The Knesset’s own legal adviser has come out against proposals for supersession, which would enable the Knesset to override the High Court when the latter strikes down laws on constitutional grounds.
Eyal Yinon told Globes in an interview published Thursday that the High Court is not as bad as right-winged and chareidi critics say, and that danger to the Knesset’s legislative authority comes not as much from the judiciary as from the government.
“In general, I think that the government presents a far greater danger to the status of the Knesset and its powers than does the High Court. In recent years, the court has more than once defended the Knesset as an institution, whether it was in the case of the petition by MK Stav Shaffir — thanks to which order was introduced into the whole subject of budget transfers — or the petition over the agreement with the gas exploration companies, when the government tried to bind the Knesset for a long period into the future and the Court struck down this clause. Or in the context of the two-year budget as well, when the Court halted the passage of the measure through a temporary amendment to a basic law.”
Admirable as the abovementioned cases may have been, they do not compare with the shattering interventions by the High Court which overturned the draft exemption for yeshivah students, allowed mini-markets to open on Shabbos or handcuffed the efforts to solve the illegal migrant problem.
But Yinon argues against even the narrowest version of the override bill (put off for discussion until the Knesset summer session) which would only allow the Knesset to overrule the High Court on the issue of deporting illegal migrants.
“In the past few days, there has been a great deal of discussion of different models for the supersession clause — the Canadian model, the British model — but if you look closely at the theoretical models, you see how impossible it is to divorce them from the political and legal culture of each country.”
“In our reality, I think that in principle it would be a mistake to pass a supersession clause, whether it specifically concerns illegal migrants, or whether it is framed in general terms, and that it would do more harm than good. Good legislation requires restraint and balance, and as soon as, in effect, you remove constitutional review, that is liable to deal a severe blow to the quality of legislation and to the balances that must be maintained in it.”
The Knesset lawyer’s opinion is not likely to sway those who have fought for a redress in the imbalance of power favoring Israel’s leftwing, secular-oriented judiciary, and are now so close to achieving it.
Prime Minister Binyamin Netanyahu has wavered in his support for supersession, initially advocating a broadly-framed draft of the bill on the British model, which allows the courts only an advisory role; but then he backtracked on April 15, and called for more time to discuss the matter.
Yinon joins Attorney General Avichai Mandelblit in opposing the override bills, thereby making passage in any form even more difficult.