Law for selection of judges in Israel Part 2(a): Amendments to Basic Law: Judiciary
Amendments to Section 4 of Basic Law: Judiciary is perhaps the most contentious issue regarding reform of the way in which judges are appointed. This particular paragraph delineates members of the Judge Selection Committee. In this article, I will compare the current statutes with the amendments that passed the first reading in the Knesset plenum and the form that has been reworked in the Constitution, Law, and Justice Committee in preparation for the second and third readings in the Knesset plenum.
But first: You may like a refresher on the full legislative process when trying to pass a bill into law. Also, you can refer to Part I for all the laws relevant to judge selection as they are written in the law statutes today. Proposed amendments to the Courts Law and other related statutes are in Part 2(b) of this series.
The amendments presented here and in Part 2(b) 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 327 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).
Prime Minister Netanyahu froze the legislative process for judge selection amendments before these bills could reach the plenum stating that he wanted to cool off the antagonistic political atmosphere and go back to seeking compromise from the broad spectrum of Knesset parties. As a result of this, Justice Minister Levin is holding off on convening the Judge Selection Committee, hoping to get a new committee appointed in accordance with the amendments he hopes will be passed.
It might have been wise, in my opinion, to have added a paragraph stating that these amendments will become effective only in the next Knesset. That would give the next Knesset, if its composition is very different from the current one, the opportunity to repeal the amendments they oppose before a new Judge Selection Committee would be convened to appoint new judges. Of course, that would mean that the current government would be unable to appoint judges using the amended statute, but members of successive governments who wanted to change the committee in some way but were unsuccessful in this appointed judges using a Committee panel they did not like. That is just the way it works.
In any case, let us look at the amendments for Section 4 of Basic Law: Judiciary to be voted on if this bill ever gets to the Plenum.
Currently, the law reads:
(a) A judge will be appointed by the President of the State according to the selection determined by the Judicial Selection Committee.
(b) The Committee with comprise nine members: The Supreme Court President, two other SC judges selected by its panel of judges, the Justice Minister and one other minister determined by the government, two MKs selected by the Knesset, and two Israel Law Society representatives elected by the national council of the Society; the Justice Minister will chair the Committee.
(c) The Committee is authorized to operate with even a reduced number of members, but not fewer than seven.
Amendments for second/third readings in the plenum
Instead of Subparagraph (b) will come:
(b) The Committee will be comprised of 11 members, who are –
(a) The Supreme Court (SC) president and two other judges from the SC chosen by the panel of SC judges; however, on the issue of selecting judges for courts other than the SC – the president of the Supreme Court and two presidents of the other courts as determined by the Courts Law;
(b) The justice minister and two other ministers chosen by the government;
(c) Five MKs, among which three are from the coalition and two from the opposition, as determined in the Knesset Law regulations.”
The amendment that passed the first reading on 20 Feb 2023:
Bills that pass the first reading in the Knesset are not the same bills that are tabled for the second and third readings. Here are the proposals for modification of the Judicial Selection Committee that passed the first reading and then went on to the Constitution, Law, and Justice Committee for debate and refinement:
Instead of subparagraph (b), it will be written:
(b) The Committee will be comprised of nine members, who are –
(a) The SC presidents, and two retired judges appointed by the justice minister with the agreement of the SC president;
(b) The justice minister and two other ministers determined by the government;
(c) Three MKs, including the chair of the Knesset Constitution, Law, and Justice Committee, and two other MKs, one from the coalition and one from the opposition, as will be determined by law.
What happened between the first reading and the bill ready for second/third readings?
In the table below, we can see the procedure this bill went through between being tabled in Feb and ready for second and third readings in March.
In the left-hand column are links to the two versions of the amendments – the one that passed the first reading in the plenum and the one up for voting in the second and third readings.
The right-hand column provides links to all sessions in which the amendment was discussed – discussions in the Constitution, Law, and Justice Committee and plenum sessions. All of this is available to the Hebrew-reading public (here) either as videos of the sessions or transcriptions of the discussion into text.
In Part 2(b), I discuss the 329 reservations that will be raised for amendments to the Courts Law should the bill continue along the legislative process. Given that the 327 reservations raised for the amendments to Basic Law: Judiciary are no more substantive, I will not repeat that exercise here.
Special thanks to Knesset insider Jeremy Saltan, my consultant on all matters regarding Israel’s legislature.