Exploiting the Public's Distraction to Pursue the Judicial Overhaul

Amidst the return to fighting in Gaza, the Minister of Justice is taking advantage of the public's eye being off the ball to hastily overhaul Israel's judicial system.

Committee chairman MK Simcha Rothman leads a vote during a Constitution, Law and Justice Committee meeting at the Knesset. Photo by Yonatan Sindel/Flash90

At the current time, Justice Minister Yariv Levin is attempting to rapidly push through the change at the heart of his “judicial reform,” as he calls it - the politicization of the Judicial Selection Committee. Levin and Foreign Minister Gideon Sa’ar presented their plan for this as a gradual change, rather than the revolution proposed in the original amendment put forward by Levin two years ago, according to which the governing coalition would be given a majority on the Committee. They also presented their plan as a form of “compromise,” which was supported by the bereaved parents Yizhar Shai and Dedi Simchi (though since then, the former has withdrawn his support).

In response, it needs to be stated that while the new proposal does not award a majority to the coalition, it still represents a dramatic revolution: Instead of a majority of professional representatives, the Judicial Selection Committee will instead have a majority of political representatives. This means radical and sweeping politicization of the process of appointing judges to all of Israel’s courts. Indeed, in contrast to the law as it currently stands, the plan will give a veto on the selection of judges for the Supreme Court only to politicians and their representatives, meaning that the professional representatives will have no real say on such decisions.

In addition to the content of the new bill, it is also important to note the improper process via which it is being advanced.

First, this is no compromise, but rather an extreme and unilateral plan put forward by the government. Suggestions for moderating the proposal and reducing the level of politicization, as made by representatives of the opposition or of the attorney general’s office on the Knesset Constitution, Law and Justice Committee (such as excluding all courts other than the Supreme Court from the arrangement) have been rejected outright. The only aspects that were amended by the Knesset were technical changes that did not alter the substance of the proposed amendment. We are left with an extreme and sweeping bill.

Second, everything is being done with improper haste. These are difficult days, with hostages being buried and the public preoccupied with the return to fighting in Gaza. The very act of pursuing a revolution in the judicial system at this time constitutes a cynical exploitation of the lack of public attention. Furthermore, the amendment is being pushed through in a hurry, using various shortcuts. Rather than putting forward their plan as a new government bill, Levin and Sa’ar instead artificially grafted it onto the framework of a bill that was discussed two years ago and which had completely different wording. This was done in order to skip almost all the required stages of legislation, including the procedures involved in formulating a government bill, which are carried out with the involvement of the attorney general’s office. Thus, a basic law that would alter highly fundamental aspects of the state is being discussed via a brief and superficial process.

As if that were not enough, as someone who participated in all the meetings of the Knesset Constitution, Law and Justice Committee on this subject, I can report that the experience has been shocking. The Committee chairman, MK Simcha Rothman, used his powers to limit the time allocated to all Knesset members and experts invited to speak before the Committee; heaven forfend that an in-depth discussion should be held. Rothman also addressed the representatives of the attorney general’s office in a rude and unbecoming manner.

Let us recall what we are dealing with here: The composition of the Judicial Selection Committee was decided in 1953 following an orderly and in-depth legislative process, held over the course of two Knesset terms. It was the product of genuine compromises that were made on all sides in order to gain the agreement of a broad governing coalition and of representatives of the opposition. In 1984, this composition of the Judicial Selection Committee was ratified and given the status of a basic law. At that time, the basic law was passed unanimously by the Knesset, with no opposing votes cast (though with one abstention). This is a foundational arrangement that plays an important role in the realization of the principles that underpin the work of the judicial branch, and in protecting the rule of law and human rights in Israel.

The Judicial Selection Committee can certainly be altered and its work improved. But what Levin and Rothman are doing in their attempt to push this amendment through the Knesset within a matter of days is the opposite of a proper procedure for legislating basic laws: They are passing an extreme and sweeping arrangement in a snap, in a high-handed, hasty, and unilateral manner. And all of this is part of a broader assault on the independence of the judicial system, which includes, among other things, making the Ombudsman of the Israeli Judiciary into a political tool for persecuting judges, and threatening to dismiss the attorney general. None of this represents a constitutional compromise, and certainly not an attempt to achieve national unity. Rather, it is a manipulative step that will only increase polarization and division.