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Shuttering shops on Shabbat: Hypocrisy and the rule of law

The Supreme Court recently ordered that the rule of law be enforced when it comes to Tel Aviv shuttering businesses on the Sabbath. But the court is inconsistent with its own demands, only ordering that ‘the law is the law’ when it’s convenient.

Panel of the Israeli Supreme Court (file photo, Activestills.org)

These are confusing times. Our friends don’t know what to think, and opinions on Facebook are mixed. We are here to analyze things honestly and, as always, though the most important prism – the prism of migration.

Last week the Supreme Court ruled that the Tel Aviv-Jaffa Municipality’s policy of not enforcing the municipal bylaw barring the opening of businesses on the Sabbath is illegal, and ordered the municipality to reconsider its policy. In effect, the court determined that the municipality must choose one of two options – enforce the ban or change the municipal bylaw barring the opening of businesses on the Sabbath, if it believes that such a ban should not be in place in Tel Aviv.

People got riled up on Facebook. Some of our friends were upset, as they oppose a ban on working or opening businesses on the Sabbath. Others were pleased with the ruling, although they oppose the forced closure of businesses on the Sabbath. At last, the latter believe, the Tel Aviv-Jaffa Municipality will no longer be able to play the game in which it tries to please everyone by leaving the problematic regulation in the law book, yet does not enforce it. At present the municipality imposes fines on businesses that are open on the Sabbath, while it conveys that buying the right to violate the law is an option. In so doing, the municipality discriminates against small businesses that cannot and do not want to be open on the Sabbath in order to compete with the large chains; the small businesses can’t pay the fines if they were to stay open, while the big super market chains – AM:PM and Tiv Taam – can easily pay the fines. According to those pleased with the ruling, Mayor Ron Huldai will have to face his moment of truth: enforce the rule of law and clarify that the law is a serious thing that should be respected, and not just when it is convenient.

The latest proposition, offered by Judge Elyakim Rubinstein in his opinion on businesses in Tel Aviv-Jaffa, could have been fascinating if the Supreme Court treated it seriously. But when the Supreme Court enforces laws selectively, it can’t be treated seriously. Had the Supreme Court decided as emphatically that the army must enforce the rule of law in the territories, we could take more seriously the glorification of the rule of law on the municipal level. If the court had determined the same thing in regards to asylum seekers, we would more seriously consider the latest statements regarding the obligation to uphold the rule of law. But the Supreme Court does not apply the principle of rule of law consistently, and its partial application undermines the very rationale that supports it.

And now to our order of business. There are more than 50,000 asylum seekers in Israel; their employment is prohibited, but this ban is not enforced. This arrangement was conceived by the Interior Ministry, approved by the Justice Ministry, and sanctioned by the High Court of Justice. The State of Israel recognizes that it cannot, practically or legally, deport 90 percent of the asylum seekers in the country, as they are Sudanese and Eritrean nationals. The state also knows that it cannot prevent a population of 50,000 people, whom it is not deporting, from working, because that would result in a major problem. The state wants them to work, but doesn’t want to issue work permits, and so it came up with an original trick – they aren’t given work permits, but the state committed to the Supreme Court that employers who break the law and employ asylum seekers won’t be fined and will not stand trial.

One could expect the Supreme Court to oppose this. If asylum seekers can’t be employed, there is no way that an arrangement – under which tens of thousands of Israeli employers break the law – can be in place for years, with no enforcement measures taken against those transgressors. Rule of law, remember? If the Supreme Court was consistently loyal to the rule of law, it could have presented the state with a choice: enforce the ban on employing asylum seekers or issue them work permits, akin to the choice given recently to the Tel Aviv-Jaffa Municipality – enforce the ban on businesses opening on the Sabbath or lift the prohibition against businesses being open.

But the Supreme Court ruled that the prohibition on employing asylum seekers, along with the lack of enforcement of the ban, constitute a “reasonable arrangement.” Two and a half years ago the court determined that not enforcing the law is a “proper balance,” and according to Judge Edna Arbel, “The position of the state, detailed above, according to which work permits should not be granted, along with its statement that no measures will be taken at this point against employers, constitutes the proper balance, considering the harsh and sensitive reality that exists.”

This is true primarily when referring to asylum seekers. This statement is inconsistent with last week’s ruling regarding the closure of business on the Sabbath. Adding to the ruling on opening businesses in Tel Aviv on the Sabbath, Rubinstein wrote: “for the municipality, a public institution of the highest order that is supposed to serve all residents in accordance with the law, this is an “Israbluff” solution. How does the municipality feel about the significance of an offense with endless recidivism? Must the enforcing authority settle for imposing a fine, checking it off, and continuing on, or must it find another way?”

The same words could be uttered regarding the warped arrangement for not enforcing the ban on employment of asylum seekers. But in that case, disregard for the rule of law and throwing asylum seekers into a legal limbo constitutes a “proper balance.”

How can we complain, you might ask us. Do we prefer that the prohibition of employing asylum seekers be enforced? We prefer legal clarity, which would compel the Interior Ministry to grant work permits if it does not enforce the ban on employing asylum seekers. Make no mistake – the last thing the Interior Ministry or government wants is actual enforcement of the ban on employing asylum seekers. In addition to economic interests, enforcing the law would create a humanitarian crisis with thousands of starving people across the country. If you think the residents of southern Tel Aviv are having a hard time now, just wait and see what happens when asylum seekers aren’t able to work at all, wander around and are very hungry. The government knows that it cannot allow this to happen, and if it was faced with the choice of enforcing the ban on asylum seekers’ employment or granting them work permits, work permits would be granted as early as tomorrow.

But as long as the court approves the “non-enforcement” policy, the government prefers to abide by it. That way people can live in need, on the fringes of the law. They will constantly be criminals, but won’t be punished. They will barely be able to support themselves and will always work in temporary positions, in unstable environments and usually for salaries lower – and sometimes much lower – than the minimum wage. That way, in light of the “non-enforcement” policy, the state is creating a population that is always on the edge; part of the population can’t handle the pressure and is pushed over the edge, making their lives, and the lives of those around them, unbearably difficult.

That’s the way it is when the Supreme Court enforces the rule of law selectively, applying it to the Tel Aviv-Jaffa Municipality but not to the Interior Ministry, allowing the ministry to carry out the “Israbluff” policy that it bars the municipality from conducting. That’s the way it is when the Supreme Court does not recognize that it must impose the rule of law on everyone.

Related:
Sabbath in sin city: Keep the shops open

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  • COMMENTS

    1. Aaron Gross

      Another Puritan attack on judicial hypocrisy.

      Jonathan Rauch wrote a classic article defending what he calls “Hidden Law”: hypocritical, ad hoc, unwritten and unspoken agreements that work precisely because no one acknowledges that they even exist. One thing that impressed me when I first moved to Israel was how effectively this Hidden Law works here compared to America, especially regarding secular-religious relations. Non-enforcement of sabbath laws is one example. But that was years ago.

      Rauch’s brief article was published in 2001, but it’s completely relevant to the situation discussed here in this article. Check out his beautiful celebration of Hidden Law, his implicit rebuttal to this +972 article, here: .

      Reply to Comment
      • The Rauch artilce, when speaking of abortion, neglects to mention that illegal abortions had medical costs, sometimes unto death, for women. This aspect of the Hidden Law of not seeing the abortion seems to remain hidden. This is not a matter of being pro-abortion; pro-lifers, in my view, should acknowledge this side cost would be. When looking the other way leads to abuse of the hidden party, Rauch’s argument fails. Here in Arizona, a law mandating that the police inquire into legal residence status if there be any suspision otherwise may well have lead to fear of calling the police when needed, say with abused women. Similarly, when a class of legal residents cannot in law work but must work to live, on can expect employer abuse, precisely because both employer and employee are hidden from the law.

        Reply to Comment
    2. rsgengland

      I live in the UK, where shops are open 7 days a week.
      It might have created more convenience as long term weekend planning for purchases is no longer necessary.
      But in terms of quality of life, I do think that we have lost something.
      Shops closed one day a week means that we all have to amuse and entertain ourselves, and friends and family, instead of taking the easy way out by going to the big shopping centers for entertainment.
      The same amount of business will be done in 6 days, so really there is very little economic argument either way.

      Reply to Comment
      • Joe

        That’s a daft argument. The UK is a very varied community. Many people have work patterns and religious practices which mean they want to shop on Sunday. If there was no money to be made, the shops would not open. Clearly there is demand.

        Reply to Comment
    3. It is not surprising that an increasingly (appointed) conservative Court would apply equal protection in such a manner that a conservative ethic on Shabbat observance is likely to be enforced. But precedents take on a life of their own. This equal protection decision may latter be used to defend equal protection exapnsion elsewhere. Conflating secular irritation of closed Shabbat with the expansion of equal protection is, I think, a mistake. Tel Aviv has the option of removing or altering the Shabbat ordinance.

      Reply to Comment

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