Diversity in the Judiciary: Summary of Position Paper #14

The Israeli Law Professors’ Forum for Democracy, an ad hoc and voluntary group of experts on Israeli law and specifically Israeli public law, expresses its grave concern over the apparent intention to abolish the independence of the judiciary, to subordinate it to the government and to the partisan political considerations of the executive branch, to curtail the independence of civil-servant ministerial legal counsels to the government and its ministries.  and to violate human rights. This position paper examines the claim according to which the Israeli judiciary is not sufficiently diverse and that in order to diversify it, control of the committee for electing judges should be transferred to the executive branch.

· Is it true that the Israeli judiciary in general, and the Supreme Court specifically, do not reflect the diversity of Israeli society? Yes, this statement is (partly) true, but in a different sense than the one suggested suggested by Chair of the Constitution, Law and Justice Committee, and Minister of Justice Levine. While historically the judiciary was relatively homogeneous, there has been significant change in the past decades and the judiciary is currently more diverse than before. There are, indeed, certain groups in Israeli society that are still significantly underrepresented in the judiciary, primarily ultra-Orthodox and Arabs. Other groups, on the other hand, have become overrepresented.

· Will transferring the control over appointment of judges to the government diversify the judiciary and the Supreme Court specifically? No, and the opposite may be true. Transferring control might decrease certain aspects of diversity, while leading to corruption and incompetence.The suggested change aims to transfer control to the government but contains no mechanism or obligation capable of increasing diversity and reflectiveness. This will likely lead to the appointment of judges according to their political allegiance, with professional expertise and diversity becoming secondaryconsiderations, at best. Conversely, Israel’s current system for appointing judges enables taking into consideration the need to increase diversity through the promotion of nominees from underrepresented groups.

· How can diversity in Israeli judiciary be boosted? Firstly, it is important to stress that the judiciary system is diversifying, albeit more slowly and gradually than desirable. In the past decades, and within the existing framework, members of the committee for electing judges, are actively and successfully promoting the appointment of judges from underrepresented groups in Israeli society. Nonetheless, there are additional measures that should be implemented to increase diversity in the Israeli judiciary.

o Various countries in which the procedure for judges’ appointment is professional, apply various measures to increase gender and ethnic diversity among judges. Along the same lines, declaring that diversity and representation is a central consideration in appointing judges could encourage the committee to take action to increase diversity. Such action might include, inter alia, holding conferences aimed at encouraging lawyers from underrepresented groups to apply for judicial office; actively soliciting applications from suitable candidates from underrepresented groups; and possibly altering the selection process to accommodate the needs of different groups. Measures such as these have been successful in promoting diversity in Israel in other contexts.

· The Rothman-Levine proposal will lead to the appointment of ideologically identified judges based on political allegiance, causing polarization of competing elites. In contrast, experience accumulated in the past decades shows that an appointment process that necessitates the broad agreement of the judiciary, the executive, and the Knesset—or, alternatively, the parliamentary coalition and the opposition—can promote demographic and ideological diversity. A consensus-based system provides a good foundation for implementing further, active, measures for promoting diversity in the judiciary, with the aim of ensuring representation of all parts of Israeli society.

Judicial Review of Legislation in New Zealand: Summary of Position Paper #12

This paper examines whether indeed, as claimed by supporters of the pending regime changes, New Zealand law does not provide for judicial review on legislation. We conclude that this claim is mistaken and misleading for the following reasons:

1.     Courts in New Zealand have the authority to strike down legislation that infringes upon the right to vote and the right to be elected, unless that legislation is enacted by a super-majority, namely the votes of three quarters of parliament members, or has been approved in a national referendum where a majority vote is required both generally and of the Maori minority specifically.

2.     New Zealand case law provides that courts have the authority to strike down legislation that severely undermines the independence of the judiciary or infringes upon fundamental human rights. These judicial decisions have a restraining effect on legislators.

3.     Additionally, courts are authorized to declare that legislation is incompatible with human rights law. When they do, the New Zealand parliament tends to amend the law.

Senior British Experts’ Response Concerning the Comparison of Israel & UK: Position Paper #13

As a part of their campaign, supporters of the regime change compare the legal systems of the United Kingdom and Israel, in a way that is mistaken and misleading. The following position paper, written and signed by some of the leading experts on UK public law, provides accurate information on the British legal system. 

Among the signatories of the position paper are former President of the UK Supreme Court (2012- 2017) Lord David Neuberger, former Minister of State for Justice (2013-2016) Lord Edward Faulks KC, senior barrister and member of the House of Lords Constitution Committee (2008- 2021) Lord David Pannick KC, and two professors from UCL, a leading university in Britain. 

The writers of the attached position paper clearly contradict the claims made by supporters of the regime change, and demonstrate the role of the House of Lords as an active second legislative body that initiates legislation and routinely supervises the actions of Parliament. Furthermore, recent proposals for reform in the UK have left unscathed the role of the House of Lords as a primary constitutional protector. 

The position paper examines and rejects the claim that since the United Kingdom’s courts affirm the legal doctrine of legislative supremacy of the Parliament, the judiciary cannot affect the design and execution of public policy. The Human Rights Act 1998 provides courts with two powers in this regard—to interpret legislation in a way that protects human rights, including by departing from the legislature’s intended meaning (section 3), and by issuing a declaration of incompatibility (section 4), which under the legal culture of the UK it is ultimately followed by parliamentary/governmental action that removes the incompatibility. The power to declare incompatibility is often mistakenly considered the only power the UK judiciary possesses; however, while this power has been employed by courts about 30 times, courts have read down statutes that violate human rights in nearly 60 cases. 

Beyond the Human Rights Act, the UK courts have exercised their historical role under the common law to provide a potent restraint on executive power. For example, the Supreme Court intervened in the processes of the UK’s departure from the European Union. Even following Brexit, the writers of the position paper stress, the UK parliament and nearly all its governments affirmed the crucial importance of observing its international legal commitments, including by remaining a state party to the European Convention on Human Rights and continuing to abide by the judgements of the European Court of Human Rights. Membership of this system of human rights imposes further noteworthy constraints on legislative processes.

Britain.pdf

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