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."
