Explainer: Appointment of the President of the Supreme Court
How is the Chief Justice in Israel selected, what is the principle of seniority and how does this compare internationally? Dr. Guy Lurie explains the roles and responsibilities of the Chief Justice, an issue that is currently at the heart of a dispute between the Minister of Justice and the Courts.
Justice Uzi Fogelman, Acting Chief Justice, President Herzog and Minister of Justice Yariv Levin. Photo by: Chaim Goldberg/Flash90
The Legal Framework
According to the law, the President of the Supreme Court—a role comparable to that of Chief Justice—is appointed by the President of Israel, following a selection by the Judicial Selection Committee. The term of office is set by law for seven years, and the President cannot be reappointed for an additional term. The law also stipulates that the President must be appointed from among the sitting justices of the Supreme Court. [1]
In practice, though not mandated by law, Presidents of the Supreme Court are appointed according to the seniority principle. This means that the Judicial Selection Committee chooses the most senior justice, namely, the one longest serving on the Supreme Court, for the position. The seniority principle is also applied in other legal and customary arrangements of the judiciary (for example, the principle of seniority is codified in the Courts Law concerning the appointment of an acting President of the Supreme Court if both the President and their deputy are unable to fulfill the role, as well as in determining the identity of the presiding justice in the absence of the President or their deputy)[2]. The seniority principle is a long-standing tradition within the judiciary and has been practiced for decades. All Presidents of the Supreme Court-appointed to date have been the most senior among the justices of the Supreme Court.
Arguments support the idea that the seniority principle constitutes a “constitutional convention,” meaning it is not just a practice but a rule with independent legal validity[3]. However, the Supreme Court has not yet decided whether the doctrine of constitutional convention holds legal validity in Israeli law. [4]
The seniority principle in selecting the President of the Supreme Court is primarily intended to maintain the independence of the Supreme Court justices. The Judicial Selection Committee is made up of political, professional, and judicial members. The President is, as noted, appointed from among the sitting justices of the Supreme Court, and selection by seniority is designed to prevent competition among the justices for this position and to eliminate any incentive for justices to curry favor with the government or other members of the Judicial Selection Committee. This principle also aims to prevent internal tensions among Supreme Court Justices. Selecting the most senior justices also ensures that the justice with the deepest experience and knowledge of the judiciary and legal system will be appointed as President.
In addition to protecting the independence of the Supreme Court justices, the seniority principle is also intended to safeguard the independence of judges in other courts.
Abandoning the seniority principle would give the government a decisive influence in the appointment of the President of the Supreme Court and allow it to exert undue influence over other courts by affecting the powers vested in the President of the Supreme Court concerning judicial careers (such as the selection, promotion, suspension, and removal of judges) and other areas of judicial administration. The judiciary in Israel does not enjoy full institutional independence due to the executive branch's influence over its management, making the role and appointment process of the President of the Supreme Court a balancing factor. Disregarding the seniority principle could disrupt this balance (see further discussion below) [5].
Particularly in democracies at risk of democratic regression, like Israel, it is crucial to remain vigilant against government "capture" of the judiciary, which undermines its independence. One of the methods used by governments in backsliding democracies to take over the judiciary is altering the rules to give them control over the appointment of court presidents.[6] Examples of this can be seen in the changes made in Hungary and Poland during their periods of democratic regression and the harm to judicial independence. In Hungary, the President of the Constitutional Court is no longer elected by the court's justices, as was the case previously, but by the parliament, which allows the appointment of a politically “reliable” person.[7]
Similarly, in Poland, a President of the Constitutional Court favored by the ruling party was appointed through temporary legislation to circumvent the established legal mechanism that required judicial recommendation for such appointments. This President then formed convenient judicial panels for the former ruling party and dismissed judges at the request of the former Justice Minister.[8] The experiences of these countries serve as a warning sign for a country like Israel. Hence, there is a danger of abandoning the seniority principle.
Opponents of the seniority principle have previously argued that it is exceptional from a comparative perspective. While the seniority principle is not the most common arrangement for selecting presidents of high courts globally, recent comparative studies refute the claim that the Israeli arrangement is unique.[9] According to these studies, several countries have either a legal or customary status (similar to Israel) for the seniority principle in selecting the president of a higher court (such as in India, Italy, or some states in the United States). The studies also highlight other methods countries employ to prevent or mitigate government influence in selecting the president of the high court, such as having the president elected by the judges of the court themselves.
Furthermore, it is clear that the method of selecting the President of the Supreme Court should be seen against the bigger picture of the checks and balances inherent in the system of government, and the importance of ensuring judicial independence. Unlike other systems of government, which incorporate institutional arrangements to moderate the powers of the government and the ruling coalition (such as a bicameral legislature, regional elections, a federal system, or a presidential system), in Israel, judicial review is almost the only institutional check on the power of the government and the coalition.[10] Therefore, in the Israeli system, with a unicameral parliament, single national electoral district, and no separation between the executive and legislative branches, it is especially crucial to protect the independence of the judiciary.
Consideration should also be given to other arrangements that determine the degree of judicial independence from the other branches of government. Unlike in other countries, Israel lacks constitutional entrenchment of arrangements that guarantee the independent status of judges, such as their tenure, retirement age, and the methods of their appointment and removal.
The method of appointing the Supreme Court president should be shaped by the president's roles and powers and how the judiciary is governed.
Judicial governance in Israel includes regulatory areas under the exclusive authority of the Knesset (such as the judiciary's budget or the determination of criminal procedure) or the Minister of Justice (such as establishing courts or enacting civil procedure regulations). Other areas of court and judicial management are within the purview of the President of the Supreme Court, sometimes exclusively and sometimes in collaboration with the Minister of Justice or by virtue of the president's position on the Judicial Selection Committee. In practice, the governance model of the judiciary in Israel balances the Minister of Justice's control over judicial administration by granting roles and powers to the President of the Supreme Court. This balance is based on a principle of separation or distance, and independence, between the president and the minister, allowing the president to check the minister's power and thereby maintain the judiciary's independence.
The roles of the President of the Supreme Court can be divided into four main categories: [11]
- Judicial Powers – The President of the Supreme Court has judicial powers in various proceedings, such as appeals regarding a judge's disqualification, decisions to hold a retrial, or any judicial authority granted to the "chief justice during the British Mandate period."
- Management of the Supreme Court – Like the president of any other court, the President is responsible for managing his court. This includes the authority to allocate cases (to judges and panels) and set hearing dates, determining which cases should be heard by expanded panels, and similar matters. Currently, case panels are generally chosen randomly by the court's scheduling system, except in exceptional cases, such as extensive proceedings, complex legal questions with significant implications, or issues of special public importance. [12] The authority to determine panels (and the authority to expand them) is of considerable importance, especially in matters of constitutional significance. Any executive influence over such decisions could be perceived as an infringement on judicial independence.[13]
- Judicial Governance – The President of the Supreme Court plays a central role in managing the entire judiciary, known today as "judicial governance." [14] As mentioned above, the powers of the Minister of Justice in the courts' administration are often balanced by the roles and powers of the President of the Supreme Court to protect judicial independence. Among the president's essential roles in these areas are:
A. Judicial Career – Involvement in the selection and promotion of judges: the president is a member of the Judicial Selection Committee and may propose candidates; plays a significant rolein promoting magistrate court judges (using recommendations from a committee established for this purpose, called the "Committee of Two"); their consent is required for various appointments in the judiciary, such as the appointment of court presidents; their approval is also necessary for transferring a judge from one location to another or allowing a judge to engage in an additional occupation; and more.
B. Discipline and Ethics – Including involvement in removing judges from office: the president has roles in judicial ethics and discipline, sometimes with the consent of the Minister of Justice (such as nominating a candidate for the position of the Ombudsman of the Judiciary) and sometimes independently or according to the decision or with the consent of the Supreme Court justices (such as determining the composition of the Judicial Disciplinary Court, suspending a judge under criminal investigation, or setting rules of ethics).
C. Court Administration and Judicial Performance – The Minister of Justice, the Ministry of Finance, and the Civil Service Commission have roles in the administrative management of the judiciary.[15] For example, by law, the Minister of Justice determines the administrative arrangements in the courts, and the Director of the Courts is accountable to the Minister. However, both by law and by custom and practice, the President of the Supreme Court oversees many aspects of court administration and the daily management of the judicial workforce: the Director of the Courts is appointed by the Minister of Justice with the consent of the President of the Supreme Court, and, in many respects, the director is also subordinate to the president; the president issues administrative guidelines for judges and courts; the president oversees the daily functioning of judges (e.g., backlogs in work); and more.[16]
4. Leader of the Judiciary– The President of the Supreme Court is the head of the judiciary. As recently ruled by the court, the president "is entrusted with charting the judiciary's course and policy, both within the judiciary and towards other branches of government."[17] Several years ago, it was also ruled that the president is "the institutional leader" and "the public leader of the system, its representative and spokesperson, and is responsible for safeguarding its judicial independence; internally, the president is, in practice, responsible for its proper daily functioning."[18] In other words, the president is responsible for the functioning of the judiciary, represents it externally, and defends its status and independence. Additionally, the president appoints judges and other officials to roles outside the judiciary that require a degree of distance or independence from the executive or legislative branches (e.g., members of a state commission of inquiry or a retired Supreme Court justice to chair the public committee for selecting a legal advisor to the Knesset).
In conclusion, the President of the Supreme Court plays a significant role in managing the judiciary. This role, through the president's distance from and independence from the government, helps maintain the independence of the judges despite the executive's deep involvement in this area. For this reason, it is essential to preserve the independence of the President of the Supreme Court through the seniority principle.
[1] Article 8 of the Courts Law [Consolidated Version], 1984
[2] Articles 28 and 29(b) of the Courts Law. The principle of seniority is not foreign to Israeli law, even outside the judicial authority, and is practiced in other arrangements as well. For example, until a new Speaker of the Knesset is elected, if the outgoing Speaker has not been re-elected as a member of the Knesset, the longest serving Knesset member serves as the Speaker of the Knesset. See Article 20(a) of Basic Law: The Knesset.
[3] Suzie Navot, “The Seniority System as a Constitutional Convention,” ICON-S-IL Blog (January 16, 2018).
[4] High Court of Justice (HCJ) 4956/20 Movement for Quality Government in Israel v. The Knesset of Israel (Decision dated August 20, 2020).
[5] Guy Lurie, "The 'Seniority' System and (Lack of) Managerial Independence of the Judiciary," ICON-S-IL Blog (August 29, 2017).
[6] The Special Rapporteur on the Independence of Judges and Lawyers*, "Safeguarding the Independence of Judicial Systems in the Face of Contemporary Challenges to Democracy," (Report of the Special Rapporteur, Human Rights Council, April 9, 2024).
[7] Attila Vincze, "Schrödinger’s Judiciary—Formality at the Service of Informality in Hungary," 24(8) German Law Journal 1432 (2023).
[8] Oded Ron, in collaboration with Mordechai Kremnitzer and Yuval Shany, Democracies in Crisis (August 2020).
[9] Margit Cohen, "Appointment of Presidents of High Courts Based on the Seniority Rule in Democratic States – A Comparative Study," (Position Paper No. 47, Forum of Lecturers for Democracy, June 5, 2023). Yeal Sirkis under the guidance of Bell Yosef, "Appointment of the Highest Court's President – Comparative Overview" (Tachlith Institute, May 2023).
[10] Amichai Cohen, The Override Clause: Checks and Balances between Political Institutions and the Judiciary (2018).
[11] See: Guy Lurie, "The Attempt to Capture the Courts in Israel," 56(3) Israel Law Review 456 (2023).
[12] See: Response from the Freedom of Information Unit in the Judiciary to the author (December 12, 2022). In practice, the number of such exceptional cases is minimal. For example, from January 2020 to September 2022, the President of the Supreme Court deviated from the random allocation in 19 out of 7,986 cases opened during that period. See: Chen Maanit, “Hayut Selected the Judges in 19 out of 7,096 Cases in the Supreme Court,” Haaretz (October 2, 2022).
[13] For example, in Canada: Valente v. The Queen, [1985] 2 S.C.R. 673.
[14] For further reading on this concept, see: Pablo Castillo-Ortiz, Judicial Governance and Democracy in Europe (2023).
[15] Guy Lurie, supervised by Mordechai Kremnitzer, Safeguarding Justice: Reforms in the Judiciary and the Prosecution (2011)
[16] HCJ 4703/14 Sharon v. President of the Supreme Court (Israel Supreme Court, November 30, 2014).
HCJ 3451/24 Movement for Governance and Democracy v. Ministry of Justice –Administration of Courts (Israel Supreme Court, August 1, 2024).
[17] HCJ 1711/24 Movement for Quality Government in Israel v. Minister of Justice (Israel Supreme Court, September 8, 2024).
[18] HCJ 4703/14 Sharon v. President of the Supreme Court (Israel Supreme Court, November 30, 2014).