Mose Apelblat

Is the way Israel appoints judges to its supreme court something which should concern EU? I would say yes considering the close ties between EU and Israel. The recent proposal raised in the current coalition talks about changing the way how the judges are appointed – in other words politicizing their selection – is worrying.

In the current political climate in Israel, it’s quite common to accuse EU for anti-Israeli bias. We tend to forget that the Israeli president, the attorney general of the government and the current and previous presidents of the Supreme Court have all warned against the politicization which would result from the proposal.

In its progress report of 25 March on the implementation of the EU-Israel Neighbourhood Policy during 2014, EU is positive about the role of the Supreme Court.

One example given in the report is the ruling by the court that the detention center in Holot in Negev for asylum seekers should be closed within three months, all asylum seekers there released and that the confinement of newly arrived asylum seekers for one year was to be discontinued.

Unfortunately, the government is often in no hurry to implement the Court’s rulings. The court is known for judicial pro-activism, something politicians do not like.

The report testifies to the vitality of Israel democracy and that is very much due to the existence of two crucial checks and balances in the political system – the Supreme Court and the Supreme Audit Institution (State Comptroller’s Office). They are respected and functioning well because their independence is guaranteed in basic laws, outside the reach and interference of the political parties.

Currently the committee that appoints the judges in the Supreme Court is made up of 9 members, the majority of which are judges or lawyers. But as at least 7 votes are required for a decision, the government/parliament has effectively a veto on appointments.

Likud, though it became the biggest party in the recent parliamentary elections and therefore got the mandate to form a new government, didn’t receive more than 25 % of the votes. The proposal to change the appointment rules is hardly anchored in Israeli public opinion. Instead of accusing others from interfering in the coalition talks, the coalition partners should keep the Supreme Court outside the talks.

The proposal reflects the tendency among newly elected members of Knesset, often right-wing or orthodox members, to initiate all kind of laws, whether or not they are consistent with Israel’s basic laws and fundamental democratic values.

We see already no how laws enacted by the previous government may be changed by the new coalition at the request of minority parties. The Supreme Court, acting as a constitutional court, is the only institution which can save Israel from undemocratic, sloppy and opportunistic legislation which undermines governability in Israel.

That said, it’s true that the legislative (parliament) and executive (government) branches of power often have a say in the appointment of judges. However, there are European standards, expressed in an opinion issued in 2007 by the European Commission for Democracy trough Law, the so-called Venice commission, which is linked to the Council of Europe.

While no single non-political “model” of appointment system exists, there is consensus 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. According to the Venice commission, such systems may work well in practice and allow for an independent judiciary because the executive is restrained by legal culture and traditions, which have grown over a long time.

New democracies, however, did not yet have a chance to develop these traditions, which can prevent abuse. Therefore, at least in new democracies explicit constitutional provisions are needed as a safeguard to prevent political abuse by other state powers in the appointment of judges.

Many European states have introduced a special body (high judicial council) with an exclusive or lesser role in respect of judicial appointments. A basic rule according to the Venice commission appears to be that a large proportion of its membership should be made up of members of the judiciary.

This is the case in Israel where 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.

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