Ohana says coalition could set up ‘constitutional court’ to bypass judicial oversight

Knesset speaker says new body would ‘deliberate values… from the world of ideology’; is accused of trying to cow justices as they mull striking down law curbing judiciary powers

Knesset Speaker Amir Ohana holds a press conference at the Knesset, September 6, 2023. (Yonatan Sindel/Flash90)
Knesset Speaker Amir Ohana holds a press conference at the Knesset, September 6, 2023. (Yonatan Sindel/Flash90)

Prime Minister Benjamin Netanyahu’s ruling coalition is exploring the idea of establishing a new judicial body that would effectively bypass the High Court of Justice, Knesset Speaker Amir Ohana said, floating the latest in a series of radical proposals as the government looks to weaken judicial oversight.

The remarks by Ohana, published Thursday in the Yedioth Ahronoth daily, came days after he suggested the coalition may not accept a High Court decision invalidating the first piece of legislation to be passed in the government’s judicial overhaul, in comments later backed by Prime Minister Benjamin Netanyahu.

The court this week held a hearing on petitions against the law, which eliminates the court’s ability to use the standard of reasonableness to gauge government and ministerial decisions, though no decision is expected for weeks or even months.

Referencing his pledge that the Knesset “won’t submissively allow itself to be trampled” by a potential ruling striking down the law, Ohana said coalition officials are mulling several ideas for “dealing with this trampling,” including setting up a new court to handle “constitutional matters that exist despite the fact that Israel has no constitution.”

It was not clear what basis this hypothetical court would use to judge issues. Israel’s jurists rely on the country’s series of Basic Laws as a de facto constitution, a position many in Netanyahu’s government have argued against.

Ohana suggested the mooted court, which he said could also be composed of non-jurists “from a variety of fields,” would “deliberate values, worldviews and concepts from the world of ideology.”

“The judges have no advantage” over other people, he added.

“This is one of many bills that definitely will be discussed if needed,” he said in comments seen as a warning to the bench.

Supreme Court President Esther Hayut and all 14 other justices hear petitions against the ‘reasonableness law’ at the court in Jerusalem on September 12, 2023. (Yonatan Sindel/Flash90)

Ohana, a member of Netanyahu’s Likud party, did not specify what would happen to the High Court if the proposed “constitutional” court was formed, nor what the extent of the latter’s powers would be.

The newspaper, which on Friday will publish a full interview with the lawmaker, said the new court would not undercut the Supreme Court, which is Israel’s top appellate court. The High Court, which is made up of the same justices, hears petitions against laws and government decisions.

“I hope that the court will understand the limits of its power and refrain from this crisis,” said Ohana. “No branch [of government] in a democracy is ‘all powerful’ and the Knesset and government understand this well. I hope the court understands this.”

Ohana’s proposal came as the coalition has struggled to advance controversial legislation that would give the government near total control of a key panel that appoints judges, one of a series of planned laws that will siphon off the court’s powers and put its independence in doubt.

Members of the coalition have refused to say if they will respect a High Court ruling striking down such legislation, which could mean an unprecedented tug-of-war between the government and judiciary.

Likud MK Danny Danon, who has been openly critical of the coalition on numerous issues, slammed Ohana for putting forward the “constitutional” court idea but did not expressly object to its goal of getting around a High Court decision opposed by the government.

“You don’t need to throw out ideas before holding deliberations,” Danon told the Ynet news site. “I don’t know the details, but we will not be doing anything in a rushed manner.”

“Even if the court decides to invalidate a Basic Law and we have a parliamentary response, we’ll do this only after consideration. These are significant issues,” Danon added.

Right-wing Israelis, one carrying a sign showing Supreme Court President Esther Hayut and the slogan “The elite takes over,” attend a rally in support of the government’s judicial overhaul, outside the Supreme Court in Jerusalem, on September 7, 2023. (Chaim Goldberg/Flash90)

Fellow Likud MK Tally Gotliv said she “understood” Ohana but called his suggestion irrelevant in the absence of a constitution.

Welfare Minister Ya’akov Margi of the ultra-Orthodox Shas party also rejected Ohana’s proposal, insisting “no one wants to replace the High Court.”

“I do not accept this and neither does he,” Margi claimed to Ynet.

Margi also addressed calls by some coalition members not to obey the High Court if it nullifies the reasonableness law.

“Woe upon us if that happens. We are a country of laws. I want to believe that the High Court judges see and hear the voices, and at this time we need to bring about calm,” he said.

The Movement for Quality Government in Israel, one of the petitioners against the reasonableness law, accused Ohana of trying to intimidate the judges.

“The citizens of Israel will not let Ohana and his emissaries turn Israel into a dictatorship,” the group said, while calling on Ohana to instead legislate a constitution “in the spirit of the values of the Declaration of Independence.”

The Kaplan Force protest group claimed Ohana was acting like “a small and irritable child who won’t play if he doesn’t win.”

“He wants to decide the laws, the judges and the rulings,” the protesters said.

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