Balancing power

Judging from the reactions of opposition lawmakers one would think that a new legislative initiative called Basic Law: Legislation is downright undemocratic.

Meretz leader Zehava Gal-On quipped that Justice Minister Yaakov Neeman, the driving force behind the bill, 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 and called for “all parties who fear for democracy” to form a united front against the bill.

Meanwhile, Labor chairwoman Shelly Yacimovich declared that Neeman’s memorandum “empties the Supreme Court of its content.”

“The justice minister has chosen to present a bill that paves the way for wildly irresponsible legislation that will increase dissent, bickering and clashes,” she said.

Several Kadima MKs also expressed their opposition to the bill. For instance, Yoel Hasson called it “an anti-democratic whim of a government hostile to the rule of law.” But it seems that these lawmakers’ opposition to Basic Law: Legislation has less to do with substantive criticism and more to do with political expediency.

If passed, Neeman’s proposal would actually strengthen the Supreme Court and more carefully delineate its powers vis-à-vis the Knesset, ending decades of bickering and tension between lawmakers complaining of the hyper activism of the Supreme Court and champions of a strong judiciary warning of the tyranny of the majority.

If passed in its current form, Basic Law: Legislation would for the first time give quasi-constitutional status to all the basic laws such as Basic Law: Human Dignity and Liberty, which protects human rights – particularly of the minority, and Basic Law: Freedom of Occupation, which protects the right of every citizen to freely engage in the occupation of his or her choice.

Previous attempts to develop anything resembling a constitution have failed miserably due to the deep rifts in our society between religious and secular; Jew and non- Jew; libertarians and interventionists.

Neeman’s Basic Law: Legislation – now in pre-bill memorandum form – would also anchor in law former chief justice Aharon Barak’s “constitutional revolution.”

The majority of a panel of nine Supreme Court justices would be empowered by law to annul Knesset laws which are interpreted by the court to contradict one of the basic laws. Currently, there is no law that upholds the court’s power to exercise judicial review of legislation. This is a major lacuna which has resulted in incessant bickering and tension between the judicial and legislative branches of government.

The aspect of Basic Law: Legislation which is being most widely attacked by opposition MKs is a clause that would empower a super majority of Knesset members to overrule a Supreme Court decision to annul a Knesset law. The Knesset would be allowed to bypass the Supreme Court if at least 65 MKs vote in favor in three separate Knesset readings. And renewal of the annulled law will remain in effect for just five years, after which time it can be renewed for a similar period of time.

In a populist attempt to present itself as a champion of a free and independent judiciary fighting against a tyranny of the right-wing majority in the Knesset the opposition has attacked this clause as “anti-democratic.”

But opposition MKs have conveniently forgotten to mention that back in 2004 former chief justice Barak, perhaps the best known and most articulate proponent of judicial activism, actually supported almost identical legislation. The only substantial difference was that 70 MKs – not 65 – would be needed to overrule a Supreme Court decision to knock down a Knesset law on the grounds it contradicted a basic law.

With most MKs not even present at the majority of votes in the plenum, it will be no easy matter to garner 65 MKs in three separate votes. Although he has not voiced his opinion on Neeman’s memorandum, it seems unlikely that Barak would oppose it just because of five MKs. Minister-without-portfolio Bennie Begin (Likud) has said that raising the number to 70 MKs is necessary in order to protect the autonomy of the Supreme Court.

The question of 65 or 70 MKs is a relatively minor matter that can easily be negotiated. It is no reason to scrap a bill that could take a major step toward improving the balance of power between the Supreme Court and the Knesset.