Land of Israel: Legal and Judicial System
LEGAL AND JUDICIAL SYSTEM
under the ottoman empire (1876–1917)
Throughout the period from the promulgation of the Ottoman Constitution of 1876 until the present time there have been both secular and religious courts exercising jurisdiction in the territory of the land of Israel, but the extent of the jurisdiction of such courts, the qualifications of the judges thereof and of the persons authorized to plead therein, the procedure thereof and the language of pleading therein have varied from time to time.
Under the Ottoman Constitution of 1876 it was strictly forbidden to institute any extraordinary court other than the established courts of justice, but arbitrators might be appointed subject to the provisions laid down by law, and a special high court could be convened by Imperial Irade when necessary to try ministers, members of the Court of Requests or any person who was guilty of an attempt against the person or rights of the sultan or who had attempted to endanger the safety of the state. The constitution also provided that cases under Shariʿa (Muslim religious) law had to be heard by the Shariʿa Courts and civil cases by the Civil Courts.
Shariʿa Courts were given jurisdiction in matters not within the jurisdiction of the Civil Courts, such as property in waqf (Muslim religious trust), inhibitions and the termination of inhibitions, wills, the appointment and removal of guardians and trustees, and the granting of loans from the estates of orphans and waqf estates. They also had jurisdiction to hear suits to decide the shares of heirs to property and suits relating to estates in which letters of administration had to be taken out, as well as all other suits concerning rights under the Shariʿa law. Where the parties before a Shariʿa Court made a written agreement that a matter in dispute should be dealt with by the Shariʿa Court, although it was within the jurisdiction of the Civil Court, no application could subsequently be entertained in the matter by the Civil Court. The Ministry of Justice in Constantinople exercised administrative powers in regard to the procedure and internal organization of the Shariʿa Courts, the rules of procedure for which were established by law. The Jewish and Christian Religious Courts had jurisdiction over members of their respective communities in matters of personal status.
Under Regulations of June 30, 1877, courts were divided into two divisions, namely, civil and criminal, in each of which there were courts of first instance and courts of appeal. In addition, there were Peace Courts and Courts of First Instance presided over by a single judge. Courts of First Instance were established in every qaḍa' (sub-district) of the empire competent to hear civil actions when the subject matter did not exceed 5,000 piasters or a revenue of 500 piasters per annum without appeal. In cases of higher amounts there was a right of appeal to a Court of Appeal. There were 13 Courts of First Instance west of the Jordan. Commercial Courts were established in important commercial centers; in other places commercial cases were dealt with by the civil courts. In such cases an appeal lay to the Commercial Court in the chief town of the vilayet (province), and from judgments of the latter an appeal lay to the Commercial Court of Constantinople. In each qaḍā a Criminal Court, consisting of a president and two members, was competent to deal with contraventions without right of appeal, and crimes subject to appeal to a Court of Appeal. A court of appeal in the principal town of each vilayet was competent to hear appeals from courts of first instance. Such courts were divided into two sections, a civil and a criminal section, and were composed of five or more judges. There were three courts of appeal in Palestine, one in each of the sanjaks (districts) of Jerusalem, Balqa (Nablus), and Acre. Finally, there was a Court of Cassation for the whole empire in Constantinople. It was divided into three sections, a civil section, a criminal section and a Court of Requests.
In the courts that were composed of three or of five judges the president was a professional judge. Not infrequently he had graduated as a clerk or registrar of the courts. The other judges were usually laymen of some local position or apprentices in the judicial service, and it was understood that their function in part was to see that members of their religious community were not oppressed in judgment. Under the constitution of 1876, duly appointed judges who were appointed by the state and held an Imperial Berat were to be irremovable, though their resignation might be accepted; their promotion, transfers, and pensions, and their removal on account of a conviction, were to be subject to a special law, which should indicate the qualifications required. The persons authorized to plead in the courts were the few advocates who had obtained a diploma in the Law School of Constantinople and a few persons who had certificates of practice before the courts in virtue of a long apprenticeship. The language of the courts was Turkish, and their procedure was based on that of the French courts. The position of foreigners was usually safeguarded by the consular authorities of their country until the Ottoman government unilaterally declared the Capitulations abolished at the outbreak of World War i.
Under the Ottoman Constitution of 1876 the sultan was empowered to sanction and promulgate all legislation, to make proposals for all kinds of laws, and to safeguard and enforce the rules of the Shariʿa and the laws of the state. Islam was the religion of the Ottoman Empire, but subject thereto the state was required to protect the free exercise of all religions recognized in the empire and the integral enjoyment, in accordance with previous practice, of all religious privileges granted to the various communities, provided that such religions were not contrary to public morals or conducive to the disturbance of public order. All Ottoman subjects were equal in the eyes of the law as regards both rights and duties, except for matters relating to religion. Turkish was the official language of the state.
The parliament consisted of the senate and the chamber of deputies. The president and members of the senate were appointed directly by the sultan for life. They had to be at least 40 years of age and well-known persons who had gained by their acts the confidence and reliance of the public and had a past of honorable government service. Among those eligible for appointment were chief rabbis. The deputies were elected by secret ballot and had to be at least 30 years of age and Ottoman subjects. There was one deputy for every 50,000 Ottoman subjects.
Bills passed and accepted by both houses came into force when approved and sanctioned by an Imperial Irade issued by the sultan. All laws, usages, and customs in force at the time of the constitution remained in force unless and until amended or repealed. Subsequent laws and regulations had to be based on public morals and human relations and on such principles of Muhammadan law and jurisprudence as might be best suited to human intercourse and requirements of the time. This constitution was suspended, however, by order of the sultan a few months after its introduction. It was only put into effect – and then intermittently – after the Young Turk revolution of 1908. Under the Law on the Method of Publishing and Proclaiming Laws and Rules, laws and rules issued under Imperial Irade had to be published without delay in the judicial gazette and inserted in the dustūr, the official collection of laws. They then came into operation over the whole of the Ottoman Empire from the date specified in the text or, when no date was specified, 60 days after the date of publication. No law or rule could have retrospective effect, except in cases where a lesser penalty was substituted for a greater.
The Ottoman laws were of three categories: those written originally in Turkish, those written originally in Arabic and translated into Turkish, and those written originally in a European language, mainly French, and translated into Turkish. The most important of those laws written originally in Arabic is the Mejelle, an elaborate code of 1,851 articles containing rules of law and maxims of Muhammadan jurisprudence. It is little more than a Turkish translation from the Arab authorities on Muhammadan law, which is based primarily on the Koran and custom. The substantive part of the Mejelle is arranged in 16 books dealing with: sale, hire, guarantee, transfer of debt, pledges, trusts and trusteeship, gift, wrongful appropriation and destruction, interdiction, constraint and preemption, joint ownership, agency, settlement and release, admissions, actions, evidence and administration of oath, and administration of justice by the court.
French influence reigned supreme in the Ottoman Empire from the early part of the 19th century, when the Turkish sultans, who were the sole legislators, began to carry out the legal reforms insisted upon by the European powers. To save time and trouble they borrowed almost en bloc the principal legal codes of France, such as the commercial, maritime, civil procedure, and criminal codes. This borrowing process continued almost without interruption until Turkey entered World War i. It is therefore impossible fully to understand Ottoman legal principles without a study of French law, and Turkish lawyers and judges frequently consulted French legal textbooks and court decisions on difficult or disputed points of law.
under the british mandate (1917–1948)
British Military Administration, 1917–1920
One of the first acts of the British Military Administration in the Occupied Enemy Territory of Palestine was to reestablish the courts, reopening them in Jerusalem on July 24, 1918. They reduced their number to two Courts of First Instance in the original occupied territory of southern Palestine, one at Jerusalem and the other at Jaffa, and subsequently, when northern Palestine was occupied in the autumn of 1918, two others, one at Nablus and the other at Haifa, each with a British president and two Palestinian judges. In addition, a Court of Appeal was established for the whole country, composed of two British and four Palestinian judges: two Muslims, one Orthodox Christian, and one Jew. Three of the original judges of that court were taken from the small band of advocates practicing in Palestine, who were of higher caliber than the Ottoman judges. In addition, a number of Turkish judges were appointed for the Peace Courts to deal with the smaller cases. The first head of the legal department of the British Military Administration, known as the senior judicial officer, was a British army officer (Major Orme Clarke) who had been adviser to the Ottoman Ministry of Justice a year before World War i. He was the administrative head of all the judges, clerks, and staff of the Civil Courts and laid the foundations of the Palestine judicial system. He also appointed the judges of the Muslim Religious Courts after consultation with a committee composed of the Muslim members of the Court of Appeal and the inspectors of the Shariʿa Courts. The records of the civil courts, which had previously been kept in Turkish, were, as from the British occupation, kept in Arabic, which was then the predominant language in the country. The privileges of the consular jurisdiction which had been enjoyed by foreigners in Palestine by virtue of the Capitulations were not restored, but provisions were made for trial by British judges of cases in which foreigners were involved.
British Civil Administration, 1920–48
The above military system was retained with several modifications by the British Civil Administration. During the first two years (1920–22), the legal secretary, who had replaced the senior judicial officer of the British Military Administration, besides being the legal adviser of the high commissioner, was the administrative head of the courts and responsible for the appointments and dismissals. In 1922 he was replaced as administrative head of the courts by the chief justice of Palestine, who was the head of the judiciary, and he became the attorney general. The Courts of First Instance became District Courts, the Criminal Courts became the Court of Criminal Assize, and the Peace Courts became Magistrates' Courts.
The Civil Courts established by the Palestine Order-in-Council, 1922, were the Magistrates' Courts, the District Courts, the Court of Criminal Assize, and the Supreme Court. The high commissioner was also empowered, by order, to establish Land Courts, as might be required from time to time. Magistrates' Courts had the jurisdiction assigned to them by the Ottoman Magistrates Law of 1913 as amended by Palestine legislation. District Courts had jurisdiction as Courts of First Instance in all civil matters not within the jurisdiction of the Magistrates' Courts and in criminal matters not within the jurisdiction of the Court of Criminal Assize, and as Appellate Courts from the Magistrates' Courts. Each was composed of a British president and two Palestinian judges. Any two judges of a District Court could sit to try misdemeanors and civil cases, but the full court had to sit to try grave charges and hear appeals. The Court of Criminal Assize had exclusive jurisdiction with regard to offenses punishable with death and such jurisdiction with regard to other offenses as might be prescribed by ordinance. It was composed of the chief justice, or any British judge of the Supreme Court, and the full District Court of the district in which the crime was committed. The Supreme Court, sitting as a Court of Appeal, had jurisdiction, subject to the provisions of any Ordinance, to hear appeals from all judgments given by a District Court in first instance, the Court of Criminal Assize, or a Land Court. Sitting as a High Court of Justice, it had jurisdiction to hear and determine petitions or applications not within the jurisdiction of any other court and necessary to be decided for the administration of justice.
In civil matters when the amount or value in dispute exceeded lp500 an appeal lay from the Supreme Court to His Majesty in Council under Article 44 of the Palestine Order-in-Council. In criminal matters, according to a decision of the Privy Council, an appeal lay to it if it gave leave, but such appeals were very rare. Under Article 45 of the Palestine Order-in-Council, 1922, the high commissioner was empowered by order to establish for the district of Beersheba and other tribal areas separate Tribal Courts, in which tribal custom was applied insofar as it was not repugnant to natural justice or morality. In addition there were Municipal courts and military courts. The former, established under the Municipal Courts Ordinance (of 1928) in certain municipal areas, had jurisdiction to try offenses against municipal regulations and bylaws and certain other offenses, such as town planning offenses committed within the municipal area, while the Military Courts had jurisdiction to try offenses under the Emergency Regulations, 1936 and the Defense (Emergency) Regulations, 1945. There were also numerous tribunals, in many of which a judge presided, established under various laws, as need arose, to deal with special classes of cases, such as those for general claims, shipping, and rents. The civil courts were empowered to exercise jurisdiction in all matters and over all persons in Palestine, but they were expressly precluded from exercising jurisdiction in any proceeding whatsoever over the high commissioner or his official or other residence or his official or other property, and no action could be brought against the Government of Palestine or any department thereof unless with the written consent of the high commissioner previously obtained. During the period of the Mandatory regime, nearly all the Ottoman rules of procedure in civil and criminal cases were replaced by rules based upon those obtaining in England save that no provision was made for trial by jury.
Jurisdiction over Foreigners
Article 8 of the Mandate declared that the privileges and immunities of foreigners, including the benefits of consular jurisdiction and protection as formerly enjoyed by Capitulations or usage in the Ottoman Empire, should not be applicable in Palestine, and Article 9 provided that the Mandatory regime should be responsible for seeing that the judicial system established in Palestine should assure to foreigners, as well as to natives, a complete guarantee of their rights. The Palestine Order-in-Council, therefore, contained special provisions for the exercise of jurisdiction over foreigners. It defined "foreigner" as meaning any person who was a national or subject of a European or American state or of Japan, but as not including native inhabitants of a territory protected by, or administered under, a Mandate granted to a European state, Ottoman subjects, and persons who had lost Ottoman nationality and had not acquired any other nationality, but the definition was altered by the Palestine Amendment Order-in-Council, 1935, to mean a person who was not a Palestinian citizen. Under the provisions, matters concerning foreigners had to be dealt with by a British judge or a majority of British judges. The burden of proof that they were entitled to be treated as foreigners was upon the persons claiming that right. The Order-in-Council also provided that a consul in Palestine might execute such non-contentious measures in relation to the personal status of nationals of his state as the high commissioner with the approval of the secretary of state might from time to time prescribe by regulation. By the Personal Status (Consular Powers) Regulations of Dec. 1, 1922, the high commissioner prescribed such noncontentious measures.
In matters of personal status, namely, suits regarding marriage or divorce, alimony, maintenance, guardianship, legitimation and adoption of minors, inhibition from dealing with property of persons who are legally incompetent, successions, wills and legacies, and the administration of the property of absent persons, jurisdiction was conferred by the Palestine Order-in-Council, 1922, upon the courts of the religious communities established and exercising jurisdiction at the date of the Order (Sept. 1, 1922), namely the Muslim Religious Courts, the Rabbinical Courts, and the courts of the nine recognized Christian communities: Eastern (Orthodox), Latin (Catholic), Gregorian Armenian, Armenian (Catholic), Syrian (Catholic), Chaldean (Uniate), Greek (Catholic) Malkite, Maronite, and Syrian Orthodox. The Muslim Religious Courts were given exclusive jurisdiction in matters of personal status of Muslims and also exclusive jurisdiction in cases of the constitution or internal administration of a waqf constituted for the benefit of Muslims before a Muslim Religious Court, and there was an appeal from the court of the qadi to the Muslim Religious Court of Appeal, whose decision was final. The Rabbinical Courts of the Jewish community and the courts of the several Christian communities had exclusive jurisdiction in matters of marriage and divorce, alimony and confirmation of wills of members of their community, other than foreigners, and jurisdiction in any other matter of personal status of such persons, where all the parties to the action consented to their jurisdiction. The Rabbinical Courts and the courts of the several Christian communities, also had exclusive jurisdiction over any case as to the constitution or internal administration of a waqf or religious endowment constituted before these courts according to the religious law of the community concerned.
Matters of personal status affecting foreigners other than Muslims were within the jurisdiction of the District Courts, but those courts had no jurisdiction to pronounce a decree of dissolution of marriage. Foreigners could consent to matters of personal status being tried by the courts of the religious communities having jurisdiction in like matters affecting Palestinian citizens, but such courts, other than Muslim Religious Courts, had no power to grant a decree of dissolution of marriage to a foreign subject. Where any action of personal status involved persons of different religious communities, application could be made by any party to the chief justice, who was required, with the assistance, if he thought fit, of assessors from the communities concerned, to decide which court should have jurisdiction. Whenever a question arose as to whether or not a case was one of personal status within the exclusive jurisdiction of a Religious Court, the matter had to be referred to a Special Tribunal composed of two British judges of the Supreme Court and the president of the highest court in Palestine of the religious community concerned, or a judge appointed by him. The chief justice or the senior puisne judge of the Supreme Court, presided over the Tribunal.
The jurisdiction of the Rabbinical Courts and the Christian Religious Courts remained unchanged throughout the period of the Mandatory regime, but that of the Muslim Religious Courts was altered by the Palestine Amendment Order-in-Council, 1939, whereunder they could exercise jurisdiction over Muslims who were foreigners only if, according to their national law, Muslim Religious Courts had jurisdiction over them in matters of personal status. No provision was made in the Palestine Order-in-Council, 1922, for the granting by the courts of orders or decrees in connection with the marriage of persons neither of whom was a Muslim or a member of the Jewish community or of any of the nine recognized Christian communities, or for the dissolution or annulment of such marriages. The Palestine Amendment Order-in-Council, 1939, authorized the making by ordinance of provision for such matters, but no such ordinance was enacted.
Appointment and Qualifications of Judges.
Under the Palestine Order-in-Council, 1922, the high commissioner was empowered, subject to the direction of the secretary of state, to appoint, or authorize the appointment of, such public officers of the government under such designations as he might think fit, and to prescribe their duties, and all such officers, unless otherwise provided by law, held their offices until the Order-in-Council was amended in 1939, during the pleasure of the high commissioner and thereafter during His Majesty's pleasure.
Under the Courts Ordinance, every judge of the Supreme Court or of a District Court had to be appointed by the high commissioner and held office during the pleasure of His Majesty. The persons qualified to be appointed as British judges were British judges of any court in Palestine already appointed at the date of the commencement of the Courts Ordinance (Sept. 1, 1924), and any person, being a British subject, who had been duly admitted to practice as a barristerat-law or advocate in any part of His Majesty's dominions, or in any territory which was under His Majesty's protection, or in any territory in respect of which His Majesty had accepted a mandate from the League of Nations, and who was in any case of not less than three years' standing. Persons qualified to be appointed as Palestinian judges were judges of any court in Palestine already appointed at the date of the commencement of the ordinance, persons who had held office in Palestine as magistrates or junior government advocates or inspectors of the courts for not less than three years in any one of those offices or consecutively in one or any one of those offices, and advocates of Palestine of not less than three years' standing.
Magistrates were appointed by the high commissioner by warrant. Under the Magistrates' Courts Jurisdiction Ordinance the high commissioner was empowered to impose by the warrant of appointment such restrictions or limitations upon the jurisdiction of the appointee as he thought fit, and it was the practice to issue restricted warrants to district commissioners and British district officers, as well as to a number of Palestinian officers who had passed an elementary law examination, to enable them to try minor criminal charges, to issue warrants of arrest, and to release on bail.
The qadis of the Muslim Religious Courts, the president and members of the Muslim Religious Court of Appeal and the inspectors of the Muslim Religious Courts were nominated by the Supreme Muslim Shariʿa Council for approval by the Palestine Government and, after such approval, were appointed by that council, the president and members whereof received salaries from the Palestine government in consideration of their services in connection with the affairs of the Muslim Religious Courts. Under the Jewish Community Rules each Rabbinical Office sat as a Rabbinical Court of First Instance, and the Rabbinical Council was the Court of Appeal in matters in which the Rabbinical Courts had jurisdiction. The judges of the courts of the recognized Christian religious communities were appointed by the heads of the communities.
Qualifications of Advocates
Under the Advocates Ordinance, 1922, licenses to practice as advocate in Palestine were issued by the chief justice, who was advised by a Legal Board appointed by him consisting of at least three members who were officials of the government holding office of a legal or judicial character and not less than two advocates practicing before the civil courts. Licenses were granted either to practice before any civil courts or before any Muslim Religious Court in Palestine. Applicants for a license to practice before any civil court had to satisfy the Legal Board that they had attained the age of 25 (reduced to 23 in 1944), had passed not less than two years' service in a licensed advocates' office, and were adequately qualified by examination as to their knowledge of law. Qualifying examinations were taken by students of the Palestine Government Law School, known as the Jerusalem Law Classes; persons with legal qualifications acquired abroad could take qualifying examinations in Palestine law.
Applicants for a license to practice before the Muslim Religious Courts had to satisfy the board that they were adequately qualified by examination as to their knowledge of Muslim law and were of good character, or that they were so certified by the Supreme Muslim Shariʿa Council. Advocates alleged to be guilty of disgraceful, fraudulent, or unprofessional conduct were subject to Courts of Discipline constituted by, and subject to, the control of the chief justice. Until the ordinance was amended in 1930, no woman could be granted a license to practice as an advocate. That disqualification was removed by the amending ordinance, but a woman holding such a license did not have the right of audience in a Tribal Court or in a Muslim Religious Court unless she was certified by the Supreme Muslim Shariʿa Council to be qualified to practice. Under the Law Council Ordinance, 1938, the Legal Board was replaced by the Law Council, which was composed of not less than six members appointed by the high commissioner of whom not less than four had to be practicing advocates, with the attorney general as ex officio chairman. It was also empowered to inquire into the conduct of advocates and persons permitted to practice before the Muslim Religious Courts.
Under the Mandate for Palestine, confirmed by the Council of the League of Nations on July 24, 1922, His Britannic Majesty, who had been selected by the principal Allied Powers as mandatory for Palestine, was given full powers of legislation and of administration in Palestine save as such powers were limited by the terms of the Mandate. Under article 15, the mandatory was required to ensure complete freedom of conscience and the free exercise of all forms of worship for all, subject only to the maintenance of public order and morals. There was to be no discrimination of any kind between the inhabitants of Palestine on grounds of race, religion, or language, and no one was to be excluded from the country on the sole ground of his religious belief. Under article 22 English, Arabic, and Hebrew were the official languages. Under article 21 the mandatory was required to secure the enactment of a law of antiquities based on the rules set out in that article. Such a law – the Antiquities Ordinance – was enacted and is still in force. Under article 7 the administration of Palestine was made responsible for enacting a nationality law, which was to facilitate the acquisition of Palestinian citizenship by Jews taking up their permanent residence in the country.
The Palestine Order-in-Council, 1922, was made by His Britannic Majesty by virtue and in exercise of his powers in that behalf by the U.K. Foreign Jurisdiction Act, 1890 or otherwise, and came into force on Sept. 1, 1922. It provided (article 46) that the jurisdiction of the civil courts should be exercised in conformity with the Ottoman law in force in Palestine on Nov. 1, 1914 (the date when Turkey entered World War i), such later Ottoman laws as had been or might be declared to be in force by public notice, and such orders-in-council, ordinances, and regulations as were in force in Palestine at the date of the commencement of the order (Sept. 1, 1922) or might thereafter be applied or enacted. Subject thereto, and so far as the same should not extend or apply, the jurisdiction of the courts should be exercised in conformity with the substance of the common law and the doctrines of equity in force in England, so far as the circumstances of Palestine and its inhabitants and the limits of His Majesty's jurisdiction permitted and subject to such qualification as local circumstances rendered necessary.
Provision was made for the election of a legislative council in and for Palestine, but the election held was boycotted by the Arabs (see *Governance), and was declared by the Palestine (Amendment) Order-in-Council, 1923, to be null and void. By article 3 of the amending order-in-council the power to legislate in and for Palestine was vested in the high commissioner appointed by His Majesty in council, and it was exercised by him alone throughout the period of the mandatory regime. He was given full power and authority, without prejudice to the powers inherent in or reserved by the Palestine Order-in-Council to His Majesty, and subject to any conditions and limitations prescribed by royal instructions, and after consultation with the advisory council composed of senior government officials, to promulgate such ordinances as were necessary for the peace, order, and good government of Palestine.
However, no ordinance could be promulgated which restricted complete freedom of conscience and the free exercise of all forms of worship, save insofar as was required for the maintenance of public order and morals, or which tended to discriminate in any way between the inhabitants of Palestine on the ground of race, religion, or language; or which was in any way repugnant to, or inconsistent with, the provisions of the Mandate. Furthermore, no ordinance which concerned matters dealt with specifically by the provisions of the Mandate could be promulgated until a draft thereof had been communicated to a secretary of state and approved by him, with or without amendment.
Every ordinance promulgated by the high commissioner was subject to disallowance by His Majesty within one year of the date of its promulgation, while certain classes of ordinance could not be promulgated by the high commissioner unless he had previously obtained instructions thereupon from one of His Majesty's principal secretaries of state. Those included ordinances relating to immigration, divorce, Palestine currency, or the issue of bank notes; ordinances the provisions of which appeared inconsistent with obligations imposed upon His Majesty by treaty or by the Mandate; and ordinances interfering with the discipline or control of His Majesty's forces by land, sea, or air. No ordinance could be promulgated unless a draft had first been made public for one calendar month at least before its enactment, unless immediate enactment was, in the judgment of the high commissioner, indispensably necessary in the public interest.
Article 35 of the order-in-council applied to Palestine the enactments in the First Schedule to the Foreign Jurisdiction Act, 1890, with certain modifications. (Generally speaking, Palestine ordinances were modeled upon English law and cannot be fully understood without a thorough study of its principles and the decisions of the English courts on the English law upon which they were based.) All ordinances were published in English, Arabic, and Hebrew and the Interpretation Ordinance provided that in the case of any discrepancy between the English text and the Arabic or Hebrew text, the English text should prevail. In some ordinances, such as the Bills of Exchange Ordinance, the Partnership Ordinance, and the Bankruptcy Ordinance, 1936, it is expressly provided that they are to be interpreted by reference to the relevant law of England. In the Criminal Code Ordinance, 1936, it is provided that it is to be interpreted in accordance with the principles of legal interpretation obtaining in England, and expressions used in it are to be presumed, so far as is consistent with their context except as may be otherwise expressly provided, to be used with the meaning attached to them in English law and are to be construed in accordance therewith. The Civil Wrongs Ordinance, 1944, must be similarly interpreted, but subject to the Interpretation Ordinance.
For the most part, by the time the Mandate was terminated, Palestine legislation had replaced the Ottoman law which formed part of the law of Palestine on Nov. 1, 1914, when Turkey entered the war, although some important parts of it, including part of the civil law (Mejelle) and the Land Law, were not replaced. Thus, for example, the commercial and criminal law and the law of civil and criminal procedure were replaced by Palestine legislation modeled upon English law adapted to local circumstances. The process started at the very beginning of the mandatory regime and continued with increasing speed throughout the period. On the other hand, in the early days of the Mandate the Palestine courts were very reluctant to apply English judge-made law, although during the second half of the period, in view of certain decisions of His Britannic Majesty's Privy Council, which was an appellate court from the Supreme Court of Palestine, they increasingly introduced English judge-made law into the law of Palestine, and referred more and more in their judgments to English legal textbooks and judicial decisions.
[Henry Eli Baker]
in the state of israel
israel's declaration of independence
On Friday, 5 Iyyar 5708, May 14, 1948, the establishment of the State of Israel – the Jewish state in Palestine – was proclaimed by the National Council (Mo'eẓet ha-Am). The Council comprised 37 representatives of the Jewish community of Ereẓ Israel (the yishuv) and of the Zionist movement. The Mandate over Palestine, which the League of Nations had conferred on Great Britain in 1922, had come to an end. The British Parliament, for its part, had enacted on April 29, 1948, the Palestine Act, by which the jurisdiction of the British Crown over Palestine would cease on May 15, 1948. The Declaration of the Establishment of the State turned the National Council into a provisional legislature called the Provisional State Council, which together with its executive arm, the National Administration (Minhelet ha-Am) served as a provisional government. These were to function until regular authorities were duly elected, in accordance with a constitution which was to be instituted not later than October 1, 1948. The Declaration included the "credo" of the new state:
the state of israel will be open for Jewish immigration and for the Ingathering of Exiles; it will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations.
The development of constitutional law in Israel corresponds to the course which the Declaration of the Establishment of the State of Israel has run to reach its present status in Israel's legal system. In the early days of the State of Israel, the tendency of the Supreme Court was to deny the Declaration any legal force, let alone any constitutional status; the Declaration was regarded as a political instrument to be used on the international level (Ziv v. Gubernik (1948) 1 pd 85). Thus the Supreme Court refused to accept the argument that certain Mandatory Emergency Regulations, empowering the authorities to detain – without due process – a person suspected of acts prejudicial to public safety, contravened the Declaration, wherein human rights and individual liberties were expressly guaranteed (El-Kharbutli v. Defense Minister (1949) 2 pd 5). At a later stage the Supreme Court saw in the Declaration an instrument for the interpretation of statutes. Thus in the landmark decision of the Supreme Court in what was probably Israel's most famous and consequential civil rights case (Kol ha-Am v. Minister of the Interior (1953) 7 pd 87i, where the respondent had suspended the publication of a newspaper after it published an article which in the minister's opinion was "likely to endanger the public peace," in the language of the Mandatory Press Ordinance), Supreme Court President Agranat declared:
The system of laws under which the political institutions … have been established and function are witness to the fact that this is indeed a State founded on democracy. Moreover, the matters set forth in the Declaration of Independence – especially as regards basing the State "on the foundations of freedom" and securing freedom of conscience – meant that Israel is a freedom-loving state. It is true that the Declaration "does not include any constitutional law laying down any rule regarding the maintaining or repeal of any ordinances or laws" … yet insofar as it "expresses the vision of the people and its faith" … we are bound to pay attention to the matters set forth therein when we come to interpret and give meaning to the laws of the state, including the provisions of a law made at the time of the Mandate and adopted by the State after its establishment; for it is a well-known opinion that the law of a people must be studied in the light of its national way of life. Thus … we must interpret the term "likely," when we read it together with the other matters stated in (the) section …, in the sense of "near certainty" ….
A further development in the legal interpretation of the Declaration occurred when the Supreme Court saw in it the source of such human rights and freedoms as those of freedom of expression (Israel Film Studies Ltd. v. Levi Gerri and Film Censorship Board (1969) 23 pd (1) 693), or freedom of worship (Peretz v. Kefar Shmaryahu Religious Council (1962) 16 pd 2101). In the case of Yerdor v. Chairman of the Central Elections Committee for the Sixth Knesset (1965) (19 pd 3, 365) the appellant represented a party list which was refused confirmation by the Elections Committee. Technically, the list was valid, but its platform did not recognize the integrity of the State of Israel nor its existing boundaries. Most of the members in the list were former members of the El Ard group, which had been outlawed by government decree. The Supreme Court dismissed the appeal (by majority decision). In the decision, President Agranat stated that the continuing existence of the State of Israel was the major premise in the light of which all Israeli laws have to be interpreted. This underlying condition was derived from an interpretation of the Declaration of the Establishment of the State of Israel and is considered to be a "fundamental constitutional fact, the existence of which no organ of the State, be it administrative, judicial or quasi-judicial, may deny when it comes to exercise any of its powers." Following this line of reasoning the president arrived at the conclusion that, notwithstanding the candidates' eligibility when treated as individuals, the list of candidates, qua list, had no right to take part in the elections to the Knesset. The Declaration, in effect, received through this decision a supra-constitutional character.
Several attempts were made in the Knesset to confer on the Declaration the status of law, but they all failed. In 1994 the Declaration reached the acme of its legal standing, when a new section was added to Basic Law: Human Dignity and Freedom and Basic Law: Freedom of Occupation. Called "Basic Principles," it read as follows: "Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel."
Thus the Declaration was now a cornerstone of human rights and freedoms in Israel and part of Israel's emerging constitution. In the draft constitution which the Israel Democracy Institute (a non-government academic organization) has drawn up, the Declaration figured as the preamble to the proposed constitution.
the law of the land
When the Provisional State Council – the legislature of the new state – convened, its first enactment was the Law and Administration Ordinance, 1948. The term "ordinance" was the Mandatory designation of all primary legislation issued by the High Commissioner in accordance with British royal instructions. The laws which the Provisional State Council adopted continued to be called "ordinances." Early in 1949, when the newly elected Constituent Assembly convened, its first act of legislation was to change its name to "the First Knesset" and its enactments were henceforth to be termed "laws" (ḥukkim). Section 11 of the Law and Administration Ordinance, 1948, stated that the law which existed in Palestine on the eve of the establishment of the State of Israel would continue to be in force, subject to any enactments of the new legislature and also subject "to such modifications as may result from the establishment of the State and its authorities."
The law which was in force upon the establishment of the new state comprised remnants of Ottoman law, British Mandatory legislation (incorporatimg a large body of English law) and, in matters of personal status – the law of the various religious communities: Jewish law, Muslim law and Christian law (see above).
It remained for the courts to decide to what extent the law of Palestine was altered as a result of the establishment of the State of Israel. The courts, under the leadership of the Supreme Court, adopted at the outset a conservative attitude in preserving parts of Mandatory legislation, which in later years would hardly be able to stand up to judicial scrutiny, e.g., the Press Ordinance or the notorious Emergency (Defense) Regulations, 1945.
the quest for a constitution
The Declaration of the Establishment of the State of Israel, in the section immediately following the proclamation of the establishment of the state, clearly expressed the determination of the founders that the duly elected regular authorities of the state should be instituted "in accordance with a Constitution which shall be adopted by the Elected Constituent Assembly not later than October 1, 1948." Indeed, preparations for a constitution were initiated by the Jewish national organizations even before the state was proclaimed. However, it became very clear that a constitution would not be forthcoming. The reason for this, first of all, was the war for the existence of the state, which raged for many months following its establishment. The population was enlisted in the war effort, and thus a Constituent Assembly could not be elected by the date – October 1, 1948 – set forth in the Declaration. Secondly, "the ingathering of the exiles" – the incoming flow of Jewish immigrants from all quarters of the world, especially from Europe and the Arab countries – and the attitude of the religious parties, which objected to any constitution other than the Torah, together made it necessary to back off from the idea of drawing up a constitution. An expedient was found early in 1949 after the election of the Constituent Assembly. The first law considered by the newly elected Assembly provided for a change in the name of the Constituent Assembly, which thus became the "First Knesset." The change, of course, was not a mere matter of semantics; it meant a departure from the initial determination to base the newly established state on a democratic constitution. This departure was explained at the time with the argument that the existing population of Israel should not impose its ideals on coming generations; and therefore only when more Jewish immigrants came to the country – only then – would the time be ripe for drafting a constitution.
Long and recurrent debates were held, both in the Knesset and in the general public, on the question of whether or not there should be a written constitution. A compromise was reached in the Knesset whereby the constitution would be drawn up chapter by chapter through the enactment of Basic Laws, which in time would be collected into a single document and together form Israel's constitution. The initiator of this compromise was Member of Knesset I. Harari, and the resolution adopted by the Knesset on June 13, 1950, bears his name and is still considered binding. It was not until 1958 that Basic Law: the Knesset, the first of Israel's Basic Laws, was enacted, followed, at a slow pace, by the following Basic Laws: State Lands (1960); President of the State (1964); Government (1968); State Economy (1975); Israel Defense Forces (1976); Jerusalem, Capital of Israel (1980); Judicature (1984); State Comptroller (1988) Human Dignity and Freedom (1992), and Freedom of Occupation (1992). A revised version of Basic Law: the Government was enacted in 1992 and again in 2001: a revised version of Basic Law: Human Dignity and Freedom and Basic Law: Freedom of Occupation was enacted in 1994.
The Basic laws were adopted by the Knesset in the same manner as other legislation, that is to say, in general, by a simple majority. Their constitutional import derived from their content, and, in some Basic Laws or certain provisions therein, the inclusion of "entrenched clauses," which require a special Knesset majority for their amendment. Such an entrenched provision was included in section 4 of the Basic Law: the Knesset, which lays down the principles of the electoral system, and it provides that these may not be changed except by an absolute majority of the Knesset (i.e. at least 61 of 120 members).
In the case of Bergman v. Minister of Finance (1969) (23 (1) pd 693) the petitioner challenged the validity of a law providing for the financing of the expenses of the parties in elections for the Knesset and the local authorities. Financing, according to the law, was to apply only to those parties which had sat in the outgoing Knesset; any new party would be denied financing. Since one of the principles of the electoral system set out in the said section 4 of the Basic Law was that elections should be equal, the Supreme Court ruled that the financing law indeed violated the principle of equal elections and that, since it had not been enacted by an absolute majority, it was inoperative. This decision has been followed in a number of cases in which the Supreme Court has struck down legislation passed with an ordinary majority and which contravened the principle of equal elections.
A modification occurred in 1992 with the enactment of Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Freedom. These Basic Laws contained a "limitating clause," which stated: "There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than required, or by a regulation enacted by virtue of express authorization in such laws." The "values of the State of Israel" mentioned in the limitating clause are those mentioned in the opening sections of both Basic Laws on human rights – "recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free," in conjunction with the overall principles set forth in the Declaration of the Establishment of the State of Israel.
The language of the "limitating clause" is the basis for judicial review of legislation, since it clearly opens all legislation which violates any of the human rights protected by the Basic Laws to the review of the courts. The courts must then decide whether the particular law befits the values of the State of Israel, whether it was enacted for a proper purpose, and whether the violation is proportionate to the benefits of the legislation. The Basic Laws therefore assume the effect of constitutional articles. In 1995 the Supreme Court indeed ruled, in a special panel of nine judges (one member dissenting) that the new Basic Laws are indeed part of the constitution of Israel (ca 6821/93 United Mizrachi Bank Ltd. v. Migdal and Others 49 (4) pd 221). We thus have a judicial proclamation of a constitution, although generally a constitution is enacted by a constituent assembly.
In the case mentioned above, the Supreme Court was asked to declare a piece of legislation to be of no legal force due to its violation of the right to property protected by Basic Law: Human Dignity and Freedom. In that particular case, the Supreme Court did not declare the legislation null and void, but judicial review of legislation has become part of Israel's legal legacy.
In addition, two of the justices in the panel of the Supreme Court expressed the view that all Basic Laws have superior normative status and that all legislation which is substantially inconsistent with them may also be declared invalid. Since that landmark decision, the Supreme Court has shown great reluctance and restraint in using its power to strike down legislative propositions found to be contrary to the limiting clause of the Basic Laws; it has done so – through the early years of the 21st century – in a very limited number of cases.
The above decision furnished a powerful impetus for the demand to adopt a full constitution. In the Knesset, the Constitutional, Legislative and Judicial Committee took matters in hand and initiated a long series of deliberations to promote a draft constitution. The Israel Democracy Institute, a non-government academic organization, undertook the herculean task of preparing a draft constitution, with the aim of rallying, as much popular support as possible. By 2005 this effort was in its final stages. The Institute intended to submit its draft to the Knesset for further and final action.
the bill of rights
In June 1950, the Knesset adopted the Harari Resolution, according to which Israel's constitution would be built up by the Knesset, chapter by chapter, in the form of Basic Laws. These, according to the decision, would eventually be bound together into one document, the Constitution. As has been already mentioned, the first Basic Law, dealing with the Knesset, was enacted in 1958. After an interval, additional chapters were enacted; the question of a Bill of Rights was sidetracked. One of the main obstacles was the objection of the religious parties to an equality clause, which could jeopardize legislation giving preference to religious laws. This would be problematic, for example, in matters of marriage and divorce, governed in Israel by religious law, which gives men a certain preference over women. The same goes for laws imposing Sabbath observance or those affecting the import and sale of non-kosher meat.
As early as 1949, however, the Supreme Court ruled that there are in existence natural rights, which, though not written in the law books, are recognized by the courts. The specific case dealt with the right of a person to engage in any occupation he chooses, unless prohibited expressly by legislation. The case was later expounded upon, with the Court maintaining that these rights stem from the character of the State of Israel as a freedom-seeking democratic country, where the courts interpret the laws and review administrative action in light of these fundamental rights. Additional rulings of the Supreme Court emphasized the legal existence of freedom of expression, freedom of worship, the right of assembly, freedom of association, and indeed all basic freedoms. Nevertheless, precedence was always given to the enactments of the legislature, even if they were unjust.
In the late 1960s a special subcommittee was set up in the Knesset to prepare a Bill of Rights – Human Rights of the Citizen. The bill was presented in 1973; it passed the first reading but did not proceed any further. In the 1980s an additional attempt was made in the same subcommittee of the Knesset. A new draft was prepared, but it did not win substantial support in the Knesset and the attempt failed.
Early in the 1990s a comprehensive draft Bill of Rights was prepared at the Ministry of Justice under the direction of Dan *Meridor, then minister of justice. This draft tried to incorporate the lessons of previous attempts. It followed the Canadian Charter of Rights and Freedoms, which was part of the Constitution Act, 1982, and which included a "limitating clause" applying to all the rights and freedoms set out in the Charter. The Canadian Charter gave expression to the notion that human rights are not absolute, and they are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Still, the government did not approve the draft owing to the opposition of the religious parties upon which the coalition depended. In 1992, Member of Knesset Amnon *Rubinstein presented to the Knesset, as a private member's bill, parts of the Justice Ministry's draft bill. The first section dealt with human dignity and freedom, the second with freedom of occupation; other parts failed to pass the threshold of enactment. On March 3, 1992, Basic Law: Freedom of Occupation was enacted; two weeks later Basic Law: Human Dignity and Freedom passed its third reading in the Knesset plenary and became law. On March 9, 1994, the revised text of the Basic Law: Freedom of Occupation became law. This text included the "Basic Principles" of the early 1990s Ministry of Justice draft, referring to the values of the State of Israel enunciated in the Declaration of the Establishment of the State of Israel.
The enactment of these two Basic Laws was described by Minister of Justice Meridor and by the president of the Supreme Court, Judge Aharon *Barak, as a "constitutional revolution." The reason for the use of such a radical expression was that the Knesset had, for the first time, placed limitations on itself with regard to the subject matter of the laws it was empowered to legislate (prior to that, such limitations had existed only with regard to the form and procedure of legislation). From now on, the Knesset could limit human rights only "by a law befitting the values of the State of Israel, designed for a proper purpose and to an extent no greater than required."
As mentioned above, these two Basic Laws were declared by the Supreme Court to be of basic constitutional force. They became the basis of the judicial review of legislation. Although not all the fundamental human rights have come to be protected, these laws have had tremendous reverberations in the public and produced widespread enthusiasm for the cause of human rights. There was great confidence that additional Basic Laws protecting more and more fundamental human rights would eventually be enacted. These, together with the existing Basic Laws, supplemented by Basic Law: Legislation, which as of 2005 had not yet been enacted, was expected to set the stage for the completion of the constitution.
the law under the british mandate
(For a more general survey of the judicial and legislative systems under the British, as well as under the Ottoman Empire, see above.)
When the British administration succeeded the former ruler of Palestine, the Ottoman Empire (in which Palestine was the southern district of the province of Syria), it found a quite elaborate legal system. In keeping with the general 19th century trends, substantial parts of the law were made up of codes – to a large extent based on European codes, mostly French. There was thus a code of commercial law and criminal procedure. The comprehensive Civil Code, the Mejelle, was based on Islamic law. In matters of personal status, mainly family matters, the Ottomans accorded extensive autonomy to the various religious communities; that autonomy was also imposed on the Ottomans by the system of capitulations, where European consuls had jurisdiction in personal matters concerning their nationals.
When the British assumed the Mandate over Palestine, they issued under the King's seal the Palestine Order-in-Council, 1922. Section 46 of this Order defined the sources of the laws which would apply in Palestine. Priority would be given to the enactments of the new legislator, the British High Commissioner, to the Orders-in-Council issuing from the King of Great Britain and to Acts of the British Parliament. Subject to these, the Ottoman laws would continue to apply, as they were in force in Palestine prior to the British occupation. Next in line would come the religious laws. In cases of lacunae in the sources quoted above, the law to be applied was "the substance of the common law and the doctrines of equity in force in England"; these bodies of law were to apply only "so far as the circumstances of Palestine and its inhabitants … permit."
The British Mandatory administration, in keeping with the policy of Great Britain in administering its colonies, was anxious to introduce into Palestine the essentials of the English legal system. The major judicial officials, judges and lawyers working for the government, were English or had been trained in England. From the constitutional aspect, the English principles of the common law and equity were to prevail in Palestine only in cases where the local law did not seem to offer a solution.
Nevertheless, the courts were most eager to adjudicate on the basis of English law. In view of certain decisions of His Britannic Majesty's Privy Council, which was an appellate court from the Supreme Court of Palestine, the courts increasingly introduced English judge-made law into the law of Palestine and referred more and more in their judgments to English legal textbooks and judicial decisions. Thus extensive legislation based on English law (either codified or common law) was introduced into Palestine with regard to subjects such as companies, cooperative societies, banking, bills of exchange, bankruptcy, patents and copyright. In 1936 a Criminal Code Ordinance was introduced, which, together with legislation on criminal procedure and evidence, based the penal law in Palestine on the same principles obtaining in England. Additionally, the force of precedent – by which decisions of the Supreme Court were binding for all the lower courts – was introduced. One British institution which was not introduced was the jury system. The English administrators believed that the strife which tore the country asunder, with the ever-rising tension between the Jewish and Arab populations, made the system unfit for Palestine (as a matter of fact, the jury system had not been introduced in any of the British colonies).
The latter part of the Mandatory period, beginning in 1936, was marked by severe outbreaks of Arab hostilities against the Jewish population in Palestine, known as the Arab Revolt. At that time the attention of the administration was focused on security and defense measures. The exigencies of World War ii and the Jewish effort to secure independence, which continued long after the war had subsided, stimulated a tremendous legal effort to regulate the economy and finance and further develop emergency defense regulations. These culminated in the imposition of martial law over large areas of Palestine and for ever-increasing periods of time. In this regard mention has to be made of the Emergency (Defense) Regulations, 1945, which allowed the British "an impressive array of legal tools of detention, deportation, confiscation, censorship, demolition of houses, restraint of movement, food control, press control, money control, rent control and capital punishment" (Yoram Shachar, "History and Sources of Israel Law," in Introduction to the Law of Israel, p.5).
One exception to the general trend described above was the enactment of the Civil Wrongs Ordinance, 1944, which came into force in 1947. This Ordinance codified the law of torts and replaced the provisions of the Mejelle on the subject.
On the eve of the establishment of the State of Israel, the law was engaged to a large extent in emergency legislation. This legislation was directed at the activities of the Arab dissident population, which was bent on thwarting the un resolution for the partition of Palestine into a Jewish state and an Arab state. On the other hand, the British Mandatory administration was at war with Jewish resistance groups, who strove to drive the British out of Palestine. The organized Jewish population, represented by its elected bodies and the Jewish Agency, was busy setting up the framework for the future army and other branches of government of the forthcoming State of Israel. At the same time, it endeavored to facilitate a massive movement of immigration of Jewish deportees and displaced persons from Europe who had survived the Holocaust, and of Jews from Arab countries in North Africa and the Middle East.
the legislative process
The procedure and prerequisites for legislation have not – generally speaking – been laid down by provisions of law. These have been included in the several drafts of Basic Law: the Legislature, which have not succeeded in passing the third reading in the Knesset and becoming law. The legislative procedure is set forth in the Standing Rules which the Knesset has adopted and amended from time to time. A draft of every law submitted to the Knesset for enactment is published in Reshumot (the official gazette) either by the government or by a member of the Knesset; a note is attached explaining each proposed section. Over 90% of laws passed by the Knesset were originally introduced by the government, which has evolved a procedure for presenting its draft laws to the Knesset. In recent years the proportion of private members' bills is rising steeply. The initiative for a government-sponsored draft law comes from the ministry concerned with its subject, which prepares the first draft together with an explanatory note. That draft is examined in the Ministry of Justice, which prepares a draft for submission to the cabinet Committee on Legislation, and the draft approved by the committee is submitted to the government for approval. The draft approved by the government is sent by the secretary to the government to the speaker of the Knesset, who has it placed on the table of the Knesset and entered as an item on its agenda.
In accordance with the procedure laid down by the First Knesset and now incorporated in the Standing Rules, each draft law goes through three readings, in addition to the committee stage which follows the first reading. At the first reading of a government-sponsored bill the minister who will be charged with the implementation of the law, if it is enacted, explains the provisions and purposes of the law, and then there is a general debate dealing primarily with its general principles. It is then examined in detail by a standing committee, which prepares the text to be submitted to the Knesset for the second reading. At the second reading the chairman of the committee reports to the Knesset on the draft law and it is put to the vote section by section. At the third reading the final text is voted upon by the Knesset. Subsequently, it is submitted for signature by those persons who by law are required to sign it and it is then published in Reshumot.
A private member's bill is submitted to the speaker of the Knesset and has to pass a preliminary stage in the Knesset plenary and, if approved, goes to a standing committee, which may either prepare the text for the first reading in the Knesset or propose that the bill be quashed. If approved in the first reading, the bill follows the same procedure as a government-sponsored bill.
Where a draft law has been referred by an outgoing Knesset to one of its committees after the first reading, the government formed in the incoming Knesset may notify the Knesset in plenary session that it wishes the continuity provisions of the Continuity of Consideration of Draft Laws Law, 1964, to apply to it. If it does so each parliamentary party may propose within two weeks that those provisions shall not apply, giving reasons for the proposal. If no such proposal is submitted, or if the proposal is rejected by the Knesset, then the incoming Knesset must continue the consideration of the draft law from the stage reached by the outgoing Knesset, and it must treat the latter's deliberations on the draft law as if they were its own deliberations.
the jewish element in israel's legislation
The vast majority of the laws passed by the Israel legislature have their counterparts in the legislation of most other countries, but some of them are peculiar to Israel, owing to its being a Jewish state and the realization of the aims of Zionism. Among these are the Days of Rest Ordinance, 1948, proclaiming the Sabbath and the Jewish festivals to be the official days of rest in the country; the Transfer of Herzl's Remains Law, 1949; the *Law of Return, 1950, under which the right of every Jew to settle in Israel is recognized; the *World Zionist Organization – Jewish Agency (Status) Law, 1952, which regulates the status of the World Zionist Organization in Israel and its relationship to the State. The State Education Law, 1953, defined the object of the education provided by the state elementary schools, as follows: "to base elementary education in the State on the values of Jewish culture and the achievements of science, on love of the homeland and loyalty to the State and the Jewish people." In 2000 the Law was revised and the aims of the state education system greatly enlarged. They include: "to implant the principles set out in the Declaration of the Establishment of the State of Israel and the values of Israel as a Jewish and democratic country" and also "to teach Israel's Torah, the history of the Jewish people. Israel's legacy and Jewish customs (masoret), to implant awareness of the remembrance of the Shoah and Jewish heroism, and to teach respect for them." Laws relating to Jewish law and religion cover such subjects as kasher food for soldiers (1948), Jewish religious services budgets (1949), the Chief Rabbinate Council (1955), the jurisdiction of religious courts in marriage and divorce (1953), dayyanim (1955), the prohibition of pig breeding (1962), phylacteries and mezzuzot (prevention of cheating) (1974), the Chief Rabbinate of Israel (1980), prevention of cheating in kashrut (1983), Passover prohibition of ḥameẓ (1985).
Furthermore, whenever legislation is required on any particular subject, the relevant principles of Jewish law, if any, are examined and, if found suitable, incorporated, for example, the Restoration of Lost Property Law, 1973, the interpretation of which raised the still undecided question in the Supreme Court of whether the language used, which was derived from Jewish law, referred to the substance of Jewish law or was to be interpreted independently from Jewish law (fh 13/80 Hendeles v. Kuppat-Am Bank (pd 35 (2) 785)). With reference to non-Jewish communities, on June 27, 1967, less than two weeks after the Six-Day War, the Knesset passed a law for the protection of all holy places under Israeli jurisdiction.
The Holocaust and its consequences have led to the enactment of laws on the punishment of Nazis and their collaborators (1950), the establishment and administration of the *Yad Vashem Memorial Authority (1953), compensation for those disabled in the war against the Nazis (1954) or by Nazi persecution (1957), Holocaust Memorial Day (1959), and Prohibition of Holocaust Denial (1986).
The Jewish character of the State of Israel first came to the fore in the above-mentioned case of Yerdor v. Elections Committee for the Sixth Knesset (1965), where the Supreme Court invoked the Declaration of the Establishment of the State of Israel. It was 20 years later, in 1985, that the Knesset responded, when a list of candidates was presented to the Elections Committee for confirmation which did not recognize the right of the State of Israel to exist as a Jewish and democratic state. In 1985, Basic Law: the Knesset was amended and a new section, 7a, inserted, by which no list was to participate in Knesset elections if it rejected the existence of the State of Israel as the state of the Jewish people, or rejected the democratic nature of the state or incited to racism. In 2002, section 7a was amended and the cause for disqualification was phrased: "rejection of the existence of the State of Israel as a Jewish and democratic state." A similar terminology was used in the Parties Law, 1992, and again in the human rights Basic Laws.
the law of return
During the first years of independence most of legislation was concerned with amendments to the Mandatory statutes, in order to adapt them to the new circumstances and changing needs. The first major piece of legislation was enacted in 1950; it was The Law of Return, 1950, which guaranteed every Jew's right to immigrate to Israel and become an "oleh" (immigrant). That law was complemented by the Citizenship Law, 1952, which awarded Israeli citizenship to every oleh (olim also have the right to opt out) and regulated the issue of citizenship for Israel's non-Jewish inhabitants. Another complementary law was the Law of Entry, 1952, which regulated the issuing of visas and residence permits to non-Israelis.
The question of "Who is a Jew," for the purposes of the Law of Return, came up before the Supreme Court in 1962 in the case of Rufeisen-Brother Daniel, who was born Jewish but had converted to Christianity and joined a Catholic order (hc 72/62–16 pd 2428). He petitioned the court to have his nationality registered in the register of inhabitants as Jewish, since he felt he still belonged to the Jewish people. The Court denied the petition, reasoning that, in Judaism, nationality and religion come together and cannot be separated.
The question came up again in 1968 in the Shalit case (hc 58/68–23 pd (2) 477), where a Jew and his non-Jewish wife demanded that their children be registered as Jewish, since they were brought up as such (but had not converted to Judaism). In a majority decision, the Court accepted the petition and the children were registered as Jews.
In 1970 the Law of Return was amended to include a definition of "Jew" according to which a Jew was anyone who was born to a Jewish mother or had converted to Judaism and did not belong to another faith.
In yet another case (hc 264/87–43 pd (2) 727) the Supreme Court decided in 1987 that a person who had converted to Judaism need not necessarily have done so according to Orthodox practice. The Supreme Court had a hand in additional developments in this area.
codification of the law
After the establishment of the State of Israel, the binding text of the Mandatory statutes incorporated into the Israeli legal system was their English version; the Hebrew and Arabic official translations were not conclusive. That situation was untenable. In 1952 a huge task was undertaken: the production of an authoritative Hebrew text of the statutes in which all the amendments were to be incorporated. For this task, special committees were set up, headed by judges. The final text was to be authorized by the Constitutional, Legislative and Judicial Committee of the Knesset and published in the Official Gazette – Reshumot. Henceforth the "New Version," as it came to be called, would be the only binding text of the law.
In 1964, as amendments to old Mandatory statutes and to Israeli laws proliferated, it became a more and more daunting task to produce an authoritative text of the original statute as amended from time to time. A procedure was therefore introduced whereby special committees were set up to draft a "Consolidated Version" of the laws. The draft could consolidate several statutes, including a "New Version" of Mandatory legislation. In this manner, the laws became more accessible to those who had recourse to them.
A greater and far more ambitious project was undertaken to codify the civil law of Israel and harmonize the provisions included in the various laws comprising the civil law of the State. A special committee of experts was appointed by the minister of justice, headed by the president of the Supreme Court, Prof. Aharon Barak. After years of arduous work and extensive research, the draft Civil Code of Law was delivered and due to be presented to the Knesset for enactment.
reform of the civil law
It was only in the 1960s that a major and formidable effort was undertaken to reform the then existing legislation, which, as has been seen, was mostly Mandatory and even Ottoman. A series of laws was enacted in the field of civil law, which, step by step, replaced the provisions of the Ottoman Civil Code, the Mejelle, with modern legislation, in keeping with the most progressive trends in the Western world. Some of the important laws that were enacted in the field of civil law are Legal Capacity and Guardianship Law, 1962; Standard Contracts Law, 1964; Agency Law, 1965, Inheritance Law, 1965; Guarantee Law, 1967, Pledges Law, 1967, Bailees Law, 1967; Sale Law, 1968, Gift Law, 1968, Land Law, 1969. Transfer of Obligations Law, 1969, Movable Property Law, 1971; Contracts (Remedies for Breach of Contract), 1970; Hire and Loan Law, 1971. Contracts (General Part) Law, 1973; Contract for Services Law, 1974; Insurance Contract Law, 1981, and the Credit Card Law, 1986. In 1995 the Knesset passed the Computers Law, bringing Israeli law into line with the new technology.
The comprehensive Land Law, 1969, replaced nearly all the Ottoman and Palestine legislation relating to land. The comprehensive Planning and Building Law, 1965 replaced the Mandatory Town Planning Ordinance, 1936. In 1975 the Road Accident Victims Compensation Law was passed. In general terms, this law provides that anyone injured in a road accident is automatically entitled to compensation, irrespective of who was at fault. An advance on the compensation is payable within 60 days of a request by the victim of the accident.
The cumulative effect of these laws was revolutionary: they constituted a severing of Israel's link to its immediate legal heritage, which was English law sprinkled with Ottoman laws. Israel emerged at last as an independent nation, capable of formulating its own legal solutions adapted to Israeli society; at the same time, the new legislation brought Israel into line with the most progressive trends of the modern world. At the same time, special efforts have been made to incorporate into Israel's legislation, as much as possible, concepts of Jewish law.
The new civil legislation rendered the Ottoman Mejelle unnecessary, and in 1984 it was abolished, symbolizing the end of an era, which in fact had ended many years earlier.
Another departure from Israel's legal past occurred with regard to its linkage to English common law and doctrines of equity, which were binding in Palestine by virtue of Section 46 of the Palestine Order-in-Council, 1922. That section provided for the application of the English sources of law only in cases of lacunae – i.e., whenever local law was silent on the matter at hand – and even then only to the extent that local conditions allowed. The Courts, however, applied English principles quite freely. It was only in the case of Kochavi v. Becker (11 pd 225) that the Supreme Court of Israel finally had the opportunity to settle a question which had come up before it but had not required adjudication – what effect, if any, did English precedents, laid down after the establishment of the State of Israel, have on the law of Israel? Justice Witkon's reply was:
To my mind, English precedents can no longer be binding for us, even if they were delivered before the establishment of the state. These precedents have great power to direct us and to persuade us, but they cannot be binding on our courts. Indeed we are free to deviate from them, either on the basis of the express provision of section 11 of the Law and Administration Ordinance, 1948, or on the basis of the mere fact that our courts now operate in a sovereign country which is no longer dependent on the adjudication of a foreign country.
The deputy president of the Supreme Court, the late Justice *Heshin, said:
It does not stand to reason that a sovereign state, having its own set of laws and its own legal system, should continue to be subjected to the rule of a foreign legal system and to the innovations which its courts produce concerning its legal thought, for the sole reason that in the past, when the two countries were closely linked, one of the countries suckled from various spheres of the law of the other country.
It was only in 1980 that Section 46 of the Palestine Order-in-Council, 1922, was officially and finally repealed, although by that time it had no real legal effect. The occasion was the enactment of the statute entitled Foundations of Law, 1980, which stated the following:
Where a court, faced with a legal question requiring decision, finds no answer to it in statute law or case law or by analogy, it shall decide it in light of the principles of freedom, justice, equity and peace in Israel's heritage.
A new controversy arose regarding the meaning and relevance of the phrase "the principles of freedom, justice, equity and peace in Israel's heritage." The Supreme Court was divided on the question of whether the phrase allowed the introduction of the provisions of Jewish law – that is, whether the question before the court should be decided according to Jewish law, or whether the principles referred to are those derived from the Jewish heritage that are also accepted universally, since the Bible is also a vital component of Western civilization. As mentioned above, no decision was reached, since each of the opposing views was supported by only one of the judges – Justices Barak and Elon. The president of the Supreme Court, M. Landau, who presided over the bench, decided that the question did not require a decision in the particular case, and thus the link remained unresolved.
When the State of Israel was established, it inherited the Mandatory Companies Ordinance, 1929, which was an almost exact replica of the English Companies Act, 1929. Many amendments have since been enacted by the Knesset. In 1982 a "New Version" was introduced, in Hebrew, to consolidate the law with its amendments, taking into consideration other pieces of legislation bearing on the subject. However, the basic notions of corporate law remained old-fashioned and unsuitable for a thriving modern economy. Several efforts were made to replace the old ordinance and introduce a new companies law, but these efforts were not successful.
In 1999 a new companies law was enacted on the basis of a draft prepared by Prof. H. Procaccia of the Hebrew University Faculty of Law. The new law reflected the progressive features of corporate law obtaining in the Western democracies.
In 1975 the Knesset enacted the Government Companies Law, which regulates the establishment and functioning of government companies. These controlled a significant part of the country's means of production at the time. Another development in corporate law was the enactment of the Amutot (Non-Profit Associations) Law, 1980, which replaced the Ottoman Law of Association of 1909.
reform of criminal law
In the more than 50 years that have passed since the establishment of the State of Israel, a dramatic change has been effected in criminal law. At the beginning, the Mandatory Criminal Code Ordinance, 1936, was the binding text. It was built along the lines of English criminal law; indeed, one of the provisions of the Code was that for purposes of interpretation, reference was to be made to English law. This provision was abolished in 1972. A long series of amendments was enacted. The most outstanding of them included the following: The Penal Law Revision (Bribery) Law, 1952; The Penal Law Revision (State Security) Law, 1957; The Penal Law Amendment (Deceit, Blackmail and Extortion) Law, 1963; The Penal Law Amendment (Bigamy) Law, 1959; The Penal Law Amendment (Prostitution Offenses) Law, 1962; and The Penal Law Amendment (Prohibited Games, Lottery and Betting) Law, 1964.
In the field of penology, the law was reformed radically. Thus, in 1950, the penalty of whipping was abolished; so was collective punishment (1964). The death penalty for murder was abolished in 1954. In that year, the Penal Law Revision (Modes of Punishment) was enacted, introducing the imposition of conditional sentences of imprisonment, and entirely overhauling the penal system.
In 1977 a "Consolidated Version" of the Criminal Code Ordinance was introduced – in Hebrew – replacing the Mandatory English version. In 1994, the Knesset enacted the Penal Law (amendment No. 39) (Introductory Part and General Part), which entirely reformed the basic notions of the legal elements of crime and criminal responsibility. This law was based on a draft prepared by Prof. S.Z. Feller and Prof. M. Kremnitzer, both from the Faculty of Law at the Hebrew University.
One of the impressive achievements of Israel's legal system was the emergence and development of labor and social security law. It began in the 1950s with the country's socialist agenda to get the workers' unions into the law books. Coupled with this interest was the need to regulate the welfare services offered to the population, a great portion of which consisted of new immigrants who had come destitute from the refugee camps in Europe or from North Africa and the Middle East.
Upon its establishment, Israel inherited a meager fund of legislation on labor and social security. The whole field clamored for reform. A series of laws was enacted in the 1950s, based to a large extent on standards designed by the ilo (the International Labor Organization): Hours of Work and Rest Law, 1951; Night Baking (Prohibition) Law, 1951; Annual Leave Law, 1953, Apprenticeship Law, 1953; Youth Labor Law, 1954; Employment of Women Law, 1954. These laws were all intended to protect vulnerable persons in the workplace. Then came a series of laws intended to safeguard the interests of employees: Sick Pay Law, 1964; Severance Pay Law, 1963; Wage Protection Law, 1958; Employment (Equal Opportunities) Law, 1981 (replaced in 1988); Male and Female Workers (Equal Pay) Law, 1964 (revised in 1996); Male and Female Workers (Equal Retirement) Law 1987; Minimum Wage Law, 1987. Another series of Laws dealt with organizing labor and labor disputes. Thus the Employment Service Law, 1959, set up labor exchanges; the Labor Inspection (Organization) Law, 1954 provided for safety in the workplace; and the Settlement of Labor Disputes Law, 1957, was intended to deal with strikes and lockouts in essential public services.
One outstanding piece of legislation was the Collective Agreements Law, 1957, which consolidated the power of the large labor unions and employers' organizations to sign collective agreements which would be binding for future employees and employers as well.
In 1954 the National Insurance Law came into effect, providing for the payment of pensions to the elderly and to victims of work accidents, as well as allowances for mothers. The National Insurance Institute was established, setting up an impressive array of institutions for the rehabilitation of handicapped persons, professional training, and financial and other care for invalids.
Under the National Health Insurance Law, 1994, the entire population is entitled to receive health care from any one of the four sick funds operating in the country. Everyone is obliged to belong to a sick fund of his choice; the dues are collected by the National Insurance Institute and distributed in a prescribed manner to the sick funds.
The disruption of life caused by a growing number of labor disputes and the special nature of labor relations were the basis upon which the labor tribunals were set up by the Labor Courts Law, 1969. The Law instituted a two-tier system of adjudication: Regional Labor Tribunals and a National Labor Tribunal. The tribunals are headed by career judges, who are appointed, like regular judges, by the president of the State on the recommendation of the Judges Nominating Committee (where the cabinet minister in addition to the minister of justice is the minister of industry, trade, and employment). Alongside the presiding judge there are panels of representatives of the public – laymen with a background in labor relations – who represent employees and employers. They are appointed for a term of three years jointly by the minister of justice and the minister of industry, trade, and employment, after consulting with representative employees' and employers' organizations.
The regional labor tribunals sit as courts of first instance in matters of labor relations and disputes arising from the employee-employer relationship. They also adjudicate in disputes between individuals and the National Insurance Institute. In addition, they sit in criminal cases dealing with offenses related to specific labor legislation.
The National Labor Tribunal sits in panels of three career judges and two lay representatives of the public; in certain matters the panel consists of four lay representatives of the public and three career judges. The National Labor Tribunal hears appeals from the Regional Tribunals. It also sits as a court of first instance in specified matters.
The Labor Tribunals are generally considered to be a great success in settling labor disputes and in reviewing decisions of the National Insurance Institute. Their greatest achievement was the development of labor law and the establishment of an Israeli common law in labor matters.
When the establishment of the State of Israel was proclaimed, Israel found itself from the outset in a state of war with the neighboring Arab countries whose armies had invaded Palestine and were advancing towards Jerusalem, Tel Aviv, and the Galilee to thwart the un resolution on the partition of Palestine. It was because of this situation that the first enactment of the Provisional State Council, the Law and Administration Ordinance, 1948, side by side with establishing the Council as the legislative authority of the new State, also authorized the Council to declare a state of emergency. In the event of such a declaration, the provisional government was authorized to empower the prime minister or any of the ministers to make emergency regulations to such an extent as he considered desirable for the defense of the state, public security, and the maintenance of supplies and essential services. Such emergency regulations could amend any law, or temporarily suspend its operation, and were to cease to have effect at the expiration of three months, unless their validity was extended or they were replaced by the minister who made them or by an ordinance of the legislature. Immediately after enacting the first ordinance, the Provisional State Council issued a declaration that a state of emergency existed in Israel; the declaration was published in the Official Gazette on May 21, 1948. An extensive set of emergency regulations was drawn up, covering a large part of the economy and all security matters.
The state of emergency which was declared in 1948 was still in force at the beginning of the 21st century, although the legal framework for making such a declaration was now Basic Law: the Government (both in the 1992 version as well as the later version which was enacted in 2001 and came into force in 2003). In the 1948 version, the state of emergency – once declared – would remain in effect until repealed by a declaration of the legislature. Under Basic Law: the Government, a state of emergency can be declared for a maximum period of one year, and the Knesset must review the situation and decide from time to time whether conditions warrant a new declaration of a state of emergency. Under the 1948 provisions, emergency regulations could alter any law or suspend it; the new laws clearly state that emergency regulations cannot prevent recourse to the law courts, or establish retroactive punishment, or permit violation of human dignity (sec 39 (d)). In addition, several Basic Laws include a provision forbidding emergency regulations to alter, suspend, or impose conditions on the operation of any provision of those Basic Laws. Through the years, the broad discretion which the language of the law accorded to the ministers in enacting emergency regulations became more and more limited. In the case of Poraz v. the Government of the State of Israel hcj, 2994/90-(44 (3) pd 317) the Supreme Court invalidated emergency regulations promulgated by the minister of construction and housing which bypassed existing statutory arrangements for building permits, in part on the ground that it was not necessary to employ emergency powers when it was possible to achieve the same purpose through the ordinary, if slower, legislative process.
It should also be noted that beside the existence of emergency regulations, the Knesset has enacted laws which are in force solely for the duration of a state of emergency, e.g. Supervision of Goods and Services Law, 1957, or Emergency Powers (Detention) Law, 1979, which repealed part of the Mandatory Emergency (Defense) Regulations, 1945, concerning preventive or administrative detention of persons.
the courts of law
(a) The Supreme Court.
The Supreme Court plays a distinct role in Israeli society and stands out as one of the most important institutions in the State.
Basically, the Supreme Court stands at the head of a three-tier system of adjudication; under it are the district courts and at the lowest level are the magistrates courts. Under Basic Law: Judicature, every decision of a court sitting in first instance is appellable to the higher court. Thus the Supreme Court sits as an appellate court on decisions which the district courts deliver as a court of first instance, and – by special leave – also sits as an appellate court on decisions made originally by magistrates courts. In this capacity, its rulings on legal norms are binding for all the lower courts, according to the principle of the binding precedent which applies in Israel, following the Anglo-American tradition. The greater achievement of the Supreme Court occurred in its other capacity, that of High Court of Justice. In this capacity, the court reviews administrative action and acts as an arbiter between the individual and the state and other public authorities, thus safeguarding the rights of the individual and imposing the rule of law.
As a matter of fact, the powers of the Supreme Court, as set out in the statute, have not changed basically from what they were during the time of the British Mandate. What changed was the gradually broadening scope of both the review of administrative action and the petitioners legally permitted to apply for redress of public grievances. Thus, members of the Knesset, law professors, and civic bodies are generally allowed to present their petitions in matters of general public interest, both when the government has acted and when it has refrained from action. It is in this manner that the Supreme Court entertained a petition against the prime minister for not dismissing a minister and a deputy minister against whom criminal charges had been brought. Similarly, the Supreme Court has entertained a petition against the attorney general for refraining from bringing charges against banks and bankers who were responsible for a disastrous collapse of bank shares in the 1980s.
In its capacity as a High Court of Justice, the Supreme Court has made itself a guardian of civil liberties. Furthermore, the Supreme Court acts as a constitutional court in the sense that it imposes the rule of law on the lawgiver, the Knesset, and that it has ruled that laws which do not conform to provisions of a Basic Law have no legal effect, by reason of unconstitutionality. While it is true that the Court is considered a bastion of the rule of law, some of its decisions have aroused public controversy, and in certain political circles proposals have been put forth to curtail the powers of the Supreme Court. However, the Court generally enjoys deep respect and prestige among large parts of the population.
The Supreme Court is seated in Jerusalem. It is composed of such number of members as the Knesset, by resolution, determines; in December 2003 the number was 15. The Court is composed of the president, the deputy president, and 13 other members. The Court sits in panels of three, and occasionally in panels of five, seven, or an uneven larger number, depending on the importance attached to the forthcoming decision. Whenever a judgment which has been delivered by a panel of three is contrary to existing adjudication or deals in a matter which the Court deems deserving of review owing to its importance, difficulty, or novelty, then there is a "Further Hearing" either on the entire judgment or on parts thereof.
The caseload of the Supreme Court is extremely heavy in view of the statutory right of appeal from decisions of the district courts sitting as first instance. Several commissions have proposed reforming the system to the extent that recourse to the Supreme Court would be discretional. These proposals have not been realized to date; part of the load on the Court has been alleviated by transferring some of its powers to the district courts, in specified administrative matters.
(b) District Courts and Magistrates Courts.
The administration of the courts is the responsibility of the minister of justice; in practice, the courts are administered by the director of courts, who is generally a judge of the rank of president of a district court, appointed by the minister of justice with the consent of the president of the Supreme Court. The courts operate according to the provisions of the Courts Law (Consolidated Version), 1984.
As stated above, the courts operate under a three-tier system, similar to the one used in Mandatory times. The jurisdiction of the magistrates courts is prescribed by the Courts Law: in criminal matters they sit in cases of contraventions and misdemeanors and also in specified felonies. In civil matters, the magistrates courts have jurisdiction where the amount of the claim or the value of the subject matter does not exceed the sum of nis 2.5 million. They also have jurisdiction in claims concerning the possession, use, or division of immovable property. Usually the court is presided over by a single judge, but in special cases the bench is composed of three judges.
District courts have unlimited jurisdiction to deal with any civil or criminal matter not within the jurisdiction of a magistrates court or any other court or tribunal. As stated above, the district courts have concurrent jurisdiction with the Supreme Court in specified administrative matters. The transfer of jurisdiction to the district courts is gradual; at present not all the district courts have been empowered to act in this field. Judgments given by a magistrates court are appealable to a district court. Judgments given by a district court on appeal are appealable to the Supreme Court by leave to appeal. Judgments given by a district court sitting as a court of first instance are appealable to the Supreme Court. There are five district courts: in Jerusalem, Tel Aviv-Jaffa, Haifa, Beersheba, and Nazareth.
(c) Other Courts and Tribunals.
There are also municipal courts, presided over by magistrates. Small claims courts, presided over by magistrates, are empowered to deal with civil claims not exceeding nis 17,800 in value. These courts, which are not bound by the usual rules of procedure, are required to act in a manner most expedient for a just and speedy determination of the cases brought before them. Advocates may not appear for the parties to litigation in these courts, save by leave of the court and for special reasons. Traffic magistrates, appointed in the same way as judges of a magistrates court, have jurisdiction to try offenses against the Road Transport Ordinance or rules thereunder. A fairly recent innovation was the establishment of family courts under the Family Affairs Court Law, 1995. This Court deals with a variety of family and personal status matters, which previously were under the jurisdiction partly of a district court and partly of a magistrates court. It thus deals, inter alia, with claims for maintenance, parenthood, adoption, inheritance, visitation rights, and cases arising from the operation of the Prevention of Domestic Violence Law, 1991. The family courts are presided over by magistrates court judges. Judgments given by this court as well as those given by the other courts mentioned above are appealable to a district court.
Under the Military Justice Law, 1955, there are various courts martial and a court martial appeal court, which deal with offenses by soldiers and army employees.
There are also numerous tribunals, boards, and committees established under various laws to deal with special classes of cases, over many of which a judge presides. The procedure in these tribunals is regulated by the Administrative Tribunals Law, 1992. The labor tribunals were described above.
As stated above, upon the establishment of the State of Israel, the law of the new state comprised all sections of the law which had existed on the eve of its establishment. Mandatory law, in its turn, inherited the Ottoman law which had existed prior to the establishment of the British Mandate for Palestine. In Ottoman times all matters of personal status were within the jurisdiction of the religious courts of the various religious communities. These courts are still operating, although several changes were made by the Israeli legislature, particularly as regards the rabbinical courts.
Under the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, the rabbinical courts have exclusive jurisdiction in matters of marriage and divorce of Jews in Israel, who are nationals or residents of the state, in any matter connected with a suit for divorce between Jews which has been filed therein, whether by the wife or the husband, including maintenance for the wife and for the children of the couple, and claims for *ḥaliẓah filed therein by a woman against her deceased husband's brother, including maintenance for the woman until the day when ḥaliẓah is given. Furthermore, when a Jewish wife sues her Jewish husband or his estate for maintenance in a rabbinical court, otherwise than in connection with divorce, the plea of the defendant that a rabbinical court has no jurisdiction in the matter may not be entertained, and in matters of personal status of Jews in which a Rabbinical Court has not exclusive jurisdiction under the law, it will have jurisdiction after all the parties concerned have expressed their consent thereto. Upon the coming into force of the Adoption of Children Law, 1960, the adoption of children was excluded from the definition of matters of personal status in the Palestine Order-in-Council; so were successions, wills and legacies upon the coming into force of the Inheritance Law, 1965. Jurisdiction in matters of adoption under the above law is conferred upon Religious Courts, however, if the parents, the adopters, and the adoptee have consented in writing to their jurisdiction, or, in the case of an adoptee not being capable of understanding the matter, or being under the age of 13 years, if a social welfare officer and the attorney general have consented to their jurisdiction. Under the Inheritance Law, 1965, a Religious Court which had jurisdiction in matters of personal status of the decedent may make an order of inheritance or an order confirming a will and determine rights to maintenance from the estate if all the parties concerned according to the law have expressed in writing their consent thereto.
The Druze Religious Courts Law, 1962, established, for the first time in Israel, a Druze Religious Court and a Druze Religious Court of Appeal. The Druze Religious Court is given exclusive jurisdiction in matters of marriage and divorce of Druze in Israel who are nationals or residents of the state and matters relating to the creation or internal management of a religious trust established before a court under Druze religious law or of a Druze trust established before the coming into force of the Law in accordance with Druze custom otherwise than before a religious or civil court. In matters of personal status of Druze in which a Druze Religious Court has no exclusive jurisdiction under the law, such court will have jurisdiction after all the parties concerned have expressed their consent. The Druze Religious Court of Appeal has jurisdiction to deal with appeals from judgments of the Druze Religious Courts.
Matters of dissolution of marriage, including divorce, annulment of marriage, and recognition of a marriage as void ab initio, which are not within the exclusive jurisdiction of a Jewish, Muslim, Christian, or Druze Religious Court, are within the jurisdiction of the District Court or a Religious Court as determined by the president of the Supreme Court in accordance with the provisions of the Jurisdiction in Matters of Dissolution of Marriage (Special Cases) Law, 1969. That law will not apply if both spouses are Jews, Muslims, Druze or members of one of the Christian communities maintaining a Religious Court in Israel. In cases to which the law applies, the provisions of the Palestine Order in Council, prohibiting the District Courts and Religious Courts from granting decrees of dissolution of marriage, will not apply. When a District Court upon which jurisdiction has been conferred under the law deals with the matter, it must do so in accordance with the following order of priority: (1) the internal law of the place of permanent residence common to the spouses; (2) the internal law of the last place of permanent residence common to the spouses; (3) the internal law of the country of the common nationality of the spouses; (4) the internal law of the place where the marriage was celebrated; but it may not deal with the matter according to a law as aforesaid if according thereto different laws are applicable to both the spouses. If there is no law applicable as aforesaid, the court may deal with the matter in accordance with the internal law of the place of permanent residence of one of the spouses as appears to it just in the circumstances of the case, but the consent of the spouses will always be a ground for divorce.
appointment of judges in civil and religious courts
Under Basic Law: Judicature an entirely new system of appointment was created: all the judges of the Magistrates' Courts, the District Courts and the Supreme Court are appointed by the president of the state upon the recommendation of a Nominations Committee submitted to him by the minister of justice, who is its chairman. The Nominations Committee is composed of three judges, namely, the president of the Supreme Court and two other judges of the Supreme Court elected by the judges of that court for three years; two members of the government, namely the minister of justice and one other member chosen by the government; two members of the Knesset elected by it by secret ballot; and two practicing advocates elected by the Chamber of Advocates. Candidates for appointment may be proposed by the minister of justice, the president of the Supreme Court, or jointly by three members of the nominations committee.
Persons qualified to be appointed as judges of the Supreme Court are persons who have held office as a judge of a District Court for a period of five years, persons inscribed, or entitled to be inscribed, in the Roll of Advocates in Israel and who, for not less than ten years, including at least five years in Israel, have been engaged in any of the following: (1) the profession of an advocate; (2) a judicial or other legal function, in the service of the State of Israel or another service approved by the minister of justice, by regulations, for this purpose; (3) the teaching of law at a recognized university or law school.
Eminent jurists may also be appointed. Persons qualified to be appointed as judges of a District Court are persons who have held office as a judge of a Magistrates' Court for a period of four years, persons inscribed, or entitled to be inscribed, in the Roll of Advocates in Israel and who, continuously or intermittently, for not less than seven years, including at least three years in Israel, have been engaged in one or several of the occupations enumerated above. Persons qualified to be appointed as judges of a Magistrates' Court are those inscribed or entitled to be inscribed in the Roll of Advocates in Israel for not less than five years, including at least two years in Israel.
Similar systems of appointment have been created for judges of the Rabbinical Courts, the Muslim Religious Courts, and the Druze Religious Courts, but no legislation has yet been passed regulating the appointment of the judges of the Christian Religious Courts, who continue to be appointed by the head of the community. Under the Dayyanim Law, 1955, the judges of the Rabbinical Courts, known as dayyanim (see *dayyan) are appointed by the president of the state upon the recommendation of a Nominations Committee submitted to him by the minister for religious affairs. Currently the duties of the minister for religious affairs are performed by the minister of justice. The committee is composed of the two chief rabbis of Israel, two dayyanim elected by the body of dayyanim for three years, two members of the government, namely, the minister for religious affairs and one other member chosen by the government, two members of the Knesset elected by it by secret ballot, and two practicing advocates elected by the Chamber of Advocates. Persons qualified in accordance with regulations made by the minister with the consent of the Chief Rabbinate Council are eligible for appointment as dayyanim if they were so qualified within the two years preceding the appointment. Under those regulations they must have a rabbinical certificate authorizing them to teach and adjudicate (Yoreh, yoreh, yadin, yadin – see *semikhah) issued by an expert rabbi or Torah institute whose certificate is recognized as sufficient by the Chief Rabbinate Council, be 30 years of age, be or have been married, and have a character and mode of life which befit the status of a dayyan in Israel. In addition, a dayyan of a Rabbinical Court must have passed examinations held on behalf of the Chief Rabbinate Council or be exempted therefrom, while a dayyan of the Rabbinical Court of Appeal must have been a dayyan of a Rabbinical Court for at least three consecutive years, or be known as an illustrious Torah scholar (gadol ba-Torah) according to a majority of the members of the Council of the Chief Rabbinate Council including the two chief rabbis. The subjects of the examination for dayyanim are (1) general knowledge of the Talmud and the *Posekim; (2) thorough knowledge of the *Shulḥan Arukh, *Even ha-Ezer and *Ḥoshen Mishpat; (3) drafting of a judgment in a hypothetical case with reasoned findings of fact and decisions of substantive law; (4) knowledge of the rules and procedure based upon the *Halakhah.
Under the Qadis Law, 1961, the judges of the Muslim Religious Courts, known as qadis, are appointed by the president of the state upon the recommendation of a Nominations Committee submitted to him by the minister for religious affairs. The Nominations Committee is composed of two qadis elected by the body of qadis for three years, two members of the government, namely, the minister for religious affairs and one other member chosen by the government, three members of the Knesset, including at least two Muslims, elected by the Knesset by secret ballot, and two advocates, including at least one Muslim, appointed by the Chamber of Advocates. Persons qualified to be appointed as qadis are Muslims who have had suitable training in Shariʿa Law, whose way of life and character befit the status of a qadi in the State of Israel and who are at least 30 years of age and are, or have been, married.
Under the Druze Religious Courts Law, 1962, judges of the Druze Religious Courts, known as qadis madhhab, are appointed by the president of the state upon the recommendation of a Nominations Committee submitted to him by the minister for religious affairs. The Nominations Committee is composed of the chairman of the Druze Religious Council constituted by rules made by the minister for religious affairs under the Religious Communities (Organization) Ordinance, the president of the Druze Religious Court of Appeal, or, if he serves also as the chairman of the Druze Religious Council, a qadi madhhab elected by the body of qadis madhhab for three years, another qadi madhhab similarly elected, the minister for religious affairs and the minister of justice, two Druze members of the Knesset (or other Druze, if there is only one Druze member of the Knesset or none) elected by the Knesset by secret ballot, and an advocate elected by the National Council of the Chamber of Advocates for three years. Persons qualified to be appointed as qadis madhhab are Druze who have had a suitable training in Druze religious law, whose way of life and character befit the status of a qadi madhhab in the State of Israel and who are at least 30 years of age and are, or have been, married. As from July 9, 1964, no person may be appointed as a judge, dayyan, qadi, or qadi madhhab of the courts to which the above laws apply, unless he is an Israel citizen. If the candidate for appointment has also another nationality and the laws of the state in which he is a national enable him to divest himself of such nationality, he will not be appointed until after he has done everything necessary on his part in order to divest himself thereof.
Every person appointed as a judge, dayyan, qadi, or qadi madhhab must, before assuming his office, make before the president of the state a declaration whereby he pledges himself to bear allegiance to the State of Israel, to dispense justice fairly, not to pervert the law and to show no favor, while every judge must also pledge himself to bear allegiance to the laws of the State of Israel. Every judge, qadi, and qadi madhhab in judicial matters is expressly declared by the law applicable to him to be subject to no authority other than that of the law, while under the Dayyanim Law, 1955, every dayyan in judicial matters is expressly to be subject to no authority other than that of the law according to which he judges. The reason for the difference in wording as regards the dayyanim is to make it clear that only the laws concerning the legal system of the dayyanim, including those laws which restrict the jurisdiction of the dayyanim and no other laws, bind the dayyanim in judicial matters.
An additional safeguard for the integrity of the judges is stated in section 10 of Basic Law: the Judicature, where the salaries and pensions of the judges are provided for. The Basic Law declares that no decision should be made to reduce only the salaries of judges.
Every judge, dayyan, qadi, and qadi madhhab will hold office from the day of his declaration of allegiance and his tenure will end only upon his death, resignation, retirement on pension, or removal from office by virtue of the law applicable to him. He may resign his office by submitting a letter of resignation to the appropriate minister, and his tenure of office will terminate upon the expiration of three months from the submission of the letter of resignation, unless the minister has consented to a shorter period. He may retire on pension if he has attained the age of 60 after having held office for 20 years, if he has attained the age of 65 after having held office for 15 years and if he so requests and his request is approved by the appropriate Nominations Committee. A magistrates court judge may retire on pension if he has attained the age of 50 after having held office for 20 years, or if he has attained the age of 55 after having held office for 15 years. Every judge must retire if the appropriate Nominations Committee, on the strength of a medical opinion, decides that, owing to his state of health, he is unable to continue in office, or on attaining the age of 70 years, unless he is a chief rabbi of Israel or a senior presiding dayyan, in which case he must retire on pension on attaining the age of 75 years.
Every judge, dayyan, qadi and qadi madhhab is subject to the jurisdiction of a Court of Discipline constituted under the law applicable to him. The Court of Discipline for judges consists of five members, including three judges of the Supreme Court, as the president of the Supreme Court may in respect of each case prescribe, and its members are appointed in respect of each case by the body of the judges of the Supreme Court. Similar provisions apply, mutatis mutandis, to dayyanim. The courts of discipline for qadis and qadis madhhab consist of three members: the president of the Shariʿa Court of Appeal or the Druze Religious Court of Appeal, as the case may be, or the qadi or qadi madhhab, as the case may be with the greatest length of service, an advocate appointed for each case by the National Council of the Chamber of Advocates, and one member appointed for each case by the minister of religious affairs. The minister of justice may submit a complaint against a judge, and the minister for religious affairs against a dayyan, a qadi or a qadi madhhab, to the competent Court of Discipline on one of the following grounds: (1) he has acted improperly in carrying out his functions; (2) he has behaved in a manner unbecoming his judicial status in the State of Israel; (3) he has been convicted of an offense which in the circumstances of the case involves moral turpitude; (4) the Nominations Committee has found that he obtained his appointment unlawfully.
The Court of Discipline must submit its findings, whether favorable or unfavorable, to the appropriate minister; if it finds that the person concerned is unworthy to continue in his functions, the minister must submit its findings to the president of the state, who must remove him from office. Criminal proceedings may not be brought against a judge, dayyan, qadi or qadi madhhab save by the attorney general before a District Court composed of three judges. The salaries and other payments to be made to a judge, dayyan, qadi and qadi madhhab during and after his period of tenure, including those to be made to his dependents after his death, are fixed by resolution of the Knesset or by the Finance Committee of the Knesset if so authorized by the Knesset.
The Chamber of Advocates Law, 1961 established a self-governing integrated bar, administered by institutions elected democratically by the body of advocates. This is the only profession enjoying autonomy: other professions are controlled by the government. Under that law a person may not practice the profession of an advocate in Israel unless he is a resident of Israel, is 23 years of age, has qualified as an advocate by passing the prescribed examinations and serving one year as a law apprentice, and has been accepted as a member of the chamber. Law apprenticeship may be served with a judge of the Supreme Court or a district court or with a magistrate of at least five-years' standing, a court martial judge who is a jurist of at least five years' standing, or a member of the Chamber of Advocates who is of five years' standing or holding a post in the Government Legal Service prescribed for that purpose by the minister of justice. At the end of the period he must undergo written examinations of the Chamber of Advocates in practical subjects and an oral examination conducted by examining committees composed of three members each, namely, a judge, as chairman, and two advocates, one of whom is a member of the Legal Service.
Advocates are subject to the jurisdiction of Disciplinary Tribunals composed solely of advocates as prescribed by the Chamber of Advocates Law, 1961. From a judgment of a Disciplinary Tribunal the accused advocate, the prosecuting chamber, and the attorney general, may appeal to the National Disciplinary Tribunal; there is an additional appeal to the Supreme Court. There are about 33,000 members of the Chamber of Advocates, not all of them necessarily in actual legal practice.
the attorney general
The attorney general occupies one of the most important senior positions in the administration of the country and is one of the pillars upon which the rule of law is upheld within the government framework. Based on the Mandatory model, the attorney general is a professional jurist. In 1997 the minister of justice appointed a public committee to examine the proper method for appointing the attorney general and subjects related to his post. The committee was headed by retired president of the Supreme Court Meir Shamgar, who, before being elevated to the Bench, occupied the post of attorney general. With him were three former ministers of justice and a renowned law professor. The report, submitted in 1998, describes the duties of the attorney general as follows:
(1) He is the head of the public prosecution. In this capacity he is responsible for applying the penal law in the State, including appearance in the law courts, either in person or through his representatives.
(2) He represents the State in non-criminal litigation, namely in civil suits as well as administrative, fiscal, and labor relations litigation and in any other representation in non-criminal matters.
(3) He gives legal advice to the government and other public officials.
(4) He gives legal advice and assistance to the government in general and to the minister of justice in particular in preparing legislation to be submitted to the Knesset and oversees its proper integration in the law of the land. Likewise he examines private-member bills submitted to the Knesset.
(5) He represents the public interest and upholds the law in a variety of additional subjects specified in provisions of the law.
The attorney general is appointed by the government for a single term of six years.
the state comptroller
The office of the state comptroller was established by law in 1949. In 1988 Basic Law: the State Comptroller was enacted. Section 2(a) charges the comptroller with the duty to "carry out inspection of the assets, finances, undertakings, and administration of the state, of government offices, of every enterprise, institution or public corporation of the state, of local authorities, of bodies or other institutions subject to inspection by this Law." The office of state comptroller is the most effective instrument for review of public administration.
The state comptroller is elected by the Knesset for a tenure of seven years, which may not be renewed, and is empowered to request all information from the public body being audited. The comptroller's reports are presented to the Knesset, where they are discussed by its Public Audit Committee. The comptroller thus serves as the long arm of the Knesset for the efficient review of the administration and as a main source of information necessary for the Knesset's control over government activities.
The state comptroller also serves as the public complaints commissioner (Ombudsman), and decides authoritatively on thousands of complaints from citizens against state and government agencies, government corporations, and local authorities. In addition, the state comptroller inspects the finances of the political parties and their campaign accounts. The publication of the yearly comptroller reports is covered extensively by the media. The state comptroller enjoys enormous public prestige. (See also Israel, State of: Political Life and Parties.)
[Henry Eli Baker /
Shlomo Guberman (2nd ed.)]
The establishment of the Israel Police preceded that of the State itself. At the end of 1947, after the United Nations partition decision, the Mandatory police began to break up. Non-Jewish constables were withdrawn from the coastal area; only about 700 Jewish policemen and a little inferior equipment were left. The most serious problem was the shortage of men to fill command and technical posts, most of which had been held by British officers. Second in urgency was the need to change the character of the Police, which, especially in the few preceding years, had been more military than constabulary, into the kind of force normal in a democracy, dedicated only to ensure the rule of law and the public welfare. At the end of 1948, the Police had a strength of 1,882.
Three stages of development may be distinguished. The first was organization and recruitment. This was not easy, for the army demanded first choice of men and material. Nevertheless, within two years 3,497 men had joined, and equipment was assembled from whatever source, regardless of uniformity. In organization and methods, new forms had to be found to fit new needs. Mass aliyah, unemployment, and a flood of new legislation naturally enlarged the scope of police work. Relations between the people and the Police were not good, partly because of the aftereffects of the Holocaust and of two wars, and the suspicions of newcomers from eastern European and Arab lands where the policeman was suspect and disliked. Policemen often found themselves confronted by angry demonstrators in front of Government or public offices; the men were pressed into service day and night, with inadequate compensation. The growing manpower, with a large turnover, was also troublesome. In the second stage, fall-out was heavy, but these were years of natural selection, which strengthened those who stayed on, contributed to their professional specialization and built up a cadre of experts and officers. By the second half of the 1950s long-range planning was feasible and different techniques could be tried out in organization and command, in criminal investigation and traffic control. Some of these were borrowed, but most were the fruit of the force's own ideas and experience. This was a period of ever-increasing traffic and accidents, security problems complicated by border infiltration, and more crime. In the third stage administration and organization were stabilized and efficiency was steadily increased.
A task unknown to most other police forces is the guarding of the cease-fire lines against infiltration and attack from the neighboring countries. This was done by the Frontier Guard, in cooperation with the army. After the Six-Day War, the Israel Police was also responsible for law and order in the areas administered under the cease-fire agreements. Local Arab policemen, 90% of whom served under Jordanian and Egyptian rule, were recruited and retrained for the purpose. Increasing terrorist attacks led the government to give the police responsibility for internal security in 1974. This involved the creation of a Civil Guard joined by tens of thousands of citizens to patrol neighborhoods as well as the creation of an Anti-Terrorist Unit and Bomb Disposal Division. Beginning in the late 1970s, rising crime also led to the creation of such units as the National Serious Crimes Investigation Unit, the National Fraud Unit, the Internal Investigations Unit, the Headquarters Staff Work Unit, Tel Aviv District's Central (Serious Crimes) Unit, etc.
The police faced many challenges and crises in the course of its history. Over 50 were killed in 1982 and 1983 bombings in Tyre during the Lebanese War. The two Intifadas severely taxed its resources and during rioting in the North of Israel in October 2000, 13 Israeli Arab citizens were killed and hundreds wounded in a police action that drew heavy criticism. In August 2005 the police joined the army in the evacuation of the *Gush Katif settlements, an operation which won it much praise for the restraint and patience shown in dealing with the angry settlers.
The Israel Police is controlled by national headquarters in Jerusalem and commanded by the Inspector General. In 2005 the strength of the force was around 25,000 in six districts, 10 subdistricts, and 80 police stations.