The cabinet narrowly approved a controversial bill yesterday that would curtail judicial review of legislation while enabling the Knesset to reinstate laws that the Supreme Court deemed unconstitutional.
Normally, cabinet approval would indicate that the bill, which will now be sent to the Knesset, has a good chance of becoming law. In this case, however, its future remains uncertain because one of its main backers, Prime Minister Ehud Olmert, has pledged to resign after next week's Kadima leadership primary, and all four of the candidates to succeed him voted against the bill. Thus by the time the Knesset reconvenes in late October, a new cabinet with a different view may be in place.
The bill passed by a vote of 13 to 12, with one abstention. The votes in favor came from Shas, the Pensioners and seven Kadima ministers, including Olmert and the bill's sponsor, Justice Minister Daniel Friedmann. The votes against came from Labor and the other five Kadima ministers, including all four candidates to succeed Olmert.
However, unlike Labor - which rejected the bill entirely - the Kadima opponents said they were not opposed to limiting judicial review in principle; they merely wanted certain changes made in the bill. Foreign Minister Tzipi Livni, the front-runner in the primary, argued that a majority of 70 MKs should be required to reinstate legislation overturned by the court, whereas Friedmann's bill would require only a 61-MK majority.
"I support limiting the court's authority to overturn Knesset legislation, as well as the Knesset's authority to override court rulings and reenact such legislation," Livni said. "But we need to maintain a balance ... which this bill does not."
She added that the best solution was to enact a complete constitution.
Livni's main rival in the primary, Transportation Minister Shaul Mofaz, took a similar stance. "There is indeed a place for limiting the court's authority on this issue," he said, but overriding a court ruling should require 70 MKs rather than only 61. Moreover, he said, it was inappropriate for the cabinet to be discussing such a fundamental issue now, on the eve of the prime minister's resignation.
Olmert responded that "there needs to be a public discussion of this issue, and it would be appropriate for it to take place in the Knesset Constitution Committee, which would invite all the relevant parties. After all, what we're voting on now will yet be changed in the Knesset, and I, too, personally favor changing certain elements of the bill."
Labor, however, said that limiting the court's powers of judicial review was unacceptable in any form. MK Orit Noked, the party's representative on the Judicial Appointments Committee, termed the cabinet's decision "a Yom Kippur [Day of Atonement] for Israeli democracy." Another Labor MK, Ophir Pines-Paz, accused Friedmann of attempting to uproot "every constitutional principle" from Israel's system of government.
The party's chairman, Defense Minister Ehud Barak, also raised two procedural arguments. First, he said, the bill violates Labor's coalition agreement with Kadima, which states that Basic Laws will only be amended with the consent of all coalition parties. Since Friedmann's bill is an amendment to the Basic Law on the Judiciary, it would seemingly require Labor's approval under this agreement.
In addition, he argued, a lame-duck government should not be discussing major constitutional reforms.
Meretz, which is in the opposition, also attacked the law. "The cabinet's decision is an embarrassment for Israeli democracy and the supremacy of the law in Israel," said MK Yossi Beilin, the party's former chairman.
Although the provision allowing the Knesset to reinstate laws that the court deems unconstitutional aroused the most opposition in yesterday's cabinet discussion, other elements of Friedmann's bill are also considered controversial.
For instance, the bill would allow the court to overturn legislation only if it contradicted one of the two Basic Laws dealing with human rights - the Basic Law on Human Dignity and Freedom and the Basic Law on Freedom of Occupation. Currently, in contrast, the court can declare an ordinary law unconstitutional if it contradicts any of the 11 Basic Laws.
The bill also states that only an expanded panel of the court, comprising at least nine justices, can declare a law unconstitutional, whereas today, even an ordinary three-justice panel can do so. In practice, however, the court usually decides of its own accord to assign expanded panels to cases in which it is seriously considering overturning legislation.
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