Judicial reform talks frozen after opposition wins judge committee seat

Talks at the President's Residence over the government-proposed judicial reforms are officially frozen until the Judicial Selection Committee forms and begins to act after a breathtaking turn of events on Wednesday in the Knesset led to the election of just one of the two necessary committee members, opposition MK Karin Elharrar.

A repeat vote will be held within 30 days in order to choose the Knesset's second member.

The vote came after Prime Minister Benjamin Netanyahu and the leaders of the coalition's parties failed in a last-minute attempt to have no members chosen for the committee, and thus gain another 30 days to negotiate with the opposition.

Elharrar was elected in a 58-56 vote. The opposition numbers just 56 MKs, two of whom are abroad, meaning that at least four coalition members voted for the Yesh Atid MK in the anonymous vote, against the prime minister's wishes.

Lapid and Gantz: No point in continuing talks if committee does not convene

Opposition leader and Yesh Atid chairman MK Yair Lapid and National Unity MK Benny Gantz argued in a press conference after the results were announced Netanyahu had failed to ensure that the committee would convene and begin to appoint judges, and therefore there was no point in continuing the talks.

"I am concerned, because Netanyahu collapsed," Gantz said. "His conduct raises a large question over his judgment in fateful questions and raises a large question over his ability to control the coalition and respect agreements. In the current state of affairs, where there is no committee functioning as required, there is no point in holding talks at the President's Residence," Gantz said.

Lapid added that regarding the Judicial Selection Committee, "Netanyahu today prevented its establishment, putting an end to the pretense that he was open to negotiations. Netanyahu used to be strong and a liar, now he is weak and a liar. The committee has not been established, and the threat to our democracy has not been removed."

"Netanyahu knew the consequences. They were made clear to him by the President and by us. Without a Judicial Selection Committee, we will not come to the President’s Residence. No committee, no talks," Lapid continued.

"Netanyahu made a commitment to the president but then collapsed under pressure from his partners. He lost this vote because even in his coalition there are decent people who value democracy and decided to put an end to the lies," Lapid said.

The nine-member Judicial Selection Committee is responsible for appointing judges at all levels of Israel's civil court system. While not required by law, the coalition traditionally votes to occupy one spot on the committee and allows the opposition to occupy the second spot.

Lapid and Gantz warned repeatedly in recent weeks that if an opposition representative is not elected to the committee and the committee does not begin to function, they will leave the talks.

"Gantz and Lapid are doing everything they can to sabotage the negotiations," Netanyahu charged at the opposition leaders in a video statement released via Twitter on Wednesday evening. "Yesterday they said they will freeze the talks if their candidate is not chosen.

"Today, their candidate has been chosen but they are still freezing the talks. Lapid and Gantz do not want a real negotiation to be held," the prime minister further claimed.

היום הוכח: גנץ ולפיד חיפשו כל תירוץ כדי לפוצץ את ההידברות pic.twitter.com/BL1WXnhjh5

— Benjamin Netanyahu - בנימין נתניהו (@netanyahu) June 14, 2023

Judicial reform talks frozen, not completely over

The talks are now frozen, but not completely over as many expected. A complete cessation of the talks could bring the country back to the turmoil it experienced between January and March, when the coalition tried to advance its reforms one-sidedly.

Large swaths of the coalition, including Ben-Gvir's Otzma Yehudit party, Finance Minister Bezalel Smotrich's Religious Zionist Party, and a number of MKs from the Likud, said in recent days that ceding a spot on the committee would be an unnecessary concession to the opposition, which has not publicly committed to anything in return. Some, such as Likud MK Boaz Bismuth, even said publicly that they would vote for two coalition candidates, and not for the opposition's candidate.,

Since the Judicial Selection Committee vote was anonymous, the only way for Netanyahu to ensure that the opposition would have been given a spot on the committee was if only one coalition candidate remained. On Wednesday morning, the coalition still had eight candidates.

The leading candidate for the coalition was Otzma Yehudit MK Yizhak Kroyzer, due to the fact that the Likud promised a spot on the Judicial Selection Committee to Otzma Yehudit in coalition agreements, and Kroyzer was Otzma Yehudit chairman MK Itamar Ben-Gvir's candidate.

However, as the time of the vote neared on Wednesday, Likud MK Tally Gotliv refused to remove her candidacy, leaving open the option that two coalition MKs would be chosen.

Once Netanyahu realized that he could not ensure one of the spots on the committee would go to the opposition, he changes tactics and decided to delay the vote for 30 days using a specific clause in the Knesset protocol.

According to a clause, if there are only two candidates for the Knesset's two spots, then the vote simply becomes a "yes" or '"no" vote for each one of them. If one of the candidates receives more "no" votes than "yes" votes, a new vote for the spot on the committee must be called within one month.

Netanyahu therefore decided to have Kroyzer's candidacy removed, so that only Gotliv and Elharrar were left, enabling the "yes" or "no" vote and the delay mechanism.

He then directed all coalition MKs to vote "no" for both candidates.

However, the move failed, and at least four coalition MKs defied his orders.

The opposition also scored a victory in one of the three votes for religious courts, which were also part of Wednesday's vote, after National Unity MK Pnina Tamano-Shata secured one out of the two spots reserved for Knesset members on the Dayanim (Jewish religious judges) Selection Committee. No representatives were chosen for the Kadim Selection Committee (Muslim) or Kadim-Madhab Selection Committee (Druze).

Earlier on Wednesday, the coalition put out a statement blaming the opposition for the developments.

"The prime minister, coalition heads and the Likud are unwilling to accept a situation in which a Knesset member acts on her own accord and violate coalition agreements, especially on this sensitive issue," the coalition heads said, regarding Gotliv.

"Therefore, the coalition heads, with no other option, decided to apply the clause in the Knesset protocol that enables them to leave the situation as it is and choose no candidate, until a new vote is held within 30 days.

"Just yesterday Gantz said that he would blow up the talks if two coalition representatives were chosen. This did not happen, and Gantz is still calling to blow up the talks.

"The heads of the coalition call on the opposition to stop putting ultimatums and stop making up excuses to blow up the talks.

"After three months of a determined refusal to every proposal brought forward by representatives of the coalition, including proposals in recent days that were not even answered, the heads of the coalition call on the opposition to continue with the talks and reach agreements without pausing."

Netanyahu made similar remarks in a video statement soon after. Smotrich also put out a video statement, saying that "the threats by the opposition to blow up the talks at the President's Residence one-sidedly reveal their true faces. They are not looking for compromise and agreements, they want to bring down the government."

"We will not surrender, will not back down, and will not accept one-sided decrees. We will not a free to freeze the heart of the reform," Smotrich said, adding that if the opposition chooses to leave the talks, "We will legislate independently according to the unequivocal mandate we received from a large majority in the Israeli public in the recent election."

Ben-Gvir demanded after the vote that the coalition should immediately pass a law in the plenum that will reconstruct the makeup of the Judicial Selection Committee such that the coalition has a majority.

"The fact that some Likud members voted with the opposition is very concerning and a big question mark whether all of the members of the Likud are committed to the judicial reforms," Ben-Gvir said, adding that an open vote on a new Judicial Selection Committee bill will reveal "whether the entire Likud is committed to the Right or not."

According to current law, the Judicial Selection Committee includes 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 representatives of the Israel Bar Association (IBA). One each of the judges, ministers, MKs and IBA representatives must be a woman.

Justice Minister Yariv Levin and other proponents of the judicial reforms argue that the Bar Association members have an interest in siding with the judges before whom they appear in court. This gives the judges a de facto majority in the committee and the ability to choose whomever they see fit. Levin argued that the elected representatives of the people should be the ones appointing the nation’s judges, and therefore proposed to amend the committee’s makeup such that the coalition has a majority.

The opposition, however, has argued that giving the coalition complete power over judicial appointments will turn these appointments into part of the political give-and-take, and thus create a system where judges are chosen due to their political affiliations and not their skill or expertise.

The Supreme Court members of the committee are Chief Justice Esther Hayut, Justice Uzi Fogelman and Justice Yizhak Amit; the second minister has yet to be chosen, but Ynet reported on Monday that Netanyahu was considering appointing National Missions Minister Orit Struk (Religious Zionist Party); and the Israel Bar Association is voting for its chairperson and executive committee on June 20, and will choose its representatives on the committee soon after.

A 30-day delay would have given the coalition clarity over the IBA's representatives on the committee, and could possibly have given the coalition a majority with both ministers, both IBA representatives and at least one of the MKs. This, for example, could have enabled Levin to appoint the next Supreme Court Chief Justice, which requires a regular 5-4 majority, as current chief justice Hayut is retiring in October.

However, the chance that both IBA members will back Levin is slim, and with Elharrar occupying one of the MKs' spots, it is unlikely that this will pan out.

A delay for a month also means that no judges will be appointed for the next month, despite dozens of vacancies that need to be filled. It also means that the coalition may attempt to pass two parts of the reform without the opposition's support.

The first would enable government ministers to hire private representation when their policies are challenged in court if the Attorney-General does not agree to represent them, and the second would limit the Supreme Court's ability to use the "reasonableness factor" when evaluating the legality of government decisions.