A. Introduction
In the first few months of 2023 the Israeli Minister of Justice spearheaded a governmental initiative to “overhaul” the judiciary by reducing its powers and granting the government complete control over the selection of judges.Footnote 1 With that intent, the Chair of the Constitution, Law and Justice Committee of the Knesset, Israel’s parliament, introduced several coalition-backed bills that sought drastic changes in the laws with regard to the judiciary: (1) Limiting the Supreme Court’s powers of judicial review of legislation (and some governmental decisions) and, in a similar fashion to the Canadian “notwithstanding clause”, granting the Knesset the power to override by an absolute parliamentary majority any decision of the Court to strike down legislation, which would be in force for a year following the term of the overriding Knesset, or permanently if a consecutive Knesset made a decision to that effect with an absolute parliamentary majority; (2) granting complete and permanent immunity from judicial review to any statute which the Knesset calls a “basic law”, even though it is legislated by the same parliamentary process as all other statutes; (3) granting the government and its parliamentary coalition a majority on the Committee for the Selection of Judges, thus giving the government absolute control over the selection of judges for all the courts in Israel, including justices on the Supreme Court.Footnote 2
Massive demonstrations, the parliamentary opposition, and various organizations criticized these bills as amounting to an attempt by the government to capture the courts and to overthrow almost all checks on governmental power. In light of this resistance, the government tried at first to pass only the bill on the selection of judges, then presented another version of this bill arguing that it was less extreme,Footnote 3 and then, at the end of March 2023, faced with growing public demonstrations and a general strike, Prime Minister Benjamin Netanyahu declared a pause in this legislative process.Footnote 4
Rebuked for its efforts to pass a formal change to the law governing the selection of judges, it is unclear if the coalition will try to relaunch its initiatives in this regard—particularly the attempt to amend the law in a way that would give the coalition decisive control over the selection of judges—or if it will instead try to reach similar though less ambitious goals by informal acts. For instance, in May 2023, Haaretz reported that some members of the coalition were speculating that the retirement of the President of the Supreme Court in October 2023—upon reaching the mandatory age of retirement—could allow them to gain more control over the courts without formally revising the law. Supposedly, the coalition would do so by ignoring the informal institution of seniority which has seen the Selection Committee select the senior justice on the Supreme Court’s bench to serve as its president, and instead either replace the retiring President with a justice that the coalition prefers or to leave the position empty.Footnote 5
In this day and age of constitutions and constitution-making,Footnote 6 we sometimes grant formal written constitutional norms greater weight in the promotion of democracy.Footnote 7 Yet modern scholarship in the field of historical and comparative institutional analysis also recognizes the importance of unwritten rules and social institutions in the creation and maintenance of a self-enforcing constitutional order,Footnote 8 which, according to this field, is crucial for a regime to achieve a credible commitment to the rights of the public, and thus, economic success.Footnote 9 Similarly, constitutional law scholarship in recent years has increasingly focused on what has been called the “constitution by convention,” namely the informal institutions that play a critical role in any constitutional order beyond the text of the constitution itself.Footnote 10 These institutions are particularly vulnerable exactly because they are not part of the text of the constitution. While they are crucial for a regime to achieve a credible commitment that it will refrain from assailing the rights of the public, their very informality makes them less able for this purpose than formal institutions. Assaults on these informal institutions by authoritarian-minded populists are thus often harbingers of democratic decay or democratic backsliding.Footnote 11 Indeed, as shown below, the initiatives by Netanyahu’s government to revise the law regarding the composition of the Selection Committee—the formal institution—in order to capture the courts came in the footsteps of previous Netanyahu governments’ attempts to reach similar goals by changing informal institutions with regard to the selection of judges.
Similarly, in the study of judiciaries, scholarship has long recognized that the ability of judges to maintain de facto judicial independence has a sometimes tenuous connection with de jure judicial independence, the written formal rules mandating and maintaining judicial independence.Footnote 12 Some de jure written rules of judicial independence—particularly the institutional design of the process for appointment, promotion, and removal of judges—may prove important.Footnote 13 However, social institutions, economic circumstances, legal culture, and traditions are often no less important for de facto judicial independence,Footnote 14 indeed for the definition of judicial independence itself, as well as for its perception.Footnote 15 Thus, these informal institutions are an important part of any credible commitment to the rights of the public and the consequent flourishing of democracy. For instance, as Tara Leigh Grove has shown with regard to the US federal judiciary, its judicial independence relies not only on the text of the US Constitution, but also on “conventions of judicial independence,” in other words, seeing court-curbing measures such as court packing as constitutionally out of bounds. As Grove demonstrates, these “conventions” were historically and politically constructed and may be similarly discarded, and the independence of the judiciary is—for this reason—fragile.Footnote 16
Israel is no exception. The judicial independence of its judges relies on a combination of formally written rules and informal institutions and practices. As shown herein, basic laws, statutes, and regulations prescribe the operation of every subject in the judiciary, from the minutiae of the judicial process and the administration of the courts to the status of judges, their independence, their appointment, and their disciplining. Yet beyond these formal rules, informal institutions and practices are sometimes equally important in judicial governance.Footnote 17 In Israel, as in other jurisdictions—such as the US, as demonstrated by Grove—these informal institutions are crucial for achieving a credible commitment to the rights of the public, and thus for the flourishing of democracy and the rule of law, since they protect the principles of separation of powers and judicial independence against external political interference.Footnote 18 Judges and court administrators in the past few decades have promoted other internal informal institutions and practices for administering the Israeli judiciary, which qualify formal judicial accountability mechanisms without sufficient transparency, thus possibly to the detriment of democratic principles.Footnote 19
This article discusses informal institutions and practices that are important in the operation of the Israeli judiciary. It distinguishes two types of informal institutions and practices. First, those that are used to protect judicial independence from external threats, whose disregard may signal democratic decay. Actors within the judiciary, namely judges and court administrators, instituted the second type, which changes the responsibility for the administration of courts in a way that may prove detrimental to the courts because of its lack of transparency and accountability. The differentiation of the former kind of informal institutions from the latter is important, as will be shown herein.
Informal unwritten institutions and practices are not necessarily legally binding constitutional conventions. Supreme Court case law and Israeli jurisprudence have suggested three conditions for recognizing an informal practice as a legally binding constitutional convention: (1) The existence of a practice, (2) which is recognized as binding, and (3) is normatively justified.Footnote 20 However, the Supreme Court has not yet determined if this doctrine exists in Israel.Footnote 21 Indeed, in a relatively recent case in 2020, the Supreme Court of Israel decided that one of the informal practices regarding the judiciary, namely the practice of the Knesset—to appoint an opposition member as one of its two members in the nine-member Committee for the Selection of Judges, is not a binding constitutional convention that may be enforced by the Court. The Court decided that this informal practice did not meet the first two conditions mentioned above. First, it had not been consistent enough through the years. Even before the Knesset in 2020 ignored it—for the first time in nearly three decades—twice during previous Netanyahu governments the representative of the opposition was in fact ideologically close to the coalition. Second, it was not seen by the political actors as binding.Footnote 22
These informal institutions are fragile exactly for this reason: Their legally unenforceable nature. Thus, once these informal institutions are assailed by a strong political actor, they are relatively easily overcome. Authoritarian-minded populists, whose playbook includes an attack on judicial independence and the separation of powers,Footnote 23 thus find these practices and informal institutions a weak spot in the defenses of democracy and the rule of law.Footnote 24
It is important not only to figure out which informal practices and institutions defend judicial independence, but also to remain vigilant to possible assaults on them. As will be shown herein, former Netanyahu governments had already acted against some of the informal institutions and practices that undergird judicial independence in Israel and protect it against external political threats. Indeed, as noted, recently, the government began a new campaign against formal institutions as well. But exactly for this reason, the judiciary must be wary of its role in keeping and maintaining the inner informal practices that qualify mechanisms of accountability. While the judges and court administrators who run the judiciary may find it justified to maintain such informal practices, in terms of managerial, bureaucratic, or even institutional judicial independence considerations, their very informal nature makes it harder to guard against political assaults on those practices that protect the independence of individual judges.
Before the article proceeds, I will add one final note on the contemporary political context. At the time of the writing of this Article in July 2023, the current Netanyahu government has paused its legislative agenda of overhauling the formal institutions controlling the manner in which judges are appointed, though it is considering returning to it, and it is also trying to legislate its planned “judicial overhaul” in other spheres—already passing a law that limits the courts’ powers of judicial review of “unreasonable” governmental decisions. Furthermore, as noted, the government is perhaps considering going back to policies of previous Netanyahu governments acting against informal institutions in the appointment of judges. Indeed, as noted herein, the changes that had already been made in previous years in the informal institutions governing the judiciary were harbingers of this paused attempt at formal change.
This article proceeds as follows. Section B identifies the most important principles in the construction of the Israeli judiciary. Section C describes in general the types of norms, both formal and informal, that check and regulate judicial governance in Israel. Section D describes informal rules in the appointment process of judges in Israel that are designed to protect judicial independence from external threats and are under political pressure to change. Section E describes informal processes within the judiciary that judges and court administrators have constructed in the past two decades, which qualify statutory mechanisms of judicial accountability. Section F concludes.
B. Principles in the Operation of the Judiciary
Before analyzing the informal institutions of the judiciary in Israel for the purposes of this article, one must first describe the importance of formal and informal institutions for the protection of judicial independence and accountability, particularly in the Israeli context. Judiciaries were designed to resolve disputes according to the law in a way that would uphold the rule of law and protect human rights, and are thus, crucial in maintaining a credible commitment to those. Footnote 25 Going beyond the traditional view of judges as “mouths” declaring the words of the law, Footnote 26 judges are also, in a way, policy makers upholding constitutional and legal principles. Footnote 27 Judges and judiciaries may have other goals and biases, which may sometimes conflict with the role of the judiciary. Footnote 28 The judicial branch is also a bureaucratic organization, which must be managed in order to achieve its function of resolving disputes, and allowing for efficient, timely, and easy access to justice. Footnote 29
In light of these varied goals and interests, scholarship in recent years has pointed out a few principles that deal with the design and operation of judiciaries in order to achieve their ends, particularly judicial independence and judicial accountability, but also the efficiency of justice, quality of justice, access to courts, and diversity. These principles at times conflict with one another. Judicial independence must sometimes be qualified by the principle of the accountability of judges to the citizens and the other branches of government, particularly in light of views seeing judges as policymakers.Footnote 30 Furthermore, and importantly for our purposes, when analyzing judicial independenceFootnote 31 and the mechanisms used to protect it, one may point to the external—in this article the focus will be on external threats from the other branches of government—and internal threats to judicial independence, particularly from the people administering the judiciary.Footnote 32
The way of finding a balance between the various principles, particularly the tension between judicial independence and judicial accountability, is something that varies among jurisdictions. Instead of a “one size fits all” formula, each country must seek to find its way to realizing and maintaining all the various principles according to its own distinct constitutional order, political and legal culture, and particular history.Footnote 33 The same is true for Israel. A relatively young post-World War II democracy, Israel lacks an entrenched constitution, has only a partial bill of rights, has relatively few checks on its relatively strong executive, with a single-chamber parliament and a unitary—rather than federal—system.Footnote 34
An important point: Lacking an entrenched constitution, almost every constitutional norm, including in the most important basic laws—not to mention any statute—may be changed in Israel by any parliamentary majority. Thus, the safeguards of judicial independence, including those instituted formally in law, crucial as they are for maintaining a credible commitment to the rule of law, are in such a system as important as they are feeble. The safeguards may be changed or discarded by any parliamentary majority, which is by definition at the grasp of all of Israel’s governments, who require such a majority to govern. In other words, the constitutional regime concentrates power in a way that undermines the defenses against a possible populist attempt to attack the separation of powers.Footnote 35 We will keep this analysis in mind in the next section as we consider the types of norms that check and regulate the operation of the judiciary in Israel.
C. What Types of Norms Check and Regulate the Operation of the Judiciary in Israel?
The Kelsenian hierarchy of norms on the status of the judiciary in Israel is composed of three levels: Basic laws that have constitutional status, regular laws, and government-promulgated regulations. In lieu of a complete and entrenched constitution, Israel has 13 basic laws that, although legislated through the same process as regular laws, have been deemed as having constitutional status since the Supreme Court’s landmark 1995 Mizrahi Bank decision, which also first recognized that the Court has powers of judicial review of legislation.Footnote 36 One of these 13 “basic laws” is the Basic Law: The Judiciary,Footnote 37 which includes the rule that judges must decide only according to the law, and includes protections of this decisional judicial independence principle, as well as mechanisms for judicial accountability. These mechanisms are the system of judicial appointment, tenure, disciplining and removals. As already noted, this basic law is unentrenched, and the Knesset may amend or even completely strike it out, just by a regular parliamentary majority. Other issues, such as the powers of courts and their administration, are set out in the 1984 Courts LawFootnote 38 and in various laws and regulations—promulgated by the Minister of Justice—dealing with the minutiae of civil procedure as well as with criminal procedure.Footnote 39
Even if basic laws, statutes, and regulations prescribe the operation of every subject in the judiciary, from the judicial process and the administration of the courts to the appointment of judges and their disciplining, informal institutions and practices are still sometimes equally important in the operation of the judiciary. These institutions and practices do not necessarily have legally binding force. Indeed, as already noted in the Introduction, in a relatively recent case in 2020 the Supreme Court of Israel decided that the informal practice of the Knesset, Israel’s parliament, to appoint at least one opposition member—as one of the two Knesset members in the nine-member Committee for the Selection of Judges—is not binding and cannot be enforced in court.Footnote 40 The Court decided the issue following the first time in nearly three decades in which the Knesset ignored this informal practice, though the Knesset has since returned to it.
Informal practices and institutions exist in Israel in each and every sphere of judicial administration. In the pre-deliberation stage, for instance, the president of each individual court has wide discretion in the area of allocation of cases, formation of panels, and such, generally empowered by sections 27, 38, and 48 of the Courts Law. In the communication of court decisions and responses to them, there are social norms governing the manner in which politicians respond to court decisions that they dislike. Particularly, there are a plethora of informal institutions governing the selection of judges and their disciplining. For instance, such institutions mandate ethnic and gender diversity.Footnote 41 There are also such institutions in the management of the courts in general, including, for instance, the informally expanding powers of the Director of Courts,Footnote 42 and in the management of each court in particular, such as regulating working schedules, monitoring of delays and informal reprimands on problematic conduct, as well as the drafting of judges into civil, criminal, and other divisions.Footnote 43
This article will not deal with all types of informal institutions and practices but will instead focus on those of constitutional significance.Footnote 44 Among these, the focus will be on two types: Informal institutions and practices that protect judicial independence against external political threats and informal institutions and practices that internally influence accountability and inner judicial independence. The next section explores the first type, particularly those dealing with the appointment of judges, while the following section explores the second type, focusing on such institutions and practices regarding both the appointment of judges and the administration of the courts.
D. Informal Institutions in the Appointment of Judges: Protection of Judicial Independence against External Threats
This section will focus on informal institutions and practices used in Israel in order to protect judicial independence from external political threats. It shows how previous Netanyahu governments attempted to undermine informal institutions and to discard informal practices in the selection of judges. After a brief background note on the appointment of judges in Israel, each of these informal institutions and practices will be discussed. This section shows the importance of these informal institutions for the purposes of protecting judicial independence, as well as their feebleness and the possibility of capturing the courts if the government succeeds in discarding them.
I. The System of Appointing Judges in Israel
The system of the appointment of judges, as well as their promotion and removal, influences decisional judicial independence.Footnote 45 The aforementioned two laws, the Basic Law: The Judiciary and the Courts Law, define these procedures in Israel in a way that checks the powers of elected officials in making these decisions, thus attempting to guard against political encroachments that would undermine judicial independence. The law determines that judges of all courts—including justices of the Supreme Court—are to be appointed “by the President of the State, in accordance with the selection of the Committee for the Selection of Judges.”Footnote 46 The Selection Committee is composed of nine members, who are “the President of the Supreme Court, two other justices of the Supreme Court chosen by their fellow justices, the Minister of Justice and another Minister assigned by the Government, two Members of the Knesset selected by the Knesset, and two representatives of the Bar Association, selected by the National Council of the Association.”Footnote 47 The chairperson is the Minister of Justice. The Selection Committee decides on the promotion of judges to all courts, with decisions to appoint justices to the Supreme Court necessitating a seven-member majority of the Selection Committee, as opposed to appointments to all other courts which necessitate a regular majority of the Selection Committee.Footnote 48 Removal of judges from office is made upon a decision either of the Selection Committee “adopted by a majority of seven members at least” or of a Disciplinary Court that is made up of judges or retired judges appointed by the President of the Supreme Court.Footnote 49
The Selection Committee is a judicial self-governing body—a third of its membership being judgesFootnote 50 —which includes members representing the three branches of government as well as the legal profession. This nine-member Selection Committee was inspired by the judicial council model,Footnote 51 but it has narrower powers than do the European judicial councils.Footnote 52 Israel instituted this mechanism for appointing judges in 1953 instead of the older mechanism, in which the government had the power to appoint judges, with the approval of the Knesset in the case of appointments to the Supreme Court. This was a reform the government had explicitly advanced to strengthen judicial independence.Footnote 53
The balanced membership of the Selection Committee seeks to promote and balance the principles of judicial independence and judicial accountability by including in the Selection Committee a majority of professional members—the justices and the legal professionals—who are best placed to consider professional considerations, and a minority of political members, thus preserving democratic accountability and allowing for wider social considerations in the appointment process.Footnote 54 In practice, fulfilling both principles in a balanced manner without giving more weight to judicial accountability at the expense of judicial independence, also depends on several informal institutions and practices that check political power in this appointment process. As we will see, the system implicitly depends on these informal institutions and practices no less than on its formal statutory rules to protect judicial independence and maintain a credible commitment to democracy and the rule of law.
The first informal institution is that the President of Israel appoints the judges not only “in accordance with the selection of the Committee,” as the Basic Law states, but following a strong informal institution under which the President is bound by the Committee’s selection. The President cannot appoint a different judge, nor refrain from appointing a judge selected by the Committee. The President’s role is regularly seen as entirely ceremonial, lacking any discretion.Footnote 55 Yet this is only an informal institution. It is deeply embedded and even presumed by the authors of the 1953 law,Footnote 56 and since then also by the Supreme Court, which denied a petition against the Selection Committee and its practice of submitting only a single candidate for each position to the President.Footnote 57 Yet, it is still an informal institution. What would be the consequences if a President decided she could not appoint a certain judge to a higher court because of certain ideological faults she saw in that judge’s rulings? What if that President were influenced in her decision by political considerations, even though hers is considered to be a ceremonial position acting above politics, usually because of her being a former politician?
But other more poignant and relevant examples are informal institutions and practices that have been under contention in recent years, and politicians may discard them in the near future, with dire consequences in terms of the protection of judicial independence from external political encroachments.
II. Professional Considerations in the Appointment of Judges
The first informal institution is that the Selection Committee considers professional considerations first and foremost in the appointment of judges and, second, if professional merit reaches the required level, it also considers social diversity.Footnote 58 Putting aside the social diversity consideration, the primacy of professional considerations is itself an informal and, as recent years show, a relatively feeble institution despite its importance in the context of protecting judicial independence.Footnote 59
But first, some words on what formal law says. There are some formal rules regarding professional considerations, such as the minimum professional qualification set by sections 2–4 of the Courts Law, in the common law tradition, a minimum number of years of experience as an attorney or as a lecturer in a law faculty, and section 11a of the Rules of Procedure of the Committee for the Selection of Judges, promulgated by the Selection Committee, that stipulates the criteria used to evaluate the suitability of candidates—all of them related to legal merit or professional qualities. That said, nowhere does it say in law that only professional considerations—aside from social diversity—may be considered by the Selection Committee and that other criteria may not be. This informal institution is not set in any law.Footnote 60 But could the Selection Committee consider the legal views of candidates, which in Israel are related to partisan politics, such as the desired level of activism of the courts, their views on the status of Jewish law in Israel, or the level of judicial protection that should be accorded to various constitutional rights?
Until only a few years ago such legal philosophies were considered out of bounds. After its inception, the informal institution was that the Selection Committee was supposed to consider only professional qualifications and relevant character traits.Footnote 61 Notable in this context is the well-known rejection in 2005 of the candidacy for the Supreme Court of Professor Ruth Gavison by then President of the Supreme Court, Aharon Barak, on the “charge” that “she has an ideological agenda.”Footnote 62 The informal institution that legal philosophies were out of bounds changed gradually and recently, as the political system responded to the Supreme Court’s transformed role with its new power after 1995 to review legislation, and its changing jurisprudence and expanded role in public life.
This process occurred particularly following the tenure of Supreme Court Presidents Meir Shamgar (1983–1995) and Aharon Barak (1995–2006), for example through the Supreme Court’s jurisprudence that opened its doors to public petitioners and to more political questions by limiting the scope of the doctrines of standing and justiciability. First, considerations related to legal philosophies began to be utilized after 2008, especially during Prime Minister Benjamin Netanyahu’s second and third governments (2009–2015), and particularly in the selection of Supreme Court justices.Footnote 63 In 2008, the formal rules of selecting justices to the Supreme Court changed, necessitating a seven-member consensus in the Selection Committee for appointing justices as opposed to the simple majority of former years. Since the government and the Knesset have four members out of the nine members on the Selection Committee, this new rule effectively granted veto powers to the political members of the Selection Committee—as well as to the justices—and created a dynamic of compromise candidates and deals, with right-wing politicians attempting to promote “conservative” candidates.Footnote 64
Indeed, not only members on the Selection Committee, but some public opinion as well, have been receptive to the idea that legal philosophy—and its correlative assumed political allegiance—is a relevant consideration, particularly the question of the candidates’ so-called “liberal” or “conservative” leanings or legal philosophies. These legal philosophies resonate in the political system, which has come to be polarized around such questions as the justices’ levels of judicial activism and views on the proper relations between Israel’s Jewish—national or religious—character and its democratic and rights’ protection character. Footnote 65 Thus, an attempt to appoint “conservative” justices is seen as an attempt to appoint right-leaning ones, while an attempt to appoint “liberal” justices is seen as an attempt to appoint left-leaning ones. In reality, naming these candidates as “liberal” or “conservative” is sometimes misleading, especially when such designations are based on their professional careers, for instance when they involve judges who have worked in commercial, civil, or criminal law. Thus, some of the attempts to promote such “liberal” or “conservative” judges to the Supreme Court are actually founded on assumptions regarding their political leanings or their religious background.
III. New Informal Screenings of Candidates and Meetings of the Selection Committee
Since 2015, during Prime Minister Benjamin Netanyahu’s fourth government (2015–2019), this dynamic of utilizing political considerations and reaching deals between justices and politicians has also been applied to all the other courts as well. The Minister of Justice—and Selection Committee’s chairperson—Ayelet Shaked (2015-2019), explicitly attempted to appoint “conservative” judges to all courts including to the Supreme Court, and has claimed to be largely successful, Footnote 66 through a process of screening the candidates for their background and views. It should be mentioned that if the label of “conservative” is somewhat misleading for candidates to the Supreme Court, it is even more misleading for candidates to lower courts, where it is mostly a code word for right-wing opinions or the religious background of the candidates. Footnote 67
Since Shaked’s tenure as Minister, some judges that were candidates for promotion to higher courts have reportedly come to informal interviews with political members of the Committee for the Selection of Judges, despite directives by the President of the Supreme Court against such interviews. Footnote 68 Similarly, other candidates—not judges—have been known to have lobbying meetings with political members of the Committee.Footnote 69 Beyond these meetings, some political members of the Selection Committee continue to conduct informal background screenings of candidates.Footnote 70 These informal processes also include informal meetings between Selection Committee members in attempts to reach a consensus on candidates, particularly in appointments to the Supreme Court in which a seven-member consensus is necessary. As the President of the Supreme Court once explained, she saw the need for these informal meetings following Minister Shaked’s campaign to appoint conservative judges and justices. As part of this campaign, according to the then President of the Supreme Court, the late Miriam Naor, she realized that the Minister and the members from the Bar Association first began holding these informal meetings, and reached the formal meetings when already in agreement on the candidates. She thus saw the necessity to also conduct such informal meetings with other members of the Selection Committee. Footnote 71
Since the law also charges the Selection Committee with the promotion of judges to higher courts, these screenings, informal interviews, and campaigns to promote “conservative” judges are undermining the principle of judicial independence from the political system. They hinder the protection of judicial independence, which was maintained partly through the informal institution that frowned upon such practices. These political encroachments on judicial independence were made possible through politicians’ disregard of the informal institution that partisan and political considerations are off the table. As far as the informal screening of candidates by politicians goes, the politicians pushed the screenings through also in disregard of the aforementioned stipulation of the President of the Supreme Court that disallowed private interviews between sitting judges and politicians.
IV. An Opposition Member on the Selection Committee
Minister Shaked’s self-proclaimed success was made possible through a coalition she built in the Selection Committee with the two members from the Bar and the other political members. Her success in assembling her coalition was aided by her gradually disregarding another informal practice, namely the practice of having at least one of the two members from the Knesset come from the opposition. This practice began in 1992. Since then, it has become an institution and a check on the power of the ruling coalition and the Executive in the appointment of judges and has strengthened the non-political nature of the appointment process. Thus, this institution has helped to promote the principle of judicial independence without detracting from the principle of accountability.
During Minister Shaked’s tenure as head of the Selection Committee, from 2015, one of the Knesset Members on the Selection Committee was at first part of the opposition, but from a right-wing party that shared much of the right-wing coalition’s views. It was his membership that helped her build a coalition on the Selection Committee that allowed her to appoint “conservative”-leaning judges to court. After a while this Knesset member’s party joined the coalition, but he remained part of the Selection Committee. A petition to the Supreme Court against his continued tenure on the Selection Committee was rejected for being a delayed petition.Footnote 72 Later, when a new unity government was formed between the centrist Blue and White party and the right-wing Likud party (Benjamin Netanyahu’s fifth government, in 2020-2021), it found it convenient to disregard the informal practice and appoint a Knesset member from each governing block to the Selection Committee, ignoring the opposition’s seat.
In 2020 a petition against the government’s disregard of the practice of having an opposition member on the Selection Committee was submitted to the Supreme Court, but the Court rejected it. While the Court recognized that since 1992 there has been an informal “practice” of including one member of the Knesset from the right wing and one from the left wing or center, or at least one member of the Knesset from the opposition,Footnote 73 it was not consistent enough to become constitutionally binding. That said, the Court noted that this practice was desirable in order to preserve judicial independence through the independence of the members of the Selection Committee.Footnote 74 In 2021, and again in 2023, an opposition member returned to the Selection Committee, in a reversion to the informal institution.
For the purposes of this article, the informal character of this institution is significant, as it turned out that political actors were able easily to discard it once they were so inclined. The opposition member is a check on the concentration in the ruling coalition of the power to select judges as well as in their promotion. Disregarding this informal institution comes at the expense of the principle of judicial independence.
V. Appointment of the President of the Supreme Court: The Institution of Seniority
The President of the Supreme Court in Israel is selected by the Committee for the Selection of Judges. According to Section 8 of the Courts Law, the Committee selects only from among the justices of the Supreme Court. Informally, it invariably selects the senior justice on the Supreme Court bench to serve as its President, the “institution of seniority”. Footnote 75 In a system in which the President of the Supreme Court is chosen from among its members—as opposed to other systems in which the President is chosen from outside the Supreme Court—the informal institution of seniority is intended to protect the decisional independence of the justices, to prevent attempts by justices to curry favor, and bring about their appointment as President.
Like other similar informal institutions in Israel which are designed to protect judicial independence against external political encroachments, the institution of seniority has become contentious in recent years, with law-makers and ministers of justice arguing against it. Footnote 76 Essentially their argument is that this informal institution detracts from the democratic accountability designed in law for this appointment process. That said, the Selection Committee still follows the seniority institution, as it has since the establishment of the Supreme Court of Israel. But if the Committee were to discard it, as is currently suggested in parliamentary debates over the government’s initiativesFootnote 77 and as discussed in the coalition as an alternative to these initiatives,Footnote 78 that move would further undermine the protection of judicial independence.
VI. Summary of This Section
The political critique of the informal institutions in the appointment of judges and attempts by politicians to institute new informal practices are nothing less than an attempted change of constitutional significance in the administration of the Israeli Judiciary. This attempt by politicians to change these informal institutions and practices is as significant as their current attempts to change the formal institutions in the appointment of judges, and they have the same purpose of gaining control of the courts. Indeed, the earlier attempts by politicians to change the informal institutions were harbingers of their current attempts to change the formal ones.
While some view these changes as positive developments and others—such as myself—view them negatively as attempts to undermine the safeguards of the principle of judicial independence, one has to agree that these informal practices have profoundly changed the nature of judicial appointments in Israel and that the political campaigns to more change will have potentially greater impacts if any of them prove successful. While some of the informal institutions and practices still stand—the institution of seniority and the membership of the Selection Committee of an opposition member—the attempts to change them are attempts by politicians to control the courts.
The attempts to cast off these informal institutions thus put at risk the judges’ de facto judicial independence, without touching at all their de jure judicial independence, by attempting to create a judicial culture that is more responsive to political pressure. In this light, attempts to dismantle these informal institutions endanger the Israeli constitutional order’s credible commitment to the rights of the public, the rule of law, and democracy, shedding light on the feebleness of such informal institutions in maintaining this commitment.
E. Informal Practices that Modify Mechanisms of Accountability in Court Administration
Meanwhile, in the past two or three decades, actors within the judiciary, namely judges and court administrators, have established other internal informal institutions and practices in the administration of the Israeli Judiciary. These institutions and practices have been qualifying or modifying statutory mechanisms of judicial accountability and transparency. These qualifications may not be problematic as regards their content—whose normative implications are outside the scope of this article, but are problematic due to their informal nature and opaque rather than transparent qualities. As such, these institutions and practices may potentially undermine the inner decisional independence of the judges.
I. Administration of Courts in Israel
The 1984 Courts Law sets out that the Minister of Justice is charged with implementing and promulgating civil procedure regulations in the courts as well as regulations on other administrative matters, such as the courts’ days of operation. The Minister is also responsible for creating new courts, and according to Section 82 of the Courts Law the Minister prescribes the “administrative arrangements for the courts.” The Director of Courts, who heads the Administration of Courts, is, also, “responsible to the Minister for implementation of the administrative arrangements” according to Section 82. Since the Director of Courts is charged with overseeing the regular day-to-day operation of the courts, formally it seems that ultimate responsibility for court administration is in the hands of the Minister of Justice.
That said, the President of the Supreme Court is recognized as the head of the judiciary,Footnote 79 in what has been called a “constitutional convention,” Footnote 80 and beyond some housekeeping responsibilities set in law the President in practice also has many responsibilities in court administration, for instance through directives the President issues. Footnote 81 Several decisions in court administration, including the appointment of the Director of Courts and the presidents of courts, while at the hands of the Minister of Justice, by law require the consent of the President of the Supreme Court. Significantly, according to an informal practice the Director of Courts has also always been a senior judge—the law explicitly states that the Director does not have to be a judge. So, in practice, the Director of Courts is a “servant of two masters”—the Minister and the President of the Supreme Court—both of whom have responsibilities in court administration, with the Director being the liaison between them. Footnote 82
II. Agencification of Court Administration
The above description of court administration in Israel already shows that it includes important informal practices that go beyond the formal stipulations set out in the Courts Law, such as the practice of appointing only judges as Directors of the Courts. In the past two or three decades this process has evolved further. During his tenure as the President of the Supreme Court (1983–1995), Meir Shamgar tried and failed to formally introduce a US style of judicial governance with an aborted attempt to create a judicial conference that would oversee the administration of courts. Footnote 83 However, the judiciary has attempted similar informal acts since then. Namely, since Aharon Barak’s tenure as the President of the Supreme Court (1995–2006) a more gradual and largely informal move towards a more autonomous style of judicial administration has been taking place. The Director of Courts and the unit he heads (so far all directors have been male), the Administration of Courts, have in this period developed into a strong agency that runs the courts in a centralized manner.
Without any formal legal change to that effect, in practice the Administration of Courts has undergone a process of ‘agencification’ and has become a fully-fledged institution that regulates the operation of the courts and the conduct of judges with much greater organizational capacity and centralization than it had in the past.Footnote 84 For instance, the Director organizes the day-to-day operation of the courts through directives such as the use of media in courts or through regulatory powers. For example, since 2012, the Director has been empowered to transfer large numbers of cases from one court to another to relieve caseload pressure, with the approval of the president of the Supreme Court and the Minister of Justice. The Administration of Courts does so with a degree of partial autonomy, which past Directors of Courts could not have dreamed of.Footnote 85
This process of agencification has tightened the regulation on judges and thus transformed formal accountability mechanisms. Significantly, it has been a mostly informal process, and thus not completely transparent. Though some of the Director’s new powers have been formally granted in law, most of his new (since the 1990s) regulatory powers regarding the judges are informal. The judges’ work is now under the intense scrutiny of the Director, for instance through the use of a central computerized system that monitors judges’ work, for example, the number and type of cases assigned to each judge.Footnote 86 This process has also transformed the accountability of the Director.
In addition, while in accordance with Section 82 of the Courts Law the Director is held accountable before the Minister of Justice, in informal practice since the inception of this position he has also been held accountable before the President of the Supreme Court, whose consent was needed for the Director’s appointment.Footnote 87 The Director now enjoys greater autonomy also in terms of the question of what he is held accountable for before the Minister. It seems that in informal practice, Directors in the past two decades have considered themselves accountable before the Minister for smaller parts of their responsibilities than Directors in the more distant past, while they remain in the orbit of the President of the Supreme Court, but in general have greater autonomy as part of the process of agencification.Footnote 88 Thus, these informal practices have transformed both the formal accountability of judges—now under greater scrutiny by the Director—and the Director—now less accountable before the Minister. In addition, they have introduced opaqueness and uncertainty in the exact spheres of responsibilities because of the informalities involved.
III. Informal Managerial Authorities at the Judiciary and Individual Court Levels
Informal practices have transformed the accountability of judges not only through the informal managerial authority of the Director, but also through informal powers of the presidents of courts. The result of these informal practices is uncertainty and lack of transparency in terms of who is responsible for managerial authorities, as detailed in this section. As already mentioned, the president of each individual court has wide discretion in the area of the allocation of cases, formation of specific panels, and such, generally empowered by sections 27, 38, and 48 of the Courts Law. The presidents of the courts generally follow an informal practice according to which they allocate cases and form panels automatically, without their actual intervention, except in exceptionally difficult cases in terms of the legal question or the number of litigants or, in the Supreme Court, in cases of special public significance.Footnote 89 The President of the Supreme Court forms the panels for some special publicly significant cases according to an informal rule of seniority, allocating such cases to the longest serving justices on the bench.
On the legal basis of the presidents of courts’ powers to allocate cases and to select panels, and perhaps also on their inherent powers as presidents of courts, in each specific court the president enjoys wide discretion in the management of the court and its judges.Footnote 90 The same is also true for the President of the Supreme Court, who, as already noted, issues directives on the administration of all the courts based on an interpretation of inherent powers.Footnote 91 While in the past there has been some variance in the way that each individual president managed her courtFootnote 92 —various schemes in terms of the allocation of cases—the centralization and agencification of the courts’ administration has today resulted in a more unified approach. Namely, as noted, the Administration of Courts issues directives on diverse issues such as the ability of judges to work from home, or when they are entitled to sabbatical leave, which are then applied either by the Administration or locally by the president of the court.Footnote 93
Perhaps this centralization is helped by another informal institution: Informal sitting committees that have been formed in the past two decades. These committees are decision-making and policy-making forums at the judiciary-wide level which include the Presidents of Courts’ Forum, the District Courts Presidents’ Forum, the Magistrates Courts Presidents’ Forum, the Labor Law Courts Presidents’ Forum, and the Family Law Court Vice Presidents’ Forum.Footnote 94 Each forum consists of the office holders mentioned—all the presidents of all the courts in Israel sit on the Presidents of Courts’ Forum—and discusses issues that relate to its courts. For example, the Labor Law Courts Presidents’ Forum discuss issues that relate to the Labor Law Courts.
The question, then, of who takes managerial decisions in court administration remains somewhat unclear because of the informalities involved. The presidents of courts seem to be formally responsible for court administration in each of their courts, though legally the issue is not completely clear. However, in practice the Administration of Courts seems to exert a lot of influence. At the judiciary level there are several decision-making bodies, from the Director of Courts and the President of the Supreme Court, through the various decision-making collegial bodies such as the Presidents of Courts’ Forum, finally to the Minister of Justice. Who manages the judges? To whom are they accountable in practice? And who is then held accountable for the management of the courts and the judiciary?
IV. Informal Disciplinary Sanctions
A poignant example of the ways in which informal managerial practices instituted by judges and court administrators have created opacity in the de facto accountability of judges, mentioned in the previous sections, may be seen in the issue of disciplinary proceedings against judges. As already noted, the Basic Law: The Judiciary stipulates that judges are subject to the jurisdiction of a Disciplinary Court composed of judges or retired judges appointed by the President of the Supreme Court. The powers of the Disciplinary Court are set out in the Courts Law and include sanctioning judges for improper behavior under Section 18 of the Courts Law. According to Section 19 of the Courts Law, the sanctions may include a remark, a warning, a reprimand, transfer to another court, or removal from office. The proceedings of the Disciplinary Court are quite rigid, and, for instance, it is not able to impose sanctions which are not set out in the Courts Law, such as the temporary suspension of a judge.Footnote 95
Perhaps for this reason, the presidents of courts, the Director of Courts, and the President of the Supreme Court utilize informal disciplinary action.Footnote 96 A judge slow to decide cases or behaving improperly might face, for instance, an informal reprimand agreed upon by the President of the judge’s court and the President of the Supreme Court.Footnote 97 This informal practice goes beyond the statutory accountability mechanism, in other words, the formal disciplinary proceedings of the Disciplinary Court, that the law has put into place for judges. Not a lot is known about these informal proceedings because of their lack of formality or transparency. Apparently, the judiciary sees these practices not as being meant to deal with “disciplinary problems” but rather with managerial problems such as inefficient judges, as part of the inherent unlegislated authority of the President of the Supreme Court to manage the courts.Footnote 98 Perhaps for this reason judges tolerate these practices and consent to them. Again, informality has created a lack of transparency as to what takes place in these proceedings, and thus also uncertainty as to the de facto accountability of judges.
V. Informal Judge-led Processes in the Appointing of Judges
Finally, informal judge-led processes are also apparent in the appointment of judges, and some of them have in recent years eroded the transparency of this process, and thus, indirectly, public accountability for it. Formerly, all the justices on the Supreme Court used to decide in an informal meeting whom among the candidates they would support for selection for the Supreme Court.Footnote 99 That was until the Courts Law was revised in 2004 to state that the members of the Selection Committee must make their decisions without influence from the body they represent on the Committee.
Still, two current informal processes led by judges and justices must be mentioned. First, the President of the Supreme Court has formed a two-member committee charged with assessing on behalf of the President the rulings of Magistrates Court judges wishing to be promoted to the District Court. This informal committee is not mentioned in law, but the President of the Supreme Court established it in 2007, and in 2019 the President also published a directive regulating it.Footnote 100 This committee is a crucial phase in assessing the professionalism of the candidates for promotion, as it helps the President of the Supreme Court to form her opinion on which of the judges seeking promotion she would propose as candidates to the Selection Committee in accordance with section 7(b) of the Courts Law, which states that only the Minister of Justice, the President of the Supreme Court, or three members of the Selection Committee “as one” may propose candidates.
Second, the Selection Committee has decided that candidates who are not already judges must go through an examination lasting several days led by three judges and two psychologists, with observers from the Israeli Bar. This examination and its significance in the process of appointing judges were not specified in law, but instead in a decision of the Selection Committee.Footnote 101 Thus, the weight that the Selection Committee gives these examinations is unclear, and it has been known for candidates to fail the examination but still be appointed judges. These two crucial informal processes in the appointment of judges, though going through institutionalization, are still largely opaque to the public and thus are problematic in terms of transparency and accountability.
VI. Analysis and Summary of This Section
All of these inner informal rules and proceedings in court administration, led by judges and court administrators—namely, actors within the judiciary—have modified or qualified formal accountability mechanisms. By informally taking responsibility for various managerial processes, these judges and court administrators are transforming the judicial accountability mechanisms set out in law.
These practices may not necessarily be problematic in themselves. As already noted, every judicial system promotes managerial interests pertaining to the efficient running of the courts. Several judicial systems have strengthened court governance and have in the past few decades transferred administrative responsibilities to various judicial self-governing bodies, and it may or may not be desirable to do so in Israel.Footnote 102 Making judges accountable for the quality of their decisions—through assessing them in their promotion—and for their efficiency and good conduct—through the regulation of their conduct by the growing institutional capacity of the Administration of Courts—is an important public interest. Some of these practices may improve court performance and help to protect institutional judicial independence.
However, every judicial system must find the proper balance between these public interests and preserving the decisional independence of judges. Through their informal nature and their opaque rather than transparent qualities, these informal practices shift the balance that formal law attempts to obtain, making them problematic in terms of democratic principles. Indeed, when judges and court administrators high in the hierarchy of the judiciary take informal decisions in the management of the courts without transparently holding themselves accountable for them, the risk is that these practices may potentially undermine the inner decisional independence of the judges or their de facto judicial independence.Footnote 103 For instance, judges wishing to advance in the court system may wish to show the President of the Supreme Court that they decide according to her understanding of the law, or may wish to show their efficiency before the Director of the Courts, instead of simply deciding according to their understanding of the law.
F. Conclusion
The importance of the informal institutions and practices surveyed herein shows that for an understanding of the balance in Israel between the principles of judicial independence, judicial accountability, and the quality and efficiency of justice it is not enough to be aware simply of the formal rules governing the judiciary. The informal rules are part of Israel’s “constitution by convention,” namely the practices and informal institutional arrangements that play a critical role in its constitutional order, beyond the text of the Basic Law: The Judiciary and the Courts Law.Footnote 104
The political campaigns of previous Netanyahu governments against the informal institutions in the appointment of judges, which were set up to protect judicial independence against external political threats, were thus harbingers of the current Netanyahu government’s initiatives against formal institutions designed for the same purpose,Footnote 105 such as the aforementioned attempts to change the membership of the Selection Committee into a more politically one-sided one controlled completely by the ruling coalition.
The possibility that politicians will disregard informal institutions and practices, such as utilizing only professional considerations in appointment, the membership of an opposition member on the Selection Committee, and the institution of seniority in appointing the President of the Supreme Court, is nothing less than an informal constitutional change that detracts from the safeguards of judicial independence, thus threatening judges’ de facto independence without touching, as of yet, their de jure judicial independence. In this light, when politicians act to demolish these informal institutions, they are actually attempting to dismantle the invisible safeguards of judicial independence, which maintain Israel’s credible commitment to the rights of the public, the rule of law, and democracy.
The Israeli constitutional context makes the dangers of democratic decay due to these political assaults particularly dire. First, these assaults are especially dangerous because of the ease with which any parliamentary majority can revise or revoke any constitutional norm, including the constitutional safeguards of judicial independence, because of the lack of an entrenched constitution. Second, they are especially dangerous in light of the aforementioned concentration of power in the hands of the coalition-controlled executive in the Israeli system of government and the correlative feebleness of the safeguards against populist assaults on the separation of powers and judicial independence.
The conclusion is that some of the informal rules and institutions protecting judicial independence, mentioned herein, should undergo a process of formalization through an entrenched basic law. While informal rules and institutions are a necessary component of any credible commitment to the rule of law and democracy, maybe the Israeli case shows that they are not enough to completely fulfill this purpose. In the present atmosphere of authoritarian populism, some formalization and entrenchment of these informal rules is necessary for preventing democratic decay. Indeed, Israel’s formal safeguards of judicial independence are also feeble, as shown by the current governmental attempt to dismantle them by revising the law in a way that would allow the coalition to gain a majority in the Selection Committee. These formal institutions are feeble because of their lack of entrenchment in a constitution or in an entrenched basic law. This law should also go through a process of entrenchment.
The inner informal practices in the judiciary that are used by judges and court administrators to qualify the formal measures of judicial accountability are also problematic, not necessarily for their content—whose normative implications are outside the scope of this article—but for the informal manner in which they transfer responsibility over court administration. Moreover, some of these informal decisions made by presidents of courts or by the Director of Courts in the management of the courts, because they are made opaquely without the decision makers holding themselves accountable for them, risk undermining the inner decisional independence of the judges.
Finally, the informal institutions in court administration, led by judges, make it difficult in terms of legitimacy for the judiciary to fight the current political assaults on the formal institutions protecting judicial independence, as well as previous political assaults on the informal institutions mentioned above, also used to protect judicial independence.Footnote 106 These problems reinforce the conclusion that some formalization and entrenchment of informal institutions is necessary for maintaining the judiciary’s legitimacy as a bulwark protecting Israel’s credible commitment to the rule of law and human rights.
Acknowledgements
The author thanks Dana Blander, Amichai Cohen, David Kosař, Michal Kovalčík, Mordechai Kremnitzer, Katarína Šipulová, and Suzie Navot for their comments on drafts. The author presented a draft at a workshop on “Informal Judicial Institutions” at Vila Grébovka (CEELI Institute), Prague, on October 20-22, 2022, organized by the Judicial Studies Institute, Masaryk University. The author thanks the participants in the workshop, particularly Simone Benvenuti, Lukáš Hamřík, Ondřej Kadlec, David Kosař, Katarína Šipulová, Silvia Steininger, Sophie Turenne, and Attila Vincze, for their comments. The author thanks Kate Elliott for proofreading, and the editorial team of the German Law Journal for its editorial work.
Competing Interests
The author declares none.
Funding Statement
The research leading to this article received funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation program (INFINITY, grant no. 101002660).
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