PP 57: Co-operative Societies Ordinance (no 12) - Expanding the Scope of the Admission Committee Law

Summary of Position Paper No 57

3.9.2023

On 25.7.2023 the Knesset approved Amendment No. 12 to the Cooperative Societies Ordinance. This amendment expands the permissible scope of activity of Admission Committees. The bulk of the amendment relates to the size and type of settlement in which candidates for admission may be sorted and selected by an Admission Committee.

The first statute dealing with Admission Committees was passed in 2011, allowing settlements in the Galilee and Negev districts with up to 400 residential units to act through Admission Committees in selecting candidates for settlement. These Committees were authorized to reject candidates, among other things, on the grounds that they were “not suited to the social life of the community”, or that they were not suited to “the social-cultural fabric of the community settlement, and there is reason to assume that they will undermine that fabric”.

The new Amendment considerably expands the possibility of acting through Admission Committees. It now permits settlements with up to 700 residential units (allowing for even more in case of a Ministerial Order) and it expands the territorial area in which they may be used beyond the Galilee and the Negev to any settlement designated as having “national priority”.

The Israeli Law Professors’ Forum for Democracy, an ad hoc and voluntary group of experts on Israeli law, and particularly Israeli public law, are of the opinion that this Amendment is unconstitutional.

• The Amendment further undermines the right to equality, the right to privacy, and the right to dignity of candidates for admission to a community, as well as the right to private property of members of the co-operative society and of those seeking to join a community.

• Granting community settlements the power to sort and exclude those they prefer not to have among them, including members of minority or otherwise disadvantaged groups, permits wrongful discrimination. Such discrimination goes against Supreme Court rulings on the matter and contradicts Sec. 6c(c) of the Cooperative Societies Ordinance that forbids “discrimination on the basis of race, religion, gender, nationality, disability, personal status, age, parental status, sexual preference, country of origin and political opinion or party affiliation.”

• The circumstances in which it might be legally justified to exclude candidates for admission to a settlement with unique characteristics do not exist in the majority of community settlements in Israel. Since Amendment No. 12 will increase existing spatial exclusion and will lead to severe discrimination of a significant number of people and groups in Israeli society, in particular disadvantaged groups such as Arabs, Mizrahim, single-parent families, and people with disabilities, we are of the opinion that Amendment No. 12 is unconstitutional.

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PP 56: The Legality of Police Restrictions on Demonstrations Outside the Residence of Public Figures

Summary of Position Paper No 56

Distributed: 28.8.2023

Summary

The Israeli Law Professors’ Forum for Democracy is an ad hoc and voluntary group of experts on Israeli law, particularly Israeli public law. This paper deals with restrictions imposed by the police on demonstrations outside the private residence of public figures. It is our position that:

· The a priori restrictions that the police impose on demonstrations outside the private residence of public figures are illegal, as their imposition exceeds the powers given to the police.

· In addition, these restrictions violate the requirement of proportionality. There is good reason to suspect that they are imposed arbitrarily and on the basis of irrelevant considerations. As such, they infringe excessively and without sufficient justification the right to demonstrate, a fundamental constitutional right at the core of the right to freedom of political speech.

The Forum requests to join as an amicus curiae the petitions against Unreasonableness Amendment

The Israeli Law Professors’ Forum for Democracy submitted today (20.8.2023) a request to join as amicus curiae (“friend of the court”) the petitions against the “Unreasonableness Amendment.” This amendment became law on Monday 24 July 2023. It amends Section 15 of the Basic Law: The Judiciary, which defines the jurisdiction of the Supreme Court sitting as a High Court of Justice to review governmental acts and decisions. According to the Amendment, no court of law, including the High Court of Justice, may consider and/or pass judgment on the reasonableness of any “decision” of the Cabinet, the prime minister, or any minister; nor may a court give an order on the said matter based on its purported unreasonableness.

The Forum’s amicus brief presents for the first time, on the basis of comprehensive and in-depth historical and comparative research, the serious flaws that fell in the hasty and inappropriate legislative process conducted in the Constitution, Law and Justice Committee of the Knesset. In particular, the brief argues that the Unreasonableness Amendment was enacted in a flawed procedure that is not compatible with the manner in which basic laws should be enacted. Additionally, the legislative process in this case did not follow the procedural rules for enacting basic laws at the initiative of a Knesset committee. The brief details how a procedure intended for uncontroversial matters was misused in this case.

With regard to the substance of the Amendment, the brief argues that stripping the jurisdiction of the courts to exercise judicial review on the reasonableness of governmental decisions, without establishing an equivalent, equally independent procedure as a substitute, amounts to a misuse of the Knesset’s constituent power, and even exceeds its authority as a constitutional assembly as it undermines the existence of an independent judiciary. Judicial independence is a central and fundamental cornerstone of democracy, alongside fair elections, rights and liberties, institutions providing checks and balances and the rule of law. Such jurisdiction stripping severely affects judicial oversight of the executive branch, and thus further deteriorates Israeli democracy.

Furthermore, the brief argues that the Unreasonableness Amendment must be examined alongside and in the context of the other legislative steps planned by the government, and in light of the existing system of checks and balances. The experience of other countries makes clear that the weakening of judicial review is a central pillar of processes of democratic erosion, as it removes obstacles facing a government seeking to consolidate its power, and makes it easier for those in power to undertake further institutional changes. Given the importance of maintaining independent courts in the context of democratic backsliding, and the comparative experience showing that democratic deterioration is accelerated when judicial independence is compromised, the exercise of judicial review over constitutional amendments harming the judicial function is necessary in order to protect democracy.

Finally, the brief argues that the combination of procedural and substantive defects further aggravates the unconstitutionality of the Amendment.

Through this brief, supported by 150 senior faculty members from all law faculties in Israel, the legal academic community offers to assist the High Court of Justice in the forthcoming important discussion triggered by the petitions concerning the fundamental values of the State of Israel.

Full copy of the brief (in Hebrew):

https://www.lawprofsforum.org/post/__forum_amicus