Netanyahu backs bill to remove High Court’s ability to strike down laws

Bid for major constitutional reform comes after justices foil government plans to forcibly deport African asylum seekers

Prime Minister Benjamin Netanyahu leads a cabinet meeting at the Prime Minister's Office in Jerusalem, April 11, 2018. (Yoav Ari Dudkevitch/POOL)
Prime Minister Benjamin Netanyahu leads a cabinet meeting at the Prime Minister's Office in Jerusalem, April 11, 2018. (Yoav Ari Dudkevitch/POOL)

Prime Minister Benjamin Netanyahu on Wednesday told fellow coalition leaders he would back a major constitutional reform that would remove the High Court of Justice’s power to strike down Knesset legislation it deemed unconstitutional.

Netanyahu is reportedly seeking to institute the “British model” of judicial oversight, which would make the High Court’s rulings on the constitutionality of laws merely advisory. The reference to Britain comes from the UK Supreme Court’s limited powers when it comes to ruling on a law’s constitutionality under the British doctrine of parliamentary sovereignty.

At Wednesday’s meeting of top ministers, Netanyahu said he had already instructed Tourism Minister Yariv Levin to draft such a bill. A statement from the Likud party sent to Israeli media after the meeting said that “another meeting of coalition leaders will be convened on Sunday for an expedited discussion in order to move the legislation forward right away.”

Kulanu party leader Moshe Kahlon, who has vowed to block any legislation curtailing the High Court of Justice’s powers, was absent from Wednesday’s meeting. Kahlon, who serves as finance minister, has, however, expressed support only for a bill specifically bypassing the court on the asylum seeker issue, as has been proposed by the Jewish Home party.

Right-wing politicians in Israel have long sought to rein in the High Court, which is among the most powerful in the democratic world. They have noted that the court accepts almost any party as having standing to appeal against laws and actions by the state, and that the court’s powers, which have grown over the years, have no clear constitutional basis. Right-wing politicians have also complained that the court’s rulings have tended to favor liberal policies and minority rights over the desires of the voting majority.

Illustrative: The High Court of Justice in session. (Miriam Alster/Flash90)

The issue came to a head in recent months with the political dispute over efforts by the government to deport thousands of African asylum seekers, possibly to countries deemed unsafe, and to incarcerate many of those refusing deportation. Bucking popular sentiment, the High Court has repeatedly overturned the government’s decisions, sparking the ire of the political right.

Netanyahu’s announcement Wednesday also caused widespread speculation that he planned to call for early elections, and was adopting what was once considered a far-right position on the High Court to ensure he would be better able to compete for right-wing voters with the main challenger on his right, Jewish Home leader Naftali Bennett.

Bennett and Justice Minister Ayelet Shaked have for months attempted to advance legislation broadly limiting the High Court’s circumvention power. The proposed legislation has not made headway. The Jewish Home leader on Wednesday said he was “pleasantly surprised” by the prime minister’s newfound support and said his right-wing coalition party would vote in favor of any version of the bill.

In Wednesday’s announcement by Netanyahu, Likud took pains to explain that it was more aggressive in curtailing the court’s powers than Jewish Home. The Likud statement quoted Levin telling Bennett earlier in the day, “You want only a pinpoint supercession clause [for the asylum seekers deportation bill], which is a weak bill. We want to advance a stronger and broader bill.”

The announcement drew excoriation from the opposition.

Labor leader Avi Gabbay called it part of the current government’s “chain of corrupt laws.”

“The law to erase the High Court of Justice is another step in a chain of corrupt laws by the Netanyahu government. We will fight against any attempt to weaken this bastion of the rule of law and of human rights in Israel. I call on every woman and man, regardless of their political affiliation, to join us in this fight,” he said in a statement.

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