Justice Minister Daniel Friedmann on Wednesday released the draft of his bill to severely restrict the right of the Supreme Court to nullify Knesset legislation. However, Knesset Law Committee chairman Menahem Ben-Sasson told The Jerusalem Post that Friedmann does not intend to present the bill to the Knesset for approval, in accordance with an agreement the two have reached. Ben-Sasson said he and Friedmann have agreed that the Law Committee will take the draft's language into account in its current efforts to prepare a comprehensive constitution.
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According to Friedmann's proposal, the Supreme Court would be the only court entitled to consider a law's constitutionality.
Even this right would be restricted to four elements of Israel's constitutional legislation, as expressed in its basic laws. These elements would be violations of the Basic Law: Human Dignity and Freedom; and the Basic Law: Freedom of Occupation; any law that extends the term of the Knesset in violation of Section 9a of the Basic Law: Knesset; and any law passed with less than the majority required by a basic law.
If a lower court decided it cannot rule on a case without first knowing whether the law involved is "legal" according to these criteria, it would have to refer the matter to the Supreme Court.
In such cases, a panel of three Supreme Court justices would hear the case and determine whether or not it can be adjudicated without first determining whether the law involved violated one of the four conditions detailed in Friedmann's bill.
If the three-member panel decided that the case hinged on the constitutionality of the law involved, it would refer the matter to a panel of at least nine justices. A majority of two-thirds of the extended panel would be required to overturn the law.
Should the court decide to do nullify the law, the nullification would only take effect in six months. During that time, the Knesset could pass the bill again, with or without changes, after the court's ruling was brought to the MKs' attention and on condition that at least 61 MKs approved the bill in its third reading.
If the Knesset passed the law after the Supreme Court has nullified it, the court could review it again after five years.
Suzie Navot, an expert in constitutional law at the academic branch of the College of Management, told the Post Friedmann's proposal to override the court's right to review legislation was "very problematic." She said the court had not abused its power, having nullified only one law and sections of four other laws since 1995, when it officially declared its right to judicial review.
Friedmann's proposal does more than allow the Knesset to override court decisions regarding the rights guaranteed in the two basic human rights laws, said Navot. It also prohibits the court from reviewing legislation that may violate fundamental principles of democracy that are not included in the basic laws and human rights not specifically mentioned in those laws.
According to Navot, Friedmann adopted the override clause, which gives parliament the right to override a Supreme Court ruling, from the Canadian Charter of Rights and Freedoms. But the charter is a complete constitution guaranteeing a full array of rights, whereas Israel's basic laws only guarantee some of them, she said.
Navot added that the proposals to allow only the Supreme Court to nullify laws and only by the decision of an expanded panel of justices were positive ones.