Case Number

FH HCJ 3660/17

Date Decided

10-26-2017

Decision Type

Original

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.]

Further hearing in the verdict given in HCJ 6322/14 in which a variety of claims were raised regarding two amendments to the By-Law of Tel Aviv-Jaffa (Opening and Closing Shops), 5740-1980 (hereinafter: the Amendments), addressing the opening of businesses on the Sabbath in Tel Aviv-Jaffa. The petitioners argued in favor of the constitutionality, reasonableness and proportionality of permitting businesses to open on the Sabbath. On the other hand, Respondent 4 (hereinafter: the Municipality) petitioned against the decision of the Minister of Interior to delay the entering into force of Amendment No. 2 to the by-law, which concerned opening of grocery stores on the Sabbath. In the verdict that is the subject of the further hearing, the court accepted the Municipality’s petition and rejected the petitioners’ petition. It was held that the decision to disqualify Amendment No. 2 was invalid, and that permitting businesses to open on the Sabbath via the amendments was not per se an excess of authority or discretion. The hearing focused on the question of the validity of Amendment No. 2, and the question of whether the amendments meet the standards of administrative law.

The High Court of Justice (decision by President Naor, joined by Justices Hayut, Danziger, Amit and Barak-Erez, against the dissenting opinion of Justices Hendel and Sohlberg), rejected the petition for a further hearing and held that:

Regarding the validity of Amendment No. 2, first it was decided that the Minister of Interior’s position not to approve the amendments does not affect the validity of the amendment. It was held that the current procedure is not appropriate for examining the lawfulness and reasonableness of the Minister of Interior’s position, which was not at all submitted to the panel in the proceeding that is the subject of the further hearing. In addition, the Minister of Interior’s position regarding postponing amendment No. 2 was given very late. In light of these facts, the petition is rejected. However, because it is appropriate that the issue of the Sabbath be considered and clarified when all the positions are before the court, the court reviewed the merits of the Minister of Interior’s position that Amendment No. 2 should be completely disqualified. It was held that in exercising the authority granted him by Section 258 of the Municipalities Ordinance, the Minister of Interior should accord significant weight to local autonomy, and that his position fails to do so. It was noted that the infringement on the municipality’s autonomy is particularly problematic, because local authorities in Israel are explicitly authorized to enact, in their by-laws, provisions regarding the opening of businesses in their jurisdictions on the Sabbath, as stated in the Law Amending the Municipalities Ordinance (No. 40), 5751-1990 (hereinafter: the Authorizing Law). It was noted that one of the purposes at the foundation of the Authorizing Law is that these issues will be regulated specifically at the municipal, local level, and the opposite should not be done. The authority to make the values-based determination within the framework of the by-laws belongs to the municipality, and not to the Minister of Interior. The Minister of Interior is not supposed to evaluate if the determination is optimal in his opinion, but rather whether it is within the zone of reasonableness. Leaving the decision in the hands of the municipality is intended to realize the principle of municipal autonomy and to give substantial weight to local considerations. The Minister of Interior’s decision is intended to oversee the lawfulness of the municipality’s decision, but not to replace its discretion with his own. Also, the Minister of Interior’s position contradicts an additional central purpose at the foundation of the Authorizing Law, which is about balancing. In light of that purpose, a sweeping position, devoid of balance reflecting the character of the city, the uniqueness of its different areas and the distance between them – is unreasonable. In light of all of the above, even if the Minister of Interior’s position had been submitted on time and were evaluated on its merits, there would be no deviation from what was decided regarding Amendment No. 2 in the verdict that is the subject of the further hearing. Therefore, Amendment No. 2 remains valid.

On the question of whether the amendments meet the standards of administrative law, regarding authority, the Authorizing Law authorizes local authorities in Israel to enact provisions in their by-laws regarding the opening of businesses in their jurisdiction on the Sabbath; there is no contradiction between the amendments and the Hours of Work and Rest Law. That law does not create a sweeping prohibition on opening businesses on the Sabbath. In any event, the amendments were done through the Authorizing Law, which authorizes the municipality to permit the opening of businesses on the day of rest. Even if there were a contradiction, it would be a contradiction between the Authorizing Law and the Hours of Work and Rest Law, which are norms belonging to the same rank in the legal hierarchy. The Authorizing Law prevails, because it is a law enacted subsequent to the enactment of Hours of Work and Rest Law, and in any event, because it is a specific law that, in a focused way, grants powers to local authorities in Israel, in contrast to the generality of the Hours of Work and Rest Law. In light of all of the above, the municipality did not exceed its authority when it enacted the amendments.

Regarding the issue of discretion, the amendments are within the zone of discretion that the Authorizing Law grants the municipality. Although the amendments do, beyond a minimal level, infringe on the rights of merchants and others, which stem from opening commercial businesses and places of leisure on the Sabbath, on the other hand, the amendments protect other rights, including freedom of association and freedom of conscience. The heart of the evaluation is the balance between competing rights. The balance does not privilege one viewpoint over the other. It does not detract from the status and importance of the Sabbath as a national asset of the Jewish people and one of the values of the State of Israel as a Jewish and democratic state. However, the meaning of the balance is that, together with protecting the unique character of the Sabbath, one must allow each individual to shape his Sabbath as he chooses. The legislator tasked the local authority with the job of conducting this balance, which should reflect the unique character of each city, the character of communal life within it and the practical solutions regarding its circumstances. The amendments were enacted with the goal of reflecting the unique balance appropriate for the city of Tel Aviv-Jaffa, taking into consideration the status of the Sabbath, the composition of the population of every neighborhood, its way of life and the character of the city. Amendment No. 1 permitted opening businesses in a small number of commercial sites that are disconnected from residential areas. Amendment No. 2 permitted opening a limited number of grocery stores in specific geographic areas, subject to restrictions. It means opening a small number of businesses that constitute a tiny fraction of the number of businesses operating in the city on weekdays, a factor weighing in favor of proportionality. The balance that was reached allows for the preservation of the unique character of the Sabbath and does not significantly change the face of the city, given the existing normative situation. In summary, the amendments are within the zone of proportionality granted to the municipality, and there was no place to intervene in them.

Keywords

Administrative Law -- Discretion, Jewish Law -- Shabbat

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