Judicial reform, conflict of interest: Do we really want to live in such a world? - opinion

The current government has called for substantive changes in the way judges are selected, claiming that in a democracy the majority rules.

Per the claim, since the current coalition has 64 seats in the Knesset – a four-seat majority – it should be able to appoint its choice of judges to the courts. It also wants changes in the role of key civil service positions in approving or circumventing policies of the government or individual ministers.

The current approval process for appointing a judge involves a committee made up of the three current Supreme Court justices (including the Supreme Court president), two Bar Association members, two ministers (including the justice minister), and two Knesset members. 

A nomination requires the support of seven of the nine committee members. Since the Supreme Court has three of its members on the committee, the three voting together as a bloc effectively wield veto power over a candidate.

To understand the current effort to reform the system we need to understand why the system was set up in this way.

Under the Israel parliamentary system, the Executive Branch (prime minister and ministers) makes up a majority of the Legislative Branch  (Knesset) in the name of being a coalition, bringing into question whether a parliamentary system has a legislative branch at all. What is clear is that nominations of judges and other senior administrative positions are made by the Executive, and then approved by that same Executive.

The issue that arose back in the day is the issue of whether the party nominating a candidate for a judicial or administrative position should also be the party approving the nomination.

Contrast this with the American presidential system. In the US, the Executive (the president) nominates judges for the various courts, such as cabinet members and heads of government agencies. The legislature (Senate) approves or rejects the appointments. Since there isn’t a binding coalition system that compels members of the president’s party in Congress to vote with the president, the legislature is independent of the Executive and members of the president’s party may – and often do – vote against the legislature regarding the appointments.

Since the political party “controlling” the Executive doesn’t always “control” the legislature (Senate), this also forces the Executive to consult with the political opposition to secure approval of a candidate. In this manner one party, – the Executive – nominates and another party – the Legislative – approves or rejects the nomination. The political party in power therefore cannot impose itself either on its’ own constituency or on the opposition. 

Back in 1984 Israel, when the current committee format was created, the question was how to prevent the nominating party from also approving its own appointments. The answer was to set up a committee for each type of appointment. 

In the case of judges, the committee is as described above. 

In the case of senior civil service positions, the committee is based on the same concept of combining representatives from the executive, legislative, judicial, and non-governmental organizations relevant to the position at issue. For example, the committee that chooses the attorney-general has five members: a retired Supreme Court judge; a former justice minister or retired attorney-general; a Knesset member; a member of the Bar Association; and a legal expert selected by the heads of the country’s law schools. And so forth for other senior civil service positions.

In all cases for the selection of senior government officials, there is a committee that includes the political leadership but is balanced by the inclusion of those outside the current political leadership. 

It is this balance that the current coalition seems to object to – and is seeking to remove from the approval process. But that scenario calls forth the dictates of common sense: The party nominating a candidate cannot also approve its own nomination. 

Reform

The current reform movement essentially seeks to strip away the balance offered by including outside organizations and their representatives in the nomination and approval process: a balance against the over-politicization of the appointments. 

The rationale is that in a democracy the majority can adopt the policy of its choice – any policy it wants. 

Those familiar with history know that unchecked majority rule becomes mob rule of the majority over the minority. In the US, majority rule was used to keep blacks poor and subservient to whites. In Europe, majority rule was used to keep the Jews in ghettos and worse.

What appears to offend the political Right is the fact that the Supreme Court ruled against some of their policies – which were racist and harmful to Arab Israelis. The reform is intended to free the Right from the “shackles” of the court, which they claim is controlled by the political Left. 

I would remind them that, in time, that same Left will come control the coalition and, with the shackles removed, will be able to do as it pleases. We will find ourselves in a period where each time the public changes the makeup of the coalition, the new coalition will simply repeal the policies and laws of the previous coalition with those of its choosing: Each time claiming it is simply implementing majority rule.

Do we really want to live in such a world? 

The writer is deputy chair of the Division of Business Administration at Touro College Israel.