Criminal Appeal (Be’er Sheva) 7182/98 Shmukler et al. v. State of Israel – Ashkelon Municipality Vice President Y. Pepper - part 29

The Enabling Law was indeed enacted before the enactment of the Basic Laws, but from what has been said, it is clear in my opinion that the imposition of restrictions of this kind, which originate in the commandments of religion, on freedom of occupation, and certainly on human dignity and liberty, is not only contrary to the provisions of the Basic Law, but also contrary to its spirit.  The Basic Law was amended and although the possibility of overcoming this limitation by means of the override clause was determined, it is clear that this is an exception that indicates the rule, the rule and the spirit of the law not to recognize such limitations.  It is true that the prohibition of eating pork is portrayed as a more severe mitzva than the prohibition of eating other non-kosher meat, for which the aforementioned matters were determined, but nevertheless it does not deviate from the same matrix or scope of prohibitions according to the religious mitzvot with respect to which the words were stated.  Accordingly, it seems to me that there is room to return to what I said at the beginning of the judgment, that this case constitutes a clear example of the possibility of the existence and continued validation of a previous law that is contrary to the Basic Law, but of refining and limiting it by means of an interpretation in the spirit of the Basic Laws.  The Authorization Law, which was enacted by the Knesset, allows local authorities to enact bylaws regarding the prohibition of the sale of pig meat, and although it restricts freedom of occupation and human dignity and liberty, it does not contradict the spirit of the provisions of the Basic Laws, which stipulates that this prohibition can be established in any place or part of the locality, and accordingly does not include that absolute prohibition that is contrary to the spirit of the Basic Laws, but rather meets the principle of proportionality that underlies the spirit of the Basic Law, and therefore remains in effect.  Indeed, it was not claimed that it ceased to be valid.  On the other hand, an interpretation in the spirit of the Basic Laws must lead to the conclusion that the provisions of the bylaw prohibiting the sale of pig meat in a comprehensive and sweeping manner should no longer be given effect in all areas of a local authority.  It can be said that the bylaw is also in force, although it should be interpreted as permitting an arrangement, limitation and even a very limited area, but an interpretation in the spirit of the Basic Laws as aforesaid cannot give effect to an absolute prohibition stemming from religious commandments, something that has indeed been determined that it can be overcome in the future by means of the override clause, but in the absence of this procedure it contradicts the interpretation in the spirit of the Basic Laws with respect to the existing laws as well.  This can also be expressed in the spirit of the Attorney General's letter regarding the non-filing of an appeal against the judgment given in the Magistrate's Court in Netanya, stating that the possibility of a limited prohibition should first be examined, in accordance with the composition of the population and other data, and only then should we move on to the possibility of a sweeping prohibition, a procedure in which there is no evidence taken at the time of the enactment of the bylaw.