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Temporary Appointments and Judicial Independence: Theoretical Analysis and Empirical Findings from the Supreme Court of Israel

Published online by Cambridge University Press:  04 July 2014

Eli M. Salzberger
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Extract

Judicial independence is regarded as an essential condition for the rule of law and separation of powers — two pillars of liberal democracy. Judicial independence ought to include components to secure independence on the individual level, as well as components to secure independence on the institutional level of courts. The most important objects of judicial independence are the other branches of government, but some degree of independence from the general public and from other judges is required as well. These features of independence can be achieved by rigid and entrenched arrangements regarding tenure, immunity from wage decrease, special procedures for appointment and promotion of judges, mechanisms for the allocation of cases to judges and the composition of the benches, and more.

Type
The Israeli Supreme Court: Social Science Insights
Information
Israel Law Review , Volume 35 , Issue 2-3 , Summer-Autumn 2001 , pp. 481 - 523
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2001

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References

1 For a definition of judicial independence and a detailed account of its object see: Salzberger, Eli M., “A Positive Analysis of the Doctrine of Separation of Powers, or: Why Do We Have an Independent Judiciary” (1993) 13 International Review of Law and Economics 349, at 350–352CrossRefGoogle Scholar.

2 Sections 7 and 10 of Basic Law: Judicature, respectively. Judges wages can be cut only if it is part of a general wage cut. Section 7(1): A judge's term ends when he gets his pension. Section 17(1A): Judges get their pension when they turn 70.

3 Section 4 of Basic Law: Judicature.

4 The first temporary appointments were made even before the statute setting the procedure of appointments was enacted. Shimon Agranat (later the President of the Supreme Court) served in this status from December 1948 to December 1949, and Moshe Silberg served a year and a half as a temporary judge from December 1948 until May 1950.

5 For the definition of structural judicial independence see Salzberger, supra n. 1.

6 Courts Act, 1971, sec. 24(1) holds: “The Lord Chancellor may appoint a person to be a deputy judge of the High Court, during such period or on such occasions as he thinks fit.”

7 The qualification for high judicial appointment is ten years of practice as a barrister. See: Courts Act, 1971, sec. 24(1); The Supreme Court Act, 1981, sec. 9, Halsbury's Laws of England, Courts, 5. The Supreme Court of Judicature, s. 866; Practice and Procedure, 7. Trial process, sec. 473. The Lord Chancellor is empowered also to extend the appointment of judges beyond the mandatory retirement age of 75.

8 Sec. 14 of the Courts Act, 1940.

9 This arrangement is specified today in Art. 10 of The Courts Act [Consolidated Version], 1984.

10 Sometimes after another lengthy period at the District Court. Justice Türkel, for example, was temporarily appointed to the Supreme Court in 1980-1981 and in 1983-1984. He received a permanent appointment to the Supreme Court in 1995. At least 4 other judges served twice as temporary appointees on the Supreme Court.

11 The known cases where this authority was used are the Eichman and Demjanyuk trials in which a Supreme Court judge presided over the trial court (the District Court).

12 See: Spiller, Peter, “Judges at Work: The New Zealand Court of Appeal (1958-1976)” (1993) 1 Waikato Law Review 78–107Google Scholar. The arrangement can be understood against the historical background of a lack of a separate institution of a court of appeal. In the past, appeals on decisions of the Supreme Court were heard by an ad-hoc bench of judges from the Supreme Court itself. Spiller writes:

“The entrusting of appellate work to judges especially appointed for this purpose was designed to establish a Court of Appeal as a separate institution with a distinctive identity. However, it was important for the Government of the late 1950's to make the new system acceptable to the Supreme Court judiciary (particularly those judges who were not in line for appointment to the Court of Appeal), and minimize the perception of appointment to the Court of Appeal as promotion. The result was that the Judicature Amendment Act 1957 maintained important links between the Supreme Court and the new Court of Appeal, and these ties significantly qualified the notion of a “permanent and separate” Court of Appeal.”

The result, however, due to the institutional aspects is even more problematic (vis-à-vis judicial independence) than the old practice of whole ad-hoc benches to hear appeals.

13 The Hon Justice Michael Kirby AC CMG, “Acting Judges – A Non-Theoretical Danger,” New South Wales Young Lawyers' Conference, Luncheon Address Sydney, Monday 21 September 1998 http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_young2.htm.

14 More on the debate see: Liverani, Mary Rose, “Acting Judges: Bar Warns of Threat to Judicial Independence” (1999) 37(2) New South Wales Law Society Journal 52Google Scholar.

15 Art. 127 of the 1950 Indian Constitution, and see also http://www.lawinc.com/Statscope/constitutionofindia5.htm.

16 Art. 49 to the Ontario Courts of Justice Act, R. S. O 1996. It is noteworthy that the total number of judges in the Supreme Court is subject to changes by the Lieutenant Governor in Council (art. 2(3) of the Act).

17 The report is published in the official site of the Norwegian Justice Ministry: http://odin.dep.no/jd/engelsk/dep/om_dep/012001-150049/index-dok000-b-n-a.html.

18 The committee responsible for the study above was aware of the problematic arrangement in Norway vis-à-vis judicial independence, but it recommended to stick to it because of its major contribution to shorten delays.

19 In the case of Jens Viktor Plabte v. The State, Case No. 82 B/1997 No.108/1957, The Court held:

“The courts guarantee the rule of law for citizens in their relations with the legislative power and the executive power — they can try the constitutionality of laws and have judicial power to review the decisions of the executive. Since the State is a party in a considerable amount of cases decided by the courts, it is especially important that the law-seeking public can have full confidence in the individual judge making his judgment without having to consider any negative consequences for his position. The judges' irremovability in accordance with sec. 22 of the Norwegian Constitution is therefore fundamental for the trust that the law-seeking public can have in their objectivity …

Temporary judges do not have the same protection of their positions as permanently appointed judges in office have. For practical reasons one cannot completely avoid the use of temporary appointed judges, but because of the difference in the protection of their positions, the use is open to objections and should be restricted as far as possible. This has also been emphasized by the Supreme Court, see especially in Rt. 1984, page 979 and Rt. 1995, page 506.”

20 Conclusions of the First Study Commission of the International Association of Judges on Important Issues Concerning the Judiciary (1980-1997), Dakar (Senegal), 26 November-1 December 1983.

21 More on the normative analysis of judicial independence and its components see: Salzberger, Eli, “The Doctrine of Separation of Powers and the Role of the Attorney General” (1997) 5 Plillim 149, at 152–158Google Scholar; Salzberger, Eli, “Judicial Independence and the Judicial Branch in Israel: On Shimon Shetreet's ‘Justice in Israel — A Study of the Israeli Judiciary’” (1994) 2 Mishpat Umimshal 535Google Scholar.

22 For the definition of structural judicial independence see: Salzberger, supra n. 1.

23 See: Brennan, Geoffrey and Hamlin, Alan, Democratic Devices and Desires (New York, Cambridge University Press, 2000) ch. 2CrossRefGoogle Scholar; Voigt, Stefan and Salzberger, Eli, Choosing Not to Choose: When Politicians Choose to Delegate Powers (2002) 55 Kyklos 289CrossRefGoogle Scholar.

24 Downs, Anthony, An Economic Theory of Democracy (New York, Harper and Row, 1957)Google Scholar; Buchanan, James M. and Tullock, Gordon, The Calculus of Consent — Logical Foundations of Constitutional Democracy (Ann Arbor, University of Michigan Press, 1962)CrossRefGoogle Scholar; Buchanan, James M., The Limits of Liberty: Between Anarchy and Leviathan (Chicago, University of Chicago Press, 1975)Google Scholar.

25 Some of the works that can be classified under this heading are: Epstein, Richard, “Beyond the Rule of Law — Civic Virtue and Constitutional Structure” (1987) 56 George Washington Law Review 149Google Scholar; Macey, Jonathan, “Promoting Public-Regarding Legislation Through Statutory Interpretation: an Interest Group Model” (1986) 86 Columbia Law Review 223CrossRefGoogle Scholar; Macey, Jonathan, “Competing Economic Views of the Constitution” (1987) 56 George Washington Law Review 50Google Scholar.

26 Landes, William and Posner, Richard, “The Independent Judiciary in an Interest-Group Perspective” (1975) 18 Journal of Law and Economics 875CrossRefGoogle Scholar.

27 Ramsayer, J. Mark, “The Puzzling (In)dependence of Courts: A Comparative Approach” (1994) 23 Journal of Legal Studies 721CrossRefGoogle Scholar.

28 Crain, W. Mark and Tollison, Robert D., “The Executive Branch in the Interest-Group Theory of Government” (1979) 8 Journal of Legal Studies 555CrossRefGoogle Scholar.

29 In a different place I criticized the Landes-Posner-Crain-Tollison approach. See: Salzberger, supra n. 1, at 359. In a nutshell, their main problem is that their models are based on a very problematic assumption that while a dependent judiciary acts as an agent of the current government and decides cases according to the current government's wishes, making the commodity legislation less durable and thus reducing the profits of the government and interest groups, an independent judiciary decides cases according to the original legislature's will, and therefore it will make legislation more durable and thus more profitable. This pivotal underlying assumption is supported neither by Landes-Posner-Crain-Tollison empirical findings, nor by theoretical proof. Findings of Paul Fenn and myself from a study of the judges in the English Court of Appeal tend to reject this assumption as well. See: Salzberger, Eli and Fenn, Paul, “Judicial Independence: Some Evidence from the English Court of Appeal” (1999) 42 Journal of Law and Economics 831CrossRefGoogle Scholar.

30 Crain, and Tollison, , “Constitutional Change in an Interest-Group Perspective” (1979) 8 Journal of Legal Studies 165CrossRefGoogle Scholar.

31 See Salzberger, supra n. 1. This model was further developed by Stefan Voigt and Eli. M. Salzberger, supra n. 23, portraying the independence of the judiciary within a general theory of delegation of powers. Politicians, for various reasons would prefer to delegate some of their competence to independent bodies, such as central banks, international organizations and courts. In this manner the politicians can maximize their utility, not only in the narrow self-interested sense, but also as a mechanism to advance their ideologies, which require long-term considerations and decisions, crossing the boundaries of elections cycles.

32 A general description of the tasks and methodology of this study can be found in: Rattner, A. and Salzberger, E., “Supreme Court Decision-Making: A Realistic Point of View” An interim Report, Working Paper, the Center for the Study of Crime, Law and Society, University of Haifa (2000)Google Scholar, and “Judicial Decision-Making in the Israeli Supreme Court: A Realistic Point of View from a Longitudinal Perspective” http://hevra.haifa.ac.il/soc/LawSociety/June-99/rattner%20and%20Salzberger.htm.

33 There are often gaps between the legal formalist attention to Supreme Court decisions and the attention given to court decisions by the media and public. Many cases which find consternation in the general public are only one or two line judgments, which will not enter the mausoleum of leading cases and might not even be published in the law reports. The impact of the Supreme Court on the public discourse does not fully correspond to its formal product — reasoned judgments.

34 According to the data published by the Central Bureau of Statistics. In Israel the official law reports are currently published by the Bar. Thus, the Bar is instrumental in deciding which are the cases to be published.

35 For a survey of this movement see Summers, Robert (ed.), American Legal Theory (New York, 1992)Google Scholar. The main message of this movement was that law is not what is written in the statute books; law is what the courts and other enforcement agencies do. Judicial decision-making is not a mere objective application of statutes and precedents; it is influenced by various characteristics of judges. Law and politics, like law and society, are therefore intertwined. The study of law is a branch of social studies.

36 Judicial behaviorism, for example, derives its methods from psychology; Jurimetrics uses statistical methods to examine judicial decisions. See Schubert, Glendon, The Judicial Mind Revisited: Psychometric Analysis of Supreme Court Ideology. (New York, Oxford University Press, 1974)Google Scholar.

37 For a survey see Veljanovski, Cento, The New Law and Economics — A Research Review (Oxford, 1982)Google Scholar.

38 For a survey of some of the empirical studies on the functions of courts see Cotterrell, Roger, The Sociology of Law — An Introduction, (London, Butterworths, 1992), ch. 7Google Scholar.

39 Shachar, Yoram, Harris, Ron and Gross, Meron, “Citations in the Supreme Court — Quantitative Analysis” (1996) 27 Mishpatim 119Google Scholar; Shachar, Yoram, Gross, Meron and Harris, Ron, “Anatomy of Discourse and Dissent in the Supreme Court — Quantitative Analysis” (1997) 20 Iyunei Mishpat 749Google Scholar; Shachar, Yoram and Gross, Meron, “Approval and Dismissal of Applications to the Supreme Court — Quantitative Analysis” (1997) 13 Mehkarei Mishpat 329Google Scholar; Gross, Meron and Shachar, Yoram, “The Allocation of Benches in the Supreme Court — Quantitative Analysis” (1998) 29 Mishpatim 567Google Scholar.

40 Which amount to around 40% of the published cases in those years, i.e., about 5% of the total number of cases dealt with by the Supreme Court. Their research focused mainly on analysis of the use of citations by the Supreme Court, concurrence and dissents and colleaguial behavior of judges.

41 Shachar, Harris, and Gross, Iyunei Mishpat, supra n. 39, at 755.

42 It should be mentioned that there is also no correlation between the decisions of the Court which are the bread and butter of the formalist approach to legal research, and those particular decisions which have a highly significant impact on public decision-making and policy. In many cases decisions which are important from the perspective of political influence are recorded as one line rulings (such as “the appellant withdrew her application. There is no order for costs”) and do not get published at all, thus left out of the formalist study of the Court.

43 For Example: Moshe Cohen, Eliyahu Manni, Itzhak Kister. On the special chairs at the Supreme Court see Birnhack, Michael and Gusarski, David, “Designated Chairs, Dissenting Opinions and Judicial Pluralism” (1999) 22 Iyunei Mishpat 499Google Scholar.

44 For a definition of structural judicial independence see: Salzberger, supra n. 1, at 350-352.

45 This insight is contingent upon two additional presumptions, which are subject to debate: 1) that the tradition which characterizes the work of the Supreme Court from its establishment, according to which the deputy President of the Court is appointed with the retirement of the President as the President, will prevail; 2) that the retiring Presidents do not have aspirations to another job outside the judiciary, which may impair their judicial independence.

As indicated above, both assumptions can be disputed. Lately we are witnessing various proposals of those who want to curtail the powers of the Supreme Court to change the tradition according to which the most senior judge in the Court is appointed as its President and the next senior judge is appointed as deputy President. In addition, in recent decades the names of the retiring Presidents and deputy Presidents of the Court were mentioned in the context of top positions outside the judiciary, such as the President of the State of Israel. This can create forms of dependency of Presidents while they still sit on the bench. In any case, it seems that for the purpose of examining the decision-making patterns of judges in the past, as we do in this study, the assumptions do hold.

46 In other words, each decision of the Court was broken down into three or more individual opinions (according to the number of judges who sat on the bench). When a collective decision was given without mentioning who was the judge who wrote it (as opposed to a judgment written by one of the judges, followed by “I concur” by the other judges), it is related to all the judges on the bench.

47 Since we cover in this study all types of Supreme Court cases, even under the assumption that the judge who is initially assigned to write the decision is the “specialist” in the area of law in question, the aggregate of elaborate opinions can be a good indicator for overall judicial quality.

48 For a possible explanation for the low success rate at the High Court of Justice see Dotan, Yoav, “Judicial Rhetoric, Government Lawyers and Human Rights: The Case of the Israeli High Court of Justice during the Intifada” (1999) 33(2) Law and Society Review 319CrossRefGoogle Scholar. Dotan asserts that in most cases against the central government and its departments, the High Court department at the Attorney General's office serves as a mini-court. The lawyers there impose on the government the appropriate actions when they think that the application ought to be allowed and the Supreme Court judges trust their discretion. Thus, if the application does arrive to be litigated in the Supreme Court, the chances that it would be allowed are slim.

49 If we look at the empty half of the glass — at the rate of dismissals — the gaps are even wider. While the Presidents and deputy Presidents dismiss 65.1 percent of the cases, the temporary appointees who were promoted dismiss only 52.9 percent of the cases. This might be an interesting finding in the context of the role of the Court as promoter of compromises, or the will of judges to refrain from decision on the merits of an application. The temporary judges who were not promoted refrain from decision in 39.5 percent of the cases, the temporary judges who were promoted — in 34.7 percent, the tenured judges — in 29.4 percent, and the Presidents and deputy Presidents refrain from deciding only in 24.8 percent of the cases heard by them.

50 Again, the figures are calculated on the basis of the individual opinions of the judges on the bench.

51 Salzberger, Eli, “The Judges of the English Court of Appeal: Public Law Decision-Making Characteristics and Chances of Promotion to the House of Lords” in Nagel, Stuart (ed), Handbook of Global Legal Policy (Marcel Dekker, 2000) 223Google Scholar; Salzberger, Eli and Fenn, Paul, “Judicial Independence: Some Evidence from the English Court of Appeal” (1999) 42 The Journal of Law and Economics 831CrossRefGoogle Scholar.

52 In the English case we examined not only whether the judge was promoted to the House of Lords, but also the length of time until such a promotion. See the article in the Journal of Law and Economics, ibid.

53 In the Journal of Law and Economics, supra n. 51, we presented a more complicated model, measuring not only a dichotomous decision of promotion, but also a time factor — after how many years in the Court of Appeal the judge was promoted (if he was). In order to avoid the technical complexities of this survival analysis, I present here a more simple model, which was not published before. It is noteworthy that the results of the more complicated model and the current one are similar.

54 A significant result is when pr>Chi square is lower than 5%.

55 We did not find a similar correlation between the age at first judicial appointment (FIRSTJA) and promotion chances.

56 Another possible explanation for the English results regarding elaborate opinions is the fact that our data included only public law decisions. The figures might have been different had we looked at all Court of Appeal decisions.

57 Cohen, Morris R., “Law and Scientific Method” in Jurisprudence in Action — A Pleader's Anthology (New York, 1953) 111, at 129Google Scholar.