Netanyahu pushes for dramatic judiciary restructuring
A-G supports bill to reverse top court rulings against laws
Prime Minister Benjamin Netanyahu pushed for further changes in Knesset-judiciary relations on Sunday, although Attorney-General Avichai Mandelblit suggested a formula to circumvent Supreme Court reversals of laws passed by the Knesset, which could curb coalition disputes and avoid an election over the issue.
Mandelblit recommended passing a new basic law that would only allow the Supreme Court to strike down laws with a majority of six of nine judges, and for the Knesset to be allowed to re-pass such laws with a 70-MK majority. After hearing the suggestion at a meeting between Mandelblit and coalition party leaders, Finance Minister Moshe Kahlon said he would support it.
Previously, Kahlon was the sole opponent of a broad bill to limit the Supreme Court’s power to cancel laws – either banning the practice outright, as Netanyahu suggested, or a “circumvention provision” allowing the Knesset to re-pass laws, as supported by Bayit Yehudi. Kahlon called for a workaround that would only reverse the court’s decision that struck down the government’s plan to deport migrants, which in recent days has been the root of the debate over the judiciary’s authority.
Though Mandelblit’s proposal solved the problem of Kahlon’s opposition, Netanyahu, Tourism Minister Yariv Levin – who liaisons between the government and the Knesset – and Education Minister Naftali Bennett, all of whom have been pushing to limit the court’s authority, said it does not go far enough.
Netanyahu and Levin said a decision to strike down a law should only be accepted if it is decided unanimously by the Supreme Court.
Bennett expressed concern that such a law – the first to explicitly give the Supreme Court the authority to act like a constitutional court and strike down laws – would encourage the judges to do so more often, and he and Justice Minister Ayelet Shaked opposed requiring a super majority for the Knesset to reverse such decisions by the court.
At the end of the 25-minute meeting, Netanyahu said there would be more meetings on the matter within a short period of time, starting on Monday. He said he would like to hear the opinions of current and retired Supreme Court justices.
Netanyahu met with former Supreme Court president Aharon Barak on Saturday to discuss options for judicial reform, and Channel 1 reported that he will meet with current Supreme Court President Esther Hayut this week. Barak is Israel’s foremost advocate and practitioner of judicial activism, but Netanyahu’s spokesman said the prime minister told Barak, “He plans to promote a broad circumvention provision, because the time has come to regulate the relationship between the judicial and legislative branches.”
After the meeting of coalition leaders, Bennett said he would support whatever version of the bill Netanyahu chooses, but that the time has come to pass a law to deport migrants that the Supreme Court will not be able to cancel, by way of a circumvention provision.
“The prime minister said he’ll hold discussions, but words and discussions won’t remove the illegal infiltrators from south Tel Aviv,” he stated. “Only determined action by the government of Israel will remove the work migrants from Israel.”
One senior Likud minister said Netanyahu was pushing the issue farther than Kahlon would likely be willing to accept because the prime minister wants an early election.
Kahlon, who opposed going beyond Mandelblit’s outline, made a similar assessment, with sources close to the minister quoting him as saying: “Netanyahu can’t continue being prime minister without me,” because he needs Kulanu to sustain the coalition. “If the Likud wants an election, it’ll get an election, but by my estimate, it won’t get more than 25 seats.” The Likud currently has 30 Knesset seats.
Earlier Sunday, Public Security Minister Gilad Erdan said limiting the Supreme Court’s power is a worthy reason to go to an election.
“If there is a reason for which it is justified to go to an election, then the topic of the ‘circumvention provision’ and the necessary balance between the branches of government is that topic,” Erdan wrote on Twitter.
Levin, a close Netanyahu ally and recently the prime minister’s point person on the issue of the Supreme Court, said he was happy to see that the idea of a narrow law which would only allow the deportation decision to be reversed was dropped, but that action was insufficient.
“The goal is to create the right order, and in that framework I will make sure that if we want to give the Supreme Court the authority to cancel laws, it has to come together with re-passing Basic Law: Human Dignity and Liberty, and with changes in the process of selecting judges,” he stated.
Levin added: “We have to remember, the power in a democratic country comes from the people and not a small group of judges. We can pass a ‘circumvention provision,’ but we have to pass it in the right way that will give the Knesset the power to be the one who decides. And it is no less important... that judges be selected in a way that is representative, and that Basic Laws pass the way constitutions do in other countries.”
The minister also said “everyone understands” that the migrants cannot stay in the country, despite what the court said.
Erdan told Army Radio, “There is a serious problem that deepened over the years, in that the balances between the branches of government was violated. And when it comes to significant topics on which the nation votes in representatives once every few years to make decisions, the right to decide is taken from the Knesset and government by the High Court of Justice .... There have been a series of judicial decisions in recent years, tying the government’s hands on diplomatic and political decisions.”
For example, Erdan pointed to the police holding the bodies of the Israeli Arabs who shot and killed three Israeli policemen on the Temple Mount, on condition their families not hold a mass funeral procession. The court ordered that the bodies be released, and thousands gathered in Umm el-Fahm for the funeral.
“It’s our responsibility to fix and balance and make a change in this area,” he said. “If there’s a justified reason to go to an election, this is the reason. We can’t compromise and be flexible.”
“If we can’t make decisions in the parliament and government, we need to go to the people and ask for their decision on this matter,” Erdan added.
Zionist Union leader Avi Gabbay came out strongly against the proposals to reverse Supreme Court rulings, calling them dangerous and saying they will leave citizens without a place to fight injustice by the government.
“There is no Supreme Court with a circumvention provision,” Gabbay stated. “It’s an Israeli invention that doesn’t hold water. I call on the prime minister to act like a prime minister. That’s what you were elected to do. Stop being [hardline Bayit Yehudi MK Bezalel] Smotrich’s prisoner.