AG backed Levin's request to submit substantive response

High Court pushes off Tuesday hearing on Levin’s refusal to convene judicial panel

Judges reject justice minister’s request to annul injunction, but give him time to submit further response to ruling demanding he explain decision not to assemble committee

Illustrative: All 15 High Court justices preside over a court hearing on petitions against the government's 'reasonableness law' at the Supreme Court in Jerusalem, September 12, 2023. (Yonatan Sindel/Flash90)
Illustrative: All 15 High Court justices preside over a court hearing on petitions against the government's 'reasonableness law' at the Supreme Court in Jerusalem, September 12, 2023. (Yonatan Sindel/Flash90)

The High Court of Justice on Friday pushed off next week’s hearing on petitions against Justice Minister Yariv Levin’s refusal to convene the Judicial Selections Committee by a month, a day after he challenged its ruling ordering him to explain his decision not assemble the panel.

Immediately after the order was issued Thursday, Levin submitted a request asking the court to annul its decision, arguing that the interim injunction — which stated that the justices would use the minister’s preliminary response as his substantive response in the case — violated proper court procedure and was silencing him.

While keeping the injunction in place, the court agreed to delay the hearing scheduled for Tuesday, saying it will now be held no later than October 23.

The new date allows Levin time to submit an additional response, which the judges said he must do by October 9.

Justices Anat Baron, David Mintz, and Yael Willner wrote in response to Levin’s accusation that he was being silenced that since his preliminary response to the petitions had been 28 pages, along with another 30 pages of appendices, they had assumed it would suffice for his substantive response.

Since he had requested to send a substantive response as well, the judges said he was entitled to do so if he so wished.

The hearing will also now be held a week after the scheduled retirements of Chief Justice Esther Hayut and Baron.

The decision came hours after Attorney General Gali Baharav-Miara came out against Levin’s bid to cancel the interim injunction, but backed his request to submit a further response on the matter to the High Court of Justice.

Baharav-Miara partially sided with Levin in a legal opinion filed Friday, stating that according to court regulations, he should be allowed to submit a new, substantive response to the court.

“There is no need to cancel the injunction, but the justice minister and the government should be allowed to submit an additional response, in which they can elaborate as they see necessary on the [preliminary] response they already submitted,” the attorney general said.

Left: Justice Minister Yariv Levin speaks during a Constitution, Law and Justice Committee meeting at the Knesset in Jerusalem, January 11, 2023. (Yonatan Sindel/Flash90); Right: Attorney General Gali Baharav-Miara attends a conference at the University of Haifa, December 15, 2022. (Shir Torem/Flash90)

Levin has refused to convene the Judicial Selection Committee, which appoints all judges in Israel, as he seeks changes to its composition in order to grant the government near-total control of the panel, part of a wider effort to water down the independence of the judiciary, which the justice minister considers overly activist.

Baharav-Miara has refused to defend the government’s position in court and said in her original submission that Levin had an obligation to convene the committee. Refusal to do so violated his obligation to exercise the authority he holds “in due time,” and constituted an illegitimate form of veto over judicial appointments, she argued.

“With all due respect, the court is not authorized to determine for the respondents, and certainly not when talking about the justice minister and the government of Israel, what should be written in a response to a petition, something which is solely at the discretion of the respondents,” wrote Attorney Ohad Shalem, who is representing Levin in the proceedings, in response to the injunction.

“The court determining what is included in the respondents’ response revokes the respondents’ basic right to have their voice heard, in a manner which prevents the possibility that justice will be done,” Shalem continued.

Justice Baron subsequently asked for the petitioners to file responses to Levin’s request to have the injunction annulled before she issues a decision. Those responses must be filed by Monday, a day before the hearing on the petitions.

In his initial position, Levin told the High Court on Wednesday that only he has the right to convene the Judicial Selection Committee and that the court has no authority to order him to do so, citing “a constitutional arrangement balancing power between the branches of government.”

He charged that court intervention on the issue would “severely harm the principle of the separation of powers.”

Supreme Court President Esther Hayut and Justice Minister Yariv Levin attend opening of a new courthouse in Katzrin on June 1, 2023. (Michael Giladi/Flash90)

The Judicial Selection Committee is currently made up of nine members, including two ministers, a coalition MK, an opposition MK, two representatives of the Israel Bar Association and three justices from the Supreme Court. A candidate needs five votes to be appointed to a lower court and seven votes for an appointment to the Supreme Court.

The High Court’s session on Levin’s refusal to convene the panel will be held a week after judges hear arguments for and against the “reasonableness” law passed at the end of July, which bars judicial review of government decisions and appointments on the basis of the reasonableness doctrine.

According to a Channel 13 poll Wednesday, 68 percent of respondents trust the Supreme Court, while 28% do not.

Furthermore, 50% answered that the court should side with petitioners against the reasonableness law, 37% said they shouldn’t get involved, and 13% did not have an opinion.

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