Simon Jackson
Legal Advisor to Torah Mitzion
Design 22 – Shark Deluxe Furniture Ltd. is an Israeli company that works seven days a week and employs Jewish workers on Shabbat. The Ministry of Labor and Welfare fined the company three times in the past for working on the Sabbath. Design 22 ultimately decided to apply for a permit to enable it to remain open and its employees to continue working on Shabbat and Chag, but the Labor Ministry turned it down for not fulfilling the conditions needed for such a dispensation. The company took the case to the highest court of the land – the Israeli Supreme Court.
How did the President of the Supreme Court, Justice Aharon Barak, rule on this issue?
Design 22 claimed that the law forbidding the employment of Jews on the Sabbath negates the Basic Law providing for freedom of occupation. It further argued that every worker and employer should be allowed to choose their own weekly day off. In addition, it asserted that the current law is outdated and not appropriate to Israeli culture, especially given the arrival of a million people from the former Soviet Union since 1990.
Freedom of Occupation – “A Meta-Constitutional Right”
Justice Barak reviewed the history of the right to freedom of occupation. It became, he argues, a “meta-constitutional right” since its entrenchment in a Basic Law in the year 1992. The Knesset restricted the legislature’s own ability to violate this right, by permitting its violation only in those cases where a law, which befits the values of the State of Israel as a Jewish and democratic state, has been enacted for a proper purpose and such law does not infringe on the right to freedom of occupation to an extent greater than is required (s. 4 of the Basic Law). All laws must be examined for their constitutionality in the light of the Basic Law – even those, such as the Hours of Work and Rest Law, which preceded its passage.
The Right to Freedom of Occupation is not Absolute
The Hours of Work and Rest Law does, indeed, violate the right of a person (or company) to open his business during the weekly rest period, as well as the right of an employee who wishes to work on the Sabbath. As we have seen, this does not automatically make it illegal. For example, section 5 of the Basic Law: Human Dignity and Freedom prohibits the deprivation or restriction of a person’s liberty by his imprisonment, arrest, extradition, or by any other manner. Yet, no one would claim that the Israeli penal laws or arrest and extradition laws are unlawful! An individual’s rights are the right of the individual as part of the society in which he lives. Alongside a person’s rights exist his duties, states Barak. They are not therefore absolute and may be restricted in appropriate circumstances.
Israel as a “Jewish” and “Democratic” State
Do the restrictions contained in the Hours of Work and Rest Law conform to Israel’s values as a “Jewish and democratic state”? Justice Barak makes three extremely revealing points in this regard:
“First, the State of Israel is a Jewish state. I made this point in an earlier judgment when I stated: ‘There are many democratic countries. Only of them is a Jewish state.’ Indeed, the raison d’être of the State of Israel is the fact that it is a Jewish state… The Jewish people established the Jewish State… There are two aspects to the Jewish state: a Zionist aspect, founded on the world of Zionism and the traditional-halakhic aspect, based on the world of Judaism. At the crux of these aspects, inter alia, lies the right of every Jew to make Aliyah to the State of Israel; that Jews should constitute the majority of the State; that Hebrew should be the official language of the State, and that the majority of its festivals and symbols should reflect the national renascence of the Jewish people. The Jewish heritage is a key element in its religious and cultural heritage. It follows, therefore, that a ‘Jewish state’ is a rich and multifaceted concept (The Central Elections Committee to the Sixteenth Knesset v. MK Ahmed Tibi [2002]).
Secondly, Israel is a democratic state, at the basis of which lies the acknowledgment of the sovereignty of the people as expressed in free and equal elections; a recognition of the core of human rights, including dignity and equality, the separation of powers, the rule of law and an independent judiciary… It follows that the world of democracy multi-dimensional and sophisticated…
Thirdly, the constitutional interpreter needs to make efforts to bring about an integrity and harmony between the values of the State of Israel as a Jewish state and between its values as a democratic state…”
The Court’s Ruling
Chief Justice Barak stated that the ban on Jewish employment on the Sabbath is compatible with Israel’s values, both from a sociological standpoint and from the national-religious standpoint. He noted that there is great importance in providing for a day off that will enable the entire family to be together. Barak therefore ruled that the Sabbath has “become a central component in Judaism,” and that the combination of the need to provide a uniform day of rest and the choice of the day based on national-religious considerations is appropriate to the State of Israel’s values as a Jewish and democratic state. “At the heart of the law stands the social-welfare need to grant workers rest, while allowing the worker’s family to be together during that day. At the same time, the law is based on a religious consideration that the Jews’ weekly rest will include Saturday,” Barak ruled.
Violation of freedom of occupation – “to an extent no greater than required”?
Justice Barak ruled that the Hours of Work and Rest Law conforms to this requirement in the Basic Law: Freedom of Occupation. By contrast, the choice of mobile rest hours would not realize the protective purpose of the Law. Fixed hours of rest are required to do this. The legislator’s choice of Saturday (for Jews) and Sunday and Friday (for non-Jews) is compatible with the need for proportionality when breaching a Basic Law. In this connection, it should be remembered that an integral part of the Hours of Work and Rest Law are those provisions under which the Law does not apply: policemen, civil servants whose position requires them to serve the country even outside of normal working hours, sailors and air crew members. Account also needs to be taken of the fact that the Labor Minister is given authority to grant permits which enable certain activities to be carried out on rest days, e.g. hotel management, guard duty, rescue services etc. And the Municipality Ordinance empowers local councils to regulate the opening of a variety of businesses, including cinemas, restaurants, and cultural institutions.
In light of all these reasons, Justice Barak concluded that the injury caused to freedom of occupation by a law that forbids Sabbath employment cannot be said to be a violation which is in excess of that which is required.
