Judicial overhaul will leave the right to vote unprotected, admits MK leading effort
Simcha Rothman tells Knesset legal adviser that curbing judges’ overreach takes priority over safeguarding rights
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
The High Court of Justice would not have the authority to review and strike down laws that restrict the right to vote should the government’s judicial overhaul package be approved, a senior lawmaker spearheading the legislative push acknowledged on Wednesday.
Questioned during a hearing of the Knesset Constitution, Law and Justice Committee, committee chairman MK Simcha Rothman of the far-right Religious Zionism party conceded that the right to vote would not be protected under his proposed law, and insisted he would not redress the problem within the framework of his current legislation.
The exchange in committee served to underscore fears that the government’s plans to dramatically restrict the High Court’s ability to strike down legislation that violates Israel’s Basic Laws would leave fundamental rights unprotected and dependent on the whims of the ruling coalition.
“To me and my voters, the most important thing that harms the Israeli system of government is the overreaching of the High Court,” Rothman said during the meeting. “This is the urgent problem that needs to be addressed now.”
The concern arose during the ongoing hearings over the second part of the government’s judicial overhaul program being debated in Rothman committee to drastically curtail the High Court’s power of judicial review over legislation.
The bill is committee-sponsored and has yet to come to its first reading in the Knesset plenum. An almost identical private member bill sponsored by Rothman was approved in a preliminary reading in the plenum on Wednesday.
Both bills stipulate that the High Court could only strike down a law that “clearly” violates an order in one of the quasi-constitutional Basic Laws. Even then, the court would be restricted to only ruling in cases where the violated clause is “entrenched,” meaning that the Basic Law specifies the need for a majority of 61 MKs or more to alter it.
Were the bill to become law as part of the overhaul, the committee’s legal adviser said during the tempestuous committee hearing, the upshot would be that the right to vote would not be protected under the new legal regime that the government’s far-reaching legal reforms would establish.
“According to this system, if I [the Knesset or government] harm the right to vote, the High Court has no right to invalidate it,” committee legal adviser Gur Bligh warned at Wednesday’s meeting.
Basic Law: The Knesset sets out Israel’s democratic structure. While a clause on the need for “equal elections” is entrenched, those on the right to vote itself and the right to be elected are not, meaning the court would not have the right to review and possibly strike down a law that disenfranchised certain groups.
Bligh pointed out, for the second time this week, that the legislation would also harm fundamental civil rights that have been derived by the High Court through interpretation of Basic Laws but not spelled out explicitly. This includes the right to equality and freedom of expression, which are anchored in the court’s reading of Basic Law: Human Dignity and Liberty.
“This leads to a situation in which freedom of expression would also not be protected,” said Bligh.
He then asked Rothman directly if he did not think it would be advisable to provide legal protections to the right to vote and be elected, and freedom of expression, in the framework of his legal overhaul.
Rothman said that although he believed such rights should be protected, he refused to do so at present since reining in the High Court’s “overreach” was a bigger priority.
“I can think of 30 to 40 constitutional rights that I think the Knesset should anchor and protect so that a majority of 61 is needed to overcome them. The reason I still don’t do it is mainly because of the far-fetched judicial review in Israel, which is abnormal both in relation to the rest of the world and in relation to what was [previously] acceptable in Israel,” he said.
“When I say that we will remove and prevent this misuse and abuse of power, does that mean that I currently want to violate these rights? No.”
Rothman also accused the legal adviser of pursuing a “borderline political” line of questioning and said Bligh’s stance was that “until a full constitution is legislated the High Court can’t be touched,” a position the MK rejected.
The heated debate continued outside of the committee halls, when Rothman and Labor MK Gilad Kariv clashed on Twitter over the issue.
Accused by Kariv of not wanting to protect the right to vote, Rothman contended that the clause covering “equal elections” in the Basic Law would leave the right to vote protected.
“Rothman, enough with the spin, you’re not as good at it as Netanyahu,” Kariv tweeted.
רוטמן, די עם הספינים. אתה לא מוכשר בזה כמו נתניהו.
סעיפי חוק יסוד הכנסת של הזכות לבחור והזכות להיבחר (סעיפים 5 ו-6) אינם משוריינים בדרישת רוב מיוחד לשינוי שלהם.
על פי ההצעה שלך חוק של הכנסת שיפגע בהוראות שני הסעיפים המרכזיים האלה לא יהיה נתון לביקורת שיפוטית של בג"ץ.
זו האמת. https://t.co/AM76LxVqvG
— גלעד קריב (@KarivGilad) February 22, 2023
“According to your bill, a Knesset law that harms the orders of these two central clauses [on the right to vote and be elected] would not be subject to judicial review by the High Court,” he added.
During the debate, Rothman said he would propose legislation offering an alternate model of judicial review used in the United Kingdom and New Zealand.
Under that system, a court with authority to review legislation can declare a particular law to be incompatible with a bill of rights or other constitutional provision, but cannot actually invalidate a law or order it be amended.
In the UK, the government has on almost every occasion amended a law the Supreme Court declared to be incompatible, but such a decision is made at the government’s discretion.
“This is a model of dialogue that [would] relieve tension from the High Court,” Rothman said.
He said the model would give the court the ability to fire off “a soft statement of noncompliance” rather than the “atomic weapon” it currently has.
“The Knesset will be much more responsive to proposals than to demands,” Rothman argued.
The MK has asked Bligh to draw up a bill in accordance with this model, but it has not yet been brought to the committee.