The Knesset on Wednesday elected Otzma Yehudit MK Yitzhak Kreuzer to be its second representative on the Judicial Selection Committee, alongside Yesh Atid MK Karine Elharrar. The vote ended a saga that began on June 14 to fill the Knesset’s two spots on the committee, whose makeup is one of the most controversial issues in the government’s proposed judicial reforms.
There will likely be increased pressure on Justice Minister Yariv Levin to convene the committee soon, and a number of NGOs may even appeal to the High Court of Justice to force his hand.
Levin has not committed to convening the committee any time soon, despite dozens of vacancies throughout the court system. The justice minister decides when to convene the committee, and he theoretically could refrain from doing so as long as its makeup is not altered.
MKs on Wednesday cast votes for the three religious judicial courts.
United Torah Judaism MK Eliyahu Baruchi joined National Unity MK Pnina Tamano-Shata, who was elected last month, on the Dayanim Selection Committee for Jews. Shas MK Yinon Azoulay, Hadash-Ta’al MK Ahmad Tibi, and Ra’am (United Arab List) MK Mansour Abbas were elected to the Kadim Selection Committee for Muslims. Two Druze civilians, Zahar al-Din Hattib and Mahadi Nasser al-Din, were elected to the Kadim-Madhab Selection Committee for Druze.
The anonymous Knesset vote to select Kreuzer was strikingly unremarkable compared with the drama that unfolded in the Knesset’s initial vote for its two representatives on June 14, during which Elharrar was elected to the first spot with the support of at least four votes from the coalition.
The Judicial Selection Committee is responsible for the election of judges at all levels of the court system. According to the current law, which has existed since 1953, the committee includes nine members: three Supreme Court justices, one of whom is the chief justice; two ministers, one of whom is the justice minister; two MKs; and two representatives of the Israel Bar Association.
A 2008 amendment requires that there be a majority of seven out of nine votes for appointments to the Supreme Court. A 2014 amendment dictated that one of each of the judges, ministers, MKs, and bar representatives must be a woman.
Levin and other proponents of the judicial reforms said the Bar Association members have an interest in siding with the judges before whom they appear in court. This gives the judges a de facto majority in the committee and the ability to choose whomever they see fit to the lower courts.
In addition, the requirement for the special majority in electing Supreme Court justices gives the three judges on the court veto power. The unelected judges, therefore, had too much power at the expense of the elected representatives of the people, according to Levin.
Freezing the talks
The coalition in January began to advance a proposal to amend the committee’s makeup so that the governing coalition would have an automatic majority. The opposition and protesters said giving the coalition complete power over judicial appointments would turn these appointments into part of the political give-and-take, thereby creating a system where judges are chosen for their political affiliations and not their skill or expertise.
The bill stalled at the last minute late in March due to widespread strikes and warnings by Defense Minister Yoav Gallant of its potential harm to national security.
Although not required by law, out of the two Knesset spots, the coalition traditionally occupies one spot and enables the opposition to occupy the other.
As the vote for the Judicial Selection Committee approached last month, opposition leader Yair Lapid and National Unity chairman Benny Gantz said if the coalition decided to break with this tradition and elect two members of the coalition to the committee, it would be a sign that the government intends to follow through with the politicization of the judicial appointment process, and they would leave the talks at the President’s Residence, which were ongoing at the time.
Minutes before the June 14 vote was scheduled to start, Prime Minister Benjamin Netanyahu attempted to use a special mechanism to delay the vote another month. The move failed, and Elharrar was elected with the support of at least four votes from the coalition, who decided under the safety of anonymity to defy the prime minister’s orders. A second representative was not elected, however, and a repeat vote was scheduled for July 12.
Lapid and Gantz responded by freezing the talks, which led Netanyahu to claim that their intention all along had been to waste time. Netanyahu then announced that the coalition would once again attempt to pass parts of the judicial reform without the opposition’s consent, beginning with the reasonableness standard bill, which passed its first reading in the Knesset plenum late Monday night.
Immediately after the results were announced on Wednesday, Lapid sent letters to Netanyahu and Levin, demanding that the Judicial Selection Committee begin to operate and threatening to appeal to the High Court if it does not convene within 14 days.
The authority given to the justice minister as head of the committee was not optional, and he was required by law to begin its operation, Lapid wrote. Refusing to do so would be a political decision that is not within the range of considerations that the minister is legally allowed to use, he added.
After the results of the vote were announced, Gantz called on the coalition to return to talks at the President’s Residence.
“Moderate coalition members” should make their voices heard and “put the country before the party,” he said in a statement.
Failing to convene the committee amounts to “taking tens of thousands of Israelis hostage for the whims of Netanyahu and Levin,” Gantz said.
“I call on Netanyahu and the members of the coalition: Stop everything, and we will return to talk about everything,” he said.
National Security Minister Itamar Ben-Gvir (Otzma Yehudit) said he hoped the committee would not convene in its current format, but in any case, he “had no doubt” that “MK Kreuzer will act in the committee to elect judges with a Zionist, Jewish, and ethical agenda, as lovers of the people of Israel.”
Preparations for the reasonableness standard bill’s final Knesset readings continued on Wednesday morning at the Constitution, Law and Justice Committee after cross-country anti-judicial reform protests erupted in opposition to the legislation on Tuesday.
The Law Committee is set to have a marathon series of sessions next week, with preparation hearings scheduled from Sunday until Wednesday.
The bill, which would prevent the use of reasonableness against the administrative decisions of elected officials in court judgments, would have widespread systemic ramifications, Deputy Attorney-General Gil Limon told the committee.
The reasonableness standard is a common law principle that allows for the court to strike down government administrative decisions that are deemed extremely beyond the scope of what a responsible and reasonable authority would undertake.
Without that standard, government officials would have no legal obligation to act in a reasonable manner, Limon said.
“The cancellation of reasonable behavior, certainly in an extreme manner, will lead to the cancellation of a central democratic guarantee in our government system and a cornerstone in the relationship between the government and the individual,” he said.
Civil servants and professionals play a key role in the government, and they could be fired for only political considerations, Limon said. Those not outright removed from their position would be hesitant to disagree with elected officials, and those considering taking up the professional roles would be hesitant to do so, he said.
The independence of civil servants and government professionals was essential to prevent Israeli officials and matters from being brought before international legal forums, Limon said. This included the Attorney-General’s Office, which needed to continue its independent role to ensure proper administration and the protection of rights, he said. He decried the attacks leveled against his superior at the Law Committee session on Tuesday.
Law Committee chairman Simcha Rothman (Religious Zionist Party) disagreed with the framing of government legal advisers as apolitical professionals, saying they were gatekeepers who operate against elected officials.
While Limon was concerned about appointments within the Justice Ministry, Rothman said his camp had long been concerned about appointments of elected officials, which had been interfered with by the Attorney-General’s Office and the High Court using the reasonableness standard.
Law Committee legal advisor Gur Bligh said the current formulation of the bill did not differentiate between different decisions, such as appointments and other matters. The framework was far more sweeping than other reform outline proposals, and it did not differentiate between individual decisions by officials and their policy decisions, he said.