It is hard to believe that even as the prime minister is declaring that a constitution is one of his government's main goals, the justice minister is submitting a bill to the Ministerial Committee on Legislation today that would effectively eviscerate any future constitution. The bill that Daniel Friedmann is submitting for the committee's approval includes, in his words, "two elements recommended by the Ne'eman Committee (which was established to draft a Basic Law on Legislation) - limiting judicial review of the constitutionality of legislation to the Supreme Court, and an override clause." However, it also differs from the Ne'eman Committee's recommendations "on a number of issues."
It is hard to believe that the justice minister could behave so contemptuously toward the committee: The proposed amendment to the Basic Law on the Judiciary that he is submitting for approval today is effectively the diametric opposite of the Ne'eman Committee's recommendations. While the Ne'eman Committee accorded the Basic Laws constitutional status, meaning that they would take precedence over ordinary legislation and grant the Supreme Court the authority to overturn laws that contradict them, Friedmann is seeking to give precedence not to the constitution, but to ordinary Knesset legislation.
The Ne'eman Committee did say that in certain circumstances, legislation that the Supreme Court had declared unconstitutional should be allowed to remain in force, but it saw this as unconstitutional and undesirable. Therefore, it proposed that such legislation should remain in force only for a limited period, and that once this period had expired, the unconstitutional legislation could not be reenacted. Friedmann is proposing the exact opposite: His bill states that unconstitutional laws should automatically remain on the books for six months from the date the court overturned them (apparently in order to enable the Knesset to reenact them), and, should the Knesset indeed reenact such a law, his bill forbids the Supreme Court to rule on the law's constitutionality for five years. And if the court does not issue such a ruling, the unconstitutional law will remain on the books.
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The 11 Basic Laws are chapters of the future constitution (according to a Knesset decision from June 1950). The Ne'eman Committee therefore decided that all the Basic Laws have constitutional status, meaning that the Supreme Court can overturn ordinary laws that contradict them. But along comes the justice minister's bill and abolishes the constitutional status of all but two of the Basic Laws (Human Dignity and Freedom, and Freedom of Occupation). One can imagine the Knesset passing a law that, for example, contradicts the Basic Law on the State Comptroller; however, under this bill, the Supreme Court would be unable to rule on its constitutionality.
The Ne'eman Committee said that a simple Supreme Court majority should be sufficient to declare a law unconstitutional, just as it suffices in deciding all other cases. Friedmann, however, is insisting on a two-thirds majority of the justices. Yet the United States Supreme Court issues rulings on the most fundamental issues by majorities of five to four.
The prime minister has a laudable ambition to enact a constitution. But there is no point to a constitution if there is no agreement on allowing judicial review of legislation that contradicts it. Friedmann's effort to restrict the option of overturning unconstitutional legislation and his plan to strip all but two of the Basic Laws of constitutional status both effectively attest that he opposes a constitution, or a constitutional democracy, in Israel. In light of this, it seems that the prime minister must decide whether his goal of enacting a meaningful constitution takes priority over Minister Friedmann's poorly thought out legislative initiative.
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