A new study, conducted by the Purpose Institute, examined how presidents are appointed to the country’s highest court in the world. Changing the seniority system (the oldest judge is appointed president) used in Israel is at the heart of the legal revolution that the government seeks to promote. The promotion of the bill to change the composition of the committee for the selection of judges, which would allow the coalition to appoint the president of the Supreme Court, was stopped after the proposal reached the final stage, before a second and third reading.
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The new study, conducted by Yael Sirkis under the direction of Dr. Bel Yosef, included 20 democratic countries and found that the most dominant model (40%) is appointment by the incumbent judges. In 25% (5) of the countries the appointment process has a political nature , but in four of them the appointment is made by the legislative authority together with the government or the president. Only in Australia were no mechanisms found to ensure a non-political choice. In 30% (6) of the countries the choice is made by the government in a procedure based on professional considerations. In 5 % of the countries (one country – Great Britain), the president is elected by a professional committee.
In 11 of the 20 countries examined, the choice is under the authority of elected officials. In 6 of them the selection procedure has institutional mechanisms that in practice delegate the selection procedure to professional parties.
The seniority method – only in 20% of the countries
The study also found that the seniority system only exists in 20% (3) of the countries examined. The length of tenure of the candidates is not a requirement for appointment in 55% of the countries, compared to 45% of the countries where seniority is a consideration of varying strengths – from the seniority system, countries where seniority is a consideration according to the law and a country where there is a political agreement on an appointment based on considerations of seniority – Canada. At the same time it was found that in 70% of the countries the president is appointed from among the judges serving on the Supreme Court.
The importance of choosing the president of the Supreme Court in Israel is great. He is responsible for managing the court system, determines the composition of the Supreme Court in some cases, decides on requests to disqualify judges, gives instructions to judges in all courts and supervises the work of the judges. The president is also a member of the committee for selecting judges.
Today the law states that the president will be appointed from among the serving judges by a majority vote (7 out of 9) in the committee for the selection of judges. But the existing practice, known as the seniority system, is that the committee is presented with the nomination of the oldest judge in the Supreme Court, and it approves. As mentioned, as part of the legislative proposal to change the composition of the committee that is on the agenda, the coalition requests to be allowed to elect a president. According to the bill, it will be possible to appoint a court president with a majority of the judges – that is, with a majority of 6 out of 11. Since the coalition according to the proposal has a majority, the coalition thereby guarantees its ability to elect a court president and ensure the identity of an additional member of the committee on the 6th.
A guarantee against politicization
The opponents of the seniority system claim that there is no justification for an appointment system that is not based on qualifications and suitability for the position and that is not controlled by elected officials. The supporters of the seniority system claim that the system is a guarantee against the politicization of the position of the president, and that appointing a president for the needs of the government will harm the independence of the Supreme Court.
According to Dr. Elad Gil, who heads the research at the Purpose Institute, the structure in Israel is not the same as any other democratic country in the world, and is characterized by a relatively high dependence on legal restraint mechanisms, of the courts and the legal advisory bodies. This is due to the weakness of power decentralization mechanisms.
According to him, the main conclusion that emerges from the comparative picture is that “appointment is not seen in the world as a mechanism that should be controlled by political considerations, but is intended to ensure the professionalism and independence of the judiciary.”
