Analysis: Is anyone listening to the Supreme Court?

Three Supreme Court justices came into the courtroom roaring like lions but left an hour later looking more like little lambs.

March 10, 2010 03:39
4 minute read.
Analysis: Is anyone listening to the Supreme Court?

judge 88. (photo credit: )


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The three Supreme Court justices came into the courtroom on Tuesday roaring like lions but left an hour later looking more like little lambs.

The issue at hand was a contempt of court petition filed by attorney Eliad Shraga on behalf of Pnina Conforty, a Jews for Jesus follower and bakery owner whose kashrut license was revoked by the Ashdod Rabbinate because of her religious beliefs.

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Conforty, represented by Shraga, petitioned the High Court of Justice against the rabbinate’s action in 2006, on the grounds that she observed the kashrut laws and was being discriminated against because of her faith.

During the hearings, the state and the Ashdod Rabbinate argued that because she was not Jewish, Conforty could not be fully trusted to observe the kashrut strictures and therefore must hire a “trustee,” a concept based on religious law (Halacha), from among her employees, to supervise the baking procedures throughout the day and make sure kashrut was observed.

In June 2009, the court rejected the state’s argument, saying that while the “trustee” was part of religious law, state law was concerned only with the “core” principles of kashrut, that is, the ingredients and the way the food was prepared. It ordered the state and the rabbinate to grant Conforty a kashrut certificate without special conditions that did not apply to Jewish bakers.

But the rabbinate did not do so. A month later, Shraga filed the contempt of court petition.

During the hearing on the petition, the state and the rabbinate maintained that Conforty would have to apply again for a kashrut certificate, since it had to be renewed annually. The justices ruled that Conforty should do as the rabbinical authorities said and that she would be given the certificate if she undertook to fulfill the standard conditions required by the rabbinate of all bakery owners. They set a new hearing date to see if the petitioners and the state had complied with their orders.

On Tuesday, the court found out from the state’s representative, attorney Hani Ofek, that rather than examine Conforty’s application, not to mention granting it, the rabbinical authorities, the Ministry of Justice and other institutions were conducting “an institutional dialogue” to find a “concrete solution” to the problem.

Ofek also hinted that the state was considering legislation that would render the court’s decision redundant.

Supreme Court Deputy President Eliezer Rivlin and Justices Ayala Procaccia and Salim Joubran were infuriated. Nine months had gone by since the court had handed down its ruling and nothing had been done, said Procaccia. If private individuals had behaved this way, they would either be in jail or heavily fined, she said, adding that it was time to consider applying the same sanctions to public officials.

It was not difficult to understand her anger. The court has been increasingly pushed into a corner by the state, which has ignored or sidestepped several key court rulings over the past few years.

Haaretz recently published a list of 12 cases, nine of them heard in the Supreme Court and three in district courts sitting as administrative courts, in which the state has not carried out, or has delayed carrying out, court rulings. The list was compiled by former deputy attorney-general Yehudit Karp.

Karp’s list did not even include the Conforty case.

As time goes on, it is becoming an increasingly well-known secret that the court cannot impose its rulings on the state, particularly in cases where there is strong opposition to the rulings by powerful elements such as the Defense Ministry, the Finance Ministry or, as in this case, the modern Orthodox and haredi establishment.

As shrill as the justices were at the beginning of the hearing, one cannot help but conclude that they were relieved when attorney Eyal Nun, representing the Ashdod Rabbinical Council, pulled a rabbit out of the hat at the last minute.

He told the court that the conditions for a kashrut certificate demanded of Conforty were identical to those of the other seven bakeries that produce their own baked goods in Ashdod. They are obliged to have “trustees” all day long and must have a kashrut supervisor five hours a day and cannot bake when he is not there.

During the three years of hearings up until the court’s ruling last June, the state never raised this argument. On the contrary, it maintained that because Conforty was not Jewish, her level of trustworthiness was lower and therefore she was required to have a trustee.

Nevertheless, as problematic as Nun’s claim was, the justices embraced it like a drowning man clinging to a life preserver. They told him that if he could produce documents to back his assertion, Conforty would have to agree to the same conditions, since they would not be discriminatory.

The Supreme Court does not investigate evidence itself or summon witnesses. If Nun provides the documents, the court will accept them unquestioningly. Perhaps it will also accept them with a degree of relief that at least this case will not be added to Karp’s list of unfulfilled rulings.

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