Attorney General Avichai Mandelblit has reportedly expressed his staunch opposition to a new Jewish Home bill that would curb the ability of the Supreme Court to strike down Knesset legislation, and has been trying to persuade its authors to change the draft proposal.
Mandelblit had several meetings with Justice Minister Ayelet Shaked about the bill, raising his concerns that the legislation would upset the careful balance of power between Israel’s judicial and legislative branches, but the two have so far failed to reach any compromise, Hadashot news reported on Tuesday.
The bill, published Tuesday by Jewish Home leader Naftali Bennett and his number two, Shaked, would drastically limit the power of Israel’s highest court by preventing judges from disqualifying any quasi-constitutional Basic Laws.
The Supreme Court has frequently irked right-wing and Orthodox politicians with an interventionist ethos pioneered by Aharon Barak, court president from 1995 to 2006. Barak’s legal interpretation expanded the range of issues the court dealt with and widened its ability to strike down legislation that failed to protect individual rights.
According to the new draft legislation, the court will be able to strike down regular laws (as opposed to Basic Laws), but only with a special panel of nine presiding justices and only if two-thirds of those justices agree.
However, even if a law is shot down by the court, lawmakers would nevertheless have the ability to re-legislate the law with the support of at least 61 MKs, for up to five years, and with the option of renewing it after that time, according to the bill.
Despite limiting the Supreme Court’s current power, the bill does also seek to strengthen Israel’s Basic Laws, making it harder for legislators to amend them.
According to the bill, the Knesset will only be able to pass a Basic Law with the support of at least 61 of the 120 lawmakers in each of its three plenary readings. In addition, such laws will only be able to be brought to parliament for a vote by the cabinet, the Knesset’s Constitution, Law and Justice Committee, or a minimum of 20 MKs.
Though the right-wing Jewish Home party has long complained of court interference in the government’s ability to govern, Bennett said that the immediate catalyst for submitting the draft legislation now was Thursday’s Supreme Court ruling that the government pass a law regulating the holding of Palestinian terrorists’ bodies as bargaining chips, or hand them over to their families.
A government statement on Monday said members of the high-level security cabinet decided the ruling was “unacceptable” and asked the court to hold a fresh hearing on the issue.
“Today we are telling the High Court of Justice: ‘Not everything is subject to the court,’” Bennett told Hadashot news on Tuesday. “The government should govern and judges should judge. The Basic Law on Legislation will define in a balanced manner the boundaries between the various authorities.”
“Judicial activism severely damaged Israeli democracy when it removed the people’s right to vote,” Shaked told Hadashot. “The Basic Law on Legislation will restore the norm formerly practiced in the state of Israel and will clearly define the boundaries of judicial review, the legislative process, the enactment of Basic Laws and the dialogue between the court and the Knesset.”
The proposal follows a series of High Court rulings that unraveled existing Knesset legislation, including its revised IDF ultra-Orthodox enlistment bill, its policies on detaining African migrants, the two-year budget, a plan by the finance minister for third-apartment taxation, and the revocation of permanent residency status of four Palestinian parliamentarians from East Jerusalem with ties to the Hamas terror group.