extensive piece of property, he paves roads and paths inside the ranch. The ranch is private property, as are the roads and paths. Suddenly, strangers, without having acquired any right in the property, disturb this man and prevent him from continuing to use the paths or roads on his farm. The man will take these strangers to court and win his case against them, seeing as how they trespassed on his property. The case will not raise the issue of freedom of movement—the freedom to move about the farm. Instead, the man will argue his right to his private property. That is the parable and here is its lesson: the individual has a public property interest of sorts in the public domain and no one has the right to infringe on this interest—this right, among other freedoms, implies freedom of movement.

33. And so, for instance, “designated property”, which the Property Law-1969, § 107 defines as “public property designated to be used for the public’s benefit,” including rivers, riverbeds, roads, railways and sewers. The law designates how such property is to be dealt with, “to ensure that the public is not driven from property intended for its benefit.” See Y. Weissman, Property Law 276 (1993) [95]. Furthermore, “the purpose of these rules is to ensure that this property will continue to serve the public interest for which they are intended.” Id. at 285. Needless to say, roads, by their very nature, are intended for the public’s benefit, Id. at 280—and for the public in its entirety, not just a certain part thereof. Thus, whoever deprives the public of its rightful property and grants it to an individual or to a certain segment of the public only—as did the Minister in this case—infringes on the public’s rights. Through his actions, the Minister expropriated from the public that which he was not permitted to expropriate. See also H. Klinghoffer, Administrative Law 141 (1957) [96].

This was also the case in ancient Roman Law. Indeed, ancient Roman Law classified goods that were not considered private into various categories, including Res Ominum Communes, which included air, running water, the sea and its beaches, and Res Publicae, which referred to property belonging to the nation as a whole, namely those goods owned by the state and designated exclusively for public use. See R.W. Leage, Roman Private Law 154 (3rd ed. 1961) [106]; Dr. S. Eizenstat, Roman Law, its History and Doctrine 143 (1954) [98], explaining that these goods “were at every Roman’s disposal and were extended special legal protection.”

This is also the law under the Anglo-American system. Since time immemorial, the law in England has been as follows:

In a highway the King hath but the passage for himself and his people.

1 Roll. Abr. [Rolle’s Abridgment, 1688] 392, cited in 21 Halsbury The Laws of England [108], at 78, n. 2. Justice Wills, in Ex parte Lewis (1888) [88], at 197, commented on the nature of the public’s interest in public roads:

[A] right for all Her Majesty’s subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance.

The public’s right to passage on public roads has priority over the rights of adjacent property-owners; it has priority over it and overtakes it:

Speaking generally, the public have the right of free and unobstructed passage over the whole of a public highway…But the right of the public is a higher right than that of the occupier, and if the user by that occupier, though reasonable so far as the particular business carried on by him is concerned, in fact causes a serious obstruction to the public, then the private rights of the occupier must yield to the public rights, and the Court will interfere by restraining the continuance of  the obstruction.

Vanderpant v. Mayfair Hotel Co., 1 Ch. 138, 152-53 (1930) [89]. Hence, a public road belongs to the public not the individual and not to those residing in its vicinity. The public has the right to use the road as it wishes, at any time.

This is also the law in the United States. In cases where a public road passes through a residential neighborhood, the local residents are not given any priority over outsiders, as the New York Court of Appeals held in a widely cited case:

Bearing in mind the principle above mentioned that political subdivisions and municipal corporations hold the fee of streets for the benefit of the whole people, it follows that residents of a particular area in a town or village do not possess and cannot be granted proprietary rights to the use of the highways therein, in priority to or exclusive of use by the general public.

People v. Grant, 17 N.E.2d 542, 544 (1954) [86]. In NYS Public Emp. Fed. V. City of Albany, 527 N.E.2d 253, 255 (1988) [87], the Court further stated:

Historically, English highways were said to be the King’s and impeding their use was proscribed for his right was one of passage for himself and his subjects….Tailoring the English rule to democratic concepts, the common law in New York has restricted local regulation by impressing a public trust upon the streets. The right to use of the highways is said to rest with the whole people of the State, not with the adjacent proprietors or the inhabitants of the surrounding municipality.

And further on, at 256:

The general rule is clear: residents of a community have no greater right to use the highways abutting their land—whether it be for travel or parking—than other members of the public.

I believe there is no need to elaborate on the subject. Bar-Ilan Street is part of the public domain. As such, it belongs to the collective, the public—not to its residents or those living in its vicinity.

Finally, and closest to us, Jewish Law states as follows in the Mishna Baba Bathra 6:7 [114]:

He whose field is traversed by a public path and he closed it, substituting [another path] at the side, forfeits that which he has given, and [that which he has appropriated as] his does not pass into his possession.

In more modern words, as translated and interpreted by Shimon Ben-Shemen in his modern commentary to Tractate Baba Bathra 92b (1981) [115]:

He whose field is traversed by a public path [a road which the public had always used] and he closed it [the field owner appropriated segments of this public road] substituting another path [by carving out a different route for the public to use, at the edge of his field] forfeits that which he has given [to the public users], and his [the road that was originally public, and which the field owner wished to take from the public and make it his own] does not pass into his possession [both roads are deemed public].

From this we learn that the public roads belong to the public. The public, and each one of its members, is authorized to use these roads even if they happen to cut through an individual’s private property. An individual is prohibited from taking a public road and appropriating it even if he grants a part of his land to be used as an alternate road. One who attempts to appropriate a public road by carving out an alternate route in his field actually renders both roads public property.

A debate arose among the Rabbis of the Talmud regarding the interpretation of the Mishna. Why and for what reason is an individual not entitled to offer an alternate route in exchange? The public is in no way negatively affected by the exchange.  In response, three rabbis offered three different approach. See Babylonian Talmud, Tractate Baba Bathra 99b-100a [116].

The first approach: “Rabbi Zevid said in the name of Raba: It is a decree [that he is not allowed to substitute another path for the one already used by the public] lest he assign to them a crooked path.” In other words, there is a fear that the field owner may provide an alternate route of lesser quality than the original road.

The second approach: "Rabbi Mesharsheya said in the name of Raba: [Our mishna deals only with the case where] he gives them a crooked path." According to this approach, the Mishna is only discussing a case in which the alternate road is actually of lesser quality. If, however, the alternate route is of equal quality, it may properly serve to replace the original road.

The third solution: “Rabbi Ashi said: Any path [that runs] along the side [of a field] is crooked.” In other words, in practice, any alternate route that the field owner proposes to grant will actually be inferior. As such, he is not authorized to replace the original route.

In summary: the public domain may not be expropriated even if the public is offered an alternative in exchange.

For our purposes, the analogy is clear: the Minister of Transportation was prohibited from expropriating the right of the public to use Bar-Ilan Street. This rule applies a fortiori to our case—if an individual is precluded from expropriating a public road even if he grants a piece of his own property in exchange, all the more so in our case, where both roads—Bar-Ilan Street as well as the alternate route—are actually  public property.

34. The principle that “[t]here shall be no violation of the property of a person,” as per section 3 of the Basic Law: Human Dignity and Liberty may also apply to the individual’s right to public property. It is most appropriate that this principle—if not in language than in spirit—apply to the individual’s right to public property. An individual is not to be deprived of his property “except by a law befitting the values of the State of Israel, enacted for a proper purpose and to an extent no greater than is required.” Basic Law: Human Dignity and Liberty, § 8. An individual’s right to the public domain is similar to his right to his private domain.

35. In his affidavit, the Minister explains that the alternate road to Bar-Ilan Street will lengthen motorists’ journey by merely a few additional minutes. Therefore, the Minister contends, on one hand we have the Ultra-Orthodox residents who claim that allowing traffic on Bar-Ilan Street on the Sabbath gravely offends their religious sensibilities. On the other hand, according to the Minster, motorists will only be inconvenienced by a few additional minutes. Anyone, insists the Minister, would understand that there is no contest between these "competing" rights. I do not agree.

I would agree that the competing interests, as the Minister asserts, are not of equal weight, as less weight attaches to the matter of convenience than to the observant community’s offended feelings. This, however, is not the issue. Instead, the issue is whether the Traffic Controller was authorized to expropriate the public interest in public property. The answer is no—the Traffic Controller was not so authorized. Each and every member of the public has the right to pass through Bar-Ilan Street, unhindered, in accordance with his wishes. Bar-Ilan Street is public property and as such may not be expropriated, unless by statute.

Take, for example, a given central traffic artery. The Traffic Controller allots the local residents parking spots on land forming part of the road itself. This road is so wide that no one senses this expropriation. Would the Traffic Controller be permitted to act so? No one will defend his actions—public property is public property and no one is allowed to expropriate it, except under authorization of statute. How then is Bar-Ilan Street any different from this traffic artery? If traffic on Bar-Ilan Street, or any other street, would be prohibited for the purpose of installing pipes for public use, no one will deem this an expropriation—street-closures for such purposes are provided for in traffic laws. The consideration underlying the closure is traffic-related, pure and simple. This is not the case when religious factors come into play, and demand that a road be expropriated from the public for the benefit of a few.

36. For our purposes, the Ultra-Orthodox residents living on and around Bar-Ilan Street passionately object to the petitioners’ claims. They advance the following argument: why do the petitioners object to the closure of Bar-Ilan Street during prayer times when they agree to street-closures in their areas? Take Jerusalem’s Ben-Yehuda Street, which was turned in to a pedestrian promenade, Tel-Aviv’s Dizengoff Street, which is closed to traffic on Sabbaths, and Netanya’s Herzl Street, which becomes a pedestrian walkway on the Sabbath. As per their brief of July 26, 1996, submitted on behalf of the residents of Tel-Azra and Bar-Ilan/Yermiyahu Street:

It was possible to close Ben-Yehuda Street, a central traffic artery, and to turn it into a pedestrian promenade. It was also permitted to close Tel Aviv’s Dizengoff Street on Sabbaths, despite its being a central traffic artery, in order to allow for coffee house clients to quietly enjoy themselves. Nevertheless it would be “unthinkable” to close Bar-Ilan Street on Sabbaths even though the absolute majority of its residents demand this closure, as Sabbath traffic offends their sensibilities, disrupts prayers in the local synagogues and threatens the welfare and security of the neighborhood children, crossing the street throughout the day.      

Are the local residents asking for that much? All in all, they ask that their street become a pedestrian walkway on the Sabbath, or at least, as per the Sturm Committee’s recommendation, during prayer times.

Further on in their affidavit, these same residents point out that:

About one-hundred per cent of the residents in the area of Shmuel HaNavi Street and Yirmiyahu Street, up to Shamgar Street, are either religious or Ultra-Orthodox. Their sensibilities are to be heeded and their lifestyle respected, above that of those invading their neighborhood.

Do these respondents honestly believe that Bar-Ilan Street may be analogized to these streets, which they offer as examples? The difference between these stands out for all to see: while traffic was absolutely prohibited on Ben-Yehuda Street, and at certain times on Dizengoff and Herzel Street, these streets remained the public’s in their entirety, open for all members of the public to use and enjoy. The public domain remained public and the individual’s interest in public property remained unchanged. While the public will be precluded from driving through these streets, they will nevertheless be able to enjoy sitting on a terrace in a coffee shop on it. The matter of Bar-Ilan Street however, is as different as it can be. Once closed, that street is effectively expropriated in favor of the local residents, thereby turning the public domain into the domain of some of the public. Surely, the respondents do not seriously believe that that the inhabitants of the rest of Jerusalem’s neighborhoods will come take a stroll down Bar-Ilan Street.

37. A basic principle of law is that there is no expropriation without compensation, unless the legislature explicitly stated otherwise:

When dealing with legislation empowering the authorities to infringe on the citizen’s property rights, the legislation is not to be interpreted in a manner allowing for such harm without compensation, unless it is clear and obvious that the legislature intended to deny the right to compensation.

HCJ 150/69 Reich v. Head of the Antiquities and Museums Administration [78], at 209 (Cohen, J.). This was the law even prior to the enactment of the Basic Law: Human Dignity and Liberty and certainly remains so after the right to property has been enshrined in article 3 of this Basic Law, and the enactment of the limitation clause, in section 8 of the Basic Law. There is no expropriation without compensation. He who takes must give something in return—quid pro quo.

38. I felt it necessary to state this well-known rule in order to discuss the recommendations of the Tzameret Committee. The majority there recommended closing Bar-Ilan Street on Sabbaths and Jewish holidays during prayer times “provided arrangements are made to ensure the mobility of the secular public in accordance with its needs, within the framework of the existing status quo.” Each Committee member and party to the petition interpreted this last condition differently. Had the Committee been composed of seventy members rather than seven, we would have heard seventy interpretations of the decision. In his affidavit of November 6, 1996, the Minister disagreed with a number of Committee members—with Dr. Tzameret and Professors Schweid and Golan—regarding the meaning of the condition set out, opining that it is “more opaque than it is transparent” and that these three members’ interpretation of it “is totally unfounded.” Forgive me if I cannot agree with the Minister’s opinion.

39. I assume that there is no internal link between closing Bar-Ilan Street and instituting public transportation in Jerusalem on the Sabbath. Instituting public transportation on the Sabbath will not solve the difficulties created by Bar-Ian Street’s closure, just as not closing Bar-Ilan will not compensate for the lack of public transportation for Jerusalem’s non-observant residents who do not have access to a private vehicles. This in itself is a problem, yet unrelated to the matter of Bar-Ilan Street. This problem was examined in Professor Galia Golan’s writings prior to the Tzameret Committee’s publication of its report. See para. 10 supra.

The fact is that instituting public transportation on the Sabbath was intended to serve as an outstretched hand for peace within the context of the social covenant to be struck between the observant and the non-observant sector—give and take, a mutual exchange, a quid pro quo. This is how one shows good will to his fellow in order to foster trust. For this reason, I am not convinced that the Minister’s conclusion that instituting public transportation on the Sabbath “would have the effect of…disrupting the existing status quo” is correct. The matter of preserving the status quo is not relevant here. I for my part assert that we should focus on quid pro quo rather than on the status quo. Let us for a moment assume that instituting public transportation on the Sabbath would in fact “disrupt” the status quo ante. Does closing Bar-Ilan Street not also disrupt it? Indeed, as I stated in Meatrael supra [6], at 506, the “status quo” that everybody keeps referring to “is unlike any other status quo.” It is an “Israeli-style status quo.” And how is an “Israeli-style status quo” defined?

An Israeli-style status quo is an imprecise, nebulous and flexible concept: all those who invoke it will mold it in their image, to suit their purposes. It is like clay in its creator’s hands—it may be molded, stretched out, or constricted.

Id. at  506-07. What reason is there for us to discuss the status quo ante? Let us instead speak of a social covenant, a covenant struck in honesty and good faith, whereby each side both gives and receives. One party agrees to Bar-Ilan Street’s closure while the other consents to making public transportation available. Expropriation on the one hand, compensation on the other. Give and take, quid pro quo.

40. This was the reasoning underlying the proposal made by this Court, according to which Yam Suf Street would opened to traffic as a result of Bar-Ilan Street’s closure. The City of Jerusalem and the Minister of Transportation rejected the proposal, invoking the lack of any connection between prohibiting traffic on Bar-Ilan Street and permitting it on Yam Suf Street. In the Minister’s own words:

Professionals in the field and the Ministry of Transportation agree with the City of Jerusalem that there is no significant traffic connection between closing Bar-Ilan Street and reopening a segment of Yam Suf Street. Yam Suf is not an alternate route to Bar-Ilan.

Nevertheless, this response fails to address the Court’s proposal. Never did the Court contend that there was any link between the license and the prohibition. Speaking for myself, I can say that my own intention was to promote a showing of good will, to foster rapprochement between the parties, to extend an outstretched hand for peace. Thus, when examining the response submitted by the Mayor of Jerusalem and the Minister of Transportation, which claimed that “to the best of my understanding, as a Local Traffic Authority, it is appropriate that things be left as they are now with respect to the segment of Yam Suf Street in question,” we were at a loss as to why. And so, even the flicker of good will that the Court hoped to nurture was extinguished.

On the Independence of the Empowered Authority’s Exercise of Discretion

41. A short time following Israel’s independence, the Supreme Court set out a rule regarding the independence of an authority’s decision making powers. See HCJ 70/50 Michlin v. Minister of Health [79], at 323-24. While this ruling is widely cited in various contexts, our concern at present is limited to one aspect—an administrative authority’s decision that it took in accordance with instructions that it received from the Minister appointed over it.  In order not to stray unnecessarily, let us, for the moment, assume that the appointed Minister was permitted to assume the authority’s powers. See section 1 of the Government Authorities and Judiciary Ordinance (additional provisions)-1948, and section 42 of the Basic Law: The Government. The established law is that the authority may not base its decision on the Minister’s instructions. The authority is independent. Consequently, if it is shown that the authority decided as it did because the Minister instructed it to do so, the decision will be struck down, by reason of the fact that the discretion was not independently exercised. We all recall the Court’s decision in HCJ 74/51 The National Center of Contractors Associations v. Minister of Commerce and Industry [80]. In that instance, the appellants’ counselors argued that Mr. Noy, the empowered authority, based his decision on government policy rather than his own discretion, which would invalidate his decision. The Court rejected this argument, stating at 1550:

Having seen and heard Mr. Noy on the witness stand, we are left with the impression that he is a competent individual and we reject the argument that he merely carried out the will of others, without exercising his own discretion.

While it appeared that the government made an important policy decision, a decision of this nature does not bind the administrative authorities.  It was purely its good fortune that Mr. Noy happened to agree with its position.

42. This rule regarding the independence of the administrative authority— particularly from the responsible Minister—was the subject of extensive criticism. First among the critics is our distinguished teacher, Professor H. Klinghoffer, in his article An Empowered Authority’s Internal Guidelines—Their Validity, 3 Hod HaMishpat 38 (1948) [104]. This view was shared by many distinguished scholars, such as Professor B. Bracha in his book, 2 Administrative Law 604 (1996) [99] and Dr. Y. Dotan in his book Administrative Guidelines [99]. The Court found different ways to narrow this rule, to avoid it, even to ignore it. Even so, to the best of my knowledge, the rule has remained intact and Professor Bracha believes that “changing the rule requires legislative intervention.” supra. [98], at 102-03. I do note, however, that while I may agree with Professor Bracha’s words regarding the rule itself, I am not certain that I share his views on this last point.

43. In the case at bar, the Traffic Controller, in November 1994, at the time speaking freely, felt that it would be "unthinkable” to close Bar-Ilan Street on Sabbaths and holidays. Approximately a year and a half later, following conversations with the Minister of Transportation, the Traffic Controller changed his mind most drastically. So he declared before this Court, in response to our inquiries.

It is with great interest that I read the Traffic Controller’s brief. I listen to his oral explanation carefully. I further read the protocols from arguments before this Court. Subsequent to all these efforts, I was convinced that it is proper to reverse the so-called “independence” rule. I will not lay out the whole issue, but only part, in saying the following: when the Minister is permitted and authorized to assume an authority’s powers, he is equally allowed to direct that authority and instruct it as to how it is to decide. Judicial review will then examine the decision on its merits—not in view of the decision-maker’s identity.

 

A Final Word

45. I have said my piece, as have my colleagues, each in his own way. The majority opinion will be the decisive one. Such is the way of the law since time immemorial. Life, however, is stronger than a judicial ruling, particularly when it involves long-standing, dynamic human relationships. No society may exist absent tolerance and patience between men. Hatred and jealousy is a recipe for disaster. The Court sought to pave the way for a social covenant—however unsuccessfully. We can now only hope that in the end wisdom will prevail and end in a handshake. Our hope is not yet lost.

After These Words…

45. Having said that which I just did, I will add a few words that are for their part unnecessary to deciding this case. I would have refrained from making the following comments had some of my colleagues not first broached them. I refer to the matter of the Tzameret Committee’s recommendations regarding street-closures—both present and future.

46. The third chapter of the Tzameret Committee’s recommendations was entitled: “Recommendations Regarding Sabbath and Holiday Street-Closures Nation-Wide.” The text itself featured rules instructing us how to go about closing Israeli roads: a “local street” shall be closed in such and such a way; “an internal thoroughfare” this way; “an intercity road” that way, and so on. Each of the roads were given their own label; authorities responsible for ordering street closures were set out as were procedures for dealing with street closures; appeals boards were set up, as were times and dates. My colleague, the President, presents a few of these recommendations in paragraph 36 of his judgment and the rest are, of course, found in the Tzameret Committee’s report.

Until now, streets were closed one by one, individually—a few here a few there. Henceforth, the Committee proposes to write the book on

 

street closures, as though roads were paved, surfaced, and opened only to be closed. Under this line of thinking, street closures will no longer be an exceptional matter in isolated instances, as they were until now. Instead, street closures shall become the norm. And so it will be every Sabbath and every holiday.

47. For my part, I find it difficult to accept that such norms be set out in this country. Since the issue was not raised for the Court to rule on in this case, I will not elaborate on the matter, nor will I examine it on its merits. Suffice it to say that there is cause to believe that if we were to follow this path, both administrative guidelines and regulations would prove insufficient for this purpose. Only a statute can regulate the matter. There are those who would even deem that insufficient.

The Ruling

48. Were my opinion to be adopted, petitions HCJ 5016/96 and HCJ 5025/96 and HCJ 5090/96 would be granted and the Minister’s decision to close Bar-Ilan Street to traffic during prayer times on Sabbaths and holidays would be struck down. This would also include the revocation of

 

the order nisi granted in HCJ 5434/96.

Deputy President S. Levin

1. I had hoped that setting up the Tzameret Committee would allow us to foster a general social consensus between the various sectors of the population regarding Sabbath traffic, a consensus on the basis of which we could also resolve the matter of Sabbath traffic on Bar-Ilan Street in particular. Our hopes, however, were shattered, leaving no other alternative than for this Court to rule on a divisive political issue.

While the Court was dragged into making decisions of this nature against its will, it cannot dodge its responsibility or the need to decide.  Our decision is not a political one. It is a judicial ruling for the purpose of which we set aside our personal views regarding which measures should properly be taken in the political and social realm. Nor are we at liberty to opt for compromise, according to which practical solutions, such agreeing to the closure of a particular street on the Sabbath in exchange for the institution of public transportation on that day in other parts of the city. While these are solutions that could have been reached through negotiations, they are not possible solutions on the legal plain. The Court’s ruling is judicial as it is premised on judicial review of the decision of the Minister of Transportation, having assumed the Traffic Controller’s powers, as expressed in his brief dated November 6, 1996. The decision should be read bearing in mind the Traffic Controller’s decision of July 10, 1996 regarding Bar-Ilan Street’s temporary closure on Sabbath during prayer times. The Minister’s decision is an administrative one, and it is in this capacity that it is attacked before us today. The tools at our disposal for the purpose of examining the Minister’s decision are derived from administrative law and our examination shall be conducted on the following five levels:

                      (1)   The Minister’s decision and its components;

                      (2)   The various interests that the Minister was under a duty to take into account in making his decision;

                      (3)   The factual basis required for the purpose of determining the existence of each of the relevant interests and their respective scope;

                      (4)   Weighing the Minister’s decision both from the perspective of the relevant factual basis and from that of the balance between the various relevant interests and their scope;

                      (5)   Our operative decision.

The Minister’s Decision

2. The Minister of Transportation thought it proper to accept the part of the Tzameret Committee’s recommendations adopting the Sturm Committee’s decision to close Bar-Ilan Street to traffic during prayer times on Sabbath and holidays. The Minister offered his opinion regarding the “protocol for dealing with requests for street-closures”, according to which type B3 roads such as Bar-Ilan would only be closed when a reasonable alternative was available. The Committee recommended that, in matters concerning roads the likes of Bar-Ilan, the burden of making decisions of this sort be shifted to the local authority. In consequence, the local authority would decide whether to close roads to traffic in areas where the overwhelming majority of the population has expressed its wish to this effect, subject to the availability of a reasonable alternate route. Furthermore, the Committee set out guidelines regarding how to deal with requests to close roads, including the right to appeal before a public committee. On the basis of these recommendations, the Minister decided to close Bar-Ilan Street on Sabbaths and holidays.

The fact that the said recommendations were contingent on what was defined as an “arrangement to ensure the mobility of the secular public in accordance with its needs in the framework of the status quo” did not escape the Minister. Even so, he opined that these recommendations were opaque and that differences of opinion arose between some of the Tzameret Committee members as to their significance. Accordingly, the Minister decided to only adopt the first part of the Committee’s decision, unconditionally. To this end, the Minister consulted with the Traffic Controller, who supported the decision, provided that Bar-Ilan Street’s closure during prayer hours be contingent on Golda Meir Boulevard and the entrance to the city remaining open to traffic on Sabbaths and holidays, and that the lane reserved for public transportation on Jaffa Street be opened to all private vehicles on those days.

The Minister reviewed the Committee’s report and its appendices and discussed them with the Traffic Controller prior to making his decision of July 10, 1996, as per the brief he submitted to this Court and in accordance with the Traffic Controller’s suggestion. The Minister’s summarized his decision:

The additional material presented before the Committee and its recommendations reveal that there is no traffic-related justification for changing the weight attaching to the harm caused to the religious lifestyle of the residents as compared to that attaching to the infringement on the secular public’s freedom of movement on the road.

Even so, the Minister decided that Bar-Ilan Street would be closed to traffic on Sabbaths and Jewish holidays during prayer times, in accordance with the Sturm Committee’s recommendations.

3.  We elaborate on the Minister’s decision in greater detail, dwelling on the following three points: first, the Sturm Committee recommended, with Committee member Ya’acov Rubin dissenting, that Bar-Ilan Street be closed during prayer times. It also recommended that Yam Suf Street remain open as “that street serves a significant population from the neighborhoods of Ramat Eshkol and Givat Ha’Mivtar and serves as a central traffic artery for the residents of these neighborhoods.” The previous Minister of Transportation accepted the Traffic Controller’s professional opinion that Bar-Ilan Street was not to be closed by reason of it being a central traffic artery. At the same time, the Jerusalem City Council decided to close Yam Suf Street and other streets that the Sturm Committee recommended should remain open.

Second, within the context of the negotiations conducted between the parties, the Court suggested that the parties examine the possibility of reopening a segment of Yam Suf Street to traffic. The closure or reopening of Yam Suf Street was under the jurisdiction of the Local Traffic Authority, which was not so inclined, stating that professionals in the Ministry of Transportation accept that “there is no significant traffic connection” between closing Bar-Ilan Street and reopening a segment of Yam-Suf Street, as the latter is not an alternate route to Bar-Ilan.

Third, during her pleadings before this Court, Ms. Mandel was asked why her client, the Minister, decided to only close Bar-Ilan Street during prayer times. She replied that the purpose of the closure was to permit the Ultra-Orthodox public the opportunity to pray undisturbed. In response to our queries, Ms. Mandel further informed us that the Minister decided as he did following “an additional evaluation of all the relevant interests as well as the harm caused religious sensibilities of those residing in the street’s vicinity. Both this evaluation and the decision’s reasonableness need to be examined in light of the existing alternatives.” Moreover, Mrs. Mandel asserted that the Minister did not consider the issue of violence. However, if circumstances were to change and the violence were to continue, she assured the Court, the Minister would revisit his stance.

Finally, when the respondents were asked whether the Minister had access to data regarding the number of non-Ultra-Orthodox residents living on and around Bar-Ilan Street, they replied that exact data was not available to him. Instead, he “dealt with percentages” and in any event, the majority of the population residing in Bar-Ilan Street’s vicinity is Ultra-Orthodox. The fact that the Minister lacked any factual basis for determining the number of secular families liable to be harmed by his decision was also raised in the Court’s meeting of August 13, 1996.

4. The Relevant Interests

The authorities are permitted to weigh and take into account three central factors when deciding on the complete or partial closure of a given road. The first is a transportation-related factor, which includes the public’s interest in entering and exiting a particular road for passage and each individual’s freedom of movement. The second involves the feelings and sensibilities of the majority of local residents living alongside the road, if they request that it be closed to traffic, in order to ensure that their neighborhood's particular character is preserved, whether their reasons are religious or not. The third factor is the interest of the “minorities” residing alongside the road (and their visitors) who claim the unqualified right to reach their homes at all times and to travel from them in their vehicles undisturbed. Additional interests to be taken into account include access to security vehicles during emergencies.

The relative weight of these factors is not to be determined in advance in any given case. The more central the road, as in the case of a main traffic artery, the greater the weight attaching to the traffic factor. Nevertheless, these factors may be balanced in the event that reasonable alternate roads are available to the public. Case law also recognizes that the second factor as one that may be taken into account. Thus, for instance, in Baruch [2], at 163, the Court held that:

Ensuring the Sabbath rest, in accordance with the lifestyle of the interested public, is within the Traffic Controller’s authority to regulate road-traffic.

Hence, even the proper weight attaching to the second factor is likely to vary depending on the circumstances, as a function of the size of the population whom road traffic is liable to offend, and their interest in preserving their lifestyle of choice in their immediate surroundings.

Just as the balance between the first two factors varies, so too does the weight of the third factor depend on the circumstances. The centrality of the citizen’s freedom of movement, following the enactment of the Basic Law: Human Dignity and Liberty, and even prior to it, requires the guarantee that this right not be denied, even if other significant considerations justify restricting traffic on Sabbaths and holidays.

When do these remarks apply? When the residents of Bar-Ilan Street are involved (the third factor). In such a case, it is possible that the rights of those individuals for whom Bar-Ilan Street serves as a throughway may be limited in light of the rights of the majority of residents living along the road (the second factor), provided proper and reasonable alternate roads are available. However, I cannot accept the argument that if the neighborhood's character changes after a given individual moves in, and, because of this, restrictions were imposed on the road on which he resides, he must necessarily adjust to these restrictions even if they touch on his right to access his home or travel from it.

Bearing in mind these preliminary remarks, the issue in this case is whether the balance struck by the Minister between the conflicting interests cited above is appropriate.

5. At this juncture, let us elaborate on another matter in further detail. The conflict forming the subject of this petition lead to violent clashes between religious and secular, raising the question of whether allotting significant weight to the second interest is not tantamount to rewarding violence. It has already been held that although violence should certainly not be rewarded, the fact that there were violent outbursts does not negate our ability to consider the legitimate interests of those relevant elements irrespective of the violence. See Baruch supra, [2].

As the Court was informed, the Minister’s decision was not influenced by the violence. This having been said, since any judicial arrangement involving the balancing of interests depends on the presumption that the arrangement will be respected, the Minister will be compelled to revisit his position absent proper implementation.

Once again, it has been argued that the partial closure of a given road to safeguard the local residents’ feelings and sensibilities is likely to serve as a precedent for further closures, in places where the balance of interests resembles Bar-Ilan Street, in the end allowing determinative weight to be given to the second factor while ignoring the first or the third. Hence, we are prompted to inquire why Bar-Ilan Street’s residents should be given priority over the religious residents of other alternate routes, which perhaps were less vocal in invoking their rights. My answer to this is that the proper balance between the various elements must be preserved in every case and every limitation on the right of passage, if at all relevant, must be made contingent on the availability of appropriate, reasonable alternate routes.

6. The Factual Basis

The factual basis underlying the Minister’s stance is composed of the Tzameret Committee’s report and its conclusions, the Sturm Committee’s recommendations, and the Traffic Controller’s opinion submitted before the Tzameret Committee. In addition, the Minister consulted with his team of professionals. He also had access to petitions submitted by numerous citizens, religious schools, and the religious residents of Bar-Ilan Street.

The previous Minister of Transportation met with the residents of Bar-Ilan Street. The Minister had at his disposal the professional opinion of the Traffic Controller, Mr. Langer, according to which the Ministry was to treat Bar-Ilan as a main traffic artery, which connected Jerusalem’s northern neighborhoods to its center and south every day of the week. Mr. Langer further added the following pointed statements:

It would be unthinkable to close this route to traffic on the Sabbath or on any other day.

Arrangements to close streets on the Sabbath are only feasible on local streets, following a careful examination, and certainly not on important, central arteries.

Following the elections of May 1996, the present Minister of Transportation assumed his position and convinced Mr. Langer to alter his original decision by considering the full depth of the harm caused to the local Ultra-Orthodox resident's sensibilities. While the traffic-related data remained essentially unchanged, the decision itself was altered due to the fact that a new element, unrelated to traffic matters, was added. While the Traffic Controller apprised us of his reasons for the change, his explanation left us disappointed. The Traffic Controller should be a traffic expert—not an authority on the degree of consideration to be given to religious factors. There is no doubt that the current Minister’s decision is “ideological” in nature, and that his ideological stance differs from his predecessor’s. This having been said, to my mind, there is no flaw in a decision being “ideologically motivated,” provided that it respects the requirements set forth by law. Accordingly, the Minister was careful to respect the law when assuming the Traffic Controller’s powers. An examination of his decision reveals that he tried to balance the relevant elements. This is the mark of an appropriate course of action. Even so, it is incumbent upon us to decide whether the final result reflected an appropriate balance.

The Minister also based his conclusions on the Sturm Committee’s recommendations—a Committee set up by the City of Jerusalem. The Committee’s purpose was to reach a compromise solution, not necessarily identical to a judicial solution. Thus, the Committee’s recommendations are to be accorded weight even though the protocols of its sessions were not preserved. In retrospect, it became clear that following the previous Minister’s refusal to close Bar-Ilan Street in accordance with its recommendations, a few other streets, which the Sturm Committee had decided would remain open to traffic, were closed. As such, Bar-Ilan Street’s closure will not fully correspond to the Sturm Committee’s recommendations.

The solutions proposed by the Tzameret Committee members are oriented towards compromise and do not reflect a legal solution. From all the proposals made to him, the Minister chose to conclude that the Committee does not, under all circumstances, rule out the closure of Bar-Ilan Street. He was, however, not prepared to accept the conditions set out by a number of Committee members in this regard. The issue of whether the Minister was authorized to act as such shall be addressed below. It does appear that a certain amount of weight does attach to this conclusion as well.

Prior to making his decision, the Minister also commented on the Traffic Controller’s position, as set out in his last letter of June 11, 1996. The letter reveals that the traffic related data remained unchanged, save the fact that the number of motorists using Bar-Ilan Street on Sabbaths, as compared to weekdays, dropped slightly. In his letter, the Traffic Controller also instructed that Golda Meir Boulevard “is an essential link in the network of streets, available during the hours that Bar-Ilan Street is scheduled for closure,” and that, on Sabbaths, traffic in both directions will be permitted on Jaffa Street, as an additional lane will be opened to traffic, providing convenient access to Road no. One, and to Jerusalem’s northern neighborhoods.

Among all the material before the Minister, data regarding the secular residents of Bar-Ilan Street was nowhere to be found; nor were any recommendations made as to how their rights were to be safeguarded. While data of this sort is found in the petition of HCJ 5434/96, it naturally requires the Traffic Controller’s independent verification. Data regarding concrete harm to the secular residents resulting from Bar-Ilan Street’s closure is available with respect to two of the petitioners in HCJ 5090/96.

Additionally, the material in the Minister’s possession failed to address how the recommendations before him would be implemented in light of the threats and attacks made. The matter of how the threats and attacks influenced the decision itself and are liable to affect its implementation was not given any attention.

Was the Minister’s Decision Appropriate?

7. I feel it necessary to make the following two comments prior to proceeding under this heading: the first comment is that the issue here is not what decision the Court would have made but rather if there is cause to intervene with the Minister’s exercise of his discretion. In this vein, the Minister is given substantial leeway. Thus, it only proper for the Court to consider intervening with this discretion if the Minister ignored central factors which he was under a duty to consider, or if he drastically deviated from the proper relative weight attached to factors taken into account. The second comment deals with the fact that this present case does not give rise to the issue of the State of Israel’s duality as both a Jewish and democratic state, as the Minister saw fit to premise his decision solely on the need to safeguard the street’s residents’ right to pray undisturbed. Thus, the Minister may have also considered this factor if the offense involved members of different faiths, Muslim or Christian, for instance.

8. We have yet to define the term “traffic artery.” The “Guidelines for Planning City Streets,” published by the Ministry of Building and Housing and the Traffic Controller, and submitted to the Tzameret Committee, distinguished between a "intercity road," an “arterial road,” a “collector road,” and a “local street.” The “traffic artery” was defined as a “road found at a neighborhood's periphery, which connects various neighborhoods, directs traffic and reroutes it from the intercity highways to the network of collector roads." Although the Tzameret Committee debated whether Bar-Ilan Street was in fact a “traffic artery,” I am prepared to presume that it is such. The current Traffic Controller referred to it as such and it corresponds to the definition cited above.

Under these circumstances, the issue of whether there is a proper balance between the traffic element and the local residents’ sensibilities arises. Whoever opines that the first element always prevails over the second will believe that the order nisi should be made absolute. To my mind, while significant weight attaches to the fact that a given street meets the definition of “traffic artery,” this weight is not determinative. A “traffic artery” is by no means untouchable and it is possible that the authorities will give importance to safeguarding the right to pray and worship unhindered even if the street involved is a “traffic artery,” provided that the weight attached to the latter factor is not excessive. In the case at bar, two public committees recommended that, under certain conditions, it would be possible to close Bar-Ilan Street during prayer times. Although their recommendations were submitted in the public realm, from a legal standpoint the Minister was nonetheless authorized to determine that circumstances justifying limiting traffic on Bar-Ilan Street could in fact arise. I do not believe that this determination exceeds the legitimate bounds of the Minister’s discretion.

The next step is to analyze the proper relationship between the first and second factor. In light of Bar-Ilan Street’s centrality from a traffic perspective, the Minister is only authorized to limit traffic on the Sabbath in a limited fashion, not exceeding what is necessary and taking into account the alternate routes available to the public. The Minister consulted with the relevant traffic professionals, who also considered the “religious” factor. He concluded that imposing traffic restrictions is possible from a traffic standpoint and justifiable only during specific hours, rather than throughout the Sabbath. I agree that, in so doing, the Minister “stretched” the permissible to its limits. As a result, any change in circumstance is likely to necessarily alter his decision. This having been said, generally speaking, I have concluded that, from an administrative point of view, this exercise of discretion is not to be struck down, as it was exercised bearing in mind both the first and second factors. In any event, the petition in HCJ 5434/96 should be denied.

Even so, it appears that the Minister failed to consider the interests of the local secular residents, for whom Bar-Ilan Street is more than a throughway, as it is the road to their homes. Accordingly, in my opinion, their interest must prevail over the right of the majority of the locals to pray undisturbed. Not only was data regarding the number of secular residents, some of whom may be deemed the “silent minority," not at the

 

Minister’s disposal, but these residents were not even guaranteed access to their homes during the hours that the traffic limitations were scheduled to be in place. As has already been explained above, I cannot accept the argument that it is incumbent on the secular residents to change their

 

lifestyle and way of reaching their places of residence following a change in the character of the street.

Needless to say, the Minister’s decision contained two presumptions. First, the Minister assumed that violent elements would not sabotage the decision’s practical application and, second, he assumed that alternative routes would remain available to the public. It is sufficient for one of these presumptions to falter for the entire decision to collapse.

9. The Operative Result

For the reasons detailed above, I join in the President’s opinion.

 

Justice E. Mazza

Like my colleagues, the President and Deputy President, I too believe that our review of the Minister’s decision to order the partial closure of Bar-Ilan Street should not give rise to a question of ultra vires but, rather, should be exclusively limited to the matter of the decision’s reasonableness.

Our premise is that the Traffic Controller has the authority to order the closure of a street to traffic on the Sabbath and Jewish holidays, in order to safeguard the religious lifestyle of the local residents, when the street scheduled for closure cuts through the heart of their neighborhood. This authority is not limited to “internal” streets. It equally applies to traffic arteries. Accordingly, despite the fact that Bar-Ilan Street is, first and foremost, a “traffic artery,” the Traffic Controller has the authority to order its closure.

This having been said, I concur with the conclusions of my colleagues, the President and Deputy President, that the Minister’s decision in the case is blatantly unreasonable and must therefore be struck down. The President’s reasoning, with which the Deputy President concurs, is also acceptable to me.

However, in order to ensure that my position is perfectly understood and in order to further emphasize that which appears to be worthy of particular emphasis, I wish to comment on the three following subjects: the Minister’s erroneous reliance on the Tzameret Committee’s recommendations, the fact that the Minister ignored the needs of the secular minority constitutes sufficient reason to strike down his decision, and the significance of his assumption of the existence of alternate routes to Bar-Ilan Street.

The Tzameret Committee’s Recommendations

2. The Minister’s decision was rendered on the heels of the Tzameret Committee’s recommendations and anchored in the adoption of part of the Committee’s recommendations. As understood by the Minister, this recommendation corresponded with those made by the Sturm Committee. In so supposing, the Minister followed a path, which, to my mind, lies beyond the legitimate array of options proposed by the Tzameret Committee.

In its recommendations, the Tzameret Committee distinguished between setting out a general arrangement to deal with requests to close streets and formulating a concrete position regarding the conditions for closing Bar-Ilan Street. Between these two options, there was no middle ground. The institution of a general arrangement, as per the Committee's first recommendation, is of a legal character. However, the Committee’s stance with respect to the conditions to be met for closing Bar-Ilan Street merely reflected an attempt to present a compromise proposal of a public-political nature, probably meant to provide a rapid, out-of-court solution to a difficult and painful social problem.

 In light of this distinction, it was incumbent on the Minister to relate to the Tzameret Committee’s recommendations in only one of two ways. On one hand, the Minister could have informed the Court of his intention to set up a general arrangement to deal with requests to close roads and to prescribe an arrangement identical or similar to the one that the Tzameret Committee proposed. The Minister then could have declared that he would revisit the matter of Bar-Ilan Street’s closure in the context of this general arrangement. On the other hand, the Minister could have agreed to base his decision regarding the closure of Bar-Ilan Street on the Tzameret Committee’s recommendations. In my opinion, it would have been best for the Minister to opt for the first alternative. Nevertheless, he was entitled to select the second.

The Minister, however, chose a third way. On the one hand, he took it upon himself, with the assistance of his Ministry’s professionals, to examine the Committee’s recommendation regarding a general arrangement for street closures. On the other hand, he decided to close Bar-Ilan Street immediately. The Minister based this last decision on the assumption that “in light of the data presented to it, none of the Committee members excluded the possibility of closing Bar-Ilan Street on Sabbaths and holidays;” and that only a minority of the Committee members understood the decision to close of the street as predicated on “provided arrangements are made to ensure the mobility of the secular public in accordance with its needs.”

In so deciding, the Minister erred, as the condition in question was in fact part of the majority’s recommendation, reached with the support of five of the Committee members. The report that the majority submitted reveals this to be so. As such, the recommendation should have been accepted or rejected as is, without addressing the differences of opinion that later emerged among the Committee members. I, for my part, am convinced that the adoption of only part of the Committee’s recommendations—a Committee which, let us recall, was only established for the purpose of proposing a potential solution to a pressing social problem—cannot be deemed a proper administrative decision. This being the case, I join in my colleague's, Justice Cheshin, criticism of the decision, set out in paragraphs 10-11 of his judgment. To my mind, the significance of this is that the Minister’s decision must be examined on its merits, without any reference to the Tzameret Committee’s recommendations and, even more so, to the recommendations of the Sturm Committee. Indeed, an examination of this nature was conducted in the opinions of the President and the Deputy President.

Ignoring the Needs of the Secular Minority

3. In deciding whether to exercise his power to close a street, the Traffic Controller is confronted with two conflicting considerations—the “traffic” considerations, on the one hand, and the “religious” factor on the other.

Accordingly, exercising this power to close streets is contingent upon finding a suitable balance between the public’s traffic-related interest in using Bar-Ilan Street and the local residents’ religious interest in the street’s closure. In this balance, the most significant weight will always attach to the traffic interest. As such, in the absence of a reasonable alternative, capable of meeting the motorists’ traffic needs, the Traffic Controller must refrain from closing the road. The religious factor alone cannot be determinative.

This rule applies to all decisions of this nature, whether regarding a local neighborhood street or a road serving as a traffic artery. Even a local street is a public road, and should not be treated like the local residents’ private property, not even as the property of the “majority” of its residents. The difference between an internal street and one constituting a traffic artery lies exclusively in the size of the public likely to be harmed by its closure. Thus, closing an internal neighborhood street, which goes through a religious neighborhood, will interfere with the transportation needs of the secular minority residing there, including the needs of the friends and relatives of those residents. Clearly, however, closing a traffic artery negatively affects the entire public by interfering with their transportation needs. As such, particularly significant weight will attach to traffic-related considerations.

This having been said, a quantitative comparison is liable to mislead. We must recall that the needs of the general public do not necessarily correspond to the transportation requirements of the local residents. This is particularly true when dealing with a road that is both a central traffic artery and a local access-way. The closure of such a road is contingent on the availability of a reasonable alternate route that will both serve the public as a whole as a traffic artery, and also provide the residents with local access.

Bar-Ilan Street, as defined in the Minister’s decision, constitutes a central traffic artery which also provides direct access to adjacent land users. It therefore follows that we are in fact dealing with a road that is both a traffic artery and a local access-way. Closing such a road is contingent on meeting the transportation needs of all those served by it. In his decision, the Minister pointed to roads that, in his opinion, constitute a reasonable alternative to the arterial traffic on Bar-Ilan. However, as his decision’s content indicates, the Minister failed to ascertain the needs of the local secular population, nor did he propose any alternatives capable of meeting their needs. While no data was submitted regarding the size of the local secular population in question, this, in my opinion, is unimportant. For the purposes of this decision, I am prepared to assume that an overwhelming majority of these neighborhoods are in fact Ultra-Orthodox and do wish for the street’s complete closure on Sabbaths, and that the number of secular residents is negligible. Even so, the balance of considerations requires that a suitable alternative for the needs of this small minority be found prior to closing Bar-Ilan Street. As my colleague, the President, has rightly held, this flaw in the Minister’s decision is sufficient to require that it be struck down.

The issue of whether the needs of the local residents lend themselves to alternative solutions is for the Minister to decide. Consequently, in the absence of concrete alternatives, it is incumbent on the Minister to consider normative alternatives, such as instituting an arrangement that would permit allowing traffic to pass through during the times that the road is closed, if a request to this effect is submitted by a permanent local resident of one of the surrounding neighborhoods. So long as a concrete alternative, capable of meeting the needs of the local residents, is not found, or a normative alternative is not established, there is no basis to support a decision to close Bar-Ilan.

The Existence of an Alternative to a Traffic Artery

4. The Minister’s decision to order the closure of Bar-Ilan Street during prayer times included the following condition:

For as long as the road is closed, Golda Meir Boulevard (The Ramot Road) shall remain open, as will the entrances to the city.  A lane for private vehicles shall also remain open on Jaffa St. on Sabbaths and Jewish festivals.

This condition is based on the presumption that the roads named provide a suitable alternative to Bar-Ilan Street as a traffic artery. The Minister’s presumption relies on findings produced by the examinations conducted: each of the above roads constitutes a detour around Bar-Ilan Street. Driving through those streets lengthens the trip in each direction by approximately two minutes at most. From a purely traffic-related perspective, I judge these alternatives acceptable in that they are capable of providing a proper detour for Bar-Ilan traffic.

The matter, however, does not end here. Alternate routes must be selected according to a standard set out for this particular purpose. Judging from the evidence submitted to the Court, it does not appear that the Minister set out such a standard for choosing these roads. In other words, the roads selected to serve as alternate routes were not examined from any other aspect save their length in comparison to Bar-Ilan’s. An important issue, which was not examined, is whether the population residing along these roads is also composed of individuals whose religious sensibilities are liable to be offended in a manner identical to the harm that prompted the Minister to justify his decision to close Bar-Ilan Street. Quite simply, had this examination been conducted, and revealed that those residing along some or all of the roads selected as alternate routes are overwhelmingly Ultra-Orthodox, the Minister would have been compelled to revisit his choice and reevaluate whether these alternatives are in fact suitable in light of these circumstances. It would be unthinkable for the Minister to reroute a massive amount of traffic to these alternate routes while risking that the local residents, like their counterparts on Bar-Ilan Street, will in turn demand that their Sabbath observance be granted the same respect as their neighbors along Bar-Ilan.

My colleague, the President, distinguishes

between streets that go through the heart of an Ultra-Orthodox neighborhood—where  thousands of Ultra-Orthodox individuals reside on both sides of such streets—and roads that are found at the neighborhood’s periphery.

See supra para. 96 of his decision. Indeed, this difference may be cause for distinguishing between Bar-Ilan Street and other roads that merely border on or are adjacent to Ultra-Orthodox neighborhoods. This possible distinction, however, was only set out in the President’s judgment, while the Minister’s own briefs do not even mention it.

At first, I believed that even a defect of this sort is cause for striking down the Minister’s decision. Eventually, I became convinced that I could join in the President’s conclusion holding that, if and when one of the roads cited as alternate routes in the present decision will be itself scheduled for closure, that specific decision shall be examined on its own merits. Of course, a decision of this nature will necessarily reopen the issue of Bar-Ilan’s closure itself.  The President’s conclusion is based on the assumption that:

it is clear that, as soon as we consider the possibility of closing the alternate route, the issue of the original route’s closure resurfaces. Our concern is with complementary solutions. It is possible to partially close Bar-Ilan Street provided that an alternate route remains open to traffic on the Sabbath. However, the moment that the alternate route is closed to traffic on Sabbath, Bar-Ilan Street must be opened.

Id. Let me offer two additional points in support of this position.

First, I emphasize that the Tzameret Committee’s holding was that “a road deemed to serve as a reasonable alternative to a closed street shall

 

not be closed unless a reasonable alternative, capable of replacing both the first road and the second, is found.” The second is the following clarification: the Minister may one day find himself in a position where he cannot refuse to close one of the alternate routes to Bar-Ilan without violating the balance struck between the interests of the local populations and, for reasons of equality—equality between different Ultra-Orthodox communities—will be equally unable to reopen Bar-Ilan Street. In such a situation, the Minister would not be authorized to order the closure of the alternate routes. Rather, he would be obliged to reopen Bar-Ilan Street, while also leaving the alternate route open to traffic. And so, the failure to set a standard for selecting alternate routes as part of the administrative procedure for dealing with a request to close a road engenders numerous difficulties.  The Minister would be well-advised to take advantage of the delay granted him by our decision in order to fill this missing link.

5. Accordingly, and given my agreement with the President’s other conclusions, I hereby join in his opinion.

Justice D. Dorner

1. I agree that the petition should be granted, as per the opinion of my colleague, Justice Or.

I believe that that the Minister of Transportation's decision is unreasonable, as stated in my colleague's opinion. In addition, however, the decision should be deemed invalid simply because it fails to conform to his statutory authority.

2. As noted, the Minister of Transportation, using the discretion granted to him by the Traffic Controller, ordered Bar-Ilan Street to be closed to traffic during prayer times on Sabbaths and Jewish holidays. The Minister made the closure contingent on the fact that Golda Meir Boulevard and the entrances to Jerusalem remain open. Likewise, the Minister premised Bar-Ilan’s closure on the fact that the lane normally reserved for public transportation on Jaffa Street would be opened to private vehicles.

Truth be told, Bar-Ilan Street is not really a “street.” Rather, it forms part of a central traffic artery, segments of which are referred to by different names—starting from Yirmiyahu Street, going through Bar-Ilan and Harel Brigade Streets all the way to Eshkol Boulevard. A mere glance at a Jerusalem city map reveals that this route forms the sole connecting route directly linking the entrance to the city, Jerusalem’s northwest, and its northeast.

The primary alternative selected by the Minister is not an intersection comparable to the one that was closed. Rather, these two connected roads allow motorists to bypass the closed road. This alternative route begins at the city’s northwestern entrance in the “Mei Niftoah” area connecting to Eshkol Boulevard via Golda Meir Boulevard, and cuts through the heart of the Ultra-Orthodox neighborhoods of Kiryat Shva,  Kiryat Balaz, Kiryat Tzanz, Ezrat Torah, Tel-Azra and Sanhedria. Violent demonstrations have occurred in this area in the past against Sabbath traffic. Let us also emphasize that along the Jaffa Street alternate route, particularly in the area around HaTurim Street, an Ultra-Orthodox population also resides.

3. The Traffic Controller, in his capacity as the Central Traffic Authority, is the authority empowered to establish traffic arrangements, particularly street closures. His authority derives from Regulation 17 to the Traffic Regulations. The Traffic Regulations were regulated by virtue of section 70(1) to the Traffic Ordinance [Revised Version], providing:

The Minister of Transportation is permitted to enact regulations regarding:

                      (1)   Traffic arrangements, and rules for the use of roads by vehicles, pedestrians and others;

Does this provision allow Bar-Ilan Street’s closure for the purpose of preventing harm to religious sensibilities?

It is no secret that an administrative authority is held to exercise its discretion exclusively for the purpose behind the empowering statute. To this end, Justice Barak’s comments in HCJ 953/87, 1/88 supra. [4], at 324, are most appropriate:

A government authority is not free to set goals for itself in whose name it is permitted to exercise its discretion. Statutory discretion must be exclusively exercised within the framework of the statute’s objective. Indeed, even if the statute explicitly provides that the discretion is absolute, this still implies the authority’s duty to pursue the objectives of the law.

See also 2 I. Zamir, supra, [91], at 744-45.

Thus, various administrative orders and decisions were struck down on the basis of this principle, including, for example, the Food Products Supervision Order (Pig Farming)-1954, adopted for religious reasons under a statute whose purpose was to ensure distribution of food products in times of emergency. See Lazerovitch [5], at 55. Similarly, we struck down a decision making the grant of permits for importing food products to Israel contingent on obtaining kosher certification, a decision which was made under legislation with an economic purpose. See HCJ 231/63 Retef, Food Supplies v. The Minister of Commerce and Industry [81]. We also struck down a municipality’s decision to change a zoning plan with the intention of preventing a Christian Center from being established, see HCJ 392/72 Berger v. The District Committee for Planning and Building, Haifa [82], at 772, and invalidated a decision to proscribe the import of non-kosher meat, adopted under a statute having economic purposes. Meatrael [6], at 503-04, 509.

This Court has equally held that a municipality, empowered by statute to regulate municipal matters via by-laws, cannot enact such provisions in order to further religion. As such, the Court has held that a municipality may not advance religious goals unless it was authorized explicitly by statute. Thus, for instance, a by-law prohibiting pig farming and the sale of pork for religious reasons was struck down. Mendelson, supra [76], at 752. Similarly, a municipality’s refusal to grant a butcher shop a permit due to the fact that it sold non-Kosher meat was struck down, Axel, supra [75], at 1532. A gas-station owners’ conviction for opening their business on the Sabbath, in violation of a municipal by-law was overturned. Crim. A 217/68, supra [12]. This approach is clearly reflected in President Olshan’s comments, in Axel, supra [75], at 1531-32:

The conflict is between those who perceive the prohibition regarding the eating of pork as holy or as inextricably liked to our national identity and those who believe otherwise. On the heels of this conflict, we find another difference of opinion—the argument between those who think it right to coerce this prohibition upon the whole of society and those who believe that there is no place for coercion of this nature in a democratic state and that the matter of observance should be left to each and every individual’s own conscience.

This problem is a general and national one, not particular or limited to a specific location. Its resolution is left to the national legislature’s exclusive authority, unless the legislature finds it appropriate to delegate its decision-making authority in this matter to the local authorities.

A democratic regime is characterized by the fact that the power to limit individual freedom is derived from the People’s will. Accordingly, this power rests with the central institution authorized to speak and decide in its name; namely, the legislature.

The power to limit individual freedom, vested in the legislature, also includes the authority to empower others, such as municipalities, ministers, administrative authorities and so on and grant them the power to limit individual freedom within specific jurisdictions. In such cases, the empowered authority indirectly draws its power from the People’s will.  This being the case, it is incumbent on the legislature to bestow such powers explicitly and unequivocally, particularly when the matter involves a problem of national proportions rather than a local one. In cases of this sort, the granting of such powers is not to be presumed unless the intention to bestow such powers is obvious and clearly reflected in the statute’s formulation or in its clearly set out objectives.

4. On the heels of this ruling, which held that imposing restrictions on human rights for religious reasons is within the exclusive purview of the legislature—the Knesset—certain statutes seeking to balance between various considerations in this area were passed.

Thus, for instance, the Local Authorities Law (Special Empowerment)-1956, authorized the local authorities to restrict or prohibit the sale of pork and pork products for consumption within their jurisdiction through bylaws. However, the consumption of pork, its import and export or its sale in restaurants was not prohibited. And so, the Law for Amending Municipal Ordinances (number 40)-1990, empowered a municipality to prohibit places of entertainment from opening on Sabbaths and Jewish holidays within its jurisdiction due to religious tradition. Most recently, subsequent to the Court’s striking down the government’s decision to prohibit the import of non-kosher meat in Meatrael I [6], an “override clause” was incorporated into the Basic Law: Freedom of Occupation. This clause allowed for the Meat and Meat Products Law-1994, to be enacted. While this statute proscribes the import of non-kosher meat to Israel, the sale of such meat in the country is not prohibited. A petition attacking this statute’s validity was rejected and its constitutionality was upheld. See HCJ 4676/94 Meatrael Ltd. v. The Knesset [83].

5. The above case law distinguishes between establishing arrangements regarding religious matters—which is within the Knesset’s jurisdiction—and between taking individuals' interests into account, including their religious sensibilities, a matter that can fall within the province of an administrative authority. Parallel to this distinction is the line drawn between the private and public domain, a point made by Justice Cheshin in Meatrael I [6], at 508:

The interests of the observant population’s are quite weighty, perhaps even determinative, within the privacy of their own homes.  However, the further one travels from his home, and the closer one is to touching the public domain—or on  another’s private domain—or when one’s request involves his fellows’ rights, so too will the strength of one’s interests be weakened, as it will be balanced against the rights of his neighbor, in the latter’s public or private realm.

Indeed, within the private domain, individuals and families are free to determine how to live their lives, within the bounds of the law and provided, of course, that their neighbor remains unharmed. They are free to protect their way of life and sensibilities from being offended. Moreover, our case law recognized the existence of similar rights on the community level. Thus, for instance, the Court permitted administrative authorities to consider factors relating to the protection of the community’s lifestyle and the religious sensibilities of its members in its decision-making process, even absent statutory authorization to this effect.

Case law of this sort sanctioned the closure of a street segment bordering Jerusalem’s central synagogue during the morning hours of the Sabbaths and Jewish holidays in League [1], subsequent to the city’s Transportation Committee’s Chairman’s conclusion that “motor traffic on the streets, on festivals and Sabbaths, disturbs the concentration of the worshippers of the Yeshurun synagogue, preventing them from praying comfortably.” Id. at 2667. Similarly, the Court sanctioned the closure of a road in Bnei-Brak, a city whose population is overwhelmingly Ultra-Orthodox, in Baruch [2]. On the basis of these precedents, one hundred and twenty Jerusalem streets, situated in essentially Ultra-Orthodox areas, were closed-off.

In contrast, in the broad, social-public area, our case law made a point of insisting on the principle that religious considerations may only be taken into account in the context of an arrangement set forth by the legislative branch, or by virtue of a specific empowering statute.

6. For our purposes, even if we were to apply the above stated case law regarding the community level to the Traffic Ordinance [Revised Version], it would not be sufficient to authorize the closure of a central traffic artery for religious reasons, an artery whose closure was deemed, by the Traffic Controller in his letter to the Mayor of Jerusalem, to be “unthinkable, whether on the Sabbath or any other day” from a traffic perspective. A central traffic artery by no means belongs to those residing alongside it. Rather, it serves all the city’s residents, including those taking advantage of their day of rest to visit Jerusalem. Those residing alongside a traffic artery such as Bar-Ilan are to expect that a major public road will not be expropriated for their own private needs, in order to safeguard their sensibilities. Nor can they expect it to be limited in order to preserve their particular lifestyle, absent a statutory provision explicitly instructing otherwise.

7. For the Ultra-Orthodox, seeing Jews traveling anywhere in their cars on the Sabbath, let alone the Holy City of Jerusalem, is most offensive.  Indeed, even the very thought of it offends their religious sensibilities as “all of Israel are each other’s guarantors” Babylonian Talmud, Tractate Nedarim 39a [117]—all Jews are responsible for one another. Needless to say, the offense is further exacerbated when the Sabbath desecration occurs before their very eyes. On the other hand, closing off the main road is liable to offend the secular public’s sensibilities, interfering with their wish to travel freely on Sabbaths and holidays. As noted by Justice Or in Meatrael I [6], at 500:

Extending protection to the feelings of one part of the population is liable to infringe the feelings of another part.

A complex balancing exercise such as this, between the feelings and needs of two segments of the population, must be left to the legislature.

By its very nature, a statute sets out general norms and includes a standard, the product of a balance struck between various and continuing conflicting interests. In the absence of a statutory arrangement regulating the matter at bar, the Minister’s decision in our case may only be characterized as accidental and arbitrary, sparked by violent

 

demonstrations. Nor is it premised on any clear standard. It does not promote equality as it is likely to increase the already significant volume of Sabbath traffic on alternate routes, which for their part house an equally Ultra-Orthodox population. In which way are Bar-Ilan’s residents’ religious sensibilities more worthy of protection than those of their counterparts, living along the alternate routes, which the decision also harms? How shall the authorities that ordered Bar-Ilan’s closure and rerouted Sabbath traffic to the alternate routes react if those living in the latter’s vicinity shall protest against the increase in traffic? The Minister’s decision fails to provide answers to any of these questions.

8. We should not here expand the Traffic Controller’s powers and permit him to resolve this difficult public debate, when doing so entails bypassing the legislative branch and lacks any clear, equality-promoting standard. Such an extension of our existing case law would indeed be a leap I am unwilling to take.

Accordingly, in my opinion, the petitions in HCJ 5016/96, 5025/96 and 5090/96 should be granted and the Court should strike down the decision to close Bar-Ilan Street on Sabbaths and Jewish holidays during prayer times. The petition in HCJ 5435/96 requesting that the closure be broadened should be denied.

Justice Ts. Tal

As President Barak mentioned, the dispute is essentially a social, value-laden struggle; its outer cover alone is that of the law. As such, it does not lend itself to judicial resolution particularly well.  Hence, this Court proposed to establish a public committee, in the hope that it would be capable of finding an appropriate out-of-court solution. This hope, however, was dashed, forcing the Court to rule.

The fact that the petitioners are almost entirely public figures, who have come to fight the battle of those who drive on Sabbaths and holidays, only serves to further emphasize the value-laden nature of this dispute. Thus, on the one hand, there are the residents of the neighborhoods adjacent to and surrounding Bar-Ilan Street, for whom the phenomenon of motor traffic on the Sabbath is like a dagger thrust into their heart. On the other hand are the petitioners, who are concerned about their freedom of movement and freedom from religious coercion.

In all innocence, I assumed that public persons of the highest rank, like the petitioners, would be most sensitive and tolerant to the plight of the local residents and would not insist on their right to violate the Sabbath in the heart of these neighborhoods, before the local residents’ very eyes, and those of their children.

After all, the Minister’s decision, both in its original form according to the Sturm Committee and in its final form in accordance with the Tzameret Committee, was not to close the road for the entire day.  Instead, the road would only be closed for a few hours, when the intensity of the affront to the residents' sensibilities was at its peak.  On the face of it, it would seem that the petitioners themselves ought to have regarded this decision as striking a proper balance between their right to use the road on the Sabbath, and the right of the local population to a respite from the terrible defilement of all that is holy to them, for at least a few hours of the day.  Furthermore, even during the hours during which the road was to be closed, motorists would have at their disposal alternate roads, which do not lengthen their travel time by more than a minute or so.  It would seem to me that the most elementary of manners, together with a level of tolerance befitting public figures, would have dictated this solution.  

Unfortunately, the voices of discord have prevailed, sounding furiously in our midst.

At this juncture I will also allow myself to criticize the violence that occurred during the demonstrations on Bar-Ilan Street. Indeed, I believe that it was precisely the violent actions of some—perhaps a very small minority—of the Sabbath-observing public, that hardened the hearts of the petitioners and sealed their ears from hearing the honest cry of the true Sabbath. This is not the way of the Torah—“Her ways are ways of pleasantness, and all her paths are peace." Proverbs 3:17 [118]. Stoning motorists is in itself a desecration of the Sabbath, and can very well endanger the motorists’ lives.

Conceivably, the petitioners too might have seen the justice of the balance reflected in the Minister’s decision, were it not for the violence and the riots.

Even so, given the gravity of the damage caused to the local residents’ lifestyle and sensibilities, I would have expected people of such merit to display understanding and tolerance.

2.   An additional comment regarding the Jewish Law aspects of the issue is appropriate. Just as the dispute is essentially not a legal one, it is by no means clear to me that the Minister’s position is grounded in Jewish Law.  For if the closing of the road on the Sabbath, albeit partially, involves lengthening motorists’ driving time, thereby increasing the amount of time during which the Sabbath is desecrated, I have my doubts as to whether Jewish Law would endorse such a proposal. This was also the reason for the proposed compromise offering to close Bar-Ilan Street in exchange for the reopening of Yam Suf Street. If closing Bar-Ilan involves desecrating the Sabbath in any case, it makes no difference which alternate road is selected. In such a case, the detour which leads to greater social consensus is preferable to merely closing Bar-Ilan Street.  It is a pity that this proposal, which the petitioners accepted, was rejected, of all people, by the Minister and the religious sector.

3. Unfortunately we did not succeed in achieving a tolerance-based resolution of the dispute.  The petitioners claimed that they were prepared to display tolerance, had “the other side” done the same. My colleague, President Barak, has already responded to this claim, in para. 103 of his judgment:

To my mind, it is incumbent upon us to be consistent in our understanding of democracy. According to the democratic perspective, the tolerance that guides society’s members is tolerance of everyone—even towards intolerance, as I wrote in HCJ 399/85 supra. [25], at pp. 276-277:

The democratic regime is based on tolerance…tolerance of our fellows’ deeds and views. This includes tolerance of those who are themselves intolerant. Tolerance is the force that unites us and permits co-existence in a pluralistic society such as ours.

It is incumbent upon us to be tolerant even of those who are intolerant of us, due to the fact that we cannot afford to be otherwise. Because if we are not tolerant of the intolerant we shall undermine the very basis of our collective existence, premised on a variety of opinions and views, including those that we disagree with, and including the view that tolerance is not mutual.

Moreover, the “tolerances” here are not equivalent. The “tolerance” involved in the slight inconvenience caused by a detour cannot be compared to the “tolerance” required to withstand the fatal blow dealt the Holy Sabbath and the local population’s way of life. To better illustrate this point, I will risk using an extreme example, but as is the way of any caricature, it is purposely exaggerated in order to emphasize its point.  I recall the poem of Heinrich Heine in which Jacob says to Esau (freely translated):

For thousands of years we have tolerated one another in brotherhood; you tolerate the fact that I breathe, and when you rage, I tolerate your fury.

4.   We were not so fortunate as to see the matter resolved the way of tolerance. We must therefore assess the issues from a judicial perspective. My colleague, the Honourable President, praises the Sabbath, to the extent of saying that the Sabbath:

It is a cornerstone of the Jewish tradition and a symbol, an expression of the Jewish message and the character of the Jewish people. Deprive Judaism of the Sabbath, and you have deprived it of its soul

These comments are well said and worthy of their author. But, in the President’s eyes, the Sabbath conflicts with freedom of movement, which in his view is a derivative of human dignity.  I beg to differ. While freedom of movement is indeed a basic right, it is, in my opinion, not included in the Basic Law: Human Dignity and Liberty.  There are important rights which were not enshrined in the Basic Law, and not by inadvertence. In my opinion, great caution ought to be exercised when attempting to read rights, which are not expressly mentioned, into the Basic Law. The Supreme Court of the State of Israel protected basic rights long before there was a Basic Law, and will presumably continue to do so in the future.

Freedom of movement is indeed one of the most crucial freedoms, even if not derived from Human Dignity.  Even so, like almost all other freedoms, freedom of movement is relative rather then absolute.  A mere glance shall reveal how this right is circumscribed in all places, at all times, in accordance with the needs of the place and the time. The Sabbath, on the other hand, in the view of  “the Nation that Sanctifies the Seventh Day,”[1] is almost an absolute value, superceded only by considerations relating to the saving of a life, or the fear of endangering lives. I will limit myself to only a few examples:

The Sabbath is an “Eternal Covenant” and an “Eternal Sign” between God and the Jewish People. See Exodus 31:16-17 [119]:

And it shall come to pass, if ye diligently hearken unto Me…[to] hallow the sabbath day, to do no work therein; Then shall there enter into the gates of this city kings and princes sitting upon the throne of David, riding in chariots and on horses, they, and their princes, the men of Judah, and the inhabitants of Jerusalem: and this city shall remain for ever…But if ye will not hearken unto me to hallow the sabbath day, and not to bear a burden, even entering in at the gates of Jerusalem on the sabbath day; then will I kindle a fire in the gates thereof, and it shall devour the palaces of Jerusalem, and it shall not be quenched.

Jeremiah 17: 24-27 [120]. The other prophets also rebuked the nation in respect of the Sabbath. See Ezekiel 20 [121]; Amos 8 [122]; Nehemiah 9,10,13 [123]. In the words of the Talmuds: “Great is the Sabbath, for it is equal to all of the commandments." Jerusalem Talmud, Tractate Brachot 1:8 [124] and “Jerusalem was destroyed only because of the Sabbath was desecrated therein." See Babylonian Talmud, Tractate Shabbat 119b [125].

The Sabbath’s supreme value is not limited to the religious sphere. It also also extends to the national and universal planes. In the words of Ahad Ha’Am, in Al Parashat Derachim, part 3, at 30:

Whoever feels an authentic connection with the life of the Jewish people throughout the generations, cannot conceive of the Jewish people without the Sabbath. One could say without any exaggeration that, more than the Jewish people have kept the Sabbath, it was the Sabbath that kept the Jewish People.

See also The Book of the Sabbath 10-11 (1934) [126]:

The Sabbath is the greatest creation of genius of the Jewish spirit and anyone who violates it, has harmed the nation’s very heart.

The very division of the week into seven days, universally accepted, though it has no basis in astronomy, is evidence of the Sabbath's antiquity and its universality, as remarked by Rabbi Yehuda Halevi. I would also refer to the important book of Prof. Abraham Joshua Heschel The Sabbath: Its Meaning for Modern Man (1951) [127].

Consequently, “freedom of movement,” which is an important basic right, is confronted by the “Holy Sabbath,” which is an almost absolute obligation upon the Jewish people.

5. Actually, there is no conflict here between “freedom of movement” and the Sabbath. Nobody, and certainly not the Minister of Transport, is attempting to negate or deny the petitioners, or any other person, this freedom. The confrontation is between a slight impingement upon the freedom of movement and that of a mortal wounding of the feelings and way of life of the local population.

And it is in this context that I must take issue with my colleague, the President, who places “individual rights” on a higher plane than injury to a person’s feelings. In my opinion, there is no place for this a priori determination. In each and every case, the right must be weighed against the depth of the feeling.  The scale is both social and value-laden. Each person, every population, possesses a system of rights and sensitivities.  There are cases in which individuals, or even the public at large, will impute greater weight to feelings than to rights. What is patriotism if not a feeling? What are love, hate, brotherhood, neighborliness, aesthetics, art, and poetry if not feelings? During its entire history, our nation has proved that it is prepared to sacrifice its most basic right, the right to life, on the altar of the feeling of sanctity of the Sabbath and the commandments. “Why are you going out to be stoned? ….for I kept the Sabbath.” See Midrash Leviticus Rabbah 32:1 [128].

Furthermore, as stated, the holiness of the Sabbath and the intensity of the affront to the feelings of the local population are confronted only by a measure of inconvenience in exercising the right of the freedom of movement.

6. My colleague, Justice Or, reminded us that freedom of religion also entails freedom from religion. The question, however, does not even arise. The Minister is not, Heaven forbid, attempting to force the petitioners to observe the Sabbath.  They are free to travel on the Sabbath as they please, subject to a minor limitation during certain hours.

7. In light of the above, to the extent that our concern is with those using Bar-Ilan Street for transportation alone, I would not only dismiss the petition, but grant the petition of the Association for the Rights of the Religious Community in Israel and instruct that the Bar-Ilan Street be closed throughout the Sabbath. To this effect, let me mention that within the compromise proposal, where I suggested that Yam Suf Street be reopened in return for Bar-Ilan Street’s closure, the petitioners were prepared to have Bar-Ilan Street closed throughout the entire Sabbath.

8.   We are therefore left with the problem of the local residents who do not observe the Sabbath.

To my mind, the petition of Ms. Avinezer does not pose any problem. As noted, the commandment of the Sabbath always gives way to considerations of saving lives or to counter the threat of such situations arising.  Thus, as a nurse who works in a hospital and therefore inevitably deals with saving lives, Ms. Avinezer’s vehicle, bearing the appropriate markers, will be able to come and go unhindered, like any other security and emergency vehicle. Indeed, according to the Minister’s decision the “closure" will be effected by way of signposts—not roadblocks.

As for the petitioner Mr. Gabay, who is physically handicapped and requests to visit his parents who live on David Street on the Sabbath, he will be able to do so during the hours in which the street is open as per the Minister’s decision.  Although this may pose a slight inconvenience, as he may have to change his schedule slightly, such an inconvenience is trivial with respect to the matter at hand.

It seems to me that this also serves to answer the plight of the other secular residents. In other words, even if such people will have to limit themselves during the hours that the closure is imposed, the restriction is a relatively minor one, which in the circumstances is not unreasonable. After all, if we accept to take alternate routes and bear temporary restrictions for various other reasons, why should we be unwilling to subject ourselves to similar limitations for the sake of the Sabbath?

It should be recalled, in this context, the brief that was submitted by Advocate Simcha Meron. There, it was claimed that petitioners searched, but could find no secular residents in the area along Bar-Ilan St. This affidavit was never contradicted. And it is quite plausible. Thus, for instance, a claim that no secular people reside in the neighborhood of Mea Shearim would be believed. It would seem that the areas under discussion too have also gone through this process of “natural selection” of sorts, whereby the neighborhood remains overwhelmingly Ultra-Orthodox. My colleagues fear that perhaps there are secular residents who do not dare show themselves for fear of repercussions.  We, however, are a Court that can only rule on the basis of the evidence before it. A decision cannot be based upon fears and conjectures.  The fact is that the two private petitioners, Avinezer and Gabay, were not intimidated and did come forward.

Rather than dwelling on the possibility of there being silent secular residents, it is incumbent upon the Court to rule according to the certainty of the existence of thousands of offended and wounded Ultra-Orthodox residents.

The very volume of traffic on the street even on the Sabbath, estimated at about 13000 vehicles, puts to rest the fears of my colleague, Justice Or, that numerous drivers refrain from using the road on the Sabbath, for fear of violence. While I am prepared to assume that there are such people, I also believe that there are well-mannered, sensitive drivers who refrain from driving on the road out of good manners, not out of fear. The Court, however, can only base its decision on the facts as they are presented to it, not on speculation—and the fact is that thirteen thousand drivers are not afraid to drive down Bar-Ilan.

If we examine the Minister’s decision in terms of his exercise of discretion, then the words of this Court, in HCJ 4769/90 Zidan v. Minister of Labor and Welfare [84], with regard to secondary legislation, are appropriate:

In all that regards the exercise of judicial review respecting the reasonableness of secondary legislation, the case law has developed rules which serve as a brake and guarantee against excessive judicial intervention regarding the validity of legislation. These rules are based on principles of judicial policy aimed at defending legislative norms that were prescribed by the administrative authority by virtue of their prima facie powers.

A well-known rule is that the Court will not interfere with the discretion given an administrative authority, nor will it put itself in the shoes of that authority, unless the unreasonableness goes to the very heart of the matter and where it is almost certain that according to a correct measure of reasonableness the authority could not have decided as it did. In such instances, it is incumbent on the Court to show restraint and not put itself in a situation wherein it effectively replaces the administrative discretion with its own.  It has therefore been held that only extreme unreasonableness will warrant judicial interference with the validity of secondary legislation.

9. While my six colleagues are all of the opinion that the orders nisi should be made final, three of them—Justices Or, Cheshin and Dorner—feel that they must be made unconditionally final. In other words, in their view, the orders ought to be made absolute even if the local secular residents in question suffer no damage as a result of the closure. The other three judges—President Barak, Deputy President Levin and Justice Mazza—are also of the opinion that the orders must be made final, but they have left the Minister the option of first verifying the matter of the local secular residents. For their part, they are prepared to uphold the Ministers decision only with respect to the “traveling motorists.”

10. If my opinion were to be accepted, the Court would grant the Association’s petition in HCJ 5434/96 and, a fortiori, dismiss all of the other petitions. 

However, since mine remains a lone voice, and in order not to render the Minister’s decision unsalvageable in the event that a solution to the plight of the local secular residents is found, if such a plight does in fact exists, I will add my consent to the President’s judgment, for pragmatic reasons only.

*******

In consequence, by majority opinion, with Justice Tal dissenting, the Court has decided to dismiss the petition in HCJ 5434/96  and to make the orders nisi in HCJ 5016/96, 5025/96 and 5090/96  absolute, in the sense that the Minister’s decision to close Bar-Ilan Street, albeit partially, is null and void.

Bearing in mind the contents of section 10 of Justice Tal’s judgment, we hereby decide, by a majority opinion, with Justices Or, Cheshin and Dorner dissenting, that the operative part of our decision is contained in paragraph 106 of the President’s judgment.

Under the circumstances, no order is made for costs.

13 April 1997.       

 

[1]  From the Sabbath prayers.

HCJ 10356/02

1.       Yoav Hass

2.       MK Musi Raz

3.       ‘Yesh Gevul’ Movement

v.

1.       IDF Commander in West Bank

2.       State of Israel

 

HCJ 10497/02

Hebron Municipality and others

v.

1. Major-General Moshe Kaplinsky, IDF Commander in Judaea and Samaria

2.       Civilian Administration for Judaea and Samaria

3.       Government of Israel

 

 

The Supreme Court sitting as the High Court of Justice

[4 March 2004]

Before President A. Barak and Justices M. Cheshin, A. Procaccia

 

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

 

Facts: The Machpela Cave is believed to be the burial site of Abraham and Sarah, Isaac and Rebecca, Jacob and Leah. As such, it is holy to Jews and Moslems. Over the years, the site has seen acts of violence by members of one religion against the other, resulting in casualties.

On Sabbaths and festivals, large numbers of Jews, sometimes in the thousands, go from the nearby town of Kiryat Arba to the Machpela Cave on foot, since the use of vehicles is prohibited by Judaism on these days. They go to the Cave  by means of the ‘worshippers’ route,’ a narrow passage that is not wide enough for security or rescue vehicles to pass in case of a terrorist attack.

The IDF commander in Judaea and Samaria decided to widen the worshippers’ route, and for this purpose he made an order to requisition private land and to demolish certain buildings along the route. The petitioners challenged the constitutionality of this order.

 

Held: In view of the constitutional importance of the freedom of religion and the freedom of worship, a certain violation of property rights may be allowed to facilitate the freedom of worship. The buildings scheduled for demolition are uninhabited, and the widening of the route was kept to the absolute minimum, to allow only unidirectional traffic. In these circumstances, the requisition order satisfies the test of constitutionality.

 

Petitions denied.

 

Legislation cited:

Basic Law: Human Dignity and Liberty, ss. 3, 8.

Palestine Order in Council, 1922, art. 83.

Protection of Holy Places Law, 5727-1967, s. 1.

 

Israeli Supreme Court cases cited:

[1]      HCJ 4212/02 Gussin v. IDF Commander [2002] IsrSC 56(4) 608.

[2]      HCJ 7015/02 Ajuri v. IDF Commander in West Bank [2002] IsrSC 56(6) 352; [2002-3] IsrLR 83.

[3]      HCJ 393/82 Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [1983] IsrSC 37(4) 785.

[4]      HCJ 6860/01 Hamada v. Israel Insurance Pool [2003] IsrSC 57(3) 8.

[5]      HCJ 3286/00 Association for Civil Rights in Israel v. IDF Commander in Judaea and Samaria (unreported).

[6]      HCJ 2461/01 Canaan v. IDF Commander in Judaea and Samaria (unreported).

[7]      HCJ 591/88 Taha v. Minister of Defence [1991] IsrSC 45(2) 45.

[8]      HCJ 2717/96 Wafa v. Minister of Defence [1996] IsrSC 50(2) 848.

[9]      HCJ 69/81 Abu Ita v. Commander of Judaea and Samaria [1983] IsrSC 37(2) 197.

[10]    HCJ 24/91 Timraz v. IDF Commander in Gaza Strip [1991] IsrSC 45(2) 325.

[11]    HCJ 401/88 Abu Rian v. IDF Commander in Judaea and Samaria [1988] IsrSC 42(2) 767.

[12]    HCJ 834/78 Salama v. Minister of Defence [1979] IsrSC 33(1) 471.

[13]    HCJ 302/72 Hilo v. Government of Israel [1973] IsrSC 27(2) 169.

[14]    HCJ 619/78 El Talia Weekly v. Minister of Defence [1979] IsrSC 33(3) 505.

[15]    HCJ 1005/89 Agga v. IDF Commander in Gaza Strip [1990] IsrSC 44(1) 536.

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

[17]    HCJ 390/79 Dawikat v. Government of Israel [1980] IsrSC 34(1) 1.

[18]    HCJ 5688/92 Wechselbaum v. Minister of Defence [1993] IsrSC 47(2) 812.

[19]    HCJ 987/84 Euronet Golden Lines (1992) Ltd v. Minister of Communications [1994] IsrSC 48(5) 412.

[20]    HCJ 72/86 Zaloom v. IDF Commander for Judaea and Samaria [1987] IsrSC 41(1) 528.

[21]    HCJ 469/83 Hebron National United Bus Co. Ltd v. Minister of Defence (unreported).

[22]    HCJ 4363/02 Zindah v. IDF Commander in Gaza Strip (unreported).

[23]    HCJ 448/85 Dahar v. Minister of Interior [1986] IsrSC 40(2) 701.

[24]    HCJ 2481/93 Dayan v. Wilk [1994] IsrSC 48(2) 456; [1992-4] IsrLR 324.

[25]    HCJ 1514/01 Gur Aryeh v. Second Television and Radio Authority [2001] IsrSC 55(4) 267.

[26]    HCJ 650/88 Israel Movement for Progressive Judaism v. Minister of Religious Affairs [1988] IsrSC 42(3) 377.

[27]    HCJ 3267/97 Rubinstein v. Minister of Defence [1998] IsrSC 52(5) 481; [1998-9] IsrLR 139.

[28]    HCJ 292/83 Temple Mount Faithful v. Jerusalem District Police Commissioner [1984] IsrSC 38(2) 449.

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

[30]    HCJ 2390/96 Karasik v. State of Israel [2001] IsrSC 55(2) 625.

[31]    CA 5546/97 Kiryat Ata Local Planning and Building Committee v. Holtzman [2001] IsrSC 55(4) 629.

[32]    LCA 214/88 Tawil v. Deutch [1990] IsrSC 44(3) 752.

[33]    HCJ 270/87 Kando v. Minister of Defence [1989] IsrSC 43(1) 738.

[34]    HCJ 153/83 Levy v. Southern District Commissioner of Police [1984] IsrSC 38(2) 393; IsrSJ 7 109.

 

For the petitioners in HCJ 10356/02 — Y. Arnon, Y. Niv.

For the petitioners in HCJ 10497/02 — S. Licker.

For the respondents — Y. Gnessin.

 

 

JUDGMENT

 

 

Justice A. Procaccia

The question

1.    The Jewish inhabitants of Kiryat Arba wish to realize their right to pray at the Machpela cave, which is regarded as a holy site by Judaism and Islam. Pedestrian access from Kiryat Arba to the Machpela Cave passes along a route that is approximately 730 metres long (hereafter — ‘the worshippers’ route’). A large number of pedestrians — men, women and children — pass along this route every Sabbath and festival on their way to pray at the Machpela Cave. In the area adjacent to the worshippers’ route, murderous attacks were made in recent years by terror organizations. Because of the security risk that threatens the pedestrians on the route, the IDF Commander in Judaea and Samaria (hereafter — ‘the area commander’) wishes to adopt various measures to improve the security of those passing along the route. For this purpose, he wishes, inter alia, to widen the path in the northern part of the route and to protect it in various ways. He also wishes to widen the path at the southern part by the Machpela Cave in order to allow security and rescue vehicles to pass, something which is currently impossible because of the narrowness of the path. In order to widen the path along the route, it is necessary to requisition areas of land along the route, and to carry out a partial demolition of two buildings and part of an additional building that are situated in the southern part of the route and are uninhabited. In order to give effect to these measures, the area commander issued a requisition and demolition order. The legality of this action by the area commander is subject to judicial review in this proceeding. We will examine the scope of his authority to issue the order, and we will consider in this regard the question of the relationship between the worshippers’ right of movement and worship  and the property right of the owners of the land situated in the area of the order.

Background

2.    On Friday evening, 15 November 2002, shots were fired by a terrorist cell at the security forces and worshippers who were walking along the worshippers’ route from Sabbath prayers at the Machpela Cave to their homes in Kiryat Arba. In the battle that ensued between the terrorists and the security forces at the site, twelve security personnel from the IDF, the Border Police and the Kiryat Arba Duty Unit were killed. As a result of this event, and against the background of several previous terror incidents that occurred near that place, the area commander decided to adopt measures to increase the level of security on the worshippers’ route in order to protect the safety and lives of those using it on the way to prayers. The main steps were widening the path and carrying out actions required for this purpose. In order to carry out this plan, on 29 November 2003 the area commander issued an ‘Order for the Requisition of Land’ (hereafter — ‘the requisition order’), in which he ordered the requisition of parcels of land lying adjacent to the route, and the destruction of several buildings along the path. Originally, the order was intended to allow the following measures to be carried out: in the northern part of the route (which extends from the ‘Pishpesh’ route to the crossroads of the ‘Zion,’ ‘Erez’ and ‘Goren’ routes) — building a concrete defence wall to protect the worshippers against flat-trajectory shooting from the east and also widening the road for the purpose of paving a walkway for pedestrians that will be protected by a concrete barrier whose purpose is to prevent pedestrians from being trampled by a vehicle travelling on the road. At the junction itself, a change is planned in the level of the routes crossing it, in order to prevent an obstruction of vehicles at the junction, which in itself creates a security risk. The southern part of the route is a very narrow passage that passes mainly by the houses of the eastern casba of Hebron, and it leads to the Machpela Cave. This passage, because of its narrowness, does not allow vehicles to transverse it. Along it there are abandoned buildings that may be used as a refuge for terrorists and may endanger the lives of pedestrians that pass by, sometimes in their thousands, on their way to prayers. Here the original order planned a widening of the passage to a total width of eight metres, in order to allow the passage of military vehicles and rescue vehicles for the purpose of accompanying and protecting the worshippers, and for the purpose of rescue in case of an attack. In order to allow such a widening, it planned the destruction of approximately 13 abandoned buildings that are situated alongside the route. The order was for a limited time.

The petitions

3.    Before us are two petitions against the requisition order. In one petition the petitioners are the ‘Yesh Gevul’ Movement and some of its activists, and in the other petition the petitioners are the Hebron Municipality, the Hebron Buildings Renovation Association, and a group of owners of rights in the land included in the requisition order. The petitions attack the legality of the requisition order and allege that it is unreasonable in the extreme and disproportionate in view of the purpose for which it was made, in view of the severe harm to the property of the owners of rights in the land along the route and in view of the planned harm to the buildings which have an unique archaeological value. It is alleged that the order was issued by the area commander for improper reasons, and the security reason that was given for making the order is a smokescreen for a predominantly political motive whose main purpose is to create territorial continuity between Kiryat Arba and the Machpela Cave by means of establishing a promenade that will, in the future, allow the expansion of Jewish settlement in the area. In this regard, it was alleged that there is no real objective connection between the attacks that occurred in the area and the measures planned within the framework of the requisition order, including the demolition of the houses, and since the area governed by the order was previously declared a closed military area and was emptied of its inhabitants, it is not required for security purposes. The petitioners from among the inhabitants of Hebron emphasized in their arguments that the implementation of the order is likely to lead to the destruction of an important part of the historical city of Hebron, which includes buildings from the Mamluk period and other houses intended for conservation, and that the antiquities law that applies in the area does not allow such activities for archaeological reasons. This claim was supported in a professional opinion given by persons involved in the conservation of ancient buildings and in an expert architectural opinion.

It was also argued by the petitioners that the requisition of the land and the demolition of the buildings governed by the order is contrary to international law that requires the area commander to exercise his authority to ensure order and security in the occupied area within the framework of article 43 of the Hague Convention of 1907 (hereafter — the ‘Hague Convention’) and is contrary to article 53 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949 (hereafter — the ‘Geneva Convention’) which prohibits the destruction of the real estate assets of civilians in an occupied area unless this action is essential and required for military operations. The requisition order is also contrary to the international law that governs the conservation of archaeological assets. According to their position, the order also does not satisfy Israeli constitutional law, because it results in an unbalanced result when weighing the right of the worshippers to realize their freedom of religion and worship against the right of the landowners along the route, who are entitled to protection of their property. The owners of the property rights among the petitioners also argue that their right to be heard and to challenge the legality of the order before the area commander was not upheld.

The original position of the State

4.    In the original response of the State to the petitions, it was argued that the sole purpose of the requisition order was security-oriented, and it did not serve as a disguise for achieving any other purpose. It was made in direct response to the continuing risk of terrorist acts, which consistently threatened the Jewish inhabitants who used the worshippers’ route, and in view of the responsibility of the IDF commander to ensure their safety. In order to increase security measures along the route, discretion was exercised carefully and various alternative ways were considered for the pedestrian passage of worshippers to the Machpela Cave on Sabbaths and festivals, and the most strenuous efforts were made to minimize, in so far as possible, the harm to the local inhabitants and the owners of rights in the land adjoining it. Eventually it was found that using the route was the most appropriate solution, as compared with the other options, in view of security needs on the one hand, and the need to restrict the extent of the harm to the local inhabitants on the other.

In response to the petitioners’ claim that their right to challenge the order before the area commander was not upheld, it was argued that the proper steps were taken to make the requisition order known to the owners of rights concerned. A reasonable period of time was allowed for submitting objections, but no such objections were submitted during the time allocated for this before the filing of the petitions.

In the normative sphere, it was argued that the authority of the military commander to requisition land in the occupied area is based on article 43 of the Hague Convention, which establishes a duty to maintain security in the occupied area, and on the proviso in article 23(g) of the Convention which provides a qualification to the prohibition against the demolition of enemy property when this is required for combat purposes. Article 52 of the Hague Convention allows land to be requisitioned for the purpose of ensuring order and public security even when there is no combat, and this also serves as a basis for the action that was carried out. The duty to conserve cultural assets that is enshrined in international law does not preclude recognition of urgent security needs that in certain circumstances override the duty to conserve cultural assets as aforesaid. By virtue of these sources, the area commander is authorized, and even obliged, to protect the security of the pedestrians on the worshippers’ route, and the making of the requisition order falls within this authority and responsibility. This order satisfies the constitutional test in view of the security needs required along the route within the framework of the worshippers’ right of worship, and the inevitable harm to the property of the petitioners as a result is proportionate in view of the fact that we are concerned with buildings that were abandoned some time ago, and in view of the existence of a right to financial compensation for this injury. The action of the IDF commander reflects a proper balance between the various values involved in this case, and it is essential to the public interest, it is reasonable and proportionate, and there are no grounds for intervention in order to change it.

The sequence of proceedings

5.    On 18 December 2002, an order nisi was made in the petitions, whereas an interim order that prohibited the demolition of buildings in accordance with the requisition order was restricted so that it would not apply to the northern part of the route up to the crossroads. Within this framework, additional time was given to the owners of the rights to object to the requisition order. Of the 13 owners of rights in the houses that were schedules for demolition under the original order objections were filed with regard to six buildings. One building that was found to be inhabited was excluded from the requisition order.

Before a decision was made with regard to the petitions, the area commander was asked by the court to reconsider other possibilities for the plan of action under the original order, in order to minimize the harm that it was expected to cause the inhabitants of the neighbourhood, such as sealing houses instead of demolishing them, stationing soldiers in order to protect the route when pedestrians pass, directing worshippers to an alternative route, and the like.

Approximately six months after the decision of the court in this respect, the State gave notice, first, that other possibilities for the pedestrian route of worshippers to the Machpela Cave that do not use the worshippers’ route were reconsidered. These were found to be unsuitable, either because they involve too great a risk to the pedestrians, or because preparing the route requires greater harm to the property owners, or because they involve a risk of increasing friction between the Jewish worshippers and the Muslims who come to pray in the Cave. The great risk involved in such friction was discussed in the Report of the Commission of Inquiry on the Massacre at the Machpela Cave in Hebron (hereafter — ‘the Shamgar Commission Report’). In the opinion of the area commander, these defects make the other possibilities for the pedestrian route of the worshippers to the Machpela Cave on Sabbaths and festivals unsuitable, and the worshippers’ route remains the most reasonable option from the viewpoint of the conditions of the terrain and the scope of the measures required in order to safeguard the area.

In such conditions, the area commander decided that there was no alternative to increasing the security of the worshippers’ route itself as the pedestrian route for large numbers of pedestrians, and that for this purpose the requisition order was needed. He also decided, after a reconsideration, that the stationing of soldiers at security positions or the sealing of houses was insufficient, and the widening of the route and the unavoidable demolition of a small number of buildings were required. Notwithstanding, after a reconsideration, it was decided to reduce significantly the scope of the harm to the owners of the property in the area, as compared with the original requisition order. While the original order refers to the widening of the route to a total width of eight metres, according to the revised position a widening of the route to a total width of only 4 metres is sufficient. This width provides the minimum required to allow the passage of security vehicles in one direction. Even though, in the opinion of the area commander, such a minimal widening of the route involves a certain security risk in that it does not allow two-directional traffic of vehicles along the route, he is currently prepared to be satisfied with a more limited widening of the route that will allow only unidirectional traffic, in order to minimize the damage to the owners of the lands adjacent to the route. The reduction of the width of the route also involves a significant reduction in the number of structures that are scheduled for demolition. Whereas the original plan spoke of the demolition of 13 buildings, today the plan calls for a partial demolition of two buildings and a part of a third building that are situated at the ends of the route and are abandoned. The demolition will be carried out under professional supervision to protect, in so far as possible, important archaeological foundations and to restrict the extent of the harm to the buildings to a minimum. It is also planned to seal entrances to additional uninhabited buildings along the route, to install nets in inhabited buildings, to pave a part of a path that has not yet been paved in order to safeguard against the laying of mines, and to place lamp posts and guard posts along the route. With regard to the northern part of the route, the State undertook not to extend the route to more than two metres from the two sides of the road (court record of 23 November 2003). In order to make the aforesaid revisions to the original plan, an appropriate amendment of the requisition order was required.

The essence of the order in its limited format as it is brought before us for review is, therefore, the following: in the northern part of the route — widening of the road to an amount of two metres from each side; in the southern part of the route — widening the road to a total width of four metres; a partial demolition of two buildings and a part of an additional building; the requisition of parcels of land alongside the route, as required for the purpose of widening it.

Decision

Right to be heard

6.    The owners of the rights in the land claim that their right to challenge the validity of the requisition order before the military commander, before they filed their petition, was not upheld.

No-one disputes the existence of a right to be heard that is available to anyone who may be harmed by an executive act. There is no need to expand upon the importance of this right, which is firmly rooted in Israeli administrative law. However, in the circumstances of this case, the right of the petitioners to be heard was not violated. The order, according to its wording, regulates the details of how it should be published and the ways in which it should be delivered to the owners of the rights who may be harmed by its provisions. The provisions of the order were carried out in this respect. The requisition order was distributed in the area designated for the requisition, and it was affixed to each of the buildings scheduled for demolition. It was delivered to the mayor of Hebron and the legal adviser of the municipality. Copies of the order were deposited at the Hebron liaison office and at the other offices of the competent Israeli and Palestinian authorities in the area. The fact that the order had been made was announced in the media. In addition, a tour of the route in the order was made, with the participation of military personnel and representatives of the owners of the rights in the land, and time was given to those persons who were likely to be harmed to challenge the order before the area commander. Before filing the petitions, no challenges were filed within the time period fixed for this. Within the framework of the hearing of the petitions, additional time was given to the petitioners to file their challenges. At this stage of the proceedings, challenges were filed with regard to some of the buildings scheduled for demolition under the original plan. These challenges were examined by the State. In view of the aforesaid facts, the petitioners’ right to be heard and to file objections was satisfied within the framework of this proceeding.

Legality of the requisition order

7.    The requisition order that was made involves the requisition of private land and the demolition of buildings, and it constitutes a legal act that harms the petitioners’ property rights. The legality of this act should be examined within the framework of international law, local law and Israeli law that all apply to the actions of the area commander (HCJ 4212/02 Gussin v. IDF Commander [1], at p. 609; HCJ 7015/02 Ajuri v. IDF Commander in West Bank [2], at p. 382 {117-118}).

The question that must be answered is whether the requisition order, in its reduced version, satisfies the criteria required for its legality, or whether it suffers from a defect that justifies judicial intervention to set it aside or amend it. In considering this question, we will examine the source and scope of the area commander’s authority to make the order under discussion; we will consider whether there is a basis for the petitioners’ suspicion that irrelevant motives led to the making of the order; and we will scrutinize the various values and rights that conflict in this case — freedom of worship and the right of movement, the protection of human life, the protection of private property rights — in order to determine whether these were balanced against each other properly within the framework of the order, and whether the order satisfies the rules of constitutional law.

The area commander’s responsibility and scope of authority

8.    The executive powers of the area commander derive from several sources: the rules of public international law that concern belligerent occupation; the local law that prevails in the area, which is composed of the law prior to the military occupation and new local legislation that was enacted by the military administration; and the principles of Israeli law (HCJ 393/82 Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [3], at para. 10; HCJ 6860/01 Hamada v. Israel Car Insurance Pool [4], at paras. 6-7). Within the sphere of international law, his actions are subject to the laws of war that determine what is permitted and what is prohibited for the commander of a military force who is responsible for an area under belligerent occupation (Ajuri v. IDF Commander in West Bank [2], at p. 358 {87}; HCJ 3286/00 Association for Civil Rights in Israel v. IDF Commander in Judaea and Samaria [5]; HCJ 2461/01 Canaan v. IDF Commander in Judaea and Samaria [6]; Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [3], at p. 793). Within the framework of Israeli law, he is subject, inter alia, to the rules of public law, including the rules of natural justice and administrative reasonableness (HCJ 591/88 Taha v. Minister of Defence [7], at p. 52).

Israel’s belligerent occupation of the occupied territories is subject to the main norms of customary international law that are enshrined in the Hague Convention. The question to what extent the Geneva Convention applies in this sphere has not yet been finally determined, but the humanitarian principles have been adopted de facto by the State and the area commander, and therefore we will assume that they apply in our case (cf. Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [3], at para. 11).

The Hague Convention authorizes the area commander to act in two main spheres: the first is to ensure the legitimate security interest of the occupier, and the second is the ensure the needs of the local population in the area under belligerent occupation. The local population for this purpose includes both the Arab and Israeli inhabitants. The first need is a military need and the second is a civilian-humanitarian need. The first focuses on concern for the security of the military force that is occupying the area, and the second concerns the responsibility for preserving the welfare of the inhabitants. Within the latter sphere, the area commander is responsible not only for maintaining order and ensuring the security of the inhabitants but also for protecting their rights, especially their constitutional human rights. The concern for human rights lies at the heart of the humanitarian considerations that the area commander must consider. According to art. 43 of the Hague Convention, the force in control of the occupied area has the responsibility to take all the steps that it can to re-establish and guarantee, in so far as possible, public order and security in the area, while respecting the law in force in the area, in so far as possible. In carrying out his duty to maintain order and security, the area commander must therefore ensure the essential security interests on the one hand, and protect the interests of the civilian population in the area on the other (Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [3], at p. 794). A proper balance is required between these two focal points of responsibility. Indeed, ‘the laws of war usually create a delicate balance between two magnetic poles: military needs on the one hand, and humanitarian considerations on the other’ (Y. Dinstein, ‘Legislative Authority in the Administered Territories,’ 2 Iyunei Mishpat (1973) 505, at p. 509). In his considerations, the commander must concentrate on the needs of the area; he should not take into account the concerns of the country that holds the area under belligerent occupation, as a result of which he is exercising his authority.

The authority of the area commander to make orders for security needs, including an order concerning the requisition of land, is established both in international law and in Israeli law. These orders are law in Judaea and Samaria (HCJ 2717/96 Wafa v. Minister of Defence [8], at p. 851; HCJ 69/81 Abu Ita v. Commander of Judaea and Samaria [9], at pp. 228-230).

Requisition of land

9.    The requisition of land may be an essential step in the realization of the area commander’s powers and responsibility. It may be required both in order to realize military and security concerns, and in order to realize the duty of the commander to protect the interests of the civilian population in the area.

The laws of war in international law prohibit the requisition or demolition of private property in an area under belligerent occupation unless it is essential for combat purposes. According to article 23(g) of the Hague Convention, the occupying power is forbidden:

‘To destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war’ (emphasis supplied).

Article 52 of the Hague Convention provides that no requisition of land shall be made in an occupied area, except for military purposes. This article has been interpreted broadly in case law as applying also to the need to requisition land in order to establish military positions and outposts, and also in order to pave roads for the purpose of protecting Israeli inhabitants living in the area (HCJ 24/91 Timraz v. IDF Commander in Gaza Strip [10]; Wafa v. Minister of Defence [8], at p. 856; HCJ 401/88 Abu Rian v. IDF Commander in Judaea and Samaria [11]).

Article 53 of the Geneva Convention prohibits the destruction of any real estate or movable property that belongs to an individual or to the State by the occupying force, subject to the following exception:

‘except where such destruction is rendered absolutely necessary by military operations.’

In J. Pictet’s commentary on the Geneva Convention (1958, at p. 302), he explains the nature of the aforesaid reservation as follows:

‘The prohibition of destruction of property situated in occupied territory is subject to an important reservation: it does not apply in cases “where such destruction is rendered absolutely necessary by military operations.” The occupying forces may therefore undertake the total or partial destruction of certain private or public property in the occupied territory when imperative military requirements so demand. Furthermore, it will be for the occupying power to judge the importance of such military requirements. It is therefore to be feared that bad faith in the application of the reservation may render the proposed safeguard valueless; for unscrupulous recourse to the clause concerning military necessity would allow the occupying power to circumvent the prohibition set forth in the convention. The occupying power must therefore try to interpret the clause in a reasonable manner: whenever it is felt essential to resort to destruction, the occupying authorities must try to keep a sense of proportion in comparing the military advantages to be gained with the damage done’ (emphases supplied).

In the spirit of the aforesaid commentary, before he decides to requisition or to demolish civilian property in the occupied territory, the military commander is required by international law to exercise very scrupulous consideration. He is entitled to do this where essential military-security needs so demand, and when the requisition balances proportionately between the importance of the military need and the extent of the damage that is likely to be caused to the property owner by the requisition. Within the framework of this balance, he should consider, inter alia, the existence of alternatives that may prevent any harm to individual rights (Timraz v. IDF Commander in Gaza Strip [10], at para. 4; HCJ 834/78 Salama v. Minister of Defence [11]). The requisition of property as aforesaid will also be possible in exceptional cases where it is required in order to provide essential living requirements of the population living in the area; thus, for example, a need was recognized to requisition private land for the purpose of paving roads and access routes to various places in the area. In exceptional cases, a certain harm to private property may be possible for the purpose of providing a proper defence to other constitutional human rights of the population living in the area, where these conflict with the property right of the individual in a specific case. But it is always a condition for the legal validity of such harm that it satisfies the proper balance test which is required in accordance with the criteria determined by constitutional law.

Alongside the rules of international law, the rules of internal Israeli law that apply to the area commander require that the property of the inhabitants of the area may not be harmed unless such harm is intended to achieve a purpose which falls within his powers, and an essential need makes this necessary. This power, both from the viewpoint of international law and from the viewpoint of Israeli public law, should be exercised for a proper purpose, reasonably and proportionately, after a careful and measured balance between the necessity of the purpose that he wishes to achieve and the nature and scope of the harm involved in achieving it.

10. This court exercises judicial review of the legality of the discretion exercised by the area commander as someone who holds a public office by law. In this review, the court does not replace the discretion of the commander with its own discretion, and it does not make itself an expert in security and military matters in the place of the commander (HCJ 302/72 Hilo v. Government of Israel [13]). Even under international law the military commander has broad discretion to decide the scope of the necessity (C.C. Hyde, International Law (second edition, vol. 3, 1947), at p. 1802). The role of judicial review is to stand on guard and ensure compliance with the legal rules that determine the limits of the area commander’s discretion (Ajuri v. IDF Commander in West Bank [2], at para. 30; HCJ 619/78 El Talia Weekly v. Minister of Defence [14], at p. 512). We must be scrupulous when considering the legality of the discretion exercised by the area commander, including whether the considerations underlying his action are relevant, reasonable and proportionate, in view of all of the circumstances of the given case (HCJ 1005/89 Agga v. IDF Commander in Gaza Strip [15], at p. 539).

Levels of scrutiny of the requisition order’s legality

11. The arguments of the petitioners necessitate an examination of the legality of the requisition order in its restricted format on two levels: first, whether the reason underlying the making of the order is a real security concern, or whether the motive for it is intended to achieve another purpose, such as creating territorial continuity between Kiryat Arba and the Machpela Cave for the purpose of strengthening the Jewish settlement in the area of Hebron.

Second, we must examine to what extent, assuming that the requisition order was made for relevant security reasons, the decision of the commander satisfies the constitutional balance test, in permitting harm to the private property of one person in order to allow proportionate security measures to be adopted for the purpose of helping to achieve the right of worship and prayer of another person at a holy place.

Purpose of the order to increase security measures and irrelevant considerations

12. According to the basic principles of administrative law, an administrative authority is obliged to exercise its powers on the basis of relevant considerations only. It must take into account facts and data that are relevant to the case, including relevant values and principles only. It is prohibited from considering an irrelevant consideration (HCJ 5016/96 Horev v. Minister of Transport [16], at p. 34 {183}; I. Zamir, Administrative Authority, 1996, at pp. 741-742). Taking an irrelevant consideration into account may result in the decision being set aside where it can be assumed that, had the irrelevant consideration not been taken into account, the decision of the authority would have been different (HCJ 390/79 Dawikat v. Government of Israel [17], at p. 20). Identifying the relevant considerations for exercising the authority is based on the purpose of the authorizing legislation (HCJ 5688/92 Wechselbaum v. Minister of Defence [18], at p. 824; HCJ 987/84 Euronet Golden Lines (1992) Ltd v. Minister of Communications [19], at p. 432).

The area commander denies the existence of a concealed political motive for making the order, and insists that the plan to widen the worshippers’ route, requisition the parcels adjacent to the route and demolish the buildings, all of which is included in the order, is essential for security needs and vital for the protection of the lives of the persons using it.

The action of the military commander in making the requisition order has the presumption of administrative propriety as long as no factual basis has been established to the contrary. In our case, no sufficient factual basis has been established for the claim that the considerations of the area commander in issuing the order in its narrow format were motivated by irrelevant considerations and a concealed purpose that is not really the addition of essential security measures on the worshippers’ route. The right of worshippers to walk from Kiryat Arba to the Machpela Cave on Sabbaths and festivals has not been denied. The commander, as the person responsible for the security of the inhabitants and public order in the area, and as the person responsible for protecting the safety of the inhabitants of the area — both Jews and Arabs — is of the opinion that it is essential to increase security measures along the worshippers’ route in order to protect the pedestrians who use it. This position is explained, inter alia, against the background of the large number of persons who use the route, and the major security risks involved in it in view of its topographic characteristics. This position is not prima facie unfounded and it is supported by bitter experience associated with the terror attacks that have occurred in the area of the route and which have claimed human lives. The position of the commander, prima facie, is reasonable from the viewpoint of logic and clear reasoning. No major effort at persuasion is required to prove the existence of a major security risk created by the passage of thousands of pedestrians in an area infamous for terror attacks, whose alleys are so narrow that a vehicle cannot pass along certain parts of them, and abandoned buildings next to it may serve as hideouts for terrorists. These topographic features justify, prima facie, the adoption of measures to increase the security of the pedestrians in the passage. They do not support the claim that an improper, concealed motive is what led to the making of the order. A separate question is to what extent, assuming that it is indeed a security motive that underlies the order, it satisfies the constitutional test as to the manner in which it balances between the freedom of religion and right of worship of the worshippers on the one hand, and the right of private property of the petitioners on the other.

Constitutional balance: realization of the right of prayer and worship in conditions of relative security against a relative violation of the right of private property

13. The essence of the requisition order is the adoption of security measures along the worshippers’ route in order to protect, albeit in a relative degree, the lives of the pedestrians on Sabbaths and festivals. In order to achieve this purpose, a requisition of land is required alongside the route, as well as a partial demolition of two buildings and a part of an additional building which are uninhabited. Is the military commander authorized to make a requisition order for the purpose of increasing the security of the worshippers who use the route, in order to allow them to realize their right to pray at the holy site under conditions of relative security, where this involves a violation of the right of private property, and does this satisfy the constitutional test?

Responsibility of the military commander for the safety of the inhabitants of the area

14. In addition to the responsibility of the area commander to ensure the security of the military force that he commands, he must ensure the safety, security and welfare of the inhabitants of the area. He owes this duty to all the inhabitants, without any distinction as to their identity — Jews, Arabs or foreigners. The question whether the residency of various parts of the population is legal does not come before us today for a determination. Their very residency in the area leads to the duty of the area commander to protect their lives and their human rights. This is part of the humanitarian sphere for which the military force is responsible in a belligerent occupation (HCJ 72/86 Zaloom v. IDF Commander for Judaea and Samaria [20]; HCJ 469/83 Hebron National United Bus Company Ltd v. Minister of Defence [21]; HCJ 4363/02 Zindah v. IDF Commander in Gaza Strip [22]; Gussin v. IDF Commander [1], at para. 6). The duty of the commander to ensure proper living conditions in the area extends to all spheres of life and goes beyond security matters and immediate existential needs. It applies to the varied living requirements of the inhabitants, including medical needs, sanitation, economic concerns, education, social needs and other needs that people require in modern society. It applies also to measures required to ensure ‘growth, change and development’ (Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [3], at para. 26). Within the framework of his responsibility for the welfare of the inhabitants of the area, the commander must also concern himself with providing proper protection for the constitutional human rights of the inhabitants of the area, within the limits that the conditions and circumstances in the area allow. Such protection applies to all the population groups that live there, Jews and Arabs alike. Included among the protected constitutional rights are the rights to freedom of movement, freedom of religion and worship, and property rights. Sometimes this protection requires a decision between conflicting human rights. Such a decision requires a balance that satisfies the constitutional test, namely the existence of a proper purpose and proportionality in the harm to one right in order to allow the relative realization of the other right. In making the requisition order, the area commander is seeking to increase the security measures for pedestrians on the worshippers’ route on their way to the Machpela Cave. Thereby he is seeking to allow the realization of their constitutional right to freedom of religion and worship in conditions that provide protection to life, albeit relatively. In doing so, a relative violation of the petitioners’ private property rights was necessary. Is the balance that was made a proper and proportionate one?

Freedom of movement and freedom of religion and worship

15. The inhabitants of the area have a constitutional right to freedom of religion and worship. This is the case for the Arab inhabitants and it is also the case for the Jewish inhabitants who live there. The inhabitants of the area also have the right of freedom of movement, by means of which it is possible to realize, inter alia, the right of access to holy places. The right of movement and access to holy places is of great constitutional strength (Horev v. Minister of Transport [16], at p. 49 {202-203}; HCJ 448/85 Dahar v. Minister of Interior [23], at p. 708; HCJ 2481/93 Dayan v. Wilk [24], at para. 17 {341}). In this case, the freedom of movement is closely associated with and incorporated in the right to realize freedom of religion and worship. It is a value that is intended to realize the right of Jewish worshippers to go on foot to the Machpela Cave on Sabbaths and festivals.

The freedom of worship as an expression of freedom of religion is one of the basic human rights. It is the freedom of the individual to believe and to act in accordance with his belief, by observing its precepts and customs (HCJ 1514/01 Gur Aryeh v. Second Television and Radio Authority [25], at p. 277; HCJ 650/88 Israel Movement for Progressive Judaism v. Minister of Religious Affairs [26], at p. 381; HCJ 3267/97 Rubinstein v. Minister of Defence [27], at p. 528 {200}). This freedom is related to a person’s realization of his own identity. This freedom recognizes the desire of a believer to pray at a holy site. This recognition is a part of the broad constitutional protection given to the right of access of members of the various religions to the places that are holy to them, and the prohibition against injuring their sensibilities with regard to those places (s. 1 of the Protection of Holy Places Law, 5727-1967). The freedom of religion is regarded as a branch of freedom of expression in the sphere of religious belief. It was recognized by the legislator already in art. 83 of the Palestine Order in Council, 1922, and in the Declaration of Independence, which states that freedom of religion and conscience will be guaranteed to every citizen of the State. This freedom has been recognized in case law as a constitutional basic human right (HCJ 292/83 Temple Mount Faithful v. Jerusalem District Police Commissioner [28], at p. 454; Israel Movement for Progressive Judaism v. Minister of Religious Affairs [26], at p. 381; HCJ 7128/96 Temple Mount Faithful v. Government of Israel [29], at pp. 522-523; Gur Aryeh v. Second Television and Radio Authority [25], at pp. 276-277).

The freedom of religion and worship is granted as a constitutional right to the population living in the territories, both Jews and Arabs. It is regarded as a constitutional right of supreme status that should be realized in so far as possible in view of the conditions prevailing in the territories, while protecting the safety and lives of the worshippers. Increasing the security measures for the pedestrians along the worshippers’ route is intended to allow Jewish inhabitants to exercise their constitutional right to pray at a holy site.

Prayer at the Machpela Cave: a constitutional right of worship of Jews and Moslems

16. According to Jewish, Christian and Moslem tradition, the Machpela Cave is the site where Abraham and Sarah, Isaac and Rebecca, Jacob and Leah are buried, and according to some non-Jewish traditions, Joseph too is buried there. According to the tradition, the building of the Cave is located on a burial plot that Abraham acquired in order to bury his wife, and there all the other patriarchs and matriarchs, with the exception of Rachel, were buried. Historical and archaeological research has not clearly discovered who built the building of the Machpela Cave, although most researchers attribute it to King Herod and associate it with the Idumeans (for an extensive survey of this subject, see the Shamgar Commission Report, supra, at pp. 95 et seq.).

The Machpela Cave was regarded as a holy site and a place of worship already in the period of the Mishnah, after the destruction of the Temple. Praying by Jews at the Cave is recognized today in decisions of the political echelon. In 1967 the government made several decisions regarding the reinstatement of praying by Jews at the Machpela Cave on Sabbaths, and it made arrangements for coordinating the prayers of Jews and Moslems at the Cave, together with proper security measures for protecting Jewish worshippers (Shamgar Commission Report, at pp. 99 et seq.). Later it was decided that Jews would be entitled to enter the Cave also on Friday evening, for the Sabbath Eve prayers. As of 1972, the areas of prayer in the Cave were determined anew in a decision of the government, and the areas for Jewish prayers were extended. This extension resulted from a growth in the Jewish settlement in the area, and the founding of Kiryat Arba, which increased the number of people wishing to pray at the Cave. On 4 August 1975, the government made a decision regulating the arrangements for entering and leaving the Cave, and the division of prayer times in the various areas, in order to reduce friction between Jewish worshippers and Moslem worshippers.

Over the years, the prayers in the Cave have, from time to time, been accompanied by violent friction between Jews and Arabs, which sometimes resulted in loss of life on both sides. The height of these conflicts occurred in the massacre at the Machpela Cave in 1994, when dozens of Moslem worshippers were murdered. Recognition of the Cave as a holy site for both Jews and Moslems led the government and the army, in coordination with the Moslem representatives, to determine arrangements that would allow those who wished to realize the right of prayer at the Cave to do so, whether Moslems or Jews. In this context, security arrangements were made to split the times and places for prayer between believers of the two religions, with the intention of ensuring that the basic rights of prayer of the two sides would be upheld (Shamgar Commission Report, at pp. 107 et seq.). After the massacre at the Machpela Cave, the Commission of Inquiry recommended that the arrangements for prayers at the Cave for members of the two religions should be maintained, with particular care to separate Jews and Moslems physically for security reasons, and with a reinforcement of security measures that were intended to protect the worshippers of the two religions against attacks of one group against the other.

The main conclusions of the Shamgar Commission concerned the prayer and security arrangements required in the precincts of the Cave itself. This case involves similar issues in the sense that it concerns aspects of the security of the Jewish worshippers on their way to the Cave, as a part of the realization of their right to freedom of worship at a holy site. But the premise is that freedom of religion and worship is not an absolute freedom but only a relative one. A balance must be found between it and other rights and values that are worthy of protection, including the value of private property (per President Barak in Temple Mount Faithful v. Jerusalem District Police Commissioner [28], at p. 455; A. Barak, Legal Interpretation, vol. 3, at p. 225). Against this background, the question before us is whether the need to ensure the safety of the worshippers justifies taking measures that include the requisition of land and the demolition of houses that are privately owned.

Property rights

17. The right of private property in the land and buildings that are the subject of the requisition order is a protected constitutional right. It is recognized in international law, including in the Hague Convention and Geneva Convention. It has achieved a constitutional status in Israel in s. 3 of the Basic Law: Human Dignity and Liberty (HCJ 2390/96 Karasik v. State of Israel [30] at pp. 712, 716; CA 5546/97 Kiryat Ata Local Planning and Building Committee v. Holtzman [31], at p. 641). The individual’s property right does not cease to exist even in wartime (Gussin v. IDF Commander [1], at para. 4). The right of property has additional weight when it concerns a person’s home (LCA 214/88 Tawil v. Deutch [32], at p. 754). In this case, we are not dealing with homes that are inhabited, since the buildings that are scheduled for demolition were abandoned years ago. We are dealing with buildings with an archaeological value whose historical value should be protected (HCJ 270/87 Kando v. Minister of Defence [33], at p. 742). The area commander has a duty, under the rules of international law, including the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 1954, to protect the cultural treasures in an occupied territory, including assets of archaeological value. He must act in this matter in accordance with the basic principles of administrative law.

            A person’s right to property is not an absolute right. It is a relative right. It may be violated where other desirable social purposes need to be promoted, and these include the advancement of different constitutional basic rights of others (Ajuri v. IDF Commander in West Bank [2], at p. 365 {97}). What is the scope of the violation that is permitted to the property right as a constitutional right in such a conflict of rights?

            Two-stage balance: first stage — freedom of religion and worship versus the value of protecting human life; second stage — the freedom of worship versus the value of protecting private property

            18. A confrontation between conflicting constitutional rights is usually a direct and frontal confrontation that requires balancing and weighing in one stage. But sometimes the conflict is more complex, and it may involve not only a conflict between constitutional human rights but also a conflict between them and between another general social value — such as the value of preserving public safety and security, which, in the circumstances of the case, enters into the required balancing process. In such a case, a need may arise for a two-stage balancing between the rights and values in order to decide the question whether the administrative act satisfies the constitutional criteria. The case before us is an example of the latter possibility. It first raises the question as to what is the proper method of balancing the right of the worshippers to realize the freedom of prayer at a holy site against the value of protecting human life which the area commander is responsible to protect. If, within the framework of this balance, it transpires that in the circumstances of a given case there is no possible proper balance between the freedom of worship and the value of protecting life, then the latter value prevails and the right of worship gives way on account of the importance of the value of life. However, if it transpires that it is possible in the circumstances of a certain case to find a balance between the aforesaid constitutional right and the value of protecting human life by adopting increased security measures, then a second question arises as to whether the violation of another constitutional right such as the right of private property, which is necessitated within the framework of those measures, satisfies the rules of constitutional balancing in its conflict with the right of prayer at a holy site.

            The first stage of the balancing: the right of worship versus the value of protecting human life

            19. Realization of a constitutional right may involve a danger to public safety and security. This risk also includes a risk to the safety and security of someone who wishes to realize the constitutional right. There exists an obvious public interest in maintaining order and security in society. This as an essential condition for protecting life and human existence. The protection of human life is a condition for realizing individual rights and therefore this protection is of greater importance than the constitutional right, where there exists a real probability, in the sense of a ‘near certainty,’ that realizing the right will lead to serious harm to public safety (per President Barak in Temple Mount Faithful v. Jerusalem District Police Commissioner [28], at p. 454). The public interest in protecting human life affects the scope of the constitutional right and its relative importance vis-à-vis other values. Where the realization of the constitutional right will lead to a near certainty of serious harm to public safety, the constitutional right will give way to public safety (Dayan v. Wilk [24], at p. 472 {341-342}). This has been held for many years with regard to the right of Jews to pray on the Temple Mount in Jerusalem, when it was found that realization of the right de facto would almost certainly lead to an eruption of large-scale disturbances, which might become uncontrollable, both in Israel and abroad.

            But the existence of a risk to public order and security that can be anticipated from the realization of the constitutional right does not justify, in every case, the absolute denial of its realization. We should aim, in so far as possible, to achieve a proper balance between the needs of protecting public safety and the value inherent in the realization of the constitutional right, by creating an infrastructure of measures that will reduce the likelihood of the harm. The need and ability to make such a balance derive, on the one hand, from the strength of the constitutional right of the individual, and, on the other hand, from the range of measures available to the competent authority to satisfy the needs of public order and security, which are required as a precondition for realizing the constitutional right.

            The freedom of religion is a constitutional basic right of the individual, with a preferred status even in relation to other constitutional human rights. The freedom of worship constitutes an expression of freedom of religion, and it is an offshoot of freedom of expression. ‘A person expresses himself within the sphere of religious belief by means of religious worship’ (per Justice Zamir in Temple Mount Faithful v. Government of Israel [29], at pp. 522-523). The constitutional protection given to freedom of worship is therefore similar, in principle, to the protection given to freedom of speech, and the constitutional balancing formula that befits the one is also applicable to the other (Temple Mount Faithful v. Jerusalem District Police Commissioner [28], at p. 456). We are concerned with a constitutional right of great strength whose weight is great when it is balanced against conflicting social values.

            Where the realization of the right of worship creates a near certainty of the occurrence of serious and grave damage to public safety and there is no solution to such a collision by means of the use of reasonable measures that will make the danger more remote, then the value of public safety will prevail and the constitutional right will yield to it (Barak, Legal Interpretation, vol. 3, pp. 225-226). But where there are reasonable measures that can reduce the danger of the harm, the authorities can and should resort to these, especially where they are confronted with a constitutional right of special weight. Thus, the greater the constitutional right on the scale of rights, the greater is the need to exhaust all available reasonable measures by means of which it is possible to reduce the danger to public safety.

            The worshippers who wish to go to the Machpela Cave by foot on Sabbaths and festivals wish to realize a constitutional right of freedom of worship in a holy place. This right is of special importance and weight on the scale of constitutional rights. But the public interest to ensure the security and safety of the worshippers, when passing along the worshippers’ route, against the danger of attacks that directly threatens them conflicts with the realization of the right of worship. It is the responsibility of the area commander to protect the route and those using it against danger to human life. In order to satisfy the security interest as aforesaid, the area commander considered two alternatives: to prohibit the use of the route by worshippers on foot from Kiryat Arba to the Cave on Sabbaths and festivals, or to allow this use and to take various measures that will increase the security of the area. In view of the constitutional importance of the right of prayer in a holy place, the commander saw fit to allow the use of the route and to adopt increased security measures. This balance, prima facie, satisfies the test of reasonableness. Whether the measure of harming private property in order to achieve the aforesaid purpose satisfies the constitutional test is another question.

Second stage of the balancing: the right of religion and worship versus the right of private property

20. There may be situations in which a relative harm to one constitutional right is possible in order to realize another constitutional right, in conditions that will ensure relative protection of human life. This is conditional upon the relative balancing of these constitutional rights against one another, as dictated by the circumstances of the case. This balance sometimes requires a conceptual definition of the constitutional rights in accordance with a scale of importance and strength in order to examine whether one right has preference and superiority to the other, or whether they are of equal importance and standing. Sometimes this conceptual examination will become redundant whether it is found that a balance that was made de facto also satisfies the constitutional criteria required for the purpose of a balance between constitutional rights that are of equal standing and rank to one another.

In the special circumstances of this case, there is no need to adopt a decisive position with regard to the conceptual ranking of the right of worship and the right of property in order to decide the question of how to balance between them in a case of a conflict. In view of the facts of the concrete case, the balance between them satisfies the test of constitutionality (HCJ 153/83 Levy v. Southern District Commissioner of Police [34], at p. 400 {115-116}). Even if we assume, for the purposes of this case, that we are concerned with constitutional rights of equal standing and importance, even so, in the horizontal balance between them, sometimes a certain reduction of one will be possible to allow the relative realization of the other. This reduction satisfies the test of constitutionality if it befits accepted social values, is intended for a proper purpose and is not excessive in its scope, in the spirit of the limitations clause in s. 8 of the Basic Law: Human Dignity and Liberty. These principles today form a link between the Basic Law and all the rules of public law (Horev v. Minister of Transport [16], at pp. 41-43 {193-195}). They reflect a general balancing formula that assumes that where constitutional rights of an equal standing are concerned, complete protection should not be given to one right at the expense of a complete violation of the other right, but we should seek to uphold them jointly by allowing a reciprocal reduction of each of them.

From the general to the specific

21. The area commander has the responsibility for the security of the military force in the area under his command, as well as for maintaining order and ensuring the security and welfare of the inhabitants living there. Of paramount importance in the responsibility for the population of the area is the duty to ensure the safety and security of the inhabitants’ lives. The responsibility of the commander includes not only the duty to ensure that the inhabitants’ lives are secure, but also the responsibility to protect the human rights of all the inhabitants of the area, whether Arabs or Jews. One of the constitutional human rights that deserves protection is the right of freedom of religion and worship. Within the scope of this right, the Jewish inhabitants wish to give expression to their faith by praying at the Machpela Cave, which is a Jewish holy place. The realization of this right on Sabbaths and festivals requires walking from Kiryat Arba to the Machpela Cave. The risk of terror attacks and the topographic conditions require, as a condition for making this journey on foot, the existence of minimum security conditions to protect the worshippers against attacks. These conditions require the adoption of special measures to achieve this. Realization of such measures involves harm to the right of private property of the Arab inhabitants of the area, whose land is situated along the route. The property right of these inhabitants also has a recognized constitutional standing.

In making the requisition order, the area commander sought to make a proportionate balance between the conflicting constitutional rights, in order to allow the realization of the right of prayer at a holy place in conditions of relative security for those persons passing along the route.

All the possibilities for a pedestrian route of the worshippers were considered, and it was found that, with the exception of the worshippers’ route, every other alternative was far more costly in terms of the security risks to the worshippers and the harm and damage anticipated to the inhabitants of the area. When the worshippers’ route was found to be the preferable route, the area commander reduced to a minimum the harm to private property along the route. In the northern part, he reduced the width of the route to two metres from each side. In the southern part of the route he reduced the widening of the route to a total width of four metres. This widening will allow only the unidirectional passage of rescue vehicles, as opposed to the possibility of bidirectional traffic that was previously considered. This reduction diminishes the harm to property, on the one hand, and allows only a minimum of security measures for the worshippers, on the other. All the buildings that are the subject of the requisition order are abandoned and uninhabited. One house that was found to be inhabited was excluded from the requisition order and the route of the passage was changed accordingly. The reduction of the area of widening the southern route currently requires a partial demolition of two buildings and a part of an additional building, which have not been inhabited for many years. The demolition does not involve the eviction of persons from their homes. The aforesaid demolition is supposed to be supervised by professionals in the fields of conservation of buildings and archaeology, in order to protect the cultural-historical values of the area, in so far as possible. The owners of the property have a right to payment for the use thereof and compensation for the requisition and the demolition. The requisition order is limited in time. When the security position changes and calm prevails in the area, the presumption is that the order will not be extended and property that has been requisitioned and can be returned will be returned to its owner.

The balance between the conflicting constitutional rights is not easy or self-evident in the circumstances of this case. It involves aspects of rights of human expression by means of realizing religious belief and worship, which conflict with rights and values concerning a connection to land and property; in addition to all of these, there is a general value of responsibility for protecting human life. The point of equilibrium between all of these factors is hard to find. Nonetheless, in the final analysis it would appear that the requisition order in its narrow format satisfies the test of constitutionality, by finding a relative balance between the constitutional rights. It allows the right of worship to be realized while providing relative protection to the security of the worshippers, which is made possible by harm to the conflicting right of private property in a limited degree, which is accompanied by financial compensation. It does not conflict with accepted social values, it is done for a proper purpose and it is not excessive. If the area commander were to refrain from causing the relative harm to property rights, this would mean failing to adopt essential security measures for the protection of the persons walking along the route. If this were the case, it would make it necessary to deny the right of the worshippers to go to the Cave on Sabbaths and festivals absolutely, because of the lack of adequate security measures to protect their safety. Such a denial would constitute an absolute and improper violation of the freedom of worship to pray at a holy site and a serious violation of the freedom of movement and access required in order to realize freedom of religion. Alternatively, it would lead to allowing the passage of the worshippers along the route without the special security measures that are required in the circumstances of the case, thus increasing the immediate risk to the safety and lives of men, women and children using the route, sometimes in their thousands. These alternatives create considerable difficulty in themselves. Against this background, the upholding of the right of worship in conditions of relative protection for the security of the worshippers, by means of relative harm — which has been reduced to a minimum — to the property rights of the owners of the rights along the route, satisfies, in the special circumstances of this case, the conditions for the constitutional balance in a way that is not unreasonable.

Consequently I find no ground for intervention in the discretion of the area commander in making the requisition order in its narrow format, in accordance with which the order is going to be amended.

Outcome

22. On the basis of the aforesaid, I propose to my colleagues that we deny the petitions and recognize the validity of the requisition order in its narrow form, as set out in the written notice of the State dated 7 August 2003, and in the statements of counsel for the respondents during the hearing in the court on 23 November 2003, with regard to the scope of the widening of the route in its northern part. We have made a note of the respondent’s statement that an amending order will be made to the original requisition order in the spirit of the aforesaid notices of the State.

 

 

President A. Barak

I agree.

 

 

            Justice M. Cheshin

I agree.

 

Petitions denied.

11 Adar 5764.

4 March 2004.

Translator’s note: The Hebrew word Shabbat has been translated as Shabbat which can refer to either Saturday or the Jewish Sabbath.

 

HCJ 1514/01

1.  Yaakov Gur Aryeh

2.  Bat Shir Gur Aryeh

v.

1.  Second Television and Radio Authority

2.  TTV, Ltd.

3.  Eyal Zayid

4.  Avital Levi

 

The Supreme Court Sitting as the High Court of Justice

[June 18th, 2001]

Before President A. Barak, Vice President S. Levin, Justice D. Dorner

 

Petition to the Supreme Court sitting as the High Court of Justice for an order nisi and an interlocutory order.

 

Facts: Petitioners are the subject of a film made by or for the respondents.  The film was designated for broadcast on television on Shabbat.  When the petitioners discovered the film was going to be broadcast on Shabbat they approached the Second Television and Radio Authority, and asked that the film not be broadcast on Shabbat stating that broadcast of the film on Shabbat would harm their religious feelings and violate their religious freedom.  The request was denied by the Second Television and Radio Authority, which was willing to add captions on the screen which would state that the film was filmed on a weekday, but was not willing to broadcast the film on a weekday.  The petition was filed against this decision.

 

Held: In the majority opinion, written by President Barak, it was determined that broadcast of the film on Shabbat constituted a violation of the petitioners’ religious feelings but not their freedom of religion.  In the balance between the violation of the petitioners’ religious feelings and the freedom of expression of the respondents the freedom of expression prevails.  The petition was therefore denied.

In a dissenting opinion Justice Dorner was of the view that the petitioners’ freedom of religion was violated, and that in balancing the competing human rights – the freedom of religion of the petitioners, on the one hand, and the freedom of expression and right to property of the respondents on the other – in this specific instance, the freedom of religion of the petitioners should prevail.

.

Basic laws cited:

Basic Law: Human Dignity and Liberty

Basic Law: Freedom of Occupation, s. 4.

 

Legislation cited:

Second Television and Radio Authority Law 5750-1990, ss. 48, 48(a).

 

Israeli Supreme Court cases cited:

[1]      HCJ 164/97 Kontrem Ltd. v. Ministry of Finance IsrSC 52(1) 289

[2]      HCJ 399/85 Kahane v. Broadcast Authority Management Board (1987) IsrSC 41(3) 255

[3]      HCJ 4804/94 Station Film Company Ltd. v. Film and Play Review Board, IsrSC 50(5) 661.

[4]      HCJ 6218/93 Cohen v. Bar Association IsrSC 49(2) 529.

[5]      HCJ 953/89 Indor v. Head of Jerusalem Municipality IsrSC 45(4) 693.

[6]      HCJ 3888/97 Novik v. Second Authority IsrSC 51(5) 199.

[7]      HCJ 287/69 Meiron v. Minister of Labor IsrSC 24(1) 337.

[8]      HCJ 5016/96 Horev v. Minister of Transportation IsrSC 51(4) 1. 

[9]      HCJ 351/72 Keinan v. Film and Play Review Board IsrSC 26(2) 811.

[10]    HCJ 806/88 Universal City Studio Inc. v. Film and Play Review Board IsrSC 43(2) 22.

[11]    CrimAp 697/88 Sutzkin v. State of Israel IsrSC 52(3) 289.

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

[13]    HCJ 243/81 Yaki Yoshe Company Ltd. v. Film and Play Review Board IsrSC 35(3) 421.

[14]    HCJ 448/85 Dahar v. Minister of Interior IsrSC 40(2) 701.

[15]    CrimA 126/62 Disenchek v. Attorney General IsrSC 17 169.

[16]    CA 294/91 Chevra Kadisha GHSHA ‘Kehillat Yerushalayim’ v. Kestenbaum. IsrSC 46(2)464.

[17]    HCJ 2481/93 Dayan v. Commander of Jerusalem District IsrSC 48(2) 456.

[18]    HCJ 148/79 Sa’ar v. Minister of Interior and Police IsrSC 34(2) 169.

[19]    HCJ 291/74 Bilet v. Goren IsrSC 29(1) 98.

[20]    HCJ 115/50 Yosefof v. Attorney General, IsrSC 5 481.

[21]    HCJ 866/78 Morad v. Government of Israel, IsrSC 34(2) 657.

[22]    HCJ 650/88 Movement for Progressive Judaism in Israel v. Minister of Religious Affairs, IsrSC 42(3) 377.

[23]    HCJ 3267/97 Rubinstein v. Minister of Defense IsrSC 5295) 481.

[24]    HCJ 4298/93 Jabarin v. Minister of Education, IsrSC 48(5) 199.

[25]    HCJ 3872/93 Mitral Ltd. vs. Prime Minister IsrSC 47(5) 485.

[26]    CA 6024/97 Shavit v. Chevra Kadisha GHSHA Rishon LeZion [1999] IsrSC 53(3) 600.

[27]    HCJ 262/62 Peretz v. Local Council Kfar Shmaryahu, IsrSC 16 2101.

[28]    HCJ 292/83 Ne’emanei Har Habayit, Association v. Commander of Jerusalem District, IsrSC 38(2) 449.

[29]    HCJ 6656/93 Am K’Lavi v. Commander of Jerusalem Police IsrSC 48(4) 793.

[30]    CrimA 7528/95 Hillel v. State of Israel IsrSC 50(3) 89.

[31]    HCJ 4541/94 Miller v. Minister of Defense IsrSC 49(4)94.

[32]    HCJFH 4466/94 Nuseiba v. Minister of Finance, IsrSC 49(4) 68.

[33]    CrFH 2316/95 Ganimat v. State of Israel IsrSC 49(4) 589.

[34]    HCJ 1715/97 Office of Investment Managers in Israel v. Minister of Finance IsrSC 51(4) 367.

[35]    HCJ 450/97 Tnufah Manpower Services and Maintenances Ltd. v. Minister of Labor and Welfare IsrSC 52(2) 433.

 

American cases cited:

[36]    United States v. Lee, 455 U.S. 252 (1982).

[37]    Thomas v. Review Bd. Of Indiana Employment Security Div., 450 U.S. 707 (1981).

[38]    Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680 (1989).

 

German cases cited:

[39]    BVerfGE 35, 36 [1973].

[40]    BVerfGE 93, 1 [1995].

 

Israeli books cited:

[41]    A. Barak, Interpretation in Law, Vol. 2, (1993).

[42]    A. Rubinstein, Constitutional Law in Israel (5th ed., volume A, 1996.

[43]    H.H. Cohen, The Law (1992).

 

Israeli articles cited:

[44]    D. Statman, ‘Violation of’ Multi-Cultural ‘Religious Feelings’ in a Democratic and Jewish State’ Memorial Book for Ariel Rosen Zvi, may his memory be a blessing’ (eds. M. Mautner, A. Sagi, R. Shamir) (1998). 

[45]    Berinson ‘Freedom of Religion and Conscience in Israel’ Iyunei Mishpat 3, 405 at 406;

[46]    Gavison, ‘Religion and State – Separation and Privatization’ Misphat U’Memshal 2 55 at 78 (1984).

[47]    H. H. Cohn, ‘On Freedom of Religion and Religious Wellbeing – Reviews in Legal History’ Landau Book 813 (volume B, 1985). 

[48]    A. Kasher, ‘Violation of Feelings for the Overall Good’ Mishpat U’Memshal B 289 (1984).

[49]    I. Zamir and M. Sobel, ‘Equality before the Law’, Mishpat U’Memshal 5 (2000) 165.

[50]    Aharon Barak, ‘Protected Human Rights: The Scope and the Limitations’ Mishpat U’Mimshal A (1993) 253.

 

Jewish law sources cited:

[51]    Mishnah, Avot 1, P.

[52]    Avot of Rabbi Natan 22, A

[53]    Rabbi David Stav, ‘Filmed on a Weekday, Broadcast on Shabbat’ Nekudah 211 (1988) 52.

[54]    Rabbi Shlomo Zalman Oyerbach ‘Repeat Radio Broadcast on Shabbat’, Tehumin, Religious Law Compilation on the Topics of Torah, Society, and State 17 (1997) 13.

[55]    Rabbi Dr. Nahum Eliezer Rabinovich, Electricity in Jewish Religious Law (Part B – Shabbat and Holiday, 1981) 270.

[56]    Rabbi Dr. Nahum Eliezer Rabinovich, ‘Asking in the Matter’ Hadarom Torah Collection 15 (1962) 120.

[57]    Shavuot 39, A.

[58]    Mishnah, Psahim A, B.

 

For petitioners – Naftali Wersberger

For respondent no. 1 – Doron Avni; Tamar Hacker.

For respondents no. 2-4 – Efrat Avnet; Amir Ivztan

 

JUDGMENT

 

President A. Barak

The television network seeks to broadcast a film documenting the life and worldview of the petitioners, who are observant Jews.  They fill an active role in the film, which includes interviews with them.  The film was filmed on the weekdays.  The television network would like to show the film on Shabbat.  The petitioners object to this.  They claim violation of religious feelings and religious freedom.  Whose side is the law on – that is the question before us.

The Facts

1.    The Second Television and Radio Authority (hereinafter: ‘the respondent’) is a statutory corporation.  It was set up by power of the Second Television and Radio Authority Law 5750-1990.  Most of the broadcasts are by franchisees.  The Second Authority Council is authorized to ‘take time slots from a broadcast unit of the franchisee, for the purpose of showing broadcasts on behalf of the authority, on topics that in its opinion ‘are of special interest to the public’’ (section 48(a) of the law).  Against this background for four years now the program ‘Documentary Word’ has been broadcast on Shabbat.  This is the only half hour broadcast time slot that the respondent has.  The respondent decided (in 1999) to invite proposals for the production of documentary films on the topic of ‘places, phenomenon, and people in Israel on the issue of the tension between Judaism and Israeliness.’  Consequent to this it was decided between the respondent and respondent no. 2, a private company, that the latter would make a film about the residents of the settlement ‘Mitzpeh Kramim’.  The film was directed by the respondent no. 3.  The investigative research and interviews were conducted, inter alia, by respondent no. 4, who was the acting producer.

2.    The petitioners are residents of the settlement ‘Mitzpeh Kramim’.  As stated above, they are observant Jews.  They were identified by respondents 2-4 as suited to take part in the film.  They agreed to this.  The film was made and sent to the respondent.  Since it was considered suitable, it was supposed to be broadcast in the framework of the show ‘Documentary Hour’, which is broadcast, as stated, on Shabbat.  The petitioners approached the respondent, and asked that the film not be broadcast on Shabbat.  According to their claim, broadcast of the film on Shabbat violates their religious feelings and their religious freedom.  The respondent denied the request.  It is willing to add captions on the screen which would state that the film was filmed on a weekday.  It is not willing to broadcast the film on a weekday as it does not have a time slot for this.  The petition before us was filed to counter this decision.

3.    At first the petitioners argued before us that an agreement was made with them that the film would not be broadcast on Shabbat.  During the course of the arguments the petitioners repeated this claim, while arguing that there was a misunderstanding.  The source for this was, according to their claim, in the fact that some of the respondents were religious and from this the petitioners concluded that the film would not be broadcast on Shabbat.  After reviewing the material before us, we are making the determination that there was no agreement between the petitioners (or some of them) and the respondents according to which the film would not be broadcast on Shabbat.  The opposite: it was said to the petitioners that the film would be broadcast on the show ‘Documentary Word’.  From this the petitioners could conclude that the film would be broadcast on Shabbat.  Moreover, it is routine that observant Jews are filmed on weekdays and the film is aired on Shabbat.  Indeed, the petitioners should have known that the film would be aired on Shabbat, and the respondents assumed and were entitled to assume, that the petitioners agreed to this.  It was the duty of the petitioners to look into this matter before they participated in the film (compare HCJ 164/97 Kontrem Ltd. v. Ministry of Finance [1]).  Against this background the question was raised whether the petitioners have the right – which is not anchored in an agreement – that the film not be broadcast on Shabbat as, according to their claim, it violates their religious feelings and freedom of religion.  In truth, the petitioners themselves are not being made to desecrate Shabbat.  However, broadcast on Shabbat turns the petitioners, according to their claim, into accomplices of the desecration of Shabbat.  When the petition was filed we sought to resolve the matter by amicable means.  A conference was held before the President.  The petitioners’ Rabbi was invited to the meeting.  We sought to examine various ways to settle the dispute by agreement between the parties.  The respondents offered to broadcast the film with a caption that the filming took place on a weekday; it was also proposed that the caption would further state that the petitioners objected to broadcast of the film on Shabbat.  It was proposed to them that they make do with the filing of the petition without insisting on a judicial determination.  All proposals were rejected.  There is no recourse therefore but to hand down a judicial determination.

The normative framework

4.    The respondent is a statutory corporation.  Its discretion is subject to principles of public law in Israel.  It must weigh the relevant values and principles, and it must properly balance them.  On the one hand, there is the right of the respondent to freedom of expression.  That is the freedom of expression of the respondent – which serves as a spokesperson and a stage simultaneously (see HCJ 399/85 Kahane v. Broadcast Authority Management Board [2] at 268); it is the freedom of (artistic) expression of the other respondents (see HCJ 4804/94 Station Film Company Ltd. v. Film and Play Review Board  [3] at 680); it is the right of the public to know (see HCJ 6218/93 Cohen v. Bar Association [4] at 541).

5.    On the other hand, there are the feelings of the petitioners.  I accept that the very knowledge that the film in which the petitioners are participants will be broadcast on Shabbat – thereby turning the petitioners, in their own eyes, to parties to the desecration of Shabbat – can violate the religious feelings of the petitioners.  Preventing this violation is in the public interest.  Indeed a society whose values are Jewish and democratic protects the feelings of the public in general and religious feelings in particular (see HCJ 953/89 Indor v. Head of Jerusalem Municipality [5] at 690; HCJ 3888/97 Novik v. Second Authority [6] at 202; HCJ 287/69 Meiron v. Minister of Labor [7] at 364; hereinafter – ‘the Meiron Case’; HCJ 5016/96 Horev  v. Minister of Transportation [8] at 58; hereinafter – ‘the Horev  Case’; Statman, Violation of Religious Feelings, Multi-Culturalism in a Democratic and Jewish State (eds. M. Mautner, A. Sagi, R. Shamir) at 133 (1998)).  Indeed the coarse violation of religious feelings gnaws at the value of tolerance, which is one of the values which binds and unifies society in Israel.  The duty not to violate the religious feelings of the other ‘stems directly from the duty of mutual tolerance between free citizens of different beliefs, without which a diverse democratic society such as ours is not possible.’  (Justice Landau in HCJ 351/72 Keinan v. Film and Play Review Board [9] at 814; see also HCJ 806/88 Universal City Studio Inc. v. Film and Play Review Board [10] at 30; hereinafter – ‘the Universal City Case’; CrimAp 697/88 Sutzkin  v. State of Israel [11] at 307; hereinafter:  ‘the Sutzkin  Case’.

6.    What is the proper balance between the need to protect the freedom of expression of the respondents on the one hand and the need to protect the religious feelings of the petitioners on the other?  This question was discussed at length in the case law of the Supreme Court.  It was determined that the (vertical) ‘balancing formula’ is this: freedom of expression prevails, unless the violation of religious feelings is nearly certain and their violation is real and severe (see HCJ 7128/96 Temple Mount Faithful v. Government of Israel [12]; Universal City Case, p. 31; the Sutzkin  Case, p. 308).  Indeed in order to restrict freedom of expression a ‘plain’ violation of religious feelings is not sufficient.  A real and severe violation is necessary.  It is necessary that the violation go beyond the tolerable threshold of Israeli society (see HCJ 243/81 Yaki Yoshe Company Ltd. v. Film and Play Review Board [13] at 425).  This is a violation that shakes up the ‘doorposts of mutual tolerance’ (the Horev Case, p. 47)).

7.    What is the result of the proper balancing in the petition before us?  In opposition to the violation of the freedom of expression of the respondents is there a near certainty of a real and severe violation of the religious feelings of the petitioners?  There is no debate that the violation of the religious feelings of the petitioners is nearly certain.  It has been proven to us that such violation is certain (compare the Universal City Case, at p. 40).  But is the condition as to the intensity of the violation met?  The answer to this question is negative.  ‘The level of tolerability’ of Israeli society, in a Jewish and democratic state, includes situations in which the image of a believing Jew is broadcast on Shabbat (whether they are a political person and whether they are not a political person; whether it is an active interview or whether it is a chance filming).  This has been the situation in Israel for many years.  No one disputes this.  The violation of the religious feelings of the petitioners does not shake the doorposts of mutual tolerance in the State.  ‘In a democratic society a certain degree of violation of religious feelings is to be recognized.  Only in this way will it be possible for cooperative living of those with different religious views to take place.’ (Universal City Case, p. 39).  Certainly this is so if the broadcast of the film is accompanied by a caption that the film was filmed on a weekday.  A different conclusion would lead to the beginning of the end of broadcasts on Shabbat.  These broadcasts began as a result of a petition to this court (see the Meiron Case).  Consequent to this it is accepted in Israeli society that television broadcasts take place on Shabbat, in which, among others, observant Jews are seen, and in which interviews and conversations with them take place.  Thus on Shabbat, the operation of the Knesset and the government are broadcast, and in the framework of these, observant members of Knesset and ministers who are interviewed on weekdays are viewed; so too, on Shabbat entertainment, political, and cultural programs, in which observant Jews take an active part, are viewed.  If all of these are prohibited from being viewed, chances are great that all television will be shut down on Shabbat followed by the radio.  All this is not consistent with the ‘level of tolerability’ of the violation of religious feelings in Israel, as it has been accepted here for many years.  Indeed, the possibility of a certain violation of religious feelings is the price that every person, be his religion what it may be, is required to pay for life in democratic society, in which secular and religious and members of different religions live side by side one next to the other.  This is in many instances the price one must pay and there is no escape from it.  But, there are cases where a person who has a particular difficulty making peace with the violation of religious feelings can avoid that violation.  The case before us is such a case.  A religious person who is willing to be interviewed for television, but is not willing for the interview to be shown on Shabbat, can condition the interview on the term that the interview is to be broadcast only on a weekday.  But the petitioners did not do so, not explicitly nor by implication.  In this sense, as they themselves note in their notice to the court, they have only themselves to blame.  The result is therefore that the claim as to unlawful violation of religious feelings is to be dismissed.

8.    The petitioners did not base their arguments before us only on violation of religious feelings.  They went on to argue that broadcast of the film on Shabbat violates their freedom of religion.  They argue that in the (horizontal) balance between the violation of freedom of expression and the violation of religious freedom, the violation that is caused to the petitioners in broadcasting the film on Shabbat is more severe than the violation that will be caused to the respondents if the film is broadcast on a weekday.  What is the legal fate of such an argument?  Indeed, a distinction is to be made between the violation of religious feelings and the violation of freedom of religion.  Violation of the former (religious feelings) is a violation of the public interest.  The balancing required between the violation of this interest and the violation of freedom of expression is a vertical balancing (see A. Barak, Interpretation in Law, Vol. 2 [41] at p.688.).  The freedom has the upper hand, unless there is a probability (a likely possibility, near certainty, and the like) of severe violation  (in various degrees of severity) to the public interest (see, for example, HCJ 448/85 Dahar v. Minister of Interior [14] at 708 (public safety versus freedom of movement); CrimA 126/62 Disenchek v. Attorney General [15] (judicial purity versus freedom of expression); CA 294/91 Chevra Kadisha GHSHA ‘Kehillat Yerushalayim’ v. Kestenbaum [16] at 519 (public interest in language versus human dignity).  The second violation is to personal liberty.  It is a matter here of the necessary balance between violation of the two liberties (or more) (see HCJ 2481/93 Dayan v. Commander of Jerusalem District [17] (freedom of expression versus privacy and property); HCJ 148/79 Sa’ar v. Minister of Interior and Police [18] (freedom of expression versus freedom of movement).  The balance is horizontal.  Within it limitations of time, place and shape are established which will enable every liberty to fully fulfill its principles.  Is a vertical balancing necessitated in the petition before us?  In order to answer this question the scope of the competing rights needs to be examined.  Only if in light of this examination there is a clash between them, will there be a need for a horizontal balancing.  What is the situation in the matter before us?

9.    All accept that freedom of religion is a basic right in Israeli law (see A. Rubinstein, Constitutional Law in Israel 175 [42].  More than once it has been ruled that freedom of religion is a ‘core rule in our legal system’ (Justice Kister in HCJ 291/74 Bilet v. Goren [19] at 102), that it is ‘one of the personal liberties guaranteed to him in every enlightened democratic regime’ (Justice Landau in HCJ 115/50 Yosefof v. Attorney General, [20] at 488) and that it is to be seen as a ‘basic principle of our legal regime’ (Acting President Justice Landau in HCJ 866/78 Morad v. Government of Israel, [21] at 663).10.  What is the scope of freedom of religion?  This freedom encompasses the liberty of the individual to believe and his liberty to act according to his faith, while realizing its rules and customs (‘freedom of worship’) (See HCJ 650/88 Movement for Progressive Judaism in Israel v. Minister of Religious Affairs, IsrSC [22] at 381; HCJ 3267/97 Rubinstein v. Minister of Defense [23] 528; Berinson ‘Freedom of Religion and Conscience in Israel’ [45] at 406; Gavison, ‘Religion and State – Separation and Privatization’ [46] at 78 (1984); H. Cohn, ‘On Freedom of Religion and Religious Wellbeing – Reviews in Legal History’ [47].  Therefore freedom of religion includes the right of a person not to be compelled to act against their religion (see the Horev Case, at p. 140).  Freedom of religion also includes the right of a person to express himself with attire suited to the directives of his faith (see HCJ 4298/93 Jabarin v. Minister of Education, [24] at 203).  It is superfluous to mention that this is not a closed list.  Freedom of religion is tied to the individual and the realization of his identity.  It is part of his ‘I’.  Just as the ‘I’ constitutes a complex phenomenon whose boundaries are not to be clearly demarcated, so too the boundaries of freedom of religion are not to be demarcated.

11.  Does broadcast of the film on Shabbat violate the freedom of religion – as opposed to the religious feelings, of the petitioners?  The answer is negative.  Broadcast on Shabbat does not violate their liberty to believe and their liberty to act according to their belief.  It does not prevent them from realizing the rules and customs of their faith.  Examination of the arguments of the petitioners shows that their argument in fact is that the actions of others (the respondents) in opposition to the directives of the religion constitute a violation of the freedom of religion of the petitioners.  An argument such as this has been dismissed in the past more than once by this Court.  Thus, for example, the claim was dismissed that the existence of broadcasts on Shabbat constitutes a violation of the freedom of religion of the individual who does not watch television on Shabbat (the Meiron Case, at p. 363).  Justice Berinson noted in that case that despite the broadcasts on Shabbat, nobody was forcing the individual to watch television on Shabbat.  Only a violation that does not enable the individual to fulfill the directives of his religion and faith, or to conduct his lifestyle as a religious person, will be considered a violation of freedom of religion.  In another case, the claim was dismissed that the import of non-kosher meat and the consumption of non-kosher meat by Jews, constitutes a violation of the freedom of religion of believing Jews (see HCJ 3872/93 Mitral Ltd. vs. Prime Minister [25] at 500).  It was determined that the distinction is to be made between direct violation of the individual’s lifestyle (which constitutes a violation of his freedom of religion) and a violation of the feelings of an individual, consequent to the actions of another, which is not a violation of freedom of religion.  In that spirit I noted in another case that ‘I am not of the opinion that driving on Shabbat on Bar-Ilan street violates the constitutional right of every one of the residents of the neighborhood to freedom of religion.  The residents of the neighborhood are free to fulfill the directives of the religion.  The movement of the cars on Shabbat does not deny them this right, and does not violate it.’  (The Horev Case, p. 58).  Indeed, where a person is harmed by the actions of another which are in opposition to religion the claim is not of violation of freedom of religion but rather to its feelings and consciousness.  (See Kasher, ‘Violation of Feelings for the Overall Good’ [48]).

12.  I am aware that in the petition before us the harm to the petitioners is not merely because of the actions of others, but also because of the use on Shabbat of interviews that were conducted with the petitioners on a weekday.  This difference does not change the determination that at the basis of the claim of the petitioners there is the violation of their religious feelings and not their religious freedom.  Just as it cannot be imagined that the freedom of religion of an observant Jew is violated if a book that he wrote on a weekday is read on Shabbat while violating Shabbat, so too it cannot be imagined that the freedom of religion of an observant Jew is violated if an interview he gave on a weekday is broadcast on Shabbat.  Indeed, unchecked expansion of freedom of religion will result in a cheapening of the freedom of religion and depleting it of content.

13.  My conclusion, therefore, is that the broadcast of the film on Shabbat does not constitute a violation of the freedom of religion of the petitioners.  In light of this conclusion, there is no need to examine what the proper (horizontal) balance is between the violation of freedom of religion (were it to have occurred) and the violation of freedom of expression.  This examination raises a number of questions which are not simple, and which I have no need to discuss.  I also do not have the need to discuss an additional claim against the petitioners.  According to the claim, the respondents spent a prolonged period of time producing the film on the basis of a contract between the respondent and the production company, investing significant manpower and monetary resources.  They acted in good faith, and had no basis to think that the petitioners, who cooperated with them throughout the time period, would wake up when the work was done and raise an objection to the broadcast of the film on the date that was determined in advance.  In this situation there is room for the claim that the petition is lacking due to its delay, or that the petitioners are prevented from submitting the petition at this stage, or that it would not be just to grant the petitioners the requested remedy against the respondents.  However, as stated above, these claims can be left without a determination.

The result is that the petition is denied.  We have noted before us the declaration of the respondents that a caption will be added to the broadcast stating that the filming took place on a weekday.

 

 

Vice President Levin

I agree.

 

 

Justice D. Dorner

Unfortunately I cannot agree with the judgment of my colleague, President Aharon Barak.  Indeed, I agree with the opinion of my colleague that the violation of the petitioners’ feelings on its own does not justify, under the circumstances, granting the petition.  However, were my opinion to be heard, we would grant the petition and rule that broadcast on Shabbat of a television film which documents the course of the lives of the petitioners, observant Jews – including interviews conducted with them (hereinafter: ‘the film’) – does not merely harm their feelings, but rather also unlawfully infringes on their right to freedom of religion.

The following are my reasons.

The facts

1.    Production of the film which is approximately 24 minutes long, was ordered from respondents 2-4 (hereinafter collectively: ‘the producers’) by respondent no. 1 (hereinafter: ‘the Second Authority’).  This, with the intention of broadcasting it on Shabbat, in the broadcast time slot of half an hour, which is the only broadcast time slot that was available to the Second Authority for the purpose of broadcasting topics of special interest to the public.  The producers knew this.  However, the intention to broadcast the film on Shabbat, in the framework of the television show ‘Documentary Word’ dealing with the tension between Judaism and being Israeli, was not brought to the petitioners’ attention.  This, on the basis of a presumption based on the experience of the Second Authority with broadcasting interviews with observant Jews on Shabbat, including on the show ‘Documentary Word’ itself, according to which it fulfilled its obligation by accompanying the broadcast with the caption ‘filmed on a weekday’.

At the same time, it never occurred to the petitioners, who are young, and lack experience and contact with the media, that the film was designated for broadcast on Shabbat.  The subject was raised by the petitioners by chance on the day the filming was completed, and the producers promised to handle the matter.  However, it was later made clear to the petitioners by the producers, that the film would be broadcast on Shabbat.  Written requests by the petitioners to the Second Authority were to no avail.  The Second Authority apologized to the petitioners for the harm to their feelings, but explained that it could not broadcast the film on a weekday.  In their difficulty the petitioners turned to their Rabbi, Rabbi Shlomo Aviner, in order to find a solution in Jewish religious law that would not turn them into desecrators of Shabbat.  Rabbi Aviner made a categorical and resolved determination based on Jewish religious law that broadcast of the film on Shabbat would entail a mass desecration of Shabbat with the participation of the petitioners, that showing the film with the caption ‘filmed on a weekday’ may be perceived as propaganda and may even amount to moral corruption, and that in his view there is no solution in Jewish religious law that would allow the broadcast of the film on Shabbat.  Rabbi Aviner repeated this position of his during the course of the discussion which took place in the framework of the petition before us for the purpose of reaching a consensual arrangement.

The questions

Against this background three questions arise.  First, does the broadcast of the film, whose ‘actors’ are observant Jews, on Shabbat, violate their right to freedom of religion, meaning their right to fulfill the directives of their religion, as opposed to merely constituting harm to their feelings, as a result of the breach of the directive of their religion by other Jews.  Second, what is the proper balance between the rights of the petitioners to freedom of religion and the rights of the respondents to freedom of expression and property?  Third, how does the agreement between the petitioners and the producers as to the participation of the former group in the film, which was obtained without relating to the question of broadcast of the film on Shabbat, impact the parties’ rights.

I will discuss these questions in order.

The right of the petitioners

2.    The element which distinguishes freedom of religion from harm to religious feelings is that the violating action is prohibited to the believers or incumbent upon them according to the directive of their religion.  The content of the religion’s directive is determined by the religious guides of the Jewish religious law.  H. Cohn explained this:

‘’Freedom of religion’ means the freedom to do not what the religion permits, but only what the religion obligates. . .  In other words: the right to freedom of religion is the right to fulfill all the directives that a person’s religion imposes upon him, as long as he does not break the law. . .  the question what is the ‘directive’ that the law obligates one to do is a religious question, not a legal one: every single religion and its own directives, and every religion determines what is the degree of obligation in the fulfilment of one directive or another’ [Haim H. Cohn, The Law, [43] 525, emphases in the original].

We find a similar approach in comparative law.  The following was written in a decision of the United States Supreme Court, handed down by Chief Justice Warren Berger:

‘It is not within ‘the judicial function and judicial competence,’ ... to determine whether [the Amish] or the Government has the proper interpretation of the Amish faith; ‘[c]ourts are not arbiters of scriptural interpretation.’

[United States v. Lee, 455 U.S. 252, 257 (1982) [36] citing Thomas v. Review Bd. Of Indiana Employment Security Div., 450 U.S. 707, 716 (1981)[37]]

 In another decision of that court Justice Thurgood Marshall wrote:

‘It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds.’  [Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 699 (1989)[38]].

In Judaism which is not monolithic but decentralized, a believing person or believing public chooses their rabbi, and this rabbi is one who determines for him the obligations of his religion.  As it says in our sources ‘find yourself a rabbi and remove the doubt’ (Mishnah, Avot 1, P, [51]; Avot of Rabbi Natan 22, A [52]).  On this matter Justice Izhak Englard has written:

‘There is no place for this court to make an assumption as to the content of a religious law which is different than the one which was determined by the Rishon Le’Tzion and by the Local Rabbi of Rishon Le’Tzion…  It is a great principle in Jewish religious law that the public is obliged to follow the religious determination made by the local rabbi. . .’

[CA 6024/97 Shavit v. Chevra Kadisha GHSHA Rishon LeZion [26]].

In the case before us Rabbi Aviner made the religious law determination that in their appearance in the film being broadcast on Shabbat the petitioners themselves will break the directive of the religion, even if the broadcast is done by others.

Indeed, there are also other approaches more lenient than the approach of Rabbi Aviner.  See for example, a Jewish religious law ruling that permitted an observant film producer to sell his films to the Broadcast Authority knowing that they would be broadcast on Shabbat (Rabbi David Stav, ‘Filmed on a Weekday, Broadcast on Shabbat’ Nekudah 211 (1988) 52, [53] at 52-53).  But the position of Rabbi Aviner is not esoteric, and has much support.  See for example, Rabbi Shlomo Zalman Oyerbach ‘Repeat Radio Broadcast on Shabbat’, Tehumin, Religious Law Compilation on the Topics of Torah, Society, and State 17 (1997) 13 [54]; Rabbi Dr. Nahum Eliezer Rabinovich, Electricity in Jewish Religious Law (Part B – Shabbat and Holiday, 1981) 270 [55]; Rabbi Dr. Nahum Eliezer Rabinovich, ‘Asking in the Matter’ Hadarom Torah Collection 15 (1962) 120[56].

3.    However, we need to draw a boundary between violation of freedom of religion and harm to religious feelings.  Thus, constitutional protection will not be given to an extreme approach which regards every harm to religious feelings due to the breach of religious directives by Jews as a violation of the freedom of religion of the believer, in the sense of ‘all of Israel are responsible for one another’ (Shavuot 39, A [57]).Conversely, the criteria is not necessarily the identity of the one performing the prohibited act, but rather whether the prohibited act is obligatory for the observant person or whether they are being kept from fulfilling a religious obligation.  The obligation need not necessarily be physical.  Thus, for example, running a factory on Shabbat due to an emergency order, when the religion of the owner prohibits them from having their property involved in the desecration of Shabbat, may violate their right to freedom of religion.  Similarly, it was determined in Germany in 1973 that placing a cross on the judge’s podium in court violates the freedom of religion of the Jewish attorney who appears before the court, and therefore is prohibited.  See BVerfGE 35, 36 [39].  In a later case, from 1995, it was determined that hanging a cross in classrooms in a school violates the freedom of religion of the students who are not Christian and is therefore prohibited, and the law that instructed to do so was void.  See BVerfGE 93,1 [40].

In our matter, broadcasting the film on Shabbat harms the petitioners not because of the action of others, nor in the name of a metaphorical mutual guaranty which binds all the people of Israel together.  The petitioners are directly harmed, as they themselves are appearing on television on the day of Shabbat.  They thereby become themselves partners to the desecration of Shabbat, and transgress, at the time of the broadcast, against their will, the directive of their religion. 

My colleague writes, that ‘their [the petitioners’] argument in fact is that the actions of others (the respondents) in opposition to the directives of the religion constitute a violation of the freedom of religion of the petitioners.’ (In paragraph 11 of his judgment).  In my opinion, this is not so.  The petitioners have no claims against the broadcast of television on Shabbat.  They have no complaint against the broadcast of the program ‘Documentary Word’ on Shabbat.  Their petition and request is only in opposition to the broadcast on Shabbat of the specific film that was made about them and with their participation.

Such a broadcast contains a violation of the freedom of religion, which is the provision of the possibility of the individual to fulfill the directive of their religion without government intervention.  Freedom of religion is ‘of the basic liberties which are recognized according to our legal system and constitute a part of it’ (President Meir Shamgar in HCJ 650/88 Movement for Progressive Judaism in Israel v. Minister of Religious Affairs, IsrSC [22] at 381) and it was guaranteed to all citizens of the state in the Declaration of Independence, whose ‘principles every authority in the State must place before itself’ (Justice J. Sussman in HCJ 262/62 Peretz v. Local Council Kfar Shmaryahu, [27] at p. 2116).  Freedom of religion is counted among the liberties on which our democratic regime is based.  See the words of Justice Barak in HCJ 292/83 Temple Mount Faithful v. Head of Jerusalem Municipality [12] at p. 454.

However, as with every right, freedom of religion too is not absolute, and it must be balanced against other rights and protected interests.

Balance between the parties’ rights

4.    In the case before us, against the right of the petitioners to freedom of religion stand the rights of the respondents to freedom of expression and property, which are also basic rights.  On this matter case law has distinguished between values which override one another, in which case the balancing between them is ‘vertical’, and values of equal weight, which concede to one another, in order to enable their collective existence, in which case the balancing is ‘horizontal’.  Vice President Barak explained this:

‘In the ‘vertical’ balancing, one value – in colliding with another value – has the upper hand.  However, this superiority is realized only if the requirements of the balancing formula are met as to the likelihood of the violation of the preferred value and its degree.  Thus, for example, the public interest in public peace and public order overrides freedom of expression, as long as there is a ‘near certainty’ that actual damage will be caused to the public interest if the freedom of expression is not limited. . .  In the ‘horizontal’ balancing the two conflicting values are of equal weight.  The balancing formula examines the degree of mutual concession of each of the rights.  Thus, for example, the right to movement and the right of assembly are of equal weight.  The balancing formula will establish conditions of place, time, and scope in order to enable the collective existence of the two rights.’ [HCJ 2481/93 Dayan v. Commander of Jerusalem District [28] at p. 474-475].

See also HCJ 6656/93 Am K’Lavi v. Commander of Jerusalem Police [29] at pp. 796-797; CrimA 7528/95 Hillel v. State of Israel [30] at p. 96; HCJ 5016/96 Horev v. Minister of Transportation [8] (hereinafter: ‘HCJ Horev’) at pp. 37-38.In the legal literature complications in the distinction between the two types of balancing have been pointed out.  It has been noted that it is proper to strive for collective existence of values, even if these are not equal in weight.  But, if it is not possible for the two values to co-exist, preferring one value over another is unavoidable, even if the two are of equal weight.  See Izhak Zamir and Moshe Sobel, ‘Equality before the Law’ [49] at pp. 214-215.

5.    In my opinion the basis of the distinction between the types of balancing is not in the result of the balancing in the sense of mutual concessions as opposed to preference of one value over another, but in its purpose, from which the criteria for balancing are derived.  The vertical balancing – which is implemented in the collision between a human right and a public interest – is intended to minimize, as much as possible, the violation of the right even where the public interest overrides it.  While the horizontal balancing – which is implemented in the collision amongst human rights, is intended to minimize, as much as possible, the violation of both of the rights.  See and compare Aharon Barak, ‘Protected Human Rights: The Scope and the Limitations’ [50] at pp. 263-264.

A human right, by its nature, carries a social price.  This price is expressed in the criteria for respect of human rights that were established in section 8 of the Basic Law: Human Dignity and liberty and in section 4 of the Basic Law: Freedom of Occupation (hereinafter: ‘the limitations clause’).  The limitations clause was also applied to violations by administrative authorities (and not only by the Knesset) of basic human rights (including rights that are not established in a basic law).  See, for example, HCJ 4541/94 Miller v. Minister of Defense [31] at p. 138; HCJFH 4466/94 Nuseiba v. Minister of Finance, [32] at pp. 86-87; HCJ Horev , Ibid  at p.41-42.

However, the purpose of the limitation clause, the principle of proportionality being among its foundations, is to protect human rights by minimizing the infringement on them when they collide with a public interest.  Thus, within the principle of proportionality, the authority is required to undertake from among the alternative means which may advance the realization of the public interest (the purpose) the means which causes the smallest harm to the right. Today, balancing formulas such as the ‘near certainty’ test and the ‘reasonable possibility’ test, which were formulated in  case law even before the principle of proportionality was absorbed in our legal system, are also integrated into the principle of proportionality, and this for the purpose of establishing the legality of the decisions of the administrative authorities which violate human rights.  These formulas take into account the idiosyncratic weight of the right and the public interest for the sake of which the violation of the right is sought.

The test of the lesser violation and the balancing formulas, therefore, reflect the public price that a democratic society is willing to pay in order to protect human rights.  I explained this in another case which relates to the balance between a person’s right to freedom from detention and protection of public safety:

‘Where the realization of an interest has no price, there is no significance to anchoring it in a right, and all the more so in a constitutional basic right.  The value in the rights of the public and victims’ is generally collective and in opposition to it are the rights of the single accused.  Without recognizing the rights of the accused, there is no existence to the rights of the potential victims, who may find themselves, in other circumstances, as the accused.  Protection of basic human rights is not just a matter of the individual but of society as a whole, and it determines society’s image.

Indeed, it is possible that preventative detention of a person who has not yet committed a crime, cancellation of the presumption of innocence and replacement of the more stringent burden of proof which is customary in criminal law with the degree customary in civil trials would reduce the amount of crime and contribute significantly to the protection of public safety.  But in our democratic regime, in which the liberty of the individual is recognized as a basic right, society concedes some of the possible protection of public safety.’

[CrFH 2316/95 Ganimat v. State of Israel [33] at p. 645.]

6.    The criteria in the limitations clause, and in particular the principle of proportionality, are not appropriate for the balancing of two human rights.  The purpose of the horizontal balancing is to reduce the violation of both of the rights, and this, as said, through mutual concessions which enable the realization of both simultaneously, even if not to their full extent.  But if the possibility of the co-existence of the two competing rights does not exist, the prevailing right will be the one which if infringed upon will result in more severe damage to the individual.  The severity will be determined, first, by the substance of said right.  In this matter heavy-weight rights, which grow directly from the core of human dignity and the protection of human image, are to be distinguished from lighter-weight rights, which are more distanced from this core.  However, one is not to merely relate to the title of the basic right, but also to the interests which stand at its foundation in the concrete instance and the specific values which are protected in the relevant context.  See and compare HCJ 1715/97 Office of Investment Managers in Israel v. Minister of Finance [34] at pp. 422-423; HCJ 450/97 Tnufah Manpower Services and Maintenances Ltd. v. Minister of Labor and Welfare [35] at p. 452.  Second, the degree of violation of the right and its scope are to be considered, and we should examine whether the realization of the competing right violates the center of the said right or its margin.

In our matter, I am of the opinion that the competing human rights – the freedom of religion of the petitioners, on the one hand, and the freedom of expression and the right to property (which is of a lesser weight) of the respondents, on the other hand – are of equal weight.  However, mutual concession between them is not possible.  In the existing circumstances, the right to freedom of religion has no room to retreat and its violation is substantive.  And, as stated above, the petitioners have been forced – according to them and according to their rabbi – into the desecration of the Shabbat.

On the other hand, the circumstances of the case enable the respondents to concede a small portion of their rights, by broadcasting the film on a weekday instead of on Shabbat.  Such a concession violates only the margin of the rights.

7.    The respondents claim that ‘the Authority has no other date to broadcast a program of this type’, and that banning the film from being broadcast on Shabbat means banning it from being broadcast at all, which is equivalent to censorship and severe violation of the freedom of expression and the right to property.

This argument is not reasonable.  Indeed, the Second Authority has a broadcast time slot on Shabbat.  However, transferring the program from Shabbat to another day is not impossible.  The legislator entrusted the Second Authority with the discretion to take time slots from a broadcast unit of a franchisee for the purpose of presenting programs on its behalf, as long as notice of this is given in a reasonable amount of time in advance.  See section 48 of the Second Television and Radio Authority Law 5750-1990.

8.    One would think that it would be possible to resolve the difficulty not only by a compulsory ‘taking’.  Even the Second Authority itself wrote the following in its response:

‘Given that the only time slot of the Second Authority is on Shabbat, the realization of the suggested solution required approaching one or the other of the franchisees with a request that they agree to allot, at short notice, a date for broadcast of the program in the framework of their broadcasts.  Taking into consideration the fact that broadcast schedules of franchisees are finalized several months before the date of broadcast, and the fact that documentaries such as this type of program do not draw a large viewership and therefore it is difficult to schedule commercials in them, the broadcast time that could be requested from the franchisees for this purpose is during the late night hours (around 1:00 at night).’

In the framework of the relationship between the franchisees which broadcast in the middle of the week, amongst themselves and between them and the Second Authority there have in the past been deviations from the broadcast schedule and the time slots, as a result of various circumstances.  The broadcast schedule is not ‘holy’ and unchangeable, but rather, when necessary, it can be flexible according to needs and circumstances.  Moreover, the broadcast of the film was postponed with the consent of both parties for a number of months, such that the argument as to the short notice is no longer valid.

Broadcast of the program on a weekday is not impossible, even if it entails a fair amount of effort, and possibly even the provision of financial indemnification to one of the franchisees due to considerations of viewership percentages (taking into account the addition of religious viewers who do not watch television on Shabbat).  This being the case, transferring the program from Shabbat means only minimal violation of freedom of expression and the property right of the respondents.

It turns out therefore, that the requested balance which will enable ‘joint living’ and ‘co-existence’ of the rights necessitates granting the petitioners request.  The petitioners have nowhere ‘to retreat back’ to.  Their Rabbi appeared before the court and could not find a solution in Jewish religious law.  Broadcast of the film on Shabbat means a forced infringement by the petitioners on the directive of their religion and the violation of their freedom of religion.  The respondents on the other hand have room to maneuver.   Refraining from broadcasting the film on Shabbat, while enabling its broadcast on another day, means, as said, a minimal degree of violation of freedom of expression and property of the respondents alongside protection of the freedom of religion of the petitioners.

 The claim of delay

9.    The respondents claim, that the petition was delayed, as for them it is routine to broadcast programs with the participation of religious people on Shabbat, with the accompanying caption ‘filmed on a weekday’, and that they had no basis for assuming that the petitioners would only raise objections to broadcasting the film on Shabbat after its making was completed.

The good faith of the respondents does not detract from the good faith of the petitioners, who are not accustomed to viewing television on Shabbat, and did not know about the said practice.  In fact the petitioners claim that the possibility never crossed their mind that a program about them would be broadcast on Shabbat, and they were even misled into believing that this is the case.  In this situation, there is no room for the claim of delay, as when the petitioners found out about the broadcast planned for Shabbat they approached the Second Authority and tried to prevent it.

However, the primary issue to me is that the Second Authority, which ordered a film about and with the participation of observant people, with the intention of broadcasting it on Shabbat – and according to its claim, even with the knowledge that there was no possibility of broadcasting it on a weekday – is not entitled to rely on the customary practice of placing the caption ‘filmed on a weekday’.   As, under the circumstances, it was obligated to present the petitioners with its intention to broadcast the film on Shabbat.  Even if in practical life, in the face of such a practice, which is based, apparently, on more lenient approaches in Jewish religious law, the Second Authority is accustomed to refraining from obtaining prior consent in similar cases, in doing so, it thereby runs the risk that it will be forced to give up the broadcast on Shabbat if an objection arises.

As a rule, it is appropriate to impose on the Second Authority, or those who represent it who initiate the broadcast and are experienced in contracting with film subjects for the purpose of preparing programming about them, the duty of proper disclosure, when it is possible that the party who is the film’s subject will be harmed.

Ramifications for the future

10.  My colleague, the President, is concerned that consequent to a decision which prevents the broadcast on Shabbat ‘chances are great that all television will be shut down on Shabbat followed by the radio.’  I do not share these concerns.

There are certainly many people who will agree to participate in programs broadcast on Shabbat, including secular people, non-Jews, and even, as the respondents claim, religious Jews who agree to broadcasting with the accompanying caption ‘filmed on a weekday’.

Moreover: the right to freedom of religion does not prevail in every case, but rather only when the injured parties are at the center of the program under discussion.  When this is the situation, the technical action of the broadcasters is the also the substantive action of the subjects of the broadcast.  This being so, the intensity of the belonging of the subjects of the broadcast to the program, as well as the harm to them, prevails over the right of the broadcasters to freedom of expression and their property.  It cannot be inferred that this ruling extends neither to a case of subjects who were filmed by chance in a crowd, nor to public figures or authors who appear frequently on television on Shabbat.  It is possible and necessary to draw analogies only to similar cases.  The words that were said in our sources in the context of the fear of an unlikely event in the case of checking for Chametz, are appropriate here:’ One is not to be concerned that perhaps a rat has dragged it from home to home or from place to place, as if so, then from courtyard to courtyard and town to town and it is endless.’ [Mishnah, Psahim, 1, B [58]]

Therefore, if my opinion were to be heard, we would make the order nisi absolute.

It was decided as per the opinion of President Barak against the dissenting opinion of Justice Dorner.

 

18 June 2001

27 Sivan 5761

 

H.C.J. 282/61

 

           

MAHMUD EL-SARUJI et al.

v.

MINISTER OF RELIGIOUS AFFAIRS AND THE MOSLEM COUNCIL. ACRE

 

 

           

In the Supreme Court sitting as the High Court of Justice

[February 6, 1963]

Before Silberg J., Landau J. and Berinson J.

 

 

 

Administrative law - consultative body appointed by Minister- judicial review of its powers and activities.

 

The petitioners complained generally of the alleged interference of the Minister of Religious Affairs in matters affecting the Moslem Community of Acre and more particularly of the activities and powers of the local Moslem council appointed by the Ministry.

 

Held. The departure from the country of Moslem leaders and officials as a result of the events of 1948 had led to a complete collapse of all Moslem institutions and their ceasing to function. In order to remedy the situation and recreate these institutions the Ministry had not proceeded under any express statutory provision but by virtue of general power vested in the Government and within the framework of the State budget. In the course of doing so, it appointed the second respondent with which to consult and to act as its agent in the distribution of necessary funds for various public Moslem purposes. No evidence of misuse of funds had been adduced. In all these circumstances, the High Court of Justice would not intervene to control the action by the Ministry or its agent, either generally or specifically, in its choice of advisers or in resolving the public political problems with which it is faced.

 

M.N. Huari for the petitioners.

Z. Bar-Niv, State attorney, Z. Terlo and M. Cheshin for the first respondent.

E. Berenblum for the second respondent.

 

LANDAU J. The order nisi granted to the three petitioners, residents of Acre and members of the Moslem community there, calls upon the Minister of Religious Affairs and the Moslem Council of Acre to show reason "why the first respondent should not cease from interfering in matters affecting Moslems, their charitable trusts, courts of law and personal situation, and why he should not procure that the activities and powers of the Moslem Council in Acre, appointed by him, should not cease and it be dispersed."

 

The petitioners' application, as formulated in the order nisi, contained two separate complaints, one general, regarding the position of the Moslem Council in the country as a whole, and one regarding the powers and activities of the Moslem Council of Acre (or more precisely the Consultative Council for Moslem Religious Affairs of Acre).

 

            Under the first complaint, petitioners' counsel tried to show the lack of organisation and neglect which in his opinion prevail in respect of the affairs of the Moslem community in the country. Let it be said at once that this Court is not the suitable forum for voicing general complaints of this kind. The affidavit on behalf of the first respondent, made by Mr. S.Z. Kahana, the director-general of the Ministry of Religious Affairs, describes the changes that have occurred with regard to the country's Moslem Community, in the following terms:

           

"Upon the termination of Mandatory rule and the outbreak of the War of Independence the religious institutions of the Moslem Community in the country collapsed. Senior religious personnel, muftis and qadies - except for the late Sheikh Ta'ahar Tabri (who died in 1959), Mufti and Qadi of the Tiberias district - fled from the country. The system of religious jurisdiction broke down completely. Most of the officials concerned in religious services fled. The communal educational system and social welfare and health institutions ceased to exist. Among those who left the country were also the members of the Supreme Moslem Council and its Wakf Committee (bodies founded at the beginning of Mandatory rule) and the members of the Governmental Awkaf Commission, appointed by the High Commissioner by virtue of the Palestine (Defence) Order in Council, 1937. Israeli Moslems thus remained without religious organisation and religious leadership."

 

            We accept this as an accurate description of the situation created as a result of the War with which the State of Israel on its foundation was fettered by the Arab states and the flight of a large part of the Moslem population from its territory. Mr. Kahana's affidavit goes on to describe the steps taken by his Ministry to repair as far as could be the organisational breakdown of the Moslem Religious Community in Israel: the jurisdiction of the Moslem religious courts was restored on a new legal basis by the Sharia Courts (Validation of Appointments) Law, 1953, and the Qadis Law, 1961. These courts continue to act under the powers granted to them by article 52 of the Palestine Order in Council. Petitioners' counsel did not dispute that in his summation and so retracted the deprecatory remarks about the Qadis of these courts which he had permitted himself to indite in paragraph 10(c) of the petition.

 

            Mr. Kahana went on to detail in his affidavit the different measures taken by the Ministry of Religious Affairs in order to fill the vacuum created in the provision of religious requirements, religious education, charity, social welfare and so on for the country's Moslem Community. In so doing, the Ministry of Religious Affairs did not act under express statutory provision but by virtue of general governmental powers resting in the Government and its Ministries, within the financial framework of the State's Budget approved by the Knesset.

           

            The petitioners and those for whom they speak are not pleased with the existing order of things. I assume that in complaining they express the view of some part of the members of Acre's Moslem community, although I do not know whether they constitute a majority of the community. They would prefer the autonomy of the Moslem community regarding all the matters raised in their petition, but that is certainly a public-political problem not for this Court to be concerned with. Under the democratic regime existing in our country, the Knesset is the arbiter in matters of this kind and it possesses the authority to initiate changes in the existing position through the enactment of new laws, if it finds it proper so to do.

           

            The main burden of the petitioners' complaints, to all appearances, concerns the administration of Moslem charitable and religious trusts (awkaf). Under the British Mandate these trusts were administered by the Supreme Moslem Religious Council, set up by an order of the High Commission of 20 December 1921 (N. Bentwich, The Laws of Palestine, vol. 2, pp. 395 ff.). Among the functions of the Council, appointed in the manner prescribed by the order, was the control and administration of Moslem charities (paragraph 8(1)(a)). There were also set up a General Awkaf Committee and local awkaf committees under paragraphs 10 ff. In 1937, the administration of Moslem charitable trusts was transferred to a Commission appointed by the High Commissioner under the Defence (Moslem Awkaf) Regulations, 1937 (Official Gazette 1937, Suppl. 2, No. 730-731). That continued to be the position until the end of the Mandate when members of the Commission left the country and became absentees. The original order of 1921 was wholly repealed by section 25 of the Qadis Law, 1961; petitioners' counsel was mistaken in maintaining that the repeal went only to the provision relating to the appointment of qadis. It is questionable, however, whether as a result of the repeal, the said Regulations of 1937 were also repealed. In his summation, the State Attorney argued that these also were repealed by implication. It seems to me that this argument is inconsistent with what is said in paragraph 3(k) of Mr. Kahana's affidavit. What emerges from the latter is that the 1937 Regulations were not repealed and that the administrative powers of the appointed Commission became "absentee property" in the sense of section 1(a) ad finem of the Absentees' Property Law, 1950, upon its members becoming absentees. I hesitate from ruling definitively on this question which was not exhaustively argued in these hearings, but I incline to the latter view, that the 1937 Regulations exist independently, without being linked to the 1921 Order, although the Commission replaced the body instituted by the 1921 Order. The Regulations indeed vest in the Commission the powers of the Council under the old order (see regulation 5) but they are not, for that reason alone, to be regarded as an enactment intended merely to amend the Order. The result, it would appear, is that the Government to which the powers of the High Commissioner passed may but is not bound to appoint a new Commission under the 1937 Regulations and, so long as it does not, public Moslem religious and charitable trusts continue to be managed by the Custodian of Absentees' Property who took the place of the Commission that existed on the eve of the establishment of the State. I have found no basis for the vague submission of petitioners' counsel in his summation, that the right to control the funds of these trusts lies in any event with the Moslem residents now living in the country. No precedent was cited to base this view.

 

            The petitioners' complaints about the second respondent's activities are in the main that it acts without authority and has no proper concern for Moslem religious matters in Acre. The petition also alleges misuse of funds entrusted to its members. From the affidavits in reply by Mr. Muhmad Habashi, one of such members, and by Mr. Kahana it emerges that the council was established by the Minister of Religious Affairs as a consultative body on matters of religious, social welfare and educational services. The Ministry of Religious Affairs is also assisted by the Council in implementation of the activities initiated by the former for the benefit of the Acre Moslem community. To this end money is on occasion passed to the Council intended for the requirements of the city's Moslem community and the Council lays out the money in accordance with the directions and under the prescribed supervision of the Ministry. When the said affidavits were made on behalf of the respondents, the members of the consultative Council were Sheikh Mussa Tabri, the principal Qadi, who acted as chairman, Sheikh Jemal Saadi, Imam and preacher of the Aljezar Mosque, Ahmad Edalbi, a notable of the community, and the deponent Muhmad Habashi who is also a deputy mayor of Acre.

 

            This is not a commission appointed under enacted law but, as I have said, a consultative council which the Minister of Religious Affairs appointed in order to maintain contact with the Moslem community of the city. In so far as the council is entrusted with the allocation of money for the community's requirements, it acts as agent of the Ministry of Religious Affairs. The Minister of Religious Affairs is interested in choosing advisers in this field, whom he considers to be fit for the task of representing the community, and this Court will not direct him to choose other fitter advisers. As for the activity of the Council, we allowed petitioners' counsel to cross-examine at length but in spite of his protracted assault on the witness, Mr. Habashi, his efforts were in vain as regard the matters touched upon in cross-examination. The impression one obtains from the cross-examination is of conflict between contending groups of community workers. No indication was given to us of misuse of funds or of other acts contrary to good order on the part of members of the Council. In my opinion, the order nisi should be discharged.

 

SILBERG J. I agree.

 

BERINSON J. I agree.

 

            Order nisi discharged.

            Judgment given on February 6, 1963.

HCJ 5026/04

Design 22 Shark Deluxe Furniture Ltd

and 18 others

v

1. Tzvika Rosenzweig, Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs

2. Ministry of Industry, Trade and Employment

3. Attorney-General

4. Knesset

5. Haifa Regional Labour Court

 

 

The Supreme Court sitting as the High Court of Justice

[4 April 2005]

Before President A. Barak and Justices A. Procaccia, M. Naor

 

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

 

Facts: The petitioner, a company that owns a chain of furniture shops, was fined for employing Jews on the Sabbath, contrary to the Hours of Work and Rest Law, 5711-1951. Subsequently, the petitioner applied under the law for a permit to employ Jews on the Sabbath, but this application was rejected by the first respondent. The petitioner therefore filed a petition in the Supreme Court, arguing that the first respondent’s refusal to grant a permit was unreasonable in the extreme, in view of the economic loss that the petitioner was caused by not being able to employ Jews on the Sabbath. The petitioner further argued that the Hours of Work and Rest Law was unconstitutional, since it violated the basic human right of freedom of occupation.

 

Held: The Basic Law: Freedom of Occupation, which was originally enacted in 1992, has since 2002 applied not only to laws passed after the Basic Law was introduced but also to laws passed before it came into effect. Therefore the Hours of Work and Rest Law, 5711-1951, is subject to constitutional scrutiny under the Basic Law: Freedom of Occupation.

The provisions of the Hours of Work and Rest Law concerning the weekly day of rest satisfy the constitutional tests, since they befit the values of the State of Israel as a Jewish and democratic state, are intended for a proper purpose and are not excessive.

The refusal of the first respondent to grant the first petitioner a permit to employ Jews on the Sabbath was not unreasonable, since the first petitioner failed to present a factual basis to show that its activity during the hours of the weekly rest was essential for the public or a part thereof.

 

Petition denied.

 

Legislation cited:

Administrative Offences Law, 5746-1985, s. 8.

Administrative Offences (Administrative Fine — Hours of Work and Rest) Regulations, 5758-1998, rr. 1, 2.

Basic Law: Freedom of Occupation, 5752-1992, s. 6.

Basic Law: Freedom of Occupation, 5754-1994, ss. 2, 4, 10.

Basic Law: Freedom of Occupation (Amendment).

Basic Law: Freedom of Occupation (Amendment no. 2).

Basic Law: Human Dignity and Liberty, s. 5.

Government and Justice Arrangements Ordinance, 5708-1948, s. 18A.

Hours of Work and Rest Law, 5711-1951, ss. 7, 9, 9A, 12, 12(a), 26(a), 27, 30.

 

Israeli Supreme Court cases cited:

[1]  LCA 10687/02 Handyman Do-It-Yourself v. State of Israel [2003] IsrSC 57(3) 1.

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

[3]  HCJ 337/81 Miterani v. Minister of Transport [1983] IsrSC 37(3) 337.

[4]  HCJ 144/72 Lipevsky-Halipi v. Minister of Justice [1973] IsrSC 27(1) 719.

[5]  HCJ 338/87 Margaliot v. Minister of Interior [1988] IsrSC 42(1) 112.

[6]  HCJ 1452/93 Igloo Plumbing Works, Building & Development Contracting Co. Ltd v. Minister of Industry and Trade [1993] IsrSC 47(5) 610.

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

[8]  HCJ 2334/02 Stanger v. Knesset Speaker [2004] IsrSC 58(1) 786.

[9]  HCJ 4746/92 G.P.S. Agro Exports Ltd v. Minister of Agriculture [1994] IsrSC 48(5) 243.

[10]  CA 239/92 Egged Israel Transport Cooperation Society v. Mashiah [1994] IsrSC 48(2) 66.

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

[12]  HCJ 1030/99 Oron v. Knesset Speaker [2002] IsrSC 56(3) 640.

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

[14]  AAA 4436/02 Tishim Kadurim Restaurant, Members’ Club v. Haifa Municipality [2004] IsrSC 58(3) 782.

[15]  HCJ 153/87 Shakdiel v. Minister of Religious Affairs [1988] IsrSC 42(2) 221; IsrSJ 8 186.

[16]  HCJ 1683/93 Yavin Plast Ltd v. National Labour Court [1993] IsrSC 47(4) 702.

[17]  HCJ 2481/93 Dayan v. Wilk [1994] IsrSC 48(2) 456; [1992-4] IsrLR 324.

[18]  HCJ 6652/96 Association for Civil Rights in Israel v. Minister of Interior [1998] IsrSC 52(3) 117.

[19]  HCJ 450/97 Tenufa Manpower and Maintenance Services Ltd v. Minister of Labour and Social Affairs [1998] IsrSC 52(2) 433.

[20]  HCJ 6055/95 Tzemah v. Minister of Defence [1999] IsrSC 53(5) 241; [1998-9] IsrLR 635.

[21]  HCJ 5936/97 Lam v. Director-General of Ministry of Education, Culture and Sport [1999] IsrSC 53(4) 673; [1998-9] IsrLR 537.

[22]  HCJ 4330/93 Ganem v. Tel-Aviv District Committee, Bar Association [1996] IsrSC 50(4) 221.

[23]  HCJ 1008/01 Arkia Israel Airlines Ltd v. Minister of Transport [1996] IsrSC 50(4) 207.

[24]  HCJ 953/01 Solodkin v. Beit Shemesh Municipality [2004] IsrSC 58(5) 595; [2004] IsrLR 232.

[25]  HCJ 7852/98 Golden Channels & Co. v. Minister of Communications [1999] IsrSC 53(5) 423.

[26]  HCJ 1703/92 C.A.L. Freight Airlines Ltd v. Prime Minister [1998] IsrSC 52(4) 193.

[27]  HCJ 4915/00 Communications and Productions Network Co. (1992) Ltd v. Government of Israel [2000] IsrSC 54(5) 451.

[28]  HCJ 5812/00 Samandin Mediterranean Sea v. Director of Oil Concerns at Ministry of National Infrastructures [2004] IsrSC 58(4) 312.

[29]  HCJ 4676/94 Meatreal Ltd v. Knesset [1996] IsrSC 50(5) 15.

[30]  CrimA 4424/98 Silgado v. State of Israel [2002] IsrSC 56(5) 529.

[31]  HCJ 399/85 Kahana v. Broadcasting Authority Management Board [1987] IsrSC 41(3) 255.

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

[33]  EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. Tibi [2003] IsrSC 57(4) 1.

[34]  LCA 2316/96 Isaacson v. Parties Registrar [1996] IsrSC 50(2) 529.

[35]  CA 506/88 Shefer v. State of Israel [1994] IsrSC 48(1) 87; [1992-4] IsrLR 170.

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

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

[38]  HCJ 287/69 Miron v. Minister of Labour [1970] IsrSC 24(1) 337.

[39]  HCJ 171/78 Eshkar Ltd v. Minister of Labour and Social Affairs [1982] IsrSC 36(3) 141.

[40]  HCJ 5073/91 Israel Theatres Ltd v. Netanya Municipality [1993] IsrSC 47(3) 192.

[41]  HCJ 987/94 Euronet Golden Lines (1992) Ltd v. Minister of Communications [1994] IsrSC 48(5) 412.

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

[43]  HCJ 8238/96 Abu Arar v. Minister of Interior [1998] IsrSC 52(4) 26.

[44]  HCJ 1255/94 Bezeq, the Israel Telecommunication Corp. Ltd v. Minister of Communications [1995] IsrSC 49(3) 661.

[45]  HCJ 3648/97 Stamka v. Minister of Interior [1999] IsrSC 53(2) 728.

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

[47]  HCJ 9232/01 Noah, the Israeli Federation of Animal Protection Organizations v. Attorney-General [2003] IsrSC 57(6) 212; [2002-3] IsrLR 225.

[48]  HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [2004] IsrSC 58(5) 807; [2004] IsrLR 264.

 

Israel District Court cases cited:

[49]  CrimC (Jer) 3471/87 State of Israel v. Caplan [1988] IsrDC 5748(2) 265.

 

Israel National Labour Court cases cited:

[50]  LabA 300271/98 Tepco Energy Control Systems and Environment Production Ltd v. Tal, IsrLC 35 703.

[51]  LabA 255/99 Civil Security Ltd v. Shahidem (unreported).

 

American cases cited:

[52]  McGowan v. Maryland, 366 U.S. 420 (1961).

 

Canadian cases cited:

[53]  R. v. Edwards Books and Art [1986] 2 S.C.R. 713.

 

Jewish law sources cited:

[54]  Deuteronomy 5, 11-15.

[55]  Exodus 20, 8-11.

 

For the petitioner — R. Krupnik.

For respondents 1-3 — H. Ofek.

 

 

JUDGMENT

 

 

President A. Barak

Is the prohibition against the employment of Jews on the Sabbath[1] under the Hours of Work and Rest Law, 5711-1951, contrary to the provisions of the Basic Law: Freedom of Occupation? That is the main question before us in this petition.

The facts

1.    The first petitioner, a furniture marketing company with branches throughout Israel, employs Jewish employees at its branches (petitioners 2-19). These branches are open every day of the week, including on the Sabbath. On 12 March 2003, a fixed-sum administrative fine was imposed on the petitioner in the sum of NIS 15,000, under s. 8 of the Administrative Offences Law, 5746-1985, and rr. 1-2 of the Administrative Offences (Administrative Fine — Hours of Work and Rest) Regulations, 5758-1998. The fine was imposed because of the employment of Jewish employees during the ‘weekly rest,’ contrary to ss. 9, 9A, 26(a) and 27 of the Hours of Work and Rest Law, 5711-1951 (hereafter — the Hours of Work and Rest Law). When it received the notice that the fine had been imposed, the petitioner applied to the first respondent to receive a permit to employ Jewish employees on Sabbaths and religious holidays. At the same time, the petitioner elected to stand trial, and therefore on 22 May 2003 an indictment was filed against it in the Haifa District Labour Court. An application that it submitted to the Attorney-General to stay the proceedings in the file was rejected on 10 May 2004. This was the reason for the petition, which requires the respondents to come and show cause why the provisions of the law that prohibit the work and employment of Jews on the Sabbath should not be repealed, and why the petitioner should not be given a permit under the Hours of Work and Rest Law.

The petition

2.    The petition aims to achieve two main reliefs. In the constitutional sphere, the petitioner attacks the constitutionality of the provisions of the Hours of Work and Rest Law that prohibit the employment of Jews on the Sabbath. It argues that these provisions violate the freedom of occupation that is enshrined in the Basic Law: Freedom of Occupation, and they do not satisfy the conditions of the limitations clause. According to the petitioner, the prohibition of employment on the Sabbath violates the right to freedom of occupation and causes significant economic harm to it and to its employees. It argues that if it is compelled to close its branches on the Sabbath, this will lead to a restriction of its activity and even to the closure of some of its branches that will not be competitive with other companies that do business in the marketing of furniture. It says that its branches are located far away from residential areas and that opening them on the Sabbath does not disturb other people who wish to enjoy rest on the Sabbath. The petitioner does not dispute the need for a day of weekly rest, but it complains that this day has been designated only on the Sabbath. It argues that the employee should be allowed to choose what day of rest he prefers, and act accordingly. In the administrative sphere, the petitioner attacks the discretion of the respondent who refused its request for an employment permit on the Sabbath. According to it, this discretion is unreasonable and disproportionate in the extreme. The unreasonableness derives from the fact that the respondent did not consider the economic harm that is likely to be caused to the petitioner and its employees, who are interested in working on the Sabbath. The petitioner also argues that the respondent ignored its undertaking that it any case its employees would have a weekly rest, in accordance with the law.

3.    The first three respondents ask the court to deny the petition. According to them, the prohibition against working on the Sabbath serves two purposes. One is a social purpose that is based upon a concept of social welfare, which recognizes the right of a person to rest from his work. Repealing the prohibition against employment on the Sabbath will lead, so it is alleged, to an injury to workers from the weaker echelons of society, who require the protection of the legislature against potential exploitation by their employers. The second is a national religious purpose, which realizes the social purpose. It is argued that the Sabbath is the weekly day of rest for Jews, and therefore it is only logical that the legislature prescribed this day as the day of rest in the law. Prescribing a uniform day of rest is capable of furthering the purposes of the day of rest and contributing to the realization of an ‘atmosphere of rest,’ which is consistent with the accepted outlook around the world. With regard to the alleged constitutional violation, the respondents are of the opinion that the purpose underlying the prohibition of employment on the Sabbath befits the values of the State of Israel as a Jewish and democratic state, is for a proper purpose and its violation of the freedom of occupation is proportional. The respondents further argue that the question of the constitutionality of employment on the Sabbath has already been decided in this court, in the decision, per Justice D. Dorner, in LCA 10687/02 Handyman Do-It-Yourself v. State of Israel [1], in which it was held that the provisions of the law are not void notwithstanding the violation of the freedom of occupation. As for the petitioner’s claim with regard to defects that occurred in the decision of the respondent not to give it a permit for employment on the Sabbath, it was argued that the petitioner does not satisfy the criteria in s. 12 of the law, and therefore its application was rejected.

The normative framework

4.    Section 7 of the Hours of Work and Rest Law provides:

‘Hours of the weekly rest

7. (a) At least thirty six consecutive hours per week are the weekly rest of the worker.

 

(b) The weekly rest shall include —

 

(1) For a Jew — the Sabbath;

 

(2) For someone who is not a Jew — the Sabbath or Sunday or Friday, all of which in accordance with what is acceptable to him as his day of weekly rest.’

Further on the legislature provided that no one should be employed or work during the weekly rest, unless work as aforesaid has been permitted (ss. 9, 9A and 12 of the law, respectively):

‘Prohibition of employment during the weekly rest

9.  Employing a worker during the weekly rest is prohibited, unless it has been permitted under section 12.

 

 

Prohibition of work during the weekly rest

9A. (a) On the prescribed days of rest within the meaning thereof in the Government and Justice Arrangements Ordinance, 5708-1948, the owner of a workshop shall not work in his workshop, not shall the owner of a factory work in his factory, nor shall the owner of a shop trade in his shop.

 

     …

 

 

Permit for employment during the weekly rest

12. (a) The Minister of Labour may permit the employment of a worker during the hours of the weekly rest, or during a part thereof, if he is persuaded that stopping the work for all or part of the weekly rest is likely to harm the defence of the state or the safety of persons or property, or seriously to damage the economy, the work process or the supply of necessities that are, in the opinion of the Minister of Labour, essential for the public or for a part thereof.

 

     (b) A general permit under subsection (a) shall only be given by a decision of a ministerial committee composed of the prime minister, the Minister of Religious Affairs and the Minister of Labour.

 

     (c) A special permit under subsection (a) shall give details of the professions or jobs of the workers for whom the permit was given or the departments at the place of work for whose workers the permit was given.’

Against the background of these sections, let us turn to examine the petitioners’ arguments.

The constitutional scrutiny

5.    Freedom of occupation has been a basic right in Israeli law since the founding of the state. Before the enactment of the Basic Law: Freedom of Occupation, it was a part of the Israeli version of common law. This was discussed, shortly after the founding of the state, by Justice S.Z. Cheshin, who said:

‘It is a major principle that every person has a natural right to engage in such work or occupation as he shall choose for himself, as long as engaging in work or an occupation is not prohibited by law… this is their right. It is a right that is not written in statute, but it derives from the natural right of every person to look for sources of livelihood and find for himself work by means of which he can support himself’ (HCJ 1/49 Bajerno v. Minister of Police [2], at p. 82).

Since the court gave its decision in Bajerno v. Minister of Police [2], the Supreme Court has affirmed it on several occasions (see A. Barak, Legal Interpretation (vol. 3, 1994), at p. 574). The following remarks of Justice M. Shamgar are well known:

‘The premise that is accepted in a free society is that a person may engage in any work or occupation, as long as no restrictions or prohibitions are prescribed with regard thereto, and these should only be imposed and enforced by the express provision of statute’ (HCJ 337/81 Miterani v. Minister of Transport [3], at p. 353).

The main case law emphasis has been directed towards the question of the circumstances in which it is possible to interpret a legislative arrangement as one in which there is an express restriction or express prohibition on the freedom of occupation. The basic approach was that the legislator may restrict the freedom of occupation, provided that he expressed this desire clearly, expressly and unambiguously (see Miterani v. Minister of Transport [3], at p. 353; HCJ 144/72 Lipevsky-Halipi v. Minister of Justice [4], at p. 723; HCJ 338/87 Margaliot v. Minister of Interior [5], at p. 114). It follows that no constitutional restrictions were placed on the power of the legislature to harm the freedom of occupation (see Y. Klinghoffer, ‘Freedom of Occupation and Licensing of Businesses,’ 3 Tel-Aviv University Law Review (Iyyunei Mishpat) (1973) 582; see also HCJ 1452/93 Igloo Plumbing Works, Building & Development Contracting Co. Ltd v. Minister of Industry and Trade [6]).

6.    When the Basic Law: Freedom of Occupation was passed, a major change took place in the normative arrangement (a ‘constitutional revolution’ in the words of my opinion in CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 353; see also Barak, ‘The Constitutional Revolution — Twelve Years On,’ 1 Law and Business (Mishpat veAsakim) 3 (2004)). The freedom of occupation underwent a change in its normative status (see HCJ 2334/02 Stanger v. Knesset Speaker [8], at p. 791). It became a constitutional super-legislative right (see HCJ 4746/92 G.P.S. Agro Exports Ltd v. Minister of Agriculture [9]; CA 239/92 Egged Israel Transport Cooperation Society v. Mashiah [10]; HCJ 4769/95 Menahem v. Minister of Transport [11]; HCJ 1030/99 Oron v. Knesset Speaker [12], at p. 658). The Knesset (as a constitutive body) restricted the power of the Knesset (as a legislative body) to harm the freedom of occupation (see HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [13], at p. 383). It is not sufficient for the law to impose a restriction on the freedom of occupation expressly, clearly and unambiguously. The constitutionality of this restriction must satisfy the requirements of the limitations clause (s. 4 of the Basic Law: Freedom of Occupation). This leads to the conclusion that ‘the legality of a certain occupation does not constitute a criterion when examining the constitutionality of the freedom to engage in that occupation. The constitutionality of this criminal prohibition shall be determined in accordance with its compliance with the conditions prescribed in the limitations clause’ (per Justice A. Grunis, in AAA 4436/02 Tishim Kadurim Restaurant, Members’ Club v. Haifa Municipality [14], at p. 803). Only when these requirements are satisfied can the freedom of occupation be violated. This also gives expression to the idea that the freedom of occupation, like every other human right, is not absolute. It is relative in nature. ‘It is a major principle of ours that every basic right is not absolute but relative, and it is upheld and observed by finding the proper balance between the various legitimate interests of two individuals or of the individual and the public, interests that are all enshrined and protected in law’ (per Vice-President M. Elon in HCJ 153/87 Shakdiel v. Minister of Religious Affairs [15], at p. 242 {___}; see also HCJ 1683/93 Yavin Plast Ltd v. National Labour Court [16]; Israel Investment Managers Association v. Minister of Finance [13], at p. 383; Stanger v. Knesset Speaker [8], at p. 791; Menahem v. Minister of Transport [11], at p. 258). A balance should be found between it and proper considerations of the public good (‘horizontal balancing’: see HCJ 2481/93 Dayan v. Wilk [17], at p. 475 {___}).

7.    In the original Basic Law: Freedom of Occupation (enacted on 12 March 1992) there was a temporary provision to the effect that laws enacted prior to the Basic Law would remain in force. Originally it was provided that legislation that was valid prior to the commencement of the Basic Law, which conflicted with the provisions of the Basic Law, would remain valid until two years had passed from the date of commencement of the Basic Law (s. 6). When the original Basic Law was repealed and replaced by a new Basic Law on 10 March 1994, the temporary provision was extended for two years from the date of commencement of the new Basic Law (s. 10). In the amendment made to the Basic Law in 5757-1996 (Basic Law: Freedom of Occupation (Amendment)) — an amendment that was made after the two years provided in the temporary provision had expired (see HCJ 6652/96 Association for Civil Rights in Israel v. Minister of Interior [18]) — it was provided that a law that conflicted with the provisions of the Basic Law would remain valid until four years had expired from the date of commencement of the Basic Law. This provision was changed in 5758-1998 (Basic Law: Freedom of Occupation (Amendment no. 2)) — once again after the four years had expired — and it was provided that legislation that was valid before the commencement of the Basic Law would remain valid until 11 Nissan 5762 (14 March 2002). When this date passed, the provision was not changed. It follows that after March 2002 there is no constitutional protection for a law that was valid before the commencement of the Basic Law and that conflicts with the provisions of the Basic Law. It therefore became possible to examine whether legislation — whether it was enacted before the Basic Law: Freedom of Occupation was passed, or whether it was enacted subsequently — violates the freedom of occupation, without satisfying the provisions of the limitations clause. Therefore one of the laws that is now subject to constitutional scrutiny is the Hours of Work and Rest Law.

8.    Since United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], it is accepted that, for the sake of clear analysis and precise thinking, the constitutional scrutiny is carried out in three stages (see ibid. [7], at p. 428; HCJ 450/97 Tenufa Manpower and Maintenance Services Ltd v. Minister of Labour and Social Affairs [19], at p. 440; HCJ 6055/95 Tzemah v. Minister of Defence [20], at p. 258 {___}; Menahem v. Minister of Transport [11], at p. 259; Oron v. Knesset Speaker [12], at p. 657; Stanger v. Knesset Speaker [8], at p. 792). The first stage examines whether a law violates the freedom of occupation, as it is defined in the Basic Law: Freedom of Occupation. For this purpose, we must of course interpret the constitutional provision concerning freedom of occupation (constitutional interpretation) and the provision of the law that is alleged to violate it (legislative interpretation). If there is no violation, the constitutional scrutiny ends. If there is a violation, the constitutional scrutiny progresses to the second stage. The second stage examines whether the violation of the freedom of occupation satisfies the requirements of the limitations clause. If these requirements are satisfied, the constitutional scrutiny ends. If the requirements of the limitations clause are not satisfied, we must progress to the next stage. The third stage examines the constitutional remedy. Let us now turn to the constitutional scrutiny that is required in the case before us.

First stage: does the Hours of Work and Rest Law violate the freedom of occupation?

9.    Section 3 of the Basic Law: Freedom of Occupation provides:

‘Freedom of occupation

3.  Every citizen or resident of the state is entitled to engage in any occupation, profession or trade.’

I discussed the purpose underlying this provision in one case, where I said:

‘The freedom of occupation as a constitutional right is derived from the autonomy of the individual will. It is an expression of how a person defines himself. By means of freedom of occupation, a person shapes his personality and his status and contributes to the social fabric. This is true according to the values of the State of Israel as a democratic state. It is also true according to the values of the state as a Jewish state. Work makes man unique and is an expression of the image of God in him’ (Israel Investment Managers Association v. Minister of Finance [13], at p. 383; see also Menahem v. Minister of Transport [11], at p. 256).

Indeed, the freedom of occupation is the freedom of the individual to engage (or not to engage) in any occupation, trade or profession as he sees fit. This is mainly a ‘protective’ right that usually acts against a violation thereof by a government authority (see HCJ 5936/97 Lam v. Director-General of Ministry of Education, Culture and Sport [21], at p. 692 {___}). It follows that any legislative arrangement that restricts the liberty of the citizen or the resident to enter into an occupation, profession or trade, or to manage them as he chooses, violates his freedom of occupation:

‘Freedom of occupation is the freedom to act within the framework of an occupation, profession or trade, without prohibitions or restrictions. An act of the government that imposes restrictions on the manner of realizing an occupation, profession or trade, violates… the freedom of occupation’ (HCJ 4330/93 Ganem v. Tel-Aviv District Committee, Bar Association [22], at p. 233).

Therefore, any provision in the law that requires a permit or licence to conduct business violates the freedom of occupation:

‘The law imposes a duty of licensing. A business that was “free” from any licensing obligation becomes a profession when admission into it becomes “regulated.” This transition violates the Basic Law: Freedom of Occupation’ (Tenufa Manpower and Maintenance Services Ltd v. Minister of Labour and Social Affairs [19], at p. 442).

It has therefore been held that the need for a licence in order to practise as a lawyer is a law that violates the freedom of occupation (see Stanger v. Knesset Speaker [8]. at p. 791); the need for a license in order to be a pilot violates the freedom of occupation (HCJ 1008/01 Arkia Israel Airlines Ltd v. Minister of Transport [23], at p. 214); the need for a permit in order to do business as an employment agency violates the freedom of occupation (see Tenufa Manpower and Maintenance Services Ltd v. Minister of Labour and Social Affairs [19]); the need for a licence in order to operate a taxi violates the freedom of occupation (see Menahem v. Minister of Transport [11], at p. 261); the need for a permit in order to operate a business that involves gambling violates the freedom of occupation (see Tishim Kadurim Restaurant, Members’ Club v. Haifa Municipality [14]). This license or permit can relate to the place or substance of the occupation (such as a licence to sell pig meat within the boundaries of a local authority: HCJ 953/01 Solodkin v. Beit Shemesh Municipality [24], at para. 21); a licence to sell a television cable package (HCJ 7852/98 Golden Channels & Co. v. Minister of Communications [25], at p. 429); a licence for gambling within the framework of a members’ club (Tishim Kadurim Restaurant, Members’ Club v. Haifa Municipality [14]). Finally, the freedom of occupation applies also to the freedom of competition without interference by the state and equality of opportunity (see HCJ 1703/92 C.A.L. Freight Airlines Ltd v. Prime Minister [26], at p. 227; HCJ 4915/00 Communications and Productions Network Co. (1992) Ltd v. Government of Israel [27], at p. 463; HCJ 5812/00 Samandin Mediterranean Sea v. Director of Oil Concerns at Ministry of National Infrastructures [28], at p. 347; Oron v. Knesset Speaker [12], at p. 658; Menahem v. Minister of Transport [11], at p. 256; Arkia Israel Airlines Ltd v. Minister of Transport [23]).

10. Against this background, it follows that the provisions of the Hours of Work and Rest Law that prohibit work during the weekly rest violate the freedom of occupation. ‘The prohibition of working on the Sabbath violates the Basic Law: Freedom of Occupation, as defined in s. 3 of the Basic Law: Freedom of Occupation’ (per Justice D. Dorner in Handyman Do-It-Yourself v. State of Israel [1], at p. 5). The restriction on occupation concerns time. It does not address the content or character of the occupation, but the hours when it takes place. The Hours of Work and Rest Law violates the realization of a person’s will to develop his business during the hours of the weekly rest. This violation of freedom of occupation exists whether we are speaking of a private business or a corporation. Both the former and the latter have a right to freedom of occupation. Moreover, the prohibition of working on the Sabbath also violates the freedom of occupation of the worker, who wishes to work in the business on the Sabbath. The prohibition also sometimes violates the freedom of competition of the owner of the business. In view of this conclusion, with regard to the existence of a fundamental violation of the freedom of occupation, we do not need to examine whether the Hours of Work and Rest Law violates additional human rights, such as the right to freedom of religion and freedom from religion (see HCJ 4676/94 Meatreal Ltd v. Knesset [29] and cf. R. v. Edwards Books and Art [53]). Indeed, in the petition before us the constitution debate focused merely on the violation of freedom of occupation by the Hours of Work and Rest Law. Within this framework, the respondents agreed that ‘the Hours of Work and Rest Law does involve a violation of the employer’s freedom of occupation’ (para. 16 of the respondents’ reply). Their argument was that this violation satisfies the requirements of the limitations clause. Let us now turn to this question, which constitutes the second stage of the constitutional scrutiny.

Second stage: does the Hours of Work and Rest Law satisfy the requirements of the limitations clause?

11. A law that violates the freedom of occupation is not unconstitutional for that reason alone. There are many laws that violate constitutional human rights without thereby becoming unconstitutional. For example, the penal laws, the laws concerning arrests and extradition, violate the prohibition against denying or restricting ‘a person’s liberty… by imprisonment, arrest, extradition or in any other way’ (s. 5 of the Basic Law: Human Dignity and Liberty). No one claims that all these laws are unconstitutional (see CrimA 4424/98 Silgado v. State of Israel [30]). We must distinguish between the scope of the right and the protection given to it; between the application of the right and the ability to realize it (see HCJ 399/85 Kahana v. Broadcasting Authority Management Board [31], at p. 270; HCJ 806/88 Universal City Studios Inc. v. Film and Play Review Board [32], at p. 33 {___}; A. Barak, Legal Interpretation (vol. 3, 1994), at p. 371). The scope of human rights is also broader than the protection given to them and the ability to realize them under the law. Indeed, human rights are the rights of a person as a part of society. It is possible to restrict human rights in order to realize social goals. Only when these goals are realized is it possible to have human rights. ‘The constitutional right and the violation thereof derive from a common source’ (United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 433). This is why the limitations clause is so central. It is the fulcrum where we find the constitutional balance between the private person and the public, the individual and society. It reflects the approach that alongside human rights there are also human duties (ibid. [7]). The limitations clause has a double function: it is intended to ensure that the human rights provided in the Basic Laws are only violated when certain conditions are fulfilled; it provides the conditions for violating human rights (see United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 433; Stanger v. Knesset Speaker [8], at p. 793). Thus we see that human rights are not absolute; they can be restricted. Notwithstanding, there are limits to the restrictions that can be placed on human rights. These are set out in the limitations clause.

12. The limitations clause in the Basic Law: Freedom of Occupation provides (in s. 4):

‘Violation of freedom of occupation

4.  Freedom of occupation may only be violated by a law that befits the values of the State of Israel, is intended for a proper purpose, and to an extent that is not excessive, or under a law as stated by virtue of an express authorization therein.

This clause provides that it is possible to violate the freedom of occupation, and the violation will be constitutional, if the violation satisfies the following conditions: (a) the violation is made by a law or under a law by virtue of an express authorization in the law; (b) the law violating freedom of occupation befits the values of the State of Israel; (c) the law violating freedom of occupation is for a proper purpose; (d) the violation caused by the law to the freedom of occupation is to an extent that is not excessive. For a law that violates the freedom of occupation to pass the constitutional scrutiny in the limitations clause, it must satisfy the four requirements. Are these requirements satisfied by the Hours of Work and Rest Law?

13. The first requirement of the limitations clause is that the violation of the freedom of occupation is made ‘by a law.’ We do not need to examine the significance of this expression (see Barak, Legal Interpretation, supra, at p. 489). There is no dispute that the Hours of Work and Rest Law is a law. The first requirement provided in the limitations clause is satisfied.

14. The second requirement provided in the limitations clause is that the law that violates freedom of occupation ‘befits the values of the State of Israel.’ The limitations clause does not define these values. These can be derived from the purpose clause in the Basic Law: Freedom of Occupation, which provides:

‘Purpose

2.  The purpose of this Basic Law is to protect freedom of occupation in order to enshrine in a Basic Law the values of the State of Israel as a Jewish and democratic state.’

Thus we see that the ‘values of the State of Israel’ (the limitations clause) are ‘the values of the State of Israel as a Jewish and democratic state’ (the purpose clause) (see A. Barak, The Judge in a Democracy (2004), at pp. 82, 345), What are these values and does the Hours of Work and Rest Law befit them?

15. We have no need, within the framework of the petition before us, to examine in detail the combination of constitutional terms ‘the values of the State of Israel as a Jewish… state’ and ‘the values of the State of Israel as a… democratic state.’ For the purposes of the petition before us the following three points are sufficient: first, the State of Israel is a Jewish state. I discussed this in one case, where I said that:

‘There are many democratic states. Only one of them is Jewish. Indeed, the reason for the existence of the State of Israel is that it is a Jewish state. This character is central to its existence’ (EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. Tibi [33], at p. 21).

Similarly it has been said:

‘The fact that Israel is a Jewish state lies at the heart of our existence here… the Jewish people established the Jewish state. This is the beginning and from this we will continue the journey’ (per Justice M. Cheshin in LCA 2316/96 Isaacson v. Parties Registrar [34], at p. 547).

The Jewish state has two main aspects: a Zionist aspect and a traditional-religious aspect (see Central Elections Committee for the Sixteenth Knesset v. Tibi [33], at p. 22; Barak, The Judge in a Democracy, supra, at p. 87). The Zionist aspect is based on the world of Zionism. The traditional-religious aspect is based on the world of Judaism. Underlying the essence of these two aspects — without exhausting them —

‘… lies the right of every Jew to immigrate to the State of Israel; that Jews will constitute a majority therein; Hebrew is the main official language of the State, and its main religious holidays and symbols reflect the national revival of the Jewish people. Jewish tradition is a central element in its religious and cultural heritage’ (Central Elections Committee for the Sixteenth Knesset v. Tibi [33], at p. 22).

Thus we see that ‘a Jewish state’ is a rich and multi-faceted concept. Second, the State of Israel is a democratic state. Underlying the essence of democracy — without exhausting this concept — are several characteristics. These are based on —

‘… a recognition of the sovereignty of the people as reflected in free and equal elections; a recognition in the essence of human rights, including dignity and equality, the principle of the separation of powers, the rule of law and an independent judiciary’ (Central Elections Committee for the Sixteenth Knesset v. Tibi [33], at p. 23).

Indeed, democracy is based on both the sovereignty of the people and the rule of values that characterize democracy. There is no democracy merely with the sovereignty of the people; there is no democracy merely with the rule of democratic values. So we see that the world of democracy is multi-dimensional and complex (see Barak, The Judge in a Democracy, supra, at p. 90). Third, the constitutional interpreter should make an effort to achieve an accord and harmony between the values of the State of Israel as a Jewish state and its values as a democratic state. Indeed, the expression ‘the values of the State of Israel as a Jewish and democratic state’ should be regarded as one idea that is comprised of two elements (Jewish and democratic). Between the two there should be a synthesis and compatibility. ‘Judges, as faithful interpreters of the constitutional text, should do everything in order to achieve this synthesis’ (Central Elections Committee for the Sixteenth Knesset v. Tibi [33], at p. 19). The interpreter should find what is common to both and what unites them. Justice M. Elon rightly said that:

‘It is in the nature of such a synthesis that it seeks what is common to both systems, the Jewish and the democratic, the principles that are common to both, or at least that can be reconciled with them’ (CA 506/88 Shefer v. State of Israel [35], at p. 167 {277}; see also the books and articles cited in Barak, The Judge in a Democracy, supra, at p. 437, note 345).

16. Does the prohibition against employing someone and working during the weekly rest, which is provided in ss. 9 and 9A of the Hours of Work and Rest Law, befit the values of the State of Israel as a Jewish and democratic state? As we shall see (in para. 20 below), these prohibitions are based on the social need to provide hours of weekly rest to the worker by determining one uniform day of rest that will allow a whole family to be together on the day of rest. This involves a determination based on a religious-national consideration that the weekly rest will include ‘for a Jew — the Sabbath; for someone who is not a Jew — the Sabbath or Sunday or Friday, all of which in accordance with what is acceptable to him as his day of weekly rest’ (s. 7). This determination befits the values of the State of Israel, both as a Jewish state and as a democratic state. Normative unity and harmony, to which we are obliged to aspire, is thereby achieved. This was discussed by Justice D. Dorner, who said:

‘Prescribing the day of rest for Jews on the Sabbath realizes the values of the state as a Jewish and democratic state. These two values combine in full harmony in the law under discussion’ (Handyman Do-It-Yourself v. State of Israel [1], at p. 5).

17. The values of the State of Israel as a Jewish state well befit the prohibition of employing persons and working during the weekly rest, which is the Sabbath for Jews, and Sunday or Friday for non-Jews. This is the case both for social reasons and for national-religious reasons. An expression of this can be found in the fourth of the Ten Commandments:

‘Observe the day of the Sabbath to sanctify it as the Lord your God commanded you. Six days shall you labour and do all your work. And the seventh day is a Sabbath to the Lord your God; you shall not do any work, either yourself or your son or your daughter or your man-servant or your maid-servant or your ox or your ass or any animal of yours or your stranger that is within your gates, so that your man-servant and your maid-servant shall rest as you do. And you shall remember that you were a slave in the land of Egypt and the Lord your God took you out from there with a strong hand and an outstretched arm; therefore the Lord your God has commanded you to keep the day of the Sabbath’ (Deuteronomy 5, 11-15 [54]]; for a slightly different text, see Exodus 20, 8-11 [55]).

Indeed, the social aspect and the national-religious aspect of a weekly rest is a golden thread that runs through the world of Jewish religious law. The combination of these two led to the result that observance of the Sabbath became a central element of Judaism. I discussed this in one case where I said:

‘Observance of the Sabbath is a central value in Judaism. The Sabbath is the fourth of the Ten Commandments. It constitutes an original and important Jewish contribution to world culture… it constitutes a cornerstone in Jewish tradition. It is a symbol that clearly expresses the nature of Judaism and the character of the Jewish people. Remove the Sabbath from Judaism and you have removed its soul. Indeed, the Sabbath is a synopsis of the character of Judaism. Many of our people have given their lives for the Sabbath over the course of our bloodstained history’ (HCJ 5016/96 Horev v. Minister of Transport [36], at p. 43 {___}).

In a similar spirit, Justice Dorner said:

‘Judaism, which bequeathed to mankind the concept of the weekly day of rest, sanctified the Sabbath as the day of rest of the Jewish people. The Sabbath is a national value no less than a religious value. “The Sabbath is the most ingenious creation of the Jewish spirit” wrote H.N. Bialik… and Ahad HaAm said: “Whoever feels in his heart a real connection with the life of the people throughout the generations cannot in any way imagine a reality of the Jewish people without its Sabbath queen” ’ (Handyman Do-It-Yourself v. State of Israel [1], at p. 5).

18. The prohibition of employing someone and of working provided in the Hours of Work and Rest Law befits the values of the State of Israel as a democratic state. The social need to ensure hours of a weekly rest for the worker, while determining a uniform day of rest for all the workers in the economy, in order to allow joint family activity, and by choosing hours of rest against a background of national-religious considerations — the Sabbath for Jews and Friday or Sunday for non-Jews — befits the values of the State of Israel in a democratic state. This was discussed by President S. Adler, who said:

‘The Hours of Work and Rest Law should be interpreted as a law that gives expression to a proper social policy. This policy provides a normative framework of hours of work in the economy and prevents an employee and his employer from agreeing to a framework of work hours that harms the employee’s quality of life. The law restricts the freedom of the individual to determine his work hours, but the purpose in this restriction is to protect the worker against a violation of his humanity. The initial purpose is to advance the quality of life and to protect the dignity of whoever does work by limiting the work day, and thereby in practice defining also the hours of rest’ (LabA 300271/98 Tepco Energy Control Systems and Environment Production Ltd v. Tal [50], at p. 710).

A democratic state seeks to guarantee the rest of the worker and the family bonds that exist if all members of the family have one uniform day of rest. A democratic state takes religious feelings into account in that the day of rest is determined on a religious and national basis. An expression of this can be found in the Weekly Rest (Commerce and Offices) Convention, 1957 (Treaties 12, 693), which provides that all human beings subject to the convention shall ‘be entitled to an uninterrupted weekly rest period comprising not less than 24 hours in the course of each period of seven days’ (art. 6(1)). The convention further provides that ‘The weekly rest period shall, wherever possible, coincide with the day of the week established as a day of rest by the traditions or customs of the country or district’ (art. 6(3)). It is also provided that ‘The traditions and customs of religious minorities shall, as far as possible, be respected’ (art. 6(4)). In various countries that have democratic values, the day of weekly rest has been determined in this spirit (see the Sunday Trading Act 1994 in England, which determines Sunday as the weekly day of rest). The same is true in Canada (see P. Hogg, Constitutional Law of Canada (fourth edition, 1997), at p. 491) and in the United States (see J. Choper, Securing Religious Liberty (1995), at p. 136). See also and cf. CrimC (Jer) 3471/87 State of Israel v. Caplan [49], and the references cited there.

19. The third requirement that is enshrined in the limitations clause is that the violation of the freedom of occupation should be made in a law ‘that is intended for a proper purpose.’ A purpose is a proper one —

‘… if it serves an important social purpose that is sensitive to human rights. Therefore, legislation that is intended to protect human rights is certainly enacted for a proper purpose. Moreover, legislation that is intended to realize general social purposes, such as a welfare policy or protecting the public interest, is enacted for a proper purpose’ (United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 434).

A purpose is a proper one ‘if it furthers public purposes that are important to the state and to society with the purpose of providing an infrastructure for communal life and for a social framework that seeks to protect and promote human rights’ (per Justice D. Beinisch in Menahem v. Minister of Transport [11], at p. 264). A purpose is a proper one if it seeks to balance between the interests of the public as a whole and the harm to the individual; if it is ‘intended to realize important social goals, whose realization is consistent with the character of society as the protector of human rights’ (per Justice T. Or in Oron v. Knesset Speaker [12], at p. 662). In examining the question whether a purpose is a proper one, we should examine two aspects: one aspect concerns the content of the purpose. A purpose is a proper one if it constitutes a social purpose that is sensitive to human rights, or if it is intended to achieve social purposes, such as a welfare policy or protecting the public interest; the second aspect concerns how necessary it is to realize the purpose. A purpose is a proper one if the need to realize it is important for the values of society and the state (see Horev v. Minister of Transport [36], at p. 52 {___}). What is the purpose of the Hours of Work and Rest Law with regard to the weekly rest, and is its purpose a proper one?

20. There are two purposes that underlie the arrangements concerning the hours of weekly rest in the Hours of Work and Rest Law, and these complement one another (see Y. Eliasof, ‘Work during the Weekly Rest,’ Menachem Goldberg Book (2001) 116; see also the debates in the Knesset: Knesset Proceedings vol. 9, at p. 1729): one purpose is a social purpose, which is concerned with the welfare of the worker and gives him social protect (see LabA 255/99 Civil Security Ltd v. Shahidem [51]). The law seeks to realize the social purpose involved in ensuring the health and welfare of workers, by preventing them ‘from work and occupations that exhaust a person, and by requiring his periodic rest’ (per Vice-President Silberg in CrimA 217/68 Isramax Ltd v. State of Israel [37], at p. 357). This day of rest was determined on a uniform basis for the whole economy, thereby promoting the social value whereby the members of the family have the day of rest at the same time. The second purpose is a national-religious purpose, which regards the observance of the Sabbath by Jews as a realization of one of the most important values in Judaism that has a national character. In a similar spirit, designating other days of rest for persons who are not Jewish realizes their religious outlook. These two purposes have been discussed by the court on several occasions. Thus, for example, it was held per President S. Agranat that the reason underlying the weekly rest arrangement in the Hours of Work and Rest Law is:

‘The social value involved in ensuring the health and welfare of employees… it is also clear that it is not a coincidence… that the “weekly rest” includes — for a Jew — specifically the Sabbath, something that shows that the issue of Sabbath observance was regarded… as a national treasure of the Jewish people, which should be protected in the State of Israel, and also in view — in the words of Justice Berinson — “of the religious feelings, which are held by large sectors of the public,” for whom the social value inherent in the legislator’s prohibition against employing Jews on the Sabbath is also sacred to them as a religious value’ (HCJ 287/69 Miron v. Minister of Labour [38], at p. 349).

In a similar vein Justice M. Elon said that the arrangement concerning the prohibition of employing persons and working on the Sabbath ‘is based on a whole range of national-religious, social and welfare considerations’ (HCJ 171/78 Eshkar Ltd v. Minister of Labour and Social Affairs [39], at p. 154). The same approach was confirmed by President M. Shamgar:

‘In determining the principle of having a weekly day of rest and fixing it on the Sabbath the legislator sought to realize two interrelated purposes: first, a social purpose, according to which a weekly day of rest should be given to every person so that he can rest from his work, be with his family or with friends and devote time to leisure and recreation according to his choice and preference. The determination of the day of rest is also intended to protect the health of the employee and guarantee him decent work conditions. Second, fixing the day of rest on the Sabbath was done against the background of dictates of Jewish law and Jewish tradition’ (HCJ 5073/91 Israel Theatres Ltd v. Netanya Municipality [40], at p. 206).

This is also the approach of Justice D. Dorner, who says:

‘The purpose of the Hours of Work and Rest Law is therefore a double one: first, it upholds the social right to a weekly day of rest, which requires a public day of rest for the purpose of enforcement… Second, the law is intended to preserve the character of the State of Israel as a Jewish state’ (Handyman Do-It-Yourself v. State of Israel [1], at p. 6).

21. Do the two interrelated purposes — the social purpose and the religious purpose — combine to form a ‘proper purpose’? My answer to this is yes. Guaranteeing a day of rest for the employee and employer, determining a uniform day of rest for the whole economy, in a manner that guarantees the welfare of the family, and fixing this day of rest on a national-religious basis (for a Jew — the Sabbath; for someone who is not Jewish — Friday, Saturday or Sunday, according to what is accepted by him as his day of rest), constitutes a ‘proper purpose,’ within the meaning of this expression in the limitations clause. The social purpose serves an important public purpose. It is intended to protect the individual (the employee and the employer) and it is intended to guarantee the welfare of the whole family, all of which while ensuring equality between the religiously observant person and someone who is not religiously observant. I discussed this in one case, where I said:

‘Protecting the rights of the employee is a proper purpose; ensuring social security for the employee is a proper purpose; preserving the framework of protective laws that will protect employees is a proper purpose. Indeed, this protection of the rights of the employee has a fundamental social importance in our society. It constitutes a proper purpose from a constitutional perspective’ (Tenufa Manpower and Maintenance Services Ltd v. Minister of Labour and Social Affairs [19], at p. 444).

The national-religious purpose is also a proper one. It is mindful of the feelings of the religious public in Israel. It gives expression to the national ties that bind us together as one people. It reflects the tradition and customs in Mandatory Palestine and in Israel (see Eliasof, ‘Work during the Weekly Rest,’ supra). Indeed, in many democratic countries there are laws that establish a weekly day of rest in the economy, and as a rule they provide a uniform day that is consistent with the most common religious outlook in that country (Sunday) (see R. v. Edwards Books and Art [53] (Canada); McGowan v. Maryland [52] (the United States)).

22. The petitioners argue that they accept that an employee must be assured of a weekly rest. Notwithstanding, they ask that the hours of rest should be ‘flexible.’ The meaning of this is that every employer or employee may choose the hours of weekly rest that are convenient for them. According to the petitioners, the choice that requires uniform hours of rest for all Jews involves an improper purpose. I cannot accept this approach. Determining uniform hours of rest for the whole economy is a social-national interest. It makes it possible to take advantage of the rest and to incorporate it in the welfare of the employee and his family. This was discussed by Chief Justice Dickson of the Supreme Court of Canada in a judgment that considered the constitutionality of laws that required business to close on Sunday. Chief Justice Dickson wrote:

‘I regard as self-evident the desirability of enabling parents to have regular days off from work in common with their child’s day off from school, and with a day off enjoyed by most other family and community members…

A family visit to an uncle or a grandmother, the attendance of a parent at a child’s sports tournament, a picnic, a swim, or a hike in the park on a summer day, or a family expedition to a zoo, circus, or exhibition – these, and hundreds of other leisure activities with family and friends are amongst the simplest but most profound joys that any of us can know. The aim of protecting workers, families and communities from a diminution of opportunity to experience the fulfilment offered by these activities, and from the alienation of the individual from his or her closest social bonds, is not one which I regard as unimportant or trivial… I am satisfied that the Act is aimed at a pressing and substantial concern. It therefore survives the first part of the inquiry under s. 1’ (R. v. Edwards Books and Art [53], at p. 770).

Admittedly, in determining uniform hours of rest on the Sabbath (for Jews), there is a violation of the freedom of occupation of the employer and the employee. Notwithstanding, this violation serves an important social purpose, and therefore it is a ‘proper purpose’ within the context of the limitations clause.

23. It may be argued that even if it is proper to determine uniform hours of rest, it is not proper to determine these for Jews on the Sabbath. This involves religious coercion for those who wish to employ persons or work on the Sabbath. This religious coercion is undesirable, and its realization leads to the result that the purpose underlying the Hours of Work and Rest Law is improper. I cannot accept this argument. It has been rejected both in the United States (see McGowan v. Maryland [52]) and in Canada (see R. v. Edwards Books and Art [53]). Once we have determined that social considerations rule out a flexible determination of the hours of the weekly rest and justify fixing a day of the week on which the weekly rest can be realized, the fixing of the Sabbath (for Jews) as the day of weekly rest does not involve religious coercion. The coercion is in the very obligation to have the hours of the weekly rest on the day that the law determines, and not according to the wishes of the employer or the employee. The fact that the day chosen to realize this obligation coincides with the Jewish outlook on the Sabbath does not make the coercion religious (see Prof. S. Shetreet, ‘Some Reflections on Freedom of Conscience and Religion in Israel,’ 4 Isr. Y. H. R. 194 (1974), at p. 214). This was discussed by Chief Justice Dickson in R. v. Edwards Books and Art [53], where he said:

‘Religious freedom is inevitably abridged by legislation which has the effect of impeding conduct integral to the practice of a person’s religion. But it is not necessarily impaired by legislation which requires conduct consistent with the religious beliefs of another person. One is not being compelled to engage in religious practices merely because a statutory obligation coincides with the dictates of a particular religion…

Legislation with a secular inspiration does not abridge the freedom from conformity to religious dogma merely because statutory provisions coincide with the tenets of a religion’ (ibid. [53], at pp. 760, 761).

Indeed, fixing the hours of the weekly rest on the Sabbath does not involve religious coercion; it is an expression of the values of the State of Israel as a Jewish state. Moreover, the case before us concerns the prohibition of working on the Sabbath. Notwithstanding, the law prohibits work not only on the Sabbath but also on additional days of rest which are mainly religious holidays (see s. 9A of the law and s. 18A of the Government and Justice Arrangements Ordinance, 5708-1948). Even in this context of a prohibition of working on religious holidays we should reject an argument that we are speaking of a prohibition that involves religious coercion.

24. The fourth condition for the constitutionality of a law that violates the freedom of occupation is that the violation is ‘to an extent that is not excessive.’ This is a requirement of proportionality. If ‘the proper purpose’ focuses on the purpose of the law that violates the freedom of occupation, proportionality focuses on the measures that the law prescribed to achieve the desired purpose. These measures must be proportionate. In comparative law, an attempt has been made to concretize the requirement of proportionality (see J. Schwarz, European Administrative Law (1992); N. Emiliou, The Principle of Proportionality in European Law (1996); The Principle of Proportionality in the Laws of Europe (Evelyn Ellis ed., 1999); M. Eissen, ‘The Principle of Proportionality in the Case-Law of the European Court of Human Rights,’ The European System for the Protection of Human Rights (R.St.J. Macdonald, F. Matscher, H. Petzold eds., 1993) 125; M. Fordham and T. de la Mare, ‘Identifying the Principle of Proportionality,’ Understanding Human Rights Principles (J. Jowell and J. Cooper eds., 2001) 27; J. Kirk, ‘Constitutional Guarantees, Characterisation and the Concept of Proportionality,’ 21 Melbourne U. L. Rev. 1 (1997); R. Thomas, Legitimate Expectations and Proportionality in Administrative Law (2000); D. Beaty, The Ultimate rule of Law (2004)). The Supreme Court, when interpreting the requirement of proportionality in the limitations clause, has adopted this approach (see United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 436; Israel Investment Managers Association v. Minister of Finance [13], at p. 385; Oron v. Knesset Speaker [12], at p. 665; HCJ 987/94 Euronet Golden Lines (1992) Ltd v. Minister of Communications [41]; HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [42], at p. 12; Menahem v. Minister of Transport [11], at p. 279; Horev v. Minister of Transport [36], at p. 53 {___}; HCJ 8238/96 Abu Arar v. Minister of Interior [43], at p. 41; HCJ 1255/94 Bezeq, the Israel Telecommunication Corp. Ltd v. Minister of Communications [44], at p. 687; HCJ 3648/97 Stamka v. Minister of Interior [45]; HCJ 4644/00 Jaffora Tabori Ltd v. Second Television and Radio Authority [46]; HCJ 9232/01 Noah, the Israeli Federation of Animal Protection Organizations v. Attorney-General [47], at p. 261 {___}; HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [48]; see Z. Segal, ‘The Ground of Disproportionality in Public Law,’ 39 HaPraklit 507 (1990); I. Zamir, ‘The Administrative Law of Israel Compared to the Administrative Law of Germany,’ 2 Mishpat uMimshal 109 (1994), at p. 131; D. Dorner, ‘Proportionality,’ The Berinson Book (vol. 2, 2000) 281). According to the accepted approach, the requirement of proportionality is satisfied when the law passes three subtests. We shall discuss there briefly.

25. The first subtest of proportionality is the suitability test. This test requires there to be a relationship according to which the arrangements provided in the law (the means) are suited to the realization of the proper purpose (the end). The means chosen should lead rationally to the realization of the end (see Ben-Atiya v. Minister of Education, Culture and Sport [42], at p. 12). The second subtest of proportionality is the least harmful measure test or the necessity test. According to this, the measure chosen by the law should harm the human right to the smallest possible degree. It is possible to employ an analogy of rungs of a ladder. ‘The legislature should begin with the least harmful “rung,” and slowly ascend the ladder until it reaches the rung that allows the proper purpose to be achieved without harming the human right more than necessary’ (United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 444; see also Menahem v. Minister of Transport [11], at p. 279. For the analogy of ascending the rungs of a ladder, see D. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (second edition, 1997), at p. 274). The third subtest provides that the measure that was adopted by the law and that violates the human right must be proportionate to the purpose. This is the test of proportionality ‘in the narrow sense.’ Within the framework of this subtest ‘the benefit accruing to the public from the legislation under discussion is weighed against the violation to the constitutional right of the individual as a result of adopting the measure chosen’ (per Justice Beinisch, in Menahem v. Minister of Transport [11], at p. 279). This subtest is a balancing test. By employing these subtests we can discover the legislature’s margin of appreciation. We should recognize the legislature’s margin of appreciation or margin of proportionality (see Menahem v. Minister of Transport [11], at p. 280; Beit Sourik Village Council v. Government of Israel [48], at para. 42).

26. Do the provisions of the Hours of Work and Rest Law in so far as they concern the weekly rest satisfy the proportionality tests? My answer is yes. The first proportionality test (the rational connection test) is satisfied. There is a rational connection between the realization of the purposes underlying the Hours of Work and Rest Law and prescribing a prohibition of employing a worker on the day of weekly rest. The second subtest (the least harmful measure test) is also satisfied in the case before us. A choice of flexible hours of rest would not have realized the purpose of the law. Fixed hours of rest are required. The legislature’s choice of the Sabbath (for Jews) and Sunday and Friday (for non-Jews) is consistent with the requirements of proportionality. In this respect it should be recalled that an integral part of the Hours of Work and Rest Law are the provisions concerning matters to which the law does not apply at all, such as policemen, civil servants whose jobs require them to be at the state’s disposal even outside ordinary working hours, sailors and aircraft personnel (s. 30). We should also take into account the matters in which the law gives the Minister of Labour discretion to give (general or special) permits that allow work during the hours of rest. By virtue of this power, various permits have been given, such as in the sectors of hotels, security services, the various emergency services, etc. (see M. Goldberg, Labour Laws (vol. 2, 2003) at p. 21). We should also take into account arrangements in various laws, such as the Municipalities Ordinance [New Version], which authorizes a municipality to regulate the opening and closing of various businesses, including cinemas, restaurants, theatres and cultural institutions within its municipal boundaries or a part thereof. The third subtest is also satisfied in this case. The law realized an important social interest, and the violation of the freedom of occupation is limited. This violation — which is mainly a prohibition of working on the Sabbath — applies in principle equally to all owners of businesses, and therefore prima facie it cannot give an unfair competitive advantage to one competitor or another. This fact is also relevant to the proportionality of the law. Since the three subtests are satisfied, the requirement that the violation of freedom of occupation ‘is not excessive’ is satisfied. This was discussed by Justice Dorner in Handyman Do-It-Yourself v. State of Israel [1]:

‘The prohibition of employing someone on a day of rest without doubt realizes its purposes, and therefore it satisfies the rational connection test, whereas the discretion to give work permits for the Sabbath, which can be exercised, inter alia, also because of the need of the public or parts thereof to receive services on the Sabbath, allows the violation to be minimized… the granting of discretion also realized the test of proportionality because within its framework a balance is struck between the benefit offered by the day of rest and the damage caused by the violation of the freedom of occupation’ (ibid. [1], at p. 7).

We agree with this approach.

27. In summary, we accept that the Hours of Work and Rest Law, in so far as it concerns the hours of the weekly rest, violates the freedom of occupation of the employer and the workers. This violation does not lead to the unconstitutionality of the law. This is because it satisfies the conditions of the limitations clause. It befits the values of the State of Israel as a Jewish and democratic state. It was enacted for a proper purpose — a social purpose that is achieved by means of realizing a national-religious consideration. The violation of the freedom of occupation is not excessive. It therefore follows that the constitutional argument of the petitioners should be rejected.

The administrative scrutiny

28. The petitioners’ second argument is that the refusal of the Minister of Labour to give a work permit for the weekly rest is unlawful. This is because of the serious economic harm that the minister’s refusal to give the permit causes them. This argument revolves around s. 12(a) of the Hours of Work and Rest Law, which provides:

‘Permit to employ persons during the weekly rest

12. (a) The Minister of Labour may permit the employment of a worker during the hours of the weekly rest, or during a part thereof, if he is persuaded that stopping the work for all or part of the weekly rest is likely to harm the defence of the state or the safety of persons or property, or seriously to damage the economy, the work process or the supply of necessities that are, in the opinion of the Minister of Labour, essential for the public or for a part thereof.’

The question before us is whether the refusal of the minister to give a permit to the petitioner is unlawful? In my opinion, the answer is no. The petitioners did not succeed in presenting a factual basis to show that its activity during the hours of the weekly rest is ‘essential for the public or for a part thereof.’ Likewise no factual basis was brought before us in support of the claim that the petitioners are being discriminated against, to show that other businesses of the same kind have received permits to work during the hours of the weekly rest, and are competing against them unlawfully.

The result is that the petition is denied.

 

 

Justice M. Naor

1.    I agree with the opinion of my colleague President Barak. I would like to add a few words with regard to the claim of religious coercion raised by the petitioners.

2.    The petitioners are asking for ‘flexible’ hours of rest. According to them, mandating the hours of rest to be specifically on the Sabbath (for Jews) constitutes improper religious coercion (see paras. 22 and 23 of the President’s opinion). In my opinion, it is precisely an arrangement that supposedly allows the worker to choose for himself a day of weekly rest as he wishes that is an arrangement that involves, or at least may involve, coercion. If the law allowed each worker to choose for himself a day of rest, as the petitioners request, in many cases the real choice will be made by the employer and not by the workers. A person who observes the Sabbath and is told by an employer to choose a weekday as his day of rest as a condition for being given employment will refrain for accepting the employment. Even someone who does not observe the Sabbath but prefers that his day of rest will be specifically on the Sabbath, so that he can enjoy being with the members of his family, will not have a free choice. When he goes to find work, the employer may make it clear to him that he will give preference to workers who are prepared to work on the Sabbath. The constraints of obtaining a livelihood may lead to the result that the worker ‘chooses’ a day of rest that is not really his preferred day of rest, and we cannot verify that the choice of another day of rest that is not the Sabbath is really a free choice. Therefore, in addition to all the reasons given by my colleague, in my opinion there is a justification for the law to mandate one day of rest, which is, for Jews, the Sabbath. In my opinion, this binding law protects workers more than a law that allows them, supposedly, a free choice.

 

 

Justice A. Procaccia

1.    I agree with the opinion of my colleague, President Barak, according to which the prohibition of employing Jews in work on the Sabbath that derives from the Hours of Work and Rest Law, 5711-1951, satisfies the constitutionality test in the sense that although it violates the freedom of occupation of the employer and the workers, it satisfies the conditions of the limitations clause since it befits the value of the State of Israel, promotes a proper purpose and satisfies the proportionality test.

2.    I would like to add the following comment:

As the President said, and according to our well-established approach, by having the weekly day of rest on the Sabbath for Jews the legislature sought to realize two interrelated purposes — a social purpose, which is based on a perspective of social welfare, and a national-religious purpose, which is based on the dictates of Jewish religious law and tradition. The essence of the social purpose is that a person can rest on the day of weekly rest, which promotes his physical and spiritual welfare. The day of rest is intended to allow a person to spend time with his family and friends; it is intended to allow him free time for various activities that are important to him, including being involved in cultural and spiritual activities and using his leisure time according to his interests and tastes.

The national-religious purpose of the Sabbath gives equal weight to the religious dictates concerning the day of rest, which reflects the fact that the Sabbath is a national treasure of the Jewish people that should be observed in the Jewish community.

A proper internal balance is required between these two purposes that underlie the prohibition against the employment of a Jew on the Sabbath. Alongside the protection of Sabbath observance from the national-religious aspect, the law leaves the social aspect of the day of rest open to be shaped in accordance with the variety of different lifestyles and tastes in the many sectors of Israeli society. Indeed, there are many different ways in which people decide how to act on the day of weekly rest given to them, each person in accordance with his way of life, belief and lifestyle.

3.    The need for balancing the religious aspect against the social aspect of the Sabbath may sometimes justify a departure from the rule that prohibits work on the Sabbath, in order to allow an individual to fashion the way in which he spends his day of rest as he wishes and also in order to make available to him certain public frameworks that will allow him to realize this right. In the Hours of Work and Rest Law the legislature recognized this, by providing in s. 12(a) of the law that the Minister of Labour has discretion to allow work on the Sabbath where essential needs of the State and the public so require. According to the language of the section, it is obvious that the aforesaid exception will apply to essential needs concerning the defence of the state, the safety of persons and property, economic needs, and work processes. But the provision goes on to provide in a general manner that a work permit may be given also for ‘the supply of necessities that are, in the opinion of the Minister of Labour, essential for the public or for a part thereof.’ This broad power that was given to the minister to permit work on the Sabbath with regard to necessities that are essential for the public or for a part thereof is intended to add to those essential needs of society that concern ensuring the requirements of the physical existence of Israeli residents in the spheres of security, the economy or work processes. It is intended to extend the power to grant permits not only to the supply of essential physical necessities, but also in order to ensure essential necessities of the public or of parts thereof in spiritual matters and the spheres of, culture, art, leisure and entertainment. It is intended to ensure the individual’s quality of life in a free society that has freedom of religion and freedom from religion. It is intended to allow a person to realize in a proportionate manner the social aspect of the Sabbath in accordance with his tastes and his lifestyle, and to give expression thereby to customs, lifestyles and the various cultures in the many strata of Israeli society. The power to give permits for employment on the Sabbath is intended, inter alia, to promote essential needs of the different sectors of the population in order to allow them to fashion their Sabbath as a day of rest according to their own desires.

4.    The scope of the essential departure from the framework of prohibiting employment on the Sabbath that was intended to allow a person to spend his day of rest in accordance with his choice and custom requires constitutional balances between the needs of the individual and those of the public as a whole and between various sectors and cultural groups in Israeli society, which have different beliefs and lifestyles. The designation of the Sabbath as the day of rest for society in Israel requires a proportionate balance between the social aspect and the national-religious aspect of the Sabbath. Making the social aspect completely subservient to the religious aspect will not achieve the proper balance, whereas putting sole emphasis on the social aspect, while recognizing the multifaceted nature of its content, is inconsistent with the recognition of the traditional nature of the Sabbath and its dual nature. Within the framework of the social aspect of the Sabbath we require a recognition of the needs to depart from the prohibitions of employment where this is essential in order to allow the Sabbath to be shaped as the day of rest for the general public in a free, pluralistic and tolerant spirit, without causing disproportionate harm to other social groups, and without uprooting the unique national character of the Sabbath from among the Jewish people. We should thereby recognize that in order to realize the individual character and leisure culture of the individual, we also need public frameworks that will assist and allow this, including public transport that will allow the public to move freely, the opening of museums and cultural institutions, the activity of theatres and cinemas, the holding of lectures and congresses, and the like. Allowing the activity of these institutions may justify giving work permits on the Sabbath to those that operate them. On the other hand, the scope of the concept of ‘a necessity that is essential for the public’ for the purpose of granting work permits on the Sabbath is, by its very nature, limited and restricted, since a careful balance needs to be made between the right of the non-observant individual to realize his liberty to determine the social content of his Sabbath according to his tastes and the sacred value of keeping the Sabbath as a general day of rest of a national-religious character. This requires giving considerable weight and consideration to the needs and beliefs of the religious public, and preventing injuries to its feelings. The proper balance between the social aspect and the national-religious aspect of the Sabbath will benefit the public as a whole, and achieve equality for all citizens, which is the basis of freedom of conscience and religion. This will make it possible to preserve the Sabbath as a national treasure and, at the same time, also as a day of rest reserved for the individual, for his physical and spiritual welfare, according to his personal beliefs and lifestyle.

5.    The fashioning of the Sabbath as a general day of rest that allows the individual a certain degree of freedom to determine what he does according to his lifestyle and beliefs may justify, in appropriate circumstances, granting permits for work on the Sabbath, that will allow this freedom to be realized de facto. This freedom is not unlimited because of the balancing required to protect other values. But within its proper and proportionate framework, it may constitute an ‘essential need’ that may make it possible to depart from the general prohibition of work on the Sabbath. The discretion of the Minister of Labour in this regard is very broad (Miron v. Minister of Labour [38], at p. 355; Eshkar Ltd v. Minister of Labour and Social Affairs [39], at pp. 149, 153; State of Israel v. Caplan [49], at pp. 281-283).

6.    In the proceeding before us, the petitioner, a company that markets furniture, is seeking relief that asks us to order the Minister of Labour to give it a permit under s. 12 of the law to employ Jews in its shops on the Sabbath and religious holidays. Its arguments is that it must open its shops on Sabbaths and religious holidays in order to withstand the strong competition that exists in the field, since otherwise it anticipates major economic hardships in its future business activity, to the extent that it may need to close down its business altogether.

 There is no basis for intervening in the discretion of the competent authority that refused to give a permit for work on the Sabbath in this case. The ground on which the petitioner relies for this purpose — contending with economic competition in the business sector in which it does business — does not satisfy the criterion of essential necessities of which s. 12 of the Hours of Work and Rest Law speaks. The law even clarified in s. 9A that, as a rule, on days of rest ‘… the owner of a workshop shall not work in his workshop, not shall the owner of a factory work in his factory, nor shall the owner of a shop trade in his shop.’ Engaging in trade, in the normal manner, falls within the general prohibition of work on the Sabbath, and not within the framework of the exceptions thereto.

In view of all of the aforesaid, I agree with the President’s conclusion that this petition should be denied.

 

 

Petition denied.

24 Adar II 5765.

4 April 2005.

 

 

 

[1]    The Jewish Sabbath begins shortly before sunset on Friday and ends at nightfall on Saturday.

HCJ 1890/03

Bethlehem Municipality

and 22 others

v

1.       State of Israel – Ministry of Defence

2.       Gen. Moshe Kaplinsky – IDF Commander in Judaea and Samaria

 

 

The Supreme Court sitting as the High Court of Justice

[3 February 2005]

Before Justices D. Beinisch, E. Rivlin, E. Hayut

 

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

 

Facts: The site known as Rachel’s tomb, which is situated in the outskirts of Bethlehem, is believed to be the tomb of the Biblical Matriarch Rachel and is a holy site to Jews. It is the third holiest site in Jewish tradition, after the Temple Mount and the Machpela Cave.

Because of the persistent terror attacks by Palestinians on Jewish targets since September 2000, and following the discovery of a terror cell that intended to attack a bus of worshippers on their way to the tomb, the respondent made an order to requisition land for the purpose of paving a bypass road that would allow Jewish worshippers to travel safely to Rachel’s tomb. The order was amended twice, but the petitioners still argued that the order violated their freedom of movement and property rights.

 

Held: The respondent has a duty to ensure the realization of the right of freedom of worship by protecting the safety and lives of the worshippers on their way to and from Rachel’s tomb. In choosing the measures for realizing this purpose, the respondent must take into account the basic rights of the petitioners, including their property rights and freedom of movement, and he must strike a proper balance between the conflicting rights. In this case, the solution adopted by the respondent did indeed ensure the realization of the worshippers’ freedom of worship without violating the essence of the petitioners’ freedom of movement and property rights. Therefore no intervention of the court was warranted.

 

Petition denied.

 

Legislation cited:

Basic Law: Human Dignity and Liberty, s. 3.

Palestine Order in Council, 1922, art. 83.

Order Concerning the Requisition of Land no. 14/03/T (Judaea and Samaria), 5763-2003.

Order Concerning the Requisition of Land no. 14/03/T (Amendment of Borders) (Judaea and Samaria), 5763-2003.

Order Concerning the Requisition of Land no. 14/03/T (Second Amendment of Borders) (Judaea and Samaria), 5763-2003.

Protection of Holy Places Law, 5727-1967, ss. 1, 2(b).

 

Israeli Supreme Court cases cited:

[1]     HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [2004] IsrSC 58(5) 807; [2004] IsrLR 264.

[2]     HCJ 940/04 Abu Tir v. IDF Commander in Judaea and Samaria (not yet reported).

[3]     HCJ 10356/02 ­­­­­Hass v. IDF Commander in West Bank [2004] IsrSC 58(3) 443; [2004] IsrLR 53.

[4]     HCJ 401/88 Abu Rian v. IDF Commander in Judaea and Samaria [1988] IsrSC 42(2) 767.

[5]     HCJ 24/91 Timraz v. IDF Commander in Gaza Strip [1991] IsrSC 45(2) 325.

[6]     HCJ 2717/96 Wafa v. Minister of Defence [1996] IsrSC 50(2) 848.

[7]     HCJ 7015/02 Ajuri v. IDF Commander in West Bank [2002] IsrSC 56(6) 352; [2002-3] IsrLR 83.

[8]     HCJ 358/88 Association for Civil Rights in Israel v. Central Commander [1989] IsrSC 43(2) 529; IsrSJ 9 1.

[9]     HCJ 292/83 Temple Mount Faithful v. Jerusalem District Police Commissioner [1984] IsrSC 38(2) 449.

[10]   HCJ 650/88 Israel Movement for Progressive Judaism v. Minister of Religious Affairs [1988] IsrSC 42(3) 377.

[11]   HCJ 257/89 Hoffman v. Western Wall Superintendent [1994] IsrSC 48(2) 265.

[12]   HCJ 1514/01 Gur Aryeh v. Second Television and Radio Authority [2001] IsrSC 55(4) 267.

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

[14]   HCJ 2725/93 Salomon v. Jerusalem District Commissioner of Police [1995] IsrSC 49(5) 366.

[15]   HCJ 4044/93 Salomon v. Jerusalem District Commissioner of Police [1995] IsrSC 49(5) 617.

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

[17]   HCJ 672/87 Atamalla v. Northern Commander [1988] IsrSC 42(4) 708.

[18]   HCJ 153/83 Levy v. Southern District Commissioner of Police [1984] IsrSC 38(2) 393; IsrSJ 7 109.

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

[20]   HCJ 2481/93 Dayan v. Wilk [1994] IsrSC 48(2) 456; [1992-4] IsrLR 324.

[21]   HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [2003] IsrSC 57(2) 349; [2002-3] IsrLR 173.

[22]   HCJ 13/86 Shahin v. IDF Commander in Judaea and Samaria [1987] IsrSC 41(1) 197.

[23]   HCJ 448/85 Dahar v. Minister of Interior [1986] IsrSC 40(2) 701.

[24]   HCJ 148/79 Saar v. Minister of Interior [1980] IsrSC 34(2) 169.

[25]   HCJ 4706/02 Salah v. Minister of Interior [2002] IsrSC 56(5) 695.

[26]   HCJ 174/62 Religious Coercion Prevention League v. Jerusalem City Council [1962] IsrSC 16 2665.

[27]   HCJ 531/77 Baruch v. Traffic Comptroller, Tel-Aviv and Central Districts [1978] IsrSC 32(2) 160.

[28]   HCJ 1005/89 Agga v. IDF Commander in Gaza Strip [1990] IsrSC 44(1) 536.

[29]   HCJ 390/79 Dawikat v. Government of Israel [1980] IsrSC 34(1) 1.

[30]   HCJFH 4466/94 Nuseibeh v. Minister of Finance [1995] IsrSC 49(4) 68.

 

For the petitioner — A. Tussia-Cohen.

For the respondent — A. Licht.

 

 

JUDGMENT

 

 

Justice D. Beinisch

Before us is a second amended petition, in which the petitioners attack the legality of the Order Concerning the Requisition of Land no. 14/03/T (Second Amendment of Borders) (Judaea and Samaria), 5733-2003, which was made by the IDF Commander in Judaea and Samaria (hereafter: ‘the second respondent’ or ‘the respondent’) on 17 August 2004. The order concerns the requisition of a strip of land in the area of Bethlehem, for the purpose of paving a bypass road for Jewish worshippers who wish to go from Jerusalem to the tomb of the Matriarch Rachel (hereafter: ‘the tomb’) and the building of a wall to protect this road. These walls are supposed to be integrated, as will be clarified below, in the route of the planned ‘separation fence’ in the Jerusalem area.

Factual background and sequence of proceedings

1.    On 9 February 2003, the respondent made the Order Concerning the Requisition of Land no. 14/03/T (Judaea and Samaria), 5763-2003 (hereafter — the original order). By means of this order, the respondent wanted to build walls that would ensure safe passage for worshippers who wished to go to Rachel’s tomb by means of the existing access routes from Jerusalem to Rachel’s tomb, which is located in the outskirts of Bethlehem, approximately 500 metres south of the municipal boundary of Jerusalem. According to the original planning, the wall was supposed to cross Hebron Road, the main road that goes through Bethlehem and which is currently the main traffic artery to the tomb, so that half of the road would be used only for traffic to the tomb, whereas the other half, on the other side of the wall, would be used by the local residents. In addition, a wall was planned on the other side of that road, as well as a wall along the El-Aida refugee camp, which is situated close to the tomb and has a commanding position over the access road to it (for the route of the original order, see the aerial photograph attached in appendix A). This order requisitioned large areas of land in the area of Bethlehem and Beit Jalla, and the walls that were planned in the order were likely to create a situation of enclosing a whole neighbourhood between them.

The making of the aforesaid order led to the filing of a petition by Bethlehem Municipality (the first petitioner), Bet Jalla Municipality (the second petitioner), the Jerusalem District Electric Company (the third petitioner, the Moslem Waqf (the twenty-third petitioner) and private residents (petitioners 4-22) who claimed that they were likely to be harmed by the realization of the aforesaid order (hereafter, jointly: ‘the petitioners’). In the original petition, which was directed against the aforesaid order, the petitioners claimed that the order should be set aside because, according to them, they were not given a right to present their case before it was published, and because according to them the order departed from the margin of reasonableness and proportionality. Their main argument was that in choosing the aforesaid original solution, the respondent did not give proper weight to the harm that would be caused to the local population and that other alternatives that affect the lives of the local population to a lesser degree were not considered. Within the framework of their petition, the petitioners also proposed several options to the original solution that was chosen. Inter alia they proposed that a tunnel should be made to the tomb, or a bypass road should be made for the worshippers, by building a double wall that would pass between the rows of olive orchards on the west side of most of the houses of the petitioners.

2.    In response to the original petition, counsel for the respondents gave notice that the second respondent decided to grant the petitioners a possibility of objecting to the order and that it was agreed with counsel for the petitioners that the petition, with its arguments and appendices, with constitute the objection, which would be submitted to the respondent for a decision. Pursuant to this agreement, the petitioners’ objection was indeed brought before the respondent, who decided to accept the objection and change the original order. Instead of the solution that was planned within the framework of the original order, which was based, as aforesaid, on making the existing access routes to the tomb secure, the respondent now chose a solution of preparing an alternative route, which would be used only as an access route to Rachel’s tomb, and making this road secure by means of walls. For the purpose of the aforesaid change, on 5 August 2003 the respondent issued the Order Concerning the Requisition of Land no. 14/03/T (Amendment of Borders) (Judaea and Samaria), 5763-2003 (hereafter: ‘the second order’). According to the route that was planned in the second order, the new road was supposed to start from roadblock 300 in the north, at the entrance to Bethlehem from the direction of Jerusalem, and to circumvent the houses near Hebron Road where most of the petitioners reside, to the west of those houses. Near the tomb, the planned road was supposed to split and connect up to Rachel’s tomb in two ways: one road would go east and join Hebron Road and from there continue south until it reached Rachel’s tomb by means of the existing access road, whereas the other would continue south and afterwards turn east to Rachel’s tomb. These two access routes to the tomb were supposed to create a ring road that would allow access to and from the area of the tomb. According to the plan, two walls would be built next to the new road, one to prevent shooting from the direction of Bethlehem and the other north of the El-Aida refugee camp and the area adjoining the refugee camp (for the route of the second order, see the aerial photograph which is attached in appendix A).

On 14 August 2003, the petitioners were notified that their objection had been accepted and that there was an intention to change the route, and on 19 August 2003, a tour was conducted in the area of the requisition, in which the petitioners and their counsel participated, in order to show them the route that had been chosen in the second order. On 28 August 2003, the petitioners submitted an objection to this route. Following this objection, a meeting took place between the respondent’s representatives and the petitioners’ representatives, but this meeting did not produce any results. Consequently, the respondent considered the petitioners’ objection on its merits and rejected it. After the objection was rejected, the petitioners filed an amended petition (‘the first amended petition’), which was directed against the aforesaid second order.

3.    The petitioners’ main argument in the first amended petition was that the respondent’s decision in making the aforesaid second order also suffered from extreme unreasonablenesss. According to them, this decision did not reflect a proper balance between the rights of the worshippers and the property rights of the local population and their right to freedom of movement within Bethlehem, which they claimed were seriously violated by that order. The petitioners also claimed that it was possible to realize the purpose of the order by means of other measures that would violate the rights of the petitioners to a lesser degree than the method chosen in the second order. It should be noted that the petitioners did not dispute that the second order resulted in a significant reduction in the number of residents whose freedom of movement was harmed as a result of making the access routes to the tomb secure, as compared with the solution proposed in the original order. The route of the new road that was planned in the second order, which circumvents to the west the houses adjoining Hebron Street in which most of the petitioners reside, led, in the respondents’ estimation, to a reduction of approximately 70% in the number of residents whose houses would be surrounded by a wall as compared with the route planned in the original order. Notwithstanding, the petitioners argued that the fact that the solution adopted in the second order was more proportionate (or perhaps we should say less disproportionate) than the solution adopted in the original order still was not capable of making this solution proportionate and reasonable.

It would appear that no one disputes that the main harm that the second order was likely to cause the residents (and especially their freedom of movement) arose from the last part of the route that was planned in the second order, according to which the planned road was supposed to split near the tomb and connect with Rachel’s tomb in two ways, as explained above. This last section was going to create an area that was surrounded entirely by walls that enclosed on all sides, even according to the respondents’ position, at least five residential houses where six families lived and where there were several shops and offices, including the offices of the Moslem Waqf (hereafter: ‘the area’). Indeed, it would appear that even counsel for the respondents was aware that it was this area that was likely to create the greatest violation of freedom of movement, since on page 16 of the respondents’ reply to the first amended petition, he said that ‘the main harm alleged is to the residents who will live from now on in an area that is surrounded by a wall, without free access to Bethlehem.’ It should be noted at this point that this section of the route, and the serious harm that it was likely to inflict on the residents who were going to be enclosed within it, is indeed the part that troubled us more than anything else in the route of the second order.

4.    On 29 October 2003, a hearing took place before us with regard to the first amended petition, at the end of which the parties reached an agreement, according to which the parties were prepared to discuss finding concrete solutions for the petitioners who would be harmed by implementing the second order, without the parties waiving their basic arguments. We therefore decided, on the basis of this consent, that the petitioners would submit to counsel for the respondents details of the concrete claims that ought, in their opinion, to be clarified, and that afterwards a meeting would take place between the parties for detailed discussions. We also decided that the parties would notify us of the results of the negotiations and that on the basis of their notice we would decide how the hearing of the petition would continue.

According to what is stated in the supplementary response of the respondents dated 5 December 2003, of all the petitioners only two petitioners (the Jerusalem District Electric Company and the Moslem Waqf) chose to submit detailed claims to the respondents. In the supplementary response, it was also stated that following the submissions of these two petitioners, a meeting did indeed take place between the parties, but in the end the parties did not succeed in reaching an agreement. In their reply to the supplementary response of the respondents, the petitioners confirmed that they did not succeed in reaching an agreement with the respondents on the questions and claims that were raised by them in the petition, and they gave notice that they therefore wished the court to decide the petition on its merits.

5.    On 2 June 2004, after negotiations between the parties failed, we held a further hearing on the first amended petition. The hearing focused mainly on the harm that the second order was likely to cause the residents of the aforesaid area, who were supposed to be surrounded as aforesaid by walls, and on ways of preventing or reducing the harm to those residents. After the hearing, an order nisi was made in the petition.

Following the making of the order nisi and in view of the court’s remarks during the hearing, the respondents asked for additional time in order to reconsider the planned route. Meanwhile, on 30 June 2004, this court gave its judgment in HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [1] with regard to the route of the ‘separation fence’ in the area north-west of Jerusalem. According to what is stated in the respondents’ reply to the second amended petition on 1 November 2004, after that judgment the respondents began a comprehensive reassessment of the route of the ‘separation fence’ in its entirety, and the respondents’ reconsideration of the route in the area of Rachel’s tomb was included in this reassessment.

6.    At the end of the aforesaid reassessment, the respondents decided once again to change the planned route in the area of Rachel’s tomb. Therefore, on 17 August 2004, the respondent issued the Order Concerning the Requisition of Land no. 14/03/T (Second Amendment of Borders) (Judaea and Samaria), 5763-2003 (hereafter: ‘the new order’). The new route is based on the route that was proposed in the second order, in the sense that it includes the preparation of a bypass road, which would be used only as an access route to Rachel’s tomb, and which starts at roadblock 300 in the north and circumvents the houses adjoining Hebron Road (where, as aforesaid, most of the petitioners live) to the west. A wall will be built next to the road for the purpose of preventing gunfire from the direction of Bethlehem on passing cars, and a similar wall will be built to the north of the El-Aida refugee camp and north of the area adjoining the refugee camp. The change made by the new order as opposed to the second order is at the end of the road, in the area where it connects with the tomb. Instead of two access routes to the tomb, the new order retains only the road that joins Hebron Road to the east and continues from there to the tomb. By cancelling the ring road which, in the second order, connected between the bypass road and the tomb, and by making do with only one access route to the tomb, the result created by the second order in which some of the residents were going to be enclosed in an area surrounded by walls without free access to Bethlehem is avoided. Therefore, as a result of this last change in the route, none of the buildings belonging to the petitioners, including the Waqf building, is any longer going to be in an area surrounded by walls, and all the petitioners have free and direct access to the city of Bethlehem without any need to pass through a roadblock (for the route of the new order, see the aerial photograph that is attached hereto in appendix B).

The new order was sent to the petitioners, together with explanations for their counsel, and none of the petitioners submitted an objection to the order. But on 27 September 2004 the petitioners notified the court that this change did not satisfy them, and that they insisted upon their complaints being heard. Therefore, on 26 October 2004 the petitioners filed a second amended petition, which is directed against the new order. This is the petition that is before us today.

The arguments of the parties

7.    In their second amended petition, the petitioners as aforesaid attack the validity of the new order, namely the Order Concerning the Requisition of Land no. 14/03/T (Second Amendment of Borders) (Judaea and Samaria), 5763-2003. In this petition, the petitioners claim that the making of the new order and the replacement of the previous orders with the new order is still incapable of solving the problems that the petitioners outlined in the original petition and in the first amended petition. The main argument of the petitioners is that the respondent’s decision in making the new order suffers from extreme unreasonableness. According to them, this decision does not reflect a proper balance between the rights of the worshippers and the rights of the local population, and especially their right to freedom of movement. The petitioners do not dispute that the new order does not create a situation where residents are surrounded by walls, and that the new order does indeed reduce the harm to the residents as compared with the previous orders, but they claim that this order still results in unreasonable harm and inconvenience to the residents as a result of the restriction of their freedom of movement, and the disruption of their everyday lives. The petitioners also argue once again that it would be possible to achieve the purpose of the order by means of alternatives that would harm the petitioners less than the option chosen in the new order. Thus, for example, they claim that it would be possible to ensure the security of the worshippers by means of the existing security arrangements, or by digging a tunnel to the tomb. In addition, the petitioners argue that the respondent was motivated by irrelevant considerations in making the order, and they claim that the purpose of the order is not to ensure the security of the worshippers against terror attacks but to ‘annex’ Rachel’s tomb to Jerusalem. The petitioners also argue that the order should be set aside because they claim that they were not given a real right of hearing before the decision was made to issue the new order.

Against this the respondents argue that the solution chosen in the new order reflects a proper balance between the conflicting interests, and that the decision is reasonable and proportionate. Counsel for the respondents argues that the new order adopts a route that is intended to provide a response to the remarks of the court in the hearing on the first amended petition dated 2 June 2004 and also to the test laid down by this court in Beit Sourik Village Council v. Government of Israel [1]. The premise for the reconsideration, according to counsel for the respondents, was a desire to choose a more proportionate solution, which would minimize, in so far as possible, the harm to the local population, without abandoning the need to protect access to the tomb. Therefore, according to him, a route was chosen that provided a security solution that was not ideal, in order to prevent local residents being left on the other side of the separation fence. Counsel for the respondents argues that the route that was ultimately chosen does indeed provide a solution to the petitioners’ problem and to all of the specific claims that they raised in their original petition and in their amended petition. Counsel for the respondents argues that the solution that was ultimately chosen, with certain changes, is based on one of the petitioners’ own proposals in their original petition — paving a bypass road for the worshippers. Counsel for the respondents further argues that building the wall and paving the bypass road is clearly intended for a security purpose — the protection of the lives of Israelis going to Rachel’s tomb. Counsel for the respondents discusses in his response the need to make access to Rachel’s tomb secure for worshippers, and he reviews the terror attacks and operations, which include sniper fire, placing explosive charges, throwing Molotov cocktails and disturbances of public order that have been directed at the tomb since the combat activities and terror attacks began in September 2000. These events have led to the military commander being compelled to adopt measures to protect the site and ensure the safety of the worshippers on their way to and from the tomb, as well as when they are at the site. Therefore, counsel for the respondents in his response discusses how the decision is based on security reasons only and that there is no basis for the petitioners’ claims that irrelevant considerations and an intention to annex the area of the tomb to Jerusalem underlie the decision to pave the road and build the walls to protect it. Counsel for the respondents also emphasizes that we are speaking of temporary measures, and he argues that there is no intention at all to decide thereby the permanent status of the tomb and the means of access thereto.

Thus we see that the starting point for our deliberations is that the petitioners do not deny the rights of the worshippers to have access to Rachel’s tomb, but according to them this access should be ensured without harming their freedom of movement in Bethlehem and their property rights. The respondents, for their part, recognize their duty to minimize the damage caused to the petitioners’ freedom of movement and property rights as a result of the operations undertaken to ensure the worshippers’ freedom of access. The main dispute is therefore whether the respondent properly balanced the rights of the worshippers against the rights of the local population.

It should also be noted that the scope of the requisition under the new order (and the route of the bypass road and the walls planned within the framework of this order) was planned so that it would be integrated with the planned route of the ‘separation fence’ in the area of Jerusalem. Notwithstanding, as the petitioners state expressly in their petition, the present petition does not concern the ‘separation fence,’ but merely the question of the legality of the specific requisition order that is the subject of this petition:

‘It should be noted that this petition is not directed at the “separation fence” that is being built at this time in the territories (and the petitioners in this petition do not wish to address the question of the fence itself at this stage) but merely at the question of the safe passage to Rachel’s tomb, exactly as the respondents themselves define the order, which was intended for the purpose of building a wall to protect the worshippers going to Rachel’s tomb’ (s. 25 of the second amended petition; emphases in the original).

Indeed, the two parties agreed that the declared purpose of the requisition order in this case is not to prevent the infiltration of terrorists from the territories into Jerusalem, but to create a safe access road for the worshippers who wish to go from Jerusalem to Rachel’s tomb. The legal questions that arise in the present case are different from the questions raised by the ‘separation fence’ in general, and even the considerations that are under discussion are not the same (cf. Beit Sourik Village Council v. Government of Israel [1]). Therefore, our judgment will be restricted to the question brought before us by the petitioners — the question of the legality of the new order that is the subject of the second amended petition.

Deliberation

8.    In the petition before us, the petitioners do not raise any argument against the authority of the respondent to make the order for the requisition of land under discussion. Indeed, the general power of the military commander to requisition land on the basis of the provisions of the Regulations Concerning the Laws and Customs of War on Land, which are appended to the Fourth Hague Convention of 1907 (hereafter: ‘the Hague Convention’) and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949 (hereafter: ‘the Fourth Geneva Convention’), when the conditions under international and Israeli law are satisfied, has been recognized by this court in a series of judgments (see, for example, Beit Sourik Village Council v. Government of Israel [1], at para. 32; HCJ 940/04 Abu Tir v. IDF Commander in Judaea and Samaria [2], at para. 10; HCJ 10356/02 Hass v. IDF Commander in West Bank [3], at paras. 8-9; HCJ 401/88 Abu Rian v. IDF Commander in Judaea and Samaria [4], at p. 770; HCJ 24/91 Timraz v. IDF Commander in Gaza Strip [5], at pp. 333-335; HCJ 2717/96 Wafa v. Minister of Defence [6], at p. 856). The petitioners in the petition before us argue against the discretion of the respondent in making the order and they raise arguments that make allegations of unreasonableness and disproportionality. Indeed, even when he acts with authority, the military commander is liable to exercise his authority (inter alia) in accordance with the principles of reasonableness and proportionality, and his discretion will be subject to the scrutiny of this court (see, for example, Beit Sourik Village Council v. Government of Israel [1], at para. 24; Hass v. IDF Commander in West Bank [3], at para. 10; HCJ 7015/02 Ajuri v. IDF Commander in West Bank [7], at pp. 375-377 {___-___}). Our deliberations will focus, therefore, on the exercising of judicial scrutiny with regard to the military commander’s considerations, in accordance with the criteria outlined by the court in its case law rulings.

The arguments concerning irrelevant considerations

9.    As stated, one of the petitioners’ arguments is that the respondent’s decision in making the order was based on an irrelevant consideration. According to them, the consideration that underlies the order was not ensuring the security of the worshippers against terror attacks but the ‘annexation’ of Rachel’s tomb to Jerusalem. Indeed, it is a rule that the administrative authority should act in every case on the basis of relevant considerations only and for the purpose for which the authority was given to it. But in our case we have not been persuaded that a satisfactory factual basis has been established to attribute irrelevant considerations to the respondent in making the order. In his reply, counsel for the respondents discusses how the order was based on security reasons only — the protection of the safety and lives of those coming to pray at Rachel’s tomb, and that there is no intention to use the order to determine the permanent status of Rachel’s tomb and the means of access thereto. In support of this argument, counsel for the respondents gives details of the threats that exist at this time to the worshippers on the existing access road to the tomb, and he explains why, in the respondent’s opinion, the measures chosen to reduce the danger currently threatening the worshippers are necessary. In his response to the second amended petition, counsel for the respondent argues that since the ‘Western Wall tunnel’ riots and even more since the events of September 2000, we can see a continuing Palestinian effort to harm the Jewish religious sites that remain in the territories, including Rachel’s tomb, the Jewish worshippers who go to those sites and the IDF forces protecting them. Counsel for the respondents also gives details of the terror attacks that were directed against Rachel’s tomb since October 2000, which include sniper fire, placing explosive charges, throwing explosive devices, throwing Molotov cocktails and disturbances of the peace. Counsel for the respondent also gave details of the security measures adopted until now, including the guarding and fortification of Rachel’s tomb. The respondents’ claim is that after protecting the tomb, the security risk lies in the access road to the tomb, which almost entirely passes through hostile territory. Counsel for the respondents further argues that Bethlehem has recently become a terror centre, so that the risk of terror attacks directed at those going to the tomb has increased, and in his supplementary notice dated 8 November 2004, he gives additional details that were only recently cleared for publication. In this notice, counsel for the respondents states that in the weeks preceding the filing of the notice, the General Security Service and the Israel Defence Forces discovered several terror cells in the city of Bethlehem; these included Palestinian policemen who served in Bethlehem. He also says that in the course of investigating the matter, it was discovered that there is a cell that carried out attacks in Bethlehem and the area of Rachel’s tomb, and that this cell also planned to carry out an attack against a bullet-proof bus that takes the worshippers to the tomb. According to the plan that was revealed, the cell was supposed to attack the bus by means of a car bomb and afterwards to attack the rescue services who came to aid the injured. The respondents therefore argue that there is a real need to adopt measures to protect the security and lives of the worshippers on the way to Rachel’s tomb, and this is the purpose that underlies the order. The supplementary notice was accompanied by a summary prepared by the General Security Service, which describes the information that was obtained as a result of discovering the terror cells. The arguments of counsel for the respondents in his reply to the amended petition and the second amended petition are supported, respectively, by the affidavit of the second respondent, General Moshe Kaplinsky, who is military commander for the Central District, and the affidavit of Colonel (res.) Dan Tarza, who is the coordinator for planning the route of the ‘separation fence.’ So we see that the respondents have provided a detailed factual basis from which it can be seen that in the situation prevailing today in Bethlehem, there is a real security risk to the lives of the worshippers who wish to go to Rachel’s tomb. By contrast, the petitioners did not prove any facts that could refute the arguments concerning security concerns that were the basis for the decision of the second respondent. Therefore, since the respondent’s presumption of administrative propriety has not be rebutted, this argument of the petitioners should be rejected.

Right to present a case

10. An additional argument that the petitioners made is that they were not given a real right to present a case before the decision was made to issue the new order. No one disputes that the petitioners have a right to present their arguments with regard to the area affected by the order (see, for example, Hass v. IDF Commander in West Bank [3], at para. 6; HCJ 358/88 Association for Civil Rights in Israel v. Central Commander [8], at p. 540); but, according to the respondents, this right was given to the petitioners and was realized de facto. Counsel for the respondents claims that the objections of the petitioners to the original order and to the second order were considered carefully and that in formulating the new arrangement the respondents were attentive to the arguments and problems of the petitioners and open to changing their original position. And indeed, a proof of this is the fact that as a result of the petitioners’ petitions and objections, the respondent changed his original position and made a significant change in the planning, by adopting an alternative that is based, with certain changes, on one of the alternatives proposed by the petitioners themselves. Moreover, no one doubts that the respondents took care to notify the petitioners that their objection to the original order was accepted and of the intention to change the planning, and they even invited the petitioners and their counsel to tour the area of the requisition in order to show them the second route that was adopted. Moreover, no one disputes that the petitioners were given an opportunity to object to the second order and that the petitioners did indeed do this. As a result of this objection, an additional meetings took place between the respondent’s representatives and the petitioners’ representatives with the aim of finding solutions that would be acceptable to the two parties. When this attempt failed, the respondent examined the objection and rejected it in a reasoned and detailed response. Likewise, no one disputes that the petitioners were given an opportunity to object to the new order, which was also sent to the petitioners together with explanations to their attorneys, but none of the petitioners filed an objection to this order. Indeed, the history of the order which is the subject of the petition and the changes that were made to it, to a large extent also as a result of the petitioners’ claims with regard to the harm caused to them, shows that the respondents gave every opportunity to persons who might potentially be hurt by the route of the planned road and fence to raise their arguments before making a decision on the final route. In these circumstances, we see no real merit in the claim that the petitioners’ were not given the right to present their arguments in this case, even though attention was paid to that right to be heard only after the original petition was filed.

Now that we have rejected the petitioners’ arguments with regard to irrelevant reasons and the right to present their case, let us turn to examine the petitioners’ main claim in this case, namely the claim that the respondent’s decision does not give sufficient weight to the harm caused to the basic rights of the petitioners, and it therefore suffers from unreasonableness and disproportionality.

Reasonableness of the respondent’s decision

11. As can be seen from the respondent’s affidavit, the order with regard to the requisition of the land was made in order to increase the security of the worshippers on their way to Rachel’s tomb. The purpose underlying the order, therefore, is to allow the realization of the worshippers’ freedom to worship at Rachel’s tomb. The problem is that the means chosen for realizing this purpose inherently involve a violation of the petitioners’ property rights and freedom of movement. The question before us is therefore whether the new order properly balances the worshippers’ freedom of worship against the petitioners property rights and freedom of movement. Let us first consider the worshippers’ freedom of worship at Rachel’s tomb and afterwards the proper balance between it and the rights of the petitioners.

Freedom of worship

12. The freedom of religion and worship is recognized in our law as one of the basic human rights. This freedom was already mentioned in article 83 of the Palestine Order in Council, 1922, and in the Declaration of Independence. Freedom of religion and worship has been recognized in the case law of this court for a long time (see, for example, HCJ 292/83 Temple Mount Faithful v. Jerusalem District Police Commissioner [9], at p. 454; [10]        HCJ 650/88 Israel Movement for Progressive Judaism v. Minister of Religious Affairs [10], at p. 381; HCJ 257/89 Hoffman v. Western Wall Superintendent [11], at pp. 340-341; HCJ 1514/01 Gur Aryeh v. Second Television and Radio Authority [12], at p. 277). Freedom of worship was recognized as an expression of freedom of religion, and as a branch of freedom of expression (HCJ 7128/96 Temple Mount Faithful v. Government of Israel [13], at pp. 523-524; Hass v. IDF Commander in West Bank [3], at para. 19), and there are some who also regard it as an aspect of human dignity (President Barak in HCJ 3261/93 Manning v. Minister of Justice [14], at p. 286, and in CA 6024/97 Shavit v. Rishon LeZion Jewish Burial Society [16], at p. 649 {___}). Within the scope of freedom of religion and freedom of worship the court has also recognized the yearning of persons of religious belief to pray at sites that are holy to them (Hass v. IDF Commander in West Bank [3], at para. 16). To this we can also add the recognition of the freedom of access for members of the various religions to the places that are sacred to them as a right that is worthy of protection, which is also enshrined in Israeli law in the Protection of Holy Places Law, 5727-1967 (ss. 1 and 2(b) of the law).

The status of the freedom of worship was discussed not long ago by this court in Hass v. IDF Commander in West Bank [3], per Justice Procaccia:

‘The freedom of religion is a constitutional basic right of the individual, with a preferred status even in relation to other constitutional human rights. The freedom of worship constitutes an expression of freedom of religion, and it is an offshoot of freedom of expression… The constitutional protection given to freedom of worship is therefore similar, in principle, to the protection given to freedom of speech, and the constitutional balancing formula that befits the one is also applicable to the other… We are concerned with a constitutional right of great strength whose weight is great when it is balanced against conflicting social values’ (ibid. [3], at para. 19).

Moreover:

‘The freedom of religion and worship… is regarded as a constitutional right of supreme status that should be realized in so far as possible in view of the conditions prevailing in the territories, while protecting the safety and lives of the worshippers’ (ibid. [3], at para. 15).

In that case, the court considered a very similar issue to the one in our case — the legality of a requisition and demolition order that was made by the IDF commander in Judaea and Samaria for the purpose of increasing the security of the persons using the ‘Worshippers’ Route’ in Hebron (a route that is used by the Jewish residents of Kiryat Arba who wish to realize their right to pray at the Machpela Cave). With regard to the rights of the worshippers in that case. Justice Procaccia said (ibid. [3], at para. 19):

‘The worshippers who wish to go to the Machpela Cave by foot on Sabbaths and festivals wish to realize a constitutional right of freedom of worship in a holy place. This right is of special importance and weight on the scale of constitutional rights’ (emphasis supplied).

13. No one disputes that Rachel’s tomb is a holy site for Jews and that this site has been regarded by Jews as a holy site and a place of worship for many generations. Indeed, there is much evidence regarding the sanctity of the site to Jews and pilgrimages that were made to it already from very early times. In his book, Wars of the Holy Places — the Struggle for Jerusalem and the Holy Places in Israel, Judaea, Samaria and the Gaza Strip (Jerusalem Institute for Israel Studies, 2000), to which we were referred in the state’s reply, Dr S. Berkovitz states that the site recognized today as ‘Rachel’s tomb, in the outskirts of Bethlehem, has been identified as Rachel’s tomb for more than a thousand years. He also adds that Rachel, a holy figure in Judaism, represents motherhood, mercy, redemption and the return to the land of Israel, in both the Bible and in Jewish tradition, and that her tomb is regarded as the third most holy site to Jews, after the Temple Mount and the Machpela Cave (ibid., at p. 301). In the aforesaid book, Dr Berkovitz discusses how, notwithstanding its holiness to Islam as well, writers and pilgrims since the Middle Ages, both Jewish and Moslem, have regarded Rachel’s tomb as a holy place for Jews. He also says that the right of Jews to have possession of the site and to pray in it was recognized officially already in an edict of the Turkish Sultan in the middle of the nineteenth century, following the thorough renovation made at the site in 1841 under the direction of Moses Montefiore and with his funding (ibid., at p. 301, and also at pp. 17-19). During the period of the British Mandate, the status quo was preserved at the site, and Jews were allowed to go to the tomb and pray there (ibid., at pp. 26-29). After the War of Independence, when the tomb was under the control of the Kingdom of Jordan, the site was admittedly well preserved, but in practice it was not possible to realize the right of Jews to have access to the tomb (ibid., at p. 302). After the Six Day War, control of the tomb returned to Israel and a new status was given to the centrality of the tomb as a site of religious worship. The site was renovated and became both a site of worship and a tourist site. When the boundaries of Jerusalem were extended after the Six Day War, Rachel’s tomb was not annexed to Jerusalem, and its status within the municipal boundaries of Bethlehem was maintained. Notwithstanding, the right of access to it was realized, and the tomb became a centre of attraction for many worshippers and tourists (ibid., at p. 302).

Counsel for the respondents wishes to add to this that even in the interim agreements between Israel and the Palestinian Liberation Organization and the Palestinian Authority, within which framework the control of Bethlehem, inter alia, was transferred to the Palestinian Authority, the right of Jews to realize their right to freedom of worship at the sites holy to them was maintained, and according to these agreements, Israel retained the security control of the tomb and the access routes to it (see also Berkovitz, Wars of the Holy Places — the Struggle for Jerusalem and the Holy Places in Israel, Judaea, Samaria and the Gaza Strip, supra, at pp. 215-220, 287, 302-303). The petitioners, for their part, do not dispute the right of Jewish worshippers to freedom of worship at Rachel’s tomb nor do they even dispute the fact that the worshippers have the right to realize the right of freedom of worship with relative safety. The premise for our deliberations, therefore — without expressing any position as to the political status of Rachel’s tomb or the right to have possession of the tomb — is that Jewish worshippers have a basic right to freedom of worship at Rachel’s tomb.

14. The freedom of worship is not an absolute right. It is a relative right that may, in certain circumstances, yield to other public interests or basic rights. The remarks of Justice Barak in Temple Mount Faithful v. Jerusalem District Police Commissioner [9], at p. 455, are illuminating in this regard:

‘Freedom of conscience, belief, religion and worship, in so far as the theory of belief is put into the practice of action, is not an absolute right… my right to pray does not allow me to trespass into my neighbour’s property or to cause him a nuisance. The freedom of conscience, belief, religion and worship is a relative freedom. It should be balanced against rights and interests that are also worthy of protection, such as private and public property and the freedom of movement. One of the interests that should be taken into account is the interest of public order and public safety.’

Indeed, in certain situations, the military commander may restrict or even prevent the realization of freedom of worship at a certain place in order to protect public order and public safety and in order to protect the lives and safety of the worshippers themselves (see Hass v. IDF Commander in West Bank [3], at para. 19; see also HCJ 2725/93 Salomon v. Jerusalem District Commissioner of Police [14]; HCJ 4044/93 Salomon v. Jerusalem District Commissioner of Police [15]). But before he restricts the worshippers’ freedom of worship, the military commander should examine whether he is able to adopt reasonable measures that will allow the realization of the freedom of worship while ensuring the safety of the worshippers. This was discussed by Justice Barak in Temple Mount Faithful v. Jerusalem District Police Commissioner [9], at p. 455:

‘… Freedom of conscience, belief, religion and worship is limited and restricted in so far as is necessary and essential in order to protect public safety and public order. Naturally, before any action is carried out that may violate and restrict this freedom because of harm to public safety, the police ought to take all the reasonable steps available to them in order to prevent the violation of public safety, without violating the right to conscience, belief, religion and worship. Therefore, if the concern is one that there will be violence from a group that is hostile to the worshippers, the police should act against this violence, and not against the worshippers. But if reasonable action by the police is not capable, in view of its limitations, of removing the de facto harm to public safety, there is no alternative to a restriction on the freedom of conscience and religion, as required in order to protect public safety.’

(See also Hass v. IDF Commander in West Bank [3], at para. 19).

In the case before us, the worshippers have not been denied the right of worship by the authorities, but it has been violated as a result of the danger presented to the worshippers by terror activities that may be directed at them. Therefore the respondent decided to search for measures that would reduce the danger to the safety and security of the worshippers while preserving their right of worship. The respondent’s decision is to give significant weight to the basic right to freedom of worship, while making a proper balance between the freedom of worship and the public interest of protecting public safety. But in our case, the right of the worshippers to freedom of worship is opposed not only by the interest of public safety but also by the rights of the petitioners to property and freedom of movement, which may be harmed as a result of measures adopted to protect the safety of the worshippers and which are de facto harmed by the measures chosen by the respondent (see Hass v. IDF Commander in West Bank [3], at para. 18). It should be emphasized that the respondents do not dispute the fact that the petitioners have these basic rights and that the respondent is obliged to take them into account in his decision, whereas the petitioners, for their part, do not question the basic right of the worshippers to freedom of worship at Rachel’s tomb. The dispute between the parties therefore concerns the question whether the new order provides a proper balance between the worshippers’ freedom of worship and the petitioners’ freedom of movement and property rights. Let us first discuss the proper balance between the worshippers’ freedom of worship and the petitioners’ freedom of movement, and then the proper balance between the worshippers’ freedom of worship and the petitioners’ property rights.

Freedom of worship versus freedom of movement

15. As stated, the main claim of the petitioners is that realization of the worshippers’ freedom of worship in accordance with the order seriously violates the freedom of the petitioners to move within Bethlehem, and for this reason the order should be set aside. Freedom of movement is one of the basic human rights and it has been recognized in our law both as an independent basic right (see, for example, HCJ 672/87 Atamalla v. Northern Commander [17], at pp. 709, 712; HCJ 153/83 Levy v. Southern District Commissioner of Police [18], at pp. 401-402 {117-118}) and as a right that is derived from the right to liberty (per President Barak and Justice Cheshin in HCJ 5016/96 Horev v. Minister of Transport [19], at pp. 59 {213} and 147 {___} respectively). In addition, there are some authorities who believe that this freedom is also derived from human dignity (see the remarks of President Barak in Horev v. Minister of Transport [19], at p. 59 {213}; Shavit v. Rishon LeZion Jewish Burial Society [16], at p. 651 {___}; and HCJ 2481/93 Dayan v. Wilk [20], at p. 472 {341-342}; cf. the position of Justice Tal in Horev v. Minister of Transport [19], at p. 181 {___}.

The status of the freedom of movement in our legal system was discussed by this court in Horev v. Minister of Transport [19], where it considered inter alia the relationship between the freedom of movement and an injury to religious sensibilities and a religious lifestyle. In that case, President Barak said that freedom of movement is ‘one of the more basic rights’ (ibid. [19], at p. 49 {___}), that the right to freedom of movement ‘is in the first rank of human rights’ (ibid. [19], at p. 51 {___}) and that freedom of movement is ‘a freedom that is on the very highest level of the scale of rights in Israel’ (ibid. [19], at p. 53 {___}). The president also added in Horev v. Minister of Transport [19] that ‘as a rule, we place the freedom of movement within the boundaries of the state on a similar constitutional level to that of the freedom of expression’ (ibid. [19], at p. 49 {203}). It should be noted that similar remarks with regard to the status of the freedom of movement were also made by the justices who did not agree with President Barak’s majority opinion in Horev v. Minister of Transport [19] (see, for example, the remarks of Justice Cheshin (ibid. [19], at p. 147 {___}) and the remarks of Justice Tal (ibid. [19], at p. 181 {___}). On the status of freedom of movement in Israeli law following Horev v. Minister of Transport [19], see also Y. Zilbershatz, ‘On Freedom of Movement within the State: Following HCJ 5016/96 Horev v. Minister of Transport,’ 4 Mishpat uMimshal (1998) 793, at pp. 806-809.

The freedom of movement is recognized as a basic right also in international law. The freedom of movement within the state is enshrined in a whole host of international conventions and declarations concerning human rights (see, for example, art. 12 of the International Covenant on Civil and Political Rights, 1966, art. 13 of the Universal Declaration of Human Rights, 1948, and art. 2 of the Second Protocol of the European Convention on Human Rights, 1950) and it would appear that it is also enshrined in customary international law (see Zilbershatz, ‘On Freedom of Movement within the State: Following HCJ 5016/96 Horev v. Minister of Transport,’ supra, at pp. 800-801).

Notwithstanding, like the freedom of worship and like almost all freedoms, the freedom of movement is not absolute. It is relative, and it should be balanced against other interests and rights. This is the case in our constitutional law (see, for example, Horev v. Minister of Transport [19], at pp. 39, 181 {___, ___}; it is also the case in international law concerning human rights. Thus, for example, art. 12 of the International Covenant on Civil and Political Rights provides:

‘1.          Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement…

…

3.            The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

…’

(See also art. 4 of the same Covenant with regard to the possibility of restricting the rights listed therein in situations of national emergency). It should be noted that, in view of the positions of the parties in their arguments before us, we are not called upon to decide the question whether and to what extent the principles of Israeli constitutional law and the international human rights conventions apply in Judaea and Samaria (cf. HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [21], at p. 364 {___}; HCJ 13/86 Shahin v. IDF Commander in Judaea and Samaria [22], at pp. 210-213). It is sufficient for us to say that within the framework of the duty of the military commander to exercise his discretion reasonably, he must also take into account, among his considerations, the interests and rights of the local population, including the need to minimize the degree of harm to their freedom of movement, and, as aforesaid, the respondents do not deny this. How, then, should the military commander balance the basic right of freedom of movement against the basic right of freedom of worship?

16. The proper balancing formula between these two rights should be determined in accordance with the relative weight of each of these rights, since ‘the balancing formulae vary in accordance with the conflicting values’ (Dayan v. Wilk [20], at p. 475 {345}) and as Vice-President Ben-Porat said in HCJ 448/85 Dahar v. Minister of Interior [23], at p. 708:

‘The proper criterion is not fixed and uniform for all types of case… but a suitable test should be adopted, taking into account the nature and importance of the competing principles in our outlook concerning the relative importance and degree of protection that we wish to give to each principle or interest’ (emphases in the original).

In the case before us, we are presented with a conflict between two basic rights of equal weight. As we have seen above (in paras. 12 and 15), both the freedom of worship and the freedom of movement have been recognized in our case law as being on the highest level of the scale of rights (with regard to the freedom of worship, see Hass v. IDF Commander in West Bank [3], at paras. 15, 19; and with regard to the freedom of movement, see Horev v. Minister of Transport [19], at pp. 49-53 {202-207}). Moreover, both the freedom of worship and the freedom of movement have been recognized in the case law of this court as having the same weight as freedom of expression (see Hass v. IDF Commander in West Bank [3], at para. 19, and Gur Aryeh v. Second Television and Radio Authority [12], at p. 285, with regard to freedom of worship; and see Horev v. Minister of Transport [19], at p. 49 {202-203}, Dahar v. Minister of Interior [23], at pp. 706, 708, and Levy v. Southern District Commissioner of Police [18], at pp. 401-402 {117-118} with regard to freedom of movement). In addition, with regard to both of them an identical balancing formula has been applied in order to balance them against the same public interests (with regard to the freedom of worship, see, for example, HCJ 292/83 Temple Mount Faithful v. Jerusalem District Police Commissioner [9], at p. 456; HCJ 7128/96 Temple Mount Faithful v. Government of Israel [13], at pp. 523-534; and with regard to freedom of movement, see, for example, the remarks of President Barak in Horev v. Minister of Transport [19], at p. 54 {___}: ‘In view of the close relationship between the freedom of movement inside the state and the freedom of expression and worship, it seems to me that the same requirement of likelihood [that applies with regard to a violation of the freedom of expression and the freedom of worship] should apply to a violation of the freedom of movement in the state’ (square parentheses supplied)).

The result implied by the conclusion that we are concerned with a conflict between two rights of equal weight is that the balance required in this case is a horizontal balance, which will allow the coexistence of both of these rights. The remarks made in Dayan v. Wilk [20], at p. 480 {353} (with regard to the balance between the right to hold a meeting and procession as opposed to the right to privacy in a person’s home) are pertinent:

‘We are concerned with two human rights of equal standing, and the balance between them must therefore find expression in a reciprocal waiver whereby each right must make a concession to the other in order to allow the coexistence of both… The balance required between the rights is a horizontal balance.’

Indeed, ‘in the organized life of society, there is no “all or nothing.” There is “give and take,” and a balance between the different interests’ (Justice Barak in HCJ 148/79 Saar v. Minister of Interior [24], at p. 178). Therefore, the freedom of worship should not be realized at the price of a total denial of freedom of movement, and the freedom of worship should not be denied absolutely in order to satisfy the freedom of movement, but a reciprocal restriction is required on the scope of the protection given to each of these liberties, so that the ‘essence’ of each of the competing values is preserved (Dayan v. Wilk [20], at p. 481 {354}). We must therefore find the balance that will allow the freedom of worship to be allowed in essence, without violating the essence of the freedom of movement (Levy v. Southern District Commissioner of Police [18], at p. 402 {118}). Within the framework of this balance, we should seek to preserve the ‘essence’ of each of these liberties, and the violation should only affect their ‘exterior.’ We should also take into account the extent and nature of the violation (Shavit v. Rishon LeZion Jewish Burial Society [16], at p. 651 {___}).

Against this background, let us examine the nature and intensity of the violation of the petitioners’ freedom of movement in this case, in order to examine whether the new order does indeed result in the realization of the essence of the freedom of worship without harming the essence of the freedom of movement, as required by the horizontal balance between these two liberties of equal weight.

17. How, then, should we examine the extent of the violation of the freedom of movement of the petitioners, who argue with regard to their right to move within the city of Bethlehem, when their place of residence or work is in the area close to Rachel’s tomb? From the case law of this court we can derive several subtests or criteria for examining the intensity of the violation of the individual’s freedom of movement, of which the main ones are the geographic scope of the restriction on movement, the degree of intensity of the restriction on movement, the period of time during which the restriction remains in force, and the interests that the freedom of movement seeks to realize.

With regard to the criterion concerning the geographic scope of the restriction of movement, Justice Türkel said in HCJ 4706/02 Salah v. Minister of Interior [25], at p. 704:

‘It need not be said that the most serious violation of the freedom of movement and the right to liberty is the imprisonment of a person in a jail, by virtue of an arrest warrant or a prison sentence, and the restriction of his movements behind the prison walls. Less serious than this is the restriction of freedom of movement to a specific place of residence, such as an alternative to arrest that makes the accused’s bail conditional upon his living at a specific address (“house arrest”). Less serious still is a restriction of movement to the limits of a certain city, and less serious still is a restriction of movement by means of a prohibition to enter the limits of a certain city. Less than this is a restriction on the freedom of movement by means of a prohibition against leaving the country… less than this is a restriction by means of a prohibition against entering a certain country, such as a prohibition against entering an enemy country…’

Similar remarks were also made by Justice Goldberg in Atamalla v. Northern Commander [17], at p. 710:

‘Restrictive orders are of different and varied kinds, and the degree of restriction caused by them are not always equal. A restrictive order that imposes “house arrest” on the person affected by the restriction… cannot be compared to a restrictive order that restricts his movements to an area within which he is allowed to move freely. And a restriction to a specific area, for someone who lives and works there, cannot be compared to such a restriction for someone who was “exiled” to the area by virtue of the order, just as someone who is prohibited from leaving Israel cannot be compared to someone whose movement is restricted within Israel.’

(See also the remarks of Justice Bach in Dahar v. Minister of Interior [23], at pp. 714-715; and see the remarks of Justice Cheshin (in a minority opinion) in Horev v. Minister of Transport [19], at p. 147 {___}).

An additional criterion, as we have said, is the degree of intensity of the restriction on movement. It is clear that the violation involved in a complete denial of the freedom of movement is more serious than a violation caused by a partial restriction on the freedom of movement, and the smaller the extent of the restriction, so the intensity of the violation will be less. Thus, for example, it was held with regard to the intensity of the violation of freedom of movement in the context of the closure of roads that the closure of a road that is the only means of access cannot be compare to the closure of a road where there are alternative access routes nearby; the closure of a main traffic artery cannot be compared to the closure of a road inside a neighbourhood; and the closure of a road that is tantamount to blocking access absolutely cannot be compared to a closure than results merely in a longer route and an inconvenience for the persons using the road; and the smaller the increase in time and convenience caused by the alternative route are, the smaller the intensity of the violation of freedom of movement (Horev v. Minister of Transport [19], per President Barak, at p. 67 {___}, per Justice Or at pp. 98-102 {___-___}, per Justice Cheshin at pp. 145-146 {___-___}, per Justice Levin at p. 162 {___}; HCJ 174/62 Religious Coercion Prevention League v. Jerusalem City Council [26], at p. 2668; HCJ 531/77 Baruch v. Traffic Comptroller, Tel-Aviv and Central Districts [27], at pp. 165, 167). Indeed, an absolute denial of movement cannot be compared to a traffic delay or inconvenience, and the smaller the degree of the inconvenience, the smaller is the intensity of the violation of the freedom of movement. Thus it was held, with regard to evaluating the intensity of the harm caused by the separation fence, that considerations such as the number and location of the exit gates and crossings planned in the fence, the distance between them and the place of residence and place of work of the local residents and the convenience and speed of passing through those gates and crossings should be taken into account (see Abu Tir v. IDF Commander in Judaea and Samaria [2], at para. 12; and cf. also Beit Sourik Village Council v. Government of Israel [1], at paras. 60, 74, 76 and especially para. 82; see also K. Michael and A. Ramon, Jerusalem Surrounded by a Fence — the Building of the Security Fence (‘The Separation Fence’) Around Jerusalem (Jerusalem Institute for Israel Studies, 2004), at pp. 79-82).

According to the criterion of the period of time during which the restriction remains in force, the longer the period of the restriction of freedom of movement, the greater the intensity of the violation (Salah v. Minister of Interior [25], at p. 705). A curfew that denies the right of a person to leave his home for several hours cannot be compared to house arrest that denies a person the right to leave his home for several weeks or even months; similarly, a restriction on the right to leave Israel for several days cannot be compared to a restriction of this right for several months or even years (Salah v. Minister of Interior [25], at p. 705); similarly, the closure of a part of a traffic artery for the duration of prayers cannot be compared to a closure for the whole of the Sabbath (Horev v. Minister of Transport [19], at p. 66 {___}).

According to the criterion of the personal interest of a person in realizing freedom of movement, the purpose of the movement or travel is considered in order to assess the intensity of the violation of freedom of movement. The restriction of the movement of someone whose travel is essential and important may increase the violation thereof. Indeed, someone whose travel is intended for the purpose of urgent medical treatment cannot be compared to someone whose travel is intended for the purpose of a pleasure trip (Salah v. Minister of Interior [25], at p. 705). A similar test was proposed by Prof. Zilbershatz in her article ‘On Freedom of Movement within the State: Following HCJ 5016/96 Horev v. Minister of Transport,’ supra, with regard to the freedom of movement:

‘The more important the purpose of the movement, the greater will be the constitutional protection that should be given to the right to freedom of movement… according to this, it is definitely possible that certain movement for a purpose that is not essential, such as for the purpose of travel only, will be recognized as a basic right that should be protected, but to a lesser degree than movement for an essential purpose, such as for the saving of life’ (ibid., at p. 815).

A similar approach was expressed in Horev v. Minister of Transport [19], where all the justices agreed that a restriction of movement on Bar-Ilan Street should be done in a way that left the road open to traffic for security and emergency vehicles (see, for example, the remarks of President Barak, ibid. [19], at p. 67 {___} and the remarks of Justice Tal at p. 183 {___}). Indeed, when examining the intensity of the violation involved in restricting movement, we should recognize that the right of movement is not merely a right in itself, but it is also a right that is required in order to realize additional rights and interests. Thus, for example, it was held in Horev v. Minister of Transport [19] that the harm to the secular public that used Bar-Ilan Road for the purpose of travelling from one part of Jerusalem to another part thereof was less than the harm to the secular public that lived in the area, inter alia because the ‘latter segment of the public has other special needs. The difficulties with which it will need to contend are different. The violation of the freedom of movement and other interests whose realization depends on the freedom of movement of this segment of the public is different’ (Justice Or, ibid. [19], at p. 104 {___}; see also the remarks of President Barak, ibid. [19], at pp. 67-68 {___-___}, and the remarks of Vice-President S. Levin, ibid. [19], at pp. 163, 167 {___, ___}, and of Justice Mazza, ibid. [19], at pp. 170-171 {___-___}). Thus, for example, it was held in Beit Sourik Village Council v. Government of Israel [1] that when the route of the ‘separation fence’ separates farmers from their land which is the source of their livelihood, this is a serious violation of their freedom of movement (ibid. [1], at paras. 60, 68-71, 80, 82). Therefore, when examining the intensity of the violation arising from the restriction of the freedom of movement, we should also take into account the purpose of the movement and the strength of the interests for the realization of which that movement is required.

Against the background of these criteria, let us examine the violation of the freedom of movement in this case.

From general principles to the specific case

18. When making the order with regard to the requisition of land, the respondent sought as aforesaid to increase the security of the worshippers on their way to Rachel’s tomb, in order to allow the realization of the worshippers’ freedom of worship. The respondent chose to realize this purpose (which no one disputes is a proper purpose) by means of a bypass road, which will be used only as a means of access to Rachel’s tomb, and the protection of this road by means of walls. The solution of paving a bypass road for the worshippers is an appropriate solution because it allows the access of the worshippers to Rachel’s tomb to be guaranteed in order that they can realize their right to freedom of worship on the site, without harming the freedom of movement of the local population on the existing roads in Bethlehem, as was likely to have happened according to the original order. Counsel for the respondents also argues that when the new arrangement that guarantees the safe access of the worshippers to the tomb is put into operation, it will be possible to remove the restrictions that currently exist on the freedom of movement of most of the residents who live between roadblock 300, which is situated south of Jerusalem, and Rachel’s tomb. Moreover, the harm caused by the new order to the freedom of movement of the residents is far smaller (both from the viewpoint of the number of residents harmed and from the viewpoint of the intensity of the harm) as compared with the solution proposed in the original order and the second order, and the petitioners do not deny this. What therefore remains of the violation of the residents’ freedom of movement?

A study of the arguments of the parties and of the maps and aerial photographs that were attached to their arguments shows that even after the change in the route within the framework of the new order, there are several residents whose freedom of movement is still harmed to a certain degree as a result of the protective measure adopted to enable the access of the worshippers to the tomb. As a result of the amendment to the route that was made in the second order (and was also retained in the new order), the movement of most of the petitioners, who live along Hebron Road, is not affected by the requisition order, since the road that will be paved will circumvent, as aforesaid, their houses to the west, in an area without buildings. Thus, according to the respondents’ estimation, the number of residents whose freedom of movement will be harmed was reduced by approximately 70% as compared with the original order. The harm that remains is to several dozen residents who live in the vicinity of Rachel’s tomb, in an area where the bypass road will connect with Hebron Road in the east, and from there continue southwards to the tomb. As a result of the amendment made in the new order, those residents who live close to the tomb will no longer be surrounded by walls, and their movement to the other parts of Bethlehem will be unrestricted, without any need to go through roadblocks. Notwithstanding, the harm is reflected in the fact that the movement of the residents who live close to the tomb will be affected in the sense that they will not be able to cross Hebron Street, but will need to go round the area of the requisition order to the south.

Thus we see that the second order led to a significant reduction in the number of residents whose freedom of movement is affected, whereas the new order led to a significant reduction in the intensity of the violation of the freedom of movement of the remaining residents that are affected. Indeed, in assessing the extent of the harm caused by the route chosen to the local residents, we should take into account not only the number of the residents that are affected, but also the intensity of the violation of their rights. The remarks made recently in Abu Tir v. IDF Commander in Judaea and Samaria [2], which concerns the route of the separation fence in the area of the village Tzur-Bahar, are pertinent in this respect:

‘In assessing the proportionality of the proper route, we should take into account both the number of the owners of rights who are likely to be harmed and also the intensity of the violated rights. A weighting of these components is required in accordance with their relative weight in order to arrive at a determination of a route that will, from an overall perspective, cause the least possible harm to the local inhabitants. An examine of the number of owners of rights who are harmed by each option is insufficient. Without assessing the intensity of their rights that are expected to the violated it is impossible to assess the proportionality of the chosen option… an assessment of the intensity of the rights being violated must be made at the same time as the number of residents that are harmed are taken into account, while making a proper weighting between them’ (ibid. [2], at para. 12; emphases in the original).

The reduction in the intensity of the violation of the freedom of movement within the framework of the new order, as compared with the second order, is mainly expressed in two of the criteria mentioned above: the geographic scope of the restriction on movement, and the degree of intensity of the restriction on movement.

From the viewpoint of the geographic scope of the restriction on movement, according to the second order that was cancelled, the residents in the area of the ring road that was planned close to Rachel’s tomb were supposed to be enclosed in an area surrounded by walls; going from this area, even to Bethlehem itself, required passing through a roadblock. In other words, according to the second order we are not speaking of restricting the ability of the aforesaid residents to enter Jerusalem or even restricting them to the boundaries of Bethlehem, but of restricting them to a very small area. According to the new order, however, the ring road has been cancelled and none of the petitioners will find himself any longer in an area surrounded by walls. The restriction on the movement of the residents is now limited, from the viewpoint of its geographical scope, to a restriction on their movement into Jerusalem, and even this restriction does not arise directly from the requisition order that is the subject of the petition before us. It is therefore clear that from the viewpoint of this criterion there has been a huge reduction in the violation of the freedom of movement.

From the viewpoint of the criterion that concerns the intensity of the restriction on movement, we are also speaking of a significant reduction in the intensity of the violation. According to the solution that was proposed in the second order, in order to leave the aforesaid area, the residents of the area were supposed to travel to roadblock 300 (a distance of approximately 250 metres) and pass through the roadblock in order to enter Bethlehem. But according to the solution that was ultimately adopted in the new order, the movement of all of the petitioners within Bethlehem is free and direct, without any need to pass through a roadblock. The movement of the residents of the aforesaid area to the west will now be absolutely unimpeded, whereas their movement to the east, to the other side of Hebron Road, will require circumventing Rachel’s tomb and the walls that protect the access to it from the south. This circumvention does admittedly lengthen the travel time of the residents of the area on their way to the eastern part of Bethlehem by several hundred metres, and this involves a certain nuisance and inconvenience, but it is clear that this nuisance is much less than the nuisance that they would have suffered as a result of the need to go through a roadblock every time that the residents of the area wanted to enter the area or to go from it to Bethlehem. This is a level of nuisance that a person is likely to experience in everyday life in circumstances where entry into a certain road is prohibited for traffic reasons or because of public order.

Even from the perspective of the criterion concerning the interests whose realization is dependent on the freedom of movement of the residents of the area, we can see a significant reduction in the harm caused by the requisition order to the petitioners. The solution that was proposed within the framework of the second order was likely to harm the normal lives of the residents who lived in the aforesaid area most seriously. The result of the second order was that even the most basic everyday activities — such as going to work and to school, buying essential items, medical treatment, etc. — required the residents to leave the area and to pass an army roadblock, something that would have caused the residents great hardship in conducting their daily lives. The lives of the residents of the area were likely to be harmed also by the fact that the entry of guests and visitors, as well as service providers (including the employees of the first petitioner and the third petitioner) into the area would have been restricted. Now that the restriction on movement to and from the aforesaid area has been removed to a large extent, this will result in a significant improvement in the daily lives of the petitioners who live there from the viewpoint of the interests whose realization depends on the freedom of movement.

With regard to the period of time during which the restriction remains in force, there is no change in the new order as compared with the two previous orders. The respondents admittedly emphasize that these are temporary measures and according to them when the security position improves and the danger to the lives of the worshippers going to the tomb decreases, it will be possible to dismantle the walls and remove the restrictions on the petitioners’ freedom of movement, but naturally this is an unknown period of time that depends on all the circumstances that prevail in the territories, which may continue for a long time.

The conclusion is therefore that even the new order contains a certain violation of the freedom of movement, but this is a considerably smaller violation than the violation that was involved in the original order and the second order. We naturally accept the petitioners’ basic argument that the mere fact that the respondents thought of adopting more harmful measures does not necessarily make the measure that was ultimately chosen reasonable and proportionate. But on the merits of the matter we have been persuaded that the harm that remains — a certain extra distance in the travel route of a small number of the petitioners when they go to the eastern part of Bethlehem — is not a serious and significant violation of the freedom of movement, which departs from the margin of proportionate and reasonable measures that the respondents, who are responsible for security and normal life in the territories, are entitled to introduce (see Horev v. Minister of Transport [19], at p. 67 {___} (per President Barak); Religious Coercion Prevention League v. Jerusalem City Council [26], at p. 2668; Baruch v. Traffic Comptroller, Tel-Aviv and Central Districts [27], at p. 165).

19. The petitioners further argue that it would have been possible to realize the purpose of the order — providing safe access for the worshippers who wish to realize their right to freedom of worship at Rachel’s tomb — by other means that would harm the petitioners to a lesser degree. Thus, for example, they argue that it would have been possible to ensure the security of the worshippers by means of the existing security arrangements (transporting the worshippers in a bullet-proof bus with an army convoy to the tomb), or by digging a tunnel to the tomb.

The respondents utterly reject the petitioners’ arguments. According to them, the measures proposed by the petitioners are inappropriate for realizing the purpose of the order and they even raise a doubt as to whether these measures would cause less harm to the petitioners. The respondents’ argument is that in the current situation, where only the area of the tomb itself is protected, the security weak point is the means of access to the tomb, which passes almost entirely through hostile territory. They also argue that the traffic to the tomb and from it is a preferred target for terror attacks, and that the existing method of exposed traffic by means of a bullet-proof bus and an army convoy does not provide a proper security solution to the danger presented to the lives of the worshippers and the soldiers who accompany them. These arguments are now strengthened, inter alia, by the information that was recently revealed by the General Security Service as a result of discovering several terror cells in Bethlehem, as stated in the respondents’ supplementary notice of 8 November 2004. According to this, the GSS discovered the existence of a terror cell operated by a Palestinian policeman, which carried out attacks in Bethlehem and the area of Rachel’s tomb, and it had even planned to carry out an attack on a bullet-proof bus of worshippers by means of a car bomb. The respondents even went so far as to claim that leaving the existing position as it was involved much greater harm to the local residents, since the existing position necessitates many restrictions on movement, whereas the solution proposed in the new order will make it possible to remove these restrictions.

With regard to the petitioners’ proposal that a tunnel should be dug to the tomb, the respondents argue that it is not at all clear whether this solution can be implemented from an engineering point of view, and in any case the digging of a tunnel under a hostile area is not a good solution. According to them, this solution involves a risk that a terrorist will infiltrate the tunnel or an explosive charge will be placed in the tunnel, which may turn the tunnel into a death trap for those in it. Therefore they claim that this solution requires a military presence to be kept in the area above the tunnel and at its entrances, and therefore this solution will not lead to a change in the military deployment in the area, and will merely increase the danger to those coming to the tomb. In addition, the respondents also claim that it is precisely a tunnel that has the characteristics of a permanent solution, whereas the respondents wish to find a solution to a temporary and specific security situation.

Thus we see that the parties disagree with regard to the security measures that are appropriate for realizing the purpose of the order and with regard to the effectiveness of the measures proposed by the petitioners. As a rule, in such a dispute on military-professional questions, on which the court does not have any expertise of its own, the court will give considerable weight to the professional opinion of the military authorities, which has the professional expertise and the responsibility for security (see Beit Sourik Village Council v. Government of Israel [1], at para. 47, and the references cited there). In the present case the petitioners have not discharged the burden of persuading us that their position with regard to the effectiveness of the measures that they proposed should be preferred to the opinion of the military commander.

Moreover, when we reached the conclusion that the harm resulting from the measure chosen by the respondents is not a serious and significant violation of the freedom of movement, and that this measure does not depart from the margin of proportionate and reasonable measures that the respondents are given, we are not required to decide the question of the effectiveness and propriety of the measures proposed by the petitioners. Indeed, there are often several ways of realizing the purpose, which are all proportionate and reasonable. The military commander has the authority to choose between these methods, and as long as the military commander does not depart from the ‘margin of proportionality’ and the ‘margin of reasonableness,’ the court will not intervene in his discretion (Beit Sourik Village Council v. Government of Israel [1], at para. 42). Indeed:

‘It is only natural that the court does not put itself in the military authority’s place… in order to substitute the discretion of the court for the discretion of the commander. It considers the question whether, in view of all the data, the adoption of the aforesaid measure falls within the margin of measures that can be regarded, in the circumstances of the case, as reasonable…’ (per President Shamgar in HCJ 1005/89 Agga v. IDF Commander in Gaza Strip [28], at p. 539; see also Ajuri v. IDF Commander in West Bank [7], at pp. 375-376 {___-___}; Beit Sourik Village Council v. Government of Israel [1], at para. 46).

In summary, after we have examined the nature and intensity of the violation to the freedom of movement in this case, we have reached the conclusion that the solution chosen by the respondents within the framework of the new order does indeed guarantee the essence of the realization of the freedom of worship without violating the essence of the freedom of movement. The respondent’s decision within the framework of the new order succeeds in preserving the ‘essence’ of both of these two liberties of equal weight, and this is therefore a reasonable balance that does not justify any intervention.

Freedom of worship versus property rights

20. Property rights are also included among the basic human rights. Property rights have been recognized as basic rights worthy of protection in the case law of this court (see, for example, HCJ 390/79 Dawikat v. Government of Israel [29], at pp. 14-15; HCJFH 4466/94 Nuseibeh v. Minister of Finance [30], at pp. 83-85) and have also been given explicit constitutional expression in s. 3 of the Basic Law: Human Dignity and Liberty. These rights are also recognized in international law, and in so far as territories held under belligerent occupation are concerned, they are enshrined, inter alia, in the Hague Convention and the Fourth Geneva Convention. Notwithstanding, property rights are not absolute, and they may give way to other public interests and basic rights (see, for example, Hass v. IDF Commander in West Bank [3], at para. 17; Ajuri v. IDF Commander in West Bank [7], at pp. 365 {___}).

The balance between the freedom of worship and private property rights was considered recently in Hass v. IDF Commander in West Bank [3]. In that case the court reached the conclusion that ‘there is no need to adopt a decisive position with regard to the conceptual ranking of the right of worship and the right of property in order to decide the question of how to balance between them in a case of a conflict.’ This was because, in the circumstances of that case, the court reached the conclusion that ‘Even if we assume, for the purposes of this case, that we are concerned with constitutional rights of equal standing and importance, even so, in the horizontal balance between them’ the balance made by the respondent satisfies the test of constitutionality (ibid. [3], at para. 20). These remarks are also appropriate in the case before us, and we too shall follow the same path, since we have been persuaded that the violation of property rights in this case is marginal. Counsel for the respondents claims in his reply to the second amended petition that the harm caused by the new order to private land is ‘absolutely marginal,’ in his words, and even the petitioners placed their main emphasis on the violation of freedom of movement and did not point to any concrete violation of the property rights of any of the petitioners. Counsel for the respondents claims that within the framework of the planning of the route an effort was made to rely, in so far as possible, on the existing borders of parcels of land, that only a few petitioners were harmed by the requisition of the land and that even so we are speaking merely of the requisition of small parts of parcels. Counsel for the respondents further states that for this requisition fair rent and compensation will be paid. Therefore we have been persuaded that the balance between the freedom of worship and property rights does not depart from the margin of reasonableness in this case, even if we assume that we are speaking of two rights of equal weight, and that the proper balance between them is therefore a horizontal balance. We have also made a note of the statement made by counsel for the respondents that the respondents will be prepared to examine any application for an amendment of the route at a specific point, in order to reduce the harm to the owners of the land.

Summary

21. Jewish worshippers have a basic right to freedom of worship at Rachel’s tomb and the respondent has the duty to ensure the realization of this right by protecting the safety and lives of the worshippers. Within the framework of choosing the measures for realizing this purpose, the respondent must take into account the basic rights of the petitioners, including property rights and the freedom of movement, and he must strike a proper balance between these rights. In this case, the solution adopted by the respondent, after he reconsidered the original plans and adopted a course that follows the case law of this court, does indeed ensure the realization of the worshippers’ freedom of worship without violating the essence of the petitioners’ freedom of movement and property rights. We have therefore not found that the arrangement determined by the respondent at the end of the proceedings contains any unreasonableness that justifies our intervention therein.

For these reasons, the petition is denied.

 

 

Justice E. Rivlin

            I agree.

 

 

Justice E. Hayut

            I agree.

 

 

Petition denied.

24 Shevat 5765.

3 February 2005.

 

 

            H.C.J  187/54

 

           

HALIMA SULIMAN BARRIYA

v.

THE KADI1) OF THE SHARIA MOSLEM COURT, ACRE (SHEIKH MUSSA-T-TABARI)

 AND ANOTHER

 

           

In the Supreme Court sitting as the High Court of Justice.

[July 19, 1955]

Before Olshan P., Goitein J., and Berinson J.

 

 

Moslem religious courts - Non-interference by High Court of Justice in procedure of religious courts - Moslem Law - Guardianship of minors - Women's Equal Rights Law, 1951 - Civil and Religious law.

 

            An application was made to a Moslem Religious Court by the aunt of three minor children to be appointed their guardian. The applicant's deceased brother, the father of the children, had directed before his death that the mother of the children should be their guardian. After his death the mother had remarried and the aunt, relying upon Moslem law, had taken the children into her care and had prevented them from remaining with their mother.

           

            In the course of the proceedings before the Moslem Religious Court the mother submitted (inter alia) that she was entitled to the guardianship by virtue of s. 3 of the Women's Equal Rights Law 2. The Moslem Religious judge (the Kadi) decided to deal with the legal arguments only after hearing and considering the evidence in the case. The mother believing that the Kadi had in effect already decided to apply Moslem religious law and to disregard the Women's Equal Rights Law applied for an order staying or setting aside the proceedings in the religious court.

           

            Held per Olshan P. : There was nothing in the record of the proceedings before the religious court to show that that court intended to disregard the civil law and rely only upon the religious law, and the order in which the religious court decided to proceed with the case was a matter of procedure with which the High Court would not interfere.

           

            per Goitein and Berinson JJ. : If in the event it is seen that the religious court confined itself to the Sharia 1) law and refused to take into account the civil law regarding equal rights for women, then it would be acting without jurisdiction and the High Court would come to the aid of the petitioner. The present petition was premature as there was nothing to show that the Kadi intended to disregard the civil law.

           

Darweesh and Angel for the petitioner.

No appearance for the first respondent.

Hawari for the second respondent.

Bar-Or, Deputy State Attorney, for the Attorney-General.

 

            OLSHAN P. This is the return to an order nisi, dated December 26, 1954, calling upon the first respondent to show cause why he should not be restrained from continuing the proceedings in the claim of the second respondent in File 26/54 of the Sharia Court2), or why an order should not be made setting those proceedings aside.

           

            The petitioner is the mother of three minor children, a son and two daughters. Her husband died six or seven years ago. The second respondent is the petitioner's sister-in-law, a sister of her deceased husband, and an aunt of the children. On October 14, 1954, the petitioner married her present husband and thereafter, in the language of the petitioner, "the second respondent took energetic steps to take from her the guardianship of the children" and "she succeeded by intimidation and persuasion in keeping them with her, and in preventing them from remaining with the petitioner".

           

            The second respondent applied to the first respondent to be appointed as guardian of the children alleging, inter alia, that her deceased brother had directed before his death that she should be the guardian of his children. The second respondent was represented before the Kadi by Mr. Hawari. The petitioner was not represented by counsel, but she was assisted by Mr. Darweesh as amicus curiae.

           

            We have been furnished with a copy of the record of the proceedings before the Kadi, the clarity and arrangement of which are to be commended.

           

            The record shows that:

(a)   The second respondent based her claim to be appointed guardian upon the allegation that the petitioner had married a second husband and had left the three children with the second respondent.

 

(b)   The petitioner submitted in support of her claim that she was entitled to the guardianship of her children. relying upon section 3 of the Women's Equal Rights Law, 1951. That section provides that the father and mother are the guardians of their children, and that upon the death of one of them the surviving parent continues as guardian unless the interests of the children require the appointment of some other person. The petitioner submitted that this section binds all religious courts and that the interests of the children required that she should continue to be their guardian.

 

(c)   Counsel for the second respondent submitted that the court should apply the religious law, according to which that person should be nominated who had been appointed as guardian by the father before his death. Counsel requested the first respondent to decide upon the preliminary points before hearing witnesses.

 

(d)   The first respondent decided that the sections of the Sharia Law relied upon by counsel for the second respondent should be considered after the hearing of evidence to determine whether the second respondent had in first been nominated as guardian, and that he would then deal with "the Sharia and legal aspects of the case."

 

(e)   At the second hearing, after the above decision had been given, witnesses were heard and the hearing adjourned for the purpose of examining the evidence taken, and determining to what extent the various witnesses had been consistent with each other. At that stage the petitioner applied to this court and the order nisi was issued.

 

            Counsel for the petitioner submitted before us that in view of the arguments advanced before the Kadi by counsel for the second respondent the decision referred to above must be regarded as a finding by the first respondent on the point argued before him, that is to say, that it is the religious law which must be considered and even preferred, and that the Women's Equal Rights Law must be disregarded. In view of this finding, he submits, the order nisi should be made absolute.

 

            Counsel for the petitioner also submits that the Sharia Law discriminates against the wife in this case and that the decision of the Kadi, therefore, in so far as it seeks to apply the Sharia Law, is in conflict with section 1 of the Women's Equal Rights Law which provides:

           

            "A man and a woman shall have equal status with regard to any legal proceeding; any provision of law which discriminates, with regard to any legal act, against women as women, shall be of no effect".

           

            Counsel for the petitioner also submits that the decision referred to is in conflict with section 3 of the same law.

           

            It appears from the record that counsel for the second respondent did submit before the Kadi that the religious law is to be applied in matters of personal status, and pointed out that according to the law, in his opinion, a mother who has married a second husband is not to remain guardian, since the children may not be permitted to live under one roof with the second husband, who is unrelated to them. It follows, although he did not say this expresly, that the first respondent was being asked to disregard the Women's Equal Rights Law.

           

            Relying upon a book of the Sharia Law regarding the question of the guardianship of children, counsel tried to show that that law does not discriminate against the wife in the present case. He also submitted that the decision of the court should not be regarded as a decision that the Women's Equal Rights Law is not to be applied, and that since the first respondent has not yet given his ruling on the point, the present application is based upon mere apprehension and is accordingly premature.

           

            Mr. Bar-Or did not deal with the question of the remedy that the submission of counsel for the second respondent that the order nisi should be discharged.

           

            Mr. Bar-Or did not deal with the question of the remedy that might be available in the event of a religious court deciding the case without taking into account the provisions of the Women's Equal Rights Law. He confined his submissions to the specific matter before us.

 

            He submitted that the decision referred to is not a ruling on a point of law, as was submitted by counsel for the petitioner. Since the present petition is not one concerning the assumption by a court of the power to deal with a matter beyond its jurisdiction, this court cannot issue an order restraining the continuation of the proceedings.

           

            An additional submission of Mr. Bar-Or was that even if the decision referred to could be regarded as a ruling not to apply the Women's Equal Rights Law, even then this would be a decision on the merits of a case within the jurisdiction of the religious court, and if that decision was based upon an error in the interpretation of the law which governed the matter, the remedy was an appeal to the Religious Court of Appeals.

           

            The matter before the Kadi, Mr. Bar-Or submits, is one relating to the guardianship of children which, in accordance with the Palestine Order in Council, is within the exclusive jurisdiction of the religious court. It is therefore clear that there is here no matter of jurisdiction in respect of which an injunction could be issued. All the more so is this the case when the Kadi has only decided to postpone "the consideration of the Sharia and legal aspects" (and he emphasises the word "legal") until after the hearing of the witnesses. How can counsel for the petitioner know that when the Kadi reaches the stage of considering the "Sharia and legal aspects" of the problem, he will decide not to have regard to the interests of the children, in accordance with the provisions of section 3(b) of the Women's Equal Rights Law? 1)

           

            I agree with the submissions of counsel for the Attorney-General, and those of counsel for the second respondent which he made before us (but not with those advanced by him before the Kadi).

           

            We are not called upon to deal with the problem of whether the Sharia Law discriminates against women in matters of guardianship. In the present case there is no attempt to discriminate between a man and a woman, the matter dealt with in section 1 of the Women's Equal Rights Law, for the question that arises here is which of two women is to be guardian of the children.

           

            As far as section 3 of the statute referred to is concerned there is no doubt that it binds all courts and tribunals, even in cases where the application of the religious law would lead to different results. Section 7 of the statute is quite unequivocal, the only case which forms an exception to the rule and where it is permissible to depart from the provisions of section 3 is where the parties are of the age of eighteen years or more and have voluntarily agreed before the court that the litigation between them shall be conducted in accordance with the laws of the community to which they belong.

           

            I do not accept the interpretation placed by counsel for the petitioner upon the decision of the first respondent. The clear meaning of that decision is that the truth of the contention of the second respondent in regard to her having been selected by her deceased brother as guardian of the children must be investigated first. Should it be proved that this contention is incorrect, there will be no need to consider the legal questions raised by counsel for the second respondent, but if it should appear that there is substance in this contention, then the Kadi will deal with "the Sharia and legal aspects of the case." That is to say, the Kadi will then give his opinion upon the legal submissions of counsel for the second respondent based upon the Sharia Law, and also upon the legal submissions of the applicant based upon the secular law. The question of procedure is one for the religious court, and is not a matter with which this court will interfere.

           

            In my opinion that is the proper interpretation of the decision of the Kadi and if that be so it will be seen that the complaint of the applicant narrows down to this, namely, that the Kadi should first have decided the legal question before him, and if he had reached the correct conclusion, he would have been relieved of the necessity of hearing witnesses. This is a matter of procedure, and each religious court proceeds according to its own rules. This is not a matter, as I have said, in which we should interfere.

           

            I may add that it was counsel for the second respondent who requested that a decision on the preliminary points be given first and the Kadi did not accede to this request. This shows that the meaning of the decision referred to accords with the interpretation I have just given.

           

            The petition should, therefore, be dismissed, and the order nisi discharged. Should the decision of the religious court conflict with the Women's Equal Rights Law, questions will arise that are not before us in these proceedings.

 

            In regard to costs, I think that the bringing of this petition was caused to some extent by the submissions of counsel for the second respondent before the Kadi, upon which he did not rely before us.

           

I think it right that each party should pay its own costs.

 

GOITEIN J. I agree with the President that the order nisi should be discharged and I do so for two reasons. (a) In my opinion the application is premature. At present there is no hint in the record of the religious court that the Kadi intends to disregard the provisions of the Women's Equal Rights Law, 1951. It is true that counsel for one of the parties who appeared before him requested him to disregard this law, but there is no evidence whatever before us to show that the Kadi intends to accede to this request. (b) The Women's Equal Rights Law does not confer upon a mother an unappealable right to the guardianship of her children. Section 3(b) of the Law leaves the matter within the discretion of the competent court or tribunal "with the interests of the children as the sole consideration." It follows that every civil and religious court will regard the mother as the natural guardian of her children until it is proved that the interests of the child demand that the mother should cease to be the guardian.

 

            The above considerations give rise to two problems. (a) Suppose the religious law does not recognise that it is in the interests of the children that the mother should be their guardian, is the religious court then free to decide that the interests of the children demand that they should not remain under the guardianship of their mother? (b) Assuming the religious law is inconsistent with the Women's Equal Rights Law, yet the religious court decides in accordance with the religious law and its judgment is confirmed by the Religious Court of Appeals, may this court interfere?

           

            The first question was raised in argument before us. Moslem religious law, it would seem, does not regard it as in the interests of the children that their mother should remain their guardian after she has married a second time. May the religious court decide in accordance with the religious law? It seems to me that the answer is to be found in section 3(b) of the Women's Equal Rights Law, which provides:

 

"The provisions of sub-section (a) shall not derogate from the power of a competent court or tribunal to deal with matters of guardianship over the persons or property of children with the interests of the children as the sole consideration."

           

            The emphasis is upon the word "sole" - that is to say, the test is objective and judges, when dealing with this subject, are to disregard the theoretical presumptions of the religious law as to what constitutes the interests of the children in a particular situation.

           

            It was not argued before us that if the father take a second wife he ceases, according to Moslem law, to be the natural guardian of his children. If his guardianship continues in such a case, then it seems to me that there is discrimination here against the mother by reason of her being a woman. A religious court, therefore, is not entitled to remove the children from the guardianship of their mother and to hand them to their aunt - as in the case before us - relying upon a law which discriminates against a woman by reason of her being a woman. However, as I have already said, there is no proof before us that the Kadi intends to deal with this problem without regard to the Women's Equal Rights Law.

           

            The second question is more difficult and no clear answer to it is to be found in the law of Israel. It has already been decided on innumerable occasions that this court, when sitting as the High Court of Justice, will not interfere with judgments of the religious courts unless they have acted without jurisdiction, or in cases where there has been a denial of natural justice, or in exceptional cases which call for our intervention for the administration of justice. It has therefore been held that this court will not turn itself into a court of appeal from judgments of the religious courts. That is to say, if those courts err in their interpretation of the law or disregard a particular statute, this court has no power to correct the mistake. The only remedy is an appeal to the religious court of appeals, and if that court also errs, its judgment stands. What then will be the fate of a judgment of a religious court in which it is clearly stated, or the text of which makes it clear, that the court disregarded the provisions of a particular statute - in this case the Women's Equal Rights Law, 1951? The answer, in my opinion, is to be found in Sections 1 and 7 of that Law. Section 1 provides:

 

"A man and a woman shall have equal status with regard to any legal proceeding; any provision of law which discriminates, with regard to any legal act, against women as women, shall be of no effect."

           

Section 7 provides:

 

            "All courts shall act in accordance with this Law..."

           

            In the light of these sections, we say that the acts of any court which are contrary to the Law are of no effect, for the Women's Equal Rights Law restricted and confined the power of the religious courts to act in accordance with the religious law, as they had been doing before this statute was passed. The answer, therefore, to the question asked above is that when it appears on the face of a judgment that the court has failed to take notice of a law of the State, and that judgment is presented for execution, execution may be refused upon the ground that the religious court, in deciding as it did, exceeded its powers.

           

            It has been submitted before us that a shrewd judge in a religious court will be able to find a way of concealing the fact that he decided otherwise than in accordance with the laws of the State, and that it will then be impossible to invalidate his judgment in any civil court whatever. In my view there is no serious danger of a complainant being unable to establish upon the basis of which law the court gave its decision. If it emerges from proceedings, or from the record, that the religious court intentionally disregarded the laws of the State then this court as the High Court of Justice will restrain execution of the judgment. In the present case, as I have already said, there is no reason for us to suspect that the Kadi will not decide in accordance with the law as it stands, and there is therefore no reason for us to interfere.

           

            For these reasons I agree with the learned President that the order nisi should be discharged.

           

BERINSON J. I also agree that the order nisi be discharged for the reasons given by Mr. Justice Goitein, and I wish only to add a few words to clarify my attitude on one of the grounds advanced by him.

 

            Mr. Justice Goitein asks what would become of a judgment of a religious court when it is clear that that court disregarded the provisions of a particular statute such as, in this case, the Women's Equal Rights Law, 1951. His reply is that when it appears on the face of the judgment that the judges disregarded a law of the State, execution of the judgment may be refused upon the basis that the religious court, in deciding as it did, exceeded its powers. With this I agree, but it seems to me, with all respect, that this answer does not exhaust the matter, for in addition to attacking the judgment before the execution authorities, there are other ways of attacking an invalid judgment, given without proper authority. I assume that my colleague cited this method of setting aside the judgment before the execution authorities only as an example, as one of the ways, and did not intend to exclude others. As far as I am concerned, my view is that the ways of invalidating a judgment - such as the one here discussed - of a religious court, are no different or more restricted that those which are ordinarily open to an interested party for upsetting a judgment given by an inferior tribunal without authority. I will explain myself by reference to the facts of the petition before us. The subject of the dispute between the petitioner and the second respondent is the petitioner's guardianship of the three children who are now living with the second respondent, who is in possession of their property and administers it on their behalf. All that the second respondent seeks to obtain in the Sharia Court is the legal confirmation of this state of affairs. Let us assume that the Sharia Court issues an order of guardianship as applied for by the second respondent, basing itself upon the principles of the religious law, and totally disregards the Women's Equal Rights Law, that is to say, that it issues a judgment in excess of its powers. The second respondent need not present that judgment for execution for it merely confirms an existing state of affairs. Does it follow from this that every alternative legal method of invalidating this judgment is denied to the petitioner? An application could be made to this court for certiorari, contesting the validity of the judgment which was given in excess of authority. Again, an application for a writ of habeas corpus, directing the return of the children to her possession as their natural guardian in accordance with the Women's Equal Rights Law, could be lodged. It is beyond all doubt that these ways are not closed to the petitioner. In the result, I am of opinion that the judgment of a religious court given In excess of its powers by reason of its being in conflict with the provisions of a secular law which binds the court, may be invalidated in the same way as any other judgment of an inferior tribunal given in excess of its powers.

 

Order nisi discharged.

Judgment given on July 19, 1955.

 

1) Judge of Moslem Religious Court.

2) Women's Equal Rights Law, 1951, s. 3:

Equality in respect of guardianship.

3.         (a)         Both parents are the natural guardians of their children; where one parent dies, the survivor shall be the natural guardian.

(b)        The provisions of subsection (a) shall not derogate from the power of a competent court or tribunal to deal with matters of guardianship over the persons or property of children with the interest of the children as the sole consideration.

1) Moslem religious law.

2) Moslem Religious Court

1) For text of s. 3(b) see supra p. 429.

In the Supreme Court

CrimApp 10697/05

 

 

Before:  The honourable Justice E. Rubinstein

 

 

The appellant:      Abdul Azbarga

 

                v.

 

The respondent:  State of Israel

 

 

                Appeal of the decision of the Tel-Aviv-Jaffa District Court in MApp 93362/05 (SFC 1145/05) that was given on 7 November 2005 by Justice Noga Ohad

 

For the appellant:                Adv. Moshe Meroz

 

For the respondent:            Adv. Maya Hadad

 

 

Decision

 

1.             This is an appeal of the decision of the Tel-Aviv-Jaffa District Court (Justice Ohad) of 7 November 2005 in MApp 93362/05 (SFC 1145/05), in which the appellant’s application to be allowed out of the house arrest to which he is subject, on a daily basis at fixed times, in order to participate in daily prayers at the mosque of the town of Qalansuwa, was denied.

 

2.             (a)           On 5 September 2005, an indictment was filed against the appellant in the Tel-Aviv-Jaffa District Court, which attributes to him an offence of attempted murder under ss. 305(1) and 29(a) of the Penal Law, 5737-1977.

 

                (b)           According to what is alleged in the indictment, on the afternoon of 2 August 2005, the appellant and a relative of his, Ahmad Azbarga, entered the garage of the Alwahwah brothers in Lod. Each of them carried a hand-gun. Ahmad and the appellant approached Guptan Alwahwah, the appellant cocked his gun and Ahmad shot him in the chest. As a result of the shooting, Guptan lost consciousness and was rushed to hospital in critical condition, suffering from a torn diaphragm, several puncture wounds in the intestine and additional wounds. This happened following a fight that broke out the previous day between the Azbarga family and the Alwahwah family as a result of suspicions that arose that the borrowed car that a member of the Azbarga family brought into the garage of the Alwahwah brothers for a paint job on the occasion of a family wedding was a ‘fake.’ In the course of the fight, the windscreen of the car was smashed and another car in the garage was damaged, following which the appellant said that ‘he would turn the wedding of the Azbarga family into a funeral for the Alwahwah family.’

 

                (c)           When the indictment was filed, the state applied for the appellant to be held under arrest until the proceedings were concluded. On 20 September 2005, the District Court in MApp 93050/05 (per Justice Rozen) denied the application and ordered the appellant to be placed under house arrest on the following conditions: a personal guarantee of a third party in a sum of NIS 250,000, a cash deposit or bank guarantee in a sum of NIS 20,000, complete house arrest at a distance of no less than 30 kilometres from the city of Lod with supervisors who would give a guarantee of NIS 250,000, and a stop order preventing the appellant from leaving the country. The reason given for the decision was that there was prima facie evidence and a ground to hold the appellant under arrest, but the strength of the prima facie evidence was not great.

 

                (d)           The appellant filed an application for a review in the District Court, in which he requested that he should be allowed to go out to pray five times a day at the mosque situated at a distance of approximately 200 metres from the place of the house arrest in Qalansuwa. During the oral hearing, the application was changed to twice a day. On 7 November 2005, the court denied the application. It held that the application had no merit in view of the short time that had passed since the decision regarding the house arrest was given. It was also determined that the state’s consent to allow the appellant to go to pray at the mosque twice a day during the month of Ramadan did not necessarily mean that going out to pray should be allowed on ordinary days, since the permission to go to pray during Ramadan was allowed in order not to discriminate against the appellant in relation to another defendant, a member of the Jewish faith, who was allowed to go to prayers during the Jewish festival season.

 

3.             In the current appeal, it is argued that the appellant is a sheikh, who is very particular about observing the precepts of his religion, including, as aforesaid, praying in a mosque. It was also stated that the mosque of the town of Qalansuwa was approximately 300 metres away from the house where the appellant was under house arrest, that the appellant would go solely to the mosque, and that during the prayers the appellant would be accompanied by the supervisor that gave the guarantee. It was also argued that the appellant was a young man without any criminal record, and that he was summoned for interrogation only approximately a month after the event described in the indictment, during which he was free, and he has been under house arrest for two months. It was argued that the appellant was allowed out for prayers during the month of Ramadan, during which he did not infringe the conditions, and therefore he was deserving of trust. It was also argued that prohibiting his going to prayers in the mosque was inconsistent with upholding the appellant’s constitutional right to freedom of religion and worship.

 

4.             (a)           During the hearing, counsel for the appellant pointed out that we are speaking of prayers between 5:00 and 6:00 in the morning, and between approximately 4:50 and 6:30 in the evening, and on Friday also at midday. According to the appellant, where there is a mosque, there is a religious obligation to pray at the mosque.

 

                (b)           Counsel for the state emphasized that a review requires a change of circumstances, and there is none. Moreover, it was difficult to supervise the appellant’s compliance with the conditions of the house arrest, and the question is one of balance: during Ramadan the appellant was allowed out in view of the importance of the period and in order not to discriminate against him.

 

                (c)           After the hearing, counsel for the appellant submitted references to cases in which Jews and Muslims were allowed to go to prayers. The respondent replied that each case should be examined according to its circumstances. The danger presented by the appellant was an established fact and no change had taken place in this regard. Therefore the possibility of going to prayers undermined the ability to supervise him.

 

5.             (a)           For the purpose of the decision I have studied certain material in order to understand the relevant religious requirements, in so far as I have able to do so. Since the relevant comparison, which counsel for the appellant also addressed, is an application to allow Jewish defendants under house arrest to go to participate in prayers at the synagogue, I have also studied the Jewish sources. It is self-evident — but I nonetheless emphasize the point —that in my remarks below I am not purporting to make any religious law ruling, either with regard to Jewish law or with regard to Islamic law.

 

                (b)           With regard to Islam law, praying (sallat) five times a day, while facing Mecca, is one of the five basic precepts of the religion, which are called the pillars (arkan) of Islam. The others are belief with regard to the unity of God and his emissary, the prophet Mohammed, charity, fasting and the pilgrimage to Mecca. Prayer can be done on one’s own and in any place; see Ibn Rushd, The Distinguished Jurist’s Primer (Prof. I.A.K. Nyazee (tr.)), at p. 129, according to which any clean place is suitable for prayer, but not unclean places such as cemeteries, slaughterhouses, a public bathhouse, etc.). See also H. Lazarus-Yaffe, Chapters in the History of the Arabs and Islam (Heb.), at p. 94: ‘The daily prayers and additional voluntary prayers… may be performed by any Muslim where he chooses, although praying in a mosque is always preferable.’ In other words, it is possible to pray anywhere, at home or outside the home, but Muslims are recommended to pray at a mosque if it is possible in the circumstances. With regard to the duty of prayer itself, see the Qur’an, surah (chapter) 2 (The Calf), verse 238: ‘Guard strictly your (habit of) prayers, especially the Middle Prayer; and stand before Allah in a devout (frame of mind)’; surah 4 (Women), verses 102-104; surah 30 (The Romans, The Byzantines), verses 17-18: ‘So (give) glory to Allah, when ye reach eventide and when ye rise in the morning; Yea, to Him be praise, in the heavens and on earth; and in the late afternoon and when the day begins to decline’ (Yusuf Ali translation). The total number of prayers is determined by tradition. By contrast, the Friday midday prayer is a prayer that is required to be said as a rule in a mosque, led by an imam if possible, and it also involves a sermon (khutbah) (see Encyclopaedia of Islam, vol. 8 (fifth edition), ‘Sallat’ (Prayer), 930, at p. 932; Hebrew Encyclopaedia (Heb.), vol. 4, ‘Islam,’ (by M.M. Plessner), at pp. 954, 972-975; H. Lammans, Islam, at p. 45); the source in the Qur’an for Friday prayers is surah 62 (The Congregation, Friday), verse 9: ‘O ye who believe! When the call is proclaimed to prayer on Friday (the Day of Assembly), hasten earnestly to the Remembrance of Allah, and leave off business (and traffic): That is best for you if ye but knew!’

 

                (c)           With regard to Jewish law, according to Maimonides (Mishneh Torah, Hilechot Tefilla (Laws of Prayer) 1, 1), prayer is in itself a positive commandment:

‘It is a positive commandment to pray each day, as the Torah says: “And you shall worship the Lord your God” (Exodus 23, 25). By oral tradition it has been taught that this worship is prayer, as the Torah says: “… and to worship Him with all your heart” (Deuteronomy 11, 13). The Sages said: “What worship is done with the heart? Prayer.” And there is no number of prayers according to the Torah, nor is the format of this prayer stipulated in the Torah, nor does prayer have a fixed time according to the Torah.’

 

                The laws that follow this describe in detail the rabbinical enactments with regard to the number and times of the prayers. See also Maimonides, Book of Commandments, positive commandment no. 5, which also bases these remarks on the verse ‘… and Him you shall worship…’ (Deuteronomy 13, 5), and he also says (Mishneh Torah, Hilechot Tefilla (Laws of Prayer) 8, 1):

‘The prayer of a congregation is always heard, and even if its includes sinners, the Holy One Blessed be He does not reject congregational prayer. Therefore a person should join with the congregation, and he should not pray individually whenever he can pray with the congregation, and a person should always go in the morning and the evening to the synagogue, since an individual’s prayer is not heard at all times unless it is in the synagogue, and anyone who has a synagogue in his town and does not pray in it with the congregation is called a bad neighbour.’

                Rabbi Yosef Karo states in Shukhan Aruch, Orach Hayim 90, 9:

‘A person should endeavour to pray in the synagogue with the congregation, and if he is prevented and is unable to go to the synagogue, he should seek to pray at the time when the congregation is praying (Comment of Rabbi Moshe Isserlis (Rama): “And that is the law for persons who live in places where they do not have ten men: they should nonetheless pray in the morning and the evening at the time when congregational prayer is held”) and also if a person is prevented from praying at the time when the congregation prays and he prays individually, he should nonetheless pray in the synagogue.’

                Rabbi Yisrael Meir HaCohen (Kagan) in Mishnah Brura (Commentary on Shulhan Aruch, Orach Hayim 90, 9), explains the word ‘endeavour’ as follows: ‘And even if he has ten men in his home, he should endeavour [to pray] in the synagogue…’ and why ‘with the congregation? Because the Holy One Blessed be He does not reject congregational prayer…’. He goes on to point out there: ‘It is written in a responsum of Rabbi David ben Shelomo Ibn Abi Zimra (Radbaz) that if a prisoner is given permission by the ruler to pray on one day of his choice with the congregation, he should pray on that day immediately and should not postpone fulfilling the obligation (of praying with the congregation) until Yom Kippur or Purim…’.

                Thus we see that the obligation to pray in a synagogue — which appears as a normative part of Jewish law — is defined as something that one should endeavour to do. Here we should point out that there are parts of the prayers that can only take place when ten men are present (even if not in the synagogue), such as the Kaddish, Kedusha, the reading of the Torah and the priestly blessing. On the subject of communal prayer and its importance, see Rabbi A.I. Kook, Olat Re’iyah, 1, 261, which is cited in Rabbi M.Z. Nerya, ‘Orot HaTefilla,’ in Siach Yitzhak in memory of Yitzhak Lavi (Rabbi Y. Shaviv, ed.), at pp. 147, 230. I should also add that within the framework of the balances between conflicting interests, even though there is usually a possibility of communal prayer in Israeli prisons, a rabbinical court may deny a prisoner this possibility under s. 6 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, which makes it possible to compel the giving of a divorce bill (Get) by means of imprisonment (see also s. 7, which allows a person to be compelled to perform levirate divorce (Halitza)), by virtue of s. 3A of the Rabbinical Courts (Compliance with Divorce Judgments) Law, 5755-1995.

 

(d)           The freedom of worship is one of the basic values of the State of Israel as a Jewish and democratic state, and it is one of the principles listed in the Declaration of Independence (‘The State of Israel shall guarantee… freedom of religion…’) (see the discussion of its status in HCJ 1890/03 Bethlehem Municipality v. State of Israel [2005] IsrSC 59(4) 736; [2005] (1) IsrLR 98, at paras. 12-16, per Justice Beinisch, and the references cited there, including with regard to a conflict of rights, as well as the freedom of worship and the freedom of movement; see also HCJ 10356/02 Hass v. IDF Commander in West Bank [2004] IsrSC 58(3) 443; [2004] IsrLR 53, per Justice Procaccia). There are those who regard the freedom of worship as also falling within the scope of respect for rights under the Basic Law: Human Dignity and Liberty (see A. Barak, Legal Interpretation: Constitutional Interpretation (Heb.), at p. 430). It need not be said that this right of freedom of worship may conflict, and in the case of arrest or imprisonment it does conflict, with the provisions of the law concerning arrest or imprisonment (see s. 5 of the Basic Law: Human Liberty and Dignity). In such cases a balance needs to be reached on the basis of the specific circumstances, common sense and experience.

 

(e)           Matters of well-established and well-respected religious custom often come before the courts in Israel and elsewhere, and the question in this case is one of the proper balance between the right to communal prayer, even if its religious status is essentially and mostly that of a desirable practice, and the constraints of arrest. Obviously there is a difference, which does not need to be considered here, between compelling someone — Heaven forbid — to transgress a religious precept of a kind where ‘it is preferable to be killed rather than to transgress,’ on the one hand, and not allowing him to observe a desirable practice, on the other.

 

(f)            Approximately twenty years ago, the United States Supreme Court decided the case of Goldman v. Weinberger, 475 U.S. 503. In that case, an officer in the United States Air Force, an orthodox Jew, applied to be allowed to wear a skullcap in his unit’s facility on the ground that his constitutional rights (under the First Amendment of the United States Constitution, which guarantees the freedom of worship) were being violated by the Air Force Regulations that prohibited this. Indeed, the skullcap (a head covering has been a well-established practice for many generations among orthodox Jews) was presented by the petitioner there as a ‘silent devotion akin to prayer.’ The court decided, by a majority of five to four, against the skullcap (the law was subsequently amended to allow the wearing of the skullcap).

 

(g)           I have studied each of the collection of decisions on questions of prayer during house arrest that was presented by counsel for the appellant. They range from judicial decisions of every judicial instance that approved communal prayer at all prayer times, both for Jews and for Muslims, and decisions that approved certain times only. The background and the circumstances in these decisions vary from cases involving the disengagement from the Gaza Strip to cases in the ‘classic’ criminal sphere, such as assaults, indecency, etc.. There are also cases in which permission for communal prayer has been rescinded after it was given; there is a case of administrative house arrest in which the petitioner was not allowed in the circumstances of the case to leave the place of house arrest, but it was held that people could come to constitute a quorum of ten men (minyan) in the place where the petitioner was under house arrest (HCJ 5555/05 Federman v. Central District Commander (unreported)).

 

(h)           In my opinion, ultimately the attitude towards applications to be allowed to participate in communal prayers while under house arrest, both for Jews and for Muslims (the existing examples), as well as for members of other religious communities in accordance with what is accepted in their religions, should be one that inclines towards granting the application, where circumstances allow. However, every case should be considered on its own merits, and naturally there may be cases in which it will not be allowed. The court should consider — and this is what the courts do consider, to the best of my understanding, in such cases — the balance between the grounds for arrest in the law, such as the danger presented by the person under arrest, perverting the course of justice and fleeing from justice, on the one hand, and the desire to pray with the community, on the other. Each of these grounds should be examined, as well as the guarantors and the manner of carrying out supervision in cases that the court decides to approve.

 

(i)            In the present case, I have reached the conclusion that at this time it is possible to accommodate the appellant to some extent, and in this sense the appeal is allowed in part. Approximately two and a half months have passed since the arrest decision, and in the meantime the appellant has gone out twice a day to prayers during the month of Ramadan, and there is no report of his having breached that trust. I have taken into account the danger that he presents, as can be seen prima facie from the offence, but also the approach that was adopted in his case during Ramadan, and also, as aforesaid, in other cases. I have decided at this time to allow a two-stage arrangement: starting this Friday, 9 December 2005, the appellant may go to pray each Friday at the mosque. In so far as the arrangement is observed and there are no other breaches, and if he is still under house arrest, then from the beginning of March 2006 he may go to one prayer each day, which is the morning prayer between the hours of five and six in the morning, on each day apart from Friday, when he may go to the midday prayer. The mosque will be the closest one to the place of the house arrest; the appellant will be accompanied on each occasion by the supervisor, he will go directly to the mosque and will return directly from the prayer without delay. The guarantees that applied during the month of Ramadan when he was allowed out to go to pray will also apply here and compliance with them will be ensured. The other conditions of the house arrest will remain unchanged.

 

Given today, 5 Kislev 5765 (6 December 2005).