Case Number
CrimA 5338/17
Date Decided
11-1-2018
Decision Type
Appellate
Document Type
Full Opinion
Abstract
[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]
The Respondents filed an administrative petition with the Court for Administrative Affairs against the Appellants. The petition concerned the removal of signs placed throughout the city of Beit Shemesh, which comprised demands, requests and inscriptions that were offensive to women (hereinafter: the signs). In the framework of an consent judgment, it was determined that the Appellants must exercise all the powers of enforcement available to them by law in order to bring about the removal of the signs. Several months after the consent judgment was handed down, the Respondents filed a motion with the Court for Administrative Affairs under the Contempt of Court Ordinance (hereinafter: the Ordinance) to compel the Appellants to uphold the consent judgment. The motion was granted in part in relation to some of the signs, whereby in the event that the signs are not removed by July 6, 2017, the Appellants would incur a fine of NIS 5,000 for each day of delay in their removal. The appeal turns on this decision.
The Supreme Court (per Deputy President Melcer, Justice (ret.) Shoham and Justice D. Mintz concurring) held as follows:
The Court discussed the phenomenon of exclusion of women from the public domain. This is a matter of sweeping discrimination on the basis of sex, its main characteristic being the withholding from women – due to the fact that they are women – the possibility of receiving public services, of participating in public activity, or of maintaining a presence in the public domain. It is liable to manifest itself in several ways, including gender separation. In Israel, the exclusion of women sometimes involves a unique element that includes religious considerations. A question that must be examined is whether, in certain circumstances, it is possible to justify separate or restrictive treatment of women in the public domain, bearing in mind the entire array of relevant interests. The criterion for examining the constitutionality of something that is suspect as being exclusionary of women is whether there exists a “relevant difference” stemming from the nature and the substance of the public services that are provided which would justify gender separation, where weight must also be accorded to the unique cultural aspect of the ultra-Orthodox community.
The “modesty signs” are part of the disturbing phenomenon of exclusion of women from the public domain. The local authority must refrain from allowing exclusionary signposting within its bounds. The signs under discussion in the appeal are a type of expropriation of the public domain from the female sector and turning it into private domain, accompanied by the exertion of social pressure and a breach of the autonomy and the security of women. The local authority has a duty to accord weight to the said breach, and to act diligently to remove the signs and to bring those responsible for their placement to justice. If there is a concern about violence and disturbances of the peace as a result of taking action to remove the signs, the authority must turn to the police for assistance with security, and it must act in “real time” to maintain order while exercising the relevant powers of enforcement. Indeed, the authority may set an order of priorities for enforcement, and as a rule, there is no room for interference in this discretion. At the same time, it must be ensured that in the actions of the authority, appropriate weight is accorded to the serious breach of human rights caused by the placement of the signs.
The Court discussed the need for complying with judicial orders, and it addressed the process for preventing contempt of court, which is an enforcement process whose ramifications are liable to cause harm, and therefore its use must be limited to situations in which all other measures have been exhausted and have not helped. The Court discussed the fact that in exercising its powers of enforcement, the local authority must bear in mind the need to protect the basic rights of every person, and to do all that it can in order to put an end to violations of these rights.
In the present case, despite the serious violation of the basic rights of women and despite the commitments of the Appellants, the city of Beit Shemesh is still rife with unlawful signs. The Appellants refrained from installing seven cameras in the neighborhood in which disturbances are taking place and from continuing to remove the signs that were removed but later replaced.
The Court ruled that in the event that the cameras are not installed by Dec. 31, 2018 and in the event that the prohibited signs are not removed by then, the appeal would be deemed as denied from that date onwards. If the Appellants act as required by that date, the fines imposed would be cancelled retroactively.
Keywords
Constitutional Law -- Right to autonomy, Jewish Law -- Women
Recommended Citation
Melcer, Hanan; Shoham, Uri; and Mintz, David, "Abutbul v. Phillip" (2018). Translated Opinions. 19.
https://larc.cardozo.yu.edu/iscp-opinions/19
