The High Court of Justice is not the place for affidavit battles

Anyone familiar with the courts of first instance and the district courts knows that a significant portion of the proceedings is devoted to the question of what truly happened. When disputed facts are submitted in documents and affidavits, witnesses are summoned, and cross-examination is the central tool for examining a version and its reliability. Only at the end of a full evidentiary process are findings of fact determined, upon which the legal conclusions are then built. Facts first, then law. In the High Court of Justice (HCJ) the picture is different, and not by chance. The HCJ does not conduct an evidentiary proceeding, does not hear witnesses, and is not accustomed to determining who among the participants is telling the truth. Its role is to carry out judicial review of the authority’s action—whether it was taken within its authority, in a proper procedure, on the basis of sufficient infrastructure, and within the bounds of the law—not to replace the authority with fact-finding, a course of action that, as a rule, is entrusted to it. This is an integral part of the institutional division of labor on which the procedure is built.

Although there is formal authority to investigate affiants in the HCJ, since the 1960s cross-examination has been preserved for exceptional cases, and since the 1980s it has almost disappeared—for reasons of efficiency, the special nature of the HCJ procedure, and the need to preserve the authority’s ability to carry out its function. The system assumes that the factual clarification is carried out first by the authority or by the competent body, and only afterward are the legality of the decision and its reasonableness examined.

In recent years, another practice is taking shape: more and more “narrative” affidavits are being submitted to the HCJ—sometimes at the initiative of the affiants and sometimes by decision of the court. Not a short affidavit that verifies the facts in response, but a document that seeks to tell a complete factual story. When several officeholders relate about the same event, the versions do not align and sometimes directly contradict each other. Thus, in petitions concerning the termination of the term of office of the head of the Shin Bet, opposing affidavits were submitted by Ronen Bar and by Prime Minister Benjamin Netanyahu, and each claimed that the other’s version is not the truth.

In petitions concerning the appointment of Roman Gofman as head of the Mossad, an affidavit was requested from Brigadier General J. After the affidavit was submitted, the legal adviser to the government asked to present “new information” regarding Gofman’s possible impact on the continuation of his employment—an attempt to undermine the weight of the affidavit without the affiant being questioned and without any real evidentiary clarification.

The difficulty is not limited to the absence of cross-examination, and even a short and focused interrogation is not a real solution. Fact-finding may require disclosure of documents, review of background materials, summoning additional witnesses, presenting contradictory evidence, and providing each side with a fair opportunity to confront the full picture. A short interrogation will not turn the HCJ into a fact-finding forum, and it may instead create the appearance of clarification without the infrastructure required for a fact-based finding.

Once the HCJ invites factual versions, it is required to perform a role that it is not prepared to fulfill, since, as a rule, the HCJ is not the appropriate venue for deciding on credibility and choosing between conflicting stories. The problem is deeper than “inflation of affidavits.” This is a reversal of the order of things, in which the initial clarification shifts from the authority to the court.

In practice, not infrequently the HCJ receives the factual material but refrains from determining findings of credibility and bases its ruling on other grounds: authority, a defect in the procedure, or another cause. If the factual dispute is not necessary for the decision, it is preferable not to summon it in the first place; if it is necessary, one should ask whether the petition is at all the appropriate framework for clarifying it.

The case of the selection of the State Comptroller illustrates an additional danger. Before the HCJ, conflicting versions were presented regarding whether members of the Knesset were asked to photograph their vote. The legal adviser to the government instructed the police to investigate a suspicion that had been reported in an affidavit. A false affidavit is a serious matter, and in the appropriate circumstances it can establish an offense. But the mere contradiction between versions does not turn one of them into an offense: courts hear every day versions that cannot coexist, and the fact-finding court ultimately prefers one of them. From there to a criminal investigation, the distance is great.

Prosecutorial policy also recognizes this: the directive of the Attorney General states that, as a rule, opening an investigation due to false or contradictory testimony is deferred until after the court’s decision, among other reasons so as not to harm the main proceeding. The logic is that the court’s determinations should be given real weight, and only after them can it be considered, among other considerations, whether a version was not merely unconvincing or mistaken, but knowingly false and in a material matter.

The investigating authority is now asked to be the first factor to determine what happened, which version is supported by evidence, and whether there is a basis for the suspicion that the other was provided with a lie—and to carry out the initial clarification that the HCJ itself is not prepared to perform, even before a judicial ruling. This is a far-reaching step: criminal justice is not supposed to serve as an outsourcing mechanism for establishing the truth.

If it is possible to decide the petition without choosing between versions by means of submitting affidavits, it should be done. And if it is not possible without a full evidentiary procedure, then it should be recognized that the ordinary HCJ framework, as a rule, is not suitable for that. Exceptions always exist, but it is appropriate that the exception not become a method.

It is therefore appropriate to redraw the boundaries: precisely because of the centrality of the HCJ in our legal system, it is important that the boundaries of its role be preserved. In general, proper order requires that first an administrative authority clarify the facts and exercise discretion, and the HCJ will review the legality of its actions according to the customary toolbox. By contrast, the police will be required to investigate offenses relating to the submission of a false affidavit or perjury only after the conclusion of the procedure, after a judicial finding has been made, in exceptional cases and without crossing the boundary of judicial authority.