Gur Bligh, the legal adviser to the Knesset Constitution, Law and Justice Committee, said on Tuesday he had found no precedent in any democratic country for judicial review over legislation to require a unanimous decision of every judge on the relevant court, as proposed in a bill being advanced by committee chairman MK Simcha Rothman.
Opposition lawmakers immediately seized on the remarks, decrying the measure, which they said would make Israel a democratic outlier with little meaningful judicial review.
Bligh made his comments during what was a calm and measured hearing, compared to the mayhem in the committee on Monday.
Few voices were raised during Tuesday’s hearing and Rothman did not eject even one MK from the room as he has done in almost every hearing on his judicial overhaul legislation.
Opposition MKs were, however, once again sharply critical of Rothman’s management of the committee and his attitude to the legislative process, accusing him of “a lack of good faith” and of seeking to ram through the far-reaching judicial reforms as quickly as possible.
According to Rothman’s proposed legislation — the second part of his broader, government-backed program to overhaul the judiciary — all 15 justices of the High Court of Justice would need to decide unanimously that a law contravenes Israel’s quasi-constitutional Basic Laws in order to strike it down.
The bill would also allow the Knesset to pass legislation with a “notwithstanding clause” making it immune to judicial review altogether, and includes other restrictions on the High Court of Justice’s ability to strike down legislation as incommensurate with Basic Laws.
“Regarding the requirement for a majority of 15 out of 15 [High Court] justices — we have not found any precedent for this anywhere in the world,” said Bligh.
Opposition MKs jumped on his words, with Labor MK Gilad Kariv quoting the Bible sardonically, saying, “A nation that lives alone,” while Hadash MK Ofer Cassif quipped sarcastically, “A light unto the nations,” in another biblical citation.
Bligh said in his comments that the requirement for a unanimous decision by all 15 justices would, along with the notwithstanding clause, “very substantially reduce” the court’s ability to strike down legislation that contravenes Basic Laws.
The legal adviser said that since Rothman’s legislation included a provision for a notwithstanding clause, the extremely high bar for the High Court to strike legislation down was hard to justify.
And he further added that if all High Court justices unanimously deemed a piece of legislation to be in contravention of Basic Laws, allowing the Knesset to then override such a decision was “unusual.”
“This [legislation] would constitute a very substantial reduction of judicial review and this has consequences for the court to defend rights such as those in Basic Law: Human Dignity and Liberty,” said Bligh.
He also said that the general trend in democratic countries today was to increase judicial review, not restrict it, pointing to developments in the UK and New Zealand, where such authorities for the courts have been expanded in recent years.
“If Israel in the 1990s was a pioneer and an outlier in regards to the power of judicial review for its High Court, this legislation would again make us outliers but owing to the lack of judicial review,” said Bligh.
The legislation under discussion in the Knesset constitution committee on Tuesday includes components of Rothman’s broader plan to overhaul the judiciary and legal system, which were split off from a more comprehensive piece of legislation earlier this month.
According to what is now labeled an amendment to Basic Law: The Judiciary — Judicial Review Over Legislation, the High Court will be formally empowered to strike down, amend, or limit a Knesset law, a power that was never previously officially enshrined in legislation. But while enshrining it, the bill would almost entirely curtail the court’s very broad power of judicial review — developed through legal precedent, especially in the 1990s.
As well as requiring a unanimous decision of all 15 justices to strike down legislation, the bill stipulates that the law in question would have to “clearly” violate an order “entrenched” in a Basic Law. Bligh raised concerns regarding that requirement as well, saying it could be interpreted very narrowly.
The High Court of Justice has struck down or ordered amended 22 pieces of legislation since 1997, mostly on the basis of Basic Law: Human Dignity and Liberty. But that law talks in very broad terms about the civil and human rights that it protects.