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High Court Rejects Petition Against Opposition Snub On Judge Selection Panel

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The High Court of Justice on Thursday rejected a petition against the makeup of the Knesset Judicial Appointments Committee, which, in a departure from recent practice, does not include a representative from the opposition.

Addressing arguments from the Movement for Quality Government, which filed the petition, the justices ruled that while a “constitutional custom” may have been formed in recent years, ensuring a voice from outside the government on the key nine-member panel, that “custom” is not enforceable via a High Court ruling.

Moreover, the judges unanimously ruled that the “constitutional custom” does not even go back decades, and that it is difficult to point to a “consistent and uniform practice.” The three-justice panel also wrote that there is no precedent for such a “constitutional custom” in the unique type of unity coalition currently in power, which has agreed to equal representation for its rightist and centrist blocs.

The petition was filed last month, after the Knesset elected coalition MKs Zvi Hauser (Blue and White) and Osnat Mark (Likud) to the nine-member Judicial Appointments Committee.

The Movement for Quality Government, a corruption watchdog, argued that the vote was illegal, relying on a 2017 High Court ruling by Justice Neal Hendel that suggested the requirement to have an opposition MK on the committee, though not set down in any written statute, amounts to a binding “constitutional custom.”

The group’s chairman, Eliad Shraga, told Army Radio last month that the Knesset vote risked “denying the opposition the right to influence the committee’s work.”

Under a 2002 law, the nine-member committee is made up of two representatives of the Knesset, two representatives of the cabinet (one, the justice minister, chairs the committee), two representatives of the Israel Bar Association and three representatives of the Supreme Court.

That makeup, and the rule that appointments to the Supreme Court require seven votes, means that the court’s three representatives can essentially have a veto on appointments to the court if they vote together, as a seven-vote majority cannot be reached without at least one of them.

The executive branch also has a veto, since it is represented by at least one MK and both cabinet ministers.

But in the current unity government, the coalition votes are divided between right-wing representatives and centrist ones. Transportation Minister Miri Regev and Mark represent the conservative view, while Justice Minister Avi Nissenkorn represents the centrists. That split meant that had the right given a seat to the opposition, it would have lost its veto power over the appointment of so-called activist judges it dislikes.

To restore the three-member rightist bloc, Likud obtained Blue and White’s acquiescence in the two parties’ coalition agreement that both Knesset representatives hail from the right. Besides Likud’s Mark, Hauser belongs to the centrist Blue and White bloc of the coalition, but is a former Likud cabinet secretary and a conservative on judicial issues.