Benjamin Netanyahu no longer governs Israel, but the country’s nationalist and illiberal trajectories run far deeper than one individual. Israel’s increasingly entrenched hold over Palestinian territories is one obvious manifestation of the country’s right-wing agenda. But in recent years, the most important emerging aim of the nationalist right-wing leadership has been to undermine a core pillar of democracy—the judiciary.
Over the past decade, various actors have converged in an aggressive, multifaceted campaign to gut the legitimacy of Israel’s judicial branch and constrain its authority. Throughout, the campaign has advanced a notion of “governability” that promotes unrestrained executive power.
However, the attack on the public legitimacy of the judiciary is no less powerful. Right-wing leaders and public figures have methodically constructed an elaborate narrative of the judiciary as a cabal of elites who have captured the country. In this view, justices impose a liberal-universalist and left-wing political agenda that violates the true will of the people, through a brutal power grab. This narrative extends to the state prosecutor, the attorney general, and even the police. As a common, parsimonious anti-judiciary refrain puts it: “They couldn’t win at the ballot box, so they are grabbing control through the courts.”
Ultimately, the campaign seeks to condition society to view human rights, minorities, and equality as foreign and dispensable. Traducing legal institutions is a vehicle to undermine the rights of ethnic, religious, political, and sexual minorities.
Since the Basic Laws were enacted, Israel’s Supreme Court has struck down twenty laws (mostly clauses rather than an entire law) over nearly thirty years, laws that each, in turn, violated a part of minority rights. Scholars consider this a moderate number of laws for a Supreme Court to strike down, and it is lower than the strike-down rate of other democratic countries, including the United Kingdom, Germany, and the United States. The laws that have been struck down by Supreme Court are as follows:
- 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 the 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 that disqualified a person owning or using a vehicle from receipt 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 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 concerning 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.
- 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 null and void because it disproportionately infringes on the right to the 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 the 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.
- 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 full-time 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, 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 the constitutional right to human dignity. It gave the Knesset a one-year extension until the repeal takes effect.
- 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 the 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 three years because this arrangement is unconstitutional since 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 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, 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 that was at the facility at the time, be released immediately. At the same time, the petition against the detention of asylum seekers upon arrival in Israel for 3 months at the Saharonim facility to identify and investigate 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 the deduction of 20% of the infiltrators’ wages to serve as a deposit that 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 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. This amendment was made because 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 canceled 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 the illegal construction of settlements in Judea and Samaria on Palestinian private land, is unconstitutional, based on the fact that it 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.
As the above cases show, the judiciary has always tried to support democracy and the protection of minorities’ rights. Israel’s social contract and the foundation of the Army have been formed on striving for a common goal in a common land – Making the desert bloom. This prosperity can only be done in the shadow of democracy and peaceful coexistence. The Kahanist campaign that has targeted the Supreme Court today will lead to the elimination of all pro-democracy and the destruction of the pillars of peaceful coexistence soon. And this is the same crisis that prompted the military and security elites to resist the kahanists’ assault on democracy. The kahanists have conspired to eliminate minorities in Netanyahu’s current cabinet.