Will the Defendant Appoint the Judges?

Haaretz Editorial
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Prime Minister Benjamin Netanyahu at a press conference, Jerusalem, March 12, 2020
Prime Minister Benjamin Netanyahu at a press conference, Jerusalem, March 12, 2020Credit: Ohad Zwigenberg
Haaretz Editorial

After Likud agreed to give the justice portfolio to Benny Gantz’s Kahol Lavan in the negotiations to form a governing coalition headed by Prime Minister Benjamin Netanyahu, a creeping erosion of Likud’s willingness to cede control of the judicial system set in. First the party announced that the portfolio would indeed go to Kahol Lavan, but Likud would have a role in choosing the justice minister. Now it’s seeking “partnership” in appointmenting the Justice Ministry controls, including both senior ministry officials and judges appointed by the Judicial Appointments Committee.

Haaretz Weekly Ep. 72

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If Likud continues to be controlled by Netanyahu in the coming years, this demand would effectively mean giving control of senior appointments in the justice system to someone who is on trial for the serious corruption offenses of bribery, fraud and breach of trust. These appointments allow direct control over the conduct of the law enforcement system and real influence over the way Netanyahu’s trial is handled by the prosecution and the court.

The prosecution is currently headed by attorney Dan Eldad, who serves as acting state prosecutor. Regardless of his record, two facts about him are incontrovertible: Attorney General Avichai Mendelbit opposed his appointment on the grounds that he was unsuitable and Justice Minister Amir Ohana, Netanyahu’s emissary, pushed hard to get him appointed despite this opposition.

One of first jobs facing a Netanyahu-Gantz government will be to appoint a permanent state prosecutor. Netanyahu must not be allowed to control or have even the slightest influence over who gets this post, given the important role the state prosecutor will play both in managing Netanyahu’s trial and in potential future investigations.

Nor does the problem end there. In less than two years, it will be necessary to appoint a new attorney general. Despite the political system’s trend of appointing weak attorneys general the last few times around – people who, both professionally and personally, favored acceding to politicians’ whims – the attorney general plays an extremely important role in upholding the rule of law in Israel. Any member of the cabinet who is either a suspect or a defendant should be prevented from participating in the appointment process, just as they should be prevented from choosing the new police commissioner.

This separation of suspects and defendants from appointments in the justice system must be even more scrupulously maintained with regard to the Judicial Appointments Committee. Over the next four years, five justices will retire from the Supreme Court, including Supreme Court President Esther Hayut and Deputy President Hanan Melcer. Netanyahu must not be allowed any influence over the appointment or promotion of justices, lest the bench conducting his trial find itself in a conflict of interests.

The above article is Haaretz’s lead editorial, as published in the Hebrew and English newspapers in Israel.

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