Israel's Rothman, Kariv propose combined model for judicial review

Some criticized the lack of tools to ensure compliance in the judicial review system.

 The cabinet meeting in the Knesset on January 22, 2023. (photo credit: KOBI GIDEON/GPO)
The cabinet meeting in the Knesset on January 22, 2023.
(photo credit: KOBI GIDEON/GPO)

After two models for judicial review, including a new "British model," were presented by chairman MK Simcha Rothman to members of the Constitution, Law, and Justice Committee at the Monday morning session, the Religious Zionist MK and Labor MK Gilad Kariv discussed combining strong and soft judicial review powers into a third combined model.

The British model, also called the Yisrael Beytenu model, proposes a more informal process of judicial review. Instead of the High Court of Justice striking down a law deemed in contradiction with Basic Laws, as in the current system, the court declares the legislation incompatible.

The High Court president would notify the Prime Minister and Knesset speaker of the declaration. The declaration, made with the support of at least three judges, would be non-binding and would allow the legislature to correct the mistakes.

The only situation in which the court would be allowed to strike down legislation as if it was not accepted by the "required" majority and a number of readings.

Kariv criticized the lack of tools to ensure compliance in this system, saying that it "cannot end with a statement transferred to the speaker of the Knesset. In Britain, there is a corrective order that does not require legislative procedures."

Rothman also presented an amended bill for the first model, which had been altered following discussions in the committee.

 THE KNESSET Constitution, Law and Justice Committee, headed by MK Simcha Rothman (center), holds a recent meeting.  (credit: YONATAN SINDEL/FLASH90) THE KNESSET Constitution, Law and Justice Committee, headed by MK Simcha Rothman (center), holds a recent meeting. (credit: YONATAN SINDEL/FLASH90)

Previous versions of the bill would have restricted judicial review to situations in which an extended bench of 15 justices unanimously agreed that a law was in violation.

Israel's judicial review mechanisms

In line with Rothman's statement on Sunday that the unanimity restriction would be eased, the revised draft would limit judicial review to four-fifths of a full bench.

Kariv proposed that the soft and hard judicial review mechanisms of the two models should be combined into a new model, but emphasized some form of follow-through for the soft mechanism. The soft mechanism would have a simple majority and the hard model a qualified majority.

Rothman and Kariv also disagreed on the exact percentages of the majorities involved in these mechanisms, but the chairman was positive toward the idea of combining the models.

"It's not a bad idea, your suggestion is very important, and the structure itself is a good idea," said Rothman. "I will ask the legal counsel to propose such an integrated alternative."

Committee legal advisor Dr. Gur Bligh said that the British system, for which the British model took inspiration, had three institutional items that Israel lacked.

Israel, according to Bligh, lacked interpretive presumption, "that the law be interpreted as much as possible in accordance with the provisions of the Basic Laws," as well as a special procedure for correcting non-conforming legislation and an advance address by the government explaining how the law conforms with human rights laws.

Rothman said that they were only dealing with the court's part of the equation, and the legislature's part should be addressed in Basic Law: Legislation. He was also for adding a provision on how the Knesset would relate to such a process. Rothman said that the suggestion by Kariv would be discussed further.

The bill discussed on Monday also contains provisions for the override clause. The clause could be implemented with a simple Knesset majority in the text of legislation preemptively immunizing the legislation from review. The law couldn't be reviewed by the court until a year had passed from the end of the term of the Knesset that implemented the override.

Rothman said on Sunday that the bill would be voted on to pass to the Knesset plenum on Wednesday.

During discussions, Kariv noted that a special committee had been established to discuss laws like the so-called Deri Law 2 and other amendments to Basic Law: Government, instead of the Law Committee.

"This is further evidence that the Law Committee does not really exist as part of the 25th Knesset, but rather a special committee for coup d'état matters," said Kariv. "This is a serious injury to the status of the Law Committee. The idea that the Government amendment, one of the two most important administrative laws, was taken from the Law Committee is a very sad moment in its history."

According to the Knesset spokesperson statement, Rothman had explained that he had agreed to the establishment of the special committee because his own was busy, and he believed the legislation it was set to discuss required in depth deliberations.

The special committee to amend Basic Law: Government was "proposed to amend the Basic Law of the Government, so that it is passed that the court, in its session as a High Court of Justice, is not authorized to hold a judicial review of the appointments of ministers and their identity, for any reason whatsoever, except for the matter of the eligibility conditions established by the constituent."

The temporary committee will be chaired by the coalition head and Likud MK Ofir Katz with 9 coalition members and 7 opposition members.