by Netael Bandel, originally published in Israel Hayom, Hillel Fendel
One of the most important people in the government about to formed in Israel will be the Justice Minister. This is not only because of the plans to legislate the oft-talked about "override proposal" [neutralizing the Supreme Court's ability to overrule and invalidate duly-legislated Knesset laws], or to divide the position of the government's Legal Counsel into two parts – but also because of other matters that outgoing Justice Minister Gidon Saar was unable or unwilling to take care of. Here are six of them.
1. The most important issue is that of the Committee for the Appointment of Judges. Over the next four years, four Supreme Court justices will retire, including Chief Justice Esther Chayot. Three of them are considered "activist" and leftward-leaning judges, such that the judges to be appointed in their stead can be expected to make their mark on the Court, with far-reaching consequences.
In October 2023, two activist female justices will retire – Chayot and Anat Baron. A year later, it will be the turn of justice Uzi Fogelman, considered quite left-wing, and in September 2025, conservative judge Yosef Elron will reach retirement age.
The official committee that appoints judges is headed by the Minister of Justice, and comprises eight other members as well: another government-chosen minister, two MKs chosen by the Knesset in a secret ballot, the Chief Justice of the Supreme Court and two other Supreme Court justices, and two members of the Israeli Bar Association. [Translator's note: At least one in each category must be a woman, according to a 2014 emendation to the Courts Law.]
If three of the four new justices will be conservative-leaning, this will be a revolution in the Supreme Court. This is especially so if the two newest judges, Yechiel Kasher and Gila Kanfi-Shteinitz, both recently appointed, turn out to be conservative-minded themselves; the jury is still out on them. If so, it will be the first time in Israel's history that the majority of High Court justices will be right-wing.
In any case, a conservative majority in the expanded compositions of the High Court, determined according to seniority, is already guaranteed, thanks to the appointments made by former Justice Minister Justice Ayelet Shaked. These compositions decide cases of particular interest or importance. The five-justice panel will include activist Judges Yitzchak Amit and Dafna Barak-Erez, alongside a majority of conservative justices Noam Solberg, David Mintz and Yosef Elron. A similar majority is found in the expanded composition of nine judges.
2. Next issue: the controversial "override proposal." It is strongly opposed by some who claim that it will enable the Knesset to legislate laws without judicial oversight, while proponents say that the court must not be allowed to override a democratically-passed law and thus nullify the will of the people as expressed in free elections. All of the Likud's partners in the right-wing government about to be formed, apparently, strongly demand the legislation of this cause, though it has not yet been decided what type of Knesset majority – 61 MKs? 70? even more? – will be required to override a Supreme Court invalidation of a law.
An example of a law that was overridden by the High Court was the 1999 bill allowing the popular Arutz-7 radio station to broadcast from the sea, as had Abie Nathan for years previously. The Supreme Court struck it down in 2002, leading to Arutz-7's closure as a radio station.
3. Israeli-Arabs: Many of them rioted against Jews in cities such as Lod and Akko during Israel's three-day war against Hamas in May 2021. In addition, violence and weapons are widespread in the Israeli-Arab sectors, leading to many murders there. It is thus clear that a revolution is required in terms of governance and personal security for both Jews and Arabs in Arab-populated areas.
Demands by the Israel Police for legislative changes to this end have been blocked, some of them rightfully so. The Minister of Justice will have to formulate legal reforms that, on the one hand, will enable the police to effectively enforce the law, while causing, on the other hand, minimum harm to civil rights. This is a delicate but necessary balance, and will probably end up being adjudicated in the Supreme Court.
4. Administrative Detention – Terrorists who cannot be tried immediately for one reason or another are allowed to be placed under administrative detention, by virtue of emergency regulations that have been in effect since Judea and Samaria was liberated by Israel in the 1967 Six Day War. In recent years, even Jews suspected of committing or even just planning anti-Arab violence have been subject to administrative detention.
A new Administrative Detentions Law is in the works and will be submitted to the Justice Minister in the near future. He will then have to decide whether to promote it as is, insert changes, or possibly bury it altogether. The current policy has come under intense criticism by both the far-left and far-right, and the Justice Minister will have to find a way to deal with this political hot potato.
5. The Audit Commission Over the Prosecutor's Office is seen as an important tool by which to restrain the apparent over-zealousness to prosecute public figures. However, recent legislation has weakened this body, and the outgoing Commissioner has even recommended, in light of this development, that it be closed. The new Justice Minister, and the incoming Commissioner Menachem Finkelstein, will have to decide how to give it some teeth.
6. Delays in the Courts – Too many cases take years to worm their way through the court system, including even relatively simple ones. This is a governmental disgrace that leads to corruption of justice and other harm to citizens. It also leads to low-quality judgmental rulings, such as quick-solution compromises forced upon the parties by harried judges. The judicial system needs an efficiency revolution, and the incoming Minister of Justice will have to think outside the box to find the solution.