Photo Credit: Marc Israel Sellem/POOL
Prime Minister Benjamin Netanyahu with Supreme Court Chief Justice Esther Hayut, November 1, 2017.

Prime Minister Benjamin Netanyahu and Supreme Court President Esther Hayut are expected to meet Monday to examine the “overruling Claus,” an amendment to Israel’s constitutional “basic laws” allowing government to bypass the High Court of Justice, Channel 1 News reported Sunday night.

The impetus for the meeting came from Attorney General Avichai Mandelblit, who requested the heads of the two branches of government study the proposed dramatic change in the country’s legal system.

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The “overruling clause,” which has already amended one basic law, allows the Knesset to enact laws with portions that contradict constitutional edicts provided that said laws enjoy a 61-vote majority, recognize the contradiction in the text of the new law, and include a sunset component after four years (although the law can be renewed with a 61-vote majority).

On Sunday, Netanyahu Kulanu Chairman Moshe Kahlon met to try to formulate a proposal for legislation bypassing the High Court of Justice. They discussed forming a ministerial committee headed by Justice Minister Ayelet Shaked, with representatives from the coalition parties and representatives of the Attorney General and of the judicial system.

Kulanu has the power to prevent a debate of the “overruling clause” from reaching the Ministerial Committee on Legislation, since the coalition agreement states that any amendment to the Basic Laws will be debated only with the consent of all the coalition factions. The proposed clause constitutes an amendment to the Basic Law: Human Dignity and Liberty, and so Kulanu is in position to deliver a knockout punch to the entire process – of course with the likely consequence of Netanyahu dispersing his government and going to new elections.

The polls predict a sharp drop in Kulanu’s 10-seat Knesset delegation should the elections be held this week.

On Sunday, Justice Hayut expressed her opposition to the coalition’s move to circumvent the power of the High Court of Justice. In a speech at Tel Aviv University, the court president said that “one of the essential guarantees for democracy is to maintain an independent legal system.”

Of course, there’s independence and then there’s domination, which the high court has exercised since 1995, using the Basic Law: Human Dignity and Liberty (which was not enacted by a 61-vote majority) to usurp powers the legislator had never dreamed of giving the judicial branch of government.

Hayut added that “we must fight against the growing public discourse that is becoming ever more blatant and violent.”

Perhaps the public discourse would be calmed down if the court let go of its tyrannical tendencies. One good place to start, many on the right have been saying, is to eliminate the Supreme Court’s alternative persona as the High Court of Justice, where petitions may be presented without going through the appeal process, and where one need not show one’s right of standing in any given case. In other words, anyone can walk into the High Court and sue anyone and anything on the grounds that they don’t like it, without showing how they were impacted.

No other court on the planet has usurped such powers. Which is why people’s anger at the court has been accumulating for 23 years now, which explains the blatant discourse thing Justice Hayut doesn’t like.

At Sunday’s cabinet meeting, Attorney General Mandelblit proposed a solution that may be inelegant but could do the job: a panel of 9 High Court justices would be required in dealing with annulling new legislation, and the annulment would require a 6-justice majority. At the same time, the Knesset could re-enact a court-annulled law with a 5-year sunset, with the support of 70 MKs.

The coalition leaders agreed to discuss the matter again Monday.

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