The High Court issued a conditional order to the Minister of Justice for not convening the committee for the selection of judges, Levin asked to cancel the decision that was made with a clear lack of authority.
In order to understand where lies the defect that is contrary to the rules of procedure, we will explain what the rules of procedure are regarding a petition to the High Court:
In the first stage, the petition is brought to a single judge, who will decide how to handle it. In most cases, the judge will set a date for submitting a response to the petition and then decide whether to transfer the petition to a hearing before three judges.
He is the one who will determine the urgency arising from the petition, its consequences, its importance and he is the one who will determine the initial process. According to the judge's decision, the authority, in our case the Minister of Justice, will be required to submit a preliminary response to the petition. Only after the submission of the petition and the response to it will the court hold a hearing on the petition.
In the second stage, there will be a hearing, before three judges, who will hear the parties' arguments, and the answer will be delivered. The burden of proof is on the petitioners, they are the ones who have to prove that there was a flaw in the authority's action. To prove as stated that the minister does not convene the committee for the selection of judges without a justified reason.
At the end of the hearing, the judges are allowed to impose a conditional order that basically transfers the burden of proof to the authority, the court invites the minister "to give a reason why the respondent will not exercise his authority". In our words, why was the committee for selecting judges not convened.
An unprecedented procedural flaw
In the petition before us, the court skipped the first stage and issued a conditional order before the first hearing, it actually received a preliminary response from the minister and did not hold a hearing. This is a violation of the deliberative rights of the respondents, but such things happen in court in exceptional situations.
What creates an unprecedented problem is the fact that the High Court issued a conditional order when the respondents had absolutely no ability to respond to the petition. The judges determined that the preliminary response sent by the respondents in writing would actually be the affidavit of Minister Levin's response to the petition, while the preliminary response given by the minister did not purport to be a written response to the order. But the High Court treated it as such and that without any fixed authority in the law.
And as proof of this, the counsel for the respondents (an external attorney, since the legal advisor to the government refused to represent the government) wrote in the reply that he did not have enough time to submit a full preliminary response and therefore he will expand his position in the reply if it is decided to issue a conditional order.
It is clear to the High Court that the preliminary response does not lay out all the reasonings of the authority and does not encompass the entire issue. But the court chose to ignore the fact that it is a partial preliminary response and treated it as a full response written by the respondents and based on this issued a conditional order.
This is the action that was done with a lack of authority and a serious flaw in the legal procedure that obligates in the legal procedures to bring a full response.
And therefore, the Minister of Justice immediately asked to cancel the order that was given without authority and without being given the opportunity to voice his arguments as required.
