Bennett-Lapid Government to Advance a Law Likely to Reduce Israeli Supreme Court's Power

The coalition deal between Yamina and Yesh Atid includes advancing a new law to determine whether the Supreme Court can strike down Basic Laws, and what Knesset majority is needed to re-legislate overturned laws

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Naftali Bennett and Ayelet Shaked of Yamina with Yair Lapid of Yesh Atid in the Knesset, on Wednesday.
Naftali Bennett and Ayelet Shaked of Yamina with Yair Lapid of Yesh Atid in the Knesset, on Wednesday.Credit: Emil Salman

The Yesh Atid and Yamina parties have agreed to move ahead on controversial legislation to regulate the relationship between the Knesset and the judicial authorities – including the Supreme Court's ability to overturn laws.

The plan to draft the new law is written into the coalition agreement. A clause states that "The sides agree to establish a committee, led by the justice minister and made up of members of all the coalition's parties, in order to legislate the Basic Law on Legislation." In Israel, which has no constitution, Basic Laws encode the structure of the government in civil rights.

The agreement states that New Hope chairman Gideon Sa'ar, who has likely been appointed as justice minister in the new government, will lead the committee, and will try to formulate the law in a way that everyone will find acceptable.

Attempts to advance such a law in the past were thwarted by Prime Minister Benjamin Netanyahu, including an attempt in 2017 promoted by Yamina MKs Ayelet Shaked and Naftali Bennett. The law they pushed included a clause that would have allowed the Knesset to legislate anew laws that were struck down by the Supreme Court, which garnered sharp criticism.

The proposed Basic Law on Legislation would determine two particularly controversial principles: whether the High Court of Justice should be able to strike down Basic Laws, and what sort of Knesset majority is needed to overrule the Supreme Court is striking down laws. Just last month, the Supreme Court sparked protest when it struck down an amendment to the Basic Law on the Government, which at the time prevented the dismantling of the Netanyahu-Benny Gantz unity government.

Many proposals have been made over the years to determine the majority needed to re-legislate overturned laws. One attempt included setting a basic majority of 61 out of 120 Knesset members, while another required a majority of 80 lawmakers.

If such a law passes, it would be the first in Israel's legal history to substantiate the Supreme Court's authority to overturn laws – an authority that has never been regulated – and even to determine the majority required to strike down a regular law, as opposed to a Basic Law. The coalition agreement does not include details of the law, which will be decided by the committee.

The disparate parties that make up the coalition are expected to have significant disagreements about the law; the right-wing parties will want to use it to increase the Knesset's power, and the center-left parties will want to give more power to the justices, or at least to preserve the power they currently have.

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