The Tangible and Imminent Threat to Israel’s Judicial Independence
A fierce debate is raging these days about the democratic implications of the Israeli 2022 elections to the twenty-fifth Knesset (legislature). Yet, those who read the platform of the Religious Zionist Party—as expressed in the program „Law and Justice-Reform of the Judicial System,“ signed by the members of the Knesset, Bezalel Smotrich and Simcha Rothman—cannot ignore the real and imminent danger to Israel’s judicial independence. The top item on their agenda, published during their election campaign, is changing the judicial appointment process.
Israel’s democracy is based on a parliamentary system, with elections held for the legislature alone. Its election system is proportional representation with the entire country forming one electoral unit. Thus, even extreme political parties may be elected, if they pass the low electoral threshold of 3.25% of the public’s vote. The Israeli Supreme Court rarely permits to ban political parties or candidates because of their extreme positions, reading narrowly the country’s constitutional provision that authorizes the Central Election Committee to ban candidates and parties, if their actions or goals negate the existence of Israel as Jewish and democratic, incite racism, or support armed struggles of enemy states or terrorist organizations against the State. The government is composed of the representatives of political parties, who can muster the support of legislative majority. Thus, the Religious Zionist Party, whose representatives are roughly 12% of Knesset members, will most likely comprise part of the expected hard-core right-wing coalition of Benjamin Netanyahu, and is keen on implementing its platform.
Currently, Basic Law: The Judiciary–which forms part of Israel’s supreme though largely unentrenched Constitution—provides for the composition of the Judicial Selection Committee. The Committee consists of three Supreme Court Justices, one of whom is the President of the Supreme Court; two members of the Israeli Bar; two ministers, one of whom is the Minister of Justice; and two Knesset members. Each of the four bodies represented in the Committee (Legislature, Government, Supreme Court and Bar Association) chooses its representatives, and neither of the bodies enjoys a majority in the Committee. Furthermore, in 2008, Gideon Sa’ar, as an Opposition member, and the Minister of Justice at the time, Prof. Daniel Friedman, reformed the process of appointing a Supreme Court Justice to require the consent of seven out of nine Committee members. They aimed to grant the politicians veto power over appointments to the Supreme Court. The current Committee’s composition ensures a consensual process in the sense that representatives of the four bodies must strike deals to appoint Justices to the Supreme Court, and that in turn affects appointments to the lower courts as well. This process prevents the appointment of inappropriate people, including candidates with radical positions, who do not reflect the Israeli population.
Smotrich and Rothman’s proposal would change the Committee’s composition to presumably ensure a “more democratic” method of appointment. According to them, the new composition will include „the President of the Supreme Court, the President of a district court (to be chosen by the Minister of Justice), a representative of the Magistrate Court (who will also be chosen by the Minister of Justice) and 6 Knesset members (4 from the coalition, 2 from the opposition).“
Though they cite democracy as their incentive, Smotrich and Rothman intend to destroy democracy. The provisions of the Basic Law: The Judiciary grant the Judicial Selection Committee authority to not only appoint but also remove judges. Removal requires the support of a majority of seven out of nine members. The Basic Law does not even limit removal from office to certain specified causes, such as inappropriate behavior, leaving the decision to the full discretion of the Committee. The Basic Law’s presumption is that there will be no misuse of removal power, given the checks and balances inherent in the Committee’s current composition. However, Smotrich and Rothman’s proposal would give politicians control over eight of the nine committee members. The six Knesset members will be directly picked and two judges will be indirectly controlled, as they are appointed by the Minister of Justice. Though Basic Law: The Judiciary forms a chapter of Israel’s Constitution, it may be amended by a simple majority of the Knesset. Even a two-to-one majority will do. This is how fragile the judicial system in Israel is.
If the Religious Zionist Party will succeed in adopting its plan, it will put an end to the principle of judicial independence. If judges would oppose the prevailing political opinion, they will risk removal from office. Importantly, there is no need for the risk of removal to materialize. It is enough that judges would fear deciding according to the law, lest they be removed from office. It seems that, for Smotrich and Rothman, this is not a bug but a feature of their plan, as evident from their reasoning to the proposed change: „In a mechanism that is entirely controlled by Justices of the Supreme Court and the Bar Association, the termination of the tenure of judges is impossible.“ Smotrich and Rothman both identify as lawyers, and Rothman even mentioned his current membership in the Judicial Selection Committee. Presumably, he knows very well what the Committee’s powers are. Smotrich and Rothman’s plan does not seek to only weaken the principle of judicial independence, but to entirely abolish it. While the public debate prompted by their proposal focuses on the question of the proper balance of power between politicians and professional elites on the Judicial Selection Committee, it seems that the most important devious part of their plan has gone unnoticed: Placing the continued tenure of judges at the mercy of the politicians because the Judicial Selection Committee is authorized to not only appoint but dismiss.
A supreme principle of any democratic society is the existence of an independent judicial authority, which fears nothing but the law itself. In Israel, too, conservative and liberal Supreme Court Justices have stated repeatedly in diverse judicial decisions that without an independent judicial system, there will be no democracy. Even if the politicians amend the Basic Laws to determine that the Court does not have the authority to invalidate Basic Laws (a proposal that is on the table these days), a Basic Law will not have the power to negate the principle of judicial independence. This is not Israeli democracy’s finest hour, if the principle of judicial independence is under tangible and imminent threat. More than the Court needs the protection of Israel’s society, Israel’s society needs the protection of an independent Court, regardless of one’s political views.
This blog post is based on my op-ed “The Threat to Judicial Independence: Changing the Judicial Selection Committee” Globes Nov. 17, 2022 (Hebrew).
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