Shabbat

High Court of Justice

FH HCJ 3660/17

Before:                                                 Honorable President M. Naor

                                                                Honorable Justice E. Hayut

                                                                Honorable Justice Y. Danziger    

                                                                Honorable Justice N. Hendel

                                                                Honorable Justice N. Sohlberg

                                                                Honorable Justice D. Barak-Erez

 

The Petitioners:                                1. General Association of Merchants and Self-Employed Persons

                                                                2. Noam Knaani

                                                                3. Avraham Levi

                                                                4. Morris Bremer

                                                                5. Yaakov Bremer

                                                                6. Adi Wizaum

                                                                7. Motti Maoz

                                                                8. David Chaimov

                                                                9. Eliyahu Miller

                                                                10. Isaac Alkoser

                                                                11. Pinhas Tsalik

 

The Respondents:                           1. Minister of Interior

                                                                2. Minister of Economy

                                                                3. Ministry of Economy

                                                                4. Tel Aviv-Jaffa Municipality

                                                                5. Mayor of Tel Aviv-Jaffa

                                                                6.  Otzar Marine Industries Ltd.

                                                                7. The Tel Aviv-Jaffa Economic Development Authority Ltd.

                                                                8. Israel Land Authority

                                                                9. Gindi Holdings Development 2009 Ltd.

                                                                10. Yaakov Bruchim (formal)

 

Further hearing of the High Court of Justice’s verdict in HCJ 6322/14, HCJ 996/15, HCJ 2998/15, and HCJ 4558/15 (unpublished) rendered on April 19, 2017 by the Honorable President M. Naor and the Honorable Justices A. Hayut and D. Barak-Erez

Date of Hearing: 15 Av 5777 (August 8, 2017)

Representing Petitioner 1:                            Adv. David Shuv; Adv. Uriel Boni

Representing Petitioner 2-11:                     Adv. Ivri Feingold

Representing Respondents 1-3 and 8:      Adv. Dana Briskman; Adv. Ron Rosenberg

Representing Respondents 4-5 and 7:      Adv. Yisrael Leshem; Adv. Yochi Kadir-Paz; Adv. Idan Liron

Representing Respondent 6:                       Adv. Yehezkel Reinhertz; Adv. Avinoam Peretz

 

Verdict

President M. Naor:

At the heart of this further hearing before us is the character of the Sabbath in the city of Tel Aviv-Jaffa. The background for the proceeding is two amendments to the By-Law of Tel Aviv-Jaffa (Opening and Closing Shops), 5740-1980 (hereinafter together: the Amendments), which address opening businesses on the Sabbath in the city of Tel Aviv-Jaffa.

Background of the Further Hearing

1. The By-Law of Tel Aviv-Jaffa (Opening and Closing Shops), 5740-1980 (hereinafter: the By-Law) provides that businesses should not be opened on the Sabbath and Jewish holidays, with limited exceptions (see section 2 of the By-Law). The enforcement of the By-Law was the focus of a judgment by this court in App Adm Pet 2469/12 Bremer  v. Tel Aviv-Jaffa Municipality (unpublished) (June 25, 2013) (hereinafter: the Bremer  case). In that case, the court accepted the position of the appellants there (who are also the petitioners before us) that the enforcement policy then in place -  which included imposing fines but refraining from issuing closure orders – is not effective. The court therefore remanded the issue to the municipality to exercise its discretion and make a decision about how to exercise the powers granted to it to enforce the By-Law. It was also held that if the municipality wants to change its policy regarding opening businesses on the Sabbath, it cannot do so by way of non-enforcement but rather should amend the By-Law as required by law.

1. [sic] As a result of the decision in the Bremer case, in 2014 the city council approved an amendment to the By-Law (By-Law of Tel Aviv-Jaffa (Opening and Closing Shops) (Amendment No. 1), 5774-2014 (hereinafter: Amendment No. 1). Amendment No. 1 basically permitted the opening of businesses on the Sabbath in three commercial sites, the opening of convenience stores in gas stations on the Sabbath and the opening of grocery stores. Then-Minister of Interior Gidon Saar used his authority under Section 258 of the Municipalities Ordinance [New Version] (hereinafter: the Ordinance) to approve most of the provisions of Amendment No. 1, but he invalidated the provision regarding opening grocery stores. Amendment No. 1, as approved, was published in Reshumot [official legislative reporter-trans.].
2. Thereafter, the city council approved an additional amendment to the By-Law (By-Law of Tel Aviv-Jaffa (Opening and Closing Shops) (Amendment No. 2), 5774-2014 (hereinafter: Amendment No. 2)). Amendment No. 2 addressed the opening of grocery stores on the Sabbath according to area and subject to various restrictions, including receiving a permit. Amendment No. 2 was submitted to Interior Minister Saar on August 13, 2014.  On October 7, 2014, using his authority under Section 258 of the Ordinance, the Minister of Interior ordered the publication of Amendment No. 2 to be delayed. About a month later, on November 3, 2014, Interior Minister Saar resigned from his position. From the time the decision was made to delay, and for two and a half years, no decision was made on the merits of Amendment No. 2. That was despite an agreement reached during legal proceedings and various developments, about which I will expand later.
3. These amendments were at the foundation of four petitions that were disposed of in the verdict that is the subject of the further hearing (HC 6322/14 General Association of Merchants and Self-Employed Persons v. Minister of Interior [unpublished] (April 19, 2017). In those petitions a number of claims were raised regarding the amendments. In brief, Petitioner 1 and Petitioners 2-11 (hereinafter: the merchants) and Respondent 9 (hereinafter: Gindi) raised a variety of claims about the lawfulness, reasonableness and proportionality of permitting businesses to open on the Sabbath. In opposition, Respondent 4 (hereinafter: the Municipality) petitioned against the Minister of Interior’s decision to delay the entering-into-force of Amendment No. 2. In the verdict that is the subject of the further hearing it was unanimously decided to accept the Municipality’s petition and to reject the petitions of the merchants and Gindi. Regarding the delay of Amendment No. 2, it was held that, in light of the long period of time that had passed since the decision to delay, the failure to make a decision on the merits should be seen as an unexplained decision to invalidate Amendment No. 2. The absence of an explanation imposed a burden on the state to prove that the decision to invalidate Amendment No. 2 was made lawfully, but the state did not provide a reason that it believed justified the invalidation. Given that state of affairs, the court invalidated the decision to invalidate Amendment No. 2. It was also held that using the amendments to permit businesses to open on the Sabbath is not per se a flawed decision in terms of authority or discretion.
4. The petitioners, who did not accept the result of the verdict, filed a motion for a further hearing, and on July 12, 2017, Deputy President (ret.) E. Rubinstein granted it. In his decision he explained:

 

“Do we have before us a rule in the sense of Section 30(b) of the Courts Law? In my opinion, the resulting state of affairs shows an answer in the affirmative. Indeed, sometimes there is uncertainty in cases like this […], and we are further dealing with a procedure in which restraint was exercised, but once the verdict was rendered against the background of a flaw in the conduct of the authority and with a

 

And later it was written:

“Irrespective of the result, the Sabbath, whose status in global Judaism needs no elaboration, deserves to have its case considered and clarified when all positions are before the Court, especially considering the broad implications, stakes and importance for others […]” (ibid, para. 12).

5. On August 8, 2017, we heard the parties’ oral arguments before this expanded panel. The disagreements between the parties can be distilled into two questions: The first question before us is the validity of Amendment No. 2, in light of the various transformations it underwent; A second question that arose is whether the amendments meet the standards of administrative law. These are the questions that need to be decided in the further hearing. I will address them in order.

 

The Validity of Amendment No. 2

        The Transformations of Amendment No. 2

6. The Municipality submitted Amendment No. 2 to the Minister of Interior for approval on August 13, 2014. About two months later, on October 7, 2014, Interior Minister Saar ordered a delay in publishing the amendment. In doing so, he exercised his power under Section 258 of the Ordinance, which says:

 

Approving and(a) Once the council approves a by-law,

Publishing By-Laws the mayor will sign it, and the

by-law will be published in Reshumot.

(b) A by-law will not be published as detailed in subsection (a) until six days have passed from the day the mayor brought the by-law to the attention of the Minister; If the Minister or his authorized representative announces that he does not oppose the by-law, the by-law will be published even before the end of this period.

(c) During the period specified in subsection (b), the Minister may order a delay in publishing the by-law, so long as he does not decide to do so without the Minister or his authorized representative having first detailed his reservations and given the mayor or his authorized representative an opportunity to raise claims against the delay in publishing the by-law.

(d) If the Minister delays the publication of a by-law as specified in subsection (c), he may do one of the following:

(1) Order a cancelation of the delay;

(2) Invalidate the by-law for reasons he will enumerate;

(3) Return the by-law with his comments to the council for reconsideration.

(e) If the Minister cancels the order to delay publication of the by-law, the by-law will be published in Reshumot.

 

The text of the section teaches us, therefore, that the decision to delay is not the end of the story. Subsequent to it, there must be a decision on the merits – cancelling the delay and publishing the by-law, invalidating the by-law or returning it to the city council with comments. A decision of this kind was not forthcoming, and in the meantime the petitions that are the subject of the further hearing were scheduled for oral hearings before this court.

7. The hearing took place on July 6, 2015, and at its conclusion it was decided:

“1. After some back-and-forth, the Tel Aviv municipality […] and the state agreed to the following:

1. The Municipality will not insist on chapter 4 of its petition [about delaying Amendment No. 2 – M.N.].
2. Within 7 days, the Municipality will submit answers to the questions that the Minister of Interior has posed regarding Amendment No. 2 to the by-law, without prejudice to the claims that the Minister of Interior acted without authority on the substance of the issue.
3. Ninety days thereafter (the court’s recess days are included in the count), the Minister of Interior will issue a decision regarding Amendment No. 2.
4. The Municipality and the other parties reserve their right to raise claims regarding the decision that will be issued.

2. The Minister of Interior’s decision will be submitted to the court and all the parties to the petitions listed in the heading within 100 days from today, counting the days of the court recess.
3. We take note of the fact that the other petitions have yet to be considered, and the parties’ arguments will be heard at a time that will be determined” (emphases added – M.N.).

8. On October 13, 2015, after the one hundred days set in the above-mentioned decision had passed, the state informed the court that then-Interior Minister Silvan Shalom, who had begun to examine the issue, discovered a conflict of interest that prevented him from making a decision, and that therefore the issue was referred for a governmental decision about transferring the authority to another minister. Two months later, on December 14, 2015, the state informed the court that the government had decided, on December 13, 2015, that “Within 4 weeks a decision will be made regarding the appropriate mechanism for exercising the authority of the Minister of Interior.” On December 24, 2015, the state made an additional filing, informing the court that the authority of the Minister of Interior had been transferred to the government, and that a committee of directors-general had been established to discuss the issue and make recommendations to the government within 180 days.
9. On March 28, 2016, an additional hearing was held, and the court subsequently issued orders-nisi in the petitions. Seven months after the committee of directors-general was established, on August 4, 2016, the state updated that the committee had completed its discussions, and that the deadline for submitting its recommendations had been extended by 45 days. Approximately five months later, on January 17, 2017, the state informed the court that the government had held a discussion about Amendment No. 2 in its meeting on January 8, 2017, during which the director-general of the prime minister’s office clarified that the committee of directors-general had not arrived at a single agreed-upon recommendation. The committee presented the government with a “range of possibilities” that arose in its discussions, which spanned the gamut between approving Amendment No. 2 as written to completely invalidating it. At the end of the discussion, the government decided to delay a decision on the matter, pending a decision on merging the cities of Tel Aviv-Jaffa and Bat-Yam – a process about which, at the time, not even a first decision had been made.
10. On January 23, 2017, a third hearing was held in the petitions, and at its conclusion they were referred to the court for a decision. A week later, on February 3, 2017, the state informed the court that on January 29, 2017, the government decided to restore the authority to the current Minister of Interior, Aryeh Deri, and that he intended to make a decision within sixty days. From that update and until the issuing of the judgment that is the subject of the further hearing, two and a half months later, no additional update from the state was received. In the verdict rendered on April 19, 2017, it was held that, in light of the long time that had passed – a duration of two and a half years – the failure to make a decision on the merits should be viewed as a decision to invalidate Amendment No. 2 without explanations. Because the state did not meet its burden of providing a reason that would justify such invalidation, the court held that the decision to invalidate Amendment No. 2 was invalid.
11. On May 3, 2017, the petitioners filed a motion for a further hearing. They attached to that motion a document signed by Interior Minister Deri, dated April 9, 2017. That document shows that the Minister of Interior decided to invalidate Amendment No. 2. The reason was his determination that consideration for the autonomy of the Municipality did not justify the scope of the infringement of Amendment No. 2 on the social and religious-national values that form the basis of making the Sabbath a national holiday (hereinafter: the Interior Minister’s position). The Interior Minister’s position was not submitted to the Court prior to the rendering of the verdict, and it was not submitted to the Municipality. The verdict was therefore rendered in the absence of the Interior Minister’s position being placed before the Court. In any event, we were not informed that the Minister had reached a decision.

In its response of June 23, 2017 to the motion for a further hearing, the state clarified that the Minister of Interior first informed the Attorney General of his intention to invalidate Amendment No. 2 on April 18, 2017. At the request of the Attorney General, an unsigned copy of the above-mentioned document was submitted for his review on April 19, 2017, a few hours before the verdict was rendered. Under these circumstances, “the state believed that it would have been inappropriate to submit the Minister of Interior’s decision to the Tel Aviv Municipality at that time” (ibid, para. 47).

12. The question of the status of the Interior Minister’s position is at the heart of the central dispute between the parties to the further hearing. The parties also disagree regarding the lawfulness and reasonableness of invalidating Amendment No. 2 on the merits.

 

The Parties’ Claims Regarding Amendment No. 2 and the Interior Minister’s Position

 

13. The merchants claim that the Interior Minister’s position is the sole starting point for the further hearing. That position, they argue, reflects the consistent position of the executive branch and the legislative branch, and therefore it should be determinative. The Merchants also argued that, on the merits, there is no cause for intervening in the Interior Minister’s position, which takes into consideration all the ramifications of Amendment No. 2 and reflects a clear, values-based decision on a complex and sensitive issue.
14. In contrast, the state argued that the current proceeding is inappropriate for evaluating the lawfulness of the Interior Minister’s position. In its opinion, that position was not reviewed in the verdict that is the subject of the further hearing, and given the unique character of this proceeding, it would be inappropriate to review the position at this stage. In its argument summary, the state did not address the Interior Minister’s position on the merits, but in response to our questions during the oral hearing, the position of the Attorney General was submitted using the following words:

“The Interior Minister’s decision indeed raises significant legal difficulties, primarily given the extent of the intervention that the central government may exercise into the autonomy of the local authority. Having said that, the decision does not rise to the level of extreme unreasonableness, and that is once we consider that, under the unique circumstances of this case, as a practical matter, the result of the decision is to accommodate the will of the local authority to a certain extent by opening the three sites, convenience stores, and shops in Jaffa on the Sabbath. The Attorney General believes that, were the result of the Minister of Interior’s decision to be that no shop would be open and there would be no accommodation of the will of the residents, then the issue would reach the level of extreme unreasonableness” (Transcript of August 8, 2017 hearing, p. 28, lines 18-24).

 

Having said that, the state repeated its position in principle that this is not the appropriate stage at which to consider the lawfulness of the Interior Ministry’s position (See: ibid, line 25). In his argument summary, filed pursuant to my decision of July 31, 2017, the Minister of Interior argued that it would be proper to rule on the merits of his position, considering the importance of the issue in principle.

15. The Municipality claimed that it would be inappropriate to rule on the Interior Minister’s position at the current stage of the proceeding. The Municipality also claimed that the Interior Minister’s position, given its timing, does not justify deviating from the finding in the verdict that is the subject of the further hearing, namely that the state’s conduct is defective due to laches that are so extreme, they turn the delay into an unexplained refusal. In any event, according to the Municipality, the Minister of Interior’s authority to invalidate the amendment expired a long time ago. On the merits, the Municipality claimed that the Interior Minister’s position was based on extraneous considerations and suffers from extreme unreasonableness.

The Validity of Amendment No. 2 – Discussion and Resolution

16. Does the Interior Minister’s position have consequences for the validity of Amendment No. 2? In my opinion, the answer is no. The state is correct in its argument that the current proceeding is inappropriate for evaluating the lawfulness and reasonableness of the Interior Minister’s position, which was not brought before the panel in the proceeding that is the subject of the further hearing. The procedure of a further hearing is intended for clarifying a rule that was decided in a verdict, and not for discussing what the verdict does not contain (see: FH Civ Haran v. Charitable Trust Foundation of the Late Gavrialovich [unpublished] (September 15, 2010); FH Civ 8184/13 Dabah v. State of Israel [unpublished] (May 8, 2014); FH Civ 1075/14 Keren Hayesod – United Israel Appeal v. Jewish National Fund via the Israel Land Administration [unpublished] (July 15, 2014); FH Crim 6876/14 Doe v. State of Israel [unpublished] (December 17, 2014); FH HCJ 360/15 Hamoked: Center for the Defence of the Individual V. Minister of Defense [unpublished] (November 12, 2015). The Interior Minister’s position was not submitted to the Court in the proceeding that is the subject of the further hearing. The parties to the case did not make arguments about it, and the Court did not give its opinion about it. There is therefore no room to consider it at this stage of the proceeding (See and compare FH 2/64 Koenigshofer v. Humphert, 18(3) PD 377, 383 (1964); See also my opinion in FH Civ 3993/07 Jerusalem Tax Assessor 3 v. Ikafood Ltd., 65(1) PD 238, 320-324 (2011)).
17. Indeed, “You can’t turn back the clock” (FH 3/58 Finance Minister v. Freight and Container Ships Ltd., 12 PD 1849, 1854 (1958); See also ibid, page 1852). That is particularly true when, as is in our case, the Municipality was not made aware of the Interior Minister’s position, and the position was not made public but rather remained buried in the Minister of Interior’s drawer, even though ten days passed between the time it was reached and the publication of the judgment (See and compare App Civ 5945/04 Jerusalem Tax Assessor 1 v. Sami [unpublished], para 10 of my judgment (April 22, 2007). The rule is that “Norms that have ramifications for the collective or for the rights of individuals must be made public, so that everyone can know what the law says […]. Law that is made public is binding law, it and not documents of whose existence individuals and the collective, all of them or some of them, are unaware” (App Civ 3213/97 Naker v. Herzliya Local Planning and Zoning Committee, 53(4) PD 625, 648 (1999); See also and compare App Civ 421/61 State of Israel v. Haus, 15 PD 2193, 2204-2205 (1961)).
18. Another reason not to deviate from the decision reached in the verdict regarding Amendment No. 2 is the timing in which the Minister of Interior’s position was received. It should be noted: the decision to delay the publication of a by-law is not a final decision. It must be followed by a decision on the merits (see art. 258(d) of the Ordinance). In my opinion, we don’t need to rule on the principled question of what is the precise time period in which a minister of interior, who has ordered delay of the publication of a by-law, must make a final decision on the merits of that ordinance, in order to determine that this particular decision came too late. I will explain.
19. In our case, Minister of Interior Gidon Saar made his decision to delay publication on October 7, 2014, during the sixty day period allotted in Article 258 of the Ordinance. Time passed, and no decision was made on the merids of the amendment. After about nine months, the parties reached an agreement in the context of litigation, which was validated by the court in its July 6, 2015 decision. According to the terms of that agreement, the minister of interior committed, as noted, to submit his decision to the court and the other parties “within 100 days from today” (ibid, emphasis added – M.N.). The deadline for making a decision on the merits of Amendment No. 2 was – according to the agreement – therefore October 16, 2015. That deadline passed. No decision on the merits was reached, and every few months, the state would issue an “update” to the court, saying that no decision had been reached (as enumerated in paragraphs 9-11). Despite repeated comments from the court to the effect that the executive branch is refusing to decide a question placed before it (see my decision of December 15, 2015 (“[As] we repeated and emphasized, the executive branch must made a decision”); Transcript of March 28, 2016 Hearing; Transcript of January 23, 2017 Hearing), the state acted as if it had all the time in the world. No additional agreement was reached by the parties, and none was requested in any event, and no judicial decision was issued to authorize deviating from the timeline set. The Minister of Interior’s Position, dated April 9, 2017, missed the deadline, therefore, by about a year and a half.

I don’t see a legal justification for intervening in the holding made in the decision that is the subject of the further hearing, namely that under the circumstances described, we are dealing with a refusal made without providing reasons (see paragraph 18 of the verdict and the sources cited therein). Based on what has been said thus far, the request for a further hearing should be rejected.

20. Having said that, and once Deputy President (ret.) E. Rubinstein decided that “the Sabbath deserves … to have its case considered and clarified when all positions are before the Court” (his decision of July 12, 2017), I see fit to address the merits of the Minister of Interior’s position, even though arguments for dismissal forestall that. Evaluating the merits of the Minister of Interior’s position leads to the same result, denying the request for an additional hearing. I will explain.
21. As noted, the Minister of Interior thought that Amendment No. 2 should be completely invalidated. To his way of thinking, the consideration that should be accorded to the local authority’s autonomy does not justify the “extent and the derivative meaning of the harm that Amendment No. 2 causes to socio-social and national religious values and purposes that are the basis of the designation of the Sabbath as a day of rest” (para. 59 of the Interior Minister’s position). In his introduction, the minister addressed the importance of the Sabbath in Jewish heritage:

“The Sabbath and its observance is [sic-trans.] a bedrock of the secret of the Jewish people’s existence. Sabbath observance is one of the commandments that the children of Israel were commanded to observe in the ten commandments […]. Numerous ideas in the foundations of the Jewish people’s belief are included in and derive from this commandment and its observance. As is known, the Sabbath was designated as a day of rest in the State of Israel from its very founding. Two purposes are at the heart of this weekly day of rest: a socio-social purpose and a national religious purpose, which are intertwined” (ibid, paras. 16-17).

The Minister of Interior believes that Amendment No. 2 significantly infringes on the social purpose of the day of rest. That is due to the competitive disadvantage it creates for small business owners which constitutes “harm to and thwarting of” their ability to exercise their right to a day of rest (ibid, para. 35), and due to the employment of workers who are “an interchangeable work force […] of weak socio-economic status” in businesses that would be permitted to open on the Sabbath (ibid, para. 41).

22. Additionally, The Minister of Interior thought that Amendment No. 2 significantly undermines the national-religious status of the Sabbath and the way the public sphere looks during the Sabbath. That is due to its deviation from the status quo, which allows places of entertainment to open, but prohibits purely business activity:

 

“Throughout the years, as per the status quo that represents broad national agreement regarding activities on the Sabbath, places of entertainment have been allowed to open […] but commercial activity and opening commercial establishments has not been permitted. The draft by-law put forward now proposes, for the first time, to allow pure, undeniably business activity throughout the city of Tel Aviv” (ibid, para. 45).

He believes that should not be allowed, especially considering the scope and size of the area where sales would take place and the fact that the amendment applies to businesses that do not sell food for immediate and urgent needs. Similarly, he thinks it would be wrong “to recognize the Tel Aviv Municipality’s claim that a “need” that can be recognized in order to justify undermining the purposes of the Sabbath is essentially just a need to satisfy the “will” of the residents, based merely on their preferring the convenience of a particular arrangement – and no more than that” (ibid, para. 51).  That is particularly true because, in his opinion, the will of the residents and the “habit” for which they are asking to open businesses “is the result of violations of the law and years in which it was not enforced” (ibid).

23. The Minister of Interior also stated that the arrangement that the municipality adopted risks becoming a model for other towns in Israel, and therefore Amendment No. 2 would trigger changes in the character of the Sabbath throughout Israel:

“Under these circumstances, the dam would burst and [the] opening of businesses on the Sabbath would risk turning into a breached vision throughout the country […]. Therefore, in essence, it is not a single by-law that hangs in the balance but rather the appearance of the Sabbath and its character, as a national, general matter, hang in the balance” (ibid, para. 58).

For that reason, he believes, “in the broad perspective granted the central government” (ibid, para. 57) emphasis eliminated – M.N.)) invalidating Amendment No. 2 is justified.

24. According to the State, although the Minister of Interior’s position “arouses significant legal difficulties,” it “does not reach the level of extreme unreasonableness.” I cannot accept that argument. The Minister of Interior’s position did not appropriately consider the uniquely autonomous status of the Municipality, and therefore is not reasonable. I will explain. Local autonomy, meaning “the direct connection of the local authority to the law, unmediated by other governmental authorities” (HCJ 3791/93 Mishlev v. Minister of Interior, 47(4) PD 126, 132 (1993) (hereinafter: the Mishlev case) is “the basic principle of local administration” (Itzhak Zamir, Hasamchut Haminhalit [Administrative Authority], Vol. 1 453 (2nd ed. 2010) (hereinafter: Zamir) (emphasis added – M.N.)).
25. If that is so, in exercising his authority under Article 258, the Minister of Interior should accord significant weight to local autonomy, as “those wielding authority from the central government should be guided by the need to act with respect toward the elected officials of the local authority – toward them and those who elected them – and to remember that the days of coercive paternalism have passed” (Mishlev case, p.131; See also: Zamir, pps. 451-453, 477;  FH HCJ 3201/96 Agriculture Minister v. Lod Valley Regional Council, 61(3) PD 661, 663 (1997); HCJ 2838/95 Greenberg v. Katzrin Local Council, 53(1) PD 1, 10-15 (1997); FH HCJ 1913/13 Muasi v. Minister of Interior, 52(2) PD 49, 66 (1998); HCJ 10104/04 Peace Now v. Supervisor of Jewish Towns in Judea and Samaria, 61(2) PD 193, 168 (2006); See also and compare: HCJ 4381/97 Meizlik v. Petah Tikva Local Planning and Zoning Council [unpublished], para. 57 of Justice E. Rubinstein’s judgment (December 29, 2009)). As was noted in a case similar to ours:

“With regard to the degree of intervention of the central government in the enactment of the bylaws, the Attorney-General’s position was that the power to disqualify bylaws that do not deal with issues that affect the central government or that extend beyond the boundaries of that local authority should be exercised in moderation. As a rule, the Minister of the Interior should not replace the discretion of the local authority with his discretion where the authority acted within its power and in a reasonable manner. The Minister of the Interior has no technical ability to consider in depth the considerations that guided the local authority and the factual basis that was used to enact the bylaw, nor is it right that he should do so” (HCJ 953/01 Solodkin v. Beit Shemesh Municipality, 58(5) PD 595, 606 (2004) (hereinafter: Solodkin case).

26. The Minister of Interior’s position in this case did not really take into consideration the autonomy of the Municipality. Indeed, the Minister of Interior clarified that he does not think the will of the city’s residents is adequate to justify any harm to the purposes of the Sabbath and to permit businesses to open. The Minister of Interior focused on the character of the Sabbath at the national level, without giving expression to the local character and the circumstances of Tel Aviv-Jaffa. His explanation was that if Amendment No. 2 were to be approved, “the dam would burst” and the arrangement that the Municipality adopted would become a model for other towns in Israel. I cannot accept this explanation. Legal standards should not be changed on basis of mere assumptions regarding potential consequences that the future may hold. Indeed, “Thus, while it may very well be that the slippery slope is indeed quite perilous, the slippery slope argument is by far more dangerous” HCJ 5016/96 Horev v. Transportation Minister, 51(4) PD 1, 74 (1997)). The infringement on the municipality’s autonomy is particularly problematic in this case, because local authorities in Israel were explicitly authorized to legislate by-laws that govern the opening of businesses on the Sabbath (See: Law to Amend the Municipalities Ordinance (No. 40), 5751-1990 (hereinafter: the Authorizing Law). One of the purposes at the foundation of the Authorizing Law is specifically that these issues should be regulated at the municipal, local level, and not at the national level.
27. This purpose is well-grounded in precedent. I noted as much in the Bremer case:

“If the nature of the city of Tel Aviv-Jaffa requires, in the opinion of its leaders who represent the population, not to close businesses such as those of the Respondents, on the Sabbath, the By-Law can be changed through the manner prescribed in the law […] The Attorney General stated that the Municipality is authorized to strike a balance "between the interest of preserving the nature of the Sabbath as a day of rest […] and making certain economic activity possible". However, in my opinion, the appropriate place for striking such a balance is in a Municipality decision whether to promulgate a by-law regarding the activity of businesses on the Sabbath and formulating the arrangements prescribed” (ibid, para. 52 of my opinion).

And in another case, President M. Shamgar ruled:

“Pursuant to the amendment to the Authorizing Law, which added paragraph (21) […] reasons related to religious tradition were authorized as relevant in enacting by-laws under paragraph 20 […]. Article 249(20) [of the Ordinance-M.N.] does not set mandatory guidance for the local authority but rather merely grants it power. That is understood, because we are talking about an authorizing provision whose application and method of implementation remain in the hands of the local authority” (HCJ 5073/91 Israel Theaters Ltd. v. Netanya Municipality, 57(3) PD 192, 207 (1993) (hereinafter: the Israel Theaters Case).

This court noted even before the Authorizing Law was enacted:

“This issue of opening and closing shops is inappropriate for national legislation. It should be regulated specifically at the local legislative level, because it is an issue which requires taking into consideration the make-up of the population of each place, its habits and ways of life and the character of that place” (Crim App 858/79 Lapid v. State of Israel, 34(3) PD 386, 391 (1980)).

Regarding another authorizing law, which addresses the sale of pork on the territory of a local authority, it has been established that:

“The purpose was therefore that the balance between the conflicting purposes — the considerations concerning the protection of religious and national sensibilities, on the one hand, and the consideration of individual liberty, on the other — would not be made on a national level, according to a principled balancing that the legislator determined. Instead, the purpose was to make a balancing at a local level. In this local balancing, the character of the authority and the changing particulars of each local authority would be taken into account. (Solodkin case, p. 610; See also: HCJ 163/57 Lubin v. Tel Aviv-Jaffa Municipality, 12 PD 1041, 1076 (1958)).

28. We should not mix things up. The authority to make the value judgment within the framework of the by-laws belongs to the Municipality, not to the Minister of Interior.  The Minister of Interior does not evaluate whether the decision is optimal, in his opinion, but rather whether it is within the zone of reasonableness. In that sense, in my opinion, the broad perspective given to the Minister of Interior was intended, for example, to ensure that the by-law that a particular local authority enacted does not create a negative externality for other local authorities (take for example a local authority that decides to bury its garbage on the outskirts of its borders, next to another city). Indeed, leaving the judgment in the hands of the municipality was intended to realize the principle of municipal autonomy. Beyond that, however, it was also intended to realize a central aspect of the Authorizing Law, namely tipping the scales in favor of local considerations, and no one is in a better position than the municipality to evaluate them. A decision by the Minister of Interior is intended to oversee the lawfulness of a decision by the Municipality, not to replace its discretion.
29.  Furthermore, the Minister of Interior’s position contradicts an additional central purpose at the foundation of the Authorizing Law – the balancing purpose. This purpose affects the scope of the Minister of Interior’s discretion pursuant to Article 258 of the Ordinance (See and compare: the Solodkin case, p. 621). The Minister of Interior’s position is sweeping in character, and it would prohibit opening any grocery store at all – and indeed any commercial establishment, except for a critical need – without reference to a city’s circumstances or the will of its residents. We might wonder: If the solution is so simple, why did I take more than two whole years to reach it? I will dare to say that the HCJ [High Court of Justice-trans.] is again being called upon to do the dirty work. After the HCJ does that dirty work, one can say, “It wasn’t me (the Minister) – it was the HCJ.”
30. In any event, the Minister of Interior’s position is inconsistent with the Authorizing Law, which relies entirely on a purpose of compromise and balancing (see: the Israel Theaters case, p. 207; the Bremer case, para. 52 of my opinion; See also and compare: the Solodkin case, p. 622). It is a balance between the conflicting rights within the circumstances of the particular case: the balance between freedom of religion, on the one hand, and freedom from religion, on the other; the balance between equality on the one hand, and freedom of occupation on the other. In my opinion, considering this purpose of the Authorizing Law, a sweeping position that lacks a balance reflecting the character of a city, the uniqueness of the different areas within it and the distances between them – is unreasonable.
31. I have thus reached the conclusion that, even if the Minister of Interior’s position had been submitted on time and considered on its merits, there would be no cause to deviate from what was decided in the verdict which is the subject of the further hearing determined regarding Amendment No. 2. Amendment No. 2, therefore, remains valid. The question remains whether Amendment No. 2, like Amendment No. 1, meet the standards of administrative law. I will now address that question.

The Amendments’ Compatibility with the Standards of Administrative Law

 

The Parties’ Arguments on the Amendments’ Compatibility with the Standards of Administrative Law

32. The merchants raised many arguments against the compatibility of the amendments with the standards of administrative law. Regarding authority, the merchants argued that the amendments constitute a primary arrangement that the Municipality is not authorized to regulate. That is especially the case, they argue, because the Authorizing Law only authorizes the Municipality to order the closing of places of entertainment and not the opening of businesses. The merchants also argued that the amendments contradict the Hours of Work and Rest Law, 5711-1951, which, they say, proscribes the opening of businesses on the Sabbath. Their claim is that the Hours of Work and Rest Law is on a higher normative plane, and therefore such contradiction negates the amendments. However, after we held oral hearings, and upon hearing our comments, the merchants withdrew that claim (see: Motion of August 31, 2017). Regarding discretion, the position of the merchants was that the amendments are unreasonable, because they contradict the status quo that reflects a decisive rejection of commerce on the Sabbath, in contrast to the activity of places of entertainment. The merchants also claimed that the amendments are unreasonable, both due to their broad implications – which, they argue, threaten to strip the laws regarding rest of their power – and also because they infringe on equality and encourage criminal activity.
33. Gindi also argued that the amendments are unreasonable, emphasizing claims it made in the proceeding that is the subject of the further hearing. It believes that the Municipality should be ordered to add the site, “Sarona Market”, which it owns, to the list of commercial sites where Amendment No. 1 permits businesses to open on the Sabbath. That is primarily because the decision not to include the site on the list was based on extraneous considerations, as the Municipality partially or completely owns the three sites which it permitted to open on the Sabbath.
34. The state and the Municipality argue that there is no cause to intervene in the court’s holding in the verdict that is the subject of the further hearing, namely that the amendments were enacted pursuant to lawful authority and that they do not deviate from the zone of reasonableness. The state also claims that there is no contradiction between enacting the amendments, which was done pursuant to the Authorizing Law, and the Hours of Work and Rest Law, because these legal provisions address different issues. This approach, the state argued, is consistent with this court’s jurisprudence and with interpretive considerations.
35. The Minister of Interior’s position, which was separately attached to the state’s argument summary (see: my decision of July 31, 2017), was different. Like the merchants, he believes that Article 9A of the Hours of Work and Rest Law proscribes the very opening of commercial businesses on the Sabbath. Therefore, he argues, the Authorizing Law cannot supersede this provision, and it does not authorize the Municipality to permit opening businesses on the Sabbath.

 

The Issue of Authority – Discussion and Ruling

 

36. The merchants’ arguments regarding the Municipality’s lack of authority to enact the amendments are not new. These claims were raised and rejected in the verdict that is the subject of the further hearing. I see no reason to deviate from that ruling. First, the merchants argued that the Authorizing Law does not authorize the Municipality to permit opening businesses on the Sabbath, because it only addresses the closure of places of entertainment. That claim must be rejected.
37. The Authorizing Law came about due to the doubt that arose regarding the authority of local authorities to enact, in their by-laws, provisions that, for religious reasons, proscribe opening places of entertainment on the Sabbath (see: Crim Case (Jerusalem Magistrate) 3471/87 State of Israel v. Kaplan [unpublished] 5748(2) PM 26 (1987) (hereinafter: the Kaplan case). Indeed, the Authorizing Law was intended to remove that doubt and to guarantee the continued validity of the existing by-laws. However, its purpose, as defined, was “to grant local authorities the authority to regulate the prohibition on opening businesses on days of rest,” including for reasons related to religious tradition (Explanatory Notes of the Local Authorities Bill (Prohibition on Opening and Closing Businesses on Days of Rest), 5748-1988, H.K. 134 (emphasis added – M.N.); See also the Israel Theaters case, p. 2017; the Bremer case, paras. 27-28 of my opinion). In any event, the text of the Authorizing Law is clear.
38. The Authorizing Law explicitly authorizes the local authorities in Israel to enact provisions in their by-laws that address opening businesses in their domains on the Sabbath. The Authorizing Law added, inter alia, Article 249(21) to the Ordinance, which says that:

 

A municipality may use its authority pursuant to paragraph (2) within its jurisdiction or in part of its jurisdiction regarding days of rest, taking into consideration reasons of religious tradition and regarding the day of Tisha Ba’av […];

The above-reference article explicitly refers to Article 249(21), which addresses “the opening and closing of shops”:

 

•  

and Closingrestaurants, coffee shops, tea houses, drinking establishments,

•  

 

I cannot accept the argument that a law that authorized, inter alia, “regulating the opening […] of shops and factories […]” was intended to apply only to places of entertainment or only to regulating the closure of businesses. That argument is incompatible with the clear text of the law (for more on the municipality’s authority to permit opening businesses on the Sabbath see: the Bremer case, para. 52 of my opinion). 

39. The merchants and the Minister of Interior raised an additional argument on the issue of authority, namely that there is a contradiction between the amendments and the Hours of Work and Rest Law. According to that argument, the Hours of Work and Rest Law prohibits opening businesses on the Sabbath, and therefore the By-Law cannot permit them to open. That argument should also be rejected. Indeed, as the state noted, we are dealing with two sets of laws that operate on different planes and do not contradict each other. To the contrary: they complement each other. Business owners whose activity on the Sabbath has been approved within the framework of the amendments are still subject to the provisions of the Hours of Work and Rest Law, and obviously they must abide by them. I do not accept the merchants’ position that the Hours of Work and Rest Law contains a sweeping prohibition against opening businesses on the Sabbath. In my opinion, an interpretation of that kind is inconsistent with the text and purpose of the law.
40. Indeed, during the oral hearing, the merchants argued that the procedure before us is inappropriate for ruling on the interpretation of Article 9A of the Hours of Work and Rest Law. In addition, a week after the hearing (on August 13, 2017), the merchants filed a motion to supplement their arguments on that issue. In our decision of August 14, 2017, we denied that motion. Despite their motion being denied, on August 31, 2017, the merchants submitted a long line of documents on the subject, attached to an “urgent update and motion” from them. In that framework, they moved for the court “to refrain from addressing the question of the meaning of the prohibition set in Article 9A of the law” and stated that they wanted to relinquish their argument about the contradiction between the amendments and the Hours of Work and Rest Law. That motion was also denied (see our decision of August 31, 2017). We must therefore rule on the issue of the correct interpretation of Article 9A of the Hours of Work and Rest Law. That is especially true, given Deputy President (ret.) E. Rubinstein’s ruling that “the further hearing will apply to the entire verdict” (para. 12 of his decision of July 12, 2017), and given that the above-stated issue was placed at our doorstep by the merchants in the framework of the procedure that is the subject of the further hearing, and in any event was raised by the Minister of Interior in the summary of argument submitted on his behalf.
41. The Hours of Work and Rest Law prohibits employment and work on the weekly day of rest. It says:

Prohibition 9. An employee shall not be employed during his weekly rest, unless

Of Employment such employment has been permitted under section 12.

During Weekly

•  

 

• On the prescribed days of rest […] the owner of a workshop of

Of Work [sic] industrial factory shall not work in his workshop or industrial

During Weekly factory, and the owners [sic] of a shop shall not do business in his

Restshop.

(b) On the aforesaid days of rest, a member of a cooperative society

shall not work in a workshop or industrial undertaking of the society; a

member of an agricultural cooperative society shall not work in a

workshop or industrial undertaking of the society unless the work is

connected with the services necessary for its farm […]

 

Permission 12. (a) The Minister of Labor and Social Affairs may permit an

For employee to be employed during all or any of the hours of weekly

Employment rest, if he is satisfied that interruption of work for all or part of the

On Weeklyweekly rest is likely to prejudice the defense of the State or the

Restsecurity of persons or property or seriously to prejudice the economy, or a process of work or the supply of services which, in the opinion of the Minister of Labor and Social Affairs, are essential to the public or part thereof.

 

 

42. My opinion is that the Hours of Work and Rest Law does not address the question of opening or closing businesses on the day of rest, but rather with the personnel question of work on the day of rest.  I draw that conclusion from the text of the clauses and their captions, which use the words “employment” or “work” (see: Aharon Barak, Parshanut Tachlitit Bamishpat [Purposive Interpretation in Law], 401-402 (2003) (hereinafter: Barak)). Similarly, from reading the explanatory notes for Amendment No. 1 of the law it is clear that Article 9A, which was added at the same time, was not intended to serve as a provision that requires closing businesses, but rather was intended to expand the application of the prohibition of employment (see: ibid, p. 407). According to the explanatory notes of the amendment:

 

“The Hours of Work and Rest Law, 5711-1951 currently applies to salaried employees only. The suggested amendment would also subject factory owners, members of a cooperative society and shop owners to the provisions regarding days of rest, with some caveats” (Explanatory Notes of the proposed Hours of Work and Rest Law (Amendment), 5727-1966 (1966, H.H. 136).

 

This approach is supported by the fact that we are dealing with a law that infringes on the constitutional right to freedom of occupation (see: HCJ 5026/04 Design 22- Shark Deluxe Furniture Ltd. v. Director of Sabbath Work Permits Department – Ministry of Labor and Social Affairs, 60(1) PD 38, 51 (2005) (hereinafter: the Design 22 case)) and that carries criminal sanctions (see: art. 26 of the Hours of Work and Rest Law). These reasons also lead to the conclusion that the appropriate interpretation is a narrow interpretation (see: Barak, p. 425).

43. My conclusion that the Hours of Work and Rest Law does not create a sweeping prohibition on opening businesses on the Sabbath is also compatible with precedent regarding the Hours of Work and Rest Law, which held that it does not contain “a general provision about closing places on days of rest” (the Israel Theaters case, p. 206 (emphasis added – M.N.); See also: the Design 22 case, p. 63). In any event, let it be clear that the amendments were enacted pursuant to the Authorizing Law, and it is what authorizes the Municipality to permit businesses to open on the day of rest (see para. 39 above). If that is so, even if a contradiction were to exist, it would be a contradiction between the Authorizing Law and the Hours of Work and Rest Law, meaning between norms that are on the same plane. Under the non-interpretive standards we use (see: Barak, p. 117), the Authorizing Law would prevail as a law enacted subsequent to the Hours of Work and Rest Law (lex posterior derogate priori), and in any event it is a more specific law that grants power to the local authorities in Israel in a targeted way, in contrast to the generality of the Hours of Work and Rest Law (lex specialis derogate generali).
44. In passing, I note that on the issue of the interpretation of the Hours of Work and Rest Law, as well as on additional issues that arose, we were presented with the position of Minister of Interior Deri that was, as noted, different from the state’s position. In the oral hearing before us, and in their response of August 20, 2017, the merchants argued that we should have allowed the Minister of Interior to present his position separately from the state. I reject that argument. According to the case law, “the position of the authorities (as opposed to the personal opinion of those holding office within them) on questions of law is determined, as an institutional matter, by the Attorney General” (HCJ 320/96 Garman v. Herzliya City Council, 52(2) 222, 239 (1998); See also: HCJ 4247/97 Meretz Party in Jerusalem City Council v. Minister of Religious Affairs, 52(5) PD 241, 277 (1998); HCJ 3094/93 Movement for Quality Government in Israel v. Government of Israel, 47(5) PD 404, 425 (1993); But compare: HCJ 6494/14 Gini v. Chief Rabbinate [unpublished], paras. 21-26 of the opinion of my colleague, Justice N. Sohlberg (June 6, 2016); But see also: ibid, paragraph D of the opinion of Deputy President E. Rubinstein; and also HCJ 6017/10 Israel Union for Environmental Defense v. Minister of National Infrastructure [unpublished], paragraph G of the opinion of Justice E. Rubinstein (July 3, 2012).

Indeed, the personal position of Minister of Interior Deri was different from the state’s position. The Attorney General agreed to bring it to our attention. In doing so, he acted within the scope of his authority. But that is not the position of the state, which is the litigant before us. The state’s position – as was presented before us and as should be presented before us – is the one that is decided by the Attorney General (See: HCJ 4267/93 Amitai – Citizens for Good Governance and Integrity v. Prime Minister of Israel, 47(5) PD 441, 473 (1993); See and compare also: Solodkin case, p. 607).

45. I have therefore reached the conclusion that the Municipality did not exceed its authority when it enacted the amendments. However, as is known, authority is different from discretion. A number of arguments were raised regarding discretion. I will now evaluate them.

 

Issue of Discretion – Discussion and Ruling

46. In the verdict that is the subject of the further hearing, it was held that the amendments are within the zone of proportionality within which the Municipality must operate. I do not see a cause for deviating from that holding, either. First, regarding Gindi’s claims that extraneous considerations influenced the decision not to include the site it owns on the list of sites in Amendment No. 1, because Gindi is a respondent, I doubt that it is possible to grant its motion for a remedy. In any event, in my opinion, the relevant considerations that the Municipality raised, the most important of which is the proximity to residential areas, suffice to preclude intervention in the By-Law based on Gindi’s arguments. Additionally, the merchants also raised a long line of arguments which, in their opinion, show that the amendments are not reasonable and not proportional.
47. These arguments were presented by the merchants in the proceeding that is the subject of the further hearing. Inter alia, they repeatedly referred to documents they submitted in the procedure that is the subject of the further hearing, which included various statements that the mayor made on various occasions. I do not think that the procedure of a further hearing is the appropriate framework for reconsidering facts and arguments that were already presented and decided upon (See: FH 6/58 Mann v. Ayun, 12 PD 109, 112 (1958); FH Crim 5567/00 Deri v. State of Israel, 54(3) PD 601, 613 (2000); FH Crim 2334/09 Perry v. State of Israel [unpublished], para. 34 of the opinion of Justice A. Procaccia (ret.) (May 23, 2011)). A further hearing is not intended to facilitate arguments against the result of a particular proceeding by re-arguing the case before an expanded panel that exercises judicial review of the verdict. Instead, it focuses on the legal aspect. The procedure of a further hearing revolves around the legal precedent that was set in the verdict (See: FH 3379/91 Caspi v. State of Israel [unpublished] (August 15, 1991); FH Civ 1075/15 Blum v. Anglo Saxon – Asset Agency (Israel-1992) Ltd. [unpublished], para. 18 of my opinion (March 8, 2015)).
48. At the legal level, my opinion is that the amendments are within the zone of discretion that the Authorizing Law granted to the Municipality. The merchants painted a gloomy picture of the amendments wreaking serious harm to their rights to equality and freedom of religion. It is true that the amendments violate the merchants’ rights and also the rights of others, a violation which, in my opinion, is beyond de minimus. In this context, the violation stems from both the opening of commercial establishments on the Sabbath as well as opening places of entertainment, and it also affects the social purpose and the national purpose at the heart of the designation of the Sabbath as a day of rest. In no way do I minimize this violation. However, the review does not end once a rights violation has been found. On the other side are the other rights that the amendments protect, including freedom of occupation and freedom of conscience. The heart of the review is the balance between the conflicting rights. The balance does not favor one worldview over another. It does not detract, not even a whit, from the status and importance of the Sabbath as national property of the Jewish people and as one of the values of the State of Israel as a Jewish and democratic state, as Ahad Ha’am said: “More than the Jewish people kept the Sabbath, the Sabbath kept them.” However, balance means letting a thousand flowers bloom. It means that, in addition to protecting the unique character of the Sabbath, we should also allow each individual to design his Sabbath as he wishes and according to his beliefs and to fill it with content as he sees fit. To borrow the words of Zelda, “To light candles in all the worlds – that is the Sabbath” (Zelda, “Sabbath and Weekday”). There is a reason the legislator saw fit to task the local authority with conducting this balance: so that the balance point it chooses will reflect the unique character of each city, the extent of communal life within it and the potential practical solutions that characterize its circumstances. Indeed, when the Sabbath begins, the city is draped in celebration, but the garment draping one city is different from the garment draping another.
49. The balancing with which the local authority is tasked is not simple, but it is crucial for maintaining communal life in a diverse society like ours. Communal life is not “all or nothing” but rather is based on tolerance for a divergent opinion, mutual respect and mutual compromise. Communal life is not “black and white” but rather a spectrum. It is responsive to the recognition that human beings are free creatures who design their life narratives, but also to the recognition that they do so within the framework of society and not on a desert island. It is based on the understand that each of us bears responsibility for society as a whole, but that does not mean giving up on fundamental components of our identity or the uniqueness of each of us. It is not a perspective of “I won’t sign on to desecrating the Sabbath” but rather recognition of the indispensability of the perspective, “Live and let live”.
50. In the case before us, a review of the amendments, in my opinion, points to the fact that they were enacted in order to achieve this balance. The amendments were designed to reflect a unique balance point that is appropriate for the city of Tel Aviv, taking into consideration the status of the Sabbath, the composition of the population in each neighborhood, its way of life and the nature of the city. Amendment No. 1 permits opening businesses in a very limited number of clearly delimited commercial sites that are disconnected from residential areas. Amendment No. 2 permits opening a limited number of grocery stores according to geographic location, in a way that considers the character of each area. The opening is subject to various restrictions, first and foremost the need to obtain a permit. Ultimately, in our case, we are talking about opening a limited number of businesses that constitute a tiny fraction of the number of businesses operating in the city during the week, and that also influences the proportionality of the measure. The balancing point chosen facilitates observing the unique character of the Sabbath and does not significantly change the look of the city, considering the existing normative situation. I am not saying this framework is optimal. There may be other frameworks that are also within the zone of proportionality. I am not even saying that this framework should or could be adopted in other cities. My ruling can be summarized as follows: the proposed amendments are within the zone of proportionality within which the Municipality operates, and there is no place to intervene in them.

 

Conclusion

51. Therefore, if my opinion prevails, the motion for a further hearing is denied. Beyond what the law requires, and despite what is written in paragraph 41 [para. 40-trans.], no court costs will be imposed.

 

After These Words

52. After writing these words, I read the opinions of my colleagues, Justices N. Hendel and N. Sohlberg. My position has not changed, but I feel I must add the following brief words:
53. My colleague, Justice Sohlberg, commented that I favored “reasonableness above authority”, because, in his opinion, I focused on the question of the reasonableness of the Minister of Interior’s position and not on the question of the Municipality’s authority to enact the amendments to the By-Law (see para. 1 of his opinion). Indeed, as I noted, “authority is different from discretion (above, para. 46 [para. 45- trans.]) – but these are two stages of the review of the same administrative decision. In our case, as noted, the Minister of Interior’s position was that Amendment No. 2 should be invalidated. What needed to be reviewed was his authority to do so (and there was no dispute that the authority exists pursuant to Article 258 of the Ordinance, and therefore there was no reason to expand on that). At the second stage, the reasonableness of his exercise of discretion must be evaluated. A similar evaluation is required for the passage of the amendments by the Municipality: First, we must ask if the enactment of the amendments was done with the proper authority (see paras. 37-43 above [paras. 36-42-trans.]) and then the question arises whether there were flaws in the exercise of judgment (see paras. 47-51 above [paras. 46-50-trans.]). After that evaluation was completed, my conclusion regarding the authority of the Municipality to enact the amendments was different from that of my colleague Justice Sohlberg.
54. This is not the place to restate all the reasons that formed the basis of my ruling (see paras. 37-39 above [paras. 36-38-trans.] regarding the Authorizing Law and paras. 40-44 [paras. 39-43-trans.] regarding the Hours of Work and Rest Law), but I will note that, in my opinion, the Authorizing Law specifically granted the local authorities in Israel the authority to regulate the opening and closing of businesses in their jurisdictions on the Sabbath, using by-laws. That is clear from the text of the law as well as from its legislative history (see: KP 12(3) 1192-1193 (5751) (U. Lynn (Chair of the Constitution, Law and Justice Committee)), and compare the wording of the bill in its first reading with the wording in the second and third readings). I think there is no dispute between me and my colleagues, Justice Hendel and Justice Sohlberg, about that.  However, our opinions diverge regarding the Hours of Work and Rest Law. In my opinion, as noted, it does not articulate a sweeping prohibition on all business activity on the Sabbath, and they disagree with that. I think the position of my colleagues does not reflect the full range of relevant sources regarding the purpose of the legislation (as noted, I will not repeat my explanation, but see paras. 41-43 above [paras. 40-42-trans.], and see also the comprehensive and clear opinion of my colleague, D. Barak-Erez at paras. 4-25), and especially the way the law was understood and implemented in the nearly half century that has passed since it was enacted, both by this court (see: the Israel Theaters case, p. 206; the Design 22 case, pps. 44, 46, 63), as well as by the administrative authority in charge of implementing it. In its argument summary, the state clarified that “the interpretation that has been determined, that Article 9A applies only to the personnel aspect of work during days of rest, is compatible with long-standing enforcement policy and the interpretation according to which the Ministry of Labor (in its various forms) operates” (ibid, para. 17).
55. In my opinion, there is no contradiction between the Authorizing Law and the Hours of Work and Rest Law. Regarding this determination of mine, my colleague Justice Sohlberg wondered, “What is the point of the Authorizing Law?” (para. 16 of his opinion), noting that if the Hours of Work and Rest Law does not include a sweeping prohibition on opening businesses on the Sabbath, then the point of departure is that their opening is permitted. However, that, in my understanding, is exactly the justification at the heart of the Authorizing Law. It is a basic principle that one does not prevent a citizen from making a living “and one doesn’t get involved in this life in a purely administrative way” (HCJ 144/50 Shaiv v. Minister of Defense, 5 PD 399, 407 (1951)). It is true that the administrative agency has no authority other than that which the law grants it: “If an agency professes to deviate from the domain delimited, it leaves the domain recognized by law, and in that sense, its actions are null and void” (Baruch Bracha, Mishpat Minhali [Administrative Law], Vol. I 35 (1987); See als: Zamir, p. 73; Dafna Barak-Erez, Mishpat Minhali [Administrative Law], Vol. I 97 (2010) (hereinafter: Barak-Erez). As I noted, the Authorizing Law was enacted because of the doubt that arose regarding the authority of local authorities to enact provisions in their by-laws regarding prohibitions on opening businesses on the Sabbath (see para. 38 above [para. 37-trans.]; see and compare a similar authorizing law addressing the sale of pork; Solodkin case, pp. 602, 607-608). The Authorizing Law was enacted and granted the Municipality the authority “to regulate the opening and closing of shops, and workshops […]” on “days of rest, taking into consideration reasons of religious tradition”.   Accordingly, President M. Shamgar ruled in the Israel Theaters case that “Article 249(20) does not set mandatory guidance for the local authority but rather merely grants it power. That is understood, because we are talking about an authorizing provision whose application and method of implementation remain in the hands of the local authority” (ibid, p. 207); In accordance with that, I ruled at the time, in the Bremer case, that if the municipality believes that the character of a city justifies permitting certain businesses to be open on the Sabbath, it should amend the by-law (See: ibid, para. 52), and as a result the Municipality enacted the amendments that are the subject of our case. That was also my position in the verdict that is the subject of the further hearing, and that is my position now.
56. For that reason, I cannot agree with the approach of my colleague, Justice Sohlberg, which declines to view the Authorizing Law as a law enacted subsequent to the Hours of Work and Rest Law. It is well-known that laws are not enacted for the sake of enacting them. The legal situation that existed prior to the passage of the Authorizing Law is different than the legal situation now. The Authorizing Law changed the face of the Municipalities Ordinance, which predates the Hours of Work and Rest Law. Article 249(20) of the Ordinance, which also predates the Authorizing Law, but within whose framework the case law had barred taking religious tradition into consideration, changed its form, and thanks to Article 249(21) it took on a new form. Therefore, as I noted (see para. 43 above [para. 42-trans.]), even if there were a contradiction between the Authorizing Law and the Hours of Work and Rest Law, then under the non-interpretive standards we use, the Authorizing Law prevails as a later law. That is because it was enacted in 1990, while Article 9A was added to the Hours of Work and Rest Law in 1969.
57. As to the comment of my colleague Justice Sohlberg about the need “to limit the wingspan” of the reasonableness rationale (see paras. 35-36 of his opinion), I emphasize that my opinion differs from his. In this court’s jurisprudence going back nearly four decades, the reasonableness rationale is as an essential tool in reviewing the decision of an administrative agency (See: HCJ 389/80 Dapei Zahav Ltd. v. Broadcasting Agency, 35(1) PD 421, 435-449 (1980); See also Barak-Erez, Volume II, pps. 723-769 and especially p. 733). In my opinion, there is no flaw in the reasonableness rationale just because it is an abstract norm or an open-ended term. On the contrary: “that fact allows reasonableness to be a ‘bridge through which the law can provide modern solutions to new social problems’” (HCJ 3997/14 Movement for Quality Government in Israel v. Foreign Affairs Minister [unpublished], para. 2 of my opinion (February 12, 2105); For more on the importance of the reasonableness rationale in administrative law, see, e.g.: ibid, paras. C-D of Deputy President E. Rubinstein’s opinion, and paras. 3-6 of the opinion of my colleague, Justice E. Hayut; see also HCJ 5853/07 Emunah National Religious Women’s Movement v. Prime Minister, 62(3) PD 445, 486-489; 510-512 (2007), to which my colleague Justice Sohlberg referred (in that case, Justice A. Grunis’s position regarding the reasonableness rational, on which my colleague relied, remained a minority opinion, and Justices A. Procaccia and E. Arbel addressed the status and importance of the reasonableness rationale)). The sting of its vagueness is dulled following years in which case after case in Israeli common law shaped it, something that provides us a comprehensive body of rules to govern its implementation.
58. My position, as stated, has not changed, and it is that the Municipality is authorized to enact provisions in its by-laws concerning the regulation of business activity on the Sabbath. Exercising this authority must withstand the standards accepted in our administrative law, and specifically it must be proportional. I also held (see paras. 49-51 above paras. 48-50-trans]) that the amendments in our case are within the zone of proportionality accorded to the Municipality, and therefore there is no room to intervene in them. This determination does not mean that there are no other frameworks for regulating business activity on the Sabbath that would also be within the zone of proportionality. If, for example, the municipality wanted to distinguish between places of entertainment and business establishments within the By-Law and to permit opening the former only – even though that distinction has no grounding in the legislation – and some petitioner challenged a hypothetical by-law such as this, I also would think there is no room for intervention. The very exercise of the authority granted it, as well as its method of exercising it within the zone of proportionality, are up to the Municipality.
59. In the Bremer  case, there was no doubt that the by-law did not permit opening businesses on the Sabbath. I thus ruled in that case that the Municipality should work to ensure that businesses are closed on the Sabbath, and if the character of the city justifies, in its opinion, permitting certain businesses to be open on the Sabbath, the Municipality should change the by-law. That was – as I noted (see above, para. 49 [para. 48-trans.]) – not to make a value judgement regarding the desired character of the Sabbath, but rather as an expression of the view that laws, including the By-Law, should be followed. Those words also apply to the case at hand. My ruling does not seek to express a “secular” or “religious” view. My verdict reflects what, in my mind, is the correct interpretation of the law, as I explained at length.

 

The President

Justice Y. Danziger

With complete concurrence, I join the comprehensive judgment of my colleague the President.

At the heart of the matter – the question of the Sabbath. How it should be treated and how it should be observed. This question is a question of values, and the answer will vary depending on the identity of the respondent. Recognition of that fact of course supports the conclusion that the discretion to determine the appropriate balance concerning the Sabbath should not be exercised generally, “at the national level”, but rather in a more focused and considerate way, for each urban space, keeping in mind the difference and diversity among the populations that comprise the various cities. This approach facilitates optimal expression of the character and uniqueness of the cities and their residents. It facilitates maximal expression of the free wills and autonomies of the residents. The appropriate perspective, as my colleague the President expressed well, is the perspective of “live and let live”. In a society composed of a complex human mosaic, this perspective is necessary and essential. It is the cornerstone of successful communal life. In this sense, as noted, it is hard to give priority to a value judgment at the “national” level, which is inherently more general and less pluralistic, at the expense of a narrower judgement, aimed at the local character only. In addition, it should be noted that the Sabbath is not a singular thing. There is no one correct way to observe it. It can be done this way and that way. In that context, I am concerned that the dichotomous division between one who “observes” the Sabbath and one who “violates” it oversimplifies the reality and its complexity. This is especially so regarding the concern that the Minister of Interior expressed, that the national religious look and character of the Sabbath will be changed in one fell swoop, and in place of the “national agreement” about it, there will be one big confusing mess. As noted, this concern assumes, in theory, that there is one correct “national way” to observe the Sabbath, which is not the case.

 

                                                                                                                                                Justice

 

Justice Y. Amit

1. I concur with the precise and exhaustive judgment of my colleague, the President.

For years, the conduct of the executive branch indicated that, in effect, it had decided not to decide regarding the validity of the amendment to the By-Law. As noted in the President’s judgment, that conduct should be viewed as an unexplained refusal which does not withstand judicial review. I also share the President’s opinion regarding the relevance of the Hours of Work and Rest Law, 5711-1951, because there are different purposes at the foundation of the two laws, and “the division of labor is as follows: the Hours of Work and Rest Law regulates the Jewish worker’s rest on the Sabbath, while the by-laws address the question of opening (or closing) the businesses themselves” (Gidon Sapir, “’Vikaratem Lashabat Oneg?’ Avoda Mis-char Vibilui Bishabat Biyisrael Mekom Hamidinia Viad Hayom [‘And Call the Sabbath a Delight?’ Work, Commerce and Leisure on the Sabbath in Israel from the Founding of the State to the Present]”, 31 Mehkarei Mishpat 169, 182 (2017); hereinafter: Sapir). Similarly, I don’t think there was a flaw in the discretion of the Municipality, which chose to legislate a balanced arrangement within the zone of proportionality.

2. The decision to grant a further hearing was also based on the honored status of the Sabbath “in the world of Judaism”, and, I would add, the honored status of the discussion of the Sabbath’s character in Israeli society. Given the importance of the issue, I will address it briefly.

I completely agree with the President that “The Minister of Interior’s position did not appropriately consider the uniquely autonomous status of the Municipality (para. 27 [para. 26-trans.] of her verdict). Indeed, the present case exemplifies the clash between the central government and the local government. The relationship between these governments is complex, and this is not the place to exhaust the discussion (for an expansion, see: Nehamia Avneri, Mishpat Hamakom: Shilton Atzmi Mekomi Vichakika Mekomit [The Law of the Land: Local Self Rule and Local Legislation], 23-58 (2013) (hereinafter: Avneri); Shalom Zinger, Dinei Shilton Mekomi: Hoveh Viatid [The Law of Local Government: Present and Future], 121-147 (2013) (hereinafter: Zinger); Yisachar Rosen-Zvi, “’Makom Hatsedek’: Mishpat Hashilton Hamekomi Vi-i-Tsedek Chevrati” [’The Place of Justice’: The Law of Local Government and Social Injustice]”, 28 Iyunei Mishpat 417 (5766-5767)). To avoid getting off scot-free, I will add a few words about the status of local government in the context of multi-culturalism, shaping the public sphere and the relationship between religion and state. I will note that I address these issues from a broad perspective and therefore will not address the legal distinctions between a municipality and a local council.

3. There are two discernable principled perspectives regarding the status of the local government, and for our purposes we will make do with the succinct description that Justice Folgelman provided in HCJ 4790/14 Yahadut Hatorah v. Minister of Religious Services [unpublished] (October 19, 2104) (references deleted):

"The administrative perspective views the local government as part of the central government. On this view, the central government is the source of authority for the local government, and the central government has supervisory powers over and the power to intervene in the local government. This position sometimes expresses a paternalistic view of the local government as pertains to its relationship with the central government. It views the local government as one who is dependent on the [national-trans.] government or as an arm of the central government; 'a contractor' that plays a role for another governmental body, subject to its instructions and under its supervision [...] in contrast to this perspective, there is another perspective regarding the local government -- the autonomous perspective. In contrast to its predecessor, this perspective considers the local government to have independence from the central government [...] It is based on the opinion that the local government is a body of independent-democratic rule that represents the interests of the local residents. It views the local government as a tool for realizing communal-cultural values regarding different issues, meaning: an institution whose role is to facilitate members of the community running their ‘internal’ affairs without intrusion from the state, while preserving the ability of the communities to control their public space and to translate the preferences of their members into public policy [...]

Throughout the years, various approaches have been expressed in the case law (in various contexts) regarding the above-mentioned perspectives, to the point where some said that the law of local government 'is swinging like a pendulum' between two opposing perspectives on local government [...]"

 

To continue the image of the pendulum, I note, by the way, that I doubt if the legislative branch and the executive branch invest sufficient efforts to improving the organizational and legal framework within which local government agencies operate. Over the years, commissions have been established, experts have invested time and effort, but a significant portion of the reports on the subject have not been implemented. It is particularly worth nothing the report of the Governmental Commission on Local Government Affairs (Zinbar Commission), which was approved by the government as far back as 1985 but was neglected. In addition, the Municipalities Bill, which was proposed by the government and put before the Knesset for consideration in 2007, was not promoted (for academic writing on the bill, see the publication Chukim, which devoted its first issue to the subject, and also Ron Shapira’s article, “Hirhurim Al Hatzaat Chok Iriot Chadash [Reflections on the New Municipalities Bill]”, 7 Din Vidvarim 677 (2012)).

4. In any event, the Israeli legal system recognizes the autonomy of local governments to act within the framework of their lawful authority. In our case, the authorization is unambiguous: The Law to Amend the Municipalities Ordinance (No. 40), 5751-1990 (known as the Authorizing Law) authorizes the municipality to design the local legal arrangements for opening places of business on the Sabbath. This means that for this sensitive issue, the legislator chose to transfer the authority to the local government, which acts according to its considerations and commensurate with the character of the residents and the place (see paras. 26-29 [25-28-trans.] of the President’s opinion). This starting point is in large part also the ending point that dictates denying the motion. I chose to go beyond that only in order to expand the view-point and to highlight the fact that the Authorizing Law is just one branch of the branches of a broader principle, which is expressed in legislation, case law and the legal literature.
5. Legislation: The most prominent example of the legislator’s consideration of the local character is the Authorizing Law that is the subject of our discussion, but additional laws regarding the relationship between religion and state contain a similar discernable trend. The prohibition on selling pork was left to the discretion of the local authorities (Local Authorities Law (Special Authorization), 5717-1956), as was the opening of places of entertainment on Tisha Ba’av (Law Prohibiting Opening Places of Entertainment on Tisha Ba’av (Special Authorization), 5758-1997). The prohibition on openly displaying leavened products on Passover does not apply in a town where a majority of residents are not Jewish (art. 2 of the Law of the Holiday of Matzot (Prohibitions on Leavened Products), 5747-1986), and the prohibition on raising swine excludes a number of local authorities enumerated in the schedule of the Law Prohibiting Raising Swine, 5722-1962. From an additional perspective, the Law of Jewish Religious Services [Integrated Version], 5731-1971 regulates religious services by establishing local religious councils, and the local authority’s council significantly influences the appointment of the council’s members (art. 2 of the law; See also art. 6A) and also influences the appointment of the municipal rabbi (Amendment 7 of the Jewish Religious Services Regulations (Elections of Municipal Rabbis), 5768-2007).
6. Case Law: The President’s opinion cited judgments that emphasized the important of creating local arrangements regarding opening and closing businesses on the Sabbath, as well as in the context of selling pork and its products, according to the legislation cited above. I can add statements that have a more general hue. Thus, for example, Justice Cheshin emphasized in HCJ 6741/99 Yekutieli v. Minister of Interior, 55(3) PD 673, 705 (2001): “Unlike the state, whose policy is inherently state-wide, a local authority is authorized and required to focus itself – subject to specific exceptions enumerated in law – on its own domain only, and its policy must express local interests of the authority and its residents. A local authority is supposed to take care of its community – not the entire community of the state – and its policy must adapt itself to the community as a whole living within the authority’s domain”.

In another matter, Justice Cheshin directly addressed the provision of religious services by the local authority:

“Even though religion – doctrinally – knows no boundaries of place or time, religious services have a local character and are supposed to adapt themselves to the specific needs of the residents of this or that local authority […] The demands for Jewish religious services, while sharing a common denominator, vary in their points of emphasis from community to community; the demands for religious needs can be heterogeneous and dependent on worldview” (HCJ 4247/97 Meretz Party in Jerusalem City Council v. Minister of Religious Affairs, 52(5) PD 241, 253 (1998)).

Prior to the above words came comments by Justice Alon, who expressed himself in this spirit: “Local authority elections give expression, first and foremost, to the will of the residents of that authority regarding the municipal issues of that place, and the religious services provided by the religious council constitute a substantial part of these municipal needs” (HCJ 121/86 Shas Party v. Minister of Religious Affairs, 40(3) PD 462, 466 (1986).

Justice Dorner’s words in HCJ 2838/95 Greenberg v. Katzrin Local Authority, 53(1) PD 18 (1997) (dissenting opinion regarding the result):

“Referring the handling of local issues to the local authorities is based on the view that it is better for local issues to be regulated according to the conditions of each place and its needs. The appropriate solution for a particular problem in a particular town does not necessary fit another town. The local authority has a relative advantage over the central government in handling local issues. Additionally, for considerations of democracy, local issues should be managed according to the will and aspirations of the residents of the place, and by their elected officials.”

7. The literature and academic writing of legal scholars also include expressions of recognition of the special status of the local authority, and I will cite a few of the sources relevant to our issue.  Professor Itzhak Zamir thought that the special status of the local authority is even expressed in the context of primary arrangements. He said: “It is one thing to grant authority for setting primary arrangements to a local authority, such as a municipality, which is a democratic body directly responsible to the residents. Democracy, even micro-level democracy, deserves sweeping authority to serve the residents according to the policy it set. It is another thing to grant such authority to a minister or another administrative agency” (Itzhak Zamir, “Hasamchut Haminhalit [Administrative Authority]”, 81(a) Mishpat Umimshal 103 (1992); See also Itzhak Zamir, Hasamchut Haminhalit [Administrative Authority], Vol. 1 446-457 (2nd ed. 2010)).

Prof. Menachem Maunter addressed this issue in the framework of a discussion of the State of Israel as a multi-cultural state. According to his approach, the solution for disagreement stemming from different cultural groupings is to implement the principle of decentralization. As he wrote:

“Decentralization needs to be an important principle in the life of a multi-cultural state. The citizens of such as state should get used to the perspective that the state is not supposed to comprehensively realize their normative viewpoints within the context of its uniform arrangements. Instead, citizens of a multi-cultural state should expect to realize their normative viewpoints comprehensively at the sub-state level, namely: at the municipal level, within cultural communities, in associations […] to say it another way, citizens of a multi-cultural state need to get used to the recognition that only some of the normative arrangements that apply to them will be uniform, while others will be differential – they will apply only to some citizens” (Menachem Mautner, Mishpat Vitarbut Biyisrael Bifetach Hameia Hesrim Viachat [Law and Culture in Israel at the Turn of the Twenty-First Century] 322 (2008)).

Mautner went on to specifically address realizing the principle of decentralization as concerns the public character of the Sabbath in Israel. In light of the definition of Israel as a Jewish state, the Sabbath was established as the official day of rest, but regarding the specific content that is to be expressed in the public sphere, Mautner supports a solution that allows different communities to design arrangements that suit the character of the place, so long as they don’t severely infringe on those whose culture and beliefs differ (ibid, pps. 326-327; Compare Sapir’s suggestion on page 223, that primary legislation can regulate the issue at the national level, together with authorizing local authorities to make changes via a special majority; See also the draft Sabbath Law, 5776-2016). It is worth mentioning Mautner’s comment that the response to the disadvantages of the principle of decentralization is developing social solidarity and emphasizing the common good (ibid, p. 331 and thereafter; for more on trends and challenges of decentralization see, Ishai Blank, “Mikomo Shel Ha’mekomi’: Mishpat Hashilton Hamekomi, Bizur Vi-I Shivyon Merchavi Biyisrael [The Place of the ‘Local’: the Law of Local Government, Decentralization and Spatial Inequality in Israel”, 34 Mishpatim 197 (5764-5765); Ishai Blank, “Mamlachtiut Mivuzeret: Shilton Mekomi, Heipardut Vi-i-Shivyon Bichinuch Hatzibori [Decentralized Statehood: Local Government, Secession and Inequality in Public Education]”, 28(2) Iyunei Mishpat 347 (2004); Ishai Blank, “Kihila, Merchav, Subyekt – Tezot Al Mishpat Umerchav Biakvut Sifro Shel Yisachar (Isi) Rosen-Zvi [Community, Space, Subject - Theories on Law and Space Following Yisachar (Isi) Rosen-Zvi’s Book]”, 2 Din Udvarim 19 (5767)).

As part of Prof. Ruth Gavison’s attempts to find a remedy for the perpetual tension in the relationship between religion and state in Israel, she also addressed questions related to the character of public life. Prof. Gavison expressed regret that “these battles are waged using such dogmatic language, and they deteriorate into a threat against the rule of law and the legitimacy of the institutions authorized to make communal decisions in our society. That stems from, inter alia, the breakdown of mechanisms for negotiation and compromise”. She later emphasized that “Some of the coercion stemming from enforcing a particular public character can be minimized using spatial limitations”, and as an example she mentioned activities in the public sphere on the Sabbath (Ruth Gavison, “Medina Yehudit Videmokratit: Etgarim Visikunim [Jewish and Democratic State: Challenges and Risks]”, Rav-Tarbutiut Bimidina Demokratit Viyehudit [Multi-culturalism in a Democratic and Jewish State] 213, 258-259 (eds.: Menachem Mautner, Avi Sagi and Ronen Shamir; 1998)). Indeed, he who ignores the difference between the population of Ramat Gan and the population of Bnei Brak, or between Jerusalem and Tel Aviv, and seeks a uniform, rigid solution, will find himself forcing an inappropriate social arrangement in a broad manner. The differences are not just between cities. Within the same city, there are differences between neighborhoods and between areas, and the local authority is tasked with these distinctions. The variations and differences at the municipal level are not just at the geographical-territorial level but also along the axis of time. What was right for yesterday is not necessary right for today, creating a need to allow the local authority, which has its “finger on the pulse”, the flexibility it needs. We need not go far back to see that “the city of Tel Aviv at that time was a single house on the seashore” but now Tel Aviv is a vibrant and bustling city, a city that never stops, and its character in the 2000’s is not the same as its character decades ago.

8. Following our minor digression, we get back on track and point to the targeted conclusion: Israeli law recognizes the autonomy granted the local government to exercise its lawful authority, commensurate with the nature of its residents and the local character. Indeed, “Regarding the source of authority, according to the principle of administrative rule of law [intra vires-trans.] […] the local authorities are subject to the favor of the governmental branch (legislative or executive) which grants them the power to act. On the other hand, regarding the content of the authority, the various authorizing statutory provisions grant the local authority powers with a generous hand” (Avneri, p. 91; emphasis in original). That is the general principle, and for the specific issues of religion and state it has advantages that cannot be disregarded: creating a public sphere that suits the character of the surroundings and the way of life of the residents of the place, as well as minimizing coercion of different cultural populations. However, it is not a silver bullet, and the principle should be implemented with caution and sensitivity.

Similarly, the autonomy granted the local authority is not, of course, absolute. The various legislative provisions detail the powers of the central governmental agencies to supervise and intervene. Inter alia, legislating by-laws is subject to the authority of the Minister of Interior pursuant to Article 258 of the Municipalities Ordinance [New Version]. In the current case, we need not exhaust the discussion of the boundaries of the local authority’s autonomy or the limits of the power of the Minister of Interior to intervene in the content of a city’s by-law (on this, see para. 26 [para. 25-trans.] of the President’s opinion, and compare: HCJ 58/53 Haviz v. Haifa Municipality, 7 PD 701, 713 (1953); HCJ 6249/96 Association of Contractors and Builders in Israel v. Mayor of Holon, 52(2) PD 43, 47 (1998); HCJ 7186/06 Malinovsky v. Holon Municipality [unpublished], paras. 57-62 (December 29, 2009); HCJ 1756/10 Holon Municipality v. Minister of Interior [unpublished], especially para. 41 (January 2, 2013); Avneri, pps. 78-84; Zinger, p. 211).

In my opinion, to extrapolate, we can say that the scope of the legitimate intervention of the Minister of Interior (or another agency of the central government) is inversely proportional to the scope of the discretion granted the local authority, pursuant to the authorizing law and its purpose (compare: HCJ 953/01 Solodkin v. Beit Shemesh Municipality, 58(5) PD 595, 621 (2004)). In our case, the legislator authorized the local authority to act according to its discretion, which requires, as noted, adapting to the character of the residents and the place. The Tel Aviv City Council did the work of designing a measured and balanced arrangement that expresses observance of the character of the Sabbath in the public sphere along with considering the daily needs of a respectable portion of city residents.

In contrast, the Gavison-Medan Contract contained an agreement for a general prohibition on commercial activity on the Sabbath, but suggested allowing limited activity for small grocery shops (Yoav Artsiali, Amanat Gavison-Medan: Ikarim Viekronot [Gavison-Medan Contract: Essences and Principles] 40 (Israel Democracy Institute; 5763)).

Before concluding I note that in light of the special status of the Sabbath in the State of Israel and against the background of the distinction between the local level and the central government, I did not see fit to evaluate what has been done in this area in foreign countries. In that context, I will briefly say that the arrangement that the Municipality of Tel Aviv set is moderate compared with the global trend toward limiting restrictions on commercial activity on days of rest (see Tomer Yahud and Ariel Finkelstein, “Chukei Hamischar Vihavoda Biyom Hamenucha Bimidinot Haolam: Mechkar Hashvaati [Law of Commerce and Labor on the Day of Rest Throughout the World: A Comparative Study]” (Institute for Zionist Strategies; July 2016).

9. Conclusion: Regarding the petition before us, I concur with the President’s opinion.

 

Justice

 

Justice N. Hendel

1. Again, the Sabbath. The queen for whom the State of Israel forces the court to define the boundaries of her kingdom.

The current procedure raises for further hearing the question of the lawfulness of two amendments to the By-Law of Tel Aviv-Jaffa (Opening and Closing Shops), 5730-1980, K.T. 745, 1448 (hereinafter: the By-Law), which moderate and abridge the scope of the prohibition that the By-Law had imposed in the past on opening businesses on the Sabbath and Jewish holidays. The first one - By-Law of Tel Aviv-Jaffa (Opening and Closing Shops) (Amendment), 5775-2015, K.T. H.S.M. 358 (hereinafter: the First Amendment) – permits the opening of “convenience shops” in gas stations and other shops – “including any office, commercial establishment, kiosk […] public entertainment, workshop or factory” at three defined sites within the city. Similarly, the First Amendment significantly reduces the restrictions on the format for operating coffee shops, a term that includes also “restaurant, bar, a shop selling ice cream or any other food establishment” and pharmacies throughout the city. An additional element of the amendment – the authority to grant a permit to open grocery stores on the Sabbath and Jewish holidays on certain streets – was invalidated by then-Minister of Interior Gidon Saar. In addition to the argument that it essentially authorized activities of businesses “that for years trampled upon the By-Law with a heavy boot” and was not an arrangement based on relevant criteria, the invalidation was explained by reference to the disproportional infringement that opening the grocery stores via the proposed framework would cause to “the value of the Sabbath as the general day of rest in the State of Israel”.

Following the invalidation of this aspect of the First Amendment, the Tel Aviv-Jaffa City Council approved the second amendment – that is the Tel Aviv-Jaffa By-Law (Opening and Closing Shops) (Amendment), 5777-2017, K.T. H (hereinafter: the Second Amendment). Like its predecessor, this amendment authorized the mayor to grant permits to open grocery stores on the Sabbath and Jewish holidays. However, the framework proposed in the Second Amendment is more detailed, grounded and proportional in a number of ways: first, it limits the size and character of the grocery stores – and clarifies that permits can be issued only to kiosks or businesses used for “selling food and consumer items for personal or household use, that do not include handling the food, including food delivery”, whose size does not exceed 500 square meters. The second amendment limits the number of permits and subjects the authority of the mayor to a maximum “regional quota”. The starting point for calculating that quota is 15% “of the number of units used for transacting in food in that same area during all the days of the week.” In addition, the amendment gives clear priority to opening grocery stores located in central areas that are noisy anyway, while minimizing the infringement on the character of the Sabbath in residential areas, and it outlines clear and egalitarian criteria for allocating permits, in order to avoid rewarding lawbreakers.

The Second Amendment was also brought to the approval of then-Minister of Interior Gidon Saar, who noted its relatively limited nature, compared with its predecessor. However, the minister saw fit to clarify certain aspects of the amendment -- the criteria for granting permits and the scope of discretion allowing the authority in the future to expand the quota for permits. The minister therefore ordered the publication of the Second Amendment in Reshumot to be delayed, pursuant to his authority under art. 258(c) of the Municipalities Ordinance [New Version], and left the final decision on the issue to his successor. However, the successor failed to make a decision, his authority - which at a certain point was transferred to the Israeli government - was later restored to the current Minister of Interior, Aryeh Deri, but still the decision was delayed. With the continued silence of the Minister of Interior and the government as background, the verdict that is the subject of the further hearing was rendered, in which this court (President M. Naor and Justices E. Hayut and D. Barak-Erez) rejected the petitioners' claims in HCJ 6322/14 and HCJ 996/15 [unpublished] (hereinafter: Association of Merchants), accepted the Tel Aviv Municipality's petition (HCJ 4558/15) [unpublished] regarding the Second Amendment, and authorized the two amendments to the By-Law (hereinafter: the verdict). At first, it was held that the failure, over a long period of time, to make a final decision on the fate of the amendment -- deviating from the deadlines set out in the Municipalities Ordinance – was a violation of the general obligation to act with due diligence, and ignoring the agreements reached during the litigation was essentially "an unexplained decision to invalidate Amendment No. 2” (para. 18 [para. 17-trans.] of President M. Naor’s judgment). The burden of proving the lawfulness of the decision therefore passed to the state – which did not meet it and did not present any reason for invalidating the Second Amendment.

Regarding the substantive merits of the Association of Merchants’ arguments, it was held that the Law Amending the Municipalities Ordinance (No. 40), 5751-1990, S.H. 1336, 34 (hereinafter: the Authorizing Law) explicitly authorizes the local authorities to regulate the opening and closing of businesses on the Sabbath and Jewish holidays – and that the amendments do not contradict the provisions of the Hours of Work and Rest Law, 5721-1951, because the latter “concerns the regulation of individual labor relations internal to the place of business. In contrast, the amendments to the By-Law regulate the activities of businesses without reference to the identity of the employee”. Regarding the issue of discretion, it was held that the amendments are within the zone of proportionality and fulfill the purposes of the Authorizing Law – conducting a balance between the conflicting rights, according to the unique characteristics of each local authority. The petitioner’s arguments in HCJ 2998/15 [unpublished], seeking to expand the list of sites where the First Amendment allowed shops to open, were also rejected.

The Association of Merchants, which was dissatisfied with the result, filed a motion for a further hearing in which it repeated, inter alia, the argument that the amendments to the By-Law are contrary to the Hours of Work and Rest Law which, it claimed, prohibits the very existence of commerce on the Sabbath. Furthermore, the Association of Merchants found that, although it was not brought to the court’s attention in real time, the Minister of Interior, as early as April 9, 2017 – ten days before the verdict was rendered – signed a letter intended to be sent to the mayor of Tel Aviv-Jaffa, containing a reasoned decision regarding the invalidation of the second amendment (hereinafter: the reasoned decision). Under these circumstances, and considering the substantive ramifications of the verdict on Israeli society as a whole, the Association thought that the position of the minister should not be ignored, and his reasons should be evaluated before invalidating the decision. The Minister of Interior shared this position, and the state supported holding a further hearing on the question of the relationship between the Hours of Work and Rest Law and the Authorizing Law – although, on the substance of the matter, it accepted what was decided in the verdict on this issue. On July 12, 2017 Deputy President (ret.) E. Rubinstein granted the Association of Merchant’s motion, and decided that “the further hearing will apply to the entire verdict”. Hence the hearing before us.

2. Before getting into the heart of the issue, as a preliminary matter, I will outline general contours for the image of the Sabbath, about which – as the Babylonian Talmud relates – the Holy One Blessed Be He said to Moses our rabbi, the most revered of prophets:

“I have a precious gift in My treasure house, called the Sabbath, and desire to give it to Israel; go and inform them” (Babylonian, Shabbath, 10a).

This “present” occupies a central place in the world of Judaism – and found a place of honor in the Ten Commandments, on the seam-line between the fundamental commandments that concern the relationship between a person and God, and those that are among people. The Sabbath carries a double normative duality. First – the universal as opposed to the particular. The world as opposed to the Jewish people. The holy scriptures contain a distinction between the “Genesis Sabbath” and the “Jewish Sabbath”. In this sense, the Sabbath has undergone permutations. At the conclusion of the story of creation in the chapter Genesis, the Sabbath is presented as “the crown of creation” – “God blessed the seventh day and made it holy because on it he ceased all the work that he had been doing in creation” (Genesis 2:3). Ibn Ezra clarifies that “doing” means that humankind continues the doing, starting on the eighth day. Construction of the physical world hence concluded in six days, but from a moral point of view, the world is not yet complete. The Sabbath is the mediator between the creation of the physical world and the creation of humankind, responsible for continuing its spiritual construction (see the comments of the Rabbinical Judge Dr. Isidor Grunfeld on the book “Horeb” of Rash”ar Hirsch [Samson Raphael Hirsch, Horeb: A Philosophy of Jewish Laws and Observances, Volume I, 273 (the Soncino Press, 1962)].

The second stage in the development of the Sabbath is the obligation to “keep and remember” that was imposed on the Jew in relation to the Sabbath day. As was written in the Ten Commandments in the Book of Exodus –

“Remember the Sabbath day to set it apart as holy. For six days you may labor and do all your work, but the seventh day is a Sabbath to the Lord your God; on it you shall not do any work, you, or your son, or your daughter, or your male servant, or your female servant, or your cattle, or the resident foreigner who is in your gates. For in six days the Lord made the heavens and the earth and the sea and all that is in them, and he rested on the seventh day; therefore the Lord blessed the Sabbath day and set it apart as holy” (Exodus 20:8-11).

The Sabbath therefore has a complex and multi-faceted nature. Indeed, the Sabbath prayers and blessing over the wine mention the universal aspect (“in memory of the act of creation”) as well as the Jewish historical aspect (“in memory of the exodus from Egypt”).

There is an additional duality. On the one hand, the Sabbath is a commandment concerning the relationship between people and God, but simultaneously it is also a commandment concerning the relationship among people. More precisely, between a person and his society. The aspiration is to create a different society. A society of equality and rest. The Sabbath is supposed to be the religious experience that brings a person closer to his creator, and also a social experience that topples societal boundaries and brings a person closer to himself. We should pay attention to what the Book of Exodus commands – that all of us should rest on the Sabbath: the landlord, the citizen and the foreigner, and even the slave (at the time this concept existed) and the domestic animal. Jewish law even recognizes the concept of the “resting of utensils” (See Babylonian Talmud, Shabbath, 18b). Such is the Sabbath – a diverse, multi-purpose and multidimensional creature.

The Sabbath contains a national-particularistic aspect, in which it is presented as a kind of symbolic and perpetual reminder of the extraordinary relationship between God and his people – a relationship that has a constitutive expression in the exodus from slavery in Egypt to spiritual liberation and receiving the Bible. In this sense, the Sabbath expresses the national uniqueness and spiritual uniqueness of the Jewish people: “It is a sign between Me and you for your generations, to know that I, the Lord, made you holy […] Thus shall the children of Israel observe the Sabbath, to make the Sabbath throughout their generations as an everlasting covenant. Between Me and the children of Israel, it is forever a sign” (Exodus, 31:13-17). In parallel, but in harmony, the image of the Sabbath – as it is portrayed in the Ten Commandments of the Book of Exodus (20:8-11) and in the Book of Deuteronomy (5:12-15) – also expresses a universal human experience of exodus from slavery to freedom. It puts the social aspect in center-stage and calls for the learning of lessons from past experiences, internalizing the value of a day of rest that momentarily blurs the gaps between social classes – “in order that your manservant and your maidservant may rest like you”.

Given the many layers and meanings of the Sabbath, it is no wonder that, even when other traditions found themselves tossed about in the winds of change or bowing under the burden of new and challenging world views, the Jewish public maintained broad agreement regarding its importance. On this point, we recall the famous words of Asher Ginsberg, “Ahad Ha’am”:

“One need not be Zionist or scrupulous about religious commandments in order to recognize the value of the Sabbath […] we can say without exaggeration that more than the Jewish people kept the Sabbath, the Sabbath kept them. Had it not reshaped their ‘soul’ to them and rejuvenated their spiritual life each week, the hardships of the ‘days of action’ would have pulled them further and further down, until they would have finally descendent to the lowest storey of materialism and moral and intellectual nadir. Therefore one definitely need not be Zionist to feel the glory of the historical holiness that surrounds this ‘good gift’” (Ahad Ha’am, Al Parshat Drachim [At a Crossroads], Vol. 3, Chap. 30; emphasis added).

Haim Nahman Bialik, a graduate of the Volozhin Yeshiva and the national poet, also noted, in that spirit, that “without the Sabbath, there is no image of God and no image of humankind in the world. If work were an end in itself, there would be no difference between human and beast […] the Sabbath is culture” (Letters of Haim Nahman Bialik, Vol. 5, 228 (Fishel Lachower, ed., 5699)).

These perspectives quickly became entrenched in the law of the young State of Israel. As early as June 9, 1948 – less than a year after the establishment of the state – the official newspaper published the Days of Rest Ordinance, 5708-1948, which declared the Sabbath, together with Jewish holidays, to be “the fixed days of rest in the State of Israel”. The Work and Rest Hours Law, 5711-1951 granted the Sabbath a more substantial and tangible status, determining that “the weekly rest will include […] for Jews, the Sabbath Day.” These provisions, on whose details I will expand below, express the diverse purposes that allow even a person who is not religious to recognize the importance of the Sabbath. As Justice A. Barak noted a decade ago:

• 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 […] one purpose is a social purpose, which is concerned with the welfare of the worker and gives him social protection […] 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” (HCJ 5026/04 Design 22- Shark Deluxe Furniture Ltd. v. Director of Sabbath Work Permits Department – Ministry of Labor and Social Affairs, 60(1) PD 38, para. 20 (2005) (hereinafter: the Design case).

 

And Justice Barak wrote in the Horev case (HCJ 5016/96 Horev v. Minister of Transportation, 51(4) PD 1, para. 55 of his opinion (1997) –

“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”.

However, we cannot ignore the Israeli reality – which accords the Sabbath a character that is not necessarily compatible with the Jewish law conception over the generations. The delight of the Sabbath in Bnei Brak and Safed is not like the delight of the Sabbath of citizens who take advantage of their vacation day for a walk in the bosom of Israeli nature, a visit to football fields or museums – often with a fascinating integration of the traditional “blessing over the wine” – or “just” for rejuvenation. At the heart of the issue is a deep and profound ideological dispute, which is at the center of a prolonged public discourse that has reached this court on more than one occasion. I personally think that, given the respect with which we should treat each other’s world view – Sabbath view – we would do well to avoid a binary determination and rather shape the public space by way of compromise. We should give expression to the traditional view of the Sabbath, to which I subscribe, without pushing aside a significant segment of the population whose view of the Sabbath – as a national symbol and as a social symbol – differs. And what a good example we have before us. Israeli law does not impose on an individual the Jewish law prohibition against working on the Sabbath. It focuses on his right to rest from everyday troubles. It is no accident that the term day of rest relies on the commandment, “in order that your manservant and your maidservant may rest like you”. That is out of recognition that the Sabbath is the day of rest of the Jewish people in its country. This sensitivity to the worker, to the individual, integrates the universal with the particular; the history of the nation with the needs of the individual and safeguarding his human dignity. Indeed, the Sabbath is a secret gift that reveals a new face in every generation.

3. I now state that I cannot concur with the position of my colleague, President M. Naor. Were my opinion to prevail, we would rule that the motion for a further hearing should be granted, in the sense of invalidating the Second Amendment, because the reasoned decision of the Minister of Interior on this issue does not deviate from the zone of reasonableness.

Indeed, the decision was made with great delay, blatantly violating the obligation of the administrative agency to exercise its authority with appropriate speed, according to Article 11 of the Law of Interpretation, 5741-1981, and according to the agreements reached during the previous proceeding. Furthermore, the Minister of Interior kept quiet and refrained from informing this court – through the Attorney General – about the substantive change in the state of affairs due to his signing the decision to invalidate the Second Amendment. However, as serious as his conduct may be, when it became clear that at the time the verdict was reached, there was a reasoned decision to invalidate the Second Amendment, we are not at liberty to ignore it and to shift the burden from the Tel Aviv Municipality – which petitioned against it – to the state. Indeed, art. 258(d)(2) of the Municipalities Ordinance authorizes the Minister of Interior “to invalidate a by-law for reasons he will provide”. The obligation to provide reasons, in our case, is therefore grounded in the specific norm that authorizes the minister to invalidate by-laws – and does not derive (only) from the general obligation to provide reasons, which is grounded in Article 2A of the Law to Amend the Organization of Administration (Reasoned Decisions), 5719-1958, or from the obligation of fairness that the administrative agency bears (see Civ App 3886/12 Zeev Sharon Construction and Earth Contracting Ltd. v. VAT Director [unpublished], para. 39 (August 26, 2014)). Therefore, had the reasoned decision not been given in time, we would surmise – in light of the combination of the obligation to provide reasons and the provision of Article 6(b) of Law to Amend the Organization of Administration (Reasoned Decisions), 5719-1958 – that it is insufficient to transfer the burden to the state, and that we should render invalid the decision to invalidate the Second Amendment. However, once the reasons for invalidating the Second Amendment were given (even if not delivered) before the verdict was rendered, the obligation to provide reasons was met, and there is no longer a justification for transferring the burden to the state – not to mention “automatically” invalidating the decision to invalidate.

4. My colleague President M. Naor reasons that (para. 17 of her opinion) [para. 16- trans.] “the procedure of a further hearing is intended for clarifying a rule that was decided in a verdict, and not for discussing what the verdict does not contain” – and therefore the Minister of Interior’s reasons, which were not presented to the court in the prior proceeding, cannot influence the result of the further hearing. However, even if the Minister of Interior’s reasons were missing, their absence was very “present” – and even played a central, if not determinative, role in the verdict.  The discussion of “what is” in the decision in the previous go-round, namely authorizing the Second Amendment due to the Minister of Interior’s unexplained invalidation, does not allow us to ignore the reasoned decision that came into the world, at the end of the day, before the verdict was rendered. Under these circumstances, we can understand Deputy President E. Rubinstein’s (ret.) approach, which held that a decision bearing such substantial ramifications for the character of the Sabbath in the State of Israel is important enough “to justify further consideration, when all the positions are laid out” (para. 11 of the decision to hold a further hearing). That includes the position of the Minister of Interior, to whom the legislator trusted with broad discretion on the issue.

I will add that even if “the Minister of Interior’s position” was not formally presented in the prior proceeding, its substantive reasons were raised before the court and were even analyzed in the verdict. In his reasoned decision, the minister noted that the Second Amendment undermines the social-societal purpose of the days of rest – violating the rights of Sabbath-observant small business owners and workers to equality, freedom of occupation and freedom of religion (paras. 34-42 of the reasoned decision). That is in addition to the infringement on the national-religious purpose and the status quo, which does not allow for “pure, unadulterated” business activity (ibid, paras. 43-47). In the minister’s view, we can accept limited commercial activity that fills a “critical need” for residents, but the Second Amendment deviates widely from that definition – both because of the number of permits that it seeks to grant, as well as because of the characteristics of the relevant businesses (ibid, paras. 51-56). Given the national implications of approving the Second Amendment – which the Minister of Interior believed, for the above-stated reasons, would open the floodgates and lead to a significant and undesirable change in the character of the Sabbath throughout the State of Israel – “the broad perspective that is the purview of the central government” leads, in his opinion, to the conclusion that this amendment should be invalidated (ibid, paras. 57-59).

A study of the verdict reveals that the precedent it set is also grounded in analysis of the substantive position of the minister, as described above – which was expressed in the proceeding by other litigants (see paras. 5-7 [paras. 4-6-trans.] of President M. Naor’s opinion). That is true regarding the appropriate balance between the conflicting rights and purposes (ibid, paras. 24-28 [paras. 23-27-trans.]; paras. 4-5 of Justice D. Barak-Erez’s opinion) and also regarding the question of the scope of autonomy that is granted to municipal authorities in this context (para. 25 [para. 24-trans.] of President M. Naor’s opinion; para. 3 of Justice D. Barak-Erez’s opinion). Considering that the Minister of Interior’s substantive position was present in the prior proceeding, arguments were argued over it and normative determinations were made about it, I do not see an obstacle to addressing it in the framework of the further hearing – and this time with the formal status as a reasoned decision regarding the fate of the Second Amendment.

In the absence of a procedural obstacle to addressing the merits of the reasoned decision, I do not think that the delay which it was received – without minimizing its severity – justifies ignoring its content. Even if I assume that we could have avoided holding a further hearing in the verdict, once the Deputy President ruled positively on that issue – the very holding of the procedure, on all elements of the verdict, is the departure point requiring the panel to render an opinion. The judges on the panel have a broad spectrum of discretion regarding the result of the further hearing, from accepting it to rejecting it. Having said that, it had already been decided to hold a further hearing. I respect the procedural position of the President, but for the reasons I discussed, that it is not the only possible way to deal with the procedural hurdle that the delayed decision of the Minister of Interior puts before us. Indeed, my view is also that there is meaning – if you will, a limit – to the Minister of Interior’s conduct. Thus, for example, we should not have considered, in this proceeding, the minister’s decision, had it been received after the verdict was rendered.However, once the decision was made and signed before the verdict was rendered, in such a way that it would have been possible to bring it before the court, I am willing to accept the argument that we should not accord decisive weight – certainly not for such a sensitive and loaded issue such as the status of the Sabbath – to the delay in receiving it. We should not minimize the obligation of the administrative agency to act with appropriate speed, but in light of the importance of the issue before us, the flaws in its conduct do not overshadow the reasoned position. Sometimes, the subject of the hearing and its essence affect procedural considerations (compare, only for purposes of analogy, this court’s approach regarding the flexibility we should exercise in applying the rules of procedure to adoption issues; Leave App Fam Mot 2205/09 Jane Doe v. Attorney General, [unpublished], paras. 6-7 of President A. Grunis’s opinion (April 22, 2009)). In any event, once the further hearing was granted, in my opinion, that provides a consideration and a certain guidance in favor of discussing the issue on its merits, even if we are not obligated to do so.

5. We therefore must decide whether the reasoned decision deviates far enough from the zones of reasonableness and proportionality to justify invalidating it. My colleague President M. Naor answered that question in the affirmative. In her opinion, the Minister of Interior’s position – believing that there should be a sweeping prohibition against opening businesses on the Sabbath that do not fulfill an “essential need” – undermines the purposes of the Authorizing Law and ignores the municipality’s autonomy and the legislator’s intention to create a balanced, compromise arrangement. My view is different. Even though the Minister of Interior could have reached a different result, the result he actually reached does not deviate from the zone of reasonableness. At the root of the disagreement between the President and me is the question of the relationship between the Hours of Work and Rest Law and the Authorization Law – a question that affects the interpretation of the latter and the scope of the discretion of the local authority and the Minister of Interior regarding by-laws that address the opening or closing of businesses on the Sabbath and Jewish holidays.
6. A study of the relevant provisions of the Hours of Work and Rest Law Law teaches us that it contains two different norms regarding days of rest: the first, also chronologically, prohibits employing salaried employees during their “weekly rest”, which is determined by their religious affiliation –

“7. (a) An employee’s weekly rest shall be not less than thirty-six consecutive hours in the week.

(b) The weekly rest shall include –

(1) in the case of a Jew, the Sabbath day;

(2) in the case of a person other than a Jew the Sabbath day or Sunday or Friday, whichever is ordinarily observed by him as his weekly day of rest.

9. An employee shall not be employed during his weekly rest, unless such employment has been permitted under section 12.

The second level of the obligation of rest, which is of central importance in our case, was added in the Hours of Work and Rest Law (Amendment), 5729-1969, and it imposes an obligation on business owners to stop working on the “fixed days of rest” in the State of Israel. Unlike its predecessor, which established that the weekly rest of a Jewish employee will include the Sabbath day, but left those who are not Jewish a choice regarding their weekly day of rest (see, for example, App Lbr (nat’l) 396/09 Kisselgof – Mayanei Hayeshua Medical Center [unpublished], para. 16 of Justice A. Rabinovich’s opinion and para. 2 of Justice I. Itah’s opinion (November 9, 2010)), this layer creates a different arrangement. It requires that –

“9A (a).  On the prescribed day of rest, within the meaning of the Law and Administration Ordinance, 5708-1948, the owner of a work-shop or industrial undertaking shall not work in his workshop of [sic] undertaking and the owners of a shop shall not do business in his [sic] shop.

[…]

 (c) A non-Jew may – in respect of his workshop, industrial undertaking or shop, situated in the area of a local authority whose non-Jewish inhabitants, according to the determination of that authority, are at least 25 per cent of its total population – observe the prohibitions imposed by this section, at his option, either on the aforesaid days of rest or on his own Sabbath and holydays. The same shall apply in a quarter of a local authority if the area and the proportion - not less than 25 per cent - of the non-Jewish inhabitants of that quarter have been determined for this purpose by that authority.” (emphasis added).

 

  In other words – the rule is that the business owners that Article 9A addresses are not permitted to work or engage in commerce in their businesses on the Sabbath or during Jewish holidays – which are defined, in Article 18A(a) of the Law and Administration Ordinance as “the fixed days of rest in the State of Israel” – irrespective of their personal religious identity. That conclusion derives not just from the text of Article 9A(a) of the law, which is phrased in a sweeping manner, but also from the exception contained in Article 9A(c) of the Hours of Work and Rest Law – according to which a non-Jewish merchant can choose whether to engage in commerce in his shop on the Sabbath if it is located in an area in which a considerable part of the population is not Jewish. Thus when a shop – or workshop – is within a substantially Jewish area, commerce or work is forbidden in that place even if the owner is not Jewish. That is, as noted, in contrast to the arrangement of “the weekly rest” which allows non-Jewish salaried employees to choose their day of rest.

7. The variation I noted testifies to the deep and substantial difference between the two arrangements that address days of rest. While Article 9 of the Hours of Work and Rest Law focuses on protecting the religious and social rights of the individual employed as a salaried employee – and guarantees him “a weekly rest” – Article 9A includes an additional dimension. In addition to expanding the personal protection, so that it also applies to a business owner who is not an employee, the article attaches significant weight to the public interest in maintaining the unique character of the Sabbath and Jewish holidays. It is concerned not just with guaranteeing individual rights, but also with shaping the character of the Jewish public space during the national days of rest. For that reason, in substantially Jewish areas, even a non-Jewish business owner is required to stop working on the Sabbath and during Jewish holidays – and he cannot freely choose his days of rest. Of course, such a person is also entitled to stop working on the days of rest of his religious community, but he cannot use them to exchange the obligation not to work or engage in commerce on the Sabbath and Jewish holidays – for example, to engage in commerce on the Sabbath and to stop working on Friday or Sunday – even though such an exchange would fully realize the individual social purpose. The emphasis is on “fixed days of rest”, which have a national character, and not on the “weekly rest”, which derives from the individual religious identity of each employee. Opening a shop for commerce in a substantially “Jewish” area is viewed as infringing on the status of the Sabbath in that space, and therefore Article 9A forbids it, irrespective of the religion of the shop owner. An interpretation that ignores the national-public element of Article 9A of the Hours of Work and Rest Law would be hard-pressed to explain negating the right of choice of a non-Jewish shop owner – in contrast to the employee who may freely choose his weekly day of rest – just because of the location of his shop.
8. The inevitable result of this textual and purposive interpretation is that the prohibition that Article 9A of the Hours of Work and Rest Law imposes on working in a workshop and industrial factory or engaging in commerce in a shop, is not a “gevara” prohibition – meaning a personal prohibition against the business owner working in the place.  Indeed, this element of the law creates a “heftsa” prohעקibition (object-based prohibition on opening the business) [gevara and heftsa are Aramaic terms in Jewish law for prohibitions relating to persons or objects respectively -trans.] – meaning a prohibition on opening industrial factories, workshops or shops in Jewish residential areas on the fixed days of rest – and prevents activity in these businesses irrespective of the worker’s specific religious identity. Not just the owner of the business is not permitted to work in the place, but also his salaried employees – Jews and non-Jews – because otherwise the national-social purpose of the law would be thwarted. It is would be inconceivable for a non-Jewish owner of a shop to be personally barred from engaging in commerce in a shop located in a substantially Jewish space, but for his non-Jewish salaried employees to be permitted to take his place – even though the influence on the public space would be identical.

According to the interpretive picture sketched here, the relevant provisions of the Hours of Work and Rest Law can be described as having three focal points: worker; business owner; and the business itself. Article 9 of the law focuses on the worker and prohibits his employment during the weekly days of rest that derive from his religious identity. In contrast, Article 9A of the law regulates the obligation to rest in relation to the two additional focal points and requires the business owner (who fits the categories enumerated in the article, which I will discuss below) as well as the business itself to stop working during the fixed days of rest in the State of Israel, namely the Sabbath and Jewish holidays.

9. Having said that, the prohibition relating to the third focal point mentioned – opening businesses on fixed days of rest – is not absolute, and does not apply to all business activity. As President M. Shamgar clarified in HCJ 5073/91 Israel Theaters Ltd. v. Netanya Municipality, 57(3) PD 192, 207 (1993), “the above-stated law does not include a general provision regarding closing places on days of rest”. Instead –

“In establishing the principle of observing a weekly day of rest and designating it on the Sabbath, the legislator sought to achieve two integrated goals: first, a social goal, that a weekly day of rest should be designated for each person to rest from his work, spend time with his family or in the company of friends and have time for holiday and entertainment, according to his choices and preferences” (ibid, 207-208, emphasis added).

Consistent with President Shamgar’s analysis, we should strictly interpret the prohibition in Article 9A of the Hours of Work and Rest Law, to apply not just to activity of an industrial nature (work in a “workshop” or “industrial factory”) or commerce. In contrast, closing businesses used for holiday, recreation or entertainment would betray one of the primary goals that the legislator sought to promote and would place workers in a Catch 22: they would indeed get to rest from their work on the Sabbath, but they would not be able to engage in the holiday and entertainment they prefer. Therefore, according to both the text of Article 9A as well as its purposive interpretation, the article seeks to impose a limited prohibition on engaging in industry and commerce. Opening and operating restaurants, coffee shops, theaters or cinemas – as well as additional institutions that contemporary Israeli society considers to be places of recreation – is therefore not prohibited in itself; indeed, according to this perspective, I may help realize the purpose that the legislator pursued in setting days of rest (See and contrast Crim Case (Jerusalem Magistrate) 3471/87 State of Israel v. Kaplan [unpublished] (2) PM 26 5748 (1987), para. 4G).

Furthermore, for the reasons I stated, we should be cautious in interpreting the terms “will engage in commerce” and “shop”. A furniture shop is different from a stand offering passers-by ready-made food, and a multi-faceted shopping center is different from a “convenience store” offering clients of a gas station incidental refreshment. It is highly doubtful that the legislator, who sought to allow citizens to take advantage of their Sabbath rest to go to theaters or cinemas, would have insisted to prevent them from acquiring essential food items at a small grocery store or to refresh themselves at a gas station on their way to a place of recreation (See and compare Crim App 217/68 Izramex Ltd. v. State of Israel, 22(2) PD 343, 358-360 (1968), in which the justices in the majority narrowly interpreted the term “shop” in Article 249(20) of the Municipalities Ordinance – and held that a gas station is not included in the term, even though technically commerce does indeed take place in it).

10. This interpretation of the Law of Work and Rest House, creating a substantial distinction between engaging in industry and commerce on the Sabbath and Jewish holidays and recreation and holiday activities and which is primarily positively received – is consistent with the principles that Prof. Ruth Gavison and Rabbi Yaakov Medan formulated in the Gavison-Medan Contract (see Yoav Artsiali, Amanat Gavison-Medan: Ikarim Viekronot [Gavison-Medan Contract: Essences and Principles] 40-45 (2003)). According to the contract, “Government offices, educational institutions, industrial factories, banks, services and commercial institutions will be closed on the Sabbath”. However, “Restaurants and recreational establishments will not be prohibited from operating on the Sabbath […] a limited number of small grocery stores, gas stations and pharmacies will not be prohibited from operating on the Sabbath”. That, as Prof. Gavison explained, is out of a desire to preserve the uniqueness of the Sabbath in the Israeli public sphere, with the understanding “that the operation of restaurants and recreational establishments on the Sabbath is not exceptional but rather is necessitated by the character of the Sabbath” (ibid, p. 42). This sharp distinction between commerce and industry and entertainment and holiday is also expressed on a different level –interpreting the discretion that Article 12(a) gives the Minister of Labor to grant a permit to employ workers during their weekly rest. It was held that –

“This broad power that was given to the […] 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 Design case, para. 3 of Justice A. Procaccia’s opinion).

 

As an aside, I will add that this narrow interpretation of Article 9A of the Hours of Work and Rest Law is also appropriate for external reasons, given its infringement on the constitutional right to freedom of occupation and the criminal sanction that attaches to its violation (see para. 43 of President M. Naor’s opinion).

Note that the distinction between commerce and industry and business activity in the field of recreation and entertainment derives from two sources. On the normative plane, it is based on the text of Article 9A of the Hours of Work and Rest Law and on the position the case law takes regarding the purposes of days of rest, as was presented above. Indeed, this position may raise difficulties from the traditional Jewish law point of view regarding the appropriate character of the Sabbath and Jewish holidays. For that reason, I attach primary importance to the secondary source – namely, the Gavison-Medan Contract. The beauty of the contract in my opinion is that it is a sincere and real attempt of respected and prominent leaders of the hawkish ideological camps – Rabbi Yaakov Medan, among the leaders of the Har Etsion Hesder Yeshiva, and Prof. Ruth Gavison, winner of the Israel Prize in law, who specializes in issues of religion and state and does not come from the world of Jewish law – to reach a necessary compromise on the sensitive issue of the status of the Sabbath in the public sphere (and at the broader level, of the relations between religious and the State of Israel). In my perspective, only a true compromise in which both sides give up the aspiration of “all mine” regarding the public sphere – and certainly the personal sphere – suits the complexity of the social fabric, the national as opposed to the personal, if you will – an expression of the fact that the State of Israel is a Jewish and democratic state.

11. Against the background of this interpretation of the Hours of Work and Rest Law, the question arises of how to interpret the authority granted the municipality, in Articles 249(20)-(21) of the Municipalities Ordinance –

“(20) To regulate the opening and closing of shops, factories, restaurants, coffee shops, tea houses, drinking establishments, cafeterias, canteens and other institutions of this kind, and of cinemas, theaters and other places of public entertainment or other kinds, and to supervise their opening and closing, and to determine – without infringing on the generality of the authority – their hours of operation on any given day; However, the validity of this passage is subject to any exemption that the Minister creates in an order;

(21) A municipality may use its authority pursuant to paragraph (2) within its jurisdiction or in part of its jurisdiction regarding days of rest, taking into consideration reasons of religious tradition and regarding the day of Tisha B’av; “days of rest” – as detailed in Article 18A of the Ordinance on Governance and Law Organization, 5708-1948, on this issue, the Sabbath and Jewish holidays – from the start of the Sabbath or Holiday until their conclusion; ‘the day of Tisha Ba’av’ – in its meaning in the Law Prohibiting Opening Places of Entertainment on Tisha Ba’av (Special Authorization), 5758-1997”.

 

The combination of these clauses would appear to create explicit authorization granting the local authorities broad discretion for all that concerns opening and closing businesses on the Sabbath – be they shops and workshops or restaurants and coffee shops. However, this interpretation creates a problem, because it puts Articles 249(20) and (21) of the Municipalities Ordinance on a collision course with Article 9A of the Hours of Work and Rest Law, which prohibits, as noted, opening workshops or shops on the Sabbath and Jewish holidays in areas with a substantial Jewish population.

12. As a theoretical matter, we could deal with this apparent contradiction using three different models: First, allowing the earlier norm to prevail, for the reason that the later norm does not address the same issue, and therefore there is no contradiction between them. In our case, the substantive similarity between Article 9A of the Hours of Work and Rest Law and Articles 249(2)-(21) of the Municipalities Ordinance is too great to allow us to choose this path. Second – allowing one of the norms to prevail, according to the rules of conflict of laws that give supremacy to the later norm (lex posterior derogate priori) or the specific norm (lex specialis derogate generali). Given the centrality of the Hours of Work and Rest Law, this position does not seem appropriate in our case – because it is hard to argue that Article 249(21) of the Municipalities Ordinance sought to cancel, implicitly, such a substantive arrangement. That is especially true, given the Explanatory Notes of the Local Authorities Bill (Prohibition on Opening and Closing Businesses on Days of Rest), 5748-1988, H.K. 1872, 134, which became (in the framework of the Law to Amend the Municipalities Ordinance (No. 40), 5751-1990, S.H. 1336, 34) Article 249(21) of the Municipalities Ordinance. These explanatory notes make it clear that “the goal of the proposed law is to remove the above-stated doubt [regarding the power of local authorities to regulate the opening and closing of businesses on days of rest; N.H.] and to preserve the ‘status quo’ for that issue” (emphasis added). Because Article 9A of the Hours of Work and Rest Law, which was passed in 1969, constitutes a later norm relative to Article 249(2) of the Municipalities Ordinance (from 1964), then preserving the status quote actually means not infringing on the Hours of Work and Rest Law. It would therefore appear that in our case, we should adopt the third model, which contemplates an interaction between the later and earlier norms, which together form a harmonious common arrangement. This model is also appropriate because of the important normative status of the Hours of Work and Rest Law, including its Articles 7-9A.

Preferring this model is consistent with the position of the learned former President A. Barak, according to which:

“The presumption should be in favor of legislative harmony within a legislative system, in such a way that the meaning given to a piece of legislation will be woven ‘faithfully into the embroidery of the legislation and will form together with it a single, whole entity’ […] one who interprets any particular provision interprets the entire body of legislation, and the meaning given to any particular provision must integrate into the meaning given the rest of the legislative provisions” (Aharon Barak, Parshanut Bamishpat – Parshanut Hahakika [Interpretation in Law - Legislative Interpretation] Vol. 2, 327-328 (1993)).

 

In other words, before an interpreter resorts to conflict of laws rules, which determine which of the competing norms will prevail – he should evaluate whether “the contradiction is real or imagined”, where “he is guided by the interpretive perspective that seeks to guarantee normative coherence and systemic consistency”. Only after the interpretive attempt to create legislative harmony fails, and it becomes clear that the contradiction between the norms is real, is there room to move to the second phase and evaluate which norm enjoys supremacy – either because its normative status is higher or because it is a specific or later norm relative to its rival (Aharon Barak, Parshanut Bamishpat – Torat Haparshanut Haklalit [Interpretation in Law, General Theory of Interpretation], Vol 1, 540 (1992)). Faithful to that principle, we must seek, therefore, the interpretation that allows Articles 249(2) and (21) of the Municipalities Ordinance to live together under the same roof as the prohibition that Article 9A of the Hours of Work and Rest Law imposes on opening shops and workshops during the fixed rest days.

13. It seems that we can resolve the apparent contradiction between the above-mentioned norms using the distinction between a situation of “default” that Article 9A of the Hours of Work and Rest Law creates – closing businesses that operate in the areas of industry and commerce, and the absence of a prohibition on opening others – and the authority given to local authorities to deviate from that arrangement: if you wish, to allow a certain scope of industry and commerce; if you wish, to prohibit even the opening of places of entertainment.

In other words, Article 9A of the Hours of Work and Rest Law creates a national-state-wide arrangement, establishing that on the Sabbath, workshops or industrial factories will not be opened and there will be no commerce in shops, except in the framework of the exception grounded in Article 9A(c). However, based on the same rationale that prevents imposing a prohibition on operating places of entertainment at the national level – in other words, recognition of the existence of divergent approaches to the desired practical character of the Sabbath, and of the need to allow expression for groups whose worldviews reject the Jewish law model – the local authorities have been given the possibility to deviate from the general norm and create municipal arrangements. Thus, it is possible to balance the competing rights in the best way possible, while according weight to the unique characteristics of each urban area – including the preferences and worldviews of its residents. Sometimes, these characteristics will lead to relaxing the restrictions on business activity on the Sabbath and will permit a certain scope of commerce, and sometimes the result will be the opposite – to the point of limiting activities of recreation and entertainment.

This interpretive journey, which absolves us of the necessity to resort to conflict of laws rules, leads to the conclusion that in the absence of a relevant by-law, the nation-wide prohibition on business activity belonging to the categories in Article 9A of the Hours of Work and Rest Law will apply – and only on that business activity. It is clear that a local authority that wants to do so may deviate from the national arrangement, subject to the general restrictions imposed on municipal discretion.

14. The normative picture arising from this interpretive journey has great meaning, because it leads to the conclusion that – in contrast to other contexts in which the legislator authorized the local authorities to regulate a certain issue at the municipal level – in our case the authorities have been given relatively narrow discretion. I will demonstrate the uniqueness of the case before us using a comparison with the Local Authorities Law (Special Authorization), 5717-1956, which authorizes a local authority “to enact a by-law that limits or prohibits sale of pork and pork products intended for consumption” within its jurisdiction or in parts of it. As this court noted in the Solodkin case (HCJ 953/01 Solodkin v. Beit Shemesh Municipality, 58(5) PD 595, 610 (2004) (hereinafter the Solodkin case) –

“Unlike the prohibition of the raising of pigs, with regard to which a national arrangement was adopted, a local arrangement was determined for the prohibition of selling pig meat and meat products. The purpose was therefore that the balance between the conflicting purposes — the considerations concerning the protection of religious and national sensibilities, on the one hand, and the consideration of individual liberty, on the other — would not be made on a national level, according to a principled balancing that the legislator determined. Instead, the purpose was to make a balancing at a local level” (emphasis added).

The legislator therefore deliberately refrained from setting a general norm regarding sale of pork, and left the issue, with the value-laden decisions it implicates, to the exclusive regulation of the local government – just as it did in the context of opening places of entertainment on Tisha Ba’av (Law Prohibiting Opening Places of Entertainment on Tisha Ba’av (Special Authorization), 5758-1997). Therefore, this court could have concluded that the municipal level had been granted broad discretion, and the legislator sought to give it – and not the central government – the choice among different solutions that are within the zone of lawfulness (Solodkin case, 620). However, that is not the situation in our case. As noted, the legislator chose to create a national arrangement regarding the existence of business activity on the Sabbath, and disclosed its opinion regarding the appropriate balancing model between freedom of religion, freedom from religion, freedom of occupation and the right to equality -- imposing a prohibition on commercial and industrial activity.

Under these circumstances, while the local authorities indeed have the authority to deviate from the national-country-wide arrangement that the legislator set - their discretion is relatively narrow. And the relativity regards the Minister of Interior, as I will explain. The authorities are not operating in a normative vacuum, and they should view the balance that the legislator created on the national level as a kind of anchor, or point of departure, for conducting the balances at the municipal level (It should be noted that a similar model, sketching general principles and leaving the local government space for discretion in its implementation, was also adopted in the framework of the Gavison-Medan Contract; See art. 14 of the principles [pp. 41-42] and the explanatory notes of Prof. Gavison [p. 43]). The zone of lawfulness within which the authorities operate to regulate business activity on the fixed days of rest is limited, therefore, relative to the one in which they operate in the context of selling pork and pork products. The mirror image is that the Minister of Interior has a much broader sphere of intervention in our case – certainly when he believes that the influence of a particular local arrangement will spill over beyond the four corners of the relevant authority and may eat away at the provision of Art. 9A of the Law of Work and Rest Ours at the national level.

To summarize – the local authorities have broad discretion, and they may deviate from the provisions of Article 9A of the Hours of Work and Rest Law. However, this is not a situation in which the legislator refrained from making a normative decision and left the issue for determination at the municipal level – as it did regarding the sale of pork or opening places of entertainment on Tisha Ba’av. On the contrary, a general norm prohibiting activities of industry and commerce on the Sabbath has unequivocally been established. In this state of affairs, the autonomy granted the local government for the issue at the focus of our case leaves room for more intensive oversight by the central government. A decisive part of that oversight is analyzing the ramifications of the local decision for the national arena – and the extent of infringement on the principled normative arrangement that the legislator adopted in Article 9A of the Hours of Work and Rest Law.

To that I add that the justification for more comprehensive oversight of the central government also derives from the substantive purposes of the days of rest – which deviate from the symbolic realm (similar to, let’s say, the prohibitions on selling pork or engaging in public entertainment on Tisha Ba’av), and it concerns the fundamental rights of the workers. These rights, which the Minister considered in his reasoned position, influence the scope of the discretion of the local authorities regarding opening businesses on fixed days of rest.

15.  Given the principled ruling regarding the scope of the Minister of Interior’s intervention in decisions of the local authorities under Articles 249(20)-(21) of the Municipalities Ordinance, I accept the Attorney General’s position (presented in Paragraph 15 of the opinion of my colleague, President M. Naor), that the decision to invalidate the Second Amendment does not suffer from extreme unreasonableness – even though the Minister could, of course, have arrived at a different result. I will explain.

My colleagues, President M. Naor (paras. 26-27 [paras. 25-26-trans.] of her opinion) and Justice Y. Amit (paras. 2, 4 and 8 of his opinion) believe that the decision to invalidate the Second Amendment suffers from extreme unreasonableness, because it does not give sufficient consideration to the autonomy of the local authority. However, the normative picture that I presented offers, in my view, a response to that. It teaches that the legislator didn’t authorize the municipal level to act in a vacuum – but rather presented the nation-wide arrangement set in Article 9A of the Hours of Work and Rest Law as a departure point for exercising the authority. The autonomy granted, therefore, to local authorities is relatively limited – in a way that inherently increases the scope of the Minister of Interior’s legitimate intervention (compare with para. 8 of my colleague Justice Y. Amit’s opinion). In the case before us, the Minister of Interior explained his invalidating the Second Amendment with the concern that the supposedly local arrangement would erode the nation-wide arrangement that the legislator outlined – and would shape, de facto if not de jure, a reality that contradicts his value judgment (paras. 57-58 of the reasoned decision). In other words, it is not the balance that the Tel Aviv-Jaffa Municipality chose in itself that led to invalidating the Second Amendment – but rather its presumed influence on the national arena, beyond the borders of Tel Aviv. This explanation would appear to be at the heart of the Minister of Interior’s legitimate intervention, given the delicate system of balances between the two levels of the arrangement: national and local.

Furthermore, a study of the reasoned decision indicates that the minister did not sweepingly negate any opening of shops for selling food on the Sabbath. We should remember that the First Amendment permitted the opening of convenience stores in gas stations, the selling of food items in pharmacies – and even allocated three urban sites in which commerce is permitted. Beyond that, in his decision, the Minister of Interior took into account the number of businesses that would be permitted to open pursuant to the Second Amendment (para. 53 of the reasoned decision); their size (ibid), and the scope of discretion given to the Tel Aviv City Council regarding a future increase in the quotas (ibid, para. 56). In other words, the decision doesn’t completely negate the municipality’s ability to confer on the Sabbath a unique local character – but rather seeks a more appropriate balance between that character and the legislator’s normative determination regarding the national arena. Even if it would have been possible to arrive at a different decision, we should remember “that the appropriate solution is actually in the balance, and not in the complete negation of one world view in favor of another (para. 24 [para. 23-trans.] of President M. Naor’s opinion in the verdict). We cannot define a result that allows the unique character of Tel Aviv to be expressed – albeit in a balanced way, without completely discarding the value judgment that Article 9A of the Hours of Work and Rest Law reflects – as deviating in an extreme way from the zone of reasonableness.

Viewed in this way, the Minister of Interior’s decision does not constitute “intervention” in the municipality’s affairs. The model established is that the municipality’s position is a first decision, but it is subject to the Minister of Interior. The latter is the one authorized to approve or invalidate the by-law (“If the Minister delays the publication of a by-law […] he may do one of the following: (1) Order a cancelation of the delay; (2) Invalidate the by-law for reasons he will enumerate; (3) Return the by-law with his comments to the council for reconsideration”; Article 258(d) of the Municipalities Ordinance). Of course, he may take local considerations into account, but national considerations are not beyond the zone of his discretion – and are not an illegitimate consideration. Naturally, the range of the Minister of Interior’s discretion depends on the subject. My opinion is that, given the existing legislative picture – namely, the legislator’s decision to create a guiding national arrangement for the issue; as well as the public, moral, symbolic and practical importance of the Sabbath, including its ramifications for the substantive, fundamental rights of those who engage in the work, the local authorities’ discretion is limited. Consequently, the space for the Minister of Interior’s intervention in their decisions in this area is broader than usual. The starting point – in other words, the position of the authority – need not be the ending point. I note that Minister Deri’s decision is explained well, is thorough, and presents a consolidated position not just regarding the Sabbath but also regarding the legal situation.

Again, I emphasize, we are dealing with judicial review of the Minister of Interior’s decision. There is no dispute that the minister could have arrived at a different result, and could have approved the Second Amendment. Had he done so, I would have refrained from intervening for the very same reasons – recognition of the broad discretion granted him on the issue. Regarding the balance he chose, and review of that balance, caution is appropriate. In every decision requiring a balance between different considerations, one could arrive at a broad spectrum of results. For example, in general, one could accord equal weight to a number of considerations, or attach greater weight to a particular consideration. The decision by the executive branch to accord greater weight to a particular consideration does not necessarily render the result unreasonable – or even less reasonable. I think that the decision to invalidate the second amendment, due to considerations of protecting the nation-wide arrangement that the legislator outlined for the issue, is in the heart of the zone of reasonableness and proportionality, and there is no cause to intervene in it.

16. Following these words, the opinions of the rest of the members of the panel came to me for consideration, including various additions. I again pondered the issue, and I will say this:

In the past, in various Jewish diasporas, in Poland, Morocco, and in the old settlement of Safed, Jews observed the Sabbath according to religious law. Today, in the 21st century State of Israel, Jews argue about the Sabbath. That is especially true regarding the Sabbath in the public sphere. This argument, which is appropriate in character and image, preserves, at first glance paradoxically, the relevance of the Sabbath and guarantees that it will constantly change its shape, but will remain a unique day in the Israeli-Jewish public experience. To paraphrase the famous words of Ahad Ha’am, cited above, we can say that “More than the Jewish people kept the argument over the Sabbath, the argument kept the Sabbath and its status in the State of Israel.”

The truth must be told, and it is apparent. In the State of Israel, a large group observes the Sabbath according to Jewish law, and another large group does not do so. The range between the extremes is broad and rich. Concerning the character of the Sabbath in the public sphere, there is considerable debate among the groups and even within them. And yet, and this would be a sad irony if specifically in the State of Israel, there would be an infringement on the social-spiritual component of rest on the Sabbath, which is grounded in the Hours of Work and Rest Law. That is because the Jewish religion is the one that brought the social revolution into the world – maybe the first of its kind – that is latent in the Sabbath. The idea at the foundation of the weekly day of rest was accepted and implemented by humanity in its entirely. The angel of rest whispers into the ear and tells the worker: You are a worker but not a slave. Indeed, you shall eat bread earned through your sweat, and the work is difficult and essential, but it should not be allowed to swallow the human being and his personality. Simultaneously, the angel of rest whispers into the ear and says to the employer: You are the strong party, but for one day of the week there is equality between you and the worker, who is exempt from your affairs. Values of equality, rest and the freedom of the spirit that the Sabbath represents are strongly tied to the religious origin and history of the Jewish people and reasons of tradition.

Our framework is legal. As judges, our role is to rule according to the law of the State of Israel. Indeed, from a birds-eye perspective, and theoretically, the various opinions show that it is possible to interpret the Hours of Work and Rest Law and the Authorizing Law in different ways. However, that situation itself may constitute, in my opinion, an additional reason for the caution required regarding the court’s intervention into the delicate issue placed before us. In any event, and without diving into the details again, my interpretive position is that the existing legal framework is built on an interaction between the local and the national, the religious and the social, individual liberty and recognition of the special public status of the Sabbath, and the city council’s powers and the powers of the Minister of Interior. The interpretation that seems correct to me, for the reasons enumerated, is that at the start of the game, the ball is in the city council’s court, but it later passes to the Minister of Interior’s court. Given the implications of municipal decisions about the rest of the worker, the employer and the business on the Sabbath – not to mention the status of the Sabbath as a national cultural symbol – the local authorities have not been granted exclusive discretion on the matter. The law authorizes the Minister of Interior to approve or invalidate by-laws. In my opinion, what emerges is the conclusion that the rest of the worker, the employer and the business on the Sabbath constitutes an issue that is not just local. In addition, it is hard to accept that the legal ruling in our case would not affect different places in Israel, beyond the borders of Tel Aviv-Jaffa. We should recall that the Minister of Interior is a member of the government chosen through parliamentary elections. Had the Minister of Interior chosen another position, I would think that the law would require refraining from intervening. In contrast to the majority position and the position of my colleague, Justice N. Sohlberg, I think that the outline of the law allows for broad interpretation, which could lead to two results. On the one hand, the law authorizes the local authorities to permit commerce on the Sabbath, and on the other hand it imparts to the Minister of Interior broad discretion in which we should not rush to intervene. Given the Minister of Interior’s position, which is reasoned and to the point, my opinion is that we should respect it, and this court should not intervene.

17. Were my opinion to prevail, then, we would order the motion for a further hearing granted so far as the Second Amendment is concerned – in the absence of a cause for intervening in the reasoned decision of the Minister of Interior in our case. Given the result, and the way the proceedings have played out, I would not order court costs.

 

•  

 

Justice N. Sohlberg

I read the important opinion of my colleague, President M. Naor, and I considered its reasons, but I do not agree with it.

1. Two central questions have been set before us: first, were the amendments to the Tel Aviv-Jaffa By-Law of Tel Aviv-Jaffa (Opening and Closing Shops), 5740-1980 enacted pursuant to authority in law? Second, does the Minister of Interior’s decision not to approve these amendments rise to the level of extreme unreasonableness? Note: the question of authority precedes the question of reasonableness; in the absence of authority, there is no need to address the question of reasonableness. However, in her opinion, my colleague places reasonableness before authority.

According to her methodology, the principle of local autonomy means that the discretion over opening and closing businesses on days of rest should be first and foremost given to the local authority. That is the principled point of departure for my colleague, the President, in her opinion – from the beginning and in the end – and it seamlessly weaves together the opinions of my male and female colleagues who joined the majority opinion. In their approach, “it is

2. The dispute between my colleague and me – similar to the dispute that emerged between us recently in FH HCJ 5026/17 Gini v. Chief Rabbinate [unpublished] (September 12, 2017) (hereinafter: Gini Further Hearing) – is not just the question of what is the interpretation of the law; the root of the dispute is deeper, and it is entrenched in the question of the way in which the law should be interpreted. My colleague, it seems to me, interprets the law ‘from top to bottom’, according decisive weight to the fundamental, value-laden perspectives that are suitable (in our case, the desired division of authority between the central government and the local government); as a consequence, the desired law takes the place of the law in fact, and fundamental perspectives are what shape, de facto, the correct interpretation. According to my approach, interpretation of the law should be done ‘from bottom to top’, through the work of ‘digging’, which is sometimes exhausting, from the foundation to the rafters. It is not (just) perfuming ourselves with fundamental principles and constitutional rights, but rather analyzing the law and all its parts, from its legs to its guts.
3. Before we address the merits of the issue –  a brief comment on the justification for holding a further hearing. According to the methodology of my colleague, the President, “the procedure of a further hearing is intended for clarifying a rule that was decided in a verdict, and not for discussing what the verdict does not contain” (para. 17) [para. 16-trans.], and therefore there is no room to address the Minister of Interior’s position in the context of the further hearing before us, “which was not submitted to the panel in the proceeding that is the subject of the further hearing” (ibid). According to her position, that is sufficient to warrant rejecting the motion for a further hearing, and her addressing the merits of the Minister of Interior’s position is therefore ‘not required by law’. As far as I’m concerned, there is no justification for saddling the petitioners with the Minister of Interior’s omissions. In any event, even without addressing the question of whether the Minister of Interior’s position in itself warrants holding a further hearing (given the date it was submitted), the motion for a further hearing is based in more than just that position alone. In addition to the Minister of Interior’s position, we have been presented with a question of the interpretation of the provisions of Article 9A(a) of the Hours of Work and Rest Law, 5711-1951 (hereinafter also: the Law), of the provisions of Articles 249(2) and 249(21) of the Municipalities Ordinance [New Version] (hereinafter also: The Ordinance), and the relationship between them. As counsel for the Attorney General noted in their response – “Concerning the honorable court’s determination in Paragraph 22 of the verdict [that is the subject of the further hearing – N.S.] regarding the normative relationship between Article 9A of the Hours of Work and Rest Law and Articles 249(2)-(21) of the Municipalities Ordinance – this is a new and important precedent” (para. 25 of the response). My colleague, the President agrees, in her ruling that this issue needs to be decided (para. 41 of her opinion [para. 40-trans.]), and I agree. I will now address the question at hand.

 

The Authority

4. Does the Tel Aviv-Jaffa Municipality have the authority to order the opening of businesses on the Sabbath? In order to answer that question, we must address the correct interpretation of the provision of Article 9A(a) of the Hours of Work and Rest Law, and of the provisions of Articles 249(2) and 249(21) of the Municipalities Ordinance, and the symbiotic relationship between them.

Article 9A(a) of the Law of Work Hours and Rest

5. According to my colleague’s position – “the Hours of Work and Rest Law does not address the question of opening or closing businesses on the day of rest, but rather the personnel question of work on the day of rest” (para. 43 of her opinion [para. 42-trans.]). My colleague learns this from the text of the provisions of Articles 9 and 9A of the law and from their captions, as well as from the explanatory notes to the draft law through which Article 9A was added. To borrow from the world of yeshiva erudition: my colleague believes that the provision of Article 9A(a) creates a “gevara” prohibition – hinging only on the shop-owner; as opposed to a “heftsa” prohibition – whose application is on engaging in commerce in the shop itself. This division, which is also relevant on the conceptual level, may also have a certain hold in the text of the law; in any event, in my opinion, it cannot withstand an evaluation of the purpose of the law – subjective and objective alike. As will be clarified below, the purpose of Article 9A is to prohibit a shop-owner from engaging in commerce in his shop on the days of rest; either personally or not personally.
6. As noted, according to my colleague, the text of Article 9A and its caption indicate that its application is personal. As for me, I think the text of the article (“A shop owner shall not engage in commerce in his shop”) and its caption (“Prohibition on Work During the Weekly Rest”) do not help our case; both are consistent with the two interpretive possibilities before us. The term “work” and the phrase “shall not engage in commerce” can be interpreted as a personal act, as well as a description of general activity. Thus far, the court has not had to directly address the interpretation of Article 9A, and in any event not to rule on it. It is true that we can find statements about the article and tiny hints about the relationship between it and the Authorizing Law, but only as obiter dictum, because there was no need for an exhaustive, in-depth discussion of the interpretation of the law’s provisions. That was true for the Israel Theaters case (HCJ 5073/91 Israel Theaters Ltd. v. Netanya Municipality, 57(3) PD 192, 207 (1993) (the verdict addressed cinemas, and as will be clarified below, there is no dispute over the fact that Article 9A does not apply to them); that was also the case for the Design case (HCJ 5026/04 Design 22- Shark Deluxe Furniture Ltd. v. Director of Sabbath Work Permits Department – Ministry of Labor and Social Affairs, 60(1) PD 38, 63 (2006) [sic-trans.]. There is therefore no ‘precedent’ on the issue, and that is why we have convened. I will evaluate the intention of the legislator, as reflected in the legislative history, in case it can shed light on the correct interpretation of the article (on the importance of legislative history as a primary interpretive source, see my opinion in the Gini Further Hearing, paras. 4-11).
7. In bringing the draft law through which Article 9A was added to The Law before the Knesset plenary for the first reading, then-Minister of Labor Yigal Allon began by presenting the bill as such:

“I am satisfied that this time I can submit to the Knesset a bill that can expand the application of the obligation of rest on additional kinds of workers, without violating the status quo regarding religion.

As far back as the debate that emerged in the last government, I opined that instead of legislating a law having a religious character, which could infringe on freedom of recreation, we should amend the Hours of Work and Rest Law, which blends a social principle with recognition of the days of rest traditional to members of each religion.

While at the start of this century, there was a conception that labor laws are intended to protect only manual wage laborers, this conception has expanded, and there is no dispute today that the state should extend its protection to every worker as such – a manual laborer and an office clerk, a salaried employee and an independent contractor.

The draft law before you seeks to establish that what is accepted for the Sabbath and Jewish holidays rest for salaried employees in manual labor and industry will also apply to independent contractors and members of cooperatives in those same sectors. Similarly, commerce in shops will be prohibited.

[…] In general, labor laws seek to ground existing practices, to improve the situation while setting legal determinations. In this case, too, the proposed legislation gives a legal imprint to the existing situation. Currently, private, cooperative factories and workshops throughout Israel and in the agricultural settlements also stop working. That is true for commerce in the shops. The concept of shop does not include guest houses, restaurants, coffee shops, places of entertainment, clubs, gas stations, beaches, swimming pools, sports facilities, etc. For these issues, the situation remains as it is today, both legally as well as in terms of the reality.

[…] It is hereby proposed to expand the application of the Hours of Work and Rest Law without infringing on the accepted status quo” (D.K 30, 2157-2158 (5726); emphasis added – N.S.).

8. It is clear: the provision of Article 9A was not passed in a vacuum, but rather against the background of the existence of a ‘status quo’, in which people stop working on days of rest in factories and workshops, and shop owners cease their commerce; at the same time, businesses that meet needs for culture, entertainment and leisure are allowed to continue to operate as usual, even during days of rest. Excepting these kinds of businesses (called “places of entertainment”) from the prohibition grounded in Article 9A(a), in order to preserve “recreational freedom”, provides an indication about the bounds of the general prohibition. Infringing on ‘recreational freedom’, which the legislator feared, would happen only if places of entertainment were closed. If the application of Article 9A is indeed personal, how is it relevant to a violation of the status quo? If businesses – commerce or entertainment – can remain open independently through non-Jews, what is the point of distinguishing between the owners of this and the owners of that?
9. Furthermore, the interpretation that the application of Article 9A is personal and does not seek to prohibit the commerce itself within the shops on days of rest appears to be inconsistent with the explicit words of then-Minister of Labor Yigal Allon, who said “commerce in shops will be prohibited” (ibid). Note: that was not an aside, but rather a faithful expression of the substance of the legal arrangement. Inter alia, comments made during the various debates of the draft law – both in the Knesset plenary as well as in the Labor Committee – clearly testify to the fact that the members of Knesset and the legal advisors related to the prohibition in Article 9A – clearly and simply – as a prohibition on commerce itself, which therefore requires closing businesses on days of rest. Thus, for example (and this is just a ‘tiny taste’ of the examples), in a debate held in the Labor Committee on January 1, 1969, Menahem Harniv, the legal advisor of the Ministry of Labor, said that “the provisions of the law require Jews to close their shops on the Sabbath”; Later in the debate MK Moshe Aram, the committee chairperson, noted that “this law guarantees that a Jew will not open his shop on the Sabbath” (Transcript of Meeting No. 185 of the Labor Committee, 6th Knesset, 13-14 (January 1, 1969). Similarly, during the debate on July 3, 1968, one of the committee members asked the legal advisor of the Labor Ministry, will the law require closing businesses that were open prior to its entering into force? His answer was as follows: “If there is currently a local authority in which shops are open – because there is no by-law that closes – let’s assume theoretically there is a city in which shops are open on the Sabbath – and this will obligate the shops even without the local authority doing anything” (Transcript of Meeting No. 154 of the Labor Committee, 6th Knesset, 14 (July 3, 1968) (hereinafter: Transcript of the July 3, 1968 debate).
10. We can find another unequivocal expression of the legislator’s intention in comments made during a debate in the Labor Committee over Article 9A(c), which provides as follows:

“A non-Jew may – regarding his workshop, industrial factory or shop that is within the jurisdiction of a local authority or in a quarter of the local authority where the number of non-Jewish residents are at least one third of all residents of the authority or quarter, depending on the circumstances – observe the prohibitions of this article on the above-stated days of rest or on his Sabbath and holidays, as he chooses”.

11. This article, which creates an exception to the provisions of Article 9A(a), teaches us that a non-Jew may open his shop on the days of rest, provided that it is in an area where the number of non-Jewish residents constitute at least one third of the residents of that area. The deputy legal advisor of the Ministry of Religious Affairs said, against the background of the enactment of this article:

 

“The trend is in fact a compromise between two opposing interests. In general, it is in the interest of every person to observe the days of rest in his religion freely, and in the State of Israel there is freedom of religion for all who desire it, for all the religious communities. On the other hand, we should ensure that a small minority living in the same quarter or city will not disturb the Sabbath or holiday rest of the large majority of people living in the same area. Therefore we made this formula of compromise, of two thirds and a third. That means if the minority in that same place is large enough to constitute more than a third of the residents, then we should take it into consideration. It is already a factor, even though it is still a minority. It might be only 40%, but it is a large enough minority that we should take it into consideration and give it the possibility to choose its days of rest according to its religion. But if the minority is small, let’s say 20%, in my opinion it would infringe on the large majority, the 80% of residents, if that 20% would open their businesses on the Sabbath. That is what the law seeks to prevent […]

Were we not to make this limitation, every person would be able to open his business without any limitation – let’s say if there were just 5% non-Jews in an area of a Jewish community, without taking into consideration the 95% Jews there – we might even encourage fictions, of Jewish business owners fictitiously, or through other arrangements, selling their businesses to non-Jews in order to open them on Sabbath days. That is what the law explicitly seeks to prevent and therefore established residents of that same area and not business owners as a criterion for opening or closing the shops (Transcript of Meeting No. 162 of the Labor Committee, 6th Knesset, 9 (July 31, 1968); emphasis added – N.S.).

12. The consequence of the above is that the purpose of the prohibition established in Article 9A is also aimed at preserving the character of the public sphere on days of rest by closing commercial establishments on the Sabbath, because if that were not the case – why would the legislator set a limitation related to the composition of the population?

Furthermore, setting this limitation is also embedded in the fear of a fiction, in which Jewish business owners would sell their shops to non-Jews and thus (“or through other arrangements”) bypass the prohibition on opening the store on days of rest. Note well: the same fiction that the legislator feared would be brought in by Jewish shop owners through the “back door” – my colleague, the President, seeks to bring in through the “front door”; It would be sufficient for a Jewish shop owner to engage in commerce in his own shop through a non-Jewish employee, and he would not have to make the effort to “sell” his shop.

13. We have before us explicit and unequivocal expressions of legislative intent. Had counsel for the Attorney General not argued that “It is difficult […] to know the subjective intention of the legislator at the time it enacted the above-mentioned Article 9A” (para. 54 of the Attorney General’s response; in my opinion it is not so difficult, it is our obligation in interpreting a law to deal with all its aspects), I would barely have bothered to expand on the issue. I have brought only the conspicuous examples, which can enlighten us and give us a clear explanation. One who wishes to learn and go into depth can read the various transcripts, and he will come to know that the debates over the draft law – explicitly and implicitly – are all based on understanding the prohibition as relating to the very commerce in the shop, and not just the labor of the shop owners.
14. Beyond the unequivocal intent of the legislator (and even if I were to accept the approach that its weight in legislative interpretation is not great; see the position of my colleague in the Gini Further Hearing, para. 19 of her opinion), we will address the fundamental internal contradiction created by approaching Article 9A, with its subsections, as dealing with the personal question of work on the day of rest. As is known, “Every legislative unit is evaluated against the background of the entire piece of legislation in which it appears and from which we can learn the purpose that the legislator sought to achieve. We should aspire to achieve harmony among the various parts of the law (Aharon Barak, Parshanut Tachlitit Bamishpat ]Purposive Interpretation in Law[ 402 (2003); emphasis added – N.S.). We should therefore interpret the prohibition established in Article 9A(a) in a way that is consistent with the provision of Article 9A(c), and we should not abide by an interpretation that places them in a state of contradiction (see also HCJ 6494/14 Gini v. Chief Rabbinate [unpublished], para. 34 of my opinion (June 6, 2016)). As the Minister of Interior noted in his letter of June 26, 2017 to the Attorney General (which was submitted for our consideration under the heading ‘Position of the Minister of Interior’; emphasis in original): “Adopting the interpretation [according to which the application of the prohibition set in Article 9A is personal – N.S.], would lead to an absurd situation in which a non-Jew would be prohibited from working as an independent business owner on the Sabbath in most cities in the State of Israel (insofar as they don’t have ‘at least a quarter of the authority’s residents’ who are non-Jews, pursuant to Article 9A(c-d) of the law), amazingly, he would be permitted to work as an employee for a Jewish business owner. Does a fundamental contradiction like that make sense?”; It is a good question, and it has no answer – neither in the response of the Attorney General nor in the opinion of my colleague, the President.
15. The intention of the legislator, as well as a logical and harmonious reading of Article 9A of the Hours of Work and Rest Law, with its subsections, indicates that the prohibition grounded in it does not apply just to the work of shop owners, but rather to the very fact of commerce in shops on the days of rest.
16. Note: if indeed, as my colleague concluded, the application of the prohibition set in Paragraph 9A(a) of the law is personal, and the point of departure is that it is permissible for commercial establishments to be opened on the days of rest (by non-Jews), then we would, it seems, close the discussion at this stage, because what would be the value of the Authorizing Law? My colleague adopts the argument of counsel for the Attorney General, namely that “we are dealing with provisions of a law that cover various issues, which we can compare, metaphorically, to two stories completing each other to form one building. One who enters the first floor – the licensing floor – would find himself facing the power of the local authority to regulate the opening and closing of businesses on the Sabbath. Once he leaves the first floor, holding a license to open a business, he approaches the second floor – the floor of the non-waivable labor laws. There the business owner discovers he is obligated to observe the prohibition against employing Jews and Jews working on the Sabbath, together with all the other provisions of the Hours of Work and Rest Law” (para. 68 of the Attorney General’s opinion; para. 40 [para. 39-trans.] of the President’s opinion). Think about it: If the default set in Article 9A is that the entirety of businesses is permitted to open on days of rest, why do we need two stories? Why should the business owner bother entering ‘the first floor’? It would be enough to approach ‘the second floor’, which allows him to open his business through a non-Jew, even in the absence of the Authorizing Law. However, to the extent that Article 9A prohibits the very act of commerce in shops during days of rest, then we must evaluate the bounds of the power granted the local authority pursuant to Articles 249(2) and 249(21) of the Municipalities Ordinance (quoted in para. 39 [para. 38-trans.] of the President’s opinion) and the relationship between it and the above-mentioned prohibition. I will address that now.

 

The Authorizing Law

 

17. According to my colleague, “the Authorizing Law explicitly authorizes the local authorities in Israel to enact provisions in their by-laws that address opening businesses in their domains on the Sabbath […] The above-referenced article [Article 249(21) – N.S.]  explicitly refers to Article 249(21), which addresses ‘the opening and closing of shops’ […] I cannot accept the argument that a law that authorized, inter alia, ‘regulating the opening […] of shops and factories […]’ was intended to apply only to places of entertainment or only to regulating the closure of businesses. That argument is incompatible with the clear text of the law” (ibid; emphases in original). According to my colleague, even if we accept the interpretation that Article 9A articulates a sweeping prohibition against opening businesses on the Sabbath, “it would be a contradiction between the Authorizing Law and the Hours of Work and Rest Law, meaning provisions that are on the same normative plane. Under the non-interpretive standards we use […] the Authorizing Law prevails as a law enacted after the Hours of Work and Rest Law […] and in any event it is a more specific law that specifically grants authority to the local authorities in Israel in a targeted way, in contrast to the generality of the Hours of Work and Rest Law” (para. 44 [para. 43-trans.] of her opinion). 
18. It cannot be denied. The broad language of Article 249(20), on which Article 249(21) rests, apparently contradicts the provision of Article 9A of the Hours of Work and Rest Law. In order to deal with this contradiction, we must evaluate how things developed chronologically. As I will clarify below, according to the non-interpretive standards that my colleague discussed, the Hours of Work and Rest Law is the later, and also the more specific law regarding the power granted the local authority pursuant to the Municipalities Ordinance.
19. The Municipalities Ordinance [New Version] was enacted in 1964, based on the Mandatory Municipalities Ordinance. Article 249 of the ordinance establishes the powers granted to the municipality, including the general authority to regulate “the opening and closing of shops” (caption of art. 249(20) of the ordinance). Based on that authority, together with the authority granted the municipality to enact by-laws pursuant to Article 250 of the ordinance, local authorities have, throughout the years, enacted by-laws regulating the opening and closing times of various businesses in their jurisdictions on days of rest.
20. In 1969, the Hours of Work and Rest Law was amended, and Article 9A was added to it, which set, as aforementioned, a prohibition on commerce in shops on days of rest, with a distinction drawn between commerce and places of entertainment. The question of the meaning of “shop” as stated in the article, and the need to define it, were debated at length within the Labor Committee; during the debate on July 3, 1968, a letter signed by the Minister of Justice, The Minister of Religion and the Minister of Labor was presented, in which they proposed to add to Article 9A the following clarifications:

“(a) To add a definition of the term ‘shop’ as follows: a shop for purposes of this article – a place of business whose primary business is selling goods to be consumed outside the place. Excepting pharmacies and gas stations.

(b) To add a provision establishing that in order to remove doubt, it is hereby clarified that each local authority will be authorized to enact by-laws adding, within the jurisdiction of the authority, a prohibition on running, on the weekly day of rest, a business whose running is not prohibited by this article” (Transcript of the July 3, 1968 debate, p.2; emphasis added – N.S.).

 21. From the above we learn two things relevant for our case: First, in legislating Article 9A, the legislator had in mind the local authority’s power to enact by-laws regarding opening and closing times for businesses on days of rest. The clarification that the legislator considered adding on this issue was only “to remove doubt”; Second, the provision of Article 9A sought to establish an arrangement that set a threshold of closing businesses on days of rest, to which the local authority would be allowed to add a prohibition regarding “a business whose running is not prohibited by this article” (meaning – an entertainment establishment), but not to subtract from it (meaning – to permit the opening of commercial establishments). The words of Menahem Harniv, the legal advisor to the Ministry of Labor, as he clarified the need for the addition proposed in the ministers’ letter, are instructive regarding the scope of the municipality’s authority under the amendment to the Hours of Work and Rest Law and thereafter:

“For those who think that the local authorities have the power to prohibit [opening businesses – N.S.] – this only adds. It says the same thing that already exists, and in fact does not change something. For those who, by the way, want to say: If I prohibit, then I can also permit […] then there’s no need to accept the whole law. Then there’s no need for a state law. We can leave it as is. Every local authority – if it wants, may prohibit, and if it doesn’t want – may permit” (ibid, p. 12).

22. We thus see that prior to the legislation of Article 9A, the local authority’s power in regulating the opening and closing of commercial and places of entertainment on days of rest was quite broad – if it wanted, it prohibited, if it wanted, it permitted. Article 9A of the law narrowed the bounds of that power, and essentially negated the power of the local authority to enact a by-law that permits the opening of ‘shops’ that had been prohibited from opening on days of rest. Note: Unlike my colleague, Justice N. Hendel, I do not think that Article 9A defines a ‘default’ from which the local authority may deviate (para. 13 of his opinion). In my opinion, this article, which was, as noted, enacted out of recognition of the power of the local authorities to regulate the opening and closing of ‘shops’ in their jurisdictions on days of rest, in practice limited such power. To complete the picture, I note that at the end of the day, it was decided not to add the above-mentioned clarifications from the ministers’ letter (because, inter alia, the main points were clarified in the transcript), but that does not alter the fact that Article 9A was enacted while the legislator had in mind the power granted to the local authorities pursuant to Article 249(2).   
23. I will therefore repeat what I said at the start: Indeed, the arrangement grounded in Article 9A of the Hours of Work and Rest Law stands in contradiction to the text of Article 249(2) of the Municipalities Ordinance. However, the arrangement in Article 9A is the later in time, it is the more specific of the two, and therefore it narrows the broad authority imparted to the municipality under Article 249(20).
24. Having clarified the relationship between Article 9A and Article 249(2), we can evaluate the substance of the amendment that was done by adding Article 249(21) to the ordinance. As my colleague the President noted in her opinion (para. 38), the basis of the Authorizing Law in the Magistrate Court’s verdict in Crim Case (Jerusalem Magistrate) 3471/87 State of Israel v. Kaplan [unpublished] 5748(2) PM 26 (1987) (hereinafter: the Kaplan case), in which it was held that local authorities may not order the closing of places of entertainment on days of rest for religious reasons. Given that, the Municipalities Ordinance was amended, and Article 249(21) was enacted, which sought to permit the local authority to also consider religious considerations in exercising its power under Article 249(2) of the ordinance. In bringing the draft bill before the Knesset plenary for a second and third reading, the committee chairperson, MK A. Lein, emphasized that, “this is not a special law, that is the authorizing law; what is before us is an amendment to Article 249 of the Municipalities Ordinance […] this law is not about changing an established and accepted legislative norm. We have here a decision of a Magistrate Court in Jerusalem, which has created confusion about the meaning of the law” (Transcript of Meeting No. 241 of the 12th Knesset, 3, 8 (December 17, 1990); emphasis added-N.S.). The consequence of the above is that the addition of Article 249(21) was not intended to establish a new power of the local authority to regulate the opening and closing of businesses in its jurisdiction on days of rest, but rather explicitly to clarify that the power granted the local authority at the outset, under Article 249(2), could also be exercised “taking into consideration reasons of religious tradition”. As the committee chairperson noted: “The central and most important change in the draft bill before you is encompassed in the provision that says that opening and closing businesses and places of entertainment in Israel may be done, by explicit authorization, also for reasons of religious tradition. That is the central, principled and exclusive change included here in the draft bill” (ibid, p. 5; emphasis added- N.S.). In my opinion, Article 249(2) clarified what is already clear.
25. To summarize this part: Article 249(20) grants the local authorities power to regulate the opening and closing times of businesses in their jurisdiction, including during days of rest. Article 9A of the Hours of Work and Rest Law established a specific arrangement, later in time, for the opening and closing of businesses on days of rest. That arrangement, in practice, narrowed the broad power that had been granted to the local authorities under Article 249(2). Article 249(21), which was worded by reference to Article 249(20), sought explicitly to clarify that this power of the local authority can also be exercised for religious considerations. In any event, Article 249(21) does not seek to change the bounds and substance of the authority, which is still subject to the arrangement set in Article 9A.

 

Social Purpose

26. An evaluation of the Hours of Work and Rest Law from a broader perspective also supports the conclusion that the local authority lacks the power to order the opening of commercial establishments on the days of rest. As is known, “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” (the Design case, p. 57). One purpose is a social-societal purpose, “that a weekly day of rest should be designated for each person to rest from his work, spend time with his family or in the company of friends and have time for holiday and entertainment, according to his choices and preferences. Establishing the day of rest was also intended to protect the health of the worker and guarantee fair labor conditions” (Israel Theaters case, 207-208). The second purpose is religious-national, “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” (Design case, p. 58; On the national, spiritual and cultural importance of the Sabbath see the beautiful words of my colleague, Justice N. Hendel, in paragraph 2 of his opinion).
27. The prohibition on opening commercial establishments on the Sabbath, which dictates – and to a large extent compels – a unitary day of rest for the entire economy, with some infringement on freedom of occupation, constitutes a central means of achieving the purposes of the law, and it is what allows business owners to rest from work without worrying about their livelihoods: “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” (Design case, p. 63). If we accept the interpretation that permits the opening of commercial establishments on days of rest, we would, in practice, negate the ability of business owners who wish to do so to stop working on their day of rest; they were crying in grief under the weight of their work on the Sabbath, and their cry for help rose up. Thus, the owner of a commercial establishment who decides to make his own Sabbath, meaning to open his shop on the Sabbath (through a non-Jew) acquires for himself – and according to my colleague, lawfully so – a competitive advantage over the commercial establishments operating nearby. The latter, who fear incurring financial loss – both in terms of loss of profits as well as the ‘leaking’ of their customer base – would be forced to open their shops, too, in order to avoid ‘being left behind’.  Therefore they will have to hire non-Jewish workers (see Articles 9 and 7(b) of the Hours of Work and Rest Law), but the ability to do so is reserved particularly for the owners of large businesses, who have the financial resources required to do so. A small business-owner, on the other hand, who cannot afford to hire a non-Jewish worker to work in his place on the day of rest, will throw his hands up in the air. The small business owners don’t even have the possibility of giving up their day of rest and competing: On one hand, they can’t afford to hire a non-Jewish worker; on the other hand, they are not permitted to engage in commerce in the shop themselves. The small merchants are the ones expected to absorb the financial loss stemming from opening commercial establishments on the days of rest (see and compare the words of Justice (as he was then called) E. Rubinstein in App Adm Pet 2469/12 Bremer v. Tel Aviv-Jaffa Municipality (unpublished) (June 25, 2013), para. 3). Clearly, such a result is not desirable, and it is completely opposed to the social purpose of the Hours of Work and Rest Law.
28. We should now ask: if the social purpose is indeed so important, why distinguish between commercial establishments and places of entertainment, as the legislator did? Shouldn’t – from both a national and social perspective – places of entertainment also stop their work? I think we can actually find an answer to that question in the words of my colleague the President (para. 50 [para. 49-trans.]):

“Communal life is not ‘all or nothing’ but rather is based on tolerance for a divergent opinion, mutual respect and mutual compromise. Communal life is not ‘black and white’ but rather a spectrum. It is responsive to the recognition that human beings are free creatures who design their life stories, but also to the recognition that they do so within the framework of society and not on a deserted island. It is based on the understand that each of us bears responsibility for society as a whole, but that does not mean giving up on fundamental components of our identity or the uniqueness of each of us. It is not a perspective of ‘I won’t sign on to desecrating the Sabbath’ but rather recognition of the indispensability of the perspective, ‘Live and let live’.

29. The social purpose has two layers: The first layer is concerned with rest from labor and relaxation from travail; the second layer stands on the back of the first, and it is concerned with the quality of that rest. Specifically, due to the great importance of days of rest, we should recall that the character of the rest varies among people. For one person, the Sabbath delight is in prayer, the blessing over the wine, a feast, and rest within the bounds of Jewish law; another person, in contrast, seeks to delight in a museum exhibition, a family outing to the cinema or resting on the seashore. We should therefore allow each person to shape his day of rest according to his world view and belief:
30. 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 [...] 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” (Design case, pps. 66-67).

 

30. A person’s right to shape his day of rest in his image is not unlimited; additional values and interests hang in the balance, and we must balance between them. Opening commercial establishments on the Sabbath is different than opening places of entertainment – from both the point of view of the shop owners as well as the consumers’ point of view. The absence of a prohibition on opening places of entertainment on the Sabbath does indeed inflict a certain harm to the Sabbath day profits of owners of places of entertainment who seek to stop their work, but that harm is of a more limited quality and nature:

“A person who buys a pair of shoes on the Sabbath will not buy another pair during the week. Therefore, if some shoe stores are open on the Sabbath, those interested in closing on the Sabbath will lose part of the proceeds that would have otherwise accrued during the week, had all the shops been closed on the Sabbath. This loss would apparently be considerable, in light of the fact […] that the proceeds that would be received at this kind of business on the Sabbath would be considerably greater than the proceeds received during the week. Consequently, opening one shoe store on the Sabbath exerts significant pressure on all the owners of shoe stores in the area to open their businesses and work on the Sabbath. The situation regarding places of entertainment is different: a person who sits in a coffee shop or goes to the cinema on the Sabbath will not, for that reason, refrain from sitting in a coffee shop or going to the cinema again during the week. Therefore, the loss caused to one who chooses to close his coffee shop on the Sabbath will not substantially influence his proceeds during the week” (Gidon Sapir, “’Vikaratem Lashabat Oneg?’ Avoda Mis-char Vibilui Bishabat Biyisrael Mekom Hamidinia Viad Hayom [‘And Call the Sabbath a Delight?’ Work, Commerce and Leisure on the Sabbath in Israel from the Founding of the State to the Present]”, 31 Mehkarei Mishpat 169, 222 (forthcoming 2017)).

31. There is also a substantial difference from the point of view of the consumers. As noted, the social purpose supports the right of consumers who want to experience pleasure according to their viewpoints, belief and preferences. That is not the case concerning commercial activities. Commerce is concerned with buying and selling, its main point is financial profit, functional needs that are not related to rest or leisure. Furthermore, the functional nature of commercial activity is expressed, inter alia, in the fact that there is no advantage to engaging in shopping particularly on the day of rest. Making purchases at the grocery store or similar place can also be done before or after the Sabbath. That is different from activities of leisure and rest, which by their nature can take place particularly on the Sabbath, the day of rest, when all family members have stopped working together and are perfecting their rest with joint activities. I will clarify and emphasize: there is no doubt that opening commercial establishments on the Sabbath constitutes a significant addition of convenience for a broad community of consumers. That should not be dismissed at all. Convenience, while it is not a fundamental constitutional right, is not a vulgar word. A person’s desire to have the chance to buy milk and eggs and soy sauce (and also clothing and furniture) on the Sabbath is understandable and legitimate. However, that desire is not the whole story; hanging in the balance is also the fundamental right of the owners of the commercial establishments who want to stop their work on the day of rest. The addition of comfort likely to stem from commercial consumption on the Sabbath does not justify such significant harm to the small-scale merchants.
32. Furthermore, excepting places of entertainment from the bounds of the prohibition set by Article 9A of the law allows the owners of places of entertainment – small and large, rich and modest – who choose to give up their weekly rest, to operate their businesses themselves, without relying on salaried employees. It should also be noted that the distinction between commercial establishments and places of entertainment is deeply rooted and accepted in the discourse about the image of the Sabbath in the State of Israel; it is not by chance that, for years, it has taken root in draft laws and various public contracts (Ruth Gavison and Yaakov Medan, Masad Liamana Chevratit Chadasha Bein Shomrei Mitzvot ViChofshiim Biyisrael [Foundation for a New Social Contract between the Religious and Secular in Israel], 223-237 (5753); Sapir, pps. 217-222; Elyakim Rubinstein and Noam Sohlberg, “Dat Vimidina Biyisrael Bishnat Hayovel [Religion and State in Israel in the Jubilee Year]”, Manhe Liyitzhak; Kovetz Mamarim Lichvodo Shel Hashofet Yitzhak Shilo Bigvurotav [Mediator for Yitzhak: Collected Articles in Honor of Judge Yitzhak Shilo in his Courage] 399 (eds. Aharon Barak and Menashe Shava, 5759), also printed in Elyakim Rubinstein’s book, Nitivei Mimshal Umishpat [Paths of Governance and Law[ 196, 214-218 (5763)).
33. The key word: Balance – between the rest of the merchants and the rest of the consumers. It is not a perspective of “I won’t be party to desecrating the Sabbath” but also not a perspective of “I will buy milk and eggs on the Sabbath for spite”. “Live and let live,” my colleague said; and I say – “Rest and let rest”. How appropriate for our issue are the words of the Jewish-American philosopher and theologian, Abraham Joshua Heschel, in his monumental book, ‘The Sabbath’:

“Someone wishing to reveal the sanctity of the day is tasked with abandoning the alienation that exists in the vulgar commerce of life, and his being trapped under the yoke of his labor and sweat. He should walk far from the strident voices of the other days, from the tensions and greed of acquisition […] he should detach from his work, and understand that the world has already been created and will survive even without the help of humankind. Six days a week we wrestle with the world, wringing profit from the earth; on the Sabbath we especially care for the seed· of eternity planted in the soul […] Six days we strive to master the world, and on the seventh day we should be wise enough to master our selfhood” (Abraham Joshua Heschel, Hashabat [The Sabbath] 33 (trans. Alexander Ibn Hen, Yediot Ahronot 2003)).[SB1] 

 

On the Sabbath, the darling of days, we ‘should be wise enough to master our selfhood’ , to exit the trap of “the yoke of labor and swea[SB2] t’; so that we can relax, rest, and fulfill the words of the prophet Isaiah (58; 13) ‘And call the Sabbath a delight”, and to distinguish, as the law instructs, between commerce and pleasure.

34. The subjective purpose of the above-mentioned law’s clauses, as clearly reflected in the legislative history; the reciprocal relationship between them over the axis of time; and also the objective purpose, which relates to the social considerations at the foundation of the Hours of Work and Rest Law – lead to the conclusion that the local authority does not have the power to order the opening of commercial establishments on days of rest.

 

In the Margins: The Reasonableness of Reasonableness

35. At the heart of my opinion – the question of the power of local authorities to order the opening of commercial establishments on the Sabbath. Once I reached the conclusion that such authority does not exist, I need not address the question of the reasonableness about which my colleague expounded, but it is impossible to remain exempt, without saying anything. I will say only this: according to my colleague, the Minister of Interior’s position suffers from extreme unreasonableness, because it “did not appropriately consider the uniquely autonomous status of the Municipality” (see par. 25 [para. 24-trans.] of her opinion; emphasis added – N.S.). I saw the words of my colleague, the President, and I was reminded of the words of President (ret.) A. Grunis; his words are logical, and we should set them in our sights:

“The court’s expertise in general, and in the field of administrative law in particular, relates to questions of authority and procedural flaws [...] By contrast, the court has no special advantage or expertise on the subject of unreasonableness [...] the ground of unreasonableness has undergone a change and has almost developed into a kind of ‘supreme norm’ […] In the course of this development, it has swallowed up, like a person whose appetite is insatiable, specific grounds for judicial scrutiny that were recognized in the past (for example, the grounds of irrelevant purposes and irrelevant considerations). The great disadvantage of this ground in its current scope lies in its high degree of abstraction. The high degree of abstraction expands the role of judicial discretion and thereby increases legal uncertainty. It creates a huge disparity between its exalted position in the legal universe and its application in a concrete case […] Often use is made of the concept of weight in order to emphasize the concrete application of the ground of unreasonableness. Thus it has been said on more than one occasion that a decision will be set aside for unreasonableness even if the authority that made the decision took into account all of the relevant considerations, where it gave the wrong weight to one or more of the considerations that were taken into account […] Admittedly metaphors, such as weight, are an accepted tool of legal language. The imagery helps the court to analyze, develop its thoughts and convey the reasoning to the reader. At the same time, the use of metaphors may sometimes make the reasoning vaguer rather than clearer. The use of the image of weight in the context of unreasonableness admittedly helps to some extent. But we cannot ignore the fact that a determination of unreasonableness is almost entirely based on an examination of the end product, i.e., the outcome of the decision. In other words, the use of the metaphor of weight with regard to considerations that the competent authority making the decision took into account can sometimes, it would seem, be used to disguise disagreement with the result” (HCJ 5853/07 Emunah National Religious Women’s Movement v. Prime Minister, 62(3) PD 445 (2007), para. 9 of his opinion; See also the words of President M. Landau in HCJ 389/80 Dapei Zahav Ltd. v. Broadcasting Authority, 54(1) PD 421, 431-32, who as far back as nearly fifty years ago expressed his concern about the misunderstandings that using the concept of reasonableness risked creating).

36. Reasonableness has many faces, and what is appropriate also depends on the eyes of the beholder (HCJ 43/16 Ometz Movement: Citizens for Good Governance and Social and Legal Justice v. Government of Israel [unpublished], para. 15 of my opinion (March 1, 2016). What one might consider to be extremely unreasonable is seen by another as reasonable and appropriate. That is true in general, and specifically when the issue at hand is value-laden and general, part of a long-running public discussion. Our issue is proof of this. We should continue to strive to focus the cause of reasonableness into minute details, into standards, and even to clip its wingspan, as part of a trend “to dispel the cloud of vagueness, to add to clarity and to constrict the space of uncertainty in which reasonableness lives, also in a forward-looking way” (ibid).

 

The Social Purpose as a Bridge

37. We cannot conceal the truth. The argument over the image of the Sabbath is profound, ideological, principled. That is true of additional issues concerning the relationship between religion and state and the fundamental values of the State of Israel as a Jewish and democratic country. No side is willing to give up on its holy of holies – religious holiness or secular ‘sanctity’. There is a reason I sought to rely on the important words of my colleague, the President, in her opinion (see para. 28 ibid [para.27-trans.]), regarding the principled approach that should guide our path. Doing so can illustrate that the dispute between us is not broad, deep and principled as might otherwise seem. We do not disagree on the point of departure: there is no perspective of ‘all or nothing’, ‘black or white’, but rather tolerance for a different opinion and mutual concessions. We will not obscure the dispute between us – over authority and reasonableness and interpretation, but we neither will we exaggerate it; this is not “religious” against “secular”, “north” against “south” or periphery against “the State of Tel Aviv”.  I wrote at length above about the social purpose, one of the two purposes at the foundation of the Hours of Work and Rest Law. I think that reasonableness can unite all of them, without paying the price of giving up on religious or secular ideology. On the issue of the Sabbath, rather than serving as another bone of contention, the social-societal consideration can act as a cornerstone of agreement.

Epilogue

38. Prohibiting work on the Sabbath under Article 9A of the Hours of Work and Rest Law applies to commercial establishments but not to places of entertainment; the prohibition is not merely personal but rather applies to the fact of commerce in the shop; the Authorizing Law does not grant power to the local authority to order the opening of commercial establishments. From my point of view, therefore, the motion for a further hearing – should be granted.

 

Justice

Justice E. Hayut

1. In the verdict that is the subject of this further hearing, I joined the opinion of my colleague, President M. Naor, that there is no flaw at the level of authority or discretion that justifies intervening in the By-Law of Tel-Aviv-Jaffa (Opening and Closing Shops) (Amendment No. 2), 5774-2014 (hereinafter: Amendment No. 2). Hearing the arguments that the parties raised again in the further hearing has not changed my mind.
2. The Law Amending the Municipalities Ordinance (No. 40), 5751-1990 (hereinafter: the Authorizing Law) applies, also to days of rest, the power granted to the local authority under Article 249(2) of the Municipalities Ordinance [New Version] (hereinafter: the Ordinance) to regulate “the opening and closing of shops, factories, restaurants, coffee shops, tea houses, drinking establishments, cafeterias, canteens and other institutions of this kind, and of cinemas, theaters and other places of public entertainment or a type of it”. Thus the Authorizing Law anchored the special-autonomous status of the authority also concerning days of rest, and allowed it to use by-laws, according to its discretion, to shape activity in the public sphere on these days, within its area of jurisdiction. As early as 1993, this court, in the opinion of President Shamgar, addressed the significance of the Authorizing Law and the bounds of the power it imparts to the local authority (HCJ 5073/91 Israel Theaters Ltd. v. Netanya Municipality, 57(3) PD 192, 207 (1993), hereinafter: the Israel Theaters Case and also see on this issue para. 28 [para. 27-trans.] of the opinion of my colleague, the President).

My colleague the President repeated and emphasized these words when she noted that “the authority to make the value judgment within the framework of the by-laws belongs to the Municipality, not to the Minister of Interior.The Minister of Interior should not evaluate whether that judgment is optimal, in his opinion, but rather whether it is within the zone of reasonableness …A decision by the Minister of Interior is intended to supervise the lawfulness of a decision by the Municipality, not to replace its discretion” (para. 29 [para. 28-trans.] of her decision. I share this position. For the reasons my colleague the President detailed in her opinion, I also take the position that the Hours of Work and Rest Law, 5711-1951 (hereinafter: Hours of Work and Rest Law), including its Article 9A(a) does not address the question of opening and closing businesses on the day of rest but rather with the personal question of work on that day. Therefore, to my way of thinking, we don’t find within the Hours of Work and Rest Law a prohibition on opening businesses on the day of rest, and in any event there is no clash between its provisions and the provisions of the Authorizing Law and the by-laws that were enacted pursuant to it.

3. In his decision to grant the motion for a further hearing, Deputy President E. Rubinstein (ret.) noted that “the Sabbath, whose status in the Jewish world needs no elaboration, deserves to have its case considered and clarified when all positions are before the Court”.

Indeed, the Sabbath has been adorned with many crowns, and there is a special place reserved for it in the heart of every Jewess and Jew, even if they do not fulfill the commandment of observing the Sabbath according to Jewish law. The national poet H.N. Bialik said about the Sabbath that “it is the most genius invention of the Hebrew spirit” (Sefer Hashabat [Book of the Sabbath] (Dvir Publishers, 5708, p. 517)) (hereinafter: Book of the Sabbath), and many others have reified the wonderful blending of religious values and social values (Book of the Sabbath, p. 521; Leave App Crim Handyman Do It Yourself Ltd. v. State of Israel, 57(3) PD 1, 6 (2003)). But with its founding, the State of Israel raised the banner of Jewish and democratic values together, and the need to integrate the state’s Jewish contours with its democratic contours requires us to walk the path of balance and compromise. That is the case in general, and that is the case regarding the Sabbath.

4. In the Israel Theaters case, President Shamgar addressed the purposes at the foundation of the Hours of Work and Rest Law:

“In establishing the principle of observing a weekly day of rest and designating it on the Sabbath, the legislator sought to achieve two integrated goals: first, a social goal, that a weekly day of rest should be designated for each person to rest from his work, spend time with his family or in the company of friends and have time for holiday and entertainment, according to his choices and preferences … second, designating the day of rest on the Sabbath takes place against the background of the commandment of religious law and Jewish tradition” (ibid, 206-207).

The effort to integrate these two goals, while allowing certain economic activity for places of entertainment and commercial establishments on the days of rest, as well, was expressed in the Authorizing Law. According to this law, as noted, the local authority was imbued with power to order, inter alia, “the opening and closing of shops and workshops…” on the days of rest, but it was emphasized that the authority must exercise this power while taking into consideration “reasons related to religious tradition” (arts. 249A(20) and (21) of the ordinance). The legislator thus did not completely prohibit the local authorities from regulating the opening and closing of shops and workshops on the days of rest but outlined for them a clear standard of consideration for reasons related to religious tradition, and in doing so chose the path of balance and compromise (see para. 31 [para. 30-trans.] of the opinion of my colleague, the President). My colleague Justice Sohlberg seeks to establish the balance point in this context as the distinction between places of entertainment and commercial establishments. However, this distinction has no basis either in the text of the Authorizing Law, and as my colleague the President described so well, or in the law’s legislative history. It therefore cannot be accepted. Having said that, I accept the position that we should be very cautious with provisions that permit the opening of shops and workshops on the days of rest, and that provisions that allow that with “too generous a hand” risk upsetting the delicate balance that must be preserved in this context between the State’s Jewish values and its democratic values.

5. In his opinion that was submitted to us at the stage of the further hearing, the Minister of Interior expressed concern over creating a precedent that would create a fissure in the status quo and change “the appearance of the Sabbath and its character throughout the country”. First, I note that there is merit in the ruling of my colleague, the President, that this is a decision that was not submitted and in any event was not addressed in the procedure that is the subject of the further hearing (see paras. 17-20 [paras. 16-19-trans.] of her opinion). For that reason, I doubt that we can address it now. However, even on the merits of the issue, I did not find a justification, under these circumstances, for the concern that the minister expressed in his decision over a sweeping infringement on the appearance of the Sabbath and its character at the national level, to the point where he would believe there is cause for invalidating Amendment No. 2 of the Tel-Aviv Jaffa [sic] Ordinance. That is the case, given the very limited scope of the sites and the businesses whose opening was permitted in Tel Aviv on the Sabbath, both according to Amendment No. 1 and according to Amendment No. 2, which exemplify a reasonable and proportional balance between the existing interest in observing the character of the Sabbath as a day of rest while allowing for the possibility of some economic activity that suits the city’s character, with its various neighborhoods and its diverse population.

For these reasons, I concur with the position of my colleague, the President, in the further hearing as well.

                                                                                                                                Justice

 

Justice D. Barak-Erez

1. Should we respect the choice of the Tel Aviv-Jaffa Municipality city council to amend its by-law in such a way as to allow the opening of grocery stores on Sabbath days holidays? That, in essence, is the question that again was placed before us. That – and not additional questions, although additional questions were wound up in the parties’ arguments. As I noted in the verdict that is the subject of the further hearing, we are not addressing the question of whether, at the level of norms and viewpoints, we should prefer arrangements that take the side of broadly closing businesses on the Sabbath or those that regulate ways of opening them. We are also not addressing the question of what is the optimal application of the national and social ideal of the Sabbath. I believed in the past, and I still believe, that we should respect the decision of the city council, and allow the value-laden dispute in the background to continue to take place in the arena that is appropriate for it – the public arena. For that reason, I concur with the opinion of my colleague, the President, also in the further hearing, and for the reasons she provides. Having said that, in light of the dispute that has erupted between my colleagues, Justices N. Hendel and N. Sohlberg and the rest of the colleagues on the panel, and while focusing on the question of the authority of the municipality to permit the opening of stores on the weekly day of rest, I seek here to present the details of my position.

 

Further Hearing and Not a Retrial

2. Before I dive into the merits of the issue, I will add that, like my colleague, the President, I also think it important to be punctilious in not permitting a further hearing of a verdict to become a platform for a retrial. Finality in litigation is an important value in our system, and actually in every legal system. That is particularly important, in light of the fact that giving a government agency a chance to present a new position, that would be addressed on the merits after the legal proceedings have ended risks incentivizing strategic behavior – at first presenting one position, and if it is not accepted, it can present another position.
3. Truth be told, I agree with my colleague, the President, that this reason is sufficient to justify denying the motion for a further hearing. However, given that the scope of discussion has been broadened, I will continue and also address the merits of the issue. However, it is important to emphasize that the reasons behind the late decision of the Minister of Interior should not be at the center of the discussion, but rather the question of the lawfulness of the Tel Aviv-Jaffa’s by-law, including its amendments – both in terms of authority as well as in terms of discretion.

 

A Municipality’s Authority to Permit the Opening of Businesses on the Sabbath

4. The petitioners’ arguments in the further hearing were largely based on the legal position that Article 9A of the Hours of Work and Rest Law, 5711-1951 (hereinafter: the Hours of Work and Rest Law) should be interpreted to completely prohibit activities by businesses belonging to the category of “shops” on the Sabbath, and therefore, in any event, the authority of the municipality to permit the opening of businesses would be limited to regulating the opening of places of leisure and recreation – hotels, restaurants and cultural institutions – what are often called “places of entertainment”. My colleague, the President, rejected this argument. In contrast, my colleagues, Justices N. Hendel and N. Sohlberg, reached a different conclusion on this issue. According to them, a reading of Article 9A of the Hours of Work and Rest Law reveals that the law creates a prohibition on the activities of shops, workshops and factories on the Sabbath. My colleague, Justice Hendel, believes that the resulting conclusion is that the local authority has extremely limited discretion to permit businesses to open on the Sabbath, while the Minister of Interior has broad oversight powers over its decisions on the issue. My colleague, Justice Sohlberg, takes the point even further, finding that the municipality acted ultra-virus and lacks the authority to permit the opening of businesses in the category of “shops” on the Sabbath.
5. In this dispute, I agree with my colleague, the President. I believe, with all due respect, that the opposing position does not reflect the correct interpretation of the Hours of Work and Rest Law – neither in terms of its text and legislative purpose, nor in terms of its relationship to other provisions in the very same law and to provisions of the Municipalities Ordinance [New Version] (hereinafter: Municipalities Ordinance or the Ordinance), and not even in terms of its legislative history. When it is evaluated more broadly, including, inter alia, the way people have understood the law to amend the Municipalities Ordinance (No. 40), 5751-1990, known as “The Authorizing Law”. I will explain my position.
6. In order to address the interpretation of Article 9A of the Hours of Work and Rest Law, whose caption is “

1. On the prescribed days of rest, within the meaning of the Law and Administration Ordinance,, 5708-1948, the owner of a workshop of [sic] industrial undertaking shall not work in his workshop of undertaking and the owners [sic] of a shop shall not do business in his shop
2. On the aforesaid days of rest, a member of a cooperative society shall not work in a workshop or industrial undertaking of the society; a member of an agricultural cooperative society shall not work in a workshop or industrial undertaking of the society unless the work is connected with the services necessary for its farm.
3. A non-Jew may, in respect of his workshop, industrial undertaking or shop situated in the area of a local authority whose non-Jewish inhabitants, according to the determination of that authority, are at least 25 per cent of its total population, observe the prohibitions imposed by this section, at his option, either on the aforesaid days of rest or on his own Sabbath and holydays. The same shall apply in a quarter of a local authority if the area and the proportion - not less than 25 per cent - of the non-Jewish inhabitants of that quarter have been determined for this purpose by that authority.

7. The opposing view focused on the provision that says “the owner of a shop shall not do business in his shop”. According to this position, the prohibition set in Article 9A applies to activity in the business in general, in contrast to the activity of the shop owner himself on his weekly day of rest. We disagree with that.
8. A reading of the Law of Work Hours and Rest sharpens the clear distinction that it contains between the terms “will work” and “will employ”. The law ordinarily regulates the issues of employers and their employees.  In contrast, there are prohibitions on someone who is a shop owner to “employ” workers through a formula that deviates from the law’s dictate. The law therefore clearly distinguishes between the “work”, which is the activity of the worker himself, and the “employment”, which is the employer’s part of it. Accordingly, Article 9A of the law says that the owner of a workshop and the owner of a factory shall not “work” in his workshop or factory – “shall not work”, and not “shall not employ”.
9. Against that background, I think that Article 9A was intended to extend the obligation of rest on Sabbath days and holidays to non-salaried workers, including workshop owners and shop owners (see: HCJ 347/84 Petah Tikva Municipality v. Minister of Interior, 39(1) PD 813, 821 (1985) (hereinafter: Petah Tivka Municipality case). In other words, the legislator sought to take care of independent business owners by imposing an obligation of rest on them, to take care of them and their family members, too, as it had already done in regulating this forced rest (as a welcome personal arrangement) for salaried employees. From that alone we should not conclude that the legal provision is intended to require the absence of activity in the business itself. Indeed, pursuant to the reality at the time the legislator enacted the law, namely that most commerce was retail commerce, and workshops were mostly small, the Sabbath rest of the owner of the business would be expected to end the operation of the business itself. That is even, from my point of view, a result that in many cases brings a social blessing. However, from a legal point of view, it is not a necessary outcome.
10. In my opinion, this interpretation is required not just by the text of Article 9A of Hours of Work and Rest Law, but also by its purpose. As we know, the Hours of Work and Rest Law is, first and foremost, a protective labor law whose purpose is to regulate the rights of workers and to guarantee their rest, whether they chose it or not (see: HCJ 6522/06 Kochavi v. National labor Court in Jerusalem [unpublished], para. 17 (April 22, 2009); FH HCJ 10007/09 Glutan v. National Labor Court [unpublished], para. 11 of then-Justice S. Jubran’s opinion (March 18, 2013)). Broad areas of regulating the national character of the Sabbath deviate from the bounds of this law, and that is without detracting from the national-identity purpose of the law, which is expressed in the choice of Sabbath days and Jewish holidays as the primary days of rest (See Leave App Crim Handyman Do It Yourself Ltd. v. State of Israel, 57(3) PD 1, 6 (2003) (hereinafter: the Handyman case); HCJ 5026/04 Design 22- Shark Deluxe Furniture Ltd. v. Director of Sabbath Work Permits Department – Ministry of Labor and Social Affairs, 60(1) PD 38,  (59) (2005) (hereinafter: the Design 22 case).
11. My colleague, Justice Sohlberg, cited statements made during the process of enacting Article 9A of the Hours of Work and Rest Law, with the goal of understanding its subjective purpose. However, I think that a complete reading of the debates that took place in the Knesset and the committees raises a more complex and even different picture. Of course, legislative proceedings always include many speakers and participants, and in any event some of the participants’ statements in the debates express their own positions and do not necessarily indicate the “legislative intent” (see: Aharon Barak, Parshanut Bamishpat – Parshanut Hahakika [Interpretation in Law, Legislative Interpretation] Vol. 2, 265 (1993) (hereinafter: Legislative Interpretation).  That is particularly true when we are dealing with a subject that is in social-public dispute such as the subject of the Sabbath, such that the Knesset debates over it reflect a broad spectrum of positions (for more on this, see Gidon Sapir, “’Vikaratem Lashabat Oneg?’ Avoda Mis-char Vibilui Bishabat Biyisrael Mekom Hamidinia Viad Hayom [‘And Call the Sabbath a Delight?’ Work, Commerce and Leisure on the Sabbath in Israel from the Founding of the State to the Present]”, 31 Mehkarei Mishpat 169, 173-184 (2017) (hereinafter: Sapir)).
12. Even before I address statements made during the debates, we should begin with the draft law’s explanatory notes, where it is explicitly written that “the Hours of Work and Rest Law … currently applies to salaried employees only. The proposed amendment seeks to apply its provisions regarding days of rest to factory owners, members of cooperative societies and shop owners, too, with certain caveats” (Explanatory Notes for the draft Hours of Work and Rest Law (Amendment), 5726-1966, HH 136). If that is so, the explanatory notes of the draft bill that includes Article 9A establish, as noted, that the intent of the legislator was to apply the law to independents, as well. That – and no more. There is no mention of broader aspects of ceasing the activity of businesses on the Sabbath as an objective in itself.
13. My colleague quoted the words of then-Minister of Labor Yigal Allon, in the Knesset plenary at the time he brought the amendment that included Article 9A for a first reading. My impression is that reading the statements made by Minister Allon in the plenary can actually indicate the emphasis that Article 9A puts on regulating employment and not the opening of businesses: “I am satisfied that this time I can submit to the Knesset a bill that can expand the application of the obligation of rest on additional kinds of workers, without violating the status quo regarding religion” (D.K. 5726, 2157). He went on to say: “While at the start of this century, there was a conception that labor laws are intended to protect only manual wage laborers, this conception has expanded, and there is no dispute today that the state should extend its protection to every worker as such – a manual laborer and an office clerk, a wage laborer and an independent contractor” (ibid. Emphasis added). This language, which presents to the reader the employee and the employer – and not the business – is, as noted the same language used in the Hours of Work and Rest Law itself, and it is the language that is compatible, as explained, with law’s objective purpose as a protective labor law.
14. This conclusion becomes stronger/more plausible when we examine statements by Adv. M. Harniv, the legal advisor of the Ministry of Labor, during the debates over the amendment in the Knesset Labor Committee. For example, he explained: “In bringing this law before the Knesset, the Minister of Labor did not hide the fact that this law is an outcome of the coalition agreement; having said that, he added that the law is part of the development of labor legislation throughout the world. If labor legislation was initially intended to protect the wage laborer, as time passed, the perspective that the independent contractor should also be protected developed further and further. Article 9 of the original law prohibits employing a worker on his day of rest, and this draft law seeks to impose such prohibition on the independent contractor as well” (Transcript of the Knesset Labor Committee of November 16, 1966). In my opinion, the following statement of his is particularly enlightening:

“When I debate this law I look at it as a social law and not just as a religious law. That was the foundation, and I participated in coalition negotiations over it, and I know. In many other previous governments, there was a coalition agreement that promised to enact a “Sabbath law”. In this law, the word “Sabbath” is not even mentioned. And when it was agreed upon, the Minister of Labor required two things: first, that if this is a Sabbath law and a religious law, why does it have to be part of the Hours of Work and Rest Law? And second – then the Minister of Religious Affairs would have had to be responsible for it … I call your attention to the fact that this law does not discuss the Sabbath but rather the weekly day of rest … it’s a social law. As we do for salaried employees, that is how we shall do for independents, who are also workers. From the point of view of the national legislation, they will have a day of rest” (Transcript of Labor Committee of July 3, 1968).

15. My colleagues, Justices Hendel and Sohlberg, find support for their interpretation in Article 9A(c) of the Hours of Work and Rest Law, which forbids a non-Jew from opening his shop on the Sabbath in an area where there is a decisive Jewish majority. For them, that article indicates the legislator’s intention not to allow the opening of businesses in Jewish areas on Saturdays, even if those who work in the business as a practical matter are not Jewish. I do not think that the above resembles a piece of evidence. At the heart of those words, there could be an alternative explanation to the one that my colleagues propose, one that is based on simple market logic. What does that mean? In my opinion, with Article 9A(c), the legislator sought to prevent a situation in which the “vacuum” created in a certain area – in which all the Jewish-owned businesses were closed on the day of rest – would be exploited by non-Jewish business owners, who are not required, under the law, to stop working on the day of rest (See, e.g. statements by Member of Knesset T. Sanhadrai in the transcript of the Labor Committee of November 22, 1967).
16. As an aside, I will note that I do not agree with my colleagues’ position regarding the interpretation of the term “shop” as it appears in Article 9A of the law. For them, this term is limited to businesses that sell products, as opposed to places of entertainment. It would appear difficult to interpret Article 9A as necessarily intending to refer to a “shop” in the narrow sense. This interpretation is inconsistent with the social purpose of Article 9A, because it leaves open the question of whether it applies to many other businesses that are not a “shop” in the narrow sense and are not a “workshop” or “factory”. What about offices that supply professional services such as accounting, legal representation or medicine. Are they workshops? Or should we say that the prohibition does not apply to them at all? Furthermore, I believe that the positions presented regarding the interpretation of the term “shop” in the statements made during the legislative debates do not necessarily express the appropriate interpretation of that term, primarily if we pay attention to the fact that repeated requests to add a definition of that term were repeatedly rejected, deliberately, inter alia, for reasons that were defined as “relating to the governmental coalition” (See, e.g. D.K. 5729 1904). In any event, I do not think we need to address the full range of the above-mentioned aspects in our case, given the conclusion that Article 9A of the law does not include a prohibition on opening businesses on the Sabbath, but rather imposes restrictions on the work of those for whom it is their weekly day of rest, including the business owners themselves.
17. Similarly, I want to point out that the interpretation proposed by the opposing position puts the Hours of Work and Rest Law on a direct collision course with the Authorizing Law. As we know, Article 249(2) of the Ordinance imparts the local authority with power to regulate “the opening and closing” of shops, workshops, places of entertainment and additional institutions, and “to determine … their opening and closing hours on any given day”. Article 249(21) of the Ordinance adds and explicitly clarifies that the local authority may exercise such power in respect of the weekly day of rest, too, taking into consideration reasons of religious tradition. My colleagues tried to resolve this difficulty through various interpretive paths. I think the solution is much simpler: there is no contradiction between the Hours of Work and Rest Law and the Municipalities Ordinance, and in any event there is no interpretive tension that needs to be bridged. Article 9A of the Hours of Work and Rest Law is a protective law that guarantees the Sabbath rest for those who work as independent contractors, while the Municipalities Ordinance regulates the scope of what is permitted for opening businesses, and each of those kingdoms remains within its own domain.

 

The Post-Legislative History: Implementation of the Law Throughout the Years and New Proposed Laws

18. In addition to the aforesaid, I want to emphasize that the interpretation of Article 9A of the Hours of Work and Rest Law cannot be done as if we were reading a blank slate. As we know, as part of the method of purposive interpretation, we should examine the legislative history of a piece of legislation. In that context, one examines both the pre-legislative history (the legal and social background that led to the act of legislation, as well as the stages that the law passed on its way to enactment) and the post-legislative history, meaning the events that occurred after the act of legislation that are relevant to it (See: Barak, Legislative Interpretation, pps. 351-352).
19. We have in the record decades in which the Hours of Work and Rest Law has been discussed and implemented in the rulings of this court. In each case, the legal proceedings were based on the fundamental assumption that the Hours of Work and Rest Law does not per se prohibit opening businesses on Saturdays and holidays, in contrast to employing workers on their days of rest in these businesses (See, e.g., the Petah Tikvah Municipality case, pps. 821-822). Thus, in the two central judgments in which this court addressed arguments against the prohibitions on employing salaried workers on the Sabbath – the Handyman case and the Design 22 case – the proceedings were entirely based on the assumption that it is possible to operate the business itself, and the discussion was over the restriction on employing Jewish workers in the business on the day of rest. This state of affairs becomes clearer, as noted, if we examine the Bremer  case, in which most of the judges on the panel concurred with the result, including then-Justice E. Rubinstein, who granted the motion for a further hearing in this case. The Bremer case essentially referred the leaders of the Tel Aviv-Jaffa Municipality to enact a new by-law that would take a clear position about the operation of businesses on the Sabbath (ibid, paras. 52-56 of then-Deputy President Naor’s judgment). Was that ruling intended to direct the city’s leaders toward a path that is blocked in advance? I would be astonished if that were the case.
20. It is worth noting that many of the petitioners for the further hearing, who reified the argument based on the interpretation of Article 9A of the Hours of Work and Rest Law, were essentially the appellants in the Bremer case. Despite that fact, they did not move for a further hearing after the verdict in case and did not argue that directing the Tel Aviv-Jaffa City Council toward the path of enacting a by-law regarding the operation of businesses on the Sabbath was a new and difficult precedent, which allegedly contradicts the law, as they are arguing now. This kind of procedural conduct would seem to arouse wonder and even discomfort. In contrast to an appeal, which can be filed only by one who wants to challenge the operative result of the verdict, a motion for a further hearing is intended to restore the law to its proper path.
21. Furthermore, we should note that interpreting Article 9A to completely prohibit opening businesses on the Sabbath is inconsistent with the practice in which local authorities have engaged for many years. Many authorities – excluding the Tel Aviv municipality – enact by-laws pursuant to their authority under the Municipalities Ordinance in which they regulate the issue of opening and closing businesses on the Sabbath (for more on this, see: Gidon Zaira and others, Achifat Hahoraot Bidvar Ptichat Asakim Visgiratam Bimei Hamenucha Al-Yidei Harishuyot Haekomiot [Enforcing the Provisions on Opening and Closing Businesses on Days of Rest by the Local Authorities] (Haknesset, Research and Information Center, 2014)). Without addressing the question of the intensity of the enforcement of these laws – which is a separate question – one wonders why many local authorities need to regulate, in detail, the question of closing and opening businesses on the Sabbath using by-laws, if the assumption is that in any event the law sweepingly prohibits it? In my opinion, that fact demonstrates that the above-mentioned interpretation does not reflect the consensus among the local authorities.
22. It is worth noting that an examination of the permits issued for work on the Sabbath under Article 12 of the Hours of Work and Rest Law (on the list available on the Ministry of Economy’s web site) indicates that in practice, these are permits for employing workers. Were the Ministry of Economy to instruct itself to follow the interpretation proposed ty the opposing position, each time it issued a permit for employment on the Sabbath, it would have had to issue, in parallel, a permit for the operation of the business itself – based on the assumption that employing a worker is like operating the business. It did not do so.
23. Furthermore, the draft laws that were submitted in recent years seeking to adopt a clear distinction between the law that applies to businesses in the area of commerce and that applying to cultural and recreational institutions are all based on the assumptions that this is an innovation worthy of being introduced – as opposed to a reflection of the current legal state of affairs (see, e.g. Draft Law Weekly Day of Rest, 5776-2015, P/20/2112; Draft Sabbath Law, 5776-2016, P/20/3340. See also Sapir, pps. 230-231).
24. We can say the same thing, with the necessary adjustments, about the way my colleague, Justice Hendel, relates to the principles outlined in the document called “the Gavison-Medan Contract”. This contract is a comprehensive proposal for a new status quo, which seeks to present a new compromise on issues of religion and state (see: Yoav Artsiali, Amanat Gavison-Medan: Ikarim Viekronot [Gavison-Medan Contract: Essences and Principles] (2003)). It has no normative force, and its fundamental assumption is that it does not reflect the current state of affairs. I say that without addressing the details, for example the fact that the document includes additional agreements regarding the Sabbath, such as limited operation of public transportation on the Sabbath (as part of a new social agreement on the subject).
25. Having said all that, I believe that there is no basis for the argument that the interpretation of Article 9A in the President’s judgment is a “new” interpretation. In my opinion, the opposite is true: the interpretation on which the opposing position is based is an interpretation that is inconsistent with previous rulings and with the de facto conduct in the field.

 

On the Autonomy of the Local Authority and the Minister of Interior’s Supervisory Role

 

26. If this is the case, I agree with my colleague the President that the local authority is authorized to regulate the issue of opening and closing businesses on the Sabbath within its jurisdiction, by enacting by-laws. We should evaluate the considerations that the Minister of Interior may consider regarding by-laws from the perspective of the general reciprocal relationship between the local government and the central government, as the legislation designs it, and for our case, primarily the Municipalities Ordinance.
27. As is clear from the Municipalities Ordinance, the body that is tasked with establishing the organization of life in the municipality is the city council. This principle stems from the fundamental perspective viewing local authorities as the governmental bodies that express the autonomy of the community and democracy that has enhanced representative mechanisms (See further: HCJ 3791/93 Mishlev v. Minister of Interior, 47(4) PD 126 (1993); HCJ 953/01 Solodkin v. Beit Shemesh Municipality, 58(5) PD 595, 620 (2004) (hereinafter: the Solodkin case) and the references it contains; Itzhak Zamir, Hasamchut Haminhalit [Administrative Authority], Vol. 1 446-447 (2nd expanded ed. 2010)). In contrast, the Minister of Interior has an oversight function, which is supposed to reflect protection of the general public interest, but not to replace the municipality’s discretion at the outset (HCJ 7186/06 Malinovsky v. Holon Municipality [unpublished], paras. 60 (December 29, 2009) (hereinafter: the Malinovsky case)). As I noted in the verdict that is the subject of the further hearing – “the Minister of Interior’s decision is supposed to oversee the lawfulness of the of the authority’s action, to ensure that it is not tainted by aspects of negative externalities vis a vis other authorities, and to give expression to the system’s common values (subject to the principle that their implementation is not supposed to be uniform throughout the entire country)” (ibid, para. 3 of my opinion). I will therefore seek to repeat what I wrote in this context and to clarify it.
28. One of the clear aspects necessary for the Minister of Interior’s oversight relates to the required coordination between local authorities and cooperation between them. This is coordination that can be termed horizontal coordination. Thus, for example, there is a concern over unfair competition between authorities, which would require intervention by the minister. Indeed, such competition could have positive aspects, in the sense of allowing people to choose among different and diverse services that each authority offers, according to their preferences and how they wish to shape their lives (See: Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. Pol. Econ. 416 (1956); Ishai Blank, “Mikomo Shel Ha’mekomi’: Mishpat Hashilton Hamekomi, Bizur Vi-I Shivyon Merchavi Biyisrael [The Place of the ‘Local’: the Law of Local Government, Decentralization and Spatial Inequality in Israel”, 34 Mishpatim 197, 208-210 (2004) (hereinafter: Blank)). However, having said that, competition between authorities has certain limitations, considering, for example, the difficulties related to moving between them and information gaps regarding the attributes and character of a particular local authority (See, e.g.: Blank, p. 209). I have written in the past that action within a competitive paradigm can lead to a situation in which a local authority will avoid weighing broad considerations, for example considerations of distributive justice at the regional or even national level (See e.g. HCJ 7425/09 Tuttnauer Ltd. v. Minister of Interior [unpublished], para. 31 (January 3, 2013). An additional concern that arises in this context is about externalizing the costs of one authority to another (ibid, paras. 32-25). In that vein, in our context, we might imagine a difficulty wound up with the fact that a municipal council might order the opening of businesses on the Sabbath particularly close to a quiet residential (or even religious) neighborhood of another city, in such a way as to infringe on the quiet it enjoys or to influence its character. The Minister of Interior’s broad gaze can prevent such situations.
29. On another level, it is important to consider the question of whether this is an area in which both the local and central governments have been granted authority to act in parallel. This is coordination that can be termed vertical coordination. Addressing issues of security and public order is an example of an area of this type. Local authorities are authorized to act in this area to a certain extent (pursuant to Article 249(29) of the Municipalities Ordinance), but that is also a core area of activity for police and other security agencies belonging to the central government. If that is the case, where parallel authority exists for the local government and the central government to regulate a particular area, there is space for the Minister of Interior to exercise his supervisory power.
30. Having said that, there are areas whose regulation is primarily assigned to the local authority, and for these, one should accord substantial weight to its autonomous space. Designing the local authority’s public space is a clear example of an area in which one should, to a great extent, cede to the local authority, because it is close, double-meaning intended, to the residents and the environment in which they live, and can express human diversity (See: Blank, p. 211). It is not by chance that the legislator chose to authorize the local authorities to regulate various areas concerned with religion and state, as will be detailed below.

Arrangements for Opening Businesses on the Sabbath from the Perspective of the Authorities’ Autonomy

31. Further what has been said thus far, the legislator’s choice to impart the local authorities with the authority to regulate the opening of businesses on days of rest was not made unintentionally. It reflects the historical complexity of the relationship between religion and state in Israel. As far back as the founding of the state, Israeli society struggled to reach comprehensive arrangements in the area of Sabbath observance, and therefore it was decided to set a number of framework principles, but to leave great space for decisions reflecting local tradition – instead of setting a general governmental policy. In essence, this choice of the legislator is based on the traditional perspective that views the issue of opening and closing shops on Sabbath days and holidays as a primarily local issue (See: Crim App 858/79 Lapid v. State of Israel, 44(3) PD 386 (1980)), except for certain kinds of businesses, such as gas stations (See Crim App 217/68 Izramex Ltd. v. State of Israel, 22(2) PD 343 (1968)). In that, it differs from the choice that characterized the regulation of other subjects related to the Sabbath, such as oversight of public transportation (See: Article 71(7A) of the Transportation Ordinance [New Version] and Regulation 386A of the Transportation Regulations, 5721-1961).
32. It is worth noting that this choice of delegating decisions to the local level also characterized, at least in the past, additional areas of regulation that relate to issues of religion and state. We can see a prominent example of this in the authorization to enact local municipal ordinances on the subject of the pork prohibitions under the Local Authorities Law (Special Authorization), 5717-1956 (see the Solodkin case on page 620). See also: Dafna Barak-Erez, “Gilgulo Shel Chazir: Mesemel Leumi Liinteress Dati? [The Evolution of Pork: From a National Symbol to a Religious Issue?]”, 33 Mishpatim 403 (2003); Dafna Barak-Erez, Chukim Vichayot Acherot [Laws and Other Animals] (2015)). In truth, the legislators had in mind the success of this bizarre model in the symbolic area of pork prohibitions when they sought to establish an additional authorizing provision concerning by-laws on the subject of the Sabbath, thirty years later.
33. Nothing said here detracts from the recognition that the issue of the Sabbath has an important national aspect. This recognition is integrated in the view that there are subjects that have both local aspects and national aspects (See generally: Yisachar (Isi) Rosen-Zvi, “Mahuto Shel ‘Hamekomi’ – Hirhurim Al Mekomiut Biakvut Bagatz 10104/04 Shalom Achshav v. Yosef [The Essence of the “Local” – Musings on Locality Following HCJ 10104/04 Peace Now v. Yosef]”, 12 Mishpat Umimshal 333 (2010). Similarly, we are not holding that the central government has no authority to intervene in regulating activity on the day of rest. As noted, there is no absolute partition between “local” areas and “national” areas, and we can imagine extreme cases in which the local authority’s decision would give so little weight to the general-national consideration in the framework of the balancing it conducts, that the minister’s intervention would be justified. Thus, for example, the broad perspective of the central government could be expressed in the cases in which the local authority completely ignores the national value of observing the Sabbath as a day of rest. However, that is not the case before us, and it is even far from it.
34. My colleague, Justice Hendel, says that the uniqueness of the subject of the Sabbath justifies regulating it at the national level, as opposed to the local level. That is a possible approach. However, we can also imagine an approach that says that actually, the difficulty in reaching a decision on this issue at the national level justifies decentralizing the decision to the different communities. In any event, that is currently the approach that the legislator chose for all that concerns opening businesses on Sabbath days (as opposed to the subject of employment during those days), and we must respect it.

Back to the Minister of Interior’s Updated Position

35. Having said that, we return to the concrete issue before us. A reading of the Minister of Interior’s position that was submitted in advance of the further hearing indicates that it does not reflect the customary legislative hierarchy. Thus, the Minister of Interior presents an organized world view but barely addresses the local authority before us – the City of Tel Aviv-Jaffa – and its special characteristics. In essence, these characteristics are not mentioned or discussed at all, except for mentioning that, according to the formulation of the current by-law, sale of food is permitted in convenience stores, pharmacies and three distinct sites. The autonomy of the local authority essentially is treated only by way of negation: “I am not persuaded, despite the weight that should be given to respecting the autonomy of the local authority, that the by-law as proposed by the Tel Aviv Municipality justifies the infringement …” (para. 17 of the Minister of Interior’s Position). The local authority’s autonomy therefore remains a saying, even lip service, as opposed to a value that has actuality.
36. The diminishing treatment accorded to the consideration of autonomy of the local authority in the Minister of Interior’s position is also expressed in the way it contrasts “need”, which is presented as a legitimate consideration, with the consideration of “will”. The position says that such will “is based on making the convenience of this or that arrangement a priority and nothing more (para. 13 of the Minister of Interior’s position). If that is so, the evaluation is purely instrumental – what is a “need” and what is “convenience”. There is no respectful mention of the fact that this is a choice of the community, who chose their public officials as the product of a political process that expressed debate and thought, and not just the will of the “residents”.
37. If that is so, the approach that arises from the Minister of Interior’s position is that he is tasked with forming policy on the subject from a nation-wide perspective. This approach transgresses the legislative arrangement, and it is opposed to the point of departure we discussed above. I therefore concur with the conclusion that my colleague, the President, reached, namely that there was no room for the Minister of Interior to intervene in the by-laws that the Tel Aviv-Jaffa City Council enacted. In this context, I wish to note that I also concur with the words of my colleague, the President, regarding the cause of reasonableness (para. 58  of her opinion), following the comment of my colleague, Justice Sohlberg on this issue. As my colleague noted, I also think that the cause of reasonableness is a central and critical tool for exercising judicial review of the administration, and in any event, throughout the years, our case law has enshrined guiding rules for exercising and implementing it, while being scrupulous about respecting the space for the discretion that the authority has been given in law. These principles become even more important in cases in which the flaw in the activity of the local authority rises to the level of completely ignoring a relevant consideration (See and compare: FH HCJ 3299/93 Wechselbaum v. Minister of Defense, 49(2) PD 195 (1995).
38. I will add that I do not see much in the concern that the Minister of Interior expressed, that authorizing opening shops in the city of Tel Aviv would become “the new standard” for opening businesses in other authorities, as well, in such a way as to redesign the character of the entire nation. There is no basis for thinking that all local authorities will necessarily rush to open businesses on the Sabbath, to the extent of what was decided in Tel Aviv. Each city has its own characteristics, and in that vein, we actually might expect variety in the decisions that will made on the issue. I will add, beyond what is necessary, that I personally believe that the public status of the Sabbath is strong in the hearts of many citizens in Israel. Why assume that this position will not be given serious consideration by public officials in the local authorities, each authority according to its characteristics?

 

On Social Justice and the Sabbath Rest

39. We should acknowledge: Choosing to open businesses on the Sabbath is not devoid of dilemmas. The Sabbath is a national symbol whose status and dignity should be preserved in the State of Israel. Furthermore, the Sabbath rest is a precious social asset whose protection we should safeguard – in general, and especially for disempowered populations in the labor market. These arguments presented by the petitioners, who are thoroughly convinced of them, do not fall on deaf ears. However, as was explained at length, the Hours of Work and Rest Law chose to protect these values without establishing a sweeping prohibition on opening businesses on the Sabbath. I wish to add two important clarifications on this issue.
40. First, protecting the special status of the Sabbath in the public space of the State of Israel is not the same thing as observing the Sabbath according to Jewish law. This is true not just regarding the operation of places of entertainment (recreational and cultural institutions and coffee shops and restaurants), as the petitioners noted, but also regarding opening other businesses.
41. Second, the petitions did not lay out a sufficient factual basis for the argument that their position is essential for protecting disempowered workers. Indeed, it is possible that opening businesses on the Sabbath will expose disempowered workers to work on their weekly day or rest, against their will and in violation of the law. However, the way to combat that is by appropriate enforcement of labor laws. During the hearing, no real basis was presented for the argument that opening grocery stores on Saturdays in the scope defined in the municipal law would create a special risk for disempowered workers – more than do the many restaurants and coffee shops in the city or the hotels on its beaches, which operate on a broad scale on Saturdays. In these establishments, one should be scrupulous about the workers’ weekly day of rest, and the authorities should prepare for that. Furthermore: to the extent we are talking about protecting small business owners who struggle, as was argued before us, to withstand the competition of businesses open on the Sabbath, we should add and evaluate the weight of opening businesses on the Sabbath versus other economic pressures that may be larger, for example, competition with businesses that operate continuously. If that is so, we should protect the special place of the Sabbath, but some of the social struggles lie in other places. To a certain extent, one gets the impression that this is one of those cases in which the petitioners “are looking for the coin under the lamppost” and not in its place.

In Conclusion: An Historical Look at the Sabbath Arrangements in Tel Aviv

42. As I briefly noted in my opinion in the verdict that is the subject of the further hearing, we cannot view the dispute before us disconnected from the historical continuum on which it is located. I think that evaluating the issues from that perspective as well indicates that we should not see in the by-law an expression of a process of “continuous erosion” of the image of the Sabbath, but rather an expression of a lively debate that has taken place throughout the years on this issue (on the different perspectives regarding the characteristics of the Sabbath day among the founding generations of the Zionist movement, see further: Tzvi Tsameret, “Mordim Vimamshichim – Itzuv Hashabat Lifi Y.H. Brenner, A.D. Gordon, G. Katzenelson, S.H. Berman, E. Schweid Vi M. Eyali [Rebelling and Continuing – Designing the Sabbath According to Y.H. Brenner, A.D. Gordon, G. Katzenelson, S.H. Berman, E. Schweid and M. Ayali]”, Hayashan Yitchadesh Vihaddash Yitkadesh – Al Zehut Tarbut Viyahadut, Asufa Lizichro Shel Meir Eyali [The Old Will Be Renewed and the New Will Be Sanctified – On Identity, Culture and Judaism, A collection in Honor of Me’ir Ayali] 347 (2005)). In the hearing before us, the beautiful and moving saying of Ahad Ha’am was repeated: “More than the Jewish people kept the Sabbath, the Sabbath kept them” (from his article, “Shabbat Tzionut [Sabbath and Zionism]”), which was also mentioned in the opinion of my colleague, the President. Specifically for that reason, it is worth mentioning the context in which those words were written, whose force was directed at the time against those who wanted to replace the Sabbath with rest on another day, and the author was lending his ear to the “voice of protest of the national sentiment against canceling the Sabbath”. They thus expressed opposition to canceling the national status of the Sabbath, and did not address the specific content of how it would be observed.
43. These words also apply, with the necessary changes, to the City of Tel Aviv-Jaffa itself. The petitioners sought to present to us a picture of a “Tel Aviv status quo” based on consensus founded on a “division of labor” that distinguishes between opening places of entertainment on days of rest and opposition to opening other businesses. According to this narrative – opening grocery stores “broke” that agreed upon status quo, and that alone is reason enough to restore the situation to what it was. However, a deep examination of the issue exposes a much more complex picture. In essence, a historical look indicates that the appropriate scope of observing the Sabbath in the City of Tel Aviv-Jaffa was the subject of disputes as far back as the city’s early days, and that these disputes have continued to the present time. In essence, even opening places of entertainment and recreation was not without controversy. And I will emphasize that this is not merely an anecdote. Examining the subject from the perspective of a number of decades helps to better understand the issue before us.
44. In my opinion in the verdict that is the subject of the further hearing, I addressed the fact that the first by-law limiting the opening of businesses on the Sabbath within the City of Tel Aviv was enacted during the British Mandate, as far back as 1926, and it was invalidated by the Supreme Court of the Land of Israel in 1928 (Attorney General v. Altshuler (1928) 1 P.L.R. 283). Afterward, an updated by-law was enacted on the subject of the opening and closing times of businesses in 1932. That by-law did not include restrictions on opening businesses on the Sabbath (By-Law Regarding Opening Shops Within the Jurisdiction of the Area of the Tel Aviv Local Council, I.R. 1932, Ann. 2, 225). The continued public debate on the issue led to its replacement in 1937 with another by-law that imposed limitations on opening businesses on the Sabbath and indeed distinguished between coffee shops and restaurants and shops (By-Law (Opening and Closing of Shops), 1937, I.R. 1937, Ann.2, 664. See also Y. Frankel, “Hashabbat Umoadei Yisrael Bamishpat Hai Bazman Hazeh [The Sabbath and Jewish Holidays in Israeli Law at this Time]”, 2 Haparklit 107, 110 (1945)). However, the by-law from 1937 also did not end the disputes on the issue, and did not bring about the total closure of commercial activity, of peddlers for example (See: Anat Helman, “Torah, Avoda Ubatei Café: Dat Vifarhasia Bitel-Aviv Hamandatorit [Bible, Work and Coffee Shops: Religion in Public in Mandatory Tel Aviv]”, Katedra 85 (5763); Anat Helman, Or Viyam Hakifuh – Tarbut Tel Avivit Bitkufat Hamandat [Sun and Sea Surrounded It – Tel Aviv Culture During the Mandate Period],  91-99 (2007)). It is worth noting that already at that time, public intellectuals such as Bialik did not approve of the characteristics of the public space in Tel Aviv on the Sabbath (ibid, p. 99). In essence, the disputes extended throughout the years, despite the opening of cultural institutions, and we recall in this context the decision of the mayor of Tel Aviv in 1979, barring the holding of a production in the Kamari Theater on the Sabbath eve (See: HCJ 11/79 Mirkin v. Minister of Interior, 33(1) PD 502 (1979)).
45. This is not, therefore, a “state of nature” that was violated, but rather an ongoing public dialogue, and its internal balances change periodically, according to the times – and subject to the consensus that the Sabbath needs to be different and distinct from weekdays.
46. These issues are noted here, of course, in brief, and the goal is just to show that we are not dealing with a rule and deviation from it, but rather a dynamic development of city life. As noted, our case is not a question of what is the correct way to mark the Sabbath in the State of Israel, but rather what can the local community determine for itself.

 

Looking to the Future

 

47. From my point of view, concern over eroding the traditional image of the Sabbath in the public sphere in the State of Israel is out of place. These are more complex processes. It is well known, for example, that in residential areas in which the religious population is in a clear majority, there are restrictions on driving vehicles on the Sabbath and holidays, even if that was not the case in the past, because the composition of the population there was different. The legal arrangements reflect the current needs of society and its widespread points of view, together with preserving principles that do not vary with the changing winds. Having said that, the details may change, just as life itself changes. By-laws that negate the special status of the Sabbath would be out of place. However, there is certainly a place for by-laws that respect the Sabbath in different ways, commensurate with the local community’s ways of life. One should hope that the discussion of this subject will continue in the appropriate place – the public arena.

 

Justice

 

It was decided by majority opinion (President M. Naor and Justices E. Hayut, Y. Danziger, Y. Amit and D. Barak-Erez, against the dissenting opinion of Justices N. Hendel and N. Sohlberg), as stated in the judgment of President M. Naor, to deny the motion for a further hearing and to uphold the verdict that is the subject of the further hearing. No costs are imposed on the parties.

 

Decided today, 6 Heshvan 5778 (October 26, 2017)

President                            Justice                                  Justice

Justice                                  Justice                                  Justice

Justice

 The Supreme Court sitting as Court of Administrative Appeals

AAA 662/11

 

Before:                                                The Honorable Justice E. Hayut

                                                The Honorable Justice N. Hendel

                                                The Honorable Justice U. Vogelman

 

The Appellants:                       1.  Yehudit Sela

                                                2.  Sima Ben Haim

                                                3.  Peri Shahaf

                                                4.  Yinon Sela

                                                5.  Yoav Ben Haim

                                                6.  Katy Shilo Oliver

                                                7.  Michael Ayash

                                                8.  David Cohen

                                                9.  Amnon Ben Ami

                                                10. Zachary Grayson

                                                               v.

The Respondents:                   1.  Head of the Kfar Vradim Local Council, Sivan Yehieli

                                                2.  Kfar Vradim Local Council

                                                3.  Oriette Amzalag

                                                4.  Shimon Amzalag

                                                5.  Victor Haziza

                                                6.  Tibi Hertz

                                                7.  Jacques Ben Zaken

                                                8.   Nissim Avital

 

Appeal of the judgment of the Haifa Administrative Affairs Court (The Honorable Judge R. Sokol) in AP 21404-06-09 of Dec. 23, 2010.

Date of hearing: 29 Adar 5774 (March 31, 2014)

 

Attorneys for the Appellants: Avi Weinroth, Adv.; Amir Lockshinsky-Gal, Adv.

Attorney for the Respondents: Haim Pitchon, Adv.

Attorney for the State Attorney’s Office: Tadmor Etzion, Adv.

 

Facts:   An appeal of the decision of the Haifa Administrative Affairs Court, dismissing the petition of the Appellants and holding that the court should not intervene in the decision of the Kfar Vradim local council according to which a women’s mikve (ritual bath) would not be constructed in the town in the near future.

Held:   As a rule, a local council enjoys broad discretion in regard to decisions concerning the allocation of public resources. The initial assumption is that a local council – which is an elected authority whose members represent the public they were chosen to serve – occupies the best position for deciding upon the priorities that will advance the general good, and for striking the proper balance between meeting public needs and maintaining the budgetary framework. Therefore, the Court will not hastily intervene in such decisions, and will refrain from placing itself in the authority’s shoes. In the framework of judicial review, the question of whether public resources were allocated wisely, or whether they could have been allocated differently, will not be considered unless the decision regarding the allocation of resources was tainted by a substantive, fundamental flaw that justifies the Court’s intervention.

            It is clear that the council, like any local authority, is subject to the principles of public law. This restraint in regard to judicial review does not relieve the Court of fulfilling its duty: to ensure that the authority exercises its discretion in accordance with the law. And note: the local authority serves – in all of its actions – as a trustee of public funds, and its job is to advance public purposes for the general good. Even in allocating public resources, the authority is obligated to act in a manner that faithfully serves the entire public and ensures proper governance. Accordingly, the allocation of public resources in public authorities must be carried out in accordance with the principles of reasonableness and proportionality, and in accordance with fair, equal, relevant and transparent criteria. Reasonableness requires that in setting priorities among various subjects for which the authority is responsible, priority be given to the more important subjects.

            Although the council’s decision relied upon the recommendations of the committee for examining criteria for the construction of public buildings in the village, it is clear that those recommendations cannot absolve it of the duty to exercise its authority to consider every case on its merits. Indeed, an administrative agency will not lightly deviate from the recommendation of a knowledgeable, expert body, established at its request, which was adopted after an in-depth professional evaluation. However, that does not mean that the council is bound by the recommendations of the criteria committee, which is merely an advisory body. Under the circumstances, the decision to rescind its decision to build a mikve in the village, adopt the recommendations of the criteria committee in full, and refrain from taking action in the near future to establish a mikve in the town does not pass the reasonableness test, and does not reasonably balance the needs of the religiously observant female residents of the community, who are required to fulfil their religious obligation of ritual immersion, against the budgetary considerations and the available land resources.

            The religious obligation of ritual immersion is an integral part of the life of a religiously observant, married woman, and is an inseparable part of her religious ritual and the expression of her identity and customs. It is substantively related to the right to the free exercise of religion and religious practice. No mikve has ever been built in Kfar Vradim. Given the geographic location of Kfar Vradim and its topographic conditions, there is no reasonable way to go to any of the mikves in the nearby towns on foot.  Under the circumstances, the absence of a mikve in the town deprives the female residents of the town of the possibility of performing an obligatory ritual practice that is deemed to be of great importance by the traditionally religious Jewish community.

            The primary consideration that led to the decision was the limited resources available to the council. In its deliberations, the council could, indisputably, give weight to the limits upon the available resources, and allocate them in accordance with public needs. However, under the circumstances of the instant case, the resources – both land and money – that were expected to be required for the purpose of building and maintaining a mikve in the town were not significant. Under those circumstances, the weight of the budgetary consideration relative to the opposing interest was limited.

            That being so, in circumstances in which appropriate weight was not given to the substantial harm to the religiously observant, female residents of the town by the absence of a mikve that is accessible on the Sabbath and on religious holidays, and where it was found that the allocation of resources was given disproportionate weight even though land was readily available for erecting the mikve without harming other public interests, and without any need for allocating substantial resources by the council due to external funding – The Court held that the council’s decision not to erect a mikve was unreasonable and must, therefore, be annulled.

 

Judgment

 

Justice U. Vogelman:

 

            An appeal of a judgment of the District Court sitting as a Court Administrative Affairs in Haifa (the Honorable Judge R. Sokol), denying the petition of the Appellants, and holding that the court would not intervene in the decision of the local council of Kfar Vradim (hereinafter: the Council or the Local Council) not to erect a mikve for the women of the town in the near future.

 

Background

1.         The town of Kfar Vradim was established in the western Galilee following a government decision made in 1978. The town currently has some 6,000 residents. Some of the residents (many dozens of families according to the Appellants) define themselves as religious or traditional. In the past, the authority to plan, develop and market building lots in the town was held by the Kfar Vradim Development Corporation Ltd. In 2008, that authority was transferred to the Council. In 2005, the Local Council and the Ma’ale Yosef Regional Religious Council agreed that the former would be responsible for providing religious services in the village, including “family purity and the instruction of brides”. No mikve was ever erected in Kfar Vradim, and the closest mikves [ritual baths] for women are a short drive away, in the neighboring communities. Over the last few years, some of the local residents began working toward the establishment of a mikve in the town.

2.         On March 12, 2007, the National Religious Services Authority in the Prime Minister’s Office (hereinafter: the Authority) undertook to provide an “extraordinary budget” in the amount of NIS 745,000 for the building of a mikve in the town (hereinafter: the EB). The Local Council was asked to approve the Authority’s offer in order to receive the EB, and on May 22, 2007, it decided to approve it on condition that the Authority agree to exempt the Council from any obligation to finance the construction or maintenance of the mikve. The Council then completed the necessary application for receiving the EB – deleting the sections regarding the Council’s obligation to participate in financing – and returned it to the Authority, while emphasizing the condition that the Council not be required to fund the construction or maintenance of the mikve in any way. At the Council meeting, the chairman at the time informed the Council that, in a meeting with the Minister for Religious Affairs, the Minister informed him that the application to receive the EB would not be approved due to the reservations and deletions made in the application, but added and promised that the maintenance of the mikve would be financed by the Religious Services Authority, and that no funding would be required of the Council. In the course of that Council meeting, Mr. Amnon Ben Ami (Appellant 9, hereinafter: the Donor) – a community resident who had contributed monies in the past for the construction of the community’s synagogue – asked that the mikve be attached to that synagogue, and agreed to guarantee that the maintenance of the mikve will not require funding by the Council. At the end of the meeting, the Council decided “to approve the EB as is, without any changes, and in the “Stage B zone” (by the term “Stage B”, the Council was referring to a particular area in the village).

3.         Pursuant to that decision, on Oct. 23, 2008, the Council published a public tender for the construction of the mikve (hereinafter: the Tender). A petition submitted in regard to alleged flaws in the tender process was dismissed on Nov. 6, 2008, following a declaration by the Council that it would not open the bid envelopes until after the elections for the Local Council and until a decision was reached by the new Council in regard to opening the envelopes (AAA 10/08 (Haifa Administrative) Akirav v. Kfar Vradim Local Council (Nov. 6, 20018)). On Nov. 11, 2008, elections were held for the Local Council, in which a new Council head was elected (Respondent 1). On Nov. 16, 2008, the outgoing Council head requested that the Israel Lands Administration suspend the Council’s request to allocate land for the construction of the mikve, and instead, allocate the land for the construction of the Tefen comprehensive high school. This suspension request resulted from a compromise agreement, granted court approval in 2008, under which the Council agreed to allocate land for the construction of the Tefen school in its jurisdiction (AP (Haifa Administrative) 630/08 Association for the Ma’alot and Region Experimental School (R.A.) v. Industrial Local Council Migdal Tefen (Sept. 4, 2008)).

4.         On Dec. 22, 2008, the new head of the Council informed the bidders of the cancellation of the Tender, and the sealed envelopes were returned to the bidders unopened. In the course of February 2009, a decision was taken to change the location for the construction of the Tefen school, and to allocate other land in the town for that purpose. A Council meeting was held on May 13, 2009. In the course of the discussion of the allocation of land for religious purposes, the head of the Council requested the repeal of the decision of the previous Council in the matter, and added that the Tender for the building of the mikve had been cancelled due to a problem concerning the allocation of the land, and because there was no available budget and the Donor had not provided his share. It was further noted that, in the meantime, the Ministry of Religious Services’ commitment to underwrite construction of the mikve had lapsed. At the end of the meeting, the Council decided to repeal the decision of the previous Council from Nov. 18, 2007 in regard to the synagogue and mikve in Stage B (hereinafter: the Repeal Decision). As a result of this decision, several dozen residents organized in order to bring about its repeal. When their efforts failed, they submitted a petition against the Council’s decision to the Haifa District Court in its capacity as a Court of Administrative Affairs.

 

Proceedings in the Lower Court

5.         In their petition to the lower court, the Appellants argued that the Council’s decision to suspend and cancel the Tender for building the mikve should be annulled, and that the Respondents should be ordered to publish a new tender. A hearing was held on Sept 8, 2009. In the course of the hearing, it was argued, inter alia, that a decision could not be made to construct a mikve, or any other public building, without clear criteria for the allocation of public resources. In the end, a procedural agreement was reached between the parties under which the proceedings in the case would be adjourned for six months, during which the Council would establish criteria for the allocation of land for public buildings and for budgetary support for public purposes. It was agreed that those criteria would “relate to all the needs of the village, including religious needs, among them the construction of a mikve”; and that “in the framework of the criteria that will be established by the Council, the Council will consider the public desire and all the public needs, and will take the public’s constitutional rights into account. In addition, the Council would consider the burden on the public purse […] [and in that regard] the possibility of obtaining public or other funding for the construction of public buildings, including public funding already approved […], and the possibility of combining different needs together in order to reduce and save expenses”. It was made clear that the agreement would not derogate from any of the parties’ claims in regard to the petition itself.

6.         On Dec. 14, 2009, pursuant to the procedural agreement, the Council decided to establish a committee to evaluate the criteria for constructing public buildings in the town (hereinafter: the Criteria Committee or the Committee). The Committee comprised nine members, including representatives of the Appellants. Following five meetings and a public discussion to which the entire community was invited, the Committee presented its conclusions. The Committee decided that the priorities for the construction of public buildings in the town should be based upon a group of criteria, and quantified the relative weight that should be given to each criterion, as follows:

 

            Criterion                                                                                              Relative Weight

1. Expected number of users                                                                                    30%
2. Necessary for well-being in the town                                                       25%
3. Appropriate to the character of the town                                     25%
4. Cost relative to number of expected users                                                10%
5. Possibility of fulfilling the need in neighboring communities                  10%

 

            In light of these criteria, the members of the Committee ranked the list of 17 public buildings required by the town. After the mikve placed last under each of the criteria, separately and cumulatively, the mikve was ranked last in priority for the construction of public buildings required for the town.

7.         On April 21, 2010, the Council ratified the Committee’s recommendations, and explained that the priorities would serve as a “compass” for the Council’s decisions in this area, but added that the recommendations do not relieve the Council of its authority to consider each case on its merits. Following the ratification of the recommendations, and in light of the low ranking given to the construction of the mikve, the Appellants submitted an amended petition in which they reiterated the claims made in the original petition, and added claims against the criteria established and the method for ranking public buildings.

The Judgment of the Lower Court

8.         On Dec 23, 2010, the lower court (the Hon. Judge R. Sokol) dismissed the petition and assessed NIS 20,000 against the Appellants for costs. At the beginning of its judgment, the court explained that the fundamental rights of the Appellants to freedom of religion and worship were not in question, but the discussion must be focused upon the question of the criteria for the allocation of public resources in the local authority and the lawfulness of the procedures adopted by the Respondents. The court found that the building of the mikve required the allocation of public resources – land and budget – for construction and maintenance. The court explained that even if the Appellants expect to raise contributions for the project, those contribution are not expected to eliminate the need for public resources, but only to limit the costs. Against this background, the court rejected the Appellants’ claims in regard to the Repeal Decision, as well as the Council’s decision – made following the recommendations of the Criteria Committee – to rank the mikve as the lowest priority in the list of public building construction in the town (April 21, 2010).

9.         As for the Repeal Decision, the court found that since the allocation of land for building of the mikve was contingent upon conditions that were not fulfilled – the money was not provided by the Donor, and the Religious Affairs Authority required an unconditional undertaking that the Council underwrite the construction and maintenance costs – the Council’s decisions were lawfully repealed. Moreover, the Council was at liberty to repeal those decisions inasmuch as they were not made in accordance with the criteria established later in accordance with the Council’s new policy, and because the circumstances under which the decisions were made had changed after it was decided to allocate the land for the building of a school.

10.       All of the Appellant’s arguments against ranking the mikve as the lowest priority for the construction of public buildings were dismissed, as well. As for the claim that there was insufficient factual basis, the court found that the Committee’s reliance upon the data of the Council, upon oral and written public requests, and upon the Committee members’ personal knowledge of the town was reasonable, and that the Appellants had been given an opportunity to present data to the Committee as they wished. It further held that the statements of the Committee members in regard to the town’s future did not testify to the existence of improper considerations in regard to preventing an increase in the number of observant residents in the town, and that that the worldviews of the Committee members in regard to the needs of the community were relevant and required for addressing the matter. As for the Appellants’ claim that the criteria established under the procedural agreement were not included in the final list of criteria, the court held that the procedural agreement could not limit the Council’s exercise of its discretion, and that the said agreement was not intended to establish the criteria, but rather to set out the considerations that the Council should take into account in deciding upon those criteria, which it did. It was further found in this regard that the Council’s decision not to include the availability of resources as a criterion was intended to prevent the use of contributions in order to erect buildings for which there was no real need, and was, therefore, a relevant, legitimate consideration. The court added that the ritual needs of the residents are seen to by the Ma’ale Yosef Regional Religious Council, and that there are mikves in neighboring communities. It held that the absence of a mikve in the town presented a hardship for residents seeking to fulfil the religious obligation of ritual immersion, but it did not prevent the fulfilment of that obligation. Lastly, the court held that, in view of the appropriate judicial restraint to be shown in regard to intervention in administrative discretion, the court should not intervene in the criteria in a manner that would grant priority to the construction of the mikve.

            That is the background that led to the appeal before this Court.

 

Arguments of the Appellants

11.       The Appellants ask that the Court set aside the judgment of the lower court, annul the Council’s decision of May 13, 2009 (in regard to the EB and the allocation of land for the construction of the mikve), and of April 4, 2010 (in regard to ranking the mikve as the lowest priority for public buildings required in the village), and invalidate the recommendations of the Criteria Committee. The Appellants further ask that we order that the Council erect a public mikve in reliance upon the funding from the Ministry of Religious Services, and apply for an extension for obtaining the EB, as may be necessary.

12.       According to the Appellants, the construction of a mikve in the town will protect the right of the residents to freedom of religion and worship, on the one hand, while not affecting the communal resources, on the other. The Appellants argue that the mikve can be combined with another public building, such that it will not detract from the land available for public use, while its construction and maintenance will be funded through state funding and not from the Council’s budget. Under those circumstances, they argue, the Council’s decision to refrain from building a mikve in the town was disproportionate and unreasonable, and derived from improper, extraneous considerations that arose from a desire to preserve the secular character of the community and keep religiously observant people out of the village. They further raised a series of flaws in the Council’s decision-making process in the matter. The Appellants also argued that there were factual errors in the lower court’s judgment, among them, the finding that the mikve was to be built in reliance upon funding by a private donor (whereas, they argues, the funding was to be provided by the State); the finding that the Appellants claimed only a burden upon their constitutional right to freedom of religion and worship (whereas, according to the Appellants, they claimed a real infringement and absolute denial of the ability to perform the religious obligation on the Sabbath and holidays); the finding that allocating land for the mikve was contingent upon conditions that were not met (whereas the Council decided, on Nov. 18, 2007, to waive the conditions it had previously set for the building of the mikve).

 

Arguments of the Respondents

13.       The Respondents support the judgment of the lower court. First, they argue that there were no flaws in the work of the Criteria Committee. On point, the Respondents argue that the Criteria Committee rightly decided that the availability of resources should not serve as a criterion for the construction of public buildings, as otherwise, the Council would have to erect every building for which there was outside funding; that the possibility for combining a number of functions in one building should not be considered in the framework of establishing criteria, as it is a preliminary stage; and that the constitutional rights of the residents should not serve, in and of themselves, as a criterion, and it is sufficient that they are taken into account in the framework of the established criteria. It was further argued that, at present, there were other public buildings that remained to be built, for which the residents had long-ago paid the development costs The Respondents are of the opinion that once the parties decided upon the establishing of the Criteria Committee, there was no longer any justification for reexamining the Council’s decisions prior to the establishing of the Committee, and moreover, in light of the decision of the former Council head to build the Tefen school on the lot, the Council had no choice but to cancel the Tender; in any case, the Council is permitted to decide upon a change of policy; and that, in any case, the requisite preconditions for carrying out the repealed decision – full outside funding and available land – were not met.

 

Proceedings before this Court

14.       On Sept. 6, 2012, a hearing was held on the appeal (E. Hayut, U. Vogelman, Z. Zylbertal, JJ), in the course of which the Court recommended that the parties attempt to settle the dispute amicably and out of court, inter alia, in light of the suggestion that arose in the course of the hearing that it might be possible to build the mikve privately in the town’s commercial center. On Nov. 11, 2012, the parties informed the Court that no agreement had been reached, and that the possibility of building a private mikve as suggested was in doubt inasmuch as it was contingent, inter alia, upon obtaining a zoning variance. Following a further hearing before this panel (E. Hayut, U. Vogelman, N. Hendel, JJ) on Nov. 4, 2013, the Court requested that the State (the Ministry of Religious Services, and, if necessary, the Israel Lands Authority) declare its position on the matter.

15.       The State submitted its reply on Dec. 24, 2013. The reply stated that the Council could submit a request for funding for the construction of a mikve, which would be considered based upon the criteria of the Ministry of Religious Services, and that it was possible to erect a “standard” public mikve in reliance upon state funding. However, it was noted that there are cases in which the local council participates in certain related costs (such as, environmental development and various complimentary costs), and that, as a matter of course, the Ministry of Religious Services requires that the local authority undertake – as a condition for receiving funding – to pay the difference, if any, between the cost of construction and the funding. It was further made clear that there was no need to allocate specific land for the purpose of submitting the application, and that the salary of the mikve attendant would be provided by the Ministry of Religious Affairs, prorated in accordance with the number of users. It was further explained that the state does not participate in the construction or maintenance of private mikves. As far as the allocation of land was concerned, the Israel Lands Authority informed the Court that, after investigating the matter with the engineer of the Lower Galilee Local Building and Planning Committee, it found that there are three lots in the town– lots 718, 720 and 856 – that could be appropriate, in terms of planning, for the construction of a mikve. In light of the above, we were informed that “The State is of the opinion that there is a possible course for the erection of a mikve in Kfar Vradim, the construction of which will be funded (entirely or primarily) by funding from the Ministry of Religious Services. This, if an application is duly submitted on the prescribed dates, and subject to its examination in accordance with the criteria, and its approval”.

16.       Following the State’s reply, the Appellants submitted an urgent request for an interim order. The Appellants asked that we order the Respondents to submit an application to the Ministry of Religious Services for funding for the erection of a public mikve in accordance with the State’s recommendation, in order to meet the timetable for receiving the funding in 2014. The Respondents opposed the request, arguing that they should not be ordered to submit such a request before the matter is approved by the Council in an appropriate administrative procedure. On Dec. 29, 2013, we dismissed the request for an interim order, and ordered that a date be set for a further hearing of the appeal, in which the State’s representative would also participate.

17.       In updated notices submitted on Feb. 28, 2014 and March 3, 2014, the parties informed the Court that the attempt to initiate the erection of a private mikve had failed due to the Local Council’s decision to deny the request for a zoning variance, and that it the possibility of obtaining such a variance was now unclear inasmuch as it would only be possible to resubmit the request after the completion of the parcelization process for the commercial center. We were further informed that the parties remained divided on the issue of allocating Council resources for the construction and maintenance of a public mikve.

18.       On March 31, 2014, this panel conducted a further hearing of the appeal, in which the attorney for the Respondents claimed that there were planning and practical problems in regard to constructing the mikve on lot 856, which had been mentioned in the State’s reply. At the conclusion of the hearing, we ordered that the Respondent’s attorney submit a notice to the Court, no later than April 6, 2014, detailing the planning and other problems cited in his arguments in regard to lot 856, which had been found suitable, in terms of planning, for the erection of a mikve, as well as in regard to the other lots in the area that might be suitable, and that the State’s attorney then submit an updated notice in regard to the possibility for allocating a lot for the erection of a mikve.

19.       On April 6, 2014, the Respondents submitted an update in which they informed the Court that it would not be possible to build a mikve on lot 856, inasmuch as it would require a new urban development plan and the adjustment of infrastructures; because the type of use of the buildings surrounding the lot was not appropriate for the building of a mikve; and because part of the lot had been sold to a private individual. Therefore, according to the Respondents, the possibility of building the mikve in the commercial center would be preferable, since work on the project had begun (without a permit). On May 1, 2014, the State submitted a further notice in which it stated that building a mikve of lot 856 was possible. The State explained that there are no current negotiations for the transfer of parts of the lot to private hands; there is no need for a new, detailed plan for erecting a mikve, as the current plan is sufficient; and that nothing about the type of use of the surrounding lots would prevent the building of a mikve on the lot. It further noted that a mikve could also be built of lots 718 and 720, both from a planning and practical point of view. The State further explained that building a mikve in the area of the commercial center would involve planning and practical problems: under the relevant plan, the area is zoned for “commercial purposes”, and therefore the erection of a mikve would require initiating planning proceedings in order to change zoning; the proximity to commercial areas is incompatible with the operation of a mikve; and the ownership of the lot and construction violations had yet to be resolved. As for funding the building of the mikve, the Council could submit an application for funding to the Ministry of Religious Services for 2015, which would be reviewed in accordance with the Ministry’s criteria that would be published in the final months of the current year.

 

Deliberation and Decision

            Is the Kfar Vradim Council’s decision to rescind its decision to erect a mikve in the town and refrain from acting towards its construction compatible with the rules of public law? That is the question that we must decide.

 

The Scope of Judicial Review over a Local Authority’s Decision in regard to Allocating Public Resources

20.       The Kfar Vradim Council is a local council authorized to decide how resources will be allocated, subject to the provisions of the law. Indeed, “What use a local authority will make of its property, and to what extent will it permit an individual to use it and when will it refuse, is the question that the authority itself, through its elected representatives, is authorized to decide” (HCJ 262/62 Peretz v. Kfar Shmaryahu Local Council, 16 IsrSC 2101, 2114 (1962) (hereinafter: the Peretz case)). As a rule, a local council enjoys broad discretion in regard to decisions concerning the allocation of public resources. The initial assumption is that a local council – which is an elected authority whose members represent the public they were chosen to serve – occupies the best position for deciding upon the priorities that will advance the general good, and for striking the proper balance between meeting public needs and maintaining the budgetary framework. Therefore, the Court will not hastily intervene in such decisions, and will refrain from placing itself in the authority’s shoes (whether we are concerned with a local authority or a governmental authority). In the framework of judicial review, the question of whether public resources were allocated wisely, or whether they could have been allocated differently, will not be considered unless the decision regarding the allocation of resources was tainted by a substantive, fundamental flaw that justifies the Court’s intervention. Such restraint is a corollary of the principle of the separation of powers. In this regard, the words of Justice S. Netanyahu are apt:

 

“The Court will not instruct the authority how to allocated and divide its resources. Requiring an expenditure for a specific purpose must come at the expense of another, perhaps more important, purpose, or perhaps, require enlarging the budget it is granted by the state treasury, which must then come at the expense of other, perhaps more important, purposes. This Court is not the authorized body, and cannot treat of the allocation of the public’s resources” (HCJ 3472/92 Brand v. Minister of Communications, 47 (3) IsrSC 143, 153 (1993) (hereinafter: the Brand case); and see HCJ 2376/01 Federation of Local Authorities in Israel v. Minister of Science, Culture and Sport, 56 (6) IsrSC 803, 811 (2002)).

 

            Despite the broad reach of discretion and the narrow scope of judicial review that it implies, it is clear that the Council, like any local authority, is subject to the principles of public law. This restraint in regard to judicial review does not relieve the Court of fulfilling its duty: to ensure that the authority exercises its discretion in accordance with the law. And note: the local authority serves – in all of its actions – as a trustee of public funds, and its job is to advance public purposes for the general good. As Justice H. Cohn put it:

 

“The private sphere is not like the public sphere. In the former, one grants at will and denies at will. The latter exists for no reason other than to serve the public, and has nothing of its own. All it has is held in trust, and it has no other, different or separate rights or obligations than those that derive from that trust or that are granted or imposed by the authority of statutory provisions” (HCJ 142/70 Shapira v. Bar Association District Committee, Jerusalem, 25 (1) IsrSC 325, 331 (1971); and see HCJ Israel Contractors and Builders Center v. State of Israel, 34 (3) IsrSC 729, 743 (1980); the Peretz case, at p. 2115).

Even in allocating public resources, the authority is obligated to act in a manner that faithfully serves the entire public and ensures proper governance. Accordingly, the allocation of public resources in public authorities must be carried out in accordance with the principles of reasonableness and proportionality, and in accordance with fair, equal, relevant and transparent criteria (see: HCJ 3638/99 Blumethal v. Rehovot Municipality, 54 (4) IsrSC 220, 228 (2000); HCJ   5325/01 L.K.N. Association for the Advancement of Women’s Basketball v. Ramat Hasharon Local Council, para. 10 (June 2, 2004); AAA 5949/04 Mercaz Taxi Ltd. v. Hasharon Taxi Service Ltd., para. 16 (Nov. 28, 2005); and see and compare: HCJ 59/88 Tzaban v. Minister of Finance 42 (4) IsrSC 705, 706 (1989); HCJ 637/89 A Constitution of the State of Israel v. Minister of Finance, 46 (1) IsrSC 191, 200 (1991); HCJ 5023/91 Poraz v. Minister of Construction and Housing, 46 (2) IsrSC 793, 801 (1992); and also see: Dafna Barak-Erez, Administrative Law, 231-235 (2010) (Hebrew); Yitzhak Zamir, The Administrative Authority, 246-248 (2d ed., 2010) (Hebrew); for the anchoring of these principles in the Directives of the Ministry  of the Interior, see: Circular of the Director General of the Ministry of the Interior 5/2001 “Procedure for the allocation of land and buildings without or for minimal consideration” 4-11 (Sept. 12, 2001)). Before reaching a decision on the allocation of public resources, the authority is required to “establish for itself priorities and precedences, and rules and guiding criteria for their application, which must meet the test of reasonableness, and which it must apply equally. Reasonableness requires that in setting priorities among various subjects for which the authority is responsible, priority be given to the more important subjects” (the Brand case, at p. 153).

We will now turn to an examination of whether the decision of the Local Council in the case before us was taken in a proper administrative process, and whether it falls within the scope of the discretion granted the Council.

 

Review of the Decision of the Local Council

21.       I will begin with the conclusion before presenting the analysis: In my opinion, the Council’s decision not to move forward with the building of a mikve for women in the town in the near future does not pass the reasonableness test. Under the special circumstances of the case, I find that the Council’s decision did not reasonably balance the need of religiously observant women to observe the religious obligation of immersion against the budgetary considerations and the available land resources. Under these circumstances, addressing the other claims of the Appellants in regard to flaws that they believe fell in the decision-making process is superfluous, as I shall explain.

22.       As we know, an administrative decision is reasonable if the decision is made as a result of a balance between relevant considerations and interests that have been given appropriate weight under the circumstances (see HCJ 389/80 Golden Pages Ltd. v. Broadcasting Authority, 35 (1) 421, 437 (1981)). Indeed, “A decision may be flawed even when the authority weighed only the relevant considerations, without a hint of an extraneous consideration in its deliberations, if the internal balance among the considerations and the internal weight assigned to each consideration were distorted” (HCJ 1027/04 Independent Cities Forum v. Israel Lands Authority Council, para. 42 (June 9, 2011); Barak-Erez, at p. 725). Examining the reasonableness of the Council’s decision therefore requires that we look at the nature of the considerations that it weighed when it reached that decision, upon the manner of striking the balance, and upon the weight assigned to each consideration. Although the Council’s decision relied upon the recommendations of the Criteria Committee established to set criteria for the construction of public buildings in the town, it is clear that those recommendations cannot absolve it of the duty to exercise its authority to consider every case on its merits.

23.       What weight was the Council required to assign to the recommendations of the Criteria Committee in examining the possibility of acting to erect a mikve in the village? Having established the Criteria Committee for that purpose, the Council was required to take note of the Committee’s recommendations in deciding upon the manner for allocating the town’s resources. Indeed, an administrative agency will not lightly deviate from the recommendation of a knowledgeable, expert body, established at its request, which was adopted after an in-depth professional evaluation. It is decided law that “in the absence of an administrative flaw in the opinion of the advisory body, special reasons and extenuating circumstances are required in order to justify deviation from its opinion, especially when the authority is the one that established the advisory body and authorized it to carry out its task” (HCJ 5657/09 The Movement for Quality Government in Israel v. Government of Israel, para. 48 (Nov. 24, 2009); and see HCJ 8912/05 Mifgashim Association for Educational and Social Involvement v. Minister of Education, Culture and Sport, para 16 (March 14, 2007)). However, that does not mean that the Council is bound by the recommendations of the Criteria Committee, which is merely an advisory body. On the contrary, the Council is required to exercise its discretion independently. As Justice Y. Zamir aptly stated: “[…] a recommendation is only a recommendation. In other words, a recommendation does not exempt the authority from the duty to exercise its own discretion. The authority must weigh the recommendation and decide if it would be appropriate, under the circumstances, to accept or reject the recommendation” (HCJ 9486/96 Ayalon v. Registration Committee under the Psychologists Law, 5737-1977, 52 (1) IsrSC 166, 183 (1988); and for a more detailed discussion, see Zamir, at pp. 1219-1222).

24.       Thus, the Local Council was required to examine each request to erect a public building individually, on the basis of the recommendations of the Criteria Committee, while taking into account all the considerations relevant to the decision. In the matter before us, the Council did not discuss the possibility of proceeding with the erection of the mikve in the town in its meeting on April 21, 2010, and from the documents submitted to us, it would appear that this possibility was also not addressed on its merits in the meetings held thereafter. In fact, it would appear that in the Council’s opinion – as can be inferred from the responses that it submitted throughout the proceedings in this case – there was no need for any concrete consideration of the possibility of erecting a mikve in the town once the project was ranked last in the list of public priorities. From the moment that the Council failed to consider the request to erect a mikve in the town on its merits, not deciding to consider the subject of erecting a mikve in the town in the near future was tantamount to a “decision” as defined by law (see sec. 2 of the Administrative Courts Law, 5760-2000, according to which the lack of a decision is deemed a “decision of an authority”; and see HCJ 3649/08 Shamnova v. Ministry of the Interior, para. 3 (May 20, 2008)). Against the said background, the question before us is whether, under the circumstances of the instant case, the Council’s decision to rescind its decision to build a mikve in the village, to accept the recommendations of the Criteria Committee in toto, and therefore refrain from acting in the near future toward the erection of a mikve in the village, does not deviate from the scope of its discretion.

 

The Reasonableness of the Council’s Decision – The Proper Balance of Relevant Considerations

A.        Considerations supporting the erecting of a mikve in the town – the needs of the religiously observant residents

 

25.       Section 7 of the Jewish Religious Services Law [Consolidated Version], 5731-1971 (hereinafter: the Jewish Religious Services Law) provides that the religious councils of the local authorities are competent to provide for the religious services of the residents. The subject of “family purity”, which concerns the operation of ritual baths, is among the religious services for which the religious councils are responsible (see: HCJ 516/75 Hupert v. Minister of Religion, 30 (2) IsrSC 490, 494 (1976); HCJ 6859/98 Ankonina v. Elections Official, 52 (5) IsrSC 433, 447-448 (1998); HCJ 4247/97 Meretz Faction in the Jerusalem Municipal Council v. Minister of Religious Affairs, 52 (5) IsrSC 241, 251 (1998); HCJ 2957/06 Hassan v. Ministry of Building and Housing – Religious Buildings Development Section (July 16, 2006); Shelly Mizrachi, Religious Councils 7-6 (Knesset Research and Information Center, 2012) (Hebrew); Hadar Lifshits and Gideon Sapir, “Jewish Religious Services Law––A Proposed Framework for Privatization Reform”, 23 Mehkarei Mishpat - Bar-Ilan Law Studies 117, 147-148, 153-154 (2006) (Hebrew)).

26.       Mikve services for women are necessary to maintaining the religious lifestyle of Israel’s religiously observant population. Ritual immersion in a mikve is a vital need for those who observe the laws of “family purity”, which require a women to immerse in a mikve after her monthly period. As is commonly known, the observance of the religious obligation of immersion is deemed very important in Jewish law, to the extent that religious decisors have ruled that erecting a mikve takes precedence even over erecting a synagogue (Yalkut Yosef, Reading the Torah and the Synagogue, secs. 152-153) (Hebrew). The obligation to immerse in a mikve forms an integral part of the life of an observant, married Jewish woman, and is an inseparable part of her religious ritual and the expression of her identity and customs. It is substantively related to the right to freedom of religion and worship, which our legal system has recognized as a fundamental right of every person in Israel, although the case law has not yet established that it imposes a positive obligation requiring that the State allocate public resources for the provision of religious services. In the framework of this appeal, I will not attempt to provide a precise definition of the interrelationship between the right to freedom of religion and worship and the State’s obligation to provide religious services, as in any event, as will be explained below, an administrative review of the authority’s decision in this case, in accordance with the accepted standard of review, leads to the granting of the appeal (on the recognition of the importance of the right to freedom of religion and worship in this Court’s decisions, see: CrimA 112/50 Yosifof v. Attorney General 5 (1) IsrSC 481, 486 (1951) [http://versa.cardozo.yu.edu/opinions/yosifof-v-attorney-general]; HCJ 866/78 Morad v. Government of Israel, 34 (2) IsrSC 657, 663 (1980); HCJ 292/83 Temple Mount Faithful Association v. Jerusalem District Police Commander, 34 (2) IsrSC 657, 663 (1980); HCJ Foundation of the Movement for Progressive Judaism in Israel v. Minister of Religion, 43 (2) IsrSC 661, 692 (1989); HCJ 650/88 Movement for Progressive Judaism in Israel v. Minister of Religious Affairs, 42 (3) IsrSC 377, 381 (1988); HCJ 3261/93 Manning v. Minister of Justice, 47 (3) IsrSC 282, 286 (1993); HCJ 4298/93 Jabarin v. Minister of Education, 48 (5) IsrSC 199, 203 (1994); HCJ 257/89 Hoffman v. Director of the Western Wall, 48 (2) IsrSC 265, 340-341 (1994); HCJ 1514/01 Gur Aryeh v. Second Television and Radio Authority, 55 (4) IsrSC 267, 277 (2001) [http://versa.cardozo.yu.edu/opinions/gur-aryeh-v-second-television-and-r... HCJ 11585/05 Israel Movement for Progressive Judaism v. Ministry of Absorption, para. 16 (May 19, 2009); HCJ 10907/04 Solodoch v. Rehovot Municipality, paras. 71-72 (Aug. 1, 2010); and see: Aharon Barak, Human Dignity: The Constitutional Right and its Daughter-Rights, vol. 2, 769-774 (2014) (Hebrew) [published in English translation as: Human Dignity: The Constitutional Value and the Constitutional Right (Cambridge, 2015)]; Amnon Rubenstein and Barak Medina, The Constitutional Law of the State of Israel, 354-378 (6^th ed., 2005) (Hebrew); Daniel Statman and Gideon Sapir, “Freedom of Religion, Freedom from Religion and the Protection of Religious Feelings”, 21 Mehkarei Mishpat - Bar-Ilan Law Studies 5, 7-38 (2004) (Hebrew)).

27.       As noted, there is no religious council in Kfar Vradim (the Ma’ale Yosef Regional Religious Council is responsible for providing religious services in the town, under an agreement signed in 2005 with the Local Council). Therefore, the Appellants directed their request to the Local Council. No mikve has ever been built in Kfar Vradim, and the religiously observant residents of the town must travel to neighboring towns in the Ma’ale Yosef Regional Council District in which there are mikves, and that are a short drive from the town. According to the Respondents, inasmuch as there are mikves in the neighboring towns, the harm to the ability of the town’s religiously observant residents in observing the obligation of immersion is not significant, and is merely an inconvenience. It is further argued that even if there were a mikve in the town, due to the town’s topography and the winter weather, the residents would have to drive to the mikve and could not go on foot. And in any case, the ratio of the number of mikves in the area relative to the population is among the highest in the country when compared to various cities. As opposed to this, the Appellants argue that we are not concerned with a mere “inconvenience” but with an absolute denial of the possibility of performing the religious obligation of ritual immersion. They argue that the absence of a mikve in the town deprives women whose day of immersion falls on a Sabbath eve or on a holiday from performing the obligation at its prescribed time. It is argued that when the immersion day falls on a Sabbath eve or on a holiday, one cannot drive to the mikve, and since it is practically impossible to walk to the neighboring mikves, the possibility of observing the obligation of immersion on such days is entirely denied them. In this regard, the Appellants explain that Jewish religious law ascribes supreme importance to the observance of the obligation of immersion at its prescribed time, because “[…] it is a religious obligation to immerse at the prescribed time so as not to refrain from procreation even for one night” (Shulhan Arukh, Yoreh De’ah, Laws concerning Niddah, 197:2). It is further argued that the said harm is exacerbated because not immersing at the prescribed time deprives the observant families of the ability to observe the obligation of onah (marital relations), sometimes for several days (when holidays coincide with the Sabbath eve). Lastly, the Appellants argue that the absence of a mikve in the town even makes it difficult to observe the obligation of immersion on weekdays, as there is no available public transportation by which one can travel to the mikves in the neighboring communities.

28.       After considering the arguments, I find that given the geographic location of Kfar Vradim and its topographic conditions, there is no reasonable way to go to any of the mikves in the neighboring communities on foot.  Under the circumstances, the absence of a mikve in the town cannot be said merely to “inconvenience” the religiously observant residents. The absence of a mikve in the town – given its particular circumstances – completely deprives the female residents of the town whose prescribed day of immersion falls on a Sabbath eve or holiday of the ability to perform the religious obligation of immersion at its proper time, and as a result, also deprives them of the possibility of performing of the religious obligation of onah. Thus, the women of the town are deprived of the possibility of performing an obligatory ritual practice that is deemed to be of great importance by the traditionally religious Jewish community, and which is substantively connected to the expression of their personal and group identity. As Justice E. Arbel aptly stated:

 

“We recognize the importance of a mikve for the public, and certainly for the public that uses it. The mikve is of great importance for the traditionally observant family unit, and the authorities are required to provide this service for the interested public as part of the provision of religious services by the authorities. It is also important that the mikve be situated within reasonable walking distance from the homes of the public, for those who are Sabbath observant. However, these considerations, that should not be underestimated, must be weighed against other needs that are of public importance, and against the character of the community that resides in the place, as well as against other alternatives for the erection of public buildings, as noted” (AAA 2846/11 Rehovot Religious Council v. Claudio, para. 19 (Feb. 13, 2013) (hereinafter: the Claudio case).

 

            Thus, the need of the religiously observant female residents to observe the obligation of ritual immersion at its prescribed time – a practice whose realization derives from the autonomy granted every person, as such, to follow the dictates of her conscience and faith, and observe the rules and customs of her faith – must be granted significant weight in the framework of the decision-making process in regard to the erection of public buildings in the town (compare: the Gur Aryeh case, at p. 278). However, the need of the religiously observant residents for the erection of a mikve in the town must be balanced against the opposing considerations. What, then, are the opposing considerations that tilted the scales in favor of the Council’s decision not to move forward on the construction of a mikve in the town in the near future?

 

B.        The “Budgetary” Consideration

 

29.       As best we can understand from the Respondent’s response, the primary consideration that led to adopting the decision was the limited public resources available to the Council. According to the Respondents, the construction of a mikve in the town would require that the Council allocate public monies and land at the expense of other public construction of greater importance. Indeed, “it is decided law that a public authority may, and even must, consider budgetary restrictions in the framework of its discretion, as part of its public obligation” (see: HCJ 3071/05 Louzon v. Government of Israel, 63 (1) IsrSC 1, 39-40 (2008) [http://versa.cardozo.yu.edu/opinions/louzon-v-government-israel]; HCJ 3627/92 Fruit Growers Association v. Government of Israel, 47 (3) IsrSC 387, 391 (1993); HCJ 2223/04 Nissim v. State of Israel, para. 29 (Sept. 4, 2006); HCJ 9863/06 Association of Combat Leg Amputees v. The State of Israel, para. 13 (July 28, 2008); HCJ 1662/05 Levi v. State of Israel, para. 51 (March 3, 2009); Barak-Erez, at pp. 661-663, 745-746; Aharon Barak, Proportionality in Law: Infringing Constitutional Rights and its Limits, 460-461 (2010) (Hebrew) [published in English translation as Proportionality: Constitutional Rights and their Limitations (Cambridge, 2012)]).  In the matter before us, among its considerations, the Council could certainly give weight to the limits upon the available resources, and allocate them in accordance with public needs. However, as shall be explained below, under the circumstances of the instant case, the Council resources – both land and money – that were expected to be required for the purpose of building and maintaining a mikve in the town were not significant.

30.       In regard to the allocation of land for the construction of the building, the State informed us that there are, at present, at least three available lots in the town that would be appropriate for the construction of a mikve, in terms of both existing planning and practicality. In addition, there is a possibility – that the Respondents do not deny – of incorporating the mikve in other public buildings. In such a case, building the mikve will not come at the expense of public land earmarked for other purposes. As for financing, the matter can be divided into two parts: the monies required for constructing the building, and the monies needed for maintenance. As far as financing the construction is concerned, it is clear from the State’s response that if the Council’s application for funding the construction of a mikve is approved – and there is no reason to believe that it will not be reapproved, in light of the letters from the Ministry of Religious Services and the fact that an EB was already approved in the past for the construction of a mikve in the town – the construction of the mikve will be financed from state funds, and not from the Council’s budget. The Local Council will incur expenses only if the cost of construction exceeds the funding due to deviation from the budgetary framework, or if it will be required to bear certain related costs (such as environmental development and complementary costs). As for maintenance costs, according to the State’s response and the letters from the Ministry of Religious Services, the salary of the mikve attendant will be paid from the budget of the Ministry of Religious Services, prorated to the number of users, while maintenance (electricity, water, etc.) will be funded in part by users’ fees collected by the attendant. Thus, the Council can expect to pay only a small, insignificant part of the ongoing expenses of maintaining the building. Under these circumstances, in which the construction and maintenance are barely likely to come at the expense of the limited resources of the Council, the weight of the budgetary consideration is limited relative to the opposing interest.

 

2.         Preserving the Secular Character of the Town

 

31.       The parties are divided on the question of whether the Council’s decision gave weight to the consideration of protecting the town's secular character. According to the Appellants, the main consideration that grounded the Council’s decision not to erect a mikve in the town was the desire – that they consider an extraneous, improper consideration – to preserve the secular character of the town and to keep the religious community away. As opposed to this, the Respondents claim that the consideration of preserving the secular character of the town had no weight in the Council’s decision. The question if and under what circumstances a local authority may entertain the consideration of preserving a particular character of the town is complex (and compare: HCJ 528/88 Avitan v. Israel Lands Administration, 43 (4) IsrSC 297 (1989); HCJ 4906/98 “Am Hofshi” Association for Freedom of Religion, Conscience, Education and Culture v. Ministry of Construction and Housing, 54 (2) IsrSC 503, 508-509 (2000); and for an opposing view: HCJ 6698/95 Ka’adan v. Israel Lands Administration, 54 (1) IsrSC 258 (2000) [http://versa.cardozo.yu.edu/opinions/ka%E2%80%99adan-v-israel-land-admin... and see: HCJ 650/88 Movement for Progressive Judaism in Israel v. Minister for Religious Affairs, 42 (3) IsrSC 377, 381 (1988); HCJ 10907/04 Solodoch v. Rehovot Municipality, paras 68-90 (Aug. 1, 2010); the Claudio case, at para. 12; Statman and Sapir; Gershon Gontovnik, Discrimination in Housing and Cultural Groups, 113-127, 201-209 (2014) (Hebrew)). We need not decide this issue in the matter before us, as even if we assume – to the Respondent’s benefit – that the consideration of preserving the town’s character carried no weight in the Council’s decision – as they claim – the decision must, nevertheless, be voided because it did not strike a proper balance between the considerations that were taken into account even according to the Respondents, as we shall explain below.

 

C.        Balancing the various Considerations and Examining the Reasonableness of the Decision

 

32.       Having reviewed the considerations on both sides of the scales, all that remains is to examine whether the decision struck a reasonable balance between those considerations. In doing so, we should bear in mind that such balancing does not, generally, lead to a single, reasonable result. Indeed, the Council enjoys some latitude in which different and even opposing decisions may coexist. However, in the circumstances of the instant case, I find that the Council’s decision not to act toward the erecting of a mikve in the town does not fall within that discretionary latitude. As is commonly known, the weight to be assigned to budgetary considerations is examined, inter alia, in relation to the importance of the opposing rights and interests (see: Barak-Erez, at pp. 746-747; and also see the citations at fn 86, loc. cit.). In the matter before us, the harm to the religiously observant women in the town, which I discussed above, is of significant force, whereas the “price” involved in erecting the mikve is minor. In this context, we should recall that the Council already decided several years ago to erect a mikve in the town, but chose to rescind that decision for “budgetary” reasons that would seem no longer to exist. In this situation, the Council’s decision not to erect a mikve in the near future does not grant adequate weight to the harm caused to the religiously observant women, to the availability of external funding that would render the burden upon the Council insignificant, and to the possibility of incorporating the construction of the mikve within the framework of a building with another purpose, in a manner that would limit the need for a separate allocation of public land, and preserve it for other, necessary public purposes.

33.       In the final analysis, in the circumstances of the present case, in which appropriate weight was not assigned to the substantial harm to the religiously observant, female residents of the town due to the absence of mikve that is accessible on the Sabbath and on religious holidays, and where it was found that the allocation of resources was granted disproportionate weight even though land was readily available for erecting the mikve without harming other public interests, and without any need for allocating substantial resources by the Council due to external financing, I find that the Council’s decision not to erect a mikve was unreasonable and must, therefore, be quashed. In light of the long “history” of the proceedings in this matter, we do not find it appropriate to remand the matter to Council, yet again, inasmuch as, under the circumstances, the decision required is the erection of the mikve with due haste (and compare, for example: HCJ 1920/00 Galon v. Release Board, 54 (2) IsrSC 313, 328 (2000); HCJ 89/01 Public Committee against Torture in Israel v. Release Board, 55 (2) 838, 878 (2001); AAA 9135/03 Council for Higher Education v. Haaretz, 60 (4) IsrSC 217, 253 (2006) [http://versa.cardozo.yu.edu/opinions/council-higher-education-v-haaretz]; AAA 9353/10 Yakovlev v. Ministry of the Interior, para. 19 (Dec. 1, 2013).

 

Conclusion

34.       Given the conclusion reached, I would recommend to my colleagues that we grant the appeal such that the judgment of the lower court be reversed and the appeal granted. The Kfar Vradim Council is ordered to act immediately to erect a mikve on one of the lots in the town listed in the State’s reply – or some other lot that it may find appropriate – such that construction will commence as soon as possible, and no later than a year and a half from the date of this judgment. The Council may submit an application for funding support for the erection of the mikve from the Ministry of Religious Services with due speed. Respondent 2 will pay the Appellants’ costs in both instances in the amount of NIS 25,000.

                                                                                                            Justice

 

Justice E. Hayut:

I concur.

                                                                                                            Justice

 

Justice N. Hendel:

I concur.

                                                                                                            Justice

 

Decided in accordance with the opinion of Justice U. Vogelman.

Given this 14^th day of Elul 5774 (Sept. 9, 2014).

 

 

 

           

 

 

The Supreme Court sitting as a Court of Appeals for Administrative Affairs

 

 

AAA 2469/12

 

 

Before:                                                The Honorable President A. Grunis

                                                The Honorable Deputy President M. Naor

                                                The Honorable Justice E. Rubinstein

 

 

The Appellants:                      1.    Morris Bremer

                                               2.    Eddie Weisbaum

                                               3.    Motty Maoz

                                               4.    David Haimov

                                               5.    Eliyahu Miller

                                               6.    Yitzchak Elkoser

                                               7.    Pinchas Tzelik

                                               8.    The General Association of the Merchants and the Self-Employed

 

v.

 

The Respondents:                   1.    The Tel Aviv-Jaffa Municipality

                                               2.    A.M.P.M.

                                               3.    Tiv Taam Daily Ltd.

                                               4.    Tiv Taam Reshatot Ltd.

                                               5.    Tiv Taam Hacarmel Holdings Ltd

                                               6.    Tiv Taam Hodnigs (sic.) 1 Ltd.

 

                                               Appeal of the judgment of the Tel Aviv-Jaffa Administrative Affairs Court dated February 22, 2012, in AP 2500/07, given by the Honorable Justice E. Covo.

 

Date of Session:                                  23^rd of Nissan, 5773 (April 3, 2013)

 

On behalf of Appellants 1-7:              Adv. Ivri Feingold

 

On behalf of Appellant 8:                   Adv. David Shub

 

On behalf of Respondent 1:                Adv. Rachel Avid

 

On behalf of Respondent 2:                Adv. Meir Porges;Adv. Shlomi Bracha

 

On behalf of Respondents 3-6:           Adv. Ronen Buch; Adv. Eli Shimelevich

 

 

 

Judgment

 

Deputy President M. Naor:

 

1. Before us is an appeal against the judgment of the Tel Aviv-Jaffa District Court, sitting as an Administrative Affairs Court (Deputy President E. Covo) in AP 2500/07 dated February 22, 2012. In the judgment, the Court rejected the Appellants' petition to instruct the Tel Aviv-Jaffa Municipality to close various businesses that are open on the Sabbath.

 

 

Background

 

2. Appellants 1-7 are owners of retail businesses selling food (grocery stores), which operate in the city of Tel Aviv-Jaffa (hereinafter: the "Appellants"). Appellant 8 serves as the representative of merchants in Israel on various matters. Respondent 1 is the Tel Aviv-Jaffa Municipality (hereinafter: the "Municipality"), while Respondents 2-6 (hereinafter: the "Respondents") operate "supermarket" stores across the city of Tel Aviv-Jaffa. The Respondents operate their businesses during all days of the week, including the Sabbath. This, in violation of the Tel Aviv-Jaffa (Opening and Closing of Stores) By-Law, 5740-1980 (hereinafter: the "By-Law"), which prohibits opening stores on the day of rest.

 

3. Prior to filing the petition to the Administrative Affairs Court, the Appellants approached the Municipality a number of times so that it would exercise its authority and close the Respondents' businesses. On July 26, 2007, the Appellants received a response from the Municipality's Inspection Department, that each Sabbath, businesses operating on the day of rest are fined in the amount of NIS 660. On July 15, 2007, the Appellants sent an additional letter in which they requested that the Municipality take action to close the businesses, pursuant to its authority by virtue of the Business Licensing Law, 5728-1968 (hereinafter: the "Business Licensing Law" or the "Law"). Until the submission of the petition which is the subject of the Appeal, the Appellants did not receive any response on the merits of the issue.

 

The Proceedings in the Administrative Affairs Court

 

4. The Appellants' complaint in their petition was that the Municipality is refraining from enforcing the laws related to observance of the weekly day of rest, as it is not taking action to close the businesses that are open on such day. They argue that the Municipality must close the businesses that are open on the Sabbath, pursuant to its authorities by virtue of the Business Licensing Law, the Municipalities Ordinance [New Version] (hereinafter: the "Municipalities Ordinance") and the By-Law. The Appellants argued that the Respondents gain a competitive advantage over the Appellants due to their openly violation of the Law, since the Respondents attract consumers who prefer to do their shopping on the Sabbath. Had the Respondents refrained from violating the Law, so it is argued, such consumers would do their shopping during the week, and at least some of them would do so at the Appellants' businesses. According to the Appellants, the Respondents' conduct amounts to "unfair competition" which compromises the Appellants' right to freedom of occupation. As such, the Municipality has a duty to take action against the Respondents, in accordance with the Business Licensing Law. The Appellants further argued that closing the Respondents' businesses is necessary in light of the social and religious objectives of the day of rest, and since the operation of the Respondents' businesses on the Sabbath constitutes a nuisance and adversely affects the residents' quality of life.

 

5. The Municipality, on its part, argued that it enforces the observance of the day of rest in accordance with what is determined in the Law and in accordance with its administrative discretion. According to it, it is not permitted to exercise the sanctions prescribed in the Business Licensing Law in order to prevent competition or to preserve the sanctity of the Sabbath, since these are not among the purposes of the Law. As for the By-Law: the Municipality argued that it is indeed acting by virtue thereof, since the By-Law, which prohibits the operation of businesses on the Sabbath, only permits imposition of monetary fines, and such fines were indeed imposed upon the Respondents. According to the Municipality, by virtue of the Municipalities Ordinance, it is vested with authority to approach the Municipal Court and to request to close a business transgressing the provisions of the By-Law, however, it argues, the exercise of such authority is subject to discretion. In the judgment it was even noted that in the case at hand, the Municipality decided not to exercise its authority in accordance with a general policy, which, according thereto, derives from the population's needs and desires. The Respondents, in general, joined the Municipality's arguments.

 

6. During the hearing of the petition, the Administrative Affairs Court instructed the Attorney General to submit its position on the matter at hand. The Attorney General did not appear at the petition hearing however submitted his position in writing. According to that stated in his position, the Municipalities Ordinance authorizes the local authority to arrange the opening and closing of businesses, inter alia, on days of rest, and taking religious tradition reasons into consideration, and grants it the enforcement and inspection authorities in the matter. The authority of local authority to arrange this matter is grounded in the perception that the authority, which represents the local residents, must strike a balance "between the interest of preserving the nature of the Sabbath as a day of rest, which has both national and social characteristics, and making certain economic activity possible." Having said that, the Attorney General emphasized that he attaches importance to the enforcement of the by-laws promulgated by the local authorities "for obvious reasons of maintaining the rule of law, and in light of the public interests of protecting the nature of the Sabbath as a day of rest, in accordance with the characteristics of each area, and taking the composition of the local population into consideration, as prescribed in the By-Law."

 

Finally, the Attorney General stated that the Business Licensing Law is not relevant to the matter, since this law was not intended to be a means of enforcing the By-Law regarding the operation of businesses on the Sabbath and on days of rest.

 

7. In its judgment, the Court addressed two main questions: Are preventing unfair competition and preserving the sanctity of the Sabbath among the objectives of the Business Licensing Law and is the Municipality permitted to close businesses that operate on the Sabbath by virtue of this law; and are there other laws that authorize the Municipality to enforce the closing of the Respondents' businesses on the Sabbath, and if so, does the Municipality's decision not to exercise its authority to request to close the businesses justify the Court's intervention.

 

8. As for the first question, the Court ruled that preventing unfair competition is not included among the purposes of the Business Licensing Law, which are listed in Section 1 thereof, based both on the language of the Law, and in accordance with case law. The Court explained that while freedom of occupation must be taken into consideration in the framework of the Law, only the freedom of occupation of the license applicant should be examined, "and the Municipality does not have the authority to consider the impact of giving a certain person the possibility of opening his business, on the level of competition in the market, or how it shall impact another person's income" (paragraph 16 of the judgment). According to the Court, such considerations could empty of content the Business Licensing Law, which was meant to ensure that businesses that comply with the purposes of the Law shall be entitled to a business license. The Court further ruled that the "inconvenience" caused to the Appellants' businesses does not constitute an infringement of their freedom of occupation, since they are all subject to the same Municipality policy. Therefore, the Court ruled that the Appellants were not discriminated against and their freedom of occupation was not infringed. As for preserving the sanctity of the Sabbath, the Court ruled that this is a clear religious purpose, which is a matter of public controversy, and in any event is not listed among the purposes of the Business Licensing Law. As such, it is not possible to take steps against businesses that are open on the Sabbath due to them "violating the sanctity of the Sabbath" and offending religious values. The Court clarified that the sanctions prescribed in the Law cannot be used other than for the purposes which the Law was meant to realize, and therefore, the Municipality should not be forced to take steps against the Respondents under the Business Licensing Law.

 

9. The Court also further rejected the Appellants' argument that the activity of Respondents' businesses on the Sabbath constitutes a nuisance. Firstly, it was determined that it is problematic that the Appellants, who are grocery stores owners, and whose first priority is their personal economic interest, present themselves as those who are also representing the interests of the city's residents. The Court further ruled that the Appellants adduced no evidence  that the opening of the Respondents' businesses constitutes a nuisance. As such, it ruled, the presumption of proper administration  applies to the Municipality.

 

10. As stated, the second question the Court dealt with was whether it is appropriate to force the Municipality to take steps against the Respondents by virtue of provisions of other laws. The Court stated that the only and direct sanction that is possible due to the violation of the By-Law is the imposition of a monetary fine, by virtue of Section 265 of the Municipalities Ordinance. As the Municipality clarified, it indeed exercises this sanction. The Court stated that notwithstanding that according to the Appellants, the fines do not deter and are "mocking the poor", the Municipality is not entitled to take other enforcement actions when the monetary fine was prescribed as the means of enforcement in the case of violation of the By-Law. As such "There is no relevance to the question whether or not the sanction that was taken in the framework of the law is effective" (paragraph 27 of the judgment).

 

11. The other source of authority which the Court discussed is Section 264A of the Municipalities Ordinance. This Section grants the Municipality authority to request that the Municipal Court order owners, managers or operators of a business operating on the Sabbath to refrain from opening it contrary to the By-Law. The Court emphasized that when considering which means of enforcement to apply, the Municipality must strike a balance between the conflicting interests, including: freedom from religion, freedom of conscience, freedom of occupation and the public's needs, on the one hand, and on the other hand the desire to preserve the values of tradition and avoid offending religious feelings. The Court addressed the fact that the Municipality did not file motions to close the Respondents' businesses pursuant to Section 264A, but ruled that even if the authority refrains from using all of the means it has at its disposal for enforcement purposes, this does not suggest that there was a flaw that justifies the Court's intervention, since "as long as the Court is under the impression that the authority is not completely refraining from enforcing the law, and that it is not applying selective enforcement, as a rule, there is no place for judicial intervention" (paragraph 35 of the judgment). The Court ruled that it must take caution not to replace the authority's discretion with its own discretion, also since at hand are matters that are at the heart of public and political controversy. According to the Court, to the extent that the Appellants wish to convince that the balance struck by the Municipality between the State's Jewish character and the fundamental values that anchor individual liberties, should be altered, they should act in the public arena, and convince that their position is superior using democratic means.

 

12. In summary, the Court ruled that it must apply great judicial restraint  when it comes to an enforcement policy in a matter which is at the heart of political and public controversy. The Court determined that the Appellants did not meet the burden lies with  them to demonstrate that the Municipality's policy in enforcing the By-Law is so extremely unreasonable that it justifies judicial intervention. The Court ruled that "in these circumstances, it is presumed that the authority acted lawfully, in light of all of the facts, and its decision not to exercise the authority to file motions to close the businesses – is reasonable and proportional" (paragraph 39 of the judgment; emphasis added – M.N.). Therefore, the Court rejected the Appellants' petition and obligated them to pay the Municipality's expenses in the amount of NIS 75,000.

 

Hence the Appeal before us.

 

The Appellants' Arguments

 

13. The Appellants are claiming against the judgment of the Administrative Affairs Court. According to the Appellants, the Court erred in ruling that it is inappropriate to intervene in the By-Law enforcement policy which the Municipality is applying. They argue that as long as the By-Law remains in effect, the principle of the rule of law precludes the possibility of accepting a situation in which the Municipality does not enforce the closure of businesses that knowingly and publicly violate the By-Law. The Appellants argue that the Municipality, by contenting itself with imposing fines of only NIS 660 (the amount of the fine was raised after the petition was filed and is currently NIS 730) each and every Sabbath, and particularly when it comes to only one fine each Sabbath for each business, is making a mockery of the Law and encouraging its violation. They further argue that the Municipality's enforcement failures cause them heavy financial damage; compromise the fundamental principle of the rule of law and the principle of equality in enforcement; and prejudice constitutional basic rights, including the right to property, the freedom of occupation and equality. Since large businesses, whose daily profits exceed the amount of the fine, can allow themselves to open their doors on the day of rest despite the fine and in doing so, increase their profits, while small businesses, such as the Respondents (sic.), cannot do so, and therefore are injured.

 

14. According to the Appellants, the lower court erred when it primarily dealt with the Business Licensing Law, since, according to them, the main issue is the Municipality's duty to exercise all of the legal means at its disposal. Additionally, according to them, the Court also erred when it ruled that the Business Licensing Law does not authorize the Municipality to take action in the case at hand. The Appellants believe that in the business licenses that were issued to the Respondents by virtue of the Business Licensing Law (hereinafter: the "Business Licenses"), it is explicitly prescribed that they are not valid during the Sabbath and Israel holidays. Therefore, they argue, the activity of the Respondents' businesses is carried out on the Sabbaths without them possessing a valid business license, and therefore the sanctions prescribed in the Business Licensing Law regarding unlicensed businesses should be imposed thereupon. The Appellants further argue against the Court's ruling that the Municipality is not authorized to enforce the observance of the day of rest by means of the Business Licensing Law since such enforcement is not part of the Law's purposes. According to them, in this matter, it is necessary to distinguish between refusal to issue a license by virtue of the Business Licensing Law and enforcing such Law. While the first can be done only on grounds related to the purposes of the Law, the principle of the rule of law warrants that there be no similar distinction with respect to the enforcement of the Law – any violation of the Law, regardless of the purpose of the violation or the motivations of those requesting to enforce, must be enforced.

 

15. The Appellants also claim against the lower court's  ruling that their freedom of occupation was not infringed. According to them, the meaning of the Court's ruling that "[the Appellants] and the Respondents are subject to the same Municipality policy and therefore [the Appellants] are not discriminated against, and their freedom of occupation is not infringed" (paragraph 17 of the judgment), is that the Appellants are not discriminated against and that their freedom of occupation was not infringed because they, too, could choose to violate the Law and be fined. According to them, the harm caused to the business owners who obey the rest laws due to the violation thereof by the Respondents, is in and of itself the infringement of their freedom of occupation. The Appellants further argue that as a result of the enforcement actions – i.e. imposition of fines – which the Municipality initiated, there is discrimination between the strong and the weak. The Appellants also argue against the Court's ruling that the Business Licensing Law should not be exercised because "preservation of the sanctity of the Sabbath" is an unambiguous religious purpose, and emphasize that they did not argue a religious purpose at all.

 

16. According to the Appellants, the essence of the judgment  lies in the lower court's  ruling that it is inappropriate to intervene in matters which are at the heart of public and political controversy. However, according to them, the controversy itself is not at all relevant to the determination in the matter at hand. The Appellants argue that the principle of obeying the law is not a matter of public controversy. The Municipality cannot absolve itself from enforcing a law only because the matter the law governs is a matter of public controversy. To the extent that the Municipality is not interested in enforcing the By-Law, so the Appellants say, it must act to change it. The Appellants address the great importance of the day of rest, as is expressed also in the rulings of this Court, not only in accordance with the values of the State of Israel as a Jewish state, but also in light of universal and social values.

 

17. In light of that stated, the Respondents (sic.) argue that the lower court  erred in its decision not to intervene in the Municipality's conduct. They emphasize that there is no dispute that the Respondents' activity constitutes a violation of law. As such, according to them, the Court's ruling that it is inappropriate to intervene in the Municipality's conduct as long as it doesn't completely refrain from enforcing the law, without considering whether the enforcement actions indeed achieve the purpose for which they were intended, is unreasonable and – so they argue – contradicts case law which provides that the Court must examine the enforcement actions.

 

18. Finally, the Appellants are claiming against the NIS 75,000 expenses the Court imposed upon them. They argue that these are exceptionally high expenses which have no justification when the Appellants pointed to an undisputed violation of a law, which is related to important public matters. The Appellants further argue that the Court ignored the fact that the Appellants are people with limited means, and that they waited more than 4 years for a judgment in their petition.

 

The Respondents' Arguments

 

19. The Municipality agrees with the lower court's  judgment. It argues that the dispute lies in the question what law should be enforced and consequently, what are the means of enforcement the Municipality can apply. It argues that the law which is to be enforced is the By-Law, and according to it, it indeed enforces this law. In this context, the Municipality argues that "there is no dispute that the [Appellants'] petition was meant to lead to a change in the balance the Respondent strikes, by means of the By-Law and the enforcement thereof, between all the relevant interests to permit the opening of stores on days of rest, the social aspects of a uniform weekly day of rest, as well as those that reflect the Jewish and democratic nature of the State, and as well as those that reflect the right of an individual to freedom of occupation" (paragraph 12A of the Municipality's summations).

 

The Municipality is further of the opinion that contrary to the Appellants' claim, the Court did not determine that it is prevented from applying judicial review, but rather examined the Municipality's actions in accordance with the criteria of administrative law, and found it to be inappropriate to intervene in the enforcement policy the Municipality applies. With respect to the Business Licensing Law, the Municipality argues that there is no basis to the Appellants' argument that the Respondents' business licenses are invalid on the day of rest, and therefore, the Court justly ruled that it is inappropriate to apply the means of enforcement prescribed in that law. The Municipality emphasizes that it is not possible to apply the means of enforcement prescribed in one law due to the violation of another statute, which does not grant the authority to apply such means of enforcement. As for the expenses imposed upon the Appellants, the Municipality argues that the expenses amount was ruled following an extended  proceeding and that the Appellants did not point to a public interest which justifies exempting them from their obligation to pay expenses.

 

20. Respondent 2 adds that the Appellants are ignoring the nature of the city of Tel Aviv-Jaffa and its residents' needs. It argues that the proper nature of the day of rest is a matter of controversy and there is no justification for accepting the Appellants' position rather than the position that there should be businesses open on the Sabbath. This is particularly so in the city of Tel Aviv-Jaffa, on whose diverse nature, Respondent 2 had discussed at length. According to Respondent 2, "the burden of 'shutting down' the city of Tel Aviv on week-ends is a very heavy burden, which should certainly not be made compulsory for unfounded commercial reasons which have not at all been proven" (paragraph 10 of Respondent 2's summations). Respondent 2 also argues that the Appellants wish to compromise the basic right of each and every resident in the city to shape the content of his or her day of rest in accordance with his or her desire and taste. The Respondent argues that the legislator wished to grant the local authorities complete authorities and full discretion to determine the nature of the day of rest. Therefore, according to Respondent 2, "intervening in the broad discretion given to the Municipality and the public considerations which the Municipality considers when striking such a balance, is not within the scope of the judicial review of the 'administrative action', a fortiori when at hand […] is a matter which was defined by the initiators of the law as 'the serious problem of the dispute between secular and religious" (paragraph 17 of Respondent 2's summations).

 

21. Respondents 3-6 argue that it is inappropriate to grant, as a relief, a general declaration pursuant to which the Municipality must enforce the law. To the point of the matter, in addition to the arguments that the other Respondents claimed, Respondents 3-6 emphasize that the Municipality's enforcement policy is to exercise administrative authority, and that there is no justification to intervene in the discretion exercised as long as the Municipality did not completely absolve itself from the responsibility of the enforcement of the law. In this context, Respondents 3-6 argue that the uniqueness of the local authority – as an entity that is closely familiar with the residents' needs and preferences and as a representative democratic entity which is meant to reflect the desires of the city's residents – justifies the broad discretion vested in the local authorities. Respondents 3-6 also claim against the Municipality's policy to impose fines on businesses that are open on the Sabbath, which they argue causes them financial damage, and they argue that "the Municipality should be more attentive to various needs and preferences in the city in which a population that wishes to shop on the Sabbath resides" (paragraph 13 of Respondents 3-6's summations).

 

According to Respondents 3-6, the Municipality is not authorized to ask the Municipal Court for an order to close a business by virtue of Section 264A of the Municipalities Ordinance, since this section authorizes the Municipality to request a closing order when at hand is a business that violates a by-law that was promulgated pursuant to Section 249(21) of the Ordinance – which provides that the Municipality is permitted to consider "religious tradition reasons". According to the Respondents, it does not appear that the Municipality promulgated the By-Law pursuant to this section, but rather due to the social reasons prescribed in Section 249(20) of the Ordinance. This conclusion is reinforced, so they argue, by the fact that the By-Law was legislated many years before Section 249(21) was added to the Municipalities Ordinance. Respondents 3-6 also object to the Appellants' argument regarding the Business Licensing Law, pursuant to which the purposes of the Law relate only to the issuing of licenses and not to means of enforcement, and also argue that the By-Law was not intended to protect fair competition but rather to realize a social and religious purpose.

 

22. The Attorney General also did not appear at the hearing in the Appeal before this Court and resubmitted his position in writing, as was submitted to the lower court, and as specified above.

 

The Normative Framework

 

23. The main question which needs to be ruled upon in the Appeal before us, is whether the Municipality is to be forced to exercise means of enforcement which it has the authority to exercise, and which until now it refrained from exercising. Before I turn to address this question, I shall briefly explain the various statutory provisions which were raised in the framework of this proceeding and the enforcement authorities which the Municipality possesses to enforce them.

 

(a)Business Licensing Law

 

24. The first source of authority upon which the Appellants wish to rely, is, as mentioned, the Business Licensing Law. The purposes of this Law are prescribed in Section 1 of the Law, which reads:

 

1. (a) The Minister of Interior may, by orders, prescribe and define businesses that require licensing, in order to ensure all or some of the following purposes therein:

 

(1)     Proper environmental quality and prevention of hazards and nuisances;

 

(2)     Prevention of danger to public safety and protection against robbery and breaking in;

 

(3)     Safety of persons at or in the vicinity of the place of business;

 

(4)     Prevention of danger of livestock diseases and prevention of pollution of water sources with pesticides, fertilizers or pharmaceuticals;

 

(5)     Public health, including proper sanitary conditions;

 

(6)     Upholding the enactments related to planning and building;

 

(7)     Upholding the enactments related to firefighting."

 

25. Section 14 of the Business Licensing Law deals with businesses that are operated not in accordance with a license and it prescribes the penalties for such actions. Section 20 of the Law authorizes position holders to order a temporary break of business due to infractions of Section 14.

 

(b)The Municipalities Ordinance and the By-Law

 

26. Section 249 of the Municipalities Ordinance deals with a municipality's authorities. Sub-Section (20) therein provides:

 

"249. A municipality's authorities are:

 

[…]

      

(20) To arrange the opening and closing of stores and workshops, restaurants, coffee shops, teashops, beverage shops, cafeterias, canteens and other such institutions […] and to supervise the opening and closing thereof, and to determine – without derogating from the generality of the authority – opening and closing hours on a certain day; provided that the validity of this paragraph shall be subject to any exemption instructed in an order by the Minister (emphases added – M.N.)

 

27. Section 265 of the Ordinance provides:

 

"265. (a) The Minister, with the Minister of Justice's consent, may, by an order published in the official gazette (Reshumot), notify that an offence of a certain provision of a municipal by-law is an offence punishable by a fine, in general, or at prescribed terms or restrictions.

 

2. The Minister shall prescribe in an order published in the official gazette (Reshumot) –

 

1. The rate of the fine for each offence punishable by a fine, provided it shall not exceed NIS 730, and he may prescribe different rates for the offence, considering the circumstances in which it was committed.

 

[…]" (emphases added – M.N.).

 

28. In 1990, following a doubt that was raised regarding the authority of local authorities to promulgate provisions in by-laws regarding prohibiting opening businesses on the Sabbath and on Israel holidays, the Amendment of the Municipalities Ordinance (Number 40) Law, 5751-1990 (hereinafter: the "Authorization Law") was legislated. This law was meant to vest the local authorities with the said authority and to ensure the validity of the existing by-laws (see: Explanatory Notes to the Municipalities(Prohibition to Open Businesses and the Closure thereof on Days of Rest) Bill, 5748-1988, Bills 134 (hereinafter: the "Explanatory Notes to the Authorization Bill") (this is the original name of the Authorization Bill, see Divrei Haknesset (Knesset Proceedings) 12(3), 1191 (5751));  HCJ 5073/91 Israeli Theatres Ltd. v. The Netanya Municipality, IsrSC 47(3) 193, 197-199 (1993) (hereinafter: the "Israel Theatres Case")). To this end, the Authorization Law added sub-section (21) to Section 249 of the Municipalities Ordinance:

 

"(21) A municipality may exercise its authority pursuant to paragraph (20) in the area of its jurisdiction or in any part thereof with respect to the Day of Rest, considering religious tradition reasons, and with respect to the 9^th of Av; "Days of Rest" – as specified in Section 18A of the Law and Administration Ordinance, 5708-1948. For this purpose, the Sabbath and Israel holidays – from the entrance of the Sabbath or the holiday until the end thereof; the "9^th of Av" – as defined in the Prohibition to Open Entertainment Places on the 9^th of Av (Special Authorization) Law, 5758-1997" (emphases added – M.N.)

 

29. The Authorization Law also added to the Municipalities Ordinance Section 264A, which prescribes that the Municipality may approach the Municipal Court in order to enforce a by-law that was promulgated pursuant to Section 249(21) (see also: the Israel Theatres Case, on pages 199-200):

 

"264A. (a) If a municipality promulgated a by-law pursuant to Section 249(21) and a business opened contrary to the provisions of the by-law, the court which is authorized to address the offence under such by-law may order the owners, managers or operators of the said business, to refrain from opening the business on the days of rest contrary to the provisions of the by-law (hereinafter: a Prohibition to Open Order), if it was convinced that the business opened contrary to the provisions of the by-law; a motion to grant such an order shall be filed by whomever is authorized to file claims due to an offence under the said by-law, along with an affidavit to verify the facts upon which the motion is based, and the Court may issue the order ex parte, with only the petitioner, if it found that there is justification to do so in the circumstances at hand.

 

2. […]" (emphases added – M.N.)

 

30. The Tel Aviv-Jaffa municipality promulgated the By-Law regarding the opening and closing of stores, pursuant to its authorities under the Municipalities Ordinance, in as far back as 1980. Section 2 of the By-Law provides that businesses shall not be opened on the day of rest:

 

"2. (a) Subject to that stated in sub-Sections (c), (d) and (e), the owner of a store or coffee shop shall not open his business and shall not keep it open on the Sabbath and Israel holidays, except with a special council permit as stated in sub-section (b).

 

2. The council may grant a special permit, if the owner proved that he is not Jewish and that he closes his business on all weekly days of rest of his confessional group; such a permit can be given at such terms as the council shall deem fit.

 

3. (1) The owner of a coffee shop, other than a bar and a business that sells ice cream, may open it on the Sabbath and Israel holidays, except for the Day of Atonement (Yom Kippur) and serve meals to his customers, within the building in which the business is located, during the following hours:

 

1. On the eves of Sabbaths and Israel holidays - until 10:00 pm.

 

2. On the Sabbath and Israel holidays – between 10:00 am and 3:00 pm and from April 1 until October 31 also from 6:00 pm until sunset.

 

2. A pharmacy shall be open to sell medication on the Sabbath and Israel holidays but only in accordance with a roster which shall be duly prescribed.

 

4. On the Sabbath and Israel holidays, except the Day of Atonement (Yom Kippur), a person shall not open and shall not allow anyone acting on its behalf to open a place of public entertainment, other than for cultural and educational activities.

 

5.  On the Day of Atonement (Yom Kippur) a person shall not open, and shall not allow anyone on its behalf to open, a store or a coffee shop" (emphases added - M.N.)

 

31. Additionally, pursuant to that stated in Section 265 of the Municipalities Ordinance, the Municipalities (Offences Punishable by a Fine) Order, 5731-1971 (hereinafter: the "Municipalities Order") had been issued in the past, from which it emerges that opening a business on the Sabbath in the city of Tel Aviv-Jaffa, is an offence punishable by a fine:

 

"1. Any infraction of a provision in any of the sections specified in Column B of the by-laws specified in Column A of the First Schedule is an offence punishable by a fine.

 

2. (a) The rate of the fine for each offence as stated in Section 1 shall be as per the level of the fine that was prescribed alongside it in the First Schedule in Column C.

 

(b) In this Order -

 

 

Level of Fine	In New Israeli Shekels
A	730
B	475
C	320
D	245
E	165
F	105
G	85

           

[…]

First Schedule

[…]

Part B – Tel Aviv – Jaffa

 

Column A By-Laws		Column B Sections	Column C Level of Fine
[…]
10. Tel Aviv–Jaffa (Opening and Closing of Stores) By-Law, 5740-1980		2(a), (d), (e), 7(a)-(c)	A
		3	B
		7(d)	C

 

An offence under Section 2(a) of the By-Law, which prohibits opening businesses on the Sabbath, is ranked as a Level A offence punishable by a fine, the rate of which is currently NIS 730. This rate was prescribed in the Municipalities (Offences Punishable by Fine) (Amendment no. 6) Order, 5771-2011. The rate of the fine at this level, as was before this amendment and at the time of the filing of the petition which is the subject of this Appeal, was NIS 660, in accordance with what was prescribed in the Municipalities (Offences Punishable by Fine) (Amendment no. 2) Order, 5764-2004.

 

Discussion and Ruling

 

A.The Business Licensing Law

 

32. In the Administrative Affairs Court the Municipality was not requested to file a Statement of Response and the petition was denied. During the hearing we held in the Appeal, on March 4, 2013, the Municipality's attorney agreed to view the proceeding as though a statement of response had been filed in the first instance court. I will explain the importance of this matter further on.

 

33. With regard to the Business Licensing Law, my opinion is as the opinion of the lower court and the Attorney General, that it is inappropriate, in this matter, to discuss the exercise of authorities by virtue of this Law, even without addressing the question of which values the Business Licensing Law protects and without discussing the question of the required linkage – if any – between the purposes of the Law and the motivations of those demanding that the Law be enforced. The Appellants' position that the Respondents are violating the Business Licensing Law relies on their argument that "in all of the business licenses that the Municipality grants, it is explicitly and clearly written" that the license is not valid on days of rest. However, the Appellants have not proven this argument of theirs. The "business license" which the Appellants attached (as Annex IX of the petition which they filed to the Administrative Affairs Court) in support of their said argument, is not – as they imply – a license by virtue of the Business License Law, but rather a "permit to open a business" which was issued under the By-Law. The Appellants did not attach any business license of Respondents 2-6 by virtue of the Business Licensing Law and did not request that such license be furnished.

 

In the hearing held before us, the Appellants' attorney referred to the permit to open a business which the Appellants filed to the Court and argued that "The Municipality stipulated and obligated the permit-holder to act in accordance with the terms of the license. Meaning, this is very strong evidence that the stipulation also appears in the license. I shall mention that no one denied that. We are assuming that such stipulation exists". Additionally, when the Appellants' attorney was asked if there is a stipulation requiring the holder of the license to act in accordance with the By-Law in the Respondents' business licenses, he responded that "None of the Respondents denied this. None denied the fact that their business licenses are inherently subject to the By-Law, since otherwise this would also be an omission on the part of the Municipality […] if there is no such stipulation, the Respondents should present a business license and we shall check." However, when the Municipality's attorney was explicitly asked if there is a stipulation regarding compliance with the By-Laws in the business licenses under the Business Licensing Law, her unequivocal answer was that such a stipulation is not included in the license. Therefore, I accept the conclusion that the Appellants did not succeed in proving that the Business Licensing Law is related to the matter before us, and no infraction of the provisions of such law was proven. As such, I do not see any need to further address these matters.

 

B.The By-Law

 

34. At the outset, I request to clarify how and at what stage Section 264A of the Municipalities Ordinance was mentioned, which in my opinion is the crux of the discussion before us.

 

First I shall state that the section was not explicitly mentioned in the Appellants' early applications to the Municipality before filing the administrative petition. The section was also not explicitly mentioned in the administrative petition that the Appellants filed. However, following an oral motion raised by the attorney of one of the petitioners in the hearing before the lower court on October 21, 2009, to amend the petition by way of adding Section 264A of the Municipalities Ordinance, on October 28, 2009 – after the parties' summations regarding in limine arguments were filed, but before the petition was discussed on its merits – the Appellants filed a "Motion to Amend and/or Clarify an Administrative Petition". In the motion, the Appellants requested to add to the petition that the Respondents' activity is illegal also "under the Municipalities Ordinance, including Sections 249(20), (21); 264, 265", and, to list, among the means which the legislator granted the enforcement officials: "a motion to the court pursuant to Section 264A of the Municipalities Ordinance and in accordance with the Tel Aviv-Jaffa (Opening and Closing of Stores) By-Law, 5740-1980, to exercise the authorities granted thereto". The Appellants emphasized that "such a motion is filed solely for the sake of caution and is intended to clarify the legal sources upon which the petitions are based, particularly in light of the Court's remark during the hearing regarding referencing the relevant legislation."

 

35. In its response to the Appellants' motion to amend, the Municipality's attorney notified that she objects to the amendment of the petition if and to the extent that the purpose of the amendment is to respond to her argument regarding the purposes of the Business Licensing Law and the objectives thereof. Having said that, the Municipality's attorney added:

 

"If and to the extent that the requested amendment does not intend to materially change the petition, but only to specify additional means of enforcement which the Respondent is required by [the Appellants] to apply, within its authorities to determine the arrangements for the opening and closing of businesses on the Sabbath and holidays and to enforce them, then it is unnecessary, also according to [the Appellants], since the [Appellants'] allegations regarding how the Respondent exercises its enforcement authority and their attempt to take the Respondent's given discretion in exercising its enforcement authority away, received a response in Sections 21-22 of the Respondent's response to the petition, and in this matter, it makes no difference which means of enforcement [the Appellants] demand that the Respondent apply" (original emphases – M.N.)

 

36. The other Respondents also objected to the motion to amend. Respondent 3 (which is Respondent 2 in the case at hand) argued that at hand was an addition of a cause of action, since the petition in its existing format requested a remedy of exercising specific enforcement authorities, while respondents 4-5 (which are Respondents 3-4 in the case at hand) argued, similarly to the Municipality, that in any event the amendment shall not make any real difference since the sections of the Law that are mentioned in the petition are presented by way of illustration.

 

37. The Appellants' attorney notified during the hearing that was held on September 21, 2010, that "in light of the responses filed to the motion to amend the petition, from which it emerges that there is no need therefor, I withdraw the motion." Meaning, there was no decision not to relate to Section 264A of the Municipalities Ordinance in the framework of the proceeding before the lower court. Furthermore, all of the parties in fact related to Section 264A in the summations they filed, and thus, the lower court related to this section in its judgment.

 

38. From the material before us, it does not emerge that any discussion whatsoever had been held in the Municipality, until the examination of the petition, regarding the question whether exercising the authority pursuant to Section 264A of the Municipalities Ordinance should be considered. As stated, the Municipality agreed that the hearing shall be deemed as through a statement of response had been submitted in the first instance court, and it did not request a possibility to present additional material to us (or to the first instance court). Therefore, my assumption is that we possess all of the facts necessary to rule.

 

(1)The Enforcement Authorities in the Municipality's Possession

 

39. It is clear that the means of enforcement which are at the Municipality's disposal change according to the law, the upholding of which, it must protect. According to the Respondents, the provision violated is Section 2 of the By-Law and the Municipality is exercising the legal measure of imposing  fines in accordance with its authority by virtue of Section 265 of the Municipalities Ordinance, together with the Municipalities Order, in order to enforce the violations of the By-Law. The lower court  ruled in the matter that "with respect to the By-Law - there is no dispute the only and direct sanction for the violation thereof, is the imposition of a monetary fine" (paragraph 27 of the judgment; emphasis added – M.N.). However, as was explained above, imposing fines under Section 265 of the Municipalities Ordinance is not the only sanction in the Municipality's tool box for handling the violation of Section 2 of the By-Law. As stated, Section 264A of the Municipalities Ordinance prescribes that the Municipality is authorized to file a motion to the Municipal Court to grant a Prohibition to Open Order for a business that is violating a provision of a by-law that was promulgated by virtue of Section 249(21) of the Municipalities Ordinance.

 

40. In this context I shall state that Respondents 3-6's argument, that the Municipality was not permitted to exercise its authority by virtue of Section 264A of the Ordinance, is to be rejected. As stated, their argument is that Section 2 of the By-Law was not promulgated pursuant to Section 249(21) of the Municipalities Ordinance which authorizes the authority to consider considerations of religious tradition, but actually rather pursuant to Section 249(20) of the Ordinance. However, this argument cannot be accepted. The fact that Section 249(21) was legislated later does not lead to the conclusion that Section 2 of the By-Law does not rely thereupon. Section 4 of the Authorization Law – the law which added Sections 249(21) and 264A of the Ordinance – explicitly ratified old by-laws, while determining:

 

"4. A by-law regarding the opening and closing of businesses, which a municipality or municipal council promulgated before the commencement of this law, and which would have been duly effected had this law been in effect at such time, shall be deemed from the commencement of this law, as though it had been promulgated thereunder" (emphases added – M.N.)"

           

Two objectives underlie the day of rest: a social objective and a religious-national objective (see and compare: the Israeli Theatres Case, paragraphs 3 and 14 of President Shamgar's judgment; HCJ 5026/04 Design 22 – Shark Deluxe Furniture Ltd. v. Rosenzweig Zvika, Director of Sabbath Work Permits Department – Inspection Division, Ministry of Labor and Social Affairs, IsrSC 70(1) 38, paragraphs 16-18 and 20 of President Barak's judgment, and paragraph 2 of my statements there (2005); Yitzhak Zamir The Administrative Authority Volume A 62-63, 68 (Second Edition, 2010) (hereinafter: The Administrative Authority A)). As mentioned, the Authorization Law was intended to remove the doubt regarding the authority of local authorities to arrange the prohibition to open businesses on the day of rest and permitted the authorities to consider considerations of religious tradition in this matter (see: the Explanatory Notes to the Authorization Bill). Section 2 of the By-Law embodies both social values and Jewish-religious values and Section 4 of the Authorization Law determines that the By-Law should be deemed as though it had been legislated pursuant thereto and in accordance with the authority vested in the Municipality by virtue of Section 249(21) of the Ordinance (and see: the Israeli Theatres Case, paragraph 3 of President Shamgar's judgment).

 

41. An additional means of enforcement which may be available to the Municipality is Section 254 of the Municipalities Ordinance. This section, which was mentioned by the Attorney General, prescribes a fine in the amount of NIS 3,600 to anyone who transgresses a provision of a by-law and an additional fine of NIS 160 for each day the offence continues. However, Section 254 was not mentioned by the Appellants or the Respondents, and therefore I am not addressing the possibility of exercising this means of enforcement. In any event, the Municipality's conduct is to be examined in light of this legal situation, pursuant to which the Municipality has additional sanctions available, beyond the imposition of fines. As such, the question in which the parties are disputed is – given that the Municipality has additional enforcement authorities in order to enforce the By-Law – was the Municipality obligated to exercise them?

 

(2)The Discretion vested in an Administrative Authority in Determining an Enforcement Policy

 

42. Is it appropriate to intervene in the Municipality's "decision" to enforce the By-Law by imposing fines without exercising another sanction? In fact, and as I shall clarify, at hand is not really a "decision". There is no evidence that the question whether to exercise an additional sanction was even considered. It should be noted that the petition before us does not address considerations which the Municipality must consider when promulgating a by-law. This distinguishes the case before us from the matter addressed by this Court in HCJ 953/01 Solodkin v. The Beit Shemesh Municipality IsrSC 58(5) 595 (2004) (hereinafter: the Solodkin Case), which addressed the scope of the local authority's discretion when promulgating the by-law itself. Our matter is not the content of the by-law but rather the manner of the enforcement (or lack of enforcement) thereof.

 

43. The lower court explained that the local authority has broad discretion, specifically in all that relates to determining enforcement policy (see: HCJ 551/99 Shekem Ltd. v.  Director of Customs and VAT), IsrSC 54(1) 112, 125-165 (2000) (hereinafter: the "Shekem Case"), while stressing that it is important the Court not replace the authority's discretion with its own (ibid, paragraph 9 of Justice Zamir's judgment).

 

44. Regarding the matter of the judicial review of an administrative authority's enforcement policy, it was ruled that "indeed, in order for the Court to intervene in the level of enforcement of one law or another, the competent authorities must completely absolve themselves from their duty to enforce the law […] or refrain from fulfilling their duty in an unreasonable manner" (HCJ 6579/99 Filber v. The Government of Israel (November 1, 1999); and see also: the Shekem Case, paragraph 8; HCJ 10202/01 The Organization of Agents and Gas Station Owners in Israel v. The Attorney General IsrSC 57(5) 713, 718 (2003); The Administrative Authority A, on page 275, footnote 114). However, also when dealing with enforcement policy, the authority's discretion exists in light of the law and in light of the need to enforce it (see: HCJ 1027/04 The Independent Cities Forum v. Israel Land Council, paragraph 51 of Judge Arbel's judgment (June 9, 2011) (hereinafter: the Independent Cities Forum Case)). The authority has a duty to uphold the law and insist on its being upheld by others. As Judge Zamir said in the Shekem Case (on page 125): "Indeed, the enforcement of the law, any law, is a fundamental basis of the rule of law […] obviously that this duty [to enforce the law – M.N.] is imposed upon the competent authority. (See also: The Administrative Authority A, on pages 76, 83-84). To the extent that the administrative authority's position is that it is no longer appropriate to enforce the law for which it is responsible, it cannot absolve itself from the duty to enforce, but it rather has the option to act to change the law – and a fortiori when, as in the case before us, at hand is a by-law. However, as long as the law has not been changed, the authority must act in accordance with the legal situation actually in effect (see: the Independent Cities Forum Case, paragraph 51 of Judge Arbel's judgment; Daphne Barak-Erez Administrative Law, Volume A, Section 4.5 and the references there (2010) (hereinafter: Administrative Law A))

 

There are possible exceptions to the authority's duty to enforce the law, such as cases in which the law is anachronistic and does not accord with the existing social positions (The Attorney General's guideline not to enforce the prohibition (before it was cancelled) of homosexual intercourse between consenting adults and the prohibitions against abortions and attempted suicide, can, for example, be mentioned (and see: CrimA596/73 Machaid v. The State of Israel, IsrSC 28(1) 774, 774-775 (1974); Michal Tamir Selective Enforcement 31-32 (2008) (hereinafter: Selective Enforcement); Ruth Gavison Administrative Discretion in Enforcing the Law 61-62 (1991); Dalia Even-Lahav "The Executive Authority's Custom not to Enforce Law" Mishpat U’Mimshal (Law and Government) B 477, 486-493 and particularly footnote 50 (5755))). Such an exception does not exist in the case before us. The Municipality is not arguing that it is inappropriate to enforce the By-Law due to the nature of the city of Tel Aviv-Jaffa. It argues that it is doing so, and is imposing fines upon anyone who opens businesses contrary to the By-Law. The Respondents are the ones arguing that due to the nature of the city, the Municipality should not be forced to enforce.

 

45. From the authority's duty to ensure the upholding of the law it follows that the authority's range of reasonable discretion at the enforcement stage – as broad as it may be – is more limited that the range of discretion it had when promulgating the By-Law. After promulgating the By-Law, the authority must exercise its discretion in light of the By-Law and the objectives thereof (see: the Solodkin Case, paragraph 23; The Administrative Authority A, on pages 133 and 136). As a rule, the administrative authority must enforce the By-Law it promulgated and it no longer has broad discretion regarding the question whether to enforce it.

 

46. The purpose of exercising an enforcement policy is, naturally, to bring about the actual enforcement of the law. Exercising means of enforcement which are not effective does not realize this objective. Lack of effective enforcement of the law means a severe blow to the rule of law (see: HCJ 5377/09 Regavim v. The Minister of Defense, paragraph 7 (August 10, 2011) (hereinafter: the Regavim 1 Case); HCJ 8806/10 Regavim v. The Prime Minister, paragraph 7 (September 4, 2011) (hereinafter: the Regavim 2 Case)). It being noted that it is hard to reach a level of total enforcement. It is not always possible to reach total enforcement of the law. There is also a question of resources (see HCJ 6396/96 Zakin v. The Mayor of Beer Sheva, IsrSC 53(3) 289, 304-305 (1999); the Shekem Case, paragraph 8; HCJ 6243/08 The Preservation of the National Lands Movement v. The Minister of Defense, paragraph 23 (December 2, 2010)), and it is even doubtful whether full enforcement is always desirable (see: Selective Enforcement, on pages 42, 48-49). This is one of the reasons for the caution the Court applies when exercising judicial review on the administrative authority's priorities in enforcing a law (see: the Shekem Case, paragraph 8). When determining an enforcement policy, the authority must strike a balance between the various legitimate interests related to the matter and it is certainly possible that in light of these considerations it will not be possible or proper to apply an enforcement policy which shall reach total or almost total enforcement. However, as stated, when applying an enforcement policy, the authority must strive to promote the law's objectives and to enforce it: "Determining priorities does not exempt the authority from enforcing the law and from applying ongoing self-examination" (emphases added- M.N.) (The Regavim 2 Case, paragraph 7; and see also: The Regavim 1 Case, paragraph 9: The Administrative Authority A, on page 136).

 

47. Other than the duty to enforce, administrative law has prescribed an additional review mechanism to make sure that the principles outlined in the law and the authorities vested in the administrative authority shall not become a dead letter - the recognition of the existence of the authority's duty to exercise its discretion (see: the Regavim 2 Case, paragraph 7; Administrative Law A, in Section 6.1; Yitzhak Zamir The Administrative Authority Volume B 1079-1080, 1087-1088 (Second Edition, 2010) (hereinafter: The Administrative Authority B)). "An authority which possesses authority to consider and decide, has been handed not only a right to exercise the authority but also the duty to consider the exercise thereof and to exercise it when that is justified" (HCJ 3872/93 Mitrael Ltd. v. The Prime Minister and The Minister of Religions, IsrSC 47(5) 485, 496 (1993); and see also: The Administrative Authority B, on page 1079). Case law also provides that the granting of administrative authority to an authority is accompanied with an ongoing duty to examine the need to exercise it, also when at hand is discretionary authority:

 

"[…] Even when we say that the term "may" means granting discretion – and this is indeed what is said – the holder of the discretion is still not allowed, according to case law and law, to not consider at all if a certain person in a certain case should be granted his wish. Discretion – as a rule – is accompanied by a duty, and that duty is that the entity possessing the authority must address the matter before it and consider it. Against such duty, exists the right of the individual that the entity that possesses authority actually consider the matter. See, for example: HCJ 297/82 Berger v. The Minister of Interior [12], on page 35 (Justice Barak), and on pages 45, 46-48 (President Shamgar); Y. Zamir The Administrative Authority (Volume B) [23], on pages 700-702. After all, we are also dealing with the relationship between rights and obligations that applies in a system entailing discretion in financial outlays.

 

[…]

 

As for the actual application of the authority, we knew that in certain circumstances and given certain conditions, the entity that possesses authority must apply its authority, otherwise this would frustrate the purpose of the law. This is the case wherever the law grants discretionary authority" (HCJ 2344/98 Maccabi Health Services v. The Minister of Finance, IsrSC 54(5) 729, 758 (2000)).

 

And as my colleague Justice Rubenstein has ruled regarding exercising authority:

 

"Case law prescribes that the granting of administrative authority is accompanied with the ongoing duty to examine the need to exercise it, even when at hand is discretionary authority (HCJ 297/82 Berger v. The Minister of Interior, IsrSC 37(3) 29, according to which, once authority has been granted to an authority, it is not be left unused (Deputy President - as his title was at the time - Shamgar, on page 46); HCJ 2344/98 Maccabi Health Services v. The Minister of Finance, IsrSC 54(5) 729, 758))." HCJ 10440/08 Besserglick v. The Consumer Protection Appointee at the Ministry of Trade and Industry, paragraph 14 of Justice Rubenstein's judgment (February 15, 2009) (hereinafter: the Besserglick Case); and see also Administrative Law A, Section 6.6.

 

48. When the means applied by the administrative authority do not bear fruit, refraining from applying additional means could, in certain circumstances, lead to the conclusion that in fact the authority is refraining from fulfilling its duty to exercise discretion or that the discretion it exercised is unreasonable. In any event, when the existing enforcement policy does not lead to the desired result, the administrative authority must, at the very least, consider the exercise of additional means of enforcement that are in its authority. Refraining from considering additional means of enforcement in such circumstances could amount to a flaw in the authority's conduct which justifies the Court's intervention.

 

From the General to the Specific

 

49. Section 2(a) of the By-Law provides a categorical determination. The language of the section is that "Subject to that stated in sub-Sections (c), (d) and (e) the owner of a store or a coffee shop shall not open its business nor keep it open on the Sabbath and Israel holidays other than with a special permit of the council, as stated in sub-Section (b)" (emphases added M.N.). In the case at hand, there is no doubt that the Respondents are violating the By-Law. As such, in principle, the Municipality must act so that these businesses shall be closed on the day of rest. This matter does not stem from a "religious" or "secular" perspective. It stems from the perspective that the law, including the By-Law, must be upheld.

 

50. The Municipality indeed applies means of enforcement and the Respondents are fined each and every week. However, it appears that it is evident that in fact, the Municipality is not, to the proper extent, realizing - through the means of enforcement it chose – the objective of the law. As achieving the objective of the By-Law, in light of the social and religious values of the day of rest, would mean that the businesses would indeed be closed on the day of rest and not that businesses that wish to open their doors on the Sabbath can do so provided they are willing to pay the fine involved. While in fact, despite the fines the Municipality is imposing, the doors of the Respondents' businesses remain open each Sabbath. Therefore, in the case before us, the Municipality is not, by means of the existing manner of enforcement, realizing the law. Owners of small businesses, such as the Appellants and their like, indeed do not open their businesses on the day of rest, but the objective of the law is not at all achieved vis-à-vis the businesses that are part of large retails chains, for whom, in light of their economic resilience and their daily profits each Sabbath, it is worth their while to consistently open their doors on the day of rest, notwithstanding the fine they have to pay therefor. It emerges that these businesses, with their many branches spread all across the city, together with additional grocery stores and supermarkets which are open on the day of rest which do not belong to a given chain store, constitute a significant share of the retail activity in the city of Tel Aviv-Jaffa.

 

51. By enforcing only by means of the impositions of fines, the Municipality in fact enables, or at least turns a blind eye from, the continuous violation of the By-Law by such group. The situation which results from this enforcement activity is that the Respondents gain profits from an additional business day on the weekend, the Municipality's treasury benefits from significant amounts due to the fines it imposes upon the Respondents each week (the fine is paid to the local authority's treasury pursuant to Section 229A of the Criminal Procedure Law [Consolidated Version], 5742-1982), but the rule of law – which requires obeying the provisions of the law – is compromised. As specified above, an enforcement policy which in effect does not achieve the objective of the law is problematic (see: The Administrative Authority A, on page 136). As acting President Zilberg stated in HCJ 295/65 Oppenheimer v. The Minister of Interior and Health, IsrSC 20(1) 309 (1966) (in paragraph 9 of his judgment): "Refraining from exercising and realizing an existing and binding law, is not a policy and cannot be a policy, in any respect whatsoever; it only results in demoralization in the relationship between government and citizen, and is followed by insubordination towards all of the laws of the state" (original emphasis – M.N.). The difficulty is enhanced when it is impossible to ignore the concern that it is convenient for the Municipality – in light of the economic profits it gains from imposing the fines – not to insist upon the observance of the By-Law (see and compare to the words of Justice Cheshin in HCJ 4140/95 Superpharm (Israel) Ltd. v. Director of Customs and VAT, IsrSC 54(1) 49, 103-105 (1999); Administrative Law A, in Section 1.14).

 

52. If the nature of the city of Tel Aviv-Jaffa requires, in the opinion of its leaders who represent the population, not to close businesses such as those of the Respondents, on the Sabbath, the By-Law can be changed through the manner prescribed in the law. However, as long as the By-Law has not been changed, the point of departure is that it is to be upheld. The Attorney General stated that the Municipality is authorized to strike a balance "between the interest of preserving the nature of the Sabbath as a day of rest […] and making certain economic activity possible". However, in my opinion, the appropriate place for striking such a balance is in a Municipality decision whether to promulgate a by-law regarding the activity of businesses on the Sabbath and formulating the arrangements prescribed therein. This is what the Municipality did when it promulgated the By-Law, which includes a prohibition to open on the Sabbath, as well as exceptions to the prohibition. The Municipality chose not to include businesses such as the Respondents' businesses as exceptions to the prohibition.

 

Additionally, prima facie, if the Municipality's position is that there is no longer justification for the By-Law as it currently exists, then the use of fines as the means of enforcement is not the proper response. If the Municipality is of the opinion that, in light of the unique character of the city of Tel Aviv-Jaffa, opening stores on the day of rest should be allowed – there is no justification to obligate the owners of the stores to pay fines to operate businesses on the Sabbath. If, in the Municipality's opinion, there is nothing wrong with the Respondents' actions, what is the justification for them having to pay a fine? If, on the other hand, there is a justification for closing the stores on the day of rest, it is necessary to consider using additional means of enforcement, and first of all, the above mentioned Section 264A, since enforcement only by means of imposing fines is not achieving the purpose of the By-Law.

 

53. I accept the lower court's approach that the Municipality's authority to request a Prohibition to Open Order, under Section 264A of the Municipalities Ordinance, is a discretionary authority. The Municipality is not required to exercise this authority in each and every case of violation of a by-law, however it must consider if and how to exercise the variety of means of enforcement it has in its "toolbox" (see for example: the Shekem Case, paragraph 8; The Administrative Authority B, pages 1087-1088). The lower court ruled that "In order for the Court to intervene in the level of enforcement of one law or another, the competent authorities must completely absolve themselves from their duty to enforce the law, or when the enforcement is selective and deriving from irrelevant considerations" (paragraph 34 of the judgment), and reached the conclusion that in the case before us there is no justification to intervene in the manner in which the Municipality is enforcing the law.

 

54. I cannot agree with the lower court's conclusion. Even if the Court must take caution not to interfere in the balance of considerations struck by the authority, the principle of respecting the authorities and the limited judicial review which the Court exercises cannot exempt the Municipality from the mere duty to exercise its discretion (see: the Regavim 2 Case, in paragraph 7; Administrative Law A, Section 6.1; The Administrative Authority B, pages 1079-1080, 1087-1089). When the Municipality possesses authority to request a Prohibition to Open Order, pursuant to Section 264A of the Municipalities Ordinance, it has the duty to examine from time to time if it is necessary to exercise such authority, as well as additional authorities, to the extent such are in its possession. The continuous nature of this duty has utmost significant when the means of enforcement the Municipality chose to take, do not bear fruit (see: the Besserglick Case, paragraph 14 of Justice Rubenstein's judgment).

 

55. As I mentioned at the outset, the Municipality's attorney agreed to view the proceeding as though a statement of response had been filed. Therefore, the burden to demonstrate that the Municipality considered all of the possible means of enforcement to enforce the By-Law and that it fulfilled its duty to exercise discretion in doing so, imposed on the Municipality. However, the Municipality did not do so. The Municipality did not at all demonstrate that it examined and considered – with an open heart and willful soul - the merits of the need and the possibility of filing a motion for a Prohibition to Open Order or that there was any decision and exercise of discretion in this matter. The Municipality did not even argue that there is a general policy, which derives from actual exercise of discretion, pursuant to which the sanction prescribed in Section 264A of the Ordinance, should not be exercised. As I have clarified, there is no knowledge at all of the adoption of any "decision" not to exercise the authority prescribed in Section 264A. The Municipality did not demonstrate that this matter was considered and what the considerations were. Thus, I did not find in the Municipalities' arguments any basis to the lower court's determination that "[…] the exercise of the authority [to request that the Court grant a Prohibition to Open Order – M.N.] is subject to discretion, which it was decided would not be exercised, in accordance with the general policy which derives from the population's needs and desires" (paragraph 6 of the judgment). From the material before us it emerges that the Municipality chose to impose fines on Respondents 2-6, but it does not emerge that it even considered the possibility of approaching the Municipal Court in their matter and requesting a Prohibition to Open Order. Not considering the possibility of filing a motion for a Prohibition to Open Order nor examining any other option so as to achieve – to a reasonable and proportional degree considering all of the considerations - the proper enforcement of the By-Law, constitute a violation of the Municipality's duty to take action and exercise discretion. In these circumstances, the Municipality violated its duty to exercise discretion from time to time, and in doing so, its conduct was flawed in a manner justifying our intervention, in the sense that we shall obligate the Municipality to consider what it did not consider.

 

Epilogue

 

56. If my opinion shall be heard, the Appeal shall be accepted. The judgment of the first instance shall be cancelled and the matter shall be returned to the Municipality so that it shall exercise its discretion and adopt a decision on the merits of the manner of exercising the authorities vested therein by Section 264A of the Municipalities Ordinance or any authority in addition to its authority to impose fines. The Municipality shall examine its position regarding the enforcement of the By-Law within 60 days from the date the judgment is granted. The decision to be adopted in this matter shall be delivered to the Appellants' attorney and, of course, is subject to additional judicial review.

 

The expenses imposed upon the Appellants in the first instance shall be cancelled. There shall be no order for expenses in our instance.

 

 

President A. Grunis:

 

I Agree.

 

 

Justice E. Rubinstein:

 

1. I join the orderly, methodically arranged judgment of my colleague Deputy President Naor, on each and every element thereof. I wish to add two matters, which I shall list in their reverse order of importance: the conduct of the Municipality as a public entity, and the insult to the Sabbath as a national and religious day of rest for the Jewish people. The combination of the two in the case at hand has produced the contemptible and cheap picture portrayed before us. I shall attempt to view the matter in the context of the objective of the legislation and the nature of the State of Israel as a Jewish and democratic state, and the city of Tel Aviv, the first Hebrew city and the central urban metropolis in our country.

 

2. Before us is a municipal by-law, the Tel Aviv-Jaffa By-Law (Opening and Closing of Stores) 5740-1980, pursuant to which the opening and closing of stores on the days of rest is prohibited. As my colleague wrote (paragraph 50) "… the objective of the By-Law, in light of the social and religious values of the day of rest, in light of the social and religious values of the day of rest, would mean that the businesses would indeed be closed on the day of rest and not that businesses that wish to open their doors on the Sabbath can do so provided they are willing to pay the fine involved."

 

3. The Municipality interprets its duty to enforce the By-Law in a manner which cannot be described as other than completely emptying it of any content (unless we see a public value in NIS 2,640 per month – 660 multiplied by four – which are collected as fines from the supermarket chain stores), and dares to call this enforcement. Indeed, the matter is presented before us in the appeal of small merchants who cannot hire revolving staff as the supermarkets can and are entitled to a day of rest (it should be assumed that generally they work six days and they are not the ones who actually benefit from five working days) and they do as their fathers and forefathers did: they rest on the Sabbath. But at such time their secular customers, who wish to buy on the Sabbath, run to the open supermarket, from which the Municipality collects the "The Sabbath Tax" (heaven forbid) in the form of a weekly fine while the Municipality congratulates itself on the alleged maintenance of the By-Law. For the supermarkets this is a fraction of their income, like a light ripple on the surface of the water, almost a "bad debt" (one must assume and hope that they cannot deduct it as a tax expense to the tax authorities), and the supermarket is relieved, and the Municipality is appeased, and all the while the grocery store's door shall be sealed, and primarily - the Sabbath shall be tainted.

 

4. For the Municipality, a public entity of the highest degree, which is meant to serve all of the residents according to the law, this is a solution which – as is customary at times among us – is a Torah sanctioned "Israbluff", a "pretense" as though all of the spectators were fools. What is the Municipality's opinion regarding the significance of an offence which has infinite recidivism? Should the enforcing authority suffice with a fine and marking a "check" and just continue doing this, or must it seek another way?

 

5. It is clear – as emerges from my colleague's opinion – that in the current situation, the objective of the By-Law is not at achieved in the public arena of Tel Aviv.

 

6. Although I wonder whether it is necessary to elaborate regarding the Sabbath, I will say the following. The Sabbath has two contents, religious and national on the one hand and social on the other (see HCJ 5026/09 Design 22 v. Rosenzweig (2005), in paragraphs 16-17 and 20-21 of President Barak's judgment, and in paragraphs 2-3 of Justice Procaccia's opinion, and in the opinion of Justice (as her title was at the time) Naor). Religiously speaking, it is the fourth commandment of the Ten Commandments, the essence of the universal Jewish constitution, no less, in both of their versions: "Remember the Sabbath day to keep it holy" (Exodus 20, 8) and "Keep the Sabbath day to sanctify it, as the Lord your God commanded you." (Deuteronomy 5, 12). The religious content of the Sabbath emerges from the wording of both of these openings of the fourth commandment, but the Ten Commandments also include the social aspect. As emerges conspicuously from the wording in Deuteronomy (5, 13-15): "Six days may you work, and perform all your labor; and the seventh day is a Sabbath to the Lord your God; you shall perform no labor, neither you, your son, your daughter, your manservant, your maidservant, your ox, your donkey, any of your livestock, nor the stranger who is within your cities, in order that your manservant and your maidservant may rest like you; And you shall remember that you were a slave in the land of Egypt, and that the Lord your God took you out from there with a strong hand and with an outstretched arm; therefore, the Lord, your God, commanded you to observe the Sabbath day." There really is no need to elaborate. The Torah has done so better that I. This is the social content of the Sabbath, rest to all.

 

7. The Sabbath as a day of rest to all is a contribution of the highest degree. Our Sages say about the verse "To know that I, the Lord, make you holy." (Exodus 31,13) that "The Lord told unto Moses: Moses, I have a great gift in my treasure house. It is called Shabbat, and I wish to give it to Israel" (Bavli Sabbath, 10, 2). And as philosopher Hermann Cohen (19^th and 20^th century) said (Sefer Hashabbat– which is filled with sources – edited by Dr. Y.L. Baruch (Tenth Printing, 5723, 151)) "From the change of the wording between the first and second commandments… (between Exodus and Deuteronomy) it is undoubtedly clear that the purpose of the Sabbath is to preserve equality among people, not to notice the difference between their social status" – meaning, the expansion of the Sabbath to the human race. On the Jewish level, the renowned Zionist philosopher, Ahad Ha'am (19^th and 20^th centuries) in his essay "The Sabbath and Zionism" wrote against how assimilators were indifferent to the possibility of the cancellation of the Sabbath. Words that became an idiom: "One can say, without exaggeration, that more than Israel kept the Sabbath, the Sabbath kept them", in that it renewed the spiritual life each week. On the universal human level, philosopher Abraham Joshua Heschel (twentieth century) viewed the Sabbath as "A palace in time, and in the kingdom of time each person shall find his own place" (his book "The Sabbath" E. Even Chen translation, 2003, presented in the Gavison – Medan Covenant website). The Chafetz Chaim, Rabbi Yisrael Meir of Radin, in his book, Shem Olam, speaks of the Sabbath as "the center, from which all of the days of the week suckle… like the heart, from which the vitality continues to all of the organs" (Sefer Hashabbat, edited by Y.L. Baruch, 139). See also Aviad Hacohen "Day of Rest in a Jewish and Democratic State" Parashat Hashavua (A. Hacohen and M. Wigoda Editors, and the references there) Exodus 313-320.

 

8. I will not refrain from saying that there is a legitimate question regarding the character of the Sabbath in Israel. Many ideas and proposals have been raised, inter alia – for example the Gavison – Medan Covenant from 2003, by Prof. Ruth Gavison of the Hebrew University of Jerusalem and Rabbi Yaacov Medan of the Har Etzion Yeshiva in Alon Shvut (see the Gavison – Medan Covenant, Main Points and Principles, by Yoav Artsieli). Regarding the Sabbath, the covenant suggested (third chapter) – inter alia – that government offices, industrial factories, banks and trade institutions would be closed; however restaurants and entertainment places would not be prohibited from operating, keeping in line with certain frameworks. A limited number of small grocery stores (particularly them!), gas stations and pharmacies would not be prohibited from operating. And restaurants, museums and other entertainment places would be open on the Sabbath. Of course, this is not to be taken as gospel, but they wish to strike a balance, and there were and may be others like them. It is clear that between those who observe the Sabbath according to the religious requirements, who wish to see it observed with all of its religious details and specifications, and those who have a secular approach, there is a broad middle ground begging to be filled with content. But, until an agreed destination is reached, we must deal with the law and the By-Law.

 

1. As for the city of Tel Aviv, I am aware of its current image as a "Non-Stop City" with all of the expressions of contemporary culture, and I do not shut my eyes and ears to that. It is also presumed that the "enforcers" of the By-Law on behalf of the Municipality are tuned in to the messages of many of the leaders of the city, and it naturally follows, of a large population in the city, and attempt to reach out to them. However, with all due respect, Tel Aviv is not in another country and it also has communities that are interested in a significant character of the Sabbath and it is bound by the law of the state and by it being a Jewish and democratic state. The balance between both parts of the definition "Jewish" and "democratic" must also be sought in Tel Aviv, but it appears that currently the "democratic" angle is pushing the "Jewish" angle out. As a reminder from the past – without necessarily trying to draw a complete comparison – I shall bring from the words of Tel Aviv's first mayor, Meir Dizengoff, who was not considered "religious" in the sociological sense, at a rally in 1933 regarding public desecration of the Sabbath: "In my opinion, the meeting should not necessarily have been summoned by the Rabbinate, this is not only a question of religion, but a national and public matter. It is forbidden to publicly desecrate the Sabbath. Each and every nation has a tradition of perceptions, faiths, customs, which preserve it. This is the character of a nation, that grants it existence… the city needs a special Jewish signature." (presented in the Sabbath Book (From You To You), Y. Kaplun editor (2010), 410; and in another place Dizengoff reiterated the same words (ibid, from Tel Aviv, by A. Druyanov) "… There is an anticipated risk that our beloved city shall become a merchant and trading city as all of the cities in the east, and there shall be no remnant of the spirit of its founders, whose entire direction was to create a Jewish humanistic cultural center…". Of course, Tel Aviv today is not Tel Aviv of Dizengoff's days, and its world may be more diverse, although even then it was not a "religious" city. However, the State of Israel is a Jewish and democratic state, and the way the Sabbath day is expressed on the city streets, according to the By-Law which is the subject of our discussion, cannot be the imposition of ridiculous fines of NIS 660 per week. It is upsetting that according to the Municipality's position, it is accepted as a given that the realization of the By-Law suffices with "monetary ransom" - Where is the objective and where is the day of rest? As my colleague, the Deputy President, stated, the city council can reexamine the By-Law and if it shall deem fit – it can lawfully change it. In any event, we shall remember that for most people today, Friday is a day off. Would it be unreasonable to concentrate the shopping on Friday, and 'he who is prepared on the eve of the Sabbath shall eat on the Sabbath', and the By-Law will be observed.

 

10. The Municipalities (Prohibition to Open Businesses and the Closure thereof on Days of Rest) Bill, 5748-1988, Bills 5748, 134 – which is known as the Authorization Bill – is based on the doubt that was cast in the Court (in CrimC (Jerusalem) 3471/87 The State of Israel v. Kaplan, IsrDC, 5748 26) regarding the authority of local authorities to promulgate a by-law regarding opening businesses on the Sabbath and Israel holidays; as stated: "The purpose of the proposed law is to remove the said doubt and preserve the status quo in the matter being addressed". In presenting the law for a first reading, the Minister of Religious Affairs Z. Hamer (Divrei Haknesset (The Knesset proceedings) 11^th of Adar 5748 - February 29, 1988, page 2070), stated that the law validates the situation existing prior to the judgment which invalidated a by-law prohibiting opening places of entertainment on the Sabbath due to lack of authority. It was noted that the religious consideration receives its validity within the proposed authorization, but it does not compromise justice and equality, since "This law grants central support, as the judicial authority demanded, to the public and communities anywhere to formulate their lives as per their understanding and belief". It was further said (page 2071), that "Anyone concerned about the Jewish character of the State, about bringing Jews together, and about the character of the Sabbath, should support the law". This was followed by an argument between different parties. Eventually, when the law was presented for second and third readings by MK Uriel Lin (chairperson of the Constitution, Law and Justice Committee, it was noted (Divrei Haknesset (the Knesset proceedings) 30^th of Kislev, 5751 December 17, 1990, page 1192) that the law is presented not as the "Authorization Law" but rather as Amendment no. 40 to the Municipalities Ordinance (applicable also to local councils); and it was said that opening and closing of businesses can also be determined based on reasons of religious tradition (page 1193). We can see that the law intended to make it possible – not obligate – to grant content that also has religious context. The result is the addition of Section 249(21) and Section 264(a) (sic.) to the Municipalities Ordinance, which were presented by my colleague, the Deputy President, in paragraphs 28 and 29, which address the permission to exercise the authority of closing businesses on the days of rest "taking religious tradition reasons into consideration" (Section 249(21)), and the possibility to enforce by order (Section 264(a) (sic.)).

 

11. Indeed, the amendment in and of itself is mainly grounded in the religious aspect; however the said By-Law from 5740-1980, even preceded Amendment no. 40, and the character of the day of rest may be formulated by consent. It is in any event evident that the legislature and the secondary legislature could not have intended a "pretense", meaning that the secondary legislature would legislate a by-law to be printed in the records – while the enforcer would (in essence) pretend to enforce. The By-Law must be viewed and interpreted in light of all of the backgrounds – the religious, national and social, while striking proper balances (see HCJ 5016/96 Chorev v. The Minister of Transportation, IsrSC 51(4) 1; the above mentioned HCJ 5026/04 Design 22 v. Rosenzweig; and HCJ 953/01 Solodkin v. The Beit Shemesh Municipality (2004) for discussion of the challenges of balancing). " Sabbath comes, rest comes" and not " Sabbath comes, mocking comes ".

 

12. In light of all of the above, there is no escaping the result my colleague reached. One should hope that the leaders of the city will succeed in finding an enforcement solution which shall honor the law and the Sabbath, and also be reasonably satisfactory to the fair and rest-supporting residents of Tel Aviv.

 

 

It was decided in accordance with the judgment of Deputy President M. Naor.

 

Given today, 17^th of Tamuz, 5773 (June 25, 2013).

 

 

 

 

 

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 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.