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Privatizing Israel's Legal System

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Growing criticism in some countries led to greater protection for weaker parties in arbitration disputes. Israel's measure denies it. According to Suciu:

"Years of under-funding led to an unbearable burden on the court system. Instead of solving this problem by amending the system, many decision-makers blindly accept the view that privatization is the desired solution for almost every public service that is not properly functioning." 

"The Mandatory Arbitration Bill is an extreme initiative that has no equivalent anywhere in the world, and it could violate the basic right to a due process."

Israel's Basic Law states that "person(s) vested with judicial power shall not, in judicial matters, be subject to any authority but that of the Law."

Legal provisions are intended to ensure judicial independence. Qualifications for judges are strict. They include ethical standards, salaries, length of service, termination of service, and others. According to Israeli Supreme Court Judge Ayala Procaccia:

"We set the standards of behavior that apply to specific judges. They are subject to strict standards of conduct not only judgment, but also in other walks of life".They have to understand that the judgment is not just a job. It is a way of life."

Suciu believes that transferring civil jurisdiction authority to private parties reflects a "simplistic and flawed judicial role of a specific solution to the conflict between" two parties.

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Doing so ignores "competent court of law interpretation," longstanding social values, fundamental rights and obligations, and rule of law priorities.

Civil litigation is a right. It plays a key role in democratic societies. Privatizing the judiciary compromises freedom. Israel's MA bill raises fundamental constitutional issues. It's excessive and unreasonable. It damages the public's trust in courts.

According to Supreme Court Judge Mishal Hashin, judicial access is "an essential basic right." It's also "the life blood of the court. (When) the path to the court is obstructed, whether directly or indirectly, or even partially, it undermined the raison d'être of the judiciary."

At the same time, legal procedures and laws aren't absolute. Times change, and so do they. Doing so should strengthen democracy, not compromise it. Denying judicial access is dangerously unreasonable.

Privatizing judicial authority compromises basic rights. Mandatory arbitration undermines its intended purpose. Strict regulations, ethics standards, and a supervisory system govern judges. 

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The arbitrator selection process is lax by comparison. No restrictions are placed on political activity, private practice, income, or other activities potentially compromising their independence. Arbitrators can live double lives.

MA bill provisions include operating according to substantive law and evidentiary rules. However, arbitrators won't be bound by judicial procedures and some Arbitration Law mandates.

Arbitrators will be able to make up his or her own rules and operate virtually ad hoc. Moreover, qualified jurists may be shut out. Only persons who've practiced law are eligible. Judges, law professors, and others with legal expertise won't qualify without this credential.

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I was born in 1934, am a retired, progressive small businessman concerned about all the major national and world issues, committed to speak out and write about them.

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