Observers confirm that the two major issues that the upcoming government of Benjamin Netanyahu will be preoccupied with are: firstly, the pursuit of imposing what is known as "Israeli sovereignty" over settlers in the occupied West Bank, meaning the annexation of large parts of the West Bank. Secondly, the enactment of a law that undermines the powers of the
Supreme Court regarding the annulment of laws passed by the Knesset.
Both of these issues face specific complications, despite the initial agreement among the expected government parties. These complications include political and partisan challenges, particularly concerning the Supreme Court, which is the focus of our discussion here.
Background:
The battle to diminish the powers of the Supreme Court or change its composition and reduce its stature did not start with Benjamin Netanyahu's three recent governments, including the current one, although Netanyahu raised such a position during his first government from 1996 to 1999. This battle emerged prominently under the "Kadima" party-led government of Ehud Olmert when Haim Ramon served as the Minister of Justice. Ramon assumed the position of Minister of Justice for several months in 2006 but was forced to resign following a sexual harassment case. However, those few months were sufficient to declare his intentions to change the judges' appointment system, giving more weight to the political apparatus. Moreover, Ramon expressed his objection to the extent of the Supreme Court's interference in laws passed by the Knesset.
After Ramon's resignation, the lawyer and legal expert Professor Daniel Friedmann was brought in. It later became apparent that Friedmann himself was one of Ramon's advisors, indicating that this project was bigger than the idea of an individual within the government. However, the Olmert government dissolved itself before any changes were made.
Since the early days of Netanyahu's second government in the spring of 2009, its leader expressed his intention to change laws and regulations within the judiciary, particularly undermining the authority of the Supreme Court in intervening in laws. Despite the formation of two governments and the current third one, such laws have not been enacted yet. There have been minor changes in the judicial appointment committees, but before that, the previous Netanyahu government succeeded in amending the law appointing the President of the Supreme Court, which previously required appointing the oldest judge as long as they were 66 years old, considering that judges retire at the age of 70. The purpose of amending this law was to allow Judge Asher Grunis, who is associated with the right-wing, to assume the position at the age of 67, following the resignation of Dorit Beinisch, who followed the liberal approach of her predecessor Aharon Barak.
Netanyahu's New Battle
Through his last three governments, and even before that, the Kadima-led government of Ehud Olmert, Netanyahu has been engaged in a battle to undermine the powers of the Supreme Court and seek a radical change in its composition, with a majority of right-wing settlement supporters.
The attempt, particularly in the previous parliamentary term, was to allow the Knesset to re-enact a law that had been invalidated by the court but under certain conditions and limitations. For example, Netanyahu proposed a law similar to the British law, which does not allow the Supreme Court to overturn laws passed by the Knesset but enables the court to express its opinion on the law's appropriateness. However, opponents of this idea argue that Britain has a clear constitution, which is not the case in Israel. Moreover, Britain has two legislative bodies, namely the Parliament and the House of Lords, which means that laws go through multiple stages and are subject to constitutional limitations.
According to previous reports, the professional level within the Ministry of Justice, including the Legal Advisor to the Government, Avichai Mandelblit, opposed a series of proposed laws in the previous parliamentary term. These laws, which are expected to be reintroduced by coalition members in the new term, aim to undermine the powers of the Supreme Court, nullify its independence, effectively cancel democracy and human rights in Israel.
The professional level within the Ministry of Justice specifically opposes the British law proposal. Senior officials in the ministry argue that "the culture of governance and legislation in Britain is entirely different from what exists in Israel, which does not have a written constitution like Britain. In Britain, it is sufficient for the Supreme Court or the public to say that a law is inappropriate for it to be invalidated or withdrawn. However, in Israel, in the current composition of the Knesset, once the Supreme Court deems a law as unconstitutional, the Knesset (if it passes the British law) will not back down. Therefore, the statutes will be filled with laws that are unconstitutional and inappropriate."
Later, Mandelblit presented a "compromise" formula, according to which the Supreme Court could only overturn a law through a panel of nine judges, with a majority of at least six out of the nine judges, and the Knesset could re-enact the law, but with a majority of at least 70 members. Netanyahu rejected this proposal, stating that if he wanted to compromise, the court's decision should only be valid if all 15 Supreme Court judges agree to repeal the law. Netanyahu realized that such a scenario is impossible in the current composition of the Supreme Court.
Chief Justice Esther Hayut also opposes Netanyahu's proposed law and stated in a previous speech, "If we want to proudly present ourselves, and rightly so, to the world as the only democracy in the Middle East, we must remember that one of the necessary guarantees for this is to maintain an independent and professional judiciary that is not tied to any party, that monitors the government and defends the basic principles of governance."
Complications in the Current Government
The term used for the proposed law to undermine the powers of the Supreme Court is "Override Clause," meaning an amendment to the existing law that seeks to "override" the court's decisions.
Hagai Amit, an analyst at the economic newspaper "The Marker," in a lengthy article discussing the coalition's complications on this issue, states that the Override Clause is the bargaining chip in the negotiations to form the next government and shape the agreements between the parties. Amit describes it as the "joker" that each participating party holds. Every party wants this legal amendment to be in their favor, but at some point, this law could backfire on the majority of participating parties, especially those who want the law for the purpose of promoting laws with a religious character, such as religious parties, and secular parties that seek the law for political purposes but may work against them in matters of religious coercion.
The professional level within the Ministry of Justice, particularly Chief Justice Esther Hayut, opposes the proposed law that Netanyahu seeks. They argue that it undermines the independence and professionalism of the judiciary, which is necessary for Israel to maintain its status as the only democracy in the Middle East. They emphasize the importance of preserving a judiciary that can monitor the government and uphold the fundamental principles of governance.
The Override Clause, being a contentious issue, serves as a bargaining chip in the negotiations to form the new government. Each party in the coalition seeks to use it to advance their own interests, but they are also aware of the potential consequences and challenges it may pose to the functioning of the judiciary and the democratic values of Israel.
In summary, Netanyahu's new battle revolves around his ongoing efforts, spanning multiple governments, to undermine the powers of the Supreme Court and bring about a significant change in its composition. The proposed laws and the Override Clause specifically aim to limit the court's authority and impact its ability to overturn legislation passed by the Knesset. The issue is highly complex and involves debates over constitutional principles, the role of the judiciary, and the balance of power within the Israeli political system.
According to Amit, the Union of Right-Wing Parties, specifically the settler parties, leads the campaign to amend the law. Party leaders Rafi Peretz and Bezalel Smotrich support the solution that was approved by the Knesset in 1994 during Yitzhak Rabin's government. The aim was to overcome a basic law regarding freedom of employment, allowing Israel to pass a law restricting the importation of non-halal meat according to Jewish religious law. Smotrich also wants the same approach applied to a basic law on respect for human beings and their freedom. The settlers aim to limit the Supreme Court's authority in case it rejects a law that contradicts the basic law on respect for human beings and their freedom. They want the law to be reintroduced with a majority of 61 Knesset members if the court rejects it. Smotrich attempted to pass such a law in the previous parliamentary term but was unsuccessful. However, he believes that the new Knesset composition allows for the possibility.
Amit noticed confusion among the parties vying to join Netanyahu's future government. The parties doubted Netanyahu's ability to pass laws that had been rejected by the court, considering it would require a large majority in the Knesset, such as 70 or 80 members. Each party seeks this law for its own interests. The major contradiction arises between the ultra-Orthodox parties Shas and United Torah Judaism and Yisrael Beiteinu, a secular party led by Avigdor Lieberman. United Torah Judaism wants the override law to be able to pass another law related to military conscription that would ensure exemptions for their followers who refuse military service for religious reasons, despite their right-wing political positions. Lieberman opposes this specifically. He demands the override law but excluding the military conscription law. However, Amit points out that Yisrael Beiteinu, with its focus on the issue of overriding the Supreme Court's authority, ignores the negative aspects of such a law. It would be challenging for them to object to laws that impose religious coercion, including laws that create difficulties for new immigrants from former Soviet Union countries and regarding the importation of non-halal meat according to Jewish religious law.
Shas, which claims to support a broad law overriding the Supreme Court's authority, is warned by Amit that it, too, will clash with laws aimed at preventing discrimination against Mizrahi Jews, especially Mizrahi Haredim, by religious institutions affiliated with Ashkenazi Haredim. As for Kulanu, led by Finance Minister Moshe Kahlon, Amit says the party remains confused and has not clearly stated its position on this law. Kulanu objected to reducing the Supreme Court's authority in the previous government and had reservations about the clause included in the coalition agreements with other parties. However, after the true face of the far-right appeared within the party, particularly with the Minister of Economy Eli Cohen and former Housing Minister Yoav Galant, who left Kulanu for Likud, Kahlon expressed support for such a law. Nevertheless, with Kulanu's reduced representation, having only 4 seats in the current Knesset, it is uncertain whether Kahlon's reservations still hold weight.
Amit argues that in the narrow and short-sighted interests of the coalition parties, they fail to grasp the significance of the card they hold. They fail to recognize the reality of a governing coalition relying on a right-wing and religious majority. Initiating a move to override the Supreme Court's authority could backfire and lead to retaliation from their constituents due to the potential negative consequences of such a law.
Amit further explains that Israel is perhaps the only democratic country in the world where the only brakes on the enactment of laws are within the Supreme Court. The Supreme Court has very rarely annulled laws, mainly based on human rights considerations, and to date, 18 laws have been canceled. However, this does not mean that Israel lacks laws that infringe on human rights.
In other countries, there are constitutional traditions that limit the enactment of laws. In the European Union, member states are bound by the decisions of the European Court of Human Rights, which can annul laws in member countries. In specific places around the world, there are two legislative bodies in order to create a balance. For example, in the UK, the House of Lords operates alongside Parliament, and in the United States, the Senate functions alongside Congress.
In Israel, the Knesset is completely controlled by the government and the coalition. Yair Lapid of the Blue and White party promised to be a "fighting opposition," but the opposition's ability to prevent the enactment of laws desired by the coalition is close to zero. In the absence of other checks and balances, the Supreme Court is not just the last fortress for human rights in Israel, but the only stronghold for human rights within the entire official power structure.
Amit concludes that in the new parliamentary term, Netanyahu will establish one of the most powerful governing coalitions, reflecting the election results, which clearly indicate a right-wing religious majority. The more powerful the government becomes, the greater the fear of the potential misuse of this power to suppress the minority. Therefore, the proposed legal amendment may have its justifications in creating a balance between the legislative and judicial bodies. However, the current stage is not appropriate for such a measure. Instead, it requires increased judicial oversight from the Supreme Court and granting it the authority to annul laws that infringe on human rights.
