Caselaw

Criminal Appeal (Be’er Sheva) 7182/98 Shmukler et al. v. State of Israel – Ashkelon Municipality Vice President Y. Pepper - part 10

October 27, 1999
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"The rights under this law are not violated except by a law that is appropriate to the values of the State of Israel, which is intended for a proper purpose, and to the extent that it does not exceed what is required or according to such law by virtue of its explicit authorization."

In addition, attention should be paid to the provision of section 10 of the Basic Law: Human Dignity and Liberty, entitled "Observance of the Laws", according to which this Basic Law does not prejudice the validity of a law that existed prior to its commencement, and the Second Basic Law, Freedom of Occupation, a temporary provision in section 10, which was amended twice, according to which "statutory provisions were it not for this Basic Law...  If they were in force prior to the commencement of this Basic Law, they shall remain in effect until...  March 14, 2000 if they were not canceled earlier."

At the same time, section 10 further states that the interpretation of the said provisions shall be made by virtue of the provisions of this Basic Law.  Hence, as Prof. Y. Zamir writes in his book Administrative Authority [23], at p. 175:

"Even when a law grants an administrative authority the power to infringe on freedom of occupation, such as by way of a permit to practice a certain profession without a license from the authority, the authority must, in general, exercise its authority in accordance with the requirements of the limitation clause in the Basic Law.  Accordingly, it is possible that a refusal to grant a license under the law will be invalidated by the court, if the refusal violates the freedom of occupation beyond the required extent."

It is clear that with the legislative upheaval that followed the enactment of the two Basic Laws, the Knesset's power to infringe on the freedom of occupation of the individual was limited, and "as long as the Basic Law remains in place, the freedom of occupation of the individual may be infringed only in one of these two situations: First, the violation of the freedom of occupation meets the conditions of the 'limitation clause' in section 4 of the Basic Law.  Second, the infringement of freedom of occupation does not meet the conditions of the limitation clause, but it is anchored in a law that was met with a majority of Knesset members and expressly stated that it is valid despite what is stated in the Basic Law.  Such a law will be valid for a maximum of four years (section 8 of the Basic Law is the override clause).  In addition, there is a "Temporary Order", according to which provisions of the law that infringe on the freedom of occupation and that were passed prior to the enactment of the Basic Law will remain in effect for up to two years from the date of the commencement of the Basic Law in its amended version (section 10): High Court of Justice 1064/94, 83/95 Computist Rishon LeZion (1986) in Tax Appeal et al. v. Minister of Transport et al. [3], at pp. 814-815.

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