Case Number
HCJ 465/89
Date Decided
5-27-1990
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.]
The Petitioner earns her living performing in Middle Eastern dance presentations known as “belly dancing”. She regularly appeared at celebrations and other events in various venues, among them catering halls and hotels in Jerusalem. Following a decline in the number of her engagements, she was informed that the hotels and catering halls refrained from engaging her services due to the fear that their kosher certification would be revoked by the Respondents. The Respondents, who grant kosher certification under the Kashrut (Prohibition of Deceit) Law, 5743-1983 [37 LSI 147], are of the opinion that they may condition the granting of kosher certification upon prohibiting the operators of eating establishments from presenting “immodest” performances in a place serving food and drink. These are the grounds for the Petition. The Petitioner argues that sec. 11 of the Kashrut (Prohibition of Deceit) Law limits the Respondents’ discretion, restricting it exclusively to “kashrut rules” regarding food.
The Supreme Court, sitting as High Court of Justice, held:
1. (a) The granting of kosher certification is regulated by a secular law, from which Respondents 2 and 3 derive their authority to grant a “kashrut certificate”. In this regard, the status of Respondents 2 and 3 is that of an administrative agency, which must act within the scope its authority, and exercise its discretion in reliance upon material considerations as required by the rules that apply to every administrative agency.
(b) If it be found that the Respondents’ actions deviated from the discretion granted by the Law, or that they weighed or relied upon extraneous considerations that should not have been contemplated and should not have informed their decision, then the High Court of Justice may intervene to annul any improper decision made by the Respondents.
2. (a) The scope of authority granted to the issuer of a kashrut certificate must be derived from the Kashrut (Prohibition of Deceit) Law, in accordance with the accepted rules for the interpretation of a secular law. Those rules instruct the interpreter to ascertain the purpose and objective of the law, and accordingly provide the appropriate construction.
(b) Under the circumstances, the Court must enquire into the intent and proper construction of sec. 11 of the Kashrut (Prohibition of Deceit) Law. The question is what is comprised and signified by the term “kashrut laws” upon which, alone, a rabbi may rely in granting a kashrut certificate. To that end, the Court must examine the purpose of the Law in which sec. 11 – which refers to the “laws of kashrut” – appears, and to which “kashrut laws” the Law refers in light of its express purpose of preventing deceit in regard to kashrut.
(c) At times, the legislature employs a halakhic [Jewish law] term that has an accepted meaning within Jewish law. But that term may have a different meaning than its usual halakhic sense when it is employed in a different statutory context, in light of the purpose of that legal norm.
3. (a) In the circumstances of this case, the title of the Law – Kashrut (Prohibition of Deceit) Law – the interpretation of its provisions, and its legislative history show that the purpose and objective of the Law are to prevent deceit in regard to the quality, preparation and serving of food, and not to serve purposes of imposing the rules of Jewish law in matters that do not pertain to the kosher status of food.
(b) The authority granted by the Kashrut (Prohibition of Deceit) Law to issue kosher certification is not meant to serve as a means, or to provide leverage for imposing rules of Jewish law that do not pertain to the kosher status of the food. Such use of the authority, and such considerations are foreign to the authority that the Law grants in regard to issuing a kashrut certificate.
(c) When a secular law refers to the granting of kosher certification in order to prevent deceit in regard to the kosher status of the food, its intent is that the certification attest that the food is kosher, and that the establishment serves kosher food. It is not intended to grant the certifying agency the authority to impose modes of conduct in that establishment.
4. (a) The Respondents’ approach that argues that observing the kosher rules in regard to food alone is insufficient for the purpose of granting kosher certification is not consistent with the objective and purpose of the Kashrut (Prohibition of Deceit) Law, which is the basis for the authority to grant the certification.
(b) Inasmuch as the Law grants a municipal rabbi authority to issue kosher certification, and restricts the discretion afforded him in deciding whether or not to grant certification, he must act within those parameters alone. If certification should be granted in accordance with those parameters, he must grant it, as that is what the legislature has instructed.
(c) The Law is intended to serve the need for maintaining the “hard core” of kosher laws regarding food – its production, preparation and serving – and to ensure that kosher certification is granted only to those who observe those rules, without regard for whether a business owner observes other rules of Jewish law, whether in his personal life or in the operation of his business, as long as that conduct does not impair the kosher nature of the food sold or served by him.
5. Per G. Bach J:
(a) The Respondents are required to distinguish between those rules of Jewish law that directly concern the kosher status of food, which they may consider in exercising their discretion under sec. 11 of the Kashrut (Prohibition of Deceit) Law, and other matters that they must ignore, even if Jewish law addresses and supports them.
(b) The Respondents may not consider aspects that are entirely extraneous to the subject of the kosher status of food, such as a food establishment’s connection with one or another stream of Judaism, or the conducting of ceremonies that, for one reason or another, the Respondents deem repugnant.
6. (a) Section 12 of the Kashrut (Prohibition of Deceit) Law provides a remedy to one who requests and is refused kosher certification. This is not the situation encountered by the Petitioner. Her situation is one in which she is harmed by a condition imposed by the Respondents that would deny the granting of kosher certification to the operators of food establishments that permit her performances.
(b) Under the circumstances, the Petitioner’s income is severely harmed by the Respondents’ policy, and its conditions for the granting of kosher certification. The course open to her in this regard is to petition the High Court of Justice for relief that would bar the Respondents from unlawfully exercising the authority granted to them by the Law.
Keywords
Jewish Law -- Kosher food
