A just debate

Each time a reform of how justices are chosen for the Supreme Court is proposed, those who oppose it frame the argument as a war for democracy and the very foundations of the state.

Israeli Supreme Court 311 (photo credit: REUTERS/FILE)
Israeli Supreme Court 311
(photo credit: REUTERS/FILE)
Recent days have seen a heated exchange of words between opponents and advocates of reform of how justices are chosen for the Supreme Court.
MK Shelly Yacimovich, speaking at a Labor Party function, censured Prime Minister Binyamin Netanyahu for participating in a “war against the judicial system [and the]... destruction of Israel’s strongholds of democracy.”
The prime minister has since come out against the proposed reforms. However, the fact that such attempts to examine how Supreme Court justices are selected precipitated such an upbraiding of the prime minister indicates that the country has a hard time having a reasoned and responsible debate about its judicial system.
It is important that such a debate take place, and it is essential that those on opposing sides can have a rational discussion without accusations that it represents the end of democracy.
There is a widespread belief in Israel that the modus vivendi of the Supreme Court and the method by which its justices are appointed has a long pedigree, dating back to the end of the British Mandate. Therefore, critics argue, any attempt to change the process undermines the separation of powers of the legislative and judicial branches of government and harms the independence of the court.
Over time, the court has undergone several reforms.
From the Declaration of Independence in 1948 until the passage of the Judges Bill in 1952, the Supreme Court’s justices were appointed by the justice minister in conjunction with the Knesset and the cabinet. From 1952 until the passage of the Basic Law: Judiciary, justices were chosen by the president based on recommendations from a selection committee that included such oddities as having a permanent representative from the faculty of law of the Hebrew University.
Since the passage of the 1984 law, the composition of the selection committee has included three judges from the Supreme Court, two members of the Israel Bar Association, two Knesset members, a member of the cabinet and the justice minister. The theory behind its composition is that each branch of government has a member on the committee.
However, the reality is that the majority of the committee is composed of justices and members of the legal profession. It is this issue that has often led reformers to charge that the court “appoints itself.”
Mordechai Haller, writing in Azure in 1999, argued that “Israel’s Supreme Court justices are appointed by an arcane process dominated by the court itself.”
Ehud Olmert’s justice minister, Daniel Friedmann, made reforming the Supreme Court a hallmark of his tenure. The keystone of Friedmann’s reform plan was to expand the selections committee and remove one of the justices’ seats on the committee.
When Friedmann’s reform plan was announced, Supreme Court President Dorit Beinisch lashed out at them.
“These changes would bring about a politicization of the judiciary,” she warned.
This is the charge that is being made against the bill currently before the Knesset. It would mandate one of the Israel Bar Association members of the selection committee be from the governing parties, and one from the opposition parties. In affect this would give the government one more vote on the selection committee.
The argument that this politicizes the court is problematic since some of the justices themselves often have a political agenda that they couch in legal terms.
The real problem remains that after four years of attempts to reform the selections committee, the extreme rhetoric has not changed. Each time a reform is proposed, those who oppose it frame the argument as a war for democracy and the very foundations of the state. This is neither reasonable nor accurate. Israel’s Supreme Court is unique in the democratic West.
Not only does it afford itself the power as a High Court of Justice to intervene in a wide range of issues affecting Israeli citizens, it also exerts a great deal of influence over its own composition, something that is not typical of other Supreme Courts in the Western world.
There are important questions that the legislative and executive branches of government should ask about how it is composed, and those questions are democratic ones, not signs of creeping totalitarianism.