From a rogue MK to Haredi subsidies, 8 times High Court struck down laws, decisions

As the coalition moves to radically constrain the top court’s capacity to thwart legislation and decisions it considers undemocratic, here’s a look at some of its key interventions

By JEREMY SHARON, TOI      30 January 2023,

Prime Minister Benjamin Netanyahu (right) with Supreme Court President Justice Esther Hayut at a memorial service marking 22 years since the assassination of Yitzhak Rabin held at Mount Herzl cemetery in Jerusalem, November 1, 2017. (Marc Israel Sellem/POOL)

The government’s proposals to radically overhaul the legal and judicial system have generated intense political tensions and a fervid opposition movement since they were announced earlier this month.

Among the most controversial aspects of the proposals are amendments to the Basic Law: Judiciary that would severely limit the High Court of Justice’s power of judicial review over legislation, and allow the Knesset to re-legislate laws if the court strikes them down.

The proposals would also annul the High Court’s ability to use the test of “reasonableness,” which it has used to reverse government and administrative decisions on the grounds that not all relevant considerations were taken into account or given appropriate weight when the decision was made.

In a highly controversial decision just this month, the principle of reasonableness was used by the High Court to invalidate the appointment of Shas leader Aryeh Deri as interior and health minister, although five of the eleven justices also invoked the principle of estoppel which, they argued, was another reason why he must be removed from office.

Proponents of the legal shakeup say the measures are necessary to restore the capacity of the Knesset and government to legislate, govern, and implement policies in accordance with the mandate they received in general elections.

Opponents counter that the far-reaching reforms will remove almost all checks to legislative power and severely danger individual rights, especially those of minorities.

Left: Chief Justice Esther Hayut arrives for a court hearing at the Supreme Court in Jerusalem, January 5, 2023. (Yonatan Sindel/Flash90); right: Justice Minister Yariv Levin at a Law Justice and Constitution Committee meeting at the Knesset in Jerusalem, January 11, 2023. (Yonatan Sindel/Flash90)
In particular, they charge that the proposals all but remove the High Court of Justice’s ability to strike down legislation, giving the Knesset, and by extension the government which controls it, the ability to abrogate rights laid out in a set of 13 quasi-constitutional Basic Laws.

And they say that removing the test of reasonableness from the court’s toolbox does away with a vital mechanism with which it has redressed matters of key importance, from religious rights to the protection from rocket fire from Gaza for schoolchildren.

Justice Minister Yariv Levin and others in the government retort that these are arenas in which the court has untenably superseded the power of the executive and legislature and suppressed the will of the democratically elected majority.

Detailed below are eight instances in which the High Court and Supreme Court has struck down or amended part of a law, or reversed a government decision based on the test of reasonableness.

These cases include legislation providing for the indefinite detention of asylum seekers and migrants, the cancellation of child care subsidies for Haredi families, the legalization of unauthorized West Bank settlements and government policy for rocket protection in the Gaza border region.

The Supreme Court and the High Court of Justice consist of the same bench of 15 justices. The Supreme Court serves as the highest court of appeal, while the High Court exercises judicial review over Knesset legislation and administrative decisions after being petitioned on such matters.

In total, since 1997 the court has struck down 22 pieces of legislation, or legislative sub-clauses, although it has reversed a much larger number of administrative decisions.

Some of the rulings listed have been cited by advocates of the government’s proposed judicial changes as examples of how the court has, they argue, exceeded its authority, intruded in areas of policy that should be under the purview of the executive or legislature, and reflected a dominant liberal-left wing perspective of many of its justices over the years.

Other rulings laid out here have been used by opponents of the legal overhaul to demonstrate how the court has upheld key civil and human rights, including the rights of minorities, in the face of what they claim is otherwise unrestrained executive and legislative power.

Protesters rally against the government’s judicial reform plan at Habima Square in Tel Aviv, on January 7, 2023 (Avshalom Sassoni/Flash90)

Legislation amended or struck down in part by the High Court

The Gaza Disengagement Law, passed in February 2005

Residents and municipal authorities of the Gush Katif settlements in Gaza petitioned the High Court against the law passed by the Knesset under the government of then-prime minister Ariel Sharon to carry out the government’s plan to withdraw Israel’s military and civilian presence in the territory.

The petitioners claimed that the forcible evacuation of settlers from the territory violated their property rights and their right to dignity and liberty, and that the security benefits of the measure were doubtful.

An 11-justice panel of the High Court headed by then-Supreme Court chief justice Aharon Barak rejected the petition 10 to 1. Although the court acknowledged the evacuation would violate the property rights of the settlers and their right to human dignity, it ruled that this violation was proportionate in the damage it did to those rights and permitted under the limitation clause of Basic Law: Human Dignity and Liberty.

“We have come to the conclusion that against the background of the proper compensation guaranteed by law… and against the background of the temporary nature of the belligerent occupation [of Gaza], the violation of the rights of the evacuated Israelis meets the requirements of the limitation clause,” wrote the 10 justices in the majority opinion.

The court also rejected the claims of the petitioners that the Disengagement Law violated the values of the State of Israel.

“In Israel, the sovereign is the people. The people chose the Knesset… The people speaks through its representatives, and the representatives speak through their legislation. A Knesset law, including the disengagement implementation law, is an expression of this aspect of Israeli democracy,” the court wrote.

The court did, however, broaden eligibility for the compensation offered by the state to the settlers being evacuated, and insisted that residents under 21 also be provided with compensation. In 2013, the court increased compensation payments to some 500 evacuees whose homes were undervalued by the state.

Parliamentary immunity for MK Azmi Bishara, 2006

In 2003, the Central Elections Committee (CEC) banned prominent Arab Israeli MK Azmi Bishara, the leader of the Balad party, from running for Knesset due to speeches he gave in Israel and in Syria in 2000 and 2001 calling for Arab countries to support “resistance” to Israel and expressing backing for the Hezbollah terror militia.

The CEC banned Bishara since his ostensible support for armed resistance to Israel violated a clause in the Basic Law: The Knesset prohibiting support for armed struggle against the state.

The Supreme Court overturned this decision on appeal, however, on the grounds that it was not convinced the petitioner had expressed support specifically for “an armed struggle of a terrorist organization against the State of Israel,” as distinct from simply expressing more general support for a terrorist organization.

Bishara, who was re-elected to the Knesset in 2003, was also indicted on criminal charges of supporting a terror organization after the Knesset removed his parliamentary immunity.

He appealed to the High Court against this process, arguing that his comments were protected from prosecution due to this immunity and because those comments related to “purely political issues.”

Barak ruled in a 2 to 1 decision that the court was again not convinced that Bishara’s comments amounted to support specifically for armed struggle and that stripping him of his immunity was incommensurate with the terms of Basic Law: The Knesset.

Barak wrote that although Bishara’s comments nevertheless violated the law banning support for a terrorist organization, “they were uttered by the petitioner in the course of carrying out his duties, and for the purpose of carrying out his duties, as a member of the Knesset,” meaning that his parliamentary immunity should therefore protect him from prosecution.

“We should protect and defend the ability of members of the Knesset to carry out their duties without fear and trepidation… This protection is essential for the existence of basic political freedoms. It is essential for the existence of Israeli democracy,” wrote Barak.

Bishara subsequently fled Israel in April 2007 after a police investigation found strong evidence that the MK had collaborated with Hezbollah, passed intelligence information to the terror group during the Second Lebanon War, and was likely guilty of treason and espionage for an enemy entity.

The anti-infiltration law against asylum seekers and migrants, 2013

In 2012, under a government led by Netanyahu, the Knesset passed an amendment to the 1954 anti-infiltration law that allowed the state to detain asylum seekers and migrants for a minimum of three years, some of them indefinitely.

African migrants protest at the Holot detention center near Ktsiot, in the Negev Desert, southern Israel, February 17, 2014. (FLASH90)

The law was a response to the approximately 55,000 African asylum seekers and migrants who arrived in the country from the mid-2000s till 2012, many of whom ended up in south Tel Aviv where residents complained bitterly of a deterioration in the quality of life in their neighborhoods.

The government argued the law was necessary in order to stem the incoming flow of these Africans, who it claimed were altering the fabric of Israeli society.

An extended panel of nine justices, headed by then Supreme Court president Asher Grunis, annulled the provisions of the amendment in a unanimous ruling that asserted that the prolonged detention of the asylum seekers and migrants violated Basic Law: Human Dignity and Liberty and disproportionately violated their right to freedom.

“Harming the right to liberty is one of the harshest injuries one can think of. Revoking the liberty of infiltrators by putting them in prison for an extended period is a fatal and disproportionate blow to their rights, bodies, and souls,” wrote Justice Edna Arbel, who authored the majority position.

“We cannot revoke basic and fundamental rights and at the same time flagrantly harm the dignity and liberty of a person in the framework of a solution to a problem which requires an appropriate and systemic policy solution,” she wrote.

The Knesset subsequently passed two amended versions of the anti-infiltration law, both of which the High Court ordered be moderated so as to reduce the injury to the liberty of the asylum seekers and migrants.

Denial of income support benefits from individuals owning a vehicle, 2014

In 2004, Salah Hassan and five single mothers petitioned the High Court against a policy inherent in the Income Support Law precluding an individual who owned a vehicle from receiving income support payments from the National Insurance Institute, on the presumption that anyone owning a vehicle had sufficient income so as not to need the income support benefit.

Hassan had sought an exemption, which was denied, to the policy since he needed his car to transport his blind daughter and did not want to forgo the income support benefit he was entitled to at that time.
And the single-mother petitioners were bearing alone the burden of supporting and caring for young children. In some cases these mothers needed their cars to get to work due to a lack of adequate public transportation options, or for the purposes of taking care of their children, some of whom suffered from various disabilities and illnesses.

The High Court ruled that the section of the legislation stipulating the policy in question violated the right to a dignified human existence as set out in Basic Law: Human Dignity and Liberty and therefore declared it void, since it established a blanket rule regarding vehicle ownership without bearing in mind the specific circumstances of those seeking the income support benefit.

“This is an extremely serious violation of the core of the right of someone who, in any case, is at the bottom of the socioeconomic ladder and needs the benefit as the last safety net against starvation and poverty,” wrote then Supreme Court president Dorit Beinisch.

The Settlements Regulation Law, 2020

In 2017, the Knesset under another Netanyahu-led government passed a law allowing the state to expropriate private Palestinian land upon which some 4,000 illegal settlement homes had been built.

The law was designed to legalize those settlements and prevent future demolitions of settlements built on private Palestinian land.

Several rights groups petitioned the High Court on behalf of Palestinian municipal authorities and landowners after the law was passed, arguing that the law violated their property rights and right to equality.
In an eight-to-one decision, the High Court declared the law to be “unconstitutional” on the basis of Basic Law: Human Dignity and Liberty, and annulled it.

Writing for the majority, Justice Esther Hayut wrote that goal of the law to prevent the destruction of existing settlements “does not justify such significant violation of property rights and the rights to dignity and equality that the Palestinian population [deserves].”

Government and administrative decisions reversed or amended by the High Court

Kfar Vradim mikve decision, 2014

In 2011, religious residents of Kfar Vradim in northern Israel filed a petition with the High Court appealing a Haifa Administrative Affairs Court ruling that declined to compel the town’s municipal authority to build a mikveh, or ritual bath, which it had hitherto refused to construct.

The petitioners argued that a mikveh was a critical necessity for religious residents to uphold their religious observance. They also pointed out that no other mikveh existed in close enough proximity to the town, and that the Religious Services Ministry had pledged to fund the building of the mikveh, reducing the financial cost to the municipal authority.

The Kfar Vradim municipal council argued that it had established criteria for the construction of public facilities in the town and that building a mikveh was at the bottom of its priorities for 17 public buildings based on those criteria, which included whether or not the building was “necessary for the well being of the town” and “appropriate to the character of the town.”

Supreme Court Justice Uzi Fogelman wrote in his decision, backed by Justices Esther Hayut and Neal Hendel, that immersion in a mikveh was “an inseparable part of her [a religious woman’s] religious ritual and the expression of her identity and customs,” and was “substantively related to the right to the free exercise of religion and religious practice.”
As such, the court found that the Kfar Vradim municipal council had not given sufficient weight to the harm done to religiously observant women in the town by refusing to build a mikveh and was therefore “unreasonable.” As such, the court ordered Kfar Vradim to immediately begin construction of a mikveh.

Cuts to child-care subsidies for ultra-Orthodox families, 2022

In July 2021 under the Bennett-Lapid government, then-finance minister Avigdor Liberman changed the criteria for the receipt of daycare subsidies for young children up to the age of three in a way that excluded 18,000 Haredi families in which the father was a full-time yeshiva student.

The changes to the criteria, which Liberman wanted implemented immediately, meant that only a household in which both parents worked at least 24 hours a week qualified for the subsidy, worth some NIS 1,000 ($293) a month. Liberman’s stated goal was to “eliminate disincentives to join the labor market” which he said was the upshot of the subsidy as it stood.

Three private Haredi attorneys petitioned the court, arguing that the subsidy cut would create severe economic difficulties for Haredi families. The High Court agreed in part, ruling that ending the subsidy with immediate effect would indeed do significant and immediate harm to the household budgets of those receiving the benefit without giving them time to prepare economically.

The court ruled in January 2022 that the immediate implementation of the decision was therefore “unreasonable in the extreme” and instructed the ministry to delay the subsidy cut to the beginning of the next academic year in September 2022. (The new government now intends to restore the subsidy.)

Rocket-proof classrooms in Gaza border region, 2007

In 2006, the government decided to fortify 24 schools in the Gaza-border region to protect them from rocket fire from terror groups based in Gaza. The method chosen was to fortify specific rooms within those schools, but not every classroom since, the government reasoned, older pupils could run to the protected rooms when they heard the rocket warning siren.

The Sderot Parents Committee petitioned the High Court against this decision, arguing that the plan did not provide sufficient protection for their children given that the time between a warning siren being sounded and a potential rocket impact was just 15 seconds in some cases. The petitioners therefore demanded that all classrooms be fortified.

The High Court ruled that the government’s decision not to provide full protection to these schools “exceeds the boundaries of reasonableness” in light of the large number of children who were exposed to rocket fire and the fact that it was a severe and daily threat to their lives.

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