See also High Court of Justice 6789/93 "Proper Purpose for Absorption" et al. v. Minister of Health et al. [4].
From the above, the following conclusions are required:
(a) The bylaw does indeed violate the freedom of occupation of all the appellants as it deprives them of the possibility of selling pork within the city of Ashkelon – but the aforementioned violation was done lawfully in the legislation that was in force prior to the commencement of the Basic Law.
(b) Assuming that the bylaw had been passed after the Basic Law came into effect, it would have been valid even then-It is valid because it is consistent with the values of the State of Israel as a Jewish and democratic state and is intended for a proper purpose and to an extent that does not exceed what is required.
I will explain what I have said below.
- Does the bylaw meet the requirements of section 4 of the Basic Law: Freedom of Occupation?
"The new Basic Laws on Freedom of Occupation and on Human Dignity and Liberty testify that their purpose is to anchor in Basic Laws the values of the State of Israel as a 'Jewish and democratic' state": Prof. H. H. Cohen HaMishpat [25]. and at pp. 516-517.
"Legislation on religion and state has provoked, since the beginning of the state, a constant and difficult debate between observant and non-observant Jews who have an unbearable burden on the shoulders of Israel's judges, to decide what is meant by the interpretation of what is stated in the Basic Laws that we are discussing regarding the anchoring of 'the values of the State of Israel as a Jewish and democratic state' - M. Alon, Through Law in the Constitution: The Values of a Jewish and Democratic State in Light of the Basic Law, Human Dignity and Liberty, Iyunei Mishpat, 17, 1992/93, 659, 666. It is desirable that the interpretation of the words 'Jewish and democratic' be done by the Supreme Court – but we see that there is nothing to prevent the judges of the other instances from needing to interpret and give content to the aforementioned pair of words. Prof. Alon goes on to write at p. 669 that, 'Our case law is full of different approaches to the principle of balance, when it comes to limiting a certain or unknown right and balancing it with a certain or unknown super-value that stands in opposition to it, as well as with regard to the nature or essence of the basic right itself. This is the right of the settlements over Midian, and not their right alone, but also their duty.'"