Justice minister asks cabinet to approve bill curbing right of judicial review for High Court

Labor opposes justice minister's efforts to reduce court's power.

September 3, 2008 22:47
3 minute read.

The cabinet will vote on Justice Minister Daniel Friedmann's bill to restrict the right of the High Court of Justice to veto Knesset legislation on the grounds that it is unconstitutional, his spokesman told The Jerusalem Post on Wednesday. Under to the proposal, the court would be restricted in the reasons it may offer for nullifying a law and the Knesset may override the court's decision even within those constraints. Friedmann first proposed the legislation in March 2007, a few weeks after being appointed minister. It met with a storm of disapproval from rights organizations, the Israel Bar Association, academics, Supreme Court President Dorit Beinisch and several retired justices including Aharon Barak, Meir Shamgar, Mishael Cheshin and Dalia Dorner. In the following months, Friedmann made changes to the proposal and presented it to the Ministerial Law Committee for approval in November. However, deliberations were immediately suspended and little more was heard of it during the past 10 months until now. According to Friedmann's spokesman, Gil Solomon, the justice minister has asked the cabinet secretariat to put the bill on the committee's agenda for next Sunday's meeting. In his explanation of the bill, Friedmann emphasized that it would for the first time have the Knesset authorize the High Court to apply judicial review to Knesset legislation. Until now, the High Court has assumed the right to examine legislation according to its interpretation of the two human rights laws, the Basic Law: Human Dignity and Freedom, and the Basic Law: Freedom of Occupation, both approved in 1992. The "limitation clause" in each of these laws states that the Knesset may not violate the rights guaranteed by them "except by a law befitting the values of the State of Israel, enacted for a proper purpose and to an extent no greater than is required." The court agreed to hear petitions alleging that certain Knesset laws did not meet these criteria. Since then, the court has nullified five laws. Friedmann is not the first senior legal authority to challenge the High Court's veto power. In 2002, a committee headed by former justice minister Ya'acov Ne'eman recommended allowing the Knesset to override the court's veto of a law if 70 MKs re-approved the law. He also recommended that only the High Court, and not the magistrate's or district courts, be allowed to veto Knesset bills. When Haim Ramon was justice minister, he drafted a bill including those two elements. But Friedmann's bill goes further. According to his proposal, the High Court would only be able to reject a Knesset law if it violates human rights or if it was not approved by the majority called for in other basic laws. Only a panel of nine justices would be able to consider nullifying a law and it would require a majority of two-thirds to actually do so. The law would remain in force for six months after the court nullified it, except for cases where this could lead to irreversible results. Finally, a majority 61 MKs could vote to override the High Court ruling on condition that no more than 56 MKs opposed the move. Friedmann's insistence on bringing the bill to the cabinet will likely trigger a coalition crisis, since the Labor Party has declared that it will defend the Supreme Court against the justice minister's efforts to curb its power. Furthermore, according to the current coalition agreement, the government may not support changes in the state's constitutional structure if any of its factions are opposed. But Friedmann has little to lose at this point. Prime Minister Ehud Olmert is due to resign shortly after the Kadima Primary in 13 days and the chances of the party forming a new government under Foreign Minister Tzipi Livni or Transportation Minister Shaul Mofaz are slim. Even if they do, Labor Party leader Ehud Barak, the key partner in any new coalition, has declared that Friedmann will not be able to continue as minister of justice in a new government. On the other hand, if the Olmert government, in its dying days, ignores the coalition agreement, Friedmann will likely have a majority for his initiative. Interior Minister Meir Sheetrit told the Post he opposed Friedmann's initiative. "If we limit the High Court's ability to interfere in legislation, the Knesset will be able to legislate laws that could harm human rights and people will have nowhere to turn," he said. "For example, as things are now, anti-religious legislation can be passed and overturned and vice versa. I hope the bill doesn't pass and I will fight it."

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