Override Clause will erode Israel's democracy, castrate Supreme Court - opinion

This policy is intended to bring Israel closer to the model of a Torah state and distance it from the Declaration of Independence’s promise of religious freedom and equality.

 MK MOSHE GAFNI emerges from coalition talks at a hotel in Jerusalem, last week. ‘We are joining in order to implement policy and to do so we need the override clause,’ he said. (photo credit: YONATAN SINDEL/FLASH90)
MK MOSHE GAFNI emerges from coalition talks at a hotel in Jerusalem, last week. ‘We are joining in order to implement policy and to do so we need the override clause,’ he said.
(photo credit: YONATAN SINDEL/FLASH90)

Many political figures present the demand for legislation of the override clause as essential for the judicial system’s health, increasing public trust in the Supreme Court, and a host of other slogans that sound reasonable and responsible but that are actually far removed from that.

There is no public system that is perfect, and that does not need adjustments and improvements from time to time. This is not what the debate is about: if that were indeed the case, the discussion of legislative and governance reforms would have taken place and been resolved years ago.

The current obsession regarding the override clause and its accompanying initiatives does not stem from a genuine concern for Israeli democracy. Quite the contrary is true: their purpose is to erode democracy by neutralizing the Supreme Court and the gatekeepers, in a manner that allows predatory political forces to avoid the judicial review, which is an essential element of a healthy regime that upholds checks and balances.

The ultra-orthodox parties, for example, made it clear that without surrendering to the demand for immediate legislation of the override clause they will not join Netanyahu’s coalition. As MK Rabbi Moshe Gafni of United Torah Judaism wrote, “We are not joining the government for positions. We are joining in order to implement policy, and to do so, we need the override clause.”

“We are not joining the government for positions. We are joining in order to implement policy, and to do so, we need the override clause.”

UTJ MK Rabbi Moshe Gafni

 MK MOSHE GAFNI compared Hendel to a ‘paritz.’ (credit: YONATAN SINDEL/FLASH90) MK MOSHE GAFNI compared Hendel to a ‘paritz.’ (credit: YONATAN SINDEL/FLASH90)

What policy needing implementation is he talking about? And why do they need the override clause to implement it?

Take for instance the ultra-Orthodox concern regarding the conscription law. Israeli governments from the Left, the Center and the Right were prepared to trample the value of equality in order to buy the votes of the ultra-orthodox parties. However, the Supreme Court spoiled the game. In 2012, it invalidated the Tal Law as unconstitutional due to its severe violation of the principle of equality. The law that came in its place and that ostensibly obeyed the Supreme Court’s ruling – but actually did the exact opposite – was also invalidated by the court, in 2017.

Even though the Knesset was given a one-year stay until the invalidation went into effect, the politicians were unable to accomplish the impossible and find a way to both meet the standards set by the court and please the ultra-Orthodox parties.

The ultra-Orthodox parties made it clear that for them non-negotiable conditions were that no yeshiva student would be conscripted to the military against his will, no binding quota of recruits would be set and the refusal of tens of thousands of yeshiva students to be conscripted would not result in any economic sanctions.

The government requested a postponement of the expiration date of the law approximately 10 times but in another three months the last postponement will expire and we will face the moment of truth. The ultra-Orthodox parties are clear about the required solution: castrate the Supreme Court and replace its rulings with political arm-twisting.

THIS IS the policy that Gafni and his colleagues want to make possible through the override clause and tying the hands of the Supreme Court. It involved the conscription law and other building blocks of the policy that the Supreme Court may bring to a halt: the dispensation of a lot of money, the expansion of Shabbat prohibitions, full funding of ultra-orthodox schools without core curricular studies, neutralization of the commitment to gender equality, tightening of conversion requirements, the Western Wall, further eroding pluralism, etc.

This policy is intended to bring Israel closer to the model of a Torah state and distance it from the Declaration of Independence’s promise of religious freedom and equality. As was shown in the past, this policy is partially unconstitutional and was halted by the Supreme Court of Justice. Not anymore. The override clause will take care of that.

One thing should be clear: this policy and the coalition parties’ support for it goes against the clear will of the majority of the public, including a large majority of Likud voters.

Hiddush’s 2022 Religion and State Index, conducted for the 14th year through the Smith Institute, revealed that 75% of the adult Jewish public reject the ultra-Orthodox position, and demand that yeshiva students enlist for military or civilian service. Similarly, 77% hold that all ultra-orthodox schools that receive state funding should be required to teach full core studies, and those that do not comply with this should be deprived of funding or have the funding significantly cut back.

There are those that attempt to describe the reboot initiative of the legal system as a response to the decline of public trust in the Supreme Court. But this argument is also hypocritical and self-righteous. It is true that over the years public trust in the Supreme Court has decreased, partly because of the venomous attacks by politicians on it. In the Hiddush 2022 Religion and State Index, we compared four public institutions [the Knesset, the government, the Supreme Court and the Chief Rabbinate] and asked in which of these institutions the adult Jewish public has a high level of trust.

While 34% of the Jewish public expressed high confidence in the Supreme Court, only 8% have high confidence in the Knesset – four times higher. It is ridiculous to listen to the criticism of politicians against the Supreme Court, accusing it of not representing the public, claiming that they are the faithful representatives of the people. At least when it comes to issues of religious freedom, it is clear that it’s the court that is the faithful representative of the majority of the public, while the politicians function as the dishrag of the ultra-Orthodox parties.

In reply to the question: “Do you agree or disagree that Jewish citizens of Israel should have more rights than non-Jewish citizens,” in the Democracy Index of the Israel Democracy Institute, it emerged that 68.6% of Shas voters and 54% of Torah Judaism voters answered in agreement. Similar and even more extreme results were found in the study of the Israeli public by the American Pew Research Center.

If these parties demand legislation in this spirit, the Supreme Court will no longer be able to act as the defender of democracy and the rule of law after legislation of the override clause, and no Western country in the world will continue to see Israel as a democracy worthy of its name.

The writer is CEO of Hiddush – for Religious Freedom and Equality.