PM consults with former Supreme Court chief over court override bill

In meeting with Aharon Barak — whose judicial activism so infuriated the right — Netanyahu says he is determined to pass law regulating Knesset-High Court relations

Former Supreme Court chief justice Aharon Barak speaks at a conference at the Interdisciplinary Center in Herzliya on January 2, 2018. (Flash90)
Former Supreme Court chief justice Aharon Barak speaks at a conference at the Interdisciplinary Center in Herzliya on January 2, 2018. (Flash90)

Prime Minister Benjamin Netanyahu met Saturday with former Supreme Court President Aharon Barak, in a bid to assuage fears that he intends to hobble the court with new legislation, Hadashot news revealed on Sunday

According to the report, the meeting with Barak, a symbol of the power of the court, was meant to underline Netanyahu’s commitment to the justice system in general and the Supreme Court in particular, with the prime minister said to be asking for advice on legislation to determine the relationship between the court and the Knesset.

The move came as the prime minister’s coalition partners remain deeply divided over whether, and how, to limit the High Court’s power to override Knesset legislation that it sees as unconstitutional.

Sources close to Netanyahu said he remained determined to pass Knesset supercession legislation but wanted to do so within the framework of a law that determined the proper relations between the two arms of government.

A Channel 10 News report said Netanyahu also intends to try to revive other legislation previously struck down by Supreme Court.

The choice of Barak was symbolic. As president of the Supreme Court from 1995 to 2006, he raised the ire of right-wingers by championing an active judiciary that intervened in a range of highly sensitive Knesset decisions relating to Israeli control of the West Bank and Gaza Strip, issues of religion and the role of religion in the public space.

Barak declined a Times of Israel request to comment.

Justice Minister Ayelet Shaked speaks at a conference hosted by the Makor Rishon newspaper and the Israel Democracy Institute in Jerusalem, March 11, 2018. (Yonatan Sindel/Flash90)

The right-wing Jewish Home Party, which holds the justice portfolio, has long campaigned for clipping what it regards as the overly liberal court’s wings — the current Justice Minister Ayelet Shaked has succeeded in having several conservative candidates appointed to the Supreme Court bench.

The idea of legislating to alter the balance between the judicial and executive arms of government has gathered steam lately, particularly after the court’s recent ruling blocking deportations of African migrants.

Netanyahu told Sunday’s cabinet meeting that a debate about the proposed High Court override was “very important, very serious, and is being treated as such.”

But he stressed, “we want to reach balanced and correct solutions to responsibly deal with the challenges of the present and the future.”

In a short presentation, Attorney General Avichai Mandelblit suggested an alternative to sweeping legislation — allowing the Supreme Court to overrule Knesset laws by a majority of six out of nine judges and Knesset members to pass replacement legislation by a majority of 70 out of 120.

Attorney General Avichai Mandelblit speaks at a conference in Tel Aviv on February 15, 2018. (Flash90)

The prime minister reportedly rejected the proposal, saying that a Knesset law should only be shot down by a unanimous decision by the judges.

Jewish Home Party leader Naftali Bennett also opposed the suggestion, saying it would only encourage the court to declare Knesset laws as unconstitutional.

The meeting ended without agreement, although Channel 10 News later reported that Netanyahu and Bennett had agreed to form a team of ministers that would examine the possibilities, together with the attorney general and other legal bodies.

Public Security Minister Gilad Erdan of Likud told Army Radio before the coalition meeting that there was a “serious problem,” and that “the balance between [the judiciary and legislative] authorities has been upset,” with the right of the public to elect its leaders to govern having been undermined by a series of High Court rulings over the past year.

“As a nationalist camp that was chosen many times to lead the country it is our duty to correct and… to make a change in this area, in the balance between ruling authorities. If there is a subject on which it is justified to go to elections, this is the subject,” Erdan told the radio station.

Finance Minister Moshe Kahlon leads a faction meeting of his Kulanu party at the Knesset on March 5, 2018. (Hadas Parush/Flash90)

However, skipping the cabinet meeting and speaking outside of it, Moshe Kahlon, leader of the coalition Kulanu party, said that while he would agree to limit the High Court’s powers on the specific subject of deportations, he would not support a Knesset supercession clause of a more general nature.

“Any solution that relates to the problem of the [African] infiltrators, we will support. All the other whims are simply not on the agenda,” he said.

Netanyahu needs Kahlon’s support to pass any supercession legislation. A meeting Sunday between the two ended without agreement, Hadashot news reported.

Netanyahu is also expected to meet with current Supreme Court President Esther Hayut on the subject, the Ynet news site reported Sunday.

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