Bayit Yehudi MK Yogev seeks to strip power from Supreme Court

“This bill is based on the fact that currently there is no Basic Law that authorizes the court to annul laws.”

February 12, 2017 23:41
2 minute read.
MK MOTI YOGEV listens to a colonel during a tour of Judea and Samaria last month.

MK MOTI YOGEV listens to a colonel during a tour of Judea and Samaria last month.. (photo credit: Courtesy)

MK Moti Yogev is initiating a bill to strip the Supreme Court of powers it assumed during the “judicial revolution” of 1995. Yogev is drafting legislation that would remove from the court the ability to cancel a law it finds unconstitutional.

In 1995’s United Mizrahi Bank Ltd. v. Migdal Kfar Shitufi, the court, led by its then-president, Aharon Barak, and based on its interpretation of the newly passed Basic Law: Human Dignity and Liberty, determined that the court can cancel a law approved by the Knesset if it contradicts the Basic Law.

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Yogev’s bill is expected to be submitted to the Knesset secretariat later this week.

“This bill wishes to take away from the Supreme Court its power to annul legislation approved by the house of the people’s representatives and to restore democracy in Israel,” the Bayit Yehudi lawmaker said. “This is how things worked here until 20 years ago, and how they do in normal countries.”

In 2015, Yogev – in response to a ruling from the justices sitting as the High Court (as they do when they consider a petition, as opposed to an appeal) about razing settlers’ homes – said that a D9 armored tractor should be sent to raze the court.

After a wave of criticism, Yogev described his comments as a “bad metaphor.”

The explanatory notes of the bill suggest Israel should adopt the British model, in which the Supreme Court has the authority to point out when a normal law contradicts a Basic Law, but ultimately allows the legislature to decide whether or not to annul the normal law.

NGO Derech Chaim, which promotes legislation that is in accordance with Jewish religious teachings, reached out to Yogev recently to advance the bill and published a 30-page document explaining the evolution of judicial activism in Israel.

“This bill is based on the fact that currently there is no Basic Law that authorizes the court to annul laws,” the NGO said in a statement published on Saturday night. “The Supreme Court has given itself this authority by legal interpretation, despite the fact that when Basic Law: Human Dignity and Liberty was presented to the Knesset [in 1991], it was said that the intention was not to grant the court the authority to annul laws.”

The NGO also said that this move by the court attracted major criticism by senior law experts such as Prof. Ruth Gavison and former justice minister Prof. Daniel Friedmann.

Coalition chairman David Bitan (Likud), who supports the bill, said on Sunday that supporting it is mainly an act of protest against the Supreme Court.

“The fissure between the government, the Knesset and the Supreme Court was felt during the Amona crisis (when the West Bank outpost was evacuated at the order of court early this month),” Bitan said in an interview with Army Radio.

“Then, the government acted in a suitable way, but the court did not back its actions... Why is the judgment of the government worth less than the court’s? I felt that the division there was very wide, so I signed this bill.”

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