On Monday, a proposal by Simcha Rothman, the head of the Constitution, Law and Justice Committee of the Knesset, gained some traction, which was aimed at changing the form of judicial review in Israel.
This was after suggestions were put forward by an opposition MK about how the system would function, as they are heavily opposed to the government’s plan of overhauling the judiciary.
Gilad Kariv, the Labor MK, objected to the new proposal put forward by Rothman if it is enacted in itself. But, he said that if the two models of judicial review were combined, then it could possibly work.
This marked the first constructive debate to have taken place in the committee after the hearings had started in January.
It suggests that it may be possible to reach a compromise over the judicial reform package that the government has introduced, which are highly controversial.
The deliberations on an alternate proposal for judicial review presented by Rothman had begun in the committee on Monday.
The proposal dictates that the High Court of Justice would not have any authority of striking down legislation, but could issue a warning if the legislation would be incompatible with the Basic Laws in Israel.
The constitutional model of New Zealand and the United Kingdom have been used for developing the proposal.
In these countries, senior courts have the authority to declare if any legislation is incompatible with the constitutional law of the country and recommend that the law in question be amended by the parliament.
In such instances, the British Parliament has always managed to deal with the incompatibility, but New Zealand is quite new to this system.
In the debate on Monday, Kariv had first said that the proposal put forward by Rothman was not ‘serious’, but he suggested a combined system.
He said that the High Court should first try to muster enough consensus for striking down a legislation and if they do not have enough, then they can declare it ‘incompatible’ with the Basic Laws.
Rothman stated that the suggestion from the Labor MK was worth looking into and added that he would call onto the legal adviser of the committee to come up with a legislative proposal along these lines.
However, Kariv added that he did not want it to be presented as a joint proposal because there are solutions included in the UK’s judicial review model, but the Knesset is lacking in this regard.
He alleged that the alternate proposal put forward by Rothman was just to show an even more far-reaching option and claim that they had agreed to compromise by going forward with the original legislations.
But, he said that if they tightly restrict the traditional form of judicial review in which the High Court can strike down legislation, then they should offer a ‘soft’ judicial review.
This would be a declaration of incompatibility via a majority, which would lead to two mechanisms. He said that they would have to be combined in order to be effective.