Justice Minister Daniel Friedmann announced on Sunday he will present a bill next week restricting the power of the High Court of Justice to nullify Knesset legislation which violates the Basic Law: Human Freedom and Dignity and the Basic Law: Freedom of Occupation.
Friedmann made the announcement during a meeting of the Ministerial Legislation Committee which determines the government's policy towards bills proposed by government ministries and private MKs.
Sunday's meeting included a discussion on two private member's bills dealing with the currently unrestricted right of the High Court to nullify legislation which it regards as violating statutory human rights.
According to a proposal by Labor MK Ophir Paz-Pines, it would require a panel of nine justices to nullify a Knesset law. The second proposal, initiated by Estherina Tartman (Israel Beiteinu,) prohibited the court from nullifying Knesset legislation altogether.
Ha’aretz (article 1):
The justice minister has declared his support for the Canadian model of judicial authority to strike down laws. According to the model, courts have the right to invalidate parliamentary legislation if they view it as impinging on human rights protected by the constitution, but the parliament has the authority to revise the legislation after the court ruling, thereby renewing the law's validity. The revised legislation can generally be passed in ordinary legislative proceedings, and must explicitly state that it applies despite what is written in the constitution.
The proposed Basic Law expressly described the judiciary's authority in overturning legislation, saying that only an expanded panel of nine Supreme Court justices could do so. The Canadian model, by contrast, allows all Canadian federal courts to strike down laws. The Canadian model also allows an overturned law to be reinstated with only one round of voting, as opposed to the proposed Basic Law, which requires the law be reinstated by a 61-MK majority in three rounds of voting, or a 70-MK majority in each round once a certain amount of time has passed.
Proposing that the legislature have such power would be an anathema in the United States where power is suppose to be balanced in three coequal branches government in order to protect citizens from the government and from the majority that from time to time may want to take away their rights. However, part of the problem is that Israel has no actual constitution.
It seems as though many Knesset members, including Labor Chairman Amir Peretz, are equally concerned by Friedmann’s proposal as are members of the Israeli legal community.
Ha’aretz (article 2):
Professor Uriel Procaccia, one of Israel's senior jurists, on Tuesday called on Justice Minister Daniel Friedmann to backtrack on his initiative to limit the High Court of Justice's constitutional authority.Procaccia, who heads the masters of law program at Herzliya's Interdisciplinary Center, wrote in a statement released Tuesday that, "Human rights advocates in Israel must join forces against Friedmann's initiative to curtail the High Court of Justice's constitutional authority."Procaccia added that, "The American Congress does not feel undermined by the courts' authority to proclaim a law passed in Congress unconstitutional. This is the law in many enlightened countries throughout the world."