Dei'ah veDibur - Information & Insight


Window into the Charedi World | Mordecai Plaut, director







A Legal Perspective
Attorney About the Decision to Allow Kibbutzim to Work on Shabbos: "The Entire Ruling is Mistaken"

by B. Kahn

In addition to the fundamental value perspective of the court ruling in the kibbutz Tzorah affair, which grants the legal backing to public Shabbos desecration, the ruling has a legal aspects. We asked Attorney Refoel Shtub for a legal evaluation. He replied to our questions after he reviewed a copy of the indictment and the verdict.

Q: The verdict of Justice Tivon of the Labor Court aroused a storm. From a professional and judicial view, is Tivon's verdict correct?

Shtub: "The verdict is totally mistaken, and it seems to me that the mistake is a deliberate and malicious one, and that the storm erupted because public activists rushed to the media, without having examined the facts beforehand, and without examining the content of the verdict or the indictment."

Q: And if they had examined. . .

Shtub: "There are three aspects which must be considered: the kibbutzim, the media and the judge."

Q: Let's start with the judge and the verdict.

Shtub: "The judge is either incapable of reading and understanding clauses of the law, or he has interests and a world view which lead him to make false interpretations."

Q: Can you explain your claim that either the judge isn't capable of understanding the clauses in the law, or that he is a malicious judge?

Shtub: "Clause 9a of the Work and Rest Law determines that it is prohibited to work during the weekly and mandatory rest period, unless one has received permission to do so by the Labor Minister, as stipulated by clause 12 of the law, which enables him to permit work for defense purposes, security purposes and the like. Clause 26 of the law determines that one who employs people against the law is punishable by a fine and imprisonment. However, in this case, it has become clear that the prosecutor on behalf of the Labor Minister did not attempt to accuse the violators of the law according to clause 9, even though he could have also pressed charges against a corporation for the violation of clause 9. However, for some reason, the indictment does not mention the violation of this clause."

Q: This means that the prosecutor is at fault.

Shtub: "Perhaps. Nonetheless, the indictment was made in light of a different clause, clause 9a, and the prosecuting attorney made another fundamental mistake by asking the judge to correct the indictment and to base the charges on an irrelevant clause. This is an additional mistake of the prosecutor, who appeared as the representative of the State Prosecutor."

Q: If so, where did the judge go wrong?

Shtub: "The indictment, then, was based on clause 9a of the law, which states that on the rest days determined by governmental and judicial arrangements (a different law, dating back from 1948) the owner of an enterprise is forbidden to work or to engage in commerce on rest days. Clause 7 of the Work and Rest Law determines that the weekly rest day of the Jew is Shabbos, and of the non-Jew, Shabbos or Friday, according to what is acceptable by the non-Jew.

"Clause 18, in the section which determines the rest days according to the government and judicial arrangements, states that the rest days are the Jewish holidays or the holidays of the non-Jew, according to his custom. In other words, according to clause 9, Jews are forbidden to work in their workshops, firms or factories on Shabbos, and non-Jews are forbidden to do so until they have determined another day as their day of rest.

"The indictment charges the kibbutz, a cooperative, and six of its Jewish members, with having worked in a store on Shabbos, the rest day, in violation of the law. The judge who `analyzed' the legal situation writes, in his verdict, that first of all, the charges against the kibbutz should be canceled since the kibbutz is a cooperative, and the religion or rest day of a kibbutz (i.e. a cooperative) is not known.

"We have already mentioned that the law determines that the rest day of all -- Jew and non-Jews -- is Shabbos, and only a non-Jew can determine another rest day for himself. We are referring to an association. In court, the kibbutz did not claim that its associated members are not Jews. Therefore, their rest day is known. Even if there was a doubt whether the members of the kibbutz or the accused are not Jewish, then too, their rest day is still Shabbos, until they prove that they have taken upon themselves another rest day.

"In addition, there is a fundamental legal principle that each law must be interpreted logically and in a way which grants authority to the law, not by contrivances which can cancel legal orders. This holds true also in the interpretation of penal laws. A corporation is a group of people, and the members of the corporation are obligated to rest once a week, just like other people. What would the judge do if all of the merchants in the country would run their affairs as legal corporations, such as limited companies and registered co-ops? Would he then decide that everything is permitted, and that it is possible to open businesses on Shabbos because the religion of each company and co-op is unknown?"

Q: What you really mean to say is that the judge isn't aware of the issue, and doesn't understand the logical aspect of the matter?

Shtub: "It could be that he understands, and has only tried be sophisticated. But look at what he did afterwards! This is even more serious. After the judge vindicated the kibbutz, he continued in this manner and vindicated the six members of the kibbutz who traded on Shabbos, offering cynical reasons for his verdict.

"He determined that the accused are members of a corporation, and that there is a special clause in the law regarding the members of a corporation, which speaks about the prohibition of `work' in a workshop or an industrial enterprise, but that this clause doesn't prohibit `trading.' But that's ridiculous! The reasoning is incorrect from the start. First of all, the law in its simple and regular meaning, as is obvious from all of its clauses, deals with the prohibition of work, which includes commerce, and the fact that in one place it relates to commerce separately does not indicate that commerce is not a type of work.

"Second, the law has another clause which explicitly forbids commerce and the indictment refers to this clause, which was brazenly violated by the accused of kibbutz Tzorah. And there is also another separate clause which determines an additional prohibition of work in a cooperative's factory or workshop.

"In his decision, the judge claims that since the six accused are members of a cooperative, the clause which deals with the prohibition of working in the enterprise of a corporation applies to them, and not the prohibition to do commerce. Clause 9a of the law determines that it is forbidden for an enterprise owner to do commerce in his business on the rest day, and the accused members of the kibbutz -- members of a cooperative association -- are included among the owners of the kibbutz' stores, and their working is forbidden according to the law. It is clear, then, that kibbutz openly violated the directives of clause 9a, since six workers categorically violated the directives of the clause when they worked on the rest day.

Q: What will happen if they claim that the second clause, on which the judge based his vindication, determines that a member of cooperative association is forbidden to work, but not forbidden to do commerce?

Shtub: "These are baseless claims. First of all, according to this logic, the member of a kibbutz has `immunity,' and he can work on Shabbos in a kibbutz outlet in Tel Aviv, since the judge stated that a member of a cooperative association is subject to this special legal framework. But that is ridiculous. Second, what would the judge have done if this special clause hadn't been written? Would he have returned the kibbutzniks to a regular framework like everyone else?

Q: What, then, is the motive behind this strange ruling?

Shtub: "The state belongs to the kibbutzniks. They have the lands, the money, the water, the manpower, the immigrants and the development towns which were built for their service. Take a look at the subject of canceling of the kibbutz debts. They know how to arrange legal interpretations which will guarantee that the laws of the State will benefit them only. Regarding this, we must recall that they are the only ones who managed to arrange for legislation exempting them from paying debts.

Q: And so, all this is a legal achievement of the kibbutz?

Shtub: "There is no legal achievement here. There is a secular side, made up of a media which despises the religious, and which instead of attacking an incorrect and shallow ruling, used this decision in order to further criticize the religious community and to present the kibbutzim as having been exonerated in a fundamental court case."


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