The Knesset building and the Supreme Court in Jerusalem share the most beautiful public park in Israel. It is a garden lined with roses and adorned with smoothly paved walkways and a serene lake. The idea behind the design was that these important levers of power would be distinctly separated, but in a way that was pleasant. This separation did not help much this week. The tensions between the legislative branch and the judicial branch erupted like an angry volcano. The famous Hebrew saying, There are judges in Jerusalem, was given an addendum. There may be judges, but in the Knesset, a battle is being waged over who gets to pick them. Representatives of both branches accused one another of trying to impose their views and to change the rules. This is a struggle over who can change the rules, and when. Will an elected official be the one who can rule? And, if so, what are his or her limits- Three significant events took place this week. On Monday, the Knesset approved the first reading of a bill over the appointment of Israel Bar Association representatives to panels that appoint judges. On Tuesday, the association chose two representatives to the panel. And on Wednesday, the bill that amends the manner in which the Supreme Court president is chosen was pushed through the legislative process. This series of events has created a teeming political atmosphere. There are nine members on the panel to appoint judges. The panel comprises three judges, two ministers (the justice minister and an additional minister), two members of Knesset (one from the coalition, the other from the opposition), and two members of the bar association. In other words, five members of the legal establishment and four public officials. The identity of the association officials is determined by a special council. The three judges on the committee are Supreme Court President Dorit Beinisch, Asher Grunis, and Miriam Naor. The ministers are Yaakov Neeman and Gilad Erdan, the former from Yisrael Beitenu and the latter from the Likud. The MKs are David Rotem, who chairs the Knesset Constitution Committee and who is a coalition member from the Yisrael Beitenu party, and Uri Ariel of the National Union, a right-wing party that is not in the governing coalition. Score one for Beinisch This week, two representatives were chosen by the bar association. The head of the association, Doron Barzilai, is believed to be an opponent of Beinischs judicial philosophy. He is thought of as more closely aligned with Neeman. But the manner in which the representatives are chosen does not ensure that the chairman will gain a majority. And this is exactly what happened this week. The representatives chosen to sit on the panel on Tuesday were Rachel Ben Ari, who was already on the committee, and Khaled Hosni-Zoabi, head of the bar associations northern district office. Both lawyers are considered loyal to the departing chairman, Yuri Guy-Ron, who himself is thought to be allied with Beinisch. The presence of Ben Ari and Hosni-Zoabi on the panel will allow Beinisch to pick her preferred candidates for magistrate as well as district courts. Pinchas Marinsky, who is believed to be allied with Barzilai and Neeman, was not re-elected to the panel. Lawyers are chosen to serve three-year terms on the panel. The current crop will begin their terms in early December, after elections were held as scheduled, much to the chagrin of Rotem and Barzilai, both of whom sought to put off the elections until after the legislative process was concluded. The legislation is expected to stipulate that bar association representatives will be chosen by a two-thirds majority. The change is necessary, because the current method gives each district office equal clout. That creates a situation whereby the votes of 30,000 lawyers in the center of the country are equivalent to the votes of 3,000 lawyers in the northern district. Given this ratio, the associations chairman is rendered incapable of bringing his influence to bear on the most important issue on the legal agenda today -- the appointment of judges. Barzilai said that the members of the bar association were guilty of a sleight of hand by rushing to hold elections while the Knesset was in the advanced stages of the legislative process. But Shlomo Cohen, once the associations chief, claimed that the law would not invalidate the election results, since legislation cannot be applied retroactively. As for the balance of forces on the judicial appointment panel, Cohen said that the results should be seen as an attempt to stop the religious Right from taking over the Supreme Court as part of a campaign orchestrated by Minister Yaakov Neeman by way of the judicial appointments panel. An artificial majority Opposition MKs took to the Knesset podium on Monday evening to declare their opposition to the proposed legislation. These are dark days, said Hadash MK Dov Khenin. Criticism was not limited to the Left, but also emanated from within the Likud. There are those in the ruling party who believe that the proposed law harms the principles laid down by Menachem Begin and the Likuds forerunner, Herut. Dan Meridor, a government minister and a lawyer by trade, came out against the legislation, as did Knesset Speaker Reuven Rivlin. I dont think the rules of the game should be changed in the middle of the game, Rivlin said this week. Labor MK Isaac Herzog said that the proposed law was a foolish move that was tantamount to a gross, brazen, and uncalled for attempt at intervention. This is the most sensitive system there is, he said. In the balance of relations between the branches of government, every branch is afraid of the other and doesnt understand the authority and the potency of the other. What is being done here is an attempt to tie the legal systems hands. That legal system is perhaps the last refuge where a lone citizen can turn and pray that it will intervene on his or her behalf. One of the bills sponsors, Levin, believes otherwise. We will complete the law and we will mandate new elections [for bar association representatives] in order to restore the situation to the status quo ante, he vowed. A situation whereby the association chooses two people from the same rank in order to create an artificial majority is antithetical to the principles of the association itself. Ultimately, when five jurists on the panel make common cause in order to impose their opinion and to exploit their majority, this renders public officials as nearly irrelevant and this is a situation that does not exist anywhere else in the world. Today we have three judges, two bar association officials, two MKs, and two ministers, he said. In other words, the judicial branch is over-representated compared to the other branches. Jurists have a majority over elected officials, and the three judges have veto power because Supreme Court justices cannot be appointed without at least seven votes. This contravenes the principle of separation of powers, the basis of which states that no branch can pick its own members. The Knesset is chosen by the people, and the government rules by dint of the power entrusted to it by the Knesset. So how can you have a situation where judges pick themselves- Critics say that having politicians pick the judges is a dangerous situation. Isnt the politicization of the judicial process a risky development- Elected officials pick the state comptroller, and to this day they have made excellent choices, Levin said. This is how it is done in all democratic countries. You could also ask why public officials pick the police commissioner and the IDF chief of staff. In everything, you could say that there is a measure of politicization. Ultimately, those who decide in a democratic country are the people and the sovereign. Whoever wants to replace democracy with a judicial monarchy can certainly do so, but this would not be democracy. Meretz MK Zahava Gal-On claims otherwise. Gal-On said that picking judges is often the result of deals that are made in the judicial appointments panel. MK Zeev Elkin, the coalition chairman and one of the bills sponsors, agrees with this, but he adds that these deals are the basis of all discussions. We have broken a years-long custom which denies the chairman the ability to bring his influence to bear, he said. That is how this legislation was born. This piece of legislation was not intended to change, but to preserve the method that was in place before, whereby the head of the association would have at least one representative. If they cannot preserve this, then I will determine this by law. Elkin was then asked if political intervention in the judicial appointments panel was a healthy thing for the legal system. First of all, there is no other choice, he said. The court wields powers that politicians in the Western world do. The Israeli method of picking judges is imitated only in India. So from this standpoint, we are unusual, and this is something that they dont bother to tell the public. Justice needs to be seen Another issue that is somewhat related is the manner in which Supreme Court presidents are chosen. The new legislation is aimed at allowing Grunis to serve as president. On Wednesday, the Knesset bolstered Grunis candidacy. A proposed bill that was approved guarantees the principal of seniority, whereby the longest-serving judge on the Supreme Court bench would be chosen president, even if that judge has less than three years until his retirement at age 70. The current law, which was enacted during the term of former Justice Minister Daniel Friedmann, stipulates that only judges who have at least three years remaining on the bench are eligible to become president. Since Grunis has less than three years left, Naor is next in line to become president, unless an amendment to the law is passed. The amendment was proposed by National Union MK Yaakov Katz. This week, politicians also proposed a measure that would require judges to appear before a parliamentary panel prior to their appointment. The initiative was halted by Prime Minister Benjamin Netanyahu. Netanyahu, who supports the Grunis Law as well as the law to alter the composition of the judicial appointments panel, made it clear that hauling judges before a parliamentary committee has a humiliating element that ought to be avoided. In response to the supporters of the measure, Netanyahu said that justice doesnt only need to be done, it also needs to be seen.
Disorder in the court
Tensions between the legislative branch and the judicial branch continue to rise over proposed changes to the law that governs the appointment of Supreme Court judges • There are judges in Jerusalem, as the saying goes. But who gets to pick them?
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