Netanyahu Pushes Law to Neutralize High Court Oversight and Uphold His Immunity

The prime minister's planned bill will allow the Knesset and government ministers to ignore rulings of the High Court of Justice - such as a potential revocation of his immunity

Israeli Prime Minister Benjamin Netanyahu holds a paper at the start of the weekly cabinet meeting at his Jerusalem office on May 12, 2019.
AFP

Prime Minister Benjamin Netanyahu plans to advance a far-reaching bill that would allow the Knesset and government ministers to ignore rulings of the High Court of Justice in administrative matters, not just in cases where it strikes down legislation. The proposed law would permit the annulment of a High Court decision to rescind Netanyahu’s immunity, if such a decision is made.

Such legislation would essentially neutralize the Supreme Court in its capacity as the High Court of Justice – something Netanyahu has never publicly supported – by turning its decisions into suggestions instead of legally binding rulings.

Haaretz Weekly Ep. 27

Netanyahu plans to include in the coalition agreements and government guidelines a “legal appendix” that will include his plan to reform the judicial system. Only a few people have viewed the contents of this legal appendix, but it is being coordinated with the Union of Right-wing Parties, whose MK Bezalel Smotrich has been actively involved in the discussions and wording.

>> Read more: Netanyahu’s assault on judiciary will lead to rule without restraint | Analysis ■ The law designed to close the cases against Netanyahu | Opinion ■ As indictment nears, where do Israeli parties stand on bill granting Netanyahu immunity? ■ Netanyahu's hope for immunity: An uphill battle likely to fail

In response to the move, Kahol Lavan head Benny Gantz said that Netanyahu had been expected to do everything in his power to build a coalition that would serve as a legal fortress but the sheer contempt demonstrated for the rule of law goes too far. "We will not remain silent," Gantz said. "It cannot be that deals are concocted whose purpose is to impair the rule of law and undermine the foundations of democracy for the sake of the prime minister, against whom three indictments loom. Bibi, I know you expected us to accept it submissively, but ignoring things is your shtick, not ours."

Gant's co-leader Yair Lapid said he will be holding a press conference on Monday to discuss "Netanyahu's attempts to arrange a get-out-of-jail-free card for himself and to turn the State of Israel into Turkey."

Netanyahu, who is facing three cases of corruption, is attempting to safeguard his immunity from prosecution by restoring the Immunity Law to the way it was until 2005. Under the previous version of the law, the attorney general would have to appear before the Knesset and explain why he wants to rescind an MK’s immunity, whereupon the Knesset House Committee can reject his request.

Restoring the law to its previous form, however, may not be enough to safeguard Netanyahu’s immunity. Such was the case of MK Michael Gorlovsky, who had improperly voted twice in a 2003 vote. The Knesset House Committee rejected the attorney general’s request to have his immunity removed so he could be prosecuted, and the High Court of Justice unanimously, with an expanded panel of seven justices, ruled that his immunity must be rescinded. To prevent a repeat of such a scenario, Netanyahu plans to advance a broad High Court override clause.

The proposed override clause would not only allow the Knesset to relegislate laws that the High Court strikes down – which wouldn’t help Netanyahu – but would allow the Knesset to ignore the court’s administrative rulings. For example, if a minister makes a decision that is overruled by the court in response to a petition – such as Netanyahu’s decision to ban the entry of Palestinian participants of a joint memorial day ceremony – the minister could reissue the decision anyway. Netanyahu would need such a broad clause to reverse a decision by the High Court to remove his immunity against the will of the Knesset, should the court ever be asked to rule on the matter.

Smotrich tweeted on Monday in response to this article: "I read the left's wails of despair (about Levinson's ludicrous fake news item) and ask myself whether, 30 years ago, we didn’t have democracy?! I did not know that Aharon Barak invented democracy … he stole it, and all we are doing is returning it to the people. That's all." Barak was the President of the Supreme Court from 1995 to 2006.

Meretz chairwoman Tamar Zandberg said the coalition agreement is a violation of law, adding that if the attorney-general doesn't bar the agreements, she will sue in the High Court of Justice. "The coalition agreement Netanyahu is trying to consolidate is a clear violation of law," she said. "It is a graft agreement in broad daylight."

"A suspect of corruption who openly discusses his personal evasion of indictment, instead of the greater good, is the very definition of breach of faith. I have already contacted the attorney-general twice about this and he isn't responding. If the buck doesn't stop with him I will turn to the High Court," Zandberg added.

Likud MKs are now working on the exact mechanism for overriding High Court decisions. The right-wing parties were demanding the passage of a law within 60 days that would totally negate the authority of the High Court to strike down decisions by elected officials or bodies like the cabinet, the ministers or the Knesset. Likud did not accept that proposal in full, but supports the principle of a way to “redecide” after the High Court rules.

Likud has gathered a number of expert opinions regarding the legal systems of Canada and England, countries where the parliament can pass laws over the objection of the Supreme Court.

In response, Likud said that "during coalition negotiations, various proposals have been raised, including in respect to restoring the balance between the legislative branch and the judicial branch."

Likud added that "The sensational media reports include proposals that were not discussed, and biased, misleading analyses ... The principle that will continue to guide the Likud is to keep the courts independent and strong, but that doesn't mean the court is omnipotent."