Position Paper No. 32: Response to the Proposal to allow the Coalition to Appoint Judges

The Government decided today to defer enactment of parts of its planned legal “reform” and to push forward only a so-called “softened” proposal to change the composition and procedure of the Judicial Appointments Committee.

This, in fact, a plan to seize control of the Supreme Court by appointing its next President and two of its judges. This proposal is neither a compromise nor a weakened version of any previous proposal. Taking over of the Supreme Court will destroy its independence and turn it into a captive court. This is the most important part of the Coalition’s original plan and once obtained they will be unstoppable.

· The proposal authorizes blatant political appointment of judges and of the President of the Supreme Court who will serve on behalf of the coalition. This in itself is sufficient to overthrow the independence of the Court.

· Control over appointment of the President of the Court will guarantee the coalition unlimited control over appointment of District Court and Magistrates’ Court judges who will serve the collation, above and beyond the two appointments to the Supreme Court assigned by the proposal to the coalition.

· The President of the Supreme Court plays a crucial role in administering the court system. Control of the President guarantees control of the system.

· The Coalition can also paralyze the Appointments’ Committee by not convening it if there is no majority for judges the Coalition wishes to appoint to the Supreme Court. The Opposition and the judges have no parallel power in the committee.

· The goal of the proposed takeover of the Supreme Court is to overcome the first obstacle in the way of adopting the entire “reform” proposal, since it is designed to guarantee that the next stages will not be struck down by the Court.

· The “domino program” is designed to pull the wool over our eyes. But taking over the committee is simply the domino tile, that guarantees the next steps of the regime change.

· Similar strategies have been adopted in other countries. This proposal adopts “the Polish protocol” –ensuring control of the Court first, in order to facilitate all other stages of the plan.

· This is no way to form a Constitution. Changes in constitutional structures that will affect us all for generations can be made only on the basis of open discussion and broad consensus. Our democracy is not up for grabs; it cannot be usurped moments before Passover, the Festival of Freedom.

Comparison of reforms of judicial appointments in Ireland and Israel: Summary of Position Paper #27

The Israeli Law Professors’ Forum for Democracy, an ad hoc, apolitical, and voluntary group of experts on Israeli law and specifically Israeli public law, expresses its grave concern over the apparent intention to abolish the independence of the judiciary, to subordinate it to the government and to the partisan political considerations of the executive branch, to undermine the independent status of the attorney general and civil service legal counsels, and to violate human rights. In this paper we examine the reform about to be adopted in Ireland with respect to appointment of judges.

We demonstrate that:

· Ireland is about to approve a comprehensive reform of its judicial appointments procedure. Under the existing system, a committee composed of judges, the Attorney-General, lawyers, and public representatives make recommendations to the Government, which selects the judges. The Government usually adopts the recommendations of the committee, but it is not obliged to do so.

· According to the new bill, which is in the process of being enacted, the composition of the committee for judicial appointments will change: it will be composed of 4 judges, 4 public representatives, and the Attorney-General, who will be on the committee but will not be entitled to vote.

· The public representatives will be appointed by the Minister of Justice, but the Minister will be required to appoint only candidates recommended by a non-political body in the Irish civil service.

· The new committee will recommend candidates for judicial appointment to the Government, but unlike the recommendations under the current system, these will bind the Government. For every judicial position, the committee will recommend up to 3 candidates and the Government will be required to choose one of the three. A candidate not recommended by the committee cannot be appointed.

· In contrast to the Levin-Rothman proposal, Ireland seeks to depoliticize the process of appointment and adopt a completely professional model immune to any political bias.

Implications of Regime Changes for the Constitutional Right to Privacy: Summary of Policy Paper #26

The Israeli Law Professors’ Forum for Democracy, an ad hoc and voluntary group of experts on Israeli law and specifically Israeli public law, expresses its grave concern over the apparent intention to abolish the independence of the judiciary, to subordinate it to the government and to the partisan political considerations of the executive branch, to undermine the independent status of the attorney general and civil service legal counsels, and to violate human rights. In this paper we examine the implications of the proposed regime change for the constitutional right to privacy.

We consider that:

● The proposed limitations on judicial review as a whole will, among other things, cause serious harm to the right to privacy. The increased potential of governmental arbitrariness is likely to infringe upon fundamental freedoms that are vital in a democratic regime.

● The main concern relates to the demise of judicial review over the constitutionality of government conduct and of parliamentary legislation, and over cases in which the government is a party to a judicial proceeding in which questions of privacy may arise, such as in labor relations.

The full position paper in Hebrew can be found on our website.