Case Number
HCJ 9029/16
Date Decided
2-1-2017
Decision Type
Original
Document Type
Full Opinion
Abstract
A petition concerning whether the Knesset is required to ensure that a member of the opposition serves on the Judicial Selection Committee (hereinafter: the Committee) at all times. Background: The two Members of Knesset sitting on the Committee are elected by the Knesset by secret ballot. Since 1990, the Knesset has elected at least one Committee member from the ranks of the opposition. This was also the case in the last elections, with the election of MK Ilatov to the Committee. MK Ilatov was a meber of Yisrael Beitenu, which then sat in the opposition. Shortly thereafter, Yisrael Beitenu joined the coalition. The dispute between the parties concerns a Committee member’s obligation to step down if his party crossed over from the opposition to the coalition, and the requirement to appoint an opposition MK in his stead. The Petitioners predicated their petition, inter alia, on the existence of a constitutional custom.
The High Court of Justice (per Justice N. Hendel, Justices I. Amit and U. Vogelman concurring) dismissed the petition on the following grounds:
The petition was submitted after considerable delay, which justifies its dismissal for laches. The Petitioners took no action in the six months after Yisrael Beitenu joined the coalition, and failed to account for this adequately. The Committee worked intensively during those months. In particular, proceedings began for reviewing candidates for the Supreme Court. MK Ilatov participated in those proceedings, or at least some of them. The implications of accepting the petition at this time could directly affect those sensitive proceedings.
Furthermore, the Petitioners asked the High Court of Justice to rule for the first time on the status of constitutional custom in Israel. They sought the recognition of such a custom in this case, while broadening the definition of custom, through interpretation, to cases where it had never been applied. Inasmuch as the petition should be dismissed for laches, and since this concerns not only the practice but also its interpretation, Justice Hendel was of the opinion that this was not the appropriate case for the first ruling on the issue of the binding validity of constitutional custom. Consequently, there were no grounds for granting the petition in its current form.
At the same time, Justice Hendel was willing to proceed through the analytical process regarding the place of constitutional custom as a binding legal source in the Israeli legal system. The purpose of the discussion was to point out the major issues, without exhausting all the questions to the point of establishing a conclusive position. The reason for this was that failure to address this important issue might send a misleading message even in terms of the lex ferenda, despite the Knesset's conduct in this matter over the last 25 years, and the development of case law and the law on the status of the opposition in the workings of government. In fact, this approach of further analysis without deciding the fundamental issue is in keeping with the case-law tradition, which has established preconditions for the existence of constitutional custom without binding rulings on its force.
In this context, mention was made, inter alia, of the three cumulative tests proposed in the case law for determining the existence of a constitutional custom in a concrete case. This was carried out without deciding the question whether this constitutional institution exists in Israel. The first test is whether the custom exists, i.e. whether the existence of an ingrained practice can be ascertained. This is an empirical question. It is an objective test. The second test is whether the existing custom is recognized and internalized as such. Is there a “sense of obligation”? That is, in carrying out the practice, did the parties intend to imbue it with binding significance? This test examines the relevant community's position on the behavior in question. This is a subjective test. The third test has to do with the existence of a logical rationale substantiating the practice. Justice Hendel's position was that this test needs to be honed and given an added, normative dimension. The test is meant to check the compatibility of the rationale underlying the constitutional custom with the principles of the constitutional regime.
In the present case, there was no disagreement among the parties on the actual existence of a practice to elect at least one Knesset Member from the opposition parties to the Committee. The overall picture also demonstrated that the practice of electing at least one Knesset Member from the opposition was recognized and internalized. As regards the third test, there is no disputing that electing a representative for the opposition to serve on the Committee is worthy, by virtue of constitutional principles of the system that recognize the principle of proportional representation and the minority's right to participate in decision-making processes, and in light of its particular importance in regard to the Judicial Selection Committee. However, we are dealing with interpretative indications as to the scope and content of the practice, with the Petitioners trying to draw an analogy between appointment from the outset and resignation after the fact. In Justice Hendel's view, all things considered, this case did not warrant an exhaustive debate on this question of a change in a party's affiliation.
In any event, the entire panel was of the opinion that the Knesset's customary practice of electing a representative from an opposition party to the Judicial Selection Committee is a worthy one that serves important governance purposes. Without deciding the question whether a constitutional custom exists in general and in the circumstances of the case in particular, the Knesset would do well to regulate the matter in explicit terms.
Keywords
Constitutional Law, Elections
Recommended Citation
Hendel, Neal; Amit, Isaac; and Vogelman, Uzi, "Aviram v. Minister of Justice" (2017). Translated Opinions. 70.
https://larc.cardozo.yu.edu/iscp-opinions/70
