The Influences of Constitutional Principles on Civil Procedure in Israel

Abstract

In this article we will attempt to clarify a number of basic constitutional principles as they are reflected in the Israeli system of civil procedure. In so doing, we do not purport to be exhaustive as to the constitutional principles discussed. Rather, we will be selective, and shall place our emphasis on those principles that are most basic to the Israeli system. First, however, we must briefly describe the Israeli constitutional structure. Israel has no written constitution. Nor do any of the Basic Laws, which have a quasi-constitutional standing, specifically treat the issues discussed in this article. Yet, this does not mean that constitutional principles do not influence civil procedure in Israel.First, it should be noted that many constitutional principles, in the broad meaning of this term, i.e., fundamental, structural principles, are embedded in positive Israeli legislative provisions, both of primary and of secondary legislation.

The Judicialization of Politics in Israel

“…Rights to a hearing and cross examination were required in statutory proceedings that did not provide such safeguards. Administrative discretion to deny licenses, to determine election lists, to register companies, and to censor newspapers was substantially curtailed (Albert, 1969;Goldstein, 1982). By 1974, it was clear that the Israeli courts' concern for the rule of law was being extended to protect human rights (Shapira, 1974).…”

The Judicial Elite of Israel

“…Rights to a hearing and cross-examination have been required in statutory proceedings that did not provide such safeguards. Administrative discretion to deny licenses, to determine election lists, to register companies and to censor newspapers has been substantially curtailed (Albert, 1969;Goldstein, 1982). The Supreme Court has also looked behind claims of national security and ordered the dismantling of Jewish settlements on Arab-owned land (Eilon Moreh case, 1980; Goldstein and Scottenfels, 1980).…”

“…That public law system plainly functions as part of the Western legal tradition, particularly within the &dquo;common law family.&dquo; Utilization of Ehrmann's classification leads us to expect that Israel's legal elite and judicial system would value procedural regularity (the rule of law) and a concern for individual liberties. Despite problems, that is demonstrably the case (Cohn, 1974(Cohn, , 1974Shapira, 1974;Goldstein, 1982).…”

Overruling Precedent

“…The purpose of the changes must be to allow civil procedure to fully realize its purpose of efficiency and justice while preserving the legitimate interests of litigants and of the public. 73 A rule that does not serve that end should not be retained simply by virtue of its stability.…”