As the deadline set by the High Court of Justice for Minister of Justice Yariv Levin to appoint a president of the Supreme Court nears, Levin, together with Minister of Foreign Affairs Gideon Sa’ar, published a plan today that the two ministers called "a historic consensus" on changing the composition of the Judicial Selection Committee and the way it operates. The consensus, however, is between Levin and Sa’ar, two coalition ministers who are promoting a new move. The opposition is not a partner to the plan, and the Judicial Branch, with which Levin has severed working relations, heard about it from the media. According to the ministers’ announcement, the plan was drawn up after consultation with former minister of justice Yizhar Shai and General (res.) Dedy Simhi.
Political considerations will dominate
Under the proposal, which will come into force in the next Knesset, the Judicial Selection Committee will still have nine members, but the two representatives on it of the Israel Bar Association, which campaigned against Levin’s judicial overhaul, will be replaced. In their stead, there will be one lawyer chosen by the coalition and one chosen by the opposition, which means that although these are meant to be legal professionals they will become appointees of the politicians on both sides.
The proposal also changes the balance of forces on the committee, reducing the power of the judges and elevating the power of the politicians. The appointment of a judge to the Supreme Court will require a majority of only five of the nine committee members (instead of the current seven), but support for it will be required from one coalition representative and one opposition representative. The upshot will be that political considerations will dictate the selection.
Each side can rule out candidates. This requirement can be expected to lead to paralysis, as has already happened over the past two years, since the retirement of Supreme Court justices Esther Hayut and Anat Baron, and recently Uzi Vogelman as well. The committee does not appoint judges to the Supreme Court unless there is agreement by a majority of seven members, and so the Supreme Court has been short of three judges.
To resolve this, Levin and Sa’ar propose "a mechanism for overcoming paralysis in the selection of judges." This mechanism is a mechanism for appointing judges favored by politicians. Under it, if a year goes by without an appointment, and two judges are lacking, the representatives of the coalition and the opposition can propose three candidates each, from which the other side will choose one. The coalition will thus be able to introduce its candidate onto the Supreme Court, at the price of a candidate favored by the opposition. In lower courts too, for which judges are currently appointed by an ordinary majority of five out of the nine committee members, there will need to be broad agreement: under the plan, the majority will have to contain at least one coalition representative, one opposition representative, and one judge.
Alongside these changes, Levin and Sa’ar agreed on dramatic change in the shape of a Basic Law: Legislation, which will take time to enact, as no draft bill has been formulated on the matter, but the proposal contains a dangerous change, in that it includes abolition of judicial review of basic laws other than basic laws that infringe the principle of equality in elections, and even those can be struck down only by a majority of three-quarters of the Supreme Court judges. Even ordinary laws, such as might infringe human rights, will be able to be struck down only by a majority of the Supreme Court judges.
This means, among other things, that the reasonability test for executive decisions could be abolished, rendering the Supreme Court (sitting as the High Court of Justice) unable to intervene in unreasonable government decision and corrupt appointments. The High Court of Justice has already struck down a law sponsored by the current government that sought to abolish the test. The government will be able to promote extreme legislation, and it will not be possible to cancel it. Levin and Sa’ar are trying to soften the blow by proposing that basic laws will be passed, amended, or repealed by different procedures from those for ordinary legislation, but that will not prevent the governing coalition from passing laws that are liable to harm democracy, and the Supreme Court’s hands will be tied.
Published by Globes, Israel business news - en.globes.co.il - on January 9, 2025.
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