The proposal to change the makeup of the committee responsible for electing judges, currently being prepared in the Knesset Constitution Committee, increases political considerations and reduces professional considerations in the judicial election process, and therefore can “cast a long political shadow over the judicial system, and on the motivations to elect or promote a judge,” Attorney-General Gali Baharav-Miara wrote to Justice Minister Yariv Levin.
The new proposal is based on a joint proposal by Levin and Foreign Minister Gideon Sa’ar, first presented on January 9. A previous version of the bill was a centerpiece of the controversial judicial reforms that led to social unrest in 2023.
The Judicial Selection Committee’s makeup since Israel’s foundation has included nine members – three Supreme Court judges, two ministers, two MKs (traditionally one coalition and one opposition), and two representatives of the Israel Bar Association.
According to the new proposal, the two IBA members would be replaced by two lawyers, one appointed by the coalition and the other by the opposition.
In addition, according to the proposal, the majority necessary for Supreme Court appointments would revert to 5-4 instead of the current 7-2.
However, every appointment would require the agreement of at least one representative from the opposition and one from the coalition. Appointments to all other judicial brackets would require the approval of one member of the coalition, one from the opposition, and one of the judges.
Mechanism to prevent a stalemate
The proposal also includes a mechanism to prevent a stalemate in Supreme Court appointments. If a year passes with at least two vacancies, the coalition and opposition will each propose three candidates, out of which the other side must choose one (along with the judges). Finally, the law would only apply beginning with the next Knesset.
According to Baharav-Miara, “An independent judicial branch is the central guarantee in Israel’s governing system to prevent the abuse of governing power. The civilian who is harmed by the government has no other effective venue with the power to defend him.
“Every model chosen to appoint judges must therefore reflect the court’s professional character and include structural mechanisms that give precedence to professional considerations, including by involving in the process professional bodies who have relevant judicial knowledge,” she continued.
“The ministers’ proposal flips the script and changes the judicial selection method to one in which professional considerations are pushed aside, political considerations receive precedence, and in the case of the Supreme Court – are even decisive.
“With regards to the Supreme Court, ‘broad agreements,’ which are the stated purpose of the proposal, include political agreements alone. As a result, political considerations in electing judges receive precedence and decisive weight – and on the other hand, the place of professional considerations in the judicial election process is greatly weakened, even erased.
“This, without placing guarantees in the selection process to ensure the professionalism of Israel’s judges, and the independence of the judicial branch,” the A-G wrote.
“Due to the lack of structural guarantees, selecting judges according to the proposal will be embedded within political negotiations.
“Such a politicization of electing judges will not only change the character of the Judicial Selection Committee and the type of considerations it is supposed to weigh, but also the character of the judicial system.
“The proposal casts a long shadow on the judicial system and on the motivations to elect or promote a judge, damaging the apolitical character of the act of meting justice at all levels, in an inappropriate manner,” the A-G said.
She added that from a comparative standpoint, the proposed model was not in tune with models in judicial systems in the world similar to Israel’s, and “certainly” were not in tune with the “global trend”.Baharav-Miara added two points in her letter.
First, she pointed out that the law was being promoted alongside another law that is expected to harm the judicial system, which gives the government control over the appointment of the judicial watchdog.
She also revealed that Levin had requested that she come up with a new proposal to limit the use of the Reasonableness Clause. A previous bill to cancel the use of this clause with regard to elected officials was deemed unconstitutional and struck down. The current proposal was thus part of a broader attempt to limit the power of the judicial system, the A-G wrote.
Second, the current proposal had significant procedural flaws, the A-G wrote, pointing to the fact that the new proposal was brought as a continuation of a previous bill whose legislation ceased in March 2023 due to public protests.
The proposal was not brought as a new bill but began when the previous proposal left off, at the preparation for its second and third reading.
In a debate on the bill in the Constitution Committee on Monday morning, Deputy Attorney-General Avital Sompolinsky expanded on the issue. Sompolinsky explained that the proposal would lead to lower-level judges being tagged as “political.”
Under the current system, appointments to lower-level judges require a simple 5-4 majority. The judges and IBA representatives in the committee have a 5-4 majority in the committee, and this puts an emphasis on professional considerations before political ones.
This was the correct model, Sompolinsky said, since lower-level judges usually did not deal with issues on the national agenda.
Regarding appointments to the Supreme Court, Sompolinsky explained that a law amendment in 2008 raised the bar to a majority of 7-2 in the committee. The goal here was to give veto power to the committee’s three coalition members.
This tilted the balance in appointing judges to the highest court toward the political majority but still left a balance whereby the three judges also enjoyed veto power.
In the current proposal, however, the judges lose their veto power, and, therefore, this balance is violated.