Justice Minister Yariv Levin told the High Court of Justice 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.
Levin’s position, submitted in his response to petitions asking the court to order him to convene the crucial committee, was that his discretion to convene the committee “is part of a constitutional arrangement balancing power between the branches of government,” and that court intervention on the issue would “severely harm the principle of the separation of powers.”
The justice minister also contended that convening the committee would “harm the purpose of the law” to appoint judges, since doing so would not actually enable the appointment of any judges, due to the severe political divisions in the country, and would endanger efforts to come to a broad consensus for changing the composition of the panel.
Levin is widely seen as refusing to convene the committee due to his highly controversial desire to first assert governmental control over judicial appointments, or at least increase his power in the panel, in order to appoint conservative judges who will be less likely to challenge government legislation and actions.
Levin has said in media interviews that he will not convene the panel until it has “a proper” composition.
The composition of the Judicial Selection Committee lies at the heart of the political firestorm that has rocked the country for the last eight months.
The Yesh Atid party and the Movement for Quality government in Israel have petitioned the court to order Levin to convene the committee, which appoints all judges in Israel, on the basis that he “lacks the authority” to refuse to do so, and that the justice minister’s behavior amounts to an illegitimate abuse of authority.
Attorney General Gali Baharav-Miara has refused to defend the government’s position in court and said in her submission to the court that Levin had an obligation to convene the committee. Refusal to do so violated his obligation to exercise authority he holds “in due time,” she argued, and constituted an illegitimate form of veto over judicial appointments
Yesh Atid rejected Levin’s claims Wednesday in his response to the petitions that he was interested in a solution based on “broad consensus,” calling his comments an effort to “con” the court.
The Movement for Quality Government accused the justice minister of sowing anarchy and of increasing the heavy burden on the courts by refusing to appoint judges to empty spots around the country.
One of Levin’s central goals in his judicial overhaul program is to give the government greater (if not full) control over judicial appointments, owing to his belief that the Israeli judiciary — and the justices of the Supreme Court in particular — are too liberal, overly activist, and unrepresentative of the general public.
Levin argued that “the minister has exclusive authority over convening the committee.”
“Convening the Judicial Selection Committee is not the end goal. The purpose of the law is to appoint judges. After weighing the matter, the minister decided that convening the committee now (whatever its composition) will not fulfill the purpose of the law and will not lead to the appointment of judges at this time,” the response said.
“The opposite is true. Convening the committee now, despite the deep dispute within the country and while a constitutional negotiation is underway on this very issue, will be counterproductive and delay the appointment of judges for a long time.”
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 minister’s authority to assess, and his discretion to decide, when it is appropriate to convene the committee is an essential part of the constitutional arrangement established by the Knesset in its role as a constituent authority,” Levin maintained.
“The petitions are nothing other than an effort by the petitioners to demand that the court intervene in the constitutional balances laid out in the Basic Laws and to replace the minister’s discretion with that of the court.”
Leader of the Opposition and Yesh Atid chair MK Yair Lapid rejected Levin’s claims that the justice minister was delaying convening the committee because he is interested in coming to an agreement with the opposition.
“Levin was the first to outright reject the president’s [judicial compromise] proposal. He thwarted any attempt to reach broad agreements. He knows very well that there are currently no negotiations at the President’s Residence, but in his response to the court he is citing non-existent talks, and dialogue that he himself prevented,” said Lapid.
The Movement for Quality Government said Levin’s refusal to convene the committee was harming citizens who needed relief from the courts.
“The justice minister is abusing his authority for his personal political considerations,” said the organization.
“The justice minister is creating anarchy in Israel… Every day that passes without the committee being convened to appoint judges, the burden on the courts grows and harms the citizens of the country.”
Last week, the attorney general pointed to the heavy case burden on the courts and the several dozen spots on the court benches that will be open by the end of the year as one of the reasons she believes Levin must convene the committee immediately.