The government must make a prompt decision on whether to approve the Tel Aviv municipality’s plan to let certain businesses open on Shabbat, the High Court of Justice ruled Monday.
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Last week the state had asked the court to let it postpone the decision for another six months. It said the delay was necessary because Interior Minister Aryeh Dery hasn’t yet decided whether to merge Tel Aviv with Bat Yam.
The merger decision could affect the decision on Tel Aviv’s proposed bylaw, the request argued, because residents of Tel Aviv and Bat Yam have “different characteristics,” so a united city might take a different approach to “the issue of Shabbat and its character” than Tel Aviv alone would.
But Justices Miriam Naor, Esther Hayut and Daphne Barak-Erez didn’t buy this argument.
The Shabbat decision “isn’t irrevocable,” Barak-Erez pointed out. “The government could make a decision for now, and if there’s a merger with Bat Yam, the municipality could reconsider the issue of the bylaw.”
Government attorney Ran Rozenberg countered that the decision is a complex one and the cabinet is divided over it.
“That’s why it has to decide,” retorted Naor, the Supreme Court president.
Hayut added that even if the merger is approved, it isn’t expected to be completed before 2018, and there’s no reason to delay the bylaw decision until then. Tel Aviv decided to amend the bylaw back in 2014, she noted, but ever since, the issue has either been on the interior minister’s desk or in court.
“Meanwhile, we’ve replaced three interior ministers,” she continued. “The question is whether it’s reasonable for such an issue to be kept on hold until the completion of a process that will take years, at best, if it’s completed at all.”
Attorney Israel Leshem, representing the municipality, also criticized the government’s foot-dragging and the attempt to link the bylaw with the municipal merger. “This law has no impact on Bat Yam; it deals with certain neighborhoods of Tel Aviv,” he said, noting that in any case, the two cities are separated by Jaffa, where Shabbat commerce is already legal.
The claim that the merger “would require a rethinking of the whole idea of opening businesses on Shabbat in Tel Aviv is obviously baseless,” Leshem added.
The cabinet had appointed a panel of ministry directors general, headed by Director General of the Prime Minister’s Office Eli Groner, to study the bylaw and make a recommendation, but the panel couldn’t reach an agreement. Instead, it merely explained the three alternatives: approve the bylaw, which would allow 164 grocery stores and kiosks to open in specified Tel Aviv neighborhoods on Shabbat and holidays; approve the opening of a smaller number of businesses on Shabbat; or veto the bylaw and maintain a sweeping ban on Shabbat commerce in the city.
The governing coalition’s three religious parties – Shas, United Torah Judaism and Habayit Hayehudi – all favor the third option. But Deputy Attorney General Erez Kaminitz warned that a comprehensive ban might well be ruled unconstitutional.
Tel Aviv proposed the bylaw about two and a half years ago. But none of the four interior ministers who have served since then – Gideon Sa’ar, Gilad Erdan, Silvan Shalom and Dery – was willing to make a decision on it.
The issue originally reached the High Court because a group of Tel Aviv businessmen petitioned it against the city’s policy of banning all Shabbat commerce on paper but turning a blind eye to businesses that violated the law. The court agreed that this was unacceptable, telling the municipality it must either enforce its bylaws or amend them. In response, the city passed the new bylaw that now awaits the government’s approval. Meanwhile, however, the old law remains in force.
Attorney David Shoob, representing the original petitioners, also opposed the state’s request for more time, saying the current situation benefits businesses that break the law at the expense of those who obey the legal ban on Shabbat commerce.