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The Knesset has only itself to blame for Israel’s judicial activism

In certain situations, the public, via its elected representatives, must be allowed to decide where to draw its ethical lines.

Israeli Knesset members vote on a bill to dissolve the parliament at the Knesset in Jerusalem on Dec. 11, 2019. Photo by Olivier Fitoussi/Flash90.
Israeli Knesset members vote on a bill to dissolve the parliament at the Knesset in Jerusalem on Dec. 11, 2019. Photo by Olivier Fitoussi/Flash90.
Dr. Aviad Bakshi
Aviad Bakshi

This Wednesday, Israeli lawmakers will vote on a bill drafted by former Justice Minister Ayelet Shaked that would restrict the Supreme Court’s ability to veto laws passed by the Knesset. The bill also includes an “override clause,” permitting the Knesset to determine a law is valid even if the court deems it unconstitutional.

While the particulars of the bill should be debated and ironed out, at this stage of preliminary Knesset readings the principle of the matter is what’s important. Are our elected officials in the Knesset willing to take responsibility for the balance of governmental power in Israel? Or will they simply find it more convenient to let the judiciary act with impunity, just to make it easier to blame the court for the shortcomings of governance and democracy.

The argument over Israel’s constitutional revolution of 1992 has been going on forever. Yet while the judiciary branch has been methodically active in expanding its influence and reach, the Knesset has talked a lot but done very little. Its only countermeasure occurred in 1994, when the Knesset ratified an override clause to Israel’s Basic Law: Freedom of Occupation.

Ever since, many Knesset members have criticized the constitutional revolution a great deal but haven’t legislated any other amendments to restore the balance between the branches, or at least mitigate the ongoing disruption of balance. If the Knesset yet again rejects an attempt to foster fundamental change, preferring instead to wallow in the same old mudslinging between the sides, it will have only itself to blame.

The idea of an override clause, or notwithstanding clause, comes from the Canadian legal system and allows the legislative branch to temporarily override certain portions of the constitution through a regular majority vote. The question is, why would we want to let the legislative branch override the constitution? This is a good question when talking about Canada, but the matter is more complicated in the case of Israel, which has never adopted a constitution and whose constitutional revolution was unprecedented in terms of judicial overreach. If the judiciary has the power to unilaterally veto a law, then there should be a mechanism that allows the legislative branch to countermeasure or override such action.

But even if we ever do ratify a constitution, similar to Canada, it would still be prudent to adopt an override mechanism. Israeli constitutional law expert professor Gideon Sapir explains that override clauses do not exempt the legislator from upholding the law. Rather, they are a mechanism for breaking deadlocks in situations of honest and real disagreement between the Knesset and court.

Let’s take as an example the law to prevent migrants from entering the country illegally, which the High Court of Justice vetoed three times. One could paint the legislators as heartless racists violating basic human rights, and wonder why their dark views should ever be allowed to supersede such enlightened rulings. But this is a fundamental disagreement between the judges and legislators over the correct balance between the rights of illegal migrants and the rights of the residents of southern Tel Aviv and the principle of a Jewish state.

An override clause, as stated, is not an exemption from upholding the values entrenched in the country’s Basic Laws; rather it affords the public its democratic right to decide, via its elected representatives, what the proper balance is on certain contentious issues. This a model of governance predicated on dialogue. The Knesset is attentive to the court’s rulings on many such matters, and we can assume that most of the time even agrees with the court’s rulings. In other situations, however, such as the case with illegal migrants, the public must be allowed to decide where to draw its ethical lines.

Dr. Aviad Bakshi is the head of the legal department at the Kohelet Policy Forum.

This article first appeared in Israel Hayom.

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