Government okays Supreme Court restrictions

Justice Minister Friedmann's plan to restrict High Court's authority by allowing it to re-legislate 'unconstitutional' laws approved 13-11.

By HERB KEINON, DAN IZENBERG
friedmann 224.88 AJ (photo credit: Ariel Jerozolimski [file])
friedmann 224.88 AJ
(photo credit: Ariel Jerozolimski [file])
By a one-vote margin, the government on Sunday voted in favor of Justice Minister Daniel Friedmann's proposal to limit the authority of the Supreme Court by giving the Knesset the right to re-legislate a law that the court rules unconstitutional. The proposal passed by a 13-12 vote, with one abstention. At the end of the debate Prime Minister Ehud Olmert lashed out at Defense Minister Ehud Barak, who said the new bill ran counter to coalition guidelines. Olmert, in his fiercest attack yet on a government minister, said the Labor Party itself had in a serial manner been violating the coalition agreement. Voting for the resolution were the four Shas ministers, the two Gil Pensioners Party ministers, and Kadima's Olmert, Friedmann, Vice Premier Haim Ramon, Tourism Minister Ruhama Avraham-Balila, Immigrant Absorption Minister Eli Aflalo, Environmental Protection Minister Gideon Ezra and Construction and Housing Minister Ze'ev Boim. Opposed were all seven Labor Party ministers, Finance Minister Ronnie Bar-On from Kadima, and the four Kadima primary contenders, Foreign Minister Tzipi Livni, Transportation Minister Shaul Mofaz, Public Security Minister Avi Dichter and Interior Minister Meir Sheetrit. Kadima's Ya'acov Edri, minister of Negev and Galilee Development, abstained. "This is a turning point and an important step in strengthening the ability of the government to govern and improving the status of the Knesset," Friedmann said in a statement welcoming the vote. "At the same time, the bill does not cause harm to the Supreme Court, but strengthens it instead, in that for the first time in the history of the state, the court has the legitimacy to nullify laws that include a 'limitation clause.' At the same time, we must stress that despite this, the primacy of the Knesset is maintained by allowing it to examine the reasoning of the Supreme Court [in nullifying a law.]" The High Court has assumed the right to examine legislation according to its interpretation of the two human-rights laws - Basic Law: Human Dignity and Freedom and 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." According to Friedmann's proposal, the Knesset would be able re-legislate a law that was ruled by the court to be unconstitutional if a majority of 61 MKs voted in favor, and there were at least five more MKs voting in favor of the legislation than against. The law would then remain unchallenged on the statute books for at least five years. At the end of five years, the law could again be challenged in the High Court of Justice. Livni said that while she supported limiting the court's authority to overturn laws, she was in favor of "preserving the balance on the matter" that was achieved in the Ne'eman Committee, which called for a minimum majority of 70 MKs to override a High Court decision to nullify a law that violated human rights. Livni said the proper balance was not reached in the current proposal, which made it too easy to re-legislate the law. Mofaz said since what was at stake was a cardinal issue, it needed a more in-depth discussion both in the government and among the public. He also said he supported the Ne'eman Committee recommendation because it necessitated a majority of 70 Knesset members to re-legislate a law. Now that the bill has been approved by the cabinet, it will be presented to the plenum for approval in first reading. Assuming that it is approved, it will be referred to the Knesset Law Committee for preparation for second and third (final) reading. Ramon told Israel Radio he had proposed increasing the necessary Knesset majority to 65 or 66 votes rather than Friedmann's proposal of 61. He said had his suggestion been accepted, the cabinet majority in favor of the bill would have been much higher. Ramon also said that when he first became justice minister at the beginning of the current government's term, Supreme Court president Aharon Barak, who was on the eve of retirement, had asked him to initiate a bill calling for a majority of 70. Barak was not averse in principle to legislation that would restrict the High Court's power, Ramon said. He also said the High Court had assumed the authority to nullify Knesset legislation even though no law gave it that right. Furthermore, he pointed out that if the Knesset wanted to, it could repeal Basic Law: Human Freedom and Dignity and Basic Law: Freedom of Occupation altogether by a majority of 61 votes. Retired Supreme Court deputy president Mishael Cheshin said he was extremely discouraged by the government's decision. The requirement of a 61-MK majority was meaningless, he maintained, because any government could round up that number of MKs easily since it needed 61 MKs to govern in the first place. Cheshin said 80 MKs should be the minimum number required to override a High Court decision nullifying a law that violated human rights. He warned that if the Friedmann bill were indeed passed, human rights in Israel would have no protection. He also dismissed Friedmann's claim that the bill was meant to provide the government more power to govern and increase the status of the Knesset. No one had the right to violate the human rights of Israeli citizens and residents, whether it was the government, the courts or the Knesset, Chesin said.