On April 21, 2016,
Adalah, HaMoked, Addameer and DCI-Palestine petitioned the High Court of Justice (HCJ) to revoke the Penal Law (Amendment No. 120 and Temporary Order), 5776-2015, which established Clause 325(B) of the National Insurance Law denying social security benefits to parents of minors serving a sentence for security offences “committed for a nationalistic motive or in affinity to terrorist activity.” The organizations challenged the legality of this clause, primarily for being discriminatory against convicted Palestinian minors, who constitute the absolute majority of minors convicted of security offences in the State of Israel. The organizations also argued this constituted unconstitutional use of benefits given by the National Insurance Institute (NII) for punitive rather than social security reasons, contrary to their purpose.
In the judgment of July 8, 2021, a majority of five against four justices accepted the petition and ruled the clause would become invalid in a year’s time, to allow the legislator to revise it in the interim. The court ruled that this piece of legislation violated the right of the minors’ parents to constitutional equality, which forms part of the right to human dignity, and that it fails “the constitutional standards of Basic Law: Human Dignity and Liberty”.
The legislation allows to sweepingly deny various benefits from parents of offenders rather than the offenders themselves, without examining their conduct in relation to their child’s offence and without giving them the right to plead their case. The distinction created by this law, between parents of convicted minors and other parents, wrote Justice Vogelman, “encroaches on the conception that every person is an autonomous being. The denial of benefits… sends the social message that the stigma attending the minors’ deeds also stains their parents… without need for any consideration of the parents themselves…”. Justice Baron added that “the denial of benefits… amounts to
collective punishment” (emphasis in the original). Given the existence of “various balancing mechanisms that would allow for a more proportionate infringement of rights”, said Justice Barak-Erez, this was disproportionate legislation. President Hayut stressed that such a sweeping arrangement was “highly exceptional” in Israeli legislation regulating parents’ responsibility for their children’s actions. Justice Barak-Erez noted that the legislation was also problematic because it applied uniformly without differentiating between the offences according to their severity as set in Israel’s Penal Law.
The majority justices also criticized the law’s vagueness as to the entity authorized to determine the law’s applicability and the process for determination whether a minor was convicted for an offence “committed for a nationalistic motive or in affinity to terrorist activity”. This, given that “as a rule, a motive or purpose for committing an offence does not constitute part of the definition of the offence” and does not appear in the indictment and judgment regarding most of the offences over which the Clause applied – including the offence of throwing a stone or any other object at a vehicle. This, in effect, leaves a patently judicial decision in the hands of a Ministry of Interior clerk. Retired Deputy President Meltzer noted in the judgment that leaving a judicial decision to the discretion of an organ of the executive branch frustrated the principle of the separation of powers. On this matter, the state announced during the proceedings that it might revise the law so that Clause 325(B) would only be implemented on the basis of an express finding of the criminal court that the case constituted a “terrorist act” as defined in the Counter-Terrorism Law, 5776-2016.
The justices did not rule on the petitioners’ argument that this was ethnic discrimination. On this issue, Justice Barak-Erez noted that the data concerning minors convicted for “security offences” were too vague to decide if this was a matter of “effective discrimination”, but added that “a dark cloud hangs over the answer”.
Justice Hayut proposed to postpone the revocation of the Clause by a year to allow its revision, and gave the following reasons: thus far the law had only been implemented regarding ten minors (as of February 2021); the clause had not been implemented for some time, partly due to “difficulties relating to the mechanism of transferring the information to the NII”; and finally, given the “efforts” to amend it. President Hayut added that enabling the legislator to revise the law, “may facilitate the constitutional dialogue between the authorities and evinces the restraint required from the court when it orders the revocation of a law enacted by the Knesset”.
