The idea of overcoming arose in Israel in the wake of the “constitutional revolution” of 1992, after the Knesset passed the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation. These laws anchored human rights in Israel, and stipulated that from now on the Knesset should enact only laws that conform to the values of Israel as a Jewish and democratic state, which will be enacted for a proper purpose and be proportionate. These basic laws, in addition to those that have already been enacted, are considered the reason why Israel has become a state that has a constitution that establishes civil rights above all.
In practice, the constitutional revolution in Israel has expanded judicial review of Knesset laws. Whoever is considered the father of this approach is the then Vice President of the Supreme Court, Aharon Barak. Following a series of High Court rulings, along with articles by Barak that accompanied the rulings in long lectures, the feeling was created that there was also a regime explosion in Israel.
The power given to the Supreme Court to repeal a law that is in conflict with the Basic Laws and Human Rights has led to a debate that continues to this day over who owns the land in everything related to legislation – the High Court through the repeal tool, or the Knesset which is the legislature. The Basic Laws also led to the strengthening of the High Court’s authority to annul decisions that are unreasonable, proportionate or intended for a proper purpose.
The constitutional revolution ignited controversy, discourse and struggle between groups of years in society, academia, legal circles and above all in the Knesset and government. Many politicians claim that the rulings have given the High Court supremacy over the Knesset and the government, and have argued that judges use their legal power to take from the elected echelon the power the people have given it.
About a year after the Basic Laws were passed, the High Court overturned the arrangement banning a company from importing non-kosher meat, claiming that it violated freedom of occupation. The late Yitzhak Rabin government, which relied on the votes of religious factions, claimed it was a threat to the status quo. For a political crisis, calm demands to restore the status quo on the issue.
In response, Aharon Barak proposed submitting the Basic Law in a new version that would include the “overcoming clause” – that is, the Knesset could re-enact a law that is in conflict with the Basic Law, for a limited time, and provided it is accepted by a majority of 80 Knesset members. Barak did not want to harm the entire constitutional enterprise, and believed that there were rare cases in which the Knesset could overcome disqualifications.
Since 1992, the Supreme Court has invalidated a total of 20 laws and sections of law. On the other hand, the thousands of laws enacted by the Knesset or following the Supreme Court’s comments have made Israel one of the leading countries in enlightened, egalitarian and progressive legislation, which proudly carries human rights.
Supporters of the overcoming ruling claim that today the Supreme Court controls politics and paralyzes the coalition majority in the Knesset and government. According to them, the court should deal mainly with dispute resolution and criminal and civil interpretation, and should not interfere in matters of policy, politics, religion, economics, security and diplomacy. According to them, the judges who were not elected by the people hold views that do not reflect the mood of the people, and therefore should not be given a veto over the Knesset and the government – who are democratically elected.
Opponents of the overruling clause argue that the High Court protects human rights, and especially the rights of the minority, from the tyranny of the majority. A majority with unlimited legislative power, they argue, is dangerous. The Basic Laws protect, among other things, property, privacy, human dignity, freedom of movement and others from abusive legislation, and the Supreme Court is the competent interpreter of these laws.
Another issue that opponents of the overcoming clause touch on is the problematic nature of passing such a clause while the incumbent prime minister is facing an indictment and is on trial, and may use such legislation to his advantage – raising concerns about violating moral purity.
As stated, the power of the High Court continues to provoke unrest in the political system. From time to time, a proposal arises, especially on the right, to add an overriding clause to the Basic Law: Human Dignity and Liberty, thus allowing the Knesset to re-enact laws rejected by the court.
Various governments, on both sides of the political map, have also tried to enact a Basic Law: Legislation, which was supposed to regulate and delimit Knesset relations before the Supreme Court. They all failed.
The main reason the legislation did not advance was the firm opposition of Supreme Court justices and presidents to the issue of a majority in which a law blocked in the High Court could be “overcome.” Right-wing politicians demanded a 65-61 majority – a coalition majority – while the legal system demanded an 80-75 majority MKs, so that laws can be re-enacted on the basis of consensus and not on the basis of an occasional majority. Additional formulas proposed were unsuccessful.
The overcoming clause that will come up in a preliminary reading in the Knesset plenum on the day was proposed by the former Minister of Justice, MK Ayelet Shaked on the right. The proposal includes two main components. First, the overcoming clause will be within the framework of the Basic Law: Justice, according to which it will be possible to overcome a law that was rejected by a majority of only 61 Knesset members. Shaked’s second principle is that the overcoming clause will also include the reduction of the “right to stand” – the right to appeal to the High Court, which has been expanded in recent years.
Supreme Court President Esther Hayut said last year that the Israeli court is considered one of the most restrained and restrained courts when it comes to repealing laws that are unconstitutional, and the same conclusion can be drawn from examining the percentage of constitutional petitions received over the years.
“It is wrong for anyone who believes that the overcoming clause” prevails over the court, “Hayut said. This, even when those laws do not conform to the values of the State of Israel as a Jewish and democratic state, are not intended for a proper purpose and the harm by virtue of them is disproportionate. ”