Chief justice slams minister over bid to change selection process for judges

Supreme Court president: Bill to redefine majority on selection panel, supported by Justice Minister Shaked, akin to ‘placing a gun on the table’

Marissa Newman is The Times of Israel political correspondent.

Justice Minister Ayelet Shaked with Supreme Court president Miriam Naor in the city of Beit Shemesh, on March 29, 2016 (Yaakov Lederman/Flash90)
Justice Minister Ayelet Shaked with Supreme Court president Miriam Naor in the city of Beit Shemesh, on March 29, 2016 (Yaakov Lederman/Flash90)

The president of the Supreme Court on Thursday announced she would end private consultations with Justice Minister Ayelet Shaked on the selection of High Court justices, charging that the minister was advancing a Knesset bill that seeks to unfairly reshape the nomination process.

In a letter to Shaked, Miriam Naor slammed the bill, lodged by three Yisrael Beytenu MKs and apparently supported by the justice minister, which would see judges appointed with a regular majority of votes from the nine-person Judicial Selection Committee, over which the minister presides.

Currently, seven votes — or two less than those present — are required, a situation that in practice prevents the appointment of judges without the Supreme Court’s approval.

Four positions on the 15-member top court are soon to open up, as justices reach the mandatory retirement age of 70. Shaked is planning to publish on Sunday a list of more than 20 candidates for those positions, Israel Radio reported.

“Submitting this bill at the current time represents, under the circumstances, ‘placing a gun on the table,'” Naor wrote to Shaked. “It means that if some of the committee members do not agree to appoint certain candidates, preventing the appointments through a special majority, then the constitutional ‘rules of the game’ will be changed, such that they can be appointed with a regular majority by the committee members.

“Therefore, I must inform you — with the support of [court] Vice President [Elyakim] Rubenstein and Justice [Salim] Jubran — that we have no intention to continue at this time with the dialogue and early consultations to formulate a list of candidates and regarding possible agreements,” she wrote.

The three justices will continue their roles on the Judicial Selection Committee, she added.

Along with Naor, Rubenstein and Jubran, the panel is rounded out by Shaked, Finance Minister Moshe Kahlon, Likud MK Nurit Koren, Yisrael Beytenu MK Robert Ilatov, and two representatives from Israel’s Bar Association.

In response, Shaked on Thursday said the committee meetings would proceed as planned. “In the coming days, a list of the candidates for the Supreme Court will be published,” she announced.

Justice Minister Ayelet Shaked in Tel Aviv, on August 30, 2016. (Tomer Neuberg/Flash90)
Justice Minister Ayelet Shaked, August 30, 2016. (Tomer Neuberg/Flash90)

While Naor appeared to take issue with the timing of the bill, the lawmaker who wrote the legislation said it had been submitted in March, and had not yet been cleared by a key ministerial panel that would give it coalition support.

“The proposal was submitted to the Knesset in March and therefore I’m not sure what the uproar is about,” said Ilatov in a statement on Thursday. “The legislation has not yet been presented to the Ministerial Committee for Legislation and is not being advanced at this point.

“I urge the justice minister and the Supreme Court president to calm the situation and reach agreements so that we are not forced to advance the law during the current round of appointments,” he added.

Tourism Minister Yariv Levin defended his fellow cabinet member and castigated Naor, saying it “was impossible not to be shocked by the Supreme Court president’s blatant letter, from which it emerges that in her view, the court does not belong to the state, but rather she presides over it as if it’s her private property.”

The proposal to rid the justices of their de facto veto on the committee met with strong objections from the opposition.

“Netanyahu and his soldiers in the Knesset are leading a sort of coup to cleanse the court system, the media, the criticism, and the decent and fair democratic system in order to continue his reign,” said opposition leader Isaac Herzog.

Shaked’s predecessor as justice minister, Tzipi Livni (Zionist Union), also took her to task on Thursday, saying that “the attempt to apply pressure on Supreme Court justices should never have happened.

“Protecting the court is not only an interest of the justices, but first and foremost a public interest,” she added.

Meanwhile, Zionist Union MK Shelly Yachimovich welcomed Naor’s letter, saying it’s a “necessary response to the unruly and destructive behavior of Minister Shaked toward the justice system.”

Critics of the current selection process highlight the fact that the seven-vote requirement, passed by the Knesset in 2002, effectively gives the court a veto on who joins it.

Shaked sees the new reform as an opportunity to circumvent the justices’ de facto veto power, granting politicians and Bar Association members the ability to push through appointments even over the opposition of justices.

Israel’s highest court has 15 members, though only some of the judges are assigned to each case. The chief justice post is traditionally appointed automatically, based on seniority.

The court has frequently drawn the ire of right-wing and Orthodox politicians with its interventionist ethos pioneered by Aharon Barak, who served as chief justice between 1995 and 2006. In its alternate role as the High Court of Justice, the country’s highest court of equity to which almost anyone can appeal in real-time against the actions of any arm of the state, Israel’s top court has wielded powers considered by many scholars to be greater than in any other democracy.

That power has driven the contentious battle over its composition.

Critics of the court argue that the present system for selecting justices results in a court comprising largely like-minded figures who seek the appointment only of those who share their ideological agenda.

Israel's Supreme Court justices on April 17, 2016. (Photo by Yonatan Sindel/Flash90)
Israel’s Supreme Court justices on April 17, 2016. (Photo by Yonatan Sindel/Flash90)

The court’s defenders say its powers have developed to fill the void left by a Knesset that is famously unable to settle key questions of law and society, frequently shirking its responsibility to decide on issues of religious freedoms or to act to protect civil liberties or the rights of Palestinians. In Israel’s fractious society, maintaining a strong independent judiciary, they say, serves as a counterweight against the danger that a “tyranny of the majority” in Israel’s unicameral parliament might trample the rights of those who are not fully represented or sufficiently protected by the political system.

Times of Israel staff contributed to this report.

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