Judicial selection in Israel is exceptional by every comparative international standard. The serving judges hold veto-power and can prevent the appointment of any candidate to which they are opposed. The current “friend-brings-friend” system leads the Supreme Court to see itself as one closed family.
“You need to remember that the Supreme Court is one family, even if there are different opinions. The good of the state requires a coherent Court, in which the relationship is one of family, with all the differences of opinions. You can’t bring somebody who isn’t family into the system.” (Former Chief Justice Aharon Barak, 2016)
It is forbidden to allow any government branch to turn itself into a self-perpetuating oligarchy. This includes the Court. It is for this reason that it would be illogical for government ministers to decide who will replace them in the next government, or for Knesset members to decide who will replace them in the next Knesset. The results of the current system are clear: homogeneity that over time harms the public and its trust in the Court. In the current judicial selection system, a judge with a slightly different worldview will rarely be appointed to the Supreme Court.
The Judges’ Selection Committee consists of nine members: the Chief Justice and two additional Supreme Court justices, the Justice Minister, a government representative, two Knesset members and two members of the Bar Association.
The appointment of a Supreme Court justice requires a majority of seven out of nine members, meaning that the Supreme Court judges have veto-power. It is important to state that since the Committee was established in 1953, the three judges have almost always voted unanimously on appointments to the Supreme Court.
The proposal which has reached final approval is that of the Constitutional Committee Chairman, MK Simcha Rothman. After the failure of President Herzog’s outline, the coalition itself moderated the original proposal and reached its own balanced framework.
According to the proposal, the Judges’ Selection Committee will be expanded to 11 members: 3 ministers, 3 coalition Knesset members, 2 opposition Knesset members and 3 Supreme Court justices. Additionally, the framework for the selection of magistrate and district judges will differ.
The new proposal creates a new and healthy balance, which effectively ends the current veto belonging to the Supreme Court judges.
During every Knesset term, the first two Supreme Court appointments will require a simple majority – meaning, the majority of the coalition. This means that whenever the citizens vote, they will be voting for a coalition that will have the power to appoint two Supreme Court judges. The third judge will require the approval of one opposition representative, while the fourth judge onwards requires the approval of one of the judges on the committee. Therefore, beginning from the third appointment, there will be need for a wide consensus. This proposal creates a more balanced situation and prevents the politicization of the Court. The coalition will have a relative, not absolute, advantage and this holds true for both right and left governments.
The Committee’s composition is expected to lead to a more diverse crop of Supreme Court judges over time, in a manner that better reflects the panoply of opinions and communities in Israel. If we look at previous Justice Ministers who have served in the past twenty years and their worldviews (Tzipi Livni, Avi Nisenkorn, Ayelet Shaked, Gideon Saar, Amir Ohana, Benny Gantz), we see a wide political variety. As such, the proposed composition will protect legal diversity.
The proposed framework will not allow political impeachment of judges. In order to impeach a judge, the Committee will require the support of seven out of nine members. This guarantees that impeachment be done with the approval of all three government branches.
Additionally, the Committee will hold a public hearing for each candidate. Such hearings are the norm in many Western countries. The hearing will increase transparency regarding candidates’ legal and general worldviews.
Until now, Chief Justices were selected according to the seniority system, which exists nowhere else in the world. According to this system, the most experienced judge serving when the Chief Justice retires is appointed. According to the proposed change, the Chief Justice will be selected by the Committee, as each of the 15 Supreme Court judges may submit their candidacy.
In selections to magistrate and district courts, the two current Supreme Court judges will be replaced by magistrate and district Chief Justices. The lower court judges will be selected by the Chief Justices of the two judiciary levels, and not by the absolute power that the Supreme Court Chief Justice had until now. For the selection of judges to the Employment Tribunal, the Chief Justice of the National Employment Tribunal will replace the Magistrate Chief Justice. The selection to lower levels – district and magistrate – will require a majority of the seven members.
We will gain precisely what we are lacking today: diversity, transparency and representation. In addition, we will stop the plummeting public trust in the justice system, which poses a real threat to democracy.
Citizens have the right to influence the state’s character. The Supreme Court is a central player in the state’s policy-making, especially in light of its activist approach and the powers that it abrogated for itself. Therefore, it is critical to have a close link between the values and worldviews of all of Israel’s citizens and of the appointed judges.
A judge’s worldview influences their rulings. The Supreme Court has even more dramatic influence, as many issues are inextricably tied with moral and value rulings. The change will guarantee rulings that protect all of Israel’s citizens and judges that come from all sectors of the population.
In order to protect individual rights, we need judges that see everyone. In order to see everyone, judges must come from diverse backgrounds.
Today, a jurist who thinks differently from the Supreme Court judges has a very small likelihood of being appointed. This has created a “thought-police” in which anyone interested in being appointed must “tow the party line” (including of course lower appellate judges). Without wide diversity within the court between various jurisprudential positions, the result will be homogeneity.
Levin’s reform seeks to change the defective closed system by creating a new balance between Committee members and giving more room to public officials to appoint judges, in order to select professional and diverse judges who will serve everyone.
The truth is that judges in almost all of the leading democracies worldwide are appointed by the elected officials. Somehow, the public in these countries don’t believe the courts to be politicized. Despite the judges being appointed by politicians, from the moment that they are appointed, they enjoy complete judicial independence. It is important to know – the system in which judges appoint other judges to the constitutional court exists only in Israel.
The Court is political only when it allows impeachment for political reasons. This is not the situation in Israel, and will not be the situation after the reform. The judges enjoy complete judicial independence from the moment that they are appointed. This is how it works in all advanced democracies.
Israel’s citizens deserve an independent and diverse Court that represents the entire public. The reform will only strengthen the Court and civil rights.
The judicial branch is the only branch in Israel without checks and balances. In 1995, a quiet revolution occurred, fundamentally changing the Israeli system of government. The State of Israel is the only country in which its governmental system was changed by a Court decision. The Supreme Court gave itself unlimited power: it decided which laws it can strike do, who can petition it, in which issues it can involve itself, and what should be in Israel’s constitution. In reality, the Court continuously writes Israel’s constitution. This means that the Court has the final word, and not the public representatives. This situation turns every democratic decision into a conditional one, awaiting the approval of the Court.
Once one branch annexes the authorities of another branch and concentrates around itself so much power, balance is violated, democracy is harmed and the ability of other branches to operate is impaired.
Striking down laws: Today, the Supreme Court can strike down laws in a panel of three judges alone, without any supermajority. The Court was never authorized to strike down laws; it arrogated this power for itself since the Constitutional Revolution.
Override Clause: In Israel, an override clause already exists in the Freedom of Occupation: Basic Law. It was passed in 1994, at the initiative of former Prime Minister Yitzchak Rabin, in coordination with then-Supreme Court Justice Aharon Barak. According to the override clause, the Knesset can override Supreme Court decisions with a majority of 61 Knesset members. There is no override clause in the Human Dignity and Liberty: Basic Law.
Basic Laws: The Constitutional Revolution rests on the idea that the Basic Laws are Israel’s constitution and that when the Court strikes down laws, it does so because they contradict the Basic Laws. The Court acts by virtue of the Basic Laws – and today it has empowered itself to interfere in Basic Laws themselves. The Supreme Court changes the rules of the game, during the game itself.
Striking down laws: In order to strike down laws, the Supreme Court will need to assemble in full quorum – 15 judges, in order to prevent the judicial decision from being influenced by the panel’s composition. A supermajority of 12 out of 15 judges will be required to strike down laws.
Override clause: If the Supreme Court strikes down a law, the Knesset can legislate it anew for a limited time, with a majority of 61 Knesset members. If the Supreme Court strikes the law down unanimously, the Knesset will be able to override the law only in its next term, and not immediately.
Basic Laws: According to the reform proposal, the Supreme Court will not be able to rule on the validity of the Basic Laws. There is no other Western democracy in which the Court declared its power to rule on the constitution itself. The reform will situate Israel alongside the leading democracies in the world.
The proposed amendments are very moderate. They aren’t intended to break the system or to completely reverse Barak’s Constitutional Revolution. On the contrary, the Knesset will, for the first time, grant to Supreme Court legal authorization to strike down laws. The reform seeks to define and regulate the Court’s powers, and to add checks and balances to the existing situation.
For the first time, the law will enshrine the Supreme Court’s power to strike down legislation that contradicts the Basic Laws. Unanimous ruling will set a high standard that will raise the conditions for applying the override clause. Every government branch can violate rights in a disproportionate manner – the legislative, the executive and even the judicial. Without a model of “constitutional dialogue” in which the Knesset can respond to the Court, who will protect us from judicial violation of rights? For example, who will protect the rights of Israeli citizens harmed by illegal immigration? It is important to remember that citizens enjoy political rights, among them control over their fate and of the policies to which they are subject. Given that these issues are bound with values and worldviews, the final world must belong to the Knesset, which represents the citizens of the State of Israel.
There are flourishing parliamentary democracies without a constitution and without judicial power to strike down laws – for example, the UK, New Zealand, Switzerland, the Netherlands, Luxembourg, Norway and Finland. The reform doesn’t turn back the clock to the situation prior to former Chief Justice Barak’s Constitutional Revolution. It rather offers a balances solution that recognizes the Court’s authority to carry out constitutional review, while creating a dialogue between the branches.
The “reasonableness ground” is code for a mechanism by which the Court can make decisions in place of the elected officials, without a basis in law. Any decision by a government entity can be overturned by the Supreme Court even if it is completely legal, simply because the judge disagrees with the decision itself. The absurdity is demonstrated when the opinion of a Tel Aviv district judge outweighs the Interior Ministry’s immigration policy, acting according to the law. The Court has a very important role – to provide a remedy where the state acts illegally, without authorization, through illegitimate considerations or discriminatorily. However, the Court was never authorized to replace the judgement of other government bodies. There is no reason to assume that its judgement is more correct.
As a result of the adoption of the reasonableness grounds, legal advisors have given themselves the power as well to interfere in the judgement of the elected officials.
Who decides what is right? Who decides what is good? Who decides the proper balance between different considerations? Why is the judge’s discretion better than that of a minister? A situation in which judges bypass the public’s decisions and place themselves and their positions above those of the legally authorized entities is a problematic situation that does not reflect the rule of law.
The reform proposes to abolish the reasonableness grounds, so that judges will not be able to substitute their discretion for that of the legally appointed decision makers.
Such an ambiguous legal ground harms legal certainty and leads to inconsistent rulings. When there are no clear rules, the public’s trust in the Court is violated and declines. This is the true danger to democracy. This is the reason why the reform proposes to abolish the reasonableness grounds.
It is important to state that the Court will continue to carry out its important role, to supervise the government and to review it by means of recognized rules: lack of authority, due process, illegitimate considerations, conflicts of interest, violating of rights, discrimination and meeting clear legal standards.
The Court will continue to fulfill its important role – protecting the citizens and the public from illegal government actions. The Court will continue to use, when justified, administrative review grounds of lack of authority, due process, illegitimate considerations, conflicts of interest, violating of rights, discrimination and meeting clear legal standards. However, the Court cannot be allowed to replace the discretion of the legally authorized branches, without any legal basis. The use of the reasonableness grounds damages, directly and indirectly, the public interest, legal certainty and human rights.
On the contrary. The public’s trust in the Court is tanking, in part due to the exercise of judicial power without a legal basis. Reasonableness’ legal twilight zone dramatically increases the influence of biases, prejudices, misunderstandings and various illegitimate considerations. The abolishment of reasonableness grounds will free the Court to review procedural flaws or lack of authority instead of serving as an alternative policy-making forum that invites anyone displeased with any decision to turn to it.
Does the Attorney General’s legal counsel advise or bind? This questions lays at the basis of this important clause. Is this a struggle over rule of law, or over rule and power? Does the entity responsible for managing the state have the authority to set the agenda?
The reform seeks to return the State of Israel to the system practiced in every democratic country: the Attorney General’s legal counsel advises, but doesn’t decide. Everybody is subject to the law – including the citizens, the ministers and the legal advisors. The reform seeks to subject the government to the law, and not to the personal position of the Attorney General.
Can the government act otherwise than the legal advisors’ position? Who represents the government before the Court? In the case of a disagreement between the minister and the legal advisor – who represents the minister in Court?
In Israel, there is no law that regulates the powers of the legal advisors. In several Supreme Court rulings, there were attempts to establish that the advisor’s legal counsel is binding. This is despite the clear conclusions of two State Committee Reports that deal with this issue: the Agranat Committee Report (1962), which was adopted by a government decision, and the Shamgar Committee Report (2000). Both reports concluded that the government can veer from the Attorney General’s counsel when the government does not accept his position. Review of the legality of the government’s actions is meant to be undertaken by the Court and not the advisor.
The Attorney General has extreme power today, and their counsel is not advice or a legal opinion, but rather a binding decision. All government decisions or proposed legislation require the legal advisors’ approval. The advisors examine whether the decision or proposal will stand in Court, whether they are balanced, and the advisors finally decide upon their fate. They examine all government decisions as to whether they are “reasonable”, and not only if they are legal. They can prevent legislation or decisions, void laws of content or shoot down policy. Of course, this is without the legal advisors being given any legal authorization for this.
The Attorney General also holds a monopoly on representing the state before the Court. Periodically, they present positions contrary to the government’s position – in the government’s name! This is a complete distortion. The Israeli government is forced into situation in which it cannot present its authentic position to the Court, since it is restrained by the legal advisors. There is no democratic country in the world in which the legal advisors as an institution have both a monopoly on representation and binding counsel.
Take for example government bills. The Attorney General or their deputy can even prevent bringing a government bill for discussion (!) in the government. This means that the legal advisors can not only prevent voting, but even discussion. This is an Attorney General directive from 2018.
In practice, the Attorney General doesn’t represent the government in the Supreme Court, but rather the Supreme Court in the government.
Instead of serving the government, the government advisors have over the years become oppositional. Instead of assisting the government to quickly and efficiently execute its policies, they have become, often, a hindrance and a roadblock. Instead of advising according to the law, they advise increasingly according to proportionality or reasonableness, meaning according to their personal values. This situation has no parallel in any other recognized democracy.
The advisors serve also as legislators and issue written directives to ministers. For example, the Attorney General dictated to the Interior Minister not to strip terrorists of their residency status without giving them full social benefits, in complete contradiction to the legislator’s intent. The Attorney General also issued “standards” that dramatically limited the possibility to strip terrorists of their residency status, without any legal basis or authorization to legislate these standards. These standards set, for example, the government must take into account the terrorists’ age, his seniority in the organization, the number of casualties and the severity of the injury. Is it impossible to strip a twenty-year-old terrorist of his status over an attempted major attack simply because the Attorney General decided that they are the super-legislator? It is necessary to check the Attorney General’s activism.
First, the reform proposes to enshrine the position of the advisor in law, which is not the case today. The reform seeks to set clear rules of the game and create order in the current chaos.
Second, the reform establishes that the advisor, as his name implies, is indeed an advisor. The reform itself isn’t a novelty. It rather returns to the position of the Shamgar and Agranat Commissions, which held that the government can act in opposition to the counsel of the Attorney General. If the government’s decision is challenged in court, the judges will review the decision, the claims and the legal situation, and rule according to the law.
The situation in which the legal advisor has a veto over appointments and policy is an unhealthy situation. The advisor’s task is to assist the elected officials, the minister, to execute their polices in the context of the law.
The purpose of the reform is to establish two things:
This question demonstrates a lack of understanding. The reform does not deal with the Attorney General’s criminal authority. Indictments will continue to be filed and the police will continue to investigate public corruption. In appropriate cases, the advisor will warn the minister that in his opinion the minister’s actions are a criminal offense.