This position paper, which was submitted to the Knesset Constitution, Law, and Justice Committee on 12 February 2023, discusses the proposal to abolish judicial review of Basic Laws. Zulat’s position is that the proposed amendment might totally dismantle Israel’s already fragile constitutional fabric. It will enable the government, which has full control of the Knesset, to enact Basic Laws that are personalized and that enable conflict of interest according to its needs at any given time. The proposal will block any judicial review of the substance of Basic Laws, and is actually intended to curb the application to Supreme Court rulings of the “abuse of the constituent authority” doctrine, which ascertains that a Basic Law conforms to constitutional norms in terms of its stability, generality, and compatibility with the existing constitutional fabric.
For example, the coalition could pass an amendment extending the Knesset’s tenure if it sensed a decline in the polls prior to an election, yet another amendment could preemptively extend the tenure of a prime minister for years on end (separately from the Knesset’s tenure), a third could allow MKs and government ministers to receive a salary or donations from private entities without any restrictions, and a fourth could increase the Knesset’s size for the purpose of a specific vote if uncertain of a majority.
The proposed amendment will allow the government to enact laws whose substance will fatally harm the principle of equality and the core of democracy, will legitimize corruption, and will impede blocking dangerous, corrupt, and undemocratic Basic Laws early in the legislative stage.
Zulat recommends to the MKs representing the democratic public:
- Although the proposal deals specifically with the question of judicial review of Basic Laws, it is inseparable from the comprehensive move to effect a regime revolution and allow the government to gain full control over the legislative and executive branches, given the Knesset’s traditional position against such review.
- MKs must refuse to engage in a debate before the government reveals all the “chapters” of the legislation package it intends to promote based on the coalition agreements. The “salami method” is designed to confuse MKs and the public regarding the comprehensive move planned by the government to effect a regime revolution. MKs must refuse to discuss any proposed amendment separately. Instead, they must treat them as a single package that will transform Israel into an authoritarian regime and completely eliminate the checks and balances between the branches of power.
- MKs must refuse to block the judicial review of form and substance of Basic Laws and not make do with a “compromise” allowing a review limited to finding gross errors in the legislative process (e.g., if the amendment contravened a special majority caveat), given that a government with absolute control of the Knesset would be able to enact Basic Laws in a seemingly correct procedural manner, which could nevertheless seriously harm the principle of equality and the core of democracy, both in form and substance.