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$Unique_ID{bob00264}
$Pretitle{}
$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
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district
see
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see
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}
$Date{1979}
$Log{}
Title:       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.