The proposed bill for changing the composition of the Judicial Selection Committee has prompted wide public and professional debate. As of now, the Knesset has chosen its two representatives to the forthcoming committee: an MK from the coalition parties and an MK from the opposition parties. One of the claims made regarding this issue is that there is a binding constitutional custom in Israel to appoint a representative from the opposition parties to the committee. Is such really the case?
One line answer:
The Supreme Court has already ruled three years ago that there is no binding constitutional custom to choose a representative from the opposition parties, although it is appropriate that such an arrangement be codified in law.
In August 2020, the Supreme Court weighed in on the following question: has a binding constitutional custom been formed whereby it is imperative to appoint a representative from the opposition parties? The government at the time consisted of a joint coalition between the Likud and Blue and White (Kahol Lavan) parties, and two coalition members were appointed to the committee: one from the Likud and one from Blue and White. Three petitions to the Supreme Court challenged their appointment on the grounds that constitutional custom required a representative from the opposition parties, whereas both representatives were from the coalition.
The Supreme Court ruling rejected this claim for three reasons: first, the claimants did not demonstrate the existence of a constitutional custom doctrine; second, they failed to prove that the Knesset treated the custom as binding, so that even did the doctrine exist no imperative to adhere to the custom existed; and three, the arrangement stipulated in the law actually demonstrates that the Knesset did not view the custom as binding.
The claimants sought to base their argument on the fact that for twenty-five years, from the 13th Knesset to the 20th, the opposition parties were represented in the committee (in all but the 19th Knesset, which sent two opposition parties’ members to the committee, one of the two representatives appointed was a member of an opposition party). However, the Justices took a closer look at the history and noted that from the foundation of the state up till 1992, for a period of close to 40 years, both Knesset representatives to the committee came from the coalition parties.
The Court commented that the delineation between opposition and coalition parties is not always clear cut, since at times, representatives shared the same ideological bloc though they were technically not both from the coalition parties.
In fact, the Court found that in only five Knessets (from the 13th to the 17th) did the Knesset appoint a member from a actual opposite party. According to the Justices, this points to the fact that “it is difficult to demonstrate a uniform, consistent, decades long practice; thus we do not see a constitutional custom so deep rooted as to become a “constitutional convention” that cannot be eradicated”.
The Justices further examined the legislation governing the procedure. Among other provisions, the law stresses that the Knesset representatives’ appointment to the committee should be carried out by secret ballot in order to ensure the Knesset Members independent discretion. The Justices also pointed to the fact that The Knesset Rules of Procedure allows all Knesset Members (aside from members of the government) to run for the position, regardless of their party. Moreover, the Knesset chose to regulate the representation of women in the committee, but not of members of opposition parties. This silence, determined the Supreme Court, speaks volumes. The Supreme Court also heard extracts from the deliberations that preceded the legislation from which it is clear that the Knesset members’ underlying assumption was that both representatives would come from coalition parties (as indeed was the case until 1992).
The Justices noted in conclusion that: one, the petitioners in fact sought to change the outcome – but failed to point to any practical or logical way in which to reach the one they desired; and second, they found it appropriate that the law stipulate the representation of opposition parties on the Judicial Selection Committee.
Thus, despite widespread public talk of the obligation to appoint a representative from opposition parties to the committee, the Supreme Court has ruled that although such obligation is a desirable practice it will refrain from ordering the Knesset to abide by it.
By: Adv. Ariella Segal
HCJ 4956/20 Movement for Quality Government v. Knesset (Aug. 20, 2020).
Published originally in the KPF legal news-sheet, “One Line Answers” (B’Mishpat Echad)