On January 2, 2012, the "Bar Association Bill," which would change the way that the Bar Association's representatives to the Judicial Appointments Committee are selected, was approved by the Knesset's Constitution, Law, and Justice Committee for its second and third plenum votes. This bill, which strengthens Justice Minister Yaakov Neeman's influence in the Judicial Appointments Committee, dramatically changes the rules of the game. In the following op-ed, Prof. Mordechai Kremnitzer and Attorney Amir Fuchs explain why they see this bill—and especially its retroactive application—as undermining the rule of law. On January 4, 2012, Prime Minister Netanyahu suspended this bill, following an outcry from his own party's ministers, other members of Knesset, the media, and the public.
The Knesset reached a new height in contempt for the rule of law this week when the "Bar Association Bill," which would change the way that the Bar Association's representatives to the Judicial Appointments Committee are selected, was approved for its final readings by the Knesset's Constitution, Law, and Justice Committee despite reservations expressed by the Attorney General (represented by his deputy) and the committee's own legal adviser. Sadly, it is no longer clear whether the Constitution, Law, and Justice Committee is worthy of its name, since its actions are contrary to the values of the three elements contained in it.
In a classic story by Ephraim Kishon, Ervinke is playing "Jewish Poker," a game with ever changing rules. When he is at risk of losing, Ervinke calls out "ultimo!" He then explains that "according to Hoyle, whoever is first out with the ultimo wins, regardless of the numbers."
The "Bar Association Bill" under consideration is being promoted by Justice Minister Yaakov Neeman. His vote tipped the scales in favor of this bill when the Ministerial Committee on Legislation originally passed it. He also decided not to return the bill to the Ministerial Committee for discussion and formal approval by the government after significant changes were made to it. This bill is reminiscent of the way that Kishon's Ervinke played poker. It aims to change the rules of the game during the game itself, because the coalition did not like the results of the game under the old rules.
The Judicial Appointments Committee is made up of nine members: Two ministers–of whom one is the Justice Minister, who chairs the committee–the Chief Justice of the Supreme Court, two additional judges, two members of the Bar Association, and two members of the Knesset, traditionally one from the coalition and one from the opposition. According to the law, the two representatives of the Bar Association are elected in its National Council elections; indeed, two representatives of the Bar Association were chosen to serve on the Judicial Appointments Committee in such elections in November, less than two months ago. The majority of the current National Council, however, is not supportive of the current chairman of the association, Doron Barzilay, a close associate of the Justice Minister. As a result, the representatives elected to the Judicial Appointments Committee are not supporters of Barzilay and are not "yes men" for the government. Because of this, motivated solely by the personalities involved and the specific current situation (this assessment is not only ours but also that of the Attorney General), the coalition is trying to change the manner in which the Bar Association's representatives are elected in the National Council elections, such that a place will be ensured on the Judicial Appointments Committee for the Association's chairman or his representative.
What is critical about the bill that the Committee advanced to the final stages of legislation is that it retroactively cancels the Bar Association's recent elections, as it includes a directive that the elections for representatives of the Bar Association will be repeated in 30 days. Retroactive legislation of this nature is anathema to the rule of law.
What is the point of having a legal selection process that is properly conducted–in this case, the elections for the Bar Association's representatives to the Judicial Appointments Committee that were conducted within the framework of its National Council–if it's possible to casually dismiss its results with retroactive legislation? Such a move, which ousts properly elected representatives, severely damages the democratic nature of our political system, which rests on respect for the results of democratic elections. This type of respect precludes the cancelation of elections that were properly conducted, but that is the intent of the bill under consideration. This type of respect demands respect for the "rules of the game" that were in effect at the time of the elections. Rules cannot be changed midstream once a game is underway. That is a basic rule of fairness that even children understand.
This move comes after another move against tradition that the Knesset made when it chose its two representatives to the Judicial Appointments Committee. As stated previously, the current constitutional practice is that one Knesset representative is from the coalition, while the other is from the opposition. In this case, the Knesset did not chose a member of the main opposition bloc, which is to the left of the government, as its "representative of the opposition," nor did it choose any other representative of the opposition on the left; rather, it chose MK Uri Ariel of the National Union–a Knesset member who is to the right of the right wing government. In so doing, the Knesset made a mockery of a procedure that is intended to ensure that the Knesset representatives reflect its key positions, both right and left.
As a result of this move, in actual fact, the coalition already has four representatives on the Judicial Appointments Committee: two ministers and two representatives of the Knesset. Entrenching an additional person who belongs to this "bloc" in the Committee would give the coalition an automatic majority in the Committee. It will be possible for the Committee to appoint judges against the opinion of the Supreme Court judges, based on political considerations rather than professional considerations. This is the ultimate purpose of this move, and it contains a most serious threat to the judicial system. With regard to judges in courts other than the Supreme Court, Committee members will be able to appoint judges as they please, without having to reach agreements with others. Similarly, regarding the appointment of Supreme Court judges, there will be a serious imbalance between the political forces and the professional forces in the Committee.
The actions of MK Carmel Shama Hacohen, who chaired the session, and the MKs who voted for the bill, were detached, as if these elected officials were totally disconnected from the most fundamental principles of legality and fairness. Will the Speaker of the Knesset, the Prime Minister, and the Attorney General–who are responsible for this shift–allow the deterioration involved in the authorization of this bill to continue?