Dorit Beinisch - Landmark Rulings

Landmark Rulings

Beinisch has focused on government corruption and to ensuring that government institutions adhere to the law, with a particular emphasis placed on the Defence Forces, the police and general security services.

In 2004 Beinisch criticized the use of expedited legislative mechanisms, often used by the Knesset to legislate various economic laws and reforms. She ruled that although judicial review of the legislative process in Israeli does not recognize a ground of lack of “legislative due process,” the Court would intervene if there is a defect in the legislative process that “goes to the heart of the process.” Such a defect is one that involves a severe and substantial violation of the basic principles of the legislative process in Israel’s parliamentary and constitutional system.

In a 2006 case concerning a detainee’s right to legal counsel, the Supreme Court acquitted a soldier convicted of using drugs on the basis of his own confession, because the military policeman who interrogated him did not inform him of his right to consult with an attorney. In this ground-breaking decision, Beinisch ruled that in view of the normative change in the Israeli legal system introduced by the Basic Law: Human Dignity and Liberty, and in the absence of legislation on this issue, the time has come to adopt a case law doctrine of inadmissibility for illegally obtained evidence. She also held that the appropriate doctrine for the Israeli legal system to adopt is not an absolute one, but a relative doctrine which allows the court to exclude illegally obtained evidence at its discretion. In the specific case of the appellant, the failure to inform him of his right to consult a lawyer was intentional, and this was a significant factor in Beinisch’s decision to exclude the confessions he made in the interrogation.

The same year, in one of her most famous and controversial rulings as a justice, she ruled that parents cannot use corporal punishment, writing that corporal punishment violates the child's right to dignity and bodily integrity.

Some of Beinisch’s most important rulings have dealt with the issue of safeguarding human rights while addressing pressing security needs, primarily in cases concerning Israel’s activities in the occupied Palestinian territories. In a 2005 ruling against the Israeli army’s use of “human shields” she concurred with then-President Aharon Barak that the practice of sending in a local Palestinian ahead of Israeli troops during arrest raids endangered his life, violated his free will and his human dignity. In a judgment rendered in September 2007 concerning the separation fence being built by Israel, Beinisch ruled that the military commander did not exercise his discretion in a proportionate manner and that he must alter the route of the fence in regards to a segment near the Palestinian village of Bil'in. In her judgment, Beinisch accepted the military commander’s claim that the fence in Bil’in area was built for reasons of national security. Nevertheless, she held that the military commander had determined the route of the fence while taking into account the future construction plans for new Israeli neighborhoods near this area. These planned neighborhoods do not constitute a vital security need, and hence cannot be taken into account when determining the route of the fence. Considering all that, Beinisch concluded that the route of the fence in the Bil’in area did not meet the proportionality requirement.

In 2007, a petition was brought before the Supreme Court regarding the government’s decision to protect the schools in Israeli cities from attacks by “Qassam” rockets fired from the Gaza Strip. In light of this decision, the authorities adopted a protection plan under which only some of the classrooms were protected. Beinisch ruled that the decision not to fully protect the main classrooms of children in grades 4-12 was extremely unreasonable. It was held that the court would intervene — albeit on rare occasions and with restraint — even in decisions concerning the professional discretion of the authority or the budgets allocated by it, if these decisions depart in an extreme manner from the margin of reasonableness given to the administrative authority. Beinisch emphasized that it would be self-evident that the court would be called upon to intervene to a greater degree where it concerns decisions that may affect human rights in general, and risks presented to human life in particular.

In 2008, Beinisch ruled on interpretation of the Unlawful Combatants Law and the extent to which the law is consistent with international humanitarian law. In her leading judgment, Beinisch wrote that administrative detention of an "unlawful combatant" significantly violates his right to personal liberty. This was consistent with the basic outlook that prevails in the Israeli legal system, according to which it is preferable to uphold a statute by interpretive means wherever possible, rather than to declare it void for constitutional reasons. Several appeals were brought before the Supreme Court challenging specific internment orders that were made under the Unlawful Combatants Law. In her leading judgment, Beinisch wrote that there is no doubt that the administrative detention of an “unlawful combatant” significantly violates the right to personal liberty. While holding the law constitutional, she held that in view of the extent of the violation of personal liberty and of the extreme nature of the measure of detention provided in the law, an interpretive effort should be made in order to minimize, in so far as possible, the violation of the right to liberty so that it is commensurate with the need to achieve the security purpose, and not in excess thereof. Beinisch also held that the provisions of the statute should be interpreted, in so far as possible, in a manner consistent with the accepted norms of international law.

In 2009, Beinisch issued a precedent-setting ruling on the unconstitutional nature of the privatization of prisons. In this judgment, a panel of nine justices led by Beinisch struck down Amendment 28 to the Prison Ordinance, which calls for the creation of a prison in Israel to be managed and operated by a private corporation. Beinisch concluded that the Amendment violates the constitutional rights to personal freedom and human dignity. This violation stems from the very transfer of authority over the imprisonment of inmates and the harmful powers associated with it from the State to a private corporation operating for profit. In her ruling, Beinisch stressed that although Amendment 28 was enacted out of a desire to improve the detention conditions of prisoners in Israel, the main purpose behind the Amendment was an economic one, reflecting a desire to save as much money as possible for the State. In this context, Beinisch stressed in her ruling that although the Supreme Court does not generally intervene in the government’s and the Knesset’s economic policies, when it comes to legislation affecting the most basic constitutional rights, the fact that an economic rationale may have motivated the legislation does not prevent the Court from passing judgment on the law.

In May 2012, the court ruled that employers who pay female employees a significantly lower salary than their male counterparts will bear the burden of proof in case they are accused of discrimination, thus strengthening women's workplace rights. In Beinisch's ruling, the High Court stated that a woman suing for discrimination will not have to prove she was deprived of pay because of her gender, but only show there is a significant difference in salaries. At this point, the burden of proof would lie with the employer who, in his part, will have to convince that there is a legitimate reason for the salary and that the employee was not discriminated. Moreover, the High Court recognized that at times, women have less leverage than men at negotiating pay; therefore, claims that a pay was negotiated freely before hiring the worker will not be enough to justify the extensive gaps. The court's ruling is likely to also affect other cases of discrimination, either sexual, racial, age related, and other cases.

President Beinisch has also written some remarkable dissenting opinions. In a case dealing with former President of State, Moshe Katzav she held in a minority opinion that the plea-bargain agreement - formulated by the Attorney General and the former President of Israel over sexual abuse charges - should be canceled because the details of that bargain contravened administrative principles and were against the public interest. In another case, Beinisch held, in a minority opinion, that the total ban on political advertisements in television and radio broadcasts is invalid because there is no explicit authorization in the primary legislation for such an excessive limitation on freedom of political expression.