This morning the Israeli parliament adopted a law to take away the veto power of the Supreme Court judges concerning the appointment of new judges. Unfortunately there is a lot of confusion, both concerning the content of the new law and concerning its impact on democracy, also in comparison to rules for appointing judges in other countries around the world.
Given the current events in Turkey where last week judges have been willing to back the move of arresting the expected opposition candidate for the next presidential elections and to remove him from office as mayor of İstanbul, partly based on completely bogus charges of terrorism support, we might use this comparison to illustrate the threats to democracy in Israel related to the independence of the judiciary. The political system in Israel has some crucial similarities to Turkey: We have a centralised State without any kind of federalism and a unicameral parliament without any checks and balances derived from regional authorities or an upper house. Until the constitutional reform from 2017/18 (introducing a Presidential system) in Turkey the majority of the members of the Supreme Board of Judges and Prosecutors, responsible for the appointment and oversight of judges, was selected by the judges themselves. In 2010 an AKP led constitution reform even limited the influence of the minister of justice on the board, strengthening the independence of the judiciary. Following the coup attempt in 2016 related to the Gülen organisation the board already supervised a purge within the judiciary removing people from office suspected of affiliations with Gülen. However, the the relationship between the executive and the judiciary was completely changed in 2018 based on the (likely rigged) results of the 2017 constitutional referendum: From now on the President and the government have been able to determine the majority within the Council of Judges and Prosecutors. Based on the different appointment rules for the Constitutional Court and the other top courts of Turkey and based on this majority, the government has since had the power to determine on its own who is appointed as a new judge in the top courts.
Till 2017 the situation in Turkey had actually been very similar to Israel given the power of the judges and attorneys to effectively appoint the top judges potentially even against the government. While this situation is rather rare in democratic countries (it is also similar to Greece), with most countries allowing the elected legislature and the executive to determine appointments of top judges in the last instance, other countries have a more intricate system of checks and balances, think of the Senate representing the States, which has to confirm nominations of Supreme Court justices in the US, or think of formal supermajority rules for the appointment of judges at the Constitutional Court in Germany. An Israeli right-wing think tank, the Kohelet Policy Forum, criticised the old Israeli system for appointing judges based on this comparison to Turkey: Look, their is little trust in democracy in Turkey despite the independence of the judiciary when selecting judges. However, the study the by Kohelet Policy Forum in fact completely ignores the power given to the government by the 2018 constitutional reform.
In fact the reform for the appointment of judges (not just the judges at the Supreme Court) planned by Netanyahu’s government in 2023 and finally stopped based on popular resistance, mass protests, strikes (even within the military), and international criticism was very similar to the 2018 reform in Turkey considering the appointment of judges. The proposed draft law, if enacted, would have allowed the government to determine the majority in the Judicial Selection Committee and to use this simple majority even to appoint new Supreme Court justices. Another commonality that might aggravate the risks for democracy stemming from a very much government-controlled judiciary lies in the fact that like in Turkey in Israel, too, certain kinds of bogus allegations of supporting terrorism are very likely to receive wide support from State institutions and the population (see the suspension of Knesset member Ofer Cassif—the persecution of HDP politicians in Turkey on the basis of such allegations has of course been severe for years, but now the more centrist opposition gets targeted too).
The law enacted this morning, however, is a watered down version of the 2023 draft. Most crucially the Supreme Court justices will no longer be able to veto the appointments of their new colleagues. However, a vote from a committee member selected by the opposition in the Knesset will be needed to appoint a new Supreme Court justice such that the government coalition will not have total control over the appointments once the law becomes effective (with the beginning of the next legislature). Instead of a 7/9 supermajority, only a 5/9 majority vote will be needed for the appointments. This is supposed to solve the current deadlock where vacant seats of judges do not get filled. Because of the rule requiring one vote from an opposition-appointed committee member, and also requiring one vote from a judge for decisions besides the appointments of Supreme Court justices, the new law will not give the government immediate complete control over the selection of justices. However, given the fractured nature of the Israeli opposition we will have to fear that a future Likud-led government would still be able to push through with very questionable personnel decisions for the courts. Given how the pro-Bibi Israeli right considers the judiciary as their political enemy, as a “left-wing deep-State” (copying MAGA rhetorics, which in turn also copy some of Erdoǧan’s rhetorics, with the crucial difference that “deep state” structures capable e.g. of carrying out military coups have been more of a reality, a real threat to democracy and not just a phantasy in Turkey), and how they show contempt for basic principles of the rule of law (like the principle of reasonableness of executive actions, excluding arbitrariness), we have to fear a further erosion of the Supreme Court’s capability of being a check on government actions.
Opposition leaders announced that if they will win the next election they will immediately reverse the reform and strengthen the independence of the judiciary again.
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