Prof. (Emeritus) Mota Kermanitzer11/10/22 12:16 PM in Hashvan Tishpag
Photos: Jonathan Zindel, Flash 90
There is no justification for the overcoming clause except for the desire of the contemporary political majority to do as much as it pleases.
This desire is based on the assumption that the world is resilient and that those who are in the coalition today will always be in the coalition. That’s what they thought at the time in Mapai as well and the reality proved the opposite.
Anyone who is in the minority, such as women (not numerically but by virtue of their status), LGBT people, those who serve in mandatory service and reserves, the Arab citizens, the opposition to the government, will be at the mercy of the whims of the majority, and even its tyranny, and will have no protector. It is difficult to see such a system To be fair, only a simplistic and mistaken identification of democracy with the will of the majority, as distinct from the sovereignty of the people (including citizens), may serve as a basis for such an approach.
Democracy and unlimited rule are one and the opposite
A democracy without protection of human rights and minority rights, an effective system of checks and balances and the rule of law is not worthy of its name. It is a democracy in the same way that the authoritarian regime that emerged in Hungary under Orban’s rule is a democracy.
Democracy and unlimited rule are one and the opposite. Already today, Israel suffers from a system of checks and balances that is particularly weak: we do not have an armored and stable constitution, our human rights charter is severely lacking and the fundamental laws can be easily changed.
Balance mechanisms that are accepted in other countries are missing in Israel, such as a real separation between the executive and the legislative authority, a separation between central government and sub-states that exists in federal states, two legislative houses and more.
Against this background, the major weakening of judicial review completely undermines the system of checks and balances and makes the coalition majority omnipotent.
High Court of Justice judges. The Knesset gave Gushpanka to the law that allows them to invalidate laws (Yonathan Zindel/Flash90)
The Knesset gave a Gushpanka to the Mizrahi rule
The interpretation in the Mizrahi Bank judgment (from 1995) according to which the Basic Law: Human Dignity and Freedom (from 1992) is in a position of supremacy over ordinary laws and the court has the authority to judicially review laws, in terms of their compatibility or non-compliance with the Basic Law – this interpretation is not a whim of power. It is well based on the language of the Basic Law, according to which every authority from the governing authorities must respect the rights according to this Basic Law and there is nothing in the Basic Law to impair the validity of a law that existed before this Basic Law was enacted.
Without a judicial review, the aforementioned duty of hospitality becomes an empty box. And of course, no, we learn both. There is no judicial review of the laws that preceded the Basic Law, but there is such review of laws enacted from here on. It is therefore not surprising that the legislator did not for many years make a move to thwart the Mizrahi rule, and so Goshpanka gave on his behalf to the Mizrahi rule. This is how Israel entered the club of the vast majority of democratic countries that have judicial review of laws, and there is no superseding clause.
England is mentioned as an exception, but it is a member of the European Convention on Human Rights, and therefore its laws are subject to judicial review by the European Court of Human Rights, where most of the judges are not English. It is difficult to understand why the citizens of Israel do not deserve the same degree of protection of their rights (even from the majority) that the citizens in democratic countries enjoy.
Canada is a broken cane prop
Supporters of the superseding clause cling to the Canadian exception, but it is a broken cane support. There is no similarity between us and Canada in terms of the system of checks and balances, since Canada has an armored constitution (which is very difficult to change) and a complete Bill of Human Rights. The political culture is also very different.
The Canadian arrangement is rooted in the complex relationship between the federal government and the provinces, a background that has nothing to do with our situation. By virtue of a superseding clause, for example, the legislature in Quebec overcame a ruling that overturned a law-enforced ban on civil servants wearing religious symbols such as a kippah. Is this a proper and desirable arrangement?
Aryeh Deri with Benjamin Netanyahu. The overcoming clause is intended to give free rein to governmental corruption (Photo: Yonatan Zindel, Flash 90)
Seeking to legalize corrupt behavior
Aryeh Deri threatens that if the court dares to determine that Kalon sticks to past tax delinquencies, he will make sure to overcome the ruling.
To teach us that those who use the language of governance are in practice seeking to legalize corrupt behavior. They are not asking for governance, but a free rein for governmental corruption.
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