One of the top items on the agenda of the incoming Netanyahu government is the passage of what is known as the “override clause.” This would radically change the balance of power between Israel’s judicial and legislative branches, allowing the Knesset to pass laws that contradict the country’s 12 Basic Laws and eliminate the Supreme Court’s ability to nullify them.
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This controversial proposal has been widely decried, not only by opposition politicians and the courts but by legal scholars in Israel and overseas, including Prof. Alan Dershowitz. According to opinion polls, the public also has strong reservations.
Yaniv Roznai, associate professor and vice dean at Reichman University, Herzliya, and a leading constitutional law scholar, appeared on the latest Haaretz Weekly podcast to explain the proposed clause – and stress why he and others are campaigning so fiercely against it.
What’s the current situation the clause is seeking to override?
“Israel doesn’t have a formal rigid document that is called its constitution. Originally it was supposed to have one, but instead it was decided we would have a constitution in stages, chapter by chapter,” Roznai says. “Throughout the years, the Knesset has enacted what were termed Basic Laws – which basically function as our constitution because they regulate the relationship between the branches of government and protect fundamental rights.
“This was complemented by a very important judicial decision in 1995, in which the Supreme Court decided that these Basic Laws have constitutional status and, accordingly, ordinary legislation of the Knesset cannot violate them. Now, if there’s such a violation, the court can, through judicial review, invalidate such laws if they’re regarded as unconstitutional.”
What exactly is the override clause, and how will it change the status quo?
“The override clause is a mechanism that is supposed to allow the Knesset to enact a law even if it’s unconstitutional. It would override the constitutional limits that are imposed upon the Knesset. What is now being proposed is that a majority of the parliament – 61 out of 120 lawmakers – will be able to enact laws that would override the Basic Laws. So the idea is to give the majority in the Knesset absolute power to enact any law whatsoever, regardless of how violative it is of fundamental rights – even the most basic rights as laid out in Israel’s Bill of Rights. The Basic Laws protect the right to life, to dignity, to equality, to privacy and to liberty, so that’s why I see this move as a very risky thing.”
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Why is the override clause so troubling? If it proves to be a problem, can’t it be reversed in the future?
“It’ll be a terrible mistake because I think that no future government – from the left or the right – would ever cancel the override. Once you give the government the tool for absolute power, no one would give it up.
“No politician would consider outright abolishing laws that guarantee human dignity, because the political cost is simply too high. Just imagine what it would look like to the world if we abolish our Bill of Rights? But the override clause will do precisely that. It’ll allow Israel to keep laws on the books protecting human dignity – but at the same time, whenever it would be convenient for the coalition to avoid it or to undermine them, they could do so by enacting a law through the override mechanism. And that’s why it’s so troubling to me.”
Whose rights would be most damaged by an override clause?
“I think everyone will get hurt. But if you are asking about particular groups, I think among those who’ll be harmed the most are women, who could suffer from various religious initiatives – for example, gender separation in the public sphere. I think that minorities who do not have strong representation in parliament will suffer: the Palestinians, prisoners in jail, asylum seekers – members of groups who cannot actually affect the bills as they move through the legislative process.”
The override clause is being proposed by the incoming coalition together with other proposed measures altering Basic Laws: changing the process of judicial appointments; permitting Shas leader Arye Dery to be a minister despite his criminal record; expanding the powers of Otzma Yehudit head Itamar Ben-Gvir and Religious Zionism leader Bezalel Smotrich once they are appointed. How does all of this fit together?
“What we see in this coalition are aggregated and incremental efforts to weaken and get rid of all kinds of checks on governmental powers. And the problem is that the whole is greater than the sum of its parts – this is quite crucial. This worries me because if we look abroad and see how democracy dies in other places, such as Hungary and Poland, we never see one single law that really confronts the core of the liberal values of the state. What we see is incremental use of legal means and constitutional means that slowly but surely undermine and erode the democratic order.”