The method is not binding and has only been put into operation once. But Canada's former justice minister, MP Irwin Cotler of Quebec, believes that Israel could - and perhaps should - apply the new method for selecting judges that he initiated during his 20 months in office.
After addressing the Israel Bar Association Conference in Eilat on Monday, Cotler spoke with The Jerusalem Post about the four-step process of selecting judges, which he said was based on a high level of transparency.
The Canadian Supreme Court consists of nine justices appointed according to a geographical quota - three from Quebec, three from Ontario, two from west of the country and one from the Maritime provinces. When a justice steps down, his replacement must be chosen from the same region.
In the first stage of Cotler's appointment system, he published a list of leading legal figures with whom he said he would consult before recommending a list of between five and eight candidates for the vacancy. These figures included the chief justice of the Supreme Court, the head of the Bar Association, and the attorney-general and deans of law faculties in the province or area from which the candidates hailed. The list of consultants was made public.
Cotler also published ads in newspapers to encourage organizations and other interested groups or individuals to suggest candidates who met a set of minimum personal and professional qualifications. These criteria were also made public.
In the second stage, Cotler appointed a nine-member advisory committee to whittle down the choice of candidates to three. The committee consisted of four members of parliament, representing each of the four major parties, a retired judge, the head of the provincial Bar, the provincial state attorney and two well-known public figures who were not lawyers.
The committee consulted with judicial experts of its own choice, and was permitted to recommend additional candidates for Cotler's consideration. At the end of the process, the committee recommended three of the seven original candidates.
In the third stage, Cotler conducted another round of talks concerning the three remaining candidates with the leading legal figures on his list. He then chose his candidate for the job.
Before Cotler could make his candidate's name public, his party lost an election. His successor accepted Cotler's recommendation and presented the nominee to the public and to the parliamentary law committee, for what was essentially a courtesy visit. The meeting, which lasted three hours, was broadcast live on television.
The nominee, a Manitoba judge named Marshal Rothstein, was then presented to the cabinet, whose job it was to officially elect him.
In the Israeli system, there is virtually no transparency. Candidates for the Supreme Court are either recommended by three members of the Judges' Selection Committee, the minister of justice or the president of the Supreme Court. Nothing of the internal procedures is officially published until three weeks before the Judges' Selection Committee meets, when the government Gazette publishes the names of the final candidates.
The selection committee consists of two MKs, two cabinet ministers, three Supreme Court justices and two members of the Israel Bar. Its deliberations are secret and its members are not obliged to account for its choice. Many critics say the system is unfair because a majority of the committee is not elected by the public (five out of nine) and because it allegedly give the Supreme Court a disproportionate share of power.
Cotler said he began the search for a new Canadian Supreme Court justice in August 2005. It continued for three-and-a-half months, until new elections were declared. By that time, Cotler had completed the first two stages and was ready to pick his nominee. The process resumed immediately after the new government was formed.
Cotler emphasized the importance of the Charter of Rights and Freedoms, Canada's written constitution, saying it had transformed the nature of the nation's government from a parliamentary to a constitutional democracy as well as making a deep impact on the role and responsibilities of the justice minister.
The justice minister, who also serves as attorney-general, must certify in writing that every proposed law and policy is in keeping with the charter, must promote compliance with the obligations of international law, which is defined as a "relative and persuasive authority" in the interpretation of the charter, and must promote awareness of the charter.
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