Shaked, Bennett propose constitutional law to circumvent Supreme Court

Shaked, Bennett propose constitutional law to circumvent Supreme Court

Jewish Home leaders say Basic Law would allow Knesset to re-legislate bills struck down by top court; comes after court disqualifies new laws in series of rulings

Marissa Newman is The Times of Israel political correspondent.

Jewish Home leader Naftali Bennett (R) with Jewish Home MK and Justice Minister Ayelet Shaked in the Knesset plenum, on November 16, 2016. (Yonatan Sindel/Flash90)
Jewish Home leader Naftali Bennett (R) with Jewish Home MK and Justice Minister Ayelet Shaked in the Knesset plenum, on November 16, 2016. (Yonatan Sindel/Flash90)

Justice Minister Ayelet Shaked and Education Minister Naftali Bennett on Thursday night unveiled a plan to bolster Israel’s constitutional laws at the expense of the Supreme Court. The two ministers, from the Orthodox-nationalist Jewish Home party, said their initiative would “restore the balance” between the legislature and judiciary, while critics charged it would weaken the court, several of whose recent rulings have frustrated the government.

The plan includes two new Basic Laws, the so-called Jewish state bill, which is currently being debated in Knesset, and a second Legislation Basic Law, that would allow Israel’s parliament to circumvent the twin High Court of Justice and Supreme Court in the event justices disqualify Knesset legislation.

The latter “will include a paragraph allowing the Knesset to redraft and re-legislate a law after it was struck down by the court, under certain conditions,” according to a statement the two ministers issued. “It will also include clauses related to the drafting of Basic Laws, and the fact that these are not subject to the judiciary review custom in many countries around the world.”

The proposal comes on the heels of a series of High Court rulings that unraveled existing Knesset legislation, including on its revised IDF ultra-Orthodox enlistment bill, its policies on detaining African migrants, the two-year budget, a plan by the finance minister for third-apartment taxation, and the revocation of permanent residency status of four Palestinian parliamentarians from East Jerusalem with ties to the Hamas terror group a decade ago.

“Lately, the High Court of Justice has disqualified Knesset legislation and government decisions such as the draft for the deportation of illegal immigrants, the budget law, and the revoking of citizenship from members of Hamas,” said Bennett in a statement.

“This new situation, in which canceling laws had become routine, will force us, publicly elected legislators, to act and restore the needed balance between the authorities, and that is what we are doing today,” he added.

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

Shaked said the new laws “will clearly define the limited of judiciary review, the legislative process — including that of Basic Laws — and the dialogue between the court and Knesset. The law must be passed with as large a consensus as possible.”

In their joint statement, the two said they will present the plan to coalition leaders on Sunday.

The plan was being presented as completing “the establishment of a Constitution for Israel.” The Jewish state has no formal codified constitution, relying instead on a series of constitutional Basic Laws.

Some opposition MKs on Thursday fiercely criticized the proposal.

“It isn’t a constitution they seek, but rather the destruction of democracy and the Supreme Court,” said Zionist Union MK Tzipi Livni, a former justice minister.

Zionist Union MK Tzipi Livni at a faction meeting in the Knesset on January 16, 2017 (Hadas Parush/Flash90)

The Supreme Court has frequently irked right-wing and Orthodox politicians with an interventionist ethos pioneered by Aharon Barak, court president from 1995 to 2006.

Barak expanded the range of issues the court dealt with, viewing both the need to protect individual rights against other arms of the law, and to keep a watchful eye on government, as key.

The court’s defenders say its powers have developed to fill the void left by a Knesset that is famously unable to settle key questions of law and society and that frequently avoids deciding on issues of religious freedom, civil liberties or the rights of Palestinians.

Shaked last month accused the High Court of Justice of degrading Israel’s Jewish character, attacking the bench for a ruling against the government’s policy of indefinitely jailing asylum-seekers who refuse deportation. Speaking at a Tel Aviv conference of the Israel Bar Association, Shaked said that the High Court decision “did not see the preservation of a Jewish majority [in Israel] as a value worth being weighed.”

The government, meanwhile, has vowed to pass Likud MK Avi Dichter’s Jewish State bill into law when the Knesset reconvenes in October. Dichter’s Jewish State bill, for the first time in Israeli law, would enshrine Israel as “the national home of the Jewish people.” If passed, the law would become one of the Basic Laws. The bill was approved in its preliminary reading in May.

Times of Israel staff contributed to this report.

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