The opposition boycotted the deliberations on the proposed judicial reforms at the Sunday morning session of the Knesset Constitution Law and Justice Committee.
Sunday's session was set to debate amendments to The Basic Law: The Judiciary pertaining to the selection committee, the Reasonableness Clause and the Override Clause. Several speakers were invited to speak for and against these provisions, but without the presence of opposition Knesset members.
"We, members of the law committee opposition, will not participate in the undemocratic debates that were scheduled on Basic Law: The Judiciary," the opposition said in a joint statement. "This is because the debates are taking place without the professional background material and without a legal opinion in opposition, in complete contradiction to the regulations in the Knesset in general and the committee in particular, and in disregard of the Knesset's legal adviser."
"I understand their hearts, they needed a few days off and we are patiently waiting for them, maybe because they shouted in the streets that they are not able to speak, they don't have the strength to shout where the decisions are made."Simcha Rothman
Rothman: They don't shout where the decisions are made
Committee chairman Simcha Rothman expressed regret that the opposition did not attend, and promised that the legal advisor's written opinion would be presented next Sunday.
"I understand their hearts, they needed a few days off and we are patiently waiting for them, maybe because they shouted in the streets that they are not able to speak, they don't have the strength to shout where the decisions are made," said Rothman.
Former MK Amit Halevy, who attended the session, said that it was heard from the opposition that they want a deep debate, and think it is correct, but first it was necessary to address the situation that existed prior. He described the 1990s constitutional revolution, in which the High Court of Justice determined they had the power of judicial review through the constitutional supremacy of the Basic Laws, as a "pirate journey."
"We'll return to the regime that we had," said Halevy.
Hebrew University of Jerusalem’s (HUJI) Efraim Podoksik also said during the session that former High Court president "Aharon Barak's constitutional revolution caused great damage to the judicial system."
Other legal experts invited to speak at the committee questioned the legal regime the reforms would bring Israel back to.
"Most of the discussions of the Constitution Committee in its 75 years of existence dealt with the construction and strengthening of a constitution, law and justice while giving special emphasis to the independence of the judiciary,” said HUJI chancellor and former law committee chairman Prof. Menahem Ben-Sasson. “Its recent meeting dealt with the castration of the endeavors of the legal professionals in the civil service."
The Israel Democracy Institute’s Dr. Amir Fuchs said that the conditions of the judicial reform, in particular touching on the Override Clause, would drastically erode the already weak Israeli system of checks and balances.
“As is, Israel has weak separation of powers," relative to other countries, Fuchs explained. Israel lacks a hard constitution like the United States, it lacks separation between the executive and legislative branches, has terms for judges, and limited legislation on civil and human rights.
"A coalition has a lot of power, and the only thing that can stand in opposition is the High Court," said Fuchs.
He argued that the coalition works in favor of the majority, but a body is needed to look after the rights of the minority. He said allowing a 61 MK majority the ability to override High Court rulings would be extremely rare in the international community and would eliminate judicial review.
Israel Prize laureate Prof. Yisrael Aumann also advised against the Override Clause, as he was in favor of checks and balances, but for this reason also called for complete change of the judicial selection committee. He questioned the separations of power in which the judiciary could institute law and judge.
“There is almost no OECD state in which the judicial system appoints its judges,” said Aumann.
Aumann called for the removal of judges and Israeli Bar representatives from the selection committee. He said lawyers are no better than engineers or doctors, and there was no reason their expertise should be consulted on the matter of selection.
Peres Academic College’s Prof. Ron Shapira advised against the cancellation of the Reasonableness Clause.
“Reasonableness [Clause] is well accepted in the world,” said Shapira, explaining that the principle was established in the Anglo-American world, and in the rest of Europe countries possessed a similar legal principle of proportionality. Judges would still reach the same conclusions through weighing the extent that a subject acted in violation of the law, he argued.
Likud MK Tali Gottlieb, who interrupted several of the speakers during the session, said she had no problem with judging based on law, but not administration decisions. She argued that there needed to be a clearly defined law guiding the principle.
Rothman and Shapira discussed instead of canceling the Reasonableness Clause, creating a positive law outlining what the law can do, rather than a negative law establishing what it can not.
A few times throughout the session, student activists burst into the chamber to protest the “blatant cancellation of the separation of powers, and we will not accept that you are stealing our future."
Protests against the judicial reforms continued elsewhere in the country, with a week-long youth march from Tel Aviv to Jerusalem setting out Sunday morning. The Movement for Quality Government confirmed Sunday morning that the weekly Saturday night protests would continue this coming week.
The session also occurred to the backdrop of the firing of Shas chairman Arye Deri from his ministerial posts by Prime Minister Benjamin Netanyahu at Sunday’s cabinet meeting. Deri’s appointment was disqualified by the High Court in a Wednesday ruling.
The Deri case is widely seen across the political spectrum as connected to the judicial reforms, with pro-reform politicians responding Wednesday night to the decision by saying that Deri’s departure would trigger a renewed push for reform. The announcement of the reforms by Justice Minister Yariv Levin occurred on the eve before the case’s hearing on January 5.
Rothman said that Deri’s firing would not impact the deliberations and had been planned long prior.
“We came here to liberate Israeli democracy and return sovereignty to the people.” said Rothman.