T. Belman. The opposition claims that if the coalition has the majority of the committee “it will politicize the courts”.
The Courts are already politicized because they are controlled by the left. There is no way to avoid the politicization. To the victors in the elections go the spoils.
The committee will be required to appoint a woman to one of each of the roles, including justices, Knesset members, ministers, and Bar Association members.
The Law Committee votes on changes to the Judicial Selection Committee.(photo credit: MARC ISRAEL SELLEM)
The confidential Knesset vote to choose the Israeli legislature’s two spots on the Judicial Selection Committee will be held on June 14, Knesset Speaker MK Amir Ohana (Likud) announced late Monday night, in what could prove a crucial moment in the survival of the ongoing talks at the President’s Residence between the coalition and opposition over the government’s judicial reforms.
The makeup of the committee, which elects judges for Israel’s entire court system, including for the High Court of Justice, is one of the most contested issues between the coalition and opposition in negotiations. The coalition wishes to give itself a majority in the committee and thus control judicial appointments, while the opposition claims that this will politicize the courts and harm the judicial system.
Ohana’s announcement indicates that the coalition will form the committee based on the existing makeup, and will include three High Court justices (one of whom is the chief justice), two ministers (one of whom is the justice minister), two Knesset members and two members of the Israel Bar Association. One of the justices, Knesset members, ministers and Bar Association members must be a woman.
Judicial reforms threaten committee selection
The coalition traditionally enabled the opposition to fill one of the two Knesset spots in the committee. However, coalition members threatened in recent weeks that if no agreements are announced over the judicial reforms by the time the June 14 vote is held, it will use its majority in the Knesset to break this tradition and grant itself both of the Knesset’s spots on the committee.
Members of the opposition’s negotiating teams threatened in response that if the coalition does this, they will leave the negotiations at the President’s Residence.
Knesset members will have until June 7 to file their candidacy. Therefore, by June 7 the opposition should know the coalition’s intentions: If the coalition puts forward just one candidate, the second candidate will necessarily come from the opposition. But if the coalition puts forward two candidates, then it likely means that it intends to fill both Knesset slots on the committee with coalition MKs, and leave out the opposition.
This could blow up the negotiations at the President’s Residence.
National Unity MK Benny Gantz blessed Ohana’s announcement regarding the vote for the Judicial Selection Committee.
“This is an important milestone in fortifying the rule of law, and it is also important for citizens – who need the Judicial Selection Committee to form, judges to be appointed and legal processes to progress,” Gantz said.
President Isaac Herzog on Tuesday stressed the importance of the talks.
“We can reach understandings. It takes effort, goodwill, and leadership, and I say: Ignore the background noise and think about the goal…No one will violate our values or basic principles,” he said.
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What Are the Judicial Overhaul Bills About, and Can the High Court Strike Them Down?
The Knesset is set to vote on two amendments to the Basic Law on the Judiciary which were approved by the Constitution, Law and Justice Committee on Monday. Haaretz explains how these amendments seek to weaken Israel’s judiciary in favor of the executive branch, and what the opposition and the High Court can do to fight them
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The Knesset’s Constitution, Law and Justice Committee voted on Monday to have two amendments to the Basic Law on the Judiciary submitted to a first vote by the full Knesset. The legislation, which requires three Knesset votes to pass, is sponsored by the committee’s chairman, Simcha Rothman.
The amendments to the basic law would change the composition of the Judicial Appointments Committee, which selects the country’s judges, and bar the High Court of Justice from exercising judicial review or striking down basic laws – a set of laws that have semi-constitutional status. The committee’s vote on Monday to send the legislation to the full Knesset for a first reading – their first vote – marks a milestone in the effort by the government to enact its plan to weaken the judiciary.<
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What is the significance of the amendments, how long might final passage take and how likely are they to be passed in their present form? Haaretz explains.
Rothman’s amendment seeks to change the composition of the Judicial Appointments Committee in a way that would give the government coalition control over it. The committee’s composition was set by law in 1953 and today includes two cabinet ministers, two Knesset members (including one from the opposition), three Supreme Court justices and two representatives from the Israel Bar Association.<
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Rothman’s proposed amendment to the Basic Law on the Judiciary would upset the balance in the committee’s composition, creating a majority of five out of nine members representing the interests of the government coalition. According to the proposed amendment, the committee would include three members of the judiciary: the Supreme Court president and two retired judges, who would be selected by the justice minister with the concurrence of the Supreme Court president. It would also include the justice minister, two ministers selected by the cabinet and three Knesset members.
The Knesset members would be the chairperson of the Constitution Committee (currently Simcha Rothman himself), a coalition Knesset member and one lawmaker from the opposition. Under the amendment, the Israel Bar Association would no longer be represented on the committee.
The legislation would also deprive the high court of the power to exercise judicial review or to strike down basic laws. The amendment would add a provision to the Basic Law on the Judiciary stating, “The High Court of Justice shall not directly or indirectly address the question of the validity of a basic law and any such decision shall have no validity whatsoever.”<
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What is Levin’s proposal?<
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Justice Minister Yariv Levin is advancing his own legislation along with Rothman’s, although the two may be merged later on. Levin’s proposal would also allow the coalition to control judicial appointments, but unlike Rothman’s bill, Levin’s seeks to increase the number of committee members to 11.
Levin’s proposed composition is three Supreme Court justices, three cabinet ministers and three Knesset members – two from the coalition and one from the opposition. The other two members would be public representatives chosen by the justice minister. Increasing the number of committee members would deny the justices the ability to block appointments, because a majority of the members – 7 out of 11 – would be chosen by the government coalition.
What do the amendments’ sponsors claim?<
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Rothman claims that his proposed change would allow the people, through their elected representatives, to select the country’s judges. In Rothman’s recently published book in Hebrew, the title of which translates as “Why the people should choose the judges” (Sela Meir Press), he writes that under the current system, the judges choose their friends and replicate the court’s activist approach. “Changing the way we select judges is the main way to bring aggressive judicial overreach under control. This is why I asked to head the Constitution Committee,” he writes.<
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But it’s difficult to claim that Rothman’s approach would reflect the “will of the people.” He would have six politicians on the committee, who would purportedly representing the “people.” But of six politicians, five would be from the coalition and one from the opposition. A 5:1 ratio would only reflect the “popular will” if the 120-seat Knesset consisted of 100 coalition members and 20 opposition members. But the Knesset currently has 64 coalition members and 56 opposition members – a ratio not reflected in the proposal.<
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What do opponents of the amendments claim?
The major concern among opponents of the proposed amendments is that the appointment of judges would be politicized instead of being based on professional considerations. If they pass, it would be possible to appoint judges at every level – to magistrate’s courts, district courts and the Supreme Court – based on the candidates’ close association with government and their identification with it. Such judges might also act in accordance with the will of the government to advance their careers on the bench.<
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Opponents of the plan, including Attorney General Gali Baharav-Miara and Supreme Court President Esther Hayut, warn that the plan would upset the balance among the branches of government and significantly harm Israeli democracy. In addition, they warn of critical damage to the independence of the judges and the judiciary, which are essential to effective oversight by the court of the government and the Knesset.<
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Opponents also express concern about curbing the power of the High Court of Justice to exercise judicial review and to strike down basic laws. The government coalition, they argue, is making use of the amendments to the basic laws to change Israel’s system of government. The amendments would strengthen the power of the government and the Knesset, permitting them to act without limits or restraints.
Up to now, the High Court has refrained from addressing the question of whether it has the power to strike down the semi-constitutional basic laws on the basis that they are unconstitutional. While there are some countries that have adopted the doctrine of “unconstitutional constitutional amendment” – giving those countries’ courts the authority to disqualify constitutional amendments (in Israel’s case basic laws) that run counter to the country’s principles – the doctrine has not been adopted in Israel.<
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Can Israel’s High Court disqualify the proposed amendments to the basic law if they pass?<
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If the amendments are legislated by the Knesset, opponents would be expected to petition the High Court in challenging them. Even though the High Court has consistently refrained from ruling on whether it can strike down basic laws, in the past it has left an opening for such a prospect if the Knesset abuses its authority as Israel’s Constituent Assembly – which according to the Declaration of Independence was empowered to adopt a constitution. No complete constitution was ever adopted, however.<
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The most recent significant ruling on the subject was the High Court ruling in 2021 on petitions challenging the passage of the Basic Law on Israel as the Nation-State of the Jewish People. The decision written by Court President Hayut states: “As I see it, at this stage of the Israeli constitutional enterprise, there is one extremely narrow limitation that applies to the Knesset, wearing its hat as the Constituent Assembly and that is that it cannot through a basic law deprive the State of Israel of being a Jewish and democratic state.”<
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Senior legal scholars believe that in light of the regime change contained in the proposed amendments to the basic laws, this time the High Court will have no choice but to strike them down. In a recent position paper, a group of legal scholars including Professors Barak Medina and Menachem Ben-Sasson of the Israeli Law Professors Forum for Democracy wrote: “Granted that the proposed amendments have the support of the [transient] current majority in the Knesset. But they undermine the fundamental principles of democracy and do not enjoy [the support] of a broad public consensus, and therefore the Knesset has no authority to legislate them.”
Where do the bills stand at the moment? Feb 2023<
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After the Knesset Constitution Committee approved the bills for submission for a first vote by the full Knesset, the government coalition could have asked that they be voted on immediately, but it refrained from doing so and may not want to be seen as pushing for fast-track passage of legislation that will later be considered by the High Court.<
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One way or another, now that the legislation has passed the Constitution Committee, it can be voted on by the full Knesset at any time after two days following the committee vote. Due to the government coalition’s clear 64-seat majority in the Knesset, the bills are expected to pass their first reading. They are then expected to return to the Constitution Committee, which will prepare the final text of the legislation for the two additional votes necessary to enact them into law.<
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The timing of the two final votes depends on the pace at which the committee works – and in large measure on the conduct of Rothman, its chairman. The opposition is expected to drag the process out as long as possible, but the timeline is largely in Rothman’s hands.<
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Is compromise possible and will the text of the bills be changed prior to any final votes by the Knesset?<
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Privately officials from Prime Minister Netanyahu’s Likud party say that until the bills pass their first vote in the Knesset, there will be no negotiating their wording. But they acknowledge that the assumption is that the text of the bills will then be subject to changes. It’s too early to know what those changes might be and if they would change the substance of the legislation. Netanyahu and Justice Minister Levin have made it clear that, even if there are changes, the principles on which the legislation is based will not be up for negotiation.<
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Levin has privately said that the most important part of his plan, on which he is unwilling to compromise, is the change that would give the coalition government a majority on the Judicial Appointments Committee.<
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When it comes to compromising, Netanyahu appears to be speaking out of both sides of his mouth. In meetings that he has had with foreign leaders, such as U.S. Secretary of State Antony Blinken and French President Emmanuel Macron, he has claimed that the bills will be passed with a broad consensus after the two sides talk and reach a compromise. Domestically, however, he has claimed that there is no intention to alter the plan’s current course.<
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On his recent visit to Paris, in response to reports that he had told Macron that there would be compromises on the legislation, he told reporters that he hadn’t spoken to the French president about compromising but rather about discussion.
Levin is the hawkish stalwart in the coalition, and he has insisted that he is not prepared to make any significant concessions on the matter. If in the end Netanyahu decides to make concessions on the principles of the plan, Levin would threaten to resign as justice minister, political sources have said.
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It is clear that the West wants NO CHANGE whatsoever!
Prepare two candidates and tell the opposition that if they play games, the position will be taken by the coalition. Then do so!