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Colonial Cases

Attorney General v. Altschuler, 1928

[sabbath laws]

Attorney General v. Altschuler

and

Cohen v. Glickson

Supreme Court, Palestine
1928
Source: The Palestine Bulletin, 10 February 1928

 

SABBATH OBSERVANCE ORDINANCE ILLEGAL, SAYS JAFFA COURT.

Jaffa. - The District Court on Wednesday heard the appeal of Mr. Altschuler, a storeekeeper of Tel Aviv, against the Tel Aviv Municipal Court which sentenced him to a L.P. 2 fine for violating the Township's Ordinance regarding the observance of the Sabbath.  The Court upheld the appeal agreeing with Mr. Altshculer who argued that the Tel Aviv Ordinance was illegal because it establishes a principle of discrimination for forbidding Sabbath trade to Jews only, which principle is opposed to Article 15 of the Palestine Mandate (the article in question reads as follows: No discrimination of any kind shall be made between the inhabitants of Palestine on the ground of race, religion or language.)

   The Public Prosecutor and Dr. Eliash who appeared on behalf of the Attorney General argued that every Municipality was entitled to issue ordinances tending to secure order in the town, and there was no "discrimination" at all.  They cited Article 23 of the Mandate saying that "The Administration of Palestine" shall recognise the Holy Days of the respective communities in Palestine as legal days of rest for the members of such communities."  It is stated that an appeal will be lodged against the judgment of the Jaffa District Court.

 

The Palestine Bulletin, 23 February 1928

SEQUEL TO SABBATH OBSERVANCE CASE.

Tel Aviv. - Dr. Z. E. Cohen, the lawyer who was counsel for the defense of Mr. Altschuler and argued before the District Court that the Township Sabbath Observance Ordinance contradicts the Mandate has now been excluded by the Municipal Council from the membership of the Municipal Court to which he was elected as Honorary Judge by the Council some time go.  The Zionist-Revisionists Organisation was likewise excluded him from membership.  Dr. Cohen has asked the Lawyers' Association to hold a meeting to discuss his attitude in this case.

 

The Palestine Bulletin, 1 March 1928

GOVERNMENT APPEALS AGAINST SENTENCE IN SABBATH CASE.

   The Attorney-General has lodged an appeal with the High Court against the sentence of the Jaffa District Court whereby the Tel Aviv Sabbath Observance Ordinance is declared invalid on the ground that it is incompatible with the Palestine Mandate.

 

The Palestine Bulletin, 2 March 1928

SENSATIONAL PRESS CASE.

L.P. 1,000 Damages Claimed.

Tel Aviv. - On Wednesday the Examining Judge heard the evidence of Dr. Z. E. Cohen, the lawyer who brought the action against Dr. M. Glikson, editor of the "Haaretz" (Hebrew daily) in which articles appeared attacking Dr. Cohen for his attitude in connection with the Sabbath Observance Ordinance Case.  Dr. Cohen demanded that the offender should be tried according to Articles 11, 12, 25, 29 of the Press law as well as Article 214 of the criminal law.  He also claimed damages to the extent of L.P. 1,000.

   It will called that Dr. Cohen recently appeared before the Jaffa District Court as counsel for the defence in the case of Mr. Altschuler (who was sentenced by the Tel Aviv Court to L.P. 2 fine for infringing upon the Sabbath Observance Ordinance) and as such argued that the Sabbath ordinance contradicted the Palestine Mandate in which view the District Court concurred.

   After hearing the explanations of Dr. Glikson the Examining judge postponed his decision until Sunday next.

 

The Palestine Bulletin, 8 April 1928

HIGH COURT TO HEAR SABBATH CASE ON 16th.

   The High Court will hear on 16 April the appeal lodged by the Attorney-General against the judgment of the District Court, Jaffa, in the Sabbath observance case at Tel Aviv.

The Palestine Bulletin, 16 April 1928

TEL AVIV SABBATH CASE BEFORE SUPREME COURT.

   This morning the Supreme Court (the Chief Justice and Mr. Justice Frumkin) heard the appeal lodged by the Attorney General against the judgment of the District Court of Jaffa in the case of the shopkeeper Altschuler of Tel Aviv who had been fined for keeping his shop open on the Sabbath.  The Attorney General appeared in person and expounded the theme that the observance of the Sabbath in a purely Jewish area should be [....] legally binding ion all Jews in that area.  Judgment was reserved.

The Palestine Bulletin, 27 May 1928

HIGH COURT UPHOLDS SENTENCE IN SABBATH CASE.

   The Court of Appeal on Thursday gave its judgment in the case of the Tel Aviv Municipal Sabbath Observance Ordinance which the District Court of Jaffa declared invalid in a sentence passed several months ago.  An appeal against the sentence was lodged by the Attorney general.  The High Court dismissed the appeal and upheld the sentence of the District Court.  The Court of Appeal was composed of The Chief justice, Mr. Justice Corrie and Mr. Justice Frumkin.  The latter did not adhere to the judgment but presented a votum separatus.

 

The Palestine Bulletin, 4 June 1928

COURT OF APPEAL'S SENTENCE IN SABBATH CASE.

We give below the full text of the judgment of the Supreme Court in the Tel Aviv Sabbath case passed on the 24th May, 1928:-

In the Supreme Court sitting as a Court of Appeal.

BEFORE: - The Chief Justice, the Senior British Judge, and Mr. Justice Gad Frumkin.

IN THE CASE OF:

The Attorney General, APPELLANT,

Versus

Abraham Altschuler, RESPONDENT.

   Appeal from the judgment off the District Court of Jaffa dated 8th February, 1928, whereby the judgment of the Magistrates'' Court of Tel-Aviv dated the 23rd September 1927, was set aside, the conviction of the Respondent under Bye-Law No. 17 quashed and the said bye-law was declared to be void.

Judgment.

   In this case the respondent was charged before the Municipal Court of Tel-Aviv with a breach of Municipal Notice No. 36 and which runs as follows:

No shop other than a Restaurant and no factory shall be open on the Jewish Sabbath Day within the area of the Local Council of Tel Aviv, provided that the prohibition shall not apply to a shop or a Christian

Restaurant other than those owned by Moslems or Christians may be opened only at the following hours on the Jewish Sabbath Days; On Friday even till 8.30 p.m.  On Saturday between 120 a.m. and 2 p.m. 

Dated 1. 12. 1926 (Signed) Township of Tel Aviv.  Approved by the High Commissioner.

   The Municipal Court held that the Respondent's restaurant was opened after 8.309 p.m., on a certain Friday evening and before 10 a.m. on a certain Saturday morning.  The Court convicted the Respondent and sentenced him to pat a fine of L.E.  2 and costs.

   The matter was appealed to the District Court of Jaffa and the Court set aside the conviction on the ground that the bye-law in question was invalid, as being contrary to Article 15 of the Mandate for Palestine which lays it down that discrimination of any kind shall be made between the inhabitants of Palestine on the ground of race, religion or language.

   The Attorney general applied for and obtained leave to appeal from the judgment of the district Court of Jaffa under Section 4 of the Magistrate's Court Jurisdiction Ordinance, 1924, on the point of law whether the said bye-law is contrary to the provisions of Article 15 of the Palestine Mandate and is therefore void.  The bye-law in question owes its origin to Local Council Ordinances, 1921. Under that Ordinance an Order on page 5 of the gazette of 1st June, 1921, instituting the Township was made.  Section 3 of that Order which enables the Council to issue bye-laws for the internal administration of the Township was found to be ultra vires and in consequence there was passed Section 5 of the Local Council Amendment Ordinance No. 2 of 1921 which gave the Local Council the power with the approval of the District Commissioner to issue bye-laws for securing good order in a village or group or quarter.  The bye-law in question purports to be made under this Section, but we may observe, in passing, though the point was not take, that the necessary approval was given to it not by the District Commissioner as required by that Section but by the High Commissioner as stated at its foot.

   The first part of Article 15 of the Mandate suns as follows:

The Mandatory shall see that complete freedom of conscience and the free exercise of all forms of worship, subject only to the maintenance of public order and morals, are ensured to all.  No discrimination of any kind shall be made between the inhabitants of Palestine on the ground of race, religion or language.  No person shall be excluded from Palestine on the sole ground of his religious belief.

   The Attorney General addressed to us an argument to the effect that Article 17 (a) of the Palestine Order-in-Council, 1922, as amended by Article 3 of the Order-in-Council, 1923, provides that no ordinance shall be promulgated which shall tend to discriminate in any way between the inhabitants of Palestine on the ground of race, religion or language, and that Article 17 (1) (c) provides that no Ordinance shall be promulgated which shall be in any way repugnant to or inconsistent with the provisions of the Mandate, the implication being that legislative enactments other than

      Ordinances were not to be subject to this restriction.

   We cannot for one moment listen to this argument which would enable the legislature by making provision for such enactments being made by sublimate legislation completely to stultify an express provision in the very instrument to which it owes its existence.

   The Attorney General; cited to us Section 12 of the Palestine Legislative Council Election Order, 1922, and the Municipal Franchise Order, 1926,  as instances of legislation dealing with different religious communities which he suggested might be impugned on the same ground as is the present bye-law.

   On the contrary we hold that in each of these cases special care has been taken to see that there should not be discrimination on the grounds of religion. 

   In Article 12 of the Palestrina Legislative Council Election Order, 1922, there is provision for separate electoral colleges for Moslems, Christians and Jews, but the very same Article goes on to provide that electors who do not belong to the Moslem, Christian and (sic) Jewish community shall opt for any electoral college in their area.  Again, Section 7 (3)(c) of the Municipal Franchise Ordinance, 1926, witch provides for separate registers for the members of different communities contains an express that a person who is not a member of one of the three communities of Moslems, Christians or Jews shall elect upon which register he shall be placed.

    Finally, the Attorney general cited the Religious Communities Organisations Ordinance, 1926, under which any religious community in Palestine may apply   to the High Commissioner in Executive Council to make regulations for its organisation as a religious community and its recognition by the Government of Palestine.

   We cannot agree that an ordinance such as this which enables any religious community to set the ball in motion by a mere application can be held to contain in it a germ of discrimination such as the Mandate prohibits.

    The bye-law on the other hand limits the freedom of action on the Jewish Sabbath of shop, restaurant and factory owners not merely of they are Jews but if they are not Moslems or Christians so that, as pointed out to the Attorney General, a Druze or Bahai shopkeeper comes within the prohibition.

    Can it be said that because the bye-law in question makes a distinction in favour of the minority (and the non-Jews are very small minority in Tel-Aviv) that there is not therefore a discrimination against the majority.  A distinction is drawn between Moslems, Jews and Christians on the one hand and persons of any different belief or of no belief on the other hand, and we cannot see how to hold otherwise than that it is just as much discrimination whether the majority suffers as it is when a minority is discriminated against.

   Even if there was not this express limitation imported from the Mandate article 125 (1)(c) of the Palestine Order-in-Council we should be compelled to hold the bye-law unreasonable on the ground laid down in Russell, CJ, in Kruse v. Johnston (1898) 2 QB at page 99, where, speaking of bye-laws made by a county council, he said:

I do not mean to say that there may not be cases in which it would be the duty of the Court to  condemn  bye-laws, made under such authority as these  are made,  as invalid because unreasonable. But unreasonable in what sense?  If, for instance, they are found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as did find no justification for them in the minds of reasonable men, the Court might well say, "Parliament never intended to give such authority to make such [.............] unreasonable and ultra vires."

  The bye-law under review is clearly partial, and [ ......] its operation as between different classes,  and hence it is, in the words of the judgment just quoted, "unreasonable and ultra vires."

   This disposes of the only question upon which leave to appeal has been granted.

     It should however, be pointed out that even if the bye-law had been so framed  as not to discriminate between the inhabitants on the ground of religion, there would still remain grave doubt as to its validity.

   The legislative power of the Local Council is restricted to the issue of bye-laws" for securing good order"; and in view of decisions of the English Courts in similar cases, it would seem difficult to maintain that a bye-law of the kind under consideration is made for securing good order.

   The appeal must be dismissed and the judgment of the District Court confirmed.

   Delivered this 24th day of May, 1928.

   (sgd.) Senior British Judge.  (Sgd) Chief Justice.

 

DISSENTING JUDGMENT OF FRUMKIN J.

   I concur in the judgment of my learned Brethren in that "Ordinance" in Article 17 (1) (a) and (c) of the Palestine Order-in-Council, is meant to include all sorts of enactments made by subordinate legislature as well as Ordinances proper.

   I do, however, dissent from that part of the judgment declaring that Municipal bye-law No. 17, of the Local Council of Tel-Aviv made discrimination between the inhabitants of Palestine on the ground of religion and was therefore invalid as being contrary to Section 15 of the Mandate.

   I am drawing a line between "discrimination" and "privileges" exceptionally granted, on grounds of religion.  The main feature of discrimination is to deprive a certain class of inhabitants from rights granted to, or to being such class under duties and obligations not imposed upon the public at large.  Generally, although not necessarily, minorities are the subject of discrimination, and as a rule we find a difference of religion or race between the ruler and the people discriminated against.  On the other hand, when a law is made to be binding on the public at large, but for reason or other, a certain class is exempt from the operation of such law on the ground of religious belief, that would be a privilege exceptionally granted to it on the ground of its religion and in no way would it be a discrimination against the public at large.  Thus when at Public Examinations held in England candidates of the Jewish Faith are allowed to take at another time subjects set on Fridays after sunset or on Saturdays, a concession not granted to candidates of other Faiths, it is a privilege exceptionally granted to the former on the ground of their religion, and no one would suggest that by that rule, Christian candidates are discriminated against on the ground of the religion.

   When we come to the bye-law at issue, we could not consider it without having regard to the circumstances and conditions of the locality for which it was ruled.

   The Township of Tel Aviv is, if not one hundred per cent, nevertheless a Jewish locality.  The Official census of 1922 shows that Jews constituted over 99 per cent of the population, Moslems about ½ per cent, and Christens less than ½ per cent (or in exact figures: 15.065 - Jews; 78 - Moslems; and 42 Christians).  There is nothing to show that the proportion has since been changed.

   As to the Sabbath, it must be emphasised that the Sabbath Day for the Jewish People is more than an ordinary day of rest.  It forms not only an inseparable part of the Jewish religion, but is a fundamental institution of the national integrity of the People, and it has rightly been said that more then Israel observed the Sabbath, the Sabbath kept Israel alive.  To my mind it is quite natural and in no way unreasonable that with the views to securing good order in this purely Jewish locality, provisions were made to prohibit individuals from hurting public feeling and disturbing peace by publicly breaking the Sabbath.

   The difficulty of this bye-law would appear to be due to the fact that whether out of respect to other religions, or out of hospitality and tolerance towards non-Jewish resident in Tel Aviv or perhaps for no good reason at all, the Local Council did not impose that dirty of observing the Sabbath Day upon members of other religions, or rather upon Moslems and Christians only as mentioned in the bye-law.  This is a privilege granted to Moslems and Christians on the ground of their respective religions, so that they should not have to close on the Jewish Sabbath Day in addition to their own day of rest, and not a discrimination against the Jewish inhabitants on the ground of their religion.

   Moreover there would be no discrimination without intention or tendency to discriminate.  Article 17 (1) (a) of the Palestine Order-in-Council, in introducing the proviso of Article 15 of the Mandate as to that point, into the Legislation of the country, provides that "no Ordinance shall be promulgated ... etc. ... which shall TEND to discriminate in any way between the inhabitants of Palestine on the ground of race, religion or language."  I cannot see my way to say that a body composed exclusively of Jewish members, elected almost solely by Jews, TENDED to discriminate against Jewish inhabitants on the ground of their religion to the advantage of an almost non-existent minority.

   Finally it would not be amiss to mention that the party aggrieved has never taken the view that the bye-law is discriminating against him on the ground of his religion as a Jew.  He stated before us that he instructed his counsel to appeal to the District Court on a point of fact only.  Of course we cannot listen to such a statement at this stage.  But even counsel did not base his appeal on the ground of discrimination, and laid stress on another part of Article 15 of the Mandate, namely, that the bye-law is ultra vires as interfering with freedom of conscience.  This point, however, is not before us.

   In my opinion the appeal should be allowed and the case remitted to the District Court for decision on the merits.

   Delivered in absence this 24th day of May, 1928.

Judge of Supreme Court.                                           

The Palestine Bulletin, 5 June 1928

TEL AVIV, June 5 (P.T.A.)

   The Municipality has decided to appeal against the Court of Appeal's judgment in the Sabbath case to the Privy Council in London.

 

The Palestine Bulletin, 28 May 1928

EDITOR'S TRIAL.

Echo of the Sabbath Case.

Tel Aviv. - Dr. Z. E. Cohen, the local lawyer, had been granted permission to bring again an action against Dr. M. Glikson, the editor of the "Haaretz" whom he charged with publishing insulting and harmful articles against him in connection with his attitude in the Sabbath case.  It is said that Mr. J. E. F. Campbell, the District Commissioner, will now examine the case in his capacity as Magistrate.  A few months ago the case was examined for the first time by Dr. Nofach, the Magistrate judge, who dismissed the charge.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School