Rothman proposes ’12 or 13′ on High Court, instead of unanimous 15, to nullify a law

Opposition calls idea ‘spin’ and ‘tricks,’ arguing that legislation handing government control of Judicial Selection Committee undercuts judicial independence regardless

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Chairman of the Constitution, Law and Justice Committee MK Simcha Rothman leads a committee hearing, February 26, 2023. (Yonatan Sindel/Flash90)
Chairman of the Constitution, Law and Justice Committee MK Simcha Rothman leads a committee hearing, February 26, 2023. (Yonatan Sindel/Flash90)

Religious Zionism MK Simcha Rothman, one of the key architects of the government’s judicial overhaul plan, announced on Sunday that he would revise his bill on restricting the High Court’s power of judicial review by reducing the court majority needed to strike down legislation.

Rothman, who chairs the Knesset Constitution, Law and Justice Committee, which is preparing the legislation, said he would reduce the requirement from an unanimous ruling by all 15 High Court justices to 12 or 13 out of 15, or 80 percent of the panel.

Critics of the legislation have argued that requiring all 15 justices to rule unanimously in order to strike down legislation would be akin to annulling judicial review altogether, since such a decision would be almost impossible. The legal adviser to the committee noted that no other democracy had such a requirement for the exercise of judicial review.

Rothman’s revision brings his bill back into line with that originally proposed by Justice Minister Yariv Levin, the other architect of the government’s radical judicial shakeup, in the government legislation he initially proposed just a week after the formation of the government, but which foundered due to opposition from Attorney General Gali Baharav-Miara.

Rothman said his bill would be brought to the Knesset plenum for a first reading on Wednesday, maintaining the swift pace the government has adopted for its legal reform agenda.

Opposition politicians, including former justice minister Gideon Sa’ar and members of the Constitution Committee, rejected Rothman’s proposal, with Sa’ar describing the offer as “spin” and “unacceptable.”

MK Gideon Sa’ar speaks during a Knesset Constitution, Law and Justice Committee hearing, January 29, 2023. (Olivier Fitoussi/Flash90)

Rothman explained his rationale for initially demanding a full court panel of all 15 High Court justices to strike down legislation, saying this stipulation was to avoid a situation where the assembly of a panel of a smaller number of justices, largely in the hands of the Supreme Court president, could be done on an ideological basis in order to skew the ruling.

“The main concern is the disqualification of judges based on the discretion of a certain party,” said Rothman on Sunday during the committee hearing on the legislation.

“In light of the fact that this is Minister Levin’s position as well as other things that have been said here, the version that will be put to a vote on Wednesday for the first reading will be for the annulment of ordinary legislation by a majority of 12 or 13 judges out of 15 judges,” said Rothman.

The far-right MK said he saw “great merit” in the arguments made during committee deliberations by various experts to abandon the idea of requiring unanimity, and added that he started with that proposal “because I thought it was a good starting point for negotiations as a proposal which at least five MKs from the opposition voted for.”

Continued Rothman, “Unfortunately, since they broke the rules of the game and are not conducting negotiations, I am forced to conduct negotiations with Minister Levin, and I hope they will change their stance.”

The opposition has refused to negotiate with Levin and Rothman over the far-reaching legal overhaul proposals until the government freezes the legislative process, describing negotiations under such circumstances as akin to “having a gun to the head.”

MK Vladimir Beliak is removed from the Knesset Constitution, Law and Justice Committee by Knesset orderlies during a committee hearing, January 11, 2023. (Yonatan Sindel/Flash90)

And opposition MKs rejected Rothman’s proposal on Sunday as well.

“This is not a moderation of any kind,” insisted Sa’ar.

“Rothman’s ‘moderation’ is exactly the same as the original proposal by Levin. This is more spin. And to the point of the matter: it is totally unacceptable,” Sa’ar said.

Yesh Atid MK Vladimir Beliak, who acts as the opposition coordinator on the Constitution Committee, described Rothman’s proposal sarcastically as “a genius-level trick,” adding “offering a ridiculous proposal of striking down a law by 15 out of 15 justices, and then ‘moderating’ it to a majority of 12 or 13. We really never expected this.”

Beliak noted that a separate reform, passed in its first Knesset reading last week, grants the government control of at least five and as many as eight of the nine spots on the Judicial Selection Committee, and argued that this would undermine judicial independence from the outset.

“I just have one question: If [Prime Minister Benjamin] Netanyahu, Levin and Rothman are choosing all 15 [High Court] justices in the committee by a majority of eight against (maybe) one, what difference does it make to them what majority the High Court can ‘strike down’ laws,” demanded Beliak.

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