2. High Court of Justice fact finding

Generally, supreme courts do not handle questions of fact; they deal with the law that raises a ‘big issue’ (such as equality, religious freedom, freedom of expression, the relationship between religious organisations and the state, the balance between civil liberties and national security), and the accuracy of the facts is a preliminary assumption. Therefore, Supreme Court litigation does not entail actual testimony of witnesses or the presentation of evidence. It focuses on arguing about the law in abstract and the application of the law to an assumed or given set of facts. All of this occurs provided that the lower courts have conducted a formal fact-finding process. However, the Israeli Supreme Court, in the most prominent issues before the public eye, sitting as a High Court of Justice, exercises original and final jurisdiction without the lower court having undertaken fact-finding procedures and without a formal fact-finding process. Indeed, typically, petitions and responses to the HCJ must be supported by affidavits that affirm all relevant facts, but there is no cross-examination, presentation of evidence, discovery, or other adversarial and time-consuming means to assist the justices in resolving fact-specific issues.Footnote ³

This situation is problematic and may lead to misunderstandings, mistakes, and even instances of dishonesty. However, most of all it enhances the danger of political bias and injures the Court's integrity and credibility, which rests on the presumption that the parties present the facts of the case through an adversarial process to an impartial decision maker.Footnote ⁴ In the absence of a formal fact-finding process consisting of a meaningful adversarial presentation of the facts, the justices tend to reach a factual conclusion at an early stage, adhere to that conclusion in the face of counter-facts later formed,Footnote ⁵ and litigants and large groups in the population often conclude they are partisan players in the litigation rather than a detached observer in the dispute.Footnote ⁶

An example can be seen in a recent oral argument in HCJ 2412/23 The Movement for Quality Government in Israel v The Knesset. The petition challenged an amendment to Basic Law: The Government, which limits the ability of the Attorney General to remove a serving prime minister from office.Footnote ⁷ The Court's three most senior justices were assigned to hear the case: Chief Justice Esther Hayut and Justices Uzi Vogelman and Yitzhak Amit. During the five-hour televised hearing,Footnote ⁸ the justices from the ‘liberal camp’ of the Court showed their discomfort with the amendment, viewing it as personal legislation designed to prevent the removal from office of Prime Minister Benjamin Netanyahu.Footnote ⁹ Chief Justice Hayut asserted that the ‘fingerprints are very very clear’, referring to a plan designed to prevent Prime Minister Benjamin Netanyahu from being removed by the Attorney General or by the Court. To this, her fellow panel member Justice Vogelman added that ‘with regard to the personal motive – the situation is clear. It is a very large mosaic from which there is only one conclusion. The fact is the law is personal’.Footnote ¹⁰ Later, in oral argument, Chief Justice Esther Hayut insisted that ‘[Likud Knesset Member] Moshe Saada said two days before the law was passed in its second and third hearings, “we legislated it because of Netanyahu.” You can't get clearer than that’.Footnote ¹¹

Hayut probably found Saada's comment in the petitioner's brief. A few hours later, Saada tweeted that Hayut had distorted his comment and had taken it out of context.Footnote ¹² Conservative media sources also criticised Hayut for the double standard because she refused to hear a comparable oral argument in a case concerning the legality of the maritime border agreement between Lebanon and Israel, reached by the left-leaning government of Yair Lapid a year ago.Footnote ¹³ The petitioner argued that the Lapid government's decision not to certify the agreement by the Knesset was motivated by bad faith. He based his argument on comments made by the (then) Prime Minister Lapid in a press conference. Chief Justice Hayut rejected the argument immediately, stating that notwithstanding the accuracy of the Prime Minister's comment, it was irrelevant in respect of the government as a whole.

Another recent instance where it was alleged that the HCJ misconceived or misconstrued the material facts is HCJ 8948/22 Sheinfeld v The Knesset.Footnote ¹⁴ The HCJ disqualified Aryeh Deri, the Shas leader, from serving as Minister of the Interior and Minister of Health. The majority of the Court held that his appointment was ‘unreasonable in the extreme’; therefore, the Prime Minister must remove him from office. The Court's determination was based on Deri's accumulated criminal convictions, including a recent conviction on his own admission as part of a plea deal for tax offences, and Deri's declaration before the Magistrates’ Court that sentenced him for these offences, according to which he would retire from political life. Some of the majority justices opined that in view of Deri's declaration, which led to the imposition of a more lenient sentence, he was not allowed to serve as a minister in accordance with the doctrine of estoppel. The Sheinfeld decision was reached 10 to 1, with most of the conservative justices joining the progressive justices.Footnote ¹⁵ However, the HCJ still faced the accusation of double standards – namely, that it would have found a way to legitimise the appointment had it been a left-leaning government or had Deri been a left-centre politician.Footnote ¹⁶ Moreover, Deri and his supporters contested that he had never made any commitment to retire permanently and that a key factual point in the majority holding is incorrect.Footnote ¹⁷ Because of space constraints of this article, this factual point cannot be explored in full. Suffice to say that Deri did not stipulate explicitly that he was permanently retiring from the Knesset, and that the former Attorney General, Avichai Mandelblit, attested in a television interview after the HCJ ruling that Deri ‘did not pledge that he would quit politics as part of a plea bargain’, which ‘seem[s] like proof that the Court made a mistake’.Footnote ¹⁸

My objective here is not to engage in ‘whataboutism’ or to play a game of ‘factual gotcha’, but to claim that this is a systemic problem that characterises HCJ adjudication. Granted, no supreme court is beyond reproach, and ‘fact issues’ also arise in respect of other supreme courts in common law countries.Footnote ¹⁹ Moreover, the HCJ deserves some forbearance as the problem results from the fact that historically the Israeli Supreme Court was considered simply to be an appellate court.Footnote ²⁰ Its original jurisdiction of receiving direct applications against the administration, inherited from the British Mandate, was relatively limited. However, it should also be noted that the great constitutional decisions of the HCJ in the period of the founding of the State of Israel were based on cross-examination and the presentation of evidence.Footnote ²¹ This practice was later abandoned for reasons of efficiency – on the ground that the right to cross-examine was being abused by litigants and squandered scarce judicial resources – and in order to reduce the Supreme Court's workload.Footnote ²²

So, let us suppose that one is swayed by my presentation that the HCJ has a fact-finding ‘problem’. Why should we conclude that this problem creates a political bias? Why is it not just another case where the search for truth is traded against, or outweighed by considerations of efficiency? Why not assume that the burdens resulting from this deficiency are evenly distributed between the legal players? I wish to suggest two explanations.

(1) HCJ fact-finding discretion and political bias

Since the arrival of legal realism, it has been generally understood that trial courts possess wide discretion in ascertaining the facts of the case (including the liberty to choose to believe one witness rather than another), which may lead to judicial bias.Footnote ²³ In the HCJ, even if we assume that there is competitive briefing supported by affidavits, disputed facts are adjudicated solely by judicial impression, as there is no cross examination or discovery. Thus, the justices are given an amazingly wide discretion, even more than that of ordinary trial court judges. However, the discretion of the HCJ in handling facts does not end here: by law and by practice, the HCJ still retains discretion to enable fact-finding procedures when it deems such procedures to be ‘justified’.Footnote ²⁴ Moreover, if that is not enough discretion, the HCJ has developed new activist grounds of review, such as reasonableness and proportionality, in order to bypass factual difficulties (such as where the factual showing of bad faith or extraneous considerations is not required).Footnote ²⁵ Thus, the HCJ has an almost boundless discretion in finding the facts, far more than that of an ordinary trial court, which is bound by rules and procedures and is supervised by an appellate court. While I do not suggest that the HCJ justices decide factual questions in an entirely political or partisan fashion, few people would deny that the exercise of judicial discretion in these circumstances does not involve the justices’ ideology.Footnote ²⁶ Out of the 15 justices of the HCJ, only four are considered to be moderate conservative and eleven are progressive,Footnote ²⁷ who also usually control the senior and extended panels. Under these conditions the discretion of the HCJ in fact finding has a clear ideological leaning to the left.

(2) The HCJ Department and political bias

The High Court of Justice Department (HCJD) at the office of the Attorney General is responsible for representing state authorities in proceedings filed in the fields of administrative and constitutional law. In this respect, the HCJD views its role as providing the Court with full and reliable facts that facilitate expedient disposal of the case. In doing so, the HCJD diverts from the adversarial model of public law adjudication and adopts a public interest model.Footnote ²⁸ Typically, the current role of the HCJD is justified by the assertion that the objective of judicial review and Supreme Court litigation is not merely to decide the concrete controversy between the parties but to ascertain the legality of the governmental action and to prevent abuses of official power. With regard to fact finding, the claim is that the adversarial model assumes some parity between the opposing parties, while in reality the government enjoys significant advantages over the petitioner with regard to access to information and a procedural advantage in the form of the presumption of regularity.Footnote ²⁹

The problem with these contentions is that they are contingent upon questionable factual claims. While it is usually true that the government enjoys significant advantages over private petitioners, it is not true with regard to public petitioners, who have extensive financial and legal resources. Moreover, some scholars have suggested that the mutual cooperation between the Supreme Court and the HCJD has mutually enhanced the legal and political powers of both institutions and the emergence of a ‘symbiotic’ relationship, which has led to the appointment of great numbers of public prosecutors to the courts.Footnote ³⁰ This, in turn, has reinforced the personal and ideological agreement between the key figures in the two institutions. If this account has some truth in it, then the HCJ and the HCJD should be viewed as a public interest group and their in-house fact-finding processes as politically suspect in a sense.

To conclude, political neutrality is questioned when short cuts in fact finding are taken. The obvious solution is to install lower court fact-finding procedures. However, the government's reform plan does not address this structural problem directly.

3. Panel composition

The HCJ normally sits in panels of three justices, with the Chief Justice, Deputy Chief Justice or the senior Justice presiding.Footnote ³¹ The Chief Justice may extend the panel to an uneven number of justices before the beginning of the proceedings in a particular case. Panel composition is not random; rather, it is determined by the Chief Justice via the Court Registrar.Footnote ³² Usually, the panel is controlled according to seniority and availability, but the Chief Justice holds the discretion to determine panel composition or require the petition to be heard by a panel of the three most senior justices.Footnote ³³

These arrangements are a remnant of British Mandatory rule in Mandatory Palestine. The Supreme Court of British Mandatory Palestine was the highest court in the local area, but its decisions could be appealed against before the Privy Council.Footnote ³⁴ Moreover, special powers given to the Chief Justice were intended to provide the British Mandate with control over the HCJ, but also reflected the view that British judges were learned, experienced, unbiased and incorruptible, with some grain of disdain towards the local law and population.Footnote ³⁵ In 1957, the Knesset empowered the Chief Justice to give further hearing to any matter decided by a panel of three justices.

Over the years, jurists have noted that these historical arrangements are unfitting for a court of last resort, charged with the role of establishing precedents.Footnote ³⁶ Another notable critique is that it is open to both intentional and unintentional abuse and manipulation. Above all, the arrangement impairs the Court's two basic functions: (i) to resolve disputes evenly and justly, because it raises the possibility that the outcome of the case was predetermined by the composition of the panel and that different compositions yield different results; (ii) to clarify and unify the law by establishing a consistent, unified and clear body of precedents. Establishing and adhering to precedents is part of the professional culture that enables the Court to develop the law incrementally. However, a court that sits in hundreds of panel combinations subverts the functions of uniformity and clarification.

I wish to state two additional problems raised by the current practices of panel composition. The first is that the arrangement is an affront to judicial independence in that justices may feel obligated to curry favour with the Chief Justice who assigned them to the case. The second is that they intensify the democratic deficit of the HCJ by adding another counter-majoritarian layer to the operation of the Court – namely, the Chief Justice.

In the formative years of the Court, it was never considered to have the Court sitting en banc (as in the United States): at that time, the expected workload made the rendered division of labour advisable.Footnote ³⁷ In recent years, however, accusations of tampering by the Chief Justice in panel composition have become very common.Footnote ³⁸ In the past, Chief Justices used their authority mainly to decide the composition of panels in blockbuster cases and those with high political profiles. Today, the authority of the Chief justice is used inconsistently and without a full explanation, leaving court watchers speculating, for example, why a case was assigned to an extended panel of nine justices and not eleven, or why it was assigned to the most senior panel and not to a more ‘regular’ panel or to an extended panel. Moreover, a journalist who was covering the Court reported that certain justices have been removed from panels that handled certain issues following their taking a ‘lone wolf’ approach to these issues.Footnote ³⁹

I am not arguing that every panel composition is problematic. My claim is that our current panel system, which gives the Chief Justice the sole and final authority in selecting who among the Court's members is to sit on which case, and without being forced to explain, is problematic. An example can be seen again in HCJ 2412/23 The Movement for Quality Government in Israel v The Knesset. The case was assigned to the Court's three most senior justices: Chief Justice Esther Hayut and Justices Uzi Vogelman and Yitzhak Amit. All the justices are classified by court watchers as part of the ‘liberal camp’. On the day following the oral argument, the Court issued a temporary injunction ordering the respondents to give reasons as to why implementation of the amendment should not be stayed. The justices also extended the bench to 11 justices;Footnote ⁴⁰ there was no real explanation as to why this change was made. Why wasn't the case assigned to the 11-justices panel in the first place? Why wasn't the panel extended to a full en banc of 15 justices?Footnote ⁴¹ We can only speculate because Chief Justice Hayut did not provide an explanation for her decision to extend the panel.

The government proposal to mandate en banc deliberation of all sitting justices in cases involving judicial review of primary legislation tries to confront this problem. However, I believe that the proposal should not be limited to judicial review of legislation but rather extend to all complex, difficult or important cases when the Court believes there is a particularly significant issue at stake. Moreover, panel composition should be chosen randomly and without consideration of seniority or judicial ideology, in order to prevent tampering and to ensure the integrity of the administration of justice.Footnote ⁴² I suggest also that a losing party can request a rehearing en banc if the majority of the justices agree to rehear the case.

For my last comment on panel composition and precedents, until recently, the doctrine of stare decisis was almost non-existent in Israeli constitutional law. Indeed, as a matter of law the Supreme Court is not bound by its past decisions,Footnote ⁴³ but it was often declared that precedents bind the Court as a matter of judicial policy.Footnote ⁴⁴ The ‘justiciability revolution’ of the 1980s and the constitutional revolution of the 1990s have annihilated this.Footnote ⁴⁵ The Supreme Court during that period, Professor Mautner writes, radically deviated from the first principle of its authority, which is the basis of its operation, that of being bound by the precedents of the past, and created a sharp break in its professional culture, which requires respect for its precedents and which allows only incremental changes in the law.Footnote ⁴⁶ Take, for example, the decision in the United Mizrahi Bank v Migdal Communal Village case,Footnote ⁴⁷ which established judicial review over primary legislation. The decision was handed down by an extended panel of nine justices, and is considered by former Chief Justice Aharon Barak to be the leading precedent of the constitutional revolution.Footnote ⁴⁸ However, Moshe Landau, a retired Chief Justice of the Supreme Court at the time the decision was handed down, called the Migdal decision an ‘academic seminar’, arguing that in the light of the Supreme Court's final ruling, the fundamental questions that were raised, discussed and determined should have been left for further consideration.Footnote ⁴⁹ A similar opinion was voiced by retired Justice Haim Cohen.Footnote ⁵⁰ It was also argued not only that the Migdal decision stealthily overturned earlier constitutional decisions but also that its reasoning was fractured. Let me be clear, I do not argue that the Migdal decision should be overturned; I argue that there are no serious rules governing the regulation of precedents in Israeli constitutional law.

There are signs that the doctrine is being revived when some HCJ justices (and especially from the liberal activist wing) cite stare decisis as part of their legal reasoning. For example, Justice Vogelman has stated in a number of recent oral arguments that the Court is authorised to review Basic Laws that ‘abuse the Knesset's constituent authority’. Vogelman insisted that this is ‘a matter of positive law’ and that ‘the Court is within well-known precedents, established by an expanded bench’.Footnote ⁵¹

The claim that precedents should be established by an extended bench (but of what size?) seems like sound judicial policy. However, the fact is that many of the precedents of the Barak Court were decided by a three-judge panel, and even those decided by extended panels did not include all sitting members of the Court. Moreover, Israeli constitutional law is missing landmark decisions, like Marks v United States,Footnote ⁵² to regulate what counts as binding precedent. One possible reason for the absence of clear rules regarding precedents and panel compositions seems clear. It is neither a precedents regime nor a non-precedents regime, but a regime of judicial discretion. Within such a regime, maintaining unchecked discretion in determining panel composition is of the utmost importance.Footnote ⁵³

4. Standing

Like other high courts of last resort, the HCJ has discretion over which cases it reviews.Footnote ⁵⁴ Over the years, the Court has developed rules and standards to guide its discretion; these include justiciability, clean hands, mootness, alternative remedy, delay. Among these minimal requirements that control the decision to grant a review was that of standing: petitioners to the HCJ had to assert their own legal rights and interests, as opposed to rights and interests shared by others or by the public in general, in order to be entitled to a hearing on the merits of the dispute.

However, at the start of the 1980s, the HCJ started to relax the requirement to the point of abandoning it: the petitioner to the HCJ need not show standing if the petition raises issues of constitutional importance.Footnote ⁵⁵ The justification offered for this change was that the HCJ is responsible for the protection of the rule of law and democracy. Scholars have criticised the annulment of the standing requirement. In the legal academic arena, Menachem Mautner surveyed the HCJ case law (from 1979 to 2005) and identified an increase over the years in the filing of applications by Knesset members that lacked ‘private’ standing. Because of media coverage and since, for various reasons, those politicians were mainly from the left, Mautner explained, the Israeli public had learned to identify the HCJ as an adjunct of the leftist Meretz political party.Footnote ⁵⁶

During the past decade the opposite trend could be identified in the Court's approach to standing, although it was not that conspicuous or settled, reflecting a wariness of citizen-initiated lawsuits in which the plaintiff alleged no personal injury beyond concern that the government had acted unlawfully.Footnote ⁵⁷ Justices, mostly from the ‘conservative camp’ of the HCJ, increasingly but sporadically apply an intermediate approach, qualifying the permissive approach by a list of limiting exceptions and other judicial means. Unfortunately, this reverse trend does not resolve the issue; it exacerbates the problem because the standing doctrine has once again become an ideological battleground between liberal and conservative justices about the role of the HCJ. This is especially so because the Court retains substantial discretion over whether to employ standing or not. In other words, the intermediate approach transforms the standing doctrine from a tool to constrain the Court's discretionary screening authority into a tool to expand it.

5. Selection and appointment of justices

Originally, the justices of the Supreme Court were nominated by the Minister of Justice and confirmed by the provisional government.Footnote ⁵⁸ Out of concern that appointment by the executive alone was undesirable as it might breach democratic separation of powers, and based on the understanding that justices should be chosen based primarily on professional merits, the following committee was established in the Judges Law of 1953: the Minister of Justice (presiding) and one other cabinet minister; two Knesset members; two members of the Bar to be nominated by the Bar Council; and the Chief Justice and two justices of the Supreme Court, the justices to be elected biannually by the full bench.Footnote ⁵⁹

The mechanism for electing judges is an integral part of a system of constitutional checks and balances.Footnote ⁶⁰ In this system the HCJ is given the power (a significant part of which it has appropriated to itself since the 1980s)Footnote ⁶¹ to balance and restrain the executive and legislative branches. The shift in the powers of the HCJ is often presented as part of a transition from a British to an American constitutional model, with the HCJ having the power to declare Knesset legislation unconstitutional.Footnote ⁶² However, there has been almost no change in the mechanism for electing judges since 1953, despite the considerable changes in the power of the Supreme Court.

The Saar amendment was designed to weaken the power of the justices on the committee and consequently to increase diversity among the members of the Supreme Court.Footnote ⁶³ However, the amendment gave the justices a veto power to thwart the appointment of conservative nominees who might imperil the liberal super-majority. Supreme Court justices, unlike ministers and Knesset members, vote as a block, but they are also what Marc Galanter calls ‘repeated players’,Footnote ⁶⁴ planning their steps well ahead of time, and even threaten to shut down the committee's work for years, in order not to endanger the liberal-progressive majority in the HCJ.Footnote ⁶⁵ Thus, a significant part of the HCJ overreach is related to the fact that, after blatant and perhaps even wild activism, the justices who sit on the committee for selecting judges managed to prevent the appointment of distinctly conservative judges.Footnote ⁶⁶

The veto power given to the justices is not similar to the veto power given to politicians or others. The justices determine who will join them, or rather who will not join them, and this is a classic problem of entrenchment. Right-wing politicians and voters fear that the progressive majority in the HCJ is permanently entrenched in the light of the strategic behaviour of the justices in the committee. The ability of the justices to use their veto power effectively is connected to another ‘feature’ of the committee's proceedings: secrecy. Historically, all candidatures and proceedings were to be kept secret, fearing undue influence over the committee's decision making. In recent decades it was decided that nominations decided by the committee will be officially published in time, so as to enable objectors to move the committee to review the nomination. However, the committee's hearings, interviews and deliberations on specific nominations to the HCJ remain secret, which increases the democratic deficit of the committee, and prevents public scrutiny of nominees and the actions of the members of the committee.

With regard to transparency, an interesting comparison can be made with the selection of justices to the US Supreme Court: justices are nominated by the US President on the advice and with the consent of the Senate. In the American Senate, for more than the first hundred years, the approval of and consent to the selection of judges, as stipulated in the Constitution, were held in confidential procedures.Footnote ⁶⁷ The decision to open the confirmation hearings in the Senate to the public was made on the appointment of Brandeis in order to reveal the anti-Semitic motivations of the senators who opposed his appointment. In short, a public hearing guarantees transparency and democratic accountability of both the judges and the committee members. Sunlight, according to Brandeis, is the best disinfectant. The independence of the judiciary is important, but this does not mean that, when they are up for election or promotion, they are exempt from having to account to the public for decisions they made during their career, as judges are not above the law.