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WEEKLY NEWSLETTER
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Israel
Index
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
(see
fig. 1). 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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