Knesset legal adviser: Overhaul leaves equality, freedom of expression unprotected

Adviser to Knesset committee leading legislation charge says clause in government’s bill would mean fundamental civil rights have no anchor in Israeli law

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Chairman of the Knesset Constitution, Law and Justice Committee MK Simcha Rothman (center) at a hearing, with committee legal adviser Attorney Gur Bligh (right), February 20, 2023. (Yonatan Sindel/Flash90)
Chairman of the Knesset Constitution, Law and Justice Committee MK Simcha Rothman (center) at a hearing, with committee legal adviser Attorney Gur Bligh (right), February 20, 2023. (Yonatan Sindel/Flash90)

The right to freedom of expression and other basic civil rights would all become unprotected should the government’s legislation limiting judicial review be passed into law in its current state, legal adviser to the Knesset Constitution, Law and Justice Committee Attorney Gur Bligh said on Monday.

His comments came amid a debate between Bligh and committee chair MK Simcha Rothman, one of the architects of the bill, over a clause in the legislation stipulating that the High Court of Justice would only be empowered to strike down Knesset laws if the law in question “clearly” violates an order “entrenched” in a Basic Law.

Bligh noted that several fundamental civil rights, such as the right to equality, freedom of expression and others, are not delineated in any of Israel’s quasi-constitutional Basic Laws, but have become inherent facts of Israel’s legal landscape owing to rulings by the High Court. The court derives such rights interpretively from those Basic Laws, he noted, and primarily Basic Law: Human Dignity and Liberty.

Bligh’s comments came just hours before the Knesset plenum was scheduled to vote on the first reading of the first part of the coalition’s far-reaching overhaul of the judicial and legal system, which would give the government complete control over the Judicial Selection Committee and the authority to appoint judges to all courts in Israel, including the Supreme Court. (Legislation needs to pass three Knesset readings to become law.)

“In Israel’s constitutional law… [former Supreme Court president Aharon] Barak’s intermediate model prevails, according to which there is a series of rights including equality and freedom of speech, which the Supreme Court of Justice has derived from Basic Law: Human Dignity and Liberty and which are partially protected due to their close association with human dignity,” Bligh said Monday morning during the latest in a series of ill-tempered hearings at the committee.

If the court does not retain the ability to strike down legislation that contravenes such rights “it means that there would be no constitutional protection for basic rights like freedom of speech,” he added.

Chairman of the Knesset Constitution, Law and Justice Committee MK Simcha Rothman (center) at a hearing on Monday, February 19, 2023. (Yonatan Sindel/Flash90)

Rothman responded by insisting that if the High Court is able to strike down legislation based on the argument that the Knesset, at the establishment of the state, did limit its legislative powers through the Basic Laws, it must only be able to do so strictly according to what is explicitly written in those laws.

“That limitation should be explicit,” declared Rothman. “There is no justification for judicial review over something that is not in the Basic Laws. A situation in which the Supreme Court invents Basic Laws for itself, or inserts into the Basic Laws things that were removed from them in order to annul laws, should not be allowed.”

When Bligh asked Rothman whether he thought basic civil rights such as equality and freedom of expression would be protected after the passage of his legislation, the MK claimed that they would enjoy such protections due to basic societal agreements on such issues.

“I don’t think that the legislation excludes the possibility that the High Court can review a case of the violation of freedom of expression,” opined Rothman.

“There are cases which we will all agree on as violations of human dignity, for example if you force people to walk down the street with a bandaid over their mouths so that they can’t speak. Apart from the violation of freedom of speech, there is a violation of human dignity there.”

According to constitutional scholar Dr. Adam Shinar of Reichman University, other fundamental human and civil rights that are not enlisted in the Basic Laws include the right to due process in legal proceedings, freedom of association, and the right to religious liberty.

Monday morning’s committee hearing was once again a tempestuous and angry affair, with Knesset members engaging in the shouting-matches, insults, mutual recriminations, slurs and general incivility that has become a hallmark of the committee’s proceedings.

Likud MK Tally Gotliv speaking at a hearing of the Knesset Constitution, Law and Justice Committee, February 20, 2023. (Yonatan Sindel/Flash90)

Numerous opposition MKs were expelled from the room during the hearing, including Hadash MK Ofer Cassif who labelled Likud MK Ariel Kallner “a terrorist,” after Kallner branded Cassif “an antisemite.”

In their opening remarks, opposition MKs again denounced Rothman’s running of the committee and the legislation itself as antidemocratic, while Rothman hit back with his claims against the High Court of Justice for what he said was its undemocratic seizure of authority to annul Knesset legislation.

Rothman was interrupted almost continuously by opposition MKs whenever he tried to speak and became increasingly riled by the situation. He eventually flounced out of the room after declaring that since he was being denied the ability to properly express himself he would issue a written statement following the hearing.

And events in the committee boiled over when fiery Likud MK Tally Gotliv arrived in the committee after anti-government protestors barricaded her home, furiously denounced the demonstrators, and called for the Shin Bet domestic intelligence agency to start collecting information on the activists.

“These are animals, predators, this is the pinnacle of anarchy,” screamed Gotliv.

“You cannot come to a person’s house and tell me I can’t leave the house, you cannot violate [someone’s] privacy in the name of protest.”

Yesh Atid MK Orna Barbivay pointed out, however, that Gotliv has used extremely antagonistic rhetoric regarding the legal reforms, including accusing Supreme Court President Esther Hayut of responsibility for terror attacks, and called on the Likud MK to retract her comments.

“If you want to eradicate violence it needs to be from all quarters. You have to retract your accusations against Hayut about terrorism which started the incitement. When you talk about stopping incitement, talk to yourself first,” fired off Barbivay, a demand that Gotliv flatly refused.

The legislation under discussion would drastically require all 15 High Court justices to rule unanimously in order to strike down legislation, and also allows the Knesset to pass laws that are preemptively immune to any judicial review whatsoever.

Bligh previously said such a situation was “unprecedented” in the democratic world.

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