$Unique_ID{COW01870} $Pretitle{225} $Title{Israel Chapter 3B. The Judicial System} $Subtitle{} $Author{Richard F. Nyrop} $Affiliation{HQ, Department of the Army} $Subject{courts court jewish religious law local zionist israel agency district} $Date{1979} $Log{} Country: Israel Book: Israel, A Country Study Author: Richard F. Nyrop Affiliation: HQ, Department of the Army Date: 1979 Chapter 3B. The Judicial System The judiciary comprises three main kinds of courts: secular, religious, and military. The various courts are under the administrative responsibility of different ministries. The secular courts are under the jurisdiction of the minister of justice, whose duty is to ensure that laws and procedures governing the civil courts are adhered to. Religious courts are supervised by the minister for religious affairs, and military courts, by the minister of defense (see The Origin and Organization of the Rabbinate, ch. 2; Discipline and Military Justice, ch. 5). In the administering of justice per se, however, all these courts are independent, and their integrity and fairness are generally regarded as above reproach. Legal codes and judicial procedures are derived from a variety of sources. Laws applicable to Israeli Jews in matters of personal status are based on the Torah (see Glossary). Israel also inherited from the British Mandate period some parts of the Ottoman Turkish codes variously influenced by the Quran, Arab tribal customary laws, and the Napoleonic Code. In general, however, British law has provided the main base on which Israel has built its court procedure, criminal law, and civil code, whereas practice in the United States has strongly influenced Israeli law regarding civil rights and liberties. Status of the judiciary and definition and authority of the court structure are spelled out in the Judges Law, 1953; the Courts Laws, 1957; the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953; the Dayanim Law, 1955; the Qadis Law, 1961; the Druze Religious Courts Law, 1962; and the Jurisdiction in Matters of Dissolution of Marriages (Special Cases) Law, 1969, The principal representative of the state in the enforcement of both criminal and civil law is the attorney general, under the minister of justice. As during the British Mandate period, courts do not use the jury system; and all questions of fact and law are determined by the judge or judges of the court concerned. The principle of innocence until proven guilty is maintained. Judges, secular and religious, are appointed under a similar procedure. In the case of secular courts, judges are appointed by the president on recommendation of a broadly constituted nominations committee chaired by the minister of justice. The committee consists of the president of the Supreme Court and two other justices of the highest court, two members of the Knesset, one cabinet member in addition to the minister of justice, and two members of the Chamber of Advocates, the body certifying lawyers to the practice of law. The independence of these members is safeguarded in part by a procedure whereby these members, except for the minister of justice, are elected by secret ballot by the members of the respective institutions to which they belong. The judges of religious, except for the Christian courts, are also appointed by the president of the state on the recommendation of nomination committees, which, chaired by the minister of religious affairs, are organized to ensure the independence and integrity of their members but also to take into account the particularity of each religious community. The Christian religious courts are under judges who are appointed by the religious community, not by the state. The judges of rabbinical courts are called dayanim; those of Muslim religious courts, qadis; and those of the Druze religious courts, qadis madhhab. All judges, secular and religious, hold office from the day of appointment; tenure ends only on death, resignation, mandatory retirement at age seventy, or removal from office by disciplinary judgment as specified in the law. Transfers of judges from one locality to another require consent of the president of the Supreme Court. Salaries of judges are determined by the Knesset. Judges may not be members of the Knesset or engage in partisan political activity. Before assuming their office, all judges, regardless of religious denomination, are required to declare allegiance to the State of Israel, to dispense justice fairly, not to pervert the law, and to show no favor. They must also pledge loyalty to the laws of the state; this requirement does not apply, however, to the dayanim who, under the Dayanim Law, are to be subject to no laws of the state other than a religious law. The implications of the Dayanim Law are obvious: a Jewish religious law has higher status than the man-made laws of the knesset, and where conflict occurs between the state laws and the Jewish law, a dayan must abide by the latter in matters of personal status (see Marriage and Divorce, ch. 2). At the top of the court heirarchy is the Supreme Court, composed of a number of justices as determined by the Knesset. In mid-1978 there were ten justices: a president or chief justice and nine associate justices, one of whom was designated deputy president. The court has both appellate and original jurisdiction. A minimum of three justices is needed for the court to hold a session. The Supreme Court hears appeals from lower courts in civil and criminal cases and may hold, as a court of first instance, or may direct a lower district court to have 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 meted out. In addition, it has original jurisdiction over petitions seeking the grant of relief against administrative decisions that are not within the jurisdiction of any court. In this role, the Supreme Court sits as the High Court of Justice and may restrain or direct government agencies or other public institutions by such writs as habeas corpus and mandamus, customary under English common law. In the same capacity as the High Court of Justice, it may order a religious court-but only on petitions raised at the earliest opportunity before a verdict is handed down-to deal with a case concerned in accordance with its competence. In this regard the Supreme Court is limited to the question of procedure and may not impinge in any way on the merits of the case. The Supreme Court serves in fact as the principal guardian of fundamental rights, protecting the individual from any arbitrary action by public officials or agencies of the state. It does not have the power of judicial review, however, and cannot invalidate Knesset legislation. It does, however, have the power to nullify administrative rules and regulations or government and local ordinance on grounds of illegality or conflict with Knesset enactments. As the highest court of the land, the Supreme Court may also rule on the applicability of laws and jurisdictional disputes between lower secular courts and the religious courts. There is no appeal from its decisions. The second tier of the civil court structure consists of five district courts located at Jerusalem, Tel Avid-Yafo (Jaffa), Haifa, Beersheba, and Nazareth. As courts if first instance, the district courts hear civil and criminal cases not within the jurisdiction of lower courts. The district court at Haifa has additional competence as a court of admiralty for the country as a whole. The original jurisdiction of the district courts also includes certain matters of personal status involving foreigners. If the foreigners concerned consent to the jurisdiction of religious courts, however, the jurisdiction over the issue in question will be concurrent. The district courts also hear appeals from magistrate courts, which are at the basic level of the civil structure and are located in major towns. These courts deal with minor civil and criminal cases. The secular structure also includes bodies of special jurisdiction. Principal among these are the municipal courts in large cities, which enforce local ordinances and regulations; traffic courts; juvenile courts; tribal courts specific to the Southern Administrative District and having jurisdiction in whatever civil or criminal cases may be assigned to them by the president of the district court or the district commissioner; and administrative tribunals concerning profiteering, tenancy, and water. Claims and disputes involving management-employee relations and insurance claims are taken to regional labor courts, appeal from the decisions of these courts lying directly with the National Labor Court. Distinct from courts-martial are the military courts, empowered to try civilians in offenses against defense emergency regulations (see Discipline and Military Justice, ch. 5). Religious courts have exclusive jurisdiction in the matters of personal status, such as marriage, divorce, alimony, or inheritance. For the Jews, the highest court is the High Rabbinical Court of Appeal (sometimes, Rabbinical Supreme Court) in Jerusalem, presided over by two chief rabbis, one representing the Ashkenazim and the other, the Sephardim. This court hears appeals from district rabbinical courts located in eight major cities; its decision is final, and no appeal can be taken to any civil court. All rabbinical courts are under the supervision of the Chief Rabbinate of Israel, the supreme religious authority composed of the two chief rabbis and the Supreme (or Chief) Rabbinical Council (see The Religiopolitical Establishment, ch. 2). Other religious courts are Muslim (sharia), Druze, and Christian. In certain cases jurisdiction by religious or civil courts may be elected by the parties concerned. When borderline cases are appealed to the Supreme Court, it has tended to rule in favor of civil jurisdiction. Unlike the Jewish courts, the supreme source of legal authority for the Muslim, Druze, and Christians is the secular laws of the state, not their respective religious codes and traditions. Local Government The system of district administration and local government are for the most part based on the statutes promulgated during the British Mandate period. These have been modified since independence to cope with the changing needs of independent statehood and to foster the evolution of democratic local self-rule, but in mid-1978 local administration remained relatively unimportant. The country is divided into six administrative districts and fourteen subdistricts, under the charge of, respectively, district commissioners and district officers. These officials are appointed by, and directly responsible to, the minister of interior. They represent governmental authority in their respective domains and implement the administrative matters within the scope of the minister of interior. Functions specific to other ministries and the staff personnel concerned do not come under control of the minister of interior but in some instances may, with his concurrence, be transferred to him to be placed under the general supervision and coordination of district commissioners. In their legislative and administrative activities, local authorities are supervised by the minister of interior and, like all publicly financed bodies, are accountable also to the Office of the State Comptroller. The minister's supervisory responsibility is discharged on his behalf by the district commissioners and district officers. His responsibility is manifold. He must draft legislation pertaining to local government in general, approve and control local tax rates and budgets, review and approve by-laws and ordinances passed by locally elected councils, approve local public works projects, and decide matters of grants and loans to local governments. Local self-government derives its authority from the by-laws and ordinances legislated by elected municipal, local, and regional councils and approved by the minister of interior. Councillors are elected by universal, secret, direct, and proportional balloting in the same manner Knesset members are elected (see The Electoral Process, this ch.). Mayors and chairmen, as the case may be, are in turn chosen by these councillors from their own number. The size of the municipal and local councils is based on population. Large urban areas are classified as municipalities and have municipal councils. Local councils are designated class "A" (larger) or class "B" (smaller), depending on the number of inhabitants in villages or settlements. Regional councils are composed of elected delegates from settlements according to their size. Those are geared to the needs mainly of cooperative settlements-the latter category including kibbutzim, workers' moshavim, and cooperative moshavim (see Glossary). The extensive powers of the minister of interior in respect to local government include the authority to dissolve municipal councils; the district commissioner has the same power in respect to local councils. Local authorities are responsible for the provision of public services, such as education, health and sanitation, water, road maintenance, parks and recreation, fire brigades, and the levying and collection of local taxes and fees. Given the paucity of local incomes, however, most local bodies depend heavily on grants and loans from the national treasury. Employees of local governments are subject to the Local Authorities Order (Employment Service), 1962, and not to the statutes pertaining to the national Civil Service Commission. National Institutions Israel has a number of so-called "non-governmental public sector" organizations, also known as "national institutions." Technically these bodies are voluntary, but for all practical purposes they constitute an integral part of the governmental system, performing as they do functions that are vital to the fulfillment of Zionist aspirations and to the maintenance of Israeli society. During the Mandate period these organizations served as de facto governing bodies for the Jewish community in Palestine and in the process acquired considerable experience in self-rule-not to mention jealously guarded bureaucratic prerogatives. These bodies engaged in fundraising, social welfare services, and cultural work; operated enterprises; organized immigration; and promoted Zionist work. On independence, some of these services were taken over by the state, but others remained in control of the well-entrenched organizations. The government and these organizations came to function side by side, often overlapping in their activities especially in the field of social welfare services. On the whole, relations between the two sectors has been one of mutually profitable and reinforcing partnership. Principal among these bodies are the World Zionist Organization (see Glossary) and the Jewish Agency (see Glossary). Until 1971 these were one and the same entity. According to the World Zionist Organization-The Jewish Agency (Status) Law enacted by the Knesset in 1952, the Zionist Organization was defined to be "also the Jewish Agency." The 1952 law expressly designated the World Zionist Organization as "the authorized agency which will continue to operate in the State of Israel for the development and settlement of the country, the absorption of immigrants from the Diaspora and the coordination of activities in Israel of Jewish institutions and organizations active in those fields." The same statute granted a tax-exempt status to the Jewish Agency with authority to represent the World Zionist Organization as its action arm for fundraising and for the promotion of Jewish immigration in close cooperation with the government of Israel. The specifics of such operations and cooperation were spelled out in a covenant the Jewish Agency entered into with the Israeli government in 1954. The 1954 pact also recognized the World Zionist Organization and the Jewish Agency as official representatives of world Jewry. These two bodies played a significant role in consolidating the new state of Israel, absorbing and resettling immigrants in the country, and enlisting support from, and fostering the unity of, the Diaspora (see Glossary). Their activities included organizing immigration, resettling immigrants in agriculture and industry, educating the youth, raising funds abroad, and purchasing land in Israel for settlers through the Jewish National Fund (Keren Kaymeth). In principle, the World Zionist Organization was responsible mainly for political and organizational matters close to the heart of Zionists, Jewish education in the Diaspora, and supervision of the Jewish National Fund, whereas the Jewish Agency's main concern was in financial and economic activities. In practice, the division of functions was more often obscured, resulting in duplication and bureaucratic morass. In 1971 the relationship between the World Zionist Organization and the Jewish Agency was reconstituted as part of continuing efforts to improve the operations of these bodies and to harmonize and strengthen ties between the state of Israel and the Diaspora. The need for this step was thought to be particularly acute after the six-day war when contributions to Israel from the previously uncommitted sections of the Diaspora reached unprecedented proportions. Impressed by the show of support, the congress of the World Zionist Organization, which is usually convened every four years, directed the Jewish Agency to initiate discussions with all fundraising institutions working for Israel; the purpose of the negotiations was to establish a central framework for cooperation and coordination between the Jewish Agency and other fundraising groups. These discussions led to an agreement in 1971 whereby the governing bodies of the Jewish Agency were enlarged not only to provide equal representation for Zionists and non-Zionists but also to ensure balance in geographical representation. The reconstitution helped to address the long-standing grievance of non-Zionists and non-Israelis that the Jewish Agency was dominated by Israel-based Zionists. The World Zionist Organization was separated in functions-but not in leadership-from the Jewish Agency under the 1971 rearrangement. This was necessary in view of the restrictive provision of the United States tax code pertaining to contributions and gifts. The activities that were "political" or otherwise questionable from the point of tax exemption had to be grouped separately and placed under the World Zionist Organization. The Zionist organization was directed to "continue as the organ of the Zionist movement for the fulfillment of Zionist programs and ideals," but its operations were to be confined mainly to the Diaspora. Among the main functions of the World Zionist Organization, since 1971, are Jewish education, Zionist organizational work, information and culture, youth work, external relations, rural developments, and the activities of the Jewish National Fund. These functions are to be financed for the most part by funds funneled through the Jewish Agency, which continued to serve as the main financial arm of the World Zionist Organization. Because of the United States tax law, however, the funds so allocated by the Jewish Agency must come from those collected by Keren Hayesod, which is the agency's financial arm in countries other than the United States. The Jewish Agency's task is not only to coordinate various fundraising institutions but also to finance such programs as immigration and land settlement and assist the immigrants in matters of housing, social welfare, education, and youth care. The agency's funds are raised in the United States by the United Jewish Appeal (sometimes identified with the United Israel Appeal). Contributions and gifts from the United States account for more than two-thirds of total revenues for the Jewish Agency. The Jewish National Fund is the land-purchasing arm of the World Zionist Organization. It deals mainly with land development such as reclamation, afforestation, and road construction in frontier regions. Its programs are supported in part by funds provided by Keren Hayesod and are implemented in close cooperation with the Jewish Agency and the government ministries concerned. Histadrut is a major factor in national life, wielding an enormous influence on the government's wage policy and labor legislation (see Role of Government, ch. 4). The largest trade union group in Israel, Histadrut is open to almost all occupations. Its members (including dependents) account for more than half the total population and about 85 percent of all wage earners. Founded in 1920, it is allied-but not to the exclusion of other parties-with the moderate, non-Marxist socialist, Zionist organization called Mapai-the Israel Labor Party (see Multiparty System, this ch.). In fact almost all political parties except certain religious ones are represented in the organization. The Histadrut performs functions that are unique to Israel, a legacy of its preindependence dominance in a wide range of cultural, social, and economic activities. It operates numerous economic enterprises and is in fact the owner and manager of the nation's largest industrial conglomerate. It owns the country's second largest bank and provides the largest and most comprehensive system of health insurance and medical and hospital services available in Israel. In addition it coordinates the activities of labor cooperative movements at home and maintains the principal international connection with similar movements in other countries.