The recently passed bill restructuring Israel’s Judicial Appointments Committee will inevitably have significant implications on Israel’s democratic and judicial processes. For the first time on the cusp of history the judiciary of Israel is at risk of losing its independence.

The legislation passed by Israeli Parliament, the Knesset, which shifts control of judicial appointments to legislatures/ politicians is a severe blow to judicial autonomy of the country where the selection of judges will now be subject to political influence.

Passage of this Bill will ensure that the process of selecting judges will be controlled by elected politicians, raising concerns of counterbalancing democracy and its possible erosion in the future.

The Israeli Judicial Selection Committee was established in 1953, following the enactment of the Judges Law. The founding of the committee was intended to prevent outside political pressure, and so ensure the independence of the judge.

Traditionally, judicial powers in Israel are vested in the Judicial Authority. The Israeli Judicial Authority is an independent authority, and it does not depend on any other person or authority in the fulfilment of the judicial functions. The independence is both topical and personal.

Personal independence is guaranteed in the way a judge is elected and in matters concerning their promotion to the rank of a Judge, their term in office, their immunity, and also in disciplinary matters.

‘Topical independence’ means subordination of the judge solely to the law, and non- subordination to any other person or authority in the performance of the judicial duties.

The Supreme court is at the head of the Israeli judicial system. A case law ruled by the supreme court binds every court in the country, except the Supreme court.

The Supreme court acts as a court of appeals and as a High Court of Justice (HCJ). This is a binding precedent principle which is the practice in Israel.

Under the new system, the committee will have nine members including politicians and government -appointed representatives which will give the ruling political dispensation significant control over judicial appointments. The passage of the new law is widely seen to ensure that judges align with the political agenda of the current government and renounce impartiality in their judgments.

Opposition members and critics argue that granting the government control over judicial appointments will undermine the rule of law by having politicians influence judicial rulings, dilute meritocracy in judicial appointments, limit the Supreme court’s power to exercise judicial review and inevitably compromise the time tested legal system of selection based on professionalism and legal expertise.

Although the new law is set to take effect only after the next general election, Minister of Justice Yariv Levin has already indicated plans to prevent the existing committee from naming new judges. Supreme Court currently operates with only 11 judges instead of the full strength of 15 potentially affecting effective functionality. This is unprecedented in the history of the country.

The opposition argues that this delay is strategic and deliberate- the Israeli government has passed a law to weaken the court and limit its ability to offset government policies. They promise to annul the law restructuring the Judicial Appointments committee if voted to power and reinstitute the judicial appointment process as a fair and professional committee.

High Court’s Possible Overturn.

Multiple petitions have been filed in Israel’s High Court challenging the Bill. Petitioners contend that if approved this law will not just be an amendment, but will eradicate an entire judicial system. Judges should be appointed according to professional considerations - not purely political ones contend the petitions. Judges must serve public interest not political interest.

The possibility of expanded panel of justices is expected to be formed to hear the petitions and decide whether to overturn it. Given past precedents this cannot be ruled out. The court had previously struck down laws that attempted to bar the judiciary from using “reasonable standard’’ in their rulings. However, much will depend now on the composition of the expanded panel of judges and their legal reasoning.

The new law changes the makeup of the judicial Appointments Committee to consist 9 members : President of the court, 2 judges selected by a panel of judges, the justice minister (who would head the committee), one additional minister appointed by the government, 2 Knesset members ( one from the coalition and one from the opposition), and two highly qualified public representatives, both of whom are attorneys with credentials comparable to judges. These public representatives would be selected by the ruling government and the opposition.

A broader Political Stratagem:

As part of a broader political strategy Israeli Prime Minister Benjamin Netanyahu’s coalition government is already working to remove the Internal Intelligence Service, ‘Shin Bet’s’ Chief Nadav Argaman. In an interview to Channel 12 News, Nadav said, “if Netanyahu violates the law, he will reveal “everything he knows about him”.

The Prime Minister is also trying to remove the Attorney General, Gali Baharav – Miara. These moves are a systematic attempt of getting rid of all gatekeepers of Israel’s democracy and bringing in a system that is aligned with the ruling party’s interests. The restructuring of judiciary and key security agencies is a move in that direction.

If passage of the law stands, erosion of Israel’s legal system and judicial independence is a certainty, and if overturned, it would reinforce judicial independence and will be a counterbalance to political plots. Either way it will be a precedent.

Israel’s growing turmoil on its home front indicate that it is entering a period of significant uncertainties and the country will continue to remain so at least till the next general elections.