Supreme Court of Israel (Beit Ha Mishpat Ha Elyon)
- Constitutions and international law — Powers and jurisdiction of constitutional courts/supreme courts
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
1 Israel has no one document known as ‘The Constitution’, and therefore, no specific ‘Constitutional Court’. For nearly half a century, Israel’s legal structure was based on the principle of parliamentary sovereignty. But since the ‘constitutional revolution’ of the nineties—the enactment of basic laws on human rights and the monumental judicial decision of the Mizrahi Bank Case (Isr) (United Mizrahi Bank Ltd v Migdal Cooperative Village)—Israel is considered a constitutional democracy. The supreme norms are expressed in its basic laws; the powers of the legislative branch are limited; and laws are subject to judicial review. The Supreme Court is the highest court in the State of Israel, and it plays two roles: it is the court of final resort for appeals against verdicts handed down by district courts, and thus rules on civil, administrative, and criminal matters. In addition, it sits as the High Court of Justice (HCJ) and hears petitions against state authorities and other tribunals, and following the constitutional revolution in the 1990s, it has the power of judicial review of legislative norms that are inconsistent with ‘constitutional’ norms.
2 Historical reasons allowed for the creation of this administrative court that deals with citizens’ petitions against administrative authorities, in which the HCJ functions as the court of both the first and last instance. Recent decades have seen a shifting of power, mainly from elected politicians to unelected judges. The constitutional revolution and the change in the Court’s position regarding the doctrines of justiciability and standing (locus standi), the readiness of the Court to examine petitions on their merits, along with the difficulties of the political branch deciding on controversial issues, have all impacted on the role of the Supreme Court. The Supreme Court has become a dominant and effective oversight body. In this capacity, a new more expansive view of standing has proved a powerful mechanism for the Court to protect the rule of law and to ensure the legality of government authorities.
B. Historical Background
3 The Israeli judicial structure was greatly influenced by the British system, which was introduced in Palestine with the British Mandate in 1917. According to Basic Law: The Judiciary and the Courts Law, the court system comprises of three levels: magistrates’ courts (in almost every major city), six district courts and the Supreme Court. The Supreme Court is the highest court in the State of Israel and it plays two roles: it is the court of final resort for appeals against verdicts handed down by district courts and thus rules on civil, administrative and criminal matters. In addition, it sits as the High Court of Justice (HCJ) and hears petitions against state authorities and other tribunals. Fifteen judges serve on the Supreme Court, which generally hears cases in panels of three, unless the court president decides to expand the panel. Supreme Court and HCJ rulings are final, but the Courts Law offers the Supreme Court President an option to schedule another hearing (‘further hearing’) of a tried (civil, criminal or HCJ) case with an extended panel when the issue at hand might have broad public or legal implications. A further hearing is granted when a decision by the Supreme Court (sitting as Court of Appeals or sitting as the HCJ) conflicts with a prior decision, or is especially important, difficult, or novel. Over the last few years, numerous cases have been heard by expanded panels, mainly petitions to the HCJ, which raise constitutional questions. Constitutional cases are often heard by panels of up to nine, and sometimes eleven judges.
4 A criminal case may be heard as a further hearing by the Supreme Court in an extended panel, for example if the verdict deviates from a previous decision, or if it may have broad consequences. One interesting example of a further hearing in a criminal case, is the case decided in 2000 dealing with the question whether Israel may hold Lebanese citizens in administrative detention for them to serve as a ‘bargaining chip’ in the negotiation to release prisoners or missing Israeli soldiers (Does (Plonim) v Minister of Defense). In the first hearing, by a three-judge panel, the Supreme Court held (by a majority) that Israel may hold the petitioners in administrative detention. Due to the importance of such a decision, a criminal further hearing was granted, and this time, a panel of nine judges (with a majority of six judges, three dissenting) overturned the previous decision and ruled that there is no authority to detain a person who doesn’t himself pose a threat to national security.
5 Another possibility that exists only in criminal cases, allows for a retrial. The President of the Supreme Court may order a retrial of a criminal case, usually to be conducted in the magistrates’ court. A retrial is rare, and this exceptional procedure is granted, for example, when new evidence has been found—which did not exist at the time of the trial and may help prove the innocence of the convicted.
6 The HCJ resulted from an historical, accidental, and unplanned process that created an unusual situation, in which certain complaints (administrative grievances of individuals harmed by government authorities) are filed directly with the Supreme Court. During the British Mandate, the lower courts (magistrates’ and district courts) were presided over by local judges, Jews or Arabs, while the Supreme Court was exclusively presided over by a British judge. The policy was that local judges should handle ordinary civil and criminal issues, but disputes that pertained to the Mandate authorities should be heard, from beginning to end, by three judges from the Supreme Court where at least one of them was always British. Thus, it was determined that the Supreme Court should address administrative disputes. Only one Jewish judge—Gad Frumkin—sat in the Supreme Court in the Mandate period.
7 After Israel was established, this structure was no longer needed, but the judicial situation did not change as the newly founded state decided to keep the Mandate’s administrative and legal structures in place. Accordingly, the HCJ kept operating as it had done previously, only presided over by Israeli judges. The first five judges in the Supreme Court were male and Jews. The first woman, Miriam Ben-Porat, was appointed to the Supreme Court in 1977, almost 30 years after its establishment.
8 Soon the Supreme Court, mainly sitting as the HCJ, became central to the development of justice and basic principles of democracy. HCJ procedures differ from other courts. It does not hear oral testimonies nor does it question witnesses. Its hearings are meant to provide an immediate remedy. According to Basic Law: The Judiciary, the HCJ may extend ‘relief for the sake of justice’ in every matter that is outside the jurisdiction of all other courts. The HCJ is explicitly authorized to issue habeas corpus and mandamus, ban orders of lawful holders of public positions, and even issue orders to other courts and to other bodies and individuals with judicial or semi-judicial powers. The boundaries of the HCJ’s powers are broadly and vaguely defined, and the fact that it is easily accessible and its proceedings are simple and quick, has turned the HCJ into the forum of main redress for civilians who feel offended by government action. Complaints against the government are filed directly with the HCJ, which serves as the first, last, and only instance of judicial review. Thus, when a citizen feels harmed by or has a grievance in relation to the government, he or she goes directly to the highest judicial body in the state. This is an almost entirely unique situation from a comparative perspective.
9 Since the very early days of the State of Israel, HCJ judges have extensively applied the ‘relief for the sake of justice’ section, expanding the scope of their control of state authorities. The first human rights cases in the HCJ followed from the Israeli decision, after the establishment of the State in 1948, to keep British Mandate legislation entirely in place. Some of these Mandatory laws granted the government extensive powers to abridge human rights. It is, therefore, not surprising that many human rights related verdicts from the early 1950s addressed the use of powers that followed from Mandatory orders. In the 1951 Shayeb affair (Shayeb v The Defence Minister) the petitioner claimed that the Defence Minister would not let him practise his profession as teacher due to his political views, arguing that the minister’s decision conflicted with ‘the principle of the rule of law’ and violated his freedom of occupation. Shayeb argued that only laws may restrict basic liberties and since there is no law that makes a person’s ability to work and make a living conditional upon his political views, the authorities may not restrict his freedom to find employment as a teacher. The HCJ ruled that even if a citizen holds misguided and wrong views, his life and blood are not forfeit, his occupation may not be restricted, nor should he be harassed, if only administratively. This judicial norm, which has often been repeated in HCJ rulings, means that human rights may not be denied or restricted by a cabinet member or other civil servants only because they believe, even if correctly, that this could benefit the state. It is worth remembering that this rule was established soon after the State of Israel was founded, when the executive was still extremely powerful.
10 Another example of this approach is the famous case of Kol Ha’am v Minister of Interior whose verdict laid the foundations of the freedom of speech principle in Israel’s constitutional law. The Interior Minister decided to close for ten days a newspaper named Kol Ha’am (‘The People’s Voice’) that published a series of articles against government policies. A 1919 Mandatory Press Order was the source of the minister’s prerogative to close a newspaper ‘if it published material that is likely to threaten public order’. The newspaper appealed to the HCJ and the Court reversed the Minister’s decision. Justice Agranat, future Supreme Court President, stated that the minister’s decision did not adequately consider the status of freedom of expression in Israel. The Court deduced the existence of this liberty from the Declaration of Independence, stating that, even if not legally binding, laws should be interpreted in the spirit of protecting this right. Examining the 1919 Press Order, it narrowly interpreted the word ‘likely’ to mean ‘imminent probability’ and not merely a ‘bad tendency’. The Court further adopted a rule that applies to every administrative authority, namely, that human rights may only be harmed by the power of an explicit legal authorization.
11 In the absence of a constitution in the early stages, it was the HCJ that created, by virtue of judicial interpretation, a ‘judicial bill of rights’: a collection of human and civil rights that have been recognized by the HCJ. Long before the enactment of Basic Law: Human Dignity and Liberty, the rights set out in the basic law were recognized by the HCJ, without them having any normative basis. Kol Ha’am is a nice example of the protection of freedom of speech.
12 In the same way, the HCJ recognized the right of every citizen to dignity and privacy. In 1979 (Katlan v Prison Services), the Court was asked to rule on whether the Prisons Service could order that an enema be performed on a prisoner against his will to recover drugs. The law allowed this violation of bodily integrity, but the Court established that in Israel, every person has the right to maintain his dignity and bodily integrity and that this right applies to everyone, including prisoners and detainees. Performing an enema on a prisoner—against his will and not for medical purposes—violates this right. This method was therefore declared illegal.
13 Even though it was not possible at the time to strike down a law limiting human rights, because of the absence of a constitution, the HCJ preferred an interpretation of the law that is consistent with human rights. Therefore, using presumptive and interpretative rules, human rights were protected by the HCJ. The presumption that the legislature did not intend to violate human rights; the principle that a statute should be interpreted in such a way as to best protect human rights and the rule according to which administrative authorities may not limit human rights unless specifically authorized by statute, were the tools that helped create this ‘judicial bill of rights’.
14 It should be mentioned that the legal status of human rights changed dramatically in 1992 upon the introduction of two basic laws dealing with human rights, which restricted the Knesset’s ability to violate them. These two basic laws granted constitutional status to human rights such as freedom of occupation; the right to preserve a life (right to life), human dignity (dignity and autonomy of individuals), and bodily integrity; right to property; freedom from detention, arrest, and extradition; free movement in and out of Israel (freedom of movement); and the right to privacy. The Knesset’s ability to harm these human rights today is restricted and following the constitutional revolution, which will be discussed further on, a law that violates human rights in a manner inconsistent with the limitation clause is an unconstitutional law, and therefore the Court may declare it null and void. This is the root of the constitutional change. The key change is not the rights or their extent of coverage—because as we have seen human rights had previously been endorsed by the Supreme Court and acknowledged as ‘judicial’ rights—but the new power of judicial review.
15 Trends in HCJ’s decisions in recent years indicate that, at least from the judges’ point of view, the Court’s jurisdiction has no boundaries. For example, the HCJ has increased its involvement in internal Knesset affairs, political questions and military decisions, and has expanded the application of constitutional rules (such as the equality principle) to bodies that are not government agencies, including government-owned companies or semi-public bodies. In 1991, the HCJ stated it is ‘unreasonable’ to appoint a person who committed grave crimes as a ministry director general. This ruling was based on the idea that ‘a civil servant is the public’s trustee’ (Eisenberg v Minister of Construction and Housing) which later served as grounds for determining that coalition agreements must be made public (Shalit v MK Peres et al). In 1981, the HCJ addressed a petition against the Knesset speaker who decided to change the date of a no confidence vote, allegedly violating the Knesset Rules of Procedure (Sarid v The Knesset Speaker). In this case, dealing the pros and cons of court intervention in parliamentary proceedings, the HCJ established that there should be ‘balance’ between two principles: the fact that the House working procedures are its own concern and the principle of the rule of law. The outcome of this decision is a judicial test that allows for judicial intervention in the inner affairs of the House that measures ‘the extent of harm to the parliamentary work life and the extent of the impact it has on the foundations of the structure of our constitutional regime’.
16 There is almost no record of the HCJ ever rejecting petitions because it was not authorized to discuss the issues raised in them. When it does reject petitions or refers them to another court, it does so only after exercising its discretion and stating that it does so because it would rather employ a cautious approach and self-restraint, despite having the power to discuss the issue.
17 Sitting both as the Supreme Court in appeal cases or as the HCJ, judges write individually signed opinions, setting out the result and underlying its reasoning. In general, there is a leading opinion for the majority, but there is no ‘opinion of the Court’ as such. Each participating judge will either note that she or he concurs in the leading opinion or write a separate one. It is not unusual for most or all of the judges to write separately, even when they agree as to the outcome of the case.
C. Judicial Review of Legislation
18 Until the early 1990s the Knesset passed several basic laws dealing with the Israeli institutional branches, but it failed to introduce a basic law that would anchor a bill of human rights. Clearly, in the absence of such a formal charter, the HCJ’s ability to protect human rights was limited, due to its inability to invalidate primary legislation that infringed human rights. Although several draft proposals for a basic law on human rights were submitted, none of them successfully traversed all the legislative stages. The reasons for this varied, but the most prominent of these derived from the perennial dispute over the Jewish nature of the State of Israel, which invariably came to the fore in discussions concerning equality, and freedom of conscience and religion or belief.
19 In March 1992, the Knesset adopted two basic laws on human rights: Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty, which included a ‘limitation clause’, similar to that included in the Canadian Constitution. According to this clause, a ‘regular’ law that ‘violates’ a human right expressed in the basic law is valid only if it satisfies the cumulative conditions of the limitation clause, namely: ‘There shall be no infringement of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.’
20 This clause introduced an innovation in Israeli legislation by establishing a ‘substantive entrenchment’ or ‘substantive limitation’. Therefore, a restriction of the human rights protected by the basic laws may only be imposed for worthy purposes and only if it satisfies the principle of proportionality. The real meaning of this provision, however, still remained to be seen. Both basic laws provided the requisite normative framework for instituting judicial review of Knesset legislation. The Court’s willingness to add the missing link of judicial review and to confer upon it its full constitutional weight was a natural and perhaps even necessary development of the Court’s jurisprudence—a development that remains controversial to this day. This entire development, which culminated in the Mizrahi Bank ruling (Mizrahi Bank v Migdal Cooperative Village), became known as ‘the constitutional revolution’. In this case, the appellants argued that a new law infringed their right to property as guaranteed by Basic Law: Human Dignity and Liberty, and failed to meet the conditions of its limitation clause.
21 A special nine-judge panel broached the broader issue of the normative status of basic laws in Israel and the impact of the new basic laws upon the legal system. The Supreme Court, however, went a few steps further. In ruling that the Knesset has constituent authority and that it exercises that authority whenever it enacts a basic law, it recognized the supreme constitutional status of all basic laws, which at once became Israel’s Constitution. The Court’s endorsement of judicial review is based upon the American tradition that recognizes the Court’s authority for judicial review even without explicit constitutional framing. Therefore the Mizrahi Bank case may be seen as Israel’s version of the Marbury v Madison Case (US), where the US Supreme Court recognized its authority to judicially review laws enacted by Congress despite the absence of any authorization to do so in the American Constitution. According to President Barak, writing what actually became the ‘majority’ opinion: ‘this was the central contribution of American constitutional concepts to the universal constitutional concept’ (Mizrahi Bankat 443). Barak’s approach—whereby the Israeli legal tradition, as in many other democracies, requires that an extra-parliamentary body, in the form of the court, rules on the limitations imposed on the Knesset (the Israeli Parliament) by basic laws—has been the prevailing approach in Israel since 1995. However, this view is the subject of a lively and often acrimonious political and public debate and has been severely criticized by the Knesset and in academia. As a result perhaps, the annulment of laws by the Supreme Court is particularly restrained.
22 The procedures for judicial review of laws are not anchored in statute. Like the American model of judicial review, Israel has a posteriori judicial review, and rulings are not based on abstract issues of law but on specific problems raised by litigants. Individuals have a right to challenge the constitutionality of any restriction of their rights. Direct petitions may be private—protesting the violation of a personal right, or public—where the petitioner represents a group and argues that harm has been suffered by an entire population sector. Initially, the HCJ would not acknowledge actio popularis petitions, but attempts were made in the early 1980s to persuade the Court to adjudicate ‘public’ issues. Subsequently, the Court expanded the scope of its judicial review and eventually accepted actio popularis petitions. The HCJ has no filtering procedure and conducts no abstract judicial review. It should be mentioned again that there is no legal authority allowing for judicial review of legislation, and this follows from the decision in the Mizrahi Bank case. It is generally accepted that the only court authorized to nullify laws is the Supreme Court sitting as the HCJ, although indirect judicial review is theoretically possible also, in the absence of provisions to the contrary. This, however, has only happened once, when a magistrates’ court judge invalidated a section of the Income Tax Ordinance (Hendelman v State of Israel). This was the only (and exceptional) case of indirect judicial review by a magistrates’ court. The case was heard in the nineties, never appealed to the Supreme Court, and seems irrelevant today as for the last 20 years, petitions requesting judicial review are brought before the HCJ, and are discussed by an extended panel of nine or eleven judges. With respect to the decision and remedies, the Court may strike down the law or certain articles in it. Sometimes, after concluding that a certain law is unconstitutional, the HCJ ‘suspends nullification’, which postpones the verdict’s application. This remedy prevents the formation of a ‘legislative vacuum’ and gives the Knesset time to introduce a different legal arrangement.
23 The Supreme Court sitting as the HCJ has nullified some 13 laws (mainly specific sections) over the past 21 years, all following judicial rulings that these laws disproportionately impaired human rights deriving from the basic laws. The annulment of laws by the Supreme Court is particularly restrained, and though many petitions for judicial review have been filed, most of these petitions have been dismissed. For example, in 2009 a panel of nine judges headed by President Dorit Beinish declared (by a majority of eight judges) that the amendment to the Prisons Ordinance, which permitted the establishment of private prisons in Israel, seriously violates protected human rights (Academic Center of Law and Business v Minister of Finance). The Court stated that the transfer of authority for managing prisons from the state to a private contractor whose aim is monetary profit would severely violate the prisoners’ basic human rights to dignity and freedom.
D. The Judges
24 Fifteen judges currently serve on the Supreme Court. Over the years, the number of judges went up from seven when the Court was founded (although only five judges served then) to 15 in 2012.
25 Judges for all courts, including for the Supreme Court, are selected by a Judges’ Appointment Committee, appointed by the President of the State, and serve until they reach the age of 70. The Appointment Committee represents the concept of ‘the combination of powers’—a notion of ‘checks and balances’—rather than the separation of powers. The Committee comprises nine members: five of whom are not part of the political system (namely, three HCJ judges, including the President and the Vice President, and two representatives of the Israeli Bar Association, elected by the Bar Association commissions) and four politicians (two members of the Knesset selected by the Knesset, and two cabinet members, including the Minister of Justice, who serves as the Committee Chairperson). The three judges include the President of the Court and are generally selected according to the principle of seniority. Thus, the Committee represents all three branches of government. A candidate for appointment as a judge must be selected by the majority of the Committee members (that is, at least five) and a Supreme Court candidate must secure the vote of at least seven Committee members (selection of judges at constitutional courts / supreme courts).
26 In fact, past experience has shown that, thanks to its unique composition, the Committee makes decisions that have been, at least in the past, generally free of political considerations, and, in the main, appoints judges who are both of high professional standards and free of political bias. Presently, Israel’s Supreme Court judges are not appointed as sector representatives, although while evaluating a candidate’s personal data, the Committee considers the ‘reflection principle’, which means that it intends for the bulk of Israeli judges to reflect (or represent) Israeli society as much as possible. In the last years, Supreme Court judge selections perhaps do not rule out completely some political consideration, but still, over the years, Israeli legal tradition and culture ensured that the Supreme Court judges came to represent, though not perfectly, the Israeli legal community. Most of them had served as district court judges before assuming the high post, while others came from the State Attorney’s Office (having served as Legal Advisors to the Government or State Attorneys), and two had been private lawyers. Over the years, law professors (from different fields of law) have also served as judges, but to a lesser extent. In that respect, the current (2016) bench now comprises 15 judges, only one of whom is a law professor (recently appointed). This fact is particularly questionable given that the Court is not only an appeals court but also Israel’s constitutional court.
27 In the last years some bills have been proposed, aimed at changing the composition of the Election Committee to reinforce the ‘political’ powers within it, but none of them has passed. The Knesset attempted to intervene in the election of the President of the Court. It should be noted that Supreme Court Presidents are nominated according to their seniority. Traditionally, there was no election process and the Committee simply approved the nomination of the next judge in order of seniority. A 2009 law restricted this method, stating that only judges with at least three years of tenure remaining may be elected president. When President Dorit Beinisch retired, she was to be succeeded by Justice Miriam Naor, but the Knesset introduced a law in 2012 that removed the restriction in order to guarantee that Justice Asher Grunis assumed the post (although he had less than three years of his tenure left to serve). Also, the custom followed for years, according to which the two members of the Knesset reflect both the coalition and the opposition in the Knesset, is not firmly kept. It is still early to assess whether political consideration will influence the Appointment Committee, especially taking into account that following a new rule, introduced in 2008, Supreme Court Judges should be elected by seven out of nine members.
E. Standing and Justiciability
28 No ordinary or basic law prescribes preconditions that must be met before the HCJ can exercise its powers. Traditionally, however, the HCJ made the threshold requirement of ‘standing’ a precondition for hearing a petition. Thus, only petitioners who were personally affected by a government act could file an appeal against it with the HCJ. Gradually, particularly since the 1980s, the HCJ has become more amenable when a public issue is deemed important, and has been willing to intervene even if the appellant has showed no personal damage. This inevitably led to the creation of numerous public associations that file petitions with the HCJ whenever anything appears wrong to them. This trend has impacted on Israeli society. Despite the fact that the HCJ did not have powers to oversee all government and legislative decisions granted by the constitution, the public and NGO’s have used the Court to obtain public policy decisions that could not be obtained through any other means.
29 One example of this phenomenon is the exemption from military service granted, on grounds of religion, to orthodox students, a question that has been the subject of ongoing social and political debate, since the establishment of the State of Israel in 1948. Since the early years of the State, the Minister of Defence had the discretion to exempt male ultra-Orthodox Jews who, upon reaching recruitment age, are full time students at a religious institution (a Yeshiva). The first exemptions for Yeshiva students were of a small scale, but over the years, when the number of exemptions kept rising, attempts were made to convince the Court to rule on the legality of these exemptions. The first petitions were dismissed on grounds of standing, and the Court stated more than once that the question of whether to enlist Yeshiva students is primarily a ‘public’ question. In 1986, after the Supreme Court recognized the possibility of an actio popularis, a new petition was filed. In this case (Ressler v Minister of Defence) the Court ruled that the legality of military exemptions was a ‘legal’ question, a justiciable question, but the case was dismissed on the merits. In the nineties the Knesset passed a law (known as the Tal Law) allowing for this exception. In the Tal Law case (Movement for Government Quality v The Knesset) petitioners argued that the law violated the principle of equality. The petition was rejected, mainly because the Knesset passed the law as a temporary provision. Indeed, most petitions against temporary provisions have been rejected. The Court has refrained from declaring them unconstitutional, because it recognizes the proportionality entailed in their temporality. Nevertheless, when a temporary provision is extended again and again as was the case of the Tal Law, the Court did not hesitate to invalidate it. Following a new petition filed in 2012 (Ressler v The Knesset) the HCJ eventually decided to nullify the Tal Law because it disproportionately harmed the right to equality. A new law was enacted concerning this exception, its constitutionality still pending and to be decided by the HCJ.
30 The new doctrines of standing and justiciability, which are more tolerant of ‘public’ action, allowed for public petitioners and NGOs to present the Court with questions of human rights, Palestinians’ rights and minority rights. These were the issues that political institutions were quite unable to resolve, if not reluctant to deal with at all. This broad view of standing proved to be a powerful mechanism for the Court to protect the rule of law and the legality of government. This phenomenon gradually enhanced and strengthened the Court’s position as a key political player, which may be seen as creating a new balance of power between the branches of the State.
31 Since the 1980s, the Court’s new approach has opened up to judicial review questions that used to be regarded as non-justiciable, as we have seen in the exemption from military service granted to Yeshiva students. The HCJ has increased its involvement in internal Knesset affairs, political questions, military decisions, and has expanded the application of constitutional rules (such as the equality principle) to bodies that are not government agencies, including government-owned companies or semi-public bodies. HCJ decrees and verdicts are obeyed by all governmental bodies and public authorities. This is evident from the fact that it is very unusual for contempt of court sentences to be issued against such bodies. Nonetheless, some decisions are fiercely discussed in the public arena, also by politicians.
32 Presently, the political aspect of any action is irrelevant and the Court’s mission is to preserve the rule of law by ensuring that all branches of government act within their law boundaries. Although the political nature of an act does not cancel out its legal nature, the legal nature of the executing body does impact on the nature of the rules applied by the Court. Acting within its own discretion, the Supreme Court may or may not intervene in political questions. The result is that the Court confirms decisions by government authorities after examining them on their merits. Thus, it is occasionally regarded as the body that grants the final ‘approval’ of political decisions. Clearly, this lays the ground for, and offers an incentive to, filing appeals against almost every political decision, which is one of the most notable shortcomings of this approach.
33 Although the Supreme Court is always reluctant to judicially review sensitive political questions, they are justiciable in Israel and anyone can challenge them in court. This is one of the reasons why the Supreme Court of Israel has been considered, at least for the past two decades, a very activist court.
F. Judicial Activism
34 The Israeli Supreme Court is known for its activism. Having operated without a constitutional framework since the State of Israel was founded, it has developed numerous tools for intervention in government decisions over the years, expanding the rules of justiciability up to the point where the Court has, in many respects, turned into a supervising and criticizing authority.
35 In the early years, still under the influence of the British tradition, Israeli constitutional reasoning was typically formalistic. The written word was of paramount importance and solutions for legal issues were mostly found in the texts of laws. The Court adhered to the strict separation of powers, particularly in its relationship with the Knesset. The absence of a formal, written constitution prevented the judicial review of laws, which left the Court with a merely interpretative role. Nonetheless, the HCJ became a central defender of democratic values very early on. In view of this, the Supreme Court’s significant contribution to the protection of human rights is perhaps the most prominent and unique feature of Israel’s Supreme Court. Acting as the HCJ, the Supreme Court undertook to defend those rights and created what was to be known as the ‘judicial bill of rights’—a set of human rights acknowledged and protected by HCJ verdicts—which, by virtue of stare decisis, have turned into binding legal norms in Israel. In this sense, it is important to recognize that rights protection has arisen from the decisions of the Supreme Court.
36 The traditional, formalistic approach began changing in the mid-1980s as these arguments lost power and value-based arguments and considerations gained ground gradually but steadily, following the profound cultural and political changes that took place in Israel from the late 1970s onwards. Israel came under the direct influence of US culture in the 1970s and 1980s, and social values such as individualism and liberalism started to have an impact on the world of law as well. Since the 1980s, Israeli legal education has been greatly Americanized. US law became more influential. This American influence was eventually reflected in academic papers authored in Israel and in the adjudication of the HCJ. A new style of reasoning evolved, addressing the laws’ normative meaning. The earlier formalistic application of the law to the facts of each case was replaced by attempts to find balance between conflicting values. The purpose of the norm, not its language, became paramount. Concepts such as ‘the purpose of the law’, ‘the spirit of the law’ and ‘the legislator’s intention’ replaced the dry legislative letter. Judges started indulging in more creativity in their judicial activities, feeling free to seek creative solutions in an attempt to attain just, moral and value-based judicial results. Social processes further influenced the HCJ’s willingness to intervene in areas that the judiciary ordinarily does not address. The HCJ expanded the scope of its intervention and even criticized the values and acts of public position holders. Thus, HCJ rulings started shaping policies and even determining general norms.
37 There are many and diverse examples of Israeli activist adjudication. Particularly prominent were cases that sought the enforcement of ethical norms in relation to public officials, mainly in the 1990s. In terms of comparative law, the HCJ’s intervention in issues such as public ethics, government culture and proper administration is quite unique. For example, the Court ordered the Prime Minister to dismiss a minister who had been formally charged, although he was under no legal obligation to do so (The Movement for Government Quality in Israel v Israel’s Government).
38 Furthermore, the HCJ’s willingness to control internal Knesset proceedings is also almost unique (and may be compared with the Spanish Constitutional Court’s approach), considering that many other comparative judicial systems are of the view that parliamentary activities and resolutions are not to be questioned by the courts. Over the past few years, the Court has stated that judicial review of internal parliamentary proceedings is not so different from judicial review of general administrative decisions. For example, the HCJ was prepared to examine the propriety of legislative procedures in the Knesset in the Poultry Growers case, (Poultry Growers Association of Israel Ltd v Government of Israel) which dealt with the fast track legislative procedures of a special law that accompanies the Budget Law. In this case, the Court established basic principles for the legislative process, violation of which would comprise ‘a fundamental defect in the process’ leading to the annulment of the law. Nevertheless, de facto intervention in internal parliamentary proceedings remained a rarity, as the Court intervened in only a few cases since the 1980s. The Court still maintains a distinction between intervening in Knesset acts and the work of other administrative authorities, but when they make semi-judicial resolutions, the Court’s intervention is considered normal.
39 Many scholars have argued that the Israeli Supreme Court was extremely activist in the 1980s and 1990s and sharp debate over the issue of judicial activism was and still is conducted in Israel.
What Barak created out of whole cloth was a degree of judicial power undreamed of even by our most aggressive Supreme Court justices … A court can forbid the government to appoint an official who had committed a crime … or is otherwise ethically challenged and can order the dismissal of a cabinet minister because he faces criminal proceedings; that in the name of ‘human dignity’ a court can compel the government to alleviate homelessness and poverty; and that a court can countermand military orders, decide ‘whether to prevent the release of a terrorist within the framework of a political ‘package deal’’, and direct the government to move the security wall that keeps suicide bombers from entering Israel from the West Bank … In Barak’s conception of the separation of powers, the judicial power is unlimited (Posner).
41 Members of academia and the public have criticized the Court’s role in shaping norms and intervening in the performance of other government authorities. It has been argued that the Court imposes its values on the political system, intensifying public antagonism against, and damaging the public’s trust in, the judiciary. Critics of the Court rejected its willingness to examine every issue on its merits, based on the standards of reasonableness and proportionality. They have argued that judges should not deal with legislation, which should be reserved as the domain of elected parliamentarians, and that some of the Court’s rulings were completely illegitimate.
42 The Supreme Court has been particularly criticized by politicians, although the fact that the political system would not make final decisions on topical issues served as a catalyst for the multitude of petitions filed with the HCJ by and on behalf of Members of the Knesset, which reflects the weakness of the political culture and bolstered the position of the Court. The dominance of the Court has resulted in a phenomenon called the ‘judicialization of politics’ or the ‘constitutionalization of public life’. It seems that in Israel, almost every political decision involves the Court.
43 In fact, the claim that Israel’s public life has undergone ‘judicialization’ is, in my view, unfounded. Most of the key social decisions are still made by political institutions and not by the Supreme Court, although the latter is sometimes forced to engage in issues that the legislature avoided. In certain respects, the Court’s very willingness to intervene weakens the political body it reviews. Though theoretically this willingness applies to a wide range of issues, reality has shown that the Court has actually intervened very little and Israeli politics are still conducted within government corridors. When addressing Knesset internal affairs, the Court feels authorized to intervene, but rarely does so. It would seem that the general impression that the Court ‘interferes in everything’ is a mere myth.
44 The same applies to judicial activism. The Supreme Court appeared activist when it overruled the decisions of other authorities, but alleging that it was actually engaged in activism would require a thorough inspection of its adjudication patterns, and no such study has been conducted. It is true that the Court is willing to examine every issue presented before it on its merits, but a detailed examination of its judicial control of government activities shows that it has almost always in practice confirmed government decisions, expansively citing reasonableness, which has left the government with almost unlimited discretion. Most petitions filed on such matters were dismissed accordingly.
45 The constitutional revolution and the change in the Supreme Court’s position regarding the doctrines of justiciability and standing, the readiness of the Court to examine petitions on their merits, along with the difficulties of the political branch deciding on controversial issues, have all impacted on the role of the Israeli Supreme Court. It has become a dominant and effective oversight body. By way of contrast, the Knesset has remained largely silent on constitutional matters, leaving the task of completing the human rights revolution almost entirely to the Supreme Court. The dominance of the Court has been strongly criticized by politicians as well as the media and members of academia, who argue that the outcome is that judges undermine the legitimacy of decisions made by democratically elected politicians. In recent years, several bills have been tabled aiming at limiting the Court’s powers, but none of them has been adopted. The debate over judicial activism is still very much alive in Israel but this impression of judicial activism may be rather deceptive. Most of the key social decisions are still made by political institutions and not by courts. The judiciary is sometimes forced to engage in issues that were avoided by the legislature, mainly issues dealing, for example, with the relations between State and religion, and minority rights. The well-known case of Kaadan v ILA may illustrate this point.
46 The Kaadancase concerned the legality of the manner in which the Israel Land Authority allocated lands for an exclusively Jewish settlement. An Israeli Palestinian wished to purchase a house or a residential plot in the Katzir communal settlement, which was built on lands that the ILA had assigned to the Jewish Agency, which in turn assigned plots only to Jews. When the plaintiff’s request was rejected by the Jewish Agency, he turned to the HCJ. The Court accepted the petition and established that the State has a constitutional duty to uphold the equality principle in the allocation of public goods. For the first time ever, the Court determined that the State may not directly or indirectly discriminate between candidates for government land allocations due to their national or religious identities. In principle, the HCJ refused to acknowledge this case as an instance of the ‘separate but equal’ policy. Referring to the rationale behind the famous case of Brown v Board of Education of Topeka Case (US),it stated that such a policy is inequitable by nature due to the majority seeking the separation. It therefore ordered the State to ‘reconsider’ the plaintiff’s request to purchase a plot and build a home in Katzir on the basis of the equality principle.
47 From a legal standpoint, the Kaadancase deals with the abolition of a discriminatory phenomenon, but it must also be read politically, as it revealed the disturbing fact that since the establishment of the State of Israel, plots have been allocated almost exclusively to Jews. A decision to allocate lands for the construction of a new Arab settlement was made only recently. In 2012, the Knesset introduced the Admittance Committees Law, a reaction to the decision in the Kaadan case, which created a way for some communal and rural Jewish settlements to refuse settlement candidates because, among other things, ‘they do not match the social-cultural fabric’. Clearly introduced to counter the Kaadan verdict, this law in practice legalized screening processes that had been practised in those settlements primarily to refuse the entry of Israeli Arabs. A petition filed against this law, was dismissed by the HCJ.
48 To conclude, the Court perhaps appears activist because it is ready to hear and deal with every petition, but, in practice, it frequently confirms decisions made by governmental bodies. One of the most effective ways of dismissing political petitions has been the flexible application of reasonableness and proportionality, which has left the government with almost unlimited discretion. Indeed, the Supreme Court has a crucial role within Israel’s constitutional law, but the argument that it has become an alternative government seems exaggerated. Detailed examinations of its decisions show that most petitions filed on political matters are dismissed.
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- Brown v Board of Education of Topeka 347 US 483, 74 SCt 686 (1954) (US).
- HCJ 144/50 Shayeb v the Defence Minister ver 5(1) 399  (Isr).
- HCJ 73/53 ‘Kol Ha’am’ v Minister of Home Affairs ver 7(2) 871  (Isr).
- HCJ 98/69 Bergman v Minister of Finance ver 23(1) 693  (Isr).
- HCJ 355/79 Katlan v Prison Services 34(3) PD 294  (Isr).
- HCJ 652/81 Sarid v Knesset Speaker ver 36(2) 197  (Isr).
- HCJ 910/86 Ressler v Minister of Defence ver 42(2) 441  (Isr).
- HCJ 1601/90 Shalit v MK Peres et al ver 44(3) 404  (Isr).
- HCJ 6136/92 Eisenberg v Minister of Construction and Housing 472 ver 229  (Isr).
- HCJ 3094/93 Movement for Quality Government v Government of Israel ver 47(5) 722  (Isr).
- HCJ 1843/93 Pinhasi v Knesset ver 49(1) 661  (Isr).
- HCJ 4541/94 Miller v Minister of Defense ver 49(4) 94  (Isr).
- CA 6821/93 Mizrahi Bank v Migdal ver 49(4) 221  (Isr).
- HCJ 4676/94 Mitrael v Knesset ver 47(5) 97  (Isr).
- HCJ 3267/97 Rubinstein v Minister of Defense ver 52(5) 481  (Isr).
- HCJ 5100/94 Public Committee against Torture in Israel v Government of Israel ver 56(4) 817  (Isr).
- FH 7048/97 Does (Plonim) v Minister of Defense ver 53(1) 721  (Isr).
- HCJ 6698/95 Ka’adan v Israel Lands Administration Authority ver 54(1) 258  (Isr).
- HCJ 11280/02 Central Election Committee v Tibi (sixteenth Knesset) ver 57(4) 1  (Isr).
- DC/TA 70597/04 Hendelman v State of Israel  (Isr).
- HCJ 4885/03 Poultry Growers Association v Government of Israel ver 59(2) 14  (Isr).
- HCJ 5261/04 Fuks v Prime Minister ver 59(2) 446  (Isr).
- HCJ 11163/03 Supreme Monitoring Committee for Arabs Affair v Prime Minister (27 February 2006) (Isr).
- HCJ 6427/02 Movement for Government Quality v The Knesset, ver 61(1), 619  (Isr).
- HCJ 11298/03 Movement for Quality Government v Knesset Committee ver 59(5) 865  (Isr).
- HCJ 11225/03 Bishara v Attorney General, Tak-El 2006 (1) 1398  (Isr).
- HCJ 7052/03 Adalah v Minister of Home Affairs ver 51(2) 202  (Isr).
- HCJ 769/02 Public Committee against Torture in Israel v Government of Israel ver 72(1) 507  (Isr).
- HCJ 2605/05 Academic Center for Law and Business v Minister of Finance 19 November 2009  (Isr).
- HCJ 4908/10 Bar-On v Knesset (7 April 2011) (Isr).
- HCJ 6298/07 Ressler v The Knesset (21 February 2012) (Isr).
- Marbury v Madison 5 US 137  (US).