Is there something behind the override clause? - opinion

The Law and Justice Plan is part of a multi-pronged attack on the law enforcement system.

 THE HIGH Court of Justice has been a paper tiger in everything concerning the Netanyahu bloc’s interests, says the writer (photo credit: YONATAN SINDEL/FLASH90)
THE HIGH Court of Justice has been a paper tiger in everything concerning the Netanyahu bloc’s interests, says the writer
(photo credit: YONATAN SINDEL/FLASH90)

The Netanyahu bloc has the will and the power to subvert Israel’s independent judiciary. The Law and Justice Plan is part of a multi-pronged attack on the law enforcement system in general and the judiciary in particular. The Knesset is to have an overriding power allowing it to overturn High Court of Justice decisions striking down Knesset legislation that contravenes one of Israel’s Basic Laws.

Politicians of the ruling coalition are to be given effective power to choose the judges. The attorney-general and state prosecution are to be supervised, presumably by the political branch.

As for the judiciary, the declared motive of the Netanyahu bloc is to save democracy, stolen from the Knesset they say by the judges who have had the temerity to claim a review power to invalidate legislative or executive acts that violate the human rights protected in Israel’s Basic Laws. This claim is becoming axiomatic in right-wing circles and is now taken for granted by much of the right-wing public. But the entire approach is spurious – actually mendacious – on all levels.

What is Israel's Basic Law? What does it mean?

The High Court of Justice has not appropriated a review power over legislative and governmental action which violates human rights, but was actually granted that power by a Likud Knesset in 1992 and again, in 1996.

 Leader of the Opposition and head of the Likud party Benjamin Netanyahu at the opening of the Knesset summer session in the assembly hall of the Knesset, the Israeli parliament in Jerusalem on May 9, 2022.  (credit: YONATAN SINDEL/FLASH90) Leader of the Opposition and head of the Likud party Benjamin Netanyahu at the opening of the Knesset summer session in the assembly hall of the Knesset, the Israeli parliament in Jerusalem on May 9, 2022. (credit: YONATAN SINDEL/FLASH90)

The Israeli judiciary has not abused that power. Rather, it has exercised it extremely sparsely. In Israel, there have been only 22 interventions in legislative provisions. In a comparison with democratic countries over a similar time period, this was the lowest level of intervention, with Great Britain coming next with 27 and, amongst 6 other democratic countries an average level of 92 interventions. The High Court of Justice has primarily used it to invalidate disproportionate economic and social impact on sectors of the community, such as recipients of income maintenance, prisoners, and homeowners. It required amendments to laws that discriminated against non-haredi citizens: denying Haredi privileges in army service, income maintenance and scholarships.

As regards the army, it limited the length of time a soldier can be held under arrest without being brought before a judge. And as regards the occupied territories, it required the state to allow persons injured by army actions that were not in the course of military conflict to claim compensation and increased the level of compensation for Israelis evacuated in the disengagement from Gaza. While refusing to invalidate settlement in the territories as a violation of international law, it held that the acquisition of private Palestinian land was prohibited but later added that the acquisition was valid if it had been in ignorance that the land was private.

Regarding the Boycott Law, imposing administrative sanctions on those who call for a boycott of Israel or the occupied territories, the court only invalidated one section which allowed third parties to sue for fixed damages even if they had suffered no injury. And yes, it brought Israel in line with international law by holding that asylum seeker cannot be incarcerated for years without any prospect of leaving the country. This is far from a picture of a super-activist court.

Israel's High Court of Justice and Netanyahu bloc's interests

MUCH MORE to the point, Israel’s High Court of Justice has been a paper tiger in everything concerning the Netanyahu bloc’s interests. It refused to criticize the Nation-State Law, preferring to assume it would be administered in the light of the right to equality. It refused to invalidate the hasty amendments to the Basic Law: Government, engineered personally to enable Netanyahu to form a coalition government.

It refused to disqualify a Knesset member (Netanyahu) on trial for serious allegations of corruption for candidacy to the role of prime minister, saying the majority will of the people prevails. It refused to disqualify Netanyahu, even when he had no majority and was ruling as interim prime minister, for breach of the court’s own prior condition requiring him to refrain from conflict of interests with his prosecution.

The real motive of the Netanyahu bloc is the desire of each of its three partners to free themselves for different reasons from the shackles of judicial judgment: the extremist settler camp, to exercise unrestrained power in its de facto annexation of the West Bank and nationalist Jewish supremacy in Israel. The ultra-Orthodox religious lobby wants to preserve all its sectoral privileges in private and institutional funding, and release from army service.

It also seeks to maintain the dominance of halachic law both in the family and in the public space, rejecting the will of the secular majority and the right to equality on the basis of race, religion, sex or gender. Finally, there is Bibi Netanyahu, whose war to free himself from judgment for the crimes of corruption, breach of trust and fraud for which he is being prosecuted, has revealed the uninhibited preparedness of a narcissist to tear down everything in his path in order to preserve himself, his wife and his son as the hegemonic dynasty ruling Israel.

This quest has led him to join forces with the extremist religious Right in its agenda to dismantle the independent judiciary, an agenda that he had not adopted prior to his prosecution.

The dismantling of the judiciary ushers in a totalitarian theocratic government, under which human rights of the secular majority to travel and enjoy transport or culture on the Sabbath; of women to equality in the family; of the non-Jewish minorities to equal citizenship in the political and economic space; of LGBTQ to adopt children; of civil society to freedoms of demonstration, thought and expression; and of Palestinians in the territories to humanitarian treatment and to basic human rights under Israeli administration – will all be at the will of an unrestrained and unrestrainable majority in the Knesset with no recourse to an independent judicial system.

This is not the override clause of the Canadian Charter, which entrenched human rights and the right to equality in its constitution. This is not a correction or mere symmetrical transfer of power from one block to another, it is the elimination of access to justice for the protection of human rights against their violation by the ruling parliamentary majority. It puts Israel in the historical club of totalitarian countries in World War II, the Soviet Union, Spain, Italy, etc., whose first move in the assumption of absolute power was the co-option or dismantling of the judiciary.

The writer is a member of the steering committee of the Zulat Institute for Equality and Human Rights. She is a full professor in the Hebrew University Faculty of Law, director of the Concord Center for International Human Rights Law at the College of Management Academic Studies and, until recently, was an UN-appointed human rights expert.