A Constitutional Blitz

By passing this blitz law, which carries both an explicit and implicit constitutional change, the Knesset demonstrated its dilettante approach yet again.

In its Monday vote to pass a law based on Justice Minister Daniel Friedmann's initiative to set a term-limit of seven years for all court presidents - including the Supreme Court - the Knesset carried out a constitutional revolution.

Until now, magistrate and district court presidents had been nominated for extendable four-year terms. As for the Supreme Court, its president was nominated for an unlimited term, serving until the age of 70.

The bill to limit the court presidents' term can be seen as logical, as it sets equal terms of seven years to all judges. But in fact, it constitutes a legal revolution that upends a constitutional norm that had been a part of Israel since it gained independence.

The legal adviser for the Knesset Constitution, Law and Justice Committee explicitly describes this norm in his legal explanations. He states that the senior-most justice in Israel is automatically nominated Supreme Court president.

Indeed, the term-limits amendment makes sense when it comes to magistrate and district court presidents, for the prospect of having their terms extended might lead them to try and appease their superiors. But this does not apply to the Supreme Court.

On the contrary, the new amendment weakens the status of the Supreme Court president and the court itself, and thus corresponds with the justice minister's agenda.

The amendment formally changes Israel's constitutional foundations. The president of the Supreme Court, unlike other court presidents, is appointed by a judicial selection committee (which is currently comprised of three Supreme Court justices, two ministers, including the justice minister, two Knesset members and two members of the Israel Bar Association.)

The Supreme Court president is selected by the committee in accordance with the Basic Law on the Courts. The amendment contradicts Article 4 of that law, which states that judges are to be appointed "until the age of retirement," and therefore, applies also to the nomination of the Supreme Court's president.

But beyond this contradiction, the law ushers in a change in the norms of practiced constitutional standards - one that is both significant and substantial. The judicial selection committee was set up in 1953, when Israel was just 5 years old. Since then, Supreme Court presidents have presided until their retirement according to constitutional custom, which saw the most senior of judges appointed to the post.

This tradition has also brought us short terms by great presidents such as Yitzhak Cohen, Moshe Landoy and Yoel Zussman. Under the new amendment, such terms would have been impossible, as the amendment requires nominees to preside for a minimum of three years.

Our Supreme Court takes after the Anglo-American model of a unified body that handles civil and criminal appeals while serving as the ultimate arbiter in cases of public law, both in administrative and constitutional affairs. I am not aware of any court belonging to this breed whose judges are nominated for a limited term.

Once again, we are witnessing a change in governmental norms being carried out before its ramifications have been thoroughly examined. The same thing happened when the Knesset in 1996 replaced the one-vote parliamentary system of government and switched to direct prime-ministerial elections - before reverting back to the old system. The switch was intended to increase political stability. It achieved the opposite effect.

And what are the possible ramifications of the current change? The justice minister aims to reduce the degree of "judicial activism." He says the change will serve to strengthen the Supreme Court. The results, however, will probably be the opposite. If the Supreme Court president is replaced more frequently, then more presidents will preside over any given period, each one seeking to leave his or her mark.

Moreover, the retired presidents will carry on to preside as regular Supreme Court justices after they are replaced with new nominees. This will only serve to fuel the flames.

The justice minister's new reform initiative is to annul the custom that reserves the presidency for the most veteran and senior justice on the bench. It is a sure recipe for internal dissent and to the weakening of the Supreme Court's status.

By passing this blitz law, which carries both an explicit and implicit constitutional change, the Knesset demonstrated its dilettante approach yet again. Instead of bolstering and improving the legislative and executive authorities, it undermines the stability of the judicial authority and attempts to weaken it.

It does not herald good news for Israeli democracy.

The writer is dean of Haifa University's faculty of law.