Kulanu Balks at Likud Demand to Weaken Israel's Supreme Court

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Moshe Kahlon and adviser Roy Folkman after meeting Reuven Rivlin, March 23, 2015.Credit: Olivier Fittousi

Moshe Kahlon’s Kulanu party said Monday it will not agree to Likud’s demand that coalition partners pass two bills aimed at reducing the Supreme Court’s power versus the Knesset and government.

Nevertheless, Kulanu sources said the disagreement has not reached crisis proportions, and predicted that Likud would ultimately accept Kulanu’s position.

“In the previous term, Netanyahu prevented legislation of these bills because he didn’t want a conflict with the Supreme Court justices,” one political source noted. “So this time, he’ll presumably be happy if Kulanu pulls the chestnuts out of the fire for him. He can then tell Habayit Hayehudi and fellow Likudniks that Kahlon has forced his hand.”

Even Likud members sounded uncertain as to whether Netanyahu really wanted the bills passed, or simply intended to do what he did last term: allow them to begin the legislative process but then kill them before they passed their final Knesset reading.

One bill would enable the Knesset to override Supreme Court rulings that declare a law unconstitutional. Another would alter the composition of the committee that appoints Supreme Court justices. Neither has yet been finalized, but both are expected to differ significantly from similar bills presented by Likud and Habayit Hayehudi in the last Knesset.

Monday, President Reuven Rivlin granted Prime Minister Benjamin Netanyahu an extra 14 days to try to form a coalition. The initial 28 days Netanyahu received will end Wednesday, but by law, a 14-day extension is possible. So far, Netanyahu has yet to sign an agreement with any other party, though political sources said on Sunday that he seemed on track to form a 67-member coalition.

After a meeting between the Likud and Kulanu negotiating teams Monday, both sides reported significant progress, saying agreement had been reached on a long list of reforms. But the parties are still at odds over the Supreme Court bills, and Netanyahu met with Kahlon last night in an effort to resolve this and other remaining differences.

In January, Kahlon told Haaretz that he vehemently opposes legislation to weaken the Supreme Court.

“I think we need to strengthen the Supreme Court,” he said. “We must not forget that this court is the last refuge of the weak, and it needs to be as strong as possible. All my life I’ve supported the need to strengthen the Supreme Court, even if it sometimes makes decisions that are inconvenient for somebody or another.”

At an earlier stage of the coalition negotiations, Habayit Hayehudi and United Torah Judaism had presented six bills for weakening the Supreme Court. They then asked Likud to select two that the coalition would commit to passing.

One, the override bill, would actually formalize the court’s power to declare laws unconstitutional – a power that isn’t explicitly authorized by any legislation today. But at the same time, the bill would make it much harder for the court to overturn laws in practice, by requiring any such decision to be made by an 11-justice panel with at least nine justices concurring.

The bill would also allow the Knesset to override such a decision by reenacting the law the court declared unconstitutional, though it is not yet clear what majority would be required to do so. Under the original bill submitted by MK Ayelet Shaked (Habayit Hayehudi) in the last Knesset, the reenacted law would have remained in force for only four years. It’s not clear, either, whether this limitation will remain in the new bill.

The second bill, to change the composition of the Judicial Appointments Committee, has been revamped as well. The current proposal would raise the number of ministers and MKs on the committee from four to six while raising the total number of panel members from nine to 11, thereby diluting the influence of sitting justices on the choice of their successors.

Currently, sitting justices occupy three seats on the nine-member panel, with the remaining two seats held by representatives of the Israel Bar Association. Since Supreme Court appointments require approval by seven committee members, this effectively grants the justices a veto over their successors’ appointments. With an 11-member panel, however, their veto power would disappear.

The bill submitted in the last Knesset by Likud MK Yariv Levin would also have eliminated the justices’ veto power, but by a different mechanism. It proposed keeping the panel at nine members while replacing one justice with an academic.

A few days ago, a senior Likud source insisted his party would not sign coalition agreements allowing its partners to veto these two bills or even to vote their consciences on them, but would instead demand a commitment to passing the bills.

“We’ve heard requests to allow MKs who oppose these bills not to support them, but we won’t permit this,” he said. “If we let various parties vote their conscience on certain issues, it’ll never end. Without Kulanu’s support, there’s no majority for these bills, and coalition discipline would lose all its meaning.”

Relations between Likud and Habayit Hayehudi, the bills’ chief advocate, have been rocky lately, and Monday, the latter’s faction chief, Shaked, issued a WhatsApp statement harshly criticizing Likud’s conduct of coalition talks with her party.

“Contrary to the premier’s promise to the public that we would be his senior partner, in practice, they’re trying to turn us into a well-trodden doormat,” she said, accusing Likud of ignoring Habayit Hayehudi’s demands on issues ranging from building in Jerusalem to a reform of the marriage laws.

Last month, Levin told Haaretz that his party and Habayit Hayehudi planned to enact several bills to revamp the legal system. Aside from the two mentioned above, these included bills to change the way the Supreme Court president is chosen (currently, the longest-serving justice automatically gets the job), split the attorney general’s job in two and reduce the power of ministry legal advisers. But it’s not clear whether any of these other proposals will gain Netanyahu’s backing.

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