Judicial-Land

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 atmosphere.

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.

With the 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 courts.

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.

When the 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.

Like the Knesset, the government is occasionally prevented from taking action because its own legal adviser cautions against risking an adverse ruling.

Working 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 and democratic.

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 Court.

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.