The rulemaking process in Israel is quite unique. The Courts Act vests the power to make rules of procedure for courts, registrars and execution chambers in the minister of justice alone and does not even limit this power to issuing “general rule,” thus opening the door to the promulgation of various specialized procedures governing specific bodies of substantive law and specific types of litigants. The rulemaking process itself is undertaken without public hearings, draft rules are not published for the public’s review and comment, and protocols of meetings are made available only to those who could show a reason for access. Hence, this process invites interest groups’ lobbying, in an attempt to make the rule of civil procedure work to their benefit, without leaving visible footprints. Moreover, the by now theoretically defunct distinction between substance and procedure which underlie and legitimize this process, maintaining that civil procedure rules are highly technical, neutral and esoteric directives for the day-to-day operation of courts and the litigation process that only marginally affect substantive rights, makes interest group meddling in the rulemaking process all the more appealing, since it enables them to gain power without the salience that accompany the changing of substantive rights directly.
This article examines closely one type of procedure – the process for the eviction of tenants (PET) – as a prism through which the politics of procedure as well as its enormous influence on substantive rights are exposed. Coming into force in 2008, the PET is considered by many an esoteric and unimportant procedure, applied in less than 2,000 cases a year (in a docket of more than 718,962 cases filed in 2018 alone in the Magistrates Court). In this article we show, however, that when viewed in context, the PET is but one stage among many in a long lasting battle between two interest groups: landlords and tenants, which involves both substantive law (e.g. the Tenants Protection Act and the Execution Act) and procedural law (e.g. summary procedure and the PET). The article also shows that while the hard fought battles between the two interest groups over substantive law in the parliament is well known, the story of the procedural amendments is shrouded in mystery and has not been told, despite their immense influence on the power relations between the two rival parties, in favor of the landlords.
The article concludes with a call for overhauling the rulemaking process in Israel. We argue that the secretive and opaque process is anathema to our democracy. Bearing in mind that procedural rules are inevitably imbued with substantive values and have enormous effect on the substantive rights of the citizenry, the rulemaking process should be made transparent and pluralistic, in which all interested parties can participate and subject to public scrutiny at all stages of rulemaking.