No longer a constitutional democracy

The ministerial committee on constitutional affairs is due Sunday to discuss Justice Minister Daniel Friedmann's proposal for a thorough amendment to the Basic Law on the Judiciary. According to the proposal, the Knesset will have the authority to revive a law which the Supreme Court has declared unconstitutional on the grounds that it contradicts a basic law. If the law comes before the Knesset for a third reading, it will require the vote of a majority of 66 Knesset members, on condition that the number of votes in favor of the law is greater by at least 15 than the number opposing it.

This provision appears to be simple, as though it doesn't comprise a violation of the principles of constitutional democracy. Under the existing legal situation, without a legislative arrangement of the matter, the courts are authorized to quash laws which they rule are contradictory to the basic laws. In theory, all the courts have this authority, but in practice it is done only by the High Court of Justice. The court for its part has shown a great deal of judgmental restraint and respect for the Knesset: In only six cases has it canceled provisions of the law. In all these cases, the Knesset accepted the court rulings which protected human rights.

In all of the cases, it was clear to the MKs that if they wanted to create a law that would "bypass" the High Court of Justice, they would have to do so by amending the basic law itself. The Basic Law on Human Dignity and Freedom can now be changed also by approving a new basic law and with a regular majority of MKs, without need for a special majority. However, there are MKs, including those who are not fans of the high court, who hesitate to begin a process that could damage the basic laws. The law has remained in place, without restrictions on its power, for 15 years.

The proposed new law would like to assume this restriction on the part of the Knesset. If today the Knesset's laws are subordinate to the human rights recognized in the basic laws, from now on the human rights will be subordinate to the legislation of the Knesset if it gets a majority of 66 MKs' votes. Any majority, even if it is 70 or more, will have the power to reject the judgment of the High Court, which will distance us from a constitutional democracy of the kind found in the United States. There, the legislators can revive laws that have been disqualified but they will clash head-on with the constitution and will require a special majority. In this way, the country prevents a struggle where the constitution is on one side, and the disqualified legislation, which harms the fundamentals of democracy, is on the other.

In Israel, it is possible to consider adding an "ascendancy provision" to the Basic Law on Human Dignity and Freedom like the provision which exists in the Basic Law on Freedom of Occupation. It would make it possible to adopt a "divergent law" for a defined period of four years ("one political generation") with a majority of MKs.

An "ascendancy law" of this type is undesirable. The Knesset used it once in order to overcome freedom of occupation when it wanted to prevent the import of non-kosher meat. There is no assurance that restraint of this kind will be maintained with regard to the Basic Law on Human Dignity and Freedom. At the same time, a provision of this kind is preferable as a "replacement," if needed, to the current proposal, according to which the dialogue between the Knesset and the government will be conducted in a way that makes it possible to harm human rights in a regular law even if it is approved with a special majority.

The justice minister's proposal will divert the argument to the number of votes required to revive disqualified laws and will miss the main point. The aim of the proposal, taken at face value, is to strengthen constitutional supervision by fixing it in an explicit legal provision. In fact, it has become a trend to weaken the protection of human rights by the High Court of Justice.

We know that a majority can be raised in the Knesset on behalf of legislation that is not worthy and unreasonable (for example, the law that recognizes pirate radio stations, which was disqualified by the High Court) and which is likely to harm human rights. Constitutional supervision is meant to protect the rights of a minority from an aggressive majority that could bravely oppose the High Court's ruling. Now, it is worthwhile for the government and the Knesset to wait with these proposals that have been received so enthusiastically by all those who do not like the High Court, especially when it protects basic civil rights from "an omnipotent legislator."

Members of the Knesset would like to have the last word in this sensitive field, and the justice minister is interested in implementing this position. Supporters of human rights, regardless of their political affiliations, are obliged to stop this move which could put an end to concrete constitutional democracy.