There’s no ‘compromise’ in the coalition’s play for unlimited power

This is not a milder version nor is it a compromise. Put simply, the coalition wants to seize control of the Supreme Court and the entire judicial system. They want the government to wield unlimited power. And that is not democracy.

Let’s start at the end. If you seize control of the Judicial Appointments Committee, there’s no longer a need for any reform. If the coalition wants unlimited power, there is only one thing it has to do: control the appointment of judges at the Supreme Court.

The Judicial Appointments Committee (JAC) is the keystone, the very heart of the story. Why? Because today, the Supreme Court is the only institution able to set limits on what the government can do. In Israel, there are no other restraints on the power of the majority. And so, if you look at MK Simcha Rothman’s “new” proposal about the JAC, it all comes down to a single question: in the future, will there be anyone left to limit the power of the coalition — any coalition — and protect our rights against an aggressive majority?

The proponents of the reform assert that the Supreme Court bench isn’t diverse enough and doesn’t include “conservative” justices — and that this must be fixed without delay. Just by the way, today, almost half of the justices lean conservative. This has nothing to do with liberal or conservative; in the last few years, the current system has yielded a diversity of outlooks on the bench.

No, the truth is that the government doesn’t really want “conservative” justices. It wants justices beholden to the coalition, to the government. “Coalition judges.” What the government really wants is judges “of its own.”

According to the new proposal, the coalition would get to choose the first two justices selected by each Knesset, as well as the president of the Supreme Court. These justices would have a clear political identity and would be appointed on the basis of political, rather than because of professional considerations. Today, the justice with the greatest seniority automatically takes on the position of court president (chief justice). This principle was adopted to guarantee that the justices are independent of the politicians they are supposed to oversee. As stated, however, what the coalition wants is a chief justice who is one of its own.

First, the coalition will appoint a chief justice who is in its pocket. And then, it will select two new justices. We should bear in mind that it is the court president who determines which justices sit on the panel that hears each and every case. In Rothman’s plan, after the coalition has appointed two justices, without needing the agreement of the sitting justices, the third appointment in the course of the term of a particular Knesset would require the consent of one member of the opposition. The fourth appointment would also require the consent of one of the justices on the committee. But in such circumstances, what coalition would want to appoint any more than two new justices? It would do better to wait for the next Knesset, and begin the count from the first two again. Given the current political situation, it is plausible that many a Knesset would not name more than two justices — depending, of course, on when the incumbent justices retire.

Under the new system, sitting justices would never — or only rarely — be involved in appointments. Politicians would select justices who hear cases on wills, family matters, property disputes, contracts, taxes, traffic accidents, and criminal law. That is so because Israel’s Supreme Court isn’t only a constitutional court, but also, and primarily, the Supreme Court of Appeals. Even if the justices do take part in the appointments process (in the theoretical case of a fourth appointment), it would require the consent of only one justice, who could of course be the court president — who would just happen to have been appointed by the coalition. The chief justice could be the additional vote that gives the coalition full control over the choice of judges at all levels, including in magistrate and district courts.

What would be the outcome? Total politicization — in fact, “coalitionization” — of the bench. From now on, every government would name two of its “own” justices. The next government would name only the first two new justices, chosen solely by the coalition. We would end up with a political court, no longer independent, and judges with less professional expertise. It would be difficult, if not indeed impossible, for the court to strike down laws. And the change in the composition of the bench would make it possible for the Knesset to enact, sooner or later, all the other pieces stages of the “reform.” There wouldn’t be anyone left to strike them down. In effect, judicial review of legislation would probably be a thing of the past.

So the “concession,” the compromise, and the splitting of the plan into several stages — with the JAC being the first stage — is a sham, a fraud throwing dust in the eyes of the public. It’s a hostile takeover of the Supreme Court — the only defender of our rights and the only body that can restrain the government’s power.

We should bear in mind that almost every dictatorship in the world has a constitution with a dazzling list of human rights — including more than 50 articles in Russia, for example. But in dictatorships, citizens have nowhere to go if their rights are violated. There are no courts to go to.

So this isn’t a milder version nor is it a compromise. This is a total abolition of an independent judiciary. Put simply, the coalition wants to seize control of the Supreme Court and the entire judicial system. They want the government to wield unlimited power. And that is not democracy.

 

First Published in the Times of Israel.