First hint of compromise on judicial review legislation emerges at Knesset panel
Constitution committee chair Rothman suggests less restrictive ‘soft’ review, as opposition MK Kariv says combined forms of review may be acceptable
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
A proposal by Knesset Constitution, Law and Justice Committee chair Simcha Rothman to completely change Israel’s form of judicial review gained some traction on Monday, after an opposition MK fervently opposed to the government’s planned overhaul of the judiciary made suggestions for how such a system might work.
Although Labor MK Gilad Kariv objected to Rothman’s new proposal if enacted by itself, he said a model that combined two forms of judicial review could be acceptable.
The exchange between the two politicians was the first constructive debate in the committee since the hearings began in January, suggesting the possibility of some form of compromise over the government’s highly controversial judicial reform package.
The committee began deliberations Monday on an alternate proposal by Rothman for judicial review, whereby the High Court of Justice would have no power at all to strike down legislation, but could instead issue a declaration that legislation is incompatible with Israel’s quasi-constitutional Basic Laws.
The proposal is based on the constitutional model of the United Kingdom and New Zealand, where senior courts are empowered to issue declarations that legislation is incompatible with the countries’ constitutional law, and recommend their respective parliaments amend the legislation in question.
The British parliament has almost always provided a solution to any incompatibility, although the system is much newer in New Zealand.
During the course of Monday’s debate, Kariv said Rothman’s initial proposal “wasn’t serious,” but proposed a combined system whereby the High Court could declare legislation to be “incompatible” with Israel’s Basic Laws, if it could not first muster a broad enough consensus to strike down the law.
Rothman said Kariv’s suggestion was worthy of further examination and stated he would instruct the committee’s legal adviser to draft a legislative proposal along the lines discussed. Kariv said however that he did not want Rothman to present the draft as a joint proposal, since the British model of judicial review includes solutions currently unavailable to the Knesset.
Kariv opened his comments by alleging that Rothman had only brought his alternate proposal “to say to the public that there was an even more far-reaching option and that you agreed ‘to compromise,’” by passing the original legislations.
But he said that if the traditional form of judicial review, whereby the High Court can invalidate legislation, was tightly restricted, as proposed by Rothman, then a form of “soft” judicial review of a declaration of incompatibility through a simple majority of the court should also be available.
“There would therefore be two mechanisms,” said Kariv. “If [the court] could reach a substantial majority with a large panel (not the panel and majority proposed by the committee chair), then the law could be struck down.
“But if it could only get a smaller majority, it would be possible to issue a declaration of incompatibility.”
Kariv insisted however that for such a system to be effective, the declaration of incompatibility would need tools for implementation, noting that, in the British system, the government can issue a “remedial order” to change legislation the courts said was incompatible with rights under UK and European law, instead of the normal, more lengthy legislative process.
“If we were to bring in this combined mechanism, the incompatibility mechanism has to be backed up by an arsenal of real tools to spur the Knesset to consider an obligatory hearing in committee or the plenum, an obligation to declare the position of the executive authority in relation to the non-compliance, and others,” said Kariv.
Rothman, a member of the far-right Religious Zionism party, responded positively to Kariv’s comments, although he proposed majorities for traditional judicial review which the Labor lawmaker rejected.
Rothman nevertheless said that further discussion was possible, including the possibility of including some form of the tools Kariv suggested for implementation of the incompatibility declarations.
“If the direction suggested by Kariv, which is not a bad idea at all, is presented to the committee for a first reading, or afterwards for the second and third readings, there will be time to continue discussing these mechanisms,” said Rothman.
Rothman’s original committee bill to restrict the High Court’s power of judicial review stipulated that all the court’s 15 judges must rule unanimously in order to strike down a law, and that any such ruling must determine that a law clearly violates an order in a Basic Law, which can only be altered via a specific Knesset majority.
This requirement has been widely panned by legal scholars and jurists from across the ideological spectrum as too restrictive and a provision that would effectively eradicate judicial review.
On Sunday, Rothman announced he was moderating somewhat that proposal so that a ruling striking down legislation would require 12 out of 15 justices to agree, or 80 percent of the justices on the panel.
His bill also allows the Knesset to pass laws with a notwithstanding clause, making such legislation entirely immune to judicial review by the High Court from the outset.
The legal adviser to the committee has pointed out that requiring such a high number of judges is extremely unusual in democratic countries, and noted that only two democracies currently have such a high bar for judicial review.
According to research published by the Knesset Research and Information Center, 34 declarations of incompatibility were issued by the various British courts with the power of judicial review since that power came into effect in 2001.
In five of those cases the law had already been amended by the time the declaration was issued; in another eight cases the legislation was amended subsequent to the declaration by the relevant government minister through a remedial order; in 16 cases, the law was amended by primary legislation or through ministerial regulations; and one case was remedied through administrative procedures.
In the other four cases, the government announced it intended to amend the legislation by remedial order.