Can it be right that an unelected judge should overturn the act of an elected government? Surely that is undemocratic?
This deceptively simple, but flawed, argument seeks to justify the Israeli government’s plan to take control of the selection of judges.
To assess this we must understand "democracy" and consider the limits to government power.
1. Democracy is a means, not an end
Representative government provides some constitutional protection. Anticipation of a forthcoming election should nudge government towards beneficial policies to avoid losing the next election.
But "democracy" is really shorthand both for representative government and also for a society that treats its citizens equally before the law and protects certain core values. I refer to that as a rule-of-law society.
There is a tendency of any government to argue that "the people has spoken. I have a mandate. I may therefore do whatever I consider right." But that "right" might undermine the very rule-of-law society which they govern. They might wrongly deny funds to a minority group; appoint unsuitable friends or family to important positions; pass racist or sexist laws; or promote convicted criminals to high office. Such acts undermine the rule-of-law society which is the desired end of a democracy. We see this degradation operating in countless failed states that retain an electoral process, but eviscerate human rights.
It is therefore essential for society to appoint a custodian of those core values, and to ensure that government does not destroy either the values or their custodian.
2. Limits to the power of government
A political system will set boundaries beyond which a government - even though elected - cannot go. It must treat all citizens equally, and cannot discriminate on grounds of ethnicity, religion, etc. It must allow freedom of expression, to criticise government; freedom of assembly, to express concerns publicly; and an independent judiciary, to protect core values against an overreaching government.
These core values are found in a constitution, in basic laws, or in gradual development of custom. Israel cobbled them together while at war. Reform is needed. Such reform should leave the system modernized, but intact.
3. The custodian of core values
The custodian of core values must speak truth to power. It must tell a democratically elected government that it has breached a core value. This requires sufficient legal knowledge to identify a breach, the independence to challenge government, and the courage to do so.
The task of identifying breaches of core values requires legal skill, experience, and acuity. All Western societies place this task upon their judiciaries.
Finding a perfect judge is impossible. But the fact that judges are themselves fallible is no reason to abandon the project of selecting custodians, and certainly no reason to prefer politicians in this role. Politicians are fallible as well, but above all they cannot be expected to regulate their own conduct.
The power of the judiciary must be limited. If judges overreach their authority - as is alleged of Israeli judges - their power should be carefully restrained. But it must not be emasculated. For to have no effective custodian against an overreaching government is to invite disaster.
4. How to identify the best judges
Politicians may have a voice in the process of identifying those judges with the appropriate skills, but it must be most strongly influenced by people with relevant legal experience and knowledge. It would be absurd to have judges appointed by a sports coach, just as it would be absurd to have a sports team selected by judges. It is therefore logical for relevant experts to play a significant part in identifying the best candidates, not the electorate as a whole.
Judges are not the only senior public servants who, whilst serving a rule-of-law society, are themselves not selected democratically. The governor of the Bank of Israel; the chief of staff; the chief of police, are each selected on merit. To have them appointed by public vote is to invite the candidates to become political to attract votes and thus to invite unsuitable appointments when in fact society is best served by quality people who are largely apolitical.
But the judiciary is in a unique position because it alone must be able to limit government power. If judges owe their appointment and career progression to government, their ability or willingness to criticise government will be undermined. Thus whilst other senior civil servants might be appointed by government, the judiciary should not be.
In the UK, judges are chosen by a committee of fifteen socially and ethnically diverse selectors, of whom five are non-lawyers, presently including a psychiatrist and a priest. In the US, senior judges are selected by government, which tends to politicise and weaken their standing, but the rigorous and public selection process promotes quality candidates.
There are examples to inspire, but Israel must create the system which works for its particular population. The present system, which is widely seen as failing to produce a sufficiently broad variety of candidates, should be updated to meet this criticism. This could re-build public confidence in the system and thus strengthen the result.
5. Are the government reforms fit for purpose?
The Israeli government proposes a reform that places the selection of judges under almost complete government control. The Israeli proposal even seeks to place selection of the president of the Supreme Court in government hands, which means that the government could influence decisions about which cases that the court will and won’t hear.
The argument that this is similar to the US position is misleading. US congressmen traditionally had considerable independence, albeit as their independence wanes, so confidence in the US judiciary weakens. Knesset members by comparison are almost entirely under the thumb of their party leaders. Also, the US has two houses of Congress; Israel’s Knesset has only one chamber. Real debate can still occur in Congress, whereas the Knesset has become a "rubber stamp". The proposed reforms could fatally undermine judicial independence.
The Israel Bar Association (IBA) has two seats on the judicial selection committee. Its members are democratically elected by 77,000 IBA members. Yet, following the election of an anti-reform IBA chair, the Israeli government seeks to replace the IBA with its own appointees. The trampling of this democratic element in the judicial selection system does not inspire confidence.
The checks and balances in Israel’s system of government were put together by a fledgling society struggling to survive. Some improvement is doubtless possible and desirable. But when a house needs a coat of paint, you don’t pull down the house. Israel needs a truly independent judiciary able to protect the rule-of-law society which constitutes the true fruits of democracy. The proposed reforms would cause those fruits to wither.
Conclusion
The core values which constitute a rule-of-law society must be protected. The body best qualified to protect those core values is the judiciary.
Our judges should be selected on merit, to appoint those best suited to the task. The range of ‘selectors’ can be broadened. But the Judges must retain power to overturn the unlawful act of an elected government. It is the only check remaining in the Israeli political system.
All who cherish Israel’s rule-of-law society should support an update of its legal system. The particular proposal of the present government, however, would be a step in the wrong direction.
The writer is a UK solicitor and the founder of Israel’s largest foreign law firm. The views expressed here are his own, and not necessarily those of his professional colleagues, or of "Globes".
Published by Globes, Israel business news - en.globes.co.il - on August 16, 2023.
© Copyright of Globes Publisher Itonut (1983) Ltd., 2023.