Law for selection of judges in Israel Part 2(b): Amendments to the <em>Courts Law</em>

Here I present the second subsection of amendments related to judicial selection laws as they stand now, after having gone through the Constitution, Law, and Justice Committee of the Knesset. Amendments to Basic Law: Judiciary are outlined in Part 2(a) of this series and this article presents the amendments to the Courts Law and other related statutes. Perhaps the most illuminating section of this article is the last section in which I list some of the reservations MKs will raise when the bill comes up for debate in the Knesset plenum. Here you can clearly see your tax shekels at work, having hired professional politicians who bring the most intelligent arguments they can muster to the debate of a bill they do not want to see pass. I will not repeat the sections of the original laws which the amendments seek to modify. You can refer to Part I for that. As stated in Part 2(a), the amendments presented here passed the first reading in the Knesset plenum on 20 February 2023. At that point, they moved to the Constitution, Law, and Justice Committee for debate and attention to arguments against them. On 27 March 2023, the revised set of amendments was submitted for the second and third readings in the plenum (together with a list of 329 reservations that need to be voted on in the plenum and requests by Yair Lapid, Karen Elharrar, Boaz Toporovsky, and Ofer Kassif to be given time to address the plenum on this matter). You may like a refresher on the full process undergone when trying to pass a bill into law.

Amendments to the Courts Law

[To make it easier to follow this list here, I slightly changed the format used on the bill submitted to the Knesset.] ONE. In The Courts Law of תשמ"ד – 1984 (hereinafter – the original law), in Section 6(1), Instead of Paragraph (1):

(1) (a) By secret ballot, the Knesset will select the MKs that will serve on the committee in this way: coalition MKs that will serve on the Committee will be selected by coalition MKs and opposition MKs that will serve on the committee will be selected by the opposition, according to instructions that will be determined in the Knesset regulations.

(b) Should the MK undergo a change in belonging to coalition or opposition, a replacement committee member will be selected within 30 days of the change in status, such that the composition of the committee as stated in Paragraph 4(b)(1)(c) of Basic Law: The Judiciary will be maintained; The provisions of this subparagraph will not apply during the period as stated in section 42c(a1) of the Basic Law: The Knesset.

(c) The MKs will serve as members of the Committee as long as they are MKs, and if the Knesset term ends – until the new Knesset elects other members in their place, and all subject to the provisions of the Knesset Law התשנ"ד-1994.

(d) In this Paragraph – “coalition factions” – the factions in the Knesset that are party to the agreement obligating support of the government “opposition factions” – the factions in the Knesset that are not party to the agreement obligating support of the government.”;

Paragraph (2) – delete Instead of Paragraph (3):

“(3) (a) In the composition of the Committee according to Paragraph 4(b)(1)(a) of Basic Law: The Judiciary, in the matter of selection of judges to the courts except for the Supreme Court – instead of two judges from the Supreme Court, the President of the District Court chosen by the presidents of the District Courts and the President of the Magistrates Court chosen by the presidents of the Magistrates Courts will serve, and substitutes will be chosen for them; the Committee will establish rules regarding the situations in which the substitutes will participate in the committee's deliberations;

(b) Two Supreme Court justices and the presidents of the District and Magistrates Courts who will be chosen as stated in subparagraph (a) will serve in the committee for a period of three years ;”;

Under Paragraph (3)(a):

“(3)(a) (a) at least one of the representatives of the Supreme Court judges on the committee, at least one of the government representatives on the committee, at least one of the Knesset representatives from the coalition factions and at least one of the Knesset representatives from the opposition factions in the committee will be women. [This is an amendment that was passed into law in 2014; it is just moving down from (3)(a) to (3)(a)(a).]

(b) If the Justice Minister or the Supreme Court President is a woman, the provisions of subparagraph (a) will pertain to the other ministers or judges, as the case may be.”’

TWO. In section 7 of the original law –

Subsection (c) – void

Before Subsection (d) will come:

“(c) The committee will summon the Supreme Court candidates to appear before it; the  appearance will be public, in the manner and under the conditions determined by the committee.”

THREE. In Section 8(a) of the original law, after “4(a)” [A judge will be appointed by the President of the State according to the choice determined by the Judicial Selection Committee] will come “and 2 (1) from The Courts Law [who has served for a period of five years as a district court judge]”. FOUR. In Section 13 [dealing with judge retirement] (a)(2) of the original law, after “the committee determined,” will come “on the opinion of nine of its members”. FIVE. In Section 84 (a) of the original law, will end with: “with the agreement of seven of its members”. SIX. Correction in The Labour Court Law: In the Labour Court Law, תתשכ"ט – 1969, section 4(a), instead of “members of the government” will be written “from among members of the government” and at the end will be written “on the matter of Section 6 of the Courts Law, instead of the magistrates court president, the president of the national labour courts will serve”. SEVEN. Correction in the Knesset Law: In the Knesset Law, תתשנ"ד – 1994, in Section 6(c), replace “choose” with “will be chosen” in all places it appears. EIGHT. Section 6 of the original [Knesset] law in its amended version will become operational on the day the 26^th Knesset will be sworn in.

Reservations submitted together with this amended bill

There are 329 reservations. Here are some examples:

• Ayman Odeh (Hadash-Taal) suggests that the purpose of this bill is to help implement the satanic plans of the Finance Minister [Smotrich] in reservation (2).
• Merav Michaeli (Labour) suggests that the purpose of this bill is to destroy Israel's democracy (reservation 5).
• Pnina Tamino (National Unity) suggests that, after the words, "as long as they are MKs" [paragraph 1(c)], "as long as they wear a crown and carry a scepter" should be added. This is reservation (25).
• Ze'ev Elkin (National Unity) suggests that after the words, "as long as they are MKs" [paragraph 1(c)], will be written, "guarding agricultural property will not be considered as a legitimate post-army job for the purposes of getting an increased grant upon discharge [avoda meudefet]" This is reservation (45). [Funnily enough, MK Michael Mordechai Biton, also of the National Unity Party, submitted a bill proposing that guarding agricultural property be considered avoda meudefet.]

Less frivolous is the suggestion by several MKs that, after the words "as long as they are MKs" [paragraph 1(c)], would be added, "and have not been indicted for bribery/breach of trust." Orit Farkash Hacohen (National Unity) wanted to specify that coalition candidates for the Committee must have served in the reserves. She wanted this so badly, that she listed this reservation as six separate reservations, numbers 7f-76, inclusive. Interestingly, she does not make the same demand for opposition candidates. Now, who would that exclude if she did get this passed? Also, does she not realize that today's coalition could be tomorrow's opposition? Sharen Miriam Haskel (National Unity) starts off more rigidly and softens as she proceeds down her list of reservations. No. 78 prohibits coalition candidates who have not completed their IDF service and who did not get a deferral for physical or mental health reasons. No. 79 -- same, but leaves out mental health. No. 80 -- same but leaves out all mention of deferrals. No. 81. talks about full or partial IDF service and No. 82 adds the possibility of national service. She did not state that this was specific to coalition candidates so for her, opposition candidates will be measured by the same stick. Orna Barbivay (Yesh Atid) confused me. She started off with what seemed like a serious, legitimate and well-taken reservation (93) -- that the word "secret" should be changed to "open" in paragraph 1(a). But then, in 94, she says the wording in that very same paragraph should be changed from "secret" to "secret" and then, in the next reservation, she wanted it changed from "secret" to "for all to see" (95). MK Gantz (National Unity) made the same first reservation (14) and he also turned the same problematic issue of secret ballots into two silly reservations (15, 16). If ever Yifat Shasha-Biton (National Unity) is made minister again in the future, one should remind her of her reservation to this law (32), in which she suggests that the Knesset should trim half of the salary of a minister who does not attend Judge Selection Committee meetings. It could be extended to other circumstances and, if a minister, why not MKs?

My thoughts after reading these reservations

Reading these reservations, submitted after everyone had had the chance of contributing to the bill in the Law Committee before being ready for voting in the Plenum, then I dare say that Haskel's reservation (83) that a candidate to the Judge Selection Committee must have an academic degree makes me wonder, if these reservations are  the best she can come up with, and, pardon my cynicism, what value there is in her own BA in International Affairs and Political Science. It's obvious she does not want this law to be passed. I would respect her if she had expressed reservations that have substance, something that would make me think about whether or not there is good reason to vote against this law. After all, if she is going to vote against this bill, and that is what I assume she is going to do, then at least give us, those paying her salary, some intelligent reasons for her doing so. And that goes for all the nay-sayers who submitted reservations that mock the whole legislative process. Special thanks to Knesset insider Jeremy Saltan, my consultant on all matters regarding Israel’s legislature. Feature Image Credit: israeltourism, CC BY 2.0, via Wikimedia Commons