A Failure Foretold – Procedures as Instruments for the Denial of Substantial Rights from Palestinian Residents

This Article considers the limitations of judicial review in cases where a complex and cumbersome array of bureaucratic procedures hinders the realization of substantive rights. It suggests that in addition to hindering the realization of rights, such bureaucratic obstacles might also prevent effective judicial review. The Article considers the nature of interventions by the High Court of Justice in several petitions that demanded that the security authorities create or change regulations in order to implement different aspects of Palestinian residents’ freedom of movement. The Court initially ordered the authorities to create such bureaucratic arrangements and regulations, but as this Article shows, it also granted the authorities a wide margin of appreciation as regards such procedures. This wide margin of appreciation prevents the Court from intervening in later petitions that address practical difficulties in implementing the procedure that was adopted as a result of the primary petition. This outcome thwarts the purpose of the original petition: to design an arrangement that protects the freedom of movement. The Article identifies and analyses the causes of the constraints on judicial review and the outcomes of such constrained review. It suggests that the role of the Court; its institutional characteristics; the dynamic between the judicial and executive branches; and the nature of the obstacles hindering realization of rights, all of these impede effective judicial review that could lead to correcting the bureaucratic impasse. These difficulties result in the de facto immunity of the procedure from intervention and continued violation of rights. [Article full text only available in Hebrew]