Israel's Attorney General: Judicial Appointments Committee Can't Convene Before Election

Netael Bandel
Netael Bandel
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Supreme Court President Esther Hayut on the bench.
Supreme Court President Esther Hayut on the bench, Oct. 2020.Credit: Ohad Zwigenberg
Netael Bandel
Netael Bandel

Attorney General Avichai Mendelblit advised Benny Gantz in a legal opinion issued this week that the acting justice minister could not convene the judicial appointments committee as planned on January 31, because the current government is a caretaker government without full authority.

The government has been a caretaker government since the Knesset was dissolved on December 22, when new elections were scheduled for March 23.

Prior to Mendelblit’s legal opinion, Supreme Court President Esther Hayut had suggested to Gantz that the committee could convene, due to exceptional circumstances, to appoint judges to the country’s economic affairs courts. The decision to convene the Judicial Appointments Committee is within the authority of the justice minister, who chairs the panel.

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Hayut cited prior rulings by the High Court of Justice that judges could be appointed during the tenure of a caretaker government if there is “an essential need” for the appointments to be made. According to Hayut, the appointments to the economic affairs courts are essential because the courts can only properly function with judges with the specific expertise that these courts require. The next meeting of the committee was also due to vote on the appointment of Justice Neal Hendel as deputy president of the Supreme Court.

Last week, Haaretz reported that, without waiting for Gantz’s consent, Hayut directed the courts administration to continue to prepare for the January 31 committee meeting, including preparations for subcommittee meetings where candidates for judicial appointments would be interviewed.

The members of the Judicial Appointments Committee include cabinet members, Knesset members, Supreme Court justices and representatives of the Israel Bar Association. Knesset members on the committee have alleged that Hayut effectively controls the appointment of judges and that they have no way of promoting their own candidates.

As a result, last month Transportation Minister Miri Regev and Knesset members Osnat Mark (Likud) and Zvi Hauser (Derech Eretz), who are on the committee, tried to bring its work to a halt by absenting themselves from the session. The justice minister at the time, Avi Nissenkorn, anticipated this and obtained a legal opinion from his ministry’s legal adviser, Lea Rakover, that the meeting could proceed in their absence, and 61 new judges were appointed.

On Monday, Knesset member Mark tweeted: “I have contacted the justice minister and the Supreme Court president demanding that the appointments committee’s work be suspended. The underhanded atmosphere in which the committee was run under Nissenkorn brought the level of public trust in the judicial appointment process to an unprecedented low. There is no basis for convening the committee during an election recess with a caretaker government.”

A spokeswoman for the courts said that as far as the judicial system was aware, the matter is being examined by Benny Gantz as justice minister.

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