In recent years, the Supreme Court became a legislative force, beginning with former Supreme Court Chief Justice Aharon Barak’s constitutional coup. This usurpation by the Supreme Court of the elected Knesset’s legislated powers was expressed in the numerous repealing of, amongst other laws, the Prevention of Infiltration Law, the Regulation Law, and the Israel Defense Service Law. The Override Clause seeks to correct this reality.

The system of government of the State of Israel, as in any democracy, is based on three branches of government: executive, legislative and judicial. The assuming of power by the judiciary to disqualify the decisions of the legislative branch and thereby to replace it de facto destroys the delicate balance between the elected members of government and the appointed judges.

The Supreme Court’s duty is to protect against arbitrary or unconstitutional decisions of the government and Knesset. However, judicial review must also be limited. The most suitable solution is to require a majority of elected Members of the Knesset, 61 out of 120, to override a law which the Court considers to be a violation of basic rights. This is the solution proposed in The Override Clause, which seeks to enable the Knesset to re-enact a law that was rejected by the Supreme Court with a majority of 61 Knesset members.

The court’s recent overruling of the elected government’s decisions regarding illegal infiltrators demonstrates the urgent need to legislate The Override Clause. The Supreme Court’s ability to overrule the government on deportation or detention must be limited. Israel needs to be able to safeguard her national interests. In other countries, including the United States, the Supreme Court only hears a very small percentage of the petitions presented to the court each year. In Israel, however, every appeal is heard by this forum; therefore, it is necessary to ensure that the Court operates with due diligence.

The battle between Prime Minister Binyamin Netanyahu and Supreme Court Chief Justice Esther Hayut is one which will determine whether Israel will function as a true democracy or one in which the elected Knesset and government yield to the will of the appointed judges of the Supreme Court.

The Legal Forum for Israel fully supports the demand to legislate the Override Clause with a majority of 61 MK’s. We view this as an historic opportunity to restore a healthy balance between the three branches of a democratic government, one in which elected members of the Knesset are not rendered powerless. The Override Clause will strengthen the government’s ability to uphold the State of Israel’s Zionist and democratic identity.