New Rothman proposal does not solve 'essential legal difficulties,' deputy A-G says

The new law proposal by Knesset Constitution, Law and Justice Committee chairman MK Simcha Rothman which enables the coalition to appoint two High Court justices per Knesset term without the approval of the opposition, does not solve the "essential [legal] problems" that existed in the previous proposal regarding "politicization of the courts" and damaging the courts' independence and the concept of separation of government branches, Deputy Attorney-General Avital Sompolinsky said during a committee session on Monday morning.

Rothman first announced the new proposal late Sunday afternoon, and leaders of the coalition parties announced late Sunday night that they had decided to adapt the new proposal, and pass it into law before the Knesset recesses for a month beginning on April 2.

The new proposal is that the Judicial Appointments Committee will include 11 members instead of the current nine, while six out of the eleven will come from coalition parties – three ministers and three Knesset members. The remaining five are two opposition Knesset members and three judges, one of whom is the Chief Justice. For appointments to the High Court, the other two justices would also be High Court judges, but for lower courts, the two would be replaced by a district court president and a magistrate’s court president.

Appointments for lower courts require a majority of seven out of eleven, but High Court appointments would require a simple majority of six. This gives the coalition an automatic majority., but the coalition will only be able to choose two High Court Justices per term without the approval of the opposition. A third appointment in a given Knesset term requires the approval of an opposition MK, and a fourth appointment also requires the approval of one of the judges.

The coalition's majority could also give it the power to appoint the High Court's Chief Justice. The Judicial Appointments Committee by law is the body that appoints the Chief Justice. However, the justices themselves developed a custom where the longest-serving member is the only one to put forwards his or her candidacy. However, if another justice applies, the coalition would then be able to decide as it wishes.

"The arrangement enables the coalition to appoint a High Court Chief Justice, and this creates immense essential difficulty, regarding the different authorities that are awarded the chief justice based on a certain approach regarding his standing and role," Sompolinsky added in the committee. "In addition, it is not clear whether a given coalition would receive the opportunity to appoint more than two judges in one term," she added.

Attacking Rothman's proposal

Opposition committee members attacked Rothman's proposal over both its content and procedure. They argued that it was presented to them without a written legal opinion, contrary to Knesset custom, and it later became apparent that the Knesset's legal advisor was not familiar with the new proposal. The opposition also argued that the changes were significant and therefore the issue needed to be debated as a new provision, which requires additional procedure.

The heads of the government coalition announced late Sunday night that in addition to adopting the new proposal regarding the Judicial Appointments Committee, the coalition was postponing the rest of the judicial reform bills until the Knesset reconvenes on April 30.

The coalition leaders called on the opposition to utilize the month of recess to hold talks regarding the upcoming bills.