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4 Tammuz 5764 - June 23, 2004 | Mordecai Plaut, director Published Weekly
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Opinion & Comment
Beyond All Limits

All public institutions in a democratic society must take into consideration that they are creations of the society and they are, in important ways, in a dialogue with the public. Even if the public cannot talk back to them for various reasons, what they do must ultimately be at least understandable to the broad community.

The recent decision of the High Court seems as if it was delivered from a vantage point that is so far from the rest of society that it defies explanation to those who are not in that same unfathomable place.

The issue of pork sales in the Jewish state is not a new one. Only a few years after the founding of the state, many cities passed laws banning the sale of pork within their limits. After all, pork is repugnant to Jews and even to Muslims. These laws were challenged in the courts, and eventually the High Court decided that the right to ban pork sales was not one of the powers the municipal councils had. Soon after that the Knesset passed a law empowering the local authorities to ban pork sales within their jurisdiction, if they so desired. This became known as the Empowerment Law.

Several cities -- Tiberias, Carmiel, and Beit Shemesh -- had municipal bylaws based on that Empowerment that forbade selling pork within the city limits or restricting the sales. In Beit Shemesh sales of pork were limited to nearby industrial areas but banned from residential and commercial areas. Pork manufacturers and pork store owners challenged these municipal laws.

The High Court decided that a municipality is too large a unit. The decision as to whether pork may be sold in an area must be determined by the residents of the immediate area. Without giving any sort of definition or even guidance as to what constitutes a neighborhood, the Court said that there are three types of such areas: neighborhoods in which no one wants pork, in which its sale may be banned; neighborhoods in which everyone wants pork, in which its sale may not be banned; and mixed neighborhoods in which the right of pork buyers to buy pork must be "protected" and thus pork stores can be banned from such neighborhoods only if it is easily available nearby.

Legal scholar Uriel Lin, who served in the Knesset as Chairman of the Law Committee and is one of the main supporters of the Basic Laws, said that the Court's action infringes on the Empowerment Law which predates the Basic Laws which the Court views as giving them the ability to invalidate Knesset Laws. When the Basic Laws were passed it was stipulated that they would not apply to any previous laws. Lin writes, "I suspect that the High Court did not give sufficient weight to an important legal stipulation in the Basic Law of Human Dignity and Freedom, known as the preservation of laws paragraph. This paragraph was enacted especially to ensure the status quo on religious matters. . . . The purpose of this section was to preserve the status quo in religious matters and to this end it sets clear limits to the power of the Court to change existing law, or to change the legal situation in religious matters."

Lin's conclusion is unequivocal, if dry. "The High Court expanded its power to change a law of the Knesset beyond the powers that were given to it by the Basic Laws."

That is the legal perspective. But common sense also objects: Is there a right to eat pork? The Court was concerned with the interest of the pork eaters, but really the subjects of the laws are the pork purveyors, and the issue is allowing them to open a store. It is hard to see how the rights of the purveyor are determined by the neighborhood.

The real bottom line is the Jewish perspective. The High Court determined how it thinks that coexistence should be carried out. However they overturned a political compromise that respected the sensitivities of Jews over thousands of years, and was the result of processes that are as democratic as any could be.

The highhanded ways of the High Court are problematic in themselves, but the underlying issue is the hundreds of thousands of non-Jewish immigrants from the Former Soviet Union. Pronouncing them Jewish will not change their taste for pork. It is just another aspect of the long golus.


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