Published May 31, 2023
Summary
In this position paper, we examine the selection of the Knesset representatives for the Committee for Judicial Appointments. We show that:
· Ever since 1992, with the exception of the rotation government, the Knesset has selected a member of the opposition for the committee for judicial appointments.
· Selecting a member of the opposition to the committee serves important democratic principles, including maintaining public trust in the judiciary, ensuring its independence, professionalism, accountability, and the diversity of perspectives in the committee.
· Up until now, and for reasons detailed in the case law, this custom was not enforced by the court through judicial review of Knesset decisions. Therefore the Knesset, and specifically the majority in the Knesset, upholds the custom by refraining from abusing its power.
· Despp-48-selecting-knesset-representatives-for-the-committee-for-judicial-appointments_pite its restrained approach, the court has repeatedly stressed the importance of respecting this custom which expresses fundamental constitutional principles. Given current exceptional circumstances—namely the attempt to implement regime changes including granting the coalition majority extraordinary power in appointing judges, thus politicizing the judiciary—the court may have to revisit its approach, if the Knesset decides to deviate from the custom. Hopefully, the Knesset majority will act responsibly and select a member of the opposition, and this question will remain theoretical.
· Effective representation of the opposition in the selection process is crucial to prevent selecting an
MK who is technically a member of the opposition but essentially a part of the majority’s camp, a situation that has already occurred in two Knesset terms under Netanyahu governments. To ensure this, the opposition representative must be chosen by members of the opposition, or by the Knesset in its entirety, albeit in agreement with the opposition. Additionally, adequate representation for the Arab minority in the committee must be ensured, much like the codified duty to maintain gender representation in it. We posit that the social periphery should also be heard in the committee. Advancing proposals along these lines will help protect the system of checks and balances that is crucial for the resilience of Israeli democracy.