Pressured to compromise, coalition debates new proposal for judicial appointments


Coalition leaders met on Sunday night to discuss ways to modify the drastic judicial reform legislation it has been promoting in the face of mass demonstrations and civil disobedience against the measures.

One of the ideas under discussion is a proposal put forward by the main lawyer of the coalition MK Simcha Rothman on Sunday to change the legislation on the functioning of the Judicial Selection Committee, which would make all appointments to the Supreme Court not highly political.

According to his proposal, a ruling coalition would have full control over the first two appointments to the Supreme Court that would open during his tenure, but require the support of at least one opposition MK and one judge on the committee to make further appointments. the Court.

In contrast, the original legislation approved on first reading in the Knesset plenum would give the Coalition full control over all judicial appointments without the need for support from the opposition or the judiciary.

The opposition refused to negotiate with the government due to the opposition insisting the government not freeze the legislative process, leading to a standoff as the coalition unilaterally considered how to reform package to change radically.

Rothman’s proposal is the first publicly announced attempt by the coalition government to moderate its apparently radical reforms, which have been widely criticized by the opposition and many legal scholars and lawmakers as a power grab.

The Labor party, as well as campaign groups against judicial reform, quickly rejected the MK’s proposal, however.

Explaining the rationale behind the new proposal, Rothman, who chairs the Knesset Constitution, Justice and Law Committee where the judicial reform legislation is being prepared, said it was designed to have “as many people as possible in Israel of the opinion that they have the Supreme Court,” and to enable “the people to choose the judges” but at the same time “to prevent a political force from taking control of the [Supreme] Court.”

According to the proposed changes, the Judicial Selection Committee would be expanded from nine to 11 members. It would include three government ministers from three different parties; three coalition MKs from three different parties; two opposition MKs from two different parties; and three judges from the Supreme Court, including the president of the court.

Illustrations: The then Minister of Justice Ayelet Shaked seen with Chief Justice Miriam Naor, Minister of Finance Moshe Kahlon and members of the Committee for Judicial Selection at a meeting of the committee at the Ministry of Justice in Jerusalem on February 22 2017. (Yonatan Sindel /Flash90)

Appointments would be made by a simple majority of six out of 11 members for the first two appointments to the Supreme Court in the Knesset term. After these appointments, the majority that would be needed would remain six out of 11 but among them at least one member of the opposition and one judge would support the nomination to approve it.

In effect, this would mean that two coalition-backed judges could be appointed with ease, and the central candidates would probably be consensus candidates.

If the current Knesset were to last a full four years, up to four Supreme Court judges would reach the mandatory retirement age of 70.

A vote of nine out of 11 committee members would be required to remove a judge.

For appointments to the lower courts, the support of seven of the 11 committee members would be required for an appointment. The judicial members of the committee would also be different and would include the president of the Supreme Court together with a district court president to be selected by a panel of district court presidents, and a magistrate court president to be selected by a panel. of magistrates court presidents.

This would ensure that a ruling coalition could not appoint judges to the district courts and magistrates on its own, Rothman said.

MK Simcha Rothman, Head of the Constitution Committee, at a committee meeting at the Knesset in Jerusalem on March 5, 2023. (Erik Marmor/Flash90)

“I think that everyone who followed the [committee] It can be seen from hearings that there is an attempt here to put people’s minds at ease,” said Rothman.

“We cannot live with the reality of a court that has so much power, replicates itself, and dictates its worldview,” he continued, however, defending his goal of appointing Supreme Court justices without input of the judges in the Community. process.

“With these arrangements, we have managed to square the circle so that the people can choose the judges, and on the other hand we have to address concerns about the abuse of political power to take over the court.”

Labor party leader Merav Michaeli rejected Rothman’s proposal, saying that the coalition to appoint judges to the Supreme Court would itself be like “bringing an idol into the Temple,” adding that “Hungary and Poland on steroids,” and calling on. the rest of the opposition to oppose the proposal as well.

Yesh Atid chairman Yair Lapid and Blue and White chairman Benny Gantz did not immediately respond to the proposal.

A statement issued in the name of “leaders of the opposition to the dictatorship” said that Rothman was “offering to carry out a terror attack inside the Supreme Court,” which amounted to “bringing in sick judges.” [to the court] is bound to the government and not to the law.”

Labor party leader Merav Michaeli leads his factional meeting at the Knesset, January 16, 2023. (Olivier Fitoussi/Flash90)

Professor Yaniv Roznai, a constitutional scholar at Reichman University, expressed serious doubts about Rothman’s proposal, arguing that there were insufficient safeguards.

“What if they lower the mandatory retirement age to 65? Will they appoint more judges with a majority of six out of 11?” he tweeted on Sunday night. “How about if they appoint the president of the Supreme Court in the first meeting of the committee? Will they represent the judges?”

The bill to change the composition of the Judicial Selection Committee is just one of several bills designed to limit the power of the judiciary, and to limit the oversight of law officers within the mechanisms of government.

Another critical bill, which has also passed its first reading, would reduce the High Court’s scope for judicial review of Knesset legislation, in part by requiring a very high bar to strike down laws — a panel of 15 High Court judges and majority. of 80 percent.

The coalition’s goal is to limit what it can say on the court’s judicial activism by adding conservative judges to the bench who will be less inclined, on an ideological level, to intervene in Knesset legislation.

Rothman’s proposal is the Coalition’s first unilateral public attempt to respond to protesters, its own politicians, and legal experts, who have demanded changes in response to the content of the reforms or the social polarization they have created.

A general view of the Supreme Court hall during a ceremony for outgoing Supreme Court Justice Uri Shoham in Jerusalem on August 2, 2018. (Hadas Parush/Flash90)

Last week, coalition leaders quickly rejected a separate judicial reform proposal from President Isaac Herzog, which would have denied the government two of its key policy points: to seize control over the appointment of judges and create a mechanism for the government to easily override judicial review. .

The fight over judicial selection is key to the first phase of the coalition’s judicial reform, and Justice Minister Yariv Levin is a strong supporter of the coalition’s power to push forward the candidates it wants. He, Rothman and other supporters say it will help empower politicians over appointments to the court, which they claim is insufficiently representative of Israel’s many political identities and ideologies, particularly in relation to the political right.

The new proposal would also change the appointment of three judges of the Judicial Selection Committee, all judges of the Supreme Court at present. When judges were being appointed to the nation’s supreme court, the president of the Supreme Court would be accompanied by two other members chosen by the Court, as is currently done.

Currently, Israel’s nine-member Judicial Select Committee is divided between four politicians and five professional representatives, including three judges and two members of the Israel Bar Association.

Proponents of change oppose the veto Judges have over appointments to the Supreme Court, because seven out of nine members must support an appointment, although the coalition government also has a similar veto.

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