The Override Clause: Government Given Unlimited Power to Violate Human and Civil Rights

>> Read the full Position Paper

On 4 January 2023, Justice Minister Yariv Levin revealed his plan to change the regime in the State of Israel by crushing the independence of the judiciary and fully subordinating it to the executive branch, which already fully controls the legislative branch. In order to implement this revolution, Levin announced a package of legislative amendments, including: a clause to override Supreme Court decisions by a majority of 61 of the Knesset’s 120 MKs, increasing the number of politicians in the Judicial Appointments Committee, ending the reasonableness standard invoked by the Supreme Court to overrule government decisions deemed unreasonable, and making legal counsels of government ministries positions of trust.

This Position paper was submitted to the Constitution Committee of the Knesset regarding the override clause. The proposed amendment sets strict restrictions on the Supreme Court’s ability to annul laws or legal provisions: obligatory court plenum, vote by 80% majority, no authority to perform judicial review of basic laws, judicial review of ordinary laws restricted to cases when these are substantially incompatible with Basic Laws, and an override clause requiring a majority of 61 MKs. Such legislation would spell the abolishment of judicial review of basic and ordinary laws. The government would be able to enact any ordinary or basic law it wishes without any limitations, including personalized legislation that would seriously harm the rule of law and the fight against corruption.

The proposed override clause would abolish the existent protection of all the rights and regime practices enshrined in Basic Laws, as well as the Supreme Court’s ability to protect human and civil rights, the democratic system of government, and the rule of law. The override clause would make it difficult to block dangerous, corrupt, and undemocratic bills. The override clause does not suit the Israeli political system, which is not based on a strong system of checks and balances.

Opposition MKs must refuse to discuss an override clause requiring a majority of more than 61 MKs. Israeli politics being what it is, the fear is not only about an override clause that hinges on a majority of 61 MKs, but about one that requires a greater majority. Sadly enough, in certain contexts, support for the denial of human and civil rights as well as the rights of women, LGBTQ, religious and national minorities cuts across political parties and is a matter of “horse trading.” One such example is the omission of the right to equality from Basic Law: Israel-The Nation-State of the Jewish People and the abortive efforts to include it in the law, if only to avoid hurting the Druze minority.

 

 

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Dr. Maha Sabbah Karkabi

 

Senior Lecturer in the Department of Sociology and Anthropology, Ben-Gurion University of the Negev. She holds a Ph.D. in Sociology from Tel Aviv University (2015), a postdoctoral fellowship at the Center for Gender Studies, SOAS, University of London (2015-2016), a postdoctoral fellowship in the Department of Sociology at Tel Aviv University (2016-2017), and a postdoctoral fellowship Ph.D. at the Humphrey Institute for Social Research, Ben-Gurion University of the Negev (2018-2020).
Dr. Maha Karbahi’s areas of interest focus on the connection between social change, family behavior, and gender inequality in societies in the process of change and specifically in Palestinian Arab society in Israel. Her research draws attention to the study of family life and employment, using a combined “ethnic lens” and “gender lens” and paying attention to the perspective of Palestinian Arab women, a group characterized by intersections between multiple marginal locations, which over the years has remained hidden from the research eye. Dr. Karkabi-Sabah’s research is published in professional journals and chapters in scientific books that are considered pioneers in family research, work, and gender equality.

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Prof. Frances Raday

Professor Emeritus in the Lieberman Chair in Labor Law, in the Faculty of Law at the Hebrew University and serves as a full professor in the College of Management’s academic track, where she also serves as chair of the graduate program and as honorary president of the Concord Center for International Law Absorption. Radai was a member of a working group of the UN Human Rights Council on discrimination against women. In addition, she is a prominent and feminist human rights activist.

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Dr. Rawia Aburabia 

Faculty member of Sapir Academic College’s School of Law, received her PhD from the Hebrew University of Jerusalem. Her research deals with the interface between law, gender, minorities, and human rights. Has published in leading journals on the subject of the matrimonial laws pertaining to Muslim women in Israel. Her book Under the Law, Outside Justice: Polygamy, Gendered Citizenship, and Colonialism in Israeli Law is expected to be published as part of the Gender Series of Kibbutz Meuhad Publishing House.

Dr. Aburabia has extensive experience in international human rights and public law. She has worked as a jurist for the Association for Civil Right and has been invited as a specialist to address such international forums as the United Nations and the European Parliament on the subject of indigenous communities and minority rights. She has interned with Human Rights Watch in Washington DC, and has been a member of the executive board of Amnesty International. In 2018, she was selected by the magazine Globes as one of the 40 most promising young persons in Israel under the age of 40.

 

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Ron Kessler

With over two decades of experience in the field of digital content, Ron has participated in numerous political and social campaigns. He helped run the digital activity of senior public officials, and worked in various NGOs. Ron is a fundamentally optimistic man, who believes that Israel can be changed and so can people. Lives in Tel Aviv.