Israeli Legal Precedents: High Court & Basic Laws
Jewish State Meaning & Law of Return
The statement posits that the meaning of a Jewish state in the Basic Law: Human Dignity and Liberty is purely religious, as there is no other meaning to Judaism. Therefore, the definition of a Jew in the Law of Return must conform to Halakhic Law.
- The concept of a Jewish state is controversial and disputed among different segments of Israeli public opinion.
- In 1970, the definition of who is a Jew was inserted into the Law of Return.
Ka’adan Case: Land Allocation Discrimination
In the Ka’adan case, the High Court of Justice ruled that using Zionist organizations to discriminate between citizens with regard to the allocation of land is unlawful.
Kollel Student Budget Ruling
- Discriminatory
- Violated rights to equality
- Cannot stand
Nationality & Entry Order (2003) Ruling
Regarding an Arab-Israeli woman seeking citizenship for her Palestinian husband, the court would rule that while the Nationality and Entry Temporary Order (2003) does violate the right to human dignity, it does so within the bounds of the limitation clause as set forth in the Basic Law: Human Dignity and Liberty.
Adam v. Knesset: Asylum Seeker Detention
In the Adam v. Knesset case, concerning asylum seekers from Africa whom the government authorized to be arrested, the High Court of Justice ruled that the Basic Law: Human Dignity and Liberty covers all non-citizens in the State of Israel, and that three years’ detention is invalid and disproportionate.
Harari Decision: Constitution Structure
The Harari decision determined that the Constitution will consist of separate chapters, with each chapter constituting a Basic Law on its own.
Law of Return & Jewish Democratic State
The Law of Return is compatible with the State of Israel being described in the Basic Law as “Jewish and Democratic” because:
- Every country has a right to self-determination and to establish its rules of immigration.
- According to a key theory in the Ka’adan case, the law does not discriminate between citizens of the country. It gives special privileges to Jews to enter, but once inside, all are equal.
- It is a law of repatriation, and such laws are common in Europe and compatible with international law.
Equality Principles in Israeli Law
- Stems from the Declaration of Independence.
- Is linked indirectly under the Basic Law: Human Dignity and Liberty.
- Was reinforced in the El Al case regarding same-sex couples.
KeHalacha Case: Student Segregation
In the KeHalacha case, the court ruled that the separation and differentiation of two tracks of students based on their origins was discriminatory.
Judicial Review Post-Constitutional Revolution
Since the Constitutional Revolution, the High Court of Justice has the power of judicial review to check when the Knesset passes a law which is unlawful or incompatible with the 1992 Basic Laws, except for laws that existed prior to the Constitutional Revolution.
Justiciability of Government Actions
Under Israeli Law, everything the government and the Knesset do is justiciable, liable to be reviewed by the High Court of Justice.
Supreme Court & Law of Return Justification
The Law of Return is justified by the Supreme Court as affording Jews a special privileged position with regard only to immigration and settling in Israel.
Ottoman Millet System & Marriage Laws
The Ottoman “millet system” (jurisdiction in family matters given to religious courts) is mitigated by laws which expressly enable marriages of couples who are prevented from getting married by religious laws.
Applicable Law in the West Bank
- Customary International Law
- Law applicable in the West Bank before the Six-Day War
- Principles of Israeli administrative law
- Humanitarian provisions of the Fourth Geneva Convention
High Court & Separation of Powers
The High Court interprets the separation of powers to mean:
- All government actions are subject to judicial review.
- The Court will review all actions of the Knesset and its bodies if they violate basic values of the legal system.
Basic Law: Human Dignity & Liberty Scope
The Basic Law: Human Dignity and Liberty:
- Does not include specific reference to equality of all Israelis.
- Does not ensure freedom of religion and from religion.
- Does not govern present and past legislation of the Knesset.
- Does not specify how judicial review of legislation should be conducted.