The High Court of Justice ruled on Sunday that Justice Minister Yariv Levin’s refraining to elect a chief justice for nearly a year was unlawful, and ordered him to begin the procedure of appointing a new permanent chief justice.
The ruling was unprecedented, as no justice minister has acted this way in the past, and is likely to deepen the crisis between the justice minister and the nation’s highest court.
Israel’s chief justice is appointed by a regular majority in the nine-member Judicial Appointments Committee, which is chaired by Levin. Traditionally, the committee appoints the judge with the most time on the bench, in a process known as “seniority.” The next in line to become chief justice following the retirement of former chief justice Esther Hayut in October was Yizhak Amit.
However, Levin has refrained from holding a vote to elect Amit; Amit is considered a liberal judge, and Levin has supported the candidacy of conservative judge Yosef Elron, who was the only other judge to apply for the position. Judge Uzi Fogelman has served as interim chief justice, but Fogelman is set to retire in October.
The committee with Levin in charge has appointed approximately 170 judges since he took office, all for lower courts, but has not yet replaced the vacancies left by Hayut and fellow judge Anat Baron’s departure in October, nor for Fogelman’s spot, which will soon be vacant as well. Other than the issue of the chief justice, however, the three judges who authored Sunday’s ruling – Yael Vilner, Ofer Groskopf, and Alex Stein – did not order the justice minister to initiate the process to fill these vacancies.
Sunday’s ruling came after the Movement for Quality Government in Israel (MQG) petitioned against Levin for refraining to make the appointments. While the law says that the justice minister has the power when to convene the committee and what to place on its agenda, the justice minister does not have the prerogative to ignore the law’s purpose to appoint a chief justice, by leaving the position permanently vacant, MQG argued.
Conflict of interest or public interest?
Levin stated in his defense that he wanted to reach “broad agreement” on the identity of the next chief justice, and argued that it was his right to do so. However, Vilner wrote in the majority opinion that this could not be the only consideration and that the justice minister was required to consider the main purpose of the law as well.
Levin also argued that the judges had a conflict of interest in that they were ruling on a topic that directly involved their own court. Vilner rejected this argument, writing that the judges were not ruling on whom the chief justice would be, but rather that the need for a permanent chief justice be appointed was critical for the public as a whole. The interest was therefore a public interest and not a personal one by the judges, and as such did not conflict with their ability to rule on the issue, Vilner wrote.
Vilner added that the court had given Levin ample time to attempt a compromise and done all it could to avoid resolving the issue by judicial decree, but wrote that the court could wait no longer since the court system was entering “paralysis.”
As opposed to the chief justice appointment which requires a simple majority, appointing new justices requires a majority of at least seven out of the nine committee members. The law itself thus puts an emphasis on broad agreement, and therefore Levin’s refraining from appointing them was lawful and no judicial order was required, Vilner wrote.
The court decided that Levin must publish within 14 days the list of candidates for the position, and convene the committee to elect the chief justice immediately afterward.
In addition to his position as leader of the court system and as responsible for case assignments on the High Court bench, the chief justice holds a number of statutory positions, including, for example, electing members of National Committees of Inquiry.
Levin responded by harshly criticizing the court’s decision but refrained from saying that he would not respect the ruling. The justice minister said that the order “directly contradicted the law” and blamed the judges of a “severe conflict of interest.”
Levin, the chief proponent of the government’s controversial judicial reforms in 2023, said that the court “cynically took advantage” of his decision to freeze the reform after war broke out on October 7. The justice minister said that the court had rejected “with contempt” a compromise decision he proposed at the end of August, and he accused the judges of a “forceful takeover” of the authorities.
The ruling was a “ringing slap in the face” of 2.5 million of the coalition’s voters and “many others who demand the diversification of the High Court,” and turned them into “second class citizens,” Levin added.
The justice minister concluded that he “will not be able to work with a chief justice who was appointed illegally by his friends, and is illegitimate in the eyes of an enormous population.”
MQG, the petitioner in the case, “strongly condemned” what it said was Levin’s “irresponsible words.”
“His [Levin’s] blatantly contemptuous response to the Supreme Court ruling is a direct continuation of his misguided policy of ignoring the law and violating the principles of democracy,” MQG wrote.
“Minister Levin accuses the court of a conflict of interest, but ignores the serious conflict of interest in which he himself is embroiled as the minister of justice who is refusing to fulfill his legal duty. His claim that the order is ‘absolutely contradictory to the law’ is false and misleading. The court made it very clear how the minister’s interpretation of the law is the one that is contrary to its language and purpose,” MQG said.
The statement continued, “Accusing the court of ‘forceful takeover’ is shocking hypocrisy on the part of those who tried to trample the independence of the judiciary and subordinate it to their political wishes. The claim that the order is a ‘slap in the face’ to coalition voters is cheap demagoguery. The role of the court is to protect the rule of law and the rights of all citizens, not to please one political group or another.”
MQG added, “The minister’s threat not to work with the chief justice (president) of the Supreme Court who will be legally appointed is the crossing of another red line which indicates a complete disdain for the principle of separation of powers. We call on the minister of justice to retract his dangerous words, respect the ruling of the Supreme Court and fulfill his duties as required by law. If he is unable to do so, he must resign from his position immediately.”