Order switches burden of proof onto justice minister, who tells court it doesn’t have right to force him to have committee meet, as he seeks to expand coalition control of judiciary
By JEREMY SHARON, TOI 14 September 2023,
Supreme Court President Esther Hayut and Justice Minister Yariv Levin attend opening of a new courthouse in Katzrin on June 1, 2023. (Michael Giladi/Flash90)
The High Court of Justice issued an interim injunction against Justice Minister Yariv Levin on Thursday, demanding he explain why he has not convened the Judicial Selection Committee.
The injunction was issued ahead of a critical hearing in the High Court scheduled for Tuesday in which petitions requesting that the court order Levin to convene the committee will be heard, and indicates that the justices are unlikely to view his refusal favorably.
Levin has refused to convene the committee, which appoints all judges in Israel, as he seeks changes to its composition in order to grant the government near-total control of the panel, part of a wider effort to water down the independence of the judiciary, which the justice minister considers overly activist.
In the order issued by Justices Anat Baron, David Mintz and Yael Willner on Thursday, the court said Levin must “provide a reason why… he will not exercise his authority… to convene the committee to elect judges without delay.”
The order also stated that Levin’s preliminary response, filed on Wednesday, would also be used as his substantive response to the petitions.
Levin immediately submitted a request asking the court to annul its decision, arguing that the interim injunction, in stating that the court would use the minister’s preliminary response as his substantive response, violated proper court procedure and was silencing him.
The injunction was issued a day after Levin told the court in his preliminary response that only he has the right to convene the Judicial Selection Committee, and warned that ordering him to do so would be violating constitutional balances between the executive and the judiciary.
A source close to Levin objected vehemently to the injunction, saying it showed the court “once again deviating from what is accepted, once again not holding a preliminary hearing” and “making decisions” before the government had even had the chance to explain its position.
“Precisely at a time when calmness and responsibility on the part of all the branches of government is needed, the system that is supposed to be the most restrained of all demonstrates a reckless and irresponsible use of legal power,” said the source.
With the injunction, the court has essentially indicated that it provisionally accepts petitioners’ arguments for why it should consider ordering the justice minister to convene the committee. The burden of proof now shifts to Levin, who will need to convince the court not to intervene.
It also means that there will be no preliminary hearing, and that the respondents will plead in court first, followed by the petitioners.
Opposition Leader Yair Lapid, who was one of the petitioners in the case, and Attorney General Gali Baharav-Miara, who opposes Levin’s stance, say Levin’s refusal has exacerbated an overload of cases on the court system, with 20 vacancies yet to be filled, a number expected to balloon to 53 open seats by the end of the year.<
Lapid, head of the Yesh Atid party, called the court order “a clear message from the court that Israel’s citizens are more important than politics,” and accused Levin of holding the panel hostage.
The Movement for Quality Government in Israel, another petitioner, welcomed the injunction.
“Just before the holidays, when we will all appear before the Heavenly court, the Supreme Court reminds us all, and especially Minister Levin, that the law applies to all of us, even to those who try with all their might to shake it off and destroy the rule of law,” the organization said.<
In many, but not all instances, respondents first file a preliminary response to a petition, which often argues that the case should be thrown out. A preliminary hearing is then held. If the court then issues an interim injunction, substantive responses are filed by respondents arguing against the petition on the merits of the case.
Levin in his request to have the injunction annulled was objecting to the court telling him his preliminary response would be used as his substantive response.
“With all due respect, the court is not authorized to determine for the respondents, and certainly not when talking about the justice minister and the government of Israel, what should be written in a response to a petition, something which is solely at the discretion of the respondents,” wrote Attorney Ohad Shalem, who is representing Levin in the proceedings.
“The court determining what is included in the respondents’ response revokes the respondents’ basic right to have their voice heard, in a manner which prevents the possibility that justice will be done,” Shalem continued.
Justice Baron subsequently asked for the petitioners to file responses to Levin’s request to have the injunction annulled, before she will issue a decision. Those responses must be filed by Monday, a day before the hearing.
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