The Supreme Court of Israel: A Safeguard of the Rule of Law

Pace International Law Review Volume 5 Issue 1 Article 1 January 1993 The Supreme Court of Israel: A Safeguard of the Rule of Law Shoshana Netanyahu Follow this and additional works at: https://digitalcommons.pace.edu/pilr Recommended Citation Shoshana Netanyahu, The Supreme Court of Israel: A Safeguard of the Rule of Law, 5 Pace Int'l L. Rev. 1 (1993) Available at: https://digitalcommons.pace.edu/pilr/vol5/iss1/1 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace International Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact . PACE INTERNATIONAL LAW REVIEW Volume 5 1993 COMPARATIVE LAW BLAINE SLOAN LECTURE THE SUPREME COURT OF ISRAEL: A SAFEGUARD OF THE RULE OF LAWt Shoshana Netanyahutt t This article was delivered as part of the Sixth Annual Blaine Sloan lecture at the Pace University School of Law on April 20, 1993. Presented in honor of Blaine Sloan, Professor Emeritus of International Law at Pace University, the lecture series is delivered each year to the University and Law School Community in order to promote scholarly debate in international law. tt Shoshana Netanyahu was a Justice on the Supreme Court of Israel from 1982 until her retirement in 1993. She has had a distinguished career as a jurist and lawyer in Israel for over four decades. Following her graduation from Jerusalem Law School in 1947, Justice Netanyahu entered private practice. During the Israeli War of Independence she served as Deputy Advocate General of the Israeli Air Force. She resumed private practice until 1969 when she became Judge of the Magistrate's Court in Haifa. From 1974 until her appointment to the Supreme Court she served as Judge of the District Court in Haifa Additionally, Justice Netanyahu served as the Chairperson of the State Commission of Inquiry into the Israeli Health Care System from 1988 to 1989 and as the Deputy Chairperson of the Israel Council of Higher Education from 1992 until the present. She was given the Distinction Award of the Council of Women Organizations in 1988. Since her retirement from the Supreme Court Justice Netanyahu has begun a new career teaching law in Haifa. 1 PACE INT'L LAW REVIEW I. [Vol. 5:1 INTRODUCTION The Supreme Court of Israel has three functions: it is the Supreme Court of Civil Appeals, the Supreme Court of Criminal Appeals, and the Court of Administrative and Legislative Review. The Review Division of the Court, known as the High Court of Justice, attracts the most attention and enjoys the greatest respect of the Israeli public. The explanation for the esteem in which the common Israeli citizen holds the High Court of Justice can perhaps be found in an often quoted, non-controversial statement made in a 1969 case: "This Court is the safest and most objective stronghold of the citizen in his discord with the Government." 1 What was true some twenty years ago has by now become even more so. But since then, and especially during the last decade, the balance of weight has changed. It has moved from the concept of the Court resolving disputes between the citizen and the authorities, to the concept of the Court safeguarding the rule of law: "The function of the H[igh] C[ourt] of Justice is to assure the realization of the principle of the Rule of Law."12 This reflects a different judicial philosophy of the function of the Judiciary as a review court: resolving disputes is related to private law; the function of review is in the field of public law. This new concept of the role of the High Court is responsible for a dramatic change in the Court's openness to deal with matters from which previously it had carefully veered away. Its reluctance to enter the arena of public controversy has been replaced by liberal rules of standing and justiciability that now bring it to involvement with matters even of political controversy, which less than two decades ago was inconceivable. Several causes may have combined to bring about this change: the disillusionment and loss of confidence of the public in the political institutions, as a result of the deterioration of our political culture which "on occasion reached a political eclipse; ' the growing respect and trust in the Supreme Court; the gradual 1. H.C.J. 287/69, Meron v. Minister of Labour, 24 P.D. (1) 337, 362, (Justice Berinson). 2. H.C.J. 910/86, Ressler v. Minister of Defense, 42 P.D. (2) 441. 3. H.C.J. 1635/90, Zerjevsky v. The Prime Minister, 45 P.D. (1) 748, (Deputy President Elon). https://digitalcommons.pace.edu/pilr/vol5/iss1/1 2 1993] ISRAELI SUPREME COURT departure from the English legal tradition which was prevalent in the Mandate days and in the earlier years of the State of Israel; the growing influence of American constitutional concepts; and, the coincidence of a younger, more activist generation of Justices. II. STANDING The statutory source of the High Court's review jurisdiction is in the Basic Law: Judiciary. It is couched in broad terms, to grant relief against public bodies performing functions under law. It does not define these bodies or the status of the petitioner. Israeli law does not, however, recognize the actio popularis, or action on behalf of the public. Through the years, the High Court has established rules for exercising its discretion to grant relief. These rules are not based on legal theory; they are intended as a practical guide for self restraint - as a self-defense. In the development of these rules one can follow a movement, at first slow and gradual, towards liberalization: from the stringent requirements for standing - of a lis by a petitioner with a claim for the infringement of a legal right - to a gradual mitigation satisfied with an interest, not necessarily a legal right and not necessarily special to the petitioner, but common to him and many others - not necessarily proven properly, but proven to reasonable likelihood. Later came more rapid and substantial developments, recognizing two exceptions to the actio popularis by allowing standing to a petitioner who could show no interest of his own, provided: 1) he raised an argument which indicates corruption on the part of a Governmental authority; or, 2) he raised a problem of salient constitutional character. This frame has included matters of elections and political parties' funding by the State, the duty of the Broadcasting Authority to observe principles of freedom of expression, and matters that are the core of the democratic regime or our society's constitutional structure. By the late 1980's these exceptions were generally accepted. They became the "classic" approach. In one case, standing was allowed to six Members of Parliament and eleven academics who petitioned against the refusal of the Minister of Justice to extra- 3 PACE INT'L LAW REVIEW [Vol. 5:1 dite an Israeli citizen to France.' Public petitions have also been (...truncated)