Proposed Judicial Reform Bill Seeks To Redefine Israel’s Legal Landscape

Court Interference in Legislation and the Override Clause

The Current Reality:

The absence of checks and balances within the judicial branch in Israel has led to an imbalance of power. A significant transformation occurred in 1995 when the Supreme Court granted itself unprecedented authority. It took the power to determine which laws to strike down, who can petition the court, and to involve itself in various issues, effectively assuming the role of writing Israel’s constitution. As a result, democratic decisions are conditional, awaiting the court’s approval rather than being determined by public representatives.

The Supreme Court’s ability to strike down laws with a panel of just three judges, without requiring a supermajority, was not originally granted. The court gradually assumed this power during what is referred to as the Constitutional Revolution. An override clause already exists in the Freedom of Occupation: Basic Law, enabling the Knesset to override Supreme Court decisions with a majority of 61 members. It is important to note that there is no equivalent override clause in the Human Dignity and Liberty: Basic Law.

The Constitutional Revolution is founded on the premise that Israel’s constitution lies within the Basic Laws. Under this notion, when the Court invalidates laws, it does so on the grounds of their contradiction with the Basic Laws.

What is particularly concerning is that the Supreme Court has expanded its reach to interfere in the Basic Laws themselves, which are considered to be Israel’s constitution. This signifies a significant departure from the original intent.

The Proposed Reforms:

The process of striking down laws will require the full assembly of the Supreme Court, with 15 judges present to prevent any influence based on the panel’s composition. A supermajority of 12 out of the 15 judges will be necessary to invalidate laws.

Regarding the override clause, if the Supreme Court strikes down a law, the Knesset will have the opportunity to legislate it again within a limited timeframe, with a majority of 61 Knesset members. However, if the court unanimously invalidates a law, the Knesset will only be able to override it in the subsequent term rather than immediately.

In terms of the Basic Laws, the proposed reform suggests that the Supreme Court should not have the jurisdiction to rule on their validity. This adjustment brings Israel in line with other prominent democracies, as no other Western democracy permits its court to make determinations regarding the constitution itself.

The proposed amendments are intended to be moderate, aiming to define and regulate the powers of the Supreme Court while incorporating checks and balances into the current system. The objective is not to dismantle the system or entirely reverse the Constitutional Revolution but to establish a legal framework where the court is authorized to strike down laws.