Safeguarding Justice

Reforms in the Judiciary and the Prosecution

Policy Paper No. 90

This policy paper examines the principles that underlie the work of the Israeli judicial branch and the State Attorney's Office. It suggests systemic reforms designed to improve the function of these two authorities and to restore the public’s trust in them. The proposed reforms are based on maximal preservation of the independence of these institutions and of the principles that enable them to establish justice in the Israel. 

For many years, the role of the courts in Israel, and of the Supreme Court especially, has been the focus of  heated public debate. Rifts in Israeli society, the obvious shortcomings of the political system, and a growing tendency to turn to the courts to resolve disputes that were once settled through political or other means (the so-called "judicialization" process) place a heavy burden on the Israeli judiciary. Coupled with this, the judicial system faces an ever-growing budget deficit; the courts are unable to keep pace with their case load; and trials typically last far too long. This is the background for the frequent initiatives to streamline the Israeli justice system. It should come as little surprise that recent studies indicate that the public is losing confidence in the courts, and the Supreme Court in particular.

The Supreme Court's involvement in fundamental issues that the political system could not resolve has given rise to the claim that the Supreme Court exercises excessive judicial activism and even takes a political stand on certain issues. This argument—with which I disagree—can be seen as a reflection of the feeling that the law is not the sole consideration in rulings handed down by the Supreme Court and other Israeli courts. The disdain expressed by a considerable portion of the public threatens one of the cornerstones of the court system: public trust. In light of these sentiments and other difficulties that the Israeli courts face, it is time to institute a program of reform, one which will guarantee that the court system (and especially the Supreme Court) will gain and retain public trust.

The reform of the judicial branch will have to strike a balance between bolstering the independence of the courts and ensuring that the courts are mindful of their responsibility to the public and will operate efficiently and effectively. This can be achieved by adopting a more comprehensive viewpoint on the Israeli court system and reconsidering the arrangements to guarantee the independence of Israeli judges, including judicial tenure and the procedure for judicial appointments. These steps will ensure that the court system will win public trust and will continue to defend the rule of law, democratic values, and human rights.

This policy paper concludes that Israeli law is deficient with regard to the administration of the courts, and recommends that the courts be made more institutionally independent by transferring administrative responsibility from the Minister of Justice to the court system. Institutional independence is an important means of safeguarding judicial independence, itself a means of protecting the rule of law and democratic values.

Few countries in the world have an almost completely independent judiciary. In theory, there can be no completely independent judiciary, because—like all state institutions—the courts will always be dependent on the legislative branch. That said, in recent decades the extent of judicial independence has increased in many countries. This trend is the result of recent changes in the role of the court and substantive changes in the administration of the courts.  Following are six recommendations for reform of the judicial branch in Israel.

  1. Constitutional Framing  –  This study proposes that a Basic Law  recognize the court system as the judicial branch of Israel. In effect, the court system is already the judicial branch in the eyes of the public and the courts, but the law does not accord it this official status. Constitutional recognition would strengthen the independence of the courts and would underscore the fact that the courts bear responsibility for adjudicating in Israel under the supervision of the two other branches.
  2. Judicial Procedure –  The study proposes that the judicial branch be granted authority over judicial procedure. At present, this authority rests with the Minister of Justice, who generally consults with various legal authorities, including judges. I suggest that the judicial branch be given the authority to establish judicial procedures, with the exception of criminal procedure, which is generally legislated by the Knesset. The judicial branch itself will determine procedure for the High Court of Justice, under the sole supervision of the Knesset. Rules for civil procedure will be submitted to the Minister of Justice, who will be empowered to approve them; this arrangement will safeguard the principle of accountability.

    If it is decided that the judicial branch should have a council of judges (see below), the council will submit procedural rules to the Minister of Justice; if individuals from the various branches of government sit on the council, the council will not need to secure the approval of the Minister of Justice, and the Minister will be an ex officio member of the council. In either event, the Knesset will retain the right to oversee procedural measures.
  3. Budgetary Process – The judicial branch should be given a say in the budgetary process. Today the Ministry of Finance is responsible for the design and allocation of the courts' budget. I would recommend that the judicial branch be authorized to allocate its funds and to move money from one line item to another without having to involve the Ministry of Finance. There should, however, be ex post facto oversight. The judicial branch will be required to submit regular reports, which will serve to ensure the transparency of its allocation process, prevent faulty administrative decisions, and guarantee that the branch is accountable for its budget vis-à-vis the government and the Knesset. I would also recommend that the judicial branch  propose its own budget, and that the government include this proposal when submitting the overall budget to the Knesset. The government and the Knesset would be able to make changes to the judicial budget, in consultation with the judicial branch, with the exception of the Supreme Court budget. In the event that a council of judges is established, it will be responsible for submitting the proposed budget to the government. If the council membership includes individuals from outside of the judicial branch—including the Minister of Justice—the council will have the authority to draw up the judicial budget and the government will not be authorized to emend it.
  4. Administration of the Court System – I propose that the judicial branch be given administrative authority for the court system, including administrative procedures, administrative personnel, and the numerous other areas that are under the aegis of the courts administration, e.g., construction projects, building maintenance, and computerization. Today, by law, the courts administration is subject to the authority of the Minister of Justice, and the Minister is the person who determines how the courts are run. The director of the courts—who is appointed with the consent of the president of the Supreme Court—is responsible to the Minister.  The Civil Service Commission has control over the administrative staff of the courts, who, for all practical purposes, are state employees. De jure, the courts are an appendage of the Ministry of Justice, but de facto the court system enjoys a great deal of administrative autonomy, with the exception of the area of personnel.

    This study proposes that the law be amended to reflect the de facto situation and that the courts administration receive greater independence over personnel matters. The administrative employees of the court system should have a different status than that of the other employees of the Civil Service Commission, as is the case for the staff of the State Comptroller's Office and the Knesset. The judicial branch will determine its own administrative procedures and the director of the courts will be appointed by and responsible to the President of the Supreme Court. To ensure that the government remains responsible for the provision of judicial services, the Minister of Justice will continue to be authorized to approve overall administrative policy, in the form of a multi-year strategic plan, and to approve the appointment of the director of the courts. The accountability of the judicial branch will also be expressed in increased administrative transparency. For example, the judicial branch will be required to submit reports to the Minister of Justice and the Knesset, and the Minister of Justice will oversee the judiciary. If a council of judges is indeed established, the council and the Minister will be authorized to approve the administrative procedures of the courts and the appointment of the director of the courts. If a council for the judiciary is established, with members from outside of the judicial branch (including the Minister of Justice), it will have the authority of the Minister of Justice vis-à-vis the approval of the multi-year strategic plan and the appointment the director of the courts.
  5. Judicial Personnel – The study proposes that judicial personnel matters be transferred from the Minister of Justice to the judicial branch. The Minister of Justice currently has authority over judicial personnel, and is permitted to indirectly intervene in the administration of an individual court, generally after receiving the consent of the president of the Supreme Court. This authority should be transferred to the President of the Supreme Court, who will now need consent from either the council of judges or the council for the judiciary. In addition, the Minister of Justice should be required to obtain the consent of the President of the Supreme Court with regard to the appointment of judges to bodies outside of the court system. With regard to the appointment of court presidents and their deputies, the Minister of Justice should retain the authority to consent to the decisions made by the president of the Supreme Court and the council of judges. If the Minister of Justice is an ex officio member of the council for the judiciary, this authority will rest with the council. In any event, the Minister of Justice will retain general oversight authority in these areas.
  6. New Courts – The final proposal is that the Minister of Justice be required to consult with the judicial branch with regard to the establishment of new courts and the definition of their powers. Today the Minister has exclusive authority over this area. In the event that the Minister of Justice is an ex officio member of the proposed council for the judiciary, the council will receive the Minister's powers.

This program of reforms does not call for granting full institutional independence to the court system; the government will continue to have democratic authority for adjudication.  The Supreme Court will be unique in having almost total independence. Because the courts will become partially independent, we will have to see certain changes in the distribution of administrative power, and the president of the Supreme Court should not operate as the single authority. Three possible alternatives are: (1) dividing administrative authority between the Minister of Justice and the president of the Supreme Court/the council of judges (with most members of the council chosen by their colleagues and the court presidents serving ex officio), (2) placing all the authority in the hands of the council for the judiciary, which will have members from the three branches and civil society, and (3) placing all the authority in the hands of the judicial-branch council, which will also have independent members, appointed with the consent of the Minister of Justice and the president of the Supreme Court.

If these powers will indeed be transferred to the judicial branch, we must establish procedures to ensure that the court system will be characterized by both transparency and accountability. One example would be the requirement that the judiciary branch report to the Minister of Justice and the Knesset. The evaluation should be based on the quantitative and qualitative measurements used by judicial systems around the world, and these measurements should be used to improve judicial-oversight mechanisms.

In recent years, the Israeli courts, local media, and State Comptroller have exposed a number of failures in the work of the prosecution authorities, and especially the State Attorney's Office. Since no institution or individual is responsible for conducting a regular, comprehensive examination of the State Attorney's Office, it is unclear whether these problems are localized or endemic. The idea of establishing an institution to inspect the State Attorney's Office arose against this background.

While the criminal prosecution is one side in the judicial process, it also serves as the representative of the public interest. The criminal justice system in Israel is based on a common-law tradition, namely the adversarial system. The adversarial system considers independence of the prosecution to be of paramount importance, and we must take pains not to compromise it. At the same time, however, we should look for ways to ensure that the State Attorney's Office and other government bodies involved in criminal prosecution are accountable and that they receive sufficiently vigilant oversight. The parties currently involved in the oversight of criminal prosecution in Israel—including the State Comptroller, the courts, and the Attorney General—do not properly supervise the decisions that are handed down or how the criminal system is administered.

This policy paper recommends the establishment of a mechanism to foster greater public accountability and responsibility on the part of the criminal prosecution, that would involve system-wide oversight and a fair, efficient process for investigating complaints lodged against attorneys. After consulting with the Attorney General, the Minister of Justice should appoint a retired Supreme Court justice or district court judge to serve as an independent overseer of the State Attorney's Office and other offices engaged in criminal prosecution. This individual will have the authority to conduct system-wide oversight, on both a regular and an ad hoc basis, with the goal of improving the modus operandi of the State Attorney's Office and the prosecutorial system in general. The comptroller will be chosen from a list candidates submitted by a search committee, and will act and be paid by law. The comptroller of the State Attorney's Office will prepare and submit regular reports to the Attorney General, the Minister of Justice, and the Knesset.

The second proposal is that the comptroller of the State Attorney's Office should also serve as a commissioner for investigating complaints against attorneys and prosecutors working in all branches of the criminal prosecution system. This commissioner will not impose sanctions, but will refer the complaints s/he deems justified to the appropriate authorities: in minor matters to the District Attorney or State Attorney (depending on who has authority over the prosecutor in question) or the appropriate authority outside the State Attorney's Office if there is concern about a possible ethical, disciplinary, or criminal offense.

The policy paper includes a draft of a bill based on the two recommendations presented above. I raise the possibility of using more modest measures as well. For example, the Attorney General might submit an annual report to the Knesset, summarizing what was accomplished during the year. I recommend continued use of the current tools for promoting the accountability and transparency of the State Attorney's Office, e.g., publishing its prosecution policies and formulating a set of prosecutorial ethics.