Knesset advances bill that would preemptively shield laws from judicial oversight
Wednesday’s Knesset reading of the preliminary reading of the bill allowed parliament to pass laws that are preemptively exempt from judicial review. This allows parliament to legislate laws without needing to be subject to judicial review by having a simple majority (61 out of 120 MKs).
This bill is part of a government effort to eliminate judicial checks on it powers as part a radical reform of country’s judiciary and, critics argue, its entire system of governance.
Legislators could add the “notwithstanding clause” to almost any bill. This would prevent the courts from reviewing the bill under any circumstances, even if it directly contradicts one or more of Israel’s quasi-constitutional Basic Laws.
The immunity clause would only be added to rare laws that need a majority of at least 61 MKs.
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The bill states that the High Court cannot review a law that has a clause added to it unless it directly contradicts a Basic Law. It will not be able, if it does so, to strike it down in a unanimous ruling by all 15 judges.
Presumably, if it did, the Knesset will then re-legislate the bill and add the notwithstanding section, overriding quickly the court’s decision and rendering the bill ineligible.
Yair Lapid, the leader of the Opposition, criticized the government at the Knesset session because it said it was open for talks and still advancing highly contentious legislation.
“Don’t talk to us while we’re passing the bill… What conversation is this? “Enough with the lies,” Lapid told Justice Minister Yariv Levin from the Knesset podium.
According to the opposition leader, the justice minister is Israel’s “real prime Minister… It will be on your head in six months, when the Israeli economy collapses, and half a year, when the country begins to crumble.”
This bill is the second major piece in the coalition’s judicial Reform Plan. It follows a separate bill that was passed Monday in its first reading. The bill aims to consolidate coalition control over the appointing of judges and to block the Supreme Court’s review of any country’s quasi-constitutional Basic Laws.
The private bill of Simcha Rothman, chair of the committee, was almost identical to the parallel bill currently being discussed in the Constitution, Law and Justice Committee. It passed its preliminary reading 62-51.
The legal advisor to the committee warned Monday that the Knesset was removing protection from civil liberties including equality and freedom speech by excluding laws from judicial review. These rights are not contained in Basic Laws but were established by court.
The coalition is moving forward with its overhaul plan. Justice Minister Yariv Levin stated to the Knesset that the coalition was open to discussions with the opposition on the bills. This sentiment was dismissed by Yair Lapid, the opposition leader.
“Don’t talk to us while you’re passing the bill ….. What conversation are we having? “Enough with the lies,” Lapid replied to Levin at plenum.
President Isaac Herzog and Lapid asked the coalition to stop its legislative push to allow for dialogue. However, the coalition insists that it wants to continue discussing bills as they move through the Knesset at the current pace.
Below are additional details about the two main provisions in Wednesday’s bill. They both aim to redraw power lines between courts and Knesset.
Non-exclusive clause
The most powerful and first is the “notwithstanding clause”, which allows Knesset to pass legislation that is preemptively impervious to court oversight.
The text of the amendment states that the Knesset has three options to harness this power. It must contain a clause in the protected law that explicitly states that the law is valid, regardless of what is contained in Basic Laws.
This means that the “provision of the law prevails” over a Basic Law if they are in conflict. Only exceptions are for law provisions that require more than 60 MKs to change, such as changes to core elements of election laws.
To make the notwithstanding clause valid, it must be approved by a majority of 61-MK voters.
Preemptive immunity has an expiry date. It expires two years after the Knesset began following the Knesset which legislated the law. This means that the preemptive immunity will be in effect for two years after an election holds a new parliament. The third measure is that the next Knesset may extend the validity of the preemptive immunity “indefinitely”.
Rothman stated in remarks before the preliminary reading vote that “we designed a system that makes… it very difficult to obtain an override [of court], basically two Knessets and over 61 MKs.”
Israel has jogged in the last four years from its 20th Knesset to its 25th Knesset. This was the result of five consecutive elections.
Constraining judicial review
The bill not only creates preemptive immunity but also provides a double-edged sword to allow judicial review. Although it grants the Supreme Court formal authority to review laws that are not covered by the notwithstanding clauses, the bill severely limits the court’s ability of oversight.
To strike down a law, or any provision within it the court must determine that the law is “clearly contrary to a Basic Law.” This means that the court cannot interpret additional protections into Basic Laws. These interpretations have established Israelis’ rights of equality and freedom to speech and a host other civil liberties that are not explicitly guaranteed or protected by the Knesset.
If Monday’s bill passes two more votes, it would remove the court from its ability to review Basic Laws.
A simple majority of the Basic Laws can be passed with only a few MKs present. They were originally intended to be the first chapters of an Israeli constitution. However, they can cover a wide range of topics that are essential for the state’s operation and values.
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