Tuesday's ruling by the Supreme Court that the Tel Aviv-Jaffa Municipality must enforce its bylaws banning the operation of businesses on Saturdays, has confused part of the public, which is struggling to understand the decision, its motives, and its consequences. Adv. Ilan Bombach, an expert in municipal law, reviewed the decision in depth, and clarified matters.
"Globes": What is the significance of the Supreme Court's ruling?
Bombach: "The Supreme Court, in its capacity as the court of administrative appeals, responded in the affirmative to the question: Should a municipality be required to apply the means of enforcement which it is authorized to apply, and which it refrained from applying until now. This relates to the enforcement of the Tel Aviv-Jaffa Municipality bylaw Opening and Closing of Shops (5740-1980), which bans the opening of stores on the day of rest.
"The Supreme Court ruled in favor of the appeal in the following way: the matter has been sent back to the municipality to use its discretion and accept the decision in question regarding the application of the authority granted it in the Municipality Orders or any other authority authorizing the levying of fines.
"The municipality is now supposed to examine its position on enforcement of the bylaw within 60 days from the date of the ruling. The decision which will be taken in this matter will be sent to the petitioners' attorney, and is subject to further judicial review."
What was the ruling made from religious motives and considerations?
"Not at all. The ruling's guiding spirit is that a bylaw, with its historic, religious, and social content, has been a given for 33 years, and should be enforced like any other law. The Supreme Court ruled that it is the duty of the municipality to uphold the law. A municipality's reasonable discretion at the enforcement stage, however broad it may be, is more limited than its discretion when legislating the bylaw.
"After a bylaw is passed, the municipality should use its discretion in view of the bylaw and its content… As a rule, the municipality should enforce the bylaw that it passed, and it has no broad discretion about whether to enforce it."
Who will be harmed by the ruling, and who is it supposed to help?
"Belying the flood of commentary since the ruling, it's hard to know. Yes, the municipality has to make an important decision on this matter, and it is not at all clear whether it can or wants to do so within the 60 days allotted it by the ruling. Even if a decision is made, it is not clear what its content will be. Will the municipality amend the bylaw? Will it take the will of its residents into account? Will it divide the city into districts?"
(See the Solodkin High Court of Justice ruling, which states that any local authority can decided how it applies within its municipal jurisdiction the bylaw on the sale of pork).
"The ruling states, 'If the character of the city of Tel Aviv-Jaffa requires, in the opinion of its taxpayers, who represent the population, not to close businesses like those of the respondents, on Saturday, the bylaw can be amended in the normal procedure for any law. But so long as the bylaw is not amended, the starting point is that it should be upheld.'
"It should be remembered that the bylaw itself includes a ban on the opening of businesses on Saturdays and exceptions to this ban. The matter turns on that the municipality chose not to include businesses, such as 'supermarkets' as exceptions to the ban. Obviously, the municipality can do this if it wants, even taking into account the position of the Attorney General, who states that the municipality is authorized 'to balance between the interest of preserving the character of the Sabbath as a day of rest… and the possibility of certain economic activity.'"
When will the ruling come into effect?
"The municipality has been allotted 60 days to make a decision on the matter. If it does not do so, and it does not obtain an extension, then the petitioners will have the right to file their motion again under the contempt of court order."
What do you think that the Tel Aviv-Jaffa Municipality will do?
"I can only guess. I think that the municipality will amend the bylaw to regulate the operation of supermarkets on the Sabbath and days of rest, as well as regulating the activity of other businesses, which currently operate without a legal exception from the provisions of the bylaw. It should be noted that the bylaw already allows restaurants, cafes, and pharmacies to operate on Saturday, as well as recreational facilities, so long as they involve educational and cultural activity, such as cultural weekends, concerts, etc."
Does the ruling have wider significance?
"Absolutely. The ruling should not only apply to Tel Aviv, but to every municipality where businesses, such as supermarkets, operate on the Sabbath and days of rest, in violation of bylaws which ban them from doing so. The current situation is unacceptable, in which municipalities have appropriate bylaws, but enforce them selectively against certain businesses, but not against others. There are bylaws which are not enforced at all, depending on a municipality's changing policy.
"The Supreme Court is trying to end this hypocrisy. There might be consequences in other areas, such as ending the harassment of businesses to which municipalities turn a blind eye. The ruling might also be a warning sign to all municipalities to enforce the law. In my view, this is good news for the rule of law."
Published by Globes [online], Israel business news - www.globes-online.com - on June 27, 2013
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