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Judicial Independence: The Threat from Within

Published online by Cambridge University Press:  04 July 2014

Michal Agmon-Gonnen
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Abstract

In a democratic country an independent justice system plays a major role in protecting human rights and the rule of law. However, an independent judicial system is at risk from a number of factors that derive from outside the sytsem as well as from within. The external dangers facing judicial independence are often discussed; whereas the internal perils that weaken the system as well as judicial independence, are far less known. This article will focus on the danger from within and will discuss the judicial administration's influence on human rights, specifically the right to due process under the law.

Type
Research Article
Information
Israel Law Review , Volume 38 , Issue 3 , Fall 2005 , pp. 120 - 153
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2005

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Footnotes

*

Judge, Jerusalem Magistrate Court; visiting lecturer in the Faculty of Law at the Hebrew University of Jerusalem; and visiting lecturer in the Law School, The College of Management, Academic Studies.

I would like to thank the Hon. Deputy of the President of the Supreme Court (Ret.) Judge S. Levine, for his assistance in locating sources relating to the International Association of Judges and for encouraging me to write this article. I also would like to thank Prof. S. Shetreet for his useful remarks and finally—to Dee B. Ankonina for her outstanding editing.

References

1 See Alexander Hamilton, The Federalist No. 78, 402, as quoted in Tacha, Deanell Reece, “Independence of the Judiciary for the Third Century” (1995) 46 (2) Mercer L. Rev. 645, at n. 1Google Scholar. See also Justice A. Barak in H.C.J. 732/84 MK Yair Tzaban v. Minister of Religions 40 (4) P.D. 141, at 147-148; President Shamgar in H.C.J. 5364/94 Attorney Volner v. “Hamarach” Labor Party 49(1) P.D. 758, at 789-790; Segal, Ze'ev, Israeli Democracy: Constitutional Principles of Israel's Courts (Tel Aviv, The Ministry of Security, 1988) 65 Google Scholar [in Hebrew]; Barak, Aharon, “The Rule of Law and the Precedence of the Constitution” (1999) 5 Law and Government 375 Google Scholar [in Hebrew]; Barak-Erez, Daphna, “The Democratic Challenge of the Administrative Law” (2000) 24 Iyunei Mishpat 369 at 402 Google Scholar [in Hebrew]; and also Shetreet, Shimon, “Judicial Independence and Accountability in Israel” (1984) 33 International & Comparative Law Quarterly 979, at 990 CrossRefGoogle Scholar.

2 It is impossible, within the scope of this article, to elaborate on the importance of the principle of the separation of powers (government branches) and its implementation in Israel. However, this principle is recognized as basic in western democracies, and as the basis of the rule of law and the freedoms of the individual. On separation of powers, see, among others: Klein, Claude, “On the Legal Definition of Parliamentary Regime and the Israeli Parliamentarianism” (1974) 5 Mishpatim 308 Google Scholar [in Hebrew]; Vitkon, Alfred, “Separation of Branches” in Vitkon, Alfred, ed. Law and Judging (Jerusalem, Shoken, 1988) 132 Google Scholar [in Hebrew]; Shetreet, Shimon, “Forty Years to Constitutional Law—Developments of Constitutional Law—Selected Issues” (1990) 19 Mishpatim 573 Google Scholar [in Hebrew]; Gavizon, Ruth, “Forty Years to Constitutional Law (Comments to the Lecture of Prof. Shetreet)” (1990) 19 Mishpatim 617 Google Scholar [in Hebrew]. See also Kaufman, Irving R., “Chilling Judicial Independence” (1979) 88 Yale L. J. 681 CrossRefGoogle Scholar.

3 Barak, Aharon, Interpretation of the Law, (Jerusalem, Nevo, 1994) vol. 3, 432 Google Scholar [in Hebrew]. Barak, Aharon “The Dignity of a Person as a Constitutional Right” (1994) 41 Hapraklit 271, at 280 Google Scholar [in Hebrew]; Levin, Shlomo, The Law of Civil Procedures, Introduction and Basic Principles (Jerusalem, The Israeli Society for Professional Training, 1999) 61 Google Scholar [in Hebrew]; Levin, Shlomo, “Basic Law: Human Dignity and Liberty and the Civil Procedures” (1995) 42 Hapraklit 451 Google Scholar [in Hebrew]. Some see the right of access to courts as part of the right to property (so was held in the US Supreme Court in the case of Logan v. Zimmerman Brush Co., 455 U.S. (1982) 422,428-433). Others see it as part of the dignity of a person; for example, Levin, “Basic Law: Human Dignity and Liberty” ibid., at 454. For several writers who hold this opinion, see also H.C.J. 733/95 Arpel Aluminum Ltd. V. Kalil Industries Ltd. 51(3) P.D. 577, at 631-632 and Rabin, Yoram, “The Right of Access to Courts as a Constitutional Right” (Tel Aviv, Bursy, 1998) 142 Google Scholar and Rabin, Yoram, “The Right of Access to Courts: From a Regular Right to a Constitutional Right” (2000) 5 Hamishpat 217 Google Scholar [in Hebrew].

4 Article 39 of the Magna Carta allows the king to determine that no free and independent man would be: “imprisoned or deprived of his freehold or his liberties… except by legal judgement of his peers and by the law of the land.” See Holt, James C., Magna Carta (Cambridge, Cambridge University Press, 1965)Google Scholar and Alfredsson, Gudmundur and Eide, Asbjorn, eds. The Universal Declaration of Human Rights: A Common Standard of Achievement (The Hague: Nijhoff, 1999) at 209–210 Google Scholar.

5 So is declared by the Universal Declaration of Human Rights, Article 10: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” A similar definition appears in Section 6(I) of the European Convention on Human Rights and Fundamental Freedoms. Also see Section 7(b) of the American Constitution; Section 11(D) of the first chapter of the Canadian Charter of Human Rights; Article 14 of the International Covenant on Civil and Political Rights; and Article 8 of the American Convention on Human Rights.

6 See the discussion in Levin, “Basic Law: Human Dignity and Liberty and the Civil Procedures,” supra n. 3, at 455 and in Rabin, supra n. 3, at 84 that outlines the European court judgments given following the convention. The court also included in this right the right to legal aid in complex cases and the right to receive an advanced notice of the right to appeal an administrative decree.

7 The US Supreme Court established the principle of actual independence in 1871: Bradley v. Fisher, 80 U.S. 335, 349 (1871). The court held there that the judge's obligations to dispense justice fairly, not to pervert the law, and to be subject only to the authority of the law were intended not for the benefit of the judges but for the benefit of the citizens.

8 On this distinction see Shetreet, supra n. 2, at 575.

9 In this matter, I agree with Prof. Shimon Shetreet, who thinks that the principle of judicial independence should be part of the undefined rights that can be derived from Basic Law: Human Dignity and Liberty. See Shetreet, Shimon, On Adjudiction: Justice On Trial (Tel Aviv, Yediot Ahronot and the Jerusalem Institute for Research of Israel, 2004) 534–536 Google Scholar [in Hebrew].

10 Articles that concentrate on independence from within include, among others: Cheshin, David, “Judicial Independence and Institutional Intervention in its Procedures or Outcomes” (1998) 9 Israel Defence Forces Law Review 29, at 35–37 Google Scholar [in Hebrew] and also Zagel, James and Winkler, Adam, “The Independence of Judges” (1995) 46 Mercer L. Rev. 795 Google Scholar.

11 See Shetreet, Shimon, “The Responsibility of Court Administration” (1983) 13 Mishpatim 516 Google Scholar [in Hebrew].

12 In Shetreet, Shimon, “Basic Principles of the Reform: Thoughts of the Judicial System Image in the Future Based on the Study of the Present Problems” (1999) 8 Mechkarei Mishpat 59 Google Scholar [in Hebrew]. The author indicates that too much efficiency might hurt the judges' independence: “Means to achieve efficiency in dispute decisions affect the quality of the judicial process and might also cause inappropriate intervention and violation of the judges' independence.”

13 Former judge Avigdor Mishali said on the day of his secession from the District Court: “The amount of files is insufferable… Many times you can't dedicate the time that you should, and you —not willingly—do things that normally you wouldn't, if you considered the case more calmly…” in Shetreet, supra n. 9, at 192.

14 Ronen, Moshe, “The Surgery Succeeded, Did Justice Die?” Yediot Ahronot, 15 November 2001 Google Scholar [in Hebrew]. Ronen's article described the war that the Courts Administrator declared on red tape. The article quoted statistical data from the year 2001 showing that 1,200,000 files were opened in the court system, with 460 judges available to hear them. Namely, each judge was supposed to hear about 2,600 cases a year, comprising the heaviest caseload in the western world. The article expressed the concern that a war on red tape, impelled by the objective overload, would impair justice.

15 Judge A. Vitkon's discussion of the problem of red tape in his book indicated that this problem already existed in the Mishnaic period, supra n. 2, at 108. See also Goldman, Shachar, ed. The Proposed Reform in the Court System (Jerusalem, The Israel Democracy Institute, 1999) paper no. 5, at 25 Google Scholar, written following the report of the Or Committee—headed by the Supreme Court justice, Theodore Or. This public committee examined the structure of the general courts in Israel, the caseloads and the delays as a precursor to a proposed reform.

16 British politician (1809 - 1898).

17 As rightly stated by Judge Moshe Telgam, expressions like “dragging” or “lagging” contain an element of guilt. However, judges in Israel today are collapsing under the weight of the huge caseload and are working day and night. In this situation, one cannot speak of dragging or lagging but rather of postponing hearings due to the heavy load levied on the whole system; Telgam, Moshe “The Guide to the Perplexed in the Issue of the Reform of the Courts' Structure” (1990) 8 Mehkarei Mishpat 9, at 21 Google Scholar [in Hebrew]. See also Shetreet, Shimon, “The Administration of Justice: Practical Problems, Value Conflicts and Changing Concepts” (1979) 13 U.B.C.L. Rev. 52, at 55 Google Scholar.

18 Isaiah 16:5. For exegesis of this verse and Midrashim on the subject see Bazak, Itschak, “Law and Justice: The Biblical Solution to a Conflict Between Law and Justice” in Elon, Menachem, Ben-Ze'ev, Moshe, Barak, Aharon, Lifshitz, Naftali, and Landau, Moshe, eds. Sefer Yitzchak Cohen (Tel Aviv, Papirus, 1989) 223, at 226 Google Scholar [in Hebrew]. See also Shetreet, ibid., at 54 where he reviewed many of the literary sources throughout history that described dragging in the courts, beginning with the Roman period and including Shakespeare's Hamlet. Thus, certain delays appear inherent to the legal process.

19 In his book, Prof. Shetreet analyzes the courts' statistics (supra n 9, at 124-127).

20 The data mentioned were published in the Annual Reports of the Central Bureau of Statistics availabe at: www.cbs.gov.il (last checked November 2005).

21 From 5000 lawyers in 1970 to 20,000 in 1998. Available at: http://www.israelbar.org.il (last checked November 2005)

22 Ibid.

23 From 56 judges in 1970 up to 100 judges in 1998, ibid.

24 From 100 judges in 1970 to 286 judges in 1998, ibid.

25 From 250,000 to 834,000, ibid.

26 In their article (and book), Philip M. Langbroek and Marco Fabri refer to the tensions between efficiency and justice and between efficiency and judicial independence; they describe the need to administrate and control the judicial system based on data. Langbroek, Philip M. and Fabri, Marco, “Developing a Public Administration Perspective on Judicial System in Europe” in Fabri, Marco and Langbroek, Philip M., eds. The Challenge of Change for Judicial Systems (Amsterdam, IOS Press, 2000) 1 Google Scholar.

27 Shetreet, Shimon, “Ideological and Practical Problems in the Administration of the Judicial System” in Shetreet, Shimon, ed. Collection of Lectures on Study Days for Judges (Jerusalem, The Sacher Institute, 1977) 80, at 84 Google Scholar [in Hebrew].

28 H.C.J. 125/74 Mirom International Commerce Co. Ltd. v. the State of Israel 30(1) P.D. 58. In this complex file, judgment was given only after 2 years and 8 months. In their judgment, the judges indicated that the judge erred when he proceeded to hear and issue judgments in other cases before he concluded this file.

29 See Shetreet, Shimon, “The Limits of Expeditious Justice” in JusticeHolland, R., ed. Expeditious Justice (Canada, the Canadian Institute for the Administration of Justices, 1979) 1, at 15 Google Scholar.

30 As stated by Ze'ev Tzeltner: “The work [of the judge] is individualistic, variegated and creative, while every process of efficiency aims to bring grayish standardization and uniformity of mass production.” See Tzeltner, Ze'ev, “Efficiency in the Courts” (1966) 23 Hapraklit 189 Google Scholar [in Hebrew]. The U.S. Supreme Court held that even if an efficient process contributes to the progress of procedures, it should not be carried out if it contradicts the Constitution. Separation of powers and judicial independence are too important to be sacrificed on the efficiency altar: INS v. Chadha, 462 U.S. 919, 944 (1983).

31 Wallace, Clifford, “Judicial Administration in a System of Independents: A Tribe with Only Chiefs” (1978)(1) BYU L. Rev. 39 Google Scholar.

32 On the need and the problems of establishing quantitative criteria in the judicial system, see Shetreet, supra n. 30, at 4. In a different article, Prof. Shetreet points out the problems of statistical data for this purpose, saying: “Statistical data are useful, but we should be careful of their weaknesses. Statistics may be incomplete, misinterpreted, and manipulated… what they reveal is interesting but what they conceal is vital.” Shetreet, supra n. 17, at 60 and 64.

33 An experiment to test the productivity of judges was conducted in the Department of Economics at the Hebrew University. See Beenstock, Michael and Haitovsky, Yoel, “Does the Appointment of Judges Increase the Output of the Judiciary?” lnt'l Rev. L. & Econ. (2004) 24 359 Google Scholar. See also Beenstock, Michael, “The Productivity of Judges in the Courts of Israel” (2001) 35 Is.L.R. 249 CrossRefGoogle Scholar.

34 On the characteristics and criteria of efficiency proceedings and system management, see Eden, Yoram, and Ronen, Boaz, It Cost Me More: Accepting Administrative Decisions, Cost And Companies Improvements (Herzalyia, Hod-Ami, 2nd ed., 2003)Google Scholar [in Hebrew]; Goldratt, Eliyahu M., & Cox, Jeff, The Goal (Israel, 16th ed., 2001)Google Scholar.

35 This claim was raised explicitly by the petitioners in H.C.J. 8850/02 Festinger v. the Minister of Justice 58 (2) P.D. 696 regarding the implementation of a second (afternoon) shift in the courts. One of the reasons for rejection of the petition was that in the interim between submission of the petition and writing of the judgment and during the process of trying to bridge, compromise, and reach an agreeable solution, data accumulated that pointed to increasing efficiency. According to one of the experts in the area, when no serious and scientific database exists on a given situation, efficiency attempts remain futile, See Wim B.H.J. van de Donk, “The Transparent Judge: Will Lady Justice Lose Her Blindfold?” in Fabri & Langbroek, supra n. 27, 237, at 242. For more on the necessity of a database for reforms, see Shetreet, supra n. 30, at 45.

36 On the problems of data on the one hand and the need for statistics as the basis for appropriate judicial administration on the other hand, see Tzeltner, supra n. 31, at 195.

37 See the Report of the Or Committee, “The Structure of the General Courts in Israel” (Jerusalem, the Government of Israel, 1997) 14 Google Scholar.

38 Court Procedures (Department of Case Distribution) 2002, signed by the Minister of Justice on 31.7.02.

39 On additional reforms and on the problems of splitting a trial between judges, see Shetreet, supra n. 30, at 32; ( Shetreet, Shimon, “The Limits of Expeditious Justice” in JusticeHolland, R., ed. Expeditious Justice (Canada, the Canadian Institute for the Administration of Justice, 1979) 1, at 15 Google Scholar.

40 On the trend in Israel in the 1970s, see Shetreet, supra n. 28, at 86.

41 On the reforms of British civil law, see Final Report by Lord Woolf to the Lord Chancellor on the Civil Justice System, (London, HMSO, 1996)Google Scholar. On the analysis of the report and its proposals see Charles Blake, “Modernizing Civil Justice in England and Wales” in Fabri and Langbroek, supra n. 27, at 37. On analysis of these examples and many more see Shetreet, supra n. 17, at 69.

42 On the proposals to reform substantive criminal law in England and the legal procedures to promote efficiency see Barry Loveday, “Address to the EGPA Conference: Delivering Justice in the 21st Century— Cape Sounion, Greece” in Fabri and Langbroek, supra n. 27, at 23. On the proposals for reform and on criminal law legislation to increase efficiency, see Orrick, David, “Court Administration in the United States” in Mays, G. L. and Gregware, P. R., eds. Courts & Justice (Illinois, Waveland Press, 2000) 207, at 215 Google Scholar. Also see: Bazelon, David L., “New Gods for Old: ‘Efficient’ Courts in a Democratic Society” (1971) 46 N. Y. U. L 653 Google Scholar where the writer indicated that the proposed reforms speak of limiting the right to appeal in criminal procedures by sorting the appeals via one judging judge who determines which ones are appropriate for hearing. The writer mentions, cynically, that if “god forbid” the court is compelled to hear an appeal, according to the proposal, it will occur in written summations (ibid., at 661).

43 Stanley v. Illinois, 405 U.S. 645, 656 (1972).

44 Shetreet, supra n. 17, at 79.

45 Bazelon, supra n. 43, at 653.

46 H.C.J. 189/96 Sasson v. Kedma 20(3) P.D. 477, 480. An appeal on the decision of a judge who did not allow the plaintiff to bring additional witness before the start of the defense's evidence. The judge indicated that his decision was based on reasons of efficiency. (My emphasis – M.A.G.).

47 Several rules aim to protect the public trust, like open court hearings (important today in allowing the media to report on the procedures), judgment reasoning, instructions concerning a judge's disqualification, the existence of an appeal instance, and more. Prof. Shetreet thinks that a fair and just process is more important for public trust than is efficiency, when both can't be reached. See Shetreet, supra n. 17, at 64.

48 H.C.J. 732/84 MK Yair Tzaban v. Minister of Religions 40(4) P.D. 141, at 147-148. See more of his opinion on the subject of public trust: Barak, Aharon, “The Supreme Court and the Public Trust” in Cohen, Haim and Zamir, Yitschak, eds. Aharon Barak Selected Papers (Jerusalem, Nevo, 2000) 965, at 970 Google Scholar; also Barak, Aharon, Judiciary Discretion (Tel Aviv, Papirus, 1994) 261 Google Scholar.

49 Cohen, Haim. H., “Second Thoughts on Public Trust” (2002) 14 Hamishpat 9, at 20 Google Scholar [in Hebrew].

50 Judge R. Strauss of the Jerusalem Magistrate Court said in an interview that in his opinion the expeditious law procedures and the system's pressure to increase efficiency put the judge into time limits and then: “The moment you put the court into time stocks [limits] it is only natural that you might jeopardize the process of doing justice.” See “An Interview with Judge Rafi Strauss” (2001) Halishkah, A1, at 20 Google Scholar.

51 C.A. 8727/01 Deal v. The State of Israel (not yet published). Judgments of Justices D. Dorner, D. Beinisch, and A. Gronis from 23.5.02.

52 See Berkowitch, Eynat, “Who Pays the Price of Efficiency of Judge Ganot?” Globes Newspaper, 19-20 May 2004 Google Scholar. The article says that the judge is considered particularly efficient.

53 For details of these studies, see Renning, C., “Subjective Procedural Justice and Civil Procedure,” in Roehl, Klaus F. and Machura, Stephan, eds. Procedural Justice (Dartmouth, Ashgate Publishing, 1997) 10 Google Scholar. Renning indicates that the legal procedures established in Germany in the 1990's intended to increase efficiency and reduce the load levied on the courts in civil matters. The objective was to increase efficiency in order to increase public trust in the system. Studies show (ibid., 219) that when the parties feel pressure either to settle or to conclude the deliberation because of the judge's caseload, they see the process as unfair and thus, even if the process eventually takes place, they tend to see the outcome as unjust. Most importantly, to my mind, the article adds a finding (ibid., 220) that appeared in numerous studies whereby parties who are heard at the first stages of the hearing perceive the process to be more just and appropriate. The study reported that the mere fact that the parties' arguments were heard increases the public trust in the process, even if what was said had no impact on the outcome.

54 On the problems of administrating hearings in traffic courts in the form of a quasi “moving belt,” see Donevitz, Natan, “Moving Belt and Rubber Stamp,” in Torture of Justice (Tel Aviv, Peleg, 1975) 146 Google Scholar. Regarding concerns about trials becoming uniformed and technical, see Yaakov, Tirkel “Thoughts of Humanism and the Image of the Lawyer” (1993) 41 Hapraklit 458, 460 Google Scholar [in Hebrew] and Shamgar, Meir, “Trends in the Law” (1996) 20 Iyunei Mishpat 5, at 13 Google Scholar [in Hebrew].

55 On the other side, some claim that public trust comprises an abstract term impacted more by the courts' aura and political affiliation than by their work or the functioning of the judicial system. See Cohen, supra n. 50, at 9. If this stance is correct, then steps to improve efficiency are unnecessary for reasons of the same public trust.

56 For more on this trend, see Malleson, Kate and Lord JusticeSedley, , The New Judiciary (Dartmouth, Ashgate Publishers, 1999) 200 Google Scholar.

57 For analysis of judges and the judicial system in this context, see Gavin R. Drewry, “Public Management Reform: A Challenge to Judicial Independence” in Fabri and Langbroek, supra n. 27, at 95. Drewry also discusses the impact of these reforms on judicial independence.

58 Barak, Aharon, “About the Judge” (2001) 6 Hamishpat 265, at 269 Google Scholar [in Hebrew]. Justice Barak said similar words in H.C.J. 732/84 Tzabanv. the Minister of Religions 40(4) P.D.141, at 148.

59 On the role of the judicial branch, see Shetreet, supra n. 1, at 979.

60 On this view of the judicial branch, see Shetreet, Shimon, “Judicial Responsibility” in Goldstein, Stephen, ed. Israeli Reports to the XIth Int'l Congress of Comparative Law (Jerusalem, the Sacher Institute for Legislative Research and Comparative Law, 1982) 88, at 89 Google Scholar.

61 Wells, William A.N., Law, Judges and Justice (Sydney, Butterworths, 1991) 73 Google Scholar. According to Wells everyone who leaves the courthouse should feel that the court showed justice in action.

62 Prof. Barak states in his article the importance of the judicial independence for human rights. “Separation of powers, in itself, constitutes an essential democratic value aiming not to protect efficiency but to protect freedom.” In order to establish this status of the judicial branch it is necessary to protect its independence, Barak, supra n. 59, at 267.

63 His speech on the first call in the Knesset on the Basic Law: The Courts. The Bill of the Basic Law: The Courts was adopted as Basic Law: The Judicature Divrey Hakneset 83 (1978), at 3216 Google Scholar adopted on 27.6.78.

64 The Minister of Justice added, ibid., “The subject of the bill before the house is one of the foundations of a democratic regime, thus, it is proposed to protect its provisions from applying emergency regulations. Formulation of the extant and new provisions of the basic law will assure the impressive continuation of the work of our court system for the glory of the State of Israel.” For more on this subject, see MK Shulamit Aloni's comments in the second and third calls on 28.2.84 (Divrey Hakneset, 98 - 99, at 1735). On the subject of independence, MK Aloni indicated (ibid., 1736): “This Law cannot be varied, suspended, or made subject to conditions by emergency regulations. Well, an emergency changes and limits many things, but as a country that desires and aspires, despite our disagreements, to be a right society, to protect the court's independence and to protect the authorities' independence, we want it to be impossible, by virtue of emergency regulations, to impinge on the judicial system and its independence, and it should not be subject to dictated conditions. We want to assure by this law that not the ministers, or the finance committee, or even the Knesset could upset the court system's independence in the name of emergency regulations.”

65 My translations of the Law, and my emphasis. Although judicial matters comprise only one domain in which the judge's independence may be violated, it doubtless constitutes the chief domain. On the types of independence, see Bermant, Gordon and Wheeler, Russell R., “Federal Judges and the Judicial Branch: Their Independence and Accountability” (1995) 46 Mercer L. Rev 835, at 836 Google Scholar.

66 For an overview of the administrative aspects in judicature work see Levin, Shlomo, “Judicial Administration and Its Goals: Present and Future” in Barak, Aharon, Zamir, Yitschak, and Cohen, Haim, eds. Sefer Zusman (Jerusalem, Daf Chen, 1984) 279, at 282 Google Scholar [in Hebrew].

67 Prof. Shetreet divided the judicature work into three parts—administrative, deliberational, and essential–but viewed them all as judicial matters; see “Basic Principles of the Reform: Thoughts of the Judicial System Image in the Future Based on the Study of the Present Problems” 1998 Mechkarei Mishpat 59, at 60 Google Scholar [in Hebrew]. For more, see the division of the judicial role into three somewhat different parts by Clifford Wallace, President of the 9th Circuit US Federal Appeals Court, who dealt considerably in judicial administration; supra n. 32. According to Wallace, one part of a judge's responsibility comprises administrative matters or “housekeeping:” administration of the protocol, selection of the judiciary and administrative assistant team, report on the phases of the procedures currently being heard. In his opinion, the court administration may interfere in these matters, but the other two parts should remain independent, with no interference from the executive authority or even from the judiciary authority. These independent responsibilities comprise the hearing—the manner of administrating and judging the hearing—and the judgment decision giving. Wallace also asserted that legal procedures (enacted in the US by the legislator, and each court can add internal rules) constitute an impingement on the judge's independence, although, for reasons of judicial tradition, no one criticizes them. Anyhow, because these procedures are enacted in legislation by the Congress, they are acceptable within the principle of separation of authorities. Levin, supra n. 67, at 279. Levin also indicated that part of the judge's judicial role is administrative, including decisions regarding the hearing, its division into sections, directives on oral or written summations, and so forth. Actually, these comprise judicial work. Likewise, see Keshet, Moshe, The Deliberation Rights and Legal Procedures in Civil Cases (Tel Aviv, The Bar Association, 2002) 2–7 Google Scholar [in Hebrew].

68 J. Convington, Autonomy v. Efficiency: The Continuing Debate on Judicial Supervision of Federal Trial Judges (July 23, 1973, unpublished paper presented to executive session of judges of the United Stated District Courts and Courts of Appeals of the Ninth Circuit). Appears in: J. Wallace, supra n. 32, at 39.

69 Judge Berenson in H.C.J. 79/63 Trudler v. Election Clerks of the Agriculture Committees 17 P.D. 2503, after bringing several definitions of judiciary, said that possibly it is not correct at all to define this term (ibid., 2514): “However, I think that Judge Parker hit the target when he said… that the ‘correct opinion, as we see it, is that the duty to act in a judicial manner might rise in entirely different circumstances, so that it is impossible and not desirable to try and define them succinctly.’ We cannot find a miracle formula that would fit all the circumstances and would meet all the needs.” Justice Vitkon, as well, saw these areas to be mixed. In H.C.J. 525/63 Shmuel v. the Attorney-General P.D. 18(3) 452, at 467, on dismissal of a disqualification motion, he stated: “The distinction between judicial actions and administrative ones is not standing on firm ground and the areas suck from each other and overlap each other. From a classification point of view there is not a categorical contrast between administrative action (when it is levied on ajudge) and judicial action.” Justice Barak considered this distinction when he discussed the authority of the investigating judge in H.C.J. 66/81 Inspector General of the Police of Israel v. Judge Bayzer P.D. 35 (4) 337, at 349-350: “This distinction between judicial authority and administrative authority is very difficult, and more than it is a compass to find a solution, it is an outcome of a resolved problem.

70 H.C.J. 73/55 Fein v. The Israel- British Bank Ltd. 9 (1) P.D. 574.

71 H.C.J. 239/55 Basem Perach v. The State Attorney General 9(2) P.D. 1042.

72 H.C.J. 583/87 Halperin v. the Hon. Deputy President of the Court 41(4) P.D. 683, at 703-704.

73 H.C.J. 414/71 Salton v. the State of Israel 27(2) P.D. 346, at 353-354.

74 I gave a decision on this matter with respect to the Expeditious Civil Procedures Rules, see C.A. 4050/01 Municipality of Jerusalem v. Hashem Machmad (unpublished) judgment given on 16.7.02. The judgment was voided on appeal, C.A. 3350/02 The State of Israel v. Municipality of Jerusalem and Hashem Machmad (also unpublished). Nevertheless, I should mention that the judgment was voided because of the fact that the question on that matter was not necessary to the case under discussion, and the district judges themselves expressed their concern whether the Expeditious Civil Procedures Rules might violate judicial discretion.

75 See supra n. 9, at 194-195.

76 Note that because legal procedures in criminal cases are established in primary legislation, the risk there is lower. Hence, it is my opinion that the civil legal procedures should be established in primary legislation as well.

77 Civil Procedures Rules Amendment No. 5, 5761-2001 and Civil Procedures Rules Department of Case Distribution, 2001).

78 It is not my intention to focus on the formal question of whether it is possible to cancel these rules and under what conditions, in light of the fact that most of the rules were established prior to the enactment of the Basic Law. My intention is to emphasize the essential issue, upholding that it is inappropriate for the Minister of Justice to establish legal procedures. Some say that establishing legal procedures in legislation also contradicts the Basic Law and the principle of independence. However, as a rule, under the principle of the separation of authorities, the tendency is to accept the power of the primary legislator to set regulations on this matter. The case before us does not pertain to the contradiction between the vesting law—the Court Law—and secondary legislation. The Court Law explicitly authorizes the Minister of Justice in Section 108 to establish the legal procedures in regulations. The contradiction lies between the regulations and the basic laws. In the Israeli legal system, the constitution chapters - basic laws - customarily have higher normative status. Perhaps in a place where old legislation—protected by basic laws—authorized establishing rules on a specific issue, in light of specific principles, such rules would be protected see Barak, supra n. 3, at 563. However, in our case, the authorization is too general. It is not possible, by virtue of this authorization, to establish legal procedures that contradict basic principles set in the basic laws.

79 See supra n. 9, at 192.

80 On the tremendous importance of reasoning a judgment to prevent arbitrariness and in order to increase public trust in the judicial system, see Fikis, Georgeious M., President of the Supreme Court of Cyprus, in a lecture: “Human Rights and the Doctrine of Separation of Authorities: Two Prominent Characteristics of the Cyprus Constitution” (2000) 5 Mishpat VeMimshal 417, at 423 Google Scholar [in Hebrew]. See also: Shetreet, supra n. 28, at 85 and Gavizon, Ruth, “The Court and the Obligation to Give Reasons” (1969) 2 Mishpatim 89 Google Scholar [in Hebrew]. Also, Fiss, Owen M., “The Forms of Justice” (1979) 93 (1) Harvard L. Rev. 1, at 15 Google Scholar stated that the obligation to give reasons strengthens the separation of authorities, because the legislative and executive authorities see that the judiciary authority does not intervene in matters outside its concern.

81 So was held by Judge Mintz in the Jerusalem Magistrate Court, C.A. 6419/02 Moria, Chevrah Lepituach Yerushalim Ltd. v. Attorney Hess (unpublished).

82 All the examples of the Courts Administrator issuing directives or instructions that might violate judicial independence, relates to the preveious Courts Administrator, former judge Dan Arbel.

83 The State Attorney's letter of 25.9.01 included analysis of the provisions of the law.

84 The decision of Judge Milanov C.A. 9878/01 Jerusalem Magistrate Court of 27.8.01 stated that: “Macash [The unit of investigating crimes committed by police personal] will act according to its authority, detain, investigate and arrest-and then will bring before a judge in 24 hours” and dismissed the petition.

85 In a letter, dated 4.10.00, Judge Dan Arbel, the Courts Administrator, wrote: “With all due respect, I consent with her approach which agrees with the wording and objective of the arrest law.”

86 A letter by Judge Y. Milanov dated 19.10.00.

87 Nevertheless, the Courts Administrator responded to Judge Milanov (on 25.10.00) that the letter does not contain a directive to the judges. This letter, as opposed to the first one, was not distributed to all the judges.

88 Letter from Judge Dan Arbel dated 24.12.01. The directive was cancelled only after an Arab lawyers' organization filed a petition to the High Court of Justice on 10.2.02. Also, the cancellation letter stated that “due to the budgetary hardship it is necessary to make sure to ask for translations only where the need for it is clear and there is no other way to conduct the trial.” In light of the judiciary decisions on this subject, this directive as well is inappropriate and violates the judge's independence.

89 Given at the time of the British Mandate in Israel.

90 See C.A. 82/87 Avitan v. Avitan (unpublished)

91 So in an article written by Judge C. Wallace, see supra n. 32.

92 See Wallace, supra n. 32, at 39.

93 Chandler v. Judicial Council of the 10th Circuit, 398 U.S. (1970) 74.

94 Ibid., at 137 of the judgment.

95 The Courts Law, 1984.

96 On the role of the president and the concern of violating the independence of an individual judge, see Wallace, supra n. 32, at 39.

97 Chandler v. Judicial Council of the 10th Circuit, supra n. 94.

98 Chandler v. Judicial Council of the 10th Circuit, supra n. 94.

99 On analysis of the judgment and discussion of the relation between judicial independence and administrative means, see Kaufman, supra n. 2, at 708.

100 Chandler v. Judicial Council of the 10th Circuit, supra n. 94, at 84 - 85.

101 Ibid., 129-143.

102 Ibid., at 138.

103 For details of the case, see Shimon Shetreet's background paper presented to the International Bar Association Project on “Minimum Standards of Judicial Independence” in Shetreet, Shimon, ed. Judicial Independence (Jerusalem, International Bar Association, 1982) 16 Google Scholar.

104 For further expansion, see Shetreet, Shimon, “Strengthening the Judiciary Branch and Limiting the Authorities of the Minister of Justice” (1975) 6 Mishpatim 174, at 183 Google Scholar [in Hebrew]. With respect to the use of “social pressure” on judges to attain goals, see Malleson and Sedley, supra n. 57, at 199.

105 See the decision of the International Association of Judges, Conclusions: “Administration of the Courts in the Context of the Independence of the Judge” (meeting in Vienna, 11-13 November 1981)Google Scholar.

106 International Association of Judges, Final Report: “The Independence of the Individual Judge Within His Own Organization,” (meeting in Recife, 17-21 September, 2000)Google Scholar.

107 On the need for administrative supervision and control of such matters, see Gavizon, supra n. 2, at 623.

108 In their book, Malleson and Sedley claim that in light of the importance of the independence principle, the judiciary must determine clearly in what matters and to what extent it is possible to take steps against an inefficient judge; supra n. 57, at 200.

109 Vitkon, supra n. 2.