Bills to halt judicial review and re-appoint Deri as minister to be advanced Sunday

MK Rothman’s Basic Law would impose severe restrictions on the High Court’s ability to invalidate legislation, allowing laws to be passed with total immunity from judicial review

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Prime Minister Benjamin Netanyahu (right) and Supreme Court Chief Justice Esther Hayut at a ceremony at the President's Residence in Jerusalem on June 17, 2019. (Noam Revkin Fenton/Flash90)
Prime Minister Benjamin Netanyahu (right) and Supreme Court Chief Justice Esther Hayut at a ceremony at the President's Residence in Jerusalem on June 17, 2019. (Noam Revkin Fenton/Flash90)

The government plans to bring two controversial pieces of legislation to a key Knesset committee on Sunday as it moves ahead with its efforts to rid the political echelon of unwanted oversight by the courts.

The first bill is a legislative tool enabling the Knesset to pass laws that are not subject to judicial review, a key pillar of the planned overhaul of the country’s system of governance.

In addition, a law that would enable Shas leader Aryeh Deri to be appointed to a ministerial position, after the High Court of Justice ruled he could no longer hold ministerial office, will also be brought to a vote in the  Ministerial Committee for Legislation on Sunday.

Should they be approved, the bills would then move to the Knesset for their preliminary hearings.

The draft bill on limiting judicial review, proposed by Religious Zionism MK Simcha Rothman, chairman of the Knesset Constitution, Law and Justice Committee, would allow the Knesset to pass legislation that would prevent the High Court of Justice from striking it down.

According to the draft bill, which would be passed as Basic Law: Override, the Knesset could legislate any law with a “notwithstanding clause,” which stipulates that the law would be considered valid even if it contravenes a Basic Law.

Such a bill could be passed by a simple majority of MKs present for the vote and would be valid for the entire duration of the current Knesset and two years into the following Knesset term. If that Knesset voted to approve the law again it would become a permanent statute, unless repealed by another law.

Constitution Committee head MK Simcha Rothman leads its discussion in the Knesset, February 8, 2023. (Yonatan Sindel/Flash90)

The draft bill, on the other hand, for the first time authorizes in law the High Court to invalidate Knesset legislation if it should contravene a Basic Law, but only in a unanimous ruling of all 15 High Court judges.

Numerous jurists, senior legal professionals, and academic scholars have said that these limitations would in practice eliminate the court’s ability to strike down legislation at all, and when combined with the notwithstanding clause, almost entirely abolish the High Court’s power of judicial review.

Since a landmark High Court ruling in 1995, the High Court has exercised judicial review over legislation that petitioners to the court claimed contravened Israel’s quasi-constitutional Basic Laws, in particular the Basic Law: Human Dignity and Liberty.

In his explanation attached to the law, Rothman argues that since many of the Basic Laws, including Basic Law: Human Dignity and Liberty, were passed by a simple majority, and because Israel does not have a formal constitution, the Knesset should be entitled to protect legislation from judicial review by a simple majority.

This law, writes Rothman, “will ensure that use of the extreme measure of invalidating primary legislation by the Knesset will only be carried out in cases where all the judges of the court have found a clear and sharp contradiction between a provision preserved in a Basic Law and the provisions of an ordinary law.”

If approved, it will be brought for a preliminary vote in the Knesset plenum on Wednesday.

Shas party leader Aryeh Deri leads a faction meeting at the Knesset in Jerusalem, February 6, 2023. (Yonatan Sindel/ Flash90)

The bill to enable Deri to return to ministerial office is an amendment to the existing Basic Law: Government, and inserts a clause into the statute stipulating that no court will be able to exercise judicial review over the appointment of cabinet ministers or be able to remove them from office.

The one caveat would be for a case in which an individual’s qualifications for office are brought into question in front of the courts.

In a controversial decision last month, the High Court ruled that Deri’s appointment as interior and health minister was unreasonable in the extreme owing to his conviction in 2022 on two counts of tax fraud, and his 1999 conviction on bribery charges.

The court also determined that since Deri had given the Jerusalem Magistrate’s Court, which convicted him over the tax charges, the impression he was permanently retiring from political office in order to secure a plea bargain in that case, his appointment as minister could not be accepted due to the judicial principle of estoppel.

The decision created a severe political headache for Prime Minister Benjamin Netanyahu since Deri demanded that the prime minister find a way to reinstate him as a government minister.

In order to find a way around the High Court’s decision, 36 MKs from all coalition parties, excluding Noam, initiated the amendment to Basic Law: Government to prevent the court from intervening in ministerial appointments.

Shas leader MK Aryeh Deri (right) and Prime Minister Benjamin Netanyahu seen during a Shas party meeting, at the Knesset, on January 23, 2023. (Yonatan Sindel/Flash90)

If passed, Netanyahu would be at liberty to reappoint Deri as a cabinet minister once again, with the High Court barred from intervening.

“The appointment of ministers by the prime minister and their approval by the Knesset, as well as the decision to remove them from office, are actions and determinations that go to the heart of democratic activity,” the explanation to the law reads.

Another controversial piece of legislation to come before the Ministerial Committee for Legislation on Sunday will be a draft bill to repeal clauses of the 2005 Disengagement Law, which led to the evacuation of four settlements in the northern West Bank along with all the Israeli settlements in Gaza.

The bill is key to the government’s goal of legalizing the illegal settlement outpost of Homesh, one of the settlements evacuated under the Disengagement Law but which has been repeatedly rebuilt and evacuated since 2005.

The legislative push comes after US Secretary of State Antony Blinken asked Israeli leaders to “pause” actions such as settlement construction in order to reduce tensions with the Palestinians.

Right-wing MKs, including former Knesset speaker Yuli Edesltein, visit the illegal settlement outpost of Homesh in 2022. (Roi Hadi)

The bill, advanced by Likud MK Yuli Edelstein and, during the last Knesset, by Settlements and National Missions Minister Orit Strock of the Religious Zionism party, would repeal the clauses of the Disengagement Law that ban Israelis from living in the region where the four settlements of Homesh, Ganim, Kadim, and Sa-Nur previously stood in the northern West Bank.

If approved by the committee, the bill, which has been backed by 34 MKs including several ministers, would move to the Knesset for a preliminary reading in the plenum on Wednesday.

Last month, the government informed the High Court that it has reversed the previous government’s commitment to evacuate Homesh and instead seeks to legalize the outpost by repealing the relevant clause of the Disengagement law.

The state was responding to a petition by the anti-settlements Yesh Din organization, which demands the outpost be removed and the Palestinian residents of the nearby village of Burqa be given access to their private land, on which the outpost sits.

Although the government hopes the repeal of the Disengagement Law will facilitate the legalization of Homesh, the High Court justices expressed doubt that the settlement could be legalized, even were the Disengagement Law to be amended, given that it is built largely on private Palestinian land.

The court gave the government 90 days to explain why it has not yet demolished Homesh, and the coalition is therefore expected to expedite as far as possible the legislation repealing the relevant clauses of the Disengagement Law in order to advance its goal of legalizing the outpost before the court’s deadline.

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