MKs approve 1st reading of override clause, in major step toward judicial overhaul
All key elements of legislation to bring judiciary under near-complete political control now close to becoming law; as protests escalate, Herzog seeks ‘formula of balance and hope’
Carrie Keller-Lynn is a political and legal correspondent for The Times of Israel
The Knesset early Tuesday advanced a key bill that will make it possible to imbue laws with preemptive immunity against judicial review, placing the bulk of the coalition’s core judicial reforms within striking distance of being finalized into law ahead of the justice minister’s end-of-month deadline.
If enacted as planned, the overall package of legislation would bring Israel’s judiciary largely under political control, almost completely preventing the High Court of Justice from acting as a brake on the executive and legislature, and giving near-unlimited power to the governing majority.
The bill easily cleared its first plenum vote by a margin of 61-52 along party lines in the predawn hours of Tuesday morning, despite harsh warnings from the opposition and an hours-long filibuster. It will need to pass two more Knesset votes to become law.
The legislation grants immunity from High Court review to laws that explicitly state that they are valid even if they come into conflict with one of Israel’s quasi-constitutional Basic Laws. Dubbed an override clause because it bars judicial review, the mechanism will take effect if 61 of the Knesset’s 120 MKs support a bill that contains it in each of three readings.
Once inserted into any specific bill, the clause would be valid during the term of the Knesset that passes it and for one year into the next Knesset, which can decide to extend the clause’s protections indefinitely.
The bill also constrains the High Court’s ability to exercise oversight over laws not covered by the new immunity clause. In addition to raising the bar to require 12 of the court’s 15 judges to strike down a law, the bill limits court review to laws that explicitly contradict a Basic Law or have clear procedural violations, versus substantive ones. Moreover, any such law that the justices do strike down could be simply re-legislated with the addition of the immunity clause.
The override bill joins a slew of other radical reforms poised for swift finalization, chief among them a move to retool judicial appointments such that the coalition will have absolute control over the selection of judges. After clearing another vote in a committee that is itself controlled by the coalition, both bills will be ready for their second and third, final, readings, to be conducted back-to-back. The coalition has said it seeks to enact all of its sweeping reforms by the time the Knesset breaks for Passover, in just over two weeks.
“This is another step by this insane government that is leading to a deep rift in the nation of Israel that will break us in two,” said Avigdor Liberman, the head of the opposition Yisrael Beytenu party.
Earlier Monday, lawmakers advanced a government-backed bill that would block the High Court from being able to order a prime minister to recuse themselves from activities even in cases of a conflict of interest. Sponsored by Likud faction chairman MK Ofir Katz, the bill is widely seen as a reaction to fears that the High Court of Justice could force party chair Prime Minister Benjamin Netanyahu to step down, due to the potential conflict of interest created by him overseeing his coalition’s plan to remake the judiciary while he is himself on trial for corruption.
Justice Minister Yariv Levin and the head of the Knesset’s Constitution, Law, and Justice Committee MK Simcha Rothman are the drivers behind the government’s push to increase political power at the expense of the judiciary. They say their reforms will “correct” the balance of power between elected officials and an activist judiciary. Critics and growing mass protest movements decry the move as stripping judicial independence and eroding democracy, leaving almost all power in the hands of the elected political majority.
The full range of Levin and Rothman’s measures currently in play also includes a move to block any High Court intervention in Basic Laws at all, moving the Police Internal Investigative Division directly under the justice minister’s control, stripping the authority of government and ministry legal advisers, eliminating the High Court’s power to review ministerial appointments, and shielding the prime minister from forced removal from office.
The coalition is also currently working through a bill that would allow some private donations to politicians, despite warnings that it could open a door to corruption.
On Monday, Likud MK David Amsalem — who has been promised to eventually become a second minister within the Justice Ministry — proposed bills to block the prosecution of a serving premier and to fully abolish the criminal charge of fraud and breach of trust, a charge that serves as a central tenet of Netanyahu’s ongoing corruption trial, although many legal scholars decry it as vague.
Amsalem introduced similar bills in the past Knesset, when Likud was an opposition party.
Competing with the coalition in its fervor, protests have ripped across Israel in the 10 weeks since Levin announced what he called the “first phase” of the coalition’s sweeping reforms, with hundreds of thousands of Israelis taking to the streets on succeeding Saturdays to demonstrate under the banner of protecting Israeli democracy.
The coalition has brushed off ever-multiplying warnings by economists, jurists, diplomats and top former security officials of potentially dire consequences for Israel’s social cohesion, security, world standing and economy.
Despite pervasive tension, politicians have yet to engage in cross-spectrum dialogue to reach a solution. Rather, outside parties have made attempts, none of which have been embraced by either the coalition or opposition. The coalition has said it wants dialogue over the overhaul, but has refused to slow the legislative process — “not even for a minute,” Levin has insisted. The opposition has said it will not negotiate unless the coalition shows it genuinely seeks to work toward consensual reforms by halting the advance of the bills through parliament.
Leading the most prominent of the compromise efforts, President Isaac Herzog said on Monday that he is devoting all his time to finding a solution to the judicial overhaul crisis, saying the situation is “a very serious” constitutional and social crisis.
“We are in a serious, very serious situation, which may have political, economic, social and security consequences,” the president said at a ceremony in Tel Aviv.
“This is not a political compromise,” Herzog said of his efforts. “This is a Sisyphean effort to find a correct formula of balance and hope, because the situation is very difficult and worrying,” Herzog added.
On Saturday Herzog used unprecedented language to warn of the dangers of the current “oppressive” legislation, saying it undermined Israeli democracy and was hurling the country toward “a disaster” and “a nightmare.” He insisted it was the responsibility of “the leaders of the state” in the government to halt the breakneck legislative charge and “abandon” the current legislative package, lest the country descend into a societal and constitutional abyss.
Prominent legal scholars presented to Knesset members an outline for a compromise on Monday, and issued a dire warning about the direction the country was going.
The compromise is aimed at “preventing constitutional chaos,” its text said.
Law professor Yuval Elbashan, one of the authors of the proposal, said he recognized the need for “a major reform,” but warned the country was headed toward self-destruction, drawing a comparison to Masada, the site of a mass suicide by Jewish rebels under siege by the Roman empire 2,000 years ago.
“Someone has to stop this insane march on the Masada Snake Path,” Elbashan told a Knesset committee, referring to a well-known trail to the historical site. “The cracks are widening and the sinkholes are opening, and you are all continuing with your, ‘He’s not stopping, and he’s not talking.’ This is a mistake.”
Elbashan penned the proposal along with former justice minister Daniel Friedmann and Tel Aviv University chair Giora Yaron. The outline includes a proposal to increase the majority needed in the Knesset to approve Basic Laws and a way to alter the composition of the Judicial Selection Committee.
“Every day that passes increases anxiety,” Elbashan told lawmakers during a heated debate. “You have to do something.”
Times of Israel staff and AFP contributed to this report.