Political Influence on Judges' Benches

By Karola Klatt

Week after week, tens of thousands of people in Israel have been demonstrating against the new right-wing religious government under Prime Minister Benjamin Netanyahu. Justice Minister Yariv Levin unveiled a judicial reform shortly after the new government was sworn in during the first days of the new year, sparking fears at home and abroad that Israeli democracy is under threat.

The planned restructuring is aimed at abolishing the independent judiciary’s power over the parliament. Until now, the Supreme Court reviewed the legality of laws, ordinances and decrees issued by parliament. The Bertelsmann Stiftung's comparative survey of sustainable governance in OECD and EU countries states in its SGI Israel Report 2022: “The Supreme Court is generally viewed as a highly influential institution. It has repeatedly intervened in the political domain to review the legality of political agreements, decisions and allocations. (…) Judges are regarded as public trustees, with an independent and impartial judicial authority considered as a critical part of the democratic order.“

According to plans by Netanyahu's government, parliament is to be given the right to overrule Supreme Court decisions with a parliamentary government majority. This would allow the government to push through laws that have been rejected by the Supreme Court, such as a recent law that was hastily passed to allow legally convicted Shas chairman Arye Deri to hold a ministerial post. The government's anti-liberal plans also call for MPs to form a majority on the committee that decides on the appointment and dismissal of judges. This will also serve to increase political influence on the selection of judges.

With its plan, the Israeli government is following the same path of political appropriation of the judiciary as Hungary, Poland and Turkey. But it is not only countries criticized for their autocratic tendencies that are extending their influence over the courts. Criticism of the independence of the judiciary and undemocratic appointment practices for the highest judicial offices can also be levied at countries that are far less in international gaze.

In the Netherlands, for example, the Supreme Court, the High Council of the Netherlands, is not allowed to review the constitutionality of laws as in Germany or the USA. This task is solely undertaken by the Parliament - which passed the laws in the first place. The High Council is the highest judicial authority for civil, criminal and tax law. The authors of the SGI Netherlands Country Report for 2022 note a “relatively strong political influence” on this judicial body by international standards, because it “advises government in its legislative capacity, and it also acts as an administrative judge of last appeal involving the same laws.” The same is true of the Council of State, the highest court of appeal against administrative decisions, which in 2020 was criticized in a parliamentary investigation into the so-called child benefits affair for making decisions for politically motivated reasons. For this reason, the Netherlands scores only 6 out of a possible 10 points in the SGI ranking for control of the government and administration by an independent judiciary.

In Iceland, the appointment of judges has often caused debate. When a new court of appeal was created in 2017, the Minister of Justice Sigríður Andersen overrode the recommendations of a committee and arbitrarily appointed four of the 15 judges, bypassing parliament. The judges who were overruled successfully sued the Supreme Court for compensation and damages. Complaints about the appointment eventually landed at the European Court of Human Rights, which in March 2019 condemned Iceland for violating Article 6 of the European Charter on Human Rights, guaranteeing everyone the right to a fair trial. The reasoning behind the decision was that the Minister of Justice had violated the legal framework designed to ensure the independence of the judiciary in Iceland and that there had been “serious irregularities” in the appointment of judges. As a result, the justice minister resigned, four new judges were appointed, and guidelines were issued to prevent any future violation of the law.

The Japanese Constitution stipulates the division of powers, which means that the Supreme Court has the task of controlling the executive and legislative branches based on the Constitution. In carrying out this task, however, the Supreme Court of Japan has shown itself to be somewhat passive. In its 75-year existence, it has only pronounced eleven laws as being unconstitutional. One explanation for this is the dangerous proximity of the judiciary as a whole to the government.

This close-knitted relationship is particularly evident in the appointment of judges. The constitution grants the cabinet the right to appoint judges to the Supreme Court as well as to the lower courts. The president of the Supreme Court is merely nominated by the cabinet, to be confirmed by the emperor. This procedure significantly restricts judicial autonomy, as the ruling majority can use its appointment power to reward judges who are compliant with government policy with promotion and ignore those who are less compliant with the executive branch. In the SGI ranking, Japan therefore receives only 2 out of a possible 10 points for the independence of judicial selection.

The judiciary, and in particular the supreme courts, are the strongest independent checks and balances for holding governments accountable. The Netanyahu government argues that with its judicial reform it is merely reflecting the will of the majority of the population, that it is thus “part of a fair democratic process”. But limiting the power of judges and making them politically subservient is usually only the beginning of an effort to eliminate potential opponents and cement one's own power. Thus, it is right and important to stand up for the independence of the judiciary - in Israel and everywhere where the rule of law shows shortcomings.

Karola Klatt is a Berlin based journalist writing about comparative political research and editing the Bertelsmann Stiftung's SGI News and BTI Blog