New versions of a Likud bill that aim to limit the Supreme Court’s power represent an escalation of past efforts to pass similar legislation. One proposal would forbid the Supreme Court from striking down laws passed by the Knesset with less than a majority of nine justices (out of 11), and allow the Knesset to re-legislate any such laws that were disqualified. Another proposal would add politicians to the committee that appoints Supreme Court justices.
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The combination of these two legislative proposals, if they pass, marks an attempt on the part of the coalition to try and say goodbye for good to the Supreme Court. In light of the relatively small number of laws the Supreme Court has struck down, as well as the court’s recent history, it is far from realistic to label the court as overactive and call for its restraint.
But all that is no matter to the emerging coalition, which wants to tie the court’s hands completely, and reverse the decisions to disqualify even some of the more outlandish recent bills – like the article in the Anti-Boycott Law that allowed one to receive compensation, without having to prove damage, from those who called for boycotts; and the provision in the Anti-Infiltration Law that allows for imprisonment of asylum seekers without trial.
Likud’s proposal is meant to impede the Supreme Court from two directions. On one hand, the bill sees to influence the court’s rulings by changing the balance in the committee that appoints justices in favor of the politicians, as is the proposed necessary majority of nine judges to strike down a law passed by the Knesset. On the other hand, the proposals would allow the politicians to re-legislate laws that the court has previously struck down. The result is an attempt to curb the court’s ability to exercise judicial review of legislation that harms human rights. This would be a departure from the essence of democratic values, which include defending human rights, to the benefit of tyranny of the majority.
Even if Likud’s proposals do not become reality, it is clear that simply making such proposals is a less than subtle threat to the Supreme Court justices. The threat is meant to prevent them from involving themselves yet again in the few instances that the court struck down legislation. Coming up on the agenda, of course, is the third round for the Anti-Infiltration Law, which the court is expected to rule on in the coming months after striking down the two previous versions of the law.
These proposals are still only a threat, but they send a clear message to the court that its independence is in the balance, even if the proposals aren’t ultimately approved by the Knesset. Thus the issue is not whether or not they become law. If they do, it is an open declaration war by the coalition against the Supreme Court. But even if they don’t, just making these proposals amounts to a crossing of the Rubicon, if not a declaration of war already.