The Knesset and the Court: Is This Israel’s Override Election?

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"This election will be less about which candidate ends up as prime minister, but rather the real possibility of radical judicial reforms that might soon pass in the Knesset and which would limit the Supreme Court’s ability to perform crucial oversight over the political system."

Supreme Court | Flash 90

Israel is heading this week towards its second national election this year, just months after the conclusion of April’s vote. This is not a normal parliamentary election. Firstly, because never before has a member of Knesset tasked with forming a government after an election failed to do so, as was the case with Benjamin Netanyahu in May. More importantly, for many Israelis who cherish this country’s democratic values, this election will be less about which candidate ends up as prime minister, but rather the real possibility of radical judicial reforms that might soon pass in the Knesset and which would limit the Supreme Court’s ability to perform crucial oversight over the political system.

The current political reality in Israel is unique. Following April’s elections, President Reuven Rivlin granted Prime Minister Benjamin Netanyahu a ‘mandate’ to form a governing coalition of at least 61 members of Knesset. Netanyahu had until May 29th to present a coalition for approval of the Knesset, but he failed to do so. Because of fundamental flaws in Israel’s electoral system Netanyahu was at the mercy of many small parties, most of them ultra-Orthodox, who insisted that the new government not go forward with a plan that would have increased the numbers of yeshiva students enlisted into the military. Avigdor Lieberman, the chair of the Yisrael Beitenu party and a longtime political ally of the Prime Minister, responded by positioning himself as the leader of the secular right-wing in Israel, and ultimately refused to join a coalition dominated by the agenda of the religious-right.

It is important to note that Netanyahu’s bargaining position was undermined by his insistence on immunity from prosecution. In the past, he could turn to alternatives on the left or center to join his government, as he did with the Labor party in 2009 and Tzipi Livni’s Hatnua party in 2013. Even the mere threat of a more centrist government with Isaac Herzog’s Labor party following the 2015 election was enough to check some of the more extreme fiscal or policy-related demands of Netanyahu’s right-wing partners. This time, however, because of his legal predicaments, with multiple corruption indictments looming, Blue and White and other centrist parties have stated that they would not join a Netanyahu-led government.

As the deadline approached for forming his government in May, and Lieberman stood strong in his insistence on a bill to draft the ultra-Orthodox, time ran out for Netanyahu. Instead of returning his mandate to the President who was then, according to law, supposed to task another Knesset member with forming a government, Netanyahu proposed – and subsequently ushered through – a bill to disperse the Knesset and set new elections for 17 September.

Now, on the eve of another election, the path to victory for each side has become clearer. Significant segments of Israeli society repeatedly say they support Netanyahu on issues of war and peace and his stewardship of the economy.

Over 60 per cent of Israelis think the Prime Minister has improved Israel’s international standing, and solid majorities support his policies on Iran and generally think he has enhanced Israel’s national security. When asked about economic matters, forty five per cent report that they are satisfied with Netanyahu’s handling of the economy, and an additional 22 per cent think he is doing a ‘fair’ job in this sphere.

This support for Netanyahu and his policies, however, does not extend to issues of religion and state. On these matters, Netanyahu has often promoted policies aligned with his more religious coalition partners – either because he truly believes in them, or because political expediency forces him to placate his religious coalition partners. For example, 60 per cent of the Jewish public supports the opening of supermarkets on Shabbat, civil marriage free of rabbinic oversight, and think that public transportation should be allowed on Shabbat throughout the country.

For Netanyahu, this situation creates a simple equation. The more the public is focused on security and the economy, the better it is for him. The more the focus is on ‘civil’ issues; especially relating to religion and state, the better it is for the center-left parties.

The great unknown in this election, however, is how Israelis will react to proposed changes regarding the balance between the branches of government – including the possibility of immunity for the Prime Minister. As opposed to military matters, diplomatic initiatives, and even the relationship between religion and state, legislation that could alter the very character of Israel’s democracy seem to have disappeared from the public’s radar.

It is important to recall that in the run-up to the April election, Netanyahu repeatedly stated on record that he would not promote any personal legislation intended to thwart the legal process against him. Yet during coalition talks after the election Likud raised the issue to the top of its agenda with other parties (no matter that it ultimately failed to form a government). It should be clear to all Israelis that this issue will return to the forefront come 18 September.

So what was actually discussed last May? The Prime Minister’s allies first raised the idea of amending Israel’s immunity law and returning it to its previous incarnation before 2005. According to the current law, once charged with a crime, MKs must request immunity from the Knesset. Whatever the Knesset decides – first in committee, and then if successful in the full chamber – the outcome may then be contested in the Supreme Court.

Prior to 2005, the law stipulated that MKs enjoyed automatic immunity from prosecution unless the Knesset voted to revoke it. Some Knesset members have now come forward with proposals to return the law back to the situation that existed before 2005, with the added inclusion of a clause blocking intervention by the Supreme Court once the Knesset had made its decision. However, this proposal may very well have been a political ‘red herring.’ If the Likud forms the next coalition, Netanyahu can request immunity under the existing law and would – due to his parliamentary majority – most likely succeed in getting the needed votes for approval.

Despite the political uproar caused by this new proposal, and despite the Prime Minister’s avowals that he was not seeking such a change, these more radical reforms were never really taken off the table. Most ominously, the idea still exists of nixing the Supreme Court’s ability to strike down Knesset laws or administrative decisions via passage of legislation called the ‘override clause.’ Such a law would limit the Supreme Court’s authority to exercise judicial oversight over decisions made by the Knesset and government.

There are many in Israel who advocate for such a realignment and believe it’s necessary in order to better balance the branches of government. They argue that former Supreme Court President Aharon Barak’s ‘Constitutional Revolution’ of the 1990s went too far and that any eventual constitution must be adopted by the people – not by unelected judges. Ideological proponents of this judicial philosophy have now found willing allies in politicians seeking creative avenues for escaping their personal legal predicaments.

In the end, those who seek such radical change are ignoring the significant difference between ‘procedural democracy’ as opposed to ‘substantive democracy.’ They are downplaying the fact that democracy is far more than majoritarian rule. At its essence, democracy is a form of governance that includes respect for values like the rule of law, limited government, individual rights and minority rights, and the obligation to safeguard these rights. Retroactive, individually-inspired legislation on this fundamental issue undermines the principle of equality before the law.

Furthermore, depending on the make-up of the next coalition government, there are additional changes to Israel’s judicial branch that may very well be proposed after the election. These include reforms that would fully politicise the appointment of judges; changing the process by which legal advisors for government ministries are appointed, effectively turning them into political appointees; and additional moves to dramatically limit the scope of judicial review over decisions made by other governing institutions, in order to prevent the court from intervening in parliamentary decisions that are not laws – such as the act of granting immunity to elected officials.

Taken all together, these proposals could cause irreversible damage to Israel’s judiciary and its law enforcement agencies. Moreover, in Israel’s unique circumstances, an ‘override clause’ would mean the removal of the one meaningful check on political power and the only effective guarantor of individual and minority rights. After all, under Israel’s system of government, the judicial branch is the only check on political power, as the country has no constitution, bill of rights, federal distribution of power and only one chamber of parliament. In effect, if an ‘override clause’ would be legislated, elected officials in the Knesset would hold almost unlimited political power.

The above fateful issues did not disappear from the headlines by accident. Politicians who openly debated these far-reaching changes just a few months ago have now gone silent on this topic. Civil society organizations that have sought to elevate the issue have found themselves drowned out in the cacophony of an election campaign. Paradoxically, our polling at IDI has shown that the public does care about these issues – but is unaware of their inherent dangers, and therefore places them very low on their priority list ahead of election day.

On the question of immunity, Israeli public opinion is rather clear cut. A poll we conducted in May during the previous coalition negotiations showed that 62 per cent of Israelis opposed amending the Immunity Law. However, when asked whether the courts in Israel are too powerful and need to be restrained, Israelis were split – with 41 per cent thinking the Knesset should be strengthened and 39 per cent opposed to weakening the judicial branch.

IDI also conducted in-depth surveys targeted specifically at moderate right-wing voters. In terms of political parties, these are voters who chose Blue and White, Gesher, Yisrael Beiteinu, Likud, Kulanu, New Right and Zehut in April’s election. They can best be described as conservative, secular and traditional, over the age of thirty and holding college or university degrees.

This survey revealed that of the Israelis who voted for these parties, 69 per cent believe that a prime minister who is indicted must stand trial and not seek to avoid justice. 67 per cent agree that judicial review by the Supreme Court of laws and administrative decisions by ministers and MKs must be protected. Additionally, 55 per cent think that immunity from prosecution for serving public figures creates inequality under the law among Israel’s citizenry.

What do these numbers tell us? That while many Israelis may want a right-wing government that furthers their ideology on matters of war and peace and the economy, a significant majority of conservative voters does not seek to radically reform Israel’s judicial system.

Ultimately these vital issues will not go away after election day. Under multiple scenarios envisioned for the upcoming results on 17 September, there will still be political leaders who again push for radical changes to our judicial system that dangerously undermine the very foundations of Israeli democracy.

But for all those who cherish Israel’s unique identity as both a Jewish and democratic state, there is middle ground to be found. We can recognize that as a young and still evolving democracy, Israel has much work to do in finding the ideal balance between its branches of government. At the same time, we can proclaim that any changes proposed to the very foundations of our democratic system should come about after serious dialogue between elected leaders from across the political spectrum, academics and civil society leaders – rather than simply the result of the partisan needs and personal whims of a handful of politicians.

The article was published in Fathom