Constitutional Revolution:
Bennett, Shaked take on Supreme Court

Jewish Home ministers plan constitutional reforms to end Supreme Court activism and judicial supremacy, restore Knesset authority.

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David Rosenberg, | updated: 21:55

Bennett and Shaked
Bennett and Shaked
Photo by Yonatan Sindel/Flash90

Leaders from the Jewish Home party are looking to rein in the Supreme Court’s activist streak and impose constitutional limitations, restraining the high court and restoring the Knesset’s authority as the sole legislative body in Israel.

A string of recent controversial decisions by the court have enraged coalition members and reignited interest in legislative moves to restrict the Supreme Court’s ability to strike down Knesset laws.

Earlier this week, the court struck down key elements of the IDF draft law pertaining to the deferments given to full-time yeshiva students. The move sparked an angry backlash from both the Shas and United Torah Judaism factions, which accused the court of legislating from the bench, and pledged to take action to bypass the court’s decision.

Following another ruling by the court permitting establishments lacking any kosher certification to declare themselves kosher, Chief Rabbi David Lau made a rare partisan appeal, calling on the religious parties to advance a legislative bypass to the court’s rulings.

In August, the court struck down parts of the Netanyahu government’s deportation plan for illegal immigrants, barring the state from expelling illegal aliens. The move prompted sharp criticism from Constitution, Law, and Justice Committee Chairman Nissan Slomiansky (Jewish Home).

Now, Education Minister Naftali Bennett and Justice Minister Ayelet Shaked are looking to channel the growing frustration within the coalition into a plan to fundamentally reform Israel’s judiciary and place clear restrictions on the high court’s ability to override the legislature.

The move represents the latest struggle over judicial review and judicial supremacy; a conflict going back to the 1980s

While Israel lacks a formal constitution, the Knesset, which has also served as the country’s constitutional convention since 1949, has passed a number of Basic Laws – laws which were never codified into a constitution, but which nevertheless enjoy a special status in Israeli jurisprudence.

Beginning in the 1980s, however, then-Associate Justice Aharon Barak argued the Basic Laws constitute a de facto constitution and claimed that the court had a right of judicial review. Since his term as chief justice (1995-2006), Barak transformed the court, pushing a policy some have criticized as judicial supremacy, giving the court wide authority to strike down laws passed by the Knesset.

Even under the understanding advocated by Barak, however, the Knesset remains Israel’s constitutional convention, empowered to pass or alter Basic Laws and to ratify them as a de jure constitution.

Under the proposal now being finalized by Bennett and Shaked, the Knesset would add a new Basic Law on legislation, joining existing Basic Laws covering the Knesset, the judiciary, the government, and the presidency.

The new Basic Law would limit the court’s ability to nullify Knesset law to specifically delineated situations. In addition, the new Basic Law would clarify the process for establishing future Basic Laws, and explicitly prohibit the judiciary from nullifying any Basic Law.

Bennett explained the rationale for the planned reform Thursday evening.

“Recently we’ve seen the Supreme Court strike down a number of laws passed by the Knesset and government decisions including the plan to remove infiltrators, the budget law, and the [policy of] stripping Hamas members of their citizenship. This new situation of laws being struck down has become routine, and it is forcing us, the lawmakers elected by the public, to return the proper balance of powers. And that’s what we’re doing now.”