Adviser: Reforms should only be valid next term
The proposed judicial reforms should only come into effect for the next government, Knesset legal adviser Gur Bligh recommended at the Knesset Constitution, Law and Justice Committee session on Sunday morning.
“Experience teaches that as a rule, all judicial amendments that significantly change the relations between the governing authorities or the power relations between the opposition and the coalition do not come into effect immediately but... only begin from the Knesset after the one that passed the law,” he said.
Committee Chairman Simcha Rothman said that Bligh “has points that we should pay attention to, and those that we shouldn’t.” He said that the legal adviser had only used partial explanations for his side of the argument, rather than his party’s platform and his book on the subject.
The Sunday session was turbulent with the return of the opposition from a previous boycott of the proceedings. MKs interrupted and shouted at one another, and at one point Rothman even ejected Likud ally Tally Gotliv from the session.
Discussion turned away from the judicial draft bill to discuss the terrorist attacks over the weekend.
Gotliv noted that “We got a glimpse of what happens when the ombudsman is not a trusted servant. Instead of a phone call confirming that the security forces do the obvious, it takes [Attorney-General Gali Baharav-] Miara a whole day to seal off a terrorist’s house.”
The discussion of a bill on the role of legal advisers had been previously shelved when it was determined by Knesset legal adviser Sagit Afik that it was beyond the legislative scope of the committee.
Labor MK Gilad Kariv called on National Security Minister Itamar Ben-Gvir to apologize for attacking the attorney-general in a statement on Saturday night accusing her of delaying sealing off the home of the terrorist who committed the Neveh Yaacov attack that left seven dead.
The session ended at noon to allow Knesset members to attend the funerals.
During the session, Bligh reiterated his opinion on the flaws of the proposed bill to reform the judiciary, that the changing of checks and balances only flowed in one way, and that the proposals were against the trends in the democratic world.
The Knesset legal adviser on Friday issued his opinion on the draft bill proposed by Rothman, that would limit the High Court of Justice’s use of judicial review, cancel
the use of the reasonableness clause, introduce an override clause to strike court rulings with a simple majority, and stack the judge selection committee with politicians.
Bligh also stated that the draft bill lacks balancing provisions, puts far too much power in the hands of the coalition, and imposed the most extreme versions of different proposals raised.
“It seems that in the accepted proposed version, extreme points from different proposals were selected and
combined into one proposal while omitting from it all the balancing mechanisms that have been proposed in the past, so that in the overall picture, the bill seriously harms the court’s ability to act as a brake on the power of the legislative and executive authorities,” Bligh wrote in his opinion.
ACCORDING TO BLIGH, each individual law alone had the capability to change the judiciary into a branch subservient to the government
and its ruling coalition, and together these provisions had the ability to do so to an even greater degree.
“The proposed change in the composition of the committee for the selection of judges is sufficient in itself. The granting of an ‘automatic majority’ in the [selection] committee to the government and the majority that supports it,... raises the fear of harming the independence of the judges and their independence,” wrote Bligh.
“Similarly, it is sufficient to legislate the Override Clause alone – certainly when it comes to a model that allows legislation to override preemptively and in most cases a regular coalition of 61 Knesset members – to ensure the supremacy of the legislative authority, and in practice the executive authority as well, over the judiciary, since it will be relatively easy to prevent judicial review of legislation.”
During Sunday’s debate, Rothman asserted that after past proposals for an Override Clause with a simple majority and unanimous judicial review, the previous government was ready to pass the law.
Opposition MK and former justice minister Gideon Sa’ar called Rothman’s claims fraudulent, and said that for decades his and his New Hope Party’s position was for an Override Clause with a qualified majority of 65 MKs.
Another issue arising from the provisions being passed together was that some of them were incompatible or created conditions that handicapped the court to a severe degree.
Bligh also explained that the wording of the draft bill deviated drastically from previous models developed and proposed by legal academics. The proposed provisions are much more extreme than similar laws in other countries.
“Even in a comparative view of other democracies, it is difficult to find a combination of such significant restrictions on the judiciary’s ability to review the legislative and executive authorities,” wrote Bligh.
For example, Bligh explained how other countries had various balancing mechanisms with which to judge selection. The US subjects executive appointments to approval by Congress. He also noted that in contrast to the proposal to remove Israeli Bar Association representatives from the selection committee, global trends in the last two decades have included legal professionals in the process.
While there were potential problems in a judicial selection based on political identity only, such provisions would not only damage the functionality of the court, but allow the ruling coalition to dispense with the need to seek agreement with other parties.
Bligh urged the law committee to address the lack of balance and inconsistencies, a call that he repeated at Sunday’s session.
“There is a serious fear that the proposed arrangement will seriously damage the protection provided to [human] rights and [democratic] principles,” summarized Bligh in his written opinion.