Ostensibly softened, Rothman bill gives coalition broad control over choice of judges

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The Knesset Constitution, Law and Justice Committee will begin voting on the new legislative proposal to reform Israel’s judicial appointment process on Tuesday, in preparation for the bill’s final readings in the Knesset Floor.

The coalition government intends to enact the law by the end of next week. (It had its first reading in a different format last month.) Opposition leaders said Monday that it would mark the beginning of the end of Israeli democracy.

MK Simcha Rothman introduced the new proposal to radically change the judicial appointment process on Monday and is likely to allow ruling coalitions to choose the majority of Supreme Court appointments, while giving it full control over court appointments lower.

Rothman confirmed that this latest draft represented a significant modification of the original proposal, which would give the coalition full control over all judicial appointments.

However, many jurors and legal scholars argued the latest proposal to “politicize” the appointment process and give the coalition greater control over the judiciary.

According to the reformed legislation, the Judicial Selection Committee would be expanded from nine to 11 members. The new committee would consist of six representatives from the coalition government, three ministers and three MKs, as well as two MKs from the opposition and three judges from the Supreme Court, including the president of the court.

The first two Supreme Court appointments opened in the Knesset term would be appointed by a simple majority of six, which would mean that the coalition would be able to make those two appointments without input from the judiciary or the opposition.

Prime Minister Benjamin Netanyahu (left) with Justice Minister Yariv Levin and MK Simcha Rothman (standing) in the Knesset on February 15, 2023. (Yonatan Sindel/Flash90)

The third appointment would require the support of MK from the opposition and the fourth appointment would require the support of MK from the opposition and one of the judges of the Supreme Court, which would mean that those appointments would require more consensus than in the first two.

Lower court appointments would require the support of any seven of the 11 committee members, but the committee would have a district court president and a magistrate court president instead of two Supreme Court judges.

Panels of presidents of the district court and the magistrates’ courts would elect those two court presidents on the committee.

Critically, however, it became clear during the committee’s debate that the coalition government now intends to abolish the seniority system for electing the president of the Supreme Court, and will instead appoint any candidate who puts themselves forward for the position by a simple majority of the Judge. Selection Committee.

As the current president of the court, Justice Esther Hayut, will retire later this year, this will mean that the coalition will have an immediate opportunity to appoint a new president, giving it the ability to exert greater influence over appointments to the Supreme Court and take full control. over lower court appointments.

During Monday’s Constitutional Committee hearing, Yesh Atid MK Meirav Cohen pointed out that the average number of Supreme Court judges appointed in a Knesset term is 2.6, meaning that the character of the court will always be determined by the coalition.

Yesh Atid MK Yorai Lahav-Hertzano speaking during a Knesset Constitution, Justice and Law Committee hearing, March 19, 2023. (Yonatan Sindel/Flash90)

This current Knesset can fill four spots on the bench, however, since two judges, Hayut and Anat Baron, 70, will reach the mandatory retirement age this year, Judge Uzi Vogelman will retire next year, and the Judge Yosef Elron the following year.

Deputy Attorney General Avital Somopolinksi said on Monday that the new framework failed to address the problem of politicization of judicial appointments that occurred in the previous proposal, and noted that it allowed the coalition government to appoint the President of the Supreme Court also appointed.

“Our position is that there is no solution to the substantial problems we have presented in relation to Gaeltacht politics [Supreme] The court and the harm to judicial independence and the principle of separation of powers,” said Somopolinksi.

The chairman of the Constitution Committee, Gur Bligh, said that restricting the coalition to just two appointments over which it has complete control reduces to some extent the concern of a coalition government taking over the Supreme Court, but noted also that there are usually only two or three judges in the Supreme Court. appointed in any particular Knesset.

And he said that the politicization of the appointments to the Supreme Court itself could lead to polarization, between judges appointed by right-wing coalitions and those appointed by centre-left coalitions.

Rothman argued that the new proposal was a significant compromise.

Knesset Constitution, Law and Justice Committee Chairman MK Simcha Rothman at a committee hearing, March 20, 2023. (Yonatan Sindel/Flash90)

“Our responsibility as a coalition and as a government is to all the people of Israel and, without fail, to fulfill the commitments and values ​​in whose name we were here,” said Rothman.

“The bill before the committee reflects exactly that. We stood by the values ​​and principles for which we were elected, we gave a significant and fundamental reform to the procedures and the composition of the Judicial Selection Committee… The composition of the Supreme Court will become more diverse, the commitments and the people will be kept. he will finally have the ability to influence the selection of judges, which has not been the case for many years.”

The Israel Forum of Law Professors for Democracy, an association of senior legal scholars at Israel’s top universities, panned the proposal, saying it would mean “coalition control of all judicial appointments to all courts” and therefore “the illegitimate politicization of judicial appointments.”

“This is an unconstitutional program that the Knesset is not authorized to enact,” the forum said.

“The legislation would deal a fatal blow to judicial independence in general and the separation of powers. Political appointments will greatly reduce judicial review of the government and the Knesset and thus will cause widespread damage to the foundations of the democratic system and human rights.”

The forum was also of the opinion that it believed the High Court would strike down the legislation due to the unconstitutional nature of its provisions.

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