Whatever Happened to the Override Clause?
It turns out that voters actually want robust judicial oversight - which explains why the Override Clause and placing limitations on judicial review have not been prominant in the election campaign.
It was just a few months ago that the country was in an uproar over the reports that the coalition agreements between the Likud and the other parties in the government about to be formed, included an appendix on “Governance and Justice.” According to an article by Mati Tuchfeld in Yisrael Hayom (May 12, 2019), the appendix is comprised of 16 sections, including a commitment to enact an “override clause” that would allow the Knesset to reinstate legislation struck down by the High Court; restrict the courts’ power to revoke decisions made by elected officials on the grounds of their being unreasonable; eliminate the concept of the “public petitioner,” which allows individuals and organizations seeking to protect the public’s interests to petition the High Court about alleged violations of the rule of law; change the mechanism for the appointment of High Court justices; and curtail the Attorney General’s power to oversee ministers’ actions. The Prime Minister took to Twitter to take issue with some of the points mentioned in the article. He wrote that he is committed to a strong and independent court, but that this does not imply “an all-powerful court,” nor that there is no need for changes in order to recalibrate the balance between the branches of government, so that laws that have been struck down or delayed in the past can be passed. In other words, Netanyahu expressed implicit support for the Override Clause, while his prospective coalition partners were more explicit in their support of additional limits on the authority of the courts and other legal officers.
It is important to emphasize that the relationship among the branches of government is of prime constitutional and political significance. In countries such as Israel, where the ruling coalition controls both the executive branch and parliament, the courts are the only branch that can compel the other branches to comply with rules of the “democratic game,” prevent the government from abusing its power, and protect the rights of minorities and individuals against the tyranny of the majority. The concern as to the danger of violation of the rules of the game or abuse of power is real. Right after the last elections, we saw how various players within the coalition attempted to rewrite the rules of democracy by amending the Knesset Members Immunity Law in a way that would make it much more difficult to indict and try politicians who abuse their status. Passage of the Override Clause would have made it impossible for the High Court to intervene with regard to this new legislation; and eliminating unreasonableness as a ground for revoking laws would have stripped it of the power to review specific decisions by the Knesset to grant immunity to its members. So it is very clear that implementation of the “Governance and Justice” plan would constitute a fundamental change in Israel’s system of government, transforming it from a “thick” democracy, in which there is independent judicial oversight of government actions and decisions, into a “thin” democracy—one of the weakest in the Western world—in which there are no real limits on government actions, except perhaps through self-restraint of some politicians and the voters’ choice at the ballot box.
And now we have a rerun election campaign, only a few months after the plans for a radical revision of Israel’s legislative structure were exposed, without hardly a word being uttered by the competing parties about these fateful questions. The Override Clause has evaporated into thin air; the limits on judicial review have vanished as if they were never contemplated. Even the proposals to change the composition of the court have been put in cold storage. Is it possible that in three short months the advocates of “Governance and Justice” have repented and become avid supporters of judicial review of the exercise of government power? Or are they perhaps afraid that the proposals to crush the power of the High Court might cost them and their parties’ votes on Election Day, and so – are concealing their true intentions? The sad fate of the New Right, whose slogan in the previous elections was “Defeat Hamas and Supervise the High Court” but which failed to pass the threshold, seems to indicate that the second answer is the correct one. Apparently, Israelis are not thrilled to see the courts that defend their rights, as the enemy. And so, it is not a good idea for politicians to flaunt their true plan to weaken the judicial branch.
Such a political ploy is cowardly and unethical. In fact, if the proponents of “Governance and Justice” believe that the reform they are seeking would express Israeli voters’ real desire for a regime in which the majority rules without any restraint, they are invited to submit their detailed plans to the public before Election Day and explain why the public would be well advised to support parties that will quash the High Court if they come to power. If not, not only will any attempt to implement “Governance and Justice” initiatives after the elections deal a grievous blow to Israeli democracy, it will also constitute gross fraud and a flagrant deception of the electorate.
The article was first published in Times of Israel.