There was a meeting Sunday night of the coalition parties’ heads with Prime Minister Benjamin Netanyahu, and when it was over, MK Simcha Rothman’s and Justice Minister Yariv Levin’s two initial judicial reform bills had been gutted. At least for the current winter session.
The entire legislation banning the Supreme Court from annulling constitutional Basic Laws, which passed the first plenum vote, has been shelved. It will not be submitted.
The other bill, dealing with the composition of the Committee to Elect Judges, was curtailed severely. The circumcised version was introduced out of the blue by Rothman in Sunday’s committee meeting: in every new Knesset, the first two appointments of Supreme Court judges will be made by six coalition committee members, versus three Supreme Court judges and two non-coalition members. Subsequent Supreme Court appointments will also require six votes and will have to include one opposition representative and one judge.
In other words, out of every four new Supreme court judges, two will be right-wingers and two compromise candidates.
Certainly, had the Knesset come up with this combination a year ago, the right would have grabbed it with both hands and committed to doing dishes for the entire session. But this is not a year ago, and the right has soundly defeated the other side in the polls, so what’s the meaning of this valiant gesture? Why pick up your opponent’s fallen sword and hand it back to him? Is Rothman, too, inflicted with the national religious politicians’ pitiful need to be loved by the left? Is it the screwed-up chip again? And where was the dauntless, straight-shooter, don’t-need-you-love Yariv Levin?
As News12 reporter Amit Segal pointed out: “In a normal state of affairs, a [right-wing] government that has four judges to appoint would succeed in appointing a conservative judge, an activist judge, and two centrists. Now, it will appoint two conservatives and two centrists. A net gain of one conservative judge. Is that what all the fuss was about?”
Having said that, on Monday Amit Segal said the reform is fair and he supports it. Segal also said that the Knesset legal advisor was secretly part of the negotiations on the new version. The Knesset legal advisor refused to comment.
Also in Rothman’s altered bill: there will also be two separate committee structures: one for Supreme Court judges, with three Supreme Court judges; the other for all the other judges, with the president of the Supreme, Magistrate, and District courts. Hallelujah!
But while the full-right coalition government we elected dropped one and a half balls out of the two it was supposed to swish, it is prepared to pass three personal bills – two to save Netanyahu’s hide, one to bring Aryeh Deri back. All three bills will be submitted for a first plenum vote on Monday, with the idea of passing all three before the end of the winter session.
Let’s start with the last: the “Deri 2” bill amends the Basic Law: The Government, stating: “There will be no judicial review on behalf of any judicial tribunal regarding any matter related to or arising from the appointment of a minister and his removal from office, with the exception of the appointee’s meeting the eligibility conditions outlined in section 6 clauses (a) to (c) only.”
Section 6 deals with the competence of government ministers. Clauses (a) and (b) deal with general eligibility issues (the minister must be an Israeli citizen, not hold another public office, that kind of thing). The big whammy is clause (c), which has two sub-clauses:
(1) A person who has been convicted of an offense and sentenced to actual imprisonment, and on the date of his appointment seven years have not yet passed from the day he finished serving the actual imprisonment, will not be appointed minister, unless the chairman of the Central Elections Committee has determined that the offense for which he was convicted, under the circumstances of the matter, does not carry the stigma of disgrace.
(2) The chairman of the Central Election Commission will not act in the manner stated in paragraph (1), if the court had ruled, according to the law, that the offense of which he was convicted carries the stigma of disgrace.
In other words, the Central Election Commission Chairman, who is always a Supreme Court judge, cannot declare that Aryeh Deri’s offense involved disgrace––making him ineligible for ministerial service––if the original court that tried Deri hadn’t said so explicitly.
In layman’s terms: it will not be possible to petition the Supreme Court regarding ministerial appointments, whatever the reason, and above all, it will not be possible to argue against the reasonableness of the appointment or to assert any other claim concerning or related to the appointment. Meet Aryeh Makhlouf Deri, your exonerated Interior and Health Minister.
The other two bills the coalition is planning to pass before Passover are both directly about Netanyahu: the incapacity bill, and the gifts bill.
The incapacity bill establishes two options for declaring the temporary incapacity of a serving prime minister: an announcement to his effect by the Prime Minister or by three-fourths of the government ministers. In both options, the announcement will be made to the Knesset.
If the PM opposes his government’s announcement that he is incapacitated, he may oppose the announcement, and then the decision on his temporary incapacity will also require the approval of 90 Knesset members.
The temporary incapacitation of the Prime Minister is only possible due to his physical or mental inability to perform his duties, and the court is not authorized to hear petitions to declare or annul the Prime Minister’s incapacity.
The new law takes hostile players such as the AG Gali Baharav-Miara and Supreme Court President Esther Hayut out of the political game on this issue.
The Gift Law permits public employees, including elected officials, to receive a financial contribution to help pay for legal proceedings or necessary medical procedures.
The explanatory notes accompanying the bill say: “The bill balances the principle laid down in the existing law, according to which a public servant will not take advantage of his position to improperly accept gifts (even if it is scrupulous), versus his right to a fair process and other fundamental rights as a person so that the fact of his being a public servant will not harm his ability to receive assistance based on his basic human rights. It should be noted in this context that the rationale behind the law is that the cost of legal and medical procedures can reach extremely high amounts and that these are usually unexpected events.”
At least one of Netanyahu’s criminal indictments has to do with his violation of the existing gifts law, having allegedly received copious amounts of champagne and cigars from two wealthy friends, one of whom required his assistance in persuading the US government to renew his visa. The current gifts law only allows for small, symbolic gifts, and compels a public servant who took more to pay the full amount to the treasury.
Can Netanyahu use the new amendment to evade this part of his trial? He’ll need very good lawyers, and probably go looking for gifts to help pay for his legal costs…
Tongs made with tongs (Avot 5:6).
