Judicial Decisions: Judicial Review by the Supreme Court of the Constitutionality of Ordinary Legislation of the Knesset in Light of the Basic Law: Human Dignity and Freedom

2012 ◽  
pp. 231-303
Keyword(s):  
Supreme Court ◽  
Human Dignity ◽  
Judicial Review ◽  
Judicial Decisions ◽  
Basic Law ◽  
The Supreme Court

Fantasies of Liberalism and Liberal Jurisprudence: State Law, Politics, and the Israeli Arab-Palestinian Community

2000 ◽  
Vol 34 (3) ◽  
pp. 425-451 ◽  
Author(s):  
Gad Barzilai
Keyword(s):  
Supreme Court ◽  
Human Dignity ◽  
Judicial Review ◽  
Legal Culture ◽  
Social Needs ◽  
Judicial Activism ◽  
New Era ◽  
Basic Law ◽  
The Social ◽  
The Supreme Court

Some thirty years after the Bergman decision, Israel's constitutional structure and legal culture are still not responsive to minority needs or, more broadly, to the social needs of deprived communities. The liberal language and judicial review of Knesset legislation that were empowered by Bergman have not reconciled this problematic discrepancy between jurisprudence and social needs.The Bergman ruling signified the onset of a new era in Israel jurisprudence — the era of liberalism, in that it generated the notion of judicial counter-majoritarianism as the center, however problematic, of democracy. It was a modest ruling and a careful one, dwelling only on procedural deficiencies as cause for judicial abrogation of parliamentary legislation. Later on, after 1992, and propelled by the spirit of judicial activism, the Supreme Court adopted a more expansive judicial policy. It asserted the need for much more active judicial review of the substance of Knesset legislation and even the possibility of annulling it if it fell within the provisions of the Basic Law: Human Dignity and Freedom and the Basic Law: Freedom of Occupation.

The Impact of the Basic Law: Human Dignity and Liberty on the Law of Criminal Procedure and Evidence

1999 ◽  
Vol 33 (3) ◽  
pp. 678-719 ◽  
Author(s):  
Eliahu Harnon
Keyword(s):  
Supreme Court ◽  
Human Dignity ◽  
Criminal Procedure ◽  
Social Background ◽  
Basic Law ◽  
The Supreme Court ◽  
The Law ◽  
Constitutional Right ◽  
Law Of Evidence ◽  
The Impact

In March 1992, Israel's Parliament, the Knesset, enacted Basic Law: Human Dignity and Liberty. Some believe that this Basic Law has created a constitutional revolution in Israel, while others feel this view to be exaggerated. In any event, there is general agreement that the Basic Law, with its 13 brief sections, has effected many significant changes in numerous areas of law.It is well known that criminal procedure and some parts of the law of evidence are particularly sensitive to constitutional changes. To what extent is this also true in Israel as a consequence of the Basic Law and interpretations given to it?More particularly, what precisely does the Basic Law say, and what has the Supreme Court inferred from the principles of human dignity and liberty beyond the express provisions of the Basic Law? What influence does the Basic Law exert on new legislation and indeed on legislation preceding the enactment of the Basic Law itself? May one expect that the Supreme Court will adopt the idea that the Basic Law embodies an exclusionary rule of evidence obtained in breach of a constitutional right? These, and other relevant questions, will be discussed below. First, however, we shall refer briefly to the legal and social background of the Basic Law.

Enforcement of Divorce Judgments in Jewish Courts in Israel: The Interaction Between Religious and Constitutional Law

2012 ◽  
Vol 4 (1) ◽  
pp. 1-68 ◽  
Author(s):  
Yehiel S. Kaplan
Keyword(s):  
Policy Analysis ◽  
Supreme Court ◽  
Human Dignity ◽  
Constitutional Law ◽  
The State ◽  
Coercive Measures ◽  
Basic Law ◽  
The Supreme Court ◽  
State Of Israel ◽  
Do So

In the State of Israel, Rabbinical courts are granted sole jurisdiction in the adjudication of marriage and divorce of Jews. In these courts, the husband presents the divorce writ of Jews, the get, to his wife on the occasion of their divorce at the end of the adjudication process. When Jews sue for divorce in Rabbinical courts, the courts occasionally determine that the man should grant his wife a get or that the wife should accept the get granted by her husband. Sometimes one spouse disobeys the ruling. Although the Rabbinical courts occasionally impose sanctions in an attempt to enforce divorce judgments, they are generally reluctant to do so. The implementation of inappropriate measures can lead to the conclusion that a given divorce is in fact a legally ineffectual coerced divorce. Consequently, the Jewish courts occasionally delay the imposition of these sanctions out of concern that inappropriate coercive measures invalidate the get, rendering the couple still legally married. The Supreme Court of Israel has ruled, though, that the Rabbinical courts in Israel should act in light of the constitutional principles in Basic Law: Human Dignity and Freedom. However, the Supreme Court of Israel has not clearly or specifically addressed the balance between the rights and obligations of the husband and wife in the process of enforcing divorce judgments, neither before nor after the enactment of the of the two important constitutional Basic Laws enacted in 1992. A detailed policy analysis of the sanctions against recalcitrant spouses in Rabbinical courts in Israel—in light of the principles of Jewish and constitutional law in the country—has not yet been undertaken. The aim of this essay is therefore to present the appropriate formula pertaining to the imposition of sanctions against recalcitrant spouses given the principles of Jewish and constitutional law. The formula is presented in light of constitutional law in Israel. However, it is also applicable in other countries with similar constitutional legislation, such as Canada, where legislation sometimes allows for the civil enforcement of Jewish divorce.

Leading Decisions of the Supreme Court of Israel and Extracts of the Judgment

1997 ◽  
Vol 31 (4) ◽  
pp. 754-802 ◽  
Author(s):  
Omi
Keyword(s):  
Supreme Court ◽  
Human Dignity ◽  
Supreme Court Decision ◽  
Court Decision ◽  
District Court ◽  
Conditional Release ◽  
Basic Law ◽  
The Supreme Court ◽  
The Law ◽  
State Of Israel

Ganimat v. The State of Israel (1995) 49(iv) P.D. 589.The appellant was indicted in the Jerusalem Magistrate Court for two incidents of car theft. His detention was requested on the grounds that he posed a “danger to society”. The Magistrate Court agreed to his arrest, holding that a custom has been established whereby custody may be justified in crimes which have become “a nationwide scourge”, including car theft. The District Court rejected the appeal. The appellant was granted permission to appeal the decision in the Supreme Court (decision of Dorner J. and Barak J.; Cheshin J. dissenting) and his conditional release was ordered. However, it was decided to hold Special Proceedings in order to discuss some of the important issues raised by the case. The principal constitutional question raised by the case was whether the Basic Law: Human Dignity and Liberty influences the interpretation of the existing law, in the present case, the law of arrest as regulated by the Law of Criminal Procedure.

scholarly journals Analisis Yuridis Terhadap Alasan Penemuan Novum Palsu Sebagai Dasar Peninjauan Kembali Kedua dalam Perkara Perdata

AL-HUKAMA ◽  
2019 ◽  
Vol 9 (1) ◽  
pp. 130-148
Author(s):  
Ulil Manaqib
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Criminal Case ◽  
District Court ◽  
Legal Analysis ◽  
Civil Case ◽  
Judicial Decisions ◽  
Opposing Party ◽  
The Supreme Court

This article discusses the juridical analysis of the reasons for the discovery of a fake novum as the basis of a second review in a civil case. This study aims to answer the question of how are the reasons for the discovery of a fake novum as the basis for a second review in a civil case? and how are the legal analysis of a reason for the discovery of a fake novum as a the basis for a second review in a civil case. The reason for receiving the second review in the civil case is based on the discovery of a novum which was declared false by the Criminal Judge of the Bandung District Court that has inkracht, is a reason that falls within the criteria of Article 67 letter (a) which reads: “If the decision is based on a lie or a ruse the opposing party that is known after the case has been decided or based on evidence which is later declared to be false by the criminal judge”, is not classified as a reason for finding novum or the reason there are two conflicting judicial decisions. Secondly, the second review in the pedata and criminal case is only limited to the reason that there are two Judicial Decisions that are interrelated with one another (SEMA Number 10 Year 2009), so in addition to these reasons, the Supreme Court has never issued a policy related to the second mechanism Judicial Review, including on the grounds that a novum has been legally and convincingly found false by a public court.

The Israeli Unfinished Constitutional Revolution: Has the Time Come for Protecting Economic and Social Rights?

2004 ◽  
Vol 37 (2-3) ◽  
pp. 299-345 ◽  
Author(s):  
Yoram Rabin ◽  
Yuval Shany
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Hard Core ◽  
Social Rights ◽  
Cultural Rights ◽  
Basic Law ◽  
The Supreme Court ◽  
The Status ◽  
Interpretive Strategies ◽  
The Right

AbstractThis article addresses the constitutional discourse surrounding the status of economic and social rights in Israel. It examines the principal interpretive strategies adopted by the Supreme Court with regard to the 1992 basic laws (in particular, with respect to the right to human dignity) and criticizes the Court's reluctance to apply analogous strategies to incorporate economic and social rights into Israeli constitutional law. Potential explanations for this biased approach are also critically discussed. The ensuing outcome is a constitutional imbalance in Israeli law, which perpetuates the unjustified view that economic and social rights are inherently inferior to their civil and political counterparts, and puts in question Israel's compliance with its obligations under the International Covenant of Economic, Social and Cultural Rights. At the same time, encouraging recent Supreme Court decisions, particularly the YATED and Marciano judgments, indicate growing acceptance on the part of the Court of the role of economic and social rights in Israeli constitutional law, and raise hopes for a belated judicial change of heart concerning the need to protect at least a ‘hard core’ of economic and social rights. Still, the article posits that the possibilities of promoting the constitutional status of economic and social rights through case-to-case litigation are limited and calls for the renewal of the legislation procedures of draft Basic Law: Social Rights in the Knesset.

The concept of human dignity in the case-law of the Supreme Court of Canada on Charter Equality Rights

2021 ◽  
Vol 30 (5) ◽  
pp. 118-137
Author(s):  
Tatiana Vasilieva ◽  
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Supreme Court ◽  
Human Dignity ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Equality Rights ◽  
The Supreme Court ◽  
Additional Burden ◽  
The Impact

This article explores the evolution of the Supreme Court of Canada’s approach to the application of the concept of human dignity in constitutional equality cases. Traditionally, in human rights cases, this concept serves only to strengthen the argument, to show that the violation affects the person’s intrinsic worth. It is only in Canada and in South Africa that there is experience in applying the concept as a criterion for identifying discrimination. In 1999, in Law v. Canada, the Supreme Court recognized the purpose of Article 15(1) of the Canadian Charter of Rights and Freedoms of 1982 to be the protection of human dignity and stated that discrimination must be established based on assessment of the impact of a program or law on human dignity. However, in 2008, in R. v. Kapp, the Court noted that the application of the concept of human dignity creates difficulties and places an additional burden of prove on the plaintiff. It is no coincidence that victims of discrimination have preferred to seek protection before human rights tribunals and commissions, where the dignity-based test is not used. Subsequently, the Supreme Court of Canada rejected the use of the concept of human dignity as a criterion for identifying discrimination. The unsuccessful experience of applying the concept of human dignity as legal test has demonstrated that not every theoretically correct legal construction is effective in adjudication.

scholarly journals Informal networks and judicial decisions: Insights from the Supreme Court of the Philippines, 1986–2015

2018 ◽  
Vol 39 (5) ◽  
pp. 616-633 ◽  
Author(s):  
Björn Dressel ◽  
Tomoo Inoue
Keyword(s):  
Supreme Court ◽  
Political Influence ◽  
The Philippines ◽  
Informal Networks ◽  
Significant Evidence ◽  
Presidential Appointments ◽  
High Profile ◽  
Judicial Decisions ◽  
The Supreme Court

To what extent do informal networks shape the decisions of the Supreme Court of the Philippines? Though often raised in the Philippines, this question has never been studied empirically. To answer it, we constructed a set of social network variables to assess how informal ties, based on university connections and work affiliations, may have influenced the court’s decisions between 1986 and 2015 in 47 politically high-profile cases. Providing statistically significant evidence for the effects of political influence (presidential appointments) and hierarchical pressure (the vote of the Chief Justice) on related networks, our analysis suggests a continuing tension on the Supreme Court bench between professionalism and informality. Because the findings advance both theoretical and empirical understanding of larger issues at the intersection of courts and society throughout the region, we recommend more attention to the role of judicial networks, external to the courts as well as within them.

The Role of Courts in Rifted Democracies

1999 ◽  
Vol 33 (2) ◽  
pp. 216-258 ◽  
Author(s):  
Ruth Gavison
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Review ◽  
Public Life ◽  
The Political ◽  
The Rule Of Law ◽  
Independent Judiciary ◽  
The Supreme Court ◽  
Harsh Criticism

A discussion of the role of courts in Israel today demands some introductory remarks. The Supreme Court and the President of the Supreme Court enjoy great acclaim and respect within Israel and abroad, but have recently come under attack from a variety of sources. These attacks are often confused, and many of them are clearly motivated by narrow partisan interests and an inherent objection to the rule of law and judicial review. But these motives do not necessarily weaken the dangers which the attacks pose to the legitimacy of the courts in general, and the Supreme Court in particular, in Israel's public life. The fact that in some sectors extremely harsh criticism of the court is seen to be an electoral boost, testifies to the serious and dangerous nature of the threat. This situation creates a dilemma for those who want a strong and independent judiciary, believing it is essential for freedom and democracy, but who also believe that, during the last two decades, the courts have transgressed limits they should respect. The dilemma becomes especially acute when the political echo sounds out in one's criticism, and when one is part of the group that believes that the legal and the judicial systems have made some contribution to the prevalence of these hyperbolic and dangerous attacks, as I am.

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