In October 2018, the authority to hear most petitions of residents of the oPt was transferred from the High Court of Justice (HCJ) to the Jerusalem District Court (sitting as the Court for Administrative Affairs), in an
amendment to the Courts for Administrative Affairs Law. The amendment transferred authority in several fields, including petitions regarding exit from and entry to the oPt – a unique issue in that routinely the court’s rulings are based on classified material presented ex parte.
The transfer of authority from the HCJ is highly problematic and harmful to petitioners from the OPT for a variety of reasons
discussed at length by the Association for Civil Rights in Israel (ACRI) before the amendment was passed. ACRI warned that this move would effectively “reduce the legal protection provided to the Palestinian population… weakening the judicial review on the military authorities”. Ostensibly, the Amendment enables a person whose petition was rejected by the District Court to appeal to the Supreme Court, the decisions of which “are final and constitute a binding precedent for the authorities…”. But in practice access to the Supreme Court as an appeal instance may be significantly limited given that this proceeding entails payment of a fee of about ILS 3,000, and also the deposit of a guarantee (to ensure the costs of the respondent if the appeal is turned down – even when the respondent is a state authority). The obligation to deposit a guarantee – sometimes tens of thousands of shekels – might easily become an obstacle to appeals by the poor and vulnerable population of the oPt.
This concern has been validated recently in a case handled by HaMoked. On July 14, 2019, HaMoked appealed to the Supreme Court on behalf of a university teacher from the West Bank, whom the military bans from leaving his country, which might cause him to miss an opportunity to teach in a university abroad for a year. The appeal lists several substantive mistakes made in the District Court’s judgment, which left intact the military’s decision despite the severe violation of the appellant’s rights. On July 17, 2019, the Court secretariat issued a decision whereby ILS 30,000 must be deposited as guarantee – otherwise the appeal would be dismissed without a hearing. In its request to reduce the guarantee sum, HaMoked noted that the District Court also imposed on HaMoked payment of costs in the sum of ILS 3,000 (a decision which HaMoked also seeks to overturn). It would therefore appear that the sum of the Supreme Court guarantee is several times higher than any costs that might be incurred in the appeal. HaMoked also noted that in the framework of the hearings of the Knesset’s Constitution, Law and Justice Committee on the matter of transferring the authority from the HCJ, it was suggested that ILS 4,000 be set as the highest possible guarantee sum. Ultimately, despite the state’s opposition to the reduction request, the court registrar ruled on August 8, 2019, that “the guarantee amount that was set must be significantly reduced… given the nature of the proceeding and the subject of the petition… and given the power imbalance between the parties…”. The registrar reduced the guarantee to ILS 4,000, adding that “in setting this sum I also took into consideration the amount of costs imposed …”.
In another recent case, HaMoked was required to deposit a large guarantee of ILS 20,000 in a Supreme Court appeal on behalf of a widow who has been living in East Jerusalem 25 years. The appeal seeks to overturn the District Court’s decision not to intervene in the Ministry of Interior’s decision to deny the woman temporary residency on humanitarian grounds, which would finally afford her social security rights. The authority to hear such petitions was also transferred during 2018 from the HCJ to the District Court (pursuant to Courts of Administrative Affairs Ordinance (Revision of First and Second Schedules to the Law) 5778-2018 (Section 1(3)(C))). In this instance, after HaMoked filed for reconsideration of the guarantee sum – exceptionally high for such a case – it was reduced to ILS 8,000, “given the nature of the proceeding and the power imbalance between the parties”.
In these cases, the reduction requests were accepted, but the concern remains that due consideration is lacking in the setting of the guarantee sum, with regard to the importance of a Supreme Court hearing in cases of severe violation of basic rights, and with regard to the appellants’ circumstances and economic situation. Clearly, such high deposits will have a chilling effect or constitute an effective barrier in many cases, and will prevent Palestinians from pleading their case before the highest instance in Israel, regardless of whether they are represented by a public body or by private lawyers.
