“Just as we take pride — and rightfully so — before the nation and the entire world, in that we are the only democracy in the Middle East, we must also remember that one of the essential guarantees of our democracy is the protection of our independent legal system, which provides judicial oversight and defends the constitutional principles underlying the [democratic] system.”
That is the warning that Supreme Court President Esther Hayut issued April 15 as part of the struggle she is leading to block legislation that would limit the ability of the Supreme Court to overturn laws it deems improper. The bill is scheduled to be brought before the Knesset early next month.
Hayut delivered her remarks at Tel Aviv University during her annual lecture to mark Israel’s Independence Day. Meanwhile, Prime Minister Benjamin Netanyahu was busy formulating the Override Clause, a dramatic amendment intended to rein in an activist Supreme Court and hinder its ability to overturn laws passed by the Knesset if they conflict with the Basic Laws of the state. Thus, on the eve of Israel’s 70th Independence Day, a full-fledged battle is being fought over the character of the Supreme Court, an international symbol of the strength and vigor of the only democracy in the Middle East.
This is not the first time that the Knesset has tried to enact such a clause, and such efforts have not been limited to the right. Former Justice Minister Haim Ramon tried to push through a similar law in 2006. This is the first time, however, that such a law has been politically possible. Israel's domineering justice minister, Ayelet Shaked of HaBayit HaYehudi, is determined to force the passage of the legislation. Senior Likud ministers, including Tourism Minister Yariv Levin, one of the court’s sharpest critics, support the idea. Even the prime minister has entered the fray in support of a law.
In the past, Netanyahu had watered down or even nixed legislation of this sort, but now he is at the forefront of the effort to pass the current bill. The reason for this change of heart is the Supreme Court overturning various pieces of legislation concerning undocumented immigrants. In each case, Supreme Court rulings prevented the imprisonment and expulsion of asylum-seekers from Africa. The goal of overriding the decisions intensified two weeks ago after public pressure forced the prime minister to withdraw a plan he had worked out with the United Nations for handling the refugees.
Netanyahu surprised even his right-wing Cabinet members when he decided to support the Override Clause, which would make it difficult for the Supreme Court to overturn Knesset legislation. He is now claiming that the time has come to formalize the relationship between the Knesset and the legal system as part of the Basic Law on Legislation so that the Knesset would be allowed to re-legislate laws overturned by the court and have them enforced if passed by a majority of 61-70 Knesset members (out of 120).
Finance Minister Moshe Kahlon opposes such a clause, but in a conversation with Al-Monitor, Levin claimed that it is still possible to reach a compromise with Kahlon and prevent a serious coalition crisis that might lead to the government's collapse. Along with the Supreme Court justices, the representatives of the center-left parties have emerged as the most vocal opponents of the legislation. They claim that it would be a mortal blow to Israeli democracy, effectively eliminating it, since it would remove the Supreme Court’s ability to protect minorities and prevent a dictatorship of the majority.
Zionist Camp Chair Avi Gabbay announced that he plans to lead a demonstration on April 21 under the banner “The People Rise Up in Defense of the Supreme Court.” Using social networks, he called on Israelis of all walks to join the demonstration: “The Netanyahu government is trampling on every institution that preserves the rule of law. On Saturday night, we will send them a clear message: The rule of law is not the same as the dictatorship of the majority. We will not allow them to harm the status of the court.”
In contrast, as one of the architects of the Override Clause, Levin is pleased with the attacks he now faces, as they represent public interest in the issue. He remarked that this is the first time in years that he sees real progress in the struggle to limit the power of the Supreme Court.
“When I spoke about it nine years ago, during my first speech to the Knesset, I represented a minority of a minority, even within my own party,” Levin said. “The issue has now been taken up by the general public. An intolerable situation has emerged here. In my opinion it has no parallel anywhere in the world. The Supreme Court has taken the power for itself to rescind and repeal laws, and it does so methodically, without any justification and with no legal right, just so that it can further its agenda.”
Turning the debate over the character of the Supreme Court into a struggle between the right and the left misses the very essence of its importance, which extends far beyond political agendas. All one has to do is listen to Ramon, who stands clearly on the left, to understand how significant the issue is to Israeli society. Like Minister Levin, Ramon claims that the Supreme Court has assumed the liberty to overturn and repeal laws, even though it has not been granted this power by law.
How did the court come by this authority? It began with the constitutional revolution of the 1990s, led by Justice Aharon Barak, a man recognized internationally as a brilliant jurist. In one of his opinions, Barak determined that the Supreme Court has the authority to override laws that contradict the Basic Law of Human Dignity and Liberty and the Basic Law of Freedom of Occupation, which were passed by the Knesset. Ramon, Levin and other opponents of Barak’s approach claim that Barak overreached in his interpretation of the law and that nowhere in the law books is the Supreme Court granted the authority to rescind laws.
In 1995, Barak was appointed president of the Supreme Court, and he used his new position to continue to promote judicial activism. “Everything Can Be Judged” was the moniker given to this controversial revolution in Israeli law.
In an interview with Army Radio on April 17, Ramon raised an important point absent from the debate up until now — that is, the role of the Supreme Court in the years preceding the constitutional revolution. During the terms of many prominent Supreme Court presidents who preceded Barak, including Shimon Agranat, Moshe Landau and Meir Shamgar, the Supreme Court had not made it a habit of overriding laws, and yet the court was still considered powerful, enlightened and of the highest quality. It was still an icon of a stable Israeli democracy.
Ramon asserted, “They were all legal giants no less than the current president, Esther Hayut, and perhaps ever. … As such, all these threats that this move signals the end of democracy and elimination of human rights can’t be taken seriously.”
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