The Knesset 390 (R).
(photo credit: Ammar Awad / Reuters)
Judging from the reactions of opposition lawmakers one would think that a new
legislative initiative called Basic Law: Legislation is downright
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
Meanwhile, Labor chairwoman Shelly Yacimovich declared that
Neeman’s memorandum “empties the Supreme Court of its content.”
justice minister has chosen to present a bill that paves the way for wildly
irresponsible legislation that will increase dissent, bickering and clashes,”
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.
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.
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
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
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.