At Times of Israel event, experts debate effects of override law on democracy

With the incoming government planning to enact a High Court override law, prominent Israeli legal scholars debate the faults and merits of an arrangement that would severely limit judicial review in Israel at a Times of Israel special livestream event at the Israel Democracy Institute.

Constitutional scholar Prof. Yaniv Roznai of Reichman University contends the law would allow the Knesset to override fundamental rights secured in many countries only after hundreds of years of struggle.

Roznai concedes that in theory a legislative body could be allowed the ability to overrule the courts on issues of basic rights, but argues such a framework requires a full constitutional structure including a bill of rights.

“I’m happy to adopt the judicial review mechanism of other democratic countries, but you have to bring their entire constitutional structure along with it; you can’t pick and chose items that give the government and legislature unlimited powers,” says Roznai.

Yonatan Green, an attorney with the Israel Law and Liberty Forum, strongly disagrees with his contention, points out that Israel lacks a formal constitution, asserts that the court assumed the power of judicial review without any legal authorization and that the situation in which it has “the final say” over law in the country is “unthinkable, unjustifiable and untenable.”

Prof. Moshe Koppel, founder of the conservative Kohelet Policy Forum, objected to what he said was the unchecked and unbalanced power of the Israeli High Court, which he says had decided that every issue was justiciable and that anyone can have standing to petition the court.

“I am sympathetic to the idea that there should be barriers to legislation, but how do you get from there to saying that the court can authorize itself to be a barrier to legislation. Judicial review is perfectly reasonable as long as the judicial branch is subject to checks and balances,” says Koppel.

Dr. Tamar Hostovsky Brandes of the Ono Academic College Faculty of Law takes issue with Koppel’s contention, arguing that undermining the powers of the courts is a common tactic adopted by regimes that seek to restrain democratic rights, citing the current governments in Poland and Hungary as examples.

“The type of power courts have is very different to that of governments and legislatures. I don’t recall a country where a court turned a democracy into an autocracy, but I can think of many governments which have done just that,” says Hostovsky Brandes.