Chief Justice Slams Bill Seeking to Salvage Laws Struck Down by Supreme Court

Details of the bill proposing a basic legislation have garnered various reactions since being released on the eve of Passover, and for the first time Supreme Court president Asher Grunis voices his opinions.

New Supreme Court president Asher Dan Grunis criticized the justice minister Wednesday for not consulting with the court in crafting a bill that would let the Knesset override the court when it finds bills unconstitutional.

Grunis also blasted the minister, Yaakov Neeman, for proposing that only 65 Knesset members be needed to override the court, rather than 70, as he had recommended as the head of a public committee in 2004.

Justice Asher Grunis - Tomer Appelbaum - 29112011
Tomer Appelbaum

Grunis called for a thorough debate on Neeman's proposal, which would become the Basic Law on Legislation. It was the first time he criticized Neeman after becoming court president in February.

Basic laws in Israel have the status of constitutional provisions, even though the country has not completed a constitution. Just before Passover, the Justice Ministry released the draft of its proposal for a basic law on the relationship between the Knesset and the judiciary.

Speaking on Tuesday at a swearing-in ceremony for judges, Grunis warned that passage of the provision could have negative consequences in the long run. The ministry's proposal would give the Supreme Court the formal right to invalidate Knesset legislation that the court rules is in conflict with a basic law. But it would also give the Knesset the power to override the court by passing the law again.

Grunis took Neeman to task for not consulting with him and his fellow justices when drafting the proposal.

"The proposal was released one day before the Passover seder," Grunis said. "It seems unnecessary to mention that such an important, central document to our constitutional form of government would be submitted after consideration by the Supreme Court and consultation with it."

The proposal would require that laws need the support of 65 of the Knesset's 120 members to be reinstated. But when Neeman was still in private legal practice, the panel he headed in 2004 recommended 70 MKs.

Neeman has not explained why his ministry's proposal would only require 65 Knesset members. In the past, justices Aharon Barak and Dorit Beinisch, both of whom served as Supreme Court presidents, recommended 70 MKs.

Grunis called 70 MKs an approach that provided "a better balance between the legislature and the court," compared to the ministry's proposal.

"In its current form, the bill raises more than a few problems," said Grunis. "For this reason, there is room for a thorough debate on the proposal [and] cooperation and dialogue ... to ensure that the proposal strengthens our constitutional form of government," Grunis said.

The approach to reinstituting legislation invalidated by the courts is a Canadian invention, Grunis noted, but he said it has never been invoked by the parliament in Ottawa to reinstate a law.

President Shimon Peres, meanwhile, has said that any such basic law would have to be based on a broad national consensus. Peres warned that the government must exercise "particular care" in passing legislation with constitutional status. He said the government needs to build a national consensus on its approach.

Peres also cited the example of Israel's first prime minister, David Ben-Gurion, who opposed the enactment of a constitution when the state was founded because of its long-term ramifications for future generations.

Read this article in Hebrew.