New chair of Knesset law committee: Israel’s Basic Laws are not a constitution

Far-right MK Simcha Rothman, a vocal proponent of curbing judicial authority, argues laws can’t be imbued with quasi-constitutional status without consent of citizens

Carrie Keller-Lynn is a former political and legal correspondent for The Times of Israel

Religious Zionism MK Simcha Rotיman attends a Knesset Constitution Committee meeting, June 26, 2022. (Olivier FItoussi/Flash90)
Religious Zionism MK Simcha Rotיman attends a Knesset Constitution Committee meeting, June 26, 2022. (Olivier FItoussi/Flash90)

The newly-appointed chair of the Knesset Constitution, Law and Justice Committee asserted Wednesday that Israel’s Basic Laws do not have quasi-constitutional status as they have not been ratified by citizens.

The remarks by MK Simcha Rothman, a member of the far-right Religious Zionism party, came hours before Justice Minister Yariv Levin was due to present the government’s sweeping judicial overhaul platform.

Calling the foundational Basic Laws only a “‘constitution’ in quotations marks, which was not established by the people,” Rothman told the committee that its own authority “does not include the establishment of a constitution for the state, no matter how many times the court repeats this argument.”

In 1995, the Supreme Court established its right to substantive judicial review, stating that the Basic Laws have quasi-constitutional status. The Knesset failed to draft a constitution after Israel’s founding but slowly legislated Basic Laws — some of which require a special majority of lawmakers to pass or augment — over the years instead.

A longtime advocate to constrain Israel’s Supreme Court, Rothman is behind Religious Zionism’s far-reaching judicial reform proposals, which like Levin’s expected plans seek to drastically reduce judicial authority.

A close ally of Prime Minister Benjamin Netanyahu, Levin will lead the new government’s platform to reshape the judiciary. All five of the far-right and ultra-Orthodox parties allied with Netanyahu’s Likud back the passage of an override clause, which will enable the Knesset to reinstate any law invalidated by the court as unconstitutional. They all promised to back Levin’s plans in their coalition deals with Likud.

Rothman and fellow advocates of an override clause have long argued that the ultimate sovereign in Israel is the citizenry, as expressed through its elected representatives. Critics of this stance warn that parliamentary supremacy over the courts can lead to a tyranny of the majority.

The Religious Zionism MK has said that his antipathy to the judiciary’s activist powers is academic and described them as a sickness at the core of problems in the judicial system. Other members of his far-right, pro-settlement party have railed at the court’s positions on West Bank settlements and illegal outposts.

Prime Minister Benjamin Netanyahu with Minister of the Interior and Health Aryeh Deri (left), and Justice Minister Yariv Levin (right) during the swearing-in ceremony of the new Israeli government at the Knesset on December 29, 2022. (Yonatan Sindel/Flash90)

Netanyahu has for years pushed to overhaul the judiciary, having failed in 2015 to secure legislative changes that would have enabled greater political control over judicial appointments and raised the number of Supreme Court justices required to deem a law unconstitutional.

Calls for judicial change gained momentum in Likud after criminal investigations were opened against Netanyahu in 2016, with the party’s supporters growing increasingly mistrustful of the judicial system as the premier was put on trial in three corruption cases. Netanyahu steadfastly maintains his innocence, claiming without evidence that the charges were fabricated by a politically-motivated police force and state prosecution, backed by left-wing politicians and a leftist media, and enabled by a weak attorney general.

Ultra-Orthodox Jews demonstrate against a court ruling that could require them to serve in the army, like their secular counterparts. The Jerusalem demonstration was organized by a particularly hardline group known as Eda Haredit, September 17, 2017. (Ahmad Gharabli/AFP)

New Knesset committee chairs do not generally deliver opening remarks and Rothman comments set a tone for a committee that is intended to play a critical role in preparing and facilitating legislation to curb judicial powers.

Seated at the head of the committee table, Rothman said that even the Torah required the consent of the Jewish people before becoming binding upon them.

“Even the highest values, which came from the highest source, are not binding without the consent of the people,” the Religious Zionism lawmaker said.

“Only when we finish our work here in the Constitution Committee and in the Knesset, and the sovereign, who is the people, decide and declare that the work of preparing the constitution is over and adopt our proposal, will a constitution be established for the State of Israel,” he added, implying that a national referendum would be a necessary precondition for imbuing laws with constitutional authority.

In addition to the override clause, coalition parties have discussed raising the bar for justices to invalidate laws; cementing political control over the judicial appointment process; changing the retirement age for judges; making government legal advisers answerable to political and ministry authorities rather than the attorney general; and splitting the attorney general’s role so the government’s legal adviser and head of the state criminal prosecution service are separate posts, and possibly also the solicitor general for civil matters.

Nearly two months after being sworn in and a week after giving its confidence to the new government, the Knesset approved the creation of 11 additional permanent committees on Wednesday, a key step towards beginning the parliament’s core legislative work.

Attorney General Gali Baharav-Miara attends a conference in Tel Aviv, July 5, 2022. (Avshalom Sassoni/Flash90)

Responsible for preparing legislation and overseeing government bodies and issues of interest under their topical purview, committees carry out much of the important daily grind of the Knesset’s work. Including the panel led by Rothman, the 12 committees on Wednesday voted to allow the Knesset to begin its regular schedule and end its temporary set up under the Arrangements Committee.

Following a precedent set by the last government, the new coalition pushed a per-party division granting it greater control over the committees. Although Yesh Atid-led opposition MKs initially grumbled, the division was quickly accepted and they will take their committee seats, rather than boycott the panels as many in Netanyahu’s coalition did while serving in the opposition.

“You are eating the oatmeal that you cooked,” Arrangements Committee chair Likud MK Ofir Katz said while presenting the committees for Knesset approval, in comments directed towards Yesh Atid’s faction whip Boaz Toporovsky. “You decided to run us over.”

“Now you’re receiving a division based on what you created, the key is the same key,” Katz added.

Likud MK Ofir Katz chairs a special committee in the Knesset, December 25, 2022. (Yonatan Sindel/Flash90)

The Knesset House Committee, critical for procedural and faction-related issues, replaced the Arrangements Committee, with Katz approved as the new chair.

Shortly after the Arrangements Committee submitted its recommendations for panel chairs, Netanyahu released a statement backing disgruntled Likud MK David Bitan to head the Economic Affairs Committee.

United Torah Judaism lawmaker Moshe Gafni will retake control of the Finance Committee, which he has long held and currently chairs in its temporary format. Fellow party MKs Yaakov Asher was elected to chair the Interior Committee and Yisrael Eichler the Labor and Welfare Committee. The Education Committee went to Shas MK Yosef Taib.

The Foreign Affairs and Defense Committee did not receive a specific recommendation for its chair.

Four committee chairmanships went to the opposition. Yisrael Beytenu MK Oded Forer will take the Aliyah and Absorption Committee, which is a potential home for controversial legislation to change Israel’s Jewish immigration policy — changes that Yisrael Beytenu stridently opposes.

The State Control Committee, which must go to the opposition, will be headed by Yesh Atid MK Mickey Levy, who was formerly Knesset speaker. The Science and Technology Committee will be headed by Hadash-Ta’al leader Ayman Odeh, while the Committee on the Status of Women will be chaired by National Unity MK Pnina Tamano-Shata.

Two additional deputy Knesset speakers are expected to be chosen next week by the Likud party, said Katz.

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