A revolution against the constitution
Justice Minister Daniel Friedmann succeeded yesterday in significantly advancing a program he had previous pushed repeatedly without success: severely undermining the Supreme Court, and thereby also good government and fundamental human rights. The change that Friedmann is proposing, and which the cabinet approved yesterday during its final days in office, erodes one of the strongest foundations of Israeli democracy - the Basic Law on the Judiciary.
This law, adopted in 1984, formalized the Supreme Court's authority and immunized it against any emergency regulations that the government might later enact. Since the Supreme Court is the only court whose powers are detailed in a Basic Law, it is therefore also protected against changes enacted via ordinary legislation. The powers of the lower courts, in contrast, are laid down in an ordinary law, the Courts Law.
Under the bill adopted by the cabinet yesterday, which Friedmann personally initiated, the Supreme Court will no longer be able to declare an ordinary law unconstitutional any time it contradicts a Basic Law. Israel currently has 11 Basic Laws, and according to the court's own previous rulings, it has the authority to overturn ordinary laws that contradict any one of these Basic Laws. Under Friedmann's bill, however, the court could declare a law unconstitutional only if it contradicted either the Basic Law on Human Dignity and Freedom or the Basic Law on Freedom of Occupation. In other cases, the court would no longer be able to exercise judicial review - even if an ordinary law contradicted one of the fundamental principles laid down in the other Basic Laws.
Thus, for example, the court would no longer be able to rule on a petition currently before it, which argues that the law enabling the establishment of private prisons contradicts a key provision of the Basic Law on the Government - namely, that the government is "the state's executive branch."
Should the Knesset follow the cabinet's lead in approving Friedmann's bill, only special, expanded panels of the Supreme Court, comprising at least nine justices, would be able to overturn legislation. This requirement, which is not the norm in other countries, is also liable to limit judicial review, even though one cannot entirely deny its logic.
But in any case, the bill would enable the Knesset to reenact a law that the court had overturned by a majority of only 61 MKs - which is essentially an ordinary coalition majority.
Remarkably, the Knesset can enact Friedmann's bill by a simple majority of whichever MKs show up for the vote. Amending the Basic Law in line with Friedmann's proposal does not even require a special majority.