With the growing support in the nascent governing coalition for passing the so-called override clause, long-winded debate has flourished about models for the separation of powers, the Archimedean point of democratic checks and balances, comparisons to liberal democracies (what does Israel have to do with these?), and above all: a focus on the most dangerous number of all: 61.
As though, in theory and in practice, allowing the legislature to overturn rulings by the High Court of Justice with such a narrow majority is the worst-case scenario, because that would permit any coalition to trample over the High Court.
The problem with focusing on the question of “how many” rather than that of “why” lies in the political, not the legal, realm. It reflects a few incorrect basic assumptions about Israeli politics:
1. That the principle of legislative override does not have to be fundamentally invalid in a true democracy, with the only question being the mechanisms of balance, primarily the type of majority that will be required.
2. that it is more difficult to put together a majority comprising 65 to 70 Knesset members, since it entails a compromise with the opposition, which ostensibly represents the minority whose rights are under threat.
3. that stipulating a larger majority necessary for an override would, in cases where it is not obtained, affirm the authority of judicial oversight and thereby restore the standing of the judicial branch.
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This is a terrific theory, brought from the worlds of law and political science, that is irrelevant to Israel’s political situation.
First, as every expert negotiator knows: once you have moved from “whether” to “how much,” it is only a question of price. The fact that the anti-override debate is focused on the 61-MK scenario – and that some members of this camp explicitly say that they would agree to the law if the required majority were raised to 65-70MKs – would allow the right to pass such an override clause in the guise of a consensual compromise.
Second, the theory that legislative override can exist in a liberal democracy is based on examples (Canada!) that are in no way similar to Israel, not only in regard to mechanisms, but also to values. In the context of these, a constitution means legal representation on the basis of shared values. So the question is not whether there is a constitution, but rather what it says and whether the consensus on the values reflected is sufficiently robust. And in our case: What is the goal of the override clause, and what values does it purport to protect?
In Israel, the battle between the legislative and judicial branches being played out in the form of the override clause debate is only a representation of the true political battle between the principles of fundamental democracy and majoritarian democracy – or the supremacy of the state’s Jewish identity over its democratic identity; that is, over the rights of minorities like Palestinians and asylum seekers. If this goal is advanced with a majority comprising 65 rather than 61, will we relax?
As for the theoretical difficulty of getting the votes of 65 to 70 lawmakers: In today’s Israel, and certainly in the Knesset that was sworn in last week, there is no such difficulty in obtaining such a majority, and even a much larger one, on almost any issue concerning Palestinian rights. The assumption that such a majority would require a compromise with the opposition, which supposedly represents the minority, is also wrong.
The anti-Netanyahu bloc of parties includes enough MKs who will vote against Palestinian rights. And finally, the people who believe the emerging coalition will refrain from squashing the judiciary after getting what it wants through legislative override must not be living in Israel.
The real danger inherent in the override clause is not to the court’s status and its protection per se. Amos Schocken was right to emphasize the disappointment with the passage of the so-called nation-state law (Haaretz, November 18).
The real danger lies in taking another step toward turning Israel into a majoritarian democracy, in which the Jewish hegemony squashes the non-Jewish minority and its rights. This can be done very easily, even with a majority that is bigger than 61 votes.