Attorney General Gali Baharav-Miara insisted Monday that Justice Minister Yariv Levin is obliged to convene the Judicial Selection Committee owing to the large number of empty seats on court benches around the country and his duty to exercise the authorities of his office.
Her opposition to the government’s position is the latest in a series of high-profile and highly consequential cases in which she has come out against key government policies that would radically change Israel’s legal and judicial systems, casting a shadow over her continued tenure.
Baharav-Miara stated her position in her office’s filing with the High Court of Justice in response to petitions demanding Levin assemble the committee, which he has so far refused to do owing to his desire to first change the panel’s composition in order to give the government control over judicial appointments.
The attorney general noted that there are currently 21 judicial appointments which need to be filled and that by the end of the year there will be 53 open positions, if these posts are not staffed by the Judicial Selection Committee.
Combined with what she asserted was the obligation of an official with an “operative authority” to exercise that authority “with reasonable speed,” Baharav-Miara determined that Levin is obligated to convene the committee immediately.
One of Levin’s central goals in the judicial overhaul program is to give the government control over judicial appointments, owing to his belief that the Israeli judiciary — and the justices of the Supreme Court in particular — are too liberal, overly activist, and unrepresentative of the general public.
Left: Justice Minister Yariv Levin speaks during a Constitution, Law and Justice Committee meeting at the Knesset in Jerusalem, January 11, 2023. (Yonatan Sindel/Flash90); Right: Attorney General Gali Baharav-Miara attends a conference at the University of Haifa, December 15, 2022. (Shir Torem/Flash90)
Legislation that was on the cusp of approval by the Knesset in March would have created a completely political judicial selection process, and given near total control to the government over almost all judicial appointments in the country.
The legislation was frozen following massive protests, strike actions and threats by military reservists that they would refuse to continue serving.
In an interview with the Kan public broadcaster on Sunday, Levin openly stated he would not convene the Judicial Selection Committee until its composition had been changed.
Due to Baharav-Miara’s objections to Levin’s stance on convening the committee, the justice minister has received her permission to obtain independent counsel to represent his position in court, and so his position is not reflected in the attorney general’s response.
In a highly unusual state of affairs, the attorney general has taken opposing positions to that of the current government on numerous policy issues and pieces of government legislation, including over the Judicial Selection Committee, which has severely strained their ties.
In her filing on Monday, the attorney general pointed out that the Courts Law (1984) states that “if the justice minister sees that judges need to be appointed he will announce it in the official gazette and convene the committee.”
Baharav-Miara also noted that the Interpretations Law of 1981 determines that an official invested with a given authority has to exercise that authority “with appropriate speed” and do so repeatedly, “as circumstances require.”
She wrote: “The implication of a situation in which the justice minister refrains from convening the committee for an extended period of time… grants the minister a sort of ‘veto’ right which gives him the power to prevent the appointment of judges not to his liking, which could thwart the work of the entire committee, even though this [power] has not been established in the law.”
The Judicial Selection Committee during the 34th government of Israel convenes, with then-justice minister Ayelet Shaked together with then-Supreme Court president Miriam Naor, then-finance minister Moshe Kahlon and other members of the Israeli Judicial Selection Committee, February 22, 2018. (Hadas Parush/Flash 90)
She pointed to previous rulings by the High Court, including one in which the High Court ruled that the minister of religious services was obligated to convene a selection committee for Druze qadis, or religious judges, despite his decision not to convene the panel due to his desire to pass a law relevant to the appointments process.
“Staffing of vacant judges’ positions has a material and close connection to the ability of the court system to operate in a regular and optimal manner, and it ultimately affects the amount of time that passes until the citizen receives his day in court and the exercise of the fundamental right of access to the courts,” wrote the attorney general.
“In light of all these circumstances, with approximately eight months having passed since the establishment of the government, and in light of the long and unprecedented period of time in which the committee for the selection of judges has not convened; together with the systemic need to staff judicial positions, and the damage to the functioning of the judiciary and the service provided to litigants and the general public to exercise the fundamental right of access to the courts, the requirement of due speed requires that the Judicial Selection Committee be convened right now,” concluded Baharav-Miara.
A hearing on the petitions filed by the Movement for Quality Government in Israel and the Yesh Atid party is scheduled to be heard by the High Court on Thursday.
Levin has, however, requested that the hearing be postponed to allow him time to find independent counsel to represent his position and for them to draw up a response to the petitions.
The court has not yet responded to his request.
