Lawmakers clash over judge selection in law committee session
Knesset members for and against the proposed judicial reforms clashed over changes to the judge selection process during Monday’s Knesset Constitution, Law and Justice Committee session.
As with previous committee sessions, politicians were quick to speak over one another and the experts invited to give testimony. Labor MK Naama Lazimi was ejected from the room by committee chairman Simcha Rothman three minutes into the session, after she accused him of threatening the committee’s legal adviser, Gur Bligh.
Bligh and Rothman dueled over the adviser’s Friday draft paper warning that the proposed reforms would shift all power into the hands of a ruling coalition.
Rothman argued, “The preparation document of the legal adviser had some excellent and good points that are worth mentioning, but the preparation document is biased.” He added that the opinion had conflated the coalition, the government and the Knesset multiple times.
On Sunday, Bligh proposed that the reforms should only come into effect in the following government rather than immediately. He raised the idea again in Monday’s session, noting the Norwegian Law as an example of legislation that greatly changed the government landscape after it was implemented. He emphasized that his idea was a suggestion rather than something that must be done.
Rothman addressed this issue by reading a list of 52 Basic Law amendments that went into effect immediately.
Bligh on Monday reiterated his warnings about the unbalancing of power that would be created, homing in on the impact to be achieved by giving politicians a majority on the Judicial Selection Committee.
“This thing creates a winner-takesall situation,” in which the coalition members can choose whomever they want, said Bligh. “The concern arises that instead of creating a need for consensus, this reduces the need for consensus.”
Bligh also noted that the Judicial Selection Committee dealt not only with the selection of High Court justices, but also the promotion of district judges, and that those who would be in a position to issue a judgment against the state might be less inclined to do so, expanding the coalition’s power.
Former justice minister MK Gideon Sa’ar said, “This would give 99% control to the government and the prime minister in the selection of
judges in the State of Israel. This is incorrect and dangerous. In the political culture in the State of Israel, this will make the selection of judges a coalition matter like any other.”
Another former justice minister, Likud member Meir Sheetrit, decried the changes as well.
“Why do you want to destroy something that is working well?” he said. “During my time, over 150 judges of all shades were appointed. Until I was minister, there was not a single Yemeni or Bedouin judge in Israel.
Most of them did not come from developing areas, and that changed dramatically.”
However, Sheetrit did say he was in favor of splitting the role of the attorney-general but with a majority of 75-80 MKs, rather than having a simple majority of 61 able to strike down High Court rulings.
Former Tel Aviv District Court vice president Prof. Oded Modrik said there was nothing wrong with elected officials choosing judges if the goal is to create pluralism, but not if it is illegal.
“Today there is a claim – that I am not sure is true – that the High Court is going beyond its scope and taking over the other authorities. So in the name of God, do not do the opposite, so that the government will take over the High Court,” said Modrik. “Democracy will not exist here.”
In Bligh’s Friday draft paper, he described the provisions chosen for the reforms as being the most extreme versions. Rothman countered on Monday, saying this was far from reality, noting a comparative analysis pointing to some countries in which the courts did not have any judicial review – which is not what was being proposed for the Israeli system.
The comparative analysis published by Rothman reviewed several Western democratic nations that lacked a separate constitutional court. One of the academics cited in the analysis, Hebrew University of Jerusalem law Prof. Yoav Dotan, cautioned against all the comparative analyses that both sides had been creating regarding the reforms, saying such things were “speculative.”
“All these comparative analyses are very tricky, very risky and subject to manipulation,” said Dotan. “Each side is doing analysis, and each side is taking the parts that help their argument.”
He explained that the matter of judicial appointments can’t be discussed without the question of balance; each system has its own way of balancing the powers of different branches, and judicial appointments are just one element.
For example, he said, “The Supreme Court in the US has the power to strike down legislation, and this power under Article 3 is comprehensive and ultimate, something that the High Court in Israel doesn’t have. That ultimate power is compensated by the ability of the political branch to affect the composition of the court.”
Dotan said that pro-reformers were unwilling to give the court ultimate judicial review to balance the system. Conversely, anti-reformers were unwilling to give political control of appointments in return for ultimate judicial review.
The professor said it was odd that Rothman would cite his work, and that he had avoided the committee sessions, but now decided to speak.
“I am strongly against the changes to judicial appointments in Israel. If he is citing my work, then he should cite me now,” said Dotan. “Nothing in my work provides a solid academic basis for Rothman to introduce his reform.”