Editor’s Note: Today we publish the 2016 Report on Israeli constitutional law, which appears in the larger 44-country 2016 Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
—Justice Uzi Vogelman*, Nadiv Mordechay**, Yaniv Roznai***, Tehilla Schwartz****
I. Introduction
This review presents key developments in the jurisprudence of the Israeli High Court of Justice (HCJ) in 2016. These developments reflect part of the multifaceted longstanding role of the HCJ in constitutional challenges of the state of Israel which involve complicated dilemmas concerning minorities, emergency laws, prolonged belligerent occupation and recurring armed conflicts, unique rules of citizenship, and complex relation between religion and state.[1]
II. The Constitution and the Court
Israel’s constitutional model is based on an incomplete constitution, due to the original decision in the early years of independence not to complete the constitutional design at the time of the establishment of the state, but rather to leave it as an incremental enterprise.[2] The Israeli constitution includes several Basic Laws that regulate the governmental structure and institutions, and the HCJ also has a respectable tradition of judicial protection over the unwritten common-law rights and freedoms.[3] Basic Laws are enacted by the Knesset (Parliament) which holds both legislative and constituent powers.[4] In 1992, the Knesset enacted two Basic Laws on fundamental rights: Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation, that constitute a partially entrenched bill of rights.[5] The HCJ United Mizrahi Bank case asserted the authority of judicial review, comparable to the “Marbury” model.[6] This joint legislative-judicial change, known as the “constitutional revolution”, resulted in the HCJ becoming the central institution in the development of constitutional protection of human rights.
Therefore, the Israeli constitutional law story is rather unique as it applies American-style judicial review to primary legislation, yet its constitutional laws are enacted through ordinary legislation procedures, in the British-style.[7] Israel is also particularly unique due to the inverse ratio between the thin written constitution and the constitutional role of its court. The HCJ hears petitions about Knesset legislation and administrative decisions as the first instance, and its constitutional review model is very close to an “abstract” review. The HCJ is highly accessible to all types of petitions, maintaining broad individual standing in administrative and constitutional petitions (also from protected populations in the Judea and Samarea). For over a decade now, the existence and scope of constitutional judicial review in Israel has been harshly contested.[8]
III. Constitutional Controversies: Separation of powers
HCJ 4374/15 The Movement for Quality of Government v. The Prime Minister of Israel (27 March 2016).
This case, one of the most prominent of the year, addressed the constitutionality of the “Gas Outline,” an administrative “outline” decided by the Israeli government regarding gas reservoirs found in Israeli economic territory in 2009.[9] In 2015, the government decided to contract with a series of energy companies, including Noble Energy, to produce natural gas out of the reservoirs. The gas deal that was presented in the “outline” included many legal and regulatory aspects, all of which were concentrated by the government into a single contract with the gas companies. For that reason, the HCJ was confronted with the need to determine the limits of executive authority, and to rule on questions of delegation and granting an exemption from antitrust law in the energy sector through a government contract, which in effect reorganized the entire energy sector.
This judgment, which was high profile and well covered by the media, had engaged several departments of the Israeli legal system ever since the discovery of the gas reserves and especially over the first quarter of 2016. The General Director of the Antitrust Authority, Prof. David Gilo, resigned in protest of the Gas Outline, stating that it would significantly hurt the competitiveness of the natural gas market. During the HCJ’s hearings the Israeli Prime Minister, Benjamin Netanyahu, testified before the panel, and introduced the government’s arguments on the importance of the Outline.
The constitutionality of the Outline, as distinguished from its economic feasibility, was specifically highlighted due to its unprecedentedly vast economic significance and the reluctance of the cabinet to enact it as primary legislation. The HCJ discussed the authority of the cabinet and its discretion. In particular, several major issues were analyzed:
First, the Gas Outline included a ‘Stability Clause’ according to which the government guarantees the gas companies a stable regulatory environment for a period of a decade, by undertaking not to make changes in legislation and by opposing legislative initiatives in fields such as taxes, antitrust, and export quotas. The majority of the bench (4-1) held that the clause was prescribed ultra vires and was void due to it being contrary to the basic administrative law principle of the prohibition on restricting the cabinet’s independent discretion. It was ruled that the scope of this discretion does not extend to the decision not to exercise it, especially when the case is subject to political dispute and when the government wishes to restrict the discretion of its successors.
Second, a fundamental section of the government’s plan involved a broad exemption for the energy companies from antitrust law. Since the Gas Outline was contracted in a monopolistic regulatory climate, the HCJ addressed legal exemption for an agreement of that nature. Section 52 of the Antitrust Law (1988) vests the Minister of Finance with the authority to exempt a restrictive practice from the provisions of the Antitrust Law on grounds of “foreign policy and security considerations”. The HCJ deliberated the required conditions in which the Section can be applied and whether it was exercised in a reasonable manner. Aside from Justice Joubran, who elaborated on the missing factual background to serve as a foundation for exercising Section 52 and the insufficient timeframes given to the public to express its position regarding the Outline, the justices of the bench did not find any flaw in the exercise of Section 52 of the Antitrust Law.
Third, the HCJ deliberated whether the issues addressed in the Outline needed to be regulated by primary legislation, or whether a cabinet decision would suffice. Dissenting Deputy President Rubinstein determined that the “aggregate effect” of the Outline amounted to a substance requiring primary legislation, and consequently necessitated an orderly and transparent process.[10] However, the majority opinion (3-2) decided that the validity of the entire Outline, as distinct from the stability clause, was not contingent upon being anchored by primary legislation. As the public’s trustee for the state’s assets, a role anchored in authorizing legislation,[11] the government is obligated to exercise its authority in order to optimally preserve the state’s proprietary rights to the natural gas. Accordingly, it was decided to cancel the Gas Outline due to the stability clause, without applying judicial intervention in the other matters that were addressed, while suspending the declaration of voidness for a year to allow for an alternative regulation.[12]
HCJ 3132/15 ‘Yesh Atid’ v. The Prime Minister of Israel (13 April 2016)
In a five-justice panel, the HCJ debated the question of whether Basic Law: The Government grants the Prime Minister the authority to hold the position of a minister in addition to being a Prime Minister. The petition was filed by an opposition party, against the background of the appointment of Prime Minister Netanyahu to several ministerial departments after the 2015 election.[13] Faced with a challenge to the prime minister’s multiple functions, the HCJ determined that whereas the prime minister holding of these cabinet positions was technically legal, it was unconducive situation to democracy. The majority denied the petition and held that according to constitutional interpretation and the constitutional convention, the prime minister was authorized to function as a minister.[14] However, subject to Deputy President Rubinstein’s opinion (Justices Hendel and Meltzer, in their alternate opinion, concurring), the decision was served a “validity notice,” whereby if at the end of an eight-month period the situation remained as it was, the case could be appealed again.[15]
In December 2016, following the ruling, Prime Minister Netanyahu passed his Ministry for Regional Development, and Ministry of economy, industry and trade to other members of his coalition.
IV. Major Cases
Legislative Process and Regulatory Independence
HCJ 8612/15 The Movement for Quality Government v. The Knesset (17 August 2016)
This petition addressed the legislative process of a reform in the electricity sector: merging The Electricity Regulatory Administration and the Electricity Authority to fulfil the governmental policy regarding the Gas Outline. The reform was passed as part of the “Economic Arrangements Law”, a rapid omnibus government bill presented to the Knesset each year alongside the Budget Law.[16]
The petitioners claimed that the reform chapter should be invalidated due to constitutional defects in the legislative process.[17] They oppose the Arrangements Law as the appropriate legal framework for reform, and criticize the Coalition’s decision to legislate the bill in an Ad-hoc Select committee that was assembled outside the Knesset’s Economic Affairs Committee so to avoid the Chairman’s refusal of the Minister of Energy’s request to legislate the reform “as is”.
The HCJ rejected the petition. It has been the consistent ruling of the HCJ that legislating under the Arrangements Law does not amount, in itself, to an independent cause for striking down legislation. The HCJ ruled that holding the legislation outside the Committee – the “natural habitat” for the legislation – due to the Chairman’s position, was “Inappropriate and unacceptable” (at para. 13 of Justice Hayut’s judgment). The court emphasized that it prevents effective discourse and parliamentary scrutiny, and thus infringes the principle of parliamentary independence which is crucial to a proper functioning democratic regime. The court stressed that if the petitioners would have proved that the bill was indeed legislated “as is”, it would have declared that this was a “severe and substantial defect at the root of the legislative process”, which justify annulment. However, after examining the legislative process, it concluded that the legislation at hand did not pass “as is” as legislative deliberations took place, and following which the bill was modified. Therefore, the legislative infringement did not meet the “Severe and substantial” threshold for judicial intervention and both process and outcome were deemed valid.
Another claim by the petitioners was that merging the two regulatory agencies is an effective impeachment of the former Electricity Commissioner by the Act, and therefore a personal legislation. Justice Esther Hayut, leading the Court’s opinion, to which Justice Vogleman and President Naor concurred, started her reasoning with an important statement regarding the possibility of invalidation of Knesset legislation with “a personal motive” that “may be infringing with the “foundational principles of our system” (para. 16). Nevertheless, this argument was eventually rejected, mainly because the petitioner did not establish substantial factual grounds to prove that this is the case.
Banning Political nominees
EA 1095/15 The Central Elections Committee for the 20th Knesset v Haneen Zoabi (10 December 2015)
In this ruling, the HCJ rejected the Central Election Committee’s decision to ban Haneen (Hanin) Zoabi and Baruch Marzel as candidates to the 20th Knesset election. President Naor scrutinized the case under Article 7(a) of Basic Law: The Knesset, which determines the standards for banning candidates and parties.[18] The majority (8-1) opinion decided that Zohabi and Marzel’s speech and conduct, do not cross the threshold of evidence to prove incitement; support of terror; or denying Israel’s existence as a Jewish Democratic state. Deputy President Rubinstein (dissenting) held that the banning decision should be upheld as is.
Political Appointments and Corruption
CA 4456/14 Kellner v. The State of Israel (29 December 2015)
This ruling, also known as the “Holyland Case”, concerned three major public corruption affairs involving bribery between real estate entrepreneurs and public officials, among them the former Prime Minister of Israel, Ehud Olmert and the former Mayor of Jerusalem, Uri Lupolianski. While addressing each of the appeals, the Court’s 948 pages judgment delved into many central and general legal issues in criminal law. Most significant for us is the fact that the judgment upheld, in part, the conviction of former Prime-Minister Olmert. The Court acquitted Olmert from one bribery offence, but upheld the remaining indictments (among them, bribery and Obstruction of justice) and sentenced him to imprisonment – a first time in Israel’s history.
HCJ 232/16 The Movement for Quality of Government v. The Prime Minister of Israel (08 May 2016)
The HCJ denied the petition against the appointment of MK Aryeh Deri as the Minister of Interior. Deri’s criminal offences, which include bribery and breach of trust, were committed while holding the position of the Ministry of Interior during the late 1980’s. This petition was denied shortly after the denial of an earlier petition against the appointment of Deri as the Minister of Economy and Industry.[19] The HCJ held that the petitioners did not sufficiently prove a direct and clear link between the crimes Deri committed in the end of the 1980’s and the position of Minister of Interior specifically, aside from it being the position held at the time of his past offenses. Therefore, notwithstanding difficulties raised by this appointment, it does not exceed the margin of reasonableness (Justices Joubran and Danziger). Justice Hendel (Dissenting) held that the decision to appoint Deri as Minister of Interior is extremely unreasonable, and therefore the appointment should be annulled.
HCJ 43/16 ‘OMETZ’ (Citizens for Proper Administration and Social Justice in Israel) v. The Government of Israel (01 March 2016)
In a five-Justices panel, the HCJ unanimously denied the petition against the appointment of Adv. Dr. Avichai Mandelblit as the Attorney General. The court ruled that the threshold justifying intervention had not been crossed, despite allegedly administrative law defects in Mendelblit’s appointment process. The HCJ found that the professional-public committee that nominates prospective Attorney Generals carried out their role meticulously and in accordance with Administrative Law and cabinet decision’s. The grounds that were established against the appointment, including the fact that only one nominee was recommended and not three as originally requested by the Minister of Justice, as well as Mandelblit’s involvement in the “Harpaz Affair”, did not justify judicial intervention. The HCJ also denied the claims that Mandelblit’s previous position as Cabinet Secretary under the prime Minister’s Office necessitates a waiting period prior to his appointment as Attorney General, considering there is no such waiting period prescribed by law. As for the possible conflict of interest between the two positions, the HCJ ruled that it can be resolved through a conflict of interest statement.
Human Rights and National Security
The Home Demolitions Controversy
Against the backdrop of the current wave of terrorism in Israel since 2015, the use of home demolitions was accelerated. In response, a growing number of petitions are being submitted against the practice, and the HCJ engaged again with the constitutionality of the practice, which is governed by Regulation 119 of The Defence (Emergency) Regulations, 1945. The main debate considered the connection between the house residents and the offense; the distinction between punitive sanctions and deterrents and collective punishment.[20]
Although President Naor decided not to set an extended panel in order to re-evaluate the current precedents in this issue, several Supreme Court justices have expressed doubts regarding the legality and effectiveness of home demolitions in petitions brought before them, and some have raised the need to reopen the discussion on this method.[21] In the Cedar case,[22] Justice Vogelman opined that the act requires sufficient evidence of involvement of the suspect’s family, and is otherwise disproportional. Similarly, Justice Mazuz in the Meri case[23]questioned the effectiveness and proportionality of the method, as well as the precedents’ validity considering near-past developments in international law and Israeli constitutional law.
HCJ 5304/15 Israeli Medical Association v. The Knesset (11 September 2016)
The petition challenged the prisoners force-feeding law, arguing that it is unconstitutional as it violates human dignity for an improper purpose and violates international law as it constitutes a form of inhuman and degrading treatment. The case was heard by a panel of three Supreme Court Justices.
The HCJ unanimously rejected the petitioners’ arguments and upheld the law as both constitutional and in compliance with international law. In a lengthy opinion by Deputy President Elyakim Rubinstein, Deputy President Rubinstein surveyed the international and comparative law and relied on precedents holdings that force-feeding prisoners on a hunger strike is neither inhuman nor degrading. Nevertheless, Israel’s law is exceptional. Whenever force-feeding prisoners is allowed in democratic countries, the exclusive consideration is the prisoner’s well-being. Only in Israel, the law instructs the court to also consider “severe harm to security.” Nevertheless, the law’s dominant purpose is humanitarian – the preservation of the hunger striking prisoner’s life, under conditions that aim to ensure protection of the prisoner’s dignity, and with strict supervision by legal and medical agents. National security is only a secondary purpose. Therefore, the HCJ held that the law allowing force-feeding of hunger striking prisoners passes the tripartite constitutional test set out in Basic Law: Human Dignity and Liberty.[24]
Human Rights and Economic Policy
HCJ 4406/16 The Association of Banks in Israel v. The Knesset (29 September 2016)
The salary of executive officials in traded financial cooperations has been on the public agenda for many years, voicing claims against the increasingly high salaries and the weak supervisory system. Consequently, the “Executive Salary act” was passed in 2016, essentially capping the salary of the highest paid employees in financial companies to 2.5m NIS (§4(1)) and setting a ratio of 1:35 between the highest and lowest paid employees (§2(b)). The Association of Banks in Israel and the Israel Insurance Association petitioned before the HCJ, challenging the constitutionality of the set ratio and cap, as it infringes upon the Freedom of Occupation, Freedom of Contract, Freedom of Competition and the property rights of the corporation and its executives.[25] The petitioners argued that the legislation was not for a proper purpose, since the main goal is harming the executives, and that the ratio infringes disproportionately on their rights, while constituting unlawful discrimination of the financial institutions.
The HCJ, in an extended panel of seven Justices, ruled that the ratio and cap are constitutional and stated that there are no grounds to intervene in the intermediate rules, and specifically the intermediate period that was set by the act.
HCJ 9134/12 Gavish v. The Knesset (21 April 2016)
This ruling denied a petition challenging the constitutionality of §4 to the Retirement Age Law of 2004, which sets the mandatory retirement age at sixty-seven, for both men and women, [26] and allows an employer to force the retirement. The petition was submitted following the Weinberger case, deliberated before the National Labor Court, in which it was decided that an employee could not automatically be forced to end her employment upon reaching retirement age, and that the employer must exercise discretion, considering the individual retirement case on its merits.[27] The National Labor Court left the question of constitutionality to the HCJ, and Gavish filled that gap. The petitioners claimed that even following Weinberger, §4 is unconstitutional, and actually masks the potential discrimination.
The decision of the HCJ acknowledged that the mandatory retirement age infringes upon the right to equality, however it does so in compliance with the proportionality tests. Nevertheless, President Naor noted that the retirement age is a matter that should be further addressed in the Knesset and public debate.
Religion and State
HCJ 7625/06 Ragachuva v. The Ministry of Interior (31 March 2016)
The petitioners were foreign nationals who resided in Israel as tourists and were later converted to Judaism by private ultra-Orthodox rabbinical courts. The Ministry of Interior refused to recognize these conversions, holding the position voiced by the State in its response to the petition, that the Law of Return of 1950 applied only to those who converted while in Israel and by the official system overseen by the Chief Rabbinate. The question necessitated before the HCJ was whether the Law of Return, and specifically Article 4(b) which includes the term “converted”, applies to those who have completed an orthodox conversion in Israel not through the official system.[28]
The majority opinion, handed down by President Naor, held that the term “converted” should be interpreted as referring to those whose conversion was conducted in a recognized Jewish community according to its established standards. An interpretation of the Law of Return according to which only conversion through the official system would suffice for the Law lacks a textual basis and would not fulfill its purpose.
V. Conclusion
One cannot overstate the importance of the Israeli Judiciary. There is hardly any public affair which does not arrive to the court’s scrutiny, and the Court’s actively adjudicates on political, military, and religious issues no matter how contentious. In 2016 alone, the HCJ nullified the stability clause in the Gas Outline; recognized conversions to Judaism by private ultra-Orthodox rabbinical courts for the Law of Return, and gave a “validity notice” to the prime minister for holding several cabinet positions. It allowed the re-appointment of Aryeh Deri as the Minister of Interior, permitted the policy of home demolitions, and approved the law which reduces the salaries of high officials in financial companies. The impact of the HCJ on Israeli constitutional law, as well as on society, thus remains crucial.
VI. Suggested Recent Literature on Israeli Constitutional Law
Yoav Dotan, Lawyering for the Rule of Law: Government Lawyers and the Rise of Judicial Power in Israel (Cambridge University Press, 2014).
Mazen Masri, The Dynamics of Exclusionary Constitutionalism: Israel as a Jewish and Democratic State (Hart Publishing 2017).
Barak Medina, Human Rights Law in Israel (Nevo, 2017) [Heb.]
Suzie Navot, The Constitution of Israel – a Contextual Analysis (Hart publishing, 2014).
Suzie Navot, Constitutional Reasoning in the Israeli Supreme Court, in András Jakab, Arthur Dyevre and Giulio Itzcovich (eds), Comparative Constitutional Reasoning (Cambridge University Press, Forthcoming 2017), https://ssrn.com/abstract=2505603
Gideon Sapir, Daphne Barak-Erez, Aharon Barak, Israeli Constitutional Law in the Making (Hart Publishing, 2014).
Adam Shinar, Idealism and Realism in Israeli Constitutional Law, in Ernst Hirsch Ballin, Maurice Adams, Anne Meuwese (eds.), Constitutionalism and the Rule of Law: Bridging Idealism and Realism 257 (Cambridge University Press, 2017).
* English translations of many Israeli Supreme Court decisions are available at VERSA – Opinions of the Supreme Court of Israel, A Project of Cardozo Law School, http://versa.cardozo.yu.edu
* Justice of the Israeli Supreme Court.
** Research Fellow, Hebrew University Faculty of Law; Visiting Doctoral Researcher, NYU school of Law.
*** AssociateProfessor, Radzyner Law School, The Interdisciplinary Center (IDC) Herzliya.
**** Undergraduate Student, Hebrew University Faculty of Law.
We would like to thank Adv. Ron Goldstein for his valuable assistance in preparing this report.
[1] See e.g. Suzie Navot, The Constitutional Law of Israel (2007).
[2] Hanna Lerner, Making Constitutions in Deeply Divided Societies Ch. 3 (2011).
[3] Adam Shinar, Accidental Constitutionalism: The Political Foundations and Implications of Israeli Constitution-Making, in Dennis Galligan and Mila Versteeg (eds.), The Social and Political Foundations of Constitutions (2013).
[4] Suzie Navot, Israel, in Dawn Oliver and Carlo Fusaro (eds.), How Constitutions Change – A Comparative Study 191 (2011).
[5] See Aharon Barak, The Constitutional Revolution: Israel’s Basic Laws, 4 Const. F. 83 (1992-93); David Kretzmer, The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law, 26 Isr. L. Rev. 238 (1992); Gideon Sapir, Constitutional revolutions: Israel as a case-study, 5(4) Int’l J. L. in Context 355 (2009).
[6] CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village, 49(4) P.D. 221 (1995). See Yoram Rabin and Arnon Gutfeld, Marbury v. Madison and its Impact on the Israeli Constitutional Law, 15 U. Miami Int’l & Comp. L. Rev. 303 (2007); Daphne Barak-Erez, From an Unwritten to a Written Constitution: The Israeli challenge in American Perspective, 26 Colum. Hum. Rts. L. Rev. 309 (1994).
[7] Rivka Weill, Hybrid Constitutionalism: The Israeli Case for Judicial Review and Why We Should Care, 30 Berkeley J. Int’l Law. 349 (2012).
[8] Amnon Reichman, Judicial Constitution Making in a Divided Society: The Israeli Case, in Diana Kapiszewski, Gordon Silverstein and Robert Kagan (eds.), Consequential Courts: Judicial Roles in Global Perspective 233, 245-258 (2013).
[9] A summary is available here. For a review see Rachel Frid de Vries, Stability Shaken? Israeli High Court of Justice Strikes Down the Stabilization Clause in the Israeli Government’s Gas Plan, 18 J. World Investment & Trade 332 (2017).
[10] See generally Zemer Blondheim and Nadiv Mordechay, Towards a Cumulative Effect Doctrine: Aggregation in Constitutional Judicial Review 44(2) Mishpatim 596 (2014) [Heb.].
[11] Section 52 of the Antitrust Law; Section 33(a) of the Oil Law; Section 5(a) of the State Assets Law.
[12] The majority opinion was consisted of Deputy President Rubinstein, and Justices Joubran, Hayut and Vogelman, against the dissenting opinion of Justice Sohlberg who held that the stability clause does not restrict the Knesset’s legislative power, but rather limits the government’s discretion, as it is authorized to do, as long as the government maintains its ability to rescind its “administrative promise”.
[13] At a certain point, Netanyahu was simultaneously Israel’s prime minister, foreign minister, communications minister, economy industry and trade, and labor minister, and regional development minister.
[14] President Naor, Deputy President Rubinstein, Justices Joubran and Hendel concurring. Based on constitutional interpretation, Justice Meltzer’s substantive dissenting opinion was that the prime minister was not authorized to serve as a minister. After reading the opinions of the justices of the panel and seeking to reach a compromise, Justice Meltzer presented an alternate position according to which he concurred with Deputy President Rubinstein’s opinion regarding the “validity notice,” such that it became the majority opinion.
[15] See Ittai Bar-Siman-Tov, Time and Judicial Review: Tempering the Temporal Effects of Judicial Review, in Patricia Popelier, Sarah Verstraelen, Dirk Vanheule, Beatrix Vanlerberghe (eds.), The Effects of Judicial Decisions in Time 197 (Intersentia, 2013); Rosalind Dixon and Samuel Issacharoff, Living to fight another day: Judicial Deferral in Defense of Democracy, 2016 Wis. L. Rev. 683 (2016).
[16] See Susan Hattis Rolef, Background Paper – The Arrangements Law: Issues and International Comparisons (The Knesset Research and Information Center, 2 January 2006).
[17] Landmark Court judgements seem to endorse that judicial review of the legislation might apply in cases of inappropriate legislative procedure whenever there is a flaw that constitutes a serious violation of the “fundamental principles of the legislative process.” See HCJ 5131/03 Litzman v. Knesset Speaker 59(1) PD 577 [2004] (Isr.), translated in 2004 ISR. L. REP. 363 (2004); HCJ 4885/03 Isr. Poultry Farmers Ass’n v. Gov’t of Isr. 59(2) PD 14, 46-48 [2004] (Isr.), translated in 2004 ISR. L. REP. 383, 414 (2004). See Suzie Navot, Judicial Review of the Legislative Process, 39(2) Isr. L. Rev. 183 (2006) and Ittai Bar-Siman-Tov, The Puzzling Resistance To Judicial Review of The Legislative Process, 91 B. U. L. Rev. 1915, 1922, 1968 (2011).
[18] See generally Mordechai Kremnitzer, Disqualification of Lists and Parties: The Israeli Case, in András Sajó (ed.), Militant Democracy 157 (Eleven International Publishing, 2004); Suzie Navot, Fighting Terrorism in the Political Arena the Banning of Political Parties, 14(6) Party Politics 91 (2008).
[19] HCJ 3095/15 The Movement for Quality of Government v. The Prime Minister of Israel (13 August 2015). Deri resigned from this position following his refusal to use his statutory authority under the Antitrust Law prior to the “Gas outline” approval in the cabinet.
[20] See e.g. David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories 145-163 (2002); Aeyal Gross, The Writing on the Wall: Rethinking the International Law of Occupation 163 fn. 118 (2017).
[21] These were non-binding individual opinions.
[22] HCJ 5839/15 Cedar v. The Military Commander of IDF Forces in the West Bank (15 October 2015).
[23] HCJ 1125/16 Meri v. The Military Commander of IDF Forces in the West Bank (31 March 2016). See also Justice Mazuz opinions in HCJ 7220/15 Aliwah v. Commander of IDF Forces in the West Bank (1 December 2015); HCJ 8154/15 Daud Abu Jamal v. GOC Home Front (22 December 2015); HCJ 6745/15 Abu Hashiah v. The Military Commander of IDF Forces in the West Bank (1 December 2015); HCJ 1630/16 Masudi et al. v. The Military Commander of IDF Forces in the West Bank (23 March 2016).
[24] For a review of the case from International law perspective, see Jesse Lempel, Force-Feeding Prisoners on a Hunger Strike: Israel as a Case Study in International Law, Harv. Int’l L. J. (2 December 2016).
[25] The scope of the Freedom of Occupation for corporations was left open, see para. 34 to President Naor’s (majority) decision.
[26] §3 to the Law allows women to voluntarily retire at the age of sixty-two.
[27] NLA 209/10 Weinberger v. Bar Ilan University (6.12.12).
[28] Previous HCJ rulings have dealt with tangent questions: In HCJ 1031/93 Psaro (Goldstein) v. The Ministry of Interior (1995) and HCJ 5070/95 Na’amat – Movement of Working Women and Volunteers (2002) it was decided that a conversion need not be approved by the Chief Rabbinate for the purpose of the Law of Return and the civil registration. In HCJ 2597/99 Rodriguez-Tushboim v Minister of Interior (2004) it was decided that the Law of Return applies to a non-Jew who while residing lawfully in Israel underwent conversion, in Israel or abroad. See e.g. Gidon Sapir, How Should a Court Deal with a Primary Question That the Legislature Seeks to Avoid? The Israeli Controversy over Who is a Jew as an Illustration, 39 Vand. J. Trans. L. 1233 (2006).
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