Rivlin voices support for Basic Law on legislation

Opposition calls Neeman’s proposal allowing majority of 65 MKs to undo Supreme Court cancellation of laws undemocratic.

By LAHAV HARKOV, JOANNA PARASZCZUK
Israeli Supreme Court 311 (photo credit: REUTERS/FILE)
Israeli Supreme Court 311
(photo credit: REUTERS/FILE)
Knesset Speaker Reuven Rivlin threw his support behind Justice Minister Yaakov Neeman’s memorandum on a proposed Basic Law on Sunday, as opposition parties called the measure irresponsible and a danger to democracy.
Based on recommendations by a government-appointed public committee headed by Neeman, the proposed Basic Law: Legislation establishes the authority of the Supreme Court to annul laws – and stipulates that the Knesset can still pass a law even if the court overturned it.
For that to happen, the law must be brought back to the Knesset to pass three readings by a special majority of 65 Knesset members. The bill stipulates that such a law could remain in force for a maximum of five years, after which the Knesset could extend it for a similar period.
Rivlin said he would make sure that the Basic Law, which provides legal clarifications of various legislative functions and regulates the relationship between the Supreme Court and the Knesset, is brought to a vote in the Knesset’s summer session.
According to the Knesset speaker, such a law is a necessity, because the Knesset and the Supreme Court have been on a “collision course” for decades. Rivlin expressed hope that a Basic Law would stop the conflicts between the legislative and judicial branches of government.
Rivlin plans to meet with Supreme Court President Asher Dan Grunis to discuss the bill and find a version that is agreeable to both sides.
In a blow to efforts to pass the bill, Knesset legal adviser Eyal Yinon announced that he deeply opposes the legislation.
He warned that it would deepen conflicts between the legislative and judicial branches and harm Israel's image abroad.
Defense Minister Ehud Barak also denounced Neeman’s proposal, calling for the government and the courts to hold a dialogue before legislating the connection between the Knesset and the Supreme Court.
“A law circumventing the Supreme Court does not solve any problems,” he said.
Labor leader Shelly Yacimovich slammed the proposal, saying that the government should have proposed a Basic Law that would guarantee social rights.
“Neeman has proposed a bill that paves the way to wild, irresponsible legislation and increased conflict,” Yacimovich said. “His memorandum empties the Supreme Court of its content.”
MK Shlomo Molla (Kadima) said the proposed Basic Law is populist, anti-democratic, harms the rule of law and chips away at existing Basic Laws.
According to Meretz leader Zehava Gal-On, Neeman misread the Passover Haggada, and does not understand the meaning of the Festival of Freedom, because the bill claims to protect freedoms, but actually violates them.
“The High Court cancels the Knesset’s laws and decisions that violate human rights.
Neeman’s proposal gives unlimited power to the majority, and allows violations,” she explained, calling for “all parties who fear for democracy” to form a united front against the bill.
Civil rights NGO The Legal Forum for the Land of Israel said on Sunday that they welcomed Neeman’s bill, but the proposed legislation should be more stringent.
Legal Forum director attorney Nachi Eyal said the Basic Law should stipulate that laws could only be struck down by a unanimous High Court of Justice ruling, and that such rulings should only be made with great reluctance.
“The fact that the High Court has taken upon itself to annul Knesset laws without recourse to elected officials is a badge of shame for this country and for democracy and it is time to correct this distortion,” Eyal added.
Though Israel does not have a formal constitution, its Basic Laws are constitutional in nature, and Neeman said the proposed Basic Law: Legislation was intended for inclusion in a future Israeli constitution.
In his memorandum, Neeman pointed out that even though passing legislation is an integral part of the working of the state, there is no formal regulation of the legislative process. Instead, those regulations are only set out in the Knesset’s Rules of Procedure.
The proposed Basic Law also stipulates that the Knesset is the legislative authority and by that virtue has the power to enact laws, a determination that is not yet enshrined in Israel’s Basic Laws, Neeman’s memorandum said.
Further, the proposed law stipulates that only the High Court will have the authority to annul Knesset-enacted laws.
Initially, a panel of three justices would rule whether doubt exists over the constitutionality of a law. If the panel decided doubt did exist, a panel of nine justices would examine the matter. To strike down a law, there must be a majority ruling from that nine justice panel.
Currently, the High Court’s authority to undertake judicial review of laws is not formally enshrined in law but is a result of the 1992 passage of the Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation, part of the so-called “Constitutional Revolution” initiated by former Supreme Court president Aharon Barak.
Those two Basic Laws expanded the court’s power to strike down Knesset legislation if a majority of justices deemed it in violation of those laws.
In February, the High Court invoked the Basic Laws to overturn the Tal Law, when a panel of six justices against three voted that the law violated the so-called “limitations clause” of the Basic Law: Human Dignity and Liberty, which allows the law to be infringed by new laws “befitting the values of the State of Israel, enacted for a proper purpose and to an extent no greater than required.”
The proposed Basic Law: Legislation also sets out who is permitted to submit bills for laws and the process by which those bills are passed into law.
In addition, the draft law proposes modifying the way Basic Laws are legislated, including that only the government or a Knesset committee may table bills for Basic Laws.
Currently, any Knesset member can propose such a bill.
Further, Basic Laws would have to undergo four Knesset readings, instead of the current three. The fourth reading would require a special majority of 65 MKs.
If passed, the Basic Law will also have super-legal status similar to that of other Basic Laws, in that its provisions cannot be canceled or altered except by another Basic Law; neither can the law be suspended or altered by Israel’s Emergency Regulations.
Attempts to enact such a law in the past have failed.
A Basic Law: Legislation was first proposed in 1975, by then-Justice minister Haim Zadok – but that proposal fell through when Zadok failed to garner government support for it.
In 1993, then-Justice minister David Libai proposed the Basic Law again, but despite its passing a first reading in Knesset, it failed its second and third readings.
In 2000, the then-chairman of the Constitution, Law and Justice Committee, MK Amnon Rubinstein, proposed the law, but it failed its first reading.
Gil Hoffman contributed to this report.