Friedmann seeks to limit High Court's authority

Justice Minister Daniel Friedmann is expected to present the government with a first-of-its-kind bill next week, limiting the High Court's legislative leeway in quashing new laws passed by the Knesset.

High Court judges enjoy complete legislative freedom which allows them to annul any act they feel may contrast the Basic Laws. Friedmann's motion stands to limit those freedoms, as well as redefine the Knesset members' ability to re-file motions for laws which have been previously annulled.

Supreme Court President Dorit Beinish and her High Court peers fiercely object the move, which may cause a new political crisis, as Labor minister have voiced strong objections to any of Friedmann's attempts to implement judicial reforms, since they consider them detrimental to the judicial system.

Friedmann's reforms have been the subject of harsh criticism from day one, prompting him to prepare a more moderate version of the bill for the government to review.

According to the new version – and for the first time since Israel's inception – the High Court of Justice's authority to quash any legislation detrimental to human rights would be limited.

Controversial rulings

Israel's Basic Laws were passed in 1992. Throughout the years, the High Court's ability to annul Knesset legislation has been the major bone of contention between the High Court, the Knesset and the academia.

The High Court has exercised this authority five times in the past, quashing sections in the Disengagement Act; revoking the license given Arutz 7 Radio; annulling legislation which said the State was not liable for Palestinians who suffered accidentally harm by military forces' operations; and amending a military judicial code order which allowed the IDF to hold a soldier in custody for up to four days without a hearing.

The High Court's authority to quash legislation was never sanctioned by the Knesset per se, but was derived from a dogma set by the court itself.

Furthermore, judicial ambiguity as to which court can and cannot actually annul laws, have resulted in cases where district courts had declared Knesset legislation null and void.

Friedmann hopes that defining the court's authorities would be able to put to rest years of wrangling feuds between the legislative and judicial authorities, believed to be one of the main causes for the public's lack of faith in both.

Legislative distinctions

According the motion, the High Court would be named the sole judicial authority able to challenge and quash Knesset legislation; and any such move would require a two-thirds majority of the panel presiding over any such hearing. Cases of this kind are heard before a special, extended panel.

Nevertheless, the motion limits the High Court's authority, noting it can quash only acts which are detrimental to human right defined by Basic Law: Human Dignity and Liberty and by Basic Law: Freedom of Occupation.

Supreme Court President Dorit Beinish has already filed a brief with the Ministerial Committee on Legislation, protesting the distinction made between the liberty and freedom of occupation act and all other Basic Laws.

The motion, she noted, "harms the legislative norm customary in the Israeli judicial system."

According to Friedmann's motion, the Knesset would need a majority of 61 MKs in order to enact a law which had been previously quashed by the High Court, but Beinish believed that too allows the Knesset to "circumvent a High Court ruling in an unacceptable manner.

"Knesset approved laws may stand indefinitely… if the High Court decided to challenged or annul a law, the Knesset could just as easily pass it again; in a fashion too harmful to human rights in Israel," said Beinish in her brief.

Sources close to Minister Friedmann told Yedioth Ahronoth that despite Beinish's concerns, the new bill formally legitimizes the High Court's right to quash Knesset legislation, while the Knesset retains the right to have the final say in very specific cases.