Israel Courts: Judicial Activism or Judicial Abdication?

By: HaRav Menashe Sasson
Reporting from Jerusalem, Israel
​Published in the U.S.A.

​The “judicial power” of government consists not only of the raw power, but the obligation – the duty – to decide cases which are brought by and between adverse litigants.  The judicial power, like any governmental or other power, is capable of – some might even say prone to – being abused.
 
At one end of the spectrum which constitutes abuse of judicial power is “judicial activism,” which manifests when a court makes a ruling which is based on personal opinion, rather than on an impartial and reasoned examination of the law, vis-à-vis the facts of a particular case.
 
The Israel Supreme Court is often – and not without good cause – accused of “judicial activism.”
 
At the other end of the abuse of judicial power spectrum is the abdication of judicial responsibility, that is, the failure to perform the judicial duty of deciding a case which is properly before the court.
 
In a case which runs counter to the Israel Supreme Court’s reputation for judicial activism, an Israel trial court recently dismissed a case because it was unable to locate any judicial precedent upon which to base its decision.
 
Although the case presented a social issue which might attract public attention – on both sides of the political spectrum – the case has continuing importance for all Israelis, not for the legal issue it raised, but rather, for the method of decision which was employed by the Israeli trial court to dispose of the case.
 
The case started simply enough when two females (“Plaintiffs”) responded to an advertisement that had been posted by a landlord who was seeking to rent an apartment in Bat Yam, Israel (“Defendant”).  Plaintiffs met Defendant at the apartment and, during the course of showing the apartment to Plaintiffs, Defendant allegedly asked Plaintiffs whether they, Plaintiffs, were “roommates or sisters.” During the ensuing conversation, Defendant concluded that Plaintiffs are lesbians and, on that basis, refused to rent the apartment to them.
 
Plaintiffs, relying on a law which makes it illegal to discriminate when selling certain products and services, filed suit against Defendant.
 
The trial judge, noting that the Israel Supreme Court is divided on the issue of whether residential rental units fall within the scope of the law cited by Plaintiffs, dismissed Plaintiffs’ case.
 
The task of a trial court is to hear cases which are brought to it by proper litigants, to ascertain the facts, and to render a decision based on a reasoned and impartial application of the law to the facts.
 
Here, it was undisputed that Plaintiffs and Defendant were proper litigants.  Plaintiffs alleged Defendant discriminated against Plaintiffs in violation of a specific law.
 
Defendant did not claim that Defendant did not discriminate against Plaintiffs.  Rather, Defendant alleged that the law cited by Plaintiffs did not apply to the facts of the case.  Specifically, Defendant argued that the law cited by Plaintiffs does not make housing discrimination based on sexual orientation illegal.
 
In cases where an appellate court has ruled on the legal issue which is before the trial court, the trial court has a duty – and indeed obligation – to follow appellate court precedent.  Thus, if the Israel Supreme Court had previously ruled on the issue of whether the scope of the anti-discrimination law cited by Plaintiffs is broad enough to encompass housing discrimination, the Bat Yam trial court would be obliged to rule in accordance with that appellate court decision.
 
However, the absence of appellate court precedent does not absolve a trial court of its duty to decide a case on the merits.  If things were otherwise, there would be little need for trial courts.  In cases such as the Bat Yam housing discrimination case, a trial court’s duty, in addition to ascertaining the facts of a case, is to examine the law and decide the legal issue(s) raised by the parties.
 
Thus, in the Bat Yam case, the trial court had a duty to take into consideration the facts of the case, as established by the evidence; examine not only the text of the anti-discrimination law cited by Plaintiffs, but also the purpose of the law and the context in which it was passed, including any legislative history which might be available; and then render a decision on the merits of the case.
 
Dismissing a case because there is an absence of applicable appellate court precedent is nothing short of a complete abdication by the trial court of its judicial duty to decide the case.
 
If a country is to be governed by the Rule of Law, proper litigants with a legitimate legal dispute, such as Plaintiffs and Defendants in the Bat Yam housing discrimination case, have a right to a trial court decision on the merits.
 
If the Bat Yam trial court had rendered a decision on the merits, that is, if the Bat Yam court had entered a judgment either (1) in favor of Plaintiffs, stating that the anti-discrimination statute applies to housing discrimination cases, or (2) in favor of Defendant, stating that the statute does not apply to housing discrimination cases, an appellate court would then be afforded the opportunity to decide this previously undecided legal issue.  The resulting appellate decision would then be available to guide tenants and landlords, as well as to assist future Knessets (Israeli legislatures) in making or amending laws.
 
It simply is not possible for a society whose courts engage in either judicial activism or judicial abdication to long be a free society which is governed by the Rule of Law, rather than by the whim of those who hold government power.
 
If the State of Israel (Medinat Yisra’el) desires to be the Light Unto the Nations that HaShem intends it to be, it will need to undertake a long and hard road of judicial (and other governmental) reforms.  May HaShem bless the Medinat to begin implementing such reforms without further delay.

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