It’s the Knesset, not the Court, that has potentially dangerous, unchecked power
A close look at 10 key assertions advanced by champions of legislation to override the Supreme Court
Amid reports that the next Israeli government will seek to pass legislation to curb the powers of the Supreme Court and override its rulings, the Israel Democracy Institute examines 10 key assertions advanced by supporters of such legislation.
1. Israel’s activist Supreme Court has struck down many laws passed by the Knesset.
Fake news. Since the passage of Israel’s Basic Laws in 1992, the Supreme Court, in its role as the High Court of Justice, has struck down just 18 laws. During the term of the last Knesset, the High Court struck down four laws.
2. The High Court of Justice has no legal authority to strike down laws.
The High Court of Justice’s power to overrule legislation is rooted in Israel’s Basic Laws. The “limitations clause” of Basic Law: Human Dignity and Liberty in 1992 (section 8) limits the ability of Knesset legislators to pass laws that violate the rights protected by the Basic Law. Similarly, it states that the Basic Law “shall not affect the validity of any law which is in effect prior to the commencement of the Basic Law ,” but therefore can affect the validity of new laws.
Israel is not exceptional in this regard. Mechanisms for striking down laws exist in many other countries as well. In fact, in the overwhelming majority of countries, the courts can overrule laws that contradict the constitution.
3. If judicial oversight is so important, how did we manage before 1992?
Until 1992, protection of civil liberties in Israel was fragile and vulnerable to the whims of parliament. Indeed, many aspects of Israeli law prior to 1992 — such as the military administration that ruled over Israel’s Arab citizens in the 1950s and 1960s, the sweeping exemption from military service awarded ultra-Orthodox Jews, criminal legislation forbidding homosexual relations, the lack of legal recognition for civil partnerships, and discrimination against municipalities in Israel’s periphery — violated basic principles of equality and freedom.
Israel’s adoption of its Basic Laws in 1992 created the basis for a significant improvement, bringing the country in line with the world’s robust democracies that afford constitutional protection of fundamental rights. It would be an anomaly if, after the great majority of the world’s democracies have chosen to adopt arrangements that provide stronger constitutional protection for fundamental rights, Israel were to move in the opposite direction and weaken protection for individual rights.
4. The Supreme Court has dangerous, unlimited powers.
On the contrary: It is the Knesset, and the executive branch that stems from it, that has potentially dangerous, unchecked power. Unlike many other democracies, Israel has few checks on executive and legislative power: the Knesset has only one chamber as opposed to two, Israel has no federalized state system to balance central authority, and there is no constitution or bill of rights to protect individual Israelis from the tyranny of the majority.
Even democratic regimes can pass laws and regulations that contravene democratic principles and infringe on basic human rights. In such cases, it is the role of the Supreme Court to protect the weak and the minority from the majority. A parliament with unlimited powers is dangerous.
5. The relationship between the Knesset and the Supreme Court should be clearly defined.
Absolutely. This should be done by means of a constitution or a Basic Law that defines the limits of the Knesset’s power and grants it, when it functions as the High Court of Justice, the power to strike down laws only in a special forum of at least nine justices. Maintaining the delicate balance between the Knesset and the Supreme Court is a critical function of the constitution Israel sorely lacks.
6. The majority of the Israeli public has no faith in the Supreme Court and is in favor of curbing its power of judicial review.
Not true. According to the most recent Israel Democracy Index, 58% of Israelis oppose removing the power of the High Court of Justice to overrule laws passed in the Knesset, while only one-third are in favor. Breaking these figures down by voting behavior in the most recent elections reveals that it is voters for the religious parties — Shas, United Torah Judaism, and the Union of Right-Wing Parties — who are mostly in favor of taking away this power.
The Supreme Court enjoys a relatively high level of public trust (56%), compared to the abysmally low level of trust (only 26%) enjoyed by the members of the Knesset.
7. The process of appointing justices in Israel leaves in place the ‘old guard’ that seeks to retain its power even under a right-wing government.
Not true. Over the last two years, Israel’s Justice Minister, Ayelet Shaked, has led a dramatic shakeup of the composition of the Supreme Court. Israel has a process for selecting judges that balances between political input and judicial independence. A majority of seven from a nine-member committee composed of four politicians, three judges, and two representatives of the Bar Association must approve each nominee. This system has produced an independent Supreme Court that is widely recognized throughout the democratic world for its excellence.
In recent years, other countries have been moving to a mixed process of selecting justices as well: In Canada, the UK and Italy, part of the selection process is in the hands of professionals. And where judicial appointments are political, nominees are typically subject to the approval of two houses of parliament, whose members are chosen by different methods, or approved by a special majority of two-thirds of the members of the house.
8. Courts in other countries are not as activist as Israel’s High Court of Justice when it comes to striking down legislation.
While the High Court of Justice in Israel has overruled 18 laws since 1992, 206 laws have been struck down in Germany, 46 in Canada, and 50 in the United States over a similar time frame.
9. In Britain, the Supreme Court does not have the power to strike down legislation. Why should Israel be any different?
Britain is an unusual case of a country with no constitution or basic laws, but with a robust democratic tradition going back centuries and a variety of checks and balances to curb legislation that contradicts civil liberties. Among other constraints, the House of Lords (the upper house of parliament) can hold up legislation, and the United Kingdom, as a signatory to the European Convention on Human Rights, is subject to the European Court of Human Rights.
Of the 27 laws that the Supreme Court of the United Kingdom referred back to parliament for review between 2000 and 2018, 24 were amended and three are under review.
10. Canada has an override clause. Is it not a democracy?
Let’s take a look at Canada. Unlike Israel, Canada passed its override clause along with a comprehensive Charter of Rights and Freedoms that forms part of the country’s constitution. Moreover, power in Canada is far more decentralized, being distributed between two houses of parliament and among its 13 provinces and territories, which have independent legislation powers that act as a balance to national legislation.
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