Petitions demand High Court force Levin to convene judge selection panel
No longer able to use ‘reasonableness’ doctrine, Yesh Atid and Movement for Quality Government accuse justice minister of abusing power, lacking authority to block appointments
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
Yesh Atid and the Movement for Quality Government in Israel watchdog group petitioned the High Court Tuesday to order Justice Minister Yariv Levin to convene a critical panel that chooses judge postings to the bench.
While the Yesh Atid petition argued that Levin “lacks the authority” to decide not to convene the highly sensitive Judicial Selection Committee, the watchdog used the basis that Levin’s behavior amounts to an illegitimate abuse of authority.
Levin, the architect of the government’s judicial overhaul program, has sought greater political control over judicial appointments to rebalance the court, in his words, by placing conservative justices on the bench, after years of alleged progressive activism.
Legislation giving the government almost total control over the selection of judges was frozen in March.
The petitions claim that Levin, unable to appoint judges unilaterally, has instead refused to convene the panel altogether, holding up bench appointments nationwide.
According to reports, Levin was keen for the Knesset to rush passage of a law restricting the “reasonableness” doctrine Monday, fearing that the High Court could use the legal mechanism to compel him to convene the committee.
“They [the opposition] just want to drag things out again so the High Court will force me to convene the Judicial Selection Committee,” Levin told Defense Minister Yoav Gallant during the Knesset debate, according to a report by Channel 12 News.
The law passed on Monday bars the court from using the reasonableness doctrine against ministerial decisions, meaning the court will need to find another basis should it order Levin to convene the committee.
The Yesh Atid petition on Tuesday argued that Levin’s block is “unreasonable in the extreme,” but said it was avoiding making that argument in the petition due to new law. Instead, it contended that Levin lacked the authority to keep the panel from meeting.
Yesh Atid’s petition argues that Levin’s refusal to convene the committee represents “a blatant violation of the duty of trustworthiness and fairness incumbent upon the respondents.” It accuses Levin of using “inappropriate considerations rooted in the desire of the justice minister to prevent the regular activity of this very important committee.”
The concept of “inappropriate considerations” is a legal doctrine in administrative law that would allow the court to nullify government decisions it finds were made based on considerations outside the essence of the authority under discussion. The doctrine has yet to be developed and has never been used by the High Court.
The petition cites a July 5 exchange in which Levin told Labor MK Gilad Kariv, who challenged the minister as to when he would convene the committee, that it depended on the attitude of opposition lawmakers.
“The time has come to fix things after so many years of deficiencies and very bad failures… If there will be an insistence on clinging on to the current, broken system it will take a little longer, but in the end MK Kariv, things will change because they simply have to change,” Levin told Kariv.
The petition argues that judge vacancies are the only valid consideration for whether to convene the Judicial Selection Committee.
There are currently 21 unfilled court seats, along with 11 new positions and another 22 judges who will retire by the end of the year and whose seats will need filling, according to the filing.
The Movement for Quality Government based its request to order Levin to convene the committee on the judicial doctrine of “abuse of authority,” which it says Levin is engaging in for the sake of “his personal and political considerations.”
“Every additional day that the committee does not convene to elect additional judges, the burden on the courts increases and harms the citizens of the country,” said Hiddai Negev of the watchdog group.
“It appears that the justice minister is abusing his authority for his personal political considerations and so we have no choice but to appeal to the High Court to intervene.”
