On March 27, 2023, before Prime Minister Binyamin Netanyahu announced a temporary delay in promoting government-proposed legal reforms, the Constitution, Law and Justice Committee of the Knesset (Israel’s parliament) forwarded the Basic Law: The Judiciary (Amendment No. 3) bill for second and third readings. The bill constitutes “a key part of the judicial overhaul that would give the coalition control over the naming of Supreme Court justices.” The forwarding of the bill by the committee to the Knesset plenum enables the government to complete the adoption of the bill within one day of its decision to finalize it.
According to the bill’s drafters, the changes proposed were “designed to strengthen the influence of elected officials [on the Committee for the Selection of Judges] … as opposed to its other members.” Viewing the proposed reforms as designed to politicize the court, opponents, including Israel’s attorney general, argue that because Israel has no constitution and bill of rights governing the relationship among the branches of the government, the main means of the balancing the powers of the government is the independence of the judiciary, and of the Supreme Court in particular.
Background to the Bill
In accordance with Basic Law: The Judiciary, judges in Israel are appointed by the president of the state on the recommendation of the Committee for the Selection of Judges. This committee is composed of nine members:
A version of bill that passed its first reading on February 13, 2023, was “softened” for the second and third reading. The bill forwarded for the second and third reading would grant the government control over the selection of judges by increasing the total number of members on the committee from nine to 11 while securing the dominance of the government block by increasing the number of government representative members from the previously proposed five members to six — the minister of justice, two other government ministers, and three Knesset members from the government block. (The number of Knesset members representing the opposition would be increased from the previously proposed one member to two.) In addition, the latest bill would remove the representatives of the Bar Association from the committee.
The latest text of the bill introduces additional proposals to provide the government with the authority to appoint the president of the Supreme Court and the president’s deputy. Currently, justices must retire by age 70, and the appointment of the president of the Supreme Court is based on seniority. According to Israeli legal scholars, “[t]he seniority system protects the independence of the judges and prevents competition between them on who will judge in a way that will greater impress the politicians, the lawyers or the judge-members of the Judicial Selection Committee.”
Proponents of granting the government control over the selection of judges argue that the current system is unique among the democracies of the world in allowing judges to select other judges, and that the lack of diversity in the demographic, ethnic, and ideological makeup of the court adversely affects the public’s faith in the institution. These claims have been rejected by others as incorrect or inapplicable in the Israeli context. According to Israel’s attorney general, “the importance of the professional parameter in the selection process is intensified by the structure of the legal system in Israel and its functions, since the judges of all instances, including the Supreme Court, deal with professional legal issues from the fields of civil, administrative and criminal law.”
Status of the Legislation
As noted, the bill was forwarded for a second and third reading. In the second reading the chairman of the committee presents the proposed bill to the Knesset plenum, and the Knesset members and ministers who have submitted reservations may explain them. The chairman then puts the proposal to a vote, first voting on the reservations. The text of the bill that was sent by the committee included 327 reservations and requests for comments. In the third reading,
the Knesset votes, without discussion, on the final version of the entire law, as adopted on the second reading. After being passed on the third reading, the laws are published on the Knesset’s website in an unofficial version and then published both in the “Reshumot” [Official Gazette] and on the Knesset website in their official version. A law comes into force when it is published in the “Reshumot.”
Ruth Levush, Law Library of Congress
April 11, 2023
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