In an interview Monday, Likud MK Yoav Kisch told Channel Ten that an “override law” that would allow the Knesset to legislate despite High Court decisions was absolutely necessary for the survival of Israeli democracy. “Nowhere is it written that the High Court has the authority to cancel Knesset laws. It is just an opinion that is floating around, it is an authority the court took for itself. The balance of power in the legal system has been damaged.”
Kisch was speaking a day after the government discussed the possibility of legislating a measure that would enable the Knesset to pass laws that disagree with the opinion of the High Court. As things stand now, laws that the Knesset pass often get struck down by the court after those opposed to the laws petition against them, forcing MKs to develop new laws that they hope will pass the court’s test.
So far, the Knesset has taken to reversing these decisions on a case-by-case basis – for example, it is trying to draft a fourth law regulating drafting of yeshivah students after the court struck down the last three laws passed by legislators. Under a proposed “override law,” the Knesset would declare that it has the right to pass laws without regard for the court’s opinion.
Several models for the measure have been proposed, as similar laws exist in many Western countries. One popular model is the “Canadian model,” in which the Knesset, in the event the court strikes down a law, would pass a second law that would remain extant for five years before the court could rule on it again.
The Cabinet discussed the matter at its weekly meeting on Sunday, but came to no conclusions – mostly because of objections by Finance Minister Moshe Kahlon. Netanyahu met with Kahlon privately on Sunday, while Likud MKs slammed him for refusing to support the measure. Yediot Acharonot said that Kahlon had told Interior Minister Rabbi Aryeh Deri that he was willing to compromise on passing laws that would remove illegal African migrants from Israel, but not on overriding the High Court. “Doesn’t Netanyahu understand that without me he would not be prime minister?” Kahlon reportedly told Deri. On his way into the meeting, Kahlon was heard telling one of the other ministers that “I don’t care what the polls say, if the Likud gets more than 25 seats in the next Knesset I will cut my arm off. If they want elections, then let there be elections.”
Opposing the idea also was former High Court justice Elyakim Rubinstein, who told Army Radio that “the High Court can make mistakes, but what is going on here is demonization. Around the world, the court is one of Israel’s greatest inventions – it protects minorities and the weak. Despite the furor, the court is very conservative in its decisions.” Contrasting with Rubinstein’s opinion was that of Attorney Nadav Haetzni, who, writing in Maariv Monday, said that “the airwaves have been full of officials and former judges providing sage advice on how we are being misled on this issue. They are using all the ‘scare tactics’ available in order to prevent passage of this law. There is no red line they are willing to cross in order to push their agenda.”