Israel's Top Court Rejects Petition on Absence of Opposition on Judicial Appointments Panel

Petitioners relied on what they called a 'constitutional custom' that a member of the Knesset opposition serve on the committee that appoints judges

Netael Bandel
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Likud Knesset member Osnat Mark and Derech Eretz lawmaker Zvi Hauser after being selected as the Knesset's representatives on the Judicial Appointments Committee, in Jerusalem, July 2020.
Likud Knesset member Osnat Mark and Derech Eretz lawmaker Zvi Hauser after being selected as the Knesset's representatives on the Judicial Appointments Committee, in Jerusalem, July 2020.Credit: Adina Valman / Knesset
Netael Bandel

The High Court of Justice rejected a petition on Thursday that sought to challenge the composition of the Judicial Appointments Committee due to the lack of a representative from the opposition in the Knesset.

The petitioners argued that having an opposition representative was required as a matter of "constitutional custom."

In their ruling, the justices wrote that "a look at the conduct of past Knessets makes it difficult to point to a consistent practice that has become a binding custom," but in any event, "recognition of a constitutional custom does not translate into a possibility of enforcing it by judicial order."

Netanyahu during a Knesset vote on the selection of judges for the Judicial Appointments committee, July 2020.
Netanyahu during a Knesset vote on the selection of judges for the Judicial Appointments committee, July 2020.Credit: Adina Valman / Knesset

Last month, Likud Knesset member Osnat Mark and Derech Eretz lawmaker Zvi Hauser were selected as the Knesset's representatives on the committee, which also includes three justices of the Supreme Court, two Israel Bar Association representatives and two cabinet ministers.

Likud and Derech Eretz are in the governing coalition and Mark and Hauser were appointed in accordance with the coalition agreement between Prime Minister Benjamin Netanyahu of Likud party and his other major coalition partner, Benny Gantz's Kahol Lavan.

Prior to the Knesset vote on the lawmakers who would serve on the judicial appointments committee, there was concern in Likud that tension with Kahol Lavan would lead Gantz's party to support Ayelet Shaked of the opposition Yamina party, who had put forward her candidacy. Ultimately, however, Mark and Hauser were the top finishers in the vote. 

"On the legal level, the importance of selecting a representative from the opposition for the Judicial Appointments Committee is apparent, but there are no grounds for ordering that on the existing legal level," the justices wrote.

They said ordering such an appointment would involve  the difficulty in enforcing a constitutional custom on the Knesset both as a practical matter and as a matter of principle "in light of the restraint and constraint of the court in interfering with the decisions of the Knesset."

The petition was filed by the Movement for Quality Government in Israel, by lawyer Moshe Shapira and by the nonprofit Mishmar Hademokratia Hayisraelit.

The Judicial Appointments Committee consists of nine members, including the president of the Supreme Court and two additional justices and two cabinet members, including the justice minister, currently Avi Nissenkorn of Kahol Lavan, who chairs the committee. The other cabinet minister on the current panel is Transportation Minister Miri Regev of Likud. 

In the past, it had been the custom that one of the Knesset members on the panel be from the opposition. The law only requires, however, that one of the Knesset members be a woman, which is also a requirement for the panel that selects religious court judges. The Knesset representatives are chosen by secret ballot, which has led to surprises, including 2013, when both representatives were from the opposition. 

Before her election, Knesset member Osnat Mark said she would seek to have judges appointed "with an outlook close to Likud." Although Hauser is a member of the two-member Derech Eretz Knesset faction, his appointment to the panel was seen as furthering Likud's conservative line. 

According to a Derech Eretz source, Hauser's candidacy reflects a conservative stance that is dominant in the Knesset in any event. "Ultimately, there is a conservative majority in the Knesset," the source said. "There will be liberal representation on the committee – with a minister from Kahol Lavan and three justices and conservative representation from the Likud representatives and Hauser."

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