T. Belman. My daughter’s greatest concern is the override clause. She says it should require more than 61 votes. I think such requirement would mean in practice the negation of the override. She also argues that the country is split and both sides are about equal. Therefore the selection committee should reflect that split. Thus the committee who selects them should also be split 50-50. In this regard, should the Justices or the Bar have any say in the matter? Perhaps it should be 50-50 between the Government and the Opposition. This would produce consensus judges rather than far right or far left judges.
Influential right-wing think-tank claims only the haredi political parties want law passed.
One of the most contentious components of the government’s judicial reform package is the Override Clause which would enable the government to vote down Supreme Court rulings that invalidate Knesset legislation. Long promoted by elements within the coalition as essential in order to curb the Court’s power, the Clause has passed its first reading in the Knesset but its future is now uncertain.
According to Moshe Koppel, the head of the Kohelet Policy Forum, however, the Override Clause is “totally idiotic” and “no one ever thought it would pass.” The Kohelet Forum is a conservative-leaning think-tank whose influence over the government’s plans for the judiciary is considered to be substantial. Koppel’s words were revealed by a Channel 13 reporter covering a recent closed meeting held in Manhattan.
“I want to make one thing absolutely clear,” Koppel said in the recording obtained by Channel 13. “What we told [Justice Minister] Yariv Levin and [Constitution Committee chairman] Simcha Rothman is that the Override Clause is totally stupid and that we never wanted it. It was a political issue.”
Koppel went on to blame the haredi political parties for pressuring the government to include it in the reform package. “The haredim persuaded us, due to the Draft Law. But now, a lot of haredim understand, among themselves, and they’re also saying this in Shas, that you just need to solve the Draft Law issue with a Basic Law and then they don’t care about the Override Clause. But Gafni of United Torah Judaism is still insisting on passing an Override Clause.
“Why do the haredim want it?” Koppel asked rhetorically. “They want it because they have specific problems and they’re worried that the Supreme Court will invalidate certain laws, such as the Draft Law. The Draft Law is just one thing, but it also involves gender segregation, which is a really hot topic.”
Koppel added that, “The Override Clause isn’t going to happen. No one ever thought that there would be an Override Clause, and I’m telling you – listen to me, read my lips – there isn’t going to be an Override Clause.”
Responding to Koppel’s words, MK Gafni said that, “The Kohelet Forum can no longer be considered a right-wing organization – it’s part of the Left.” He also pointed out that, “Justice Minister Yariv Levin has been talking about the need for an Override Clause for years, since long before he became a minister.”
Speaking to the haredi newspaper Yated Ne’eman, Gafni stressed that, “The Kohelet Forum hasn’t been right-wing for a long time already. They’re left-wing. The Likud party is behind the demand to pass an Override Clause – they’ve been talking about it for years – and we support them in this position. Now this person comes along with all his chutzpa behind the nice exterior and claims that we’re the ones demanding the Clause. He’s quite comfortable with harming an entire sector along with its elected representatives, in saying such a thing.”
I changed the time constraint.
@Ted I have no edit feature, even logging out and back in.
@Peloni
@Ted
You raise some important possibilities, which would result in an important victory if any one of the scenarios you list came to be realized. Let’s hope they all do.
@Sebastien
The very same organization, the Judiciary Committee, which picks the judges have the authority to remove them. If the political representatives in the govt have control of the process to pick the judges, they will also have the ability and the responsibility to fire judges which they find to not be doing justice to their position (pardon the pun). It is a political decision and carries with it a political cost and reward which the politicos will have to balance, but either way they will answer to the people for their action/inaction.
Bennett broke the law. There is no way to excuse or reword this fact. He was required to gain the consent of the Knessett and the public, and he did neither. An independent non-activist court which based its rulings on the law rather than their own whimsical intuition would have prevented him from so clearly violating the law.
As to the effect of the mixture of the court’s content of members of the Left or Right, I would suggest that it is irrelevant. The justices are responsible for interpreting the law and enforcing the law, and this is what the court failed to do in their ruling on the gas fields deal (FYI, Kohelet was one of the plaintiffs in that case). In a situation such as this, the political branch of govt should be responsible to respond to such irresponsible actions by the court, and with regards to the gas deal ruling, I believe there would have been the political will both in the Knessett and among the people to do exactly this, by judging the judges for their legal mischief. With the political branch of govt controlling the Judiary Committee, this looming threat of personal consequence and public shame would act as a deterrent to wayward judges flaunting their authority to ignore the law.
If, however, the override law had been in effect back in Oct. 2022, the judges would have had to weigh the consequences of having failed the Bennett govt against the consequence of having failed the anticipated Bibi govt, ie it would have been a political decision informing the law rather than a legal decision informing the politicians, and this would be the negative consequence, as I see it, with enacting the override law.
Of course, there has to be a consequence for bad behavior such as a judge ignoring the law. My fear is that by providing a consequence which ignores the court rather than penalizing the members who are actually ignoring their responsibility to enforce it, institutes a policy which makes the court too irrelevant to actually answer important questions such as the legitimacy of the Bennett govt refusing to follow the law. The govt should write the laws, but should they be able to choose when they have to abide by it? I think this is a fair question raised by opponents to the govts ability to resolve the issue of an independent court exercising an independence from the law to which they are supposed to be bound to enforce. I think this concerns a good many people who might otherwise be less engaged to support the radical Left in this debate.
“the govt which must exercise the responsibility of keeping the justices just and the scales of justice in balance, in accord with the will of the people
@Peloni
@Ted The courts never had the power to over-rule the government before 1992, from 1948 to 1967, the Israeli Arabs were under martial law, and from 1948 to 1977 the Labor party held power. Nobody complained.
(Well, except for the LGBTQ, feminist, post-Zionist, sand Muslim Brotherhood sectors of the government, of course 😀 )
Sometimes, discretion is the better part of valour.
If negotiations lead to a consensus, great. Both sides will get something. The Opposition will have to decide whether they are getting enough to consent. The right has to decide if they are giving up too much for consensus.
Perhaps a constitution can be agreed on. Bibi has promised a Bill of Rights. The role of the courts must be better defined. The checks and balances can be better defined and so on.
During the negotiating period, the Right will plan how to take to the streets and the government will prepare for confronting the illegal protests more effectively and how best to deal with the insubordination in the IDF and how to force the unions to not interfere with air traffic. Plus how best to keep the universities open.
The debate will shift to the pros and cons of each sides position from the current propaganda.
Perhaps the Government can plan an omnibus bill which includes all the legislation it wants in one bill so that the process of approving Judicial Reform can be quicker. I don’t know if this can be done.
@Sebastien
You seem to stay one post ahead of me, so hopefully I can catch up with this one.
The Founding Fathers in America recognized the limitations of what they had built. They knew it wasn’t perfect, and it was to be run by people who were also imperfect. But they recognized that the process of self correction needed to be deliberative and slow, so that over correction and capricious reactions did not run the ship of state aground.
I have the same concerns as you regarding the character of the judges, but the reason we are each riddled with such doubts is that the current process has been completely manipulated to make it so. I would be very happy if the override clause would pass, and perhaps Kohelet is wrong and it will, but we must understand that by giving the Knessett the ability to ignore anything the court restricts them from doing is to abrogate the relevance of the courts themselves, making their rulings more like suggestions to the ruling party. I believe that the courts have been less reliable than the govt, which is why I have supported the override bill, but we should recognize that even the judges that Shaked managed to approved were also approved thru the same system which we are trying to replace. Given this fact, as MK Rothman has noted, because of the self perpetuating control of the current system by the ideology of the Left, there are no conservative judges on the court, just flavors of the Left.
Still, the ability of the govt to essentially ignore judicial rulings would, I believe, present the potential of injecting a less deliberative and more radical form of self correction into this process, which is a concern I have always had of it, to be honest. Indeed, I am concerned that the power of the override clause may prove to be too great, not to control the courts, which it will do, but to maintain some level of judicial independence from the elected govt, itself. Judicial rulings should be based on the law, not on the special spice of a judge’s reasonableness, but also not on the arbitrary will of an elected political faction. It would be easy enough to argue that the override clause would make the judicial process more political than propriety would afford. As in the last govt, the Court stood as a last opportunity to stop the govt from ceding the gas fields to Lebanon, but with the override bill, there would have been no oversight to prevent the govt from acting with such rash disregard for the law.
I would still support the passage of the override clause, if it could be passed, because I believe if it was seen to be abused or to corrupt judicial norms, the political process, as controlled by the people thru their representatives, could and would weed it out, in time. I am, however, uncertain and increasingly doubtful that the override bill will not scuttle the entire reform given the current ‘delay’, and I would suggest that the other aspects of the reform are far more important than the override bill itself.
@Sebastien
I missed part of your post before I made my last comment, so let me address it. The possibility of a corrupt judge is always a potential concern, but the problem currently is not a point of corruption, as the corruption is built into the system itself. Once you have a system which is not self authoring as the current process stands, and is forced to apply the rule of law rather than the rule of reasonableness, you can address the concerns about the criminal behavior of the judges themselves. The current problem, as it stands, is that the judges, as they exercise arbitrary power and elect themselves to a homogenized court with no limits or bounds on their self adorned authority, are not committing any criminal activity.
Also, given that, following the Judiciary Reform, the Judiciary Committee will function with the govt having a majority control of appointing the judges, they will also have a majority control of removing the judges if there is any need to do so, and it is only reasonable and routine that this authority is in the hands of the elected govt. Recall that in the US, the Congress has the only authority to remove an Article III Judge from office thru the impeachment process.
As to Jefferson’s description of judicial tyranny, it is quite relevant, which is why the elected govt must remain ever diligent in pulling the weeds from the judicial garden they plant, as it is the govt which must exercise the responsibility of keeping the justices just and the scales of justice in balance, in accord with the will of the people – and if they don’t, the public will vote in someone who will.
@Peloni Without the over-ride, I doubt judicial reform will amount to much. Remember when Shaked got a few right wing judges appointed? Recall how unpredictably they voted on the issues that came up? Every other democracy has an over-ride procedure. Without it, between the powerlessness of elected officials, laws that discriminate against Jews, and administrative detentions, it’s not a democracy, certainly not Jewish and democratic. It’s just sad.
@Sebastien
They’re in it til they are 70yrs old, unless they resign or unless they are removed from office. Of course the way to be removed from office is for a panel of judges who are appointed by the Chief Justice to remove them. Also the Judiciary Committee can also remove them, but recall that the Judiciary have a veto proof lock on the Judiciary committee as well. It’s all so incestuously related and so obviously compromised, but democracy, right?
In any event, the current set of judges have 4 justices which will be retiring in the next two years, and 3 of them are retiring by next year and one of them is the Chief Justice, herself, who we will see the end of in October, just six months from now. So in the course of two years, more than a quarter of the court (4 out of 15) would be newly appointed by the current govt, potentially, if it doesn’t fall before that. But first the most essential aspect of the reform has to be passed so that the character and content of the justices on the Court are representative of the people’s chosen representatives.
@Peloni When do their terms expire? Who is to say their replacements will be consistent in their politics and incorruptible? They can cancel any law and are unaccountable to anyone but each other. Before 1992, courts had no power over the government. This is what Thomas Jefferson wrote in 1820: (he also
was confronted with thecreeping hegemony of the court in Marberry v. Madison in 1803:
“to consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indee[d] and one which would place us under the despotism of an Oligarchy. our judges are as honest as other men, and not more so. they have, with others, the same passions for party, for power, and the privileges of their corps. their maxim is ‘boni judicis est ampliare jurisdictionem,’ and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective controul. the constitution has erected no such single tribunal knowing that, to whatever hands confided, with the corruptions of time & party it’s members would become despots. it has more wisely1 made all the departmen[ts] co-equal and co-sovereign within themselves.”
https://founders.archives.gov/documents/Jefferson/03-16-02-0234
@Sebastien
Kohelet is right wing. They backed the Nation-State Law, they are for free market reforms, and they are for the Judicial Reform. The head of Kohelet, Koppel, however doesn’t think the over-ride clause will pass and that this is THE issue which is causing the greatest opposition to Judicial Reforms, as evidenced by the complaints by Ted’s daughter. Koppel believes that a great deal of political capital was lost due to the push for this single reform and has been worried since the beginning that the override clause could cause the entire reform package to fail.
If you can change the character of the court, the override clause won’t be necessary, but the consequence of not having it is that the changes in the court’s character will take place over an extended period of years, with the attrition to the current members.
Also, Kohelet wrote the policy paper which the reforms are based around (LINK)
By the way, Avi Bell is a member of Kohelet, and he doesn’t thing the reform goes far enough, even with the override clause – you might remember him from Caroline Glick’s debate between him and Dershowitz. Just FYI.
Why does the Left think the Kohelet Forum is right wing? Have they just not got the memo, yet?
https://www.jewishpress.com/news/us-news/ny/israeli-expats-harass-kohelet-forum-head-in-nyc-judicial-reform-protests/2023/03/23/