ISRAEL AT WAR - DAY 149

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'Goal is not to take over and politicize judicial system'

‘Red line we won’t accept’: Levin warns Court not to block judicial appointments bill

Rothman gives opposition less than 12 hours to file objections with his committee before legislation readied for second and third (final) readings in the Knesset plenum

Prime Minister Benjamin Netanyahu (left) with Justice Minister Yariv Levin during a discussion and a vote in the Knesset, Jerusalem, on March 6, 2023. (Yonatan Sindel/Flash90)
Prime Minister Benjamin Netanyahu (left) with Justice Minister Yariv Levin during a discussion and a vote in the Knesset, Jerusalem, on March 6, 2023. (Yonatan Sindel/Flash90)

Justice Minister Yariv Levin, the chief architect of the government’s judicial overhaul push, warned the High Court of Justice on Monday against intervening to strike down a new coalition proposal that will cement its control over the selection of judges, including High Court justices.

The intervention of the court, should it step in to strike down the legislation once it passes, “would be completely unjustified. In my opinion, it would mark the crossing of every red line. We certainly won’t accept it,” warned Levin.

Speaking with the pro-Netanyahu Channel 14, Levin asserted that changes to the legislation — introduced late Sunday night by MK Simcha Rothman and slightly updated on Monday morning — have addressed critics’ concerns that the proposal will lead to a constitutional crisis, and should allay their fears that the coalition’s true aim is to give itself absolute power to determine the makeup of the courts.

But opposition leaders Monday said the bill — which passed its first Knesset reading last month in a slightly different format — marked the end of judicial independence and the beginning of the end of Israeli democracy. And a deputy attorney general warned that the revised proposal failed to address the concern that the coalition’s legislation will “politicize the justice system and severely harm its independence and public trust in it.”

The bill is part of a wider package of coalition legislation that would also largely neuter the High Court’s ability to strike down legislation in the future, and enable the Knesset to re-legislate laws the court does manage to annul with a bare majority of just 61 MKs.

Levin, a close Likud colleague of Prime Minister Benjamin Netanyahu, said he was determined to “fully complete” the entire package of sweeping reform after the Knesset’s Passover break. “We’ll pass the law on the Judicial Selection Committee before the end of this session. In less than two weeks, we will be in a completely different situation as regards the judicial system.”

The bill amending the process for selecting judges, which the coalition aims to enact into law next week, would grant the government near-total control over the appointment of judges, even with the changes introduced by Rothman this week.

The Religious Zionism lawmaker’s amended proposal would give a governing coalition full control over the first two appointments to the Supreme Court that open up during its tenure, then require the support of one opposition member for a third appointment and the support of both an opposition member and a judicial representative for a fourth. The proposal would also allow the coalition to appoint the chief justice, further boosting its control over the appointment of other High Court justices and potentially giving it full control over appointments to lower courts.

The latest iteration of the bill has been presented by Rothman and some members of the coalition as a compromise deal, though it was reached without any negotiations with the opposition; opposition leaders refused to negotiate since the coalition refused to pause the legislative process. The original version of the legislation gave the coalition full, automatic control over the appointment of all High Court justices.

Chairman of the Knesset Constitution, Law and Justice Committee MK Simcha Rothman at a committee hearing, March 20, 2023. (Yonatan Sindel/Flash90)

The changes, presented as a “softening” amid intense public opposition and criticism, are ostensibly meant to address widespread concerns that the bill as initially formulated would have given the coalition carte blanche to pack the courts with amenable ideologues.

Opposition parties and national protest organizers swiftly rejected the new proposal, calling it an attempt to mislead the public into thinking the judicial overhaul plan has been moderated, while ensuring the politicization of the court.

Forging ahead

The updated proposal will be brought before Rothman’s Constitution, Law and Justice Committee on Tuesday to be readied for its second and third (final) readings in the plenum.

The coalition gave the opposition until 10 a.m. Tuesday to submit objections to the legislation — notice of less than 12 hours since the meeting in the committee was set.

MK Gilad Kariv of the Labor party, a member of the opposition, asked the Knesset’s legal advisers to delay the convening of the committee by another day to allow more time for the opposition to formulate its objections.

Opposition leader Yair Lapid, head of Yesh Atid, warned that Rothman’s move was an underhanded steal.

“Now he [Rothman] has informed us of a discussion and votes tomorrow in the constitution committee on changes to the committee for the selection of judges. They’re not executing a regime coup — they’re stealing it in the night,” Lapid wrote in a tweet.

Head of the Yesh Atid party MK Yair Lapid speaks during a faction meeting at the Knesset, on March 20, 2023. (Erik Marmor/Flash90)

In his interview with Channel 14, Levin argued the High Court would have “no justification” for overturning the bill, which is set to become law before the Knesset breaks for the Passover holiday.

“Our goal is to diversify the judicial system, to balance it. The goal is absolutely not to take over and not try to politicize the judicial system. Most of these scare tactics are really completely baseless,” he told the channel.

“I very much hope that once the law is passed and it becomes clear that we acted attentively to real comments, [and] we enacted and implemented the mandate we received from the public without fear… this democratic decision will be respected and we will have a fair and just method of electing judges that has its place for everyone.”

“This reform is a good thing for all citizens of Israel,” Levin insisted.

Political control

While the coalition intends to pass the law on selecting judges by the end of next week, Rothman urged the opposition to use next month’s Knesset recess to debate other elements of the overhaul package — an invitation the opposition rejected. He said it was still possible to heal the internal Israeli rifts over the package of legislation and achieve “an agreement that the whole people can unite behind.”

Currently, Israel’s nine-member Judicial Selection Committee is split between four politicians (three from the coalition and one from the opposition) and five professional representatives — three judges and two members of the Israel Bar Association. Appointing a High Court justice requires the support of seven committee members — meaning both the coalition and the judicial representatives on the panel have veto power.

According to Rothman’s newly proposed changes, the committee would be expanded from nine to 11 members, six of them from the governing majority. It would comprise three government ministers from three different parties; three coalition MKs from three different parties; two opposition MKs from two different parties; and three Supreme Court justices, including the court president.

This Knesset may get to fill four spots on the bench. Two justices, Court President Esther Hayut and Anat Baron, will turn 70, the mandatory age of retirement, this year, Justice Uzi Vogelman will retire next year, and Justice Yosef Elron the year after that.

The coalition is also planning to take charge of the selection of the Supreme Court president — the chief justice — ending the current seniority system, a move that would further strengthen its control of the Judicial Selection Committee and the court.

Illustrative: The High Court of Justice convenes in Jerusalem to discuss the potential evacuation of the West Bank outpost of Homesh, January 2, 2023. (Yonatan Sindel/Flash90)

Appointments would be made through a simple majority of six out of 11 members for the first two appointments to the Supreme Court in a Knesset’s term. After those appointments, the majority needed would remain six out of 11 but among those six at least one member of the opposition would be required. A fourth appointment during the same term would require backing from both a member of the opposition and a judge in order for it to be approved.

In effect, this would mean that two coalition-backed justices could be appointed with ease, and any remaining appointments could be consensus candidates. But critics have pointed out that once those two appointments are in place, those judges could serve on the committee.

In addition, placing two ideologically aligned judges on the Supreme Court bench would mean that if the government succeeds in passing legislation setting a requirement for a unanimous court ruling to overturn Knesset laws, the court would likely be unable to achieve such unanimity.

Members of the opposition resoundingly rejected Rothman’s new proposal, mocking the coalition for “negotiating with itself” and seeking to mislead the public.

The Likud Knesset faction overwhelmingly backed the legislation at a party meeting Monday.

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