Countries of the World/COUNTRYS.BIN/dp/0187/01870.txt

Text File | 1991-06-25 | 22KB | 364 lines

$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 fr