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Architect of judicial reform bill ‘eager to compromise’

MK Simcha Rothman tells press briefing “I am eager for a debate, I am eager for a discussion.”

Israeli MK Simcha Rothman speaks at a press briefing hosted on Feb. 2, 2023 by the Jerusalem Center for Public Policy (JCPA). Photo: JCPA.
Israeli MK Simcha Rothman speaks at a press briefing hosted on Feb. 2, 2023 by the Jerusalem Center for Public Policy (JCPA). Photo: JCPA.

Member of Knesset Simcha Rothman expressed his openness to compromise on the judicial reform package that is currently being introduced in the Knesset at a press briefing hosted Thursday by the Jerusalem Center for Public Policy (JCPA).

“I am eager for a debate, I am eager for a discussion,” he said.

Dan Diker, the former secretary general of the World Zionist Congress and president of the JCPA, stated that the conflict surrounding judicial reform has “moved from a domestic issue to an international issue” and expressed his hope that the briefing would allow Rothman, a key figure behind the proposed reforms, to explain his stance. Diker added that there “has been confusion and a lack of clarity in the debate” on the issue.

In his opening statement, Rothman, who is chairman of the Knesset Constitution, Law and Justice Committee, highlighted what he sees as problems with the Israeli Supreme Court, pointing to several examples.

Rothman criticized the Court for limiting the IDF’s ability to quickly demolish the homes of terrorists. He pointed out that this policy of house demolition has been shown to save lives, but delays caused by the Court have reduced its effectiveness. He also pointed to the Court’s decision to block Knesset laws aimed at controlling the flow of illegal immigration from Eritrea and Darfur. He said that the court has prevented “all measures enacted by the government, which is trying to stop unchecked people from entering the country.”

Rothman also targeted the chief legal advisors who serve as representatives of the judiciary in government and legislative bodies, saying they hold disproportionate power. As an illustration, he pointed to the prime minister’s inability to represent himself before the Supreme Court. The prime minister must be represented by his chief legal advisor, even if the two parties disagree. Rothman accused the chief legal advisors of having excessive control over Knesset committees and various ministries, referring to them as “the court before the court.” He explained that he believes these power dynamics need to be reevaluated.

In addition, Rothman criticized the Supreme Court for what he sees as political bias, referring to it as a “very progressive” institution. He highlighted the court’s handling of human rights issues, saying, “People who are trying to color the battle between the Supreme Court and the Knesset as a battle over human rights need to show that the Supreme Court defends human rights.”

He cited examples of what he sees as inhumane rulings, such as the Court’s treatment of illegal immigrants versus defendants prosecuted as a result of the 2005 Gaza Disengagement. He stated, “The court ruled against three years (in prison) for illegal infiltrators but ‘yes’ three years for people who stayed an extra three days in the disengagement from Gaza.”

Rothman argued that the Supreme Court’s actions do not align with the protection of human rights and that “the Knesset defends human rights way better than they do.”

He also cited the Court’s failure to strike down a COVID-related law that prevented people from attending houses of worship during lockdowns, as opposed to the U.S. Supreme Court’s decision to strike down a similar law.

Rothman further criticized the power of Israel’s attorney general, stating, “The attorney general has more power in Israel than any leader in any democratic power.”

He also expressed concerns over the process of appointing justices to the Supreme Court. He explained that the process is conducted by a committee of nine people and that a 7-9 majority is necessary to appoint a new justice. Since three members of the committee are Supreme Court justices, the Court has a de facto veto on any new appointments.

Rothman criticized the ease with which cases can be brought before the Court, saying, “Anyone can bring a case with no evidence of harm done.” The U.S. Supreme Court, he said, accepts only 60-100 cases a year while the Israeli Supreme Court sees 10-15,000 cases, including up to 4,000 major cases.

He suggested that the Court’s intense response to the proposed reforms are possibly motivated by its desire to “protect its powers.” He argued that the Court has pushed back hard on previous, less sweeping attempts to curb its power. “Don’t read too much into their hysteria,” he said.

Rothman outlined the proposed judicial reforms, saying they focus on the appointment of judges, the Supreme Court’s power to overturn laws and the role of legal advisors.

According to Rothman, the reforms aim to change the method of appointing new judges by reforming the judicial selection committee. Three representatives from each branch of government would sit on the committee, and the requirement of a 7-9 majority would be changed to an absolute majority. In addition, representatives of the Israeli Bar Association would no longer hold seats on the committee.

The reforms would also limit the Supreme Court’s ability to overturn laws. Currently, the court can overturn laws for a variety of reasons, including “reasonableness.” Rothman said the reforms would require a unanimous decision from the Supreme Court to overturn a Knesset law, along with an override clause that would allow the Knesset to overrule Court decisions with a 61-seat absolute majority.

Regarding legal advisors, Rothman said they should act only as advisors.

He emphasized that these reforms are necessary to ensure a balanced and accountable judiciary.

Not everyone agreed with Rothman’s proposals. Irwin Cotler, a former Canadian attorney general and minister of justice, was present at the briefing. He said that some judicial reforms are necessary, but criticized the requirement that only a unanimous ruling from the Supreme Court can overturn a Knesset law, saying, “In my view, this proposal goes too far.”

In response to questions about the implications of the proposed judicial reforms on Prime Minister Benjamin Netanyahu’s ongoing corruption trial, Rothman said, “This change should have no effect on criminal proceedings.” He emphasized that the prime minister is not involved in steering the proposed reforms.

Rothman closed the briefing by expressing his willingness to compromise on the issue. “I am eager for a debate, I am eager for a discussion, I am even eager for a compromise,” he stated.

He criticized what he described as media hysteria, saying it misinforms the public and pushes people away from the negotiating table. He also said Supreme Court President Esther Hayut is not serious about compromising on the reform package.

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