Panel Approves Bill Granting Knesset Power to Overrule High Court

Justice Minister Tzipi Livni appeals the measure; sources close to Netanyahu say he won't advance it; legislation could be used to keep open a detention center for African asylum seekers.

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The Knesset plenum.
The Knesset. Credit: Daniel Bar-On

A key committee on Sunday voted to approve a controversial bill that would allow the Knesset to override rulings by the High Court of Justice that strike down laws as unconstitutional.

The proposed legislation passed by a vote of eight to three; right-wing ministers from Habayit Hayehudi, Yisrael Beiteinu and Likud supported the motion. Justice Minister Tzipi Livni of the Hatnuah party heads the committee that voted Sunday. She opposed the measure, as did Yesh Atid ministers.

Following the vote by the Ministerial Committee for Legislation, Livni filed an appeal, effectively blocking the measure until it is voted on again by the committee.

Sources in Netanyahu's inner circle have estimated that the bill will not be advanced further. "There's no chance Netanyahu will make an active effort to push legislation that will harm the Supreme Court," the sources said.

Aside from the public esteem Netanyahu has for the judicial system, other factors may also play in his decision not to support the bill any further: Its legislation is expected to undermine the already unstable coalition, by making it difficult for Livni to stay in her role as justice minister.

MK Ayelet Shaked, a sponsor of the bill.Credit: OIivier Fitoussi

In addition, political sources said that in his previous term, Netanyahu let a similar legislative effort by then Justice Minister Ya'akov Ne'eman fade and fall between the cracks. Some have also noted that Netanyahu will be averse to promote a bill that will give significant political gain to his rival, Minister Naftali Bennett, whose party member MK Ayelet Shaked proposed the bill. 

If the bill is approved by the committee as well as the Knesset, lawmakers are expected to use it to reenact a law permitting African asylum seekers to be held indefinitely at a detention facility in the south.

Last month, the High Court of Justice ruled that such a law violated Israel’s Basic Law on Human Dignity and Freedom.

Under Shaked's bill, the Knesset would be able to reenact a law quashed by the High Court for violating a Basic Law. But parliament would be able to do so only if the law were approved by at least 61 of the Knesset's 120 members, not just a majority of MKs at a vote. Also, the reenacted law would expire after four years.

“The bill isn’t designed to limit the authority of the High Court but to prevent the court from continuing to limit the authority of the Knesset – the elected body that expresses the will of the people and works to protect all minority groups, not just a few of them,” Shaked said.

If the bill passes, it would reinstate the clauses of the Prevention of Infiltration Law that were rejected by the High Court last month.

Attorney General Yehuda Weinstein had called on the panel to oppose the bill, “mainly because it allows the Knesset to infringe on the individual’s rights without fundamental or procedural limitation,” as the Justice Ministry’s Eyal Zandberg wrote in a legal opinion.

Yesh Atid ministers Yael German and Jacob Perry opposed the bill. "We mustn't use it to pass a specific law enabling us to harm minorities," German said after the vote.  "That's what preserves us as a democratic country."

Perry described the vote: "This is reminiscent of benighted regimes, and is harmful to democracy. The problem of the infiltrators can be handled with other, saner, methods."

MK Dov Khenin (Hadash) also opposed the bill, saying "the law is not only an attack against the court but a direct attack on the basic rights of every citizen."

According to Pensioner Affairs Minister Uri Orbach, who supported the bill, "I believe that a bad law created by a legislator is preferable to a good one created by a judge, because an elected official is sovereign."

For her part, Shaked said "there's no High Court bypass law, there's a High Court decision that bypasses Knesset laws."

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