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When the High Court decides not to decide By Tomer Zarchin Tags: health basket, Knesset  On March 28, 2005, a day before the Knesset vote on the budget, attorney Orna Linn petitioned the High Court of Justice on behalf of Gila Luzon and Adolf Edri - both of whom suffered from colon cancer - and the Last Line for Cancer Patients association, to include the medication Avastin in the health basket. The medication, which had been only partially included in the basket that year, left Luzon and Edri uncovered. However, the legal process in the High Court was drawn out. Two hearings were held on the case, in April and August 2005. But neither Edri nor Luzon was able to last as long as the timetable of the court. Edri died in October 2005 and Luzon in June 2006. The petition, which is still gathering dust in the archives of the Supreme Court, will not be of assistance to them. Advertisement This is not the first case in which petitions to the High Court are heard so slowly. Data that Haaretz has received and is being made public here for the first time reveal that, as of the middle of March this year, there were 54 cases that had been awaiting a ruling for more than half a year. The oldest case was opened in 2000. It must be stressed that additional petitions that were submitted even earlier are waiting on the court's shelves, but these are petitions in which the proceedings are dragging on and the time has not yet come for writing a ruling. Supreme Court President Dorit Beinisch leads the bench in 24 out of the 54 cases that are being postponed while Justice Ayala Procaccia leads the bench or is part of the extended bench, in 22 of the postponed cases. Beinisch pushes sanctions The fact that Beinisch heads the bench in cases where the rulings have been postponed for more than six months is most surprising as she has declared that one of her main aims is to cut away the backlog in handing down rulings by judges in the lower courts. Beinisch thus submits complaints against those judges who postpone handing down rulings to the courts' ombudsman while she herself postpones writing rulings. The major topics in cases in which the rulings are being postponed include the army and security, citizenship, conversion, health and the rights of the Palestinians. Attorney Gilad Barnea, who serves as adviser to the Yedid association for pro bono legal aid, in June 2000 submitted a petition to the High Court on behalf of the late Arnan Yekutieli, at that time a Jerusalem city councillor, and additional petitioners including Jenny Beruchi whose guaranteed income was taken away from her because of academic studies. As part of the petition, the petitioners requested that the paragraph of the Budget Law that ensured the minimum income of yeshiva students who study in a kolel (yeshiva for married students) be revoked. The petitioners claimed it was discriminatory since the law regarding guaranteed income ruled out the possibility of granting such insurance to persons who decided to study at a university. Almost eight years have elapsed since the petitions were submitted; there were five hearings, the last in March 2007 with an expanded bench of judges headed by the president. Yekutieli has meanwhile died and as for Beruchi, she is meanwhile working and completing her master's degree - the petition is superfluous now. Barnea explains that the court's delays in handing down rulings is due to the huge backlog of cases and the difficulty of making decisions on controversial subjects that may yield friction between the court, the government or the Knesset. "In these cases," he says, "the High Court of Justice delays its ruling, sometimes even for years, while its job is, by definition, to make a decision, and to make that decision in time. A postponement of years in such rulings means that the decision is taken separately from the matter at hand and that it it is sometimes devoid of content and sometimes becomes superfluous." A fear of activism Attorney Boaz Arad, who is representing the Ometz movement in the High Court, says that some of the delays in rulings stem from the fear on the part of the court of becoming deeply involved in issues that are controversial out of the hope the problem will solve itself and the fear that the justices will be accused of judicial activism. "There is no doubt that the High Court of Justice is loathe to intervene in severe differences of opinion over religious-secular or Jewish-Arab relations, especially at times when the court is the subject of criticism from politicians who attempt to restrain it," he says. When it comes to matters of security, the High Court is likewise in no hurry to hand down rulings. Among the petitions that are waiting in line is one from Physicians for Human Rights and other rights organizations to cancel the instruction given to the Israel Defense Forces to shorten the safety margin when firing shells at the Gaza Strip, from 300 meters to 100 meters from the civilian population. The petition was submitted in April 2006. A month later, an urgent hearing was fixed with then court president Aharon Barak heading the bench. In July 2007, a hearing was held with the current president, Beinisch, heading the bench and since then there has been no decision. Attorney Michael Sfarad who represents the petitioners, says: "The sole claim by the state in the petition is 'non justiciability.' The court is in no hurry to make a decision but it is the petitioners' right to receive a ruling, and the court's obligation to hand it down. Postponing the ruling in a case like this is an irreversible blow to people. We provided the court with lists of names of dozens of people who were killed after the petition was presented to the High Court of Justice as a result of this kind of shelling on the part of the IDF, but there is still no ruling." The delays in handing down rulings can cost a lot of money. That is what happened in the case of the Museum of Tolerance, which is slated to be built in the center of Jerusalem. This educational project, which is headed by the Simon Wiesenthal Center in Los Angeles, is intended to encourage the involvement of individuals in society and its cost is estimated at more than $200 million. In January 2006, the Al-Aksa Company for the Development of the Wakf (Muslim religious trust) petitioned the High Court with the claim that part of the area of the museum harmed an ancient Muslim cemetery. At a later stage, the petitioner claimed that a large part of the entire area is Muslim holy ground. Following an attempt to prevent the digging through an Islamic religious court, a hearing was fixed in which Barak was due to head the bench. The sides were sent to arbitration and meanwhile an order was issued that froze the work at the site. When the arbitration failed, the sides appealed to the High Court and the last hearing was held in April 2007. Since then, the sides have been waiting for a ruling. According to an expert who estimates the construction cost of large projects, whose opinion the Museum of Tolerance submitted to the court, every month in which the project is held up costs the backers more than $5 million. Since they have no choice, the attorneys who suffer from the delays in the handing down of rulings find creative ways to avoid the High Court. Barnea, who petitioned the court in 2000 on behalf of Yekutieli and others over guaranteed income, has learned from his experience. He says: "I learned with time that it is preferable to send the case to the Labor Court, for example, since there it is possible to get assistance more quickly, or to the Magistrate's Courts or the District Courts since the judges in these courts are sometimes less scared of these things and hand down rulings that are ground-breaking." Barnea believes that if he petitions the High Court over a case like Beruchi's, the case will take at least four years. It is clear he will not receive an interim injunction that will return the income payment to the petitioner until there is a ruling. If the state knows there is a petition before the High Court, it will not change its decision until the case has been heard. "So how can I advise people to petition the High Court?" he asks. Attorney Irit Rosenblum, the head of the New Family organization, which promotes the recognition non nuclear families, says that because of the realization that the High Court cannot provide a swift solution to petitions, she tries to extend to the utmost the limit of authority of the Family Affairs Court. "In an instance like a biological will, which is a legal document where a person gives practical instructions about what will happen with his sperm after his death, we have managed to reach a breakthrough in the family affairs courts rather than the High Court of Justice. It is true the ruling is not a binding rule, and it is clear that if a ruling had been accepted by the High Court about a biological will, this would pave the path in this respect. But I believe, since there is no choice, that one must try to stretch the authority of the Family Affairs Courts. People are looking for swift and practical solutions. To have a case drag on for years in the High Court of justice is terribly frustrating," Rosenblum says. The person who believes there is no alternative to the High Court of Justice, at least in some of the cases like that of the health basket, is attorney Orna Linn. She represented the cancer victims Luzon and Edri, and she now plans to submit another petition about the government's policy on health basket medications. "I do not believe that in petitions relating to the health basket, certainly not those that are cases of principle, it is worthwhile trying to extend the authority of the Labor Court. Sometimes the court's decision is good for the petitioner, and sometimes it is not, and sometimes previous rulings of the Labor Court restrict them [the judges] and make it difficult for them to take decisions with regard to individual cases," she says. Prof. Yoram Shahar of the Interdisciplinary Center at Herzliya, has for the past three decades been studying the work of the Supreme Court. "Usually," he says, "there is a good reason for the delay in handing down rulings by the court. They have real inner struggles. If the petitioners ask for a quick answer, they are likely to get a negative answer. "The expectation that the court will solve all the problems is too great, and that is why the petitioners are often disappointed. From my examination of the Supreme Court's work I can say that when the justices are able to give a quick response, they do so. Quite a few hearings in the High Court end after one session with a remark from the justices to the prosecution or even with the raising of an eyebrow by a justice, but not all the issues are of this nature." Shahar says about the initiative of Rosenblum and Barnea, "Thank God that a process is starting whereby people think that the Supreme Court is not the only place to which to take everything. The process of running with every subject to the High Court of Justice and expecting salvation, creates frustration. Pressures must be put on lower instances to provide the answers." Bookmark to del.icio.us   WHO knows? The WHO says Israel lets Gazans die in 'avoidable tragedies'. Friendly faces Google, Facebook and Yahoo heads will attend a J'lem technology summit.

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