The Israeli Law Professors’ Forum for Democracy, an unincorporated and voluntary group of experts on Israeli law and, specifically, on Israeli public law, is gravely concerned about looming initiatives to undermine the independence of Israel’s judicial branch of government, to subordinate it to the partisan and party-driven political considerations of the government, and to curtail the independence of civilservant ministerial legal counsels to the government and its ministries. This position paper addresses the proposals by the Minister of Justice and the Chair of the Parliamentary Committee on Legislation, Constitution and Law, to modify the composition of the committee for the appointment, promotion and removal of judges from office. Following a comprehensive review of the proposal we are of the view that:
● The proposals seek to radically change the process for appointing Israel’s judiciary, granting the Government full control over the appointment, promotion, and removal from office of judges at all levels of the judiciary, including the Supreme Court. The proposals of the Minister and Committee Chair doom Israel’s judicial branch, as it was formed since Israel’s establishment, to oblivion. Courts are required to resolve disputes fairly and without prejudice, to interpret the law professionally and fearlessly, and to apply administrative and constitutional judicial review over government action. In order to carry out these tasks, judges must be professional and independent. A mechanism granting the government supremacy in the process of judicial appointment, promotion, and removal from office will undermine that independence, subordinate the judiciary to the elected government, and render the separation of powers in Israel an empty shell.
● Granting the government parliamentary coalition control over the appointment, promotion and removal from office of judges will severely hinder the judiciary’s ability to carry out its duties. Judges operating under the threat of being denied promotion or even of removal from office if they do not comply with the elected government’s interests are not independent judges, and are unlikely to be able to perform their role. Moreover, even if such judges will adjudicate according to the law and strive to rule justly, the public’s trust in the judiciary will be lost.
● Putting the power to appoint judges in the hands of elected politicians devoid of the professional training and experience required to evaluate the quality of candidates for judicial appointment could result in the election of a lower caliber of judges and in the rejection or failure to promote more worthy candidates.
● The lack of an independent judiciary that enjoys the public’s trust will impair the rule of law, Israel’s economy, personal security, and the protection of human rights.
● Without an independent judiciary and independent civil-servant legal counsels, all governmental power will be concentrated in the hands of the Government. Under such conditions, the Government might strive to entrench its hold on governmental power, impeding fair political processes that can bring change in the identity of the government. In fact, Governmental entrenchment by the elected majority will become almost definite. Moreover, there will be no significant obstacle in the way of governmental policy intentionally benefiting only those subsections of society represented by the Government, while trampling over the rights of other sectors of society (enabling the ‘tyranny of the majority’). Under such conditions, Israel could no longer be regarded a democracy, which will likely result in wide-ranging deterioration of the economy and society.
● From the explanatory notes to the draft memorandum of the proposed Basic Law: The Judiciary (Amendment - Reform of Law) issued a few weeks ago by the Minister of Justice, it arises that the purpose of the proposed changes in the composition of the committee for the appointment of judges is to better incorporate the values of the general public in the process, given that the courts adjudicate matters of a public-political character. This consideration is particularly relevant in cases where the Supreme Court rules on value-laden matters of public concern. However, the Minister and Committee Chair’s proposals are not limited to those cases where the Supreme Court rules over constitutional matters in its capacity as Israel’s High Court of Justice. Rather, they extend to the appointment, promotion, and removal from office of judges in all instances. Moreover, contrary to its stated goal, the proposed procedure neither enhances the diversity in the appointment of the judiciary, nor does it improve the measure in which the courts’ makeup reflects Israeli society. Instead, it undermines the basic purpose of constitutions in democratic societies, which is to prevent the abuse of power by a contingent majority acting contrary to society’s fundamental principles. Had the Minister and Committee Chair genuinely wished to improve the measure in which the diversity of Israel society and its different deeply held values are reflected in constitutional judicial decisions, they would have proposed incorporating representatives of the various groups that comprise Israeli society in the judicial appointments committee, and to establish a decision-making mechanism based on broad agreement. Instead, their proposal focuses exclusively on empowering and entrenching Government power vis a vis the judiciary.
● The proposal draws inspiration from the involvement of elected officials in judicial appointments, promotions, and removal from office practiced in other countries. However, the political involvement in these systems is limited to appointment of judges to courts that deal exclusively with constitutional issues, and are separate from the remainder of the more professionalized judiciary. Israel’s judiciary contains no such separation: The Supreme Court operates as a court of appeals in civil, criminal and administrative matters and, in a minority of cases, as a constitutional court. And courts of lower instances are certainly not focused on contested public issues as a central issue. Thus, the comparison with models for appointment of judges in other countries is misleading and, in most cases, irrelevant. Moreover, applying the rationale for the design of constitutional courts in other countries to the entirety of Israel’s judiciary will not only fail to rectify or improve it, it will destroy it.
● Debating the procedure for judicial appointments in isolation from considering the full gamut of changes proposed by the Government obscures the overall significance of the various proposed changes, as in this case the whole is worse than the sum of its parts. The proposals of the Minister and the Committee Chair regarding the appointment of judges are accompanied by proposals to significantly limit the Supreme Court’s authority for constitutional judicial review, an abolition of the condition of government reasonableness as grounds for judicial review, and to enact an override clause allowing a parliamentary majority to override any instance of judicial review. These proposals fortify, entrench and enhance the power of the Government at the expense of other branches of government without mechanisms for checking, limiting and restraining the elected government. This is not a proposal for the reform and consolidation of Israel’s democracy, but a measure for its expunction.
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