THINK ABOUT IT: Governability, democracy and the ‘override clause’

The sad truth is that over time one cannot ensure the continuation of democracy if the majority does not want democracy.

Ayelet Shaked at the AIPAC conference  (photo credit: COURTESY OF AIPAC)
Ayelet Shaked at the AIPAC conference
(photo credit: COURTESY OF AIPAC)
The issue of the override clause, which Justice Minister Ayelet Shaked and Education Minister Naftali Bennett would like to introduce by means of Basic Law: Legislation, is currently in the headlines.
The clause seeks to enable the Knesset to override decisions of the Supreme Court, sitting as the High Court of Justice, to overturn laws or certain articles in laws that it finds to be unconstitutional, either on principle or because of a faulty legislative procedure.
It should be noted that since 1995, when the Supreme Court started to overturn laws passed by the Knesset, 18 laws and specific articles in laws have been overturned – a relatively small number compared to what happens in other countries that enable judicial review.
It should be noted that the Knesset never enacted Basic Law: Legislation, the aim of which is to regulate the issue of legislation in Israel; how laws must be approved by the Knesset, the hierarchy of various types of legislation, the authority of the courts to overturn laws or articles, and the authority of the Knesset to override Supreme Court decisions. This law has not been enacted so far since the haredi (ultra-Orthodox) parties object to it on principle (they maintain that halacha, or Jewish law, which is not recognized in toto as part of the codex in Israel, is supreme), and because there is no consensus between Right and Left regarding the desired balance between the Knesset and the judiciary.
What Shaked and Bennett propose is that the Supreme Court should only be able to overturn a law or part of a law by a majority of nine justices, and the Knesset should be able to override such a decision by means of a law passed by an absolute majority of 61 MKs (out of 120). The reason they give for their proposal is that the current situation is an obstacle to governability, and that it is the elected representatives of the people who should decide what laws can be passed, not the unelected judiciary.
The governability argument is not as straightforward as it may seem. The problem of governability in Israel results, first and foremost, from the fact that Israeli governments are coalition governments, made up of around four to five parties that agree with each other on certain issues and disagree on others, and it is therefore extremely difficult for the government to lay down a clear policy line on many issues, and then implement it.
In the current government the absence of governability is also the result of the fact that the prime minister very frequently takes decisions on the basis of conflicting considerations of how to keep his coalition intact and ensure his own political survival rather than on what he believes to be the correct policy.
For example, Netanyahu’s zigzagging on the issues of religious practices at the Western Wall, the Africa refugees/ labor migrants, and preventing the erosion of the status of the Supreme Court (which was, in the past, a principle he openly supported) has left all these issues in limbo and unresolved.
Finally it should be pointed out that one of the major manifestations of faults in our governability results from the fact that the government fails, in many cases, to issue regulations that will enable the implementation of laws the Knesset has passed. It is not the Supreme Court that blocks the issuing of regulations, or their implementation, but the inefficient and messy functioning of the ministries. The State Comptroller wrote a long chapter on this issue in his 2015 annual report, and though some progress has been made since then, the situation is far from satisfactory.
But let us not play dumb: what disturbs Shaked, Bennett and many other right-wingers is not “governability” as such, but the difficulty they face in implementing policies that, even if supported by a majority of MKs, are contrary to basic human rights, minority rights, international law and the democratic system prevalent in Israel, including the right of the Knesset to perform its legislative and oversight roles under reasonable conditions. It is the Supreme Court that stands in defense of all of these, much to the chagrin of some.
Examples of the specific issues concerned are Jewish settlement and control of land in the territories conquered by Israel in 1967, and which are considered by an overwhelming majority in the world (including the US under President Donald Trump) as occupied territories and not territories promised by God to Abraham, Isaac and Jacob for their offspring; the refusal of Israel to grant asylum to refugees, even if they have entered its territory illegally, under international law; the haredi refusal to abide by certain laws, such as those involving mandatory military service and non-discrimination and non-exclusion of women, and the government’s inclination to give in to them; and the Knesset’s difficulty in effectively overseeing government policies, legislation and activities, due to all sorts of procedural tricks played by the government.
In fact, the problem is not that the Supreme Court stands between the government and its ability to govern, but that the government insists on trying to implement policies that are unconstitutional and contrary to democratic principles. Of course, one may argue, and the political Right does so, that democracy is the rule of the majority. However, if the majority pooh-poohs international law, human rights, minority rights and proper procedures, then it is the majority that is undermining democracy.
There are many examples of states in which a legitimate parliamentary majority brought down the democratic system, and passed laws that were anti-democratic in their very essence (for example the Nuremberg laws in Nazi Germany).
Since the Supreme Court is one of the gatekeepers of the democratic system, weakening the Supreme Court might well resolve the government’s attempt to implement the problematic elements of its policy, and thus assuage the government’s governability difficulties, but at the expense of democracy. One of the solutions being proposed by certain members of the government, such as Moshe Kahlon, in order to pass a more palatable override clause, is to lay down in the Basic Law that only 70 MKs will be able to approve legislation overturned by the Supreme Court.
This might ensure that it will be almost impossible to override a court ruling that has overturned a piece of legislation, but it will also ensure that if 70 MKs have no qualms about approving a law that is unconstitutional and undemocratic, nothing will stop them from destroying the basic structure of the Israeli democratic system.
The sad truth is that over time one cannot ensure the continuation of democracy if the majority does not want democracy. If 70 out of 120 elected representatives have no respect for or interest in democracy, then Israel will no longer remain “the only democracy in the Middle East.”
Since it is not likely that the government will manage to get Basic Law: Legislation through before a new election is held, the issue of the override clause will certainly play a role in the election campaigns, and it will be the people who have the final say.