Bennett, Shaked ‘counter-revolution against High Court activism' unveiled

The national debate over judicial activism has swung wildly in both directions.

Bennett and Shaked (photo credit: MARC ISRAEL SELLEM)
Bennett and Shaked
(photo credit: MARC ISRAEL SELLEM)
Education Minister Naftali Bennett and Justice Minister Ayelet Shaked on Tuesday made public the details of a “counter-revolution” to challenge decisions by the High Court of Justice.
“Today we are telling the High Court: Not everything is for you to decide,” Bennett said. “In recent years the High Court has disqualified laws and government actions too easily.”
He added that “the government should govern and judges should judge.”
Bennett and Shaked, both of Bayit Yehudi, announced in September that they would start preparing such a counter-revolution on a range of constitutional- law issues, but the details were only revealed on Tuesday.
When the Supreme Court hears petitions, as opposed to appeals, its justices sit as the High Court.
Some of the main ideas in the proposed legislation would be that the High Court could only strike down laws in rare circumstances, such as when a two-thirds majority of a full nine-justice panel would so rule.
Justice Minister Ayelet Shaked is interviewed by "Jerusalem Report" Editor-in-Chief Steve Linde at Jerusalem Post"s 2017 Diplomatic Conference, December 6, 2017.
A three-justice panel would have to decide that a law needed to be vetted by the full panel before it could even hear the issue.
Currently, a panel as small as three justices can strike down a law, and a simple majority vote renders the law null and void. However, the court traditionally employs a nine-justice panel concerning constitutional issues of great significance. Also, currently, the court president can decide on her own authority to send an issue to the full panel.
Furthermore, if Bennett and Shaked’s bill becomes law, the Knesset could override a High Court veto; this would require a 61-vote absolute majority during all three readings. The High Court would also not have the power to cancel Basic Laws or to cancel laws based on mere procedural grounds.
The court’s critics have bridled at decisions where major laws were tossed out on procedural grounds instead of the judges objecting to the substance of the legislation.
Bennett said the bill “will clearly define the borders between the branches [of government] in a balanced way.”
Shaked, a senior Bayit Yehudi MK, said, “Judicial activism is harming Israeli democracy by taking away the nation’s right to choose.” She added that the proposal would “return to the norms which were once present in Israel and clearly define the limits of judicial authority...
order will be returned out of the current judicial chaos.”
Bennett and Shaked said that their legislation, which challenges the court’s 1990s “constitutional revolution,” would restore the separation of powers between the judicial and legislative branches.
The two have sought to redefine the parameters of the balance between Israel’s democratic and Jewish principles to lean more in favor of the later.
Shaked has spoken about such a move on numerous occasions, explaining, for example, that it would authorize the court to take into account the state’s Jewish character as a primary principle in deciding issues relating to African migrants.
Until now, the question of Israel’s Jewish character has been raised before the High Court, but relegated to being a side issue.
The Knesset has already been debating the “Jewish nationstate bill” that would address Bennett and Shaked’s concerns in that arena.
Recently, the court has come under heavy fire after it struck down laws and cabinet decisions relating to holding onto terrorists’ remains as bargaining chips, illegal migrants, exempting Haredim from IDF service, protecting the residency of east Jerusalemites who had a political affiliation with Hamas, and the legality of replacing the annual state budget with a twoyear budget.
In the past, the two ministers have emphasized that it is a recognized practice worldwide for lawmakers to be able to pass laws that courts cannot strike down.
They have not mentioned that in countries like the US, where the legislative branch can override the Supreme Court, there is also usually a constitution – which Israel does not have – that acts as a permanent limit on the legislative and executive branches from overreach.
In Israel, only the High Court can function to prevent such alleged overreach.
Additional provisions of the proposed bill would include that veto-proof Basic Laws would need to pass a higher bar, to ensure they truly represent a broad consensus. The would include that Basic Laws would need to be proposed by the cabinet, the full Knesset Legal Committee, or a group of at least 20 Knesset members, instead of by an individual MK or a smaller group of them.
Zionist Union MK Tzipi Livni, a former justice minister, said the bill is Bayit Yehudi making good on its threat to “bulldoze” the Supreme Court, a play on something the party’s MK Moti Yogev once said.
“There goal is to make sure there isn’t anyone to wave a stop sign when they turn Israel into a binational, nondemocratic state,” Livni said.
Meretz faction chairman Ilan Gilon accused Bennett and Shaked of “attempts to shatter and destroy Israeli democracy...
We need a strong and independent judiciary.”
MK Yousef Jabareen of the Joint List posited that the Bayit Yehudi ministers were trying to make it easier to pass “additional extreme and bizarre legislation.”
“The job of the Supreme Court is to protect minorities and other weak groups, and there is no significant democracy without judicial oversight,” Jabareen said. “It is very dangerous for a government that passes racist and anti-democratic laws to give itself the last word over the laws’ validity.”
In the past, the Knesset was close to various compromises that would have allowed overruling the court or putting a law beyond judicial review if between 65 and 75 Knesset members passed the particular law.The rationale was that at a certain point, those numbers would require support from opposition MKs, and if the government and the opposition agreed on something, then the court should not interfere.
None of these initiatives ever made it across the legislative finish line, as there were always parts of the governing coalition that opposed the bill, or officials such as former Knesset speaker Reuven Rivlin who opposed it without a deal with the High Court itself.
Most of the parties in the current coalition are on record as being in favor of a law limiting the High Court’s powers, though it is unclear what the Likud’s and the Kulanu party’s final positions would be.
Kulanu has been a primary defender of the High Court within the coalition, but it is unclear if it will continue to defend the court after the recent deluge of rulings, including nixing future two-year budgets, a practice Finance Minister and Kulanu party chairman Moshe Kahlon supports. That said, it appears that Kulanu is unlikely to support the bill that Bennett and Shaked are proposing.
Former Supreme Court president Aharon Barak has said he does not oppose laws limiting the judiciary’s powers, provided that they are passed as part of a constitution that would also place limits on the executive and legislative branches so that the High Court would not be the only emergency check.
Barak is credited with – or criticized for – leading a judicial or “constitutional” revolution in the 1990s, by using the Basic Laws in place at the time to broaden the court’s power to strike down Knesset laws as unconstitutional.