The Supreme Court in the Constitution

Judicial power

1. (a) Judicial power is vested in the following courts:

(1) the Supreme Court;

(2) a District Court;

(3) a Magistrate's Court;

(4) another court designated by Law as a court.

In this Law, "judge" means a judge of a court as aforesaid.

(b) Judicial power is vested also in the following:

(1) a religious court (beit din);

(2) any other court (beit din):

(3) another authority all as prescribed by Law.

(c) No court or court (beit din) shall be established for a particular case.

Are the religious courts independent of the judicial system?
The first part of the existing article 1 refers to the ordinary courts and the latter half deals with the special courts, including the religious courts, but all types of courts mentioned here enjoy judicial power. The question arises whether these are two separate and autonomous systems of courts and tribunals, or whether this is a single hierarchical system in which the religious courts answer to the higher civil courts and the Supreme Court as well. The question touches on the Jewish identity of the state; de facto, the Supreme Court has begun imposing judicial review on religious tribunals as well by virtue of its authority from article 15 of the Basic Law: The Judiciary (see text above on HCJ authority under Article 15(d)3).

Religious tribunal independence from the Supreme Court
MK Avraham Ravitz (Yahadut Hatorah) advocated full autonomy for religious tribunals, removing them from the scope of judicial review on all topics on which the religious tribunals have been given exclusive authority to rule, e.g. marriage and divorce. (see discussion on article 20 below, specifically, rulings and the various court systems).

Proposed draft: equal status for the various courts
Prof. Ron Shapira, Dean of Bar Ilan Law School, suggested that the new article 1 read, "Judicial power is vested in the following bodies: 1. The Supreme Court; 2. A District Court; 3. A Magistrates’ Court; 4. A Religious Tribunal (beit din); 5. Another court designated by the Law as a court; 6. Another beit din or authority as prescribed by law." This text would ensure equal standing for the religious tribunals and all other courts. The committee accepted this wording.

The prohibition on establishing a court for a particular case
Article 1(c)
It was agreed that the article expresses the principle that justice not be dependent on the particulars of a single case. It was agreed that this principle remain in the constitution.

Independence

2. A person vested with judicial power shall not, in judicial matters, be subject to any authority but that of the Law.

Article 2: Independence of the Judiciary
The committee agreed on the constitutional importance of judicial independence, and decided to leave this article in the constitution.

Publicity of proceedings

3. A court shall sit in public unless otherwise provided by Law or unless the court otherwise directs under Law.

Debate in the special and religious tribunals must be public as well
The principle of public access to the judicial debate is a central constitutional principle, but the current wording of Article 3 refers only to "courts," and does not apply the principle of public access to other courts and tribunals like the religious courts or the labour courts. There was a recommendation to explicitly include all bodies with judicial power in the principle of public access, unless the law should provide otherwise. Such an amendment would require changes to legislation and the establishment of directives to allow the functioning of the special tribunals, including religious courts, which sometimes legitimately require privacy to hear and decide certain cases.

Appointment of judges

4. (a) A judge shall be appointed by the President of the State upon election by a Judges' Election Committee.

(b) The Committee shall consist of nine members, namely, the President of the Supreme Court, two other judges of the Supreme Court elected by the body of judges thereof, the Minister of Justice and another Minister designated by the Government, two members of the Knesset elected by the Knesset and two representatives of the Chamber of Advocates elected by the National Council of the Chamber. The Minister of Justice shall be the chairman of the Committee.

(c) The Committee may act even if the number of its members has decreased, so long as it is not less than seven.

The speakers agreed there was no reason to make sweeping changes in the judicial nomination procedures, and preferred to retain the current system.

Prof. Ron Shapira presented his stance on the nomination of judges. Shapira pointed out the shortcomings of the current method which, he explained, does not promise the excellence of judicial candidates. He suggested implementing the findings from Human Resources studies on recruitment in other realms. Shapira expressed the belief that ensuring representation of minority groups in the Supreme Court (e.g. an Arab justice, a religious justice, etc.) is insufficient; rather, the importance lies in ensuring a broad spectrum of views in Supreme Court decisions.

Proposed draft: Establishing in the constitution the requirement to establish in law the procedures of the Judges’ Nomination Committee

In an effort to advance the transparency of the Judges’ nomination committee, Prof. Shapira and Prof. Ze’ev Segal of Tel Aviv University suggested the constitution include an article authorizing the legislator to establish in law working procedures for the Nominations’ Committee, recruitment methods, and other relevant procedural details. Such a article is necessary in light of the fact that the Committee is currently permitted to decide its own working procedures and may release the details of its considerations to the public, or not, at its own discretion. The committee agreed to prepare one possible draft in this spirit.

Nationality

5. Only an Israeli national shall be appointed judge.

Prerequisite for a judge - Israeli citizenship
The committee debated whether to require a Judge who is a dual citizen to relinquish his additional citizenship, or at least do everything in his power to relinquish such citizenship. A similar directive exists regarding members of Knesset.

Is dual citizenship an obstacle to fair judging?

MKs Avraham Ravitz, Haim Oron (Meretz) and Eti Livni (Shinui) proposed that, in light of the trend of globalization and multiplicity of citizenship, a candidate to be a judge in a court or religious tribunal should not be disqualified simply because he or she holds dual citizenship.

Should the requirement of citizenship be included in the constitution or in ordinary legislation?

The Committee agreed that while this stipulation must be included in the constitution when it applies to candidates for the Knesset, since it restricts the fundamental right to be elected , the same does not apply to the case of judges. Instead the Committee agreed to come up with a formula whereby the constitution empowers ordinary legislation to restrict the right to be nominated as a judge in that regard.

Declaration of allegiance

6. A person appointed judge shall make a declaration of allegiance before the President of the State. The declaration shall be as follows:

"I pledge myself to be in allegiance to the State of Israel and to its laws, to dispense justice fairly, not to pervert the law and to show no favour."

The declaration shall be reworded to reflect the changes decided upon in other meetings of the Committee regarding other offices’ oaths (judiciary, executive, president).

Period of tenure

7. The tenure of a judge shall begin upon his declaration of allegiance and shall end only -

(1) upon his retirement on pension; or

(2) upon his resignation; or

(3) upon his being elected or appointed to one of the positions the holders of which are debarred from being candidates for the Knesset; or

(4) upon a decision of the Judges' Election Committee prepared by the chairman of the Committee or the President of the Supreme Court and passed by a majority of at least seven members; or

(5) upon a decision of the Court of Discipline.

Is there justification for a different retirement age for judges?
Prof. Ze’ev Segal wondered why the Courts Law ([Consolidated Version], 5744-1984) established a mandatory retirement age of 70 for judges, whereas the age is 65 in the rest of the public market. One approach states that the extended retirement age is one of the safeguards for the judges’ independence, and as such must be entrenched in the constitution. An alternative view, however, supported by MKs Haim Oron and Committee Chairman Michael Eitan (Likud), held that the detail of the precise retirement age is unnecessary in the constitution, and it would be sufficient to use the constitution to empower legislation establishing the retirement age. It was decided to prepare two alternative texts reflecting these disparate views.

Retired judge

8. A judge who has retired on pension may be appointed to the position of a judge for such time, in such manner and on such conditions as may be prescribed by Law.

The fear that appointing a retired judge will impose on the independence of the judiciary

The Committee discussed the threat posed by nomination of retired judges for judicial roles, be it actual or apparent harm to judiciary independence. This fear arises in instances in which a retired just is asked to return for judicial roles for a limited period with the option of an extension; the particular fear is that the judge may be tempted to consider the effect of his judgments on the chances for extension of his appointment.

Retired judges sit on municipal benches

MKs Michael Eitan and Ronnie Bar-On (Likud) brought up the worrying example of a retired judge sitting on a local municipal court, in which case there may arise a conflict of interests wherein the municipality over which he or she presides pays the salary. Judge Dan Arbel, Chief Administrator of the Courts, replied that the municipality does not pay the judges directly, but rather transfers the budget to the Court Administration

The growing practice of employing retired judges

Chief Administrator of the Courts Judge Dan Arbel submitted figures to the Committee indicating that 39 retired judges are currently employed, mostly on parole boards, small claims courts, and quasi-judicial administrative committees acting as administrative tribunals (e.g. the Ministry of Defense committee for recognition of the handicapped). Due to the heavy load on the courts, the Court Administration intends to expand the practice of employing retired judges as active judges in the regular court system. The Committee considered the concept of temporarily reappointing retired judges ("Shofet amit") similar to the American model. Judge Arbel pointed out that retired judges who return to the bench are bound by the same code of ethics that bound them before their retirement, which may serve to offset the fears outlined above of undermining the judicial independence. The agreement: to allow in principle the nomination of a retired judge

The Committee decided to retain the constitutional anchor in order to make it possible to consider the temporary reappointment of retired judges in the future, including in small claims and local municipal courts. As far as administrative courts and parole boards were concerned, the Committee decided that in any case the constitution does not discuss these bodies and so the directives for employing a retired judge in one of these bodies can be left to regular legislation.

Restriction on re-posting

9.

(a) A judge shall not be permanently transferred from the locality where he is serving to a court in another locality save with the consent of the President of the Supreme Court or pursuant to a decision of the Court of Discipline.

(b) A judge shall not without his consent be appointed to an acting position at a lower court.

Salary and benefits

10.

(a) The salaries of judges and other payments to be made to them during or after their period of tenure or to their survivors after their death shall be prescribed by Law or by a decision of the Knesset or of a Knesset committee empowered by the Knesset in that behalf.

(b) No decision shall be passed reducing the salaries of judges only.

Purpose of the directives: safeguarding judicial independence

The directives regarding re-posting and altering benefits are intended to safeguard judicial independence and avoid the possibility of harassing judges indirectly by moving, demoting, reducing salary, or otherwise affecting the terms of their service. Should these directives be in the constitution or in ordinary legislation?

The Committee debated several options:

• maintaining detailed directives in the constitution;
• formulating only the basic principle of judicial independence in the constitution and leaving the remaining detail to ordinary law;
• omitting all detail in this matter altogether.

Option 1: The constitution shall include both the principle of judicial independence and a detailing of typical instances

The Committee considered the advantages of including in the constitution specific and clear examples of the sort of infringement on judicial independence that will not be tolerated, including infringing judicial independence through "technical" means. However, they noted, the level of detail in this article must roughly match that of the remainder of the constitution, in the interests of consistence and to avoid incorrect interpretation of the text in the future.

Option 2: The constitution shall include a broad principle safeguarding judicial independence

Yehoshua Shofman, the Deputy Attorney-General for Legislative Affairs, expressed the belief that the constitution should define a broad prohibition of impinging on judicial independence according to which "no decision shall be made substantively infringing on the judge’s functioning." Future legislation shall then be tested against this principle. Prof. Zamir suggested an alternative formula: "A judge’s status and independence shall be safeguarded from impairment from any other authority."

Option 3: The constitution shall include only basic principles

MKs Haim Oron and Avraham Ravitz claimed that since the constitution should comprise only basic principles, a statement of the principle of judicial independence is sufficient, and the remainder of the relevant directives will derive from that.

Option 4: The constitution should establish the details surrounding a judge’s salary

Judge Dan Arbel, Chief Administrator of the Courts, opined that the directives of article 10 (which establishes that the Knesset rather than the Ministry of Finance shall decide the judges’ salaries) should remain in the constitution. This would safeguard the separation of powers, limiting the ability of the executive branch to pressure the judiciary by lowering its salaries. However, this does not preclude structural changes to the salary and working conditions of judges in the future.

The Committee decided to prepare several possible drafts on these articles.

Judge not to engage in additional occupation, etc.

11. A judge shall not engage in an additional occupation, and shall not carry out any public function save with the consent of the President of the Supreme Court and the Minister of Justice.

The committee decided to relegate this to the Courts Law.

Criminal proceedings

12.

(a) No criminal investigation shall be opened against a judge save with the consent of the Attorney-General, and no information shall be filed against a judge save by the Attorney-General.

(b) A criminal charge against a judge shall not be tried save before a District Court consisting of three judges unless the judge has consented that the charge be tried in the ordinary manner.

(c) The provisions of this section shall not apply to categories of offences designated by Law.

The directive’s purpose: avoiding harming the judges

The issue of criminal proceedings against a judge and in particular opening an investigation must be carefully monitored to protect judges. For this reason the Attorney-General must approve the initiation of any criminal proceedings against a judge.

Should this directive be in the constitution or in ordinary law?

Several Committee members believed this stipulation should be relegated to ordinary legislation. There is a similar stipulation regarding the Prime Minister (see article 17 of the Basic Law: The Government), and the Committee noted that the approach to these two should be consistent: either include both in the constitution or relegate both to regular law. The Committee decided to prepare two versions of this article for later vote.

The makeup of a court trying a judge shall be left to ordinary law

The committee agreed to relegate Article 12(b), specifying the makeup of a court trying an indicted judge, to ordinary legislation.

Disciplinary proceedings

13.

(a) A judge shall be subject to the jurisdiction of a Court of Discipline.

(b) A Court of Discipline shall consist of judges and judges retired on pension appointed by the President of the Supreme Court.

(c) Provisions as to the grounds for instituting disciplinary proceedings, the modes of filing complaints, the composition of the bench, the powers of the Court of Discipline and the disciplinary measures it shall be authorised to impose shall be prescribed by Law. The rules of procedure shall be in accordance with Law.

The Committee agreed that the current level of detail should be relegated to ordinary law. However, the constitution should retain the underlying principle that disciplinary proceedings against a judge be conducted by acting or retired judges.

Suspension

14. Where a complaint or information is filed against a judge, the President of the Supreme Court may suspend him from office for such period as he may prescribe.

The need for constitutional entrenchment of the authority to suspend a judge

Some Committee members suggested this article could be left to regular law. However, Yehoshua Shofman pointed out that suspension actually revokes a judge’s judicial authority. Since such authority is vested in a judge by the constitution (in article 1 of the Basic Law, which also details when his term ends), the same normative status should be given to the authority to revoke judicial power by suspension.

The Committee also discussed the problem involved in the fact that a single person - the Chief Justice of the Supreme Court - holds the power to suspend a judge.

Supreme Court

15.

(a) The seat of the Supreme Court is Jerusalem.

(b) The Supreme Court shall hear appeals against judgments and other decisions of the District Courts.

(c) The Supreme Court shall sit also as a High Court of Justice. When so sitting, it shall hear matters in which it deems it necessary to grant relief for the sake of justice and which are not within the jurisdiction of another court (beit mishpat or beit din).

(d) Without prejudice to the generality of the provisions of subsection (c), the Supreme Court sitting as a High Court of Justice shall be competent -

(1) to make orders for the release of persons unlawfully detained or imprisoned.

(2) to order State and local authorities and the officials and bodies thereof, and other persons carrying out public functions under law, to do or refrain from doing any act in the lawful exercise of their functions or, if they were improperly elected or appointed, to refrain from acting;

(3) to order courts (batei mishpat and batei din) and bodies and persons having judicial or quasi-judicial powers under law, other than courts dealt with by this Law and other than religious courts (batei din), to hear, refrain from hearing, or continue hearing a particular matter or to void a proceeding improperly taken or a decision improperly given;

(4) to order religious courts (batei din) to hear a particular matter within their jurisdiction or to refrain from hearing or continue hearing a particular matter not within their jurisdiction, provided that the court shall not entertain an application under this paragraph is the applicant did not raise the question of jurisdiction at the earliest opportunity; and if he had no measurable opportunity to raise the question of jurisdiction until a decision had been given by a religious court (beit din), the court may quash a proceeding taken or a decision given by the religious court (beit din) without authority.

(e) Other powers of the Supreme Court shall be prescribed by Law.

The Supreme Court sits in Jerusalem

The directive in article 15(a) that the Supreme Court shall have its seat in Jerusalem will be established generally in the context of a constitutional directive which will establish Jerusalem as the seat of all the governing authorities.

The authority of Judicial and Administrative Review and the involvement of the HCJ

The question arose whether, beyond substantive changes that may or may not be made to this article, the wording should remain unchanged. The language of this article, while awkward, has been the source and subject of much legal interpretation over the decades, and might best be left undisturbed. The Committee decided to hold a separate meeting on this article in the context of the authorities of the Supreme Court and the limits of judicial review and interference of the High Court of Justice (HCJ) according to the suggested draft of Basic Law: Legislation. Click here to read the committee debates on these topics, with Current and former Supreme Court Presidents Barak, Zamir, and Shamgar in attendance.

Other courts

16. The establishment, powers, places of sitting and areas of jurisdiction of the District Courts, the Magistrates' Courts and other courts shall be in accordance with Law.

This article will be left unchanged.

Appeal

17. A judgment of a court of first instance, other than a judgment of the Supreme Court, shall be appealable as of right.

The question of how to entrench the right to appeal in the constitution requires serious discussion. This issue will be decided when the Committee discusses the article of the constitution dealing with rights of due process. The discussion will require a fundamental examination of the notion of appeal and of the extent of such a right, including the possibility of limiting it in appropriate cases.

Further hearing

18. In a matter adjudged by the Supreme Court by a bench of three, a further hearing may be held by a bench of five on such grounds and in such manner as shall be prescribed by Law.

Retrial

19. In a criminal matter adjudged finally, a retrial may be held on such grounds and in such manner as shall be prescribed by Law.

Should these directives remain in the constitution, or should they be left to the Courts Law?

Some of the speakers at the Committee meeting expressed the opinion that these directives are inappropriate for the constitution and preferred to see them moved to the Courts Law. However, the matter may be discussed again in the separate discussion to be held on constitutional rights of due process if there are opinions in favor of retaining the constitutional status of these articles.

Established rule

20.

(a) A rule laid down by a court shall guide any lower court.

(b) A rule laid down by the Supreme Court shall bind any court other than the Supreme Court.

The independence of special courts and tribunals

This article brings up the question of the relationship between the court system and the system of alternative courts and tribunals, particularly the religious courts (batei din), but also including the labour and military tribunals. The question arises whether Supreme Court decisions are binding on the special courts or whether their independence excludes them from the obligation to follow such precedent. The current text implies that the principle of binding precedent applies only to the ordinary courts defined in article 1(a) of the Basic Law: The Judiciary, and not to any batei din.

Support for the independence of the Labour tribunals

Committee Chairman MK Michael Eitan raised the possibility that the labour courts retain substantive independence of the regular court system and the Supreme Court. The labour tribunals are a parallel court hierarchy, at the top of which is the National Labour Tribunal, which hears appeals from the lower labour tribunals and in which the judges are expert in labour law and labour relations. Retaining this institution’s independence would mean that rulings of the National Labour Court are final, and are not subject to review or appeal by the Supreme Court.

Ms. Dalit Dror, of the Ministry of Justice, said that even if the Committee decides to retain the current authority of the HCJ to intervene in National Labour Court decisions in cases where that labour court has overstepped its authority, that still constitutes a narrower extent of authority over the labour tribunals than would allowing the Supreme Court to sit at the top of the entire court system and allowing it to establish binding precedent for the labour tribunals as well.

Criticism of the Supreme Court’s control of special tribunals

Professor Yoram Shachar of the Interdisciplinary Center Herzliya criticized the Supreme Court both verbally and in writing (Y. Shachar, "Mishkan Kemishpato," Mehkarei Mishpat 19, pp. 397, 2003), saying that for eighty years the Court sitting as the HCJ has gradually come to exercise full control over the labour and military tribunals and partial control over religious courts - by taking for itself the authority of final rulings on cases in these court systems. The Supreme Court sees itself as the forum for administrative matters as well, and has not allowed an autonomous system of administrative tribunals to develop. Despite the fact that in 2000 an administrative tribunal system was finally legislated, no one considered releasing this system from the control of the Supreme Court.

Criticism: There is room enough for the voices of the special tribunals

In Shachar’s opinion, the autonomy of the special tribunal system was intentionally created, in both the cases of the military tribunals and the labour tribunals, in order to enrich Israeli law with voices other than those of the Justices of the Supreme Court - voices of military officers on military matters, and that of laymen, employers, and workers in the labour court system. In practice, however, the Supreme Court rarely makes use of such outside voices.

Entrenching the right to be judged in a religious tribunal in the constitution

MK Michael Eitan proposed entrenching in the constitution the right to be judged in a religious court (Jewish or otherwise) according to religious law, in order to safeguard the autonomy of the religious courts in matters on which religious judgment applies. Since the question of the independence of the religious courts raises complex questions concerning the relation of religion and state and the religious status quo in marriage and divorce, it was agreed that this article will be discussed at length in the context of the debate on religion and the state.

Registrar

21. A court may have a registrar, who may or may not be a judge.

The committee decided to relegate this directive to ordinary legislation.

Law not to be affected by emergency regulations

22. This Law cannot be varied, suspended, or made subject to conditions by emergency regulations.

The constitution shall include a general formula defending it from emergency regulations. This article will therefore be rendered unnecessary.

Provisions to be prescribed by Law

23. Provisions as to the following matters shall be prescribed by Law:

(1) the manner of electing, and duration of the tenure of, the members of the Judges' Election Committee;

(2) qualifications for the posts of judges of the various grades;

(3) the manner of appointing the President of the Supreme Court, the Deputy President of the Supreme Court and the President and Vice-president of a District Court and a Magistrate's Court;

(4) the conditions and procedures for terminating the tenure of a judge;

(5) the manner of appointing a judge to an acting assignment at another court and of transferring a judge, temporarily or permanently, from the locality where he is serving to a court in another locality;

(6) proceedings for the suspension of a judge from office, and review of the suspension;

(7) the matters which the courts of the different grades are to hear by a single judge or by three or more judges;

(8) the manner of designating the judge or judges who is or are to hear a particular matter.

Provisions to be prescribed under Law

24. Provisions as to the following matters shall be prescribed under Law:

(1) rules as to the administration of the courts, the making thereof and responsibility for their implementing;

(2) the rules of procedure of the Judges' Election Committee;

(3) procedure for the resignation of a judge;

(4) procedure for the appointment and the powers of the registrar of a court;

(5) the number of judges who are to serve in the courts of the different grades and location.

Article 23 specifies issues that should be determined by legislation, and article 24 specifies topics to be determined in regulations and secondary legislation. Several topics from the lists here are inappropriate for mention in the constitution, and their regulations shall be established in regular law, e.g. suspension of a judge and the end of a judge’s term. These articles also raised two questions.

Should the constitution detail the number of Justices on the Supreme Court?
The Committee debated whether the number of Justices on the Supreme Court should be anchored in the constitution or whether ordinary law is sufficient to establish that number. Professors Shimon Shetreet and Ze’ev Segal suggested that the number be ensconced in the constitution so as to avoid a situation where political pressures flood the court with political appointees. Others believe ordinary legislation would suffice, pointing out that currently, there is no mention of the number of Justices even in primary legislation.

The appointment of acting judges

The question of the number of Justices on the Supreme Court relates to the practice of appointing acting judges from other courts to the Supreme Court. MK Eitan and Prof. Shetreet expressed the belief that nominating acting judges to the Supreme Court threatens their judicial independence, since they are often being tried out with a chance they will subsequently be nominated to a permanent seat on the Court.

Conclusion: Three versions will be prepared

The issue of the number of justices on the Supreme Court and the possibility of nominating acting judges to the court will be formulated in three different versions:

The express inclusion in the constitution of the number of Justices on the Supreme Court and the prohibition of nominating temporary acting judges to the Court Writing in the constitution that these issues shall be determined by ordinary law

Retaining the existing situation, wherein acting judges may temporarily be nominated to the Supreme Court.

An empirical test: is judicial independence acting judges de facto maintained? Prof. Eli Salzberger examined the patterns of rulings of Justices temporarily nominated to the Supreme Court in his study entitled "Active Nominations in the Supreme Court and Judicial Independence: a Theoretical Analysis and Empirical Findings. (Mechkarei Mishpat 19, pp.541). He performed a statistical comparison of the judicial independence of various groups, including temporary nominees to the Supreme Court who were later appointed to permanent seats in the Supreme Court, and temporary nominees who were not. Results: Independent Justices are the ones who win permanent nominations Salzberger found that judicial independence is a good predictor of permanent nomination of temporary Justices to the Supreme Court.

Judicial independence of acting Justices from the government and lower courts

Judicial independence may be measured by the percentage of rulings issued against the government and the percentage of lower court rulings overturned. Prof. Salzberger found that the acting justices who were later appointed to permanent seats were more likely to grant petitions against the government. ( 12.4% of HCJ petitions were granted ). In civil appeals, there is a significant gap between the percentage of cases in which appeals were accepted and the rulings of lower courts overturned by temporary Justices who later earned permanent seats (26.5%) and those who did not (18.1%). The acceptance of appeals to the HCJ expresses independence of the government, and the percentage of lower court decisions overturned is a measure of judicial activism.

Lack of judicial independence of the temporary Justices from the permanent Justices

An additional sign of substantive judicial independence is the percentage of minority opinions of Justices. The writing of a minority opinion by a temporary acting Justice displays independence of the other Justices on the bench. Prof. Salzberger’s study did not find any significant differences between the minority opinions of temporary Justices assigned permanent seats, and those who did not eventually win seats.

Conclusion: Independence of the Government but not of the remainder of the Justices

Salzberger’s results for Israel were similar to the results of a similar study in England (see E. Salzberger and P. Fenn "Judicial Independence: Some Evidence from the English Court of Appeal" 42 The Journal of Law and Economic (1999) 831) and E. Salzberger "The Judges of the English Court of Appeal: Public Law Decision-Making Characteristics and Chances of Promotion to the House of Lords" Handbook of Global Legal Policy (Stuart Negel ed., M. Deder, 2000) 223, showing that judges who display independence of other branches of government improve their chances of promotion. However, independence of the other Justices, including the writing of minority opinions or separate majority opinions did not correspond to increased chances of promotion to permanent Supreme Court Justices.