Judicial reform change offers concession – here’s why critics rejected it

Legal reform critics rejected a concession in which a seat on the judge selection committee would be reserved for an opposition Knesset member in a new version of the draft Basic Law: Judiciary amendment submitted late Sunday night.

According to the draft revised by Knesset Constitution, Law and Justice Committee chairman Simcha Rothman (Religious Zionist Party), in addition to the committee chairman and a coalition Knesset member, another Knesset representative would be elected by opposition factions.

In the current Basic Law, two Knesset members are elected by the legislature to the selection committee. Since the 1990s, it has become tradition for one of the Knesset members to be an opposition member, often arranged through negotiation with the coalition. Rothman’s proposal would codify this practice.

The rest of the committee would be composed of the justice minister, two other ministers, the High Court of Justice president, and two judges. Five of the committee members would be part of the ruling coalition.

Former justice minister Gideon Sa'ar rejected the change, saying that "there is no fundamental change in MK Rothman's 'new' proposal. This is not only a coalition takeover of the committee for the selection of judges. In fact, the prime minister has a built-in majority in the committee, since he determines the ministers and, in fact, also who will be the chairman of the Knesset and the chairman of the Constitution, Law and Justice Committee of the Knesset."

The draft holds that decisions on the judge selection committee are by majority vote, and those that abstain are not counted when considering majority opinion. In a revision made by Rothman late Thursday night, the legal quorum for committee meetings was lowered to five.

During the committee session, attorney Matan Meridor, son of former Likud MK and justice minister Dan Meridor, said that a quorum for committee discussions and a majority for votes both being five meant that the coalition effectively appointed judges.

Former selection committee member and ex-Likud MK Nurit Koren criticized how the judges operated in the selection committee, claiming that it was the judges that controlled the current system in an unfair way.

She said that she was surprised when she "found out that the judges control there and a [Knesset] committee member receives an empty form that states whether or not the candidate is suitable for judging, there is no mention of what was tested and how it was tested."

Koren claimed that former candidates had told her that they were prevented from serving as judges because they were Mizrahi Jews, conservative or religious. The candidates were reportedly questioned related to these characteristics.

On Sunday's session, it had been suggested that only retired judges on the selection committee. Koren said that this was "good because then they are not influenced by the [High Court] president." She also proposed a ten year term limit for High Court justices.

Rothman's Thursday revision proposed that judicial candidates also would undergo public law committee hearings. While during previous sessions this was criticized since the coalition controlled the committee, Koren asserted that it would be a positive development because the "public will be able to get an impression as well as the elected officials."

Referencing the provision that the selection committee, judges' candidacy was based on an agreement between the High Court president and justice minister, Sa'ar also said that "The representatives of the judges are also not theirs [the opposition] but that of the justice minister."

Sa'ar warned that in practice absorbed all authorities into the government, and would not restore the balance of powers but break that balance.

Black Robes Protest group

The Black Robes Protest group, comprised of private firm lawyers, also dismissed the revision saying it "illustrates the reality that the government is aiming for -- a country without an independent judicial system where the politicians choose the judges without any balance."

Protests erupted in the law committee itself on Monday morning, as Rothman gave his opening remarks. Young activists burst into the room, shouting "democracy, democracy, democracy."

"Nothing which is more symbolic of both the conduct of the opposition and the type of 'democracy' that shuts people's mouths," said Rothman. "There is nothing more symbolic of the lack of respect for democracy and the lack of respect for the culture of discussion than what we have seen now, and the rather surprising support that this thuggish behavior received from the opposition representatives."

The activists were not alone in being removed from the session -- Yesh Atid MKs Naor Shiri and Yorai Lahav-Hertzano were ejected when they shouted at Rothman when he attacked Deputy Attorney-General Avital Sompolinsky and the attorney-general's office for presenting their own legal opinion and not working to formulate a joint opinion with the government.

"The position we are presenting is a legal position of the attorney-general, not an opinion piece nor the government's position," replied Sompolinsky. "There is no formal government position because there is no bill yet. The Justice asked us for a legal reference to the memorandum he wanted to promote and at this stage they did not get back to us."

Rothman indicated that the lack of effort by the attorney-general's office to formulate a government position emphasized how the government legal advisors did not speak for the government. Part of the judicial reform proposed by Justice Minister Yariv Levin would see the independence of legal advisors restricted, and forced into line with government positions.

Before the committee, Sompolinsky also defended the High Court's power of judicial review in relation to Basic Laws. She explained that there were only two conditions in which the court would intervene in the matter of Basic Laws. Firstly, when the laws are not correctly formulate as Basic Laws and are not granted immunity from judicial review. Secondly, Basic Laws that touch on content beyond the scope of the Knesset's constitutive authority, such as those that harm the nature of the state as Jewish and democratic.

Likud MK Tali Gottlieb argued that it was the court that was harming the Jewish and democratic character of the state, since it impeded demolition of the houses of terrorists, and limited the function of the democratically elected Knesset.

Sa'ar said at the committee that he had also criticized in the past the court's judicial activism, but said that attacking judicial review and altering the court's power with an amendment of Basic Law: The Judiciary rather than introducing Basic Law: Legislation was a shortcoming of the current reform endeavor. This theoretical Basic Law would establish the boundaries and relationship of the legislative and judicial branches.

The former justice minister also warned about the system that the proposed reform would create, saying "When you change a system of the foundations of the regime, you never know who it will turn on. Today there is one government and tomorrow another government."