One of the basic principles of democracy is that no branch of government can
choose itself. In Israel, the people choose the Knesset. The Knesset votes for
the government. However, Israeli judges elect themselves through the Judicial
Selection Committee. This must change.
The Judicial Selection Committee is
a holdover from the Mapai days when Israel was governed by backroom deals. Like
many exclusive clubs, the process is tainted by secrecy and control. Judges are
selected by nine people, three of whom are justices of the Supreme Court. The
committee sits in a small room. The deliberations are secret. There are no
published minutes or records of the meeting.
The backgrounds of the
candidates are often unknown, and the results of the votes are not announced.
Not surprisingly, inside the room there is often a shuk-like
These same rules even apply for the selection of justices for
the Supreme Court. However, for the Supreme Court, the prospective justice must
receive a supermajority: seven of the nine votes. This gives the three Supreme
Court justices on the committee enormous political leverage.
committee only choosing one type of judge, the Israeli people get a single
result. And, since the court system is relatively closed, it is often in
confrontation with an Israeli society that is more Jewish, more Zionist, more
tolerant, less authoritarian and more open to new ideas than the
The Supreme Court in particular often oversteps its boundaries,
foraying into politics, culture and ideology.
Since the justices do not
stand for election, they have no reason to restrain themselves. For example, in
many rulings concerning the security fence, the Supreme Court used principles of
human rights to advance Palestinian claims over land and olives trees rather
than protecting the Israeli human right to basic security.
Supreme Court cancels Knesset laws “left and left,” the people are marginalized.
The Knesset has its figurative hands tied behind its back, and often initiatives
are stopped due to concern that the Supreme Court will cancel the law. A
weakened Knesset has less control over the bureaucracy, opening the door for
powerful individuals and groups to secure advantages for themselves.
the Knesset, the government is occasionally prevented from taking action because
its own legal adviser cautions against risking an adverse ruling.
with other members of the Knesset, I have proposed several changes to the
administration of the Judicial Selection Committee to make the process more open
First, there should only be one justice from the Supreme
Court sitting on the committee, and the two vacancies should be filled by
individuals representing the Israeli people, whether Knesset members, ministers
or lay persons. Second, the meetings should be open to the public, just like any
other Knesset meeting, and the candidates should be announced, along with the
vote tally. Third, there should be a published protocol of the meetings. Fourth,
there should be no supermajority required for confirmation to the Supreme
To cynics who say that nothing can be done, I point to two
important bills which I initiated in this Knesset. The “Bishara Law,” which
canceled pension money and benefits to an MK suspected of helping Hezbollah, was
also deemed “impossible” to pass. The Knesset approved it. The Referendum Law,
which requires a supermajority in the Knesset or a referendum by the people
before the government can surrender land, was also something that supposedly had
“no chance.” It passed with 65 votes.
Israel needs a strong Supreme Court,
but not one that usurps the power of the people, the government, or the Knesset.
The Knesset must have the ability to do its job: to represent the people of
Israel. The government must be able to administer the state. The judiciary must
rule on cases and controversies, not make policy decisions. And, the people must
direct the course of Israeli democracy.
Making decisive changes to the
Judicial Selection Committee will strengthen Israeli democracy by removing a
legacy of the days when Israel was ruled by committee.
The writer is
chairman of the Knesset House Committee and a Likud MK.