Prime Minister Benjamin Netanyahu and his intended new coalition partners have reportedly agreed that the incoming government will legislate a far-reaching constitutional change to curb the powers of the Supreme Court — giving Knesset members the authority to re-legislate laws that the court has struck down, and preventing the court from intervening in administrative decisions.
Provisions for a particularly wide-ranging version of the so-called “override” legislation will be included in the coalition agreements, which are currently being negotiated by Netanyahu’s Likud party and its various intended coalition partners, Channel 12 news said Wednesday night.
Such a law is of immense potential personal significance for Netanyahu, who is facing prosecution in three corruption cases, and is widely expected to ask his fellow Knesset members to vote in favor of giving immunity from prosecution, as is possible under existing Israeli law. In the current balance between the legislature and the judiciary, however, the Israeli Supreme Court would likely overturn such a Knesset decision. The legislation mooted by the incoming government would deny the court the right to do so, meaning that Netanyahu would not face prosecution.
According to the Channel 12 report, among the legislation’s core elements is that the Knesset will be able to relegislate any law that the Supreme Court has struck down as unconstitutional, and do so with a majority of 61 votes in the 120-member Knesset. The court has struck down some 18 laws in the past two decades.
The bill will also remove the court’s authority to overturn parliament’s administrative decisions, the TV report said, including decisions to grant Netanyahu or any other Knesset immunity from prosecution. Netanyahu is to be indicted for fraud and breach of trust in all three cases, and bribery in one of them, pending a hearing scheduled for October. If the planned legislation becomes law before then, Netanyahu would be able to avoid being indicted.
The TV report said that Netanyahu’s Likud party is claiming not be the driving force behind the intended legislation. Rather, Likud sources told the TV channel, the legislation is being pushed by the ultra-Orthodox United Torah Judaism party, which seeks to prevent the Supreme Court from overturning legislation under which most ultra-Orthodox males are exempted from service in the Israel Defense Forces.
Legal commentators have warned in recent weeks that the proposed Supreme Court “override clause” constitutes the most dramatic constitutional change in Israeli history, shattering the balance between the legislature and the judiciary. In an interview with the Times of Israel last week, Prof. Mordechai Kremnitzer, a leading Israeli criminal and constitutional law expert, warned that “it would be wrong to describe a country as democratic with a law like this.”
In Israel’s fractious society, where the Knesset frequently shirks its responsibility to protect religious pluralism, civil liberties and the rights of Palestinians, the court has had no choice but to fill the moral and legal vacuum, Kremnitzer said. Maintaining an independent judiciary serves as a counterweight against the danger that a “tyranny of the majority” tramples the rights of those who are not properly represented by the political system, he added. Removing the court’s judicial review would end that, Kremnitzer said, putting Israel on a path in the opposite direction to that of other Western democracies.
“It would be an anomaly if, after the great majority of the world’s democracies have chosen to adopt arrangements that provide stronger constitutional protection for fundamental rights, Israel were to move in the opposite direction and weaken protection for individual rights,” Kremnitzer said.
Yuval Yoaz, the chief legal adviser for the Movement for Clean Government, elaborated that the intended legislation puts minority rights in real danger. “These are measures to sterilize large parts of the Supreme Court’s ability to maintain the rule of law, human rights and create the required balance between the citizens and the power of the government. That’s what’s on the agenda,” he said.
Right-wing politicians in Israel, by contrast, have long sought to clip the wings of what they regard as an overly liberal court. The court’s powers, they claim, have grown over the years, have no clear constitutional basis, and have enabled it to favor liberal policies and minority rights over the desires of the voting majority.
Critics of the court have long argued for some form of an “override clause,” to put an end to what they describe as the overly aggressive activism of the judiciary in recent decades. Attorney Yossi Fuchs, who has filed numerous petitions against the court, said that the proposed law “is not an upheaval but rather a restoration of the sanity and balance required between the legal system and the Knesset.”
In a Facebook post last week, Netanyahu wrote that he has always supported “a strong and independent court — but that does not mean an all-powerful court.”
Last week, the Likud said the coalition agreements would not include provisions for legislation to change Israel’s existing immunity laws, and reports in recent days have indicated that Netanyahu believes he will be able to secure immunity from prosecution under the existing legislation, and has thus shifted his focus to legislation that would prevent Supreme Court intervention on the immunity issue.
Likud MK Miki Zohar, who chairs the Knesset House Committee that handles immunity issues, boasted on Monday that the Supreme Court would soon be “irrelevant.” Arguing with an MK from the left-wing Meretz party during a committee meeting, Zohar said: “MK Michal Rozin, imagine: The ‘override clause’ passes, so you can no longer go to the High Court. The immunity law passes, and you’re stuck with Bibi [Netanyahu] for another 10 years. What will you do? What will you do?… Oh my God. I think this could shape up as one of the most difficult [Knesset] terms ever for you. The High Court no longer relevant, Bibi here for another 10 years. Oh my God.”
Israel’s main opposition Blue and White party is organizing a demonstration in Tel Aviv on Saturday to protest the prime minister’s efforts to evade prosecution via new legislation, and the planned curbing of the Supreme Court’s authority.