Constitutional revolution would limit Supreme Court

Memorandum of proposed Basic Law on Legislation, limiting Court power to invalidate Knesset laws, publicized.

Mordechai Sones,

Shaked and Bennett
Shaked and Bennett
Flash 90

Education Minister Naftali Bennett and Justice Minister Ayelet Shaked (Jewish Home) distributed a memorandum on a proposed Basic Law on Legislation, which they recently announced was in the works. The memorandum regulates relations between the authorities for the first time since the constitutional revolution declared by former Chief Justice Aharon Barak more than two decades ago.

Since Israel does not have a constitution, decisions at first were made on the basis of precedent. Chief Justice Aharon Barak formulated Basic Laws to create a basis for court decisions that would serve as a substitute for a constitution in certain areas. The interpretation and applicability of these laws has been increasingly broadened by the courts, in line with Barak's well-known opinions stating that "the enlightened" would decide for the rest of the country and that "everything is adjudicable." The proposed new law is meant to address this problem. (For a summary of the reasons for the pervading feeling in Israel that there is a need to change the rules regarding Supreme Court activity, click here.)

While the various sections of Bennett and Shaked's proposed new law speak of fortifying the status of basic laws in the face of judicial review so that the Supreme Court can not disqualify them out of hand - from now on the legislative process will also be stricter.

According to the bill, proposed basic laws will be submitted only by the government, the Knesset Constitutional Committee or at least 20 Knesset members. In addition, the legislation must be passed by a majority of 61 Knesset members in each of its three readings, and the third reading will take place in a special plenum session.

With regard to ordinary laws, the Knesset will recognize that the Supreme Court may invalidate a law. However, in contrast to the situation in which the Supreme Court rules out laws easily, the legal memorandum sets forth strict conditions for disqualifying a law, and allows the Knesset, under certain conditions, to re-enact a law that has been annulled by the court. The purpose of these sections is to maintain a constant dialogue between the three branches of government - the legislative, executive, and judicial branches.

Thus, a law will be allowed to be disqualified only in the Supreme Court, and only in an exceptional case in which the legislative process deviates from provisions established in the Basic Laws. This can be decided on by a court made up of 9 or more judges, and by a majority of two-thirds of the panel. The Basic Law on Legislation states that it will not be possible to interfere with legislature passed into law by the Knesset citing procedural flaws, as long as the law passed three readings and received the required majority.

In the event that the Supreme Court disqualifies a law, the Knesset will be able to re-enact it by a majority of 61 Knesset members - and then the law will be valid for five years, at which point the law's validity can be extended again.

According to the proposal, any judicial authority that has a genuine doubt regarding the validity of a law, and finds it impossible to decide the matter brought before it without deciding beforehand on the validity of the law involved, will direct the question directly to the Supreme Court. The hearing in the Supreme Court will be held in two stages: First, the Court is to convene with a panel of three justices to determine whether there is any real doubt as to the validity of the law and whether the decision is necessary for a ruling in the case at hand. Only if they so determine shall the question be brought before a panel of nine or more judges.

Sources close to Ministers Bennett and Shaked say that "the need to formulate a memorandum of law became a pressing one after a series of recent Supreme Court rulings violated the status quo that has existed over the years between the legislative and executive branches and the judiciary."

"In the past year, the Israeli public and constitutional law experts were astonished at the fact that for the first time the Court began to disqualify legislation over procedural matters, whereas in the past it intervened only on material grounds. In addition, for the first time, the Supreme Court considered overturning a provision in a Basic Law. If this were not enough, the Court hinted that the section on the observance of laws that appear in the Basic Law on Human Dignity and Liberty can be ignored."

Education Minister Naftali Bennett said that the bill is a necessity. "Today ,with this law, we are telling the Supreme Court that not everything is adjudicable. In recent years, the Supreme Court has ruled out government actions and laws with too sweeping a hand. The government must govern and the justices have to judge. The Basic Law on Legislation will define the boundaries between the various authorities in a balanced manner."

Justice Minister Ayelet Shaked added, "Judicial activism severely damaged Israeli democracy when it basically took the right to vote away from the people by constantly overruling the elected legislature. The Basic Law will restore the necessary norms in Israel and clearly define the limits of judicial review, the legislative process and the enactment of Basic Laws, and the dialogue between the court and the Knesset. Order will be restored from within the existing legal chaos, and a proper balance created between the three branches of government."




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