Analysis

Changes to judicial overhaul leave just 10 days to re-do constitutional framework

A new draft for the overhaul of the judicial appointments process leaves the Knesset with less than two weeks to re-draw a critical pillar of Israel’s constitution arrangements

Jeremy Sharon

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Knesset Constitution, Law and Justice Committee Chairman MK Simcha Rothman heads a committee hearing, March 19, 2023. (Yonatan Sindel/Flash90)
Knesset Constitution, Law and Justice Committee Chairman MK Simcha Rothman heads a committee hearing, March 19, 2023. (Yonatan Sindel/Flash90)

Chaos descended Monday morning on the government’s plans to overhaul Israel’s judicial system, as the coalition proposed a new model for judicial appointments with less than two weeks left before its self-imposed deadline to enact it into law.

In essence, having realized a need to at least be seen to moderate what has been widely denounced as a radical package of reforms, with critics warning that it constitutes a change in the very nature of Israel’s governance, the coalition introduced a new, hastily-constructed plan to re-make Israel’s delicate constitutional arrangements in time for the Passover holiday.

But although the coalition claims this new proposal addresses the concerns of opponents to the judicial overhaul program, government legal advisers and senior legal scholars made clear on Monday that the measure would have much the same impact as the previous planned incarnations of the government’s constitutional upheaval.

Over the last two months, the Knesset Constitution, Law and Justice Committee has deliberated in dozens of hearings on a bill that would remake the judicial selection process and give ruling coalitions complete control over all judicial appointments.

The proposed bill, and accompanying legislation to radically reduce the High Court of Justice’s power of judicial review were, according to the committee’s legal advisers, written in the most extreme manner possible.

And the architects of this enterprise, Justice Minister Yariv Levin and constitution committee chairman MK Simcha Rothman, imposed the tightest of deadlines for this constitutional make-over, insisting that the legislation be passed by the end of the Knesset winter session on April 2.

The judicial overhaul push has prompted huge, intense, and widespread demonstrations; the refusal of some members of critical IDF reserve units to perform military reserve duty and training; public opposition from key sectors of the economy, in particular the tech industry; criticism from senior economists and financial experts; the denunciation of numerous senior jurists, in Israel and abroad; and critically, even discomfited some of the more moderate MKs in Prime Minister Benjamin Netanyahu’s Likud party.

Israelis protest against the Israeli government’s planned judicial overhaul in Tel Aviv on March 18, 2023. (Avshalom Sassoni/Flash90)

In the face of this opposition, the refusal of the Knesset opposition parties to negotiate while the legislative process moved forward, and the coalition parties’ unanimous and immediate rejection last Wednesday of President Isaac Herzog’s alternative proposal, the coalition decided to unilaterally amend the proposals, to try to temper the intensity of the protest movement, one the biggest the country has ever known.

But what has happened since Sunday night is close to farcical.

Rothman put on the table a new idea whereby the coalition would control the appointment of the first two judicial appointments to open up in each Knesset term, while any subsequent appointments in that term would need the support of an opposition MK and a member of the judiciary.

To Rothman’s mind, this represented a form of compromise, whereby the right-wing can reshape the High Court to some extent in this current Knesset term, while pulling back from absolute control of the court.

The coalition then issued a statement in the dead of night Monday, declaring that this new version of the judicial appointments bill in all its complexity and nuance will be passed by hook or by crook by the same Sunday, April 2, deadline as was set back in January.

In practical terms, the deadline is even earlier — Thursday March 30, since the Knesset rarely sits on Sundays.

Even the three-month deadline Levin and Rothman set back in January to enact the overhaul of Israel’s constitutional framework was considered by many to be an exceptionally short period of time to deal with such a consequential and fateful set of proposals.

Architects of the government’s judicial overhaul package Religious Zionism MK Simcha Rothman and Justice Minister Yariv Levin speak during a debate in the Knesset plenum, February 22, 2023. (Yonatan Sindel/Flash90)

But now, the government is insisting that what is in effect an entirely new proposal be passed in rather less than two weeks, despite the plethora of questions that have been raised about the new legislation since it was released in drips and drabs over the course of Sunday night and Monday morning.

Such is the dash to pass the law that Constitution Committee legal adviser Attorney Gur Bligh noted Monday morning that the Knesset’s chief legal adviser had not even seen the new version of the legislation, and could not yet make a determination about whether she can support it.

Accelerated, amended, modified

The precise sequence of events over the last few days is also noteworthy.

Last Wednesday, Herzog announced his alternative framework, which some in the coalition had thought might help form a bridge to the opposition in order to begin negotiations. Ultimately, however, Herzog’s proposal was unpalatable to the coalition, and by Thursday morning it became clear that nothing would come of it.

Over the weekend, the coalition, including Netanyahu, declared that it would moderate the legislation itself in the absence of opposition engagement, and on Sunday morning Rothman presented a revised proposal to the constitution committee.

But this bill, which was amended and sent out to MKs and journalists, was not what was proposed Sunday afternoon. It was merely a faintly modified version of the previous version of the legislation.

Yesh Atid MK Simon Davidson speaks during a hearing of the Knesset Constitution, Law and Justice Committee, March 19, 2023. (Yonatan Sindel/Flash90)

It was only on Sunday afternoon that the new model with its changeable requirements for judicial appointments to the High Court was raised in committee, with a messy draft disseminated to MKs on Monday morning.

After having debated the new version of the bill in just one committee hearing on Monday, Rothman published and disseminated the final version of the draft law late Monday night, and set the deadline for submitting objections to the legislation for just a few hours later, 10:00 a.m. Tuesday morning.

Objecting to this highly irregular and extremely truncated timeline, opposition heads Yair Lapid, Benny Gantz, Avigdor Liberman, Meirav Michaeli, and Mansour Abbas sent a letter to Knesset Speaker Amir Ohana asking him to instruct Rothman to hold another hearing on the legislation with testimony from relevant experts before moving to a vote on the bill.

Even some Likud MKs appeared discomfited by the erratic management of the far-reaching judicial shakeup.

MK Danny Danon tweeted “This is not how you do a reform,” while leaks from the Likud faction meeting in the Knesset on Monday afternoon indicated deep displeasure from numerous party MKs, both regarding the management of the legislative process and against the substance of the new measures on both sides of the debate.

In its Sunday night declaration, the coalition stated it would continue with the broader aspects of its judicial overhaul, including the bill to radically restrict judicial review over legislation, after the Passover recess.

But as the constitution committee’s legal advisers have noted, the arrangements of one part of this overhaul package are extremely relevant to the other components. Government control over judicial appointments has consequences for the desired scope of judicial review.

As things stand, however, the Knesset will now be voting on one element of the overhaul without knowing what the next components will look like.

Despite this disarray, Rothman announced at the end of Monday’s hearing that the committee would be moving ahead with preparations to approve the bill on Tuesday for its second and third readings in the Knesset — turning a core element of the coalition’s drastic judicial overhaul into law.

Lapid had warned earlier Monday that he intends to petition the High Court against the bill should it become law, and hoped and believed that the justices would strike it down as constituting an illegal political takeover of the judiciary.

Levin has said any intervention by the High Court would be a “red line” that the coalition will not “accept.”

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