Two right-wing, Israeli politicians, Head of United Torah Judaism MK Moshe Gafni, and Head of the yet-to-become-a-Knesset-faction Otzma Yehudit Itamar Ben-Gvir on Monday promised their voters major changes in the way the Knesset conducts its business.
Monday was a particularly thought-provoking day in Israel’s legal history, as Prime minister Benjamin Netanyahu and his three co-defendants appeared in court to confirm their endorsements of the not-guilty pleas submitted by their lawyers. MK Bezalel Smotrich (National Union) said in a radio interview that had someone placed a voting booth in the Supreme Court, the extreme left-wing Meretz party would likely win the majority of the votes.
MK Gafni, who is also chairman of the very powerful Knesset Finance Committee, opened his committee’s session on Monday saying, “Let me say this clearly – United Torah Judaism will not be a partner in any coalition that does not pass an override clause. We have been demanding this all these years, but unfortunately, there were parties in the coalition that would not let it happen. This time we’ll put an end to it and let everyone know, there will be a clear separation here between the legislature and the judiciary, there will be a clause overriding the High Court of Justice.
The override clause appears in Basic Law: The Knesset, which allows the Knesset to pass legislation that contradicts this Basic Law. The purpose of the overriding clause, according to its proponents, is to balance the great power held by the Supreme Court since the constitutional revolution of the 1990s and to facilitate a constitutional dialogue between the separate branches of government. Opponents of utilizing the clause argue that the Supreme Court exercises sufficient restraint in revoking laws and that allowing the Knesset to re-enact laws that have been rejected by the court, especially if this is done by a small majority, will in effect void the judicial review of all the laws passed by the Knesset.
Gafni is concerned above all with the fact that the failed attempts since 1999 to create a commonly-accepted “equal burden” legislation to arrange the drafting of Haredi men to the IDF will most likely reach a crescendo in the 24th Knesset, and that if the new draft law is written by his party, the high court is likely to annul it. Gafni wants to march into the next coalition government armed with the legal power to override such an annulment.
On paper, Israeli laws are based on the tradition recognizing the supremacy of the legislator over the other two branches of government. Other countries that hold this tradition are the United Kingdom, Finland, the Netherlands, New Zealand, Sweden, Norway, Denmark, Iceland, Barbados, Jamaica, Papua New Guinea, and the Solomon Islands. In the US, everyone is subject to the Constitution which is interpreted by the Supreme Court.
In Israel, however, the courts have pushed—aggressively at times—the notion that the country’s Basic Laws which define essential institutions of the republic are, in effect, a constitution, which means that the courts have the power to scrutinize legislation based on how it complies with those constitutional laws, acquiring this way the status of the US Supreme Court in Israel, which was never intended by the founders nor by subsequent generations of lawmakers and judges before the High Court’s gay 90s.
Also on Monday, Itamar Ben-Gvir, who may or may not make it past the threshold percentage into the 24th Knesset, posted on his Facebook page: “The trial of the Prime Minister this morning is the result of the abandonment of the rule of law for many years by the leftwing parties, which gave tremendous power to the State Attorney’s Office and the Attorney General. In the next Knesset, we will end the rule of the civil servants and the unlimited power of the Attorney General. We will also defend the status of the Prime Minister and enact the French Law as befits a democratic state that allows its Prime Minister to function.”
That’s a whole lot of legislative revolution for someone leading such a tiny faction. This doesn’t necessarily mean that Ben-Gvir is wrong. For one thing, Israel’s Attorney General has two distinct and very powerful functions, and these days they often throw the office and the man in charge of it into a conflict of interest.
The actual title of the AG is Government Counsel, but as such he is not the government’s or the prime minister’s lawyer but the legal authority that points out legal landmines on the path of any given legislative initiative. And while it’s true—as was pointed out only recently by PM Netanyahu—that the AG’s job is to give counsel and the government is free to decide whether to heed said counsel, in the end, should the state be sued over this law, it would be that AG that represents it. And when he does, he may openly and freely attack in court the very government he represents.
But the AG has another, equally powerful role, as the supervisor of the state prosecution, deciding whether or not to sue any given citizen. As such, it was the AG who gave the OK for the prosecution to launch three criminal indictments against the prime minister a year ago.
If you get the feeling that this unelected position is too powerful by half, then this is Ben-Gvir’s gripe. He and many others on the left and the right in Israel believe the AG’s position should be split into two distinct roles: 1. Legal adviser to the government who also represents it before the High Court; and, 2. Head of the prosecution in Israel, which, by the way, already exists as a subordinate of today’s AG.
Also, Ben-Gvir wants to import the “French Law,” which would essentially put on hold all criminal lawsuits against a serving prime minister, endowing him with the same protection from prosecution while in office enjoyed by French presidents.