Israeli minister proposes to establish a separate High Court

A constitutional court should be established for judicial review, Communications Minister Shlomo Karhi said on Friday, publishing a proposal for Basic Law: Court of Judicial Review amid fierce debate over the Supreme Court of Justice’s ability to strike down the quasi-constitutional basic laws.

Karhi’s draft would separate the High Court of Justice from the Supreme Court, and endow it the power to engage in judicial review of regular and basic laws. The court would be able to reject the validity of a basic law, but the Knesset would be able to override the decision with a majority vote.

Judges wouldn’t be appointed through the Judicial Selection Committee, or promoted from pools of pre-existing jurists. They would be elected by the Knesset, and selected from Knesset members. Knesset members would resign as MKs to assume the judgeship and serve terms of ten years, depending on how many seats factions would have, the more judicial slots they would have.

Karhi acknowledged on social media that the law didn’t address how the judicial representatives would change according to a new Knesset.

The bill also doesn’t elaborate on how many judges would be part of the court, only that it wouldn’t preside on cases with less than nine judges.

Requests for judicial review would come from other tribunals or litigants who feel the case touches on constitutional issues, the Knesset Speaker at the request of at least thirty Knesset members, or parties directly impacted by a law.

The explanatory notes argue that constitutional questions are tearing the state apart, with the Knesset upending old system fundamentals and the courts engaging in far reaching judicial activism and preventing changes to basic laws. The 1990s constitutional revolution granted greater powers to the High Court of Justice at the expense of the legislative branch, and the notes argue that the public has been clamouring for a rebalancing of the authorities. The draft called for the establishment of a constitutional court similar to many other states, which would have members derived from elected representatives to ensure the citizenry’s will was properly represented in the body. This would strengthen the legislature, increase public trust in the judicial review process, and protect minority rights, assured the notes.

“The proposal is ready, we can all unite around it. I submitted it in a different version in previous Knessets, in this Knesset I did not have time to submit the new versions,” Karhi wrote on social media. “Hardworking Knesset members are invited to take and submit it.”

Ohana calls to split Supreme, High courts

Karhi’s proposal comes after Knesset Speaker Amir Ohana’s own call on Thursday to split the Supreme and High Courts into two bodies.

"In a constitutional court, which will be authorized to discuss constitutional issues that have existence even though Israel has no constitution, and which discusses values, worldview, and concepts from the worlds of ideology, there will be no advantage [given to] the jurists," he explained in an interview with Ynet. "Public representatives from a variety of fields will also be able to sit [on the court]. This is one of many bills that will surely be discussed if necessary."

Ohana said that this was one of the idea being discussed. The speaker also warned the Supreme Court again against the striking of the judicial reform basic law amendment to restrict the reasonableness standard law, saying that it was inviting constitutional crisis if it did so. Ohana on September 6 had cautioned the court that it did not have the authority to strike down basic laws.

The proposals by Ohana and Karhi were made amid controversy surrounding the reasonableness law hearing on Tuesday. Much of the hearing was devoted to arguments on the court’s authority to strike down basic laws. The court has never struck down a basic law before, but many justices believe that they have the power to do so. 

Since January 4, Israel has been embroiled in a debate on a judicial reform that has sought to restrict judicial review and change the method for choosing judges.

Ariella Marsden and Troy Fritzhand contributed to this report.