The United Nations’ Warning about Undermining the Independence of the Judiciary
The UN report paints a disturbing picture in which countries experience “autocratization”—an erosion of the foundations of democracy—through actions that undermine the judicial system’s independence. In Israel, the current government is aiming to undermine judicial independence in order to consolidate its power and authority at the expense of individual rights and the rule of law.
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What do the following actions have in common? Israel's Minister of Justice Yariv Levin blocks the appointment of a permanent president of the Supreme Court—this is his way of evading the view of the majority on the Judicial Selection Committee, which favors the selection, as usual, according to the principle of seniority. The Government’s representative on the Committee blocks the promotion of a judge because her rulings are “not nationalistic enough.” A member of Knesset in the coalition calls for the removal of a judge who ruled in favor of persons arrested in an anti-Government demonstration. The coalition advances a bill that would transfer to the Knesset the power to appoint the Judiciary Ombudsman.
The answer comes from the United Nations. The UN Special Rapporteur on the Independence of Judges and Lawyers, Prof. Margaret Satterthwaite, recently published a report that warns against assaults on judicial independence all over the world. In her new report she mentions Israel once or twice. The truth, however, is that the entire document should serve as a major red flag, calling on Israeli authorities and the public to wake up.
The Special Rapporteur cautions against actions that may indicate a political capture of the courts. Her first example is legislation that increases the direct involvement of the executive branch or legislative branch in the appointment of judges, and especially a “law or policy” that modifies the rules for the selection of judges in a way that increases the possibility of basing it on their perceived political affiliation and that reduces the role of objective and professional criteria. There is no doubt that the Levin-Rothman judicial overhaul agenda, which has been sidetracked for now, falls into this category. So does the Justice Minister’s conduct of recent months, during which he has allowed the Judicial Selection Committee to discuss nominations for judicial posts only with unanimous consent, which guarantees that no one will be appointed or promoted if the Government’s representative on the Committee deems the candidate insufficiently “nationalist.” Echoing the situation in Israel, the UN report observes that the judiciary may be captured even when there are no new appointments to the bench, if the State increases its control over the ways in which senior judicial offices are filled, such as the president of the Supreme Court. Lest we forget that the Minister of Justice wishes to discard the seniority principle when it comes to the president of the Supreme Court.
The Special Rapporteur writes that politicians may work to diminish the judiciary’s ability to safeguard the rule of law—by means of initiatives that curtail the Court’s power of judicial review of legislation, that enable politicians to override such a ruling (in our case, the Override Clause), or that limit judicial review of Government actions (in our case, the elimination of the reasonableness standard that was annulled by the Court).
According to the report, the government may also be increasing its influence on the judiciary by misusing disciplinary measures in order to punish or intimidate judges. Lest we forget the Government’s drive to gain political control of the Courts’ Ombudsman. Such cases, writes the Rapporteur, constitute a threat to democracy and the rule of law. She also notes that when Government actors verbally assault judges, they undermine judicial independence; for instance, when a minister denounces a judge who released persons arrested in an anti-Government demonstration as a “domestic enemy” (here she refers explicitly to Israel).
One could go on, but the picture is clear. The UN report paints a disturbing picture in which countries experience “autocratization”—an erosion of the foundations of democracy—through actions that undermine the judicial system’s independence. Although each specific action can and should be addressed on its own, the overall picture in Israel is that the current Government is aiming to undermine judicial independence in order to consolidate its power and authority at the expense of individual rights and the rule of law. There is no doubt that this is what the Government was trying to do through its “judicial overhaul” before October 7. It is essential that we recognize that such efforts are still taking place today.