Justice Minister Pushing for Bill That Aims to Reinstate Law Struck Down by Israel's Supreme Court

If passed, a new bill would make it easier for Knesset to sidestep High Court rulings that declare a law unconstitutional.

A new bill proposed by Justice Minister Yaakov Neeman would allow the Knesset to reinstate a law that had been struck down by the High Court of Justice with a majority of only 65 votes.

The draft was published by the Justice Ministry late last week. Its framers hope it will eventually be presented as the long-sought Basic Law on Legislation. It contains a clause that would makes it easier for the Knesset to sidestep High Court rulings declaring laws unconstitutional.

Knesset vote - Michal Fattal - July 11, 2011
Michal Fattal

This bill differs from one recommended by a public commission convened in 2004 to study the issue. That committee recommended a majority of at least 70 MKs to reinstate a law that had been struck down by the High Court of Justice. It also recommended that even if the law was revived, it could be extended only once for a period of five years. The recommendation was accepted by then Supreme Court President Justice Aharon Barak.

This bill, which is still at the memorandum stage (in which the public can comment on it before is officially published as a bill by the Justice Ministry ), as framed by Justice Minister Yaakov Neeman, stipulates that a law would remain on the books despite the High Court ruling, if the Knesset voted to do so by a majority of 65. It could also be extended every five years indefinitely. Supreme Court President Asher Grunis did not cooperate with Neeman on the framing of the memorandum.

A Basic Law on Legislation, which would enshrine in law the various stages of legislation that are currently mainly governed by Knesset regulations, has not yet been enacted, partly because of political disputes over the issue of how much power the Supreme Court should have over the Knesset, and appropriate methods for the Knesset to keep that power in check.

Late last year, Neeman publicly stated his intention to revive work on a Basic Law on Legislation containing the clause to make it easier to sidestep the Supreme Court. He did so when speaking in the Knesset in response to a speech by then Supreme Court President Dorit Beinisch at a conference on the dangers of politicians attacking Supreme Court rulings and its justices.

"The Knesset has for years avoided passing a Basic Law on Legislation," Neeman said, adding, "If the public has complaints about this, they should be directed to the Knesset, which is the body authorized to legislate a Basic Law that determines the standards, limitations and criteria when and under what circumstances the [Supreme] court determines that a law is disproportionate [or] unconstitutional. The Knesset will intervene. I think the time has come to reach broad agreement so it will be very clear what happens when the court rules that a law is not valid."

A hearing on the constitutionality of a law will require a bench of at least nine justices. The first hearing, before a bench of three justices, will determine whether doubt exists on the validity of the law. If there is, the expanded bench will convene to decide whether the law should be struck down.

After the committee released its recommendations in 2004, another committee discussed the same issue in 2006, during the period Haim Ramon served as justice minister. That committee also called for a majority of 70 MKs to reinstate a law that had been struck down by the Supreme Court.

Then in 2008, under Justice Minister Daniel Friedmann, a bill was promoted that would allow the Knesset to reinstate a law struck down by the Supreme Court by a majority of only 61 MKs, as long as there was a difference of at least five votes between the majority and the minority. Then Attorney General Menachem Mazuz warned the cabinet that such a bill was "problematic" because consensus would be too narrow to make such a weighty decision. The public will be able to respond to the current memorandum until the beginning of May. The Justice Ministry will then move ahead to present it as a bill to the Constitution, Law and Justice Committee, and from there to the Knesset.

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