A Chief Justice Under Attack

While the selection of Justice Amit as President of the Supreme Court was done in accordance with the relevant legislation, the Justice Minister has declared the procedure "fundamentally improper and illegal." His refusal to recognize the selection creates a precedent that may lead to the deterioration of the authority of other institutions. This is what the beginning of a constitutional crisis looks like.

Justice Isaac Amit. Photo by: Chaim Goldberg/Flash90

Had these been normal times, then Justice Isaac Amit would have been appointed president (comparable to Chief Justice) of the Supreme Court on October 16, 2023, when the previous president Justice Hayut retired—in accordance with the principle of seniority, which has been the basis for the appointment of every president of the Supreme Court since the establishment of the State of Israel.

In normal times, the Supreme Court would not be operating with just 12 justices instead of the full complement of 15, with all the ensuing consequences.

In normal times, the Justice Minister would not be paralyzing the judicial system, using all the means at his disposal. He would help appoint judges to the lower courts so that Israel’s citizens receive better service, appoint someone to the vacant post of ombudsman of the judiciary (which investigates claims of misconduct by judges), and of course, protect the judicial system and its independence.

But these are not normal times.

These are times in which the justice minister has, for 15 months, refused to accept the simple fact that he does not have a majority in the Judicial Selection Committee to appoint his preferred candidates; times in which every possible trick has been used to delay and prevent the appointment of Justice Amit.

These are times in which it required an order from the High Court of Justice for the Committee to be convened, and another order to force the Minister to bring the appointment of a president to a vote.

These are times in which a judicial order is required to force the Minister to act in accordance with the law.

These are times in which Minister Levin decided not to participate in the Judicial Selection Committee discussion and vote, along with the two other representatives of the coalition, Minister Orit Strook and MK Yitzhak Kreuzer.

But even if three Committee members “boycott the discussion,” then according to the law and to Supreme Court rulings, it is still possible for the Committee to vote and to appoint judges. Yes—it is entirely legal to discuss and vote on the candidacy of Justice Amit for the Supreme Court presidency, even if three Committee members decided to boycott the meeting.

The majority required to pass such a decision is the majority of participants in the vote, as per section 7(c)(1) of the Courts Law: “The Committee’s recommendation for the appointment of a judge will be in accordance with the majority of its members who participate in the vote.”

In Regev v. Minister of Justice (2020), the Supreme Court heard an appeal against decisions made in a meeting of the Judicial Selection Committee that was held with the participation of only six of the nine Committee members. The Court ruled that:

“The majority of the Committee members took part in the decision—six out of the nine serving members—while in the current matter, the other members who were absent from the meeting decided to ‘boycott the Committee meeting…’ Therefore, since all the Committee members who participated in the meeting and took part in the vote on candidates… the condition of section 7(c)(1) of the Courts Law was fulfilled.”

And despite the fact that everything was done as per the relevant legislation and in accordance with case law, after the appointment of Justice Amit as President of the Supreme Court,  the justice minister announced that he does not recognize “the Honorable Justice Yitzhak Amit as president of the Supreme Court, and the procedures by which he was ‘selected’ were fundamentally improper and illegal.”

It would seem that the Minister knows very well that this procedure was perfectly legal—for example, that the composition of the Judicial Selection Committee is legal and that the Committee members, including two members of the Israel Bar Association and MK Karine Elharrar, were democratically elected to it.

And it would seem that the Minister knows that the correct place to ask questions about what he refers to as a “heavy cloud” hanging over Justice Amit (which coincidentally appeared with perfect timing) is in fact the Judicial Selection Committee. As per the ruling of the courts in Israel: “The body authorized to discuss reservations about candidates for the presidency of the Supreme Court is the Judicial Selection Committee… The Minister should submit his request to the Committee, not to us…”

And it would seem that the minister knows that if he truly thinks that the procedure was illegal and fundamentally improper, then this is a claim that should be heard in court, while he himself, as justice minister, is not authorized to rule on what is or is not legal.

Instead, the Minister chose to announce that he “does not recognize” the appointed president. This is a statement whose significance lies mainly in the public sphere, rather than the legal sphere.

Regular citizens might now ask themselves: On what basis should I comply with the rulings of the courts? Can I also say that I “do not recognize” the authority of the judge, or police officer, or minister?

If you were wondering, this is exactly what systemic undermining of the judicial system looks like.

Despite the travails of the war, the hostages in Gaza yet to be released, the very real need for a cooperative effort to rebuild and repair Israel and Israeli society, it would seem that what most interests the justice minister and some of his colleagues in the coalition is another battle—a battle against the rule of law, against the judicial system and its independence.

In normal times, and in a normal country, the use of such rhetoric would be considered extremely unreasonable. Is it permissible from now on to say that we do not recognize the authority of the Justice Minister to serve as minister, or the authority of members of Knesset to pass laws, or the authority of properly elected officials to perform their duties? This is what the beginning of a constitutional crisis looks like. It’s not too late to come to our senses.

This column was published in the Times of Israel.