Right-wing Ministers Unveil Bill to Let Knesset Override Supreme Court

Ayelet Shaked and Naftali Bennett have long been sparring with the court, but key parties in the governing coalition are expected to keep the legislation from passing

Ayelet Shaked and Naftali Bennett at a conference of their Habayit Hayehudi party, 2017.
David Bachar

Two ministers have unveiled a proposed Basic Law that would let the Knesset reenact laws overturned by the Supreme Court, but the bill is considered unlikely to pass in the current Knesset as parties from both sides of the governing coalition withhold their support.

The proposed Basic Law on Legislation, which was presented Tuesday by Justice Minister Ayelet Shaked and her party colleague, Education Minister Naftali Bennett, was drafted by a Justice Ministry team headed by Deputy Attorney General Raz Nizri. It is part of an ongoing effort by Shaked and Bennett’s Habayit Hayehudi party to rein in the Supreme Court.

The bill is supposed to finally settle the argument over the balance of power between the court and the Knesset. Its most controversial provision is the override clause, which would let 61 of the 120 Knesset members reenact a law overturned by the court. The reenacted law would be valid for five years and could then be enacted again.

The bill would also bar the court from overturning laws on procedural grounds, except in extreme cases in which the legislative process violated an explicit provision of a Basic Law. Moreover, only a panel of at least nine justices would be able to overturn a law, and only with a two-thirds majority.

Finally, the court would be barred from overturning any Basic Law. However, the bill would also make such laws harder to enact.

The bill would allow Basic Laws to be proposed only by the government, the Knesset Constitution, Law and Justice Committee, or at least 20 MKs. It would also require the law to be passed by at least 61 MKs in all three votes in the Knesset.

Regarding the override clause, the proposal follows the position of former Justice Minister Daniel Friedmann in requiring only 61 MKs to reenact an overturned law. In contrast, former Supreme Court President Aharon Barak thought that an override of the court should require at least 70 MKs.

The bill is largely based on the recommendations of a 2004 committee chaired by Prof. Yaakov Neeman, but that panel followed Barak in proposing that a 70-MK majority be needed to override the court. In 2012, Neeman, then the justice minister, proposed a 65-MK threshold for an override.

The Supreme Court president at the time, Asher Grunis, was furious that Neeman hadn’t consulted him about the bill. But Shaked similarly declined to consult the current Supreme Court president, Esther Hayut.

The bill is considered unlikely to pass for two main reasons. First, Finance Minister Moshe Kahlon, whose center-right Kulanu party is a key member of the governing coalition, said even before the government was formed that his party would oppose any override clause. Second, the two ultra-Orthodox parties, Shas and United Torah Judaism, object in principle to enacting new Basic Laws.

Moreover, the enacting of a Basic Law is a complicated process that usually takes a long time. The bill’s first test will come in three weeks when it is discussed by the Ministerial Committee for Legislation.

A senior Kulanu member reiterated Tuesday that his party would not let the bill pass because it would undermine the Supreme Court’s standing.

“This is a campaign by Habayit Hayehudi, not a bill,” he said. “In the current situation, where the legal system is being delegitimized, our position is clear: The courts must not be harmed.”

He said the bill had not been preceded by a dialogue with other coalition partners, “and Basic Laws must be enacted by agreement.”

The government has been upset by several recent Supreme Court rulings, the latest of which was handed down just last week. That ruling said the government could not refuse to return Hamas terrorists’ bodies to their families unless it enacted explicit legislation to do so, even though Hamas has refused for over three years to return the bodies of two Israeli soldiers to their families. Bennett termed the ruling “embarrassing” and said the government “must stop the High Court’s continue takeover of the government’s powers.”

In September, the court overturned a law that exempted ultra-Orthodox yeshiva students from army service on the grounds that it violated the principle of equality. And in August, it overturned a law imposing a special tax on people who own three or more homes because it deemed the legislative process flawed.