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Who will protect us from the Knesset?
By Haaretz Editorial

The same Esterina Tartman who falsified her curriculum vitae is also responsible for a bill that would take away the courts' power to overturn Knesset legislation. But it is not just MKs Tartman and Avraham Ravitz who are trying to advance this bill. So is the new justice minister. Their claim that it is possible to trust the Knesset to know better than to pass laws that harm basic rights sounded particularly hallucinatory this week. Aside from Britain, there is no democratic country that does not allow judicial review over its legislature. In a country where the turnover among Knesset members is high, and where every new term brings even more extremist and eccentric legislators, it seems doubtful that our most urgent issue is eliminating the Supreme Court's judicial review over Knesset legislation.

The court's authority to overturn laws that harm basic rights is not explicitly anchored in legislation. It was derived by the Supreme Court from an article in the Basic Laws that prohibits any infringement on fundamental rights except by means of a law that accords with the state's values. It was enacted for a proper purpose and does not disproportionately infringe on the right in question. Previous justice ministers sought to codify this practice in law. Some proposed that only the Supreme Court, sitting in a nine-justice panel, should be able to overturn laws, while others proposed that the Knesset be allowed to reenact an overturned law with a special majority of 61 MKs. But even as the Basic Law on Legislation was taking shape in the Knesset Constitution Committee, the new justice minister came along and changed the rules.

Professor Daniel Friedmann reached his position borne on waves of growing hatred for the Supreme Court, and he has contributed in no small measure to intensifying this hatred. Friedmann decided that it was proper to completely eliminate the court's power to overturn laws, in any panel and under any conditions. If his proposal were to pass, MK Tartman would finally be able to get a law through the Knesset that would prevent Arab MKs from serving as ministers, or even from serving in the Knesset at all if they do not learn how to sing the national anthem. Without fear of judicial review of such legislation, the state would overnight lose a priceless supervisory mechanism and leave its citizens vulnerable to severe infringements on their fundamental rights.

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The justice minister thinks the court is encroaching by overturning Knesset legislation. In his view, it is sufficient for the court to express its opinion that a given law is unconstitutional, and the Knesset would then decide whether to take this opinion seriously or ignore it. Friedmann is working to enact his legal platform, as he has formulated it for years in his media columns. It is impossible to say that his stance is surprising, though his haste and extremism are raising eyebrows even within the Kadima Party that chose him.

What is so urgent, asked Knesset Constitution Committee Chair Menahem Ben-Sasson, who has faith in the justice minister's wisdom and good intentions. Why not first enact a constitution, and only then start fiddling with the details? Does the current situation demand a hasty and terrible solution? But it seems that the justice minister is marching forward, and the only hope is Amir Peretz's threat to break up the coalition over this issue.

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