Is the way judges are appointed to Israel’s supreme court something which should concern citizens before the elections on April 9? Definitely, since the independence of the court is crucial for checks and balances in a democracy. The recent plan by justice minister Ayelet Shaked to politicize the selection of judges is deeply worrying.
Shaked criticized (Haaretz, 14 March) the Supreme Court and claimed that the public’s trust in the court has decreased because of its pro-active judiciary role in Israel. If this is the case it’s not surprising after all incitement against the court by Shaked and her “national camp”.
Generally, the Supreme Court is one of the few public institutions that still enjoy the trust of the public its independence is guaranteed in basic laws, outside the reach and interference of the political parties.
Without any shred of evidence, Shaked claimed that “in the vast majority of Western democracies elected officials are the ones who appoint the highest benches in the judicial system”. She disclosed that she intends to finalise a law which would allow lawmakers to re-enact laws overturned by the supreme court.
Not satisfied with the appointment of hundreds of new judges in the system, she now wants to take political control of the Supreme Court.
Currently the Judicial Selection Committee that appoints the judges in the Supreme Court is made up of 9 members. If Shaked gets her way, the politicians in the selection committee will have the last word.
Or as she justified it in her speech: “Sunlight is the best disinfectant; the public is entitled to know what the legal views of a supreme court candidate are.” What she really meant was the political views of the candidates, as is the case in the U.S.
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The proposal reflects the tendency among the current government coalition and its members of Knesset to initiate all kind of laws, whether or not they are consistent with Israel’s basic laws and fundamental democratic values.
The Supreme Court, acting as a constitutional court, is the only institution which can save Israel from government decisions that undermine human rights and undemocratic, sloppy and opportunistic legislation which jeopardises governability and the rule of law in Israel.
That said, new judges which are living in settlements in the West Bank should recuse themselves when dealing with matters related to the occupation because of their lack of impartiality.
Shaked had better take notice of the advice of European Commission for Democracy through Law, the so-called Venice commission. There is a consensus in Europe that political involvement in the appointment procedure may endanger the neutrality and independence of the judiciary.
In some older democracies, systems exist in which the executive power has a strong influence on judicial appointments. New democracies, however, did not yet have a chance to develop a legal culture which can prevent abuse by the executive.
In Israel the majority of the committee appointing Supreme Court judges is made up of sitting members of the court and other lawyers. It should remain like this since Israel as a relatively new democracy where fringe parties are able to extract awards for their participation in shaky government coalitions cannot risk the politicization of the court.
The author is a Swedish journalist and former auditor at the European Commission. His new book, “Letters in the Shadow of Death,” written together with co-author Salomon Schulman, deals with the memory of the Holocaust, anti-Semitism in Sweden, Jewish identity and the attitude towards Israel.