Israel could be en route to a tyranny of the majority

This Editor’s Note was sent out Wednesday in ToI’s weekly update email to members of the Times of Israel Community. To receive these Editor’s Notes as they’re released, join the ToI Community here.

All four parties in Benjamin Netanyahu’s incoming coalition are interested in reducing the power of the Supreme Court by legislating a so-called “override clause” that would drastically restrict the justices’ capacity to intervene in Knesset legislation and government decisions.

Among the arguments advanced in support of such a move is the court’s ostensible over-involvement in lawmaking; the claim that our politicians, as elected representatives of the people, should hold ultimate sway over non-elected judges; and the fact that parliament holds primacy over the courts even in such mighty democracies as Britain.

There is indeed nothing unacceptable about examining the separation of powers — the rights, responsibilities and delicate relationship between the judiciary, the executive and the legislature — to ensure that the checks and balances necessary in a democracy, including the capacity of the majority to rule and the minority to enjoy protection, are functioning effectively. There is a great deal to fear, however, from a purported “reform” of those checks and balances that actually demolishes them, and gives the elected political majority of the day near-absolute or even absolute authority.

In Israel, it should be noted front and center, the legislature — our 120-seat Knesset — can generally exercise precious little control over government-backed legislation and decision-making. And with the November 1 elections having given the extremely homogeneous right-wing, far-right and ultra-Orthodox parties a decisive majority, with 64 seats, opposition voices in the Knesset are broadly rendered powerless to resist.

That leaves the justices of the Supreme Court as the only brake on coalition-backed legislation and administrative decisions.

In Britain, which has a Bill of Rights and where the existence of two Houses of Parliament already brings more diverse voices to bear on legislation, the courts do not have the right to strike down laws as unconstitutional or anti-democratic, but they can and do warn of such dangers, and the political echelon almost invariably amends as necessary. Here, the entire motivation for the intended “override clause” is to enable the ruling majority to disregard judicial objections. Furthermore, as ToI’s Raoul Wootliff noted when he wrote extensively about the override debate three years ago, Israel has no federalized state system, no constitution, no bill of rights to mitigate the government’s authority and help guarantee individual protections.

Until about a decade ago, our once and soon-to-be prime minister Benjamin Netanyahu avowedly protected the independence of the Supreme Court against precisely such “reforms” as an override clause.

“Now, what is the real test of a democracy? It’s not over this or that radical proposal or this or that extreme bill, but on how the leadership responds to these proposals,” Netanyahu told the Knesset Channel in an interview in 2012. “Listen, there have been proposals to limit or cut the power of the Supreme Court, which is one of the pillars of our democracy, and I prevented all of them. All of them! I have repeatedly protected the independence of the Supreme Court: The law to limit its authority — I buried it; the law for public hearings of judges in the Knesset committees — I buried it; the law to change the makeup of the Judicial Appointments Committee — I buried it,” he specified. “The fact that people put forward proposals is part of democracy, but the real test is what passes and what doesn’t pass. So no, there is no danger to Israeli democracy. It is strong. And I am certainly, certainly committed to it.”

Right now, though, as Netanyahu is pulling together his coalition, the calls from his potential partners and from within his own Likud to legislate an “override clause” have reached a crescendo. And, unlike a decade ago, Netanyahu has a very personal interest in the process.

Depending on its scope and reach, such a clause could hamper or abolish altogether the justices’ capacity to oversee the Knesset and cabinet and to overturn their laws and decisions — as the court has done on issues such as the treatment of illegal immigrants, the legalization of settlements built on private Palestinian land, and the exemption of ultra-Orthodox youths from military service. Depending on its scope and reach, indeed, the clause could enable the infringement, curtailing or abolition of far wider freedoms — on everything from LGBTQ rights to the status of non-Orthodox Judaism, Arab Israeli and Palestinian rights and status, the free press, you name it — turning Israel’s governance into a “tyranny of the majority,” in the vivid summation of criminal and constitutional law expert Prof. Mordechai Kremnitzer.

Related analysis: In clash over High Court override, it’s minority rights against majority’s will 

For Netanyahu personally, a neutered Supreme Court could facilitate the unimpeded passage of legislation rendering prime ministers immune from prosecution, its retroactive application, and the abolition of the charge of “fraud and breach of trust” — all of which would bring an end to his current corruption trial, and all of which are being openly advocated by members of his expected coalition. (In France, too, the president cannot be indicted while in office for offenses allegedly committed during his term; but in France, the president can serve only two five-year terms.)

MK Itamar Ben Gvir (R) and MK Bezalel Smotrich (L) at an election campaign event in Sderot, October 26, 2022 (Flash90)

Religious Zionism leader Bezalel Smotrich, whose ultimate declared goal is for an Israeli theocracy, and who is eyeing the Justice Ministry among other portfolios in the coalition negotiations, is also seeking to “reform” the process by which Israel chooses its justices, and thereby to ensure that the ruling majority determines who gets to sit on the country’s top court. In essence, therefore, Smotrich is aiming to neuter our independent judiciary twice over — both to handpick the justices and to ensure that they can’t interfere with the governing coalition’s activities anyway.

Over the years, as the idea of an override clause has risen and fallen, proposals have varied regarding how large a Knesset majority would be required to impose it and how wide-ranging its potential application. Israel’s judicial hierarchy has itself at times suggested that re-legislating a law struck down by the Supreme Court would be appropriate were 75 or 80 of the 120 Knesset members to back it. In almost any conceivable Israeli political circumstance, this would mean a substantial number of opposition Knesset members would also be backing the re-legislation. That does not appear to be the nascent coalition’s idea.

Nobody knows right now the specifics of the override clause the coalition will move to pass, including whether it could impact all rights and all of Israel’s quasi-constitutional Basic Laws. But multiple Hebrew media reports this week have suggested that the favored framework would require the support of only 61 MKs, that it would be widely applicable, and that Netanyahu is inclined to support this. If that proves to be the case, the incoming coalition — which won the support of only a fraction more than half of those who voted on November 1 — would be destroying the only legitimate constraint on its governance. And Israel, lacking an effective independent judiciary and guaranteed civil liberties, would no longer be a democracy.

As then-president Reuven Rivlin noted in 2018, “protecting the rights of the minority does not merely balance the right of the majority to rule and decide. In the absence of protection for the rights of the minority, the determining majority is nothing more than a tyrant.”