Herzog’s judicial proposal would largely scrap plans for High Court override

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

Judicial review under President Isaac Herzog’s plan would be subject to some new restrictions, but those restrictions would be far less stringent than under the government’s current proposals.

The High Court of Justice would be able to strike down Knesset legislation through a two-thirds majority of an 11-justice panel. The government’s bill calls for an 80 percent majority of all 15 High Court justices.

Herzog’s plan does not include any provision for a High Court override by the Knesset, whereas the government’s current legislation allows the Knesset to make any legislation preemptively immune from judicial review by a vote of just 61 MKs, and to relegislate legislation struck down by the court with the same majority.

The president’s plan proposes, however, to enshrine in a Basic Law that would not be subject to judicial review an arrangement for military and national service. This would essentially allow the Knesset to enshrine in the constitution the right of ultra-Orthodox yeshiva students to gain exemptions from IDF service.

The ultra-Orthodox political parties have been implacably insistent that an override clause be included in the judicial overhaul to guarantee that the community’s young men need not enlist in the IDF, and Herzog’s proposal is designed to address the issue without allowing the Knesset to override the High Court on other issues and rights.

The High Court would continue to exercise judicial review over rights derived from Israel’s Basic Law: Human Dignity and Liberty, even if not explicitly enumerated in that law.

The government’s current bill would prohibit the court from doing so, leaving unprotected basic rights such as freedom of expression and freedom of religion.

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