ISRAEL AT WAR - DAY 148

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Knesset law panel chair seeks to expedite judicial upheaval, with some changes

Rothman proposes reforms similar to Levin’s, but would make it even harder for the court to cancel laws, while softening changes to judicial appointments and ‘reasonableness’ test

Carrie Keller-Lynn is a former political and legal correspondent for The Times of Israel

Constitution Committee chair MK Simcha Rothman leads a committee debate, January 17, 2023. (Olivier Fitoussi/Flash90)
Constitution Committee chair MK Simcha Rothman leads a committee debate, January 17, 2023. (Olivier Fitoussi/Flash90)

In a step toward expediting the government’s planned overhaul of the legal system, Knesset law panel chair MK Simcha Rothman put forward a judicial reform abstract that would go further than Justice Minister Yariv Levin’s plan to make it harder for the Supreme Court to strike down laws, while slightly curbing some of Levin’s other proposals.

Rothman’s plan, released Tuesday night, diverges from Levin’s proposal in that it sets out a different Judicial Selection Committee makeup, would not alter the process for appointing the Supreme Court president, requires unanimous agreement among all 15 Supreme Court justices to strike down a law, and presents a more narrow curtailment of the “reasonableness” judicial test.

Sources close to the Knesset’s Constitution, Law, and Justice Committee chair said the parallel effort was intended to subvert attempts by officials in Levin’s Justice Ministry to stymie the timeline of radical reforms that many there, including the attorney general, do not support.

“We see from the legal advisers an effort to torpedo” Levin’s plans, said a source close to Rothman, adding that Justice Ministry counsel — required to draft Levin’s reform bill — are “stalling for time in an attempt to drag out the legislative process.” Instead, the private bill put forward by Rothman would sidestep Justice Ministry involvement and could be legislated much more quickly, possibly even within six weeks.

The plan has elicited indignation from the attorney general, the Supreme Court president, and a slew of former senior judicial officials, as well as opposition politicians and some 100,000 Israelis who took to the streets in protest on Saturday night. While opponents argue that the plan to limit court oversight over politicians will harm democracy and civil liberties, its backers, including Prime Minister Benjamin Netanyahu, claim it is a necessary step to restore balance against an overly powerful, activist judiciary.

Levin, a longtime ideological proponent of weakening judicial review of the executive and the legislature, has repeatedly said that he thinks the proposals he brought are the answer. While a source close to Levin said that he continues to stand by his proposals, sources close to both the justice minister and Rothman said that the two are coordinated and likely to reach agreements during the committee debate process required to prepare a final bill.

Knesset Constitution, Law, and Justice Committee chairman Simcha Rothman (L) Committee and Justice Minister Yariv Levin attend a meeting of the panel on January 11, 2023. (Yonatan Sindel/Flash90)

Judicial selection committee

Levin’s plan to remake the panel responsible for naming judges would give coalition appointees a majority. Rothman’s proposal would reshape the current nine-member Judicial Selection Committee into a body consisting of one-third justices, one-third ministers, and one-third lawmakers, and likely require collaboration between the Supreme Court president and government to pass appointments.

Currently, the panel includes three Supreme Court judges, two members of the Bar Association, the justice minister and a second minister, and two lawmakers, traditionally including one from the opposition. Seven out of nine votes are needed to make an appointment, requiring compromise between the professional and political camps on the committee.

Rothman’s proposal would deliver moderate added influence to the coalition, replacing two of the judges with former senior judges — to be appointed to the panel by the justice minister with the approval of the court president, who will remain on the panel.

The justice minister, who chairs the committee, would be joined by two other ministers decided by the government. The three lawmakers appointed would be the heads of the Knesset’s House, Constitution, and State Control committees, which are chaired by two coalition MKs and one opposition MK, respectively.

Levin’s proposal would have expanded the committee to 11 members, and included choosing unspecified public representatives, effectively handing the government the power to appoint anyone it chooses to the bench.

Supreme Court president

The Supreme Court president is currently appointed by the court, and by custom is the most senior justice. Levin proposed doing away with that system and instead investing the justice minister with the power to appoint both the president and vice president — even a person not on the court.

Rothman’s suggested changes would not alter the process of appointing a Supreme Court president.

Striking down laws

Both Rothman and Levin would block the Supreme Court from striking down a Basic Law, including the very law they are amending — Basic Law: The Judiciary — to remove this power.

Regarding other laws, both Rothman and Levin want to raise the bar for invalidating or altering a law conflicting with Basic Laws, from a simple majority of justices to a high threshold requiring the full panel of 15 justices.

Chief Justice Esther Hayut arrives for a court hearing at the Supreme Court in Jerusalem, about the evacuation of the West Bank outpost of Homesh, June 2, 2022. (Yonatan Sindel/Flash90)

Levin wants to make it so that only a vote by 13 of the 15 justices can amend a law, whereas Rothman is demanding unanimous agreement across all 15.

Both reformers included an override clause in their drafts, which would enable the Knesset to reenact any stricken law with a majority of 61 lawmakers.

The court would, however, retain its authority to oversee changes to the Basic Law: The Knesset affecting elections or the term of the government, preventing the coalition from arbitrarily extending its own period in power.

Softer curtailment of the ‘reasonableness’ test

Levin pushed to cancel the judicial “reasonableness” test, with which judges can evaluate and invalidate government or public sector decisions as unreasonable, by a vague standard.

Rothman, on the other hand, proposes solely banning the test’s application against elected officials.

The reasonableness test was most recently used to argue against Shas leader Aryeh Deri’s dual ministerial appointment, in light of his recent tax fraud conviction.

In December, the coalition changed the Basic Law: The Government to pave the way for Deri’s appointment, despite the suspended sentence he was handed last January.

The High Court of Justice — the name for the Supreme Court when it hears cases involving public authorities — is set to release its ruling Wednesday afternoon. Politicians have reportedly threatened to speed up cancelation of the reasonableness test if Deri were to be pulled from his posts.

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