The First Fifty Years of the Supreme Court of Israel

Abstract

The First Fifty Years of the Supreme Court of Israel Haim H. Cohn The Supreme Court of Israel is the successor to the Supreme Court of British Mandatory Palestine. Itretained itsjurisdiction but changed its composition. In Palestine, the Supreme Court was composed ofa (flexible) number ofBritishjudges, one ofwhom was the ChiefJustice; and one Justice ofeach the Muslim, Christian and Jewish communities. They were appointed by the High Commissioner for Palestine upon instructions from the British Secretary of State for the Colonies, and officiated during their pleasure (Britishjudges were from time to time transferred from one colony or dominion to another). They sat in courts ofthree, withthe ChiefJustice or the Senior (Puisne) British Judge presiding. Generally speaking, the British judges were learned, experienced, unbiased and incorruptible—albeit mostly imbued with some grain ofsupercilious­ ness towards native law, customs and people. The question of how Justices of the new Supreme Court ofIsrael were to be appointed was originally solved by having the Minister ofJustice nominate them, and the Provisional government (which had assumed the powers ofthe High Commissioner) appointthem. Itwas decidedthatthe first Court shouldbe composed offive Justices: there were a good many quali­ fied candidates from among whom the govern­ ment chose three prominent attorneys (Moshe Smoira, who became President ofthe Court, as the Chief Justice was to be designated, MenachemDunkelblum, and Isaac Olshan), one rabbinical law expert (Simha Assaf), and one former judge of a Palestinian district court (ShneurZalman Heshin). Ofthe attorneys, two had been presidents of the Jewish Bar Asso­ ciation in Palestine. It was decided from the outset, in good old Jewish tradition, that they would always sit in courts of three, with the President or the senior Justice presiding; se­ niority was to be determined according to the date of appointment. It was never considered to have the Court sit en banc (as in the United 3 4 JOURNAL OF SUPREME COURT HISTORY States): already then the expected workload— including the residum from the mandatory Court—rendered a division oflabor advisable. It was not until 1957 that the President or his Deputy were empowered to enlarge the com­ position of the Court in any given case to a larger, odd number ofjudges, a powerthat sub­ sequent Presidents exercised abundantly, and the present President (Aharon Barak) more of­ ten than any ofhis predecessors. The appointment of Supreme Court Jus­ tices by the Executive (and the appointment of judges of lower courts by the Minister of Jus­ tice) encountered heavy misgivings. It was feared that the appointment of judges by the Executive branch ofthe government would ad­ versely affectjudicial independence and involve a serious flaw in the democratic separation of powers. Another mode of appointment had therefore to be found, and as no precedent or model from other democracies appeared to us commendable (for reasons I need not go into here), we set out to construct a system of our own. The starting point for our considerations was that each ofthe three branches ofgovern­ ment had, indeed, some legitimate interest in the selection ofjudges, as had the Bar. So we proposed a committee ofnine to be established: the Minister ofJustice (presiding) and one other Cabinet minister; two members ofthe Legisla­ ture (Knesset); two members of the Bar to be nominated by the Bar Council; and the Presi­ dent and two Justices of the Supreme Court, the Justices to be elected biannually by the lull Bench. As for the members of parliament, the idea was that they should come from the oppo­ sition, the government coalition being already represented by the ministers, and the opposi­ tion also having a legitimate interest ofits own; but elections in the Knesset for membership in the Committee being by secret vote, it turned out that the majority carried its own candidates from coalition parties. In order to avoid judi­ cial appointments motivated by political inter­ ests, the majority of the Committee is profes­ sional, the assumption being that jurists and lawyers will make their selections on profes­ sional merits only. The Committee submits its nominations to the President of the State who makes the appointments accordingly, without exercising any discretion on his part. Candi­ dates are proposed to the Committee either by the Minister of...