Ostensibly softened, Rothman bill gives coalition broad control over choice of judges
According to tweaked draft, coalition would choose the justices to fill the first two Supreme Court openings in its tenure, gain full authority over lower court appointments
The Knesset Constitution, Law and Justice Committee will begin voting on the new legislative proposal to overhaul Israel’s judicial appointments process on Tuesday, in preparation for the bill’s final readings in the Knesset plenum.
The coalition intends to get the law enacted by the end of next week. (It passed its first reading in a different format last month.) Opposition leaders said Monday it would mark the beginning of the end of Israeli democracy.
The new proposal to radically alter the judicial appointments process was introduced by MK Simcha Rothman on Monday and would likely allow governing coalitions to select a heavy preponderance of Supreme Court appointments, and at the same time give it total control over lower court appointments.
Rothman declared that this latest draft constituted a significant moderation of the original proposal, which would give the coalition total control over all judicial appointments.
However, numerous jurists and legal scholars denounced the latest proposal for “politicizing” the appointments process and for giving outsized control over the judiciary to the coalition.
According to the revamped legislation, the Judicial Selection Committee would be expanded from nine to 11 members. The new committee would comprise six representatives of the coalition, three ministers and three MKs, as well as two opposition MKs and three Supreme Court justices, including the court president.
The first two Supreme Court appointments to open up in a Knesset term would be appointed by a simple majority of six, meaning the coalition would be able to make those two appointments without input from either the judiciary or the opposition.
The third appointment would need the support of an opposition MK and the fourth appointment onwards would need the support of both an opposition MK and one of the Supreme Court justices, meaning that those appointments would need greater consensus than the first two.
Lower court appointments would need the support of any seven out the 11 committee members, but the committee would include the president of a district court and the president of a magistrates court instead of two Supreme Court judges.
Those two court presidents would be elected to the committee by panels of district court and magistrate court presidents.
Critically, however, it became clear during the committee’s debate that the coalition now intends to dispense with the system of seniority to elect the Supreme Court president, and will instead appoint any candidate who puts themselves forward for the position through a simple majority of the Judicial Selection Committee.
Since the current president of the court Justice Esther Hayut will retire later this year, this will mean the coalition will have an immediate opportunity to appoint a new president, giving it the capacity to achieve greater influence over appointments to the Supreme Court and take full control over lower court appointments.
During the course of the Constitution Committee hearing on Monday, Yesh Atid MK Meirav Cohen pointed out that the average number of Supreme Court justices appointed in a Knesset term is 2.6, meaning that coalition will steadily determine the character of the court.
This current Knesset may get to fill four spots on the bench, however, since two justices, 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.
Deputy Attorney General Avital Somopolinksi said Monday the new framework did not resolve the problem of politicizing judicial appointments brought about by the previous proposal, and noted that it allowed the coalition to appoint the Supreme Court President as well.
“Our position is that there is no solution for the substantive problems we have presented regarding the politicization of the [Supreme] Court and the harm to judicial independence and the principle of the separation of powers,” said Somopolinksi.
Constitution Committee chairman Attorney Gur Bligh said that restricting the coalition to only two appointments over which it has total control eases to some extent the concern of a coalition take-over of the Supreme Court, but also noted that usually only two or three Supreme Court justices are appointed in any given Knesset.
And he said that politicizing the appointments could lead to polarization on the Supreme Court itself, between justices appointed by right-wing coalitions and those appointed by center-left coalitions.
Rothman insisted that the new proposal was a significant compromise.
“Our responsibility as a coalition and government is to all the people of Israel and, without getting confused, to fulfill the promises and values in whose name we were here,” said Rothman.
“The bill before the committee shows exactly that. We stood by the values and principles for which we were elected, we brought a significant and fundamental amendment to the procedures and composition of the Judicial Selection Committee… The composition of the Supreme Court will become more diverse, the promises will be kept and the people will finally have the ability to influence the selection of judges, which was not been the case for many years.”
The Israeli Law Professors’ Forum for Democracy, an association of senior legal scholars at top Israeli universities, panned the proposal, saying it would mean “coalition control over all judicial appointments to all courts” and therefore the “illegitimate politicization of judicial appointments.
“This is an unconstitutional program which the Knesset is not authorized to enact,” said the forum.
“The legislation would deal a mortal blow to judicial independence in general and to the separation of powers. Political appointments will substantially reduce judicial review over the government and the Knesset and thereby do widespread harm to the foundations of the democratic system and human rights.”
The forum also opined that it believed the High Court would strike down the legislation due to the unconstitutional nature of its provisions.
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