Netanyahu, Chief Justice Discuss Bills Aimed at Curtailing High Court Powers

Esther Hayut opposes proposed legislation that would permit lawmakers to relegislate laws that the court has invalidated

Supreme Court President Esther Hayut sits next to Prime Minister Benjamin Netanyahu at a ceremony on October 1, 2017.
Marc Israel Sellem

Prime Minister Benjamin Netanyahu met with High Court Chief Justice Esther Hayut for two hours Sunday to discuss legislative initiatives aimed at curbing the powers of Israel's highest court. Justice Minister Ayelet Shaked and Supreme Court Deputy Chief Justice Hanan Melcer also attended the meeting.

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The Prime Minister’s Office announced that during the session all opinions were heard and “there was an in-depth and serious discussion.” Irrespective of the meeting, Habayit Hayehudi plans to submit its bill to restrict the court to the Ministerial Committee on Legislation next week.

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Netanyahu had asked Hayut for the meeting after Attorney General Avichai Mendelblit advised him to meet with her before making a decision on limiting the court. During the past week, Netanyahu has said nothing about the proposed “override clause,” which would allow the Knesset to relegislate laws that the court has invalidated, and as far as is known, he has no defined plans for pursuing it.

Ever since Netanyahu announced that he planned to promote such a clause, he has been told by confidants that it would probably do more harm than good. First of all, they say, if the High Court is given the right to invalidate laws with an option for them to be reenacted, then the court is likely to strike down more laws. Secondly, it would lead to a legislative frenzy that would cause deep rifts in the coalition.

Hayut has yet to make any public statements about the various legislative initiatives. Among them has been a proposal by Netanyahu to cancel the right of the High Court to invalidate laws altogether, as is the case in the United Kingdom – which, however, has other checks on the legislature that Israel lacks – while Habayit Hayehudi wants to add an override clause to the Basic Law on Human Dignity and Freedom so that the Knesset can reenact an invalidated law by a majority of 61 MKs.

Hayut sees protecting the independence of the High Court as her mission. In an address for the state’s 70th anniversary, she said: “We have to remember that one of the necessary guarantees for [democracy] is preserving an independent, professional and unbiased judiciary, which carries out judicial review that protects the constitutional principles of the system.”

Although Hayut supports the enactment of a basic law on legislation that would regulate the relationship between the Knesset and the courts, she firmly opposes an override option for any Knesset majority. A simple majority of 61 would certainly not be acceptable to her. In one of her first speeches as court president she attacked Shaked’s belief that High Court intervention in the decisions of elected officials undermines effective governance.

“If there is anyone who believes that honoring the legislative or executive branches means turning a blind eye to violating the rule of law or disproportionately violating human rights, they’re mistaken,” Hayut said. “Governance does not in any way constitute a permit for violating the law.”

Last week Habayit Hayehudi told Netanyahu that unless the Ministerial Committee on Legislation votes on its bill on or before next Sunday, its MKs will not vote with the coalition in the Knesset.