ISRAEL AT WAR - DAY 138

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Despite pause, government files contentious judicial selection bill for final votes

Coalition sources, Knesset secretary say move is ‘technical,’ but opposition MKs fume and say they’d be coming to overhaul negotiations with ‘a gun to the head’

Prime Minister Benjamin Netanyahu (center) at the Knesset plenum, in Jerusalem, on March 27, 2023. (Yonatan Sindel/Flash90)
Prime Minister Benjamin Netanyahu (center) at the Knesset plenum, in Jerusalem, on March 27, 2023. (Yonatan Sindel/Flash90)

Opposition lawmakers fumed Tuesday morning as it became apparent that despite Prime Minister Benjamin Netanyahu’s announcement Monday night that his government was pausing its judicial overhaul push in order to launch negotiations with the opposition, one of its most controversial bills had nevertheless been submitted to the Knesset for its final votes, which would enable it to be brought for approval at any later date.

The legislation would heavily politicize the Judicial Selection Committee and give the coalition almost complete control over the appointment of judges. The makeup of the committee — which currently divides power between politicians and justices regarding new Supreme Court appointments — is arguably the most contentious part of the overhaul, and the issue in which a compromise is the most elusive.

The bill — which would give the government exclusive say in the first two Supreme Court picks that become empty during its term, followed by a mutual veto in the uncommon situation of a third or fourth justice being selected in a single term — was approved Monday by the Constitution, Law and Justice Committee for its final readings in the Knesset plenum.

Filing it with the Knesset secretary enables the coalition to call the final votes with 24 hours’ notice. The Knesset begins a month-long recess this weekend.

The move was done just hours before Netanyahu called for a pause in legislative efforts but only announced Tuesday morning.

The Knesset secretary and coalition sources were quoted by the Ynet news site as saying the move was “technical” and did not indicate an intention to bring it for a vote soon, but several opposition lawmakers said the move constituted the coalition pointing “a gun to the head” of the opposition at the negotiation table.

“The public doesn’t even get a full day to digest the legislative halt, and the coalition is already submitting the draft for a vote,” said Labor MK Naama Lazimi. “What’s so urgent?”

Yesh Atid MK Orna Barbivai, a member of the opposition party’s negotiation team on the bill, said: “[Netanyahu] doesn’t have to file it. How can the draft be changed now?”

Yisrael Beytenu MK Yulia Malinovsky claimed that “everything Netanyahu did yesterday was aimed at quietening the streets, [but] it seems like there is no intention of changing the bill.”

Her party leader, Avigdor Liberman, said: “Netanyahu lied again, instead of going to genuine dialogue at the President’s Residence and healing the rift in the Israeli nation. The coalition is spitting in the public’s face. Absolutely a gun to the head.”

MK Avigdor Liberman, right, seen at the assembly hall of the Knesset in Jerusalem, on March 13, 2023. (Yonatan Sindel/Flash90)

An amendment to the quasi-constitutional Basic Law: The Judiciary, the bill would redraw the Judicial Selection Committee such that the coalition has an automatic majority for the first two Supreme Court justice appointments in any Knesset term. Combined with the coalition’s intention to select the next top court president — who will also sit on the panel — the coalition will have influence over enough members of the committee to control any court appointment.

Currently, the Judicial Selection Committee’s nine-member panel appoints Supreme Court justices through a seven-vote majority and lower court judges through a simple majority of five. Three coalition politicians, one opposition MK, three Supreme Court justices, and two Israel Bar Association members sit on the panel, meaning that compromise between political and professional representatives is required to tap a Supreme Court justice.

The Judicial Selection Committee during the 34th government of Israel convenes, with then Justice Minister Ayelet Shaked together with Supreme Court President Miriam Naor, Finance Minister Moshe Kahlon and other members of the Israeli Judicial Selection Committee, February 22, 2017. (Yonatan Sindel/Flash 90)

The coalition’s proposal would shake up both the composition of the committee and the voting thresholds. The bill expands the total number of panel members to 11 and the coalition’s representation on it to six members. The opposition gets to choose two MKs to sit on the panel, while the Israel Bar Association’s representation is scuttled entirely. Three justices — always including the Supreme Court president, but rotating the other two spots depending upon which court the appointments are being considered for — fill out the panel.

Structurally, the coalition will have the opportunity to push through two Supreme Court appointments each Knesset term with only six out of 11 votes. All other appointments, to the Supreme Court and lower courts alike, require seven votes.

Usually, such a change would be sponsored by the Justice Ministry as a government bill, but Justice Minister Yariv Levin was stymied by foot-dragging from the attorney general. The bill is instead backed by the Knesset’s Constitution, Law, and Justice Committee, whose chairman MK Simcha Rothman echoed Levin in saying the shakeup will create a more diverse court that includes more right-wing appointees.

Critics attack the change as politicizing the judiciary, and they charge it will undermine judicial independence if judges can trace their seats to certain political camps.

The government’s planned judicial overhaul has sparked widespread opposition across Israel, with senior legal, security, and economic figures warning the move will undermine democracy by removing the system of checks and balances and as such will harm the country’s security and economy.

In the face of mass demonstrations and strikes, Netanyahu on Monday said he was ordering a temporary halt to the legislation to allow for talks.

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