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  • ACRI

Override Clause on Steroids

The proposal to amend the Basic Law: The Judiciary, which prohibits the Court from overturning basic laws or amendments to basic laws, and even from discussing them, is the key to enabling a judicial coup. It will lead to a grave violation of human rights. This proposal should be vehemently opposed. 

Supporters of the judicial coup will say: in the USA, a distinguished democracy, the Supreme Court has no authority to intervene in constitutional amendments, so in Israel this entails "the end of democracy?” The answer is yes. Since the USA has agreed upon a protected constitution. Amending the constitution requires a very broad consensus that is not contingent upon a chance political majority – first a two-thirds majority in both houses of Congress, and then 75% of the 50 states must ratify the amendment. Throughout the 234 years since the constitution was approved in 1789, it is for good reason that it has solely been amended 27 times. The chance that the government will use its power to change the mode of governance is negligible.

We lack an agreed upon constitution. The first Knesset was supposed to establish a constitution yet failed to do so. The compromise was the enactment of Basic Laws intended to form a future constitution. The enactment and amendment of new Basic Laws and existing Basic Law amendments, are conducted by a standard parliamentary majority, requiring a majority of 61 at most, which any coalition government retains. There is thus considerable risk that the government will use its authority to change the mode of governance. Such a disconcerting attempt is taking place right before our eyes through an accelerated process. Amid such a reality, restrictions are also necessary for a constituent authority.

The country’s founders did not adequately safeguard the democratic regime. Perhaps they believed it wouldn’t be necessary. Perhaps they failed to foresee the inability to reach an agreed upon constitution even 75 years after the state’s establishment. Until recently, it was customary to enact Basic Laws by broad consensus. This was also the case with the Basic Law: Human Dignity and Liberty, which was enacted in 1992 with consent of the right, left-wing parties and even religious members of Knesset. Yet the era of stateliness has passed, and in recent years the Knesset has functioned as a constituent authority that does not hesitate to exercise its powers for narrow personal and political needs, destructively. We have all witnessed how the government changed the Basic Law in a matter of days, solely to lower ministers’ eligibility requirements, in preparation for Aryeh Deri's ministerial candidacy.

Deri’s law is indeed crooked, but it was just a precursor to the series of amendments that we’re currently witnessing, which will completely change the mode of governance and deplete the democratic nature of the country from all meaning. Here too, narrow political transient majorities are used to gain power and unprecedented authority, undermining the judicial branch. The nightmare that many legal experts warned of, namely the exploitation of constituent authority, is being realized. There is no genuine means of obstructing the government. The High Court of Justice (HCJ) alone is capable of preventing a judicial coup. To prevent that from taking place, a ban on debating basic laws is being prioritized. That is the key to everything else.

Not only will the democratic regime be in dire risk without judicial review of basic laws, but so will human rights. A constitution is intended to enshrine human rights, and protect them from legislative and executive authorities. Yet drunk with power and arrogance, the right-wing is effectively using its constituent authority to undermine human rights. Basic Law: Israel as the Nation-State of the Jewish People, was the harbinger. Through this law, the right-wing opposed enshrining the right to equality, instead insisting on including provisions that allowed for discrimination against minorities collectively and individually, leading to the exclusion of Arabs both linguistically and with regard to housing resources. The HCJ discussed the petitions submitted on the matter, by ACRI among other civil rights organizations. Although the HCJ demonstrated great judicial restraint, and appeals to revoke the Basic Law were rejected, to the disappointment of large groups of the public, the law was interpreted such that it thwarts any genuine possibility of its use to discriminate against Arabs. 

This is just the beginning. Soon, the government will further advance its assault on human rights in the Basic Laws, to protect them from judicial review and potential revocation. An amendment to Basic Law: The Knesset will lead to stricter eligibility qualifications to run for the Knesset. The amendment will be designed such that it will likely lead to the disqualification of some or all Arab parties, and to widespread voter suppression among Arab society. Thereafter, elections in Israel will no longer be considered representative of Israeli society, and will perpetuate right-wing rule. Another pending piece of legislation is Basic Law: Immigration, which will enshrine the state's right to deny or violate immigrants and asylum seekers’ freedom. Israel will become a state of the oppressed, shifting migrant workers from human beings with rights, into slaves. After the court overturned standard laws that sought to harm immigrants, members of Knesset are now seeking to enshrine such harm in a Basic Law, in hopes of safeguarding it from judicial review. Who even needs the override clause?

Minister of Justice Yariv Levin, whose name is signed off on the attempted coup, actually understands the unique and unsound situation regarding the amendment of Basic Laws in the country. As such, he proposes for the amendment of a Basic Law to entail a more difficult process, requiring a fourth reading in the following Knesset. This would ensure that changes to the constitution not only serve those currently in power, but also become the accepted rules of the game. However, he hypocritically avoided applying the proposal to the governmental amendments he is currently putting forth as he seeks to have them pass by a narrow majority via three standard readings. First, he’ll crush the judiciary, and then he’ll make it difficult for the next Knesset to restore the system to its former state. This is authoritarian conduct. 

If we wish to protect the fragile democratic system and human rights, we must oppose any proposal to prevent judicial review of basic laws, by all legitimate means. Hopefully, the HCJ will strike down this amendment which is an unconstitutional constitutional amendment. It will be possible to debate the limitations of the constitution’s judicial review, solely after the work is completed and we have an agreed-upon, safeguarded constitution, which is difficult to amend. Insofar as we lack a complete and protected constitution, judicial review is essential to defend the democratic system and human rights.

Attorney Gil Gan-Mor is the director of the Civil and Social Rights Units at the Association for Civil Rights in Israel.


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