Critics petition court to nix judicial appointments law they say politicizes bench
Yesh Atid and two government watchdog groups argue new law undermines democratic rule in absence of any check on government power other than judiciary
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
The Yesh Atid party, along with the Movement for Quality Government in Israel and the Association for Civil Rights in Israel, filed separate petitions to the High Court of Justice against the coalition’s legislation overhauling the judicial selection process on Thursday morning, immediately following the Knesset vote passing the bill into law.
The petitions argue that the legislation politicizes the appointment of judges and will therefore undermine judicial independence and impartiality, a key component of Israel’s current constitutional arrangements and its form of democratic government.
The law, the groups argued, empties of meaning the principle of judicial independence established in Basic Law: The Judiciary, while also violating the principles of Israel’s democratic identity as laid out in the Declaration of Independence.
The new law, passed Thursday morning, increases the number of politically-appointed representatives on the Judicial Selection Committee, the body that makes all judicial appointments in Israel, and gives coalition and opposition politicians, as well as representatives of the judiciary, a veto over all lower court appointments, which they never before enjoyed.
The law also removes all influence of the judiciary over Supreme Court appointments, and allows politicians to handpick ideological hardliners for the top court.
Implementation of the law will only take effect after the next elections.
The government argues that it has too little control over judicial appointments, and the judiciary too much control, and that the legislation is therefore a necessary correction to this situation.
The Movement for Quality Government and Association for Civil Rights in Israel (ACRI) both argued in their petitions that since politicians will have far greater control over the judicial selection process, the ability of judges to rule independently without taking into consideration the political ramifications of their decisions will be greatly impeded.
This, they argue, would undermine the principle of judicial independence laid out in Basic Law: The Judiciary, which states that “Whoever is vested with the power of adjudication shall not be subject to any authority regarding matters of adjudication, except for that of the law.”
The amendment to the Basic Law therefore contravenes Israel’s existing constitutional arrangements, they maintain.
The Movement for Quality Government argues that, “According to the system of government practiced in Israel, there are no checks and balances on the executive branch, other than the balance of the judiciary.”
The new law, the organization argues, constitutes a “takeover of the judicial branch by both the executive and legislative branches” by “staffing the judges in Israel, and primarily the Supreme Court justices, with political appointees, so that in practice they will exercise real control over the Supreme Court and, as a result, the judicial branch.”
Yesh Atid’s petition argued against the law on similar grounds.
Both the Movement for Quality Government and ACRI also argued that the new law is an “unconstitutional constitutional amendment,” in that it violates what the petitioners assert are the basic democratic values of the State of Israel as laid out in the Declaration of Independence.
“The amendment exceeds the authority of the Knesset as the constituent authority since it is an unconstitutional constitutional amendment, which does severe damage to the core components of the State of Israel as a democratic state — to the rule of law, to the independence and impartiality of the judicial branch, and to the separation of powers,” writes the Movement for Quality Government in its petition.
“This change will allow politicians almost complete control over the identity of judges at all levels, creating a dangerous dependence of judges on political figures, and causing judges to constantly fear that their independent rulings could harm their chances for promotion,” ACRI wrote in announcing its petition.
“The Supreme Court is the last and only barrier against majority tyranny. The politicization of judicial appointments will lead to a situation where every judge, from the lowest ranks to the Supreme Court, will depend on politicians for promotion and will fear ruling against government positions,” the organization added.
Yesh Atid MK Karine Elharrar said that judges “must be appointed on professional considerations, not political ones alone. They are supposed to serve the public, not the regime, to work in accordance with the law, not in accordance with the government’s authority.”
Last year, the High Court struck down an amendment to a Basic Law for the first time in Israel’s history when it ruled that a law barring the judiciary from using the reasonableness standard in evaluating government decisions was an unconstitutional constitutional amendment since it removed crucial guardrails to Israel’s democracy and therefore violated the principles set out in the Declaration of Independence.
That decision was made by a majority of eight judges against seven. Currently, there no longer exists a majority on the court for that decision since three of the judges who voted in favor of striking the law down have retired and have not been replaced.
The Times of Israel Community.