Judicial Intervention

The Role of the Courts – To What Extent Should the Judiciary be Involved?

The question of whether judges should intervene in certain cases has continuously raised controversial opinions. Should the judges intervene in political cases? What about cases related to security and defense? The separation of powers states that each branch of government has its distinct functions, but as the complexity of cases intensifies, this line is becoming increasingly blurred. 

In the past few decades, the legal institutions in Israel have strengthened. The Judges Act 1953 shifted the power to appoint judges from the political sphere to the judicial field. The composition of the appointment committee consists of a majority of 5-4 for non-politicians, giving further structural independence to the judiciary. This exemplifies the level of trust that the public has instilled in the courts to protect its democracy. The judicial branch was ranked second, just after the army, in terms of public appreciation and confidence. 

One of the main arguments against judicial intervention relates to the structure of democracy. Why should a person participate in politics and vote for who they believe will be the best representation, if the judges, who are not elected, have the final say? However, the role of the judiciary is particularly important in maintaining a democratic society. It acts as an independent body to ensure that the executive does not become too powerful and acts lawfully. This ensures that the rights and freedoms of citizens are protected as stated in the Declaration of Independence. 

Judicial Review in Israeli Law 

When a person believes that the government or public authority has not acted within its powers, the case can be brought to the courts for judicial review. The current system allows individuals to bring cases to the Israeli High Court of Justice relatively easily and at a low cost. Additionally, a person does not need to go through the lower courts but can petition directly to the Supreme Court when challenging the actions of the government or another public authority. However, certain requirements must be fulfilled before this can happen. The first step is to ensure that the courts have jurisdiction. The courts took a pragmatic approach in defining jurisdiction and made decisions on a case-to-case basis. Secondly, the applicant must convince the court to consider the case. Two important factors in this stage are standing and justiciability. Justiciability refers to the matters in which a court can decide or adjudicate. If a case is non-justiciable, then the court must dismiss it. Starting with the former, there are two ways in which an individual can have standing. The first way is for the individual to show that they were personally affected by the unlawful act. The second option is to speak on behalf of a public petition, such as a public interest group arguing for a specific cause. The applicant must then convince the court that the case is justiciable, which means that it must be shown that the question at hand is a legal question for the courts. If both elements are satisfied, the next step is to prove that the public authority did act outside the scope of its powers.   

Judicial Review in Cases of National Security

Concerning security and defense, judicial review has often been looked at through a negative lens. The court's intervention in this area leads citizens to believe that the state cannot defend itself against security threats. This, however, does not stop the courts from intervening when it is appropriate and important to do so. For example, the case of Tbeish v Attorney General concerns an individual that was involved in hostile terrorist activity, who knew the location of dangerous weapons for a future attack. The appellant claimed that he was tortured while under investigation by the Israeli Security Agency and wished to open a criminal investigation. Despite the broad discretion that the prosecution enjoys with opening criminal investigations, the courts can intervene in exceptional cases, where the substantive law is flawed. This case demonstrates the increasing importance of judicial intervention, especially when the country’s security is at imminent risk. 

Despite the context of a particular case, judicial intervention is likely necessary when there is a legal question at hand. The increasing trust and confidence in the judicial branch are paving the way for the future of the legal industry. If you require legal expertise, Cohen, Decker, Pex & Brosh would be happy to assist you.