Ahead of a first reading vote for an amendment for Basic Law: The Judiciary on Monday, members of the Knesset Constitution, Law and Justice Committee debated the security impact of the proposed judicial reforms on Sunday.
The first-reading vote on Monday morning would be on legislation that would alter the composition of the judge selection committee. The draft, which has evolved through fierce debates in the law committee since initially proposed by Justice Minister Yariv Levin in early January, would see the removal of Israel Bar Association representatives from the committee in favor of politicians.
The proposed judge selection committee would consist of nine members – the justice minister and two other ministers, the High Court of Justice president and two retired judges, the law committee chairman and two Knesset members. At least one of the committee members must be female, and one of the Knesset members sitting on the panel must be a member of the opposition.
Despite this concession of codification of the tradition to appoint one opposition member, critics argued last week that it did little to abate concerns about coalition domination of the committee. The coalition would have an automatic majority of five on the panel, and a legal quorum for holding meetings would also be five. Further, former justice minister Gideon Sa’ar noted last week that the two judges appointed to the committee would be heavily influenced by the coalition since they would be selected by agreement between the justice minister and the High Court president.
The other amendment, which would limit the ability of the High Court to engage in judicial review of matters related to Basic Laws, may also be voted on. The amendment would prevent the High Court from striking down or intervening in amendments that ostensibly would run in contradiction with the founding principles of the Jewish and democratic state. Issues of procedure or abuses of the Knesset’s constitutive authority may also not be able to be brought before the court.
The government opposition demanded that the discussion of security implications of the reform be exhausted before the vote. The possible security impact of the judicial reform was the focus of much of Sunday’s committee session.
Many debate on security impact of the reform
Deputy Attorney-General (International Law) Gilad Noam warned that the reform could allow international legal bodies to accept petitions against Israeli soldiers.
“The prestige of the High Court of Justice and of the Israeli legal system has greatly helped us in dealing with initiatives to bring proceedings against Israel and officials at the International Criminal Court in The Hague, at the International Court of Justice, in criminal proceedings in foreign countries and in other moves in a series of international forums,” said Noam. He also stated that the international law implications had been touched upon by Attorney-General Gali Baharav-Miara in her opinion on the reforms.
Noam explained that the international legal bodies were limited in jurisdiction due to complementarity. Complementarity is the principle that if a state has a competent and independent judiciary that can review cases, it shall have priority right to these cases.
Like Israel’s multi-layered missile defense systems, Noam described how the Israeli legal system protected the state from international legal intervention due to the military justice system, government legal advisers and the independence of the courts.
Law Committee chairman Simcha Rothman dismissed that the reform would nullify the principle of complementarity. He argued that the reform would implement changes within norms of other countries.
Noam also related that there were other ways that the High Court had protected Israel on the international stage but indicated that it may be classified. Labor MK Gilad Kariv called for a confidential session to hear about the issue. He asked that Levin contact the Venice Commission to advise the government on the reform’s impact.
“There is no urgency in this bill and we insist on holding the confidential hearing before any vote on the bill,” said Kariv. “I am surprised to hear that Minister Levin received an opinion concerning the issues of state security and did not convene a discussion on the matter.”
Law Prof. Talia Einhorn argued before the committee that international bodies are political rather than bound by principle, and would not hesitate to attack Israel. She cited how often international bodies castigate Israel, and how it has been investigated for exerting what is ostensibly a universal principle, that of self-defense.
In domestic security matters, Einhorn said that “the High Court tied the IDF’s hands in a way that is not recognized in any legal system.” She said that Israeli soldiers had died because the courts had struck down the neighbor procedure, which allowed the IDF to ask neighbors of wanted individuals to call upon the suspect to surrender. She also cited arguments against the recent legislation that strips terrorists of Israeli citizenship if they’re given salaries from the Palestinian Authority.
Ex-IDF head and current National Unity MK Gadi Eisenkot said that the High Court, in fact, stood up for the rights of the IDF.
“We are in the most explosive and dangerous period in the last 20 years according to most serious assessment factors,” said Eisenkot. “I have dealt with security challenges and I have seen up close how much the appreciation and prestige of the High Court stands for the rights of the IDF.”
He said the High Court had challenged IDF protocols on its use of force, pushing commanders to come up with a solution that protected rights and was also more effective. Eisenkot rejected the idea that soldiers were more afraid of courts than they were of Hamas.