Knesset advances bill that would preemptively shield laws from judicial oversight
Measure radically restricts High Court’s powers, barring it from ruling on any law that has a clause precluding it; 15 unanimous judges needed to strike down laws without clause
Carrie Keller-Lynn is a former political and legal correspondent for The Times of Israel
The Knesset on Wednesday passed in its preliminary reading a bill that could almost completely end court oversight of legislation, by enabling parliament to legislate laws that are preemptively immune to judicial review with a simple majority of 61 of 120 MKs.
The bill is a major part of the government’s effort to remove judicial checks on its powers as part of a radical reform of the country’s judiciary, and, critics say, its very system of governance.
The “notwithstanding clause” could be added by legislators to nearly any bill, thereby barring the courts from reviewing it under any circumstance, even if the law in question directly contradicts one of Israel’s quasi-constitutional Basic Laws.
A few rare laws that require a majority of more than 61 MKs to be changed would not be able to add the immunity clause.
The bill stipulates that even when the clause is not added to a certain law, the High Court will not be able to review that law unless it directly contradicts a Basic Law. If it does review it, it will only be able to strike it down in a unanimous decision by a full panel of the court’s 15 judges.
Presumably, if it were to do so, the Knesset would then re-legislate and add the notwithstanding clause, quickly overriding the court decision and making the bill immune.
Opposition leader Yair Lapid slammed the government during the Knesset session for saying it was open to talks while still advancing the highly contentious legislation.
“Don’t play around with us by talking while you’re also passing the bill… What conversation are you talking about? Enough with the lies,” Lapid said to Justice Minister Yariv Levin in a speech from the Knesset podium.
The opposition leader said the justice minister was Israel’s “real prime minister… In six months when the Israeli economy is crushed, in half a year when the country starts to fall apart, it will be on your head.”
The bill, the second major piece of legislation in the coalition’s judicial reform plan, follows a separate bill passed Monday in its first reading to cement coalition control over appointing judges, as well as block the Supreme Court from reviewing any of the country’s quasi-constitutional Basic Laws, including these very changes to the Basic Laws.
Nearly identical to a parallel bill being discussed in the Constitution, Law, and Justice Committee, the private bill by committee chair Simcha Rothman cleared its preliminary reading 62-51.
On Monday, the committee’s legal adviser warned that by fencing off laws from judicial review, the Knesset is stripping protection from civil liberties, including equality and freedom of speech — rights that are not enshrined in Basic Laws and were established by the court.
As the coalition continues to charge ahead with its overhaul plan, Justice Minister Yariv Levin reiterated to the Knesset floor that the coalition remains open to discussion with the opposition about the bills, a sentiment dismissed by opposition leader Lapid.
Lapid and President Isaac Herzog have asked the coalition to pause its legislative push in order to engage in dialogue, but the coalition says it wants to discuss bills while they continue to move through the Knesset at their current clip.
Following are further details on the two key provisions within Wednesday’s bill, both targeted at redrawing power lines between the Knesset and courts.
Notwithstanding clause
The first, and most powerful, is a “notwithstanding clause,” whereby the Knesset can pass legislation that is preemptively immune to court oversight.
According to the text of the amendment, the Knesset can harness this power through three steps. First, it must include a clause within the protected law explicitly stating that the law is “valid, notwithstanding what is stated in Basic Laws.”
Critically, this means that “the provision of the law prevails” even over a Basic Law, should they be in conflict. The only exception is for provisions of law that require more than 61 MKs to overturn, such as changing core elements of election law.
Second, this law must be passed by a 61-MK majority for the notwithstanding clause to be valid.
The preemptive immunity does have an expiry date: two years from the start of the Knesset that follows the Knesset that legislated the law, meaning two years after an election seats a new parliament. But, as a third measure, the next Knesset can extend the period of validity “indefinitely.”
Rothman, in his remarks preceding the preliminary reading vote, claimed that “we created a system that makes it very hard to achieve an override [of the court], basically two Knessets with over 61 MKs.”
In the past four years, Israel jogged from its 20th to its 25th Knesset, the result of five back-to-back elections.
Constraining judicial review
In addition to creating a mechanism for preemptive immunity, the bill creates a double-edged sword for judicial review. While it formally grants the Supreme Court the authority to review laws not protected by the notwithstanding clause, the bill severely constrains the court’s ability to wield its oversight.
In order to strike down a law or a provision within it, the court must find that the reviewed law “clearly contradicts a Basic Law,” meaning that the court cannot read additional protections into Basic Laws. Such interpretations have established Israelis’ rights to equality and freedom of speech, and a host of other civil liberties not explicitly guaranteed by the Knesset.
Monday’s bill, if it clears two more votes to finalize, would further strip the court’s ability to review Basic Laws.
Most Basic Laws can pass with a simple majority of MKs present. Originally conceived of as the first chapters of a future Israeli constitution, they can touch on a range of subjects touching on matters core to the state’s functioning and values.
