'Supreme Court appointment bills reflect lack of restraint'

Expert says proposed legislation doesn't mean end of democracy, but shows MKs think they can change rules.

By
November 16, 2011 18:55
4 minute read.
Israel's Supreme Court

Israeli Supreme Court 311. (photo credit: REUTERS/FILE)

 
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With the Knesset set to vote next week on two controversial private bills to make changes to Supreme Court justice appointments, constitutional law expert Prof. Barak Medina says the proposed legislation will not destroy democracy but does reflect MKs’ growing lack of restraint over creating “personal laws” to suit their political goals.

Barak, dean of the law faculty at the Hebrew University of Jerusalem, told The Jerusalem Post on Wednesday that the so-called Grunis and Sohlberg bills will effectively mean only minor changes to judicial appointments if they are passed into law.

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However, both bills are an attempt by MKs to influence the identities of future Supreme Court justices by appointing less “active” justices who are unlikely to challenge government decisions, Medina said.

“The bills don’t mean the end of Israeli democracy but they do show a lack of restraint [of MKs],” said Medina.

“They reflect a political culture that doesn’t accept that MKs can’t change the rules of the game according to their current interests.”

The first bill, dubbed the “Grunis Bill,” is a private bill presented by MK Ya’acov Katz (National Union) to reduce the Supreme Court president’s minimum tenure, and is aimed to allow Supreme Court Justice Asher Dan Grunis to take over as president when Justice Dorit Beinisch retires in February.



That bill passed its preliminary reading in July and is expected to go through its second and third readings on Monday.

“The bill will only really affect the identity of the next Supreme Court president,” said Medina. “It will allow Grunis to be appointed as president, but it will not affect the content of the court’s decisions as the president only has a single vote.”

Medina noted that the “Grunis Bill” merely overturns a change in the Courts Law initiated three years ago by then justice minister Daniel Friedmann, which stipulated a justice could only become president if he could serve a three-year minimum term. The law effectively barred Grunis – who will be 67 years and 41 days old on the day Beinisch retires from the presidency – from taking the office. The retirement age for justices is 70.

While it will not have any drastic effect on the Supreme Court’s rulings, Medina said the “Grunis Bill changes the rules of the game according to personal interests.”

The second of the controversial bills, dubbed the “Sohlberg Bill,” will compel the Israel Bar Association to select one judicial selection committee member from each of its two main factions. After the Knesset’s Constitution, Law and Justice Committee debated the bill on Wednesday, it will go for its first reading in the plenum on Monday.

“This bill also proposes something formal about how the IBA should select members for the judicial selection committee, which is perfectly legitimate,” said Medina.

However, Medina said that, like the “Grunis Bill,” the “Sohlberg Bill” proposes changes only in order to influence the identity of the IBA’s representative on the committee, and by extension the identity of future Supreme Court judges.

The bill is expected to pave the way for Jerusalem District Court Judge Noam Sohlberg, who is considered conservative, to be elected to the Supreme Court.

In the past, former IBA president Yori Geiron, known as a close associate of Beinisch, usually selected both judicial selection committee candidates from the IBA’s dominant faction.

If the “Sohlberg and Grunis bills” are passed into law, Medina said there is little chance of the High Court of Justice overturning them, should anyone petition to do so.

The Supreme Court, sitting as the High Court of Justice, has the power to rule on petitions against decisions made by government authorities, and it is common for petitions to be filed against controversial laws, such as the “Anti-boycott Law” that passed several months ago.

“The court is very cautious about reviewing legislation that deals with the court itself,” said Medina.

Far more dangerous than the “Grunis and Sohlberg bills,” Medina said, is the judicial selection reform bill, which would require candidates for the Supreme Court judiciary to be appointed only after a public hearing before the Knesset’s Constitution, Law and Justice Committee. Currently, Supreme Court justices are elected by a non-member judicial selection committee, the majority of whose members are lawyers by profession.

“The bill is completely in conflict with the Israeli system,” said Medina, adding that the bill, if passed into law, could severely affect public confidence in Israel’s most important legal institution, Medina warned.

“In Israel, there is a prevailing idea that the judiciary is apolitical, even though of course all judges are human and have political beliefs,” he said. “But judges are not supposed to expose their political opinions, so the public can have confidence in court officials.”

The proposed bill would change all that, because judges would be forced to expose their political opinions in a public hearing, which would directly affect their chances of being appointed to the Supreme Court.

However, Medina said the bill was unlikely to go forward.

The Ministerial Committee for Legislation was due to debate the bill on Sunday, but was canceled after Attorney- General Yehuda Weinstein expressed his opposition to the proposed legislation to Prime Minister Binyamin Netanyahu and Justice Minister Yaakov Neeman. Weinstein said that the bill raises constitutional difficulties and concerns about the politicization of the judiciary.

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