Knesset Moves Closer to Mandating Politicization of Judicial Selection

Bill to force bar association to pick pro-government candidates passes first reading.

A bill seeking to change the composition of the committee tasked with selecting new Supreme Court justices passed its first reading in the Knesset on Monday. The bill is seen as a move to get an ally of the Netanyahu government onto the panel, in the hope the representative will help push for pro-administration justices.

The bill, which was approved by the Knesset Constitution, Law and Justice Committee last week, states that a two-thirds majority of the Israel Bar Association's selection forum is required for each candidate to the Judicial Appointments Committee. The bill is expected to indirectly force the bar association to compromise and choose a pro-coalition representative and a pro-opposition one.

libel law - Gil Cohen Magan - 22112011
Gil Cohen Magan

The committee is in the process of selecting new Supreme Court justices.

"The coalition's aggressive legislative activism is arrogant, dangerous, and far more superficial than the judicial activism they are attempting to compete against and eradicate," said MK Doron Avital (Kadima ). "The cure the coalition seems to be offering us is far more dangerous and worse than the disease it is pretending to heal."

The bar association is choosing its representatives on Tuesday, so the bill cannot directly affect the election because it has not been passed into law.

But it could still have an indirect impact, if the bar association takes into account what coalition chairman MK Zeev Elkin (Likud ) might do.

If both of the bar association's picks are allied with the opposition, Elkin, one of the bill's sponsors, is expected to add a clause to the final wording of the bill mandating that the bar association hold new elections - and choose a representative seen as friendly to the Netanyahu government - as soon as the law goes into effect.

If at least one of the representatives turns out to be affiliated with the coalition, observers say Elkin could stop trying to get the law passed.

The bill passed its first reading by a vote of 45-35.

The proposal is seeking to enable the far right's "hostile takeover" of the Supreme Court, MK Dov Khenin (Hadash ) told the Knesset.

Environmental Protection Minister Gilad Erdan rejected the claim.

"When people fear they haven't just lost a majority in the country, but that this will be expressed in other institutions [as well as the Knesset], they have no recourse but to blind the public with mendacious arguments," he said.

The proposal's backers originally sought to expressly mandate that the bar association choose one representative affiliated with the sitting government and the other with the opposition, but the Justice Ministry and the Knesset's legal department said such a bill was unconstitutional because it violates the Basic Law on the Judiciary. That law, considered part of Israel's informal constitution, requires the bar association to hold free and unconditional elections.

MK Nitzan Horowitz (Meretz ) argued that despite the revised language, the bill still runs afoul of the Basic Law on the Judiciary.

"I disagree with this," he said. "It's a legal error. Despite the claim being made, it does in fact contravene the Basic Law because when you dictate the majority that's required, you are essentially locking in the [bar association's selection] forum and not allowing a free vote. You're forcing a deal on it."

Others criticized the speed with which the bill has been pushed through the legislative process.

"We know that a lot of laws in the Knesset have gone through a far more significant, lengthy and in-depth legislative process; there were debates where all the layers of controversy related to the various laws were heard," said MK Yoel Hasson (Kadima ). "In this case, the most significant debate on this law so far is taking place here, but here there are no experts who can speak about it."