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The Explainer: An Overriding Priority

Tzippy Yarom

Knesset locks horns with court in latest test for Bibi’s coalition

Wednesday, May 02, 2018

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H e got through the last coalition crisis by the skin of his teeth, but Prime Minister Binyamin Netanyahu’s government is once again in mortal danger — this time due to the override clause, meant to empower the Knesset to reenact laws struck down by Israel’s Supreme Court. Specifically, it’s meant to legalize detention of African migrants infiltrating Israel, after a high court ruling blocked that action — although chareidi MKs anticipate that it could also be deployed if the court voids the draft law.

Netanyahu opposed bringing the legislation to the Constitution, Justice, and Law Committee, leading Education Minister Naftali Bennett to deliver an ultimatum: If the override clause is not authorized in the ministerial committee within ten days, as of May 6, the Bayit Yehudi party will stop voting with the coalition — spelling the end of Netanyahu’s majority. 



What exactly is the override clause that Bennett is demanding be enshrined in law?

Israel does not have a constitution but a set of “basic laws,” to which all subsequent legislation must conform. In the days of former Supreme Court president Aharon Barak, known for his judicial activism, judges canceled a wide range of Knesset legislation, on the grounds that it contradicted the basic laws. The override clause Netanyahu wants to push through would enable a simple 61-vote Knesset majority to ratify laws annulled by the judiciary.

The Knesset took this action only once in the past. When a law was passed in the early 1990s prohibiting the import of nonkosher meat, the Supreme Court declared that it contradicted the basic law on “Freedom of Occupation.” The Knesset passed an override with a periodic review cycle, necessitating that the law be renewed every four years.

This year the Supreme Court overturned the law authorizing the government to jail illegal infiltrators, on the grounds that it contravenes the basic law on “Human Dignity and Liberty.” Netanyahu wants the ability to override this ruling with a majority vote in the 120-seat Knesset. The dispute at the moment is mainly over what qualifies as a strong enough majority to veto a Supreme Court decision — a simple majority of 61, or a supermajority of 70. 



How is the basic law on “Human Dignity and Liberty” being applied?

This basic law has been used numerous times by the Supreme Court to void Knesset legislation. It states that Israel recognizes an individual’s value, the sanctity of his life, and his freedom; and declares that “a man’s liberty may not be taken or limited by incarceration, remand, extradition, or by any other means.” Note that the law extends these rights not only to Israeli citizens but to all people everywhere. The Supreme Court insists that this applies equally to the African migrants who have infiltrated Israel illegally.

Why is this legislation so controversial? On the whole, those suffering the most from the current situation are the residents of south Tel Aviv, where most of the African migrants are concentrated. The crime rate in the area has risen dramatically, with muggings and assaults being committed around the clock. Human rights groups are vociferously campaigning against the Israeli government in the foreign press, charging that the migrants being detained are asylum-seekers, even though most have been proven to be job-seekers. 

 

What are the pros and cons to the override clause?

The left sees the bill as an attack on the Supreme Court, and on the checks and balances of Israeli democracy. Critics say that overturning high court rulings on the basis of a simple 61-vote majority will empty the basic law on Human Dignity and Liberty of all content, and will enable the Knesset to circumvent the Supreme Court whenever it disagrees with its rulings. Supreme Court President Esther Hayut spoke publicly against the migrant deal, and in a move that many saw as a breach of the separation of powers, pressured Netanyahu not to bring the measure to a vote in the Knesset, which then led to Bennett’s ultimatum.

Attorney General Avichai Mandelblit suggested passing an override clause with a supermajority of 70 votes, while others suggested limiting the scope of the law only to the issue of the migrants. Mandelblit disagreed strongly with this approach, saying that the ultimate solution must encompass all possible legislation. Chareidi MKs who met with Netanyahu two weeks ago gave their assent to the Bennett-Shaked outline for a simple 61-vote majority, which abides by the coalition agreement.

 

What’s likely to happen, and what are the stakes?

As of this writing, Netanyahu is expected to try to reach a compromise between Bennett, Shaked, and Mandelblit, so the override clause can pass with a 65-vote majority. One suggestion has been put forward to pass a basic law on legislation that would establish a workable relationship between the legislative, executive, and judicial branches of government. Under this proposal, the Knesset would be able to override Supreme Court rulings with a 70-vote supermajority , while the Supreme Court would be able to annul a law with vote of six judges on a nine-member panel.

Netanyahu is working hard navigating among the various interest groups, since the migrant issue is important to most right-wing voters, and Bennett isn’t about to let the prime minister off the hook. The override clause will likely be passed, but whether it comes within the framework of a wider law or as an individual statute is anyone’s guess.

 (Excerpted from Mishpacha, Issue 708)

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