The Constitution Committee of the Knesset voted last week (on
Monday 25 Teves) to present a new Basic Law bill to regulate
the enactment of Basic Laws as well as their amendment. The
decision was accepted by a majority of 8 Knesset members with
one abstention (Yuval Steinitz of Likud).
Although UTJ's MK Rabbi Avrohom Ravitz was present, he did
not participate in the vote. The Shas and Mafdal MKs were not
present at the time of the vote.
This Basic Law is essentially a law to define and regulate
the enactment of Basic Laws. Many activists, among them Rabbi
Ravitz, are calling for the passage of this preliminary law
before dealing with the actual enactment of Basic Laws, since
such a law will allow full debate and hopefully broad
agreement on how all Basic Laws should be enacted. Next,
committee members will debate the wording of the proposed
law.
According to the bill as it was placed on the table of the
Committee, a majority of at least 61 Knesset members will be
required for passage of a Basic Law at its second reading. A
majority of at least 70 MKs will be required to approve a
Basic Law at its third and final reading. In the Israeli
Knesset system, each law is voted on three times, at what are
called its first, second and third readings in the plenum.
The bill also determines that any clause in a Basic Law whose
annulment requires a specific majority must itself be passed
by the same majority [i.e., the same amount of votes]. For
example, if a law proposes that to do something will require
a two-thirds majority of the entire house (80 votes), will
itself require 80 votes to pass. Right now, a majority of
those present and voting, which can be a mere handful, can
pass a law to require any majority it wants -- a very
undemocratic state of affairs.
In addition, the bill states that a Basic Law cannot be
canceled or changed except by another Basic Law; a regular
law cannot contradict a Basic law; a Basic Law cannot
undermine the authority of a law which was in existence prior
to the new Basic Law's passage.
Rabbi Ravitz presented the committee members with several
proposed changes in the bill. Among other things, he relates
to the clause which determines that the Basic Law cannot be
changed or canceled except by another Basic Law. He suggests
that it be added that a Basic Law can be changed or canceled
by a majority of the Knesset.
He also proposed that every Basic Law voted by the Knesset
should be considered a regular law for the first five years
after its passage, and become a Basic Law only after that
waiting period has elapsed to see how it is applied in
practice. If the Knesset passes laws which contradict that
particular Basic Law during those first five years, or if
different interpretations of the law are made by the Court
canceling regular laws in the light of the Basic Law, the
Knesset will then decide upon a course of action. It will
decide whether to change the Basic Law in the wake of
contradicting laws or interpretation, to cancel the
contradictory law, or to cancel the Basic Law and to
transform it into a regular law.
MK Nochum Langethal (Mafdal) proposed determining that when
the High Court deliberates on canceling a Knesset Law, it
must to do so with a panel of at least 9 judges. Further, for
it to decide on the cancellation of a law, there must be a
majority of 6 out of the 9 judges, according to Langethal's
proposal.
In response, Rabbi Ravitz said that the problem does not lie
in cancellation of laws enacted by the Knesset, but in their
interpretation.
He proposed that every Basic Law contain an explicit
statement that it cannot override a religious law or accepted
religious practice, known as the "status quo." "If this is
done, all of the Basic Laws can be enacted without problems,"
he told Committee members. He explained that although the
Basic Laws state that Israel is a Jewish state, in reality,
the interpretation [by the Court] does not take this into
consideration.
"It is inconceivable that a judge should sit in Netanya and
rule that shemiras Shabbos isn't reason enough to
enact a municipal law, and then go ahead and cancel that law
passed by the local municipal council," Rabbi Ravitz said.
MK Yuval Steinitz (Likud) said that although he is secular,
he fears that the Basic Laws representing liberal values will
undermine the Jewish values of the state.
Former Chief Justice of the Supreme Court Moshe Landau, sent
a letter to the committee members as a follow-up of his
appearance before it a month and a half earlier. In his
letter, he warns against the continuation of the
"constitutional revolution" and granting power to the High
Court to interpret and even annul Knesset laws. Regarding the
proposal for the law to arrange procedures for the enactment
of Basic Laws, he wrote that the essence of the problem has
not been addressed in that law.
