(May 6, 2018 / JNS) Democracy is based on checks and balances between the three branches of government: executive, legislative and judicial. For the past number of years, though, the delicate balance between the legislative and judicial branches of Israel’s democracy has been disrupted.
Beginning with Chief Justice Barak’s revolutionary judicial activism, Israel’s Supreme Court has assigned itself powers that its counterparts in other democracies never dreamed of:
The members of the Supreme Court have the power to veto nominees to the Supreme Court, making them a self-appointed elite, rather than an elected body that represents the range of views and backgrounds that make up Israeli society.
The Supreme Court unilaterally granted universal standing before the Court, meaning that there is no issue, and no individual or group, that is beyond the Court’s jurisdiction.
Whereas Supreme Courts in other democratic countries are bounded by legal precedent and principles, the Israeli Supreme Court allows decisions to be based upon amorphous, subjective concepts such as “foundational principles” that have never been clearly defined or delimited; “the opinion of the enlightened public,” a wildly subjective category that opens the door to politicization; and “instrumental interpretation,” essentially, drawing the bulls-eye around the arrow, as it were.
The Supreme Court unilaterally declared a controversial “Basic Law,” passed in the dead of night in May 1992 by a margin of only nine votes (only 32 Knesset members voted in favor while 23 opposed), to be the equivalent of a constitution. Ever since, the Court has used this pseudo-constitution as the justification for far-reaching powers to strike down laws passed by much larger Knesset majorities (some examples: The Bi-Annual National Budget Law, the Anti-BDS Law’s main section, the Tal Law for Conscription of Yeshiva Students, the Tax on 3rd Apartments and many more).
Recently, the Supreme Court struck down the Illegal Infiltration Law, causing a public furor and thrusting the more basic question of the Supreme Court’s unlimited power into the spotlight. The public began to voice its rising frustration, and many politicians now feel that the time has come to restore the balance between the branches of government through the legislation of an Override Clause that would allow the public to regain its voice.
The Override Clause has come to the forefront of Israel’s agenda in a pre-elections climate. Politicians have already begun maneuvering and refining their political positions, cataloguing and publicizing their achievements, and redefining and restating their agendas ahead of elections that appear to be on the not-too-distant horizon.
The Override Clause should be the litmus test for parties and politicians to prove their credentials as legislators, Zionists and true defenders of democracy, the flagship issue of Zionist vision and democratic government that Netanyahu and other politicians present to centrist and right-of-center voters in the coming elections.
The Override Clause is a classic case of “Power to the People:” Either our democratically elected representatives are in charge of national public policy, or the Supreme Court—a self-elected body that has granted itself powers unequaled in American, British or other democracies—is in charge. This is not a question of left-wing versus right-wing; this is not some new radical power grab.
The Override Clause will restore the balance between the branches of our government and protect our democracy. Every citizen of Israel—indeed, citizens of democracies all over the world—should support this important legislation.
Naomi Kahn is director of the International Division of Regavim, a research-based think tank and lobbying group dedicated to preserving Israel’s resources and sovereignty.