¹ For previous discussions see Hausner, G., “Individuals' Rights in the Courts of Israel”, International Lawyers' Convention in Israel (Jerusalem, 1957) 201Google Scholar; B. Akzin, “Problems of Constitutional and Administrative Law”, ibid., 161; Englard, J., “The Relationship Between Religion and State in Israel”, 16 Scripta Hierosolymitana, 254Google Scholar.

² Ziv v. Gubernik (1948) 1 P.E. 33.

³ Ibid. To the same effect Kol Ha'am v. Minister of the Interior (1953) 7 P.D. 871; 1 S.J. 90.

⁴ Perets v. Kfar Shmaryahu Local Council (1962) 16 P.D. 2101.

⁵ Ibid.

⁶ Shmuel v. A.G. (1964) vol. 3, 18 P.D. 452, 471.

⁷ Aksel v. Mayor of Netanya (1954) 8 P.D. 1524.

⁸ Ibid., 1531.

⁹ Fredi v. Municipality of Tel Aviv (1956) 10 P.D. 734.

¹⁰ Lazarovitch v. The Food Controller (1956) 10 P.D. 40.

¹¹ Klau v. Mayor of Bat Yam (1966) vol. 2, 20 P.D. 327.

¹² Ratof Ltd. v. Minister of Commerce (1963) 17 P.D. 2730, 2732.

¹³ Lazarovitch v. The Food Controller, ubi supra, 55–56.

¹⁴ League for Prevention of Religious Coercion v. Council of Jerusalem Municipality (1962) 16 P.D. 2655.

¹⁵ Ibid., 2688.

¹⁶ Young, , Corps de Droit Ottoman (Oxford, 1925) vol. 1, viiet seqGoogle Scholar.

¹⁷ A recognized community is one recognized as a “nation” (millet); see Young, op. cit., 3–9, 114 et seq. Cf. Chigier, M., “The Rabbinical Courts in the State of Israel” (1967) 2 Is. L.R. 147Google Scholar.

¹⁸ The British Administration extended the powers of the Rabbinical Courts and conferred upon them administrative authority in matters affecting charities established before them, this also in accordance with sec. 9 of the Mandate. This section, however, did not render obligatory the vesting of exclusive jurisdiction in the courts of the religious communities but prescribed that “respect for the personal status of the various peoples and communities and for their religious interests shall be fully guaranteed”.

¹⁹ Rosenblum v. Rosenblum (1953) 7 P.D. 1037, 1048. See also A. v. B. (1965) vol. 2, 19 P.D. 404, 418. See also Goadby, F., International and Inter-Religious Private Law in Palestine (Jerusalem, 1926), 115Google Scholar; Vitta, E. H., Conflict of Laws in Matters of Personal Status in Palestine (Jerusalem, 1947), 1–8Google Scholar.

²⁰ The recognized communities include the Eastern (Orthodox), Latin (Catholic), Gregorian Armenian, Armenian Catholic, Syrian (Catholic), Chaldean (Uniate), Greek Catholic Melkite, Maronite and Syrian Orthodox. As to the Jewish and Druze communities, see pp. 391Google Scholar and 399 infra.

²¹ See arts. 53 and 54 of the Palestine Order in Council, 1922.

²² The connection between the renunciation of the Captitulations and the special status bestowed upon foreign nationals can be inferred from the original definition of a foreign citizen in art. 59 of the Palestine Order in Council, which included only nationals of the “civilized” countries of Europe and of America and Japan. The definition was repealed only as late as 1935 and a foreign national defined as one who is not a Palestinian citizen.

²³ For this purpose a foreign national does not include a person without nationality; see A. v. B., supra. The Supreme Court protested against the difficulties created in this situation; S. v. S. (1957) 11 P.D. 921, and considered that art. 64(1) of the Palestine Order in Council left a door open to confer power upon the District Court of annulling marriages by means of a special Ordinance enacted for that purpose.

²⁴ Yosifof v. A.G. (1951) 5 P.D. 481, 490; 2 S.J. 174, 183. It appears that apart from such arrangements in respect of marriage, the Mandatory Government did not comply with the prohibition of discrimination for religious reasons, as stated in art. 15 of the Mandate.

²⁵ Of all the matters of personal status, Mandatory law regulated only those of succession and charities for such persons.

²⁶ There are in Israel religious communities which are not recognized and therefore no jurisdiction exists over their members—Anglicans, Church of Scotland, Protestant-Lutherans, Unitarians, Baptists, Quakers and Bahai.

²⁷ e.g., the member s of Agudat Israel in the Mandatory period. But the right to marry was apparently granted under personal law, see p. 391 infra.

²⁸ See p. 391 infra.

²⁹ On the other hand, matters of maintenance, which had been partly under exclusive jurisdiction, were taken away, and the option was given to the woman to proceed in the Rabbinical or civil court as she wished.

³⁰ The internal organization of this community was regulated by the Ordinances of the Sultan in 1875 and thereafter by a series of Ordinances, the last being the Orthodox Patriarchate Ordinance, 1941, which never came into force because the bill was not published as required.

³¹ Saruji v. Minister of Religious Affairs (1963) 17 P.D. 188.

³² The only exception relates to the internal organization of the Greek Orthodox Community, see n. 30 supra.

³³ Vitta, cit., 113. For such an inquiry see The Executive Committee of the Second Arab Orthodox Congress v. Archbishop Keladian (1920–33) 1 P.L.R. 679.

^33a Gedai v. Chief Execution Officer (1955) 9 P.D. 135.

³⁴ Colbi, S., Short History of Christianity in the Holy Land (Jerusalem, 1965) 56Google Scholar.

³⁵ Nor did the appeal of Agudat Israel to the Mandates Commission yield any results.

³⁶ Rokeah v. Lod District Commissioner (1943) A.L.R. 191; Merkaz Agudat Israel v. Chief Government Secretary (1942) 9 P.L.R. 572; Committee of Ashkenazi Community v. Governor of Jerusalem District (1942) 9 P.L.R. 715.

³⁷ Bergman v. Silverman (1940) S.D.C. 729.

³⁸ Yair v. State of Israel (1965) vol. 3, 19 P.D. 402.

³⁹ Ya'ir v. State of Israel, supra.

⁴⁰ Regulations for the Elections to the Chief Rabbinate Council, 1963.

⁴¹ See the Regulations prescribing the system of electing nominees for the Chief Rabbinate Council, the Rabbinate Offices and the Community Rabbis, 1936 (Gazette of 9.4.1936). The arrangement laid down in these Regulations was adopted by the Minister of Religious Affairs in his own Regulations.

⁴² Hahevra Hadromit Ltd v. Chief Rabbinate Council (1964) vol. 2, 18 P.D. 324.

⁴³ Yair v. State of Israel, ubi supra.

⁴⁴ Jewish Religious Services Budgets (Amendment) Law, 1965Google Scholar.

⁴⁵ From this also the conclusion follows that in kashrut matters the Rabbinate does not at present possess statutory authority. Hence, there is serious doubt whether it is subject to control by the High Court of Justice in these matters, as was decided in the Hahevra Hadromit case, ubi supra. Under the Observance of Kashrut in Places of Business, Shehita and Goods Bill, 1963, the Rabbinate would have clear statutory authority.

⁴⁶ “The status of the Chief Rabbinate Council and the Power of Review of the High Court of Justice” (1965) 22 HaPraklit, 68Google Scholar.

⁴⁷ Ibid., 80.

⁴⁸ See n. 42.

⁴⁹ The declaration takes effect under art. 74 of the Palestine Order in Council, 1922.

⁵⁰ Federman v. District Commissioner (1920–33) 1 P.L.R. 57, 60.

⁵¹ Thus for maintenance, see Dagani v. Weingarten (1962) 16 P.D. 2898; Zukerman v. Zukerman (1962) 16 P.D. 1781. The practice cannot be based on the Order of 1921, since that refers to “the Government of Palestine” and not to the Palestine courts or law.

⁵² “Who is a Jew?”, Encounter, May, 1965Google Scholar.

⁵³ As against this, Dr. Englard advances the argument that “if the State has already recognized a higher halachic institution, it can no longer be its concern to enquire whether such institution has exceeded the powers conferred upon it by normative rules that are beyond the realm of the State. In other words, the aforementioned religious outlook does not consider that the Chief Rabbinate has unlimited powers within the framework of the halacha but contends for primacy as against the secular State régime.” Loc. cit., 70. In my view, there is a contradiction between this outlook and the halacha being part of the Israeli law (in matters of the personal status of Jews) which is construed by the secular courts.

⁵⁴ The Chief Rabbinate Council has authority in the appointment of dayanim and the election of municipal rabbis.

⁵⁵ The Chief Rabbis are also dayanim ex officio; sec. 4 of the Dayanim Law, 1955. They also act virtute officii as presidents of the Rabbinical Grand Court of Appeal in order prescribed by sec. 8 (a) of this Law (as amended in 1965).

⁵⁶ Streit v. Chief Rabbi of Israel (1964) vol. 1, 18 P.D. 598.

⁵⁷ Ibid., 641. Dr. Englard disagrees with this approach in his article, ubi supra, 75, note 3: “Are the Chief Rabbis indeed the proper authority to weigh secular considerations so as to issue decisions likely to contradict what one of them had ruled as president of the Rabbinical Grand Court of Appeal. In my view, one should not assume that the legislature intended to compel the Chief Rabbis to decide contrary to halachic principles and in opposition to a halachic ruling made with the participation of one of them.”

⁵⁸ Streit v. Chief Rabbi of Israel, ubi supra.

⁵⁹ Journal of the Fifth Knesset, 3rd Session, vol. 36, p. 1608 ff.

⁶⁰ Albaz v. Minister of Religious Affairs (1964) vol. 4, 18 P.D. 603.

⁶¹ The present state of the burial services has been severely criticized: Journal of the Fifth Knesset, 2nd Session, vol. 36 p. 1085Google Scholar; see also ibid., vol. 35, p. 445.

⁶² Moslems do not have a recognized religious leader but in the Druze community there is such, Sheikh Amin Trif, president of the Druze Religious Council.

⁶³ Marshall v. Graham [1907] 2 K.B. 112, 126.

⁶⁴ “There is no doubt that the freedom of conscience also includes freedom of religion”, per Silberg J. in Yosifof v. A.G., ubi supra, 496—185, 191; “The freedom of conscience means the freedom to live according to the dictates of religion”, per Landau J., ibid, at p. 493, 188.

⁶⁵ Milkam v. Sharia Judge of Akko (1954) 8 P.D. 910, 913; see also the Yosifof case, ubi supra, 492, 496. It is proper to note that this principle cannot from its very nature apply in respect of imposing restrictions for religious reasons, which is the freedom from religion. Consequently, I disagree with all respect with Sussman J. in the League. for the Prevention of Religious Coercion v. Jerusalem Council, ubi supra, 2668, who rejected the argument that the prohibition of traffic along part of a Jerusalem thoroughfare does not comprise religious coercion “since the petitioner is not forced by the Order to do anything contrary to his religious outlook”.

⁶⁶ Reynolds v. United States (1878) 98 U.S. 145.

⁶⁷ Hamilton v. Regents (1934) 293 U.S. 245.

⁶⁸ The Yosifof case, ubi supra, 499, 195.

⁶⁹ Ibid. Silberg J. employed this reason to justify the special arrangement of the bigamy laws in regard to Jews under sec. 181 (now repealed) of the Criminal Code Ordinance. But, with all respect, the prohibition of discrimination as among religions and communities, laid down by art. 17 of the Palestine Order in Council, is not subject to exception for the sake of preserving public order.

⁷⁰ See p. 381 supra.

⁷¹ The public discussions that have recently arisen with regard to the denial of places of worship to non-orthodox communities affect private institutions in point of law, such as the Bnei Brith, Z.O.A. House, Wizo. In one case, however, as reported in the newspapers, a mayor exerted pressure on a municipal employee not to allow prayers in a non-orthodox version at his home which served as a place of worship.

⁷² “It is a major principle in our legal system not to punish a person in any manner or form for any opinion that he may maintain or express. Sec. 149, as one exception, refers not to the opinion as such but to the form of expression…. We are enjoined … to keep a proper balance between two great principles, freedom of expression of opinion, on the one hand, and avoiding to hurt another's feelings, on the other hand.” Per Attorney-General Ben-Zeev, cited with approval by Sussman J. in Wagner v. A.G. (1964) vol. 2, 18 P.D. 29, 30.

⁷³ At least, this is the case of Rokeah v. Lod District Commissioner, ubi supra.

⁷⁴ The Yosifof case, ubi supra, 498, 195.

⁷⁵ Ibid., 495, 190.

⁷⁶ This decision is open to appeal, as related at p. 398, supra.

⁷⁷ “Every candidate must possess two qualities–personally he must be religious or at least not anti-religious; publicly he must represent a body or community with a ‘religious interest’”; per Berinson J. in Albaz v. Minister oj Religious Affairs, ubi supra, 610. “Personal suitability does not connote only a religious and moral sense but general suitability to carry out the stated public task”, per Berinson J. in Ziloniles-Yaari v. Minister of Religious Affairs (1965) Vol. 1, 19 P.D. 517, 521.

⁷⁸ The Perets case, ubi supra, 2101.

⁷⁹ Loc. cit., 201, 212.

⁸⁰ Kurland, , “Of State and Church, and the Supreme Court” (1961) 29 U. Chi. L.R. 1, 96Google Scholar.

⁸¹ The Yosifof case, ubi supra, 496, 191.

⁸² As Landau J. did, ibid., 494.

⁸³ Rufeisen v. Minister of Interior (1962) 16 P.D. 2428, 2446. Hence in his opinion, “a Jew who regards himself as non-religious discharges his duty to register his religion under the Registration of Inhabitants Ordinance, 1949, by so declaring to the registering officer.”

⁸⁴ Gorfinkle v. Minister of the Interior (1963) 17 P.D. 2018.

⁸⁵ The Yosifof case, ubi supra, 493, 187, per Landau J.

⁸⁶ Ibid., 496, 191.

⁸⁷ See Chief Justice Warren's decision in McGowan v. Maryland (1961) 366 U.S. 420, where the religious origin of Sunday Closing Laws is admitted, but nevertheless, it is held that the laws, as presently drawn and administered, have the entirely secular purpose of establishing a uniform day of rest and recreation for a maximum number of people. See also, Arlans Dept. Store v. Kentucky (1962) 371 U.S. 218.

⁸⁸ It is at least doubtful whether this argument can be sustained. On the other hand, it may be said that the exclusive jurisdiction given to the Rabbinical courts will create an unbridgeable gap between Israel and the large non-orthodox communities abroad and Jews in Israel who are not recognized as such by the Rabbinical Courts. Cf. Englard, op. cit., at p. 273.

⁸⁹ Thus, the prohibition against the sale of pork has been considered not merely as a religious tenet, but as having a “religious-national” meaning. See Silberg J.'s dissenting opinion in Lubin v. Tel Aviv Municipality (1958) 12 P.D. 1041. Moreover, it is sometimes claimed that because of the special nature of Judaism, the ordinary concepts of religious freedom are not applicable in Israel. The Supreme Court, however, invoked American and Canadian precedents when dealing with this topic.

⁹⁰ As a result of the differences between the municipalities and the local councils, a local council may apparently forbid traffic on a day of rest; see e.g. sec. 3 (a) Nahal Sorek (Opening and Closing of Business) By-laws, 1955, which prescribes that “on days of rest … no one may travel and permit another to travel in a vehicle for purposes of work.” The power of the municipalities, on the other hand, is limited to the closing of businesses and the like and does not apply to the maintenance of services. The Netanya Municipal Council has purported to enact a municipal by-law forbidding public transport on the Sabbath but it has not received the approval of the Ministry of the Interior because it is ultra vires.

⁹¹ All local by-laws are subject to the prohibition of religious discrimination, incorporated both in the Mandate and the Palestine Order in Council, 1922; tee A.G. v. Altshuler (1920–33) 1 P.L.R. 283.

⁹² See p. 382, supra.

⁹³ In one instance, the Government attempted to operate the Law against a Christian monastery where pigs were raised. After diplomatic intervention, the Government retracted, but legally speaking the Law applies also to Christian religious institutions.

⁹⁴ “Possession” means possession for a short period and even for the purpose of transporting pigs to an area where they may be raised: Silber v. Haifa Municipal Council (1962) 16 P.D. 1160; see also Halon v. National Inspector (1964) vol. 4, 18 P.D. 903.

⁹⁵ Reg. 5 of the Prohibition of Pig Raising (Seizure and Destruction) Regulations, 1963, directs that the inspector shall order the destruction of pigs by burning, burial, drowning, use as animal food in zoos and use at scientific and research institutions for experimental, teaching and research purposes. In fact pigs are destroyed by shooting.

⁹⁶ See p. 382 supra. It is proper to add that in respect of the grant of a shehita permit by the local council under the by-laws, Sussman J. expressed doubts whether local authorities may prescribe in the permit that it is confined to kasher or non-kasher shehita: David v. Mayor of Lod (1963) 17 P.D. 1040.

⁹⁷ Akzin, op. cit., at p. 181.

⁹⁸ Rufeisen v. Minister of Interior, ubi supra. But in this case, as in other cases of this sort, the applicant could become a citizen by naturalization.

⁹⁹ (1960) 16 HaPraklit 101Google Scholar.

¹⁰⁰ The Ministry did not recognize the applicant's claim to automatic citizenship, but decided that it was not legally possible to revoke her citizenship, even if acquired by mistake.