Netanyahu Commits to Top Court Override Clause in Next Government

Netanyahu is likely to form a government within a week or two, after a compromise has been found regarding the details of the proposal that will allow the Israeli coalition to reenact laws overturned by the Supreme Court and avoid judicial oversight

By Michael Hauser Tov, HAARETZ
Credit: Photos: Hadas Parush, Ohad Zwigenberg, Debbie Hill / Artwork: Anastasia Shub

Officials from Benjamin Netanyahu’s Likud party said on Wednesday that the coalition agreement with the heads of the right-wing parties that are likely to join the government will contain a commitment to enact a parliamentary override clause.

The party heads made it clear they would not be satisfied with anything less, and would not sign a coalition agreement that only includes the distribution of ministries and a promise to reverse the previous government’s legislative agenda.

According to the officials, in order to finalize a coalition agreement, mentioning the exact scope of an override clause will be avoided as disagreement has emerged amongst the likely coalition partners.

Bezalel Smotrich, chairman of Religious Zionism, argues that Supreme Court rulings can be overturned by any size majority whilst others maintain a simple majority of 61 lawmakers should be required. A further group is asking for a special majority of at least 70 lawmakers to overturn Supreme Court rulings. The absence of political consensus regarding this cardinal issue means that Netanyahu is free to delay the decision for after the next government is established.

The override clause is a proposed legislative tool that will allow Knesset members to override Supreme Court decisions and exempt parliamentary legislation from judicial review.

This would enable the Knesset to reenact laws overturned by the Supreme Court even if they contradict Israel’s Basic Laws. And when the required majority is just 61 lawmakers, this means giving the majority a free hand to do whatever it pleases.

Reaching some kind of compromise is likely to speed up coalition negotiations, enabling Netanyahu to form a government within a week or two. The growing assumption is that whilst the coalition agreements will be broader than Netanyahu has hoped for, they will only contain chapter outlines, which will be completed once the government is formed.

This satisfies all sides involved in the negotiations, providing coalition parties with sufficient assurance their agenda will be advanced, whilst allowing the Likud to move swiftly towards forming government.

Coalition negotiations ramped up on Wednesday morning as Israeli President Isaac Herzog met with party heads at his official Jerusalem residence to begin tallying recommendations for who will be tasked with forming the next government and become the country’s next prime minister.

All parties in Benjamin Netanyahu’s right-wing bloc are expected to back the Likud chairman, handing him 64 recommendations. No political party is expected to recommend outgoing Prime Minister Yair Lapid for the task, aside from the Labor Party and his own Yesh Atid.

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David Horovitz, Editor of the Times of Israel, in Israel could be en route to a tyranny of the majority, wrote:

Among the arguments advanced in support of such a move is the court’s ostensible over-involvement in lawmaking; the claim that our politicians, as elected representatives of the people, should hold ultimate sway over non-elected judges; and the fact that parliament holds primacy over the courts even in such mighty democracies as Britain.

There is indeed nothing unacceptable about examining the separation of powers — the rights, responsibilities and delicate relationship between the judiciary, the executive and the legislature — to ensure that the checks and balances necessary in a democracy, the capacity of the majority to rule and the minority to enjoy protection, are functioning effectively.

There is a great deal to fear, however, from a purported “reform” of those checks and balances that actually demolishes them, and gives the elected political majority of the day near-absolute or even absolute authority.

I doubt that the legislation proposed will go that far. It will apply to limited circumstances..