Regev Responds

Why the current obsession regarding the override clause?

How do we know that the override clause is a despicable initiative?

Many political figures present the demand for legislation of the “override clause” as essential for "the judicial system’s health”, for "increasing public trust in the Supreme Court", and a host of other slogans which sound reasonable and responsible, but which are actually far removed from that.

MK Rabbi Moshe Gafni, source: WikipediaMK Rabbi Moshe Gafni, source: Wikipedia

The current obsession regarding the override clause and its accompanying initiatives do not stem from a genuine concern for Israeli democracy. Quite the contrary is true: their purpose is to erode democracy by neutralizing the Supreme Court and the gatekeepers, in a manner which allows predatory political forces to avoid the judicial review which is an essential element of a healthy regime that upholds checks and balances.

The ultra-orthodox parties, for example, made it clear that without surrendering to the demand for immediate legislation of the override clause they will not join Netanyahu’s coalition. As Rabbi Moshe Gafni wrote: "We are not joining the government for positions. We are joining in order to implement policy, and to do so, we need the override clause.” What "policy needing implementation" is he talking about? And why do they “need the override clause" to implement it?

Take for instance the ultra-Orthodox concern regarding the conscription law. Israeli governments from the left, the center and the right were prepared to trample the value of equality in order to buy the votes of the ultra-orthodox parties. However, the Supreme Court "spoiled" the game. In 2012, it invalidated the "Tal Law" as unconstitutional due to its severe violation of the principle of equality. The government requested a postponement of the expiration date of the law approximately ten times, but in another three months the last postponement will expire, and we will face the moment of truth. The ultra-Orthodox parties are clear about the required solution: castrate the Supreme Court and replace its rulings with political arm-twisting.

This policy is intended to bring Israel closer to the model of a Torah State and distance it from the Declaration of Independence's promise of religious freedom and equality.

This is the policy that Gafni and his colleagues want to make possible through the override clause and tying the hands of the Supreme Court. It involved the conscription law and other building blocks of the "policy" which the Supreme Court may bring to a halt: the dispensation of a lot of money, the expansion of Shabbat prohibitions, full funding of ultra-orthodox schools without core curricular studies, neutralization of the commitment to gender equality, tightening of conversion requirements, the Western Wall, further eroding pluralism, etc.

This policy is intended to bring Israel closer to the model of a Torah State and distance it from the Declaration of Independence's promise of religious freedom and equality. As was shown in the past, this policy is partially unconstitutional and was halted by the Supreme Court of Justice. Not anymore. The override clause will take care of that.

One thing should be clear: this policy and the coalition parties' support for it goes against the clear will of the majority of the public, including a large majority of Likud voters! Hiddush’s 2022 Religion and State Index, conducted for the 14th year through the Smith Institute, revealed that 75% of the adult Jewish public reject the ultra-Orthodox position, and demand that yeshiva students enlist for military or civilian service. Similarly, 77% hold that all ultra-orthodox schools that receive state funding should be required to teach full core studies, and those that do not comply with this should be deprived of funding or have the funding significantly cut back.

In reply to the question: "Do you agree or disagree that Jewish citizens of Israel should have more rights than non-Jewish citizens", in the Democracy Index of the Israel Democracy Institute, it emerged that 68.6% of Shas voters and 54% of Torah Judaism voters answered in agreement! Similar and even more extreme results were found in the study of the Israeli public by the American Pew Research Center. If these parties demand legislation in this spirit - the Supreme Court will no longer be able to act as the defender of democracy and the rule of law after legislation of the override clause, and no western country in the world will continue to see Israel as a democracy worthy of its name.

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