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Knesset speaker floats creation of ‘constitutional court’

Amir Ohana said the new court would strip the Supreme Court of its role as the High Court of Justice.

Knesset Speaker Amir Ohana holds a press conference at the parliament in Jerusalem, Sept. 6, 2023. Photo by Yonatan Sindel/Flash90.
Knesset Speaker Amir Ohana holds a press conference at the parliament in Jerusalem, Sept. 6, 2023. Photo by Yonatan Sindel/Flash90.

Knesset Speaker Amir Ohana suggested the creation of a “constitutional court” to replace Israel’s High Court of Justice, in an interview this week with Israeli daily Yediot Ahronot.

Israel’s Supreme Court sometimes sits as the High Court of Justice. “The Supreme Court wears two hats: it is the highest Court of Appeal in the State of Israel, and also sits as a High Court of Justice (Bagatz), hearing petitions against various governmental authorities,” the court website explains.

As the High Court, the Supreme Court hears petitions by anyone (not only citizens or residents) against public bodies. The types of cases include: 1. Petitions against government actions and legislation; and, 2. Petitions against judgments of the National Labor Court and religious courts.

Ohana said the new court would not replace the Supreme Court and its functions, primarily hearing appeals regarding decisions of district courts.

The speaker said that politicians would play an important role in the proposed new court. “In a constitutional court, which will be authorized to discuss constitutional issues … where the debate concerns values … there is no advantage for jurists.”

Last week, Ohana cautioned the High Court, which heard petitions on Tuesday against an amendment to ‘Basic Law: The Judiciary’ the Knesset passed in July.

The court has never struck down Basic Laws, which are considered quasi-constitutional and from which the court claims to derive its authority to strike down laws.

“The need to balance the authorities becomes more acute than ever when it seems that even the one boundary that has not yet been crossed, which is the repeal of the Basic Laws by the judicial authority, may be crossed,” Ohana said on Sept. 6.

He said a court decision to repeal a Basic Law would be a ruling not against any government but against Israel’s parliament and democracy.

Ohana noted that one of the two Basic Laws that the court declared the equivalent of a constitution was passed in 1992 by a vote of 32 to 21, whereas the recent amendment under judicial review was passed by twice that number of votes, 64 to 0 (the opposition boycotted).

“The [recent] laws passed in this Knesset were not passed in the dead of night like that one, but after an in-depth discussion that took place both in the Knesset and outside it,” Ohana said.

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