We Already Know the Future of Israel’s Courts. It’s Not Good.
Rabbinical courts, where appointments are based on political loyalty, offer a cautionary model of a judicial nightmare
It is difficult to even imagine what the judicial system will look like in the coming years if the overhaul being planned by Netanyahu and Levin regarding the judicial selection process becomes a reality. Under the terms of this revolution, the Judicial Selection Committee will be expanded to include 11 members, of which a majority of seven will be representatives of the governing coalition: ministers, coalition Knesset members, and representatives of the public, appointed by the minister of justice. Furthermore, according to this plan, the President of the Supreme Court will no longer have to be chosen from the serving panel of justices. Instead, the selection committee will be empowered to appoint as president someone who is not a Supreme Court judge. In addition, the selection of judges will require just a simple majority on the committee, even for appointments to the Supreme Court, such that the coalition will be able to choose justices even without the consent of the judiciary or the opposition.
But what will actually happen after the coalition – any coalition – takes absolute control of the Judicial Selection Committee? We know that the ruling parties will ensure that their political favorites will be appointed to all courts on the basis of the judges’ loyalty to the party leaders rather than their professional suitability. Thus, the Supreme Court, and all the other courts, will cease to be institutions with a high level of professionalism and which serve as a bulwark protecting the rule of law and civil rights. We know that the coalition will be able to control the administration of the courts and the daily conduct of judges via its appointment of the president of the Supreme Court. We know that in many cases, partisan and political considerations are liable to shape the way in which judges run their courts rather than the neutrality to which they are obligated. We know that relations of mutual interest may develop between judges and politicians. But what does all this mean in practice? What will our courts look like in this new political age, and how will judges act within this new environment?
In truth, it’s not so difficult to imagine this future reality, because we already have courts like these in Israel – the rabbinical courts.
A study by Ariel Finkelstein of the Israel Democracy Institute shows that the rabbinical courts are entirely contaminated with party and political interests. Israel’s chief rabbis, the presidents of the rabbinical courts, are chosen on a political basis, and according to Finkelstein, they have a clear party identity – for example, Rabbi Yitzhak Yosef very publicly consults with the heads of the Shas party on public and political issues. The appointment of judges (dayanim) is also clearly influenced by party and sectorial identity. The study reveals how close relations between parties and senior judges lead to administrative decisions in the rabbinical courts, such as appointments of heads of courts, appointments of heads of panels of judges, and the allocation of judges to particular courts, being made under pressure and influence from party interests.
As Finkelstein shows, these flaws permeate deeply into the proceedings held in the courts. The Ombudsman for Complaints Against Judges receives complaints from the public about both regular courts and rabbinical courts. Over the last decade, the Ombudsman’s investigations have uncovered serious cases in which external players – rabbis, advisors, and political movers and shakers – routinely seek to directly influence judges’ decisions. Similarly, the Ombudsman reported that the percentage of complaints against rabbinical judges that were upheld (32.7%) was much higher than the equivalent figures for judges in other courts (ranging from 16.8% in magistrates’ courts to just 8.1% in the Supreme Court), and that it regularly received complaints against rabbinical judges for hearing arguments from one side, without giving the other side an opportunity to respond.
This is the model that Netanyahu and Levin want to replicate throughout Israel’s court system by means of their revolution. They want political, not professional, courts, which will do their bidding and allow their every whim, even at the cost of downgrading the quality of legal proceedings. But is this what we would like? Is this truly the desire of the citizens who voted for the public representatives who are now allowing the Netanyahu-Levin revolution to take place?
The article was first published in the Times of Israel.