The Supreme Court override bill, a constitutional crisis?

The country is in uncharted waters with concerns of a constitutional showdown.

The Ministerial Committee on Legislation voted on Sunday to give the Knesset the power to override the Supreme Court when it vetoes a law, as long as 61 lawmakers vote for such a decision.

Negotiations have been ongoing between Prime Minister Benjamin Netanyahu, Supreme Court President Esther Hayut and other key parties in an attempt to reach a compromise on the issue.

There are still high hopes a compromise can be reached. Many former justices, including Justice Elyakim Rubinstein and Justice Edna Arbel, are supportive of a compromise. “The key is dialogue,” Arbel told The Jerusalem Post, “and respect between the branches of government.”

But if no compromise is reached and the Knesset passes a law the Supreme Court can’t swallow, will the court declare that law unconstitutional? Will it veto a law that limits its own power to veto the Knesset?

In practice, the court might not veto the new override law. However, if the Knesset uses the overide law to relegislate, the court could then re-strike down that law.

The short answer, though, is “No one knows.” However, former Supreme Court justice Eliyahu Matza told the Post the court might – in certain circumstances – veto a Knesset veto.

The issue goes to the heart of defining the parameters of the separation of powers. It also zeros in on the need to clarify the roles of the different branches in Israel’s democracy as the nation tries to resolve complex issues involving African migrants, haredim (ultra-Orthodox) serving in the IDF and a variety of issues in which human rights must be balanced against national security.

The public sentiment on this issue is hard to pin down. Israelis often disagree with the court about striking down laws, but they also dislike the idea of a broad showdown with the court.

The specifics of what kind of override law passes could matter a lot in terms of whether the Supreme Court accepts new limitations on its judicial review power.

On the far ends of the spectrum, there are current and former Supreme Court justices who would oppose any law allowing the Knesset to override a Supreme Court veto which could pass with less than 80 votes. And there are Knesset members and ministers like Yariv Levin who want to remove the court’s judicial review power entirely.

Justice Minister Ayelet Shaked views the need for 61 votes as a compromise. She said this is taking the issue seriously since a regular Knesset law can pass with any majority – even if far fewer than 61 Knesset members vote for it.

Most laws can be passed with a majority of MKs present in the Knesset at the time of the vote.

Rubinstein and Attorney-General Avichai Mandelblit have staked out 70 votes as the right compromise, as that number of votes would almost certainly require support from an opposition party. This, they say, would show there was overwhelming support for overriding the Supreme Court, criss-crossing a variety of sectors in society.

Arbel did not want to give a number, but pointed out that despite how it is sometimes painted by opponents, the court can go a year or more without striking down a law. And then, it only strikes down the most blatant violations of human rights. She added that the court’s reputation for independence is a major boon for Israel’s global reputation.

Shaked and her camp say it is extremely difficult to get the entire coalition of at least 61 MKs to all vote for the same thing. Requiring a 70 MK vote, she said, would be unrealistic and render the Knesset’s override authority meaningless.

Proponents of needing 70 votes to override a Supreme Court veto say anytime a coalition invokes coalition discipline it can pass a law with at least 61 votes. They add that such a low vote cut-off would essentially end judicial oversight and could undermine Israeli democracy itself by reducing the judiciary’s ability to protect minority and human rights and power grabs to such an extent as to be meaningless.

It seems that if the bill ensures that the Knesset would need to provide 70 votes for an override, then enough justices will support it that those who do not will swallow the pill.

However, if the bill passes with the requirement of only 61 votes to override a veto, there is a strong chance the Supreme Court would veto it.

HOW COULD the court possibly veto the Knesset passing a new Basic Law?

It seems Mandelblit believes the court could not veto a new Basic Law and he is just fighting to get the necessary vote number to 70 because he believes it strikes the right balance for Israeli democracy. But the justices could say that as long as the Basic Law: Human Dignity and Liberty exists, that Basic Law overrides any contradictory Basic Law.

Since the Basic Law: Human Dignity and Liberty is widely cited as the basis of judicial review in Israel, the court could claim the entire new part would need to be rewritten – not just added to – in order to remove that power.

Alternatively, there were some – though not many – cases of judicial review even before the Basic Laws were passed in the 1990s. When the Supreme Court used judicial review to strike down a Knesset law or state policy before then, it based the power on the Declaration of the Establishment of the State of Israel of May 14, 1948, combined with a general idea that judiciaries in democracies have an inherent implied power of judicial review.

Former chief justice Aharon Barak, who appears to favor a 70 vote or higher cut-off, implied Sunday that the Knesset does not have the power to change the balance of a Jewish and democratic state set forth in the Declaration.

It is true that judiciaries have judicial review power in most democracies. Most democracies also have a special vote count for overriding their Supreme Courts, though most also have a constitution that binds the legislative branch beyond limits set by the court.

Justice Eliyahu Matza pointed out to the Post that Canada and England – the countries cited by proponents as paradigms for limiting the court – have many more checks on their legislative branches beyond just the courts, which Israel does not have.

What would happen if former justice minister Yaakov Neeman’s attempt some years ago to pass a bill to override the court with a 65 vote special majority was adopted? It is hard to say.

On the one hand, it would be a symbolic move, moving closer to 70 and making the vote clearly more serious than a Basic Law.

On the other hand, since the current coalition and most coalitions are able to mobilize more than 65 votes, the court still might view Neeman’s 65 as no different than 61.

And if the Supreme Court did veto the Knesset override law, what then? Would the Knesset accept the public rebuke and blink first? Or would Netanyahu and the Knesset recognize that the court has no enforcement power beyond public opinion and simply ignore the court?

The ministerial vote was just the earliest stage of the legislative process in which many additional votes will be required.

As of now, most sides are still hoping that between now and whenever the bill comes to a final vote, a compromise will be reached and a constitutional crisis averted.