2 min read
ByRobbie Sabel, Robbie Sabel
As judges retire, the Israeli Justice Minister is poised to re-configure the Supreme Court
March 25, 2016 10:42The nomination of Judge Merrick Garland, who is Jewish, to the US Supreme Court attracted great international interest but, next year, we may be see an even more dramatic legal contest: the battle over who should sit on the Israeli Supreme Court.
The court consists of 15 judges appointed for life by a committee of nine members comprised of Supreme Court judges, the Minister of Justice, representatives of the Bar and Members of Knesset.
Israel has no written constitution but the Knesset has enacted a series of basic laws, including the 1992 law on Human Dignity and Liberty. The Supreme Court ruled that it can void a law which, in its opinion, contradicts a basic law. While used very sparingly, this power has been exercised, for instance, to void laws establishing privately run prisons; to allow courts to extend the detention of security suspects without their being present in court; and to block laws that granted yeshivah students larger stipends than regular students.
This power of the court to overrule Knesset legislation that contradicts basic laws has incurred the wrath of a number of MKs, notably from the right of the political spectrum and the religious parties. Minister of Justice Ayelet Shaked, who heads the judges' appointments committee, has been vociferous in her condemnation of what she perceives as the court's abrogation of the Knesset's right to legislate.
A collection of MKs on the right have repeatedly tried to introduce legislation that, in their words, would "bypass" the Supreme Court, while left-wing politicians have vigorously defended the court as a bulwark of Israel's democracy.
Left-wing politicians have vigorously defended the court as a bulwark of democracy
It is this issue that has made the forthcoming nominations to the court such a politically sensitive subject.
Judges must retire at the age of 70 and, next year, three Supreme Court judges will reach that age. One additional judge has announced he will retire for personal reasons. Traditionally, the appointing committee has tried to ensure that the court has at least one religiously Orthodox judge, one judge of Sephardi background and one Arab judge.
In the past, it was the sitting Supreme Court judges who dominated the appointment committee and there was criticism that they appointed judges who came from similar backgrounds to their own.
A 2008 law, sponsored by the then Education Minister, Gideon Saar, stipulated that appointments require a majority of seven out of the nine-member committee.
The intention was to break the perceived domination of the Supreme Court judges but, in an example of the rule of unforeseen consequences, the law has had the effect of giving the judges a right of veto since no majority can be achieved without them.
The result is that any appointments will have to reflect a consensus. This is likely to mean no outstanding individual appointments such as the late Haim Cohen or Misha Cheshin but - happily - no blatantly political appointee.
Robbie Sabel is a professor of international law at the Hebrew University in Jerusalem and a former legal adviser to the Ministry of Foreign Affairs