Explainer

How Israel's Government Is Aiming to Outweigh the High Court

Everything you need to know about Netanyahu's attempt to weaken the powers of Israel's High Court of Justice, and how it holds up against other countries

Prime Minister Benjamin Netanyahu and other members of his cabinet in the Knesset on April 15, 2018.
אלכס קולומויסקי

The argument over the authority of the High Court of Justice to overturn laws has been on the public agenda for over 20 years. The justices gave themselves that authority in a ruling issued on November 9, 1995, five days after the assassination of Prime Minister Yitzhak Rabin (United Mizrahi Bank v. Migdal Cooperative Village), but the matter has never been formulated in law. Over the years there were calls to limit the court’s power to invalidate a law, but they never progressed.

What is the prime minister’s proposal?

Prime Minister Benjamin Netanyahu’s bill is based on the so-called British model and would allow the High Court to overturn legislation only by a unanimous vote of all 15 justices.

What is the British model?

The Supreme Court of the United Kingdom cannot overturn any primary legislation passed by the parliament, but it can examine bills and suggest changes. While Israel has a set of Basic Laws that function as a constitution, the United Kingdom does not. Researchers at the Israel Democracy Institute in Jerusalem argue that the situation in Israel is very different from that of Britain, where layers of checks and balances are built into the system. These include a bicameral legislature, a parliamentary committee that examines bills to verify that they will not infringe on human rights, and the fact that the United Kingdom is a signatory to the European Convention on Human Rights. Every citizen or person subject to its government may petition the European Court of Human Rights in Strasbourg, France and complain that Britain is infringing on his rights. While Israel has a parliamentary style of government, the sole check on the ruling coalition in the Knesset is the High Court of Justice.

How does Netanyahu’s current proposal differ from bills on the issue that were rejected?

In 2004 a committee chaired by Prof. Yaakov Neeman recommended the enactment of a Basic Law on Legislation that would allow the Knesset to override a High Court veto of a law, if it had a majority of 70 of the legislature’s 120 lawmakers. In 2012, as the minister of justice, Neeman proposed a 65-MK threshold for an override. His predecessor, Daniel Friedmann, favored allowing a majority of 61 votes to reenact an overturned law. Former Supreme Court President Aharon Barak supported the need for a special majority of 70 MKs, while Israeli President Reuven Rivlin was in favor of a majority of 65 lawmakers. Netanyahu’s proposal, in contrast, denies the High Court’s authority to override the Knesset, except by unanimous ruling.

In December, Justice Minister Ayelet Shaked published a proposal for a Basic Law on Legislation that gave the High Court the right to overturn laws – but required a two-thirds majority (six justices on an expanded panel of nine) to do so. In addition, it allowed for the Knesset to override such a decision with a majority of 61 MKs. Moreover, it barred the court from overturning a Basic Law on the grounds of unconstitutionality, with the exception of cases in which there was a flaw in the legislative process as specified in the Basic Law itself.

What is the attorney general’s position?

Attorney General Avichai Mendelblit attended the weekly cabinet meeting on Sunday and said that every government wants to introduce an override clause enabling the Knesset to re-legislate laws overturned by the High Court, and that a special majority of 70 MKs must be required to do so.

Mendelblit’s immediate predecessor, Yehuda Weinstein, responding to previous bills aimed at getting around High Court rulings in regard to the treatment of asylum seekers in Israel, said they “severely undermined the constitutional method” and that a majority of 61 MKs was insufficient to override the High Court.

Why is there a need for a High Court-override law?

First, some history. In October 2014, after the High Court overturned a new law allowing asylum seekers to be held indefinitely at the Holot detention center, Ayelet Shaked – today the justice minister, then an MK – submitted an amendment to the Basic Law on Human Dignity and Freedom that would have permitted the Knesset to reenact laws overturned by the High Court on the grounds that they violate the Basic Law, with a vote of 61 MKs. The Supreme Court president at the time, Justice Asher Grunis – who voted against his colleagues’ decision on Holot – attacked Shaked’s bill. “A directive allowing the Knesset to decide that a certain law will be valid despite the court’s ruling is liable to lead to a situation in which the court cannot carry out its appointed function as the last obstacle to a tyranny of the majority.”

Shaked and her party colleague, Habayit Hayehudi Chairman and Education Minister Naftali Bennett, introduced the Basic Law on Legislation in the wake of two particularly activist rulings by the High Court in the past year: the one overturning the tax on a third apartment, over procedural flaws; and the one canceling the two-year national budget.

How many laws has the High Court overturned?

Since 1995 the court has overturned 18 laws or parts of them. These include a bill to privatize the state’s prisons; the Tal Law allowing full-time yeshiva students to defer army service and the amended conscription law; a law allowing soldiers to be held for 96 hours without being brought before a judge; provisions in the law underpinning the 2005 disengagement from the Gaza Strip; three laws on illegal entry to Israel; a provision in the so-called boycott law allowing the claim and payment of compensation without having to prove damage; the tax on a third apartment, and the law denying welfare payments to car owners. In addition, the court intervened on numerous occasions in rulings that did not involve laws. For example, it barred the state from retaining the bodies of terrorists as bargaining chips, ordering that a law must first be passed explicitly giving the state that right.

What is the situation in other countries in regard to the re-legislation of laws overturned by the court?

Canada is the only country whose constitution allows for the re-legislation of a law after it was invalidated by the court. Israel’s advocates of eliminating or restricting judicial review look to Canada for inspiration, but both Grunis in his day and the deputy president of Israel’s Supreme Court today, Justice Hanan Melcer, have said that the two countries cannot be compared and that the Canadian parliament only rarely uses its right to override the country’s Supreme Court.

In 1994, shortly after the Basic Law on the Freedom of Occupation was passed, the Knesset passed a rider to the law in order to pass a law prohibiting the import of pork after it was struck down by the High Court.