Dramatic drop in Israeli public’s trust in High Court of Justice

Cover of Regavim’s 2018 report on High Court bias

Yesterday (January 11), a new poll was published by the Israel Democracy Institute reflecting a dramatic drop in the Israeli public’s trust in its government systems. One glaring finding shows that only 42% of the public express trust in the High Court of Justice, Israel’s highest court.

To bring this problem into clear focus, it’s worth analyzing this statistic through the prism of political affiliation. While 84% of those who identified as left-wing expressed trust in the High Court of Justice, only 38% of those who self-identify as right wing expressed similar trust.

How has it come to this?

For 15 years, Regavim has been speaking – and proving- the uncomfortable truth: the High Court of Justice is politically biased. It’s not a hunch or a subjective impression; Regavim has presented actual, empirical and undeniable evidence of the HCJ’s bias in three separate reports spanning over a decade.

We analyzed more than 110 petitions, submitted to the High Court of Justice by both left- and right-wing appellants over a period of 18 years. All of the cases involved illegal construction in Judea and Samaria, and in each case the petitioners claimed that the Civil Administration had failed to enforce the law against the illegal construction.

Roughly half of the petitions were filed by left-wing organizations against Israeli communities, and the remaining half were submitted by Regavim and other Zionist organizations against illegal construction in the Arab sector in Judea and Samaria.

All the petitions dealt with extremely similar legal issues and based their arguments on the same points of law.

Regavim’s analyses examined the procedural aspects of these cases, rather than arguments presented or the rulings handed down. These procedural elements serve as a neutral indicator, reflecting the opening position for each petition and the basic, underlying attitudes of the judges toward the issue at hand.

Our findings painted a disturbing picture:

• In petitions filed by the left, the average time allotted by the Court for the defendants’ preliminary response was 18.5 days, while in petitions filed by the right, respondents were allotted an average of 30.5 days to respond – a disadvantage of 150% against right-wing petitions

• For right-wing petitions, the average time that elapsed between filing the petition and its first hearing was 342 days, some three months longer than the time elapsed for left-wing petitions to be heard (average of 248 days).

• Interim orders were granted in 84% of left-wing petitions in which they were requested, while right-wing petitions were granted interim orders in a mere 13% of cases.

• In right-wing petitions, the Chief Justice participated in the panel in only 21% of cases, as opposed to 58% of left-wing petitions, reflecting the importance attributed by the Chief Justice to each case.

• Of the 61 petitions filed by the right in which an order nisi was requested, the Court granted only one (1.7%). Of the 43 petitions filed by the left in which an order nisi was requested, the Court granted 19 (44%).

• The average number of hearings held by the High Court of Justice for petitions filed by the left was 2.64, as opposed to 1.06 hearings for each petition filed by the right.

• Left-wing petitions remained active over an average period of 33.3 months. On the other hand, the average life span of right-wing petitions was 16.7 months.

Small wonder, then, that fewer right-wing people believe the High Court to be impartial; their perception of unfair treatment by the legal system is borne out by the facts. A growing  majority of the Israeli public understands that High Court rulings are dictated not by the law, but by the personal politics and agendas of the judges. All too often, the outcome of a given petition is a foregone conclusion once the panel of judges is announced.

As if this weren’t bad enough, the Court’s bias continues to be compounded by the ‘judicial revolution’ launched  by former Chief Justice Aharon Barak, which paved the way for the judicial system to intervene in political realms that should be off-limits for non-elected officials. At the end of the day, legislators are elected and empowered by the public, and are held accountable by the public when they stand for re-election (which has been the case with alarming frequency recently!). Israel’s judges are appointed – in fact, they are, in effect, members of a self-selected elite. The public has no way to “un-elect” people who weren’t elected in the first place.

When lines are crossed, when personal bias and political agendas become so blatant that the public can no longer place its trust in the judicial system, we all have a problem – whether we consider ourselves “left” or “right”.

In order for trust to be restored, and in order to preserve our democracy and to restore a healthy balance between the different branches of government, Israel’s judicial system must be reformed. Until the process of judicial appointment is democratized and  the values of the entire Israeli public are represented on the bench, the public’s faith in our highest institutions will continue to decay – and with it, the very foundations of our democracy.

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