Despite controversy, changes to the Judicial Selection Committee, must be made with broad consensus - and not by slimmest of majorities.
Information leaked from the coalition negotiations, as well as the political platforms of elected officials from the Right, indicate that a substantial change to the system for judicial appointments is now on the agenda. Currently, judges are chosen by the Judicial Selection Committee, which comprises five members from the legal profession (three judges and two representatives of the Israel Bar Association) and four members who are elected representatives (two ministers and two members of Knesset). It appears that the incoming coalition will seek to change this arrangement by giving politicians—and particularly, representatives of the governing coalition—the deciding vote on selecting judges. As can be seen in the platform of the Religious Zionism party, for example, the intention is to implement this change not only for the appointment of Supreme Court justices, but rather- for all judges in all courts, and would also include dismissal of judges as well as their appointment (as the Committee also has the authority to dismiss judges).
If this intention comes to fruition this will be the first substantive change to the procedure for appointing judges since the formation of the Judicial Selection Committee in 1953. While specific minor adjustments to the current system may be called for, I believe that its underlying principles are sound, and that it would be a mistake to stray from them.
What can be learned from the way in which the current system was adopted, some 70 years ago, about the limits of the legitimacy of the proposed change? In 1953, the government and the Knesset relinquished their power to select judges. Until then, judges were appointed by the government on the basis of recommendations from the Minister of Justice, while Supreme Court justices were appointed by the government and ratified by the Knesset. But as MK Yaakov Shimshon Shapira (Mapai) made clear during the Knesset’s deliberations: “The government has acted wisely by taking not the path of lusting for power, but rather-the path of building the state… The government, of its own good will, has relinquished the powers it currently holds.”
At the time, there was controversy on the details of the arrangement, but the general principle behind it, enjoyed broad consensus among politicians of all stripes: that is, the need to ensure judges' independence by means of a Judicial Selection Committee. The Committee was seen as the appropriate tool for neutralizing the influence of party-political interests that until then had been involved in the process of judicial appointments. Consequently, the basic model for the Judicial Selection Committee, which includes both elected officials and legal professionals, won the support of almost all parties and legal professionals.
Even those who disagreed with the composition of the Committee as it was eventually decided upon, such as opposition MK Menachem Begin (Herut), did so because they-in fact- wanted to increase the number of professional representatives on the Committee, rather than political representatives, in order to “take an extra step toward the independence of the Committee.” Or as MK Eliezer Shustak (Herut) explained: “We propose … an appointments committee of a kind that will provide a sense of security and clear knowledge to all the country’s citizens that the ruling party does not hold the ruling power within the appointments committee.”
The arrangement adopted was considered at the time to be of a constitutional nature. Thus, efforts were made to secure broad support for it in the Knesset. Indeed, the arrangement we have today was the outcome of agreements thrashed out in discussions among the leadership of the coalition, which numbered 87 MKs, and in the Knesset Constitution Committee, and was understood by the opposition and government parties to be a "compromise". This compromise resulted from the opposition and some members of the coalition relinquishing their ambition to further increase the representation of legal professionals in the committee, relative to the representation of political officials; and the government forgoing components of the appointments process that were designed to give the Minister of Justice greater control over the process.
The incoming coalition would do well to learn from the elected representatives of that time. First, its proposed changes would do serious harm to the independence of the judicial branch, if it takes the path of “lusting for power” by granting control of the Judicial Selection Committee to the ruling party, coalition, or government. Second, while the Knesset has the authority to change the procedures for appointing judges with even a small majority, in order to gain full legitimacy, any changes to the constitutional arrangements in this area should be made only on the basis of broad consensus among the public at large and in the Knesset, including opposition factions.
The article was published in the Jerusalem Post.