How will an“override clause” that gives the government authority to make laws over the Supreme Court’s affect Israeli immigration law?
The Israeli Supreme Court has previously struck down laws that the Knesset passed, including several laws related to immigration to Israel. This form of judicial activism which limits the legislature’s power has upset politicians before may now be facing major changes.
In the last few days, the issue of the override clause has raised its head again, because it’s one of the demands Netanyahu is facing during coalition negotiations from the religious parties, and seemingly also from some of the leaders of the Likud, such as Yariv Levin, who was appointed as the chairman of the Knesset.
This means that Israel is facing a substantial change in the balance of powers between the country’s legislative and judicial branches.
This is an old demand which is currently gaining new force at the hands of Religious Zionist Bezalel Smotrich and Moshe Gafni given the extensive public support of their base of voters. Calls to legislate the override clause are also coming from rabbis who fear that the Supreme Court will interfere with the next Knesset’s legislation that they are trying to promote on religious issues, such as: IDF military induction of yeshiva students, kashrut laws, keeping of the Shabbat in the public sphere, orthodox state conversion, etc.
What is the override clause?
The idea of the override clause says that the Knesset will be granted the authority to override rulings of the Supreme Court, even when the Court disqualifies a law as being against Israel’s Basic Laws. This is a significant deviation from the current practice in Israel which has been in place since the mid-1990s. According to this practice, the Supreme Court has the authority to disqualify laws, or government decisions, which contradict the country’s basic laws and violate human rights.
A change in this represents a serious blow to the status of Israeli courts, and therefore a weakening of the democracy. The fight for authority waged by each branch of the democratic triad – the legislative, executive and judicial – is part of the existing balance in a democratic country. It is important that this balance is maintained,and that one side of the triangle does not have disproportional power over another side, as is seen in the override clause.
Supreme Court rulings that disqualified the law regarding incarceration of asylum seekers
In the past, the Court activating its judicial and legal control has disqualified laws on immigration. This occurred, for example, in the ruling on the incarceration of asylum seekers in the Holot detention facility in the south of Israel.
Amendment 3 to the Infiltration Prevention Law allowed infiltrators into the country to be held at the Holot facility, without a hearing for up to three years. This amendment was disqualified by the Supreme Court in 2013
Another clause in the same law was disqualified in September 2014. The new amendment tried to regulate the operation of the Holot facility in a less harsh way so that infiltrators could be held for up to a year. However, the second time the Supreme Court ruled that this violated human rights, human dignity, and liberty based on basic law and international law beyond what was permissible and therefore ruled to disqualify the amendment as well. The Holot facility was closed three months later,and the 2,000 asylum seekers detained there were released. Following this, the Knesset passed another amendment to the law, but in 2015 it was also partially disqualified the third time by a majority ruling of the Supreme Court justices
On another issue concerning asylum seekers, the Supreme Court ruled to disqualify a law requiring employers to deduct 20% from the salary of those seeking asylum in Israel to be saved as a deposit which would be granted them only when they left Israel. The law was nullified by the court.
Why does the override clause endanger Israeli democracy?
No country can run as a democracy over the long term without an independent judiciary whose judges make their rulings without fear. This must include rulings against the Knesset or the government when one of those steps outside the legal framework. While the courts’ criticism of government decisions and Knesset laws may make it difficult for these authorities to operate freely, it ensures preservation of human rights and the rights of minorities who may otherwise find themselves under the tyrannical rule of an unbridled majority
Also, Israel is subject to influence by the outside world and international community. One of the things providing Israel with a counterclaim against demands for boycotts and BDS actions is the moderating policy of the Supreme Court over the government and the Knesset. An independent judicial authority balances and puts brakes on the legislative and executive authorities whose representatives sometimes act out of short-term interests that motivate politicians.
Without the possibility of judicial control over parliamentary laws and government decisions the fear is that the court will become primarily a declaratory institution similar to the State Comptroller’s Office, for example, without any real authority and whose decisions can be ignored.
The override clause apparently will pass, the question is what version
Nevertheless, according to declarations of the coalition members who are to form the next government it can be seen that the override clause will ultimately be legislated. The big question is under what conditions. Will it require a special majority of 70 Knesset members or more or will a majority of 61 Knesset members be enough –which would enable any coalition to pass laws according to its own policy without oversight and without the court’s control. If this condition is passed, it will represent a heavy blow to Israeli democracy.
Although the emerging coalition is based on 64 Knesset members, it does not necessarily represent the will of the decisive majority of Israel’s citizens. Therefore, the next government would do well to exercise restraint when it comes to such far-reaching changes which could shake the foundations of Israel’s state authorities and threaten their functioning.
Advocate Joshua Pex is a partner in the law firm of Cohen, Decker, Pex & Brosh and a regular contributor to Israel Today.
