Case Number

HCJ 195/64

Date Decided

9-27-1964

Decision Type

Original

Document Type

Full Opinion

Abstract

The kashrut of the petitioners' establishment was not disputed but the respondents imposed conditions on the grant of the license - in particular requiring the petitioners (l) not to market their kosher meat to butcher shops which did not hold a licence from the first respondent and (2) to market their non-kosher meat to non-Jewish butchers alone and on guarantee that the meat would not find its way into the Jewish market - which the petitioners claimed had nothing to do with the kashrut of their slaughterhouse and imposed a heavy financial burden on them, in addition to being discriminatory since the conditions were not imposed on other slaughterhouses. The licences of butcher shops selling the petitioners' meat were also withdrawn.

The first respondent, the body responsible for kashrut licences, did not appear but informally intimated that the High Court of Justice had no jurisdiction to interfere with its halachic decisions and considerations.

Held: The attitude of the first respondent suggested a claim to immunity from judicial process rather than a claim of lack of jurisdiction of the part of the High Court of Justice. The rule, however, was that all are equal before the law, unless the legislature has otherwise expressly provided, as in the case of the President of the State and, with qualifications, members of the Knesset. Whilst the legislature had assigned to the first respondent powers in certain areas of religious activity of an administrative nature, together with the necessary funds out of the State's Budget, it had not found fit to grant it immunity from the operation of the Courts Law. Nor could the High Court, acting as it does under that Law, grant immunity and thereby bar access to aggrieved citizens. The first respondent also was not a judicial tribunal to which the High Court's jurisdiction did not extend. Accordingly the statutory powers of judicial review, vested in the High Court were exercisable vis-a-vis the first respondent to the extent that it derived its authority from secular law and not withstanding that it is subject to the religious law appertaining to the matters with which it deals. The High Court will not prevent the first respondent from applying religious law, or issue kashrut licences in its place, or even intervene in disputes as to the interpretation of religious law.

These matters did not arise in the present case and the sole issue was whether the first respondent had been discriminatory and acted ultra vires in denying the petitioners a licence unless they undertook to abide by the conditions sought to be imposed on them. In the absence of any defence,. the allegations of the petitioners were prima facie sustainable.

The first respondent's powers of ensuring kashrut for the observant did not include powers to enforce it against the non-observant. The two conditions mentioned above seemed to dictate to whom the petitioners might sell their meat, and failing any explanation it was difficult to discern any connection between these conditions and the kashrut of the meat. which was not in dispute. The imposition of these conditions was therefore ultra vires.

Keywords

Administrative Law -- Licenses, Jewish Law -- Kosher food

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