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Think about it: The High Court of Justice and government-Knesset relations

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Published on : 09/10/2017
By : Arista Asmawati

The court decided to require the Knesset to return to the stage at which the fault had occurred in the legislative process.


Think about it: The High Court of Justice and government-Knesset relations


Within a single month (August 6 to September 6) the High Court of Justice issued three important rulings connected with the Knesset’s oversight function vis-à-vis the government, which has weakened significantly in the past decade.

It should be noted that in parliamentary democracies the oversight function is deficient by definition, since the system is based on the government commanding a majority in the parliament, so that with the help of coalition discipline it is almost always able to get its way.

In Israel, coalition discipline is used in the current government in an increasingly cynical manner, as coalition chairman MK David Bitan (Likud) uses influence (by means of the allocation of personal coalition funds to individual MKs) and threats against members of his own party (“if you fail to ‘toe the line’ you will pay a price in the next primaries”) to secure government control.

Under the circumstances it is not surprising that MKs and parliamentary groups from the opposition, and outside bodies concerned about malfunctions in the government system, frequently resort to petitions to the High Court.

The three court rulings concern the scandalous manner in which the government gets certain sections of the notorious Economic Arrangements Law (EAL) through, gets approval of budgetary transfers through the Knesset Finance Committee after the budget has been passed, and gets its biennial (two-year) budgets approved.

The ruling concerning the Economic Arrangements Law, issued on August 6, 2017, was written by new Supreme Court Justice Noam Solberg, who declared that since there were serious faults in the manner chapter 12 of the EAL for the years 2017-2018 was dealt with in the Knesset, the approval of this chapter should be overturned and the law returned to the Knesset Finance Committee to be prepared anew for second and third readings.

Chapter 12 deals with the Finance Ministry’s initiative to tax the owners of multiple apartments, in order to encourage them to sell these apartments and thus increase the supply of apartments in the market.

The court did not deal with the merits of the tax, but merely the process by which the bill was passed in the finance committee on the night of December 15-16, 2016, after the government proposed a new version of the bill at the last moment, which didn’t give the members of the committee, or its legal adviser, an opportunity to study it and familiarize themselves with what they were supposed to vote on.

On December 18, the Knesset’s legal adviser, attorney Eyal Yinon, sent a letter to the chairman of the finance committee (MK Moshe Gafni from United Torah Judaism) warning him about serious faults in the procedure in his committee, while Knesset speaker Yuli Edelstein requested that Gafni return the chapter to his committee for a new deliberation before bringing it to the plenum for second and third readings. However, Gafni declined, after a long conversation with Finance Minister Moshe Kahlon, and the chapter was approved by the plenum several days later.

As mentioned above, the court decided to require the Knesset to return to the stage at which the fault had occurred in the legislative process.

The second ruling, written by outgoing Supreme Court president Justice Miriam Naor and issued on August 13, dealt with a petition submitted by MK Stav Shaffir (Labor) back in 2013 – during the term of the 19th Knesset – in which she complained that the Finance Committee, then headed by MK Nissan Slomiansky (Bayit Yehudi) had approved budgetary transfers from one budget item to another, in vast sums, without sufficient information being provided by the Finance Ministry to the members of the committee, and that some of the items had not been approved in the original budget to which they applied, and were consequently invalid.

The reason the deliberations on this petition dragged on for so long was that the court tried to get Shaffir to settle the issue directly with the Finance Ministry. However, even though agreements were reached by the finance committee with the ministry, both during the 19th and current 20th Knesset, the ministry repeatedly failed to comply with the terms of the agreements.

In its ruling, the court accepted the validity of Shaffir’s complaints and stressed that the issue of the manner in which the government approves changes in the budget is highly important, but refused to intervene, stating that the finance committee is currently in the process of setting down new rules regarding the approval of budgetary transfers and expressing the hope that the problem will thus be solved. Whether this optimism is justified, only time will tell.

The third ruling, of September 6, written by the outgoing deputy Supreme Court president Justice Eliakim Rubinstein, dealt with the issue of the biennial budget.

The problem with the biennial budget concerns the fact that since the Knesset is called upon to approve the budget only once every two years, rather than annually, its oversight is weakened, in numerous ways, including the removal of the threat to bring down the government if the budget isn’t passed by March 31 of the year to which the budget applies, from every year to once every two years. It is also problematic for economic reasons, and because the government has used temporary ordinances (hora’ot sha’a) to get around Basic Law: the State Economy, which stipulates that the government submit annual budgets, rather than amend the basic law.

Back in 2011 the court had ruled that while the biennial budget is indeed problematic, as is the use of temporary ordinances, it would not intervene, since the government was justified in experimenting with the unconventional biennial budget before deciding whether to adopt it as a permanent arrangement, and because in its judgment biennial budgets do not constitute a serious danger to democracy.

In the current petition, which was initiated by the College of Law and Business at Ramat Gan, once again arguments were put forward against the principle of the biennial budget, and the fact that five times running, since the first biennial budget was submitted by the government in 2009, it did so by means of temporary ordinances.

While the court accepted the criticism expressed in the petition, and while Justice Rubinstein has repeatedly expressed his displeasure with the way the government uses the Arrangements Law and the biennial budgets to circumvent Knesset oversight, and stated that there was no more justification to use temporary ordinances to enable the passage of the biennial budget, it refrained from canceling the last biennial budget but warned that in future the government would either have to amend Basic Law: the State Economy or revert to annual budgets.

What effect the three rulings will have on Knesset- government relations in future is unknown, though given past experience with governments led by Prime Minister Benjamin Netanyahu, most likely the government will try to circumvent the rulings rather than change its modus operandi. Change may be expected only after a new government, with a different coalition makeup, is installed.

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