Proposed override clause is a danger to Israeli democracy

With less than a week left for incoming Israeli Prime Minister Netanyahu to present his government to President Isaac Herzog, some of the parties that are going to form the next government are demanding the passage of an override clause as a precondition for joining the coalition.

Netanyahu's party, Likud, is also seeking major reforms in the Israeli legal system, including the process of electing judges, the role of the attorney general and more. 

So, what is this "override clause" that renowned American attorney Alan Dershowitz calls a “terrible mistake?” And how will it affect Israeli rule of law, especially immigration laws? 

At the moment, it appears that there is an agreement among members of the soon-to-be-installed government to pass the override clause. The question is whether the Knesset (the Israeli parliament) will need a significant special majority, or an ordinary majority of 61 Knesset members, to enact the clause. 

In any case, this is a significant change in the balance between the powers of the judiciary and of the legislative branches of the State of Israel.

The override clause has received considerable media publicity recently. Though this is an old demand, it is now being revalidated by Religious Zionism chairman Bezalel Smotrich and Degel HaTorah party leader Moshe Gafni, following the outcome of the Nov. 1 elections and backed by the public support of their voters. 

Rabbis leading the ultra-Orthodox parties are also calling for the enactment of the override clause. They fear Supreme Court intervention in the legislation of the next Knesset, which they hope will promote their religious agenda on various issues – such as the recruitment of yeshiva students to the Israel Defense Forces, kashrut, Shabbat observance, Orthodox conversion, etc.

WHAT IS THE OVERRIDE CLAUSE AND WHY IS IT NOT A GOOD IDEA?

In a nutshell, the idea underlying the override clause is that the Knesset will have the power to override the court rulings of the Supreme Court, even if the Supreme Court decides that a law is unconstitutional. 

This means, in essence, a change in the Basic Laws of the State and a serious deviation from the legal practice in Israel. 

Since the mid-1990s, the Supreme Court of Justice has had the authority of judicial review, which gives the court the power to invalidate laws, or government decisions, if they contradict the Basic Laws of the State and violate human rights. The override clause would cause serious harm to the status of the courts in Israel and, therefore, weaken democracy. 

The struggle of each of the legislative, executive and judicial branches of the democratic triangle to establish its position is part of the balance that exists naturally in a civilized state, where Rule of Law is respected. It is important that this balance remains intact, and that no branch obtains disproportionate power compared to another branch, as will be the case with the override clause. 

THE SUPREME COURT INVALIDATED THE LAW ON DETENTION OF INFILTRATORS THREE TIMES

In the past, the court exercised its judicial review powers and canceled laws the Knesset passed concerning immigration issues. This was the case, for example, in the Supreme Court’s ruling regarding the detention of asylum seekers in the Holot Detention Facility.

“Amendment 3” to the Law for the Prevention of Infiltration permitted the detention of infiltrators, without trial, for up to three years. The Supreme Court invalidated this amendment in 2013. 

Another ruling invalidated a section of the law in September 2014, regarding “Amendment 4” to the Law for the Prevention of Infiltration. The new amendment tried to regulate the operation of the Holot Facility in a more lenient manner, permitting detention for a period of up to a year. 

However, the Supreme Court – based on Israel’s Basic Laws and international law – ruled for the second time that this disproportionately violated human rights and prejudiced dignity and freedom and, therefore, found it to be invalid as well. 

The Holot Facility was closed three months later, and the 2,000 infiltrators held therein, mostly from South Sudan and Eritrea, were released. Subsequently, the Knesset enacted another amendment, but it was also partially invalidated in 2015, for the third time by a Supreme Court majority. 

The Supreme Court’s rulings concerning the refugees caused public outrage in light of the sensitive public discourse about the matter during those days. 

Politicians from the right and the government itself attacked the judges, and the discussion of the need for an override clause was put on the agenda. It is certainly reasonable to assume that if the override clause had existed then, the Knesset would have used it, thus overriding the ruling of the Supreme Court.

On another issue concerning refugees, the Supreme Court ruled that a law requiring employers to deduct 20% of the salary of asylum seekers working in Israel to keep as a deposit, which would only be returned to them upon their departure from Israel, was illegal and, therefore, invalid.

THE OVERRIDE CLAUSE IS DANGEROUS FOR ISRAELI DEMOCRACY

The State cannot operate as a democracy for long without independent courts and judges who rule without fear, including against the Knesset or the government, if they exceed the boundaries of the law. 

The court’s review of the government’s decisions and the Knesset’s laws might make it difficult for them to conduct themselves as freely as they would want, but it would guarantee the protection of human rights and the rights of minorities who might find themselves under the tyranny of an unbridled majority. 

Israel is not an isolated island, but is subject to influences from around the world. One of the things it uses as a repeated argument against the Boycott Divestment Sanctions movement is the Supreme Court’s mitigating policy with respect to the government and the Knesset. 

An independent judicial branch balances and restrains the legislative and executive branches, whose representatives sometimes act based on the short-term interests that motivate politicians.

Without the possibility of judicial review of parliamentary laws and government decisions, the court might become a declaratory institution in nature – similar to the State Comptroller’s office, for example, which has no real authority and whose decisions are disregarded.

THE OVERRIDE CLAUSE WILL PROBABLY BE ENACTED – BUT WHICH VERSION OF IT? 

According to statements from likely coalition members, it is evident that an override clause will be enacted. The big question is, under what terms? 

Would it demand a special majority of 70 members of Knesset or more, or would a majority of 61 members of Knesset be sufficient – an option that would allow each coalition to enact laws in accordance with its policies, with no supervision and without the review of the court.

If the second option is enacted, Israeli democracy will suffer a grave blow. 

The emerging coalition is based on the support of 64 Knesset members but it does not necessarily represent the will of the absolute majority of Israeli citizens. Therefore, the next government should exercise restraint concerning such far-reaching changes, which might rattle the foundation of the functions of the state authorities in Israel.