It seems that the battle of the right-wing parties against the Supreme Court is kicking up a notch as we approach the last year of the current government. The decision of the Supreme Court justices on Oct. 18 to allow (past) boycott, divestment, sanctions (BDS) activist Lara Alqasem to enter the country, reversing the interior minister’s decision to deport her, has raised the bar for the right-wing coalition’s attack on the Supreme Court. Minister of Public Security Gilad Erdan tweeted that the Supreme Court gave the BDS movement a huge victory and has rendered the law to prevent the entry of boycott activists empty of all meaning. Minister of Tourism Yariv Levin called the judges’ decision “shameful” and claimed that they “were continuing to act against Israeli democracy.”
Justice Minister Ayelet Shaked, who is trying to spur a revolution in the Supreme Court by nominating conservative justices, argued several weeks ago, on Aug. 5, that if the Supreme Court rules against the nation-state law it would spell “war between the [legislative and judicial] branches.” Shaked bases her attacks on the court on the claim that the judges establish a judicial dictatorship and go against the decision of the people’s elected representatives, and thus they hurt democracy — “moving from rule of the people to rule of the council of the elders of the law,” as she described it in her speech at the Israel Bar Association’s annual conference Sept. 4.
By the way, even conservative judges don’t necessarily arrive at verdicts that line up with government policy. For example, religious judge Neal Handel, whose nomination was supported by right-wing members of the committee on judicial nominations, was one of the three who ruled against the deportation of Lara Alqasem.
President of the Supreme Court Esther Hayut responded last week to the attacks on the Supreme Court, arguing that although the judicial system suffers criticism bordering on incitement, no legislators have stood up to defend it. “Some of the public views this as a license and permission to use the same disparaging and harsh language. As a result of this, a violent discourse is spreading among us that is obtaining a harmful grip on all levels of our lives,” said Hayut.
We can assume that Hayut aimed her words especially to the ears of Prime Minister Benjamin Netanyahu, who, speaking to an audience of voters in south Tel Aviv in August 2017, rejected cries against the Supreme Court. He then said he respects the court even when he doesn’t agree with its decisions and emphasized that people should not protest it improperly.
But this was a rare public statement. In April 2018, Justice Esther Hayut met with Netanyahu and heard from him that he opposes damaging the status of the court. Hayut expected Netanyahu to speak this way in public as well.
The tension between the right-wing government and the Supreme Court is expressed in practical terms in the attempts to legislate the “override clause,” also known as “the Supreme Court bypass law.” If adopted, the clause will enable the Knesset, in some cases, to approve bills rejected by the Supreme Court.
Shaked’s statements on the legitimacy of her action against the Supreme Court, which she says stems from the people’s democratic choice of representatives to the Knesset — for instance, through the override clause — are only partially true. In the past, several versions of the clause have been discussed and promoted. But, for the moment, there isn’t a majority in the coalition for any version of the override clause. The Kulanu party has eliminated the possibility of a broad override clause; the ultra-Orthodox parties also have concerns; and there’s opposition to it even within the Likud. It’s expressed by Knesset member Benny Begin, who recently said that Shaked’s words are nonsense that threatens the ability to maintain unity in Israel.
The Israel Democracy Institute’s index for public trust offers another interesting angle. According to the index, the Supreme Court receives the trust of 56% of the Israeli population, preceded only by the Israel Defense Forces and Israel’s president. The politicians are left way behind. The government receives 28%, the Knesset 25% and Israeli politicians a meager 15%. A similar index studied by the Haifa and Ben Gurion universities also indicates that the Supreme Court is highly trusted by Israeli citizens.
The original formulation of the override clause was passed in May 2018 by the ministerial committee for legislation (but not adopted by the Knesset plenum). It stated that if the Supreme Court invalidates a Knesset law because it opposes the principles of the dignity and freedom of man, the Knesset could re-legislate it, and the Supreme Court could not nullify it, although such a law would be in force for only four years. The bill was not advanced to the full Knesset because of the opposition of Finance Minister and Chairman of Kulanu Moshe Kahlon, who declared May 6 that “we will not allow radical elements to lead the policy agenda of the state of Israel.”
To bypass this opposition, Knesset member Shuli Mualem of HaBayit HaYehudi prepared a narrower version of the law in coordination with Minister of Justice Shaked, according to which the override clause would apply only to legislation on the issue of infiltrators (illegal immigrants) and would apply only to laws that pass with a majority of 61 members of Knesset at least. Attorney General Avichai Mandelblit opposes this suggestion, and in an opinion he sent to government ministers he explained that this would mean “enabling the Knesset to legislate a law that would violate the most basic human rights of infiltrators … the law does not suit the values of the state of Israel, is not intended for a proper purpose or it would damage rights more than is necessary … defense of the rights of the individual is essential to the existence of a democratic regime.”
The new clause bill is supposed to be introduced at an upcoming meeting of the ministerial committee on legislation, and aside from Mandelblit, the main obstacle standing in the way of Shaked, Knesset member Shuli Mualem and other members of Knesset supporting the override clause is Prime Minister Netanyahu. A senior Likud source told Al-Monitor that Netanyahu has no intention of allowing its passage in the current government, despite his support for it in principle. According to the source, Netanyahu supports weakening the broad interpretive authority the Supreme Court applies, but he does not seek a full-on clash with the judicial system and its supporters before the election and while he himself is under investigation.
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