The Law for Selection of Judges in Israel Part 1: Just so you know what it is about
Is the composition of the SC panel of judges about to be tampered with? Is this another stage in the volcanic upheaval in the judiciary, referred to as a regime change by those who oppose it?
The Reasonableness Clause was passed and is being challenged in the Supreme Court (SC), and next “up on the block” is amendments to the way judges are selected. Many are worried that these incremental changes will turn Israel into a dictatorship by reducing the part that the courts play in balancing the three branches of government: Those concerned fear that the court will no longer be able to temper decisions made in the legislature (the Knesset) and the executive (the cabinet) branches. The panel of SC judges who carry out this task is of vital importance to both those in favour and those opposed to the reforms.
Do you know what the law says now? Do you know why those proposing change feel it so important to risk the current unrest while doing so? Do you know what proposals for changing how judges are selected were put forth in the past and their reception in the Knesset?
Not until I opened each and every relevant law and bill — the law as it stands today and every amendment tabled, beginning in 1984.
In this section, I will merely present to you the laws upon which today’s reforms are being proposed. And I saw “laws” and not “law” because there are two laws, in fact, that are relevant. There is Basic Law: The Judiciary and there is The Courts Law, which is not a basic law. I did not know before beginning my research that there were two laws involved. I wonder if you did. In any case, I present the sections of these two laws dealing with judge selection without any editorial commentary. The translation into English is my own translation and I take full responsibilitiy for it. Part II will present the amendments proposed by the current government and how these amendments are related to historical bills that just never got anywhere in the legislature.
As you read these laws, you may find it an interesting exercise to think what amendments you would suggest. Or, perhaps, you think the law is fine as it is and should not be changed at all. Think about this for yourself based on the law as it is today. That will make you more discerning when you read the amendments that have moved through the legislature and await being brought to the Knesset Plenum for voting either to accept the changes or to reject them.
Basic Law: The Judiciary
Paragraph B: The Judges
Appointment of Judges
(a) A judge will be appointed by the President of the State according to the selection determined by the Judicial Selection Committee.
(b) The Committee with comprise nine members: The Supreme Court President, two other SC judges selected by its panel of judges, the Justice Minister and one other minister determined by the government, two MKs selected by the Knesset, and two Israel Law Society representatives elected by the national council of the Society; the Justice Minister will chair the Committee.
(c) The Committee is authorized to operate with even a reduced number of members, but not fewer than seven.
The Courts Law
Section C: Appointments
These instructions will pertain to the issue of the Judge Selection Committee mentioned in Paragraph 4 of the Basic Law: Judiciary (from hereon – the Committee):
1, The Knesset will select in a closed ballot two MKs who will serve on the Committee; they will serve throughout the Knesset term, and if the Knesset no longer serves – until the new Knesset will elect their replacements on the Committee;
2. The national council of the Israel Law Society will elect its representatives by closed ballot; they will serve for a period of three years;
3. Two SC judges will serve for a period of three years;
(a) at least one of the representatives of the SC on the Committee, at least one representative of the government on the Committee, at least one of the representatives of the MKs on the Committee, and at least one of the law representatives on the Committee will be women; [this amendment was passed into law in 2014 and had been tabled in the previous Knesset by Zehava Galon (Meretz), Shelly Yachimovich (Labour), Michal Rozin (Meretz), Gila Gamliel (Likud), Tamar Zandberg (Meretz), and Merav Michaeli (Labour).]
4. Composition of the Committee will be published in the records.
(a) The Justice Minister, notified about the need to appoint a judge, will announce this in the records and convene the Committee.
(b) The following can propose candidates:
1. The Justice Minister;
2. The SC President
3. Three members of the Committee as one.
(c) The Committee recommendation on the appointment of a judge will be according to the opinion of the majority of its member who participated in the voting, however, the Committee’s recommendation for a SC jurist will be acceptable only if it is agreed upon by three-quarters of the members who voted [7/9]; [The requirement for 7/9 majority was passed into law in 2008 after the bill tabled by Gideon Sa’ar was successful.]
(d) The committee will determine the remaining order of discussion and work.
The SC President and Vice President will be appointed according to Paragraph 4(a) of Basic Law: Judiciary from among the judges of the SC.
Presidents and Vice Presidents of district courts and magistrates courts will be appointed by the Justice Minister in consultation with the SC President, individually from among the judges at each level.
(a) The Justice Minister is authorized to appoint, for a term of service, in agreement with the candidate and in consultation with the SC President:
1. A SC judge – for president or as a district court judge;
2. A district court judge – for SC judge or president of a district court, president of a magistrates court or as a judge in a magistrates court;
3. A magistrates court judge – for a district court judge or president of a magistrates court;
4. A traffic court judge appointed permanently – for a magistrates court judge;
(b) A term according to this paragraph, either continuously or intermittently, will not exceed one year out of a period of three years, and regarding a judge who is a registrar appointed to serve a a court judge who functions as a registrar – not more than four years out of a period of five years, only with the agreement of the SC President.
Additional sections from The Courts Law for which amendments are proposed
13 (a) A judge can retire:
(1) upon reaching the age of 70;
(2) as determined by the Committee, on the basis of a medical evaluation according to rules the Committee established, that because of his/her medical condition is unable to continue to function.
84 (a) The SC President is authorized, with the agreement of the Justice Minister, to appoint a magistrates court judge, or someone qualified to act as magistrates court judge as registrar or deputy registrar of the SC, the district court, or magistrates court.
Section from the Labour Court Law to be amended
Section 4 (a): A judge will be appointed by the President of the State upon selection by the Committee for the Selection of Judges according to Section 4(b) of the Basic Law: The Judiciary, except that the members of the government on the selection committee will be the Minister of Justice and the Minister of Industry, Trade and Employment.
Section from the Knesset Law to be amended
This section delineates selection of Knesset representative to the selection committees for appointment of judges according to the Rabbinate Law, the Kaadi Law, the Druze Religious Court Law, and Basic Law: The Judiciary. The relevant subsection to be amended is: 6 (c) If the Knesset has removed the representative from his/her position as a member of the committee, it will elect another member in his place; If the Knesset suspends a member of the committee, it will elect another member in his/her place for the duration of the suspension.
Special thanks to Knesset insider Jeremy Saltan, my consultant on all matters regarding Israel’s legislature.