Education Minister Naftali Bennett and Justice Minister Ayelet Shaked initiated on Thursday a “counter-revolution” to push back against recent decisions by the High Court of Justice.
The proposed assault on the court and its 1990s’ “constitutional revolution” by two of Bayit Yehudi’s top leaders, which they said would restore the proper separation of powers, has two main prongs.
First, they propose a Basic Law redefining the parameters of the balance between Israel’s democratic and Jewish principles to lean more in favor of Jewish principles.
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 related to African migrants. Until now, the question of Israel’s Jewish character has been raised before the High Court, but relegated to a side issue.Second, a new Basic Law regarding legislation would both create a mechanism for the Knesset to override the High Court if the court strikes down a law, as well as setting out special procedures for laws that the court would not have the power to strike.
Recently, the court has come under heavy fire after it struck down Knesset laws and cabinet decisions relating to 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 two-year budget.
Ironically, the press release quoted former Supreme Court president Aharon Barak where he wrote about the importance of Basic Laws and that no branch of government can have unlimited power.
Whereas Barak usually directed these principles against the Knesset, Bennett and Shaked were using his quote to show that the judiciary also needs limits.
The joint press release by the two cabinet ministers emphasized that passing laws that courts cannot strike down is a recognized practice worldwide.
They did not mention 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.
Bennett said, “In the recent period, the High Court disqualified Knesset laws and government decisions such as the legislative package for removing infiltrators, the budget law and the negation of residency of Hamas followers.
“This new situation in which disqualifying laws changed into a routine action has compelled us, the legislators elected by the public, to act to restore the proper balance between the governmental branches – and this we are doing today,” said Bennett.
Shaked said, “The Basic Law for legislation will clearly define the limits of judicial review, the legislative process, the legislation of Basic Laws and the dialogue between the courts and the Knesset. The law needs to be formulated with the broadest possible public consensus.”
Former justice minister Tzipi Livni, a Zionist Union MK, said Bennett and Shaked want to “destroy our democracy and our Supreme Court.” The time has come to stand before Bayit Yehudi’s legal bulldozer, she said.
Zionist Union MK Itzik Shmuly accused the pair of “trolling the courts.” “Only in a dark dictatorship is the Supreme Court subjugated to political gimmicks,” he said.
Joint Arab List MK Ahmad Tibi said that “the proposal is dangerous to democracy and the rule of law,” and accused the government of trampling basic rights. It would remove what is left of democracy in Israel, he said.
Bennett and Shaked’s push is far from the first time that various parties in the Knesset have entertained limiting or reducing the High Court’s powers.
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 that if the government and the opposition agreed on something, that the court should not interfere.
None of these initiatives ever made it across the legislative finish line, as there were always some parts of the governing coalition that opposed the bill or officials such as former Knesset speaker Reuven Rivlin who opposed the proposal without a deal with the High Court itself.
Most of the parties in the current coalition are on record in favor of a law limiting the High Court’s powers, though it is unclear what Prime Minister Benjamin Netanyahu’s and the Kulanu party’s final positions would be. Kulanu has been a primary defender of the High Court, but it is unclear if it will continue to defend the court after the recent deluge of rulings, including nixing future two-year budgets, an practice Kulanu party chairman (and Finance Minister) Moshe Kahlon supports.
Former Peace Now secretary- general Yariv Oppenheimer said Bennett and Shaked had “declared war on the Supreme Court and attempted to make the court toothless.”
Oppenheimer called upon Kahlon to stop Bayit Yehudi from harming the court.
Barak himself has said he does not oppose laws limiting the judiciary’s powers, provided that they are only passed as part of a constitution that would place limits on the executive and legislative branches in place of the High Court being the only emergency break.
The former Supreme Court president is credited 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 ability to strike down Knesset laws as unconstitutional.
Since that time, the national debate over judicial activism has swung wildly in both directions, depending on what issues were before the court and what coalition was in power.
The two Bayit Yehudi ministers said that moving their plan forward would be their central goal in the upcoming Knesset legislative session.