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Israel
The Judicial System
The Judiciary Law of 1984 formalized the judicial structure consisting
of three main types of courts: civil, religious, and military.
There also are special courts for labor, insurance, traffic, municipal,
juvenile, and other disputes. Each type of court is administratively
responsible to a different ministry. Civilian courts come under
the Ministry of Justice; religious courts fall under the Ministry
of Religious Affairs, and military courts come under the Ministry
of Defense (see The Role of Judaism , ch. 2; Discipline and Military
Justice , ch. 5). In the administration of justice, however, all
courts are independent and Israelis generally concede their fairness.
Legal codes and judicial procedures derive from various sources.
Laws applicable to Israeli Jews in matters of personal status
are generally based on the Torah (see Glossary) and the halakah
(see Glossary). Influences traceable to the British Mandate period
include parts of Ottoman legal codes, influenced by the Quran,
Arab tribal customary laws, and the Napoleonic Code. In general,
British law has provided the main base on which Israel has built
its court procedure, criminal law, and civil code, whereas American
legal practice has strongly influenced Israeli law regarding civil
rights.
The status of the judiciary and the definition and authority
of the court structure are spelled out in the Judges Law of 1953,
the Courts Laws of 1957, the Rabbinical Courts Jurisdiction (Marriage
and Divorce) Law of 1953, the Dayanim Law of 1955 (s., dayan,
rabbinical court judge), the Qadis Law of 1961 (sing., qadi,
Muslim religious judge), the Druze Religious Courts Law of 1962
(qadi madhab, Druze religious judge), the Jurisdiction
in Matters of Dissolution of Marriages (Special Cases) Law of
1969, and the Judiciary Law of 1984. The principal representative
of the state in the enforcement of both criminal and civil law
is the attorney general, who is responsible to the minister of
justice. As was the case during the British Mandate, courts do
not use the jury system; all questions of fact and law are determined
by the judge or judges of the court concerned, and the system
upholds the principle of innocence until proven guilty.
The president, on the recommendation of a nominating committee
chaired by the minister of justice, appoints civil courts judges.
The nominating committee consists of the president of the Supreme
Court, two other justices of the highest court, two members of
the Knesset, one cabinet member in addition to the minister of
justice, and two practicing lawyers who are members of the Israel
Bar Association, a body established in 1961 charged with certifying
lawyers for legal practice. The independence of committee members
is safeguarded in part by a procedure whereby, except for the
minister of justice and the president of the Supreme Court, they
are elected through secret ballot by the members of their respective
institutions. Whereas the composition of the committee is meant
to depoliticize the nominations process, political considerations
require the inclusion of at least one religious justice on the
Supreme Court, as well as the representation on the nominating
committee of Sephardim and women.
The president of the state, on the recommendation of nominating
committees, also appoints judges of religious courts, except Christian
courts. Nominating committees, chaired by the minister of religious
affairs, are organized to ensure the independence of their members
and to take account of the unique features of each religious community.
Religious courts of the ten recognized Christian communities are
administered by judges appointed by individual communities (see
Minority Groups , ch. 2).
Civil and religious judges hold office from the day of appointment;
tenure ends only upon death, resignation, mandatory retirement
at age seventy, or removal from office by disciplinary judgment
as specified by law. Transfers of judges from one locality to
another require the consent of the president of the Supreme Court.
The salaries of all judges are determined by the Knesset. Judges
may not be members of the Knesset or engage in partisan political
activity.
Before assuming office, all judges, regardless of religious affiliation,
must declare allegiance to the State of Israel and swear to dispense
justice fairly. Judges other than dayanim must also pledge
loyalty to the laws of the state; dayanim are subject
only to religious law. The implication is that Jewish religious
law suspersedes the man-made laws of the Knesset; where the two
conflict, a dayan will follow religious law in matters
of personal status. Israel civil libertarians view this as a blemish
on the judiciary system because, as Israeli political scientist
Asher Arian points out, religious laws "restrict certain liberties
taken for granted in other liberal systems."
At the top of the court hierarchy is the Supreme Court, located
in Jerusalem and composed of a number of justices determined by
the Knesset. In late 1988, there were eleven justices: a president
or chief justice, a vice president, and nine justices. The court
has both appellate and original jurisdiction. A minimum of three
justices is needed for a court session.
The Supreme Court hears appeals from lower courts in civil and
criminal cases. As a court of first instance, it may direct a
lower district court to hold a retrial in a criminal case if the
original verdict is based on questionable evidence, subject to
the stipulation that penalties imposed at retrial should not exceed
the severity of those originally imposed. In addition, the Supreme
Court has original jurisdiction over petitions seeking relief
from administrative decisions that fall outside the jurisdiction
of any court. In this role, the Supreme Court sits as the High
Court of Justice and may restrain government agencies or other
public institutions by such writs as habeas corpus and mandamus,
customary under English common law. In its capacity as the High
Court of Justice, it may also order a religious court to deal
with a case concerned with its competence as a religious body,
but only on petitions raised before a verdict is handed down.
In this regard, the Supreme Court is limited to the procedural
question and may not impinge on the merits of the case.
The Supreme Court serves as the principal guardian of fundamental
rights, protecting the individual from any arbitrary action by
public officials or agencies. It does not have the power of judicial
review and cannot invalidate Knesset legislation. It is empowered,
however, to nullify administrative rules and regulations or government
and local ordinances on the ground of their illegality or conflict
with Knesset enactments. As the highest court of the land, the
Supreme Court may also rule on the applicability of laws in a
disputed case and on jurisdictional disputes between lower civil
courts and religious courts. There is no appeal from its decisions.
The second tier of the civil court structure consists of six
district courts located in Jerusalem, Tel Aviv, Ramla, Haifa,
Beersheba, and Nazareth . As courts of first instance, district
courts hear civil and criminal cases outside the jurisdiction
of lower courts. Their jurisdiction includes certain matters of
personal status involving foreigners. If the foreigners concerned
consent to the authority of religious courts, however, there is
concurrent jurisdiction over the issue. The district court at
Haifa has additional competence as a court of admiralty for the
country as a whole.
District courts also hear appeals from magistrate courts, municipal
courts, and various administrative tribunals. Israel's twenty-eight
magistrate courts constitute the most basic level of the civil
court system. They are located in major towns and have criminal
as well as civil jurisdiction. There are a small number of municipal
courts that have criminal jurisdiction over any offenses committed
within municipal areas against municipal regulations, local ordinances,
by-laws, and town-planning orders. The civil court structure includes
bodies of special jurisdiction, most notably traffic courts; juvenile
courts; administrative tribunals concerned with profiteering,
tenancy, and water; and tribal courts specific to the Southern
District having jurisdiction in any civil or criminal cases assigned
to them by the president of the district court or the district
commissioner. Disputes involving management-employee relations
and insurance claims go to regional labor courts. The courts,
established in 1969, are located in Jerusalem, Tel Aviv, Haifa,
and Beersheba. Appeals from the decisions of these courts are
made directly to the National Labor Court, located in Jerusalem.
Finally, distinct from court-martial proceedings is the military
court system, empowered to prosecute civilians for offenses against
defense emergency regulations.
Data as of December 1988
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