Clause would allow Knesset to overturn Supreme Court rulings, and could lead lawmakers to pass legislation leading to greater inequality in Israeli society
A proposed law to allow a Knesset majority to overturn Supreme Court rulings would be a “death blow” to Israel’s democracy, legal experts have warned.
Members of the likely incoming coalition government under Benjamin Netanyahu are said to favor a proposal that would allow a majority of 61 members of the Knesset to override the Supreme Court and cancel its decisions. Netanyahu, who was initially reluctant to include the controversial dominance clause in coalition negotiations, agreed to do so after pressure from his allies in the ultra-Orthodox United Torah Judaism and Religious Zionist parties.
Legal experts in Israel say the move will significantly weaken the country’s democracy.
Dr. Amir Fuchs, a senior researcher at the Israel Democracy Institute, told The Media Line that the incoming government hopes to gain “unlimited power” by passing the law.
“They’ll be able to do whatever they want,” Fuchs said. “At the moment they are restricted because of the basic laws that protect human rights. The Supreme Court has decided 22 times in the last 30 years that a law [passed in the Knesset] caused excessive harm or was for an unworthy purpose.”
Supporters of the supremacy clause argue that the law will increase democracy because the majority will be able to make decisions and rule. But if you believe, as I do, that democracy is about the balance of power and the protection of human and minority rights against the tyranny of the majority, then it is clear that the clause will lead to a deterioration of our democratic status.
Fuchs added that the override clause would lead lawmakers to pass legislation that leads to greater inequality in Israeli society, such as by granting exemptions for mandatory military service or denying asylum seekers entry to the country. The proposal could also lead to the repeal of certain rights, for example by banning LGBT couples from having children through surrogacy. The latter was granted by Israel’s Supreme Court just earlier this year.
“Supporters of the supremacy clause argue that the law will increase democracy because the majority will be able to make decisions and rule,” Fuchs said. “But if you, like me, believe that democracy is about the balance of power and the protection of human and minority rights against the tyranny of the majority, then it is clear that the clause will lead to a deterioration of our democratic status. I am not saying that it will turn us into a non-democratic state, but it is a fatal blow that makes it so that Israel will be democratic only through procedures and elections.”
Unlike in other democratic countries, Israelis enjoy fewer constitutional protections due to the parliamentary system.
“Israel lacks checks and balances and does not have a bicameral chamber [legislature],” Fuchs noted.
Other legal experts agree that the consequences of the dominance law cannot be underestimated.
According to Israeli news website Yedioth AhronothSome 130 lecturers and faculty members from Israeli law schools signed a petition on Sunday warning that the proposed law would seriously undermine human rights protections and “be regretted for centuries”.
Dan Yakir, chief legal counsel for the Association for Civil Rights in Israel, called the dominance law a “death blow” that would sterilize the courts and prevent them from defending human rights and minorities.
“There is no real separation of powers between the government and the Knesset,” Yakir told The Media Line. “The Knesset is generally powerless because the coalition government also controls the Knesset. Because of this limitation, it is especially important to have a court to act against the government to have checks and balances.”
Yakir believes that the dominance clause will be just one of a thousand cuts to Israel’s democratic status. There are other important pieces of legislation, he noted, that will contribute to this damage, notably the government may also try to control the appointment of Supreme Court judges, a task currently carried out by a panel of legislators, sitting judges and lawyers.
Another possibility would be that the ruling coalition would try to cancel Netanyahu’s ongoing corruption trial.
“Taken together, all these steps have a very significant impact on democracy,” Yakir said.