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.