Override clause: Israeli democracy's slip and slide - opinion

The override law is a step away from democracy and should not be passed. The separation of powers is an essential part of democracy.

 THE GOVERNMENT is planning on changing Basic Law: The Government, to permit Arye Deri to be a minister. (photo credit: YOSSI ZAMIR/FLASH90)
THE GOVERNMENT is planning on changing Basic Law: The Government, to permit Arye Deri to be a minister.
(photo credit: YOSSI ZAMIR/FLASH90)

In the run-up to the 2022 Knesset election and in the subsequent coalition negotiations, several Knesset members and candidates have proposed the passage of the override clause. This is a clause that they want to add to the Basic Law: Human Dignity and Liberty. Basic Laws act as Israel’s de facto constitution.

The proposed clause would allow an absolute majority (meaning 61 of 120 Knesset members as opposed to a simple Knesset majority) to overrule rulings made by the Supreme court rules that are based on the Basic Law.

The pros and cons

A large faction of Israeli voters believes that lately, the Supreme Court has been ruling against laws based on their political agenda, which is undemocratic since they are appointed, not elected. They claim that this law is necessary to remedy this situation and put power in the hands of elected officials rather than the Supreme Court.

On the other hand, those who oppose the law claim that this law is the first step toward autocracy. They say that the Supreme Court only overrules laws when it is necessary to protect minorities. In addition, they claim that the separation of power is a necessary part of democracy.

Israel's High Court of Justice (credit: ISRAELTOURISM / WIKIMEDIA COMMONS)Israel's High Court of Justice (credit: ISRAELTOURISM / WIKIMEDIA COMMONS)

My opinion

I believe that the override law is a step away from democracy and should not be passed. The separation of powers is an essential part of democracy. In other countries, autocrats have used similar measures to remove roadblocks between democracy and populist autocracy. The way an autocrat can subvert a country’s democracy is by consolidating power. And this type of consolidation is often one of the earlier stages of a dying democracy.

Short term, this law could also allow the government to ignore the rights of minorities. I find it unlikely they would make very obvious laws against minorities but they could make smaller less noticeable changes that slowly erode minority rights and there would be no power balance to stop them. This government is all right wing but has vastly different beliefs and agendas.

The Likud is trying to get Benjamin Netanyahu back to be prime minister, pass laws to prevent prime ministers from being convicted and keep key ministerial positions in the government. They are trying to form a government while retaining control and not giving too much power to the far right-wing.

The other factions of the government are the far right-wing and the ultra-Orthodox parties. The main agenda of the ultra-Orthodox parties is to increase the budgets of programs and institutions that serve their needs; for example: increasing the scholarships for yeshiva students (currently at roughly NIS 1,500 for a married student).

The far right-wing is trying to push an agenda of building in the West Bank, not trusting the High Court of Justice, not restraining the police or military, and making Israel a more Jewish and less democratic state. We can see the clash of these factions mainly between Likud and religious Zionists, who want the defense minister position to go to someone from their party.

The reaction to this law could determine the future power dynamic between these parties. If this law passes and the reaction against it is large-scale protests, the Likud might fear losing power and try to stand up more to the extreme right-wing of the government. On the other hand, if the backlash is non-existent, the extreme right-wing might be emboldened and push Netanyahu more.

Bibi would also resist them less if the public didn’t seem to push back against them. The Likud wants to stay in power without sacrificing their morals too much but fear the extremist right-wing will turn the population against them.

This power dynamic combined with the possible backlash against this law could well determine future laws. Israel is still a democracy with many other safeguards so the government needs to act carefully. These other safeguards or popular opposition could determine that this law is undemocratic and the government could be stopped. Otherwise, if this law passes and has no reaction or blocking it could be the first step in the direction of autocracy.

At first, I had believed that the government would be restrained by Likud’s less extreme beliefs and their caution. But as I was writing this story, I saw in the news that before even forming a government they are planning on changing the Basic Law: The Government to allow Arye Deri (the head of Shas who was convicted for stealing funds from the government and served time in jail) to be a minister (probably finance). The government clearly feels able to pass controversial laws and with the Supreme Court being unable to overrule them what other laws could they pass?

In conclusion, I don’t believe this law will instantly destroy Israeli democracy but it could be the start of its erosion. This law is like taking a step onto a slip and slide after the first step you can still walk off but it’s much harder and gets harder the further you go. In addition, the backlash or lack thereof could determine the power dynamic in the government and future laws similar to this.

The writer is a student at The Hebrew University of Jerusalem.