The new plan, according to a press release sent Thursday night by Justice Minister Ayelet Shaked (Habayit Hayehudi), was formulated in light of a series of recent rulings by the Supreme Court that violated the years-long status quo between the legislative and executive branches of the judiciary: a month ago or so, the court ruled that it had the authority to disqualify Knesset legislation based on the quality of the parliamentary debate.
Shortly thereafter, in a different ruling, the court hinted that the section regarding the obligation to observe the law in the constitutional “Basic Law: Human Dignity and Liberty” can be ignored when it comes to legislation that shapes the Jewish character of Israel, such as the Law of Return. Then, only a few days later, the court handed down a ruling on the Netanyahu government’s two-year budget saying it would disqualify it in the future.
In light of the above, and then some, Ministers Ayelet Shaked and Naftali Bennett formulated a legal plan to complete an Israeli constitution and lead to the regulation of the relationships between the three branches of government, as well as help the executive branch implement its policy.
The plan will include the two missing chapters of the Israeli constitution: the Basic Law “nationality,” which will form the chapter of principles in the constitution and which is already in the process of legislation; and the Basic Law “Legislation,” which will complete the legislative chapter that is missing from the Israeli Constitution and will join the Basic Laws: the Knesset, the Government and the Judiciary.
The new Basic Law on Legislation will include a clause that regulates situations in which the court annuls a law and the Knesset reinstates it under certain conditions.
Additional sections of the Basic Law on Legislation will determine the special way in which Basic Laws should be enacted and the fact that they are not subject to judicial review – as is common in most countries. This part will, essentially, prevent the Supreme Court from annulling the law which limits its ability to annul laws.
Minister Bennett said in a statement: “Recently, the High Court of Justice invalidated Knesset laws and government decisions such as the outline for the removal of infiltrators, the budget law and the revocation of the residency of Hamas members. This new situation, in which the repeal of laws has become routine, will force us, the legislators elected by the public, to act to restore the proper balance between the authorities. And this we are doing today.”
Minister Shaked said in a statement: “The Basic Law on Legislation will clearly define the limits of judicial review, the process of legislation and the enactment of Basic Laws, as well as the dialogue between the Court and the Knesset.”
On Wednesday, MK Bezalel Smotrich (Habayit Hayehudi) suggested that the only stumbling block before a new set of laws to curb the High Court’s enthusiasm is Finance Minister Moshe Kahlon’s Kulanu faction which marks the left corner of Prime Minister Netanyahu’s coalition government. With his 10 MKs—out of the 65 or so in the coalition—Kahlon has been able to torpedo many government attempts to win the day against the most activist supreme court in modern history, bar none.
“In recent months, the High Court of Justice has broken all restraint in trampling democracy and blatantly scorning the Knesset, the government and the people,” Smotrich said in a press release. “In the past year, Kahlon and others were willing to drag the country into elections for trifles, ego, and small time politics. But there are fundamental issues on which it is proper and right to draw a line in the sand.”
“The crude intervention and the odd rulings on the most fundamental issues of Israeli society cannot continue,” Smotrich said. “A legislative reform must be launched that includes a clause on overcoming court rulings, changing the method of selecting judges, and restoring the limitations on locus standi (the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case).”
Finally, MK Smotrich declared: “All coalition factions must present Kahlon with a choice: a reform in the High Court of Justice or new elections.”
It should be noted that Minister Kahlon himself has been the victim of an exceptionally brutal High Court of Justice reversal of his law – the law, punishing investment in new apartments, was really terrible, but the court was considerably out of line in killing it.
Another important coalition partner, or partners, the two Hartedi parties United Torah Judaism and Shas, may present their own stumbling blocks in the path of the new Habayit Hayehudi legislation, because of their inherent objection to the Jewish State replacing its eternal constitution, the Torah, with a modern, legal document. But the urgent need of the Haredim to block the Supreme Court’s onslaught in the area of military draft legislation will likely make them eager partners, at least for now.