High Court’s Power Could Be Rolled Back Under New Proposal

A view of the High Court building in Yerushalayim.

A new law proposed by MK Moti Yogev seeks to roll back the authority of Israel’s High Court to the level it assumed in the mid-1990s, before the “judicial revolution” engineered by former High Court Justice Aharon Barak. The bill was authored by Yogev after consulting with the Derech Chayim organization, which has taken upon itself to attempt to regulate the behavior of the High Court and limit its excesses.

The law is based on a similar one currently in force in the United Kingdom. Under the law, the court has the right to express its opinion on the constitutionality of laws passed by the Knesset, although it will not have the right to strike them down. The court’s opinion will be provided to Knesset members, who can choose themselves to strike down a law by legislating a reversal, or to ignore the court’s opinion.

According to Derech Chayim, the right that the court has arrogated to itself to cancel laws passed by the Knesset is based on a misinterpretation of a Basic Law. There is no direct authority for the court to have taken on this right, however, and the time has come to rectify the situation. The Israeli court’s actions have garnered criticism from legal scholars around the world, said the group, as well as from Israeli jurists. A U.S. Federal Court appeals judge, Professor Richard Posner, termed the method by which the court cancels Knesset laws as “ruling by force.”

“Time and again we find legislators constrained by the High Court when they try to pass laws,” said the group. “Residents of south Tel Aviv, residents of Yehudah and Shomron and members of the chareidi community have all been harmed by the High Court’s ‘dictatorship.’ The time has come for the Knesset to act to take back its power and end the situation where judges who represent a tiny portion of the public are allowed to decide what is right and wrong, what is moral and what is immoral,” it added.