Right-wing Israeli Ministers Introduce Plan Targeting High Court's Powers

Education Minister Naftali Bennett and Justice Minister Ayelet Shaked's initiative would limit the High Court of Justice from intervening and deprive the court of the power to disqualify a basic law

Justice Minister Ayelet Shaked and Education Minister Naftali Bennett in the Knesset in 2016.
Olivier Fitoussi

Justice Minister Ayelet Shaked and Education Minister Naftali Bennett announced on Thursday the introduction of a new basic law that would limit the authority of the High Court of Justice to strike down laws. The High Court has the power to interpret legislation and disqualify law in accordance with its interpretation.

Basic laws have constitutional status, and the proposed basic law would include an override provision that would allow a Knesset majority to vote to bypass the High Court’s ruling. The proposal by Bennett and Shaked, both of whom are from the Habayit Hayehudi party, doesn’t specify the exact number of Knesset members that would be necessary to override a court decision.

When a similar override proposal was made in the past, then-Supreme Court President Aharon Barak demanded a super-majority of 70 Knesset members be required to take such an action. Former Justice Minister Daniel Friedmann had suggested a simple majority of all Knesset members, that is 61 of the Knesset’s 120 members be required, rather than a simple majority of attending MKs.

The Habayit Hayehudi legislators' proposal follows two particularly activist decisions made recently by the High Court. One, written by Justice Noam Sohlberg, disqualified a law due to flaws in the legislative process that would have imposed a special tax on owners of three or more homes. The other disqualified the practice of passing a two-year government budget. In the case of the two-year budget, the court involved itself in an unprecedented manner in the provisions of a basic law.

Bennett and Shaked’s initiative would limit the High Court from intervening and deprive the court of the power to disqualify a basic law. It would also limit the High Court’s authority to strike down laws due to flaws in the legislative process.

“Recently the High Court of Justice has struck down Knesset laws and cabinet resolutions such as the plan to remove infiltrators, the budget law and the rescission of the residency of Hamas members,” Bennett, the chairman of Habayit Hayehudi, said. “This new situation in which striking down laws has become a routine thing will force us, the legislators who were elected by the public, to act to restore the proper balance between branches of government.”

For her part, Shaked said: “The basic law on legislation will clearly define the limits of judicial review, the legislative process, and the passage of basic laws and the dialogue between the court and the Knesset. The law needs to take shape with the broadest possible consent of the public.”

In response, Shas head Interior Minister Arye Dery estimated that nearly the entire government coalition would support the clause. In an interview with Shas newspaper Baderekh, Dery said he agrees with the Prime Minister Benjamin Netanyahu "to bring a new draft law to the High Court of Justice, so that it can no longer intervene."

He added "We will not wait until the winter session, but we will meet with Netanyahu immediately after Rosh Hashanah. All coalition leaders will be committed to the new law."