The Politics of Civil Procedure: The Curious Story of the Process for the Eviction of Tenants

Abstract

This article examines the process for the eviction of tenants (PET), which offers landlords a swift path for obtaining an eviction order against their tenants, as a case study exposing the politics of procedure. It shows that the PET is but one stage in a longstanding battle waged between two interest groups—landlords and tenants—involving both substantive law and procedural law. But while the story of their conflict over substantive law, fought in the parliament through the regular legislative process, is well-known, the story of the procedural amendments, despite their immense impact, remains shrouded in mystery and is told here for the first time. The reason for that, we argue, is that despite the vast impact of procedure on substantive right, many in the Israeli legal system mistakenly view civil procedure rules as highly technical and neutral directives for the day-to-day operation of the litigation process. The conclusion from such a view is that rulemaking should be left to expert legal technicians and court administrators and that transparency mechanisms or public participation are to be avoided as unnecessary due to the costs and burdens they impose on the rulemaking process. The article concludes with a call for overhauling the rulemaking process in Israel. We argue that the secretive and opaque process is anathema to democracy. Bearing in mind that procedural rules are inevitably imbued with substantive values and have an enormous effect on the substantive rights of the citizenry, the rulemaking process should be radically altered to enable all interested parties to take part in the process, making it far more transparent and subject to public scrutiny in all its stages.