Current Trends in the Jurisprudence of the Israeli High Court of Justice Flashcards
What did former Justice Minister Ayelet recently propose with regards to resisting the activist stance taken by the Supreme Court?
A requirement that a special majority of nine or two-thirds of the justices of the Supreme Court is required to invalidate jurisdiction or enabling the Knesset to re-enact legislation struck down by the Supreme Court with a special majority of just 61 members of the Knesset (the “override” clause, similar to s. 33 of the Canadian Charter of Rights and Freedoms).
Who brought in neo-formalism to the Supreme Court?
President of the Supreme Court Asher Grunis.
What year did neo-formalism in the Supreme Court begin to arise?
2012.
What are some characteristics of neo-formalism at the Supreme Court?
Court shows greater restraint. To be clear, none of the major developments of the previous two phases have been reversed. Power to strike down legislation still exercised. Justiciability and standing — public petitions are still allowed; however, caveated by Maya Ackerman et al v Government of Israel.
What case brought about the beginning of the attitude of neo-formalism at the Supreme Court?
Maya Ackerman et al v Government of Israel.
Maya Ackerman et al v Government of Israel.
The manner of conducting foreign policy by the duly authorized bodies is non-justiciable. Public petitions are still allowed, but not on matters of foreign public policy.
What strategies has the Supreme Court employed to avoid direct confrontation with the Knesset without giving up its powers of judicial review?
Interpreting the ripeness problem broadly and reading down legislation so as to mitigate its detrimental effects without striking it down (for example, the Boycott Law decision).
Give an example of the Supreme Court raising the problem of ripeness to avoid confrontation with the Knesset.
Alumni Association v Minister of Finance (Nakba Law Decision).
Alumni Association v Minister of Finance (Nakba Law Decision).
Even though a petition might raise important and fundamental questions and issues, it may not be decided on by the Supreme Court if they determine that the issue is not ripe.
Boycott Law.
Allows for the imposition of tort liability and various administrative sanctions on anyone who knowingly makes a call in public to impose a boycott on the State of Israel.
Avneri v The Knesset.
Challenge to the Boycott Law. Applies the s. 8 test of Basic Law: Human Dignity and Liberty and finds that laws that restrict rights protected under s. 8 of Basic Law: Human Dignity and Liberty must be minimally impairing. When a law may be unconstitutional, the Court may uphold the constitutionality of the law by ‘reading in’ certain special requirements so as to keep the restriction upon free speech within reasonable boundaries.
Give an example of the Supreme Court reading down legislation to avoid confrontation with the Knesset.
Avneri v The Knesset.
