Justice Minister Yariv Levin is considering enacting legislation to overcome Sunday’s High Court of Justice ruling ordering him to launch the process to elect a permanent chief justice within 14 days.
The court accepted the petition to force Levin to appoint a chief justice but rejected the petition’s second demand, to fill the soon-to-be three vacancies on the High Court bench.
Levin’s explanation for the nearly year-long delay in appointing a chief justice was that he wanted the appointment to be done with “broad agreement” among the nine-member judicial appointments committee, and did not want to suffice with the requisite 5-4 majority. The court’s ruling was that while this was legitimate, it could not be the only consideration, and could not overcome the basic legal requirement to appoint a chief justice.
However, Israeli law requires a minimum 7-2 majority to appoint new judges to the bench, and the “broad agreement” consideration was thus built into the appointment mechanism. Contrary to the chief justice appointment, Levin therefore could delay new high court appointments until the “broad agreement” is reached, the court ruled.
One option that the justice minister is considering is to enact a law to amend the chief justice appointment mechanism so that it too requires a 7-2 majority. This amendment, based on the ruling, should enable Levin to continue refraining from appointing a permanent chief justice until an agreement is reached.
The nine-member committee includes three members of the governing coalition, including Levin himself; one member of the opposition; three High Court judges; and two members of the Israel Bar Association. The judges, lawyers, and opposition MK, who have a majority in the committee, tend to support appointments of liberal judges, contrary to Levin’s wish to appoint conservative judges, such as the Kohelet Forum’s Prof. Aviad Bakshi.
Alter judicial reform law
Levin’s second option is thus to resume legislation of a central tenet of the 2023 judicial reforms – to alter the makeup of the committee, such that members of the governing coalition or people it appoints will have a majority and be able to appoint judges as it sees fit. The first reading of this bill passed into law in February 2023, but the bill did not proceed to a second and third reading.
The court ruling on Sunday ordered Levin to publish within 14 days the candidates for chief justice and act immediately afterward to convene the judicial appointments committee and hold a vote. A spokesperson for Levin said that the accepted interpretation for “immediately afterward” is within 45 days.
Levin thus has until September 22 to announce the candidates, and until November 6 to elect the next chief justice. The Knesset’s summer recess is only scheduled to end on October 28, and thus it is unlikely that Levin will be able to push through legislation on time without enacting a special procedure to convene the Knesset plenum during the recess.
According to Prof. Suzie Navot, vice president of research at the Israel Democracy Institute, “Legislation of this nature, such as a requirement of a 7-2 majority to appoint the Chief Justice, could perhaps be a plausible option, even if in my opinion, a simple majority is a better rule. But, if Levin wants to pass such legislation now, it may be considered as changing the rules of the game while the ‘game’ (the procedure for the election of a new Chief Justice) is in process.”
“This kind of legislation has been already “frozen” by the High Court in previous cases,” Navot wrote. “For example, addressing an amendment changing the rules for the local authorities, the High Court ruled, unanimously in a panel of nine judges, that the amendment should be interpreted in such a way that it would not apply to the upcoming elections for the local authorities, but in the next election (five years later).
Additionally, addressing an amendment to the Basic Law: The Government, which greatly limited the possibility of issuing a decree of incapacity to the prime minister – the High Court ruled that the amendment is to enter into force only in the next Knesset (the 26th Knesset). The Court stated that this kind of basic law legislation is an ‘abuse of the constituent authority’ and a ‘personal law,’” Navot wrote.
“So, I believe any legislation aiming to change the way the chief justice is elected will probably be treated by the High Court in the same way, and postponed to the next elections for chief justice,” Navot concluded.