Explainer

How a Bill to Override Israel's Top Court Would Help Netanyahu

Prime minister is backing a bill that would revoke the High Court's authority to interfere in legislation and administrative decisions by elected officials ■ What does the move mean, what remains unclear, and can the High Court strike down the bill?

Prime Minister Benjamin Netanyahu holds a paper at the start of the weekly cabinet meeting at his Jerusalem office, May 12, 2019.
\ POOL/ REUTERS

What does the expanded version of the override bill, which Haaretz reported about on Monday, achieve? 

It would disempower the Supreme Court, in its capacity as High Court of Justice, from intervening in legislation and administrative resolutions by the government, ministers or the Knesset. It could also turn High Court rulings into toothless, non-binding recommendations. One suggested formulation suggests canceling the grounds of “reasonability” that High Court justices use to overturn administrative resolutions.

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The bill essentially expands the override power that was discussed in the past, and renders decisions by elected officials safe from court oversight.

How would it help Netanyahu evade the arm of the law?

Netanyahu is supposed to stand trial on three corruption cases, subject to a hearing, and would prefer to protect his immunity by restoring the immunity law to its original format. Until 2005, whenever a Knesset member faced trial, the attorney general would present his case for immunity before the Knesset's House Committee, which could reject it.

Since the coalition can be expected to command a majority in the committee, the prime minister figures he can keep his immunity. But the High Court has voided a Knesset member’s immunity in the past, overriding the House Committee. So the bill, if approved, would enable the committee to override any court decision to void Netanyahu’s immunity.

Speaking to TheMarker in April, Yariv Levin – a member of Netanyahu's Likud party and a candidate to be the next justice minister – vowed to constrain the court’s authority to strike down laws by enacting a new basic law. One guiding principle in Levin’s version of the new basic law – which would be called “Basic Law: Legislation” – would limit the High Court’s power to supervise the government and the Knesset, and would create a defined list of grounds for intervention, concentrating solely on what he called “the heart of democracy, in its narrow meaning, of the rule of the people, or non-execution of procedure.”

Levin's office clarified on Monday that the version of the bill he spoke about does not actually exist yet.

How could the bill affect regular Israelis?                   

If the Knesset does pass the initiative as it was described by Haaretz, the court would no longer be able to intervene in decisions like a recent one by Netanyahu, who wanted to prevent Palestinians from participating in a joint Memorial Day ceremony in Israel, or decisions by the interior minister relating to refugees. The court could also no longer interfere in restraining orders the defense minister issues to settlers suspected of terrorism.

However, since the bill hasn’t been presented yet, it’s too soon to say how far it will go. It might protect ministers from civilians' petitions against their decisions; or if the court could still overturn laws and decisions based on values arising from other basic laws, such as equality and dignity; and what Levin’s list of grounds to intervene will contain.

It bears adding that this brand-new basic law would not require a super-majority of Knesset members to be passed, but might require a super-majority to be amended in the future.

Could the High Court overturn it?

There are two main reasons why the High Court might overturn a law. One is if the new law conflicts with a “stronger” existing basic law. The second is significant defects in the way the law made its way through the Knesset committees and plenum. Therefore, the court’s ability to intervene and strike down a law, especially when the issue at stake is a basic law with super-status, depends mainly on the coalition’s ability to overcome these obstacles during the legislation process.

Might the president refuse to endorse the law?

The basic law governing Israel’s presidency states that the president has to sign the law before it comes into force, but his signature has a mainly symbolic status. Israel’s laws come into force with their publication in the records, which is, at most, ten days from their enactment. Several laws have entered force before the president has signed them.  President Reuven Rivlin personally believes the president cannot refuse to sign a law that was approved by the Knesset in a diplomatic process — and any such move would be tantamount to resignation.