How Netanyahu dropping override clause changes Israel's judicial reform - analysis

Prime Minister Benjamin Netanyahu was announced to be dropping the "most controversial piece" of the judicial reform, the override clause, in an interview with the Wall Street Journal -- however, among experts and politicians, the override is not seen as the most important provision and is likely to appeal to street protesters rather than negotiation partners. 

An override clause would allow the Knesset to overrule the High Court of Justice's striking down of legislation through judicial review. The Knesset would require a threshold of Knesset member votes to be implemented. A bill halted in the reform legislative freeze proposed a simple majority of 61 votes, but other proposals have suggested a higher threshold. The question of how many votes should be needed makes the debate about the bill relatively simple, and backing for the provision isn't as strong as with others. 

As WSJ noted, Netanyahu was previously unfavorable to extreme versions of the law. The Kohelet Forum, a think tank that has been influential in forming pro-reform ideas, said in mid-March that it was possible to drop the override as long as other solutions were proposed to address the judiciary's problems. 

United Torah Judaism has been one of the biggest backers of the override clause but sees it as a means and not an end goal. There is no principled imperative to reduce the judiciary's power; the Haredi party seeks to overrule the High Court's judgment on an IDF draft bill that would require the drafting of ultra-orthodox youth into the military. If this goal could be satisfied by other means, then it may not support the bill -- In 2020 UTJ and Shas declined to support an override bill. 

Herzog's reform outline didn't include override 

President Isaac Herzog's March judicial reform outline didn't include the override clause. The early March Friedmann model made minor adjustments to the clause. The override was not the main focus of alternative outlines. This is not to say that the override is not important, it will have an impact on the Israeli system if passed -- but NGOs and parties critical of the reforms are unlikely to be impressed by the unilateral measures. 

Dropping the override clause is likely more for protesters in the street. Israel endured crippling protests during the first three months of 2023, and the introduction of new private reform bills threatens to reignite the streets.

“I’m attentive to the public pulse and to what I think will pass muster,” Netanyahu told the Journal.

Many of the reform proposals are difficult to understand, but the override is a very simple concept, and it has been discussed extensively in past governments. Anecdotally, many of the protesters who spoke to me at the height of the protests cited the override clause as a reason for them marching, rather than the Judicial Selection Committee or judicial review. If the goal was to pacify opposition factions, there were issues far more pressing for them to address.

A judicial review bill with the override clause included was frozen in March. Netanyahu told the Journal he would move ahead with legislation stripped of the override, but it was unclear if the Journal meant the reform as a whole or the specific judicial review bill. Override would have limited applicability if the ability of the court to strike down legislation is severely restricted in the first place.

Another bill on the Judicial Selection Committee was frozen just before its final readings. Netanyahu was also seeking to revise this provision, the Journal reported, without providing details.

The Judicial Selection Committee is perhaps the most contentious issue in the reform. Actors from both the pro- and anti-reform camps have said they had trouble finding a compromise on the issue, and the alternate outlines offer wildly different solutions.

It would be more significant than the override clause if it was known how Netanyahu would change the Judicial Selection Committee bill. Anti-reformists have expressed concern that the coalition is seeking to change the composition and rules of the panel to appoint political loyalist judges. They fear that the judges would always rule in the coalition’s favor – again preempting a need for overturning High Court judgments.

The dropping of the override clause is an interesting development, but is not a game changer for the anti-reform academics, NGOs and politicians. Netanyahu indicated that even more changes are on the horizon, but as of yet, controversy has not been dropped from the judicial reform.