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Will a parliamentary override clause for Supreme Court rulings balance power or harm democracy?

Israel’s new right-wing coalition set to take aim at Supreme Court: Netanyahu’s allies wish to pass against an ‘overreaching judiciary branch’

Illustrative - Justice Daphne Barak-Erez (C) seen at the Israeli Supreme Court in Jerusalem, Jan. 13, 2020. (Photo: Olivier Fitoussi/Flash90)

When Benjamin Netanyahu delivered his re-election speech on the night of Nov. 1, his supporters chanted one word repeatedly – “meshilut,” which translates to “governance” in English. 

It meant that they want to see the new Netanyahu-led Israeli government carry out a right-wing agenda and rein in elements they feel undermine its mission. One such issue has long been at the center of a hot public debate: Israel’s Supreme Court. 

Israel’s right-wing majority considers the Supreme Court's authority “overreaching” – and the expected incoming coalition plans to pass legislation known as the “override clause,” giving parliament the power to reverse rulings from the high court. 

Opponents fear this will remove protections for minorities and will upset the balance of power. Yair Lapid, Israel’s outgoing prime minister, said that an override clause would “crush the court” and “crush Israeli democracy.” President Isaac Herzog claimed the clause defies “limitations on power, and authorities that are separated and balanced.”

Yet Netanyahu’s Likud party and its allies believe this to be a “biased and misleading interpretation that aims to prevent any attempt to restore the balance between the legislative and the judiciary branches.” 

Former Supreme Court President Aharon Barak “stole democracy,” in the words of Religious Zionism party leader Bezalel Smotrich, who vowed to “bring it back to the people” in his current tenure.

Even though efforts were made in the past to pass such legislation, under the current coalition, it has the potential to materialize for the first time.  

WHAT IS THE OVERRIDE CLAUSE? 

An override clause is a mechanism that would allow the Israeli parliament, the Knesset, to re-enact a law that a Supreme Court decision struck down. 

According to the current law, the Court has the authority to overturn the Knesset’s decisions. Since Israel does not have a Constitution, the Supreme Court judges base their rulings on the country’s Basic Law. If they believe a decision taken by state authorities is incompatible with a Basic Law, they declare it “unconstitutional.” 

The background is important here: Israel’s Supreme Court consists of 15 judges appointed by the president of Israel, upon nomination by the Judicial Selection Committee. 

Only four of the nine members of the committee are officials that were elected by the public (two ministers and two members of parliament). The rest come from the judiciary branch itself, including three judges who currently serve on the Supreme Court. 

Once appointed, Supreme Court judges serve until retirement at the age of 70, unless they resign or are removed from office.

ARGUMENTS IN FAVOR

Those who support the override clause claim that the Israeli judiciary has accumulated disproportionate powers compared to Israel’s other branches of government. They lament the process by which judges are selected, with very little input from the public or its representatives. 

In the absence of a Constitution, they stress that the judges often rule in the spirit of their own political agenda. They particularly refer to the “constitutional revolution” that was enacted in 1995 by former Supreme Court President Aharon Barak, who pushed the Court in a liberal interventionist direction – even progressive. 

In addition, those in favor of the clause point to countries like Canada, Finland, England, Switzerland, New Zealand and others, where the high courts cannot annul parliamentary legislation.

Gadi Taub, a prominent right-wing thought leader and Haaretz op-ed columnist, recently wrote on social media that “Israel is not a democracy; it is a legal oligarchy.”

“In no western democracy do Supreme Court judges have veto powers on the appointment of their colleagues,” Taub explained. “No western democracy has a supreme court that has no definite limit to its authority and has no check or balance against it. In no western democracy has there been a court that abolished the separation of powers.”

In a letter to colleagues at the Federmann School of Public Policy and Government at the Hebrew University of Jerusalem, quoted by JNS, Taub explained: “The idea that the will of the people is a fascist monster, and thus needs to have an unchallengeable authority placed over it, is misleading and, in any case, undemocratic.”

“We are told that the Court protects the minority from the majority,” he said, “But most of the time, it uses unlimited power to decide on contentious issues that should be matters for the parliamentary give-and-take that leads to compromise.”

Taub noted that “the Court’s blithe use of the concept of human rights leads to utter absurdities.”  

He provided two Supreme Court rulings as an example: “The Deposit Law … [to temporarily withhold a percentage of wages from asylum-seekers until they leave the country] was deemed a violation of human rights, while [taxpayer-funded] public broadcasting was touted as a civil ‘right.’”

ARGUMENTS AGAINST

Those who oppose the “override clause” say that, if passed, it would nullify the Supreme Court’s decisions through parliamentary votes. They point to the distinction of Western countries with a similar law having a Constitution to protect the rights of minorities. 

Hebrew University political scientist Gayil Talshir warns that a liberal democracy is “meaningless without the protection of human and minority rights.”

Amir Fuchs, senior researcher at Jerusalem’s Israel Democracy Institute, wrote that, in Israel, “the Supreme Court is the sole balancing mechanism” and “the only restraint on the power of the political majority.”

“Given Israel’s unique situation – no other checks and balances – an override clause would turn the country into one of the weakest democracies in the world, constitutionally speaking: human rights and minorities would have no effective protection against the majority,” Fuchs said. 

According to his analysis, the Supreme Court’s authority to determine whether a law contravenes a principle protected by the country’s Basic Laws does not mean that the majority is powerless. 

“If the majority believes that the Court erred, it can amend the constitution,” Fuchs said, noting that Basic Laws can be modified by a majority vote in the Knesset, while others require a majority of the full house (61 parliamentary members). 

IMPLICATIONS

Aside from the legal and academic debate, the Israeli public seems to be more engaged with the practical implications of the override clause. 

Netanyahu insists that the proposed legislation would not affect the outcome of his ongoing trial, yet his opponents worry that Netanyahu’s allies might take actions to clear him. 

Yaniv Roznai, a law professor at Reichman University in Herzliya, told the Associated Press that while an override clause would have no direct impact on the trial, it could undermine and weaken the judiciary. 

The bill can also determine the political future of Aryeh Deri – the longtime leader of the ultra-Orthodox Shas party, who is a staunch supporter of the bill. As a lawmaker who has been convicted twice – for bribery and tax offenses– the override clause would allow him to become a governmental minister even if the Supreme Court or elections committee bar him from doing so.

Tal Heinrich is a senior correspondent for both ALL ISRAEL NEWS and ALL ARAB NEWS. She is currently based in New York City. Tal also provides reports and analysis for Israeli Hebrew media Channel 14 News.

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