Judicial Authority

	Judicial Authority
	The Independence of the Judiciary
	Proceedings held in open court
	Public Confidence
	Non-Judicial Functions

See: Basic Law: The Judicature, Section 1

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Judicial Authority

  "Basic Law: The Judiciary," provides that judicial

authority in Israel is vested in courts and tribunals. The courts have general judicial authority in criminal, civil and administrative matters, while the tribunals have specific authority in particular matters and with regard to certain people. For example, the Religious Tribunals hear matters relating to personal status between members of recognised religious communities in Israel, principally in matters of marriage and divorce and operate under the Ministry of Religious Affairs.; Labour Tribunals hear claims which are based on the employer-employee relationship and operate under the Courts Administration, which is part of the Ministry of Justice.

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The Independence of the Judiciary

  The judicial branch, which is independent,

is one of the three State authorities, along with the legislative and executive. Its independence is both personal and substantive.

  Personal independence is ensured by the manner

in which judges are appointed and promoted, and is reflected in their term of office, the conditions of service, their salary and in matters concerning the discipline and immunity of judges.

  Substantive independence is ensured by the fact

that in discharging their duties, judges are subject only to substantive law, not to any other authority or person. ("Basic Law: The Judiciary," Section 2).

  The principle of judicial independence has always

been a hallowed tradition of the Jewish people. The Bible commands judges of Israel: "Hear the causes between your brethren, and judge righteously between every man and his brother, and the stranger that is with him. Do not respect persons in judgment; but hear the small as well as the great; do not be afraid of the face of any man," (Deuteronomy 1:15 - 17).

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Proceedings held in open court

See: "Courts Law [Consolidated Version], 5744-1984", Sections 68 and 70.

   Generally, legal proceedings in Israel are held in

public,in open court. However, certain proceedings may be held �in camera� for reasons which are specified by law. Among these are State security and foreign policy; protection of morality; protection of the interests of a minor or one who is helpless; matters of family law; and circumstances where a public hearing might inhibit a witness from freely giving testimony or from testifying at all. The law prohibits the reporting of a court hearing held in camera without the consent of the court.

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Public Confidence

  The independence of the judiciary also serves to

bolster and inspire public trust in the judiciary. Public confidence is founded on the feeling that a judicial ruling is carried out honestly, with objectivity and without bias. In a case before the courts, all stand judged: the litigants, the law and the judge. Thus, public critique of the judiciary is permissable and acceptable.

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Non-Judicial Functions

  In keeping with the principle of separation of

powers, the judicial authority deals only with judging. A dispute is judged and decided according to the grounds prescribed in the law and based upon fixed procedures.

  In Israel there are several laws that accord the

judiciary functions of a non-judicial nature, as when judges are appointed as heads of Commissions of Inquiry ("Commissions of Inquiry Law, 5729-1968"). Another accepted non-judicial function of a Supreme Court Justice is to chair the Central Knesset Elections Committee. This committee supervises the Knesset elections, as prcescribed by the "Knesset and Prime Minister Elections Law (Consolidated Version), 5729-1969."

 

The Legal Tradition of the Jewish People

The Period of the British Mandate

The State of Israel

	Courts and Judges
	Modifications
	The Courts

The Legal Tradition of the Jewish People

  The Jewish people has always been a nation of law.

The Children of Israel, while still in the wilderness, were commanded to observe the precept, �Judges and officers you shall make for yourselves in all your gates,� (Deuteronomy 16:18). Moses appointed judges whose personal attributes were specified in the Bible �. . . able men, such as fear God, men of truth, hating unjust gain,� (Exodus 18:21). The legal tradition continued while the Jewish people were in their homeland and reached refinement in the Sanhedrin, the Jewish court. Subsequently, even during the thousands of years of its exile, in most countries of its dispersion, the Jewish people adhered to their laws, developed them and lived in accordance with them.

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The Period of the British Mandate (1917 - 1948)

  Courts and Judges: During this period the British

instituted their legal system. Magistrates� Courts, District Courts and a Supreme Court were set up. A decision of the Supreme Court could be appealed before the English Privy Council. The legal system reflected the spirit of English law. Though judges were appointed by the High Commissioner, the legal system, to a great extent, preserved its independence from the executive branch of government.

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The State of Israel (1948)

  Continuity: With the establishment of an independent

Israel, the Provisional Government was created to carry out the decisions of the Provisional Council of State. The Provisional Council of State became the legislative authority established to enact laws. It immediately adapted the system of British Common Law. This Council determined that in order to prevent a legal vacuum, the law prevailing before 1948 should continue to be in force, with modifications as prescribed by legislation (�Law and Administration Ordinance, 5708-1948,� Section 11). This legal system comprised a mosaic of laws, some of which were archaic and had been revoked even in their countries of origin. These included Ottoman laws, religious laws, laws from the Mandate period and English laws, including the substance of common law and doctrines of equity in force in England.

  Furthermore, a provision was made that laws already

in effect would continue to function within the scope of the powers conferred upon them, so long as no new law concerning law courts would be enacted (�Law and Administration Ordinance, 5708-1948,� Section 17).

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  Modifications: With the establishment of the State,

the need to appeal to the English Privy Council ended. However, the courts� structure and the delineation of powers between courts, remained essentially unchanged.

  The power to appoint judges, previously vested in the

High Commissioner, was now given to the Provisional Government, to be implemented by the Minister of Justice (�Law and Administration Ordinance,� 5708-1948,� Section 14). Judges of the Supreme Court, however, were appointed by the Provisional Government on the recommendation of the Minister of Justice and subject to the approval of the Provisional Council of State, as found in �Courts (Transitional Provisions) Ordinance, 5708-1948�).

  By virtue of this authority, on the 22 July 1948, the

first five Supreme Court justices were appointed: Moshe Zmora, Yithak Olshan, Simha Assaf, Menachem Dunkelblum and Shneor Zalman Cheshin. Dr. Zmora was appointed as the first President of the Supreme Court. The Supreme Court was empowered to begin functioning on September 1948. It opened on September 1948 and held its first hearing on the following day,16 September 1948.

  During the intermediate period from 14 May 1948

until the date on which the Supreme Court began to function, (15 September 1948), the District Court of Tel Aviv was empowered to serve temporarily as the High Court of Justice to enable redress against State authorities. This power is found in �Courts (Transitional Provisions)Ordinance, 5708-1948,� Section 2a). The method for making judicial appointments was changed with the enactment of the �Judges� Law, 5713-1953.� This law stipulated for the first time, the following matters: qualifications for the appointment of judges; mode of appointment of judges (by the President of the State, upon the proposal of an Appointments Committee); provisions for the independence of judges and the operation of a Court of Discipline for judges.

  The provisions of the "Judges' Law, 5713-1953," were

incorporated with modifications in 1984, in the �Basic Law: The Judiciary and the Courts Law (Consolidated Version), 5744-1984�.

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  The Courts: The "Courts Law, 5717-1957,"

left the existing court structure in place (with minor modifications), delineated the Courts� powers and made specific provisions for them. In 1984, the �Courts Law (Consolidated Version), 5744-1984,� was enacted to replace the earlier version.

	See: Basic Law: The Judicature Courts Law [Consolidated Version], 5744-1984.
	The Court system is comprised of the Supreme Court, the District Courts and the Magistrates’ Courts.

 

Its status

Judges

Powers

	As an appellate court
	As the High Court of Justice
	Further Hearing

Composition

Presiding Judge

The Supreme Court

See: Courts Law [Consolidated Version], 5744-1984, Sections 25-32.

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  Its status: The Supreme Court is at the head of the

court system in the State. It is the highest judicial instance. The Supreme Court sits in Jerusalem. The area of its jurisdiction is the entire State. A ruling of the Supreme Court is binding upon every court, other than the Supreme Court itself. This is the principle of binding precedent (stare decisis) obtaining in Israel.

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  Judges: The number of Supreme Court justices is

determined by a resolution of the Knesset. Usually, twelve justices serve in the Supreme Court. At the present time there are fourteen Supreme Court justices. At the head of the Supreme Court and at the head of the judicial system as a whole stands the President of the Supreme Court, and at his side, the Deputy President.

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  Powers: The Supreme Court is an appellate court,

as well as the High Court of Justice.

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  As an appellate court, the Supreme Court

considers cases on appeal (both criminal and civil) on judgments and other decisions of the District Courts. It also considers appeals on judicial and quasi-judicial decisions of various kinds, such as matters relating to the legality of Knesset elections, disciplinary rulings of the Bar Association, prisoners’ petitions and administrative detention.

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  As the High Court of Justice, the Supreme Court

rules as a court of first instance, primarily in matters regarding the legality of decisions of State authorities: Government decisions, those of local authorities and other bodies and persons performing public functions under the law. It rules on matters in which it considers it necessary to grant relief in the interests of justice, and which are not within the jurisdiction of another court or tribunal.

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  Further Hearing: The Supreme Court can also sit

at a “further hearing” on its own judgment. In a matter on which the Supreme Court has ruled - whether as a court of appeals or as the High Court of Justice - with a panel of three or more justices, it may rule at a further hearing with a panel of a larger number of justices. A decision to hold a further hearing is made whenever the Supreme Court makes a ruling inconsistent with a previous ruling or, where the importance, difficulty or novelty of a ruling made by the Supreme Court justifies such a further hearing.

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  Retrial: A special power, unique to the Supreme

Court, is the power to order a “retrial” on a criminal matter, in which a final judgment has been given. A ruling to hold a retrial is made in the following circumstances: where the Court finds that evidence provided in the case was founded upon lies or was forged; where new facts or evidence are discovered that are likely to alter the decision in the case in favour of the accused; where someone else has meanwhile been convicted of carrying out the offence and it appears from the circumstances revealed in the trial of that other person that the original party convicted of the offence did not commit it; or, where there is a genuine concern that a miscarriage of justice has been done as a result of the conviction of the accused, all as prescribed by the law. In practise, a ruling to hold a retrial is made very rarely.

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  Composition: The Supreme Court, both as an

appellate court and the High Court of Justice, is normally constituted of a panel of three justices. One Supreme Court justice alone may rule on interim orders, temporary orders or petitions for an order nisi, and on appeals on interim rulings of District Courts, or on judgments given by a single District Court judge on appeal, and on a judgment or decision of the Magistrates’ Courts. The Supreme Court sits as a panel of five justices or more in a ‘further hearing’ on a matter in which the Supreme Court sat with a panel of three justices. The Supreme Court may sit as a panel of a larger uneven number of justices than three in matters that involve fundamental legal questions and constitutional issues of particular importance.

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  Presiding Judge: In a case in which the President

of the Supreme Court sits, the President is the Presiding Judge; in a case in which the Deputy President sits and the President does not sit, the Deputy President is the Presiding Judge; in any other case, the Judge with the greatest length of service is the Presiding Judge. The length of service, for this purpose, is calculated from the date of the appointment of the Judge to the Supreme Court.

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Jurisdiction:

	As a court of first instance
	As an appellate court

Guiding Precedent

Judges

Composition

Presiding Judge

Appeal

The District Court

See: Courts Law [Consolidated Version], 5744-1984, Sections 33-42.

  In Israel there are five District Courts: in Jerusalem,  

Tel-Aviv-Jaffa, Haifa, Be'er Sheva and Nazareth. Approximately 90 judges serve in these courts.

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  Jurisdiction: The District Court sits as a court of

first instance and as an appellate court on the judgments of the Magistrates' Court. It also hears appeals on judicial and quasi-judicial decisions of Administrative Tribunals and other different bodies, by virtue of the powers conferred specifically upon it by law.

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  As a court of first instance: As a court of first

instance, the District Court has a kind of residual jurisdiction. It has jurisdiction in any matter not within the jurisdiction of the Magistrates’ Court and which is not within the sole jurisdiction of another court.

  Criminal matters: The District Court has

jurisdiction in any criminal matter not within the jurisdiction of the Magistrates’ Court. These are, essentially, cases of serious criminal offences, in which the penalty for the offence is the death penalty or imprisonment for a period of more than seven years.

  Civil matters: In civil matters, the District Court has

jurisdiction in regard to monetary claims of a particularly high sum or value, of above one million Israeli shekels.

The District Court has jurisdiction also in other matters, such as prisoners’ petitions, appeals on tax matters, appeals regarding the Knesset elections register. Appeals regarding Knesset election results are heard before the Jerusalem District Court. The Haifa District Court also serves as a Maritime Court. District Court judges, duly appointed, also serve as Presiding Judges of Standard Contracts Tribunals and Restrictive Practices Tribunals.

  Until recently, the District Court also heard matters

relating to personal status which were not within the sole jurisdiction of the Religious Tribunals. Jurisdiction in regard to these matters has now been vested in the Magistrates’ Courts, sitting as a Family Court. This change is part of a process of complete restructuring of the court system, initiated by the Knesset. Its purpose is to gradually transform the District Court into essentially an appellate court. Many of the issues within the District Court’s jurisdiction as a court of first instance will be given over to the Magistrates’ Courts, other than jurisdiction in regard to serious criminal offences and certain civil matters.

  It is also intended to gradually transfer some of the

powers of the Supreme Court as the High Court of Justice to the District Courts. In 1997 a Bill was submitted to the Knesset which proposes that District Courts serve as Administrative Courts, and rule on matters that are at present within the jurisdiction of the Supreme Court. In these courts, judges with the expertise to adjudicate such matters would sit and the procedures, remedies and grounds of action applicable in the High Court of Justice would be in effect.

  As an appellate court: The District Court hears

appeals on the judgments of Magistrates’ Courts. It also hears appeals on judicial and quasi-judicial decisions of Administrative Tribunals and other different bodies, by virtue of the powers conferred specifically upon it by law, as well as upon decisions of the Chief Execution Officers.

  Guiding Precedent: A ruling laid down by the

District Court serves as a persuasive or guiding precedent to the Magistrates’ Courts.

  Judges: The number of District Court judges in

each Court is determined by the Minister of Justice. Each District Court is headed by a President, and at his side, one or more Deputy Presidents.

  Composition: District Courts are usually

composed of a Single judge. But the District Court sits as a panel of three judges when it serves as a court of appeal on a judgment of a Magistrates’ Court, and when it hears, at first instance, cases of particularly serious offences (such as murder, attempted murder, rape, sexual offences within the family, and offences against state security), and any other matter in respect of which the President or Deputy President of the District Court has directed that it be dealt with by a bench of three Judges.

  Presiding Judge: Where a District Court deals

with any Matter by a bench of three Judges, including the President, the President is the Presiding Judge; if a Deputy President, but not the President, is included, the Deputy President is the Presiding Judge; if more than one Deputy President is included, the one with the greater length of service is the Presiding Judge; in any other case, the Judge with the greatest length of service is the Presiding Judge. The length of service, for this purpose, is calculated from the date of the appointment of the Judge to the District Court.

  Appeal: Judgments of the District Court are

appealable to the Supreme Court. If the judgment has been given at first instance, the appeal is as of right; if the judgment has been given by the District Court as an appellate court, then the appeal is by leave to appeal. Leave to appeal is granted either in the judgment itself or by a Supreme Court justice. Interim decisions of the District Court in civil matters are also appealable to the Supreme Court where leave to appeal has been granted by a Supreme Court justice.

 

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