The Destruction of the Rule of Law

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The proposal to abolish the Judicial Selections Committee would lead to politicization of the judiciary, undermine judges’ independence, and shift the careful balance reached through it between the branches of government.

Like every human institution, the Israeli judiciary and public prosecution are imperfect; they definitely have flaws that should be fixed. However, the proposals being floated now, such as abolition of the Judicial Selections Committee, or giving politicians a majority among its members, or curtailing the professional independence of the Attorney General, are aimed at destruction, not repair. It is crucial to understand: the complete politicization of these institutions would mean that instead of the law reigning supreme, the politicians would be in the saddle—destroying the protections of the rule of law and human rights in Israel.

Let’s start with the Judicial Selections Committee (JSC). The proposal to abolish the Committee and transfer the power to select judges to the Government and Knesset, or to give coalition representatives a majority on the JSC, would politicize the selection of judges in Israel and undermine their professional independence. For many years the JSC, in its current format, has proved its ability to ensure that professional considerations guide the appointment of judges, while also leaving room for broader social considerations, such as to ensure that the bench reflects the composition of Israeli society. Allowing the Government total power in the selection of judges would deal a blow to the delicate balance that currently exists in the committee’s makeup and undercut judges’ independence, both of future appointments and current incumbents. What is more, the idea of giving the coalition full control of the selection of judges diverges from the trend evident all over the world in recent decades, with regard both to trial courts (the adoption of models similar to that employed in Israel, in the form of a selection council composed of representative of the different branches, on which sitting judges have major or decisive weight), and to judges on apex courts (the trend is to try to limit the power of the coalition in appointments to the higher courts). It would mean that every case would be heard by “our” judges or “their” judges, instead of by professionals.

The proposals to abolish the JSC or to give the coalition a majority on the committee are especially problematic because they ignore the broader context of the Israeli system of government. In this country, the checks on the Government’s powers are very ineffectual, given the weakness of the Knesset as an oversight body, as well as the fact that the country lacks the mechanisms found elsewhere to limit the political system, such as a constitution that is difficult to amend and a bicameral legislature. In Israel there is no entrenched constitutional anchoring of arrangements that can ensure judges’ independence, such as their tenure, retirement age, and ways to impeach and oust them. The politicization of the method for appointing judges would in this context have disastrous consequences.

Now we move over to the idea of curtailing the independence of the Attorney General. The Attorney General’s ability to safeguard the rule of law depends in part on his or her professional autonomy and on the affiliation with the civil service, rather than being subject to replacement by every new Government. But the proposal to make the Attorney General wholly dependent on the Government (for instance, in the manner of appointment and dismissal), or to eliminate the stipulation that the Attorney General’s opinion reflects the legal situation for the Government and cannot be disregarded, would weaken his or her ability to function as the guardian of the rule of law. This is extremely problematic—again because of the weakness of the checks on the Government in this country; the result could be that the Government could do as it pleased, regardless of what the law says, and there would be no one left to sound the alarm. It is true that in Israel the judiciary is the main check on the Government, but this relates only to violations of the law that affect citizens who appeal to the court for relief. This is the tip of the iceberg; most Government actions lie under the surface, with no effective way of subjecting them to judicial review. Without the Attorney General, who, applying his or her professional judgment, ensures the rule of law, illegal actions, improper appointments, and corruption could continue, without anyone being aware of the need to monitor or warn about them.

I could go on—but the picture is clear. There is no doubt that the law enforcement system can be improved. But if we destroy it, we will discover that there is no alternative system. The victims of this devastation and abolition of the protections for the rule of law in Israel would be—all of us.

The article was published in the Jerusalem Post.