Is Alan Dershowitz right to warn against the ‘override clause’?
The enthusiastic response of the “anybody but Bibi” camp to a video message delivered on Friday by renowned criminal attorney Alan Dershowitz through the Hebrew news site Ynet is amusing.
Professor Alan Dershowitz speaks at a conference in Tel Aviv on Dec. 11, 2016. Photo by Miriam Alster/Flash90.
The same Israelis who’d been casting aspersions on the retired Harvard professor for criticising the decision to indict Benjamin Netanyahu—the country’s longest-serving prime minister, soon to resume the premiership—are now hailing him as an expert to be heeded.
The issue in question, a central campaign promise of the incoming Netanyahu government, is an amendment aimed at enabling the Knesset (the legislative branch) to “override” Supreme Court (judiciary) reversals of laws it enacts. It’s one of a series of reforms slated to get underway as soon as the coalition is formed and instated.
The controversy surrounding the “override clause” is so heated that it’s gone beyond healthy debate and entered the realm of the unreasonable. Indeed, as has become customary where dissent on complex matters is concerned, this point of contention is being used by Netanyahu’s detractors as yet another excuse to accuse him of trying to “crush Israeli democracy.”
And because the subject at hand is the legal system, his enemies claim that the entire effort is a contrivance to finagle the cancellation of his trial on corruption charges. That the prosecution’s case is falling apart on its own is fodder for a different column.
Unlike Israel’s agenda-driven cynics, Dershowitz has at least proven himself trustworthy where his views on the Jewish state are concerned, even if one disagrees with some of them. His recent oral editorial about what he considers to be the perils of the override clause thus warrants respectful dissent.
“The Israeli Supreme Court has been the gem, the jewel, of judiciaries around the world,” he said. “[It] has been the main argument that Israel has been able to make to keep issues away from the International Criminal Court and other international courts … [It] is essential not only to the preservation of Israeli democracy but to Israel’s attempt to present itself in an honest, truthful and positive way to the world.”
Therefore, he stated, “It would be a terrible, terrible mistake for an
override to be permitted by the Knesset … It would be a terrible mistake to weaken the independence of the Supreme Court. It would be a terrible mistake for politicians to be able to dictate who is on the Supreme Court or how the Supreme Court decides cases.”
Finally, he asserted: “It is not broken. Do not fix it.”
The chattering classes haven’t ceased citing this warning, especially since it emanated from someone who decried the attempt to defeat Netanyahu via the bench rather than the ballot box. Their doing so is both understandable and fair game, despite the less-than-pure motives of most of them.
One notable exception is Haim Ramon. Though the former minister of justice and other portfolios never was a member of Netanyahu’s Likud Party—he’s belonged to Alignment, Labor, One Israel and Kadima—Ramon, who appears regularly on TV panels as a pundit, refuses to sign in the “anybody but Bibi” choir.
In an op-ed on Sunday, he not only called out Dershowitz’s newfound fans on the left, but disputed the venerated lawyer’s protestations.
“I’d like to take the opportunity to remind all those who tend to ignore the history of the override clause that its … father was none other than Aharon Barak,” wrote Ramon of one of Israel’s most celebrated legal minds. “Then the deputy president of the Supreme Court, he was the one who proposed to us in the government of [Yitzhak] Rabin to legislate it in the ‘Basic Law: Freedom of Occupation,’ when we encountered a political crisis with [the Orthodox party] Shas over the importing of non-kosher meat to Israel.”
This was one of two basic laws passed in the early 1990s. The second was the “Basic Law: Human Dignity and Liberty.” Barak declared both to be fundamental to Israel’s “constitution.”
Ramon continued, “I also intend to reiterate that the best of nine judges led by Barak ruled that the override clause was completely constitutional—with a 61-Knesset seat majority [Ramon’s emphasis, to counter the constant harping about such a slim majority being “undemocratic”]. Barak even stated clearly that ‘the goal of the override clause is to enable the legislature to achieve its political and social objectives without fearing—when its constitutionality is subject to judicial review—that it will be deemed unconstitutional and therefore nullified.”
Ramon then recounted that, 10 years after the override clause was proposed, Barak—by this time Supreme Court president—addressed the Knesset and explained, “There is no logic to having an override clause [that] weakens judicial review in the ‘Basic Law: Freedom of Occupation’ without having such a clause in the ‘Basic Law: Human Dignity and Liberty’ … Having it exist in one and not the other is an anomaly.”
Ramon concluded: “I assume that professor Barak is at least as knowledgeable about Israeli constitutional law as professor Dershowitz, if not more so. All those worried about the possible enactment of the override clause, then, can relax and be reminded that it is not only a legal and legitimate amendment; it’s also a constitutional tool to enable the legislature to achieve its social and political objectives. Even Barak said so.”
It’s not likely that Dershowitz, who must be aware of Barak’s position, will alter his stance, which is based largely on how the already hostile international community will react. Nor can the “anybody but Bibi” contingent be counted on to change its tune.
The rest of us would do well, however, not to be bullied into believing that a move to strengthen the will of the people through our elected lawmakers endangers democracy. On the contrary, the opposite is true.
Ruthie Blum is an Israel-based journalist and author of “To Hell in a Handbasket: Carter, Obama, and the ‘Arab Spring.’ ”
Is the proposed override law any different to what we have in Australia and the UK? In common law countries the ultimate power to legislate lies with elected members of Parliament, not the Courts. Courts can rule laws passed by Parliament to be unlawful, and then Parliament often amends them to make them lawful. Why should Israel be any different?
In Australia out of expediency parliamentarians , not even with privileges allotted them won’t even take a stand…..even when criminality hasn’t passed the “pub test”.