Knesset Committee Holds First Session on Judicial Reform, Opposition Boycotts

By Zalman Ahnsaf

YERUSHALAYIM – The government may be planning to scale down the extent of its judicial reform agenda in the face of the domestic uproar and pressure from the U.S.

According to an unsourced report on Channel 12, Prime Minister Binyamin Netanyahu told visiting U.S. National Security Adviser Jake Sullivan that the controversial judicial overhaul will not be as far-reaching as that envisioned by Justice Minister Yariv Levin in a press conference earlier this month.

Neither Netanyahu nor Sullivan made any public mention of the issue, though it was widely assumed that it was in fact discussed, as American officials have privately expressed their concerns about the new right-wing government before his visit.

In addition, U.S. Ambassador to Israel Tom Nides held a series of meetings with Israeli officials in recent days in which he conveyed Washington’s negative views on the reforms, according to Channel 13. However, he told The Times of Israel that the U.S. is not going to be “telling [Israel] how to construct their judicial system.”

Meanwhile on Sunday, as Levin prepares his bill, Religious Zionism MK Simcha Rothman introduced his own judicial reform plan at the Knesset Constitution, Law and Justice Committee, which he chairs.

Rothman’s approach differs in some respects from Levin’s, more aggressive on some points, less aggressive on others, and won’t go down any more easily with the opposition parties and the judiciary.

He suggests a different a Judicial Selection Committee makeup, would not require appointment of the High Court president from outside the court as Levin would, but would require unanimous agreement among all 15 High Court justices to strike down a law, while it would not do away entirely with the “reasonableness” judicial test just used to cancel Rabbi Deri’s appointments.

The opposition boycotted Sunday morning’s session of the Constitution Law and Justice Committee.

“We, members of the law committee opposition, will not participate in the undemocratic debates that were scheduled on Basic Law: The Judiciary,” they 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,” according to The Jerusalem Post.

“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 sarcastically.

In the meantime, the committee members in attendance heard from legal experts.

Hebrew University Efraim Podoksik said that former High Court president “Aharon Barak’s constitutional revolution [in the 1990s] caused great damage to the judicial system.”

Other legal experts questioned what the reforms would bring.

“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 HU 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 contended the proposed judicial reform, in particular 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.

Israel Prize laureate Prof. Yisrael Aumann also advised against the Override Clause, allowing the Knesset by a simple majority of 61 to override a court ruling nullifying a law or governmental measure that it deems in violation of Israel’s Basic Law, a quasi-constitutional document which has never been submitted to public referendum.

However, he questioned the existing system of selecting judges. “There is almost no OECD state in which the judicial system appoints its judges,” said Aumann. As such he recommended the removal of judges and Israeli Bar representatives from the selection committee, going farther than even Levin has proposed. He argued that lawyers are no more expert than engineers or doctors in the matter of selecting judges and they deserve no seat on the committee.

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.

Student activist interrupted the proceedings repeatedly, charging in to shout anti-government slogans.

At the same time, students reportedly set out on a week-long protest march from Tel Aviv to Yerushalayim on Sunday.

Several major hi-tech companies said they will participate in a several-hour general strike on Tuesday to protest of the current government and its judicial agenda, and warning that if carried out it would harm the foreign investment outlook for the sector.