With calls to enact an 'override clause' to push back against judicial review back in the news, Dr. Amir Fuchs analyzed the twenty laws the Court has overturned since Israel's establishment.
Economy and Employment
Investment Managers Bureau vs. Minister of Finance (1997)
In a petition against the Minister of Finance, the Israel Investment Managers' Bureau sought to oppose the transitional provisions for obtaining a license to manage investment portfolios, according to which the requirement to pass examinations would also apply to those who were working in portfolio management for less than seven years before the law was passed. Two years after its legislation, the High Court of Justice ruled that this section should be repealed, in light of its disproportionate violation of the Basic Law: Freedom of occupation.
Radio Broadcasting without a License (2002)
This legislation aimed at granting legal status to the Channel 7 radio station, which until that time was operating without the required license and without a franchise as required by law. A petition was filed by MKs and NGOs for proper administration and ethical behavior against the Speaker of the Knesset, the Government, the Attorney General, and the Second Television and Radio Authority. The High Court of Justice ruled that the law was null and void because it violated the Basic Law: Freedom of occupation under which freedom of competition must exist among various parties, and that care must be taken to uphold the principle of equality among competitors.
Prohibition of Denial of Income Support Benefits from an Individual Owning a Vehicle (2012)
In the case of the petition to the High Court of Justice, Salah Hassan v. National Insurance Institute, a clause in the National Insurance Law which disqualified a person owning or using a vehicle from receipt of income support benefits, was nullified. .
State Ordered to Publish Criteria for Income Tax Benefits for Localities (2012)
The Court ruled that the eligibility of localities for tax rebates of localities is unconstitutional in its violation of the principle of equality, since no clear criteria for eligibility and for its scope have been established.
Tax on Ownership of a Third Apartment (2017)
The state budget and the Arrangements Law included a section on multi-asset taxation dealing with a tax arrangement for owners of multiple apartments, Tzahi Kotinsky, an expert in real estate investments, and others submitted a petition to the Court with regard to both the substance of the law and the process by which it was legislated. The petition was accepted and justified by the fact that the legislative process had been flawed such that it violated the right of members of the Knesset Finance Committee to participate in the legislative process. For the first time, the Court repealed a law due to a flaw in the legislative process and not due to the substance of the law.
The Military and National Security
Military Arrest (1999)
The case of the petition to the High Court of Justice – Sagi Zemach against the Minister of Defense – stated that a provision in the Military Jurisdiction Law, which allowed a soldier's detention for 96 hours before being brought before a judge, violates the right to liberty enshrined in the Basic Law: Human Dignity and Liberty, and is therefore void.
Exemption from Damage Claims against Security Forces (2006)
The Adalah NGO submitted a petition to repeal Amendment No. 7, which grants the State immunity from compensation claims from Palestinians injured by security forces. The Supreme Court accepted the petition and declared the law as null and void because it disproportionately infringes on the right to integrity of the body, of life, and of property, and on the equality protected by the Basic Law: Human Dignity and Liberty.
Security Detention without Appearing Before a Judge (2010)
Revocation of the Temporary Order allowing for a hearing to extend the detention of a suspect in a security offense, without the suspect’s presence: The High Court of Justice rejected the State's position, which argued that the purpose of the law is to improve law enforcement officials’ capacity to conduct effective investigations into security offenses and counterterrorism. The Court stated that the provision, in combination with the existing law that also allows the denial of a meeting with an attorney, is disproportionate and severely infringes on the defendant's right to a hearing, grounded in the fundamental right to liberty and dignity.
Religion and State
Discrimination in Obtaining Social Security Benefits (2010)
In a petition filed by Arnon Yekutieli, one of the founders of the “A Free People” NGO, the High Court of Justice ruled that a section of the Budget Law that guaranteed minimal income allowances to Kollel students (Kollel is an institution for Torah studies for married men) is a disproportionate violation of the principle of equality, since the budget only covers kollel students. The decision stated, “The fact that Kollel students are members of a unique community that defines Torah studies as an essential part of its identity, cannot justify violating the basic equality of all citizens of the state."
Scholarships Exclusively for Ultra-Orthodox Students (2014)
The Israeli Student Union petitioned the High Court of Justice against a government decision regarding a budget clause providing yeshiva/kollel students with a five-year scholarship. The Court accepted the petition, stating that granting such scholarships violates the principle of equality, does not serve its purpose, and does not meet the test of proportionality.
Equality in Sharing the Burden of IDF Service; The Draft Law (2012)
By a majority of six to three, the High Court of Justice held that the law deferring military service for fulltime Torah students (the “Tal Law”) does not stand the test of proportionality, as it has not been proven that the means stipulated by the law enable it to fulfill its purpose, and therefore it is unconstitutional. Furthermore, after its expiration on August 8, 2012, the Knesset will not be able to extend it in its current format, after its expiration on 1.8.2012.
Equality in Sharing the Burden of IDF Service; The Draft Law (2017)
Another High Court of Justice ruling on the petition by the Movement for Quality Government in Israel against the Knesset stated that the recruitment arrangement of yeshiva students based on the principle that “Torah is their exclusive pursuit” is in grave violation of the principle of equality and of the constitutional right to human dignity. It gave the Knesset a one year extension until the repeal takes effect.
Freedom of Expression
The Boycott Law (2015)
An expanded panel of High Court of Justice judges determined that a clause in the Boycott Law, that provides compensation without proof of damage, is disproportionate. The clause allowed the court to charge anyone who calls for a boycott of the State of Israel, with compensation, not dependent on damage. At the same time, the High Court of Justice unanimously approved the clauses related to administrative sanctions that allow the Minister of Finance to impose by force the law on anyone who publishes a boycott call on the State of Israel, or on those who pledged to participate in the boycott.
Imprisonment of Asylum Seekers (2013)
The Supreme Court revoked the arrangement set out in the Prevention of Infiltration Law, which allows the detention of infiltrators/asylum seekers with no legal status in Israel for a period of three years, on the grounds that this arrangement is unconstitutional, inasmuch as it contradicts the right to liberty enshrined in the Basic Law: Human Dignity and Liberty.
Imprisonment of Asylum Seekers (2014)
Amendment No. 4 of the Prevention of the Infiltration Law allows new infiltrators to be held in custody for a period of one year. This law served as the basis for the establishment of the “Holot infiltration center”. The High Court of Justice ruled that the amendment is a substantive and fundamental violation of human rights, does not comply with the limitation clause, and does not meet the conditions of constitutional review, and is therefore void.
Imprisonment of Asylum Seekers (2015)
The Court ruled that a 20-month period at the "Infiltration Center" is disproportionate, and gave the Knesset six months to legislate a proportionate maximum period. Moreover, the Court ruled that anyone who has been remanded to the “Holot” facility for more than 12 months, that is –the vast majority of the population which was at the facility at the time, be released immediately. At the same time, the petition against detention of asylum seekers upon arrival in Israel for 3 months at the Saharonim facility for the purpose of identifying and investigating the possibility of deportation was rejected. Finally the petition to order asylum seekers to remain in the "Holot" facility was also rejected.
Asylum Seekers’ Deposits (2020)
The High Court of Justice ruled that the law requiring deduction of 20% of the infiltrators' wages to serve as a deposit which would encourage their departure from the country is unconstitutional. According to the ruling, this would deal a harsh and disproportionate blow to the right to assets. The infiltrators’ wages are their primary assets, critical for their livelihood. The expropriation of these assets may extend to long and indefinite periods, and sometimes result in the complete expropriation of this asset, The court ordered that the clause be revoked immediately, and the money returned to the infiltrators within 30 days.
Increasing Compensation for Disengagement Evacuees (2005)
The Disengagement Implementation Law limited the right of the evacuees to compensation, by – among other ways – stipulating that the evacuees could not claim compensation for the damage caused to them beyond the compensation provided for by the law, and by determining age 21 as a threshold for entitlement to an individual grant to compensate for the suffering and distress of the evacuation. The High Court of Justice amended the economic injustice and stated that evacuees under the age of 21 years are also eligible for an individual grant. In addition, the Court stated that the duration of residence of the evacuees will be calculated up to the evacuation day; allowing the evacuees to seek compensation through both the Sela (Administration for Assistance to Settlers from the Gaza Strip and Northern Samaria) and civil courts. This amendment was made on the grounds that the established arrangement did not comply with the proportionality requirement of the Basic Law: Human Dignity and Liberty.
The Banning of Privatization of Prisons (2009)
The High Court of Justice approved the petition submitted by the Association for Civil Rights against privatizing prisons and cancelled the establishment of a prison (in an experimental format) that would be operated and managed by a private corporation, rather than by the state.
The Judea and Samaria Settlement Regulation Law (Regulation Law) (2020)
The Court ruled that the law intended to retroactively legalize illegal construction of settlements in Judea and Samaria on Palestinian private land, is unconstitutional, based on the fact that it is causes disproportionate damage to the property, and to the equality and dignity of Palestinian residents. Although the Court has ruled that the impact on individuals of the law is legitimate, the harm to property, equality and dignity is profound. The law does not stand the test of proportionality because there are more proportionate means that would achieve the purpose, while lessening the violation of human rights.